Madras High Court
Madanraj vs The Commissioner on 25 November, 2021
W.P.(MD)No.12861 of 2012
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 25.11.2021
CORAM:
THE HONOURABLE MR.JUSTICE M.SUNDAR
W.P.(MD)No.12861 of 2012
and
M.P.(MD)No.1 of 2012
Madanraj ... Petitioner
Vs.
1.The Commissioner,
Hindu Religious & Charitable Endowments Department,
Chennai.
2.The Joint Commissioner,
Hindu Religious & Charitable Endowments Department,
Nethaji Road,
Madurai.
3.The Assistant Commissioner,
Hindu Religious & Charitable Endowments Department,
Madurai. ... Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution
of India for issuance of Writ of Certiorari, calling for the records of
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W.P.(MD)No.12861 of 2012
the first respondent dated 27.06.2012 in S.M.R.No.1/2010D2 and
quash the same.
For Petitioner : Mr.R.G.Shankar Ganesh
For Respondents 1 to 3 : Mr.A.Baskaran
Additional Government Pleader
ORDER
***********
Captioned main writ petition has been filed assailing an order
dated 27.06.2012 made by the first respondent in suo motu
Revision No.1/2010D2 [hereinafter 'impugned order' for the sake of
convenience and clarity].
2.The impugned order has been made under Section 69(2) of
'the Tamil Nadu Hindu Religious and Charitable Endowments Act,
1959 (Tamil Nadu Act 22 of 1959)' {hereinafter 'TN HR & CE Act'
for the sake of convenience and clarity}. This impugned order is
more than a decade old. It completed 10 years, about 5 months
ago.
3.Be that as it may, this writ petition itself has been filed in
this Court on 01.10.2012 and therefore, the captioned writ petition
is also more than a decade old. An interim order has been granted
in the captioned miscellaneous petition in the captioned main writ
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petition, this interim order is dated 13.02.2013 and the same reads
as follows:
'Heard the learned Counsel for the
petitioner.
Learned Government Advocate takes notice
for the respondents and he seeks time to take
instruction.
Post on 14.03.2013. There shall be an order
of interim stay of the order passed by the
Commissioner in the meantime. However, it is
made clear that granting of interim stay would
not amount to granting permission to the
petitioner to assign the property of the Temple in
question. It is also made clear that the property of
the Temple shall not be assigned on the basis of
this order of stay.'
[Extracted and reproduced as such]
4.Aforementioned interim order has been extended until
further orders vide orders dated 14.03.2013, which reads as
follows:
'The interim stay already granted on
13.02.2013 shall continue until further orders.'
[Extracted and reproduced as such]
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5.In three months from now, the interim order also would
become one decade old. To be noted, the interim order has now
been operating for nine years and nine months.
6.Reverting to the impugned order, the same pertains to a
temple which goes by the name 'Arulmighu Badrakaliamman
Temple situate at Melakottai, Thirumangalam Taluk, Madurai
District' ['said temple' for the sake of convenience and clarity].
7.Factual matrix containing facts that are imperative for
appreciating this order are that the then Deputy Commissioner of
'Tamil Nadu Hindu Religious and Charitable Endowments
Department' ['TN HR & CE Dept.,' for the sake of brevity] was
petitioned under Section 63(a) of the TN HR & CE Act by one
Regunatha Das Pandian I.A.S. vide O.A.No.85 of 1980 and the then
Deputy Commissioner in and by an order dated 19.06.1982
declared that said temple is not a religious institution coming
within the purview of Section 6(20) of the TN HR & CE Act; that it
is to be noted that Section 6(20) of the Act defines 'temple' and not
a 'religious institution'; that religious institution is defined under
6(18) of TN HR & CE Act.
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8.Be that as it may, writ petitions were filed in this Court
being W.P.(MD)No.3467 of 2008 and W.P.(MD)Nos.10188 & 12319
of 2008 . These writ petitions came to be disposed of by this Court
by orders dated 15.04.2008 & 03.09.2009 and these writ petitions
pertain to properties qua said temple; that the first respondent
exercised suo motu powers under sub-Section 2 of Section 69 and
made the impugned order; that in and by the impugned order, the
first respondent, noticed that said temple is situate in Natham
Poramboke S.No.204/1 and not in a private house of a Zamindhar
as observed by the then Deputy Commissioner in his 1982 order;
that vide impugned order, the first respondent set aside the
19.06.1982 order of then Deputy Commissioner of TN HR & CE
Dept., remanded the matter to the jurisdictional Joint
Commissioner of TN HR & CE Dept., to issue notice to the writ
petitioner and other persons, hold an enquiry, obtain a fresh report
giving reasonable opportunity to the parties concerned and then
give an order on merits and in accordance with law as
expeditiously as possible; that this did not move forward, this writ
petitioner has filed this writ petition on 01.10.2012 and the interim
order dated 13.02.2013 staying the impugned order (alluded to
supra) came to be made by this Court; that the interim order is
operating until today and therefore, the proceedings before
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W.P.(MD)No.12861 of 2012
jurisdictional Joint Commissioner never got kick-started post
remand vide the impugned order.
9.The aforementioned narrative sets out factual matrix
containing facts imperative for appreciating this order and it also
captures the broad trajectory the matter has taken in reaching this
final hearing today before me.
10.Mr.R.G.Shankar Ganesh, learned Counsel for writ
petitioner assailing the impugned order notwithstanding very many
averments in the writ affidavit and notwithstanding several
grounds in the writ affidavit submitted that his campaign against
the impugned order is three fold and the three main grounds are as
follows:
a) The suo motu exercise of powers by first
respondent is mala fide and the Assistant
Commissioner giving a report triggering the suo
motu proceedings is also mala fide;
b) The suo motu proceedings have commenced
after thirty years which is not reasonable time; and
c) Reasonable time qua suo motu proceedings
is imperative.
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11.Elaborating on the above submissions, learned Counsel
reiterated that the trigger is a report of the Assistant Commissioner
and that emanates from mala fides. Elaborating on the second
point of exercise of suo motu powers after thirty years, learned
Counsel pressed into service three case laws being order of Hon'ble
Supreme Court in Civil Appeal Nos.10787 to 10795 of 1996 dated
19.08.2003, order of a Hon'ble Single Judge of this Court dated
04.11.2009 in W.P.No.4139 of 2007 and order of another learned
Single Judge of this Court dated 03.03.2010 in W.P.Nos.26883 &
26884 of 2008. The third point of reasonable time is dovetailed
with the second point of exercise of suo motu powers post 30 years
or in other words it is the same point in different form and
therefore, the submissions can be considered as buttressing one
another.
12.Learned State Counsel in response to the aforementioned
arguments made submissions a summation of which is as follows:
a) There is nothing to demonstrate mala
fides; and
b) It was brought to the notice of the first
respondent inter alia by the report as also the
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fate of the earlier writ petitions which were filed
and therefore, it cannot be gainsaid that the
delay of thirty years vitiates the suo motu
proceedings. This applies to the third point
which depends upon the reasonable time.
13.By way of reply, learned Counsel for writ petitioner,
submitted that there is no change of circumstances warranting a
remand. It is necessary to record that learned Counsel submitted
that interim order is limited to restraining alienation of property of
the said temple but the case file placed before this Court speaks
otherwise. To be noted, the interim order and the extension of same
until further orders made by Hon'ble Predecessor Judge have been
extracted and reproduced supra. Therefore, one has to proceed
necessarily on the basis of the case files and the records before this
Court. When this was pointed out, learned Counsel shifted gears,
changed lane qua submissions and said he does not have the copies
of the interim orders before him. Therefore, this Court proceeds on
the basis that the aforementioned interim order qua impugned
order is operating.
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14.I now proceed to discuss the rival submissions, set out the
dispositive reasoning and arrive at a conclusion.
15.Regarding mala fides, law is well settled that mala fides
has to be well pleaded and has to be a matter of substance. In the
instant case, there is nothing demonstrable qua mala fides and
therefore, in my considered view the mala fides argument is a non-
starter.
16.I now move on to the second argument ie., exercise of suo
motu powers after thirty years. As already alluded to supra three
case laws were pressed into service. The first case law is the case
of Ibrahimpatnam Taluk Vyavasaya Collie Sangham Vs.
K.Suresh Reddy & Ors. in Civil Appeal Nos.10787 to 10795 of
1996 dated 19.08.2003 ie., K.Suresh Reddy's case. K.Suresh
Reddy's case arose under a Statute which goes by the name
'Andhra Pradesh (Telangana Area) Tenancy and Agricultural Land
Act, 1950' [hereinafter 'AP Act' for the sake of brevity]. The
Statement of Objects and Reasons of this Act has also been
extracted and reproduced in K.Suresh Reddy's case and the same
reads as follows:
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'STATEMENT OF OBJECTS AND REASONS
“Section 47 of the Andhra Pradesh (Telangana
Areaa) Tenancy and Agricultural Lands Act,
1950, which is in force in the Telangana Area of
this State as it stood prior to its amendment by
the Andhra Pradesh (Telangana Area) Tenancy
and Agricultural Lands (Amendment) Act, 1959,
provided that no permanent alienation or other
transfer of agricultural land shall be valid unless
it was made with the previous sanction of the
Collector. In actual practice, however, the
requirement of this section and also sections 48
and 49 had not been complied with, and
alienations and transfers had been effected on a
considerable scale without the previous
permission of the Collector, by means of oral
agreement, unregistered documents, etc.'
[Extracted and reproduced as such]
17.The factual matrix in K.Suresh Reddy's case reveals that
sale deeds were executed by owners of lands in favour of 4
different persons and pursuant to sale deeds possession was also
delivered to the vendees. Parties to the sale deeds have filed
applications under Section 50-B of AP Act for validation of sales.
Concerned Tahsildar issued validation certificates on various dates
and thereafter orders of the Tahsildar giving validation certificates
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W.P.(MD)No.12861 of 2012
were challenged in appeals by Special Tahsildar and the Authorised
Officer (Land Reforms) before the Joint Collector of the District but
those were dismissed in 1988. Thereafter, the Joint Collector issued
show cause notices purporting to exercise suo motu powers under
Section 4 of Section 50-B of AP Act. Therefore, the facts are clearly
distinguishable. The other distinguishing factor being in K.Suresh
Reddy's case, rights were crystallized in favour of certain persons
by way of sale deeds and subsequent validation certificates which
was also confirmed by an appellate authority. These rights were
sought to be lightly disturbed several years later and it is in this
context that Hon'ble Supreme Court observed that exercise of suo
motu powers 'at any time' only means that no specific period such
as days, months or years are not prescribed reckoning from a
particular date but that does not mean 'at any time' should be
unguided and arbitrary.
18.In this regard I remind myself of the celebrated Padma
Sundara Rao case being Padma Sundara Rao Vs. State of
Tamil Nadu case reported in (2002) 3 SCC 533 which was
rendered by a Hon'ble Constitution Bench. Padma Sundara Rao
case is an authority for the proposition as to how case laws and
precedents have to be set out and reckoned. The facts have to be
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W.P.(MD)No.12861 of 2012
first mentioned and then the proposition has to be highlighted.
Relevant paragraph in Padma Sundara Rao case law is 9 and the
same reads as follows:
''9.Courts should not place reliance on
decisions without discussing as to how the
factual situation fits in with the fact situation of
the decision on which reliance is placed. There
is always peril in treating the words of a speech
or judgment as though they are words in a
legislative enactment, and it is to be
remembered that judicial utterances are made
in the setting of the facts of a particular case,
said Lord Morris in Herrington Vs. British
Railways Board (1972) 2 WLR 537.
Circumstantial flexibility, one additional or
different fact may make a world of difference
between conclusions in two cases.'
[Extracted and reproduced as such]
19.In this case though the facts were not highlighted, I have
taken it upon myself and set out the facts. I am of the considered
view that the facts are clearly distinguishable and one other
distinguishable feature is the Statutes are completely different,
they operating in different realms. The TN HR & CE Act has been
repeatedly held to be a self-contained code by this Court in a long
line of cases and catena of judgments. Therefore, TN HR & CE Act
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W.P.(MD)No.12861 of 2012
being self-contained code contains a self-contained mechanism for
Chapter V proceedings. I shall deal with this elsewhere in this
order.
20.This takes us to the second and third case laws cited by
the learned Counsel. Those two case laws turn on service
jurisprudence and I find that those two case laws do not come to
the aid of the writ petitioner for the case at hand.
21.This takes us to the question of change in circumstances.
With regard to the change in circumstances, Section 69(2) of TN
HR & CE Act reads as follows:
''69(2). Any order passed by [the Joint
Commissioner or the Deputy Commissioner, as
the case may be], in respect of which no appeal
has been preferred within the period specified
in sub-section (1) may be revised by the
Commissioner suo motu and the Commissioner
may call for and examine the records of the
proceedings as to satisfy himself as to the
regularity of such proceedings or the
correctness, legality or propriety of any decision
or order passed by [the Joint Commissioner or
the Deputy Commissioner, as the case may be].
Any such order passed by the Commissioner in
respect of an order passed by the [Joint
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W.P.(MD)No.12861 of 2012
Commissioner or the Deputy Commissioner, as
the case may be], shall be deemed to have been
passed by the Commissioner on an appeal
preferred to him under sub-section(1).'
[Extracted and reproduced as such]
22.A careful perusal of Section 69(2) of the Act makes it clear
that change of circumstances, is not a condition precedent for
exercise of suo motu powers. In this case, the first respondent has
not even conclusively decided regarding the character of the
institution ie., said temple which was decided by the then Deputy
Commissioner way back in 1982 in a 63(a) legal drill. All that the
first respondent has done is, he has remanded the matter back to
the jurisdictional Joint Commissioner for a fresh enquiry and has
also made it clear that the enquiry will be after calling for a report,
after putting all concerned (including the writ petitioners on notice)
after giving opportunity to all persons for deciding the matter on
merits and in accordance with law. In this regard, I deem it
appropriate to extract and reproduce the concluding paragraph of
the impugned order and the same reads as follows:
'I find valid and justifiable reasons to
interfere with the impugned order of the then
Deputy Commissioner. Accordingly, the order
passed by the then Deputy Commissioner dated
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19.06.1982 made in O.A.No.85/1980 is hereby set
aside and the matter is remanded back to the
Joint Commissioner for enquiry denova. The
Joint Commissioner is directed to issue notice to
the present respondent and other persons having
interest, hold an enquiry after obtaining fresh
report from the Inspector of this Division and
afford reasonable opportunity to the parties and
to decide the matter on merits and in accordance
with law as expeditiously as possible.'
[Extracted and reproduced as such]
23.As already alluded to supra, this remand did not get kick-
started owing to the writ petitioner filing the captioned writ
petition and obtaining an interim order [details of which have been
alluded to supra] which is operating until today.
24.In my considered view, there would be no prejudice
caused to the writ petitioner if the denova legal drill is conducted in
accordance with the remand order ie., impugned order. This is
more so as the matter pertains to TN HR & CE Act which is a self-
contained Code. The issue will be comprehensively resolved
ie., whether said temple would qualify as a public temple and
therefore whether sub-section (3) of section 1 will operate or would
it be exempt and not qualify as a religious institution at all. In this
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W.P.(MD)No.12861 of 2012
regard, before concluding, I deem it appropriate to make two more
points. One point is, as already alluded to supra, Section 63(a)
itself talks about whether an institution is a religious institution. It
does not talk about whether an entity is a temple. 'Temple' is
defined in Section 6(20) whereas 'Religious Institution' is defined in
Section 6(18). Section 6(18) and Section 6(20) reads as follows:
'6(18). “Religious institution” means a
math, temple or specific endowment and
includes,:-
(i) a samadhi or brindhavan; or
(ii) any other institution established or
maintained for a religious purpose.
Explanation.- For the purpose of this
clause-
(1) “samadhi”means a place where the
mortal remains of a guru, sadhu or saint is
interned and used as a place of public religious
worship;
(2) “brindhavan”means a place established
or maintained in memory of a guru, sadhu or
saint and used as a place of public religious
worship, but does not include the samadhi;)
.....
6(20). “temple”means a place by
whatever designation known, used as a place of
public religious worship and dedicated to, or for
the benefit of, or used as of right by, the Hindu
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community or of any section thereof, as a place
of public religious worship;
Explanation. - Where a temple situated
outside the State has properties situated within
the State, control shall be exercised over the
temple in accordance with the provisions of this
Act, in so far as the properties of the temple
situated within the State are concerned;'
[Extracted and reproduced as such]
25.The then Deputy Commissioner has held that the entity
ie., said temple is not a religious institution within the meaning of
Section 6(20). This itself may warrant a re-visitation. This itself
points towards an error in the approach and therefore, I do not find
any infirmity in exercise of suo motu powers to interfere with such
an order.
26.The second point which is deemed appropriate to make is
TN HR & CE Act being a self-contained code provides for a
mechanism for Chapter V proceedings as alluded to supra any
order made under Section 69 can be subjected to a statutory suit
under Section 70 of TN HR & CE Act, which reads as follows:
''70.Suits and appeals.- (1) Any party
aggrieved by an order passed by the
Commissioner-
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(i) under sub-section (1) or sub-section (2)
of section 69 and relating to any of the matters
specified in section 63, section 64 or section 67;
or
(ii) under section 63, section 64 or section
67 read with sub-section(1)(a), 2 or (4)(a) of
section 22 or under section 65
may, within ninety days from the date of
the receipt of such order by him, institute a suit
in the Court against such order, and the Court
may modify or cancel such order, but it shall
have no power to stay of order of the
Commissioner pending the disposal of the suit.
(2)Any party aggrieved by a decree of the
Court under sub-section (1), may, within ninety
days from the date of the decree, appeal to the
High Court.'
[Extracted and reproduced as such]
27.After a statutory suit under Section 70 of TN HR & CE Act
in the jurisdictional Court, there is also a provision to appeal to this
Court [High Court] under sub-section (2) of Section 70. Therefore,
there are two more tiers in Chapter V proceedings itself. Whether
it would be appropriate even to file a suit as the impugned order is
only an order of remand is a moot question but the fact remains
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W.P.(MD)No.12861 of 2012
that this has not been resorted to. The argument that Section 70
was not resorted to as the Commissioner (first respondent) has
exercised suo motu powers using a report of an Assistant
Commissioner as a trigger does not impress me, as suo motu
powers are sui generis. In this view of the matter also the writ
petitioner does not go any further in his campaign against the
impugned order.
28.A recent judgment of Hon'ble Supreme Court in the case
of Ganesan, Rep. by power agent G.Rukmani Ganesan Vs. The
Commissioner, The Tamil Nadu Hindu Religious and
Charitable Endowments Board and Others [hereinafter
'G.Rukmani Ganesan's case for the sake of convenience and
clarity] reported in (2019) 7 SCC 108 is of relevance. In
G.Rukmani Ganesan's case, the question was whether the
Commissioner of TN HR & CE Dept., is vested with powers of
condonation of delay [CoD]. While answering this question in the
negative, Hon'ble Supreme Court made it clear that this
proposition will not apply to the suo motu exercise of powers. This
is mentioned to say that even in a case where appeal remedy is
barred and even in a case where the Hon'ble Supreme Court held
that a delayed appeal cannot be entertained, Section 69(2) powers
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were preserved. In this regard, paragraph No.17 of G.Rukmani
Ganesan's case is relevant and the same reads as follows:
'17.When an appeal is provided against
the order of the Commissioner under Section
69 of the Court which is defined under
Section 6(7), there is no question of treating
the Commissioner as a Court under the
statutory scheme of Act, 1959. We, thus,
conclude that Commissioner is not a Court
within the meaning of Act, 1959.'
[Extracted and reproduced as such]
29.Considering the length of time the details of which has
been mentioned more than once elsewhere supra in this order, the
second respondent Joint Commissioner shall do well to kick-start
the proceedings under Section 63(a) of the Act and conclude the
same as expeditiously as possible and in any event within six [6]
months from today ie., on or before 25.04.2022. To be noted,
earlier it was Deputy Commissioner, now statutorily jurisdictional
Joint Commissioner is vested with the powers qua proceedings
under Section 63(a). I have noticed this statutory provision and the
obtaining position as far as TN HR & CE Act is concerned as it is
relevant in the light of remand qua impugned order.
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30.Owing to all that have been set out supra, the captioned
writ petition fails and the same is dismissed. Consequently,
captioned miscellaneous petition is also dismissed. There shall be
no order as to costs.
25.11.2021
Index : Yes / No
Internet: Yes / No
MR
NOTE: In view of the present lock down
owing to COVID-19 pandemic, a
web copy of the order may be
utilized for official purposes, but,
ensuring that the copy of the order
that is presented is the correct copy,
shall be the responsibility of the
advocate/litigant concerned.
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W.P.(MD)No.12861 of 2012
To
1.The Commissioner,
Hindu Religious & Charitable Endowments Department,
Chennai.
2.The Joint Commissioner,
Hindu Religious & Charitable Endowments Department,
Nethaji Road,
Madurai.
3.The Assistant Commissioner,
Hindu Religious & Charitable Endowments Department,
Madurai.
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W.P.(MD)No.12861 of 2012
M.SUNDAR., J.
MR
ORDER MADE IN
W.P.(MD)No.12861 of 2012
25.11.2021
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