Madras High Court
Nr.Chandrasekaran vs The Assistant Commissioner on 26 November, 2021
W.P.(MD)Nos.21081 and 21082 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 26.11.2021
CORAM:
THE HONOURABLE MR.JUSTICE M.SUNDAR
W.P.(MD)Nos.21081 and 21082 of 2021
and
W.M.P(MD).Nos.17677 and 17680 of 2021
W.P(MD).No.21081 of 2021:
NR.Chandrasekaran : Petitioner
Vs.
1. The Assistant Commissioner,
Tamil Nadu Hindu Religious and Charitable
Endowments Department,
Karur.
2. The Inspector,
Tamil Nadu Hindu Religious and Charitable
Kulithalai.
3. Mr.Gnanasekaran : Respondents
PRAYER: Writ Petitions filed under Article 226 of the Constitution of
India for issuance of Writ of Certiorari calling for the records relating to
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W.P.(MD)Nos.21081 and 21082 of 2021
the impugned proceedings in Na.Ka.No.2569/2021/A2, dated 04.10.2021
issued by the first respondent and quash the same as illegal.
W.P(MD).No.21082 of 2021:
NR.Chandrasekaran : Petitioner
Vs.
1. The Tahsildar,
Kulithalai Taluk, Karur District.
2. Mr.P.Malarkannan
3. Mr.Gnanasekaran : Respondents
PRAYER: Writ Petitions filed under Article 226 of the Constitution of
India for issuance of Writ of Certiorari calling for the records relating to
the impugned proceedings in Na.Ka.No.A4/3242/2021, dated 20.10.2021
issued by the first respondent and quash the same as illegal.
For Petitioner : Mr.VR.Shanmuganathan (in both W.Ps)
For Respondents : Mr.A.Baskaran,
Additional Government Pleader
for R1 and R2 (in both W.Ps)
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W.P.(MD)Nos.21081 and 21082 of 2021
COMMON ORDER
'Arulmigu Kottai Mariamman Temple and Kaali Amman Temple
situate at Neithalour South Village, Kulithalai Taluk, Karur District'
(hereafter 'said Temple' collectively for the sake of convenience and
clarity) and administration of the same is the central theme in captioned
two main writ petitions.
2. In this common order, for the sake of convenience and clarity,
'W.P(MD).No.21081 of 2021' shall be referred to as 'senior W.P' and
'W.P(MD).No.21082 of 2021' shall be referred to as 'junior W.P'.
3. In senior W.P a notice dated 04.10.2021 bearing reference
Na.Ka.No.2569/2021/A2 issued by the Assistant Commissioner of
'Tamil Nadu Hindu Religious & Charitable Endowments
Department' (hereinafter referred to as 'TNHR&CE Dept' for the sake of
convenience and clarity) has been assailed. This notice has been issued
by 'the Assistant Commissioner- TNHR&CE Dept, Karur' (first
respondent in senior W.P and hereinafter 'jurisdictional AC-TNHR&CE
Dept' for the sake of convenience and clarity). In the junior W.P
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W.P.(MD)Nos.21081 and 21082 of 2021
proceedings of 'Revenue Tahsildar, Kulithalai Taluk, Karur District' (first
respondent in junior W.P and hereinafter 'jurisdictional Revenue
Tahsildar' for the sake of convenience and clarity) has been called in
question. This proceedings is dated 20.10.2021 bearing reference
Na.Ka.No.A4/3242/2021.
4. The notice dated 04.10.2021 issued by the jurisdictional AC-
TNHR&CE Dept is in the nature of a show cause notice and therefore,
the same shall be referred to as 'impugned SCN'. The 20.10.2021 record
of proceedings of jurisdictional Revenue Tahsildar which has been
assailed in junior W.P is in the nature of proceedings and therefore, the
same shall be referred to as 'impugned proceedings'.
5. Mr.VR.Shanmuganathan, learned counsel for writ petitioner in
both the captioned main writ petitions notwithstanding very many
averments in the writ affidavit and notwithstanding several grounds set
out in the writ affidavit assails the impugned SCN and impugned
proceedings primarily on two grounds and they are as follows:
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W.P.(MD)Nos.21081 and 21082 of 2021
(a) The jurisdictional Revenue Tahsildar has no
jurisdiction qua said Temple;
(b) The writ petitioner is in administration of said
Temple but he has not been given audience by jurisdictional
AC-TNHR&CE Dept (he went before AC-TNHR&CE Dept
though he was not arrayed as a noticee in impugned SCN)
and he has also not been called by the jurisdictional
Revenue Tahsildar in making the impugned proceedings.
6. Mr.A.Baskaran, learned Additional Government Pleader accepts
notice on behalf of respondents 1 and 2 (official respondent) in senior
W.P and first respondent in junior W.P. To be noted, respondent No.3 in
senior W.P and respondent Nos.2 and 3 in junior W.P are private
respondents. It is also to be noted that respondent No.3 in senior and
junior W.P is the same person. Captioned writ petitions can be disposed
of by making a common order which is not adverse to these private
respondents and also by providing adequate and ample safety valve qua
these private respondents. Therefore, with the consent of learned counsel
on both sides, main writ petitions were taken up and heard out.
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W.P.(MD)Nos.21081 and 21082 of 2021
7. Learned counsel for writ petitioner furthering his submissions,
submitted that the complaint from third respondent in senior W.P pertains
to said Temple administration whereas the complaint from second
respondent in junior W.P pertains to certain alleged encroachments in the
properties of said Temple. The jurisdictional Revenue Tahsildar has no
jurisdiction qua said Temple. It is also asserted that though the writ
petitioner was not put on notice, the writ petitioner by his own volition
went before jurisdictional AC-TNHR&CE Dept on 11.10.2021 at 03.00
PM, but he was denied audience. To be noted, this is articulated in
paragraph number 10 of the writ affidavit in senior W.P. It was also
argued that the jurisdictional Revenue Tahsildar had not added the writ
petitioner as one of the parties though the writ petitioner is in
administration of said Temple.
8. Learned State counsel who accepts notice on behalf of the
official respondents pointed out that even according to the writ affidavit
in captioned writ petitions, said Temple is a public temple and therefore,
Sub-section (3) of Section 1 of 'the Tamil Nadu Hindu Religious and
Charitable Endowments Act, 1959 (Tamil Nadu Act 22 of
1959)' [hereafter 'TNHR&CE Act' for the sake of convenience and
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W.P.(MD)Nos.21081 and 21082 of 2021
clarity] operates. Learned State counsel submitted that there are two sets
of complaints which have been brought to the notice of the authorities by
two different persons. One by second respondent in junior W.P and the
other by the third respondent in senior and junior W.Ps. One pertains to
some possible unrest between two sections of society qua said Temple
and another pertains to alleged encroachment of lands belonging to said
Temple and action to be taken in this regard. It also pertains to a plea to
TNHR&CE Dept to take over the management of said Temple. It is in
this backdrop that proceedings were initiated by jurisdictional AC-
TNHR&CE Dept as well as jurisdictional Revenue Tahsildar. While the
proceedings initiated by jurisdictional AC-TNHR&CE Dept is to
physically take over the management of said Temple, the proceedings
before the jurisdictional Revenue Tahsildar is in the context of possible
breach of peace. Therefore, there is neither overlap nor lack of
jurisdiction is learned State counsel's submission.
9. I carefully considered the submissions made by both sides and
also perused the case file which has been placed before me. I now
proceed to discuss the same and give my dispositive reasoning by this
common order.
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W.P.(MD)Nos.21081 and 21082 of 2021
10. A perusal of the writ affidavit and more particularly paragraph
3 therein makes it clear that the writ petitioner admits that said Temple is
a public Temple. Paragraph 3 of the writ affidavit reads as under:
'I submit that thus the said temple is a public temple
belonging to our village, in which there are residents from all
Religious and communities like Reddiar, Vellalar, Gounder,
Asari, Servai, Naidu, Nadaar, Mutharayar, Thottia Naicker,
Devendra Kula Vellalar, Adhi Dravidar (Parayar),
Arunthathityar, Valluvar, Udayar, Muslims, Christians. I with all
firm submit that there is no dispute among the people of various
communities in worshipping the above deities till date, though
there was an attempt to give such colour by some miscreants
and which was later found to be false, by the public authorities
as narrated infra.'
(underlining made by this Court to supply emphasis, for
ease of reference and for highlighting)
11. The moment a Temple is a public Temple, as rightly pointed
out by learned State counsel, Sub-section (3) of Section 1 of TNHR&CE
Act operates. If this provision operates, absent any exception under
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W.P.(MD)Nos.21081 and 21082 of 2021
Section 3 of TNHR&CE Act, the supervisory jurisdiction of the
TNHR&CE Dept cannot be disputed. Learned counsel for writ petitioner
also very fairly submits that he neither disputes the fact that said Temple
is a public Temple nor disputes the supervisory jurisdiction of
TNHR&CE Dept. This makes the task qua dispositive reasoning in
captioned writ petition fairly simple.
12. This takes me to impugned SCN issued by jurisdictional AC-
TNHR&CE Dept. It is a SCN as already alluded to supra. The scope of
challenge to a SCN in writ jurisdiction has been decided and crystallized
as principles and propositions over a long line of case laws over a period
of time. I deem it appropriate to refer to Coastal Container Transporters
Association & Ors., v. Union of India & Ors., case wherein Hon'ble
Supreme Court in and by order dated 26.02.2019 in Civil Appeal No.
2276 of 2019, set out the crystallized legal position in this regard. To be
noted, in this case, it was a question of classification of service provided
by the appellant for purposes of fiscal law. While Revenue took a stand
that the classification would fall under a particular category, the appellant
disputed the same and took a stand that it would fall under another
category. This fact scenario is captured in the first part of paragraph 4 of
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W.P.(MD)Nos.21081 and 21082 of 2021
the order of Hon'ble Supreme Court and the same reads as follows:
'4. Necessary facts, in brief, are as under :
First respondent is an association, whose members are
transport operators engaged in the business of transportation
of goods entrusted by the customers. By way of impugned show
cause notices, the appellants have proposed to demand service
tax from the respondents under the category of “cargo
handling service”, while it is the case of the respondents that
the service which is being provided by them, falls under the
taxable category of “goods transport agency”. The
respondents, to bolster their case, have placed reliance upon
circulars dated 06.08.2008 and 05.10.2015 issued by the
Central Board of Excise and Customs (CBEC).
Based upon the intelligence gathered by the officers of
Rajkot Regional Unit, which revealed that several business
entities including respondent nos.2 and 3 who are engaged in
doing the business of cargo handling in west coastal region but
had got themselves registered under “good transport agency”,
by taking approval from the competent authorities, searches
were conducted in the premises of respondent nos.2 and 3. It is
alleged that during such searches several incriminating
documents, including the quotations submitted by the
respondent companies to their customers were seized and
statements of the Directors were recorded as per the provisions
of Central Excise Act, 1944 read with the provisions under
Finance Act, 1994. Subsequently, the show cause notices dated
08.10.2015 and 30.09.2015, were issued to respondent nos.2
and 3, which are impugned in the writ petition filed before the
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High Court.'
13. Thereafter, on the scope of writ jurisdiction qua challenge to
SCN, the long line of authorities, crystallized propositions, pattern of
judgments over a period of time have been captured by Hon'ble Supreme
Court in paragraph 19. To be noted, paragraph 19 also talks about Union
of India & Anr. v. Guwahati Carbon Ltd as well as Malladi Drugs &
Pharma Ltd. v. Union of India cases. The facts scenario, propositions laid
down have also been captured in paragraph 19 and therefore, I deem it
appropriate to extract and reproduce paragraph 19 which reads as
follows:
'19. On the other hand, we find force in the contention
of the learned senior counsel, Sri Radhakrishnan, appearing
for the appellants that the High Court has committed error in
entertaining the writ petition under Article 226 of Constitution
of India at the stage of show cause notices. Though there is no
bar as such for entertaining the writ petitions at the stage of
show cause notice, but it is settled by number of decisions of
this Court, where writ petitions can be entertained at the show
cause notice stage. Neither it is a case of lack of jurisdiction
nor any violation of principles of natural justice is alleged so
as to entertain the writ petition at the stage of notice. High
Court ought not to have entertained the writ petition, more so,
when against the final orders appeal lies to this Court. The
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W.P.(MD)Nos.21081 and 21082 of 2021
judgment of this Court in the case of Union of India & Anr. v.
Guwahati Carbon Ltd. (supra) relied on by the learned senior
counsel for the appellants also supports their case. In the
aforesaid judgment, arising out of Central Excise Act, 1944,
this Court has held that excise law is a complete code in order
to seek redress in excise matters and held that entertaining
writ petition is not proper where alternative remedy under
statute is available. When there is a serious dispute with
regard to classification of service, the respondents ought to
have responded to the show cause notices by placing material
in support of their stand but at the same time, there is no
reason to approach the High Court questioning the very show
cause notices. Further, as held by the High Court, it cannot be
said that even from the contents of show cause notices there
are no factual disputes. Further, the judgment of this Court in
the case of Malladi Drugs & Pharma Ltd. v. Union of India,
relied on by the learned senior counsel for the appellants also
supports their case where this Court has upheld the judgment
of the High Court which refused to interfere at show cause
notice stage.'
14. The sequitur is, challenge to impugned SCN issued by the
jurisdictional AC-TNHR&CE Dept becomes a non-starter. The impugned
notice i.e., impugned SCN issued by jurisdictional AC-TNHR&CE Dept
is perfectly valid absent jurisdictional issue (to be noted, writ petitioner
admits that said Temple is a public Temple, Sub-section (3) of Section 1
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W.P.(MD)Nos.21081 and 21082 of 2021
of TNHR&CE Act exists and there is no exemption under Section 3 of
TNHR&CE Act). There will be some discussion about carrying the
impugned SCN to its logical end which will be set out infra in the latter
part of this order.
15. I will now deal with the impugned proceedings of
jurisdictional Revenue Tahsildar. The jurisdictional Revenue Tahsildar
has only embarked upon the exercise of ensuring that there is no breach
of peace as there are two sets of complaints from two different parties. It
is also seen from the proceedings of jurisdictional Revenue Tahsildar that
one of the complaints pertains to alleged encroachment of Temple lands.
This is an issue where this Court comes in as parens patriae in the light
of the principle laid down by Hon'ble Supreme Court in
A.A.Gopalakrishnan's case [A.A.Gopalakrishnan v. Cochin Devaswom
Board and Ors.,] reported in (2007) 7 SCC 482, wherein it was held that
it is the duty of the Courts to protect temple properties. In this regard,
principles that this Court is custodia legi's qua temple properties and that
this Court is guardian qua idol which in law is akin to a minor become
relevant and assume significance. If the allegation is true, it warrants
immediate attention but I express no opinion or view on the allegation at
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W.P.(MD)Nos.21081 and 21082 of 2021
this stage as the jurisdictional AC-TNHR&CE Dept will now be in seizin
of the matter to carry it to its logical end.
16. I also now deal with the argument that the jurisdictional
Revenue Tahsildar cannot go into affairs of said Temple. A careful
perusal of the impugned proceedings, brings to light that the
jurisdictional Revenue Tahsildar has not gone into the affairs of said
Temple. All that jurisdictional Revenue Tahsildar has done is he has
recorded the submission of third respondent in senior W.P and junior W.P
that the third respondent would submit accounts and records. More
importantly, what has been recorded shows that the accounts and records
of said Temple would be submitted to TNHR&CE Dept. The relevant
paragraph in impugned proceedings of jurisdictional Revenue Tahsildar
reads as follows:
This draws the curtains on the first point urged i.e., the jurisdictional
issue point. In other words there is no jurisdictional issue.
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W.P.(MD)Nos.21081 and 21082 of 2021
17. Now that the first point has been answered, it takes me to the
second point on which challenge to the impugned SCN and impugned
proceedings are predicated. The challenge is predicated and posited on
the point that writ petitioner is in administration. In this regard, learned
counsel submits that the writ petitioner would submit accounts and
records pertaining to said Temple. If the writ petitioner is in possession
of accounts and in possession of records pertaining to said Temple, it is
only important that the same is also before the jurisdictional AC-
TNHR&CE Dept for taking a decision regarding the further course of
action as said Temple is now clearly under the supervision of the
TNHR&CE Dept. For this purpose, if not by way of assertion of
rights/perpetual rights of writ petitioner, in the interest of said Temple, it
is necessary that the records and accounts qua said Temple said to be in
the possession of the writ petitioner is placed before the jurisdictional
AC-TNHR&CE Dept.
18. I propose to say that an opportunity to the writ petitioner will
be given to do this and while doing this, private respondent No.3 in
senior W.P and private respondent Nos.2 and 3 in junior W.P will also be
heard out. This protects the interest of the private respondents in both
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W.P.(MD)Nos.21081 and 21082 of 2021
senior and junior W.Ps and it also puts in a safety valve qua the private
respondents. To be noted, this has already been alluded to supra in this
order.
19. In the light of the narrative thus far, discussion and dispositive
reasoning set out supra the following order is passed:
(a) Impugned SCN dated 04.10.2021 bearing
reference Na.Ka.No.2569/2021/A2 issued by first
respondent in senior W.P (jurisdictional AC-TNHR&CE
Dept) is sustained;
(b) The writ petitioner will now be given an
opportunity by the first respondent in senior W.P to submit
all the records and accounts pertaining to said Temple
which is said to be in his possession in the next inquiry
which will be on 30.11.2021 (Tuesday) at 03.00 PM. The
first respondent in senior W.P shall proceed and conclude
the proceedings as expeditiously as possible and in any
event within a fortnight from 30.11.2021 i.e., on or before
14.12.2021;
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(c) The third respondent, who has given an
undertaking before the jurisdictional Revenue Tahsildar
vide impugned proceedings in junior W.P to submit records
pertaining to administration of said Temple before
TNHR&CE Dept shall also to do so on 30.11.2021 at 03.00
PM. The third respondent shall be put on notice by due
service under due acknowledgement. I also find that the
proceedings of the jurisdictional Revenue Tahsildar has not
arrived at any conclusion or no decision has been taken and
it merely records that one of the parties would submit all
records and accounts before the TNHR&CE Dept and
therefore, there is no reason to set aside the impugned
proceedings of the first respondent in the junior W.P;
(d) Likewise, second respondent in the junior W.P
will also be permitted to submit records and participate in
the proceedings and he shall also be put on notice under due
acknowledgement for the 30.11.2021 inquiry;
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(e) The first respondent in senior W.P shall thereafter
consider all the records and take a decision. It is made clear
that it is open to him to take a decision in accordance with
law uninfluenced by any observations made in this order;
(f) The proceedings of the first respondent in the
junior W.P (jurisdictional Revenue Tahsildar) is sustained as
the further proceedings regarding said Temple
administration, accounts etc., will now be before the first
respondent in senior W.P. In any event, this proceedings has
only recorded the fact of one of the parties undertook to
submit records and accounts in the said Temple;
(g) Regarding complaints of breach of peace, it will
be open to first respondent to act in accordance with law if
the need arises in the days to come and this order will
neither fetter nor stifle the first respondent in the junior W.P
in this regard;
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W.P.(MD)Nos.21081 and 21082 of 2021
(h) It is open to the first respondent in senior W.P to
reschedule 30.11.2021 inquiry if the need arises.
19. Captioned writ petitions are disposed of with the above
directives. Consequently, captioned WMPs are disposed of as closed.
There shall be no order as to costs.
26.11.2021
Index : Yes / No
Internet : Yes / No
pkn
To
1. The Assistant Commissioner,
Tamil Nadu Hindu Religious and Charitable
Endowments Department,
Karur.
2. The Inspector,
Tamil Nadu Hindu Religious and Charitable
Kulithalai.
3. The Tahsildar,
Kulithalai Taluk, Karur District.
Note: Issue order copy by 29.11.2021 (Monday).
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W.P.(MD)Nos.21081 and 21082 of 2021
M.SUNDAR., J.
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W.P.(MD)Nos.21081 and 21082 of 2021
26.11.2021
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