Madras High Court
J. Annamalai vs The Commissioner on 15 June, 2022
W.P.No.12620 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 15.06.2022
CORAM:
THE HONOURABLE MR. JUSTICE C. SARAVANAN
W.P.No.12620 of 2022
AND WMP.Nos.12063 & 64 of 2022
J. Annamalai ... Petitioner
..Vs..
1. The Commissioner,
Hindu Religious and Charitable
Endowments Department,
119, Uthamar Gandhi Salai,
Nungambakkam, Chennai 600 034.
2. The Joint Commissioner,
Hindu Religious and Charitable
Endowments Department,
Collectorate Campus, Villupuram,
Villupuram District.
3. The Assistant Commissioner,
Hindu Religious and Charitable
Endowments Department,
Collectorate Campus, Villupuram,
Villupuram District.
4. The Executive Officer,
Arulmighu Lakshmi Narasimhasamy Thirukoil,
Parikkal Village, Ulundurpet Taluk,
Villupuram District.
1/13
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W.P.No.12620 of 2022
5. R. Srinivasan ...
Respondents
Prayer:- This Writ Petition is filed under Article 226 of the
Constitution of India praying to issue a Writ of Certiorari to call for the
records relating to the impugned order of the first respondent in
R.P.No.108/2020 D2 dated 27.04.2022 confirming the order of the
second respondent in Na.Ka.No.8017/2019/B2 dated 18.12.2019 and
that of the third respondent in Na.Ka.No.2544/2019/B1 dated
20.06.2019 and quash the said orders.
For Petitioner : Mr.J.Lakshminarayanan
For Respondent : Mr.K.Karthikeyan
Govt.Advocate for R1 to R3
Mr.S.Sithirai Anandam for R4
ORDER
This writ petition has been filed to call for the records relating to
the impugned order of the first respondent in R.P.No.108/2020 D2 dated
27.04.2022 confirming the order of the second respondent in
Na.Ka.No.8017/2019/B2 dated 18.12.2019 and that of the third
respondent in Na.Ka.No.2544/2019/B1 dated 20.06.2019 and quash the
said orders.
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W.P.No.12620 of 2022
2. The learned counsel for the petitioner submitted that the
petitioner is aggrieved by the impugned order of the first respondent in
R.P.No.108/2020 (D2) dated 27.04.2022 confirming the order of the
second respondent in Na.Ka.No.8017/2019/B2 dated 18.12.2019 and
that of the third respondent in Na.Ka.No.2544/2019/B1 dated
20.06.2019. The specific case of the petitioner appears to be that the third
respondent by the third mentioned order had appointed a fit person based
on the complaint given by the 5th respondent which was challenged by
the petitioner before the second respondent under Section 21 (A) of the
HR&CE Act, 1959 and by order dated 18.12.2019 referred supra
confirmed the same and further appeal/revision before the Commissioner
has now been rejected. During the interregnum period, the petitioner
appears to have been filed two writ petitions. The argument of the learned
counsel for the petitioner appears to be based on a recent decision passed
by the First bench of this Court in W.A.No.1057 of 2022 dated
27.04.2022 and the relevant paragraphs are extracted as below:-
23. In the instant case, the impugned order has been passed
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W.P.No.12620 of 2022
not based on any material collected by the respondents, but in
reference to the reply to the show cause notice by the appellant. It
is despite the procedure given under Sections 63 and 110 of the Act
of 1959. The aforesaid cannot be ignored more so when, on earlier
occasion, on a similar complaint given by the same person, an
Inspector was appointed to cause enquiry into the matter and after
his enquiry and a report thereupon, the matter was dropped. Why
the same procedure was not applied in the case could not be
clarified.
24. Sections 63 and 110 of the Act of 1959 are reproduced
hereunder:
“63.Joint Commissioner or Deputy Commissioner to
decide certain disputes and matters.- Subject to the
rights of suit or appeal hereinafter provided, the Joint
Commissioner or the Deputy Commissioner, as the case
may be, shall have power to inquire into and decide the
following disputes and matters:-
(a) whether an institution is a religious institution;
(b) whether a trustee holds or held office as a hereditary
trustee;
(c) whether any property or money is a religious
endowment;
(d) whether any property or money is a specific
endowment;
(e) whether any person is entitled, by custom or
otherwise, to any honour, emolument or perquisite in any
religious institution and what the established usage of a
religious institution is in regard to any other matter;
(f) whether any institution or endowment is wholly or
partly of a religious or secular character ; and whether
any property or money has been given wholly or partly
for religious or secular uses ; and
(g) where any property or money has been given for the
support of an institution which is partly of a religious and
partly of a secular character, or the performance of any
service or charity connected with such an institution or
the performance of a charity which is partly of a religious
and partly of a secular character or where any property
or money given is appropriated partly to religious and
partly to secular uses, as to what portion of such property
or money shall be allocated to religious uses.”
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W.P.No.12620 of 2022
“110. Procedure and powers at inquiries under Chapters
V and VI.
(1) Where a Commissioner or a Joint Commissioner or a
Deputy Commissioner makes an inquiry or hears an
appeal under at inquiries Chapter V or Chapter VI, the
inquiry shall be made and the appeal shall be heard, as
nearly as may be, in accordance with the procedure
applicable under the Code of Civil Procedure, 1908
(Central Act V of 1908) to the trial of suits or the hearing
of appeals, as the case may be.
(2) The provisions of the Indian Evidence Act, 1872
(Central Act I of 1872), and the Indian Oaths Act, 1873
(Central Act X of 1873), shall apply to such inquiries and
appeals.
(3) The Commissioner or a Joint Commissioner or a
Deputy Commissioner holding such an inquiry or hearing
such an appeal shall be deemed to be a person acting
judicially within the meaning of the Judicial Officers
Protection Act, 1850, (Central Act XVIII of 1850).”
The procedure given therein has not been followed by the
respondents.
25. The learned Advocate General was candid in making a
statement that while appointing a Fit Person, care has
been taken not to disturb the educational activities of the
society. Thus, it becomes clear that society was created not
only to run the mandapam, but for other activities and
thereby it was incumbent on the respondents to refer to the
object of the society and after analysing other activities, to
take a proper decision as to whether the society or part of
it will fall in the definition of 'Temple' so as to give effect to
the impugned order. The care aforesaid has not been
taken in the matter and what we find is that the impugned
order has been passed without recording a finding that the
appellant society falls in the definition of the 'Temple'
given under Section 6(20) of the Act of 1959, but only
referring that it satisfies with the ingredients of the
definition of 'Temple' without recording a definite finding
on that. In absence of declaring the appellant society to be
falling in the definition of 'Temple', the further exercise to
appoint a Fit Person could not have been undertaken
because, the provision of the Act of 1959 can be applied
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W.P.No.12620 of 2022
only when the appellant falls in the definition of 'Temple'
or comes under the purview of the Act of 1959.
26. The question as to whether an institution is a religious
institution or not, the Act of 1959 is a self contained Code.
Chapter-V, specifically deals with inquiries. Under Section 63,
the Joint Commissioner or Deputy Commissioner as the case
may be, have the powers to enquire into and decide whether the
institution is a religious institution or not. Any person aggrieved
by the decision is entitled to file an appeal to the Commissioner
under Section 69 of the Act and any person aggrieved by the
order of the Commissioner is entitled to file a suit under Section
70 of the Act. Section 110 of the Act provides that where a
Commissioner or a Joint Commissioner or a Deputy
Commissioner makes an enquiry or hears an appeal under
Chapter – V or Chapter – VI, enquiry shall be made and the
appeal shall be heard, as nearly as may be, in accordance with
the procedure applicable under Code of Civil Procedure to the
Trial of suits or hearing of the appeal as the case may be.
Provisions of the Indian Evidence Act and Indian Oaths Act
shall apply to such enquiries and appeal. Further, the
Commissioner or Joint Commissioner or Deputy Commissioner
holding such enquiry or hearing such appeal shall be deemed to
be a person acting judicially within the meaning of the
Judicial Officers Protection Act, 1850.
27. The power to appoint a fit person vests in the Assistant
Commissioner, as per Section 49, which can be exercised on two
contingencies. First, the institution must be a religious
institution and second, upon satisfaction of any mal-
administration of the institution by the existing trustees. It may
be seen in the instant case that while appointing a fit person,
the Assistant Commissioner himself has attempted to proclaim
and decided that the institution is a religious institution.
When the fourth respondent filed a complaint that the
institution is a religious institution, the appellant having
denied the same, it was necessary that the matter should have
been taken up first by the Joint Commissioner/Deputy Commissioner
under Section 63 for determining whether the
institution is a religious institution or not. The same has to be
done by following due procedure, that is, recording
evidence and thereafter, pronouncing a decision under
Section 63 of the Act. If any party is aggrieved, they can file
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W.P.No.12620 of 2022
an appeal and thereafter, a suit, but without following the said
procedure, straight away, the second respondent has assumed
jurisdiction and appointed a fit person in an illegal manner. As a
matter of fact, the learned Single Judge of this Court in the case
of R.Shanmugasundram Vs. Commissioner of HR & CE (1991
2 MLJ 582), had specifically held that power under Section 49
to appoint a fit person cannot be exercised before determination
of the issue under Section 63 of the Act of 1959. The
aforesaid judgment is applicable to this case.
28. The second procedural violation is that before passing the
order under Section 49 of the Act of 1959 appointing a fit person,
except to record that a show cause notice was sent, reference of the
allegation of mismanagement has not been given. Thus, there was
neither any specific allegation of mal-administration nor any
recording of subjective satisfaction. Further, such allegations
should be specifically made in the show cause notice and hearing
on such allegations should have been made before appointing of
a fit person.
29. Therefore, we find reason to cause interference in the
order passed by the learned Single Judge, who ought not to have
dismissed the writ petition without addressing the issues on merit,
when challenge to the order was alleging violation of the principles
of natural justice and non-observance of procedure in passing the
order. Ignoring the aforesaid, the writ petition was dismissed on
the ground of availability of alternative remedy and involvement of
question of facts, whereas challenge was on the ground of non-
compliance of procedure given under Section 63 of the Act of 1959
and Chapters V and VI thereof. It is even bit by the judgment of
the Supreme Court in the case of Durga Enterprises (P) Ltd. vs.
Principal Secretary, Govt. of U.P., reported at (2004) 13 SCC
665. There also, the writ petition was dismissed on the ground of
availability of alternative remedy after keeping the matter pending
for a long period of 13 years. It was held that the High Court
having entertained the writ petition and the pleadings by the parties
were complete, ought to have decided the case on merit instead of
relegating the parties to take the alternative remedy. We are not
further entering into the issue that only on account of availability of
alternative remedy, the jurisdiction of this Court under Article 226
of the Constitution of India is not barred rather in view of the
judgment of the Apex Court in the case of Whirlpool Corporation
(supra), the writ petition can be entertained despite the availability
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W.P.No.12620 of 2022
of alternative remedy. It is more so when procedure given under
the Act of 1959 was not applied.
30. Accordingly, for all the reasons given above, we cause
interference in the impugned order dated 17.03.2022 of the learned
Single Judge so also the order dated 31.12.2013 passed by the
respondent department. It is, however, with liberty to the
department to proceed in the matter afresh in accordance with the
provisions of law. The appellant would be at liberty to prove their
case by bringing the material and evidence, if fresh action is taken,
and after completion of the aforesaid procedure, which may be
after
taking into consideration the power given to the department under
Section 110 of the Act of 1959, to pass a speaking order.
31. With the aforesaid, the writ appeal is allowed, with a
direction to the department to immediately hand over the
possession of the mandapam and even all the records to the
appellant. The appellant is directed to maintain the accounts, which
should be duly audited.
3. He further submitted that the petitioner has filed a petition under
Section 63(a) of the HR&CE Act, 1959 which has been numbered as
OA.No.1 of 2021 and is pending before the Joint Commissioner, HR&CE
Department, Villupuram district namely the second respondent and
therefore in the light of the above order of the First bench of this Court
impugned proceedings has to be quashed. That apart it is submitted that
right from the beginning it is the specific case of the petitioner that the
petitioner is not coming within the purview of the HR&CE Act and
therefore the appointment of the fit person is contrary to law and the
scheme of the HR&CE Act, 1959. Therefore it is prayed that the writ
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W.P.No.12620 of 2022
petition may be allowed.
4. Opposing the prayer and submissions made by the learned
counsel for the petitioner, the learned Government Advocate appearing for
the respondents 1 to 3 submitted that there is no merits in the present writ
petition. The land was allotted to Ramalingasami Madam (Choultry) for
conducting Pooja and festivals of Ramalingasamigal under Section 4 of
the Madras Endowments and Estate Regulation VII Act, 1817. The
alienation was made by the Government of Tamil Nadu in favour of the
Secretary for the time being. The Samarasa Sanmarga Sangam,
Villupuram was used as the site of Ramalingasami Madam (for
conducting Pooja and Festivals of Ramalinga Samigal). Further he
submitted that the petitioner who assumed the control of the said Madam
altered the character of the Madam by registering the Trust in the year
2016. It is submitted that without doubt, the said institution is a "religious
institution" within the meaning of Section 6(13) of the HR & CE
Act,1959 and therefore there is no merits in the present writ petition.
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W.P.No.12620 of 2022
5. Heard both sides and perused the materials available on record.
6. The issue has been pending with the authorities right from 2016
when the complaint was given by the fifth respondent a fit person was
appointed pursuant to the notice issued by the Assistant Commissioner
HR&CE dated 03.11.2017 to which the petitioner appears to have given
an explanation on 09.06.2018. The request of the petitioner was rejected
by the third respondent by impugned proceedings dated 20.06.2019
which has been confirmed by the second respondent in a revision petition
and further affirmed by the first respondent in its impugned order
proceedings dated 27.04.2022. The petitioner has now filed OA No.1 of
2021 before the second respondent under Section 63 (a) of the Act. Prima
facie it appears that the said institution for which the petitioner is the
trustee is enjoying the land that was alienated by the Government in the
year 1947 is a religious institution within the meaning of Section 6 (13)
of the HR & CE Act, 1959. OA.No.1 of 2021 filed by the petitioner under
Section 63(a) of the HR&CE Act is pending before the second
respondent. Considering the fact that a fit person controls the institution
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W.P.No.12620 of 2022
since 20.06.2019, I am inclined to dispose of the writ petition by directing
the Joint Commissioner, HR&CE Department, Villupuram District to pass
appropriate orders in OA.No.1 of 2021. It is needless to state that the
petitioner shall be heard and any observation touching the merits of the
matter in this order will have no bearing when the matter is to decided on
merits only. The second respondent is hereby directed to dispose of the
OA.No.1 of 2021 without getting influenced by any observation of the
merits of the case. Suffice to state that OA.No.1 of 2021 shall be disposed
of as expeditiously preferably within a period of two months from the
date of receipt of a copy of this order. Status quo as on date shall
continue.
7. With the above observation and direction the writ petition is
disposed of. No costs. Consequently connected miscellaneous petitions
are also closed.
15.06.2022
Internet : Yes/No
Intranet : Yes/No
Speaking/Non speaking order
dpq
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W.P.No.12620 of 2022
1. The Commissioner,
Hindu Religious and Charitable
Endowments Department,
119, Uthamar Gandhi Salai,
Nungambakkam, Chennai 600 034.
2. The Joint Commissioner,
Hindu Religious and Charitable
Endowments Department,
Collectorate Campus, Villupuram,
Villupuram District.
3. The Assistant Commissioner,
Hindu Religious and Charitable
Endowments Department,
Collectorate Campus, Villupuram,
Villupuram District.
4. The Executive Officer,
Arulmighu Lakshmi Narasimhasamy Thirukoil,
Parikkal Village, Ulundurpet Taluk,
Villupuram District.
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W.P.No.12620 of 2022
C. SARAVANAN, J.
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W.P.No.12620 of 2022
15.06.2022
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