Madras High Court
K. Gopalasamy Gounder vs The Commissioner on 29 August, 2023
W.P.No.4847 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED :29.08.2023
CORAM
THE HONOURABLE MR. JUSTICE S.SOUNTHAR
W.P No.4847 of 2021
K. Gopalasamy Gounder ...Petitioner
Vs.
1. The Commissioner
Hindu Religious and Charitable Endowments Board,
Uthamar Gandhi Salai
Nungambakkam ,
Chennai - 600 034.
2. The Joint Commissioner,
Hindu Religious and Charitable Endowments Board,
Coimbatore - 641 018.
3. The Assistant Commissioner
Hindu Religious and Charitable Endowments Board,
Coimbatore - 641 018.
4. The District Registrar
Hindu Religious and Charitable Endowments Board,
Coimbatore - 641 018.
5. The Sub Registrar,
Office of the District Registrar,
Coimbatore – 641 018.
1/15
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W.P.No.4847 of 2021
6. Arulmighu Badharakali Amman and Vinayagar Temples
Devambadi Village, Pollachi Taluk,
Coimbatore District
(R6 Suo-Moto impleaded vide Order dt.03/03/2021
made in WP.4847 / 2021 ) ..Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution of India
for issuance of a Writ of Certiorarified Mandamus, calling for the records
relating to the order of the 3rd respondent namely, the Assistant Commissioner
of HR and CE Coimbatore in his proceedings Na.Ka.No.4833/2019/A7 dated
25.02.2020 and quash the same and consequently direct the respondents 2 and
3 to issue the no objection certificate to the petitioner for registration of
documents relating to S.No.21 measuring 7.22 Acres and S.No.23 measuring
5.71 Acres Devambadi Village, Pollachi Taluk, Coimbatore District.
For Petitioner :Mr. V. Nicholas
For R1 to R3 : Mr. K. Karthikeyan
Government Advocate(HR&CE)
For R4 and R5 : Mr. Naveenkumar
Government Advocate
For R6 : Mr. Rajesh Vivekanandan
ORDER
The writ petition is filed challenging the order passed by the 3rd
respondent rejecting the petitioner's request for No Objection certificate for
registration of documents in respect of property situated in Survey Nos.21 and
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W.P.No.4847 of 2021
23 at Devambadi village, Pollachi Taluk, Coimbatore District.
2. It is the case of the petitioner that he is the owner of property with
extent of 7.22 Acres in Survey No.21 and extent of 5.71 Acres in Survey
No.23 situated at Devambadi village, Pollachi Taluk, Coimbatore District. He
has purchased the same under registered sale deed dated 07.12.1972 from one
T.K.Subramaniyam Mudaliyar. It is the further case of the petitioner that when
proceedings were initiated under Tamil Nadu Minor Inams (Abolition and
Conversion into Ryotwari) Act, 1963, the Settlement Tahsildar,
Gobichettipalayam passed an order on 14.10.1968 granting ryotwari patta in
respect of above mentioned properties in favour of Bathrakali Amman
Temple/6th respondent temple herein. In the settlement proceedings, the 6th
respondent was represented by hereditary poosari of the temple namely Natesa
Pandaram. The order passed by the Settlement Tahsildar was challenged by the
vendor of the petitioner namely T.K.Subramaniyam Mudaliyar in
C.M.A.No.27 of 1969 on the file of Minor Inams Tribunal, Coimbatore
(Principal Sub-Ordinate Judge, Coimbatore). The said appeal was allowed and
the patta granted in favour of the 6th respondent temple was set aside. Further,
a direction was issued for grant of absolute patta in the name of vendor of the
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W.P.No.4847 of 2021
petitioner. Thereafter, the petitioner purchased the above said properties from
T.K.Subramaniyam Mudaliyar on 07.12.1972. The petitioner also produced the
patta in his name in respect of Survey Nos.21 and 23. The A register of the
village produced by the petitioner in respect of Survey Nos.21 and 23 also
stand in the name of one Gopalsamy Goundar. In the circumstances, the 3 rd
respondent herein sent a communication to the 5th respondent claiming that
properties in Survey Nos.21 and 23 belongs to the 6th respondent temple and
therefore, no documents for registration in respect of the said Survey Numbers
shall be entertained for registration. Thereafter, the petitioners submitted a
representation before the 3rd respondent on 04.11.2019 narrating the entire
facts mentioned above and requested him to issue no objection certificate for
registration of the documents in respect of Survey Nos.21 and 23. The said
request of the petitioner came to be rejected by the 3rd respondent by impugned
order.
3. The request of the petitioner was rejected by the 3rd respondent
mainly on the ground that 3rd respondent has taken steps to challenge the order
passed against the temple in C.M.A.No.27 of 1969 dated 24.12.1970
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W.P.No.4847 of 2021
Aggrieved by the said order, the petitioner is before this Court.
4. The learned counsel for the petitioner by taking this Court to the
order passed in C.M.A.No.27 of 1969 on the file of Minor Inams Tribunal,
Coimbatore (Principal Sub-Ordinate Judge, Coimbatore) submitted that patta
issued in favour of 6th respondent temple was set aside and patta was ordered
to be issued in favour of petitioner's vendor one T.K.Subramaniyam Mudaliyar
and the said order has become final. Now, the request of the petitioner for No
Objection Certificate was rejected by the 3rd respondent mainly on the ground
that they had taken steps to challenge the order passed in appeal after 50 years.
5. The learned counsel for the 6th respondent submitted that in the
judgment passed in C.M.A.No.27 of 1969 relied on by the petitioner, the 6th
respondent temple was not properly represented by a competent person and
therefore, the judgment is not binding on the temple. The learned counsel for
the 6th respondent also relied on the judgment of the Hon'ble Apex Court
reported in 1967 0 AIR(SC) 1044 in the case of Bishwanath and another Vs
Sri Thakur Radha Ballabhli and others, in this regard.
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W.P.No.4847 of 2021
6. The learned Government Advocate for the official respondents 1 to 3,
4 and 5 also supported the line of the arguments of the learned counsel for the
6th respondent.
7. In reply to the submission of the learned counsel for the 6th
respondent, the learned counsel for the petitioner submitted that in the
proceedings before the Settlement Tahsildar, the 6th respondent temple was
represented by its hereditary Poosari namely Natesa Pandaram and the said
Natesa Pandaram was also impleaded as one of the respondent in
C.M.A.No.27 of 1969. Therefore, the person, who represented the temple had
the knowledge of the appeal filed before the Minor Inams Tribunal,
Coimbatore and consequently, the submission made by the counsel for the 6th
respondent cannot be accepted.
8. It is seen from the order passed in C.M.A.No.27 of 1969, the 6th
respondent temple was arrayed as 2nd respondent. As nobody entered
appearance for 6th respondent temple, it was set ex-parte and order was passed
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W.P.No.4847 of 2021
setting aside the patta granted in favour of the temple. In the impugned order,
the 3rd respondent stated that the temple is taking necessary steps to challenge
the order passed in C.M.A.No.27 of 1969 after 50 years. It is not the stand of
the 3rd respondent that the order passed against the temple was not within their
knowledge and now only they acquired knowledge about the judgment. In
fact, the writ petition was of the year 2021. The impugned order was passed by
3rd respondent on 25.02.2020. Till date, no materials are produced before this
Court to say that 3rd respondent filed any appeal challenging the order passed
in C.M.A.No.27 of 1969. Therefore, the order passed against the temple in
C.M.A.No.27 of 1969 has become final. Accordingly, the petitioner was also
issued with patta in pursuance of the order passed in his favour in
C.M.A.No.27 of 1969. In such circumstances, the 3rd respondent is not entitled
to claim that the property belonged to the temple and refuse to issue no
objection certificate in respect of the properties in Survey Nos.21 and 23.
9. When the person namely hereditary poosari of the 6th respondent
temple, who represented the temple in the settlement proceedings before the
Settlement Tahsildar was also arrayed as one of the respondent in
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W.P.No.4847 of 2021
C.M.A.No.27 of 1969 and he was also represented by the counsel before the
Minor Inams Tribunal, Coimbatore. In such circumstances, the 6th respondent
temple cannot say that the order passed in C.M.A.No.27 of 1969 is not binding
on it by taking shelter under technicalities.
10. The learned counsel for the 6th respondent submitted that the 6th
respondent-temple was not represented by a competent person in earlier
proceedings in C.M.A.No.27 of 1969 and consequently, the order passed
therein is not binding on the temple. In this regard, he relied on the judgment
in Bishwanath and another Vs Sri Thakur Radha Ballabhli and others
reported in 1967 0 AIR(SC) 1044. The question that came up for consideration
in the said judgment was maintainability of a suit filed by a worshipper on
behalf of the idol. The Hon'ble Apex Court after considering various judgment
held that when Shebait (Manager) acts against the interest of the idol, any
worshipper can maintain a suit for recovery of possession against the
encroachers. Therefore, the judgment relied on by the learned counsel is not
helpful to him to advance his argument.
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W.P.No.4847 of 2021
11. This Court in His Holiness Sri Kanchi Kamakoti Peetadhipathi
Jagadguru Sri Sankaracharya Swamigal Srimatam Samasthanam vs. State
of Tamil Nadu reported in 2005 (1) CTC 657 : MANU/TN/0207/2005 held
that Temple and Mutt are juristic personalities and they can maintain legal
proceedings in their own name. The relevant observation of this Court in this
regard reads as follows:-
“25. I am unable to sustain the said objection. It is not
disputed that the Mutt is an ancient religious Institution in
existence for more than several hundreds of years. The
Institution, though it is popularly known as "Kanchi Mutt" in
common parlance, appears to bear a traditional name as
"Srimatam Samasthanam". It is stated to be headed by Sri
Kanchi Kamakoti Peetadhipathi. The Mutt is, therefore, a
religious institution, entitled to constitutional protection, as
envisaged under Article 26 of the Constitution. "Religious
institution" is defined under Section 6(18) of the Act as math,
temple or specific endowment. "Math" is defined under Section
6(13) as a Hindu Religious Institution with properties attached
thereto and is presided over by a person, the succession to whose
office devolves in accordance with the directions of the Founder
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W.P.No.4847 of 2021
of the Math.
26. Such institutions, in view of their antiquity and
acceptance by a large section of the members of the society as
representing their faith, are also accepted as institutions/juridical
persons and they are entitled to sue or liable to be sued, and such
rights have never been disputed or questioned. The same
conclusion would apply to other ancient institutions belonging to
other religions also, such as, Christianity and Islam. There are
several ancient institutions subscribing to Christian faith,
churches, mosques, wakfs, functioning and recognised as legal
entities, without registration under any Act. There were several
unregistered wakfs which were governed by the provisions of the
earlier Wakf Acts and it is only under the Wakf Act, 1995,
registration of the wakfs have been made compulsory, and that
too, only with the Wakf Board and not under any general statutes
or authorities relating to registration of companies, societies or
other organisations. Registration of such religious institutions
may not also be possible in terms of such general statutes under
which any institution, society or a company would be usually
registered. There is no possibility of such institutions conforming
to the various statutory requirements of having various offices
like President, Vice President, Secretary, etc., much less elections
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W.P.No.4847 of 2021
to such offices in the case of a religious institution like Mutt.
Further, unlike Wakf Act, 1995, there is no corresponding
provision under the Tamil Nadu Act 22 of 1959, requiring
compulsory registration at least under that Act.
27. It is only in the said background, such institutions have
always been recognised by the Courts and other authorities as
juridical persons who can sue or be sued even though they are
not registered under any of the modern statutes. As pointed out
by the learned senior counsel for the petitioner, there are several
examples of Court proceedings including writ petitions where
such institutions have been parties, one such example being the
Shirur Mutt case which went up to the Supreme Court. Therefore,
it follows that the petitioner Mutt or Samasthanam, in whatever
name it is called, being a Mutt and religious institution as
defined under Section 6(13) and Section 6(18) of Act 22 of 1989,
can maintain a writ petition.”
12. In view of the law laid by this Court in the above said judgment,
there is no difficulty in coming to the conclusion even though in C.M.A.No.27
of 1969, the 6th respondent-temple was not represented by any living person,
the temple as a juristic personality, can be sued in its own name. Therefore,
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W.P.No.4847 of 2021
the judgment in C.M.A.No.27 of 1969 is binding on the 6th respondent-temple.
Further, in the above said judgment, it was recorded by the learned Judge
inspite of notice to the 6th respondent-temple, nobody entered appearance. The
statement recorded by a Judge, is deemed to be correct unless a contrary is
proved. Judicial acts deemed to be performed regularly unless the contrary is
proved. The presumption available under Section 114 (e) of the Evidence Act,
1872 is available to the Judicial Acts. In the case on hand, it has not been
established before this Court that the order in C.M.A.No.27 of 1969 was
passed without notice to the 6th respondent-temple. In fact, no such reason is
mentioned in the impugned order also. In such circumstances, the judgment
passed in C.M.A.No.27 of 1967 is binding on 6th respondent.
13. The copy of the property register of the temple was also produced by
the petitioner which was approved by 3rd respondent on 17.10.2005. In the
property register of the 6th respondent temple, the above said lands are not
mentioned as the properties of the temple. In fact, there is an endorsement in
the property register that the temple has no properties. Therefore, the
impugned claim made by 3rd respondent as if the lands in question are
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W.P.No.4847 of 2021
properties of 6th respondent temple is without any basis. The allowing of Writ
petition will not deter 6th respondent temple from establishing it's title before
Civil Court. Hence, 6th respondent is given liberty to work out it's remedy
before Civil Court.
14. Therefore, the impugned order passed by the 3rd respondent is set
aside and the 4th respondent is directed to consider registration of documents
presented by the petitioner, in respect of the properties covered under Survey
Nos.21 and 23 with extent of 7.22 Acres and and 5.71 Acres respectively in
Devambadi Village, Pollachi Taluk, Coimbatore District, if it is otherwise in
order, without insisting no objection certificate from the temple authorities.
Accordingly, the writ petition stands allowed as indicated above. No costs.
29.08.2023
Index : Yes/No
Internet : Yes/No
Speaking Order/Non-Speaking Order
Neutral Citation Case : Yes/No
nr
To
1. The Commissioner
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W.P.No.4847 of 2021
Hindu Religious and Charitable Endowments Board,
Uthamar Gandhi Salai
Nungambakkam ,
Chennai - 600 034.
https://www.mhc.tn.gov.in/judis
W.P.No.4847 of 2021
S.SOUNTHAR, J.
nr
2. The Joint Commissioner,
Hindu Religious and Charitable Endowments Board,
Coimbatore - 641 018.
3. The Assistant Commissioner
Hindu Religious and Charitable Endowments Board,
Coimbatore - 641 018.
4. The District Registrar
Hindu Religious and Charitable Endowments Board,
Coimbatore - 641 018.
5. The Sub Registrar,
Office of the District Registrar,
Coimbatore – 641 018.
6. Arulmighu Badharakali Amman and Vinayagar Temples
Devambadi Village, Pollachi Taluk,
Coimbatore District.
W.P No.4847 of 2021
29.08.2023
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