Allowed

N.S. Vaithiyalinga Udaiyar, v. the Joint Commissioner

Madras HC29 Sept 2022WP(MD)/2363/2013

Case brief

AI extract

What is this about?

The Madurai Bench quashed proceedings initiating disciplinary action and appointing a fit person against a hereditary trustee of a chatram. The court held that since no notification under Section 3 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 was issued, the Act was not applicable, rendering proceedings void.

What did the court decide?

The impugned proceedings of order dated 01.10.2012 and consequential order dated 26.11.2012 are quashed.

N.S. Vaithiyalinga Udaiyar, Vs the Joint… — Pension and Retirement Benefits | Madras HC (2022)

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W.P.(MD)No.2363 of 2013

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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

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RESERVED ON : 26.08.2022 PRONOUNCED ON : 29.09.2022

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CORAM

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THE HONOURABLE MR.JUSTICE M.NIRMAL KUMAR

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W.P.(MD)No.2363 of 2013 and W.M.P(MD)No.1 of 2013

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N.S.Vaithiyalinga Udaiyar ... Petitioner

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Vs.

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1.The Joint Commissioner, HR & CE., Thanjavur.

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2.The Fit Person, A/m.Kunjithapatha Udaiyar Anna Chatram Narikudi Village, Valangaiman Taluk, Tiruvarur District. Having Office at O/o. The Executive Officer, A/m.Santhana Ramasamy Temple Needamangalam, Thiruvarur District. ... Respondents

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PRAYER : Writ Petition filed under Article 226 of Constitution of India, praying for issuance of a Writ of Certiorari, to call for the records of the 1st respondent in Ref.Se.Mu.Na.Ka.No.7284/2012-2/A3, dated 01.10.2012 and the consequential order passed by the 1 st respondent in Na.Ka.No.7284/2012-1/A3, dated 26.11.2012 and quash the same, as illegal, arbitrary and unenforceable.

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W.P.(MD)No.2363 of 2013

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For Petitioner	:	Mr.R.S.Prabhu
For R1	:	Mr.P.T.Thiraviam, Government Advocate
For R2	:	Mr.K.Govindarajan, Standing Counsel

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*****

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ORDER

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This Writ Petition is filed praying for issuance of a Writ of Certiorari, to call for the records of the 1 st respondent in Ref.Se.Mu.Na.Ka.No.7284/2012-2/A3, dated 01.10.2012 and the consequential order passed by the 1 st respondent in Na.Ka.No. 7284/2012-1/A3, dated 26.11.2012, quash the same, as illegal, arbitrary and unenforceable.

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2.The contention of the petitioner is that "Arulmighu Kunjithapatham Udaiyar Anna Chathiram", situated at Narikudi Village, Valangaiman Taluk, Thiruvarur District, belonged to his ancestors. One Arumugha Udaiyar, one of his ancestors, a Philanthropist, desired to

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have a chatram constructed to provide feeding for Brahmins in Pulavaratham Village in Papanasam Taluk. Hence, he executed a Will, dated 22-08-1894, under which, his eldest wife Mangalam to be in

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W.P.(MD)No.2363 of 2013

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Management of all the properties, till his minor son Minor Kunjithapatham attained majority, then the said Kunjithapadam to be the Trustee of the Chatram. The Chatram should be constructed in his own property with family funds. The income from the lands endowed to be utilized for the purpose of the said Chatram Trust. Kunjithapatha Udaiyar executed a Will, dated 21-09-1919, nominate his brother-in-law Sivasankara Udaiyar to conduct the Trust.

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3.The learned counsel appearing for the petitioner would submit that the income from the lands to be utilized for Chatram, for feeding Brahmins, that too, at the discretion of Trustee. Chatram not left open for feeding general Public. The Trust is a private family Trust in character and it is neither public nor religious. Since the Trust is a private Trust, it is not attracted under the provisions of the H.R.&C.E.Act. The Chatram administered by the petitioner, as he is the hereditary Trustee. The object of the Choultry with which it was founded is fulfilled without giving any room for complaint whatsoever.

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W.P.(MD)No.2363 of 2013

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4.The learned counsel would further contend that some tenants from whom rent demanded gave complaints to the HR & CE Department with ill-founded allegations against the petitioner. Pursuant to which, the 1st respondent passed the impugned proceedings in Se.Mu.Na.Ka.No. 7284/2012/A3, dated 01-10-2012. The impugned proceedings are illegal, without jurisdiction. Before extending the provisions of Act 22 of 1959 to an Institution in point, if the Government is satisfied that the Charitable Endowment is being mismanaged, Notification has to be made specifying the reasons for the action proposed to be taken by them. Further, two months period shall be given to the person interested to show cause against the issue of the Notification and their objections have to be considered. Without following the procedure contemplated under Section 3 of H.R.& C.E. Act, the provisions of the Act, cannot be extended to the Institution in point. The defects pointed out in the administration of the Trust are only administrative lapses, which are curable. As the procedure contemplated in the Act not followed by the 1st respondent, the proceedings are void, without jurisdiction and illegal.

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5.The learned counsel would further submit that on the basis of

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disciplinary action and suspension made thereunder, the 2 nd respondent appointed a Fit person to administer the Choultry. The appointment of 2nd respondent is illegal and arbitrary. The 1 st respondent, on 01-10-2012, directed the petitioner to handover the charge of the Institution to the 2 nd respondent, again on 26-11-2012, the 1 st respondent passed a similar order in Na.Ka.No.7284/2012-1/A3 to hand over the charge to the New Executive Officer of Arulmighu Santhana Ramasami Temple, Needamangalam. As the 1 st respondent passed two similar consequential orders, the last order dated 26-11-2012 is under challenge in the present writ petition. When the mandatory requirements not complied with, the exercise of power by 1 st respondent, charges levelled against the petitioner and the appointment of 2 nd respondent as Fit person for the Institution all void and without jurisdiction.

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The learned counsel would further submit that the original Will is dated 22.08.1894, which is of Arumugha Udaiyar. The testator of the Will, dated 22.08.1894, is as follows:-

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“........g[ytej;jk; vy;iyapy; 15k; nuhl;Lf;F

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W.P.(MD)No.2363 of 2013

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fPH;g[wj;jpy; xU rj;jpuk; fl;o gpukhzs; ngh$dk; rjhtpUj;jp Kjyhd ju;kj;ij elj;j ntz;oajhft[k;. mjw;fhf mLj;jhw;nghy; tPL fl;o xU ey;y gpuhkzhSf;F jhdk; bra;J mth;fSila rhg;ghl;L 1 ntyp e”;ir epyKk; jhdk; bra;J tpLfpwbgd;Wk; ehd; cj;njrpj;J nkw;go g[yt ej;jj;jpy; bfh////rk; epyk; th';fp Fsk; btl;o. rj;jpuk; gl;lg;gl;ljw;F fhytha; nghl;L bfh”;rk; m!;jpthuk; nghl;owfd;dpapy;. nkw;go uhn$e;jpu ey;Y}h; njt!;jhdj;jpy; U:/1.500xU tPLk; rhrdk; th';fpapUf;fpwnd;/

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vd; Ma[Sf;Fs;shf fl;olj;ij vd;dhy; fl;o jh;kj;ij elj;jp tUtjw;Fs; ehd; jtwp ngha;tpl;nldhy; nkw;go fl;olj;jpw;fhf th';fpapUf;fpw uhn$e;jpu ey;Y}h; njt!;jhdj;jpd; tPl;ilg; gphpj;J me;j tPl;od; nkd;!hkhd;fisa[k;. fPH; ,Uf;fg;gl;l br';fy; fU';f;fy;iy bfhz;Lk; nkw;go fhstha; br';fy;iy bfhz;L bghUj;J Flk;g Int$piaf; bfhz;Lk;. !j;jpuj;ija[k;. tPl;ila[k; fl;o Kog;gnjhLk;. fl;ol thrypy; nahg;gLj;jpapUj;jpf;Fk; Fsj;Jf;F xU goj;Jiwa[k;. xU gps;isahh; nfhtpYk; fl;o vd; K:j;j ! k;rhuk;khfpa k';fsk; fl;o itf;f ntz;oaJ/ ”

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7.Following the above, Arumugha Udayar, son of Kunjithapatham

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Udayar executed the document in favour of his minor brother-in-law Sivasankara Udaiyar, who is the present hereditary trustee. The present

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deed does not confer any duty or right for any religious purpose. One brahmin family has to be feeded and to be taken care and it is also not a identifiable group. The Will is general in nature without any religious public charitable order. Further, the petitioner has written to the Commissioner, Hindu Religious and Charitable Endowment, Chennai to find out and confirm whether notification under Section 3, 3(1), 3(2), 3(3) of the Hindu Religious and Charitable Endowment Act has been issued with regard to the trust. The Commissioner had forwarded the petitioner's request to the Joint Commissioner, Hindu Religious and Charitable Endowment, Thanjavur, who called for the records from the Assistant Commissioner, Hindu Religious and Charitable Endowment, Thiruvarur calling for the details. The Assistant Commissioner, Hindu Religious and Charitable Endowment, Thiruvarur in his proceedings in Na.Ka.No.1537/2017/E3, dated 10.05.2013 had given reply that there is no such notification available. The Assistant Commissioner, Hindu Religious and Charitable Endowment, Thanjavur had written to the Assistant Commissioner, Hindu Religious and Charitable Endowment, Thiruvarur in Na.Ka.No.1565/2013/A4, dated 10.06.2013 that no notification was issued under Section 3, 3(1), 3(2), 3(3) of Hindu

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Religious and Charitable Endowment Act. Thus, it is confirmed that no notification has been issued, which is the precondition to extend the Endowment Act, 1959.

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8.The learned counsel would further submit that as per Section 6(5) of the Hindu Religious and Charitable Endowment Act, charitable endowments to be declared. Sections 6(16) of the Hindu Religious and Charitable Endowment Act, states that religious charity must be associated with Hindu festival or observance of a religious character. In this case, it is neither notified nor charity associated with the Hindu festival. In support of his contention, the learned counsel for the petitioner relied on the decision of this Court in the cases of “ V.K.Somasundara Pandarasannadhi Versus the State of Tamil Nadu, represented by Secretary, Revenue Department, Madras-9 ” and in the case of “ Gomathi Ammal (died) and others Versus Madasamy and others in App.No.336 of 1979, dated 31.01.1985 ” and “ A.M.Ponnuswamy Nadar Versus The State of Tamil Nadu, represented by the Commissioner and Secretary to Government, Commercial Taxes and Religious Endowments Department, Madras in

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W.P.No.3947 of 1979, dated 15.02.1985 .” Hence, he prayed for quashing of the proceedings.

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9.The 1 st respondent filed a counter on the same lines as that of the 2nd respondent, contending interalia that the writ petition is not maintainable, in view of the effective alternative remedy of appeal available before the Commissioner under Section 53(5)(ii) of HR & CE Act, 1959. The Petitioner without exhausting the remedy provided under the Act, filed the present writ petition, which amounts to deviation of process of court. Further, the 'Arulmighu Kunjithapatha Udaiayar Anna Chatram" is situated in Narikudi Village, which is a religious endowment coming within the purview of Hindu Religious and Charitable Endowment Act, 1959. The object of chathiram is to feed the Brahmins in Pulavar Ntham Village in papanasam Taluk. The founder of Charity viz., Arumuga Udaiyar, dedicated properties for doing the Charity. Since the Institution established and maintained for religious purpose, it is listed as religious institution under Section 46(1) of HR&CE Act, 1959.

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10.The learned counsel for the respondents submitted that the petitioner, who is acting as the Hereditary Trustee, not submitted the

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accounts to the Department. Therefore, a detailed report called for by the Joint Commissioner to initiate disciplinary action against the Hereditary Trustee. The property register not submitted to the Department for approval, as contemplated under Section 29 of the HR&CE Act, 1959. The petitioner, as Hereditary Trustee, not maintained any records regarding the budget, loss of standing trees, accounts and bank account. Hence, the 1 st respondent framed 7 charges in Se.Mu.Na.Ka.No. 7284/2012/a3, dated 01.10.2012, against the petitioner, issued a charge memo calling for explanation, further directed to appear in person on 23.10.2012. Since the charges levelled against the petitioner are grave in nature, order of suspension passed by the 1 st respondent, thereafter, the petitioner removed from the Hereditary Trustee. The 1 st respondent appointed the Executive Officer of Arulmighu Santharamasamy Thirukoil as Fit person to administer the affairs of the religious Endowment.

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11.The learned counsel for the respondents further submitted that on 03.12.2012, the petitioner handed over a cheque for Rs.68,120/-, the amount received from the Government as compensation for acquiring the

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lands owned by the Chathiram, and assured to hand over the records on 11.12.2012. Further, the petitioner handed over the Chathiram building, cash on hand to the tune of Rs.684/- and receipt book on 28.11.2012. After handing over the charges, the petitioner knocked the doors of this Court, challenging the appointment of Fit person for the Chathiram, which is a religious endowment. It is further contended that the provisions of HR & CE Act, 1959 not extended to the religious endowment for the first time, in fact, on the date of issuing a show cause notice, the Chathiram has to pay a contribution to the tune of Rs.23,948/including audit fees. Hence, the learned counsel for the respondents prayed for dismissal of the writ petition.

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12.In support of his submissions, he relied on the decision of the Hon'ble Apex Court in the case of “ Idol of Sri Renganathaswamy Versus P.K.Thoppulan Chettiar and others reported in 2020 (2) CTC 341 ”. In the case of “ Commissioner Madras Hindu Religious and Charitable Endowments Versus Narayana Ayyangar reported in AIR 1965 SC 1961 ” it had held that “ a fund was set up for carrying out Charity in relation to feeding brahmins attending Sri Prasanna

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Venkatachalapathiswami shrine on the occasion of Rathotsavam Festival ”. Thus, feeding Brahmins would be a 'Religious Charity' within

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the meaning of Section 6(13) of the Madras Hindu Religious and Charitable Endowments Act of 1951.

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13.I have heard the learned counsels appearing on either side and perused the materials on record.

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14.It is not in dispute that "Arulmighu Kunjithapatham Udaiyar Anna Chathiram", situates at Narikudi Village, Valangaiman Taluk, Thiruvarur District, belonged to the ancestors of the petitioner. The petitioner is the hereditary Trustee of the Chatram. According to the respondents, the petitioner, who acting as the Hereditary Trustee, not submitted any accounts to the Department, a detailed report called for, no explanation from the side of the petitioner, hence, the 1 st respondent framed charges. Since the charges levelled against the petitioner is grave in nature, order of suspension passed, the petitioner removed from the Hereditary Trustee, the Executive Officer of Arulmighu Santharamasamy Thirukoil, appointed as Fit person to administer the affairs of the

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religious Endowment.

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15.Be that as it may, admittedly, no notification issued as per Section 3 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959. Without notification and making out a case under Section 3 of the Act, followed by show cause notice indicating the nature and extent of mismanagement, thereafter to conduct enquiry by any Officer authorized by the competent authority into the affairs of the petitioner Chatram and to issue proceedings alleging that the petitioner Chatram being mismanaged and then only taking over the Chatram, appointing the Fit person by the respondents HR & CE Department, is permissible.

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16.In this case, no notification issued under Section 3 of the Hindu Religious and Charitable Endowment Act, bringing religious charity under the Act, 1959. From the Will, it is seen that Brahmins were to be feeded and taken care. It might be a charitable endowment, but certainly not a 'Religious Charity'. It is not associated or connected with any Hindu Festival or attached with Religious Character. The Dharmam

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done in the Chavadi of a house, is purely a private affair. The R eligious Charity means a public charity associated with a Hindu festival or observance of a religious character, whether it be connected with a math or temple or not. The test suggested should be between the charity and the festival or observance, such a relation that the administrative of the charity must be controlled by those who celebrate that festival or observance in a temple or math, besides being inept in the case of general festivals and observance can only be evolved if words which are not found in the definition of 'religious Charity' are added thereof.

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17.In this case, admittedly, from the Will of Arumugha Udaiyar, it is seen that only a Brahmin family to be feeded and to be taken care. It is not connected with any religious festival, character or condition. Added to it, no notification was issued. This Court in the case of “ Gomathi Ammal (Died) and others Versus Madasamy and others in App.No.336 of 1979, dated 31.01.1985 ” following the case of “ Commissioner H.R and C.E Versus Narayanan reported in AIR 1963 SC 1916 ”, held that charity and festival are religious subsidy. In this case, it is not so.

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18.In view of the above, the impugned proceedings issued by the 1st respondent in Ref.Se.Mu.Na.Ka.No.7284/2012-2/A3, dated

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01.10.2012 and the consequential order passed by the 1 st respondent in Na.Ka.No.7284/2012-1/A3, dated 26.11.2012 are hereby quashed.

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19.However, the respondents are at liberty to initiate proceedings after issuing Notice under Section 3 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959, in accordance with law. It is open to the petitioner to take all the legal pleas, as and when such action is initiated.

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20.In the result, the Writ Petition is allowed with the above

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directions. No costs. Consequently, the connected miscellaneous petition is closed.

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29.09.2022

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MPK / SMN2 Index: Yes/No

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