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CASE NO.:

Appeal (civil) 1913 of 2004

PETITIONER:

Joint Commnr., H.R. & C.E. Administration Department

RESPONDENT:

Jayaraman & Ors.

DATE OF JUDGMENT: 26/10/2005

BENCH:

S.N. VARIAVA,P.K. BALASUBRAMANYAN & P.P. NAOLEKAR

JUDGMENT:

J U D G M E N T

P.K. BALASUBRAMANYAN, J.

1. An extent of 10.38 acres of land, which was government

land and situated around four temples, namely, Keelakottai Sri.

Vinayagar Temple, Muthampatti Sri Vinayagar Temple, Mottakottai Sri

Vinayagar Temple and Mariamman and Bhagavathiamman Temples

were set apart by the British Government for the purpose of the use of its

income for the poojas and maintenance of the temples. The land was put

in the possession of one Veerana Pandaram, who was the poojari.

Respondent Nos. 1 to 7 herein, the descendents of Veerana Pandaram

filed a petition before the Deputy Commissioner, Hindu Religious and

Charitable Endowments, Madurai, under Section 63 of the Tamil Nadu

Hindu Religious and Charitable Endowments Act, 1959 (hereinafter

called the 'H.R & C.E. Act') praying that they may be declared as

hereditary trustees cum poojaries of the Mariamman and

Bhagavathiamman Temples. This application was made, when after an

enquiry, a preliminary report was made by the Special Inspector, to the

Assistant Commissioner of H.R & C.E. Administration Department,

Madurai, to the effect that the lands endowed and belonging to the

temples, are being enjoyed by the three poojaries, who render pooja

services. The poojaries were taking the income, but were not

maintaining any accounts. As various development works had to be

done in the temple, the lands may be assessed to contribution from the

concerned fasli. The Special Inspector also suggested that show cause

notices be issued to the poojaries regarding the appointment of trustees

for the temple. In their application, the successors of Veerana Pandaram

prayed in terms of Section 63(b) of the H.R & C.E. Act, that they and the

three respondents to the said application, may be declared as hereditary

trustees of both the temples, the office as hereditary and them as the

trustees of Mariamman and Bhagavathiamman Temples. By order dated

4.10.1972, the Deputy Commissioner, H.R & C.E. Department, declared

that the applicants before him are holding the office of trusteeship cum

poojariship of Mariamman and Bhagavathiamman Temples at

Keelakottai village, Dindigul Taluk, Madurai district hereditarily. No

declaration was given regarding the rights of the applicants, since no

court fee was paid for the grant of such a relief. Thus, the successors of

Veerana Pandaram were recognized as trustees of the temples.

Subsequently, the Settlement Tahsildar, Madurai passed an order on

31.03.1968 for issue of ryotwari pattas for lands covered by four title

deeds referred to in that order, in favour of the four institutions

represented by respondent Nos. 1 to 7. The respondents appear to have

belatedly challenged the said order before the Appellate Tribunal.

Neither the deity nor the H.R & C.E. Department was impleaded in the

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appeal which was filed four years after the order of the Settlement

Tahsildar. That appeal is seen to have been allowed and the matter

remitted for a fresh consideration by the Settlement Tahsildar. It was

noticed in the order of remand that the H.R & C.E. Department was not

impleaded, and that it was necessary to implead the Department for an

effective adjudication. In spite of it, it is seen that the respondents did

not bring on record the H.R & C.E. Department or the deity in the array

of parties, before the Settlement Tahsildar. The order does not also

show that notice was issued either to the deity or to the Department.

That no notice was issued is seen admitted by the respondents before the

High Court of Madras in a revision filed by them against the order

refusing to grant a stay pending a revision filed by them against the

proposal to appoint a fit person under the H.R & C.E. Act in their place.

The said order of the High Court dated 7.6.2002 is annexed as Annexure

P-11 and in paragraph 4 thereof, it is recorded by the learned Judge that :

"The petitioners (the contesting respondents herein)

would further submit that in none of the above

referred proceedings, the H.R & C.E. Authorities were

the parties and that being so, on coming to know that

the petitioners have deposited a sum of Rs. 4,50,000/-

in the name of the four institutions, the second

respondent (Joint Commissioner, H.R & C.E.) has

initiated the proceedings in NK. No.3369 of 2002/A1,

dated 12.4.2002 against the petitioners on the ground

that the sanction as prescribed under Section 34 of the

Tamil Nadu Hindu Religious and Charitable

Endowments Act had not been obtained and by order

dated 12.4.2002, the second respondent has suspended

the petitioners and also directed them to hand over the

charges to the third respondent."

Thus, the mandate in the order of remand was not complied with either

by the descendents of Veerana Pandaram or by the Settlement Tahsildar.

2. Thereafter, it is seen that the Settlement Tahsildar

proceeded to uphold the claim of the successors of Veerana Pandaram.

But the Settlement Tahsildar noticed that the claimants did not produce

either the original grants or the extract of the Inam Fair Register, in spite

of the reference to the four title deeds Nos.1049, 1050, 1051 and 1052

said to be in favour of the four institutions represented through the

claimants. He proceeded to hold that the claimants before him were

eligible to get ryotwari patta subject to the condition of rendering service

to the four institutions. Patta was thus granted subject to the conditions

laid down in Section 21(2) of the Tamil Nadu Minor Inams (Abolition

and Conversion into Ryotwari) Act, 1963.

3. What requires to be emphasized once again, is that the

Settlement Tahsildar did not see either the original grants in respect of

the lands or the extract of the Inam Register, while directing the issue of

the patta by changing the pattadar from the temples to the claimants and

did not care to insist on the claimants impleading the deities and the H.R

& C.E. Department as respondents in the proceedings, in spite of the

directions in that behalf contained in the order of remand. It was clearly

a case of total non-application of mind by the Settlement Tahsildar

amounting to dereliction of duty. The patta thus granted by him cannot

either affect the rights of the deities or of the temples and cannot bind

them or the H.R & C.E. Department. Nor can it affect the right of the

worshipping public in these public temples.

4. The claimants, thereafter, purported to make an application

in the court of the District Judge of Dindigul as O.P. No. 44 of 2001

under Section 34 of the Indian Trusts Act. Again, none was shown as

the respondent to that petition. Against respondents, it was said "nil".

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The District Judge apparently did not even apply his mind to direct the

claimants, the petitioners before him, to implead the deity or the H.R &

C.E. Department especially in the context of the nature of the claim

made by the petitioners before him. One could even say that the District

Judge apparently did not even read the petition filed before him since in

the petition the claimants had clearly stated even at the threshold:-

"The undermentioned properties were originally the

Government Promboke lands and around the said

properties there are 4 familiar and powerful temples

namely Keelakottai Sri. Vinayagar Temple,

Muthampatti Sri Vinayagar Temple, Mottakottai Sri

Vinayagar Temple and one Mariamman and

Bhagavathiamman Temples . Since those temples

were not cared and looked after by anybody, to

maintain the said temples and to do poojas etc., the

British Government had rested the said properties in

favour of one Veerana Pandaram, and directed him to

perform poojas, keep the temple and its boundaries

clean and for other incidental purposes out of the

income from the undermentioned properties and thus

he was appointed as a trustee and poojari of the said

temples. In pursuance of that, the said Veerana

Pandaram had been in possession and enjoyment of

the undermentioned properties and he was doing

pooja, Neivethiyam etc., and keeping the temple clean

and he was also conducting yearly and periodical

function of the temple, out of the income from the

undermentioned properties."

(emphasis supplied)

He also did not care to notice the further statement that the petitioners

had been in possession and enjoyment of the properties and management

of the temple as trustees and hereditary poojaries. They had also referred

to the original patta being granted in the name of the deities and to the

relevant finding in that order. He also failed to notice the clear plea that

the petitioners before him were in possession of the properties as trustees

and the further plea that the petitioners are not given any right of

alienation of the properties. A cursory application of mind would have

induced the District Judge to direct the impleading of the deity and the

H.R & C.E. Department and would also have made him ask himself

whether the application under Section 34 of the Indian Trusts Act was

maintainable at all before him and whether it was in the interests of the

temple to permit the sale of the properties and whether the price for

which it was proposed to be sold, was the prevalent market price or the

price that alone could have been fetched by a sale. Consistent with this

total lack of application of mind, the District Judge proceeded to allow

the application filed under Section 34 of the Act, not realizing even at

that stage, the need to hear the deity or the H.R & C.E. Department. By

order dated 10.9.2001, the District Judge allowed the application as

prayed for and permitted the sale of the properties and directed that the

proceeds amounting to Rs. 4,50,000/- be deposited in the State Bank of

India, Dindigul branch in Fixed Deposit. The claimants promptly sold

the properties under cover of that order.

5. The Joint Commissioner of H.R & C.E. Administration

Department, Madurai, on coming to know of the order thus passed by

the District Court and the alienation effected, filed a petition under

Article 227 of the Constitution of India in the High Court of Madras on

behalf of the Department after obtaining permission to challenge an

order to which he was not eo-nominee a party. The Joint Commissioner

questioned the jurisdiction of the District Court to entertain the petition

under Section 34 of the Indian Trusts Act pointing out that it was a

public trust or a charity, certainly a religious trust, and Section 34 had no

application. He also contended that the alienation was clearly in

violation of the relevant provisions of the H.R & C.E. Act and the order

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passed by the District Judge without notice to the H.R & C.E.

Department was void in law and the District Judge was incompetent to

grant the permission in view of the fact that the provisions of the H.R &

C.E. Act were attracted and the transaction would be hit by Section 34 of

the H.R & C.E. Act. The High Court, rather surprisingly, without

properly applying its mind to the facts, the conduct of the claimants and

the non-binding nature of the orders passed by the Settlement Tahsildar

or the District Judge, without notice to the H.R & C.E. Department and

to the deities, has upheld the order of the District Court. By a reasoning

that skirts the issue, the High Court confirmed the order of the District

Court and dismissed the revision filed by the Joint Commissioner. It is

this order of the High Court that is challenged in this appeal by special

leave.

6. At the outset, it must be stated that in the absence of the

original grants being produced by the claimants, the grants could not

have been construed by the District Court or by the High Court to decide

upon the nature of the grant. That apart, it was clearly a case where

orders have been obtained by the claimants without impleading the deity

or the H.R & C.E. Department and the orders so obtained and the patta

thus procured, were not binding either on the deities or on the H.R &

C.E. Department. Therefore, neither the District Judge nor the Judge of

the High Court could have relied on those proceedings as against the

deities or as against the H.R & C.E. Department.

7. It is seen that the claimants had got themselves appointed as

hereditary trustees by applying under Section 63(b) of the H.R & C.E.

Act. They could not thereafter shed their character as trustees of the

temples holding the lands belonging to the temples at a subsequent stage

at least without impleading the H.R & C.E. Department and the deities

and without getting a valid adjudication of their right over the properties.

It is clear that in spite of the necessity for impleading the H.R & C.E.

Department being pointed out, the claimants made no attempt to implead

the H.R & C.E. Department either before the Settlement Tahsildar or

before the District Judge and consequently, the orders passed by the

Settlement Tahsildar and by the District Court were clearly illegal and

not binding on the deities or the H.R & C.E. Department. The claimants

had, in fact, acted totally without bona fides in an attempt to corner the

properties for themselves or at least to make undue gains for themselves

by selling the properties. Such action would certainly not bind the

deities or the H.R & C.E. Department. The High Court, representing the

sovereign as parens patriae ought to have come down on the respondents

herein and ought to have issued directions for the protection of the

properties.

8. The grant was of government land. The grant was, even

going by the case of the claimants, in favour of persons who were acting

as poojaries of the temple, for the purpose of utilizing its income for

poojas and maintenance of the temple. Even in the extract of the fasil

register, it is shown that the registered name of the inamdar is poojaries

of Mariamman and Bhagavathiamman Temples and the enjoyers as

Veerana Pandaram and Arunachalam Chetty. The relation between the

inamdar and the enjoyer is shown as 'Devadayam' and in the column

regarding details of inam, it is shown as for poojas to God (Sasvatham)

and in the column relating to details of endowment, it is shown that the

income of the land is used by the poojaries for pooja and maintenance of

the temples. Prima facie, Government land had been dedicated to the

temples by way of grants by the Government. Even if, the income

therefrom had alone been dedicated to the temples, it would still be a

religious trust or endowment and certainly not a private trust to which

the Indian Trusts Act would apply. Section 1 of the Indian Trusts Act

itself provides that nothing contained therein applies to public or private

religious or charitable endowments. The endowment here was certainly

not a private endowment since there is no case that the temples are

private. The endowment was for a religious purpose, the conduct of

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poojas in the temples and the maintenance of the temples. Therefore,

endowment was of public property for the benefit of public temples and

the poojaries were constituted the trustees. They were trustees imposed

with the obligation of spending the income from the properties, for the

poojas and maintenance of the temple. It was clearly a case of a public

religious endowment and by virtue of Section 1 of the Act, the Indian

Trusts Act would have no application. Learned counsel for the

respondents tried to argue that the application under Section 34 of the

Indian Trusts Act was maintainable but could not argue that these were

private trusts by reference to any relevant material. The lands were

government lands and the Government had dedicated the properties or

the income therefrom for the up-keep of public temples. By no stretch

of imagination, it can be held that it was a private trust coming within

the purview of the Indian Trusts Act. The District Judge has, therefore,

clearly acted without jurisdiction in entertaining the application under

Section 34 of the Indian Trusts Act. On this short ground, it has to be

held that the order passed by the District Judge in the application filed

under Section 34 of the Act granting permission to the claimants to sell

the properties is one without jurisdiction. The High Court was

completely in error in brushing aside this vital aspect while considering

whether the District Judge had acted within jurisdiction in entertaining

the application under Section 34 of the Indian Trusts Act.

9. H.R & C.E. Act applies to all Hindu Public Religious

Institutions and endowments. This is clear from Section 1(3) of that Act.

A religious endowment or endowment is defined in Section 6(17) of the

Act. It reads:-

"6(17) "religious endowment" or "endowment"

means all property belonging to or given or endowed

for the support of maths or temples, or given or

endowed for the performance of any service charity of

a public nature connected therewith or of any other

religious charity; and includes the institution

concerned and also the premises thereof, but does not

include gifts of property made as personal gifts to the

archaka, service holder or other employee of a

religious institution;

Explanation (1) Any inam granted to an archaka,

service holder or other employee of a religious

institution for the performance of any service or

charity in or connected with a religious institution

shall not be deemed to be a personal gift to the

archaka, service holder or employee but shall be

deemed to be a religious endowment.

Explanation (2) All property which belonged to, or

was given or endowed for the support of a religious

institution, or which was given or endowed for the

performance of any service or charity of a public

nature connected therewith or of any other religious

charity shall be deemed to be a "religious

endowment" or "endowment" within the meaning of

this definition, notwithstanding that, before or after

the date of the commencement of this Act, the

religious institution has ceased to exist or ceased to be

used as a place of religious worship or instruction or

the service or charity has ceased to be performed;

Provided that this Explanation shall not be

deemed to apply in respect of any property which

vested in any person before the 30th September 1951,

by the operation of the law of limitation."

Section 6(18) defines a "religious institution" as meaning a math, temple

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or specific endowment. Going by the definition it is clear that the

endowment in question is governed by the H.R & C.E. Act. Even if one

were to accept the case of the claimants that it was an Inam granted to an

archaka, the same would come within the definition of "religious

endowment" or "endowment" under the Act in view of Explanation (1)

thereto. Thus, it is clear that the endowment, gift or donation was

governed by the H.R & C.E. Act. It is in this context that we have to

appreciate the effect of the conduct of the claimants in getting

themselves appointed as trustees by moving under Section 63(b) of the

Act. Any alienation would, prima facie, be hit by Section 34 of the Act

and even if the case of the claimants were to be taken at face value, the

transaction would be hit by Section 41 of the Act. In either case, the

permission contemplated by the respective sections was a must and the

District Court lacked jurisdiction to give the permission for sale on an

application under Section 34 of the Indian Trusts Act, that too, without

issuing notice to and hearing the authorities under the H.R & C.E. Act.

10. The claimants had themselves applied under Section 63(b)

of the H.R & C.E. Act and had got themselves appointed as trustees.

They had themselves held out and accepted that H.R & C.E. Act applies

to the trust concerned. There is no case that the temples are not public

temples and are not under the control of the H.R & C.E. Department in

terms of H.R & C.E. Act. At best, the contention is only that the lands

were conveyed in trust not to the temples or to the deities, but to the

poojaries of the temples but with an obligation to utilize the income from

the properties for the poojas and the up-keep of the temples. This

certainly brought in the H.R & C.E. Act and the control of the authorities

thereunder, even in respect of the administration of the trust by the

claimants. The claimants were really estopped from raising a contention

that the H.R & C.E. Act had no application or that they did not need the

permission of the Commissioner under the Act for alienation either

under Section 34 or under Section 41 of the H.R & C.E. Act. The

claimants were disentitled to by-pass the provisions of the H.R & C.E.

Act and to secure an order from the District Judge without notice to the

H.R & C.E. Department by moving an application under Section 34 of

the Indian Trusts Act. The order thus obtained cannot bind the trust or

the properties, or the deities or the H.R & C.E. Department. Similarly,

no reliance can be placed on the so-called patta obtained by the

claimants from the Settlement Tahsildar without notice to the H.R &

C.E. Department.

11. It was contended that the purchase price had been deposited

in a Fixed Deposit and so long as there is no failure on the part of the

claimants to perform the services which they are liable to perform, there

is no necessity to interfere with the transaction of sale affected by them.

It is seen that going by the prevalent valuation and the market value as

reported, the lands were sold for a meager price or that the sale deeds

indicated only a meager price as consideration for the same with all that

it implies. Such a transaction is clearly seen to be not in good faith.

That the District Court proceeded to accept the value for which the

property was being sold even without making an enquiry into the market

value that the properties would have fetched at the relevant time while

giving the permission for the sale, is shocking. The jurisdiction under

Section 34 is advisory. The Court should have satisfied itself of the need

for sale and the propriety of the sale proposed. The mere pleas that it

was difficult to protect the property and that there was only meager

income therefrom were by themselves not grounds to direct or permit the

sale.

12. It is seen that there has been a clear attempt by the

claimants to over-reach the deities and the authorities under the H.R &

C.E. Act, while managing the properties dedicated for the purposes of

the temple, properties granted and managed by them in their capacities

as poojaries, for the maintenance of the temples. The attempt has to be

deprecated.

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13. In the circumstances, we allow this appeal and setting aside

the order of the High Court in Civil Revision Petition (NPD) No. 1684

of 2002 and that of the Principal District Judge, Dindigul in Trust

Original Petition No. 44 of 2001, dismiss Trust Original Petition No. 44

of 2001 filed by the claimants. Consequently, the permission granted for

the sale would also stand set aside and the sale effected by the claimants

pursuant to such permission will be deemed void and would confer no

right on the purchasers thereunder or on any one claiming under or

through them. It is also clarified that the revised order of the Settlement

Tahsildar under Act 30 of 1963 and the revised patta granted are not

binding on the deities or on the H.R & C.E. Department. The appellant

would be entitled to its costs both here and in the High Court.