IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 22.09.2010 CORAM: THE HONOURABLE Ms. JUSTICE K.B.K.VASUKI W.P.No.395 of 2010 & MP.No.2 of 2010 R.Madhavan .. Petitioner Vs. The Commissioner, Hindu Religious and Charitable Endowments(Admn.) Dept., Nungambakkam High Road, Chennai 34. .. Respondent Prayer : Writ Petition is filed under Article 226 of the Constitution of India praying for issuance of Writ of Certiorarified Mandamus in the nature of a writ, calling for the records of the respondent dated 07.10.2008 passed in Mu.Mu.76967 of 2007, to quash the same and to direct the respondent to hold an enquiry and to accord sanction to the petitioner for selling the lands of an extent of 1.26 acres in S.No.89/3, Puthur Village, Tiruchirapalli Taluk and District in compliance of Section 34 of the T.N. Hindu Religious and Charitable Endowments Act, 1959, as amended. For Petitioner : M/s.M.Rajaraman. For Respondent : Mr.T.Chandrasekaran, Spl. G.P. (HR&CE). ORDER
The writ petition is filed against the order of the respondent dated 07.10.2008 made in Mu.Mu.76967 of 2007 to quash the same to direct the respondent to hold an enquiry and to accord sanction for selling the lands measuring 1.26 acres in Survey No.89/3 Puthur Village, Trichy as per Section 34 of Tamil Nadu Hindu Religious and Charitable Endowments Act.
2. The property in question as described above admittedly belongs to S.R.S.K.Srinivasa Iyengar family trust represented by the petitioner as its Managing Trustee the properties are dedicated to the trust by registered trust deed executed on 25.10.1945 and registered on 21.02.1946. The trust was created by one of the leading lawyer of Trichy with awed object of performing various religious and charitable activities. The reading of copy of the trust deed enclosed at pages 4 to 19 of the typed set of papers filed by the petitioner herein reveals that the same contains various clauses regarding declaration of trust, trust property, duration of trust, purpose of the trust, beneficiaries of the trust, trusteeship and management, alienations, accountability and description of the trust property, as set out in the trust deed, though the petitioner trust is public trust coming under the administrative control of HR&CE the actual management of the trust is with the descendants of the founder trustee in the capacity of its trustees and the petitioner herein is appointed as the managing trustee by the Joint Commissioner of HR&CE.
3. While so, during 1967 suo-moto proceedings are initiated by Deputy Commissioner of HR&CE and the Deputy Commissioner has by an order dated 03.09.1969 set apart few properties for religious and charitable purposes one of such properties is the property measuring 1.26 acres in S.No.89/3 in Puthur Village, Trichy District. It is not in dispute that the same has been leased out originally to the parents of Tmt.T.Pushpa who is the present tenant therein and the parents of Tmt.T.Puspha and thereafter Tmt.T.Pushpa have been in possession of the same as cultivating tenants for annual rent of 24= kalams of paddy. Subsequently, tenant stopped paying rent and the trust is hence deprived of any income from the property in question resulting in proceedings before the revenue court for fixation of rent and for recovery of rental arrears. However, the tenant expressed his willingness to purchase the property for the sale consideration of Rs.20,00,000/- which is the prevailing market value of the property in question. The petitioner trust having found it impossible to collect rent from the tenant and having found other properties in and around the trust property being converted into house sites and sold to various persons, intended to sell the property to get lumpsum amount by way of sale consideration and in the event of the same being invested in any Nationalised Bank likely to get considerable income by way of interest, so that the petitioner will be able to perform the various religious and charitable activities for which the trust is created in the most convenient manner. Keeping that in mind, the petitioner trust represented by its Managing Trustee and co-trustee filed in application u/s.34 of the Hindu Religious and Charitable Endowment Act (herein after referred to as “Act”), before the Commissioner of HR&CE seeking permission to sell the property for the amount as fixed by the Commissioner or in the alternative to give no objection certificate to file trust O.P. before Trichy District Court for seeking permission for alienation of the property. The petition is filed by arraying the main tenant and her husband as the respondents 1 and 2 and it is filed by setting out in detail the nature and extent of the property, the activities being carried on in the same, the possession and occupation carried on by the tenant, the annual rented value fixed from the tenancy, the proceedings between the tenant and the trust, circumstances under which and the benefits for which the petitioner intend to alienate the property etc.,
4. The petition was entertained and was disposed of by the respondent/Commissioner of HR&CE in his proceedings in Mu.Mu.76967/07 R3 dated 07.10.2008 in and under which the permission sought for sale of the property as sought for by the petitioner trust is rejected on two grounds. Firstly, the sanction for lease for longer period and for sale of properties belonging to temple should be avoided. Secondly, there is no power of alienation of the properties by the managing trustee as per the will executed by the founder trustee. The correctness of such order is challenged in this writ petition.
5. According to the learned counsel for the petitioner, the order of the respondent is unfair, arbitrary and suffers from total non application of mind.
6. It is argued that both the grounds on which the permission to sell the properties belonging to the trust rejected are not available in the present case and the property sought to be sold belongs not to the temple and to the trust and the restriction referred to in the order is applicable only to the temple properties and not to the properties belonging to the trust and there is no total bar against the alienation in the trust deed and the power of alienation is given to the descendants of the trustee for necessity and for the purposes as stated in the trust deed and after giving notice to all the parties, with the permission of the District Court, Trichy, and what is restrained in the trust deed is the right to attach or sell the properties or the income for any debt or any kind incurred by the descendants.
7. Per contra, the learned standing counsel for the HR&CE department would try to justify the correctness of the impugned order by relying upon the G.O.Ms.No.25, dated 29.01.2008.
8. Heard the rival submissions made on both sides.
9. The core issue involved in the present case is as to whether the property in question belongs to the temple or trust and as to whether there is any total bar against the alienation or the property in question. In order to dissolve the issue, the only document to be looked into is the trust deed executed by Tr.K.Srinivasa Iyengar, Advocate on 25.10.1945 and registered as document No.660/1946 enclosed at pages 1 to 19 of the typed set of papers. The description of the property appended to the trust deed reveals the properties which are the properties of the trust deed are described as A and B Schedule properties. The property in question situated at Puthur Village, Trichy District is forming part of B schedule property acquired by the founder trustee from and out of his income derived from his inherited properties and from his individual earnings. The reading of the trust deed reveals that it contains various clauses which are 1) declaration of trust, 2) trust property, 3) duration of trust 4) purpose of the trust 5) beneficiaries of the trust, 6) trusteeship and management, 7) alienations and 8) accountability and description of the trust property, While the recitals contained in clauses 1, 2 and 4 will answer the first ground the recitals contained in clause 7 will answer the grounds 1 and 2 based on which the permission to sell the property is rejected. The reading of the clauses declaration of trust property, purpose and beneficiaries reveal the name of the trust is Sri Rangaraya Rama Srinivasa Krishna (SRSK trust) and the properties which are the subject matter of the trust shall form part of the assets of the trust and be called SRSK Srinvasa iyenger family trust estate and the objects of the trust are propaganda of Sri Vaishnavisam, to help the poor and distress to impart religious education and advancement of Sri Vaishnava community in general and poorvasika Sri Vaishnava community in particular, feeding of the poor and pilgrims at times of festival places and renovation of temples and deities etc. The beneficiaries of the trust and Sri Vaishnava religion in general and poorvassika vaishnava community in particular and the descendants of the founder trustee.
10. Thus as per the specific recitals of the trust the property does not at all belong to the temple. As a matter of fact, no temple is even mentioned as one of the beneficiaries of the trust, it is not in dispute that G.O.Ms.No.25 dated 29.01.2008 refers to the property belonging to the temple and the restriction imposed therein are intended to be applicable only to temple property. The property belonging to the trust are totally different and is outside the purview of the G.O. referred to and the restriction contained therein cannot be hence applied to the petition mentioned property as such the first ground on which the permission to sell the properties rejected is inapplicable to the present case.
11. The next relevant clause to be looked into is under the caption alienation. The reading of which reveals that there is no total prohibition against alienation, what is restrained in the document is the right to attach or sell the properties or the income derived from the same for any debt incurred by any of the descendants of the founder trustee however the same clause clearly states that the descendants is vested with the right to sell the property for necessary or beneficiary purpose as stated in the petition and to first seek permission after giving notice to all the parties interested and to sell after due permission from the appropriate court of law. As such the rejection of the petitioner’s request to grant permission to sell the property on the other ground that there is no power of alienation is also unfounded. Thus both the grounds on which the petitioner’s request rejected by the respondent are now held to be legally and factually unsustainable and the impugned order of the respondent is hence liable to be set aside and the matter is to be remitted back to the authority concerned for fresh consideration in accordance with law and on merits in the light of the reasons set out in the petition seeking permission.
12.In the result, the impugned order of the respondent dated 7.10.2008 in Mu.Mu.No.76967 of 2007 is hereby quashed and the matter is remitted back to the respondent for fresh consideration and the respondent is directed to consider the petitioner’s application seeking permission for sale as per the procedure laid down under section 34 of H.R & C.E. Act and pass appropriate orders on merits within a period of three months from the date of receipt of copy of this order.
13. The writ petition is accordingly ordered. No costs. Consequently, connected Miscellaneous Petition is closed.
22.09.2010
Internet : Yes/No
Index : Yes/No.
tsh
To
The Commissioner,
Hindu Religious and Charitable
Endowments(Admn.) Dept.,
Nungambakkam High Road, Chennai 34.
K.B.K. VASUKI, J.
tsh
W.P.No.395 of 2010
22.09.2010