LPA/2/1998 of THE COMMR HR & CE (ADMN DEPT) Vs K.NAGARAJA UDAYAR. on 28 November 2002

:JUDGMENT

(PRABHA SRIDEVAN,J.)

The dispute is whether certain properties belong to a Templecalled Dharmaraja Temple also known as Drowpathi Amman Temple in Swamimalai,Kumbakonam or to the respondent. One Narayanasamy Odayar had been performingthe charities for this temple from and out of the income of his agriculturallands. By a Will dated 06-03-1960, Narayanasamy Odayar directed that hisbrother-in-law, the respondent herein should continue to do the charities asthe trustee of the temple.

2. The Temple is bound to pay annual contribution to theGovernment in accordance with Section 92 of the Tamil Nadu Hindu Religious andCharitable Endowments Act, 1959 ("the Act" in short).

3. The appellant, who is the Commissioner, H.R. & C.E.

passed an order on 11-10-1980 rejecting the respondent's case that theproperties at Velakudi are not temple properties. This order was challengedby the respondent by filing a suit, O.S.No.23 of 1981 under Section 70 (2) ofthe Act, for cancelling or modifying the above order.

4. The Trial Court dismissed the suit as not maintainable on the ground that an order passed under Section 94(2) of the Act cannot be setaside by a suit under Section 70(2) of the Act and that Section 108 of the Actbars the filing of suits or legal proceedings except according to theprovisions of the Act. The learned Single Judge took a contrary view andtherefore, the Commissioner has filed the appeal.

5. The learned counsel for the appellant pointed out that the bar under Section 108 of the Act is very clear and therefore, the only remedyopen to the respondent was to file a revision before the Government underSection 114 of the Act. Reference was made to the decision of a learnedSingle Judge in W.P.No.5350 of 1973(D. Kandaswami & 5 Ors. Vs. TheCommissioner, H.R & C.E., & Anr.) dated 15-10-1973 which was dismissed on theground that the Government has the power under Section 114 of the Act torevise the order of the Commissioner, whether the same was passed by him inthe first instance or in revision under Section 21 of the Act.

6. The learned counsel for the respondent relied on Sri Vedagiri Lakshmi Narasimha Swami Temple Vs. Induru Pattabhirami Reddi (AIR1967 SC 781) to show that the bar of suits is not absolute and it is confinedto such disputes for which the Act provides a remedy. In Sri Vallaba GanesarDevasthanam Vs. Kailasa Mudaliar (1980 I MLJ 140) cited before us, a learnedJudge of this Court held that if the Deputy Commissioner in exercise of hispower could not have granted the relief of recovery of possession, the suitcannot be dismissed as not maintainable.

7. The only question then is the maintainability of the suit.

8. On facts it has been found that the property referred to

in the impugned order belongs to the respondent. In the Will there arespecific recitals regarding the lands in Layam Village to the effect that theyhave to be enjoyed by the widow of Narayanasamy Odayar, the testator for herlife time and thereafter, to vest in the suit-temple. But the recitalsregarding the property in Velakudi village are not clear. In order to holdthat the endowment is in favour of the temple there must be specific recitalsto the effect. Exs-A16 to A24 and A30 to A32 are kist receipts. The disputedproperties are in patta No.99. The respondent himself admits that only thelands in Survey No.91/2 in patta No.127 Velakudi Village, Papanasam Taluk ofan extent of 60 cents belongs to the Temple. He claims title to the landscovered by patta No.99. In the kist receipts for the lands covered in pattaNo.99 the name of the pattadar is either the respondent or minor Mohan, who isthe respondent's son. But for the property in Survey No.127, the pattadar isdescribed as Nagarajaodayar Trustee, Drowpathi Amman Temple or DharmarajaTemple by the Trustee Nagarajaodayar. In Ex-A22, which relates to fasli 1380as regards patta Nos.99, 126, 114 and 60, the pattadar was shown as Nagaraja Odayar and for patta No.1 27, as Drowpathi Amman Temple. The disputedproperties are in patta No.99. In Exs-B1 to B3, communications from theDepartment, the lands of an extent of 60 cents are shown as covered by pattaNo.127 and the nanja lands (15.34 acre) and punja lands (2.17 acre) are shownin patta No.99. So the factual finding of the learned Single Judge regardingownership are only reinforced by these documents.

9. In the impugned order, the Commissioner has declared that an extent of 0.25 acres of punja land and 15.34 acres of nanja land belong tothe temple. The respondent has disputed this. Therefore, the questionactually is whether the property is a religious endowment or not.

10. The Deputy Commissioner has the power to decide this question under Section 63(c) of the Act. Unless this decision was arrived at,the Commissioner could not have called upon the temple to pay contribution.The manner in which the Commissioner has decided this issue is not quitesatisfactory and even the learned Trial Judge has commented about it asfollows:

"Further when Ex-N3 recites that the Karnam's certificate are enclosedalongwith the report of D.W.1 after perusal of the files, D.W.1 concedes thatthe report of the Karnam is not on records. It can be said that D.W.1 had notconducted the enquiry properly with all seriousness. His report cannot besaid that the report is based on correct facts. Consequently, it can be saidthat the impugned order Ex-A2 based on Exs-B3 and 4 reports consequentlysuffer with the same defect."

11. The rules framed under Clause 3 and 5 of Section 162 of the Act provides for the manner in which enquiries should be held. Detailedprocedure is laid down regarding service of summons, recording of oral evidence and production of documents. Rule 20 provides for the applicabilityof the Code of Civil Procedure as far as practicable. The Commissioner on theother hand has decided the title to the properties summarily.

12. Section 108 of the Act bars the filing of suits or legalproceedings in respect of administration or management of a religiousinstitution or any other matter or disputes for determination or decidingwhich provision has been made in the Act.

13. The dispute whether the property is a religious endowment has been decided by the Collector while passing orders under Section 94(2) ofthe Act with regard to levy of contributions. If the Deputy Commissioner haddecided this dispute, the respondent would have had the appellate remedybefore the Commissioner and from that order, the suit under Section 70 of theAct would have been filed. In this case, the Commissioner himself has decidedthe issue and the respondent aggrieved by it, has filed the suit under Section70(2) of the Act, which deals with the filing of the appeal against any orderpassed by the Commissioner under those various sections stipulated there. Itis futile now to send the respondent to file an application under Section63(c) of the Act to decide this question when already the question has been decided by the authority, who would otherwise have been the AppellateAuthority.

14. The respondent cannot be left without a remedy. In thesecircumstances we hold that the suit is maintainable. But the relief soughtfor by the respondent is restricted only to that portion of the order of theCommissioner which includes the properties included in patta No.99 being anextent of 15.34 acres of wet lands and 2.17 acres of dry lands in Velakudivillage, Papanasam Taluk for the purpose of contribution.

15. The plaint also refers to the inclusion of the temple inthe list under Section 46(3) of the Act. That issue is not decided in thisappeal and it is open to the department to deal with that issue. It is alsomade clear that the cancellation of the impugned order will not affect theappellants' right to claim contribution in respect of 6 0 cents of wet land insurvey No.91/2 in patta No.127 Velakudi Village, Papanasam Taluk, since therespondent himself has referred to that property and has stated that exceptingthe above land the temple has no other property.

15. With these observations, the letters patent appeal isdismissed. No costs.

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