IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 27 -9-2011 CORAM THE HONOURABLE MR.JUSTICE N.KIRUBAKARAN W.P.Nos.5088 and 5231 of 2010 R.V.Subramania Chettiar Charities, Office at No.247/44, Ist Agraharam, Salem Town, rep. by its Trustees, 1.R.Badrinarayanan, S/o.R.G.Ramoji, Chairman Board of Trustees of R.V.Subramaniam Chettiar Charities, at No.39 B, Thammannan Street, Arisipalayam, Salem-9. 2.A.Chhennakrishnan, S/o.T.S.Aswatharaman, Present Secretary, R.V.Subramani Charities, at No.137/47, Bazar Street, Salem-1. 3.R.Ananthasubramaniam, S/o.Ramachandra Chettiar, Treasurer of the aforesaid Charity, at No.47/1, Peramanur, Salem-8. 4.M.Sarveswaran, S/o.Muthuraman, Trustee of the aforesaid Charity, at No.98/106, Mariamman Koil Street, Chevvapet, Salem-2. 5.K.Sundaresan, S/o.K.V.Kumarasamy, Trustee of the aforesaid Charity, 78/44, Mettu Arasamaram, Salem-1. .. Petitioners in W.P.Nos.5088 and W.P.No.5231/2010 Versus 1.The District Collector, Salem District, Salem. 2.The Revenue Divisional Officer, Salem District, Gandhi road, Salem-7. https://hcservices.ecourts.gov.in/hcservices/ 3.The Commissioner, Hindu Religious & Charitable Endowment Department, Nungambakkam High Road, Chennai-34. 4.The Joint Commissioner, H.R. & C.E. Department, Salem. 5.The Assistant Commissioner, H.R. & C.E. Department, Salem. 6.The Assistant Executive Engineer(O& M) Tamilnadu Electricity Board, Salem. 7.The Assistant Commissioner, Commercial tax Department, Salem. 8.Ashik Hussain S/o.Sandhu Mohammed, Present Lessee of the aforesaid Charity, No.30/11A, S.M.Layour, Asthampatti, Salem-7. 9.A.Radhakrishnan ... Respondents in W.P.No.5088/2010 (R9 impleaded as per order dated 16.4.2010 in M.P.No.3 & 4 of 2010) in W.P.5088 of 2010) 1.The Commissioner, H.R. & C.E. (Admn) Department Uthamar Gandhi Road, Nungambakkam, Chennai-34. 2.The Joint Commissioner, H.R. & C.E.(Admn) Department, Kottaimariammal Koil, Salem-1. 3.The Assistant Commissioner/Executive Officer, H.R. & C.E., Arulmigu Sugavaneswarar Temple, Salem-1. 4.Sarala Gunasekaran 5.V.Manivannan 6.Ashik Hussain 7.A.Radhakrishnan ... Respondents in W.P.No.5231/2010 (R7 impleaded as per order dated 31.3.2010 M.P.No.2/2010) in W.P.5231/2010) W.P.No.5088 of 2010 This writ petition is filed under Article 226 of the Constitution of India praying for the Writ of Certiorari to call for the records relating to the impugned order passed by the Revenue Divisional https://hcservices.ecourts.gov.in/hcservices/ Officer, Salem issued in Na.Ka.No.3232/2009/B2 dated 4.3.2010 and to quash the same as illegal. W.P.No.5231 of 2010 This writ petition is filed under Article 226 of the Constitution of India praying for the Writ of Certiorari to call for the records relating to the impugned order passed by the Commissioner H.R. & C.E. (Admn) Department, Chennai issued in Na.Ka.No.13665/2010 A2 dated 8.3.2010 and to quash the same as illegal. For Petitioners :Mr.W.C.Thiruvengadam For Respondents :Mr.V.Manoharan Govt. Advocate RR 1,2,6 and 7 in W.P.No.5088 /2010 Mr.T.Chandrasekar for RR3 to 5 in W.P.5088 of 2010 for RR1 to R3 in W.P.5231 of 2010 R9 in W.P.5088 of 2010 and R7 R-9,Mr.A.Radhakrishnan party in person ORDER The petitioners who claim to be the trustees of the Arulmighu R.V.Subramania Chettiar Charities which has been established for the performance of Utchikala Kattalai, Charitable endowment attached to Arulmighu Sugaveneswarar Temple, Salem, have challenged the order issued by the Revenue Divisional Officer and the order of appointment of a fit person to the endowment. 2. According to the petitioners the Endowment called as "R.V.Subramaniya Chettiar Charitable Trust, Salem" was founded by R.V.Subramania Chettiar by a settlement trust deed dated 27.6.1997 to perform "Uchikala Kattalai" at Arulmighu Sukavenswarar Temple, Salem. Consequently an amendment was made by another settlement in the year 1925, which regulated the trusteeship for the performance of the Charity. The property which was given is a land measuring about 2147 sq.ft. and out of the income derived from the above said land, Uchikala Kattalai is required to be performed every day. 3. A scheme formulated in O.A.No.55 of 1938 dated 3.12.1938, was framed for the management of the Uchikala Kattalai. According to the scheme, the then present trustees and three non hereditary trustees were appointed so far and HR & CE Department has not appointed non-hereditary trustees and subsequent nominees of the hereditary trustees are continuing as trustees and performing Uchikala Kattalai. https://hcservices.ecourts.gov.in/hcservices/ 4. A.P.Venugopal, a person in management filed O.A.No.20 of 2001 before the 4th respondent, Joint Commissioner, for modification of the scheme and the same was dismissed by the Joint Commissioner on 4.8.2009. Against the said dismissal, an appeal was filed before the third respondent Commissioner, who set aside the order and remanded the matter to the Joint Commissioner for fresh consideration . 5. According to the petitioners, the Trust Board is being constituted from time to time and the petitioners are present trustees. The property consisted of small shops which were very old and in dilapidated condition was not yielding any income. Hence trust board, passed a resolution to lease out the property to the 8th respondent, who agreed to take the property on lease with permission to demolish the existing shops and construct new superstructures and agreed to hand over the building after the expiry of the lease period. The said agreement is dated 5.4.2009 and by the lease, the specific endowment is benefited. There is no necessity to obtain permission to lease out the property as trust board is being constituted and administered in accordance with Original settlement deed of the year 1922. It is further submitted that the lessee demolished the old building and put up ground + two floors and he is in possession of the same by paying Rs.20,000/- as per the rental agreement dated 5.4.2009. 6. When things stand so, the 9th respondent filed W.P.No.22043 of 1999 regarding affairs of the administration of the trust and by an order dated 19.9.2009 the Revenue Official and HR & CE officials were directed to take appropriate action. Pursuant to the order the Revenue Divisional Official passed the impugned order, which is challenged in W.P.No.5088 of 2010. By the said order, the RDO directed to remove the encroachment in the property and to take possession by the Assistant Commissioner/ Executive Officer of the Temple. The Commissioner HR & CE appointed fit a person on the basis of the report given by the Revenue Divisional Officer, Salem for the specific endowment under Section 47(1) of the Act. The said order is challenged in W.P.No.5231 of 2010. 7. Mr.W.C.Thiruvengadam, learned counsel appearing for the petitioners submitted the following: a) The property was given to a specific endowment defined under Section 2(19) of the HR & CE Act. The trustees have been nominated by the original founder and subsequently they have been recognised as the trustees of the trust in question. The Trust Board is maintaining accounts up to date and the accounts are audited by the department . https://hcservices.ecourts.gov.in/hcservices/ b) As the Trust Board found very difficult to carry out the Uchikala Kattalai due to poor income from the property, it decided to lease out the said property to augment the sources of income for the specific endowment and to continue to perform Uchikala Kattalai. The 8th respondent agreed to take up the property on lease and after getting permission to demolish the old building, constructed a new building by spending nearly Rs. 1 crore. c) At the instance of the 9th respondent, an order dated 19.11.2009 was passed by this Court in W.P.No.22043 of 2009 directing the District Collector and RDO and the HR & CE authorities to conduct an enquiry with regard to alleged illegal construction put up in the land belonging to specific endowment attached to Sugavaneswarar temple. The Revenue Divisional Officer, without any jurisdiction, by the impugned order dated 4.3.2010, directed removal of the encroachment and take possession. d) When the trust board is functioning effectively and discharging its duties, the Commissioner, HR & CE, without notice appointed fit persons to the administration of the specific endowment under Section 47(1) of the Act. e) The provision of the scheme would continue to operate as the existing scheme was not modified or amended under Section 64 (5) of the Act. f) When an application is pending before the Joint Commissioner in O.A.No.20 of 2011 to modify the existing scheme framed in O.A.No.55 of 1938 dated 3.12.1938, Section 47(1) cannot be invoked to appoint a fit person. 8. On the other hand, Mr.T.Chandrasekaran, learned Special Government Pleader submitted the following submissions. (i) The writ petitioners are not competent person to challenge the impugned order as they are neither appointed by the department nor appointed under the provisions of the scheme. (ii) The petitioners have not proved that they are descendants of the trustees who were in the management at the time of framing of the scheme and they have not obtained any orders under Section 63(b) of the HR & CE Act. (iii) Petitioners are self declared hereditary trustees and Uchikala Kattalai was not performed ; appropriate accounts were not maintained. (iv) A newly formed trust in the name of R.V.Subramania Chettiar Charity was registered in Sub Registrar, Salem by one A.K.Senthurrajan, Managing Trustee and two others. The planning permission, Electricity connection were obtained by A.K. Senthurrajan in the name of the Trust in the capacity of Managing Trustees; The https://hcservices.ecourts.gov.in/hcservices/ lease agreement was entered into between the writ petitioners and the respondents 4 to 6 without any permission from the HR & CE Authorities. (v) The writ petitioners, who approached the HR & CE for modification of the scheme, did not inform about the demolition of old buildings and construction of a new commercial complex and the same is not in the interest of the trust and it is only for the personal gains. (vi) After affording of opportunities to the parties concerned, pursuant to the order passed by this Court, the Revenue Divisional Officer issued directions which cannot be challenged. (vii) The Revenue Divisional Officer found that there are encroachment in the property and without approval, demolition was carried out and new a construction was put up. (viii) The 5th respondent Assistant Commissioner conducted an enquiry regarding administration of the institution and the petitioners did not appear before him. A detail report was sent by the 5th respondent to the 4th respondent who in turn sent a report to the 3rd respondent and passed orders to appoint a fit person. (ix) As the trust is without any legal person to represent, a proper person is required to be appointed to manage the trust under Section 47(1) (c) of the Act, based on the enquiry report of the Assistant Commissioner and Joint Commissioner. (x) There is no certainty in the administration of the trust, and application for modification of the scheme is pending. Therefore, the Commissioner appointed a fit person as a temporary measure. 9) Mr.A.Radhakrishnan, the 9th respondent who appeared in person submitted that the Kattalai is not performed and that some third parties encroached upon the property by forged documents and demolished the old building and put up new constructions illegally without any valid permission and that; A lease deed is fabricated for the purpose of this case and that the encroacher put up 30 shops and he is collecting money; and that the document regarding endowments were destroyed and in this regard he gave complaint dated 10.11.2009 which was registered in CSR.No.70 of 2009 with Salem Police and that Rs.50,00,000/- was due as arrears of rent to the endowments. 10. Heard the parties and perused the records. It is seen that the R.V.Subramania Chettiyar founded the religious institution for the purpose of Uchikala Kattalai at Suganeswarar Temple, Salem which is a specific endowment as per the Section 2(19) of the HR & CE Act. The property endowed by Subramania Chettiyar is a land measuring about 2147 sq.ft. https://hcservices.ecourts.gov.in/hcservices/ 11. A perusal of the settlement deed dated 27.6.1907 and the subsequent settlement deed of 1922 would show that Uchikala Kattalai has to be performed by the Trustees. Subsequently a scheme was framed in O.A.No.55 of 1938 on 3.12.1938 by which the administration of Uchikala Kattalai at Sukavenewarar Swami temple, Salem Town was vested with the then present trustees and three non hereditary trustees. Though it is claimed by the petitioners that they are the trustees of the charities, no document has been produced to show that they are descendants of original trustees or validly appointed trustees or their appointments have been approved by the HR & CE authorities as per Section 49 of the Tamilnadu Hindu Religious and Charitable Endowment Act 1959. In the absence of any approval or appointment by the Assistant Commissioner under Section 49 of the Act, the petitioners cannot be called as trustees. Therefore, the petitioners cannot claim themselves to be the trustees of the charity and they have no right to represent the charity and file the writ petition. 12. When the endowment comes under the definition of Section 2 (19) of the Act it is appropriate for the Trust to take permission/approval under Section 34 of the Act for doing any act with regard to the property from the authorities under the Act. In this regard, it is admitted in the affidavit filed by the petitioners themselves that the property was not yielding income to the charity in question and therefore, the Trust Board, finding difficulty to perform Uchikala Kattalai, passed a resolution to lease out its properties to the 8th respondent. When the property is sought to be leased out, it is mandatory for the Board to get permission from HR & CE authorities. Admittedly the Board did not get approval from the authority for leasing out the property to the 8th respondent and therefore, the alleged lease itself is not valid. That apart a perusal of the lease deed would show that the stamp paper is dated 25.5.2009, whereas the alleged lease agreement is said to have been executed on 5.4.2009. Therefore, it is very clear that the lease deed itself fabricated to suit the convenience of the petitioners as well as the 8th respondent . The petitioners contend that O.A.No. 20 of 2011 filed by them to modify the scheme of the endowment is pending before the Joint Commissioner HR & CE. When that is the admitted position the petitioners should have obtained permission from the HR & CE Authorities for leasing out the property. 13. Merely because the lease is allegedly beneficial for the specific endowment it cannot be contended that the lease could be entered without approval/permission from the HR & CE Authority. It is futile on the part of the petitioner to contend that the Trust Board inherited power to regulate the institution and manage the property. As stated above to lease out the property, as per the Act, permission is required under Section 34 of the HR & CE Act. The Hon’ble Apex https://hcservices.ecourts.gov.in/hcservices/ Court in Chenchurarmi Reddy vs. Government of A.P. reported in AIR 1986 S.C. 1158, deprecated the sale of charity/endowment's land by a private negotiation. In Basha Sahip vs. Valikandapuram Village Kasi Viswanathaswami Koill reported in (2003) 1 MLJ 563, it has been held that alienation or sell of the property held by the Religious endowment without sanction of Commissioner will not be valid. Though the petitioner contended that the property was leased out for a period less than five years, a perusal of the lease deed dated 5.2.2009 would show that the lease has been executed for the period of four years 11 months. It is evident that lease deed was executed in such a way to see that the permission is not required under Section 34 of the HR & CE Act. Assuming that no permission is required for the lease which does not exceed 5 years, the nature of lease given requires appropriate permission/sanction u/s 34. The lessesee, after taking the property, demolished the old building and put up a new construction at the cost of Rs.1 crore and let out to third parties. Therefore, the lease cannot be termed as lease simplicitor. In the name of lease, an attempt has been made to create third party interest without permission from statutory authorities. Therefore, the said lease is not valid. 14. It has been admitted by the petitioner themselves that the 8th respondent took the property on lease with a permission to demolish the existing old building and to construct a new superstructure and agreed to hand over the building after the expiry of lease period and he also entered into an agreement dated 5.4.2009. It is also admitted that the tenant already constructed ground + two floors and he is in possession of the same. No document has been produced for having obtained approved plan for demolition as well as new construction from the local body. The petitioners claim to be the trustees. However, it is deposed by A.P.Venugopal and A.P.Sudarshan elsewhere trustees stating that no permission was obtained from the HR & CE and they do not know who applied for electricity service connection . The first writ petitioner Badrinarayanan in his evidence before revenue authorities stated that for demolition and reconstruction, though they applied, they have not obtained approval. Moreover a new building cannot be constructed without approved plan from the authorities. Therefore, the new construction put up by the lessee is illegal. In the absence of approval from the HR & CE to lease out the property, the alleged lessee is only an encroacher, who made illegal constructions and also sub let the property to various third parties and is collecting money by way of rent. 15. Based on the directions issued by this Court in W.P.No.5088 of 2010 dated 19.11.2009 regarding the illegal construction put up in the property, the Revenue Divisional Officer, conducted enquiry after https://hcservices.ecourts.gov.in/hcservices/ giving opportunity to all the parties. A perusal of the impugned order would show that a Joint inspection was made by RDO and DDO and it was found that three storied building was constructed . 16. It is clearly found that the building has been constructed without approval and sanction from the local authorities and HR & CE Authorities . The impugned order has been passed to remove the encroachment and to disconnect the electricity service connection. Notices were issued calling for objections and paper publications were also issued regarding the enquiry by the RDO and no objection was received. Therefore, it cannot be said that there was violation of principles of natural justice, while passing the impugned order. Though it is contended by the petitioner that the Revenue Authorities have got no jurisdiction, the Revenue Authorities conducted enquiry based on the orders passed by this Court in W.P.No.22043 of 2009 on 19.11.2009. Since the Revenue authority conducted enquiry regarding obtaining electricity service connection and to the license granted by the Commercial Tax Department, the RDO rightly passed the impugned order directing the HR & CE authorities to take possession of the property and to remove the encroacher. If the RDO straight away directed the lessee to hand over the possession of the property , it could be contended that there is no jurisdiction for the revenue authorities to pass such order whereas in this case RDO gave only direction to the Assistant Commissioner to remove the encroacher and to take possession of the property and therefore, it cannot be said that the order is bad for want of jurisdiction. Moreover, the impugned order is only passed in the interests of the trust to avoid mis-management of the property. Hence the impugned order dated 4.3.2010 cannot be interfered with . Those who violated the provisions of law and acted on their own in leasing out trust property cannot maintain the writ petitions. 17. As far as appointment of a fit person is concerned, as stated above, the petitioners are neither validly appointed as trustees nor approved by the HR & CE authorities . It is seen that the property was leased out to a third party without approval from the HR & CE Department . The alleged lessee also, without proper approval from HR & CE as well as local authorities, demolished the old building and constructed the new building and also leased out the same to third parties and is collecting money by way of rent . Absence of approval from the HR & CE authorities to lease out the property and absence of approved plan for demolition and reconstruction of the building belonging to the temple, would only show that the property of the Religious Institution is being mismanaged and loss is caused to it. The Assistant Commissioner HR & CE conducted enquiry and sent a detail report to the Joint Commissioner, who also sent a report dated 7.12.2009 to the https://hcservices.ecourts.gov.in/hcservices/ Commissioner. Based on the Joint Commissioner’s report with regard to the mismanagement of the trust property and non-obtaining approval for demolition and reconstruction of the building and also considering the lack of administration and uncertainty in the Trust, the Commissioner, HR & CE rightly passed the impugned order invoking Section 41 ( c ) of the Act to appoint a fit person as a temporary measure. Therefore, the said order is in the interest of the endowment and the same cannot be interfered with. Though it is contended that no valid reason has been given for appointment of a fit person, a perusal of the impugned order would reflect above said valid reasons for appointment of a fit person. Therefore, the said order dated 8.3.2010 cannot be interfered with. 18. In fine this court holds that: (1) The petitioners have no locus standi to approach this Court as they are neither validly appointed trustees nor they are approved as trustees by the HR & CE Authorities u/s 49 of the Act or they are descendants of original trustees. (2) In the absence of permission/approval from the HR & CE authorities u/s. 34 of the Act to lease out the property of the religious institution defined u/s 2(19) of the Act, the alleged lease dated 5.2.2009 is not valid. (3) As admitted by the petitioners themselves, there was no approved plan for demolition and construction of the property from the local body, the new construction put up by the 8th respondent is illegal. (4) The petitioners who acted contrary to the provisions of the TN HR & CE Act and mismanaged the property of the endowment, cannot be granted reliefs. (5) As per order of this Court in W.P.No.22043/2009 dated 19.11.2009, proper enquiry was conducted by the revenue authorities after notice and paper publication and an order to remove encroachment was passed validly. The order is only in the interest of the endowment. (6) As there was mismanagement of the property of the endowment and certainty in the administration, a fit person was rightly appointed u/s 4( c) of the Act as an interim measure. 19. For the reasons stated above, the writ petitions are not maintainable and are dismissed. No costs. Consequently connected M.Ps are also dismissed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ vk To 1.The District Collector, Salem District, Salem. 2.The Revenue Divisional Officer, Salem District, Gandhi road, Salem-7. 3.The Commissioner, Hindu Religious & Charitable Endowment Department, Nungambakkam High Road, Chennai-34. 4.The Joint Commissioner, H.R. & C.E. Department, Salem. 5.The Assistant Commissioner, H.R. & C.E. Department, Salem. 6.The Assistant Executive Engineer(O& M) Tamilnadu Electricity Board, Salem. 7.The Assistant Commissioner, Commercial tax Department, Salem. 8.The Joint Commissioner, HR and CE(Admn) Department, Kotai Mariammal Koil, Salem-1, 9.The Assistant Commissioner/Executive Officer, HR & CE, Arulmigu Sugavaneswarar Temple, Salem - 1 2 CCs to Mr.W.C.thiruvengadam,Advocate, SR. 60182 and 60183 3 ccs To The Government Pleader, SR.60424, 60299, 60298 W.P.Nos.5088 and 5231 of 2010 JRG(CO) SRA(19/10/2011) https://hcservices.ecourts.gov.in/hcservices/