T.R. Venkatarama Iyer vs The Government of Madras, Revenue Department and Another

P. Ramakrishnan, J.—The petitioner at the period we are concerned with, was the trustees of a Dwadasi Samaradhanai Kattalai. The

Kattalai or endowment came into existence in pursuance of a will executed by one Sundaram Iyer on 2nd June, 1922. Sundaram Iyer bequeathed

a small house property in Madam Street, Kumbakonam, to the aforesaid Kattalai, with a direction that out of the income from the house by way of

rent, two Brahmins should be fed every Dwadasi day. There appears to have been a long and involved history of transactions over this house

property. Broadly stated, the property after changing hands was transferred ultimately to the wife of the petitioner by the assignment of a

usufructuary mortgage. The petitioner has set out in his affidavit an elaborate explanation in justification of the transactions. He has also asserted

that notwithstanding the transactions, the object of the trust was being fulfilled. It is not necessary to go into these representations made on behalf

of the petitioner, because of a short preliminary ground on which this writ petition can be disposed of.

The first respondent in the writ petition is the Government of Madras, Revenue Department, and the second respondent is the Commissioner,

Hindu Religious and Charitable Endowments (Administration) Department. By Section 3(1) of the Madras Hindu Religious and Charitable

Endowments Act (XXII of 1959) (hereinafter called the Act) power is given to extend all or any of the provisions of the Act to any Hindu public

charitable endowment, if there is reason to believe that the endowment is being mismanaged. ""Charitable endowment"" has been given a wide

connotation by the definition u/s 6(5) of the Act, so as to include all property given or endowed for the benefit of the Hindu community or any

section thereof, for the support or maintenance of objects of utility to the community or section, such as rest-houses, choultries, patasalas, schools

and colleges, houses for feeding the poor, medical relief and public health or other objects of a like nature. As against the provision in Section 3(1)

of the Act which allows all or any of the provisions of the Act to be extended only in particular contingencies to Hindu public charitable

endowments, Section 1(3) of the Act extends the provisions of the Act, automatically to all Hindu public religious institutions and endowments.

Religious endowments is defined in Section 6(17) of the Act to mean all property endowed for the support of maths or temples, or given or

endowed for the performance of any service or charity of a public nature connected with maths or temples or of any other religious charity.

Religious charity is defined in Section 6(16) of the Act to mean 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 Department apparently took the view that the Dwadasi Samaradhanai Kattalai in this case is not a religious endowment within the meaning

of the definition in Section 6(17) but was a charitable endowment as defined in Section 6(16), and on the allegation that the trustee was

mismanaging the funds, the Commissioner of Hindu Religious and Charitable Endowment Board authorised the Inspector, Hindu Religious and

Charitable Endowment, Kumbakonam to conduct the prescribed statutory enquiry u/s 3(2) of the Act against the trustee. The Inspector sent a

report to the Hindu Religious and Charitable Endowment Board on 10th November, 1962, in which he reported that the trustee had mismanaged

the trust funds, and recommended the extension of all the provisions of the Act. Thereafter the Government issued a notification u/s 3 of the Act in

Memorandum No. 44601 U2/62-10 dated 23rd April, 1963 calling upon the trustee to make his representations contra. The trustee sent his

representations; and also asked for a copy of the report of the Assistant Commissioner on which the entire charge was based. His request was

rejected by a memorandum of the Government dated 29th August, 1963, and by G.O.Ms. No. 1970 dated 28th July, 1964 the Government

passed an order u/s 3(4) of the Act extending the provisions of the Act to the trust in question. The petitioner has filed this writ petition under

Article 226 of the Constitution for the issue of a writ of certiorari quashing G.O.Ms. No. 1970 dated 28th July, 1964 passed u/s 3(4) of the Act.

The petitioner''s main contention in the affidavit, is that he had not been given a proper opportunity to put forward his objections to the extension

of the provisions of the Act to the trust in question, and that therefore the requirements of natural justice had not been properly complied with. In

particular he made the averment that a full and detailed enquiry is obligatory under the statute and this has not been conducted in this case. He

referred to Section 3(2) of the Act which is in the following terms:

3(2) The Commissioner or the officer authorised by him under Sub-section (1) shall, while making an inquiry under the sub-section, have all the

powers of a civil Court under the Code of Civil Procedure, (V of 1908), for the purpose of enforcing the attendance of witnesses and compelling

the production of books, accounts, documents, securities, cash and other properties belonging to or in the custody of such chartable endowments

and shall follow the procedure applicable under the said Code in regard to recording of evidence and hearing of parties.

According to the learned Counsel for the petitioner, the officer authorised to hold the enquiry issued to. the petitioner a formal printed notice (the

original of which was produced in the Court) stating that he should be present at 2 P.M. on 23rd October, 1962 in the office of the Inspector of

Hindu Religious and Charitable Endowment Board for the prescribed statutory enquiry. The affidavit of the petitioner, states that the petitioner

accordingly went to the Inspector''s Office (which is also his residence) on 23rd October, 1962 and waited from 10 O''clock to 5-30 P.M. But

the Inspector was not present and the petitioner was not heard at all. Thereafter the petitioner sent a communication immediately to the authorities

of the Hindu Religious and Charitable Endowment Board explaining the fact of his having waited at the residence of the Inspector and asking for a

copy of the petition containing allegations against him. But there was no reply to the communication.

The learned Government Pleader for the Department however submitted that the Inspector has issued a notice earlier on 5th March, 1962,

directing the petitioner to meet him on 13th March, 1962, with the accounts. The petitioner appears to have submitted a typed statement in English

on 13th March, 1962 and also sent copies of certain documents on 30th July, 1962, signing them as true copies. But there is nothing in the file of

the department to show as to what happened on the date which the Inspector had fixed for holding detailed enquiry according to the notice

produced by the petitioner namely, 23rd October, 1962, at 2 P.M. While the report of the Inspector to the Commissioner after making the

enquiry, contains a gist of the documents filed by the petitioner, and also a gist of the transactions effected by him which would go to support the

charge of mismanagement of the trust, it makes no reference at all as to what happened on 23rd October, 1962, when an enquiry was proposed to

be held in conformity with the statute. It does not show that the Inspector was waiting at 2 P.M. for the arrival of the petitioner, and whether the

petitioner arrived or not. In fact there is no denial in the counter-affidavit of the department of the petitioner''s claim that he went and waited at the

residence of the Inspector from 10 O''clock till 5-30 P.M. on 23rd October, 1962.

The learned Government Pleader submits that apart from the question of the holding or the non-holding of the enquiry on 23rd October, 1962,

there was sufficient material on record including the documents filed by the petitioner, on which the Government were entitled to come to the

conclusion that the petitioner had mismanaged the trust and its property. But that will not be a ground for excusing the failure to hold the statutory

enquiry prescribed u/s 3(2) of the Act. One has to remember that there are many Hindu Charitable Endowments in this country like the Dwadasi

Samaradhanai Kattalai in this case and the persons in management have been managing the properties allotted to the endowments without any

supervision In the past. It was only after the extension of the provisions of the Act in 1959 that the acts of trustees of such endowment came for

scrutiny. In the present case the petitioner urged that but for the enmity of a tenant who had a grievance against the petitioner, and therefore sent a

petition to the authorities, the previous uninterrupted management of the trust would have continued. The petitioner also urged that even though

certain transactions had to be executed owing to the unfortunate situation In which the testator Sundaram Iyer had left his affairs, the petitioner had

been doing his best to perform the charity in question. It Is possible that the authorities, if they had carefully examined the allegations In the petition

against the trustee, in the light of the statements made by the petitioner, might have come to a decision more favourable to the petitioner. It is not

possible for me to Indicate the possible line on which a decision could have been taken, if the petitioner had been heard fully regarding his

contentions in respect of the management of the trust property. It appears to me that the statutory enquiry mentioned in Section 3(2) of the Act

providing for recording of evidence, hearing of the parties and adoption of the CPC to the enquiry to be held by the officer is intended to provide a

real opportunity to the affected party, namely the trustee, to justify his conduct when it is being challenged. The language of Section 3 of the Act

makes it clear that after the report of the Inspector reaches the Government, the trustee will have an opportunity of showing cause; but it appears

to me that, that opportunity will not be the same as an opportunity u/s 3(2) of facing a full and detailed enquiry. What Is stated above is intended to

lay stress on the importance of conducting the statutory enquiry u/s 3(2) with all the formalities that this section has prescribed. In the present case

the Inspector seems to have attached little importance to the enquiry which he proposed to hold under the statute on 23rd October, 1962. He has

not at all referred in his report as to what happened to the proposed enquiry, if he held the enquiry under the statute and if not, what was the

reason. It is necessary in such cases to make a scrutiny as to whether this important part of the statutory requirement for a proper procedure has

been complied with. It appears to me that the procedure in this case suffers from the cardinal defect, that there is nothing to show that the statutory

enquiry u/s 3(2) had been conducted by the Inspector, Hindu Religious and Charitable Endowment Board. As mentioned already, the fact that the

petitioner filed certain written statements or certain documents earlier before the Inspector, would not be a substitute for the holding of a formal

and detailed enquiry, which may very well affect the decision ultimately taken.

In view of the above considerations, I allow the writ petition and issue a writ of certiorari quashing the order of the Government. It is open

however to the Government to direct a proper enquiry to be held by the appropriate officer u/s 3(2) if they are so advised. The petitioner will get

his costs. Advocate''s fee Rs. 150.