Thangapandiyan vs Shri Kanniga Parameswari Amman Chathiram

S. Mani Kumar, J.—Being aggrieved by the finding regarding maintainability of the rent control proceedings initiated by Shri Kanniga

Parameswari Amman Chathiram, through its Managing Trustee, the tenant has filed the present Civil Revision Petition. Facts leading to the Civil

Revision Petition are as follows:

The respondent-Chathiram filed a Rent Control Original Petition No. 5 of 2009, u/s 10(2)(i) and 10(2)(b)(iii) and 10(3)(a)(iii) of the Tamil Nadu

Buildings (Lease and Rent Control) Act, 1960 (for brevity, hereinafter referred to as ""the Act""). The revision petitioner/tenant has filed a counter

affidavit, raising a preliminary objection that only after deciding the character of the trust, as to whether, it is the public or private trust, the other

contentions in the pleadings have to be tested. According to the tenant, the respondent-Trust is a public trust and as per Section 29 of the

abovesaid Act, it is exempted from the purview of the Act and as such, the respondent has to file only a suit, and not a Rent Control Original

Petition. In the light of the preliminary objections, the Rent Controller, has addressed the issue of maintainability of the RCOP, at the first instance.

The cause title of the petitioner in the rent control proceedings reads as, Shri Kannika Parameswari Amman Chathiram, Private Trust Through its

Managing Trustee, Muthukrishna Chettiyar. The revision petitioner has been shown as the tenant. Rental receipts have been issued in the name of

Shri Vasavi Kannika Parameswari Amman Chathiram, represented by its Managing Trustee, Muthukrishna Chettiyar. No lease agreement has

been filed. Therefore, on the basis of the above facts, a contention has been raised by the revision petitioner that the Choultry or Chathiram, cannot

be termed as a private trust, enabling its Managing Director, to prefer a rent control petition. Before the Rent Controller, reliance has also been

placed on a decision in Vittal Vel Press Vs. Sri Rangaswamy Temple Mulla Sahib St George Town, Madras, , wherein, it has been held as

follows:

Public Religious Trust whether includes temples Temple by its very definition implies dedication for benefit of public and endowment also

presupposes dedication Public Religious Trust therefore will include temples Provisions of Rent Control Act do not apply to Temples in view of

exemption granted to Public Religious Trusts On facts also it was held temple under consideration constitutes trust coming under control of Tamil

Nadu Hindu Religious and Charitable Endowments Act Public Temple is public religious Trust to which exemption granted under Government

Order is applicable.

It has been contended by the tenant that nowhere in the receipts issued by Shri Vasavi Kannika Parameswari Amman Chathiram, it has been

described as a Private Trust and therefore, the nomenclature found in the receipts should prevail over the name given in the cause title and in any

event, there is difference in the name and that the Chaitram is meant for public usage and therefore, it cannot be considered as private trust. Per

contra, Sri Kannika Parameswari Amman Chathiram, represented by its Managing Director, the petitioner in RCOP, contended that inside the

Chaitram, there is a small temple only for the purpose of Arya Vysya Community people and that there is no flagstaff, Moolasthanam, Stone

Vigraham, Prakaram and Gopurams and that there is no idol for procession. No Urchavams, recitals of mantrams, archanas and other features,

similar to that of a public temple, are performed. Therefore, the petitioner, who initiated the proceedings for eviction, has submitted that it is only a

Choultry, where the people belonging to the same community, coming from other districts, get accommodation in the choultry and thus, the said

premises have been leased out to the revision petitioner. According to the respondent, the provisions of the HR & CE Act, are not applicable and

it is purely a private trust and hence, entitled to maintain a rent control proceedings for eviction. The respondent-Trust has placed reliance, on an

order made in CRP. No. 182 of 1993, dated 17.04.1935.

The Rent Controller, placing strong reliance on the order made in the above CRP., rejected the objections regarding maintainability of the

RCOP., and held that Shri Kannika Parameswari Amman Chathiram, is a private trust. Being aggrieved by the same, an appeal has been filed in

RCA. No. 16 of 2010, before the learned Subordinate Judge, Mannargudi. Subsequently, on an endorsement made by the revision petitioner that

he would prefer a Civil Revision Petition, the said appeal has been closed. Therefore, the present Civil Revision Petition, challenging the preliminary

finding, as regards the maintainability of RCOP, has been filed.

Assailing the correctness of the order of the Rent Controller, holding that Shri Kannika Parameswari Amman Chathiram, is a private trust and

taking this Court through the order made in CRP. No. 182 of 1993, dated 17.04.1935, Mr. S.V. Karthikeyan, learned counsel for the

petitioner/tenant submitted that what has been tested by this Court in the above revision petition, is whether, Shri Kannika Parameswari Amman

Chathiram, was a temple or not, as defined under the Hindu Religious and Charitable Endowments Act and whether the then Madras Hindu

Religious Endowments Board could have any control over the temple.

According to him, in the above case, this Court was not called upon to decide the status of the trust, as to whether, it was a public or private

trust and that therefore, the decision, relied on by the Rent Controller, is inapposite to the issue, regarding the preliminary objection, as to the

maintainability of the rent control proceedings and therefore, the impugned order, declaring Shri Kannika Parameswari Amman Chathiram, as a

private trust, is liable to be set aside.

Learned counsel for the petitioner-tenant has further submitted that for deciding the maintainability of the rent control proceedings and the issue,

as to whether Shri Kannika Parameswari Amman Chathiram, is a private or public trust, the Court below ought to have considered only the

documentary evidence and in the absence of producing the trust deed, the Court below, ought to have upheld the objections regarding the

maintainability of the Rent Control proceedings, instead of placing reliance on a decision, which is not pertinent to the issue raised in RCOP.

Learned counsel for the petitioner further submitted that if a trust is created for any public purpose or for the benefit of any class or community

of the people, the same shall also be a public trust. According to him, if the trust is stated to be constituted for the benefit of Arya Vysya

Community people of Mannargudi, then it comes under the definition of Public Trust exempted from the purview of the rent control act.

Taking this Court through the rental receipts marked as Exs. P1 to P4, issued in the name of Shri Vasavi Kannika Parameswari Amman

Chathiram, Managing Trustee, Muthukrishna Chettiyar and pointing out the difference in the cause title, wherein, Shri Kannika Parameswari

Amman Chathiram, has been shown as the petitioner and also the observations of the learned Rent Controller that the petitioner has to be read as,

Shri Vasavi Kannika Parameswari Amman Chathiram learned counsel for the revision petitioner further submitted that it is not the duty of the Court

to ascertain, as to how the petitioner should be called, without adequate proof and thus, he has exceeded in its jurisdiction.

According to the learned counsel, when the petitioner has been described in the RCOP as Shri Kannika Parameswari Amman Chathiram, the

Court cannot arrive at a conclusion that the petitioner should be read as, Shri Vasavi Kannika Parameswari Amman Chathiram on the basis of the

rental receipts, Exs. P1 to P4. In fine, he submitted that the Rent Controller has committed an error, both in law and facts, holding that the

petitioner in RCOP., as a private trust.

Heard the learned counsel for the petitioner and perused the materials available on record.

Before adverting to the contentious issue, regarding maintainability of the rent control proceedings, based on the finding that Shri Kannika

Parameswari Amman Chathiram is a private trust, this Court deems it fit to have a cursory look at the provisions of the Tamil Nadu Buildings

(Lease and Rent Control) Act, 1960. Sections 29 and 30 deals with exemptions in the case of certain buildings and the said sections are extracted

hereunder:

Notwithstanding anything contained in this Act, the Government may, subject to such conditions as they deem fit, by notification, exempt any

building or class of buildings from all or any of the provisions of this Act.

Nothing contained in this Act shall apply to-(i) any building the construction of which was, after the date of the commencement of this Act,

completed and notified to the local authority concerned, or

(ii) any residential building the rental value of which, on the date of the commencement of this Act, as entered in the property tax assessment book

of the municipal council, district board, panchayat or panchayat union council or the corporation of Madras, as the case may be, exceeds two

hundred and fifty rupees per mensem, or

Struck down by Supreme Court as unconstitutional in Rattan Arya and Others Vs. State of Tamil Nadu and Another, (iii) any lease of a building

under which the object of the tenant is to run the business or industry with the fixtures, machinery, furniture or other articles belonging to the

landlord and situated in such building.

The Government Order G.O.Ms. No. 2000, Home, dated 16.08.1976 issued in exercise of the power conferred u/s 29 of the Act reads as

follows:

No. II(2)/HO/4520/76. In exercise of the powers conferred by Section 29 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960

(Tamil Nadu Act 18 of 1960) and in super session of the Home Department Notification No. II(2)/HO/3811/74, dated 12th August, 1974,

published at page 444 of Part II-Section 2 of the Tamil Nadu Government Gazette, dated the 21st August, 1974, the Governor of Tamil Nadu

hereby exempts all the buildings owned by the Hindu, Christian and Muslim religious public trusts and public charitable trusts from all the provisions

of the said Act.

As the learned Rent Controller, has strongly relied on the order of this Court in CRP. No. 182 of 1993, dated 17.04.1935, this Court deems it

fit to consider the same. The then District Court of Thanjore West has held that Kannika Parameswari Choultry at Mannargudy is a temple, within

the meaning of HR & CE Act. The said order has been assailed in the above revision. The narration of the facts extracted in the said Civil Revision

Petition are that the chatram was built and maintained by Vysia Community and intended for their benefit. The place had been put to use for (1)

Members of the community visiting Mannagudy can get temporary accommodation there and (2) it was allowed to be occupied temporarily by

persons wishing to perform marriages and other auspicious ceremonies. There was a prohit, who lived in the building with his family and one of his

duties was to offer worship to the image of the goddess, which has been placed there by the community. As per the order, the building has the

appearance of an ordinary house with pails and courtyard and features, such as, moolasthanam, store vigraham, prakarams, flagstaff and

gopurams, generally associated with a temple, were conspicuously absent. There was no idol to be taken out in procession and that there was no

festival to be conducted for the image. There was no recital of mantrams and no performance of archanas on Kala poojas. The building was used

in much the same way as a residential house and has a latrine attached to it. While considering the evidence adduced, this Court has also noticed

that every person examined had deposed that the building was choultry and not a temple. This Court has also observed that there was not even a

single person among the witnesses, who had ventured to assert that it was not a choultry. Upon analysis of the evidence, this Court has also

observed that the worship of the image had been carried in the nature of domestic worship, conducted in private households and that the income

from the investments was mainly utilised for maintaining the choultry and some little part of it, was used for mandagapadi, i.e., for brining the idol of

the local temple to the choultry. On the basis of the evidence and material on record, this Court, vide order, dated 17.04.1935, in CRP. No. 182

of 1993, has held that the building, which had been used in the same way, as a residential house with latrine attached to it, and in the absence of

any recital of mantiram, it cannot be termed to be a religious endowment.

Let me consider some of the decisions, relating to exemption.

In Christ The King Cathedral Vs. John Ancheril and Another, , the Supreme Court considered the scope and applicability of Section 29 of the

Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 and at Paragraph 6, observed as follows:

The law had been stated by this Court to the effect that public religious or charitable endowments or trusts constitute a well recognised group

which serves not only public purposes, but disbursement of their income is governed by the objects with which they are created and buildings

belonging to such endowments or trusts clearly fall into a class distinct from the buildings owned by private landlords. It is in respect of three areas

a regulation would be made under the Act, as has been done in other similar enactments and these areas are (i) with respect to regulation of lease

of buildings (residential or non-residential); (ii) control of rent of such buildings and (iii) control of eviction of tenants from such buildings. A public

trust, as has been held in S. Kandaswamy Chettiar case (supra), is not likely to unreasonably act either in the matter of enhancement of rent or

eviction of tenants being institutions of religion or charity. On that basis, this Court upheld the validity of the exemption granted under the Tamil

Nadu Act in favour of such trust or endowment. In the present case, the contention has been specifically put forth that the appellants fall into that

very category which came up for consideration before this Court in S. Kandaswamy Chettiar case (supra). Therefore, no distinction can be made

between that class of owners of the buildings in that case and in the present case. We do not understand as to what other material was required by

the Court in a matter of this nature if the contention put forth before this Court is not that Churches or Mosques, Dioceses, Arch-dioceses,

Monasteries, Convents, Wakfs and Madarsas are not religious and charitable in nature.

It is settled law that all the buildings owned by the Public Trust and Public Charitable Trust of the religious denomination are exempted from the

purview of the Rent Control Act. Reference can be made to the decisions of this Court in Ramdas Vs. Kaliamoorthy (Died) and Another, . A

building owned by a public religious and charitable institution is exempted from the provisions of the Rent Control Act. Smt. R. Swarnavalli Vs.

H.H. The Prince of Arcot Endowments )

The Act will not apply, if the trust is public trust. From the judgment made in CRP. No. 182 of 1993, dated 17.04.1935, one thing is very

clear that Shri Kanniga Parameswari Amman Chathiram is not a temple and it is only a chathiram or choultry. Admittedly, the trust deed has not

been filed. In Dhanasekaran Vs. The A.R.C. School Board, , My Esteemed Brother The Hon''ble Mr. Justice V. Ramasubramanian, while

explaining the scope and difference between the statutory exemption u/s 30 of the Act and the exemption granted u/s 29 of the Act, after extracting

G.O.Ms. No. 2000, dated 16.08.1976, issued in exercise of the power u/s 29 of the Act and Section 10(3)(b) of the Rent Act, at Paragraphs 10

and 11, held as follows:

On a cumulative reading of the provisions of the statute and the Government Order, it could be seen that the Act per se applies to residential

and non-residential buildings owned by religious, charitable, educational or other public institutions. After making the Act per se applicable, the Act

confers powers u/s 29, upon the Government, to exempt any building or class of buildings from all or any of the provisions of the Act. In contra

distinction to Section 29, the exemption u/s 30 is a statutory exemption. The exemption provided u/s 29 is actually a power conferred upon the

Government to grant exemption to certain types of buildings to which the applicability of the Act, is not in question. In other words, there is a

distinction between the exemption u/s 29 and the exemption u/s 30.

Keeping this distinction in mind, if we look at the Government Order issued, the Government Order extracted above, exempts only buildings

belonging to two types of Trusts, namely (i) Public Charitable Trusts, and (ii) Religious Public Trusts of Hindu, Christian and Muslim Faiths. It is

not the case of the petitioner/tenant that the building in question is exempt from the very application of the Act u/s 30. The contention of the

petitioner is that the building falls within the exempted category by virtue of the Government Order issued u/s 29. Therefore, in order to bring the

building in question, within the purview of the exemption provided under the Government Order extracted above, it must be established that the

landlord, invoking the provisions of the Act, is either a public charitable trust or a religious public trust of Hindu, Christian or Muslim Faiths. A

reading of Section 10(3)(b) shows that the provision applies to religious, charitable, educational or other public institutions. Section 10(3)(b) does

not deal with religious public trusts or public charitable trusts of the kind indicated in the Notification issued by the Government u/s 29. Therefore, if

a Trust takes recourse to the Act for evicting a tenant, it should be established by the pleadings and by evidence that such a landlord is either a

public charitable trust or a religious public trust within the meaning of the Government Order issued u/s 29. In this case, the Petition for eviction as

well as the counter filed by the tenant, does not disclose that the respondent/landlord would fall under either of the two categories, namely, public

charitable trust or religious public trust. Therefore, it cannot be contended that the exemption under G.O.Ms. No. 2000, is patently exhibited on

the basis of the pleadings, so as to enable the petitioner/tenant to raise it as a point for the first time at the stage of revision. In the decision relied

upon by the learned counsel, a copy of the trust deed was marked as exhibit and there was overwhelming oral evidence to show that it was a

public charitable trust. But in this case, there is absolutely no pleadings or evidence to show that it is a public charitable or public religious trust and

hence the plea cannot be allowed to be raised at the stage of Revision. Hence the first contention is rejected.

In the above reported case, it was the contention that the landlord, being an educational institution and whose building is exempted from the

purview of the Government Order, issued in exercise of the power conferred u/s 29 of the Rent Act, cannot maintain a rent control proceedings.

Keeping the above decision in the back drop and reverting back to the order in CRP. No. 182 of 1993, dated 17.04.1935, it is the specific

finding of this Court, that the building has the appearance of a ordinary house with pails and courtyard and that the features of the temple were

conspicuously absent. The building had been only used as a residential house with latrine attached to it. The evidence recorded in the above case

also shows that the worship inside the building was in the nature of a domestic worship, conducted in private households.

In Municipal Council, Tirupathi Vs. Tirumalai Tirupathi Devasthanam, , the Supreme Court defined the word, Choultry as follows:

In the absence of a statutory definition in the Act, recourse has to be taken to the meaning attributed to the word in the dictionaries and the law

lexicons as well as to the popular concept of the term. Choultry is indeed an ancient institution and is principally meant for lodging of pilgrims and

travellers. It is conceivable that in 1884, when the first municipal legislation was passed in Madras. such institutions were some humble sheds and

other structures to enable, the pilgrims to stay for a short while when they came to visit temples and other religious places. This institution, like

similar others elsewhere, has come to stay as a symbol of religious and charitable disposition of human mind translated into physical manifestation in

the shape of safe shelter for the pilgrims. As man advances and ideas grow and expand, with his ever increasing desire for comfort and

convenience, the shape of the choultry must needs also change. It is, therefore, only to be expected that with the growing funds of the

Devastbanams, such choultries will be constructed in a modern way catering to the needs and requirements of the, pilgrims and visitors of all

classes in a self-contained unit or complex.

In the above decision, the Supreme Court has also extracted the definition of Choultry from the dictionaries, as follows:

The, word ""choultry"" is not defined in the Act. The word is defined in the Law Lexicon of British India compiled and edited by Ramanatha Aiyar,

1940 edition, as follows :- ""Choultry : Chatram, A choultry is a corruption of chavadi. It means a shelter or resting place for travellers. A chathram

(corruption of the Sanskrit Sathram) is a house where pilgrims and travellers are fed"". In the Shorter Oxford English Dictionary, choultry is

described as an Anglo-Indian word ""being corruption of Telugu chawadi"" and its meaning is given as ""A caravanserai"". In Wilson''s Glossary of

Judicial and Revenue Terms, second edition, page 108, ""he word is given in different forms such as Chawati or Chauti, corruptly, Choltry or

Choultry and the meaning is given as ""A public lodging place, a shelter for travelers.

From the judgment in CRP. No. 182 of 1993, dated 17.04.1935, it could be seen that the Choultry is not meant for all classes of people or

general public. It is meant, only as a chathiram, constructed by Arya Vysia community people and intended for their benefit, mainly providing for

temporary accommodation to the members of the said community visiting Mannagudy and those, who shall perform marriages and other auspicious

ceremonies. As stated supra, the description of the building, as per the order made in CRP. No. 182 of 1993, dated 17.04.1935 and its usage,

was in the same manner as a residential house with latrine attached to it. When the character of the trust is not intended to serve the general public

and when the very nature of the building was a residential house, with no charitable activity being carried on to the general public. The beneficiaries

are not the general public and when there is no record to substantiate that the general public were also involved in any activity of the temple or the

Chatiram, it is not open to the tenant to contend that it is a public trust, exempted from the purview of the act.

The judgment in CRP. No. 182 of 1993, dated 17.04.1935, does not state that there was any public charitable or religious activity, enabling

participation of general public. In Municipality of Taloda Vs. The Charity Commissioner and Others, the Supreme, while explaining the meaning of

the public trust at Paragraph 8, held as follows:

The expression ""public trust"" is defined in s. 2(13) as meaning an, express or constructive trust for either a public, religious or charitable purpose,

or both and includes a temple, a math, a wakf a dharmada or any other religious or charitable purpose or for both and registered under the

Societies Registration Act, 1860. A trust for either a religious or charitable purpose or for both by the express words of the definition is a public

trust. We are unable to agree with the learned Assistant Judge that Sadhus, religious mendicants and visitors to the samadhi of Nagabawa are not a

section of the public. They have a common bond of veneration for the samadhi. The beneficiaries of the trust are an uncertain and fluctuating body

of persons forming a considerable section of the public and answering a particular description, and the fact that they belong to a religious faith or a

sect of persons of a certain religious persuasion does not make any difference in the matter: Ram Saroop Dasji Vs. S.P. Sahi, Special Officer-in-

charge of The Hindu Religious Trusts and Others, The property is entrusted to the Municipality for providing shelter to ""sadhus, saints and religious

mendicants"", the purpose, in our judgment, is religious and charitable within the meaning of s. 2(13), of the Act.

In Commissioner of Endowments and Others Vs. Vittal Rao and Others, , the Supreme Court, while explaining the difference between a

Public and Private Trust, at Paragraph 21, held as follows:

In the earlier round of litigation, it was specifically held that the gift deed did not create an endowment and the temple in question was not a public

temple and the land was gifted absolutely to Gunnaji. In a private trust, the beneficiaries are specific individuals and in a public trust, the beneficiary

is general public as a class. In a private trust, the beneficiaries can be ascertained whereas in a public trust, they are incapable of ascertainment. In

the present case, the ascertained individual was Gunnaji. This position is clear from the decision in Deoki Nandan Vs. Murlidhar, .

This position has been reiterated in Kuldip Chand and Another Vs. Advocate General to Government of Himachal Pradesh and Others, of the

said judgment, which reads as follows:

Long user of a property as Dharamsala by itself would not lead to an inference that dedication of the property by Kunwar Bir Singh in favour of

the public was complete and absolute. Had such dedication been made, the same was expected to be recorded in the revenue records.

There is no evidence to prove that there was an absolute dedication of the properties to the public nor there is any evidence that the income

was devoted for any charitable purpose. Way back in the year 1935, this Court has held that the income was mostly used for maintaining the

choultry and a little part of it was used for mandagapadi. Thus, from the above, it could be decided that the temple, which existed, was not

dedicated for the benefit of the public. This Court has also observed that the building was used as only as a residence. The revision petition/tenant,

who has mainly contended that Shri Kanniga Parameswari Amman Chathiram, is a public trust and therefore, exempted from the purview of the

Rent Control Act, has not adduced any strong and concrete evidence to prove that the respondent was a public trust and therefore, by virtue of

the provisions, granting exemption, under the Rent Control Act, the rent control proceedings was not maintainable.

As observed in the Civil Revision Petition, the idol was not taken out from the building. Rent Control Act applies to residential, as well as non-

residential buildings. The revision petitioner/tenant, though objected to the maintainability of the rent control proceedings, has failed to substantiate

that the trust does not fall under the exempted categories u/s 10(3)(b) of the Act. Though the revision petitioner has also found fault with the

objections of the Rent Controller that the receipts issued in the name of Shri Vasavi Kannika Parameswari Amman Chathiram, should give way to

the description of the petitioner, as Shri Kanniga Parameswari Amman Chathiram in the cause title, this Court is of the view that the said objections

are not germane to the maintainability of the rent control proceedings, as regards the plea, whether the trust is a private or public trust. The issue,

as to whether there is any relationship of landlord and tenant, can always can be adjudicated in the rent control proceedings, notwithstanding the

observations made by the Rent Controller. In the light of the above discussion, this Court is of the view that the respondent is a private trust and

hence, can maintain the rent control proceedings for eviction, on the grounds raised in the petition. In the result, the Civil Revision Petition is

dismissed. No costs. Consequently, connected Miscellaneous Petition is also closed.