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S.A. Appal Raja Vs. the Common Fund of Senguntha Mudaliar Community of Poopalrajapatti Through Its President, S.A. Thangavel - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai High Court
Decided On
Reported in(1982)1MLJ318
AppellantS.A. Appal Raja
RespondentThe Common Fund of Senguntha Mudaliar Community of Poopalrajapatti Through Its President, S.A. Thang
Cases ReferredSengalaneer Pittayar Temple v. Maruckam Chettiar
Excerpt:
.....muslim religious trust and charitable institutions had in mind only public religious trusts and public charitable institutions. 16. since the two notifications of exemption have precisely the same subject and content, the declaration in the later notification that it supersedes the former notification cannot be held to have brought about any break in the continuity of the exemption from 14th august, 1974 onwards. 18. the result of this discussion is that the eviction petition filed by the society is not competent, since the building to which it relates was clearly exempt from the provisions of the act. the first is that the exemption under the notification dated 12th august, 1974, covers, in terms, all the provisions of this act'.this phrase, surely, must include within its all..........exempt from the act.7. mr. narayanaswami contended that the relevant notification exempting public charitable trusts and institutions does not apply to this society. this argument appeared to be somewhat inconsistent with the reliance placed toy the society itself on section 10(3)(6) of the act as the relevant provision of law under which it had sought to maintain its eviction petition. for section 10(3)(b) too applies only to 'a religious, charitable, educational or other public institution'. mr. narayanaswami's point, however, was that whereas section 10(3)(b) referred to public institutions of a religious, charitable, educational kind, the society in the present case cannot be treated as a 'public' institution in that sense. according to learned counsel, since, the society's.....
Judgment:

V. Balasubrahmanyan, J.

1. The question in this revision is whether an eviction petition before the Rent Controller was maintainable? The building which figures in the eviction petitfon is owned by a Society called 'The Common Fund of Senguntha Mudaliar Community of POopal-rajapatti', Rajapalayam. The building is a non-residential building in Rajapalayam town. The building was under the occupation of a tenant. He is the respondent in this revision. The Society required the building for its own purposes. It accordingly moved the Rent Controller, by petition, to evict the tenant from the building.

2. The Rent Controller dismissed the petition on a pure technicality. He said that the Society should have filed its petition under Section 10 (3)(b) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960. But the Society had actually filed the eviction petition only under Section 10(3)(a)(iii) of that Act. The Rent Controller dismissed the eviction petition for quoting a wrong provision of the statute in the cause title. On appeal, the appellate authority eschewed this firmsy technically, and ordered the eviction of the tenant on the ground that the Society had established its ground for eviction, namely, that it required the building for its own purposes.

3. This revision is brought by the tenant. His learned Counsel, Mr. T.R. Ramachandran, raised a new point for my consideration. His urged that the Society's eviction petition was not maintainable, since (the Society was a charitable trust or institution, and since buildings owned by such trusts and institutions were exempted by the Government' from the provisions of the Act in exercise of their powers of exemption under Section 29 of the Act.

4. Mr. M.R. Narayanaswami, learned Counsel for the Society, objected to this contention being raised for the first time in revision. He said that to decide this issue, further facts will have to be investigated, which cannot 'be undertaken at this stage. I, however, overrule Mr. Naryanaswamy's objection, since the point raised by the tenant in this revision is a pure question of law and also a question of jurisdiction, to boot. And, as I shall presently show, the determination of this point does not involve any further probe into facts, but could be undertaken satisfactorily by a reference to the documents already marked in the case.

5. The Society was registered a long time age under the Societies Registration Act, 1860. The Memorandum and Articles, as registered with the Registrar, a copy of which has been exhibited in the case, shows that the Society had come into being with the avowed object of advancing the social, economic, educational, religious and public health requirements of the Sengunthar Community in Boopalrajapatti, Rajapalayam. The objects, inter alia, also specifically refer to the maintenance of libraries and reading rooms.

6. Mr. Ramachandran's argument was that with these aims and objects the Society must be held to be a charitable trust or institution within the meaning of the notification issued by the State Government under which the buildings owned by such trusts and institutions are declared exempt from the Act.

7. Mr. Narayanaswami contended that the relevant notification exempting public charitable trusts and institutions does not apply to this Society. This argument appeared to be somewhat inconsistent with the reliance placed toy the Society itself on Section 10(3)(6) of the Act as the relevant provision of law under which it had sought to maintain its eviction petition. For Section 10(3)(b) too applies only to 'a religious, charitable, educational or other public institution'. Mr. Narayanaswami's point, however, was that whereas Section 10(3)(b) referred to public institutions of a religious, charitable, educational kind, the Society in the present case cannot be treated as a 'public' institution in that sense. According to learned Counsel, since, the Society's objects were confined to the advancement of a particular community, to wit, the Sengunthars, and since there was a further limitation that the members of this community must be residents of the village of Poopalrajapatti, the Society cannot be called a public charitable society of institution.

8. The argument of Mr. Narayanaswami is based on a wrong notion of what a public charitable society is. For a charity to be public it is not necessary that its objects should encompass the universe or all mankind. It is enough that it refers to a section of the public as a determinate class of the society. In Ahmedabad Caste Association v. Commissioner of Income-tax Gujarat : [1971]82ITR704(SC) , the Supreme Court observed that it is enough if the section of the community sought to be benefited by the institution is sufficiently definite and identifiable by common quality of a public, or impersonal, nature. The Society, in this case has no intention to select any individuals as objects: of its beneficial activities. It is not an exclusive club. On the other hand, it came into being in order to advance the objects of a section of the community, without discrimination

9. Mr. Narayanaswami, in the course of his argument, referred to an exclusory provision in the objects clause in the Society's Memorandum which excluded from the class of beneficiaries members of the Sengunthar Community who had been ostracised or ex-communicated. This clause does not, in my view, derogate from the public character of the Society, because those who are ostracized or ex-communicated cease to be Sengunthars, and in that event there is no need even, for their express exclusion from the objects clause.

10. Mr. Narayanaswamy, then said that the exemption from the Act, which is being pleaded now by the tenant, happened to be notified by the State Government only subsequent to the filing of the eviction petition, that it has no retrospective operation and hence it cannot be invoked in the present case. Learned Counsel relied on a ruling of a division bench of this Court in support Sengalaneer Fillayar Temple v. Manickam Chettiar (1977) 90 L.W. 162. In that case, the division bench laid down the principle that the power of the State Government to grant exemption from the Act is purely an executive or administrative power, and hence any exemption notified by the Government in exercise of that power cannot have retrospective operation.

11. The question in this case does not raise any point of principle, but one of application of the principle decided by the division bench. For the purpose of the present discussion, two notifications for exemption issued by the State Government have got to be considered, one dated 12th August, 1974, and the other dated 16th August, 1976. Under the earlier notification, the Government exempted from the Act buildings owned by 'Hindu, Christian and Muslim religious trusts and charitable institutions'. The later notification exempted from the Act buildings owned by 'Hindu, Christian and Muslim religious public trusts and public charitable institutions'. It may be observed that in this case the Society had filed its eviction petition against the tenant on 30th March, 1976, which was subsequent to the notification dated 12th August, 1974, but prior to the notification dated 16th August, 1976.

12. Mr. Narayanaswami's contention for the Society was that since the Government passed the notification dated 16th August, 1976 statedly 'in supersession' of the earlier notification dated 12th August, 1974, no legal effect could be attributed to that earlier notification. Mr. Ramachandran for the tenant, pointed, on the other hand, to the fact that the earlier notification was in force on 30th March, 1976, when the Society filed the eviction petition. That being so, learned Counsel urged, its subsequent supersession cannot render the eviction petition competent, when on the date of its filing, the notification was in force rendering it incompetent. Learned Counsel said that what is relevant on the issue of maintainability of a legal proceeding in the state of the law or of the legal position which obtains as at the date of the institution of the legal proceedings,, and not as at any other point of time.

13. On the contentions aforesaid it becomes necessary to consider the scope of the notification dated 12th August, 1974, and further consider not only the scope of the subsequent notification dated 16th August, 1976, but also its impact on the previous notification. This approach is particularly called for since on a comparison and contrast of the wording of the two notifications, an argument was advanced to the effect that the subsequent notification alone applied to public religious trusts-and public charitable institutions. The argument was based on the presence of the expression 'public' occurring in the subsequent notification dated 16th August, 1976 and on its absence from the earlier notification dated' 12th August, 1974.

14. We do not know the reasons which impelled the State Government to re-notify the exemption in August, 1976, with a verbal distinction. It is not the practice of the executive to issue Statements of Objects and Reasons for notifications, or, for that matter, to explain the background for statutory rules made by the executive in exercise of statutory powers. The task in every case is thus, one of construction of the language employed by the executive.

15. There is, no doubt, a distinction in law between private trusts and public trusts. But; the distinction is not drawn merely from the particular appellation or description employed by the draftsman. Whether the reference to a trust is to be construed as a reference to a public trust or not must be examined on a consideration of the subject and context of the document or other legal writing in which the expression is employed.. The absence of the epithet 'public', cannot necessarily be construed as ruling out the reference to public trusts, if the subject and context indicate otherwise. In my judgment, the description of trusts and institutions in the Government's earlier notification dated 14th August, 1974, does not suffer in the least from the omission of the appellation 'public'. To my mind, the religious trusts referred to in the said notification denote only public religious trusts, since they are preceded by the words 'Hindu, Christian and Muslim'. If the intention were to refer to private trusts, the reference to the three great religious denominations would have been quite unnecessary. Likewise, the expression 'charitable institution' can refer only to public charitable institutions. Charity, per se, has a well-defined meaning in many advanced legal systems, including our own. Charity is not alms-giving or private charity. It refers to advancement of any object of public utility or benefit, such as education, public health, poor relief and the like. The mere employment of a word like 'charity' in collocation with the expression 'institution' denotes institutionalised charity, or in, in other words, 'public charity. I am satisfied that the prior notification dated 12th August, 1974, when it referred to Hindu, Christian and Muslim religious trust and charitable institutions had in mind only public religious trusts and public charitable institutions. In this sense, therefore, the subsequent notification of 16th August, 1976, did not make for a departure in the Government's exemption policy, but only made explicit what was implicit in the earlier notification.

16. Since the two notifications of exemption have precisely the same subject and content, the declaration in the later notification that it supersedes the former notification cannot be held to have brought about any break in the continuity of the exemption from 14th August, 1974 onwards. All that supersession, in the context, involved is that as from 16th August, 1976, the exemption is to be traced to the notification bearing that date. The source of the same exemption prior to that date was to be found in the earlier notification. But the exemption continued. The ruling in the bench decision in Sengalaneer Pittayar Temple v. Maruckam Chettiar (1977) 90 L.W. 162, only laid down the principle that an exemption issued by the executive Government cannot be read as possessing retrospective effect. The decision did not have to go into the inter-relationship between the two notifications of 12th August, 1974 and 16th August, 1976. Besides, when the decision laid down that exemptions cannot be notified retrospectively, the said decision must also, by the same token, be held as authority for the further position that a notification once granted cannot be cancelled retrospectively, but can be taken away only prospectively. Thus, when the earlier notification was superseded by the later notification dated 16th August, 1976, the supersession did not have the effect of nullifying the prior notification ab ratio. To hold otherwise would be to invest the notification dated 16th August, 1976, with retrospective power, which the bench decision has ruled out altogether.

17. Mr. Ramachandran, at one stage of Ms argument, even seemed prepared to accept the Society as less than a public trust or institution and as equivalent to a private society or as an exclusive club, if only to fit it in with a construction of the earlier notification, dated 12th August, 1974, as a notification strictly confined to private religious trusts and private charitable institutions. However, the correct position, as I have shown above,_ is quite otherwise. Not only is that society, under its Memorandum, an institution of a public character, but the notification of 12th August, 1974 also relates only to public religious and charitable trusts and institutions.

18. The result of this discussion is that the eviction petition filed by the Society is not competent, since the building to which it relates was clearly exempt from the provisions of the Act.

19. Mr. Narayanaswami urged finally that the eviction petition filed by the Society falls to be dealt with under Section 10(3)(b) of the Act, and this position cannot be overlooked. According to learned Counsel, Section 10(3)(b) is not a general provision applicable to all landlords, but a special provision meant to subserve the interests of public institutions alone, Mr. N irayanaswamy's argument was that the exemption notified by the Government on 12th August, 1974, was not intended to affect eviction petitions filed by public institutions under this special provision. This argument, however, cannot be accepted, for two reasons. The first is that the exemption under the notification dated 12th August, 1974, covers, in terms, 'all the provisions of this Act'. This phrase, surely, must include within its all pervading sweep Section 10(3)(a) as well. Secondly, on my construction of the terms of the notification dated 12th August, 1974, the trusts and institutions covered by the exemption are public religious and charitable trusts. The coverage of the exemption and the coverage of Section 10(3)(b) are thus substantially the same. It would almost seem that the exemption of religious trusts and charitable j institutions was specially aimed at by the j State Government to rob these institutions of the benefit of the special provisions of Section 10(3)(b). There, indeed, may be trusts and institutions which, while being covered by Section 10(3)(b) may yet remain unaffected by the notification for exemption, such, for instance, as Parsi religious trusts. ! But this distinction does not matter in the present case, because the Sengunthars for whose benefit the Society had come into being are covered by the exemption of Hindu religious 'trusts and charitable institutions.

20. I may observe, in conclusion, that the constitutional validity of Section 29 of the Act is even now under challenge in certain proceedings pending before the Supreme Court. As on date, however, there is no authoritative decision, which nullifies the State Government's powers of exemption under Section 29 of the Act or which invalidates the notification dated 12th August, 1974 and 16th August, 1976. Besides, while disposing of a revision under the Act, this Court cannot question the validity of any of the provisions of the Act, although the Court's jurisdiction to go into contitutional issues of this kind is undeniable in proceedings properly brought under Article 226 of the Constitution of India.

21. For the reasons I have earlier set out, I however, I am satisfied that the tenant in this j case was justified in raising an objection to the maintainability of the eviction petition on the ground that the building in which he is a tenant is wholly exempt from all the provisions of the Act. It follows that the order of eviction passed by the appellate authority in appeal, acting on the tacit assumption that the petition was maintainable, is bad in law.

I, therefore, set aside the order passed by the appellate authority, and hold that the dismissal of the, eviction petition by the Rent Controller was justified, although for the quite different reason that the petition is not maintainable. The revision accordingly succeeds. The tenant shall have his costs from the respondent-society


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