A 1923 scheme decree cannot shield 219 acres from land ceiling, Madras High Court holds

Justices G. Jayachandran and E. Manoharan dismiss a trust's challenge to surplus-land proceedings begun in 1984, holding a choultry that feeds people is charitable, not religious.

A choultry that feeds students and travellers is performing a charitable act, not a religious one, and land settled on it in 1891 can be taken as surplus under the Tamil Nadu Land Reforms (Fixation of Ceiling on Land) Act, 1961 despite a scheme decree framed by a civil court in 1923. Dismissing a writ petition that reached back to orders of 1984, 1988 and 1995, a Division Bench of the Madras High Court held that a scheme under Section 92 of the Civil Procedure Code and the State's power to declare surplus land operate on different planes, that the State is not bound by a decree to which it was never a party, and that the land already allotted to 214 landless families cannot be disturbed. The order was made by Justice E. Manoharan.

One deed, two trusts, 219 acres

By a deed of 9 September 1891, Sri Vaithilingam Pillai created two trusts: the Brahannayaki Anna Chathiram and the Sri Swetha Vigneswara Swamy Sayarakshai and Arthajama Kattalai. Land totalling 219 acres in Thiruvalanchuzhi and Manapadaiyur villages, Kumbakonam Taluk, Thanjavur District, was vested between them, the income from the agricultural land to fund their objects: running a choultry; preparing and distributing prasatham for two temples; performing the Sayarakshai and Arthajama poojas; and other charitable activities.

In 1916 two suits were filed in the Sub Court, Kumbakonam, over mismanagement of the trusts, and a scheme decree was framed by an order of 28 August 1923. It vested management in a body of three trustees — one a Brahmin of the Saiva or Smartha sect and the other two caste-Hindus of the Saiva sect — to be appointed by the court from permanent residents of the taluk, and required the trustees to keep separate accounts for each trust.

In 1981 the Authorised Officer began proceedings under the 1961 Act, declaring 142.27 ordinary acres, equivalent to 104.785 standard acres, as surplus from the holdings of the Chathiram after allowing it five standard acres. That order of 13 May 1984 was confirmed by the Land Tribunal in 1988 and by the Land Reforms Special Appellate Tribunal in 1995. The trust came to the High Court seeking certiorarified mandamus to quash all three and a direction that the 219 acres be mutated in its name, contending that it fell within the exemption in Section 2 of the Act.

Whether feeding people is a religious act

The exemption turns on whether the trust is religious in nature, and the Bench examined what the Chathiram actually did. Separate pattas had been granted for the lands of each trust. Separate accounts had been maintained as the scheme decree required, and the authorities found no indication in the audited accounts that funds of one trust were adjusted against the other. An inspection on 24 September 1983 recorded that students from local schools and colleges were fed in the Chathiram and that rooms in its backyard were allotted free of cost.

Reading the trust deed with the authorities on the distinction between religious and charitable purposes, including the Supreme Court's construction of the definition in the Madras Hindu Religious and Charitable Endowments Act, the Bench concluded that feeding or annadhanam cannot strictly be construed in isolation as a religious act, and on its own falls within the realm of charitable purpose, as does providing general housing, accommodation and cooking facilities. The founder's intention for the Chathiram and its lands, it held, was charitable only.

Why the two trusts did not become one

The trust's answer was that the two charities had merged, particularly after the scheme decree, so that all the land was a single holding and religious in character, attracting the exemption. The Bench rejected that on the terms of the decree itself. Paragraph 4 of the decree provides that the singular includes the plural, which means its references to the charities apply to each of them individually and separately; and it directed separate accounts, and directed the trustees to carry out the provisions of the 1891 deed.

The Bench then set out what a scheme under Section 92 is and is not. It is ancillary to the trust and draws its authority from the deed under which the trust was created. It is more in the nature of an administrative order whose main purpose is to regulate management. It does not normally create, extinguish or modify the objects of the trust, except in the circumstances prescribed by Section 92(3), and it operates to aid the foundation of the trust rather than to substitute it. Here the decree honoured the founder's directions and treated the two charities as distinct entities, so each had to be assessed on its own merits.

If the trustees had in fact managed all the lands together, the Bench held, that was itself in contravention of the deed and the decree, and they could not now paint their own conduct with a colour of legitimacy and take advantage of it to have both trusts treated as religious. Where an act is prescribed to be done in a particular manner, the parties are bound by that and cannot unilaterally change it and expect adjudication on their practice rather than on the established procedure.

The burden on anyone claiming an exemption

The Bench placed the burden squarely on the trust. An exemption clause is a departure from the general rule and must be construed strictly. The 1961 Act was enacted to help the landless poor and to bridge inequalities in the ownership of agricultural land, so its beneficiaries are the landless and the rural population engaged in agriculture; granting an exemption confers a benefit on a category that is not the Act's intended beneficiary, and anyone claiming it must prove its applicability without a shred of doubt. Applying Commissioner of Customs (Import), Mumbai v. Dilip Kumar and Company, the Bench held that the burden lies on the claimant to show that the case falls within the parameters of the exemption, and that where an exemption provision subject to strict interpretation is ambiguous, the benefit of the ambiguity goes to the revenue and not the claimant.

On that standard the trust had produced no conclusive evidence that the Chathiram or the lands allotted to it had a religious purpose, or that the income from them was applied to a religious purpose. The founder's own act in creating two distinct trusts, one for charity and one for religious observance, showed he intended to keep them separate. The exemption under Section 2 and Section 2(3)(b) therefore did not apply.

Forty years, and 214 families on the land

The Bench then turned to conduct and delay, and the chronology told against the petitioner. The trust had agreed to an exchange of land, which the State accepted and which paved the way for a notification under Section 18(1) of the Act, published in the Government Gazette on 14 February 2007, declaring the surplus lands required for a public purpose. That notification was never challenged. After it, the lands were assigned to 214 eligible landless poor. In 2012 the trust made a representation objecting to an order under Rule 45(1) of the Tamil Nadu Land Reforms Rules, 1962, which concerns the draft compensation assessment roll — an objection directed at compensation, which the Bench read as showing that it had not in fact challenged the notification. The documents of 1996 and the revision order of 2005 that completed the picture were placed before the Court by the State, not by the petitioner.

Two authorities relied on by the trust were distinguished. Vedapatasala Trust v. State of Tamil Nadu did not assist, because the trust there imparted instruction in the Vedas and Agamas, which is religious in nature. Annathana Chathiram v. Government of Tamil Nadu, in which the Court assumed parens patriae jurisdiction and held delay no ground to defeat a challenge by a public religious trust, was distinguished on a crucial fact: there all parties including the Authorised Officer admitted the trust was religious, whereas here the authorities have contended for forty years that the Chathiram is not. The Bench recorded its agreement that the rights of religious trusts and of deities must be protected, while holding the distinction decisive.

It held the trust estopped by its own conduct in offering the lands in exchange, and that the delay, the finalisation of the proceedings, the allotment and the crystallisation of third-party rights could not be ignored. The allotment to the landless farmers after the notification is valid and cannot be disturbed, and the vesting of the surplus land in the State followed due process.

A decree the State was never party to

The last question was whether land administered under a scheme decree can be taken as surplus at all, and whether the scheme court's sanction is needed. The Additional Advocate General pointed to Section 4 of the 1961 Act, which gives the Act effect notwithstanding anything inconsistent in any other law, custom, usage, contract, or decree or order of a court or other authority.

The Bench held that the two operate on different spheres and do not legislate on the same subject matter. A scheme under Section 92 manages the trust and its properties, and so far as the properties go it restricts alienation by sale, mortgage or lease without prior sanction of the court. The State's power under the 1961 Act is to declare land above the ceiling as surplus, an exercise of eminent domain. A scheme decree binds the named parties, those interested in the trust such as beneficiaries, worshippers and donors, and the trustees and future trustees; the State could have been bound had it been impleaded and represented in the suit, which it was not, and the State exercising its sovereign power under Article 300A is not bound in the same capacity.

The constitutional protections pointed the same way. The 1961 Act is in the Ninth Schedule and so protected by Articles 31-A and 31-B. Article 31-A protects laws providing for acquisition by the State, and its first clause, in making it unlawful for the State to acquire land within the ceiling limit, leaves it open to the State to declare surplus any land above that limit; the inclusive definition of “estate” there takes in agricultural land. Article 31-B protects Ninth Schedule laws from being treated as void for inconsistency with Part III, and keeps them in force notwithstanding any judgment, decree or order of any court to the contrary. The Bench added the converse proposition — that the executive cannot unilaterally override a subsisting scheme decree without legislative backing — but found that here the declaration had followed the statutory procedure. The actions taken under the Act were therefore protected, and no sanction from the scheme court was required.

Order

The Bench answered the contentions accordingly and held the writ petition devoid of merits. The writ petition was dismissed, the connected miscellaneous petitions were closed, and there was no order as to costs.