Adivaram Varthagargal Sangam(Regd.S.No.39/92)Palani v. Department, Madurai.3. The Assistant Commissioner, HR & CE Department, Madurai.4. The Executive

For petitioner inWP.10447 of 1999 :: Mr.V.Raghupathy for Mr.K.N.PandianFor petitioner inWP.14388 to 14391/1999 & WP.14377 to 14381/1999 &WP.15358 & 15359/1999 :: Mr.T.V.Ramanujam, SC for Mr.R.KannanFor petitioner inWP.983 of 1999 :: Mrs.Chitra SampathFor respondents inWP.10447 of 1999 :: Mr.S.Ramasamy, AAG assisted by Mr.T.Chandrasekaran, Spl.G.P. For HR & CE for RR1 to 3 Mr.M.Sriram for R4For respondents inWP.14388 to 14391/1999 & WP.14377 to 14381/1999 &WP.15358 & 15359/1999 :: Mr.S.Ramasamy, AAG assisted by Mr.T.Chandrasekaran, Spl.G.P. For HR & CE for RR1 to 3, 5 & 6 Mrs.K.M.Nalinishree for R4 Mr.A.Arumugam, Spl.G.P. For R7For respondents inWP.983 of 1999 :: Mr.S.Ramasamy, AAG assisted by Mr.T.Chandrasekaran, Spl.G.P. For HR & CE for RR1 to 3 Mr.K.Chandrasekaran- R4 O R D E RThese writ petitions challenge the constitutional validity ofSections 78, 79(3) and 109 of the Tamil Nadu Hindu Religious andCharitable Endowments Act, 1959 (Act 22 of 1959) (for short, 'the HR& CE Act') as amended by Tamil Nadu Act 39 of 1996 as well as by Act28 of 2003 as ultra vires the Constitution. For the sake ofconvenience, sections 78, 79 and 109 of the HR & CE Act, as amended,may be extracted below:- https://hcservices.ecourts.gov.in/hcservices/ ''Section 78 : Encroachment by persons on land orbuilding belonging to charitable or religiousinstitution or endowment and the eviction ofencroachers.- (1) Where the Assistant Commissionerhaving jurisdiction either suo motu or upon a complaintmade by the trustee has reason to believe that anyperson has encroached upon (hereinafter in this sectionreferred to as ''encroacher”) any land, building, tank,well, spring or water-course or any space whereversituation belonging to the religious institution orendowment (hereinafter referred to as ''the property”),he shall report the fact together with relevantparticulars to the Joint Commissioner havingjurisdiction over the division in which the religiousinstitution or endowment is situated.Explanation.- For the purpose of this section, theexpression ''encroacher” shall mean any person whounauthorisedly occupies any tank, well, spring or water-course or any property and to include-(a) any person who is in occupation of propertywithout the approval of the competent authority(sanctioning lease or mortgage or licence) and(b) any person who continues to remain in theproperty after the expiry or termination or cancellationof the lease, mortgage or licence granted to him.(2) Where, on a perusal of the report received byhim under sub-section (1), the Joint Commissioner findsthat there is a prima facie case of encroachment, heshall cause to be served upon the encroacher a noticespecifying the particulars of the encroachment andcalling on him to show cause before a certain date whyan order requiring him to remove the encroachment beforethe date specified on the notice should not be made. Acopy of the notice shall also be sent to the trustees ofthe religious institution or endowment concerned.(3) The notice referred to in sub-section (2) shallbe served in such manner as may be prescribed.(4) Where after considering the objections, if any,of the encroacher received during the period specifiedin the notice referred to in sub-section (2) and afterconducting such inquiry as may be prescribed, the JointCommissioner is satisfied that there has been anencroachment, he may by order and for reasons to berecorded, require the encroacher to remove theencroachment and deliver possession of the property(land or building or space) encroached upon to thetrustee before the date specified in such order.(5) During the pendency of the proceeding, theJoint Commissioner shall order the encroacher to deposit https://hcservices.ecourts.gov.in/hcservices/ such amount as may be specified by him in considerationof the use and occupation of the properties in questionin the manner prescribed.79. Mode of eviction on failure of removal of theencroachment as directed by the Joint Commissioner.-Where within the period specified in the order undersub-section (4) of section 78, the encroacher has notremoved the encroachment and has not vacated theproperty, the Assistant Commissioner having jurisdictionover the division may remove the encroachment and obtainpossession of the property encroached upon, taking suchpolice assistance as may be necessary. Any PoliceOfficer whose help is required for this purpose shallrender necessary help to the Assistant Commissioner.(2) Nothing in sub-section (1) shall prevent anyperson aggrieved by the order of the Joint Commissionerunder sub-section (4) of section 78 from instituting asuit in a Court to establish that the religiousinstitution or endowment has no title to the property.Provided that no Civil Court shall take cognizanceof any suit instituted after six months from the date ofreceipt of the order under sub-section (4) of section78.Provided further that no such suit shall beinstituted by a person who is let into possession of theproperty or who is a lessee, licensee or mortgagee, ofthe religious institution or endowment.(3) No injunction shall be granted by any Court inrespect of any proceeding taken or about to be taken bythe Joint Commissioner under section 78.79-A. Encroachment by group of persons on landbelonging to charitable religious institutions and theireviction.- (1) Where the Joint Commissioner knows or hasreason to believe that a group or groups of personswithout any entitlement and with the common object ofoccupying any land, which is the property belonging to acharitable or religious institution or endowment, areoccupying or have occupied any such land and if suchgroup or groups of persons have not vacated the land ondemand by the Joint Commissioner or any officerauthorised by him in this behalf, the Joint Commissionershall, notwithstanding anything contained in this Act,order after giving due notice, the immediate eviction ofthe encroachers from the land and the taking ofpossession of the land and thereupon, it shall be lawfulfor any officer authorised by the Joint Commissioner inthis behalf to evict the encroachers from the land by https://hcservices.ecourts.gov.in/hcservices/ force, taking such police assistance as may be necessaryand take possession of the land. Any police officerwhose help is required for this purpose shall be boundto render the necessary help to the Joint Commissioneror to such officer authorised by him.(2) Where, in any proceedings taken under thissection, or in consequence of anything done under thissection, a question arises as to whether any land is theproperty of the charitable or religious institution orendowment, such land shall be presumed to be theproperty of the charitable or religious institution orendowment until the contrary is proved by theencroacher.(3) Any order of eviction passed by the JointCommissioner under sub-section (1) shall be final andshall not be questioned in any Court.79-B. Penalty for offences in connection withencroachment.- (1) No person, on or after thecommencement of the Tamil Nadu Hindu Religious andCharitable Endowments (Amendment) Act, 1996 (Tamil NaduAct 39 of 1996) shall occupy, otherwise than by lawfulpossession, any property belonging to a charitable orreligious institution or endowment.(2) Whoever contravenes the provisions of sub-section (1), shall, on conviction, be punished withimprisonment for a term which shall not be less thanthree months but which may extend to five years and withfine which may extend to five thousand rupees.(3) No Court shall take cognizance of an offencepunishable under sub-section (2) except on the complaintin writing of the Commissioner.(4) No offence punishable under sub-section (2)shall be inquired into or tried by any Court inferior tothat of a Judicial Magistrate of the First-Class.79-C. Recovery of moneys due to religiousinstitution, as arrears of land revenue.- Withoutprejudice to any other mode of recovery which is beingtaken or may be taken under this Act or any other lawfor the time being in force, any moneys due to areligious institution may be recovered as if it were anarrear of land revenue and for the purposes of suchrecovery, the Commissioner of the Hindu Religious andCharitable Endowments (Administration) Department or anyofficer not below the rank of Deputy Commissionerauthorised by the Commissioner in this behalf, shallhave the powers of a Collector under the Tamil NaduRevenue Recovery Act, 1864 (Tamil Nadu Act II of 1864). https://hcservices.ecourts.gov.in/hcservices/

109. Central Act 36 of 1963 not to apply for recovery ofproperties of religious institution.- Nothing containedin the Limitation Act, 1963 (Central Act 36 of 1963)shall apply to any suit for possession of immovableproperty belonging to any religious institution or forpossession of any interest in such property.2. These three provisions provide for a mechanism for thereligious institutions as defined under Section 6 (18) of the HR & CEAct to secure their properties from the encroachers and also for aspeedy restoration of the properties without being driven to theforum of civil courts.3. Before going into the merits of the stand taken by theparties, it is necessary to recapitulate two decisions of the SupremeCourt which dealt with the need for the temple properties to besafeguarded. The Supreme Court in its decision in A.A.GopalkrishnanVs. Cochin Devaswom Board and others reported in 2007 (7) SCC 482,cautioned about the misuse of temple properties and the need toprotect such properties. Speaking for the Court K.G.Balakrishnan,C.J., in paragraph.10 of the said judgment, it is observed asfollows:"10. The properties of deities, temples and DevaswomBoards, require to be protected and safeguarded by theirtrustees / archakas / shebaits / employees. Instances aremany where persons entrusted with the duty of managing andsafeguarding the properties of temples, deities andDevaswom Boards have usurped and misappropriated suchproperties by setting up false claims of ownership ortenancy, or adverse possession. This is possible only withthe passive or active collusion of the authoritiesconcerned. Such acts of "fences eating the crops" shouldbe dealt with sternly. The Government, members or trusteesof boards/trusts and devotees should be vigilant to preventany such usurpation or encroachment. It is also the dutyof courts to protect and safeguard the properties ofreligious and charitable institutions from wrongful claimsor misappropriation."(Emphasis added)4. The Supreme Court in its decision reported in 2006(1) SCC287, Joint Commissioner, Hindu Religious and Charitable Endowments,Admn. Department Vs. Jayaraman and others restored the land to thetemple which was sold by orders of the Court by filing applicationunder Section 34 of the Indian Trusts Act. The sale and thesubsequent patta obtained were held to be invalid. While holding so,the Supreme Court forewarned attempts by certain people to corner the https://hcservices.ecourts.gov.in/hcservices/ temple properties and therefore, the following passage found inpara:12, may be reproduced below:-"12.It is seen that there has been a clear attempt by theclaimants to overreach the deities and the authoritiesunder the HR & CE Act, while managing the propertiesdedicated for the purposes of the temple, propertiesgranted and managed by them in their capacities aspoojaris, for the maintenance of the temples. The attempthas to be deprecated."5. These writ petitions ere admitted as early as in the year1999. Pending the writ petitions, in many cases, stay ofdispossession was given by this Court. In some cases, interim orderswere refused. In W.P.No.10477 of 1999, it was directed that therespondents can evict the petitioner after adopting the procedurecontemplated under the Act.6. The ground of attack on the amendments made was that a classof persons have been carved out by the legislation, who are notallowed to avail the remedies by way of civil suit. The procedureprovided under the Act is arbitrary and without guidelines. It isalso stated that the executive authority has been given wide power,which is likely to be misused. While the land owners have beenallowed to move the Civil Court, the other persons such as personswhose tenancy has not been renewed or who made developments in theproperties on hiring the land belonging to the temple have beendenied any relief under the Act. At the whims and fancies of thetemple authorities or the Executive Officers, persons can be thrownout of possession. Against the order of the Joint Commissionerordering eviction, there is no further appeal.7. Further, the removal of limitation under section 109 of theHR & CE Act is also arbitrary. The Act also interferes with therights conferred by the Transfer of Property Act. It is also furthercontended that no fair procedure has been evolved for evicting thepersons from the properties. 8. The petitioners in W.P.Nos.14377 to 14381 and 14388 to 14391of 1999 have also moved this Court by filing writ petitions inW.P.Nos.13873 to 13881, 15357 and 15360 of 1999 and sought forquashing the order issued under section 78(2) of the HR & CE Act bythe Joint Commissioner, HR & CE Department, dated 16.9.1998. Thegrounds taken in those writ petitions were that they were the ownersof the property and the notices issued were without jurisdiction. Itwas also stated that the temple in question, namely, Arulmighu MadavaPerumal Temple, Mylapore had already filed a suit in C.S.No.796 of1998 against those petitioners and since the petitioners were inpossession, they cannot be called as encroachers. Therefore, it was https://hcservices.ecourts.gov.in/hcservices/ directed by this Court that as the temple had initiated actionagainst the petitioners in a Civil Suit after establishing theirtitle and ownership, they can always evict the petitioners asencroachers. The common order dated 12.12.2006 passed by this courtwas taken on appeal by the Executive Officer of the Temple inW.A.Nos.487 to 490 and 511 to 517 of 2007. This Court confirmed theorder of the learned Judge and dismissed the writ appeals. It is nowstated that the suit in C.S.No.796 of 1998 is pending trial beforethe Civil Court.9. Mr.T.V.Ramanujam, learned Senior Counsel submitted that he isnot appearing for any encroachers. But, however, in case of personswho are lessees, licencees or mortgagees, whose lease, licence arenot renewed, have been left high and dry by the aforesaid Act. But ina notice given under section 106 of the Transfer of Property Act, aperson holding over cannot be called as an encroacher. The sweepingpower under section 109 excluding the Limitation Act, 1963, willresult in all old issues raked up and it cannot be based on soundpublic policy.10. Mrs.Chitra Sampath, learned counsel representing somepetitioners submitted that the power granted under section 78 is anarbitrary power. The authority cannot pass any orders independentlyin view of the definition of ''encroacher" found in section 78 of thesaid Act. The procedure contemplated under section 78(1) and 78(4) isan arbitrary procedure. Further, the prevention of moving the CivilCourt under section 79(2) with a total bar under section 79(3) isillegal and it is not a fair procedure extended to tenants. Thoughshe wanted to argue on the merits of the notice issued to her clientin W.P.No.983 of 1999, the counsel was told that as she waschallenging only the show-cause notice and if any final orders arepassed pursuant to the show-cause notice, her client can renew theprayer.11. Mr.V.Raghupahy, learned counsel for the petitioner inW.P.No.10447 of 1999 submitted that the prohibition contained underSection 79(3) was totally invalid and the power of the Civil Court ingrant of injunction cannot be barred.12. Per contra, Mr.S.Ramasamy, learned Additional AdvocateGeneral submitted that the temple properties were exempted from theTamil Nadu Buildings (Lease and Rent Control) Act. Therefore, forevicting the squatters over the temple property, the templeauthorities were made to move the Civil Court, which is not only timeconsuming and many a times, the very purpose of moving the CivilCourt is frustrated by the dilatory tactics adopted by persons whoare squatting over temple properties. The legislature by theamendment, while protected the interest of genuine land owners, madeclassification of encroachers and other persons who are not https://hcservices.ecourts.gov.in/hcservices/ encroachers but are ex-lessees, licencees or mortgagees and dealtwith them separately. While the encroachers are dealt under section78, by section 79(2), the land owners are given power to move theCivil Court for establishing their title to the property. Section 79(3) only prohibits the Civil Court from granting injunction if anyproceeding is taken or about to be taken by the Joint Commissionerunder section 78. With reference to the persons who are alreadyhaving lease or licence and had developed the properties, section 82provides for compensation on account of such persons are made to losetheir possession. Section 83 provides for a Tribunal, which hasbeen established for the purpose of passing an Award fixing thecompensation.13. Mr.K.Chandrasekaran, learned counsel submitted that theexclusion of Limitation Act cannot be found fault with as similarprovision is found in the Limitation Act, 1963 and particularlyreferred to Section 10 of the said Act, which reads as follows:-10. Suits against trustees and their representatives.-Notwithstanding anything contained in the foregoingprovisions of this Act, no suit against a person in whomproperty has become vested in trust for any specificpurpose, or against his legal representatives or assigns(not being assigns for valuable consideration), for thepurpose of following in his or their hands such property,or the proceeds thereof, or for an account of such propertyor proceeds, shall be barred by any length of time.Explanation. - For the purposes of this section anyproperty comprised in a Hindu, Muslim or Buddhist religiousor charitable endowment shall be deemed to be propertyvested in trust for a specific purpose and the manager ofthe property shall be deemed to be the trustee thereof." 14. He also submitted that section 106 of the Transfer ofProperty Act does not create any interest in the property. It is onlya clause relating to termination of lease and after termination ofthe lease if any suit is initiated by the landlord, the terminationcannot be questioned by the ex-lessee and they will have no realdefence before the Civil Court. The petitioners are interested onlyin driving the parties to the Civil Court. Though such persons willnot get the relief from the Civil Court but wanted to enjoy thebenefit of interim order and delay the disposal of the suits. Only torectify such an hardship by the religious institutions, the presentamendments have been brought into force. He also drew the attentionof this Court to the provisions of the Tamil Nadu Land EncroachmentAct, 1905 and the Public Premises (Eviction of UnauthorisedOccupants) Act, 1971, wherein also, only procedure has been set outfor evicting the encroachers. The present amendment under Section 79is only similar to such provisions and, hence, no exception can betaken to these provisions. https://hcservices.ecourts.gov.in/hcservices/

15. Mrs.Chitra Sampath, learned counsel for the petitionerrelied upon the judgment of the Supreme Court in The State of Punjaband another -vs- Khan Chand (AIR 1974 SC 543) and relied on thepassages found in paragraphs 5, 6 and 7, which may be usefullyextracted below:- ''5. Mr.Mahajan on behalf of the appellants has assailedthe judgment of the High Court and has argued that theprovisions of Section 2 of the Act do not contraveneArticle 14 of the Constitution. This contention, in ouropinion, is not well founded. The relevant provisions ofthe Act have been reproduced above and from a perusalthereof we find that the Act confers uncontrolled poweron the State Government or the officers authorised by itto requisition any movable property. The only propertyexcluded from the purview of the Act is one used for thepurpose of religious worship or an aircraft or anythingforming part of an aircraft or connected with theoperation, repair or maintenance of aircraft. Noguidelines have been laid down in the Act regarding theobject or the purpose for which the State Government orthe officers authorised by it may consider it necessaryor expedient to requisition a movable property. It is noteven the requirement of the Act that the authorityrequisitioning movable property should specify in theorder the purpose for which it has become necessary orexpedient to requisition that property. There is noprovision in the Act that the power of requisitioningmovable property can be exercised under the Act only fora public purpose nor is there any provision that powersunder the Act can be exercised only in an emergency or insome special contingency. It is open under the provisionsof the Act for an officer authorised under the Act torequisition movable property for any purpose whatsoever.For example, it would be permissible under the provisionsof the Act for the District Magistrate, who is an officerauthorised under the Act, to requisition the furniture ofanyone within the district for use in the office of theDistrict Magistrate. Likewise, it would be permissiblefor the District Magistrate to requisition any privatecar which may have caught his fancy for his own use. Itis not necessary to go into the question as to whetherthe District Magistrate would ever use his powers underthe Act for such purposes. Suffice it to say that thereis nothing in the provisions of the Act which makes itimpermissible for a District Magistrate to requisitionmovable property for any purpose whatsoever for which he https://hcservices.ecourts.gov.in/hcservices/ considers it necessary or expedient to do so.6. The power conferred under the Act can beexercised not only by the State Government but also bythe officers to whom it may be delegated by the StateGovernment. There is nothing in the Act that the officerto whom the powers under the Act can be delegated mustnot be below a particular rank. The result is that thepowers of requisitioning a movable property, which are ofa most comprehensive nature, can be conferred even upon apetty officer. No suitable machinery is also provided inthe Act for determining the compensation payable to theowner of the movable property nor does the Act containany guiding principles for determining the amount ofcompensation. According to Section 4 of the Act, thecompensation to be paid shall be such “as the StateGovernment may determine”.7. The drastic and unusual features of the Act whichhave been pointed out above highlight the fact that theAct confers arbitrary powers for requisitioning ofmovable property upon the authorities under the Act andthat no guidelines whatsoever have been prescribed forthe exercise of the powers of requisitioning. The totalabsence of guidelines for the exercise of power ofrequisitioning of movable property, in our opinion,vitiates Section 2 of the Act. Arbitrariness and thepower to discriminate are writ large on the face of thesaid provision of the Act and, in our opinion, thatprovision falls within the mischief which Article 14 ofthe Constitution is designed to prevent. The fact thatthe impugned Act was enacted before the coming into forceof the Constitution would not make any materialdifference. The protection afforded by Article 31(5) topre-Constitution laws is against the challenge on theground of contravention of Article 31(2); Article 31(5)gives no immunity to pre-Constitution laws from attack onthe ground that they violate Article 14 of theConstitution". 16. The Supreme Court held that while the authorities have beengiven power to requisition movable properties, sufficient guidelineshave not been given and such power is an arbitrary power. It is notclear as to how the said decision will have any relevance to thepresent case. Neither under the present amendment nor under any otherprovisions of the HR & CE Act, the State Government is empowered to https://hcservices.ecourts.gov.in/hcservices/ deal with the properties of the religious institutions and completeautonomy is given for bona fide use of the properties of thoseinstitutions. Constitutional protection is guaranteed under Article26 to safeguard the interest of the properties of such institutions.The present attempt in bringing the amendment is only to plug theloopholes in the procedural right of temples in securing theirproperties. Instead of driving them to the forum of civil court,which is admittedly time consuming and are misused by the dilatorytactics adopted by persons who are squatters in the properties of thereligious institution. The amendments which are attacked are onlyprocedural in character and it provides a forum for securing theproperties of the temple. It is not as if the legislature lackscompetence in bringing the law. Many a time, procedural safeguardsincluding a forum to realize the properties have been conceived byvarious legislations in this regard. 17. In the present case, the attempt is to provide a forum forthe religious institutions to retrieve its properties. Even bodieslike Tamil Nadu Housing Board is empowered to evict the encroachersby resorting to Section 84 of the Tamil Nadu Housing Board Act 1961.Therefore, the contention that the religious institutions beingtreated as a separate class was violative of Article 14 of theConstitution cannot be accepted.18. Learned Additional Advocate General placed reliance upon thejudgment of the Supreme Court in M.Karunanidhi -vs- Union of Indiareported in AIR 1979 SC 898 and relied upon the following passagefound in para 8 for the proposition that there is no repugnancybetween the HR & CE Act and Transfer of Property Act and it may beusefully extracted below:-''8. It would be seen that so far as clause (1) ofArticle 254 is concerned it clearly lays down that wherethere is a direct collision between a provision of a lawmade by the State and that made by Parliament withrespect to one of the matters enumerated in theConcurrent List, then, subject to the pro-visions ofclause (2), the State law would be void to the extent ofthe repugnancy. This naturally means that where both theState and Parliament occupy the field contemplated by theConcurrent List then the Act passed by Parliament beingprior in point of time will prevail and consequently theState Act will have to yield to the Central Act. In fact,the scheme of the Constitution is a scientific andequitable distribution of legislative powers betweenParliament and the State Legislatures. First, regardingthe matters contained in List I, i.e. the Union List tothe Seventh Schedule, Parliament alone is empowered tolegislate and the State Legislatures have no authority tomake any law in respect of the Entries contained in List https://hcservices.ecourts.gov.in/hcservices/ I. Secondly, so far as the Concurrent List is concerned,both Parliament and the State Legislatures are entitledto legislate in regard to any of the Entries appearingtherein, but that is subject to the condition laid downby Article 254(1) discussed above. Thirdly, so far as thematters in List II, i.e. the State List are concerned,the State Legislatures alone are competent to legislateon them and only under certain conditions Parliament cando so. It is, therefore, obvious that in such mattersrepugnancy may result from the following circumstances:1. Where the provisions of a Central Act and aState Act in the Concurrent List are fullyinconsistent and are absolutely irreconcilable, theCentral Act will prevail and the State Act willbecome void in view of the repugnancy.2. Where however a law passed by the Statecomes into collision with a law passed by Parliamenton an Entry in the Concurrent List, the State Actshall prevail to the extent of the repugnancy andthe provisions of the Central Act would become voidprovided the State Act has been passed in accordancewith clause (2) of Article 254.3. Where a law passed by the State Legislaturewhile being substantially within the scope of theentries in the State List entrenches upon any of theEntries in the Central List the constitutionality ofthe law may be upheld by invoking the doctrine ofpith and substance if on an analysis of theprovisions of the Act it appears that by and largethe law falls within the four corners of the StateList and entrenchment, if any, is purely incidentalor inconsequential.4. Where, however, a law made by the StateLegislature on a subject covered by the ConcurrentList is inconsistent with and repugnant to aprevious law made by Parliament, then such a law canbe protected by obtaining the assent of thePresident under Article 254(2) of the Constitution.The result of obtaining the assent of the Presidentwould be that so far as the State Act is concerned,it will prevail in the State and overrule theprovisions of the Central Act in their applicabilityto the State only. Such a state of affairs willexist only until Parliament may at any time make alaw adding to, or amending, varying or repealing thelaw made by the State Legislature under the provisoto Article 254. https://hcservices.ecourts.gov.in/hcservices/

19. On the question of introduction of Section 109 of HR & CEAct, the learned Additional Advocate General placed reliance upon theDivision Bench judgment of this Court, which decision though renderedin a civil proceeding, dealt with the scope of section 109. Para 6 ofthe judgment in Sri Raghavendra Swami Mutt rep.by its HereditaryTrustee and Madathipathi Sri Seeshmendra K.Lakshminarayanan -vs-Panchapakesa Iyer reported in (2004) 4 M.L.J. 727 may be usefullyextracted below: ''6. Limitation.: The first question that arisen forconsideration is whether the suit is barred by limitation.The deed of lease was executed on 16.2.1946. Admittedly,Sri Raghavendra Swamy Mutt is a Hindu religious institutionand the properties belong to the said religiousinstitution. Section 109 of the HR & CE Act, 1959, as itstood when the suit was instituted, saved from theoperation of the law of limitation for a suit for therecovery of property belonging to the religious institutionwhich did not vest in a person before 30.9.1951. In otherwords, Section 109 of the HR & CE Act provided that it isnot open to a person to claim adverse possession againstthe property belonging to the religious institution unlesshe has pleaded and proved that the property belonging tothe religious institution was in his possession adverse tothe claim of the said religious institution and theproperty also vested in him prior to 30.9.1951. The deed oflease, admittedly, was entered into on 16.2.1946 and eventhe present defendant on his predecessors-in-title couldnot have claimed adverse possession in the suit property ashe was in the property for less than five years as on30.9.1951 and the present suit is not barred by theprovisions of the Limitation Act. A similar view was takenby a learned Judge of this Court in RajanarayanaperumalTemple -vs- Rethinam Pillai (`1979) 1 MLJ 159, where thelearned Judge held that Section 109 of the HR & CE Act is aspecial provision regarding the law of limitation and thatwould prevail over the general provisions contained in theLimitation Act and by 30.9.1951 if twelve year period hadnot elapsed from the date of transfer of the propertybelonging to the religious institution and the property didnot vest in the defendant, the provisions of the LimitationAct would not apply and the religious institution isentitled to file a suit for recovery of possession of theproperty belonging to the said religious institution. Wehold that suit instituted by the plaintiff is not barred bylimitation." https://hcservices.ecourts.gov.in/hcservices/

20. To counter the plea of hardship caused to the petitioners bythe impugned legislation as contended by the counsel for petitioners,the learned Additional Advocate General placed reliance upon thejudgment of the Supreme Court in Bharat Petroleum Corporation Ltd.-vs- Maddula Ratnavalli and others reported in (2007) 6 SCC 81 andreferred to the following passages found in paragraphs 18 and 19,which may be usefully extracted below:- ''18. We are, however, not oblivious of the legalprinciple that only because a statute causes hardship, thesame may not be declared ultra vires (dura lex sed lex). Wemay, in this regard, notice certain principles.19. In Raghunath Rai Bareja v. Punjab National Bank3it is stated: (SCC pp. 241-42, para 29)“29. Learned counsel for the respondent Banksubmitted that it will be very unfair if theappellant who is a guarantor of the loan, andDirector of the Company which took the loan,avoids paying the debt. While we fully agree withthe learned counsel that equity is wholly infavour of the respondent Bank, since obviously abank should be allowed to recover its debts, wemust, however, state that it is well settled thatwhen there is a conflict between law and equity,it is the law which has to prevail, in accordancewith the Latin maxim ‘dura lex sed lex’, whichmeans ‘the law is hard, but it is the law’.Equity can only supplement the law, but it cannotsupplant or override it.” 21. He also submitted that the temple is represented by its idoland it is in a position of a ''minor" and the Court should be astuteto protect the interests of an idol in any litigation. For thispurpose, reliance was placed upon a judgment of this Court in SriMadhavaperumal Devasthanam, Mylapore, Madras-4 represented byExecutive Officer -vs- Tmt.Dhanalakshmi & Others reported in 1996-1-L.W.231 and the following passage in para 4 may be usefullyreproduced below:-''4. It should not be forgotten that an idol is in theposition of a minor. It has been held in Bishwanath -vs-Radha Ballabhji (AIR 1967 SC 1044) that an idol is in theposition of a minor and when the person representing itleaves it in lurch, a person interested in the worship ofthe idol can certainly be clothed with an adhoc power ofrepresentation to protect its interest. The principle wouldcertainly apply in a case where the persons in managementof a temple have not been as diligent as is necessary in https://hcservices.ecourts.gov.in/hcservices/ conducting a litigation on behalf of the temple. The courtcan take notice of the fact that Executive Officers who areput in charge of the temple are changed periodically and inmany a case, they do not get fully acquainted with thehistory or affairs of the temple. If there is someslackness on the part of the Executive Officer or even thetrustees of the temple, it is the duty of the Court to seethat the idol does not suffer thereby. Courts should beastute to protect the interests of an idol in anylitigation." 22. In the light of the rival submissions, the validity of theprovisions will have to be gone into. In more or less on suchidentical issues raised before a Constitution Bench of the SupremeCourt while challenging the vires of Section 25N of the IndustrialDisputes Act,the Supreme Court repelled such contentions in the caserelating to Workmen of Meenakshi Mills Ltd. & others v. MeenakshiMills Ltd. and another, reported in (1992) 3 SCC 336. While answeringthe questions raised before the Supreme Court, the Supreme Courtnoted four main contentions. Of those contentions, three contentionsand the answers given by the Supreme Court are relevant for thepresent case. Therefore, the first three contentions as found in para36 of the judgment and the relevant passages in which the answerswere given are extracted below:- Contention No.1:Adjudication by a judicial body available in thecase of retrenchment under Section 25-F has beensubstituted by an administrative order passed by anexecutive authority in the case of retrenchment underSection 25-N and thereby a function which wastraditionally performed by Industrial Tribunals/LabourCourts has been conferred on an executive authority.Answer : (para 39)Insofar as the first part of the contention isconcerned, it may be stated that, while construing theprovisions of sub-section (2), we have held that thepower to grant or refuse permission for retrenchment ofworkmen that has been conferred under sub-section (2),has to be exercised on an objective consideration of therelevant facts after affording an opportunity to theparties having an interest in the matter and reasonshave to be recorded in the order that is passed. We havereferred to Rule 76-A of the Industrial Disputes(Central) Rules and Form P-A prescribed under the saidrules for the notice to be served under clause (c) ofsub-section (1) of Section 25-N, and the particulars https://hcservices.ecourts.gov.in/hcservices/ which are required to be supplied by the employer underthe various heads in the said notice. The enquiry, whichhas to be made under sub-section (2) before an ordergranting or refusing permission for retrenchment ofworkmen is passed, would require an examination of thesaid particulars and other material that is furnished bythe employer as well as the workmen. In view of thetime-limit of three months prescribed in sub-section (3)there is need for expeditious disposal which may not befeasible if the proceedings are conducted before ajudicial officer accustomed to the judicial process.Moreover during the course of such consideration it maybecome necessary to explore the steps that may have tobe taken to remove the causes necessitating the proposedretrenchment which may involve interaction between thevarious departments of the Government. This can bebetter appreciated and achieved by an executive officerrather than a judicial officer. We are, therefore,unable to uphold the first part of the contentionrelating to conferment of the power to grant or refusethe permission for retrenchment on the appropriateGovernment.Contention No.2:No guidelines have been prescribed for the exerciseof the power by the appropriate Government or authorityunder sub-section (2) of Section 25-N and it would bepermissible for the authority to pass its order onpolicy considerations which may have nothing to do withan individual employer’s legitimate need to re-organiseits business. The requirement that reasons must berecorded by the appropriate Government or authority forits order under sub-section (2) of Section 25-N is not asufficient safeguard against arbitrary action since noyardstick is laid down for judging the validity of thosereasons.Answer: (Para 42)It has been urged on behalf of the employers that sub-section (2) of Section 25-N does not prescribe anyguidelines or principles to govern the exercise of thepower that has been conferred on the appropriateGovernment or the authority in the matter of grant orrefusal of permission for retrenchment and in theabsence of such guidelines or principles, it will beopen to the appropriate Government or authority to takeinto account matters having no bearing or relevance tothe legitimate need of the employer to re-organise hisbusiness and which may even be opposed to such need and https://hcservices.ecourts.gov.in/hcservices/ it has been pointed that it would be permissible to passthe order by taking into consideration the state ofunemployment in the industry or the state ofunemployment in the State. It has also been submittedthat the requirement that reasons should be recorded inthe order that is passed by the appropriate Governmentor authority would not provide any protection againstarbitrary action because in the absence of principlesgoverning the exercise of the power, there is notouchstone to assess the validity of those reasons. Wefind no substance in this contention. We have alreadydealt with the nature of the power that is exercised bythe appropriate Government or the authority whilerefusing or granting permission under sub-section (2)and have found that the said power is not purelyadministrative in character but partakes of exercise ofa function which is judicial in nature. The exercise ofthe said power envisages passing of a speaking order onan objective consideration of relevant facts afteraffording an opportunity to the concerned parties.Principles or guidelines are insisted on with a view tocontrol the exercise of discretion conferred by thestatute. There is need for such principles or guidelineswhen the discretionary power is purely administrative incharacter to be exercised on the subjective opinion ofthe authority. The same is, however, not true when thepower is required to be exercised on objectiveconsiderations by a speaking order after affording theparties an opportunity to put forward their respectivepoints of view. That apart, it cannot be said that noguidance is given in the Act in the matter of exerciseof the power conferred by sub-section (2) of Section 25-N.Contention No.3 :There is no provision for appeal or revisionagainst the order passed by the appropriate Governmentor authority refusing to grant permission to retrenchunder sub-section (2) of Section 25-N. Judicial reviewunder Article 226 of the Constitution is not an adequateremedy.Answer : (Paras 49 and 55)We are also unable to agree with the submissionthat the requirement of passing a speaking ordercontaining reasons as laid down in sub-section (2) ofSection 25-N does not provide sufficient safeguardagainst arbitrary action. In S.N. Mukherjee v. Union ofIndia (1990) 4 SCC 594) it has been held that https://hcservices.ecourts.gov.in/hcservices/ irrespective of the fact whether the decision is subjectto appeal, revision or judicial review, the recording ofreasons by an administrative authority by itself servesa salutary purpose, viz., it excludes chances ofarbitrariness and ensures a degree of fairness in theprocess of decision-making” (SCC p. 612, para 36). The remedy of judicial review under Article 226 is,in our view, an adequate protection against arbitraryaction in the matter of exercise of power by theappropriate Government or authority under sub-section(2) of Section 25-N of the Act. The third contention is,therefore, rejected. 23. The amendments made to the HR & CE Act cannot be held to beultra vires based upon comparative provisions found in other lawssuch as Transfer of Property Act etc. and such an argument isimpermissible. In State of M.P. -vs- G.C.Mandawar (1955) 1 SCR 599:AIR 1954 SC 493, a Constitution Bench of the Supreme Court held thatArticle 14 does not authorise the striking down of the law of oneState on the ground that in contrast with the law of another State onthe same subject, its provisions are discriminatory, nor does itcontemplate the law of the Centre or of a State dealing with similarsubjects being held to be unconstitutional by a process ofcomparative study of the provisions of the two. The sources ofauthority for the two being different, Article 14 can have noapplication. 24. In Sant Lal Bharati V. State of Punjab (1988) 1 SCC 366:(1988) 2 SCR 107., the Supreme Court reiterated the same view.25. In State of Tamil Nadu and others Vs. Ananthi Ammal andothers, reported in 1995(1) S.C.C.519 the Supreme Court while dealingwith a similar subject, in para:7, observed as follows:-"7. When a statute is impugned under Article 14 what theCourt has to decide is whether the statue is so arbitraryor unreasonable that it must be struck down. At best, astatute upon a similar subject which derives its authorityfrom another source can be referred to, if its provisionshave been held to be reasonable or have stood the test oftime, only for the purpose of indicating what may be saidto be reasonable in the context."26. A Constitution Bench of the Supreme Court in Meenakshi Millscase (cited supra) laid down guide lines for dealing with vires of https://hcservices.ecourts.gov.in/hcservices/ statute and quoted the dictum of Patanjali Sastri. C.J. in State ofMadras Vs. V.G.Row reported in 1952 SCR 597 and recorded the same asthe classic exposition of law on the subject. The said passage isfound in page 358 of the report in V.G.Row's case (cited supra) andit may be usefully extracted below:-"It is important in this context to bear in mind that thetest of reasonableness, wherever prescribed, should beapplied to each individual statute impugned, and noabstract standard, or general pattern, of reasonablenesscan be laid down as applicable to all cases. The nature ofthe right alleged to have been infringed, the underlyingpurpose of the restrictions imposed, the extent and urgencyof the evil sought to be remedied thereby, thedisproportion of the imposition, the prevailing conditionsat the time, should all enter into the judicial verdict.In evaluating such elusive factors and forming their ownconception of what is reasonable, in all the circumstancesof a given case, it is inevitable that the socialphilosophy and the scale of values of the judgesparticipating in the decision should play an importantpart, and the limit to their interference with legislativejudgment in such cases can only be dictated by their senseof responsibility and self-restraint and the soberingreflection that the Constitution is meant not only forpeople of their way of thinking but for all and that themajority of the elected representatives of the people have,in authorising the imposition of the restrictions,considered them to be reasonable."27. Further, the Supreme Court in Papnasam Labour Union Vs.Madura Coats Ltd and another reported in (1995) 1 SCC 501 dealt withthe principles and guidelines that should be kept in mind forconsidering the constitutionality of a statutory provision upon achallenge on the alleged vires or unreasonableness of the restrictionimposed by the said legislation. In doing so, the Supreme Courtsurveyed all its previous decisions and culled out those guidelinesalong with its sources. They are found in Para:15 of the judgment andit may be worth quoting:-''(a).The restriction sought to be imposed on theFundamental Rights guaranteed by Article 19 of theConstitution must not be arbitrary or of an excessivenature so as to go beyond the requirement of felt need ofthe society and object sought to be achieved. (ChintamanRao V. State of M.P. 1950 SCR 759). (b).There must be a direct and proximate nexus or areasonable connection between the restriction imposed andthe object sought to be achieved. (O.K.Ghosh V.E.X.Joseph,AIR 1963 Supreme Court 812)(c).No abstract or fixedprinciple can be laid down which may have universal https://hcservices.ecourts.gov.in/hcservices/ application in all cases. Such consideration on thequestion of quality of reasonableness, therefore, isexpected to vary from case to case.(KavalapparaKottarathil Kochuni V. State of Madras & Kerala). (d).In interpreting constitution provisions,courts should be alive to the felt need of the society andcomplex issues facing the people which the Legislatureintends to solve through effective legislation. (JyotiPershad V. Administrator for Union Territory of Delhi, AIR1961 SC 1602.)(e)In appreciating such problems and felt need ofthe society the judicial approach must necessarily bedynamic, pragmatic and elastic.(Jyoti Pershad V.Administrator for Union Territory of Delhi, AIR 1961 SC1602.)(f)It is imperative that for consideration ofreasonableness of restriction imposed by a statute, theCourt should examine whether the social control asenvisaged in Article 19 is being effectuated by therestriction imposed on the Fundamental Rights.(State ofMadras V. V.G.Row, AIR 1952 SC 196).(g)Although Article 19 guarantees all the sevenfreedoms to the citizen, such guarantee does not conferany absolute or unconditional right but is subject toreasonable restriction which the Legislature may impose inpublic interest. It is therefore necessary to examinewhether such restriction is meant to protect socialwelfare satisfying the need of prevailing social values.(State of Madras V. V.G.Row, AIR 1952 SC 196).(h)The reasonableness has got to be tested bothfrom the procedural and substantive aspects. It shouldnot be bound by processual perniciousness or jurisprudenceof remedies. (Fatehchand Himmatlal V. State ofMaharashtra, (1977) 2 SCC 670.(j)Restriction imposed on the Fundamental Rightsguaranteed under Article 19 of the Constitution must notbe arbitrary, unbridled, uncanalised and excessive andalso not unreasonably discriminatory. Ex hypothesi,therefore, a restriction to be reasonable must also beconsistent with Article 14 of the Constitution.(k)Injudging the reasonableness of the restriction imposed byclause (6) of Article 19, the Court has to bear in mindDirective Principles of State Policy. (Kesavananda BharatiSripadagalvaru Vs. State of Kerala, (1973) 4 SCC 225.(l)Ordinarily, any restriction so imposed which hasthe effect of promoting or effectuating a directingprinciples can be presumed to be a reasonable restrictionin public interest. (Workmen V. Meenakshi Mills Ltd (1992)3 SCC 336". https://hcservices.ecourts.gov.in/hcservices/

28. Therefore, in the light of the above legal precedents, itmust be stated that the challenge to the amendment made in this writpetition cannot be countenanced by this Court and are liable to berejected. The Amendment Act has validly classified the encroachers,other interest holders and title holders of the properties and hastreated them differently. In respect of the encroachers, a proceduralright of hearing has been given. The Joint Commissioner, HR & CE, whois the competent authority, first of all must have information beforehim so that he can have 'reason to believe' that a person hadencroached upon the property of a religious institution. Thereafterhe should 'prima facie' come to the conclusion that the person is anencroacher in terms of explanation to section 78(1). It is only on aprima facie conclusion he can order notice to the alleged encroachersas well as to the trustees of the religious institution. Section 78(4) gives three statutory mandate on the competent authority. Theyare that he should conduct such 'enquiry' as may be prescribed and heshould be 'satisfied' that there was an encroachment and only by anorder in which he has to 'record reasons' he can direct removal ofsuch a person.29. In case the competent authority fails to follow the mandateof section 78, judicial review under Article 226 is clearly availableto such aggrieved persons. Therefore, even in the absence of anyappeal, as directed by the Constitution Bench of the Supreme Court inMeenakshi Mills case, it is not as if parties are without remediesand they can move this Court under Article 226. Therefore, on thisscore this section cannot be held to be unconstitutional.30. With reference to persons who have some interest such as ex-lessees, licencees or mortgagees, the Act did not leave them high anddry and for the developments made by them in the property in casethey were deprived of it, section 82 provides for compensation to bedetermined by a Tribunal.31. So far as the titleholders are concerned, Section 79(2)provides for approaching the civil court for establishing theirtitle. The argument that section 79(3) bars grant of injunction isnot a true statement of law. Section 79(2) bars only the proceedingstaken under section 78 by which only an encroacher is given notice.Since the title holder of the property is protected by section 79 (2)and the said sub-section has a non-obstante clause, the Civil Courtgranting injunction is not barred under section 79(3). But, it is,however, subject to prima facie case or balance of convenience to bepleaded and proved to the satisfaction of such Civil Court.32. Since section 109 is only akin to Section 10 of theLimitation Act, no exception can be taken about the removal oflimitation for taking action to restore the temple properties. It is https://hcservices.ecourts.gov.in/hcservices/ not as if there is no other legislation which do not providelimitation. To cite an example, a reference may be made to theIndustrial Disputes Act, 1947. 33. In view of the above foregoing, the challenge to theimpugned provisions are not valid and they must necessarily fail.Accordingly, all the writ petitions stand dismissed. However, therewill be no order as to costs.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.jsTo1. The Secretary State of TamilnaduCT & RE DepartmentFort St. George, Chennai-9.1a. The Joint Commissioner, HR & CE Department, Madurai.2. The Assistant Commissioner, HR & CE Department, Madurai.3. The Executive Officer-cum-Joint Commissioner, representing Arulmigu Dhandhayuthapani Thirukoil, Adivaram, Palani. 4. The Joint Commissioner, T.N. HR & CE, Administration Department, Chennai-34.5. The Assistant Commissioner, T.N.HR & CE Administration Department, Chennai-34.6. The Executive Officer, Madhavaperumal Temple, Mylapore, Chennai-4. https://hcservices.ecourts.gov.in/hcservices/

7. The Inspector, T.N.Hindu Religious and Charitable Endowments, Administration Dept, Chennai-34.8 The CommissionerTamilnadu HR and CE Administration DepartmentChennai-34.9. The Secretary to Government of T.N. Law Department, Secretariat, Chennai-9. 10. The Commissioner, HR & CE Department, Nungambakkam High Road, Chennai-600 034.11. The Joint Commissioner, HR & CE Department, Myladuthurai.12. The Executive Officer, Arulmighu Padaleeswarar Devasthanam, Cuddalore-2.13. The SecretaryState of TamilnaduHR & CE DepartmentFort St. George, Chennai-9.1 cc to Government Pleader, SR. 59630 1 cc to mr.M. Sriram, Advocate, SR. 599561 cc to Mr.K.N. Pandian, Advocate, Sr. 596892 ccs to Mr.R. Kannan, Advocate, Sr. 595991 cc to Mr.K. Chandrasekaran, Advocate, SR. 597751 cc to Ms. Chitra Sampath, Advocate, SR. 59576 W.P.Nos.10447, 14388 to14391, 14377 to 14381,15358, 15359 and 983 of 1999 CK (CO)kk 31/10