High Court · 2011

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED; 06.09.2011CORAM;THE HONOURABLE MR.JUSTICE T.RAJAW.P.NOs.30923 to 30925 OF 2008and M.P.Nos.1 to 1 of 2008A.Ramamurthy son of Arumugha MudaliarTenantArulmighu Selliamman ThirukoilRiver Palar BankVellore-Katpadi RoadVellore..Petitioner in W.P.No.30923/2008V.B.Jayaraman son of BalakrishnanTenantArulmighu Selliamman ThirukoilRiver Palar BankVellore-Katpadi RoadVellore..Petitioner inW.P.No.30924/2008 S.V.S.Manison of Varadaraj MudaliarTenantArulmighu Selliamman ThirukoilRiver Palar BankVellore-Katpadi RoadVellore..Petitioner inW.P.No.30925/2008 vs1.The CommissionerHindu Religious and Charitable EndowmentsChennai2.The Joint CommissionerHindu Religious and Charitable EndowmentsVellore https://hcservices.ecourts.gov.in/hcservices/

3.The Assistant CommissionerHindu Religious and Charitable EndowentsVellore4.The Executive Officer-cum-Fit PersonArulmighu Selliamman ThirukoilRiver Palar BankVellore-Katpadi RoadVellore..Respondents inW.P.Nos.30923 to 30925 of 2008Writ Petition Nos.30923/2008, 30924/2008 and 30925/2005 arefiled under Article 226 of the Constitution of India praying forissuance of a writ of Certiorari calling for the records of the casein the proceedings of the second respondent in Na.Ka.No.4717/2006/E1under Section 78 of the Tamil Nadu Hindu Religious and CharitableEndowments Act 1959 and quash the impugned order dated 18.12.2008passed by the second respondent in his proceedingsNa.Ka.No.4717/2006/E1 as illegal and invalid. for petitioners inW.P.Nos.30923 to 30925/2008:Mr.T.P.Prabakaranfor respondents inW.P.Nos.30923 to 30925/2008 :Mr.R.Kannan Government Advocate (for R1 to R3) Mr.P.V.Arulphazam Nee (for R4)O R D E R These three writ petitions are filed separately by thepetitioners against a common order passed by the 2nd respondent-JointCommissioner, Hindu Religious and Charitable Endowments Department inNa.Ka.No.4717/2006/E1 dated 18.12.2008 under Section 78 of the HinduReligious and Charitable Endowments Act 1959 and to quash the same asillegal and invalid.2.All these three petitioners claim to be the tenants sincethey have been granted lease of an extent of 70 feet x 33 ¼ feet ofthe property comprised in S.Nos.10/1 and 11/1 belonging to ArulmighuSelliamman Temple situated at the bank of River Palar at Vellorecoming under the control and management of the Tamil Nadu HinduReligious and Charitable Endowments Department.3.The learned counsel appearing for the petitioners submitsthat these three petitioners were granted lease of the abovesaid landjust adjacent to the said temple Arulmighu Selliamman Thirukkoil.Therefore, they erected a workshop to carry on the trade of repairing https://hcservices.ecourts.gov.in/hcservices/ of lorries and trucks etc in the year 1981. From the date of leaseof the land in question they have been making regular payment withoutdefault though the 4th respondent-Executive Officer, HR&CE Departmentis not in the habit of issuing any rental receipt. When the matterstood as above, in the month of June 2005, the Vellore DistrictAdministration and the Vellore Municipality decided to shift the busstation from its original location opposite to the Vellore Fort tothe NAFED ground situated West of the Arulmighu Selliamman Temple inview of the necessity caused by the heavy traffic congestion, severesafety problems and inadequate amenities. Accordingly, the busstation was shifted to the NAFED ground situated right behind thetemple. Since access to the said bus station was unavailable fromthe New Vellore-Chittoor Road, the temple authorities were requestedin the year 2005 to provide access through the temple land. In turn,the temple authorities made a request to the petitioners. At therequest of the temple and the District Administration as well as theVellore Municipality, all these three writ petitioners (1)A.Ramamurthy (2) V.B.Jayaraman and (3)S.V.S.Mani agreed to vacatetheir respective workshops and allowed the same to be demolished toserve the public cause. In this process, the petitioners lost theironly source of income and incurred huge loss on account of demolitionof the work shop. In appreciation of the immediate gesture of helpin serving the public cause, the District Collector of Vellore aswell as the temple authorities have come forward to grant alternativesites to the petitioners admeasuring in 33 1/4 feet by 70 feet toeach of the petitioners at the place adjacent to the entrance of thebus stand. But, in view of exigency of time, no lease deed wasexecuted. However, a monthly rent was fixed at Rs.1,000/- by the 4threspondent in consultation with the first and the third respondents.4.The learned counsel appearing for the petitioners has alsomade his submissions by immediately adverting the counter filed bythe 4th respondent. In para 2 of the counter it has been admitted bythe 4th respondent that the petitioners were provided withalternative site measuring about 70' x 33 ¼' in Survey Nos.10/1 and11/1 belonging to the fourth respondent temple, at the interventionof the then Collector of Vellore District due to urgency of publicpurpose of formation of new bus stand for Vellore Town, thealternative site was provided to the petitioners tentatively by thethen Executive Officer on condition that the petitioners shouldneither sublet nor alter their purpose of business of running motormechanic shed and pay Rs.1,000/- till the higher official of HR & CEDepartment accept them as tenants, by fixing fair rent in accordancewith the rules and regulations and accepting the petitioners aslessee of the new site. 5.The learned counsel further added that as the new bus standhas become functional, the petitioners could not carry on the oldtrade of repairing heavy motor vehicles. Since the approach to thebus stand was so congested and choked with human and vehicular https://hcservices.ecourts.gov.in/hcservices/ movement with atleast six policemen regulating the traffic round theclock, the petitioners could not function continuously for the reasonthat the vehicles’ owners could not bring the vehicles for repairs onaccount of additional traffic congestion which has made the entirearea under heavy control of the traffic police. Further, a hugetransformer put up by the Electricity Department also prevented freeaccess to the petitioners' newly let out premises. Frequentintervention of the police on account of the traffic rules caused thepetitioners’ workshop business completely dwindled day by day. Inview of that all the three petitioners decided to start a new hotelcatering vegetarian food. On that basis they started a hotel byinforming the 2nd and 4th respondents regarding the change inbusiness. They put up a hotel and after some time, the 4threspondent issued a legal notice dated 14.7.2005 under Section 176 ofthe Transfer of Property Act. The learned counsel further submittedthat in the said notice dated 14.7.2005 having safely admitted thecase of the petitioners that they are the tenants of ArulmighuSelliamman Koil on a monthly rent of Rs.1,000/- it goes withoutsaying that the petitioners are not encroachers. Therefore, thepetitioners issued a reply notice dated 22.7.2005 categoricallyrefuting the contentions made in the notice given by the 4threspondent that they cannot deal with the petitioners as encroachersas they have become tenants on payment of monthly tenants. However,in the meanwhile, the 4th respondent filed a O.S.No.526/2005 on thefile of the learned Additional District Munsif, Vellore categoricallyadmitting the case of the petitioners that they are all tenants inthe property of the temple. The petitioners also filed a writtenstatement and the same was posted for trial. In these circumstances,during the pendency of the Civil Suit when the petitioners' legalstatus as tenants was accepted by the respondent, the petitioners metthe first respondent-Commissioner, Hindu Religious and CharitableEndowments on 29.8.2005 and on 30.11.2005 and explained theirposition and in the course of discussion, the petitioners also agreedto pay the enhanced rent. Accepting the said proposal, the firstrespondent also referred the petitioners to the 3rd respondent-Assistant Commissioner, Hindu Religious and Charitable Endowments,Vellore and called for his remarks. The 3rd respondent alsoconducted enquiry by examining the petitioners and thereafter, herecommended the petitioner's proposal to the second respondent. Butno final decision was taken on the said proposal. At this juncture,the Joint Commissioner of Vellore assumed charge. After some time,his activities have attracted a public outcry. Therefore, somepeople pasted posters implicating his wrong doing in all prominentplaces of the town. But, unfortunately, the Joint Commissioner,H.R.& C.E., Vellore suspected the petitioners were behind suchpublication of the posters that were struck by various other persons,called upon the petitioners to his office under the wrong impressionthat the petitioners were behind the publication of such notices andinformed the petitioners to vacate the land in question, failingwhich, he threatened that the petitioners would be evicted despite https://hcservices.ecourts.gov.in/hcservices/ the Civil Suit was pending against them. Subsequently, police alsoenquired with regard to the publication and sticking of posters. Asthe petitioners explained to them that they had nothing to do withsuch publications, they were issued with a notice dated 30.6.2006under section 78(2) of the HR&CE Act by initiating the evictionproceedings as though the petitioners are encroachers, particularly,when the matter is pending on the file of the learned AdditionalDistrict Munsif, Vellore. Under those circumstances, the petitionerswere compelled to file a W.P.Nos.22132, 22133 and 22134/2006 and thesame were pending on the file of this Hon'ble Court. In WPMP No.1 of2006 in the said writ petitions, interim stay was granted. However,this Hon'ble Court was pleased to vacate the order of staysubsequently permitting the second respondent to proceed with theenquiry under Section 78 of the HR&CE Act. Again the petitionersfiled W.P.No.2868/2008 challenging the constitutional validity of theprovisions of section 78 of the HR & CE Act. The said writ petitionwas also dismissed at the admission stage. Thereafter, once again anotice dated 16.9.2008 was issued. Accepting the said notice thepetitioners attended the enquiry specifically disputing theallegations that they were not defaulted in making the monthly rentto the respondent. The second respondent finally posted the matterfor enquiry on 16.12.2008 and thereafter, without properly conductingthe enquiry passed the impugned order evicting the petitioners fromthe premises vide order dated 18.12.2008. The said order was sent byregistered post on 18.12.2008 to the petitioners. Aggrieved by thesaid orders, the present writ petitions have been filed by thepetitioners separately. 6.By narrating the above facts the learned counsel for thepetitioners placed the following submissions:(i)When the 4th respondent-the Executive Officer-cum-FitPerson in his counter affidavit categorically admitted the status ofthe petitioners that they were all provided with an alternative sitemeasuring about 70 feetx 33 ¼ feet in Survey Nos.10/1 and 11/1belonging to the 4th respondent temple at the intervention of thethen Collector of Vellore District due to urgency and public purposeof formation of new bus stand for Vellore Town, on condition thatthey should pay the rent of Rs.1,000/-, that goes without saying thatthe petitioners are statutory tenants and therefore, they cannot beconstrued as encroachers.(ii)Secondly, when the respondents issued a legal notice dated14.7.2005 calling upon the petitioners under Section 106 of theTransfer of Property Act terminating the tenancy, once again theyadmitted the case of the petitioners that the petitioners are allstatutory tenants.(iii)Thirdly, when the 4th respondent filed a suitO.S.No.526/2005 on the file of the learned Additional DistrictMunsif, Vellore seeking permanent injunction restraining the https://hcservices.ecourts.gov.in/hcservices/ defendant from putting up any construction, whatsoever, over the suitproperty without the permission of the plaintiff and mandatoryinjunction directing the defendant to remove all the constructionsput up on the suit property by him and in case of his failure to doso, to have the constructions removed through the process of court,it is not open to the respondents to call the petitioners asencroachers.(iv)By relying on the judgment of a Division Bench rendered inW.A.(MD)No.694/2009 dated 23.02.2010 (K.V.LAKSHMI AMMAL V. THE JOINTCOMMISSIONER, HINDU RELIGIOUS AND CHARITABLE ENDOWMENT DEPARTMENT,MADURAI AND ANOTHER) it was heavily contended by the learned counselappearing for the petitioners that enquiry as contemplated undersection 78(4) of the HR&CE Act is that the authority should give thenecessary opportunity to the petitioners concerned including that ofcross-examination of witnesses, production of documents, summoning ofwitnesses and also availing of the help of lawyer. It is more orless a full- fledged enquiry of that of a Civil Court that theproceedings are covered by the Act. When there has been a full-fledged enquiry contemplated, without giving any full-fledged enquiryas per the order passed in W.A.(MD)694/2009 dated 23.2.2010,summarily rejecting the petitioners from the land in question thatwas given as an alternative by the 4th respondent is not onlycontrary to law, but also running contrary to the provisions ofSection 78(4) of the HR&CE Act.7.(i)In reply, the learned counsel appearing for the secondrespondent-Joint Commissioner, HR&CE submitted that it was false tostate that the District Collector and the temple authority grantedalternative site in view of giving way to the bus station and neitherthe Collector nor the temple authority has got any power to grantalternative site. (ii)Further, it was contended by the learned counselappearing for the second respondent that the petitioners had nevergot any consent from the second respondent regarding change ofbusiness since the 4th respondent had no power to permit or sanctionor allow to make any alteration in the area or other terms of a leasewithout getting the approval of the first respondent-Commissioner,HR&CE. On that basis, it was contended that the petitioners are inunlawful possession and therefore, the termination of tenancy isnecessary and on that basis the 4th respondent issued notice to thepetitioners calling upon them to vacate and hand over the vacantpossession since they continued as encroachers. (iii)When the petitioners challenged the notice dated30.6.2006 in W.P.Nos.22132, 22133 and 22134 of 2006, theM.P.Nos.1/2006 were dismissed by this Court on the ground that theywere not maintainable as they challenged the show cause notices.Once again the petitioners filed another set of W.P.Nos.24557, 24558 https://hcservices.ecourts.gov.in/hcservices/ and 24559 of 2006 before this Court by challenging the validity ofSection 78 of the HR&CE Act XXII of 1959 in respect of removal ofunauthorised occupants. Those writ petitions were dismissed on1.12.2009 in the light of the order passed by this Court inW.P.No.10447 of 1999 upholding the validity of the said provisions.After dismissal of the said writ petitions, the Executive Officer,HR&CE reported that a sum of Rs.6,03,468/- was remaining unpaid upto31.8.2008 by the temple as arrears of rent for the use of templeproperty by the petitioner. After taking all these factors intoconsideration, the Joint Commissioner, HR&CE Department, Vellore hadissued a further notice to all the three unauthorized occupants inhis R.C.No.4717/2006/C1 dated 16.09.2008 to show cause as to why theyshould not be evicted from the temple property. Thereafter, thepetitioners, also filed their counter dated 25.11.2008 before theJoint Commissioner, HR&CE Department, Vellore through their counsel.Thereafter, since the enquiry contemplated under Section 78(2) of theHR&CE Act XXII of 1959 is a summary eviction proceeding, the JointCommissioner, HR&CE Department in exercise of his power under Section78(4) of the Act, passed the impugned order dated 18.12.2008 evictingthe petitioners from the temple property.(iv) The learned counsel appearing for the second respondentalso submitted that the Joint Commissioner, HR&CE Department alsosupported the case of the 4th respondent that the HR&CE Act is aSpecial Act and that is only applicable for a religious institutionunder its purview. Hence, the provisions of the Special Act willprevail over in respect of the religious institutions, the provisionsof the general law, namely, Transfer of Property Act and further hementioned that the very purpose of the new provision under Section 78of the HR&&CE Act is to reduce the burden of Civil Courts from tryingseveral lakhs of cases of encroachments in the properties belong toreligious institutions. On this basis, the learned counsel justifiedthe impugned order passed under Section 78 of the H&&CE Act forremoving the petitioners as encroachers. 8.The submissions made by the learned counsel appearing forthe 4th respondent in support of the submission made by the learnedcounsel appearing for the second respondent taking the stand that theprocedure contemplated under Section 78(2) is only a summaryproceeding, is running contrary to the judgment of the Division Benchrendered in W.A.(MD) No.694/2009 dated 23.2.2010 in the case ofK.V.LAKSHMIAMMAL V. THE JOINT COMMISSIONER, HR&CE DEPT., MADURAIAND ANOTHER. 9.First of all, let us be clear on the status of thepetitioners whether they are encroachers or tenants. The answer liesin the counter filed by the 4th respondent-The Executive Officer-cum-Fit Person. The relevant portion of the counter filed by the 4threspondent is extracted hereunder: https://hcservices.ecourts.gov.in/hcservices/ "2.I submit that when the administration of A/MSelliamman Thirukoil, Vellore came under the control of HinduReligious and Charitable Endowments Department in the year onand from 15.09.2004, the petitioner herein is in occupation ofthe land belonging to the said temple on the banks of riverPalar, and wherein he was running a workshop for repairingvehicles etc., that in the year 2005, when the said land wasacquired by Govt. of Tamil Nadu for entrance of the new busstand of Vellore, the petitioner herein was provided with analternative site measuring about 70'X33 ¼' in Survey No.10/1 and11/1 belonging to the fourth respondent temple, at theintervention of the then Collector of Vellore District due tourgency of public purpose of formation of new bus stand forVellore Town, that the alternative site was provided to thepetitioner tentatively, by the then executive officer, oncondition the petitioner should neither sublet nor alter theirpurpose of business of running motor mechanic shed and payRs.1,000/- till the higher official of HR & CE Department acceptthem as tenant, fixing fair rent in accordance with the rulesand regulation of the department and accepting the petitioner aslessee of the new site,"A reading of the counter goes to show that the petitioners wereinducted as tenants in the land in question admeasuring 70'x33 ¼' inSurvey Nos.10/1 and 11/1 belonging to the 4th respondent at theintervention of the then Collector of Vellore District. Therefore,once the petitioners’ status as tenants is admitted by the 4threspondent, then they cannot proceed with, as though, they are theencroachers. Subsequently, when notices were issued calling upon thepetitioners to clear their arrears of rent, the petitionersadmittedly paid their rent clearing of the arrears and it is alsoadmitted by the parties that till now there is no outstanding arrearspending against the petitioners. 10.The admission of the 4th respondent that they should beevicted by way of summary proceedings in pursuant to the impugnednotice dated 16.9.2008 naming them as unauthorised occupants, alsocannot be legally maintainable in the light of the judgment of theDivision Bench of this Court in W.A.(MD) No.694/2009 dated 23.2.2010in the case of K.V.LAKSHMIAMMAL V. THE JOINT COMMISSIONER, HR&CEDEPT., MADURAI AND ANOTHER. Paragraphs 13, 14, 15 and 16 of thesaid judgment are extracted hereunder:"13.On a reading of the rules, it is very clear that theenquiry as contemplated under Section 78(4) is that theauthority should give the necessary opportunity to thepetitioner concerned including that of cross-examination ofwitnesses, production of documents, summoning of witnesses andalso availing of the help of lawyer. It is more or less, afull-fledged enquiry of that of a Civil Court, when the https://hcservices.ecourts.gov.in/hcservices/ proceedings are governed by the Act. The apprehension of thepetitioner at this point of time even at the show cause noticestage itself is totally unacceptable. The petitioner knowingfully well that the remedy is given under the Act itself, hasunnecessarily chosen to file writ petition to drag on theproceedings.14.In fact, even in the writ petition, the learned SingleJudge has very specifically stated that the first respondent isdirected to complete the proceedings initiated by him, by way ofthe impugned notice, dated 19.01.2009, under Section 78(2) ofthe Hindu Religious and Charitable Endowments Act, 1959, aftergiving an opportunity of hearing the petitioner, the secondrespondent temple as well as to the other parties concerned. Itis not known why the appellant has chosen to file this appealitself. The only reason being to squat on the property, shefiled writ. If really she has the right over the property, itis always open to the petitioner to establish her right inrespect of the property, in the manner known to law in theenquiry before the competent authority, wherein she would havean ample opportunity to produce documents, produce evidence andto submit the same even through a legal counsel. Under thosecircumstances, as rightly pointed out by the learned SingleJudge, the writ petition is not at all maintainable.15.The learned counsel for the appellant relied upon adecision report in 1995 Supp.(2)Supreme Court Cases 290 (Stateof Rajasthan v. Padmavati Devi (Smt)Dead by LRs and others) forthe proposition that if there is a bona fide dispute, summaryprocedure should not be imposed for evicting even from thepublic premises, eviction from the unauthorised occupation.16.As stated supra since the Act contemplates specificprocedure, whereby it is not a summary in nature it is anenquiry to be conducted "as far as practicable" like a suit, itcannot be treated as a summary procedure."A reading of the abovementioned four paragraphs of the judgment dealswith section 78(4) of the HR&CE, 1959 holding that enquiry ascontemplated under Section 78(4) is not summary in nature and it isan enquiry to be conducted as far as practicable like a suit. Theimpugned order passed by the respondent, namely, the 2nd and 4threspondents that the petitioners have been dealt with under anenquiry by way of summary procedure, is required to be interferedwith. As held earlier that the petitioners even as per the admissionof the 4th respondent in their counter have become statutory tenantsand therefore, they should be dealtwith by a full-fledged enquiryunder Section 78(4) of the HR&CE Act by giving reasonableopportunities including that of cross-examination of witnesses,production of documents, summoning of witnesses and also availing of https://hcservices.ecourts.gov.in/hcservices/ the help of lawyer. It is more or less, a full-fledged enquiry ofthat of a Civil Court, when the proceedings are governed by the Act. 11. In the decision rendered in W.P.Nos.10447 to 14377, 14388to 14391, 15358, 15359, 983 of 1999 dated 28.10.2008, this Court hasheld that the Joint Commissioner of Hindu Religious and CharitableEndowments, who is the competent authority, must have informationwhether a person is an encroacher or a tenant so as to give him aprocedural right of hearing so that he could have a reason to believethat a person has encroached upon the property of the religiousinstitutions. Only after reaching the conclusion that a person is anencroacher in terms of section 78(2), he could decide whether aperson should be given an enquiry which is summary in nature or afull-fledged enquiry like the suit. But, in the case on hand, thevery admission of the respondents that the petitioners were given theland in question by way of lease makes the case of the petitionersthat they became lawful tenants. Therefore, they cannot be dealtwith as encroachers by way of summary procedure.12. It is the case of the respondents that they have filed aCivil Suit in O.S.No.526/2005 on the file of the learned AdditionalDistrict Munsif, Vellore categorically admitting the status of thepetitioners as tenants in the property of the temple. The suit isfiled and the matter is posted for trial, but the said suit, ofcourse, in view of judgment of this Court in B.SHAJI V. SREEPRAVARASWAMY DEVASTHANAM (2010 (3) CTC 851), the Civil Suit forrecovery of possession filed by the respondent department is notmaintainable. Therefore, the stand taken by the respondents in thesuit accepting the status of the petitioners as tenants goes againstthe way in which the respondents have summarily rejected thepetitioners by treating them as unauthorised occupants without givingthem a full-fledged enquiry. 13.In view of the above, the impugned order directing thepetitioners to be evicted by way of summary proceeding is set asideand the respondents are directed to give them a full-fledged enquiryand proceed with them in accordance with law.14.Consequently, all these three writ petitions are allowed.No costs. Connected pending M.Ps.are disposed of.Sd/Asst. Registrar/true copy/Sub Asst.Registrarsal https://hcservices.ecourts.gov.in/hcservices/ To1.The CommissionerHindu Religious and Charitable EndowmentsChennai2.The Joint CommissionerHindu Religious and Charitable EndowmentsVellore3.The Assistant CommissionerHindu Religious and Charitable EndowentsVellore4.The Executive Officer-cum-Fit PersonArulmighu Selliamman ThirukoilRiver Palar BankVellore-Katpadi Road,Vellore1 cc To Mr.T.P.Prabhakaran, Advocate, SR.54836.3 cc To The Government Pleader, SR.54762, 54763, 54764.W.P.NOs.30923 to 30925/2008RSI(CO)RVL 06.09.2011