Madras High Court
M/S. Rajam Hotels P.Ltd vs The State Of Tamil Nadu on 7 October, 2021
W.P.No.31132 of 2013 & M.P.No.1 of 2013
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 07.10.2021
CORAM
THE HONOURABLE MR.JUSTICE M.SUNDAR
W.P.No.31132 of 2013
&
MP.No.1 of 2013
M/s. Rajam Hotels P.Ltd.,
Rep. by its authorized signatory
Mr. J. Joseph,
No.14, Aziz Nagar 2nd Street,
Kodambakkam,
Chennai - 600 024. ... Petitioner
Vs
1. The State of Tamil Nadu,
Rep.by its Secretary,
Revenue Department,
Fort St. George,
Chennai - 600 009.
2. The District Collector,
Kancheepuram District,
Kancheepuram.
3. The Tahsildar,
Sriperumbudur Taluk,
Sriperumbudur,
Kancheepuram District.
4. The Executive Officer,
Arulmigu Kasi Viswanathaswami Thirukoil &
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W.P.No.31132 of 2013 & M.P.No.1 of 2013
Arulmigu Venugopalswami Thirukoil,
Office at Arulmigu Varadarajaperumal Koil
Poonamallee.
5. The Commissioner of Hindu Religious &
Charitable Endowments Department
Nungambakkam
Chennai – 34 ...Respondents
(R5 impleaded vide order dated 28.09.2021
made in W.P.No.31132 of 2013)
Prayer: Petition filed under Article 226 of the Constitution of India to
issue a Writ of Certiorarified Mandamus or any other writ or order in the
nature of writ calling for the records pertaining to the 3rd respondent's
unilateral demand notice bearing Na.Ka.No.4808/2007-A4, dated 01-08-
2013 pertaining to the lands measuring 4.16 Acres comprised in Survey
Nos. 352/4, 16.78 Acres in Survey No.354/2 and 0.12 acres in Survey
No.365 totally measuring 21.06 Acres situated in Mevalur Kuppam-B
Village, Sriperumbudur Taluk, Kancheepuram District, quash the same
and forbearing the respondents interference with the petitioners peaceful
possession and enjoyment of the said property without due process of
law and render justice.
For Petitioner : Mr. K.Ramakrishnan Reddy
For R1 to R3 : Ms. Amirta Dinakaran
Government Advocate
For R4 : Mr.A.K.Sriram
of M/s.A.S.Kailasam Associates
(Law Firm)
For R5 : Mr.NRR.Arun Natrajan
Government Advocate
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W.P.No.31132 of 2013 & M.P.No.1 of 2013
ORDER
In six weeks from now, captioned writ petition will turn nine in
this Court as it was filed in November of 2013, to be precise on
18.11.2013. Therefore, come November 18th i.e., next month, captioned
writ petition will turn nine and enter the year, which will take it to
making it a decade old case.
2. Be that as it may, captioned writ petition has been filed assailing
a notice dated 01.08.2013 bearing Reference Na.Ka.4808/2007-A4
(hereinafter 'impugned notice' for the sake of brevity, convenience and
clarity) issued by the third respondent demanding a lease amount
(Fj;jif bjhif) of Rs.1,08,69,423/- for different extents of lands,
comprised in four different Survey Nos.364/1, 354/2, 354/3 and 354/2.
This Court is informed that these four Survey Numbers are contiguous
and it is an admitted position qua the writ petitioner that the total extent
of land is 21.06 Acres (19.29 Acres) in all. Writ petitioner is a Private
Limited Company and there is no disputation that the writ petitioner
Company is running a hotel and an amusement theme park in this extent
of 21.06 Acres (19.29 acres) of land, which shall hereinafter be referred
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W.P.No.31132 of 2013 & M.P.No.1 of 2013
to as 'demised land' for the sake of convenience and clarity.
3. Notwithstanding very many averments and several grounds
raised in the writ affidavit, Mr. K.Ramakrishnan Reddy, learned counsel
for writ petitioner makes a lone pointed submission in the hearing and
that is, impugned notice has been issued without giving an opportunity to
the writ petitioner i.e., a show cause notice, as it has straight away made
a demand. To be noted, writ petitioner has responded to the impugned
notice by way of a detailed communication dated 10.09.2013 addressed
to the third respondent. A careful perusal of this reply of the writ
petitioner company brings to light that writ petitioner has categorically
averred that it was inducted as a tenant/lessee qua demised land under the
4th respondent temple i.e., 'Arulmigu Kasi Vishwanathaswami Thirukoil
and Arulmigu Venugopalaswami Thirukoil situate at Palanjur,
Poonamallee' (hereinafter collectively 'said temple' for the sake of
convenience and clarity). To be noted, this averment has been repeated in
the writ affidavit also which is an affidavit sworn on oath. There will be
a little elaboration on this elsewhere infra in this order.
4. On 18.11.2013, this Court has granted an interim order i.e., an
order of interim stay qua impugned notice and this Court is informed that
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W.P.No.31132 of 2013 & M.P.No.1 of 2013
the same is operating until today i.e., for over eight years now and the
interim order will also turn nine in six weeks from today, next month and
enter the year which will gravitate towards making it a decade old
interim order.
5. Be that as it may, the writ petitioner, in the typed set of papers,
has filed a notice issued by said temple being notice dated 26.06.2013 to
six individuals demanding a sum of Rs. 2,75,46,748/- (Rupees Two
Crores Seventy Five Lakhs Forty Six Thousand Seven Hundred and
Forty Eight only) towards rent and damages for demised land. Learned
counsel for writ petitioner submits that the noticees are closely associated
with the writ petitioner company, but the exact details have neither been
set out in the writ affidavit nor articulated in the hearing though this
Court put a specific query to learned counsel in this regard. There is also
no disputation or disagreement that the noticees have neither responded
nor complied qua 26.06.2013 notice from the 4th respondent i.e., said
temple. However, the submission that the noticees are part of the writ
petitioner company is recorded, but this Court also notices that it is the
stated position of the 4th respondent i.e., said temple that the lease was
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originally given to the noticees set out therein and they have sub-let the
entire 21.06 Acres (19.29 acres) of demised land wherein the writ
petitioner company is admittedly running a hotel and an amusement
theme park as already alluded to supra.
6. Learned counsel for writ petitioner also submits that the writ
petitioner was originally paying rent qua demised land to the local body
i.e., the jurisdictional panchayat, but thereafter had stopped doing so
owing to objection by the third respondent. In this regard, to a pointed
query as to under what circumstances such an averment was made in the
writ affidavit, attention of this Court was drawn to paragraphs 8 & 9 of
the writ affidavit which read as follows:
'8) I am advised to state that in law the petitioner is also
stood in the position of the 4th respondent as such the petitioner
is also entitled for patta in respect of the subject "Anadheenam
Lands" on par with the 4th respondent. Hence neither the 4th
respondent nor the respondents 1 to 3 are entitled to claim any
right over the subject property measuring 21.06 Acres (19.29
Acres). As already stated the "Anadheenam Lands" are similar
to " Grama Natham Lands" which will not vest the Government.'
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W.P.No.31132 of 2013 & M.P.No.1 of 2013
'9) I state that facts being the above to the shock and
surprise of the petitioner the 3rd respondent by notice dated 01-
08-2013 straight away demanded a sum of Rs. 1,08,69,423/- as
lease amount. Since the petitioner never was la lessee under the
3rd respondent there is no question of any liability to be any
amount towards lease as alleged and claimed by the 3rd
respondent. As stated earlier the subject lands under possession
of the petitioner admittedly classified as "Anadheenam Lands"
and as such the 3rd respondent does not have any jurisdiction
whatsoever to reclassify the same to comply with the alleged
audit objection. Inspite of all the above said legal proceedings
pertaining to the issue of patta in favour of the 4th respondent in
respect of the total extent of about 254 Acres in and around
Poonamalle and inspite of the 3rd respondent being party to the
said proceedings the said demand notice is issued without even
any Show Cause Notice as if the petitioner is a lessee under the
Government. As soon as the said demand notice is issued I met
the 3rd respondent personally and explained the above said facts
for which the 3rd respondent informed me that since there is an
audit objection the said demand notice is issued and need not
look serious of the same'.
7. The above paragraphs do not talk about payment to the local
authority, but it merely says that the demised land is an Anadheenam
lands and therefore is on par with or similar to Gramanatham lands.
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W.P.No.31132 of 2013 & M.P.No.1 of 2013
8. Ms. Amirta Dinakaran, learned State counsel for Respondents
1 to 3, Mr.A.K.Sriram, learned counsel for said temple (4th respondent)
and State Counsel Mr.NRR.Arun Natarajan for 5th respondent are before
this Court. For convenience, learned State counsel for respondents 1 to
3 shall be referred to as 'Revenue State Counsel' and learned State
Counsel for Respondent No. 5 shall be referred to as 'TN HR & CE State
counsel' and learned Counsel for 4th Respondent will be referred to as
'counsel for said Temple'.
9. Counter affidavits have been filed and the same are on Board as
part of the case file.
10. A perusal of the impugned notice brings to light that a copy
has been marked to the Revenue Inspector of Thandalam. Therefore, it
appears that Mevalur Kuppam-B Village, Sriperumbudur Taluk in
Kancheepuram District may fall under the Thandlam Panchayat, but it is
not necessary to go into those aspects of the matter owing to the pointed
averment made by the writ petitioner in the writ affidavit in paragraphs 3
and 4 which read as follows:
'3) I state that the 4th respondent floated tenders for
leasing of agricultural lands measuring 4.16 Acres comprised
in Survey Nos.352/4, 16.78 Acres in survey No.354/2 and 0.12
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Acres in Survey No.365 totally measuring 21.06 Acres (19.29
Acres) for the fasli 1405 to 1407 claiming that the 4th
respondent is the owner of the subject lands. The petitioner
became successful bidder in respect of the said lands and the
total lease amount for the said three fasli's fixed and collected
was Rs. 13785.25.
4) I state that the 4th respondent moved a Civil Suit
O.S.No.427 of 1997 against the Directors of the petitioner and
obtained an injunction restraining the petitioner from putting
the subject lands for non-agricultural use. The said suit was
decreed on 10-12-2008. Against which the petitioner's
directors filed A.S.No.73 of 2009 on the file of the subordinate
Judge, Poonamallee and is pending.'
11. A perusal of the aforementioned paragraphs and the averments
contained therein make it clear that it is the stated position of the writ
petitioner that the writ petitioner became a lessee under said temple qua
demised land, in fasli 1405 i.e., in 1995 and that the lease is for a two
year period upto 1407 i.e., upto 1997. To be noted, one fasli is 1 st of July
of the Gregorian calendar to the last day of June of the succeeding year
in the Gregorian calendar. Therefore, the admitted position of the writ
petitioner is, it is a lessee qua demised land under said temple and the
lease expired/elapsed on 30.06.1997.
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12. This Court is also informed and it also comes to light from the
counter-affidavits of the Revenue and said temple that there is a tussle
for title qua demised land as between Revenue and said temple but it is
not necessary to go into that aspect of the matter in this writ petition. To
be noted, there was a suit filed by said temple being O.S.No.427 of 1997
on the file of Principal District Munsif's Court, Poonamallee with a
prayer to restrain the defendants therein from using the demised property
for any purpose other than agricultural purposes. To be noted, there are
four defendants therein, namely D.Selvaraj, D.Gnanaraj, Nalini Selvaraj
and J.Rajani and Defendants 2, 3 and 4 are noticee numbers 1, 2 and 3
respectively in the 26.06.2013 notice of the said temple, which has been
alluded to (supra). The suit, after full contest, was decreed by the
jurisdictional Civil Court vide judgment and decree dated 10.12.2008. It
was carried in appeal by the defendants and after full contest, the appeal
also was dismissed by the first Appellate Court in and by judgment dated
13.11.2011 made in AS No.73 of 2009 on the file of Subordinate Judge's
Court, Poonamallee. To be noted A.S.No.17 of 2009 is a regular first
appeal under Section 96 of 'The Code of Civil Procedure, 1908' ('CPC'
for the sake of brevity). There are seven appellants in the first appeal.
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W.P.No.31132 of 2013 & M.P.No.1 of 2013
Appellants 2, 3, 4, 5, 6 and 7 are noticees 1, 2, 3, 4, 5 and 6 respectively
in the aforementioned 26.06.2013 notice of the said temple. What is of
relevance is, there is a positive averment about the suit and Appeal Suit
by the writ petitioner in the writ affidavit in paragraph 4 which has
already been extracted and reproduced supra.
13. This buttresses the association or arrangement, as the case may
be, as between the individuals and the writ petitioner's company. I have
already noticed that while writ petitioner says the individuals are part of
the writ petitioner company, said temple contends that they are original
lessees and they have sub-let the demised land to the writ petitioner
company.
14. From the narrative thus far, learned TN HR & CE State
counsel and learned Revenue State counsel as well as learned counsel for
said temple submit in one voice that the writ petitioner is taking
advantage of the tussle between Revenue Department and 'Tamil Nadu
Hindu Religious & Charitable Endowments Department' (hereinafter 'TN
HR & CE Dept.' for the sake of brevity) and is not paying rent to either
of them, but is in possession and occupation of vast and valuable
property i.e., demised land admeasuring 21.06 Acres (19.29 acres) and is
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W.P.No.31132 of 2013 & M.P.No.1 of 2013
commercially exploiting the same by running a hotel and an amusement
theme park that too on the teeth of aforementioned Civil Court decree
that the demised land should not be used for any purpose other than
agricultural activity. This court is informed that this civil court decree
made in aforementioned appeal suit under section 96 of CPC has been
given legal quietus by parties / attained finality and is operating. In other
words, this court is informed without any disputation or disagreement
that this decree in the appeal suit has not been further assailed either by
way of second appeal under section 100 of CPC in this court or in any
other manner.
15. As already alluded to supra, while the writ petitioner company
has chosen to respond to the impugned notice in and by a detailed reply
dated 10.09.2013, it has chosen to neither respond nor comply qua
26.06.2013 notice from said temple. The respondents' counsel i.e., the
two State Counsel and counsel for said temple, make submissions in this
regard in unison in one voice and the burden of the song is whenever
there is a demand of rent from the Revenue Department, writ petitioner
says it is a tenant/lessee under said temple and when said temple makes a
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W.P.No.31132 of 2013 & M.P.No.1 of 2013
demand, there is neither response nor compliance. The writ petitioner is
thus squatting on demised property and commercially exploiting it
without paying rent though (on a demurrer) the lease under said temple
expired / elapsed in June of 1997.
16. Therefore, the argument that the impugned notice should have
been preceded by a show-cause notice (SCN) pales into insignificance.
There is one more reason owing to which it pales into insignificance and
that is, writ petitioner has chosen to reply to the impugned notice and
there is no provision which warrants a show-cause notice. In other
words, there is nothing to demonstrate that it is statutorily imperative to
precede impugned notice with a SCN. As rightly pointed out by learned
State counsel, it is not a notice for dispossessing the writ petitioner qua
demised land, it is only a demand of the lease rent/damages for use and
occupation. Therefore, this SCN argument of writ petitioner does not
weigh with this Court owing to the peculiar facts and circumstances of
this case and the trajectory it has taken in this court. On an extreme
demurrer, even if it is to be construed that SCN prior to impugned notice
is necessary as a NJP (Natural Justice Principle) though not statutorily
imperative, in the case on hand, there is no prejudice to the writ
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petitioner because the writ petitioner has sent a detailed reply to the
impugned notice, that reply is before this court, close on the heels of the
reply writ petitioner has obtained interim order in 2013 and now writ
petitioner's reply has been considered by this court inter-alia in this
order. This means that in the instant case, there is no prejudice to the writ
petitioner qua the plea on SCN point, as that is the lone point that was
focussed in the hearing, as already alluded to supra. To be noted, this has
to be seen in conjunction with the undisputed position that the writ
petitioner has neither complied nor replied qua notice dated 26.06.2013
from temple to noticees who according to writ petitioner's counsel form
part of the writ petitioner company. It is also to be noted that the notice
is in the hands of writ petitioner company and it has been filed in
captioned matter by writ petitioner company. This Court is conscious of
the fact that the impugned notice does not give the break up or the basis
on which the internal audit arrived at the figure. Under the normal
circumstances, it might have warranted interference, but in the peculiar
facts and circumstances of the case on hand wherein writ petitioner is in
occupation of vast and valuable land admeasuring 21.06 Acres (19.29
acres) exploiting the same commercially on the teeth of Civil Court's
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W.P.No.31132 of 2013 & M.P.No.1 of 2013
decree, this Court is not inclined to interfere qua impugned notice as writ
petitioner by its own volition has averred in the writ affidavit that it
became a tenant/lessee qua demised land under said temple (paragraphs
3 and 4 of writ affidavit extracted and reproduced supra).
17 The challenge predicated on the point that impugned notice
does not give break up is no argument at least in this case on hand as the
writ petitioner has admitted and made a positive averment in the writ
affidavit that it is a lessee under 4th respondent temple. If writ petitioner
had paid to said temple, then this argument would hold water.
Admittedly, writ petitioner has not paid to said temple. If that is the case,
it is for the writ petitioner to mention the quantum of rent. To be noted,
there is nothing on record to show that writ petitioner has paid a penny
to said temple. A lessee / tenant who is not able to demonstrate having
paid a penny to the lessor (said temple) cannot be heard to contend that
break up has not been given in impugned notice and take umbrage under
the same. It is more so, as already alluded to elsewhere in this order, the
quantum demanded by said temple is far in excess the quantum qua
impugned notice. Therefore, no prejudice would be caused to writ
petitioner if the writ petitioner pays the said temple. After all, a part of
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W.P.No.31132 of 2013 & M.P.No.1 of 2013
what the writ petitioner pays to said temple is only going to be adjusted
qua impugned notice. On a legal hypotheses exercise, even if the
impugned notice is treated as SCN, reply of the writ petitioner to the
SCN is reply dated 10.09.2013 and this reply clearly justifies the
directives to the writ petitioner to pay rent to said temple as demanded
by notice dated 26.06.2013 issued by said temple as lease under said
temple is admitted in the reply. Therefore, even if such legal hypotheses
exercise is adopted, i.e., if impugned notice is construed to be a SCN and
writ petitioner's reply to the same is examined, the impugned notice gets
legally sustained and gets crystallised as a sustainable demand in the
light of the sum demanded being less than the sum demanded by said
temple. After all, at the end of the day, Revenue Department and TN
HR&CE Dept have to apportion it suitably amongst themselves
depending on how the tussle for title between the two departments
progress. The bottom line is, writ petitioner cannot be permitted to squat
on public property without paying a penny either to Revenue department
or to said temple.
18 The other argument that demised land is Anadheenam land
is also no argument as there is nothing to demonstrate that writ petitioner
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has moved its little finger towards getting patta. In other words, as of
today, writ petitioner is occupying public land and therefore, it is only
just and equitable that writ petitioner pays State, be it Revenue
Department or TN HR&CE Dept.
19. The impugned notice, can be treated as notice from the State
be it from Revenue Department or from the TN HR & CE Dept. If the
payment under the impugned notice is made, it can be sorted out
between the Revenue Department and the TN HR & CE Dept. and I
propose to take this view owing to Section 116 of 'The Indian Evidence
Act, 1872' (hereinafter 'Evidence Act' for the sake of brevity) , which reads
as follows:
'116. Estoppel of tenant; and of licensee of person in
possession.—No tenant of immovable property, or person
claiming through such tenant, shall, during the continuance of
the tenancy, be permitted to deny that the landlord of such
tenant had, at the beginning of the tenancy, a title to such
immovable property; and no person who came upon any
immovable property by the licence of the person in possession
thereof, shall be permitted to deny that such person had a title
to such possession at the time when such licence was given.
20. This takes us back to the positive averment made by the writ
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petitioner in the writ affidavit, more particularly in paragraph 3 which
has been extracted and reproduced (supra). It is the stated position of the
writ petitioner that the writ petitioner became a tenant under said temple.
If not a tenant, the writ petitioner is at least a sub-tenant under said
temple. Even if the averment of the 4th respondent said temple is
accepted, in the light of the Section 116 of Evidence Act, the writ
petitioner has to necessarily pay rent to 4th respondent said temple,
thereafter, it is for TN HR & CE Department and Revenue Department to
sort it out as amongst themselves. To be noted, writ petitioner's say is, it
is lessee holding over and continuance of tenancy qua Section 116
operates and being noticees qua 26.06.2013 notice of said temple to be
noticees who are according to learned counsel, part of writ petitioner
company makes writ petitioner coming upon possession by license of
persons in possession and therefore, either way estoppel operates.
21. This takes us to the question as to challenge is only to the
impugned notice issued by the 3rd respondent Revenue and it is not a
challenge to the notice issued by said temple i.e., notice dated
26.06.2013. The answer to this is the law laid down by the Hon'ble
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Supreme Court in A.A.Gopalakrishnan case [A.A.Gopalakrishnan Vs.
Cochin Devaswom Board and Ors., reported in (2007) 7 SCC 482]
wherein Hon'ble Supreme Court held that it is the duty of the Courts to
protect and safeguard the properties of religious and charitable
institutions from wrongful claims. In other words, this Court is parens
patriae qua properties vested in idols which have the status of minor in
law. To be noted, the Courts are the guardians qua this minor status of
idols and the law is too very well settled and A.A.Gopalakrishnan case
is one in a long line of authorities.
22. This Court also finds that the demand made by the 4th
respondent temple in the 26.06.2013 notice is more than the demand
made qua impugned notice in terms of quantum. Therefore, the
impugned notice is not interfered with and there is a further direction to
the writ petitioner to comply with the demand qua said temple i.e.,
demand vide 26.06.2013 notice. The writ petitioner can pay the demand
under 26.06.2013 demand by paying demand in impugned notice and the
balance to said temple vide 26.06.2013 demand. As already alluded to
supra, the Revenue and said temple can sort it out in the tussle amongst
them.
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23. The above directions is given based on two principles and they
are as follows:
(a) Section 116 of the Evidence Act which estops
the writ petitioner from saying that the writ petitioner is
not a tenant/lessee under said temple.
(b) A.A.Gopalakrishnan principle being duty cast
on this Court by the Hon'ble Supreme Court qua temple
properties.
24. It is made clear that view taken in this order will not serve as a
precedent in challenges to notice akin to impugned notice as this view
has been taken owing to the peculiar facts and circumstances of this case
which have already been alluded to supra.
25. This Court is conscious of the obtaining position that the
prayer in the captioned writ petition is one for certiorari assailing the
impugned notice, but besides answering the prayer in the negative, i.e.,
declining to accede to the certiorari prayer, this court is giving directives
in the nature of mandamus which may be perceived by writ petitioner as
going against it. This court has given its careful thought to this aspect of
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W.P.No.31132 of 2013 & M.P.No.1 of 2013
the matter, i.e., directives which can be perceived as mandamus against
writ petitioner in a certiorari writ petition. This court is of the considered
view that on the peculiar facts and circumstances of the case on hand,
this is imperative in the interest of justice and it is legally permissible as
this Court is parens patriae qua temple properties, idol being in a minor
status, more so in the light of A.A.Gopalakrishnan principle laid down
by Hon'ble Supreme Court (regarding temple properties alluded to
supra). To be noted, technically speaking, this set of directives is under
the residuary limb of the prayer in the captioned writ petition which reads
'..... or any other writ .....'. Though a little repetitive and though it may
come across as labouring on the point, this court deems it appropriate to
address this aspect in this paragraph owing to what can be perceived as
unconventional approach of this court in the case on hand. It can be
explained by way of dispositive reasoning in this manner. De hors
counter affidavits of respondents, de hors the tussle for title between
Revenue department and TN HR & CE Dept, paragraphs 3 and 4 of the
writ affidavit (where writ petitioner admits that it became tenant / lessee
under 4th respondent said temple), section 116 of the Evidence Act, plea
of writ petitioner that noticees in 26.06.2013 notice from said temple are
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part of writ petitioner company (association by being on the Board or
arrangement in the nature of subletting is immaterial owing to this
admitted position) and continued commercial exploitation for over a
quarter century now (from 1995 – hotel and theme park) that too on the
teeth of a civil court decree that has attained finality (decree that says that
demised land should not be used for any purpose other than agricultural
activities) read in this sequence conjunctively nails the matter against
writ petitioner and warrants issue of directives in the nature of mandamus
by resorting to the residuary limb of writ prayer, inter-alia owing to
A.A.Gopalakrishnan principle laid down by Hon'ble Supreme Court.
26. In this case, it becomes a sanctus duty of this Court to do so.
This answers the directives (infra) regarding proceedings under section
78 of TN HR&CE Act also, as far as writ petitioner is concerned.
Admittedly, said temple (4th respondent) is landlord and there is estoppel
staring at writ petitioner in this regard, i.e., estoppel in the form of
section 116 of Evidence Act and therefore, section 78 proceedings are
proper, appropriate and necessary. To put it differently, ultimately even
Revenue can succeed, but as far as writ petitioner is concerned, said
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temple is landlord and this position will not change. It may well be self
inflicted legal injury for the writ petitioner, but writ petitioner has chosen
to do so by assailing the impugned notice.
27. The counter affidavit of the fourth respondent temple says that
writ petitioner is an encroacher qua demised land within the meaning of
Section 78 of TN HR & CE Act. This is in paragraph 9, which reads as
follows:
'9) In the light of the above circumstances I am not
traversing into the other averments in the affidavit and
rest content by stating that they are all matters of record.
I state that in view of the above position and in as much
as the Writ Petitioner is an encroacher as contemplated
in the explanation to Sec.78 of H.R & C.E Act, the
Respondents 1 to 3 have no locus standi to interfere with
the peaceful possession and enjoyment of the property by
this Respondent and therefore, pray that the impugned
order may be quashed and Respondents 1 to 3 may be
directed to conduct an enquiry in accordance with law
and in accordance with the principles of natural justice
and render justice.'
28. De hors the tussle between Revenue Department and TN HR
https://www.mhc.tn.gov.in/judis/
W.P.No.31132 of 2013 & M.P.No.1 of 2013
& CE Dept., the said temple shall do well to commence proceedings
under Section 78 of TN HR&CE Act as the writ petitioner cannot go
back on the averments in paragraphs 3 and 4 of the writ affidavit and
Section 116 of the Evidence Act stares at the writ petitioner in the form
of estoppel. Therefore, the writ petitioner cannot but face Section 78
proceedings as and when initiated. Exercising my parens patriae locus,
I observe that the 4th respondent will do well to kick start proceedings
under Section 78 of TN HR & CE Act as expeditiously as possible and in
any event, within a fortnight from today i.e., by 21.10.2021.
29. In continuation of preceding two paragraphs pertaining to
section 78 of TN HR&CE Act, this Court draws inspiration from
erstwhile 'The Tamil Nadu Buildings (Lease and Rent Control) Act,
1960' ('Rent Control Act' for the sake of brevity) and the definition of
'landlord' therein vide section 2(6). 'Landlord' includes the person who is
receiving or is entitled to receive the rent of a building, whether on his
own account or on behalf of another or on behalf of himself and others or
as an agent, trustee, executor, administrator, receiver or guardian or who
would so receive the rent or be entitled to receive the rent, if the building
were let to a tenant. In this case, irrespective of the tussle between the
https://www.mhc.tn.gov.in/judis/
W.P.No.31132 of 2013 & M.P.No.1 of 2013
Revenue department and TN HR&CE Dept as far as writ petitioner is
concerned, landlord is said temple. To be noted, drawing inspiration
from erstwhile Rent Control Act is only by way of an analogy, but in this
case it is writ petitioner's averments made by its own volition in
paragraphs 3 and 4 of writ affidavit read in conjunction with section 116
of Evidence Act that nails the matter. Therefore, as far as writ petitioner
is concerned, said temple is landlord (by its own admission) and
therefore, the directives. This court reminds itself that extraordinary
situations demand extraordinary remedies.
30. Captioned writ petition is dismissed insofar as challenge to
impugned notice is concerned albeit with aforementioned directives.
Consequently connected miscellaneous petition is dismissed. There shall
be no order as to costs.
07.10.2021
Index: No
Internet : No
Non-speaking Order
gpa/vvk
To
https://www.mhc.tn.gov.in/judis/
W.P.No.31132 of 2013 & M.P.No.1 of 2013
1. The Secretary,
State of Tamil Nadu,
Revenue Department,
Fort St. George,
Chennai - 600 009.
2. The District Collector,
Kancheepuram District,
Kancheepuram.
3. The Tahsildar,
Sriperumbudur Taluk,
Sriperumbudur,
Kancheepuram District.
4. The Executive Officer,
Arulmigu Kasi Viswanathaswami Thirukoil &
Arulmigu Venugopalswami Thirukoil,
Office at Arulmigu Varadarajaperumal Koil
Poonamallee.
5. The Commissioner of Hindu Religious &
Charitable Endowments Department
Nungambakkam
Chennai – 34
https://www.mhc.tn.gov.in/judis/
W.P.No.31132 of 2013 & M.P.No.1 of 2013
M.SUNDAR,J.
gpa/vvk
W.P.No.31132 of 2013
&
MP.No.1 of 2013
07.10.2021
https://www.mhc.tn.gov.in/judis/
