S.Thangamani vs The Commissioner
2021 Latest Caselaw 21612 Mad

                                                                         WP No.17351 of 2021

                               IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                              DATED : 28-10-2021

                                                    CORAM

                             THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM

                                           WP No.17351 of 2021
                                                   And
                                       WMP Nos.18382 and 18384 of 2021


                      S.Thangamani                           ..     Petitioner

                                                       vs.


                      1.The Commissioner,
                        Hindu Religious and Charitable Endowments
                          Administrative Department,
                        Uthamar Gandhi Road,
                        Nungambakkam,
                        Chennai – 600 034.

                      2.The Joint Commissioner,
                        Hindu Religious and Charitable Endowments
                          Department,
                        Salem,
                        Salem District.

                      3.The Assistant Commissioner,
                        Hindu Religious and Charitable Endowments
                          Department,
                        Salem,
                        Salem District.

                      1/22


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                                                                              WP No.17351 of 2021

                      4.The Executive Officer,
                        Arulmighu Sivasubramaniya Swamy Temple,
                        Kumaraswamypettai,
                        Dharmapuri,
                        Dharmapuri District.             ..              Respondents

                                Writ Petition is filed under Article 226 of the Constitution of
                      India, praying for the issuance of a Writ of Certiorarified Mandamus,
                      calling for the records made in Impugned Order Na.Ka.No.1529/2013-1/A6
                      dated 20.07.2021 passed by the third respondent herein and quash the same
                      as illegal and direct the fourth respondent to receive the arears of rent and
                      run the business of the petitioner is 12.H. Muthuvinayagar Engineering
                      Works as a Tenant measuring about 525 sq. ft., situated at C.Block, 40, 41,
                      42, Kumarasamy Pettai, Dharmapuri Taluk, Dharmapuri District to secure
                      the ends of justice.
                                For Petitioner                  : Mr.R.Sankarasubbu

                                For Respondents-1 to 3          : Mr.N.R.R.Arun Natarajan,
                                                                  Government Advocate.

                                For Respondent-4                : Mr.V.R.Anna Gandhi


                                                        ORDER

The order dated 20.07.2021 issued by the Assistant Commissioner

of Hindu Religious and Charitable Endowments Department, is under

challenge in the present writ petition.

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2. The order impugned states that the petitioner should vacate the

premises and handover the possession to the Temple Authorities on or

before 10.08.2021, failing which the petitioner will be evicted with the

assistance of the Revenue Department and Police Officials.

3. The petitioner challenging the order mainly on the ground that

he was a Lessee based on the Lease Agreement dated 17.03.1984. The

monthly rent determined was Rs.250/- per month. The petitioner put up

some constructions in the land belongs to the temple.

4. It is contended by the petitioner that he put up permanent

constructions in the said site and especially Commercial Workshop. The

petitioner was running a Workshop and it is further contended that the lease

was renewed on oral basis.

5. The petitioner states that he was paying the rent and was

continuing in the temple premises. The petitioner earlier filed WP No.6795

of 2013 to remove the obstructions created by the Temple Authorities.

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Another writ petition in WP No.4328 of 2017 was also filed, wherein this

Court directed the petitioner to pay Rs.2,65,000/- towards arrears of rent

and the petitioner paid the said amount of rent. It is contended that the

petitioner is aged about 72 years and by running the Workshop, he is

leading his livelihood.

6. The learned counsel for the petitioner strenuously contended

that the conduct of the Officials of the Hindu Religious and Charitable

Endowments Department is objectionable and in the absence of an interim

order, the Officials have evicted the petitioner and therefore, the petitioner

must be put back in possession.

7. It is contended that eviction of the petitioner is illegal and

made during the pendency of the writ petition. In the absence of an interim

order is improper. The Authorities have committed a contempt of Court as

the writ petition was pending during the eviction made by the Authorities.

8. The learned counsel for the petitioner relied on the Lease

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Agreement dated 17.03.1984. Admittedly, the lease was for a vacant land

measuring 529 sq. ft. The monthly rent was fixed as Rs.250/-. The petitioner

paid a sum of Rs.5,000/- towards advance. The learned counsel for the

petitioner drew the attention of this Court with reference to the payment of

rent made by the petitioner on several occasions.

9. The learned counsel for the petitioner relied on the judgment of

the Hon'ble Supreme Court of India in the case of K.Narasimha Rao vs.

T.M.Nasimuddin Ahmed [1996 (3) SCC 45], wherein in last paragraph-13

of the judgment, it has been held as under:-

“13. In the present case, excluding from consideration the tenant's claim for adjustment of the amount of Rs.1000 spent on repairs and the amount of Rs.750 sent by demand draft on receipt of the notice, the amount of Rs.2850 with the landlord as the excess amount of advance paid by the tenant to the landlord, was alone sufficient to negative the landlord's claim of ejectment. The arrears of rent from July to November 1990 were only Rs.750, while the excess amount of advance was Rs.2850, far in excess of the arrears. The

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landlord was bound to immediately refund that excess amount even before the arrears accrued, and he not having made the refund was bound to adjust it towards the rent due from the tenant. On these facts, the tenant could certainly not be held to be a wilful defaulter in the payment of rent. The High Court is, therefore, right in deciding against the landlord.”

10. It is contended that the petitioner paid an advance amount of

Rs.5,000/- and even in case of default, the rent amount is to be adjusted

from the advance amount. Contrarily, the parties cannot initiate coercive

steps as the petitioner was the original Lessee right from the year 1984

onwards.

11. At the outset, the learned counsel for the petitioner contended

that the due process of law has not been followed by the respondent-

Authorities and the petitioner evicted in an improper manner despite the fact

that the petitioner was ready and willing to pay the arrears of rent to be

calculated by the Authorities Competent. The learned counsel for the

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petitioner made a submission that the petitioner even now ready to pay the

arrears of rent and renew the lease based on the fair rent to be fixed under

the provisions of the Hindu Religious and Charitable Endowments Act,

1959 [hereinafter referred to as the 'Act', in short].

12. The learned Government Advocate, appearing on behalf of

respondents 1 to 3, objected the contentions raised on behalf of the

petitioner by stating that the petitioner has no right at all in respect of the

temple property. The due process of law had been followed and the writ

petition itself is filed by suppressing vital facts and thus the writ petition is

to be rejected.

13. In respect of the observations made by the Authorities

regarding eviction of the petitioner from the temple premises, the learned

Government Advocate, appearing on behalf of respondents 1 to 3, clarified

that the Government Advocate informed the Authorities that in the absence

of any interim order in the writ petition, the Authorities are at liberty to

proceed with their actions by following the procedures as contemplated

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under law. In other words, it is contended that mere pendency of writ

petition is not a bar for the Authorities to initiate action in the manner

known to law.

14. All along the petitioner was continuing in the temple

premises only by way of filing petitions and litigations. The present writ

petition is filed challenging the order dated 20.07.2021 by suppressing the

fact that Section 78 proceedings were initiated long back and the final order

under Section 78 of the Act was passed. On 15.07.2016 itself, the Joint

Commissioner passed the order under Section 78 of the Act, the petitioner

preferred a revision petition under the provisions of the Act. The

Commissioner, Hindu Religious and Charitable Endowments Department,

rejected the petition in order dated 22.06.2017. These vital factors are not

stated in this writ petition nor the orders passed under Section 78 of the Act,

and the revision orders are under challenge. After the revision order passed

by the Commissioner, the petitioner has not preferred any further appeal

under Section 114 of the Act. Contrarily, in the present writ petition, the

petitioner has simply challenged the consequential proceedings issued by

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the Assistant Commissioner, directing the petitioner to vacate the temple

premises. Thus, the writ petition itself is unsustainable and is to be rejected

on the ground that petitioner has not come out with clean hands.

15. The learned counsel for the fourth respondent-Executive

Officer in support of the contentions raised by the Hindu Religious and

Charitable Endowments Department submitted that the petitioner is not a

Lessee as the lease period expired long back. The original lease of the year

1984 was for the period of three years and thereafter, the petitioner was not

paying the monthly rent promptly. Further, the lease period was also not

extended. The petitioner was in illegal continuation of the temple premises

and several actions initiated by the Authorities failed on account of the

petitions filed by the petitioner before various Forums continuously and the

Authorities could not able to evict on account of such continuous litigations

created by the petitioner one way or the other.

16. It is admitted between the parties to the lis that the Lease

Agreement was entered into between the temple and the petitioner on

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17.03.1984. Perusal of the Lease Agreement would reveal that the petitioner

has paid a sum of Rs.5,000/- as advance and Rs.250/- per month was agreed

as the rent. The Lease Agreement itself categorically states that the said

Lease Agreement is subject to the provisions of the Act. When the Lease

Agreement states that it is subject to the provisions of the Act, the validity

of the lease of the year 1984 is to be considered.

17. Section 34 of the Act enumerates 'alienation of immovable

trust property'. Sub-section (1) to Section 34 of the Act contemplates “Any

exchange, sale or mortgage and any lease for a term exceeding five years of

any immovable property, belonging to, or given or endowed for the purpose

of, any religious institution shall be null and void unless it is sanctioned by

the Commissioner as being necessary or beneficial to the institution”. Thus,

any lease must be for a term not exceeding five years. If it exceeds, then

prior approval of the Commissioner becomes mandatory. In the present

case, no such approval by the Commissioner was granted and extension of

lease is not proved.

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18. Section 34-A provides 'fixation of lease rent'. Accordingly,

the Rent Fixation Committee constituted must renew the amount once in

three years and fix the fair rent, which is to be collected from the Lessee in

this regard. It is not made clear whether any such procedures are followed

periodically once in three years and the fair rent is fixed in view of the

provisions of the Act. However, the petitioner was allowed to continue his

tenement due to various circumstances and on account of litigative

processes continued between the parties.

19. The learned counsel for the petitioner states that the petitioner

was paying the rent periodically. However, the respondents denied by

stating that piecemeal payment of rent was made and the petitioner was not

paying the monthly rent promptly and punctually. Even now arrears of rent

is to be paid.

20. As far as the challenge of the order made in the present writ

petition dated 20.07.2021 is concerned, it is a consequential order passed

pursuant to the original order passed under Section 78 of the Act. As

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pointed out by the learned Government Advocate, appearing on behalf of

the respondent-Department, proceedings were initiated under Section 78 of

the Act and the Joint Commissioner passed final orders on 15.07.2016.

Admittedly, the petitioner preferred revision petition and the said revision

petition was also rejected by the Commissioner on 22.06.2017. Thus, these

two orders are not under challenge in the present writ petition. However, the

learned counsel for the petitioner informed this Court that the writ petitions

are pending in respect of the revision order passed by the Commissioner,

Hindu Religious and Charitable Endowments Department.

21. Section 78 of the Act, stipulates 'encroachments by persons on

land or buildings belonging to Religious Institutions'. Explanation to

Section 78 of the Act, reads as under:-

“Explanation.—For the purpose of this section, the expression “encroacher” shall mean any person who unauthorisedly occupies any tank, well, spring or water-course or any property and to include-

(a) any person who is in occupation of property without the approval of the competent

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authority (sanctioning lease or mortgage or licence) and

(b) any person who continues to remain in the property after the expiry or termination or cancellation of the lease, mortgage or licence granted to him.”

22. Section 78 of the Act, makes it clear that any person who

continues to remain in the property after the expiry or termination or

cancellation of the lease, mortgage or licence granted to him is also be

considered as an encroacher. Thus, there is no infirmity as such in respect of

the proceedings initiated by the Competent Authorities under Section 78 of

the Act against the petitioner.

23. Even in case, the petitioner is aggrieved from and out of the

order dated 20.07.2021, it is to be construed that the same is a consequential

order passed pursuant to the final order passed under Section 78 of the Act,

which was confirmed by the Commissioner in proceedings dated

22.06.2017.

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24. Beyond all this, encroachment of temple properties for years

together can never be encouraged by the respondent-Department. Many

such instances are brought to the notice of this Court that temple properties

are abused due to active and passive collusion with the Hindu Religious and

Charitable Endowments Department Officials on several occasions. The

Deity, being in a position of a minor, Court is the custodian to protect the

interest of the minor Deity in a temple.

25. The High Court is constitutionally duty bound to protect the

interest of the minor in all circumstances. The High Court is expected to

intervene in all such circumstances, where the interest of the minor is

prejudiced or in peril. Thus, beyond all the grounds raised, this Court is of

an opinion that the Lease Agreement is not in force as of now. The Lease

Agreement entered into between the temple and the petitioner of the year

1984 cannot be sustained beyond the period of five years as per Section 34

of the Act.

26. Admittedly, there was no approval by the Commissioner to

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continue the lease beyond the period of five years. The petitioner earlier

filed writ petitions and some of the writ petitions are disposed of by issuing

a direction to pay the arrears of rent and yet another writ petition was

disposed of to consider the case of the petitioner. Such orders cannot be

taken undue advantage by a Lessee for an indefinite period. The right of the

Lessee under the Act, is to be determined by the Courts for the purpose of

continuance of lease.

27. In the present case, admittedly, the property belongs to the

temple and more specifically, the minor Deity is the owner of the property.

Few Great Souls donated their valuable property for doing religious services

to the temple. Thus Great Donors had donated their valuable property for

the purpose of doing services to the temple as well as to the Devotees of the

temple. The purpose and object for which such donations are made are also

to be borne in mind by the Authorities, while dealing with the temple

properties.

28. No doubt, the right of the Lessee is also to be considered by

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the Courts. However, such consideration must be in accordance with the

provisions of the Act and taking into consideration various facts and

circumstances, and no person shall be allowed to take undue advantage of

any such temple properties or abuse of the properties.

29. In the present case, the learned Government Advocate,

appearing on behalf of the respondent-Department, brought to the notice of

this Court that the petitioner was not only in possession of the property

leased out in the year 1984 but he had further encroached the temple

property to the extent of 867 sq. ft., and sublet the premises in favour of

third parties and was collecting the rent. All these activities continued for

several years.

30. Considering the rights of the parties, admittedly, the temple

is the owner of the property. The petitioner was a Lessee based on the Lease

Agreement of the year 1984. The Agreement expired long back. The

petitioner was not paying the rent regularly. Under these circumstances, this

Court is able to form an opinion that the petitioner continued in the property

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belongs to the temple through litigative tactics and on some occasions, due

to passive collusion on the part of the Authorities.

31. The rights of the parties are of paramount importance, which

is to be determined in any litigation.

32. The judgments relied on by the petitioner are of no avail as

the facts and circumstances are not comparable. The general observations

made in the judgments cannot be applied in all the cases. Many such

observations are identifiable or traceable in numerous judgments, but every

case is to be decided predominantly based on the facts and circumstances

established and based on the documents placed before this Court and by

applying the legal principle in judgments.

33. Section 34-C of the Act, provides 'payment of amount'. Sub-

section (1) states that “there shall be paid an amount to the Lessee for the

building, superstructure and trees, if any, erected or planted in accordance

with the terms of agreement or with the permission of the Commissioner by

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the lessee on the property vested with the Religious Institution under section

34-B”. However, in the present case, the lease expired long back. The

petitioner had continued as an encroacher, within the meaning of Section 78

of the Act. The petitioner has not established that the building

superstructures are constructed either in terms of Agreement or with the

permission of the Commissioner. Under these circumstances, the petitioner

is not entitled for any compensation in respect of such superstructures, if

any, made in violation of Section 34-C of the Act.

34. The petitioner has suppressed the fact regarding the eviction

proceedings initiated by the competent authorities under Section 78 of the

Act. The orders passed by the Joint Commissioner on 15.07.2016 under

Section 78 of the Act and the Revision order passed by the Commissioner /

HR & CE on 22.06.2017 are also not under challenge in the present writ

petition. However, the petitioner has challenged only the consequential

order, asking him to vacate and hand over the possession. Thus, the

petitioner has not approached this Court with clean hands and therefore, the

petitioner is not entitled for any relief.

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35. This being the principles to be followed, the petitioner has

not established even a semblance of legal right, so as to continue in the

temple premises and in fact, he was allowed to continue for several years in

violation of the provisions of the Act and on some occasions, based on

litigative tactics and on some occasions at the mercy of the Officials or

otherwise.

36. This being the factum established, the petitioner is not

entitled for any relief and the petitioner had already been evicted from the

temple premises and thus no relief needs to be granted.

37. The Temple Authorities are bound to protect the temple

properties in the manner prescribed. Accordingly, they are bound to follow

the procedures for the purpose of dealing with the property for the benefit

and interest of the temple.

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38. With the above findings, the writ petition stands dismissed.

However, there shall be no order as to costs. Consequently, connected

miscellaneous petitions are also dismissed.

28-10-2021 Index : Yes Internet : Yes Speaking Order Svn

To

1.The Commissioner, Hindu Religious and Charitable Endowments Administrative Department, Uthamar Gandhi Road, Nungambakkam, Chennai – 600 034.

2.The Joint Commissioner, Hindu Religious and Charitable Endowments Department, Salem, Salem District.

3.The Assistant Commissioner, Hindu Religious and Charitable Endowments Department, Salem, Salem District.

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4.The Executive Officer, Arulmighu Sivasubramaniya Swamy Temple, Kumaraswamypettai, Dharmapuri, Dharmapuri District.

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S.M.SUBRAMANIAM, J.

Svn

WP 17351 of 2021

28-10-2021

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