Madras High Court
A.Mohamed Ismail vs The Joint Commissioner on 22 April, 2022
W.P.(MD) No.19062 of 2018
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 22.04.2022
CORAM:
THE HONOURABLE MR.JUSTICE C.SARAVANAN
W.P.(MD) No.19062 of 2018
and
W.M.P.(MD) No.16909 of 2018
A.Mohamed Ismail ... Petitioner
/vs./
1.The Joint Commissioner,
Hindu Religious Charitable Endowment Department,
Thanjavur,
Thanjavur District.
2.The Assistant Commissioner,
Hindu Religious Charitable Endowment Department,
Thanjavur,
Thanjavur District.
3.Arulmighu Harasabha Vimochana Perumal Temple,
represented through its Executive Officer,
Kandiyur, Thiruvaiaru Taluk,
Thanjavur District. ... Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution of India for
issuance of Writ of Certiorarified Mandamus, calling for the records pertaining to
the impugned order vide Pa.Ma.No.143/2017/E2 dated 06.04.2018 and the
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W.P.(MD) No.19062 of 2018
consequential impugned order vide M.P.No.143/2017E2 dated 10.08.2018 passed
by the 1st respondent and quash the same as illegal, void abinitio, without
jurisdiction and ultra vires and direct the respondents to pay compensation to the
petitioner by this Court.
For Petitioner : R.Rajaraman
For R1 & R2 : Mr.P.Subbaraj
Special Government Pleader
For R3 : Mr.V.Chandrasekar
ORDER
The petitioner has challenged the impugned order passed by the 1st
respondent/the Joint Commissioner, rejecting the application of the petitioner for
setting aside the ex parte order dated 02.04.2018.
2.The 3rd respondent temple had initiated proceedings under Section 78 of
the Tamil Nadu Hindu Religious and Charitable Endowment Act, 1959 (herein
after referred to as Act) before the 1st respondent in M.P.No.143/2017/E2.
3.In the said proceedings, though notice was served on the petitioner, the
petitioner had failed to either appear in person or through a counsel and therefore,
the petitioner was set ex parte on 02.04.2018 and thereafter, an order came to be
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W.P.(MD) No.19062 of 2018
passed in M.P.No.143/2017/E2 by allowing the petition filed under Section 78 of
the Act by the 3rd respondent temple.
4.The petitioner thereafter filed a miscellaneous petition on 01.08.2018.
The application has been rejected on the ground that the application for setting
aside the order should have been filed on or before 05.05.2018 and since it was
beyond the aforesaid period (120 days), the application was liable to be rejected.
Aggrieved by the same, the petitioner is in appeal before this Court.
5.The learned counsel for the petitioner submits that the order has been
secured from the 1st respondent in M.P.No.143/2017/E2 by the 3rd respondent by
suppressing the fact that there was a judgment and decree restraining the 3rd
respondent temple from evicting the petitioner in O.S.No.217 of 1993, vide a
judgment and decree dated 25.10.1995. That apart, it is submitted that the 3rd
respondent had filed a suit in O.S.No.93 of 1996, wherein the trial Court by its
judgment and decree dated 27.04.2006, had partly decreed the suit and partly
dismissed the suit by holding that the 3rd respondent temple was the owner of the
land, whereas the petitioner was the owner of the super structure.
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W.P.(MD) No.19062 of 2018
6.It is further submitted that further appeal filed by the petitioner was
dismissed by the appellate Court by judgment and decree dated 03.10.2007 and
thereby upheld the judgment and decree dated 27.04.2006 of the trial Court in
O.S.No.93 of 1996. It is submitted that the proceedings that came to be initiated
before the 1st respondent in M.P.No.143/2017/E2 under Section 78 of the Act
were predicated on the assumption that the petitioner was an encroacher of the
property and that the property was leased out to one Arulanandhan Nadar. Though
the judgment and decree of the trial Court have not been brought to the attention
of the 1st respondent in M.P.No.143/2017/E2, that could be several reasons for
taking steps for declaring the petitioner as an encroacher for instance, if the
petitioner had failed to pay the ground rent. The petitioner appears to be paying
the ground rent of Rs.1/- for the property measuring an extent of 21 cents of land
in S.No.21A/21, Kandiyur Village, Thiruvaiyaru Taluk, Thanjavur District.
7.Heard the learned counsel for the petitioner, learned counsel for the
official respondents and the learned counsel for the 3rd respondent.
8.Considering the above and to meet the ends of justice, I am inclined to
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W.P.(MD) No.19062 of 2018
dispose of this writ petition by giving liberty to the petitioner to file an
application before the Commissioner of HR & CE under Section 21 of the Act
subject to the petitioner paying the fair rent that would have been levied on the
property for use and occupation during the period. If such proof is filed by the
petitioner, the appeal shall be entertained and disposed of by the Appellate
Commissioner on merits and in accordance with law expeditiously. All further
rights of the petitioner will be subject to the final outcome of the orders to be
passed in the proposed appeal of the petitioner under Section 21 of the Act. It is
made clear that if no appeal is filed within the time stipulated herein or if the
amount of arrears towards use and occupation of the property is not paid by the
petitioner till the date of disposal of this writ petition, this order will stand
vacated automatically without further reference to this Court.
9.The writ petition stands disposed of, in terms of the above observations.
No costs. Consequently, connected miscellaneous petition is closed.
Index : Yes / No 22.04.2022
Internet : Yes / No
mm
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W.P.(MD) No.19062 of 2018
C.SARAVANAN, J.
mm
To
1.The Joint Commissioner,
Hindu Religious Charitable Endowment Department,
Thanjavur,
Thanjavur District.
2.The Assistant Commissioner,
Hindu Religious Charitable Endowment Department,
Thanjavur,
Thanjavur District.
W.P.(MD) No.19062 of 2018
22.04.2022
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