Madras High Court
The Joint Commissioner vs Radhakrishnan on 23 March, 2022
W.A.No.631 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 23.03.2022
CORAM :
THE HON'BLE MR.MUNISHWAR NATH BHANDARI, CHIEF JUSTICE
AND
THE HON'BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY
W.A.No.631 of 2022
The Joint Commissioner,
Hindu Religious and Charitable Endowment Board,
Villupuram,
Villupuram District. .. Appellant
Vs
1.Radhakrishnan
2.R.Jayanthi
3.P.Gunasekaran
4.The District Revenue Officer,
Cuddalore,
Cuddalore District.
5.The Revenue Divisional Officer,
Virudhachalam,
Cuddalore.
6.The Executive Officer,
A/m Vaidyanathasamy Thirukoil,
Thittakudi,
Cuddalore District. .. Respondents
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Prayer : Appeal filed under Clause 15 of the Letters Patent against
the order dated 30.06.2021 in W.P.No.27864 of 2012.
For the Appellant : Mr.N.R.R.Arun Natarajan
Spl. Govt. Pleader (HR & CE)
For the Respondents : Mr.S.Udayakumar
for respondent Nos.1 to 3
: Mr.P.Muthukumar
State Government Pleader
for respondent Nos.4 and 5
JUDGMENT
(Delivered by the Hon'ble Chief Justice)
By this writ appeal, a challenge is made to the order dated
30.06.2021 passed by the learned Single Judge in W.P.No.27864 of
2012.
2. The said writ petition was filed by the writ petitioners/non
appellants 1 to 3 to quash the orders 24.09.2012 and 23.08.2012
passed by the District Revenue Officer, Cuddalore and the Revenue
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Divisional Officer, Virudhachalam, respectively, and to issue patta in
favour of the writ petitioners/non appellants 1 to 3 in respect of
Survey No.120/1.
3. The learned Single Judge allowed the writ petition by
passing a restraint order against the writ appellant from taking any
coercive action going beyond the prayer made in the writ petition.
4.1. The case has chequered history. The brief facts of the
case are as follows: The property in question was subject-matter of
litigation that started in the year 1960 and ended in 1967 on the
dismissal of the second appeal, i.e., S.A.No.1022 of 1963, preferred
by Thittakudi Panchayat Union. The writ petitioners/non appellants
1 to 3 purchased the land subsequent to the litigation aforesaid and
made a claim over the land in question. The writ petition was filed,
accordingly, to seek direction for issuance of patta in respect of the
land, which was the subject-matter of civil litigation earlier. A
challenge is to the order dated 23.08.2012 cancelling the patta and
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dismissal of the appeal vide order dated 24.09.2012.
4.2. The appellant herein, however, contested the writ petition
stating that the civil litigation initiated in the year 1960 and ended
with the dismissal of the second appeal in the year 1967 was not
inter se the writ petitioners/non appellants 1 to 3 and the appellant
Government and the temple, but was with the Thittakudi Panchayat
Union. In view of the above, the decree passed in the civil suit was
not binding on the appellant. It is otherwise clarified by the court in
its order in the second appeal.
4.3. The fact aforesaid was relevant to adjudicate the writ
petition preferred by the writ petitioners/non-appellants 1 to 3. It
was filed at the stage when the appellant/non-petitioner initiated
action pursuant to the direction given by this court in W.P.No.6533
of 2021, dated 15.03.2021 for disposal of the representation made
by the petitioner alleging inaction against the encroachments on the
land of temple tank in question.
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4.4. Pursuant to the direction of this court in W.P.No.28330 of
2019, the Revenue Tahsildar, Thittakudi passed an order dated
18.12.2019 for eviction of the encroachers. The order aforesaid was
not challenged by maintaining the writ petition. Ignoring the facts
given above, the learned Single Judge, passed an order even going
beyond the scope and prayer of the writ petition.
5. In the light of the brief facts given above, learned Special
Government Pleader (HR & CE) appearing for the writ appellant
submitted that the land in question was no doubt subject-matter of
civil litigation, but it was against the Executive Officer of Thittakudi
Panchayat Union by Kunju Pillai and others, where the government
and the temple were not parties. Therefore, while disposing of the
second appeal, the second appellate court recorded a finding that
the suit property forms part of Thirukkulam poramboke and decree
would not be binding on the government being not party to it.
Ignoring the aforesaid, despite a reference in the judgment, an
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order was passed mainly for the reason that the writ
petitioners/non-appellants 1 to 3 have again initiated litigation by
maintaining a suit. When no injunction was granted by the civil
court, reducing the status of the High Court to that of a civil court,
the learned Single Judge passed a restraint order till final disposal of
the civil suit. That too, when there was no prayer to that effect.
6. Learned Special Government Pleader (HR & CE) has raised
many other contentions and would be dealt with while considering
the rival submissions of the parties.
7. Learned counsel for the writ petitioners/non-appellants 1 to
3 contested the appeal. He submitted that the land in question is
the subject-matter of civil litigation preferred by the writ
petitioners/non-appellants 1 to 3 and pending civil suit, the
appellant is trying to dispossess them. In fact, the writ
petitioners/non-appellants are in possession of the land for years
together. In view of the above, the writ petition was filed to seek an
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appropriate relief and taking note of the pendency of the civil suit
filed by the writ petitioners/non-appellants, the learned Single Judge
has passed a just and proper order. Therefore, the same may not
be interfered. It is more so when the writ petitioners/non-appellants
1 to 3 remain successful in the earlier civil litigation against the
Thittakudi Panchayat Union, which went up to the second appeal
and was decided by this High Court. Once the right was settled in
favour of the writ petitioners/non-appellants 1 to 3, the action of the
government or the temple was not sustainable and thereby, a just
order has been passed by the learned Single Judge restraining the
authorities from taking any coercive action pending civil suit. It was
with the clarification that the rights of the parties would be
determined in the civil suit and, accordingly, they would be
governed by it. Looking to the aforesaid, a prayer is made to
dismiss the writ appeal while maintaining the order passed by the
learned Single Judge.
8. We have considered the rival submissions of the parties and
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also perused the materials available on record.
9. The brief facts referred by this court would show that a
litigation in the shape of civil suit was ultimately decided in the
second appeal. A decree was passed in favour of the vendor of the
property in question to the writ petitioners/non-appellants 1 to 3,
however, the government and the temple were not parties to the
civil suit which was filed in the year 1960. It was against the
Thittakudi Panchayat Union. Subsequent to the dismissal of the
second appeal, it seems that the writ petitioners/non appellants 1 to
3 purchased the land through different sale deeds in the year 1986
and pursuant to the sale deeds, they claimed to be the owners of
the property. The writ petitioners/non-appellants 1 to 3 seem to
have raised even constructions thereon. However, the title over the
land was claimed by the temple and a civil suit was filed, but the
same was dismissed in default. No further action was taken therein.
In the year 2001, the writ petitioners/non-appellants preferred a
writ petition against the temple authorities in W.P.No.4020 of 2001
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to seek a restraint order not to interfere with the land and building
in the possession of the writ petitioners/non-appellants. The Writ
Court, passed an order on 09.08.2001 in the following terms:
"Considering these factual position, prima facie, I am
satisfied that the petitioner had been granted patta on
the basis of his possession and title unless the
respondent established his overriding right over the
petitioner, he would not be justified in interfering with
the possession. Hence if the respondent claims any
other right over this land, it is for him to establish
before the revenue or the civil Court. Without doing
so, he is not entitled to disturb the possession of the
petitioner. Hence the writ petition is allowed."
10. After disposal of the writ petition referred to above, the
revenue officials treating the writ petitioners/non-appellants to be
encroachers, started taking steps to evict them. Therefore, the writ
petitioners/non-appellants again preferred a writ petition being
W.P.No.24422 of 2003, which was disposed of by the order dated
21.03.2013 in the following terms:
"8. .....the petitioners are in possession and they are
also holding patta, this court is of the view that they
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cannot be evicted except by due process of law, and
such an order can be passed only after hearing the
petitioners and satisfying as to the nature of
possession of the petitioners. Under such facts and
circumstances of the case the respondents are
directed not to disperse the petitioners except by
following due process of law. If the respondents wants
to evict the petitioners on the ground that the
property is a Government property, they have to issue
notice to the petitioners call for objections, particularly
with reference to their contention regarding the title,
and thereafter proceed in accordance with law."
11. In the interregnum, on 20.01.2009, a notice was issued on
the writ petitioners/non-appellants under Section 78(2) of the Tamil
Nadu Hindu Religious and Charitable Endowments Act, 1959 [for
brevity, "the Act of 1959"].
12. Subsequent to the order of this court dated 21.03.2011,
the Revenue Divisional Officer issued summons to the writ
petitioners/non-appellants 1 to 3 to appear for an inquiry on
13.07.2012. The writ petitioners/non-appellants 1 to 3 accordingly
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appeared and thereafter, on 23.08.2012, an order was passed
against the writ petitioners/non-appellants cancelling the patta. An
appeal was preferred by the writ petitioners/non-appellants, which
was dismissed by an order dated 24.09.2012. The order aforesaid
was challenged by maintaining a writ petition in the year 2021, i.e.
after a lapse of nine years, because the patta issued in favour of the
parties was cancelled followed by the dismissal of the appeal.
Therefore, the writ petitioners/non-appellants 1 to 3 have no right
to retain the land in question.
13. The learned Single Judge has not caused interference in
the order dated 23.08.2012 and 24.09.2012 cancelling the patta,
yet passed an injunction order pending civil suit. If the facts taken
into consideration by the learned Single Judge are taken note of, it
is going against the finding recorded by the court in the second
appeal and is quoted hereunder for ready reference:
".... The appellate Court pointed out that the
Panchayat did not put forward a case in its written
statement that the suit property formed parr of any
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public road, but that it only stated that the suit
property was part of the tank poramboke. Hence the
contention that the suit property was part of a road
and therefore vested in the Panchayat was rightly
rejected. It is mentioned in the written statement
that the suit property forms part of Thirukkulam
poramboke. The appellate Court also accepted the
contention of the respondents that they and their
predecessors in title had perfected title to the suit
property by continuous user for over 30 years.
The appellate Court has rejected the contention that
Government is a necessary party, as without force.
When the Government has not been impleaded as
a party, any judgment rendered by this Court will
not be binding on them.
I see no reason to differ from the findings arrived at
by the appellate Court. The second appeal is
accordingly dismissed, but there will be no order as to
costs. No leave."
(emphasis supplied)
14. A perusal of the judgment passed in the second appeal
shows that the decree was not against the government. In view of
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the above, the decree in the second appeal was not binding on the
government and, accordingly, the government was within its rights
to initiate action as per the provisions of the Act of 1959 to cancel
the patta and passed orders followed by the dismissal of the appeal.
The order aforesaid was challenged after a period of nine years
without explaining the delay. However, we have to ignore the
aforesaid because the learned Single Judge has not taken note of
the aforesaid. The learned Single Judge seems to have been
persuaded only by the factum of possession of the writ
petitioners/non-appellants without considering the subsequent
events, which includes a writ petition to seek a direction for removal
of the encroachment on the land in question. The order passed in
W.P.No.6553 of 2021, dated 15.03.2021 is quoted hereunder for
ready reference:
"The petitioner complains of encroachment of the
temple tank area by the adjacent shop owners.
2. Mr.R.Venkatesh, learned standing counsel for the
Hindu Religious and Charitable Endowments
Department accepts notice on behalf of the fourth
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respondent and states that encroachments were,
indeed, identified in the temple tank area and action
was initiated for the removal thereof. The said task
has been partly completed and that further action
would be taken in coordination with the Thasildar.
3. Accordingly, the fourth respondent is directed to
consider the representation dated 15.09.2020 of the
writ petitioner and dispose of the same by a speaking
order after providing a reasonable opportunity to all
affected parties. Such speaking order shall be issued
within a period of eight weeks from the date of receipt
of a copy of this order. W.P.No.6533 of 2021 is
disposed of on the above terms. There will be no order
as to costs."
15. Pursuant to the direction of this court, the Revenue
Tahsildar, Thittakudi, sent a communication to the Executive Officer
of the Hindu Religious and Charitable Endowments Department,
Thittakudi, on 18.12.2019. The aforesaid letter is also quoted for
ready reference:
"As per the order passed by the High Court, Madras
in W.P.No.28330/2019, in terms of G.O.540 it is
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ordered that the encroachments in and around the
Temple Tank of Arulmighu Vaidyanathaswamy
Temple is directed to be removed as per the
communication referred to in the reference 1 above.
On conducting field audit, and enquiry, it is found
that 16 persons have encroached on the said land
and have constructed buildings and house.
Therefore, the lit of details of the encroachers is
enclosed herein in Form 1. Therefore, I assure that
in the event of announcing date for evicting the
encroachers I would give full co-operation for evicting
the encroachers."
16. The official respondents were to take action pursuant to
the direction of the High Court as also the order passed by the
Revenue Tahsildar to remove the encroachments. While filing the
writ petition in the year 2021, the writ petitioners/non-appellants 1
to 3 did not challenge the order/communication passed by the
Revenue Tahsildar, dated 18.12.2019 to remove the encroachments.
It is quite surprising that the learned Single Judge ignoring the
aforesaid facts passed the impugned order going against the
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direction given by the Co-ordinate Bench of this Court earlier in
time, when there was an opportunity to the writ petitioners/ non-
appellants to seek an injunction before the civil court in the pending
civil suit. In any case, it has to be determined by the civil court
where the suit is stated to be pending. Accordingly, the impugned
order of the learned Single Judge is set aside. It is more so without
quashing the orders regarding cancellation of patta and the
dismissal of the appeal filed by the petitioners/non-appellants 1 to
For the reasons given above, the writ appeal succeeds and is
accordingly allowed. The impugned order of the learned Single
Judge is quashed. There will be no order as to costs.
Consequently, C.M.P.No.4450 of 2022 is closed.
(M.N.B., CJ) (D.B.C., J.)
23.03.2022
Index : Yes/No
bbr
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To
1.The Joint Commissioner,
Hindu Religious and Charitable Endowment Board,
Villupuram, Villupuram District.
2.The District Revenue Officer,
Cuddalore,
Cuddalore District.
3.The Revenue Divisional Officer,
Virudhachalam,
Cuddalore.
4.The Executive Officer,
A/m Vaidyanathasamy Thirukoil,
Thittakudi,
Cuddalore District.
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W.A.No.631 of 2022
THE HON'BLE CHIEF JUSTICE
AND
D.BHARATHA CHAKRAVARTHY, J.
bbr
W.A.No.631 of 2022
23.03.2022
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