Madras High Court
Mr.Manish B.Shah vs The Executive Officer on 12 April, 2023
WA.No.2918/2021 & WP.No.8917/2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 12.04.2023
CORAM:
THE HONOURABLE MR.JUSTICE S.S.SUNDAR
AND
THE HONOURABLE MR. JUSTICE P.B.BALAJI
WA.No.2918/2021 & WP.No.8917/2023
and
CMP.NO.19784/2021 & WMP.Nos.9055 & 9056/2023
WA.No.2918/2021
Mr.Manish B.Shah .. Appellant /
Writ Petitioner
in WP.No.19714/2021
Versus
1.The Executive Officer
Arulmigu Sri Muthukumaraswamy
Devasthanam, Attached with
P.Chamundeeswari Ammal Trust
No.44, Rasappa Chetty Street,
Flower Bazaar, Chennai 600 003.
2.The Assistant Commissioner
Hindu Religious & Charitable Endowments Board
Chennai 600 050.
https://www.mhc.tn.gov.in/judis 1
WA.No.2918/2021 & WP.No.8917/2023
3.The Joint Commissioner
Hindu Religious & Charitable Endowments Board
Division – I, Chennai. .. Respondents
Prayer:- Writ Appeal filed under Clause 15 of the Amended Letters
Patent, 1868, against the order passed by learned Single Judge of this
Court in WP.No.19714/2021 dated 07.10.2021.
For Appellant : Mr.V.Raghavachari
Senior Counsel for
Mrs.V.Srimathy
For R1 : Mr.R.Bharanidharan
For RR 2&3 : Mr.R.Shunmugasundaram
Advocate General assisted by
Mr.N.R.R.Arun Natarajan,Spl.GP
& Mr.A.G.Shakeenaa
WP.No.8917/2023
1.Navaneethakrishnan
2.Jaisankar
3.Ar.M.Arunachalam
4.K.Ramesh .. Petitioners
Vs.
1.The Commissioner
Hindu Religious & Charitable Endowments Board
Chennai 600 050.
WA.No.2918/2021 & WP.No.8917/2023
2.The Joint Commissioner
Hindu Religious & Charitable Endowments Board
Division-I, No.127, Yadhaval Street, Padi
Chennai 50.
3.The Assistant Commissioner
Hindu Religious & Charitable Endowments Board
Division-I, No.127, Yadhaval Street, Padi
Chennai 50.
4.The Assistant Commissioner of Police
High Court, Chennai.
5.The Inspector of Police
B2 Police Station, Chennai..
6.The Executive Officer
Arulmigu Sri Muthukumaraswamy
Devasthanam, Attached with
P.Chamundeeswari Ammal Trust
No.44, Rasappa Chetty Street,
Flower Bazaar, Chennai 600 003.
7.Manish B.Shah .. Respondents
Prayer:- Writ petition filed under Article 226 of the Constitution of India
praying for issuance of a writ of mandamus directing the 3rd respondent to
de-seal the premises bearing Door No.175, Thambu Chetty Street, Chennai
600 001 illegally made by the HR&CE Department, which is wholly
without jurisdiction and further forbearing the respondents 1 to 5 from
interfering with the petitioners peaceful possession of the property Door
No.175, Thambu Chetty Street, Chennai 600 001.
WA.No.2918/2021 & WP.No.8917/2023
For Petitioners : Mr.T.Mohan, Senior counsel
for Mr.A.S.Balaji
For RR 1 to 5 : Mr.R.Shunmugasundaram
Advocate General assisted by
Mr.N.R.R.Arun Natarajan,Spl.GP
& Mr.A.G.Shakeenaa
For R6 : Mr.R.Bharanidharan
For R7 : Mr.V.Raghavachari,
Senior counsel for
Mrs.V.Srimathi
COMMON JUDGMENT
[Judgment of the Court was delivered by S.S.SUNDAR, J.,]
(1) The writ appeal is directed against the order of the learned Single
Judge dated 07.10.2021 dismissing the writ petition filed by the
appellant in WP.No.19714/2021 challenging the proceedings by
which the 3rd respondent has initiated action against the appellant
by treating him as an encroacher under section 78 of the Tamil
Nadu Hindu Religious and Charitable Endowments Act, 1951
[hereinafter 'the Act' for the sake of brevity].
(2) Brief facts that are admitted before this Court by the appellant are
as follows:-
WA.No.2918/2021 & WP.No.8917/2023
(3) The appellant took the subject property on lease on 06.03.2006
under a Lease Deed dated 06.03.2006 between the appellant and
the Senior Trustee of Sri Muthukumaraswamy Devasthanam @ Sri
Kandasamy Temple. As per the Lease Deed, it is seen that
Tmt.P.Chamundeeswari Ammal Trust attached to Arulmighu Sri
Muthukumaraswamy Temple represented by its Senior Trustee is
the Lessor. The property that was leased out is approximately
given in the schedule. It is admitted that an extent of more than
2000 sq.ft., is in the occupation of the appellant as tenant. From
the terms of the Lease Deed and the receipts produced for the
previous period, the appellant was a lessee even earlier.
(4) The property that was leased out to the appellant forms part of
property that is the subject matter of a Trust Deed by which a
public charitable Trust which is known as Tmt.P.Chamundeeswari
Ammal Trust was created. As per the Trust Deed dated
29.08.1981, the Founder, namely, Tmt.P.Chamundeeswari Ammal,
wife of late Thiru.A.Balasubramaniam, has endowed the property
described in the schedule to run a free medical dispensary. It
WA.No.2918/2021 & WP.No.8917/2023
appears that the desire of the Founder of the Trust was to endow
the property for the purpose of running a medical dispensary
reserving unto herself, the life interest and life interest to her father
to collect the income from tenants in occupation. It also appears
that the desire of the Founder was to dedicate the property for a
charity attached to Srimuthukumaraswamy Devasthanam @
Kandasamy temple. The Trust Deed specifically refers to the free
medical dispensary to be opened in a portion of the property.
(5) The following recitals in the Trust Deed are relevant and it is
extracted for convenience:-
''....The founder further declares that the trustees 1 to
5 being the trustees for time being of ''Sri
Muthukumaraswamy Devasthanam shall maintain
separate account immediately after the vesting of the
entire properties after the life time of the founder and
her father and treat the said property as a ''specific
endowment dedicated absolutely'' for the sole object
of providing Medical Aid to the poor and needy. As
the present trustees in the office solemnly assured that
a part of income from the Devasthanam Choultry and
through the hundial installed in the temple are to be
WA.No.2918/2021 & WP.No.8917/2023
fully applied for the upkeep maintenance and
purchase of Medicine other needed appliances, the
trustees may if the circumstances and need warrant
utilize the entire building such portion thereof better,
proper and effective running of the in-patients after
the life time of the founder and her father
Mr.P.Venugopal Chetty [P.Chamundeeswari]..''
(6) From the correspondence and the receipts produced before this
Court, this Court has no hesitation to hold that the appellant has
acknowledged the fact that the property is attached to the temple
and that it is only the trustees of the temple who were in
administration and control of the property. It is seen that the
founder under the Deed of Trust, has appointed the trustees of the
temple to manage the affairs of the Trust. Though a set of named
trustees were also appointed as persons to supervise the
administration of the Trust, the entire Trust Deed would show that
the property falls under the definition of a 'religious endowment' in
terms of Section 6[17] of the Act. Soon after the death of
Smt.P.Chamundeeswari Ammal, the trustees by a resolution dated
14.12.2001, admitting the fact that the charitable dispensary to run
WA.No.2918/2021 & WP.No.8917/2023
by the Temple. The trustees as per this resolution brought the
property under the control of temple so that the tenants would
become the tenants of the temple and governed by HR&CE Act as
the temple is a religious institution comes under the control of
HR&CE Department.
(7) It is admitted that in the year 2014, the temple came under the
Management of a Fit Person appointed by the Assistant
Commissioner of HR&CE and it is admitted that the appellant has
also accepted the tenancy under the HR&CE Department and was
paying regularly rent without any issues. It appears that
proceedings were initiated for fixing of fair rent in terms of Section
34A of the Act with effect from 01.07.2016. Since the appellant
did not pay the rent fixed in terms of the provisions of the Act,
there were disputes and the lease was terminated for non payment
of rent. It is now admitted that on 16.07.2019, notice terminating
tenancy was issued and thereafter, a show cause notice was issued
by the 3rd respondent vide proceedings dated 19.07.2021, to show
cause why the appellant shall not be evicted by treating him as an
WA.No.2918/2021 & WP.No.8917/2023
encroacher. It is seen the Assistant Commissioner and the
Executive Officer of the temple have requested the Joint
Commissioner, HR&CE to initiate action under section 78 of the
Act against the petitioner. However, the proceedings under
section 78[2] of the Act initiated by the Joint Commissioner,
HR&CE, dated 19.07.2021 is challenged by the appellant in
WP.No.19714/2021.
(8) In the writ petition, the fact the appellant took the property on lease
from the trustees of the temple, is not disputed. However, the
appellant took a stand that the Trust Deed indicates that the Trust
was only for running free medical dispensary and therefore, it is
not a religious endowment. The appellant challenged the
competency of the 3rd respondent in the writ petition to initiate
action under section 78[2] of the Act, treating the property as the
property of the temple. It is contended by the appellant that as per
the Trust Deed then was no vesting of title in favour of temple and
therefore, the 3rd respondent is not competent to initiate
proceedings under sections 78 or 79 of the Act. It was contended
WA.No.2918/2021 & WP.No.8917/2023
that the appellant is not an encroacher and that the 3rd respondent
has flouted the principles of natural justice.
(9) The learned Single Judge of this Court, considering the facts that
the appellant has accepted tenancy recognising the property of
public trust attached to the temple and that the appellant has
participated in the proceedings under section 34A of the Act, held
that the appellant is estopped from questioning the jurisdiction of
3rd respondent to initiate proceedings under section 78 of the Act.
On the question whether the property was dedicated for religious
endowment, the learned Judge considered the scope of Section
6[17] of the Act with reference to the corresponding provision
under 9[11] of 1927 Madras Hindu Religious Endowments Act in
the light of several precedents and held that the endowment in
favour of a charity of public nature would also satisfy the definition
of religious endowment defined under section 6[17] of the Act.
The learned Single Judge further held that the appellant who took
the property on lease from the erstwhile trustees of temple and
thereafter, affirmed the tenancy with the Fit Person/Executive
WA.No.2918/2021 & WP.No.8917/2023
Officer appointed by the Assistant Commissioner is estopped from
denying title or right of the temple.
(10) Referring to section 116 of the Indian Evidence Act, the learned
Single Judge held that the appellant has acknowledged the property
as a specific endowment within the meaning of Section 6[19] of the
Act and further held that the appellant is estopped from questioning
the proceedings on the ground of competency or want of
jurisdiction. It was thereafter the learned Judge considered the
scope of section 78 of the Act. Since the lease had already been
terminated, the learned Judge found that the proceedings initiated
under section 78[2] of the Act is perfectly in order and therefore,
the writ petition challenging the proceedings is unsustainable. As
against the order, dismissing the writ petition, the above writ
appeal is filed.
(11) Mr.V.Raghavachari, learned Senior counsel appearing for the
appellant, referred to various provisions, particularly, section 6[17]
of the Act and the recitals of the document, namely, the Trust Deed
dated 29.08.1981. This Court has already extracted the relevant
WA.No.2918/2021 & WP.No.8917/2023
portion/recitals of the Trust Deed.
(12) Section 6[17] reads as follows:-
''6(17)''religious endowment?'' or ?''endowment?''
means all property belonging to or given or endowed
for the support of maths or temples, or given or
endowed for the performance of any service or charity
of a public nature connected therewith or of any other
religious charity; and includes the institution
concerned and also the premises thereof, but does not
include gifts of property made as personal gifts to the
archaka, service holder or other employee of a
religious institution;
Explanation.—(1) Any inam granted to an
archaka, service holder or other employee of a
religious institution for the performance of any
service or charity in or connected with a religious
institution shall not be deemed to be a personal gift to
the archaka, service holder or employee but shall be
deemed to be a religious endowment.
Explanation.— (2) All property which belonged
to, or was given or endowed for the support of a
religious institution, or which was given or endowed
for the performance of any service or charity of a
WA.No.2918/2021 & WP.No.8917/2023
public nature connected therewith or of any other
religious charity shall be deemed to be a “religious
endowment” or endowment” within the meaning of
this definition, notwithstanding that, before or after
the date of the commencement of this Act, the
religious institution has ceased to exist or ceased to
be used as a place of religious worship or instruction
or the service or charity has ceased to be performed:
Provided that this Explanation shall not be
deemed to apply in respect of any property which
vested in any person before the 30th September 1951,
by the operation of the law of limitation.''
(13) From the reading of the Trust Deed, it is seen that the founder has
endowed the property absolutely in favour of a public charity
namely to run a free medical dispensary for the benefit of public
irrespective of caste, creed or religion. The property was given
under the management of five trustees who according to the
founder permanent trustees of the religious institution, namely, Sri
Muthukumaraswamy temple @ Sri Kandasamy tempe. Though
providing medical aid to the poor and needy is secular, the founder
wanted performance of charity not only from the income of the
WA.No.2918/2021 & WP.No.8917/2023
property which was endowed, but also from the income from the
Devasthanam Choultry and the hundial installed in the temple for
charity. Therefore, this Court has no hesitation to hold that the
public charity referred to by the founder is an endowment which
satisfy the definition of 'religious endowment' or endowment in
terms of section 6[17] of the Act.
(14) After the death of Tmt.P.Chamundeeswari Ammal, the Founder,
the then trustees of Sree Muthukumaraswamy Devasthanam @ sri
Kandasamy Temple have passed a resolution to the effect that the
property had been brought under the control of temple. The
following portion of Resolution dated 14.12.2001 is relevant and
hence, extracted below:-
'',r;brhj;J jpUf;nfhapYf;F
ghj;jpag;gl;ljhy; nkw;go thlifjhuhfis
jpUf;nfhapy; thlifjhuh;fshf ,yhfh
rl;lj;jpl;l';fSf;Fl;gl;L m';fPfupj;J
thlif kw;wk; thlif itg;g[j;
bjhiffis 1/10/2001 Kjy; bgwt[k;.
,jw;F brhj;Jthp. jz;zPh; thp
Mfpaitfis brYj;jt[k;
WA.No.2918/2021 & WP.No.8917/2023
jPh;khdpf;fg;gLfpwJ/ ''
The above resolution is found in the typed set of papers filed by
the appellant.
(15) The receipts for payment of advance even before the Lease Deed in
favour of appellant and the subsequent receipts issued by the then
trustees would show that the trustees have issued receipts in the
name of Tmt.P.Chamundeeswari Ammal Trust attached with the
temple. The receipts after 2016 is issued by the Fit
Person/Assistant Commissioner of HR&CE. The appellant is
therefore, treated as tenant under the temple and there is no dispute
for more than two decades about the nature of property. The
appellant himself recognised the property as the property endowed
for a public charity associated or attached or in connection with the
temple.
(16) The Executive Officer sought for fixation of fair rent and the
appellant participated the proceedings without any reservation and
in terms of section 34A of the Tamil Nadu HR&CE Act, fair rent
was fixed by the Committee and it was duly communicated to the
appellant in 2018. Since the appellant did not come forward to pay
WA.No.2918/2021 & WP.No.8917/2023
fair rent, the Executive Officer of temple terminated the lease with
effect from 31.05.2019 and thereafter, approached the 3rd
respondent to initiate proceeding for eviction against appellant
under section 78 of the Act.
(17) Section 78 of the Act gives wide power to the Joint Commissioner
once a report is received from the Assistant Commissioner. The
appellant has not even challenged the facts that are referred to in
the proceedings impugned in the writ petition.
(18) When the writ appeal came up for hearing, one of the points raised
by the learned Senior counsel appearing for the appellant was that
the impugned notice dated 19.07.2021 calling upon the appellant to
give his explanation on or before 05.08.2021 is in violation of
principles of natural justice. It is in the said context, without going
into the merits of the issues raise by appellant, this Court passed an
order on 06.12.2021 in the following lines:-
''6.In view of the submissions made by the learned
counsel on either side, this Court permits the
appellant to submit his additional explanation to the
3rd respondent within ten days from the date of receipt
WA.No.2918/2021 & WP.No.8917/2023
of a copy of this order and on receipt of the same, the
3rd respondent is directed to conduct enquiry after
giving due opportunity of personal hearing to the
appellant and pass orders on merits and in
accordance with law. Till such time, the writ appeal
is kept pending, the 3rd respondent is also directed to
decide the issue with regard to her jurisdiction to
issue the impugned notice dated 19.07.2021 while
deciding the matter.''
(19) Pursuant to the above direction, the 3rd respondent/Joint
Commissioner passed final orders dated 13.10.2022 after
elaborately considering the objections raised by the appellant. By
the order dated 13.10.2022, the appellant was directed to vacate the
premises within thirty days and hand over the premises to the
Executive Officer of the temple. As against the order of eviction
under section 79[2] of the Act, a revision petition was filed by the
appellant before the Commissioner under section 21 of Tamil Nadu
HR&CE Act, 1959 and by an elaborate order, dated 13.03.2023,
confirmed the order of Joint Commissioner and dismissed the
Revision. Writ appeal is filed challenging the order passed by the
WA.No.2918/2021 & WP.No.8917/2023
learned Single Judge wherein proceedings of the Joint
Commissioner initiated under section 78 of the Act was upheld.
The learned Single Judge has considered all the issues and has
rightly held that the property is a property of 'religious endowment'
and that the appellant who has taken lease of the property admitting
the character of property is estopped from disputing the title or
character of encroachment. The temple has taken possession of the
property. It is admitted that Sri Muthukumaraswamy temple is a
religious institution comes under the purview of the Tamil Nadu
HR&CE Act, 1959. Pursuant to the order of the Joint
Commissioner, it is stated that possession of the property was taken
by the temple by due process on 18.03.2023 and the whole building
which was leased out to appellant, was locked and sealed by the
Assistant Commissioner. In the said circumstances, this Court is
unable to entertain this appeal and finds no merits in the appeal..
Writ petition in WP.No.8917/2023 is filed by persons who are in
occupation as sub-lessees under the appellant, for issuance of a
writ of mandamus, directing the 3rd respondent to deseal the
WA.No.2918/2021 & WP.No.8917/2023
premises which are in their occupation and forbearing the
respondents from interfering with their peaceful possession.
(20) This Court has already found that the writ appeal is devoid of any
merits. The appellant who admitted the tenancy and acknowledged
the property as religious endowment by entering into a Lease
Agreement with the trustees of the temple, is estopped from
questioning the jurisdiction of the Joint Commissioner to initiate
proceedings under section 78 of the Act. Since this Court has also
found that the property which is the subject matter of Trust is a
religious endowment, the appeal is liable to be dismissed.
(21) It is admitted that after the order passed by the Commissioner,
HRCE, confirming the order of the Joint Commissioner, HR&CE,
confirming the order of eviction against the appellant, the
possession of the entire lease property is taken and sealed by the
Executive Officer/Assistant Commissioner on 18.03.2023
following due procedure.
(22) Learned Senior counsel appearing for the appellant in
WA.No.2918/2021 has requested this Court to permit the appellant
WA.No.2918/2021 & WP.No.8917/2023
to remove the movables which are available in the portion of
premises which is in the occupation of the appellant. It is admitted
by the learned counsels appearing for the writ petitioners in
WP.No.8917/2023 before this Court that the writ petitioners are in
possession of small portions in the premises that was leased out to
the appellant in the year 2006. Therefore, the appellant's grievance
appears to be with reference to the small portion which is in his
possession after subletting the property to the writ petitioners in
WP.No.8917/2023.
(23) The appellant was directed to file an affidavit of undertaking
before this Court if the appellant wants time. However, the
appellant has not given any undertaking except asking for time. We
are not inclined to grant any time to the appellant. The petitioners
in the writ petition has no independent right and the order of
Commissioner is binding on the writ petitioners. Learned Senior
counsel adopted the arguments of the learned Senior counsel
appearing for the appellant in the appeal. Hence, the writ petition
is liable to be dismissed.
WA.No.2918/2021 & WP.No.8917/2023
(24) The fact that the premises that was leased out to the appellant has
now been taken possession by the respondents is recorded.
(25) Learned Senior counsel appearing for the appellant then requested
this Court to show some indulgence by issuing suitable direction to
respondents to remove his belongings which are inside the
premises which has now been locked by the respondents. Learned
counsel also produced photographs showing some movables.
Though the learned Senior counsel requested a week's time, this
Court finds that it may not take so much of time to remove those
articles which belong to the appellant.
(a) The appellant in WA.No.2918/2021 is permitted to submit a
representation with an undertaking that he will remove the
movables kept inside the premises which was in his possession.
(b) On receipt of such representation from the appellant, the
respondents may consider the same by granting the appellant, a
day's time from 10.30 a.m. to 5.30 p.m., on any particular day.
WA.No.2918/2021 & WP.No.8917/2023
(c) It is open to the respondents to videograph the entire process.
(d) It is made clear that the permission granted by this Court cannot
be considered as a license or liberty to the appellant to occupy or
to claim that he is still in possession of the property.
(e) The status quo as on date is that the property had already been
taken possession by the respondents.
(f) As far as the petitioners in WP.No.8917/2023 are concerned,
learned counsel appearing for the writ petitioners has made
himself clear that he only supported the case of appellant and
conceded that the writ petitioners have no independent right.
(g) In the event of dismissing the writ petition, the learned counsel
appearing for the petitioners requested this Court to consider
giving time to the writ petitioners till the end of June 2023, i.e.,
till 01.07.2023, as the writ petitioners are advocates and they may
find some difficulties to guide their clients till the writ
petitioners find time to get an alternative accommodation in the
nearby vicinity.
WA.No.2918/2021 & WP.No.8917/2023
(h) Each of the writ petitioners are ready and willing to pay a sum of
Rs.7,500/- per month towards damages for use and occupation
till June 2023.
(i) The writ petitioners have also filed individual Affidavits of
Undertaking dated 11.04.2023 to that effect. The respective
undertaking affidavits are recorded.
(j) This Court is inclined to consider the request of the writ
petitioners and accordingly, the writ petitioners are granted time
till 01.07.2023 to vacate and hand over the premises to the
respondents. The writ petitioners are also expected to pay a
sum of Rs.22,500/- each, towards damages for use and
occupation within one month from the date of receipt of a
copy of this order.
(k) The learned Special Government Pleader [HR&CE] has filed a
report indicating the specific extent of portions of premises
which are in occupation of the writ petitioners. Learned counsel
for the respondents have no objection with regard to portion
which is in their occupation even though there is some dispute
WA.No.2918/2021 & WP.No.8917/2023
with regard to the actual extent stating that the extent mentioned
in the report includes the common area which was added in the
enjoyment of the writ petitioners.
(l) The respondents are directed to deseal the premises so as to
enable the writ petitioners to continue in the same premises
till 30.06.2023 strictly for the purpose of their profession.
However, except the premises for which desealing is directed
by this Court in this common judgment, it is deemed that the
respondents have taken possession in respect of the remaining
portion.
(m)It is open to the respondents to proceed with the implementation
of any project which they have conceived as the property shall be
deemed to in their possession for all purposes.
(n) No costs. Consequently, connected miscellaneous petitions are
closed.
[SSSRJ] [PBBJ]
12.04.2023
AP
Internet : Yes
WA.No.2918/2021 & WP.No.8917/2023
To
1.The Commissioner
Hindu Religious & Charitable Endowments Board
Chennai 600 050.
2.The Joint Commissioner
Hindu Religious & Charitable Endowments Board
Division-I, No.127, Yadhaval Street, Padi
Chennai 50.
3.The Assistant Commissioner
Hindu Religious & Charitable Endowments Board
Division-I, No.127, Yadhaval Street, Padi
Chennai 50.
4.The Assistant Commissioner of Police
High Court, Chennai.
5.The Inspector of Police
B2 Police Station, Chennai..
6.The Executive Officer
Arulmigu Sri Muthukumaraswamy
Devasthanam, Attached with
Smundeswari Ammal Trust
No.44, Rasappa Chetty Street,
Flower Bazaar, Chennai 600 003.
WA.No.2918/2021 & WP.No.8917/2023
S.S.SUNDAR, J.,
AND
P.B.BALAJI, J.
AP
WA.No.2918/2021
& WP.No.8917/2023
12.04.2023
https://www.mhc.tn.gov.in/judis 26
