Madras High Court
M. Babu vs The Secretary on 21 July, 2023
W.A. No. 909 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 21.07.2023
CORAM
THE HON’BLE MR. JUSTICE S. VAIDYANATHAN
AND
THE HON’BLE MR. JUSTICE K. RAJASEKAR
W.A. No. 909 of 2023
1. M. Babu
P. Balamurugan (deceased)
2. A. Kasthuri
3. S. Subbaiya
4. G. Rajammal
5. K. Rajamani
6. S. Balamurugan
7. B. Dhanalakshmi
8. Minor Uma Mageswari
9. Minor Ushadevi
(Appellants 7 to 9 legal heirs of
Deceased appellant P. Balamurugan.
Appellants 8 and 9 are minors. The
7th appellant is the natural guardian
And mother)
(Accepted the cause title vide
Court order dated 29.03.2023 made
In C.M.P. No.2812/2023 in
W.A.SR. No.12654/2023.
(TR, ACJ & DBCJ) ..Appellants
Vs.
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W.A. No. 909 of 2023
1. The Secretary,
Tourism, Culture & Religious
Endowments Department,
Secretariat, Fort St. George,
Chennai – 600 009.
2. The Commissioner,
Hindu Religious and Charitable
Endowments Department,
Uttamar Gandhi Salai,
Nungambakkam, Ch-34.
3. The Joint Commissioner, Chennai,
Office of the Joint Commissioner,
Hindu Religious and Charitable
Endowments Department,
Uttamar Gandhi Salai,
Nungambakkam, Ch-34.
4. Arulmigu Thirusoolanathar Thirukoil,
Rep. by its Executive Officer,
Thirisoolam,Chennai – 600 043.
5. The Revenue Divisional Officer,
Tambaram Taluk, Tambaram.
6. The Assistant Commissioner,
Hindu Religious and Charitable
Endowments Department,
Chengalattu.
7. The Tahsildar,
Pallavaram. ..Respondents
Prayer: Writ Appeal as against the order dated 16.11.2022 passed in W.P. No.
19641 of 2022.
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W.A. No. 909 of 2023
For Appellants :: Mr.S.R. Rajagopal,
Senior Counsel for
Ms.H. Lucia Priyadarshini
For Respondents :: Mr.N.R.R. Arun Natarajan
Standing Counsel for HR & CE for
R1 to R4
Mr.P. Ganesan,
Govt. Advocate for R5 to R7
JUDGMENT
(Delivered by S. Vaidyanathan,J.)
Challenging the order dated 16.11.2022 passed in W.P. No. 19641 of 2022 by
the learned Single Judge, by which the relief sought by writ petitioners for a direction
to the 1st respondent herein to number the revision petitions filed by them by
condoning the delay of 60 days in filing the same and for a consequential direction to
the 4th and 6th respondents not to dispossess them from the properties occupied by
them till the disposal of the revision petitions filed by them, has been rejected.
2. A brief summary of facts that is relevant for the disposal of the writ
appeal:
The writ petitioners, who are appellants 1 to 6 herein as well as the deceased
appellant, P. Balamurugan (now represented by his legal heirs, appellants 7 to 9)
were said to have purchased certain properties from their vendors under the bona fide
belief that the title of the properties vests with them, while actually, the properties
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belong to the 4th respondent temple. Oblivious of the real fact, the writ petitioners
had been in continuous use and occupation of the said properties for nearly 15 years
by constructing superstructures. They have been assessed to property tax and were
paying other charges and only thereafter, when the officials of the 4 th respondent
temple demanded them to vacate and hand over possession, they came to know that
the properties belong to the 4th respondent temple. Proceedings were initiated under
Section 78 of Hindu Religious & Charitable Endowments Act, 1959 (‘HR & CE Act’
in short) against them and during the course of enquiry before the Joint
Commissioner, HR & CE Department, they were intimated that fair rent would be
determined in respect of the portions under their occupation and tenancy would be
regularized. The writ petitioners also agreed to abide by any condition that may be
imposed.
(ii) While so, notices were caused upon the writ petitioners and other
adjacent plot owners, who had constructed similar dwelling units in their respective
plots and they were called upon to attend an enquiry in terms of Section 78 of HR &
CE Act. During the course of enquiry before the Joint Commissioner, HR & CE
Department, Chennai, they expressed that they were ready to pay the fair rent in
respect of their respective portion of land and also undertook to abide by any
condition that may be imposed by the authority for regularization of their tenancy of
the subject lands. However, treating the writ petitioners as encroachers, on the basis
of the report submitted by the Assistant Commissioner, eviction order dated
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W.A. No. 909 of 2023
01.06.2020 were passed by the Joint Commissioner, HR & CE Department as against
which appeals were preferred by the writ petitioners along with similar residents
under Section 21 of the HR & CE Act before the 2nd respondent/Commissioner, HR
&CE Department, in R.P. Nos. 136 to 158/2020 D2, which came to be dismissed by
order dated 11.02.2022 thereby confirming the order of the Joint Commissioner, HR
&CE Department and directions were issued to the 4th respondent temple to evict
them.
(iii) Though an appellate remedy namely, a revision petition under Section
114 of the HR & CE Act before the 1 st respondent was available, as against the order
passed by the 2nd respondent, the writ petitioners, who claim to be unaware of the
same, failed to avail the appellate remedy within the limitation period of 90 days. A
few officials of the 4th respondent temple accompanied by the Executive Officer and
the Tahsildar, Pallavaram seem to have tried to seal the properties of the writ
petitioners and handed over a copy of the proceedings of the Assistant Commissioner
dated 17.06.2022. Only after receipt of notice issued by the Assistant Commissioner,
HR & CE Department, stating that steps would be taken for their eviction, the
revision petitions were filed before the 1st respondent with a delay of 60 days.
(iv) For the statutory appeals to be numbered and heard, the writ petitioners
filed W.P. No. 19641 of 2022 for a direction to the 1 st respondent herein to number
the revision petitions filed by them on 11.07.2022 by condoning the delay of 60 days
and for a consequential direction to 4th and 6th respondents not to dispossess the writ
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W.A. No. 909 of 2023
petitioners till the disposal of the revision petitions. The said writ petition came to be
dismissed by the order under challenge, resulting in filing of the writ appeal.
3. According to the appellants, the order of the learned Single Judge in
dismissing the writ petition on the ground that the revision petitions were filed
beyond the time prescribed is unsustainable as in similar batch of cases pertaining to
the same temple and against the same impugned notices, orders have been passed
directing the encroachers to deposit the arrears to the temple for regularization of
tenancy and orders have also been passed condoning the delay in filing the appeal.
Further, the appellants would state that they are similarly placed like one Suganthi,
who was a petitioner before the 2nd respondent in R.P. No.127/D2/2020 and whose
premises was sealed by the officials of the 4th respondent and within a few days after
she agreed to pay the rent, her portion was de-sealed and certain conditions were
imposed before agreeing to accept her as a tenant of the temple for a period of 3 years
and a caution deposit of Rs.50,000/- was also paid by her. However, such
consideration and grant of lease were not extended to other tenants including the
appellants. Eventhough the appellants agreed to pay the fair rent/lease, if fixed by the
authorities, it was not accepted by the 2nd respondent and they were treated as
encroachers, which only shows the biased attitude on the part of the respondent
Department. When the appellants are not disputing that the property belongs to the
4th respondent temple, the eviction order passed by the Joint Commissioner, HR &
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CE Department dated 01.06.2020 as confirmed by the order dated 11.02.2022
passed by the 2nd respondent in R.P. Nos. 136 to 158/2020 D2 under Section 21 of
the HR & CE Act is arbitrary, discriminatory and that they should also be extended
the same relief as that of Suganthi when they stand on the same footing.
4. Learned Standing counsel appearing for HR & CE Department would
submit that the title is not in dispute and that the appellants, who are encroachers, are
squatting on the temple property and therefore, the 2nd respondent rightly confirmed
the order of eviction passed by the Joint Commissioner, HR & CE Department by
order dated 11.02.2022 and the delay in availing the appellate remedy has also been
rightly held against the writ petitioners and that no relief could be granted. He would
further submit that in paragraph No.3 of the order passed by the learned Single
Judge, the entire issue has been left open and in case, the appellants are allowed to
continue in the property, in spite of the order passed under Section 21 of HR & CE
Act, it will be very difficult to remove the encroachers, who are more than 600 in
number.
5. In response, Mr.S.R. Rajagopal, learned Senior Counsel for the
appellants would submit that the appellants are not disputing the title and agree that
the temple is the owner of the property. Be that as it may, unless fair rent is fixed
under Section 34A of the HR & CE Act, which has not been done in the present case,
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the Department cannot demand any amount. The appellants are willing to remit the
entire arrears in instalments if the fair rent is fixed under Section 34A and that they
will not question the same as they are interested in continuing in the temple property
as tenants/lessees. It is also submitted by the learned Senior Counsel that an
undertaking affidavit has been filed on 8th November, 2022 recognising the ownership
of the temple and also agreeing to subject themselves to any condition to be laid
down by the respondent Department in order to inducted as tenants and further
agreeing to pay the fair rent to the temple duly without any default.
6. Heard both parties.
7. The fact that the properties under the occupation of the appellants belong
to the temple is not in dispute. According to the appellants, the properties under their
occupation were purchased by them unaware of the fact that they are temple
properties. However, according to the respondent Department, the appellants are
encroachers. Nonetheless, the respondent Department has no objection provided the
appellants pay the fair rent duly fixed under Section 34A of HR & CE Act.
8. It has been brought to the notice of this Court that fair rent has already
been fixed in terms of Section 34A for the entire properties, based on the
determination in case of Suganthi, whom the appellants have referred to and she has
been paying the fair rent.
9. Since there are about more than 10 commandments stipulated by HR &
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CE and that the appellants are willing to abide by the ten commandments, we expect
HR & CE Department to fix the fair rent for the individual persons, which shall be
paid by the appellants without questioning the same. If the appellants are not willing
to pay the fair rent and going to question the same, they can very well vacate the
place in order to enable the temple to allot the place to some other persons.
10. The contention of the appellants that the respondent Department's
approach is biased and discriminatory insofar as they are concerned while it is not so
in the case of Suganthi, who is also similarly placed like the appellants and who has
been allowed to continue as a tenant for a period of 3 years in the temple property, do
not appeal to us as Suganthi had approached the authority and agreed to abide by the
conditions and therefore, the relief was granted. In the case on hand, if the appellants
approach and agree to the terms of the respondent Department, they would also be
given relief. In any event, the lease shall not be extended beyond 3 years at any point
of time and if the appellants agree for periodic revision, their request may be
considered.
11. The fair rent under Section 34A of HR & CE Act shall be fixed within a
period of one month from the date of receipt of a copy of this order by the competent
authority as stipulated under the HR & CE Act and without any murmur, the
appellants are expected to pay the same. The arrears shall be paid within a period of
six months from the date of such determination.
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W.A. No. 909 of 2023
12. Notwithstanding the determination of fair rent under Section 34A of HR
& CE Act, without prejudice to the parties, a sum of Rs.2 lakhs less the amount
already paid, shall be paid by those appellants herein, whose premises have been
sealed, within a period of 15 days from the date of receipt of a copy of this order and
the said amount shall be adjusted in the fair rent, that is going to be fixed. In the
event of payment of Rs.2 lakhs mentioned supra, the premises of those appellants,
which have been sealed shall be desealed.
13. The writ appeal is disposed of with the above directions. No costs.
Connected C.M.P. is closed.
(S.V.N.J.) (K.R.S.J.)
nv 21.07.2023
To
1. The Secretary,
Tourism, Culture & Religious
Endowments Department,
Secretariat, Fort St. George,
Chennai – 600 009.
2. The Commissioner,
Hindu Religious and Charitable
Endowments Department,
Uttamar Gandhi Salai,
Nungambakkam, Ch-34.
3. The Joint Commissioner, Chennai,
Office of the Joint Commissioner,
Hindu Religious and Charitable
Endowments Department,
Uttamar Gandhi Salai,
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W.A. No. 909 of 2023
Nungambakkam, Ch-34.
4. Arulmigu Thirusoolanathar Thirukoil,
Rep. by its Executive Officer,
Thirisoolam,Chennai – 600 043.
5. The Revenue Divisional Officer,
Tambaram Taluk, Tambaram.
6. The Assistant Commissioner,
Hindu Religious and Charitable
Endowments Department,
Chengalattu.
7. The Tahsildar,
Pallavaram.
S. VAIDYANATHAN,J.
AND
K.RAJASEKAR,J.
nv
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