R. Kulantaivel v. Commissioner, HR and CE Department
2018-10-22
S.M.SUBRAMANIAM
body2018
DigiLaw.ai
JUDGMENT S.M.Subramaniam, J. The show cause notice issued in proceedings dated 11.03.2013 under Section 78 (2) of the HR & CE Actare under challenge in all these writ petitions 2. The writ petitioners are the cultivating tenants in respect of the property belongs to the 3rd respondent Arulmigu Mariamman and Kathirayaswamy Temple to an extent of 6.64 Acres of Punja land in S.No.78 an 3.71 Acres of Punja land in S.No.113 of Arakhasanahalli Village. 3. It is an admitted fact that the land in question belongs to the 3rd respondent Temple. The petitioners state that the Lease was granted in favour of their father by the 3rd respondent Temple long back and they are continuing as a cultivating tenant and paying the Annual lease to the hereditary Trustee of the 3rd respondent / Temple. The father of the writ petitioners filed a Civil Suit in O.S.No.867 of 1974, on the file of the District Munsif, Dharmapuri, for a declaration of his right to cultivate the leased property and for a permanent injunction. The suit was decreed exparte on 10.10.1974. Thereafter, one Pettammal, Hereditary Trustee of the 3rd respondent Temple and 4 others again attempted to interfere with the possession and enjoyment of the said property from the father of the writ petitioners. Thus, the father of the writ petitioners again filed a suit in O.S.No.588 of 1999, on the file of the District Munsif, Dharmapuri, for permanent injunction. The said suit was contested by the defendants and the suit was decreed in favour of the writ petitioners and the judgment and decree became final. Accordingly, the father of the writ petitioners had been paying the rent to the hereditary trustee of the 3rd respondent Temple and cultivating the property. Third time also, there was an interference in respect of the property and again, the father of the writ petitioners filed a Civil Suit in O.S.No.10 of 2009, on the file of the District Munsif, Pennagaram, for permanent injunction. The said suit was also decreed on 30.01.2012 and the counter claim filed by the defendants was dismissed. The father of the writ petitioners died on 15.01.2012 and after his death, the writ petitioners, who are brothers and sisters, are in continuous possession and enjoyment of the property. It is contended by the writ petitioners that they are cultivating the said land and paying the rent to the 3rd respondent Temple. 4.
The father of the writ petitioners died on 15.01.2012 and after his death, the writ petitioners, who are brothers and sisters, are in continuous possession and enjoyment of the property. It is contended by the writ petitioners that they are cultivating the said land and paying the rent to the 3rd respondent Temple. 4. The petitioners state that under the Tamil Nadu Public Trust (Regulations and Administration of Agricultural Lands) Act, 1961, the petitioners are protected as they are the cultivating tenants of the lands belong to the public Trust which includes the 3rd respondent Temple also. Relying on Section 2 (5) of the said Public Trust Act which defines that the cultivating tenant includes the heir of the cultivating tenant, who contributes their own efforts on such lands. It is further stated that Section 19 of the said Public Trust Act provides grounds for eviction of a cultivating tenant and Section 18 provides that no cultivating tenant under a Public Trust could be evicted except by following the provisions of Section 19 of the Act. The father of the writ petitioner was paying the rent to the hereditary Trustee and also depositing the rents to the Courts. After his death, the petitioners have paid the rent on 10.05.2012 to the Assistant Commissioner, HR & CE Department by way of Demand Draft No.235214 drawn on Vijaya Bank, Dharmapuri. The said Demand Draft was returned by stating that one Rathinammal has been appointed as the Hereditary Trustee of the temple and therefore, the petitioner cannot pay the rent to her. Attempts taken by the writ petitioners to pay the rent to the hereditary trustee did not fructify and the petitioners requested the Assistant Commissioner, HR & CE to furnish the information regarding the hereditary trustee and also sought for the details. Under these circumstances, the impugned show cause notice has been issued by the Assistant Commissioner, Dharmapuri in proceedings dated 12.10.2012, seeking an explanation from the writ petitioners, as to why the petitioners should not be evicted from the said lands and right to cultivate the lands to be granted by public auction. The petitioners sent their reply on 07.11.2012, setting out the facts and their claim as a cultivating tenant. However, the 2nd respondent has issued notice dated 11.03.2013 to the writ petitioners under Section 78 (2) of the HR & CE Act, 1959.
The petitioners sent their reply on 07.11.2012, setting out the facts and their claim as a cultivating tenant. However, the 2nd respondent has issued notice dated 11.03.2013 to the writ petitioners under Section 78 (2) of the HR & CE Act, 1959. The writ petitioners challenging the said show cause notice filed the present writ petitions mainly on the ground that they are the cultivating tenant and they are protected under the Tamil Nadu Public Trust (Regulations and Administration of Agricultural Lands) Act, 1961 and therefore, the provisions of HR & CE Act, is inapplicable to their cases. It is further contended that the show cause notice issued under Section 78 is untenable, in view of the fact that the Act itself is not applicable in the cases of the cultivating tenant, who are protected under the provisions of the Public Trust Act. 5. The learned counsel appearing for the respondents disputed the contentions by stating that the Public Trust Act is not applicable in respect of the persons, who are all in occupation of the Temple lands. After, the enactment of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959, Tamil Nadu Act 22 / 1959, the same alone will be applicable in respect of the tenants / lease holders and other occupants of the temple properties. The HR & CE Act being a special Act, the same alone to be applicable in respect of the persons, who are all in occupation of the temple properties. Thus, the very ground raised in this regard by the writ petitioner stating that they are protected under the Public Trust Act is untenable. 6. Section 1 (3) of the Hindu Religious Charitable Endowment Act states that the Act applies to all Hindu Religious Institutions and Endowments including incorporated Devasams and unincorporated Devasams. 7. Section 34 of the HR and CE Act provides Alienation of immovable properties, which reads as follows: ''34.
6. Section 1 (3) of the Hindu Religious Charitable Endowment Act states that the Act applies to all Hindu Religious Institutions and Endowments including incorporated Devasams and unincorporated Devasams. 7. Section 34 of the HR and CE Act provides Alienation of immovable properties, which reads as follows: ''34. Alienation of immovable trust property.(1) 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] (The words "the Commissioner" were substituted by the words "the Temple Administration Board" by Tamil Nadu Act 46 of 1991, and subsequently the words "the Temple Administration Board" were substituted for the words "the Commissioner" by Tamil Nadu Act 39 of 1996.) as being necessary or beneficial to the institution : Provided that before such sanction is accorded, the particulars relating to the proposed transaction shall be published in such manner as may be prescribed, inviting objections and suggestions with respect thereto; and all objections and suggestions received from the trustee or other persons having interest shall be duly consider by [the Commissioner] (The words "the Commissioner" were substituted by the words "the Temple Administration Board" by Tamil Nadu Act 46 of 1991, and subsequently the words "the Temple Administration Board" were substituted for the words "the Commissioner" by Tamil Nadu Act 39 of 1996) : Provided further that the Commissioner shall not accord such sanction without the previous approval of the Government (Inserted by Tamil Nadu Act 38 of 1998 which came into force on the 22nd January 1999). 1. The words "the Commissioner" we substituted by the words "the Temple Administration Board" by Tamil Nadu Act 46 of 1991, and subsequently the words "the Temple Administration Board" were substituted for the words "the Commissioner" by Tamil Nadu Act 39 of 1996. 2. The words "the institutions in respect of which the Area Committee exercise powers and discharges duties any member of the Committee authorized by it in this behalf" were omitted by section 17 of Tamil Nadu Act 19 of 1968. Explanation.
2. The words "the institutions in respect of which the Area Committee exercise powers and discharges duties any member of the Committee authorized by it in this behalf" were omitted by section 17 of Tamil Nadu Act 19 of 1968. Explanation. Any lease of the property above mentioned through for a term not exceeding five years shall, if it contains a provision for renewal for a further term (so as to exceed five years in the aggregate), whether subject to any condition or not, be deemed to be a lease for a period exceeding five years. (2) When according such sanction, [the Commissioner] (The words "the Commissioner" were substituted by the words "the Temple Administration Board" by Tamil Nadu Act 46 of 1991, and subsequently the words "the Temple Administration Board" were substituted for the words "the Commissioner" by Tamil Nadu Act 39 of 1996) may impose such conditions and give such direction, as [he] (The words "he" was substituted by the word "it" by Tamil Nadu Act 46 of 1991 and subsequently the word "it" was substituted by the word "he" by Tamil Nadu Act 39 of 1996) may deem necessary regarding the utilization of the amount raised by the transaction, the investment thereof and in the case of a mortgage regarding the discharge of the same within a reasonable period. (3) A copy of the order made by [the Commissioner] (The words "the Commissioner" were substituted by the words "the Temple Administration Board" by Tamil Nadu Act 46 of 1991, and subsequently the words "the Temple Administration Board" were substituted for the words "the Commissioner" by Tamil Nadu Act 39 of 1996) under this section shall be communicated to the Government and to the trustee and shall be published in such manner as may be prescribed. (4) The trustee may, within three months from the date of his receipt of a copy of the order, and any person having interest may within three months from the date of the publication of the order [appeal to the Court] (Substituted for the words "appeal to the "Government" by the Tamil Nadu Hindu Religious and Charitable Endowments (Second Amendment) Act, 1998 (Tamil Nadu Act 38 of 1998), which came into force on the 22nd January 1999) to modify the order or set it aside.
1[(4-A) The Government may issue such directions to the Commissioner as in their opinion are necessary, in respect of any exchange, sale, mortgage or lease of any immovable property, belonging to, or given or endowed for the purpose of, any religious institution and the Commissioner shall give effect to all such directions]. (5) Nothing contained in this section shall apply to the imams referred to in section 41. 34-A. Fixation of lease rent. The lease rent payable for the lease of immovable property belonging to, or given or endowed for the purpose of, any religious institution, shall be fixed by a Committee consisting of the Joint Commissioner, the Executive Officer or the Trustee or the Chairman of the Board of Trustees, as the case may be, of the religious institution and the District Registrar of the Registration Department in the district concerned taking into account the prevailing market rental value and the guidelines, as may be prescribed and such lease rent shall be refixed in the like manner once in three years by the said Committee. Explanation. For the purpose of this sub-section, "prevailing market rental value" means the amount of rent paid for similar types of properties situated in the locality where the immovable property of the religious institution is situated. (2) The Executive Officer or the Trustee or the Chairman of the Board of Trustees, as the case may be, of the religious institution concerned, shall pass an order fixing the lease rent and intimate the same to the lessee specifying a time within which such lease rent shall be paid. (3) Any person aggrieved by an order passed under sub-section (2), may, within a period of thirty days from the date of receipt of such order, appeal to the Commissioner, in such form and in such manner, as may be prescribed. (4) The Commissioner may after giving the person aggrieved an opportunity of being heard, pass such order as he thinks fit.
(4) The Commissioner may after giving the person aggrieved an opportunity of being heard, pass such order as he thinks fit. (5) Any person aggrieved by an order passed by the Commissioner under sub-section (4) may, within ninety days from the date of receipt of such order, prefer a revision petition to the High Court : Provided that no appeal or revision shall be entertained under sub-section (3) or sub-section (5), as the case may be, unless it is accompanied by satisfactory proof of deposit of the lease rent so fixed or refixed, in the account of the religious institution concerned and such amount shall be adjusted towards the lease amount payable by the lessee as per the order passed in the appeal or revision, as the case may be. 34-B. Termination of lease of immovable property. (1) The lease of immovable property belonging to, or given or endowed for the purpose of, any religious institution shall be liable to be terminated on the non-payment of the lease rent or on violation of any of the conditions imposed in the lease agreement (Added by the Act 31/2009) after giving a reasonable opportunity of being heard. 1. Inserted by Tamil Nadu Act 38 of 1998. 2. Sections 34-A to 34-D were inserted by Tamil Nadu Act 25 of 2003 which came into force on the 10th May 2003. (2) No proceeding to terminate the lease shall be initiated, if (i) the time for appeal or revision under sub-section (3) or sub-section (5), as the case may be, of section 34-A has not expired; or (ii) the order has been made the subject of such appeal or revision till the disposal of the matter. (3) On the termination of the lease under sub-section (1), the property shall vest with the concerned religious institution free from all encumbrances and the Executive Officer, the Trustee or the chairman of the Board of Trustees, as the case may be, of such religious institution shall take possession of the property including the building, superstructure and trees, if any.
(3) On the termination of the lease under sub-section (1), the property shall vest with the concerned religious institution free from all encumbrances and the Executive Officer, the Trustee or the chairman of the Board of Trustees, as the case may be, of such religious institution shall take possession of the property including the building, superstructure and trees, if any. 34-C. Payment of amount.(1) 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 the lessee on the property vested with the religious institution under section 34-B. (2) The amount specified in sub-section (1) shall be determined by the Committee consisting of the Joint Commissioner, Executive Engineer (Buildings) of Public Works Department having jurisdiction over the area in which the religious institution is situated, the Divisional Engineer (Hindu Religious and Charitable Endowments) concerned and the Executive Officer or the Trustee or the Chairman of the Board of Trustees, as the case may be, of the religious institution and shall be paid by such religious institution in such manner, as may be prescribed. (3) In determining the amount, the Committee shall be guided by the provisions contained in sections 23, 24 and other relevant provisions of the Land Acquisition Act, 1894 (Central Act I of 1894). (4) The Executive Officer of the Trustee or the Chairman of the Board of Trustees, as the case may be, shall pass an order specifying the amount payable under sub-section (1) after adjusting the arrears of lease rent, if any, due. (5) Any person aggrieved by an order passed under sub-section (4) may, within a period of thirty days form the date of receipt of such order, appeal to the Commissioner in such form and in such manner, as may be prescribed. (6) The Commissioner may, after giving the appellant an opportunity of being heard, pass such order as he thinks fit. (7) Any person aggrieved by an order passed by the Commissioner under sub-section (6) may, within ninety days form the date of receipt of such order, prefer a revision petition to the High Court. 34-D. Bar of jurisdiction of Civil Court.
(7) Any person aggrieved by an order passed by the Commissioner under sub-section (6) may, within ninety days form the date of receipt of such order, prefer a revision petition to the High Court. 34-D. Bar of jurisdiction of Civil Court. Save as otherwise provided in section 34-A or 34-C, no suit or other legal proceeding in respect of an order passed under section 34-A or 34-B or 34-C, as the case may be, shall be instituted in any court of law.]'' 8. Section 34, specifically deals with the Trust properties and also endowments properties which belongs to the Temple. When a special Act provides, in respect of the properties belongs to the Temple, the application of General law would not arise at all. In other words, the special Act will prevail over the general Acts and therefore, the very contention raised in this regard by the writ petitioner that they are protected under the Public Trust Act is certainly impermissible. After the enactment of the HR & CE Act, the same alone will be applicable in respect of the Trusts, Endowments and the properties belongs to the hindu religious Institutions. Thus, it is unambiguous that the provisions of HR and CE Act alone is applicable, in respect of the case of the writ petitioners, who are in possession of the property belongs to the 3rd respondent Temple. The writ petitioners have not disputed the title and ownership of the properties, which belongs to the Temple. When it is admitted that the property belongs to the 3rd respondent Temple, the writ petitioners cannot say that their rights are protected under the Public Trust Act. Therefore, the actions initiated under HR & CE Act for eviction is unsustainable. Such a contention raised is absolutely not in consonance with the established principles of law. Whenever, the provisions of the special Acts are made applicable to the Institutions, the same alone will prevail over all other general law and therefore, there is no infirmity in respect of the respondents in invoking the provisions of the HR & CE Act to deal with the properties belongs to the 3rd Temple. 9. Further that Section 34 contemplates that a Lease cannot be granted exceeding five years, in respect of any immovable properties belonging to the religious institutions.
9. Further that Section 34 contemplates that a Lease cannot be granted exceeding five years, in respect of any immovable properties belonging to the religious institutions. Thus, the Lease itself must be granted by the competent authority only for a maximum period of five years and not more that that. In all such cases where the lease period is extending more than five years, renewal of lease is mandatory and therefore, the writ petitioner was treated as a encroacher under Section 78 of the Act. In the absence of any valid lease, it is to be construed that the persons who are in occupation of the temple lands are encroachers and in unlawful occupation. In the present case, the lease granted in favour of the father of the writ petitioners had not been renewed at all. The father of the writ petitioners filed number of Civil Suits and continued in occupation, possession and enjoyment. It is brought to the notice of this Court by the respondents that in none of the Civil Suits, HR & CE Department has been impleaded as party defendant. Such a litigative possession and enjoyment can never be a ground for continuing the possession, contrary to the provisions of the HR & CE Act. Thus, a growing practice amongst the litigants is that they can file Civil Suit in all such circumstances and prolong the litigation so as to continue their occupation in an illegal manner. Such mind set and attitude can never be appreciated nor be considered by the High Courts. All such actions are to be deprecated. 10. This Court is of an opinion that the department officials are also bound to be vigilant, while dealing with all such Civil Suits filed by persons who are in illegal occupation of the temple properties. This Court is able to visualize that in many cases, such illegal occupation of temple properties are being continued by the persons by colluding with the officials of the HR & CE Department. Thus, the periodical review in respect of all such cases are to be undertaken by the Commissioner, HR & CE Department and in case of any lapses, negligence or dereliction on duty on the part of the competent officials to invoke the provisions of the Act, the same is to be viewed seriously and appropriate disciplinary proceedings are to be initiated against the delinquent officials.
The officials of the HR & CE Department, by virtue of their qualification of law degree, are appointed for a specific purpose to protect the properties belong to the Temple. The qualification for appointment of an Executive officer in the HR & CE Department is a law degree and therefore, they must be vigilant and prudent, as they are the Trustees of the properties and custodian of the Temple belongings. They are duty bound to protect all such properties of the Temple and religious structures. Any violation on their part would be viewed seriously. There cannot be any leniency or misplaced sympathy in respect of such officials while dealing with the cases of negligence and dereliction on duty. 11. This Court is of an opinion that some great souls of this great Nation have contributed their hard earned money for the welfare of the Temple and the devotees. They have contributed their hard earned money and properties for providing Annadhanams and to conduct rituals and festivals for the benefit of the community at large. Such being the noble intention of those great souls who contributed their valuable properties to the Temple, the HR & CE department as a custodian is duty bound to protect the same by all means and utilize the properties only for the benefit of the devotees and in the interest of the temple and religious Institutions. Intention of those donors and persons who gifted movables and immovables to the religious institutions are that all such properties are to be utilised without any deviation or dilution to the benefit of the devotees and such properties donated to the religious institutions are to be protected and utilized for the purpose of which the same was donated. Now, it is the growing trend in the HR & CE Department that the temple properties are mostly misused and abused. The Department is not functioning efficiently. The HR & CE Department is remaining as silent spectator in respect of such irregularity, though it is visibly noticed by the public at large. It is the duty of the competent officials to respect the public opinion and the happenings inside the Department. When there is a doubtful circumstances and when it is brought to the notice of the Department officials, they are bound to conduct enquiry and initiate action under the provisions of the Act.
It is the duty of the competent officials to respect the public opinion and the happenings inside the Department. When there is a doubtful circumstances and when it is brought to the notice of the Department officials, they are bound to conduct enquiry and initiate action under the provisions of the Act. However such things are not at all happening in the Department, when the Executive officers and the higher officials are informed about such irregularity and mostly no actions are initiated. Contrarily, they are attempting to pass their tenure so as to escape from performing their duties and responsibilities warranted under the provisions of the Act and Rules. Such an attitude of the officials are also to be treated as a gross negligence. Inactions of the officials are certainly a misconduct. 12. Such being the principles to be followed, this Court is of an opinion that the HR & CE officials, who all are law graduates, are empowered to protect the properties both movables and immovables belonging to the religious institutions and they are bound to act vigilantly and to perform their duties and responsibilities to the expectations of the people at large, so as to uphold the constitutional principles and perspectives. 13. In respect of the present writ petition, the show cause notice has been issued under Section 78 (2) of the HR & CE Act. Section 78 deals with encroachment by persons on land or building belonging to the charitable or religious institutions or endowments and the eviction of encroachers. 14. The writ petitioners are not the leaseholders, admittedly, the petitioners are not having any valid lease granted by the competent authority of the 3rd respondent Temple. Even, the petitioners have not applied for any name transfer. Thus, the petitioners are to be construed as encroachers and therefore, there is no infirmity in respect of the actions initiated under Section 78 of the Act. The father of the writ petitioners was a leaseholder. Lease granted was only three years. Thereafter, the lease had not been renewed at all. After the demise of the original leaseholder namely, the father of the writ petitioners, the writ petitioners had not taken any steps even for name transfer. Therefore, in any angle, they cannot be considered as legal tenants or a leaseholders, with reference to the provisions of the Act.
Thereafter, the lease had not been renewed at all. After the demise of the original leaseholder namely, the father of the writ petitioners, the writ petitioners had not taken any steps even for name transfer. Therefore, in any angle, they cannot be considered as legal tenants or a leaseholders, with reference to the provisions of the Act. This apart, they cannot be protected under the provisions of the Public Trust Act, as the HR & CE Act is the special Act governing the movable and immovable properties belonging to the hindu religious institutions. Thus, the very ground raised in this regard by the writ petitioner deserves no merit consideration. 15. No writ proceedings can be entertained against the show cause notice in a routine manner. The judicial review against the show cause notice is certainly limited. A show cause notice can be challenged, if the same has been issued by an incompetent authority having no jurisdiction or competency or if an allegation of malafides are raised or if the same is in violation of the statutory rules in force. Even in case of raising an allegation of malafides, the authority against whom such an allegations are raised is to be impleaded as party respondent in his personal capacity in the writ proceedings. In the absence of any one of these legal grounds, no writ proceedings can be entertained against the show cause notice. 16. Intermittent intervention in statutory proceedings are not desirable. Such intermittent interventions will cause prejudice to the completion of the statutory proceedings initiated by the competent authorities by invoking the provisions of the Act. In less there is a legal ground to interfere, the High Courts must allow the authorities competent to proceed with the enquiry and conclude the same by providing opportunity to all the persons concerned. This being the scope of the proceedings, the High Courts must be cautious while entertaining the writ against the show cause notice. Stalling the statutory proceedings on the show cause notice will certainly affect the effective and efficient implementation of the Statutes concern. Thus, in the event of any established legal grounds, no writ proceedings shall be admitted against the show cause notice. The Hon'ble Supreme Court also time and again emphasized that writ against the show cause notice cannot be entertained in a casual manner. 17.
Thus, in the event of any established legal grounds, no writ proceedings shall be admitted against the show cause notice. The Hon'ble Supreme Court also time and again emphasized that writ against the show cause notice cannot be entertained in a casual manner. 17. Though the writ petitioners have raised the point of jurisdiction, this Court is of an opinion that said ground deserves no consideration, in view of the fact that the property in question is governed under the provisions of the HR and CE Act, which is a special Act. Thus, the ground raised that the respondent has no jurisdiction to issue show cause notice under Section 78 of the Act, is impermissible and therefore, the writ petitions are devoid of merits and accordingly, stands dismissed. However, there shall be no order as to costs. Consequently, connected miscellaneous petitions is closed.