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2022 DIGILAW 14 (MAD)

M. Balasubramanian v. Commissioner, HR & CE

2022-01-03

M.SUNDAR

body2022
ORDER : 1. Captioned main writ petition pertains to a public temple which goes by the name 'Arulmigu Gopalakrishnaswamy Vagaira Thirukkovil' and situate in Krishnapuram Village, Kadayanallur Taluk, Tenkasi District (hereinafter 'said Temple' for the sake of convenience and clarity). 'Three parcels of lands comprised in various survey numbers admeasuring a total extent of 10.52 acres or thereabouts' (hereinafter 'said lands' for the sake of convenience and clarity) admittedly belonging to said Temple is the nucleus of the captioned main writ petition. 2. A tabulation in proceedings of the second respondent can be usefully extracted and reproduced for description of the three parcels of the lands i.e., said lands. A scanned reproduction of tabulation is as follows: IMAGE 3. Mr.M.P.Senthil, learned counsel appearing on behalf of Mr.R.Balakrishnan, learned counsel on record for writ petitioner and Mr.T.Amjadkhan, learned Government Advocate who accepted notice on behalf of all the four respondents are before me. 4. Owing to the short point involved, captioned main writ petition was taken up and heard out with the consent of learned counsel on both sides. 5. Mr.M.P.Senthil, learned counsel appearing on behalf of Mr.R.Balakrishnan, learned counsel on record for writ petitioner and Mr.T.Amjadkhan, learned Government Advocate who accepted notice on behalf of all the four respondents are before me. 4. Owing to the short point involved, captioned main writ petition was taken up and heard out with the consent of learned counsel on both sides. 5. Short facts are that said lands belong to said Temple; that writ petitioner's father, one Mr.Mahalingam was originally lessee under said Temple qua said lands; that proceedings under Section 78 of 'the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 (Tamil Nadu Act 22 of 1959)' [hereafter 'TNHR&CE Act' for the sake of convenience and clarity] were initiated; that this proceedings are vide M.P.No.26 of 2005; that in and by an order dated 02.11.2011, the second respondent (jurisdictional Joint Commissioner of the 'Tamil Nadu Hindu Religious & Charitable Endowments Department' which shall hereinafter referred to as 'TNHR&CE Dept' for the sake of convenience and clarity) made an order stating that lease deeds can be executed in favour of writ petitioner qua said lands; that pursuant to this order, three lease deeds (all dated 30.11.2011) for three parcels of land which constitute said lands were entered into between the fourth respondent (Executive Officer of said Temple and the writ petitioner); that writ petitioner's father Mr.Mahalingam carried this 02.11.2011 order of the second respondent in revision to the first respondent (Commissioner of TNHR&CE Dept); that this is vide R.P.No.3 of 2012; that the 02.11.2011 order of second respondent was set aside vide order dated 25.03.2013 in the revision i.e., R.P.No.3 of 2012; that the writ petitioner assailed the order made in revision by way of a writ petition in this Court being W.P(MD).No.6532 of 2013, the writ petition came to be dismissed by a learned Single Judge in and by an order dated 27.09.2016; that this order of learned Single Judge was carried in appeal by the writ petitioner by way of an intracourt appeal i.e., W.A(MD).No.1404 of 2016 and this writ appeal also was disposed of by a Hon'ble Division Bench in and by order dated 25.11.2016 saying that there is no ground to interfere with the order of learned Single Judge; that there are no further orders and therefore the order of the first respondent-Commissioner made in R.P.No.3 of 2012 (order dated 25.03.2013) has attained finality/given legal quietus; that under these circumstances, writ petitioner filed a petition purportedly under Section 34-A of TNHR&CE Act with prayers for fixation of lease rent qua said lands; that thereafter the fourth respondent made an 'order dated 17.11.2021 bearing reference Na.Ka.No.430/2021/A3' (hereinafter 'impugned order' for the sake of convenience and clarity) calling upon the writ petitioner to remove encroachment qua said lands besides putting him on notice above Section 79-B of TNHR&CE Act which kicked-in on and from 09.12.1996 and which provides for penalty/penal consequences for offences in connection with encroachments; that thereafter the writ petitioner has sent a detailed explanation dated 07.12.2021 to the third respondent (jurisdictional Assistant Commissioner of TNHR&CE Dept). 6. In the aforementioned backdrop, the writ petitioner has come up with the captioned main writ petition inter alia assailing the aforementioned 17.11.2021 order made by the third respondent and to mandamus respondents 1 to 4 to consider writ petitioner's objection dated 07.12.2021. 7. In his campaign against the impugned order and in support of his prayer, notwithstanding very many averments in the writ affidavit and grounds raised in the writ affidavit, in the hearing learned counsel for writ petitioner made submissions, a summation of which is as follows: (a) Absent an order under Section 78 of TNHR&CE Act, recourse cannot be taken to Section 79-B of TNHR&CE Act; (b) Lease deeds have been executed by the fourth respondent-Executive Officer of said Temple i.e., three lease deeds (all dated 30.11.2011) qua said lands in favour of the writ petitioner and therefore the writ petitioner cannot be construed as an encroacher. 8. Learned State counsel who has accepted notice on behalf of the respondents responded to the above submissions in the following manner: (a) Section 78 of TNHR&CE Act proceedings were initiated, Section 78 proceedings is M.P.No.26 of 2005 in which the order in favour of writ petitioner came to be made. Therefore, it cannot be construed that there are no Section 78 proceedings; (b) The lease deeds ought not to have been entered into by the fourth respondent and that does not clothe the writ petitioner any rights. 9. In response to the aforementioned submissions of learned State counsel, learned counsel for writ petitioner reiterated his submissions made in the opening arguments. 10. I carefully considered the rival submissions and I am of the considered view that the prayer of the writ petitioner cannot be acceded to. The reasons are as follows: (i) The first point is the three purported lease deeds i.e., lease deeds dated 30.11.2011 are ab initio null and void by operation of Section 34 of TNHR&CE Act. The reason is, the lease deeds do not specify the period of lease and this means that these three lease deeds are lease deeds in perpetuity; (ii) Section 34 of TNHR&CE Act is not merely a provision which makes it statutorily imperative for the Executive Officer to get permission of the Commissioner albeit with the prior approval of the Government. The reason is, the lease deeds do not specify the period of lease and this means that these three lease deeds are lease deeds in perpetuity; (ii) Section 34 of TNHR&CE Act is not merely a provision which makes it statutorily imperative for the Executive Officer to get permission of the Commissioner albeit with the prior approval of the Government. It is a provision which makes it clear that any lease entered into with regard to property belonging to a religious institution in contravention of Section 34 of TNHR&CE Act is null and void, for convenience, I deem it appropriate to extract and reproduce Section 34 of TNHR&CE Act 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] 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] : [Provided further that the Commissioner shall not accord such sanction without the previous approval of the Government]. 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, 1[the Commissioner] may impose such conditions and give such direction, as 3[he] 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] under this section shall be communicated to the Government and to the trustee and shall be published in such manner as may be prescribed. (3) A copy of the order made by [the Commissioner] 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] to modify the order or set it aside. [(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.' (underlying made by this Court to highlight and for ease of reference) To be noted, it is nobody's case that the aforementioned three lease deeds were sanctioned by first respondent, therefore subsection (1) of Section 34 of TNHR&CE Act is relevant and therefore the lease deeds are clearly null and void by operation of Section 34. The Executive Officer should have been cautious and ought not to have entered into lease deed of this kind; (iii) There is another reason as to why the lease deeds are not enforceable. The lease deeds were made pursuant to an order dated 02.11.2011 made in M.P.No.26 of 2005 but this order was set aside in revision by the Commissioner in and by order dated 25.03.2013 which was confirmed by a Hon'ble Single Judge and a Hon'ble Division Bench. Therefore, absent the 02.11.2011 order of the Joint Commissioner of TNHR&CE Dept, the substratum of the lease has been taken away and therefore, the lease deeds have no legs to stand which is another way of looking at the lease deeds and either way the lease deeds have no legs to stand; (iv) The sequitur to the above said points are that the writ petitioner has no right qua said lands. Further sequitur to the above points is that the petitioner squatting on a property in which he has no rights and when there is no disputation that the said properties belong to a religious institution i.e., a public Temple (said Temple in this case), the writ petitioner clearly becomes an encroacher. In this regard, this Court reminds itself that even if there was a valid lease, on efflux of the period of lease, cancellation or termination of the lease, the lessee also becomes an encroacher by operation of proviso under Section 78 of TNHR&CE Act which is in the nature of a legal fiction. Therefore, there is no impediment in the writ petitioner's possession of said lands being treated as an encroachment. 11. In the case on hand, the order of the Commissioner was assailed in two tiers, one before a learned Single Judge the order of learned Single Judge was carried in an intra-court appeal by the Division Bench and the writ petitioner was unsuccessful in both tiers. In other words, the order of the Commissioner made in exercise of his revisional powers under Section 21 of TNHR&CE Act had attained finality and have been given quietus. 12. Therefore, there can be no objection to an order being made i.e., the impugned order inter alia putting the writ petitioner on notice about Section 79-B of TNHR&CE Act. 13. The argument that an order under Section 78 of TNHR&CE act is a condition precedent for invoking Section 79-B, in my considered view is a non-starter as a plain perusal of Section 79-B of TNHR&CE Act which kicked in on and from 09.12.1996 makes it clear that it will apply to any person who occupies or is in occupation otherwise than lawful possession of property belonging to a religious institution. To be noted, date of coming into force of TNHR&CE Act is 19.11.1959. 14. Ergo, the inevitable sequitur is there is no ground to interfere qua the impugned order. The further sequitur is, captioned main writ petition and WMP therein fail and the same are dismissed. There shall be no order as to costs.