Temple case. 15 ஆண்டு போராட்டத்திற்கு பிறகு கிடைத்த வெற்றி. For Petitioner           : Mr.V.Srikanth                                  For Respondents       : Mr.T.Chezhian    Addl. Government Pleader for R1 to R4    Mr.S.Sithirai Anandham for R5 THE HONOURABLE MR.JUSTICE R.SURESH KUMAR W.P. No. 27180 of 2018 and

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED :   22.12.2021

CORAM :

THE HONOURABLE MR.JUSTICE R.SURESH KUMAR

W.P. No. 27180 of 2018 and

 W.M.P. No. 31600 of 2018

K.Mohan                       ….             Petitioner

-Vs-

1. The Secretary,

Government of Tamil Nadu,

Tourism, Culture and Religious Endowments Department,     Fort St.George, Chennai – 9.

2. The Commissioner,

Hindu Religious and Charitable Endowments Department,     No.119, Uthamar Gandhi Salai,     Nungambakkam, Chennai – 34.

3. The Joint Commissioner,

Hindu Religious and Charitable Endowments Department,     District Master Plan Complex, Villupuram.

4. The Assistant Commissioner,

Hindu Religious and Charitable Endowments Department,      District Master Plan Complex, Villupuram.

5. The Executive Officer,

Arulmighu Kirubupureeswarar Temple,

Thiruvennainallur, Thirukoilur Taluk,

Villupuram District …Respondents PRAYER: Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Certiorarified Mandamus calling for the entire records pertaining to the order dated 26.09.2018 passed by the first respondent vide G.O.(Ms).No.178 confirming the order dated 03.10.2017 of the second respondent made in R.P. No. 344 of 2017 confirming the order dated 18.10.2011 made in M.P. No. 30 of 2009 passed by the third respondent, into its file and quash the same and direct the respondents to regularize the tenancy of the petitioner with the fifth respondent Temple pertaining to the premises measuring an extent of 2160 sq.ft compromised in Old Survey No.486B, New Survey No.334 bearing Door No.16/76, Cuddalore Salai, Thiruvennainallur Village, Villupuram District.

For Petitioner           : Mr.V.Srikanth

For Respondents       : Mr.T.Chezhian

Addl. Government Pleader for R1 to R4

Mr.S.Sithirai Anandham for R5

O R D E R

The prayer sought for herein is for a Writ of Certiorarified Mandamus calling for the entire records pertaining to the order dated 26.09.2018 passed by the first respondent vide G.O.(Ms).No.178 confirming the order dated 03.10.2017 of the second respondent made in

R.P. No. 344 of 2017 confirming the order dated 18.10.2011 made in

M.P. No. 30 of 2009 passed by the third respondent, into its file and quash the same and direct the respondents to regularize the tenancy of the petitioner with the fifth respondent Temple pertaining to the premises measuring an extent of 2160 sq.ft compromised in Old Survey No.486B, New Survey No.334 bearing Door No.16/76, Cuddalore Salai,

Thiruvennainallur Village, Villupuram District.

2. The petitioner’s father one Kannayearam was the lessee in respect of 2160 sq.ft. of land at Thiruvennainallur which belongs to the fifth respondent Temple. Even during the period of said Kannayearam and thereafter his demise, there has been no rent paid to the Temple and in this regard, it is the complaint of the Temple that, there is a huge arrears.
3. After the demise of said Kannayearam, who was the original lessee, the legal heirs including the petitioner one Mohan claimed that, they partitioned the property into 4 or 5 pieces, wherein about 400 sq.ft. is in occupation of the petitioner, whereby he claims that, he stepped into the shoes of his father Kannayearam in respect of 400 sq.ft. as a lessee and also claimed that, he has been continuously paying the rent.
4. When that being so, according to the petitioner, the respondents initiated proceedings against the petitioner by invoking Section 78 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 and in this regard, Section 78 order has been passed to declare the petitioner as an encroacher and to take steps to evict him by order of the respondent i.e., third respondent, as against which, when the petitioner preferred an appeal before the Commissioner, i.e., second respondent, that appeal also was dismissed by order dated 23.08.2018 by the second respondent. As against which, when further Revision was filed before the first respondent under Section 114 of the H.R&C.E., Act, that was also rejected by the first respondent by order dated 26.09.2018. Therefore, challenging these orders, this Writ Petition has been filed.
5. V.Srikanth, learned counsel appearing for the petitioner has contended that, the main reason for which the proceedings was initiated against the petitioner under Section 78 of the H.R&C.E., Act is that, the petitioner has sublet the premises to various third parties. It is not on the ground that, the petitioner has not paid the rent, such a proceedings under Section 78 was initiated.
6. In this regard, though it is a case of the petitioner that, he has not sublet the premises to any third parties and there has been no rental arrears on the part of the petitioner, both the reasons, even though the second reason has not been given as main reason for taking action against the petitioner, would not sustain. However, these factors has not been considered either by the Original Authority or by the Appellate Authority and when this was specifically questioned before the Revisional Authority, i.e., first respondent, who also has not considered the issue in a proper perspective and mechanically passes the order impugned whereby, rejecting the Revision filed by the petitioner, by order dated 26.09.2018.
7. Therefore, the learned counsel appearing for the petitioner would contend that, the said orders which are impugned herein are liable to be interfered with.
8. The learned counsel appearing for the petitioner in the earlierhearing, when the matter was taken up for hearing, has contended that, though the total extent of the land is 2160 sq.ft., for which, the petitioner’s father Kannayearam has taken the lease, after his demise, the legal heirs including the petitioner has divided the property and accordingly, the petitioner has been in occupation of 400 sq.ft,. In respect of the remaining property, there is no claim by anyone and no one is residing or occupying the properties.
9. After having considered the said submission made by the learned counsel appearing for the petitioner during last hearing, i.e., on

15.12.2021, this Court passed the following order:

“This Court by order dated 13.12.2021 passed the following order:

“Mr.V.Srikanth, the learned counsel for the petitioner, would submit that father of one Kannayiram was the tenant under the temple for an extent of 2160 sq.ft. After his demise, his legal heirs, who are five in numbers, have divided that property and each one of the legal heir are residing in part of the property. Accordingly, the petitioner is one among five legal heirs of Late Kannayiram, who occupied small portion out of 2160 sq.ft.

2. Exactly, in how many sq.ft. out of 2160 sq.ft., this petitioner alone is occupying is not readily available with the learned counsel for the petitioner. Hence, he wants one day accommodation to get instructions in writing and present before this Court.

Post the matter on 15.12.2021 for orders, immediately after admission.”

2. Pursuant to the said order, the petitioner has filed an affidavit along with the rough sketch, inter alia wherein the petitioner has stated the following:

“1. I am the petitioner herein, as such, am well acquainted with the facts and circumstances of the case. I am filing this affidavit as directed by order dated 13.12.2021 of this Hon’ble Court.

2. I submit that myself and the legal heirs of my father late Mr.Kannayiram are in occupation of the land measuring 2160 sq.ft. comprised in Old S.No.486 B, New S.No.334, bearing Door No.16/76, Cuddalore Salai, Thiruvennainallur Village, Thirukovilur Taluk, Villupuram District.
3. I submit that, in the above property, I am in occupation of 400 sq.ft. which is demarcated and highlighted in Blue Colour in the Sketch annexed herewith. In the above portion, I have put up a Tiled House which is at present in dilapidated condition. I have been using the Bathroom and Toilet measuring 50 sq.ft. which is lying in the rear side of the property highlighted in Green Colour in the Sketch. The Common Pathway measuring 3 feet in width is the way to access my portion of the property.”
4. Relying upon this affidavit averments made by the petitioner, Mr.V.Srikanth, learned counsel appearing for the petitioner would submit that, except this blue marked portion to the extent of 400 sq.ft. and green marked portion to the extent of 18 sq.ft. as lavatory and 32 sq.ft. as wash room, the petitioner is not in occupation of any other portion of the land, which is the total extent of 2160 sq.ft.
5. In this context, it is the definite case of the Temple as well as the H.R&C.E., Department that too on the basis of the recent inspection conducted by the Executive Officer of the Temple that, nobody is in the remaining portion of the land except the petitioner and insofar as the remaining land is concerned, where even though some structure has been there, that is not put in use by anyone. Therefore, there can be no impediment for the respondent Temple and the H.R&C.E., Department to take over the said land by erasing the existing structure, which has already been abandoned by the earlier occupants, whose whereabouts not known to the Executive Officer of the Temple.
6. Recording the said submission made by the learned counsel appearing for the petitioner as well as the affidavit averments made by the petitioner and also recording the submission made on behalf of the Temple and the H.R&C.E., Department through the learned Additional Government Pleader and the learned Standing counsel respectively appearing, this Court is inclined to grant the following interim order that, there can be no impediment for the respondent / Temple / Executive Officer to take immediate action to take over the remaining land except the land or portion which is in occupation of the petitioner as indicated above, i.e., 400 sq.ft * 18 sq.ft. * 32 sq.ft. respectively and the remaining portion of the land can be taken over by the respondent Temple, where, if the respondent Temple decides to pull down the abandoned or dilapidated structure if any, they can also do so and after doing this exercise, let the respondent H.R&C.E., Department / Executive Officer of the Temple concerned shall file a compliance report before this Court on or before the next hearing date.
7. With regard to the aforesaid exercise of taking over the possession of the land as indicated above, if the Executive Officer of the Temple or any other officials of the H.R&C.E., Department seek assistance of the Police concerned, by producing this order, they can seek the assistance of the Police, for which, they can approach the Deputy Superintendent of Police of the jurisdiction concerned, which is said to be the

Deputy Superintendent of Police, Ulundurpet and also the Inspector of Police, Thiruvennainallur. In such case, the concerned Police Officer shall take all earnest efforts to give adequate Police protection to the team of the H.R&C.E., Department / Executive Officer of the Temple to take over the land as indicated above. At the time of this operation, the petitioner shall also be present. For his presence, the learned counsel appearing for the petitioner since has taken notice, he will ensure his presence.

7. Post the matter on 22.12.2021.”
8. Pursuant to the said order passed by this Court referred to above dated 15.12.2021, the respondent Temple Authorities as well as the

H.R.&C.E., Department seem to have given intimation to various authorities like Police Authorities, Revenue Authorities, Fire Service and Electricity Board and they fixed 20.12.2021 as a date for taking possession of the remaining area except the 400sq.ft., which is in occupation of the petitioner. Accordingly, in the presence of all these officials, the rest of the land to the extent of 1710 sq.ft. had been taken possession by the Temple and the structures which are in dilapidated condition or unused condition also seem to have been erased.

11. In this regard, a document set has been filed on behalf of the Temple with photographs, where the following documents of the H.R&C.E., Department also has been filed.

@mUs;kpF fpUghg[uP!;tuu; jpUf;nfhapy;. jpUbtz;bza; ey;Y}u; efh; (k) tl;lk;.

tpGg;g[uk; khtl;lk;/

RthjPdk; xg;gilg;g[

mUs;kpF fpUghg[uP!;tuu; jpUf;nfhapYf;Fr; brhe;jkhd g[jpa ru;nt vz;/334?y; jpU/fz;zhapuk; j-bg/,uh$nty; vd;gtupd; kfdhd jpU/nkhfd; 2160r/mo Mf;fpukpg;gpy; 400r/mo FoapUg;g[ kw;Wk;

32r/mo + 18r/mo jtpu;j;J Mff;pukpg;g[

bra;jpUe;j 1710r/mo Mf;fpukpg;gpid mfww;pLk; bghUl;L. khz;gik brd;id cah;ePjpkd;w cj;jut[ W.P. No. 27180 of 2018 ehs;/15/12/2021d; go. Mf;fpukpg;g[fs; tpGg;g[uk; ,e;Jrka mwepiyaj;Jiw Mizau;. bray; mYtyu;fs.; Ma;tu;. jpUf;nfhapy; gzpahsu;fs;. epy msitau; (Xa;t[) kw;Wk; tUthaj;Jiw. fhty;Jiw. kpd;rhuj;Jiw ,tu;fspd; Kd;dpiyapy; 20/12/2021 jp’;fl;fpHik mdW; fhiy 8/00 kzpastpy; nkw;go Mf;fpukpg;g[fs; mfww;g;gl;L RthjPdk; vLf;fg;gl;L nkw;go jpUf;nfhapy; bray; mYtyu; trk; xg;gilf;fg;gl;lJ/ bkhj;j gug;gst[ kjpg;g[ Rkhh; 70/00 ,yl;rk;/@

12.Therefore, it has become clear that, in respect of 1710 sq.ft. is concerned, the land and building since no one has claimed, it was taken possession by the Temple pursuant to the order of this Court dated 15.12.2021 and that has been recorded.

13. Now the issue is 400sq.ft, of land and building which is in occupation of the petitioner, where the said arguments were advanced by the learned counsel appearing for the petitioner.
14. However, Mr.T.Chezhain, learned Additional Government Pleader as well as the learned Standing counsel appearing for the temple would contend that, the father of the petitioner one Kannayearam was the lessee, after his demise, the Temple or H.R&C.E., Department never recognized anyone including the petitioner as a lessee and therefore, the continuous occupation of the petitioner even in portion of the land was construed only as an encroachment. Accordingly, proceedings was initiated by the Executive Officer of the Temple before the Joint Commissioner of H.R&C.E., Department invoking Section 78 of the

Act, and after hearing both sides, that 78 proceedings was ordered by the

Joint Commissioner as a Original Authority and as against which, when Appeal was filed by the petitioner before the Commissioner of H.R&C.E., Department, i.e., second respondent, who also rejected the same by confirming the order passed by the Original Authority.

15. As against which, when he filed a Revision before the Government under Section 114 of the H.R&C.E., Act, that was also since been rejected, the respondents can be now permitted to evict the petitioner by invoking Section 79 of the H.R&C.E., Act, he contended.
16. I have considered the said rival submissions made by learned counsel appearing for the parties and have perused the materials placed before this Court.
17. Now the question is whether the petitioner is entitled to have the possession and enjoyment of the property to the extent of 400 sq.ft. as a tenant under the hands of the respondent Temple.
18. In this context, it is a definite case of the respondent Temple that, the petitioner never has been recognized as a lessee, merely because he has paid some amount claimed to be the rent paid by him, that cannot be construed as a rent collected from the petitioner for his occupation as a lessee. But if at all anything is collected, that was collected only as a damages for use and occupation of the 400 sq.ft. or the larger extent by the petitioner.
19. Once the petitioner has been declared to be an encroacher and in this regard, the proceedings initiated by the Temple under Section 78 of the H.R&C.E., Act has been concluded upto the Revisional Authority, which culminated in the order passed by the first respondent / Revisional Authority vide G.O.Ms.No.178 dated 26.092018 of the first respondent, the issue has been concluded and therefore, the present reasons whatever stated by the petitioner cannot be countenanced for simple reason that, there is no documents to establish the case of the petitioner, that the petitioner after the demise of his father continue to enjoy the status of the lessee with a consent or approval of the respondents or the Temple Authorities.
20. Merely because the petitioner’s father was a lessee, the petitioner cannot automatically become a lessee by stepping into the shoes of the father. As the petitioner himself has admitted that, after the death of his father, the petitioner and the other legal heirs divided the property and only a small portion of the property of the total extent, the petitioner has been in occupation, i.e., 400sq.ft. Therefore, under what capacity the petitioner has been in occupation of the property, if we delve into the issue, the necessary answer would be that, the petitioner has been only an encroacher or occupier, but not as a lessee.
21. In that case, there can be no infirmity on the part of the threeauthorities namely, Original, Appellate as well as Revisional Authority to have a concurrent findings against the petitioner to declare him as an encroacher, accordingly the 78 proceedings was permitted to go on. As a sequel, the respondents also would be entitled to invoke Section 79 of the H.R&C.E., Act, if they decided to do so and hence this Court feels that, the impugned orders do not require any interference from this Court at this juncture.
22. In view of the aforestated, this Writ Petition fails and hence, it is liable to be dismissed. Accordingly it is dismissed. However, there shall be no order as to costs. Consequently, connected Miscellaneous Petition is closed.
23. It is made clear that, since the petitioner’s counsel has brought to the notice of this Court that, this is the same position, under which, i.e., either as occupier or encroacher so many other persons have been in occupation of the property adjacent to the petitioner’s property, against whom, no action has been taken by the Temple Authorities, this Court hereby directs the respondent Department as well as the Temple Authorities to take immediate stringent action against those who are in occupation by way of encroachment in any of the immovable property belongs to the fifth respondent Temple and such action should be initiated forthwith against all such encroachers under the provisions of the H.R&C.E., Act.

22.12.2021

Index : Yes / No

Speaking Order/Non Speaking Order

mp / vji

To

1. The Secretary,

Government of Tamil Nadu,

Tourism, Culture and Religious Endowments Department,     Fort St.George, Chennai – 9.

2. The Commissioner,

Hindu Religious and Charitable Endowments Department,     No.119, Uthamar Gandhi Salai,     Nungambakkam, Chennai – 34.

3. The Joint Commissioner,

Hindu Religious and Charitable Endowments Department,     District Master Plan Complex, Villupuram.

4. The Assistant Commissioner,

Hindu Religious and Charitable Endowments Department,      District Master Plan Complex, Villupuram.

5. The Executive Officer,

Arulmighu Kirubupureeswarar Temple,

Thiruvennainallur, Thirukoilur Taluk,

Villupuram District

1. SURESH KUMAR, J.

mp / vji

W.P. No. 27180 of 2018 and  W.M.P. No. 31600 of 2018

22.12.2021