R.Krithiga vs A/M.Venugopal Swamy Thirukoil & on 14 June, 2019

[Cites 9, Cited by 0]

Madras High Court

R.Krithiga vs A/M.Venugopal Swamy Thirukoil & on 14 June, 2019

The appellant herein, who is the wife of Late.Rengarajan, being aggrieved by the order passed by the Joint Commissioner, H.R. & C.E. Department, Tiruchirappalli, vide proceedings, dated 25.09.2018, in Na.Ka.No.8915/2018-1/A3, preferred W.P.(MD)No.23559 of 2018. The impugned proceedings of the Joint Commissioner, H.R. & C.E. Department, dated 25.09.2018, is in connection with auction of the lands in S.Nos.559/8, 744/3, 744/4, 744/7, 745 and 787/1, belong to Arulmigu Poonjoolai Amman Temple and Venugopalaswamy Temple at Shobanapuram Village, Thuraiyur Taluk, Trichy District. The total extent of land is 9.47 Acres. An inspection has been conducted pursuant to the request made by R.Krithiga, the writ petitioner, who sought for attornment of lease in her favour. During the spot inspection dated 30.08.2018, the Joint Commissioner found that these lands were in possession of one Perumal and Ameer Batcha without any permission from the H.R. & C.E. Department. Therefore, the Joint Commissioner has directed the Executive Officer of the respective Temples to conduct public auction as per the provisions of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 [hereinafter referred to as ''the H.R. & C.E. Act''] and report.

2. The grievance of the writ petitioner is that the said land was under the cultivation of her husband Rengarajan for a long time and on his application to the https://www.mhc.tn.gov.in/judis 2/12 W.A.(MD)No.697 of 2019 Tahsildar, Thuraiyur Taluk, the competent authority under the Tamil Nadu Agricultural Lands Record of Tenancy Act, 1969 [hereinafter referred to as ''the Act''], Rengarajan was recorded as cultivating tenant, vide the proceedings, dated 07.01.2011. This was challenged by the H.R. & C.E. Department before the Tahsildar himself and sought for cancellation of the said record of tenancy. The Tahsildar dismissed the representation holding that the record of tenancy as per Section 4 of the Act cannot be cancelled by the same authority and any person aggrieved, has to prefer an appeal under Section 6 of the Act before the Appellate Authority prescribed by the Government and get redressal.

3. While so, the Joint Commissioner issued an order directing the Executive Officer to conduct auction for the land, which is under the cultivation of the writ petitioner Krithiga after the demise of her husband Rengarajan. Challenging the same, W.P.(MD)No.23559 of 2018 filed stating it is arbitrary and liable to be quashed. Also, the Executive Officer of the said Temple preferred W.P.(MD)No.158 of 2019, challenging the order passed by the Tahsildar, dated 15.10.2018, dismissing their petition to cancel the record of tenancy in favour of Rengarajan indicating that in view of Section 6 of the Act, the Executive Officer has to prefer Appeal to the State. His petition to the Tahsildar, for cancellation of record of tenancy is not maintainable.

https://www.mhc.tn.gov.in/judis 3/12 W.A.(MD)No.697 of 2019

4. Both these writ petitions were taken up for final disposal by the learned Single Judge. After considering the facts and law, the learned Single Judge has held that the order of the Tahsildar, dated 07.01.2011, recording Rengarajan as a cultivating tenant for the said land in dispute is a cryptic order without taking note of the prerequisites to record a person as a cultivating tenant. The ex parte order passed against the Temple without any material evidence, particularly, the proof for existence of landlord-tenant relationship between the Temple and Rengarajan while passing the order dated 07.01.2011 was, found to be illegal and therefore, the order dated 07.01.2011 was quashed. At the same time, holding that the person in possession of the land cannot be thrown out summarily and before evicting them, due process of law should be followed. Further, taking note of the fact that the land belongs to the Temple and the Temple is governed by H.R. & C.E. Act, the learned Single Judge directed the H.R. & C.E. Authorities to follow the procedure contemplated under Section 78 of the H.R. & C.E. Act and thereafter, to proceed.

5. As a result, the Writ Petition in W.P.(MD)No.158 of 2019 filed by the Executive Officer of the Temple was allowed and the Writ Petition in W.P.(MD)No. 23559 of 2018 filed by Krithiga was disposed of with direction as stated above.

6. Being aggrieved, Krithiga has preferred the present intra Court appeal as against the order passed by the learned Single Judge in W.P.(MD)No.158 of 2019. https://www.mhc.tn.gov.in/judis 4/12 W.A.(MD)No.697 of 2019

7. The learned counsel appearing for the appellant submitted that the Tahsildar, vide proceedings dated 07.01.2011, recognized Rengarajan, the husband of the appellant as cultivating tenant after conducting enquiry, causing due notice to the Temple authorities. The temple authorities did not participate in the enquiry. Therefore, for the fault of the Temple authorities, the cultivating tenant, who has established his right and got the same been recognized through the proceedings, dated 07.01.2011, cannot be penalized. Furthermore, referring the order of the Tahsildar passed on 15.10.2018, the learned counsel for the appellant submitted that a well considered order passed by the Tahsildar after taking note of the provisions of the Act, vis-à-vis H.R. & C.E. Act and directed the Executive Officer to approach the competent authority with whom the appeal would lie.

8.The learned counsel appearing for the appellant further submitted that in the light of Section 3 of the Tamil Nadu Public Trust [Regulation of Administration of Agricultural Lands] Act, 1961, the provisions of Public Trust Act will prevail upon all other statutes, which are in consistent to the Public Trust Act. The legal position has been well settled by the Division Bench of this Court in V.Angu vs. Commissioner, H.R. & C.E., Nungambakkam High Road, Chennai, reported in 2016 (6) MLJ 206 and therefore, any eviction of a tenant under the Public Trust Act to be resorted as per Section 19 of the said Act and not under Section 78 of the H.R. & C.E. Act. Therefore, the direction of the learned Single Judge is contrary to the https://www.mhc.tn.gov.in/judis 5/12 W.A.(MD)No.697 of 2019 Division Bench decision. Hence, the judgment of the learned Single Judge requires interference.

9. The learned counsel appearing for the appellant further submitted that while the learned Single Judge admitted that the land in question is covered under the Public Trust Act, but erred in permitting the H.R. & C.E. Department to proceed against the tenants under Section 78 of the H.R. & C.E. Act, which is explicitly override by Section 3 of the Tamil Nadu Public Trust [Regulation of Administration of Agricultural Lands] Act, 1961. The learned counsel also contended that Rengarajan, who was recorded as tenant under the Statutes, holds the property of the Temple, which is a Public Trust as per the definition. While so, on the demise of Rengarajan, his wife Krithiga, the appellant has entered the shoes of the recorded tenant. While the receipts issued by the H.R. & C.E. Department since 2011 also indicates that the lease has been in favour of Rengarajan time to time, and the tenancy was not dealt as per Section 34 of the H.R. & C.E. Act. While so, suddenly, the H.R. & C.E. Department ignoring the record of tenancy in favour of Rengarajan and attempt to proceed with public auction of the said land contrary to law, hence, the auction proceeding is vitiated by illegality. The learned counsel also submitted that the appellant is ready to pay the fair rent for the land of the Temple to recognize her tenancy.

https://www.mhc.tn.gov.in/judis 6/12 W.A.(MD)No.697 of 2019

10. Per contra, the learned counsel appearing for the first respondent/Temple submitted that the order of the learned Single Judge is sustainable both on facts and law. He submitted that the order of the Tahsildar, dated 07.01.2011, was obtained surreptitiously by Rengajaran without placing any document to satisfy the authorities that he is a cultivating tenant in respect of the land in dispute owned by the two Temples. The prime requirement for recognizing a person as a cultivating tenant is explicitly laid under Section 2(5) of the Public Trust [Regulation of Administration of Agricultural Lands] Act, 1961, as he must be a person, who contributes his own physical labour or that of any member of his family in the cultivation of any land belonging to another under a tenancy agreement, express or implied.

11. As far as the order of the Tahsildar, dated 07.01.2011, which is heavily relied by the appellant herein, there is no indication that the Tahsildar, who passed the order, had the benefit of considering whether Rengarajan and the members of his family were contributing their physical labour to cultivate the land in dispute. The order of the Tahsildar, dated 07.01.2011, does not even refer about the existence of tenancy expressly or impliedly. Therefore, the learned Single Judge has rightly negatived the claim of the appellant, who pegs her claim on the arbitrary order passed by the Tahsildar without applying the mind and hearing the other side. https://www.mhc.tn.gov.in/judis 7/12 W.A.(MD)No.697 of 2019

12. Having found that Rengarajan or Krithiga are not duly recognized as cultivating tenants, naturally, the persons, who are found in possession of the land are the trespassers so bound to be evicted for the land of the Temple to be properly utilized for the optimum benefit of the Temple, the lease should be inconsonance with Section 34 of the H.R. & C.E. Act. Accordingly, the Temple is taking all steps to evict the occupants as per Section 78 of the H.R. & C.E. Act and therefore, the present appeal is bound to be dismissed.

13. Heard the learned counsels and perused the records.

14. The appellant heavily relied upon three arguments namely:-

(i) the order of the Tahsildar dated 07.01.2011, passed on the request of Rengarajan, to recognize him as a cultivating tenant;

(ii) the miscellaneous receipts issued by the Temple in favour of Rengarajan for the Fasli 1421 [Corresponding Year 2011-2012] and thereafter; and

(iii) the proceedings of the Tashildar, dated 15.10.2018, passed on the representation given by the Temple to cancel the record of tenancy.

15. Perusing the above three documents relied by the appellant, it is clear that the order dated 07.01.2011 issued by the Tahsildar, recognizing Rengarajan as cultivating tenant for the land in dispute is a cryptic, arbitrary order. It is basically https://www.mhc.tn.gov.in/judis 8/12 W.A.(MD)No.697 of 2019 passed taking advantage of non-participation of the Temple in the proceedings. Rengarajan, who claims to be the cultivating tenant for the past 10 years, prior to his application, has not placed any document to show that he was a tenant under the Temple in respect of the land in dispute either through an agreement explicitly or implicitly. Merely, based on the alleged oral statement of the Village Administrative Officer, the said order came to be passed. The receipts relied by the appellant admittedly issued by the Temple. They are for the period subsequent to 2011, not prior to that. In other words, the receipts are issued only after the Tashildar's order recognizing Rengarajan as cultivating tenant and some of the receipts indicates that money is collected as auction price. This proves that the land has been leased to Rengarajan on auction during the period covered under the receipt. In the said circumstances, when the order dated 07.01.2011, was said to be cancelled by the Temple authorities, the Tahsildar instead of considering the material, which was available when the order dated 07.01.2011, came to be passed, has taken into account the subsequent documents. Also, he has failed to consider the basic fact that even while the order passed on 15.10.2018, Krithiga has not placed any evidence to show that she and prior to her, her husband during his lifetime, cultivating the land, contributing his physical labour or any members of his family.

16. It is surprise to note that when contribution of physical labour is sine qua non to recognize a person as cultivating tenant under the Act, in the case in hand, without evidence to support this requirement, but contrary to the evidence https://www.mhc.tn.gov.in/judis 9/12 W.A.(MD)No.697 of 2019 available that the land has been sub-let illegally to third parties, the Tahsildar unmindful of the facts, vide his order dated 07.01.2011, in a casual manner, recorded Rengarajan as a cultivating tenant of the Temple land without any material evidence and when the same was brought to the notice of the subsequent incumbent by the Temple authorities, he had rejected the plea for hyper technical reason. This arbitrary exercise of power has been rightly pointed out by the learned Single Judge and has quashed the proceedings of the Tahsildar, dated 07.01.2011. By no stretch of imagination, Rengarajan can be considered as a cultivating tenant on the date on 07.01.2011 when the Tahsildar has passed the cryptic order without any material. While the said order stands quashed automatically, the provisions of H.R. & C.E. Act comes into force. The land of the Temple to be administered in the manner as contemplated under the H.R. & C.E. Act.

17. In the said circumstances, this Court finds no error in the judgment of the learned Single Judge holding that the occupants in the disputed land to be dealt with under Section 78 of the H.R. & C.E. Act and the land has to be put into auction to augur adequate and appropriate revenue to the Temple.

18. In the light of the above findings, this Writ Appeal is dismissed. No costs. Consequently, connected Miscellaneous Petitions are closed.

            NCC             : Yes /No                                [G.J., J.] [S.M., J.]
            Index           : Yes /No                                       02.02.2023
            Internet : Yes / No
https://www.mhc.tn.gov.in/judis


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                                                W.A.(MD)No.697 of 2019

            To

            1.The Executive Officer,
              A/M.Venugopal Swamy Thirukoil &
              A/M.Poonjolai Amman Thirukoil,
              Shobanapuram,
              Thuraiyur Taluk,
              Tiruchirappalli District.

            2.The Tahsildar,
              Thuraiyur Taluk,
              Tiruchirappalli District.




https://www.mhc.tn.gov.in/judis


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                                                   W.A.(MD)No.697 of 2019

                                             DR.G.JAYACHANDRAN, J.
                                                             and
                                                  SUNDER MOHAN, J.

                                                                  SMN2




                                  PRE-DELIVERY JUDGMENT MADE IN
                                              W.A.(MD)No.697 of 2019




                                                   DATED : 02.02.2023
https://www.mhc.tn.gov.in/judis


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