Madras High Court
S.Annamalai vs The Superintendent Of Police on 12 February, 2018
Author: R.Mahadevan
Bench: R.Mahadevan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 12.02.2018 CORAM THE HONOURABLE MR.JUSTICE R.MAHADEVAN W.P(MD)No.14428 of 2017 P.Lakshmanan, represented through his Power Agents.
1.S.Annamalai
2.M.Thanneer Malai ...
Petitioners Vs.
1.The Superintendent of Police, Sivagangai District, Sivagangai.
2.The Joint Commissioner, Hindu Religious and Charitable Endowments, Sivagangai District, Sivagangai.
3.The Assistant Commissioner, Hindu Religious and Charitable Endowments, Paramakudi, Ramanathapuram District.
4.U.Muthu Chettiar
5. The Commissioner, Hindu Religious and Charitable Endowment Department, Chennai - 600 034.
6. The State of Tamil Nadu, Represented by its Secretary, Revenue Department, Fort St George, Chennai. ... Respondents (R5 & R6 suo motu impleaded as per the order of this Court dated 21.09.2017) Prayer: Petition filed under Article 226 of the Constitution of India, to issue a writ of Certiorarified Mandamus calling for the records in Na.Ka.No.65/2017/E-1, dated 30.06.2017 on the file of the third respondent and quash the same and direct the respondents 2 and 3 to take action against the fourth respondent and recover the temple lands, more specifically mentioned in the annexure enclosed along with the affidavit.
!For Petitioner(s) : Mr.S.Ramesh
^For Respondents : Mr.B.Pugalendhi,
Additional Advocate General
assisted by Mr.VR.Shanmuganathan
Special Government Pleader for R.1 to R.3, R5 & R6
Mr.V.S.Badrinath for
R.4
:Order
This writ petition has been filed seeking a writ of Certiorarified Mandamus to call for the records in Na.Ka.No.65/2017/E-1, dated 30.06.2017 on the file of the third respondent and quash the same and direct the respondents 2 and 3 to take action against the fourth respondent and recover the temple lands, more specifically mentioned in the annexure enclosed along with the affidavit.
2. Facts necessary for the disposal of this writ petition, are as follows:
2.1. The petitioners herein are the Power Agents of one P.Lakshmanan, Hereditary Trustee of Arulmigu Avudainayagi Ambal Sametha Desiganatha Swami Temple, Nagara Soorakudy, Poovandipatti, Chettinadu, Sivagangai District. The said temple, which is declared as non-listed temple under Section 46 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959, (hereinafter shortly referred to as ?HR & CE Act?) owns several immovable and movable properties and they are being administered by the hereditary trustees.
2.2. The temple is the title holder of 76 acres 65 cents of landed properties, out of which, 31.5 acres has been classified as common land for communal use. The temple has been granted with patta by the settlement authorities in respect of 45.5 acres of land and the same has been confirmed by the order of this Court in S.T.A.No.4 of 1986 on 29.09.2000.
2.3. According to the petitioners, as on date, about 1865 pullis (member trustees) alone are having the right to worship the temple, besides the public are also allowed to worship the temple, however, with permission. 12 members are identified as hereditary trustees and on rotation, two members are holding the posts every year.
2.4. It is alleged that the fourth respondent started alienating the temple properties high-handedly and the present trustee came to know about the alienations of temple lands by the fourth respondent, without the sanction of the Commissioner, Hindu Religious and Charitable Endowment Department, Chennai.
2.5. Moreover, Section 34 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, prohibits any alienation of any religious institution. Hence, the alienations made by the fourth respondent are null and void. The alleged respective alienees who claimed that they are in possession filed civil suits seeking a decree for specific performance.
2.6. Thereafter, the petitioner made a representation dated 30.11.2016 to the Commissioner, Hindu Religious and Charitable Endowment Department, a copy of which, was also marked to the second respondent, who, in turn, directed the third respondent to conduct an enquiry and initiate appropriate action to recover the temple lands.
2.7. In the meanwhile, the third respondent passed the impugned order directing the present trustees to approach the civil Court by way of an appeal against the judgment and decree passed in O.S.Nos.37 and 51 of 2008 on the file of the Principal District Munsif Court, Karaikudi, to recover the temple properties.
2.8. Aggrieved thereby, the present writ petition has been filed.
3. Mr.S.Ramesh, learned Counsel for the petitioner made the following submissions:
3.1. The petitioner is the hereditary trustee of Arulmigu Avudainayagi Ambal Sametha Desiganatha Swami Temple, Nagara Soorakudy, Poovandipatti, Chettinadu, Sivagangai District.
3.2. The said temple is a declared non-listed temple under Section 46 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959.
3.3. The temple is the title holder of 76 acres 65 cents of landed properties, of which, 31.5 acres has been classified as common lands for communal use and the remaining 45.5 acres has been granted with patta by the settlement authorities as confirmed by this Court in S.T.A.No.4 of 1986, on 29.09.2000.
3.4. The fourth respondent camouflaged to alienate the temple lands based on a resolution and accordingly, he created some documents to show that he was empowered to alienate the temple lands. Further, collusive suits were filed based on agreements and unregistered power and allowed to be decreed, thereby the properties belonging to the temple were alienated.
3.5. The alienations made by the fourth respondent are void ab initio and it would not bind the temple at any point of time as the sale of lands without the sanction of the Commissioner of the HR & CE department is illegal and void as per Section 34 of the HR & CE Act.
3.6. The petitioner made a representation dated 30.11.2016 to the Commissioner, Hindu Religious and Charitable Endowments Department, Chennai, seeking enquiry into the alleged alienations made by the fourth respondent and for recovery of the lands.
3.7. However, the Commissioner, H.R. & C.E., directed the third respondent to conduct an enquiry and initiate appropriate legal action, but, instead, the third respondent passed the impugned order directing the petitioner to move before the competent civil Court and prefer an appeal to recover the temple lands.
3.8. Thus, the learned Counsel for the petitioner contended that the HR & CE department, being the custodian of temples and its properties is empowered to recover the properties from the encroachers. Since, the sale has been effected without the sanction of the commissioner, the same is void ab initio and the collusive purchasers can be treated only as encroachers. Sections 78 and 80 of the Act enable the 3rd respondent to recover the lands. Pointing out to the list of properties and the list of encroachers, it was contended that almost all the properties belonging to the temple has landed in the illegal possession, depriving any revenue to the temple against the very intention of creation of the trust itself and prayed for allowing this writ petition.
4. Per contra, Mr.B.Pugalendhi, learned Additional Advocate General assisted by Mr.VR.Shanmuganathan, learned Special Government Pleader appearing for the respondents 1 to 3, 5 and 6 reiterating the averments in the counter affidavit filed by the third respondent, contended thus:
4.1. Arulmigu Avudainayagi Ambal Sametha Desiganatha Swami Temple, Nagara Soorakudy, Poovandipatti, Chettinadu, Sivagangai District, is a Hindu Public Religious Institution under the administrative and supervisory control of the Tamil Nadu Hindu Religious and Charitable Endowments Department.
4.2. The said temple is declared as exempted temple under Section 11 of the Hindu Religious Endowment Act, 1927 in O.A.No.1108 of 1935, by the then Board order dated 15.05.1915.
4.3. Based on the complaint made by the petitioner, it is found that some third parties sold out the temple lands by virtue of the orders of the civil Court in O.S.Nos.17 of 2014, 51 of 20 08, 37 of 2008 and 22 of 2017.
4.4. The hereditary trustees of the temple ought to have filed the appeals against the judgment and decree passed by the civil Court.
4.5. The patta stood in the name of the temple has also been changed in favour of third parties and in that event, the hereditary trustees of the temple ought to have approached the District Revenue Officer for redressal.
4.6. The impugned order thus came to be passed by the third respondent in order to protect the temple properties.
4.7. When a civil Court decree is in operation, the respondents could not initiate any legal action with regard to the illegal alienations alleged to be committed by the fourth respondent.
4.8. In such circumstances, it is for the hereditary trustees of the temple to approach the appellate forum to challenge the judgment and decree of the civil Court in order to retrieve the temple properties.
4.9. Thus, the impugned order passed by the third respondent warrants no interference at the hands of this Court and therefore, prays for the dismissal of this writ petition.
5. Mr.V.S.Badrinath, learned counsel for the fourth respondent would contend that the alienations were made legally and just because the petitioner has taken over subsequently, he cannot challenge the actions of the erstwhile trustees. Further, the purchasers were already put into possession and are in enjoyment of the property for a long time and hence sought the dismissal of the writ petition.
6. I have considered the rival submissions and perused the materials available on record.
7. Admittedly, the properties in question belong to Arulmigu Avudainayagi Ambal Sametha Desiganatha Swami Temple, Nagara Soorakudy, Poovandipatti, Chettinadu, Sivagangai District and the hereditary trustees of the said temple are administering the affairs of the temple as well as its properties.
8. It is the main contention of the learned Counsel for the petitioner that the fourth respondent indulged in illegal alienations of the temple properties in favour of third parties and accordingly, some of the properties have been alienated without obtaining any sanction from the Commissioner, Hindu Religious and Charitable Endowments Department, Chennai, under Section 34 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 (hereinafter shortly referred to as ?H.R & C.E. Act?). It was pointed out by the learned counsel that many such properties belonging to temples are alienated without the sanction of the Commissioner defeating the very purpose of gift to the temple.
9. Further, it was contended that the temple properties could not be alienated by anyone, but, the fourth respondent and others managed to have alienated the properties in question in the name of third parties and the patta has also been transferred to their names.
10. Prima facie, it appears that the properties of Arulmigu Avudainayagi Ambal Sametha Desiganatha Swami Temple, Nagara Soorakudy, Poovandipatti, Chettinadu, Sivagangai District, are being swindled in one way or the other by the erstwhile trustees of the temple and a complaint was made to the Commissioner, Hindu Religious and Charitable Endowments Department, Chennai, in that regard, which culminated in the enquiry by the third respondent.
11. During such enquiry, it came to limelight that the so-called agreement holders/third parties filed civil suits before the civil Court for the relief of specific performance against the fourth respondent herein and based on the judgment and decree passed by the civil Court, the properties in question have been alienated in their favour and patta has been issued. This Court, considering the facts and circumstances, felt it necessary that the Secretary to the Government of Tamil Nadu, Revenue Department has to be impleaded in the interest of justice and to prevent illegal alterations and was, suo-motu, impleading the Secretary as party to this writ petition.
12. The petitioner has given a list of 117 properties of the temple, which are now in the hands of third parties. The petitioner has also filed copies of 50 unregistered and unstamped sale agreements, to show as to how clumsily the transactions have been entered into. The perusal of the agreements reveal the following:
a. All the 50 agreements are dated 22-01-2001 executed by Ramasamy Chettiyar, Muthu Chettiyar and Thirunavukarasu, claiming to be representing all the trustees and their families;
b. The agreement is in cyclostyle format with the above three persons claiming to be trustees executing the agreement as the parties of the first part and the name of the purchaser and the schedule are filled by hand; c. In most of the agreements, M.Arumugam and 2 others have signed the documents as purchasers even though some other name is given as the purchaser. In some agreements, the person whose name has figured as purchaser has signed the agreement above the signature or at the side of the signatures of the above said Arumugam and others;
d. In some agreements, the signature of the purchaser is not there; e. In some agreements, instead of the purchaser, some other person has signed;
f. In some agreements and in some pages, all the vendors have not signed; g. In some agreements, there are no signatures of the witnesses and in all the documents, where the signatures of the witnesses are found, it is the very same people who have signed as witnesses on behalf of the vendors and the purchasers. Strange but true in the first agreement annexed in the typed set, the name of the purchaser is Chellaiah, but he has executed the document only as a witness and in all the documents as a witness;
h. The agreements only disclose that the same are executed in the interest of the persons in possession and not in the interest of the temple; and i. There is no whisper about the sanction from the Commissioner.
13. A perusal of the agreements would reveal that the agreements are nothing but sham documents. The terms and conditions also indicate that the consideration was fixed only considering the interest of the alleged purchasers and in the interest of revenue. Considering the manner of execution, it also appears that the transactions seem to be benami in nature.
The circumstances under which the agreement has been executed after the decisions in S.T.A.No.4 /1986 dated 29.09.2000 and the agreements on 22-01-2001 seems to be shoddy and imply the existence of different fractions, one to protect and one to wither the temple properties. Admittedly, the title of the properties vested with the temple and it was not refuted by the respondents that the decrees are not exparte decrees and the consent of the Commissioner was not obtained before alienation. This Court, considering the fact that the alleged alienations have been taken place based on the judgment and decree passed by the civil Court in the civil suits filed by the alleged agreement holders/third parties in collusion with the fourth respondent, finds that the collusion between the 4th respondent and others is patently evident and it is clear that they have clearly acted against the interest of the temple. Even though the management of the properties primarily vests with the trustees, upon perusal of various provisions of the Act, the properties of the temple and trustees amenable to the Act and the Rules framed thereunder. As rightly contended by the learned counsel for the petitioner, it is mandatory, to obtain the sanction of the Commissioner of HR & CE department before the sale is effected, as otherwise the sale would be void and no rights would accrue to the purchasers. Ignorance of fact can be excused but not ignorance of law. Therefore, the alienees/purchasers can only be treated as encroachers, entitling the 3rd respondent to invoke the powers under Sections 78, 79 and 79 A of the HR & CE Act.
14. As the legal maxim ?Ignorantia juris non excusat or ignorantia legis neminem excusat? says Ignorance of fact can be excused, but not ignorance of law, the theory of bonafide purchaser or the theory of limitation cannot be invoked against the temple and its properties. The law on this point is well settled by this Court. The validity of Section 109 of the HR & CE Act and the applicability of Section 10 of the Limitation Act has been laid to rest in favour of the temple in the following decisions:
(i)In Arulmigu Kolavizhi Amman Temple v. R.Shamugham [MANU/TN/2211/2008 = 2008 3 MLJ 732], this Court has held at paras 35 and 39 as under:
?35. Issue No.4 and additional issue relating to adverse possession framed on 4.10.2002:- The learned counsel appearing for the plaintiff would submit that as per section 10 of the Limitation Act, 1963, the suit property which vested in trust for specific purpose can be recovered at any point of time and there is no limitation for laying a suit for recovery of such properties. He would further contend that section 109 of the H.R & C.E. Act substituted by Act 28 of 2003 is retrospective in operation. Further, the law of limitation is a procedural one and therefore, the substitution of a new provision would be deemed to have come into effect from the date when originally the litigation was commenced.?
?39.The intention of the legislature for substitution of section 109 of the Act is to protect the property of the religious institutions from being lost by adverse possession on account of the limitation prescribed under the Limitation Act, 1963. Let us visualize a situation where the plaintiff temple withdrew this suit and laid a fresh suit after the year 2003. Can the defendants still contend that the suit laid for recovery of possession by the plaintiff temple is barred by limitation in the face of the substitution of section 109 of the H.R & C.E.Act? The defendants cannot definitely set up such a plea. Denying the plaintiff temple to take advantage of the benevolent substitution of section 109 of the H.R & C.E. Act will multiply the civil proceedings between the parties. Therefore, the court finds that even for the pending suits, the provision under the substituted section 109 of the H.R & C.E. Act will apply. Such being the case, the court finds that the suit is not barred by limitation in view of the fact that there is no limitation for the religious institutions to lay a suit for possession of immovable property belonging to it.?
(ii)In Narayanan v. The State of Tamil Nadu rep. by its Secretary, CT & RE Department, Fort St. George, Chenna-9 and others [MANU/TN/4748/2011= 2012 1 CTC 474], at para 11, the Division Bench of this Court extracted Section 109 of the HR & CE Act, along with other provisions, which reads as follows:
?S.109. Central Act 36 of 1963 not to apply for recovery of properties of religious institution:
Nothing contained in the Limitation Act, 1963 (Central Act 36 of 1963) shall apply to any suit for possession of immovable property belonging to any religious institution or for possession of any interest in such property.? Thereafter, at para 21, it has been observed as under:
?21.So far as the contention relating to introduction of Section 109 of the HR & CE Act is concerned, we uphold the amendment brought into existence by way of Tamil Nadu Amendment Act 28 of 2003. As rightly held by the learned Single Judge since Section 109 is only akin to Section 10 of the Limitation Act, no exception could be taken for the removal of limitation for taking action in restoring the temple properties. The decisions relied on by the learned counsel in this aspect are not applicable to the facts of the present case.?
(iii)In Yadhava Community Trust of Edatheru and others v. Jawahar Nisha and others [MANU/TN/3744/2016], at para 12, this Court held thus:
?12.The learned Senior Counsel appearing for the appellant would rely upon the Judgment in Arulmigu Kolavizhi Amman Temple rep. by the Executive Officer, Madras v. R.Shanmugam (died) and others reported in MANU/TN/2211/2008 : (2008) 3 MLJ 732, and contend that there is no limitation for recovery of possession of the trust property. Here again there is no quarrel with the legal proposition that Section 109 of the Tamil Nadu Hindu Religious and Charitable Endowment Act, literally removes any restriction by way of limitation, for a suit to be filed by a trust for recovery of property. In this case, the plaintiffs have to fail, because they have not established their title to the suit property. Therefore, the question as to whether the plaintiff suit is barred by limitation or does not really arise. ?
(iv)In A/m.Marundeeswarar Thirukoil v. The Collector, (Land Acquisition) and others [MANU/TN/3812/2017], at para 8, this Court answered the issue relating to limitation as follows:
?8.This issue relates to the question of limitation. Acquisition proceedings are said to have taken place in the year 1962 and 1963. It is also seen that awards have been passed and possession has been handed over by the State to the 2nd defendant even in May 1963. The suit has been filed nearly 40 years thereafter. But, in view of the provisions of Section 109 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959, the Limitation Act does not apply to the suit for possession of immovable property filed by a temple or a religious institution. Character of the plaintiff is not in dispute in the present suit. In view of the fact that the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959, is a special enactment and Section 109 of the said Act excludes the applicability of the Limitation Act, viz., the Central Act 36 of 1963, the suit for recovery of possession of the property filed by a temple or a religious institution cannot be said to be barred by limitation. Therefore, this issue is answered in favour of the plaintiff and against the defendants.?
15. This Court, in V.Thiagarajan (died) and another v. The State of Tamil Nadu and others [W.P(MD)No.7047 of 2006, decided on 31.10.2014], has heavily come down on the temple authorities who failed to manage the temple properties properly and issued several directions for strict adherence and it is useful to reproduce the relevant paragraphs as under:
"13. Here, is a case, where the petitioner knocked the doors of justice complaining encroachment of the temple lands by the political men. Any complaint relating to land grabbing, in particular, temple lands, would be a very serious issue. On those days, the lands were donated to the temples to ensure revenue to fulfil the day-to-day needs of the temple administration in celebrating the festivals throughout the year and to renovate the temples to stand for centuries. In case, the lands given to the temples are jeopardized, then, the ultimate object behind the donation made, would not be achieved any more.
14. Coming to the facts of the present case, this Court finds that it is the claim of the petitioner that the lands belonging to Arulmigu Subramaniya Swamy Thirukoil, Thiruparankundram, were illegally grabbed by the politically influenced persons, to the extent of 100 acres and the temple administration did not maintain any records to show the lands of the temple.
15. A perusal of the typed set of papers would apparently make it clear that Resumption Petition No.11580 of 1998 filed before the Revenue Divisional Officer, Madurai, was dismissed on 25.05.2009 and an appeal was also filed before the District Collector, in A.P.File.No.48433 of 2009, on 07.07.2009. Even after a lapse of five years, the said appeal petition has not been numbered, by the District Collector, which, would exhibit the attitude of the appellate authority in dealing with the temple lands.
16. Moreover, it is the main allegation of the petitioner that the records pertaining to the temple lands had not been properly maintained and therefore, the encroachers had been grabbing the temple lands, without any difficulty. Strict maintenance of the records would always help in preventing such illegal encroachments. Though it was contended by the respondents 1 to 6 and the 11th respondent that the records are maintained properly, no materials were produced to alleviate the same. A series of letters were produced by the 3rd respondent in support of his contention that they had been taking steps to curb the land grabbing and alienation of the temple properties. The letters would only worsen the case of the respondents. After 19.01.1999, the Executive Officer had written a letter after 8 years i.e only on 22.11.2007. As per section 29 of the Hindu Religious and Charitable Endowments Act, 1959, (in short "the Act"), the 11th respondent is duty bound to maintain the registers containing all the particulars stipulated therein. Going by the scheme of the Act and the language used in Section 29 (1) (e) of the Act, the records must also contain particulars regarding the extent of land, the name of the person in service, the name of the person holding the lands either by service inams or lease, period of lease, the use to which the land has been put to and the income from the lands. The respondents must also effect periodical visit of the properties as contemplated under section 33 of the Act to ensure that only the lessees are in possession. Only if all the particulars are maintained, it will be possible to ascertain the value of the land and the fair rent. In the case on hand, it is seen that the records had not at all been maintained by the temple authorities and hence, the authorities are in the dark about the encroachments of the temple lands, by causing huge loss to the temple.
17. On facts, this Court finds that a resumption petition had been filed by the Executive Officer of the temple to retrieve the temple lands and it came to be dismissed by the Revenue Divisional Officer and consequently, an appeal was also preferred before the District Collector, but, the said appeal is still to be numbered. Hence, this Court is of the view that the temple authorities had not taken steps to retrieve the lands belonging to the temple. The word ?atrocious? would fall short to describe the conduct of the respondents 1 to 6. The appeal was filed in 2009 and the same is yet to be numbered. The 4th respondent has either not understood the seriousness of the case or the staff under him may not have brought the filing of the appeal to his knowledge. If the case is later, the 4th respondent must immediately take steps against the concerned staff for having colluded with encroachers and third parties in delaying the numbering and hearing of the appeal. Apparently, the Service Inams can only be enjoyed and cannot be alienated. The purpose of granting service inams is mainly to utilize the income from the lands to satisfy the basic needs of the pujaris and the expenses towards maintenance of the temple. There is a specific bar under section 34 of the Act against alienation without the approval of the commissioner. Any alienation in violation of section 34 is null and void. The commissioner has to call for objections and then pass an order sanctioning the sale by giving specific reasons and after the approval of the government. Money alone cannot be the criteria for according sanctions. In any case,no such permission was accorded in the instant case. The alienation in this case was not done by the trustees or the executive officer but by the beneficiaries under the grant. Indisputably, there is a condition in the grant forbearing alienation and therefore the beneficiaries under the settlement patta can never alienate the land. Once the service of the beneficiary is terminated, the land will have to be passed on the person in service. The only motive behind the delaying of the appeal is to be in possession and reap the profit as long as possible, as, in any case the appeal would have to be allowed in view of the settled proposition of law as laid down by the Honourable Apex Court in the decision relied upon by the learned Counsel for the petitioner, in Joint Commissioner, Hindu Relgious and Charitable Endowments, Administration Department v. Jayaraman and others reported in (2006) 1 Supreme Court Cases 257. The relevant paragraphs are extracted hereunder for ready reference:
?7. It is seen that the claimants had got themselves appointed as hereditary trustees by applying under Section 63(b) of the H.R & C.E. Act. They could not thereafter shed their character as trustees of the temples holding the lands belonging to the temples at a subsequent stage at least without impleading the H.R & C.E. Department and the deities and without getting a valid adjudication of their right over the properties. It is clear that in spite of the necessity for impleading the H.R & C.E. Department being pointed out, the claimants made no attempt to implead the H.R & C.E. Department either before the Settlement Tahsildar or before the District Judge and consequently, the orders passed by the Settlement Tahsildar and by the District Court were clearly illegal and not binding on the deities or the H.R & C.E. Department. The claimants had, in fact, acted totally without bona fides in an attempt to corner the properties for themselves or at least to make undue gains for themselves by selling the properties. Such action would certainly not bind the deities or the H.R & C.E. Department. The High Court, representing the sovereign as parens patriae ought to have come down on the respondents herein and ought to have issued directions for the protection of the properties.
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11. It was contended that the purchase price had been deposited in a Fixed Deposit and so long as there is no failure on the part of the claimants to perform the services which they are liable to perform, there is no necessity to interfere with the transaction of sale effected by them. It is seen that going by the prevalent valuation and the market value as reported, the lands were sold for a meager price or that the sale deeds indicated only a meager price as consideration for the same with all that it implies. Such a transaction is clearly seen to be not in good faith. That the District Court proceeded to accept the value for which the property was being sold even without making an enquiry into the market value that the properties would have fetched at the relevant time while giving the permission for the sale, is shocking. The jurisdiction under Section 34 is advisory. The Court should have satisfied itself of the need for sale and the propriety of the sale proposed. The mere pleas that it was difficult to protect the property and that there was only meager income therefrom were by themselves not grounds to direct or permit the sale.
12. It is seen that there has been a clear attempt by the claimants to overreach the deities and the authorities under the H.R & C.E. Act, while managing the properties dedicated for the purposes of the temple, properties granted and managed by them in their capacities as poojaries, for the maintenance of the temples. The attempt has to be deprecated.
13. In the circumstances, we allow this appeal and setting aside the order of the High Court in Civil Revision Petition (NPD) No. 1684 of 2002 and that of the Principal District Judge, Dindigul in Trust Original Petition No. 44 of 2001, dismiss Trust Original Petition No. 44 of 2001 filed by the claimants. Consequently, the permission granted for the sale would also stand set aside and the sale effected by the claimants pursuant to such permission will be deemed void and would confer no right on the purchasers thereunder or on any one claiming under or through them. It is also clarified that the revised order of the Settlement Tahsildar under Act 30 of 1963 and the revised patta granted are not binding on the deities or on the H.R & C.E. Department. The appellant would be entitled to its costs both here and in the High Court.?
Applying the above dictum of the Honourable Apex Court, the alienations made by the beneficiaries are void and not binding on the temple and the H.R & C.E Department. However, to prevent any future allegations regarding the violations of principles of natural justice, the appeal must immediately be taken on record and disposed by the 4th respondent within eight weeks after giving opportunity to all the parties concerned.
18. The effect of non-maintenance of records has not only resulted in alienation of service inams, but has also resulted in sub-leasing of the leased properties and extended tenure of the lessees. As stipulated in section 34, the lease of the property cannot be beyond five years. In the present case, the lessees have been squatting over the properties for more than five years by paying a meagre rent. A sub-lessee can only be termed as an encroacher. This court finds the contention of the respondents that it is the petitioner who has to give particulars regarding sublease as unreasonable. Entrusted with the administration of endowments of the temple, the respondents must not only be vigilant but also act with responsibility. The contention only further augments the case of the petitioner that the records are not maintained properly. Hence the respondents are directed to immediately identify the encroachers and evict them in accordance with Sections 78, 79 and 79-A of the Act. The main purpose of leasing out the properties is to generate income to the temple. Therefore after eviction, the lands must be leased out by conducting public auction. The upset rent in the auction shall be determined by following the procedure contemplated under Section 34-A of the Act. Ultimately, this Court finds that a roving enquiry has to be conducted regarding the non-maintainability of the records by the temple administration, as to the actual lands owned by the temple and appropriate action has to be initiated as against the erring officials.
19. Accordingly, the respondents 1 and 2 are directed to hold an enquiry as to the non-maintainability of the records by the temple authorities and take action in accordance with law as against the officials concerned in this regard. The Preamble of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 reads as follows:
"An Act to amend and consolidate the law relating to the administration and governance of Hindu Religious and Charitable Institutions and Endowments in the State of Tamil Nadu.
WHEREAS it is expedient to amend and consolidate the law relating to the administration and governance of Hindu Religious and Charitable Institutions and Endowments in the State of Tamil Nadu."
As evident, the main object of the Act is to maintain the endowments of Hindu Religious and Charitable Institutions. It is a separate Department under the control of the State Government and enormous expenditure is incurred towards salary of the various categories of persons in the Department. This court, under the extra-ordinary jurisdiction under Article 226 cannot shut its eyes to the irregularity and permit the authorities to demean the object of the Laws and the provisions of the Act. Therefore, merely appointing officers and functioning without any responsibility will not serve any purpose. If any officer of the HR & CE Department acquires knowledge regarding any violation of any grant or inaction or undue favouritism towards any particular person, he must immediately inform the authority concerned or the Fit Person to take immediate steps against such person(s) committing the violation or the erring official(s). The income from the endowments of the institutions are maintained in separate accounts under the control of the State Government. There are many temples in the State which though are under the control of the HR & CE Department, are poorly maintained. The incomes of many such temples are so poor that the lighting of the lamps has itself become difficult. The 2nd respondent is directed to constitute a committee to look into the income of various temples under its control and pave a scheme so as to not only preserve the old temples but also to ensure that the daily rituals are carried out without any hindrance. Further, the respondents 1 and 2 are directed to issue circulars to the temple authorities, all over the State to keep maintaining the relevant records pertaining to the temple lands properly and to follow the guidelines to be framed thereunder, without any default, to cut at the root of land grabbing in future.
20. Insofar as the appeal pending before the District Collector is concerned, this Court directs the fourth respondent to number the appeal filed by the temple administration as against the order dated 25.05.2009, passed in the Resumption Petition, if not already numbered and consider the appeal on merits and in accordance with law and dispose of the same as expeditiously as possible, not later than two months from the date of receipt of a copy of this order. It is made clear that the fourth respondent is at liberty to look into all aspects regarding the allegations of land grabbing in depth and hear all the parties concerned and pass appropriate orders, as per law.
21. In fine, this writ petition is ordered with the above directions. No costs."
16. It is highly condemnable that despite the directions of this Court as early as on 31/10/2014, no steps have been taken by Commissioner of the HR & CE Department. Since the Commissioner has not been arrayed as a party, this Court was of the opinion that it is just and necessary to implead the Commissioner as the 5th respondent and was suo-motu in exercise of the powers under Article 226 of the Constitution of India, impleading the Commissioner.
17. A bare reading of the impugned order passed by the third respondent, dated 30.06.2017 would reveal that the third respondent has not only failed to consider the object of the Act, but also the scope of Sections 34, 78 and 79 of the Act. If such precarious practices are allowed and properties are permitted to be alienated without obtaining sanction, which is to be rendered considering not only the beneficial aspect, but also the very necessity and object of the endowment, not only purpose of the donors but also the creation of the department itself would be defeated and section 34 would become redundant. It would be adding insult to injury by relegating the parties to file an appeal against the order obtained by fraud and collusion. It is also pertinent to point out that the Division Bench of this Court in the case of K.V.Lakshmi Ammal Vs The Joint Commissioner and others [2010 (1) CWC 490] upheld the powers of the 3rd respondent to conduct an inquiry observing that the powers of the 3rd respondent under Section 78 are akin to powers of a court under CPC. Therefore, under such circumstances, this court has no hesitation to set aside the impugned order of the 3rd respondent. Accordingly, the same is set aside and this writ petition stands allowed. No costs.
18. The custodians of the temple properties be it the trustees or the HR & CE department must keep in mind the object and the reason behind such donations to the temple. The endowments are created and the lands are donated in love, in faith and in satisfaction towards the one?s contribution to the religion they profess, for the temple to be self-sufficient to perform all every day rituals, to ensure that people who profess and practice same ideology and belief are uplifted economically and spiritually and for the subsistence of their religion. Section 23 of the HR & CE Act specifically lays down the powers and duties of the Commissioner in respect of temples and religious endowments. A duty is cast on the Commissioner to ensure that such temples and endowments are properly administered and that their income is duly appropriated for the purposes for which they were founded or exist. Therefore, whenever any order is passed, the object of the endowment is not to be forgotten. Section 29 of the Act lays down the preparation of register for all institutions by the commissioner.
19. Needless to say, the properties of the religious institutions, more particularly, the temple properties have to be maintained properly in order to derive more income to spend for the betterment of the temples. Statistics reveal that few years ago there was 5.25 lakh acres of land and only 4.78 acres exist now. The balance of nearly 50,000 acres are in the hands of encroachers. It was a practice that a portion of the first yield from the lands would be given to the temple. Now, it is very pertinent to point out that when the properties/lands belonging to the temples in our State are not properly maintained, then the revenue/income could not be derived therefrom and therefore, it would not be in the interest of the temples/religious institutions and the lands are alienated illegally. No doubt, the Hindu Religious and Charitable Endowment Department, being the competent authority to regulate the affairs of the public religious institutions/temples in the entire State, having failed continuously for a considerable time should now initiate appropriate steps to retrieve the properties of the temple/religious institutions in the State. The Joint Commissioners are clothed with the power to retrieve the temple lands from the encroachers by exercising the powers under Sections 78, 79 and 80. In addition to the powers under Sections 23 and 29, the Commissioner is granted with powers to ensure that lands belonging to the temple and endowments are not alienated or leased or encumbered illegally and against the interest of such institution.
20. Therefore, this Court, considering the various allegations and the lapses on the part of the Department and in the capacity as parens patriae, issues the following directions to the respondents:
a.The 3rd respondent shall conduct an inquiry under Section 78 of the HR & CE Act and take steps to recover the property subjected to this writ petition from the purchasers, after giving opportunity to all the parties concerned and such steps shall be initiated not later than two weeks from the date of receipt of this order;
b.The 5th respondent shall prepare and file a report specifying the details of the temple lands in Tamil Nadu for which patta has been granted to third parties/encroachers within four weeks from the date of receipt of a copy of this order;
c.The 6th respondent shall instruct all the Tahsildars or District Revenue Officers as the case may be, to take steps to alter the patta granted to the beneficiaries of illegal transfer of land or possession and restore the name of the temple with further direction to refrain from issuing patta without getting written communication from the H.R & CE department related to the temple lands and such process shall be commenced within four weeks from the date of receipt of a copy of this order;
d.The details/particulars regarding the properties/lands owned by the said Public Religious Institutions/temples have to be collected as contemplated under Section 29 of the HR & CE Act and must be published in the Official Website of the H.R. & C.E. Department, forthwith and a report to that effect shall be filed before this Court not later than four weeks from today;
e.The 5th respondent shall within four weeks, file a report disclosing the lands, the details of the sanction granted by him for alienating the properties of the temples in Tamil Nadu either by way of sale, exchange or mortgage or lease beyond five years with the copy of the approval obtained from the Government and the report of objections from the trustees or interested parties as contemplated under Section 34 of the Hindu Religious and Charitable Endowments Act, 1959;
f.The 5th respondent shall constitute a committee/committees for each territories / regions and direct the members to visit all the temples in Tamil Nadu, identify the lands belonging to and in the custody of the temple and in the hands of the encroachers with the help of the Tahsildars of the respective revenue Districts and submit a report before this Court within six weeks from the date of receipt of a copy of this order;
g.The 5th respondent shall send a communication to the trustees for various temples and collect the details of the properties under their custody and in illegal occupation of third parties, the properties alienated by them with or without sanction and the list of cases pending in various courts and submit a report within six weeks from the date of receipt of the copy of this order;
h.Further, the 5th respondent shall look into it as to whether appropriate departmental action is taken against the erring officials of the H.R. & C.E. Department and the trustees of the temples under Sections 53 and 66 of the Act, against whom, the allegations with regard to illegal transfers of the properties/lands owned by the Public Religious Institutions/temples are made, after conducting proper enquiry in this regard;
i.The 5th respondent shall issue appropriate directions to his subordinates to ensure that the temple properties are not sold, parted or leased illegally;
j.The 5th respondent shall instruct the appropriate Assistant Commissioners/Joint Commissioners to initiate inquiry under Section 78 to retrieve the temple lands from the encroachers and shall submit a report to that effect within four weeks;
k.The 5th respondent shall cause to issue public notices informing the public/ encroachers /third parties in possession of the temple lands to voluntarily come forth and surrender the lands to avoid penal action, failing which, inform them that prosecution will be initiated against them under Section 79B of the HR & CE Act.
The directions issued above must be strictly complied with, failing which, this Court would not hesitate to initiate appropriate proceedings as this is the second opportunity given to the 5th respondent after the directions issued on 31.10.2014.
List the matter after six weeks for reporting compliance.
To
1.The Superintendent of Police, Sivagangai District, Sivagangai.
2.The Joint Commissioner, Hindu Religious and Charitable Endowments, Sivagangai District, Sivagangai.
3.The Assistant Commissioner, Hindu Religious and Charitable Endowments, Paramakudi, Ramanathapuram District.
4.The Commissioner, Hindu Religious and Charitable Endowments, Chennai.
5. The Commissioner, Hindu Religious and Charitable Endowment Department, Chennai - 600 034.
6. The State of Tamil Nadu, Represented by its Secretary, Revenue Department, Fort St George, Chennai.
7. The Principal Secretary, Government of Tamil Nadu Secretariat, Fort St. George, Chennai
8. The Secretary to Government, Revenue Department, Chennai. (Communicate Order copy to All District Collectors, Commissioners and other Subordinate Officers of all districts in Tamil Nadu )
9. The Director General of Police, Chennai. (Communicate Order copy to All Commissioners of all Districts in Tamil Nadu)
10. The Advocate General of Tamil Nadu, High Court, Chennai.
11. The Public Prosecutor, High Court, Chennai.
12. The Government Pleader, High Court, Chennai.
13. The Commissioner , Corporation of Chennai.
.