Madras High Court
A.Saravanan vs The Commissioner on 19 October, 2022
Author: C.Saravanan
Bench: C.Saravanan
W.P.No.20246 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved On 02.09.2022
Pronounced On 19.10.2022
CORAM
THE HON'BLE MR.JUSTICE C.SARAVANAN
W.P.No.20246 of 2022
and
W.M.P.No.19479 of 2022
A.Saravanan ... Petitioner
Vs.
1.The Commissioner,
Hindu Religious & Charitable
Endowments Department,
Nungambakkam High Road,
Chennai – 600 034.
2.The District Registrar Administration,
No.182, Bharathi Salai Royapettaha,
Central Chennai.
3.The Executive Officer,
Agatheeswarar Prasanna Venkateswara
Perumal Temple,
Nungambakkam Chennai – 600 034.
4.The Joint Sub Registrar II,
District Registrar Cadre,
Thousand lights Chennai. ... Respondents
______________
https://www.mhc.tn.gov.in/judis
Page No 1 of 20
W.P.No.20246 of 2022
Writ Petition filed under Article 226 of the Constitution of India, for
issuance of a Writ of Mandamus, to direct the first respondent to provide
No Objection Certificate for registration of any document for the
petitioner's property based on the petitioner representation dated
27.06.2022.
For Petitioner : Mr.R.Karunagaran
For R1 : Mr.S.Yashwanth
Additional Government Pleader
For R2 & R4 : Mr.B.Tamilnidhi
Additional Government Pleader
For R3 : Mr.P.Wilson
for M/s.A.S.Kailasam & Associate
ORDER
This Writ Petition has been filed for issuance of a Writ of Mandamus, to direct the first respondent to issue a “No Objection Certificate” for registration of document of the petitioner's property based on the representation dated 27.06.2022.
2. The petitioner's grandfather had purchased a property from the third respondent Temple on 28.03.1969. The original of the title deed of ______________ https://www.mhc.tn.gov.in/judis Page No 2 of 20 W.P.No.20246 of 2022 the aforesaid property was mortgaged by the petitioner along with his family members as a security for a loan obtained from M/s.Capital Limited which has now merged with IDFC First Bank Limited. It is submitted that the petitioner has also discharged the loan liability to the aforesaid lender.
3. On 24.03.2022 when the petitioner presented a Deed of Receipt for cancellation of mortgage given by the lender M/s.Capital Limited (now known as IDFC First Bank Limited) before the Joint Sub-Registrar II, the fourth respondent herein for registration, the fourth respondent has refused to register the same on the ground that the Executive Officer of the third respondent Temple vide letter dated 15.12.2020 has stated that W.P.No.9336 of 2018 was filed before this Court and has requested the fourth respondent to not register any documents in respect of the property belonging to the Agastheeswarar Temple, until order is passed by this Court. The reason for refusal given by the fourth respondent reads as under:-
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4. Relevant portion of the order dated 19.02.2019 in W.P.No.9336 of 2018 reads as under:-
13. Authorities are therefore, bound to act in accordance with the provisions of the Hindu Religious & Charitable Endowments Act, 1959 and Madras City Tenants Protection Act, and in the light of the directions passed by this Court. In the light of the above, it is the duty of the respondent to consider the representation of the petitioner and if the contentions of the petitioner are true, keeping in mind the provisions of the above statutes, decisions rendered in the suits filed for possession by the erstwhile trustees, decide the steps to be taken to recover the properties belonging to Agastheeswarar Temple, which have been sold in violation of Section 34 of the said Act. Representation of the petitioner, dated 21/3/2016, must be positively considered, within a period of two weeks, from today, and accordingly, if permissible in law, take action, within a period of four weeks, from the date of the decision ______________ https://www.mhc.tn.gov.in/judis Page No 4 of 20 W.P.No.20246 of 2022 on the representation.
5. In the above order, this Court followed the guidelines given in order of the Madurai Bench of this Court in V.Muthusamy Vs. The Joint Commissioner, HR & CE Department, Palayamkotai, Tirunelveli District and others, dated 12.02.2018 in W.P.(MD) No.16833 of 2017.
6. When the letter dated 15.02.2020 was sent by the Executive Officer of the third respondent Temple, W.P.No.9336 of 2018 filed by one Mr.J.Mohanraj had already been disposed of by this Court vide its order dated 19.02.2019. Thereafter, the Contempt Petition in Cont.P.No.1331 of 2019 was filed for alleged violation of the order. Therefore, it is clear that on the said date, only the Contempt Petition was pending.
7. The petitioner therefore preferred an appeal before the second respondent. The second respondent rejected the appeal vide Order No.4697/A1/2022 dated 30.05.2022 in view of order dated 19.02.2019 in W.P.No.9336 of 2018 filed by the said Mr.J.Mohanraj and thus affirmed the order dated 24.03.2022 of the fourth respondent. ______________ https://www.mhc.tn.gov.in/judis Page No 5 of 20 W.P.No.20246 of 2022
8. Thereafter, the petitioner has filed a representation before the first respondent, Commissioner of H.R. & C.E. Department for issuance of a “NOC” so as to enable the petitioner to register the Deed of Receipt for cancellation of mortgage with the fourth respondent herein. The said representation having not been considered by the first respondent, the petitioner has filed the present Writ Petition praying to this court to direct the first respondent to issue NOC.
9. It is the specific case of the petitioner that the restriction in Section 34 of the H.R. & C.E. Act, 1959 as it stands, does not apply to the property as the property was purchased on 28.03.1969. It is submitted that when the petitioner's grandfather purchased the property, a valid and a perfect title was conveyed and therefore there cannot be any impediment in view of the order passed by the Hon'ble Division Bench of this Court in Mohanraj Vs. The Commissioner, Hindu Religious and Charitable Endowment Board, dated 19.02.2019 in W.P.No.9336 of 2018 or the subsequent order passed in the contempt proceedings. ______________ https://www.mhc.tn.gov.in/judis Page No 6 of 20 W.P.No.20246 of 2022
10. This Writ Petition is contested by the fourth respondent. It is submitted that the refusal was made on account of a letter issued by the third respondent Temple dated 15.12.2020 much prior in time to the presentation of Deed of Receipt for cancellation of mortgage which has been affirmed by the second respondent. Hence, it is prayed for dismissal of this Writ Petition.
11. I have considered the arguments advanced by Mr.R.Karunagaran, the learned counsel for the petitioner, Mr.S.Yashwanth, the learned Additional Government Pleader for the first respondent, Mr.B.Tamilnidhi, the learned counsel for the second and fourth respondents and Mr.P.Wilson for M/s.A.S.Kailasam & Associates, the learned counsel for the third respondent.
12. Section 34 of the H.R. & C.E. Act, 1959, provides that the registration of any exchange, sale or mortgage and any lease for a period 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 ______________ https://www.mhc.tn.gov.in/judis Page No 7 of 20 W.P.No.20246 of 2022 beneficial to the institution.
13. The facts on record indicate that the petitioner's grandfather purchased the property way back in 1969 vide a registered Sale Deed dated 28.03.1969 bearing Document No.439/1969 on the file of the Sub Registrar Office, Thiyagaraya Nagar (T.Nagar), Chennai – 600 035.
14. Recital from the above Sale Deed dated 28.03.1969 also indicates that the said Temple had earlier leased out the land for 75 years to a lessee. The lessee had put up a construction on the leased land and was in possession and enjoyment of the same and that the petitioner's grandfather late Mr.P.R.Manicka Thevar purchased the superstructure together with leasehold right and other interests from the lessee by a registered Sale Deed dated 15.04.1967 registered as Document No.944/1967 within the jurisdiction of Sub Registrar of Thiyagaraya Nagar (T.Nagar).
15. It is thereafter that Sale Deed dated 28.03.1969 was executed by the Hereditary Trustee of Sri Agastheeswarar Sri Prasanna Venkatesa ______________ https://www.mhc.tn.gov.in/judis Page No 8 of 20 W.P.No.20246 of 2022 Perumal Devasthanam in favour of the petitioner's grandfather on the strength of the permission dated 30.12.1968 granted to the Hereditary Trustee of the temple for sale of the land in favour of the petitioner's grandfather.
16. The aforesaid sale should have been in accordance with Section 34 of the Act, as it stood then. It read as under:-
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.
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 ______________ https://www.mhc.tn.gov.in/judis Page No 9 of 20 W.P.No.20246 of 2022 aggregate), whether subject to any condition or not, be deemed to be a lease for a period exceeding five years.
(2) When according such sanction, the Commissioner may impose such conditions and give such direction, as 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.
(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 Government to modify the order or set it aside.
(5) Nothing contained in this section shall apply to the imams referred to in section 41.
17. During the intervening period, there was amendment by substituting the word 'the Commissioner' with 'the Temple Administration Board'. However, there was also subsequent amendment which restored ______________ https://www.mhc.tn.gov.in/judis Page No 10 of 20 W.P.No.20246 of 2022 the earlier position and thus, it is the Commissioner who is the competent authority to accord sanction.
18. A reading of the recital from the Sale Deed dated 28.03.1969 executed by the Hereditary Trustee of Sri Agastheeswarar Sri Prasanna Venkatesa Perumal Devasthanam in favour of the petitioner's grandfather indicates that the Sale Deed was executed after obtaining necessary permission from the Commissioner of Hindu Religious and Charitable Endowments (H.R. & C.E.) vide order dated 30.12.1968 in Application No.212 of 1968.
19. Thus, there was no embargo on the Commissioner under Section 34 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 to accord sanction for sale of land in 1968 when the order dated 30.12.1968 in Application No.212 of 1968 was passed authorizing the sale by the Hereditary Trustee of the Temple in favour of the petitioner's grandfather.
20. Amendment to Section 1 of the Madras City Tenants' Protection ______________ https://www.mhc.tn.gov.in/judis Page No 11 of 20 W.P.No.20246 of 2022 Act, 1921 by the Madras City Tenants' Protection (Amendment) Act, 1994 reads as under:-
(1996) 1 LW (JS) 75 Madras City Tenants' Protection (Amendment) Act, 1994 (Tamil Nadu Act No. 2 of 1996), Published in the TAMIL NADU GOVERNMENT GAZETTE, EXTRAORDINARY, Madras, Thursday, January 11, 1996 — Margazhi 27, Yuva, Thiruvalluvar Aandu-2026.
Part IV — Section 2 — Tamil Nadu Acts and Ordinances The following Act of the Tamil Nadu Legislative Assembly received the assent of the President on the 5th January 1996 and is hereby published for general information:— ACT No. 2 of 1996.
An Act further to amend the Madras City Tenants Protection Act, 1921.
BE it enacted by the Legislative Assembly of the State of Tamil Nadu in the Forty-fifth Year of the Republic of India as follows:—
1.Short title and Commencement:
(1) This Act may be called the Madras City Tenants' Protection (Amendment) Act, 1994. (2) It shall come into force at once.” ______________ https://www.mhc.tn.gov.in/judis Page No 12 of 20 W.P.No.20246 of 2022
2.Amendment of Section 1:— In Section 1 of the Madras City Tenants Protection Act, 1921 (hereinafter referred to as the ‘Principal Act’), in sub-section (3), in the first Proviso, after Clause (e), the following clause shall be added, namely:— “(f) by any religious institution or religious charity belonging to Hindu, Muslim, Christian or other religion.” Explanation.— For the purpose of this clause,— (A) “religious institution” means any—
(i) temple;
(ii) math;
(iii) mosque;
(iv) church; or
(v) other place by whatever name known, which is dedicated to, or for the benefit of, or used as of right by, any community or section thereof as a place of public religious worship; (B) “religious charity” means a public charity associated with a religious festival of observance of religious character (including a wakf associated with a religious festival or observance of religious character), whether it be connected with any religious institution or not;
3.Certain pending proceedings to abate. Every proceeding instituted by a tenant in respect of any land owned by any religious, institution or religious charity belonging to Hindu, Muslim, Christian or other religion and pending before any court or other authority or officer on the date of the publication of this Act in the Tamil Nadu Government Gazette, shall, in so far as the proceeding relates to any matter falling within the scope ______________ https://www.mhc.tn.gov.in/judis Page No 13 of 20 W.P.No.20246 of 2022 of the Principal Act, as amended by this Act, in respect of such land, abate, and all rights and privileges which may have accrued to that tenant in respect of any such land and subsisting immediately before the said date shall, in so far as such rights and privileges, relate to any matter falling within the scope of the Principal Act, as amended by this Act, cease and determine and shall not be enforceable:
Provided that nothing contained in the section shall be deemed to invalidate any suit or proceeding in which a decree or order passed has been executed or satisfied in full before the said date.
21. The properties belonging to the religious institutions or religious charities belonging to Hindu, Muslim, Christian or other religion were brought outside the purview of the protection under the Madras City Tenants' Protection Act, 1921 by virtue of amendment to the Act in the year 1996 published in Part IV, Section 1 of the Tamil Nadu Government Gazette, Extraordinary dated 11.01.1996.
22. Proviso to Sub-Section 3 to Section 1 of the Madras City Tenants' Protection Act, 1921 as amended also indicates that the amendment will not invalidate any suit or proceedings, in which the decree or order has been passed or executed or satisfied in full before the said ______________ https://www.mhc.tn.gov.in/judis Page No 14 of 20 W.P.No.20246 of 2022 date.
23. Section 22-A of the Registration Act, 1908 as amended in the State of Tamil Nadu is also not applicable to the facts of the case as it is confined to transfer of immovable properties by way of sale, gift, mortgage, exchange or lease. Section 22-A of the Registration Act, 1908 reads as under:-
22-A. Refusal to register certain documents .— Notwithstanding anything contained in this Act, the registering officer shall refuse to register any of the following documents, namely:— (1) instrument relating to the transfer of immovable properties by way of sale, gift, mortgage, exchange or lease,—
(i) belonging to the State Government or the local authority or Chennai Metropolitan Development Authority established under section 9-A of the Tamil Nadu Town and Country Planning Act, 1971 (Tamil Nadu Act 35 of 1972);
(ii)belonging to, or given or endowed for the purpose of, any religious institution to which the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 (Tamil Nadu Act 22 of 1959 is applicable;
(iii)donated for Bhoodan Yagna and vested in the Tamil Nadu State Bhoodan Yagna Board ______________ https://www.mhc.tn.gov.in/judis Page No 15 of 20 W.P.No.20246 of 2022 established under section 3 of the Tamil Nadu Bhoodan Yagna Act, 1958 (Tamil Nadu Act XV of 1958); or
(iv)of Wakfs which are under the superintendence of the Tamil Nadu Wakf Board established under the Wakf Act, 1995 (Central Act 43 of 1995), unless a sanction in this regard issued by the competent authority as provided under the relevant Act or in the absence of any such authority, an authority so authorised by the State Government for this purpose, is produced before the registering officer;
(2) instrument relating to the transfer of ownership of lands converted as house sites without the permission for development of such land from planning authority concerned:
Provided that the house sites without such permission may be registered if it is shown that the same house site has been previously registered as house site.
Explanation I.—For the purpose of this section ‘local authority’ means,—
(i) any Municipal Corporation constituted under any law for the time being in force; or
(ii)a Municipal Council constituted under the Tamil Nadu District Municipalities Act, 1920 (Tamil Nadu Act V of 1920); or
(iii)a Panchayat Union Council or a Village Panchayat constituted under the Tamil Nadu Panchayats Act, 1994 (Tamil Nadu Act 21 of ______________ https://www.mhc.tn.gov.in/judis Page No 16 of 20 W.P.No.20246 of 2022 1994); or
(iv)any other Municipal Corporation, that may be constituted under any law for the time being in force.
Explanation II.—For the purpose of this section ‘planning authority’ means the authority constituted under section 11 of, and includes the Chennai Metropolitan Development Authority established under section 9-A of the Tamil Nadu Town and Country Planning Act, 1971 (Tamil Nadu Act 35 of 1972);
(3) instrument relating to cancellation of sale deeds without the consent of the person claiming under the said sale deed.”
24. The fourth respondent has also conceded in the counter affidavit that Section 22-A(1)(ii) of the Registration Act, 1908 as amended in the State of Tamil Nadu will not apply to the facts of the case. The only reasons given to defend the stand is letter dated 15.12.2020 of the third respondent Temple.
25. The amendment to Section 34 of the Hindu Religious and Charitable Endowments Act, 1959 which inserted the second proviso to Section 34(1) of the Act vide Tamil Nadu Act 38 of 1998, applies only prospectively and not retrospectively. The sale in favour of the petitioner's ______________ https://www.mhc.tn.gov.in/judis Page No 17 of 20 W.P.No.20246 of 2022 grandfather took place long before the amendment was made to Section 34(1) of the Act by way of insertion of second proviso.
26. There are no merits in the stand of the fourth respondent as there is no statutory bar under the provisions of the Hindu Religious and Charitable Endowments Act, 1959 or Registration Act, 1908 or Madras City Tenants' Protection Act, 1921. Power to refuse registration of Deed of Receipt for cancellation of charge over the property mortgaged to the said lender cannot be countenanced. This Writ Petition therefore deserves to be allowed.
27. The first respondent is therefore directed to grant “No Objection Certificate” for registration of documents in respect of the petitioner's property, within a period of 30 days from the date of receipt of a copy of this order. The fourth respondent shall thereafter register the Deed of Receipt for cancellation of charge of the property mortgaged and make suitable changes in the Registers.
28. In the light of the above, this Writ Petition stands allowed. No ______________ https://www.mhc.tn.gov.in/judis Page No 18 of 20 W.P.No.20246 of 2022 cost. Consequently, connected Miscellaneous Petition is closed.
19.10.2022 Internet : Yes/No Index : Yes / No Jen To
1.The Commissioner, Hindu Religious & Charitable Endowments Department, Nungambakkam High Road, Chennai – 600 034.
2.The District Registrar Administration, No.182, Bharathi Salai Royapettaha, Central Chennai.
3.The Executive Officer, Agatheeswarar Prasanna Venkateswara Perumal Temple, Nungambakkam Chennai – 600 034.
4.The Joint Sub Registrar II, District Registrar Cadre, Thousand lights Chennai.
C.SARAVANAN, J.
Jen ______________ https://www.mhc.tn.gov.in/judis Page No 19 of 20 W.P.No.20246 of 2022 Pre-Delivery Order in W.P.No.20246 of 2022 and W.M.P.No.19479 of 2022 19.10.2022 ______________ https://www.mhc.tn.gov.in/judis Page No 20 of 20