Madras High Court
N.Raman vs The Special Commissioner & ... on 14 June, 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 14.06.2018 CORAM THE HONOURABLE TMT. JUSTICE V. BHAVANI SUBBAROYAN W.P.No. 15134 of 2008 N.Raman ... Petitioner Vs 1.The Special Commissioner & Commissioner H.R & C.E Board, Nungambakkam High Road, Chennai-600034. 2.The Joint Commissioner, H.R & C.E Board, Salem 3. P.Pachamuthu 4. S.Mani 5. K.Sigamani 6. Seetharaman 7. G.Sengodan ... Respondents (R3 to R7 impleaded as per order of this Court dated 18.07.2008 in MP.No.1/2008) Prayer: Writ Petition filed under Article 226 of Constitution of India praying to issue Writ of Mandamus or any other appropriate Writ, order or direction in the nature of writ directing the second respondent to consider the representation of the petitioner dated 19.05.2008 within a stipulated time. For Petitioner : B.Kumarasamy For Respondents : Mr.M.Maharaja, Spl.GP R1&R2 Mr.M.Vaidyanathan R3 to R7 - - - - O R D E R
The prayer sought for in the present writ petition is to issue Writ of Mandamus or any other appropriate Writ, order or direction in the nature of writ directing the second respondent to consider the representation of the petitioner dated 19.05.2008 within a stipulated time.
2. The learned counsel for the petitioner submitted that the petitioner herein is one of the Heriditary Trustees of Sri Mannarsami and Pachaiamman Temples situate at Gugai, Salem town. The petitioner along with six others filed a petition in O.A.No.7 of 2001 before the second respondent for declaration, declaring the Heriditary Trustees of the said temple. The 2nd respondent after due enquiry and following procedures declared the petitioner and six others as Hereditary Trustees of the said temple by his order dated 23.12.2004.
3. The petitioner would contend that they were maintaining temple for the past 150 years and doing pooja. In the year 1939, the H.R & C.E Board sent a letter to the petitioner's father in Memorandum No.73838/42/ADM/A1, dated 08.01.1943 and the petitioner's father was permitted to take legal advise in the matter by filing suit for the recovery of the temple properties. As such, the petitioner's father was taking care of the properties and he would further contend that a portion of the temple properties was acquired by the Slum Clearance Board in the year 1978 for construction of houses, the petitioner objected for the same. The Special Tahsildar (Land Acquisition) told the petitioner that they will proceed further, unless and until the petitioner get an order from the court against the acquisition. Against the said acquisition, the petitioner filed a suit in O.S. NO. 349 of 1987 on the file of the District Munsif Court, Salem but due to financial crisis the petitioner could not conduct his case properly.
4. The learned counsel for the petitioner further submitted that due to some misunderstanding between the Hereditary Trustees, the day-to-day affairs of the Temple as well as maintenance of the property belongs to the Temple was not properly looked after by the trustees. Taking advantage of the misunderstanding, one Thangaraj has encroached the pathway of the Temple, therefore the petitioner had no other alternative, but to prefer a complaint before the Deputy Commissioner of Police, Salem. The Deputy Commissioner of Police enquired the said Thangaraj and warned him. Inspite of the said warning, the said third party, Thangaraj had constructed a building in the said land, hence the petitioner and other trustees filed a suit in O.S. No. 763 of 2002 on the file of District Munsif Court, Salem. Since the other trustees have colluded with the said third party Thangaraj and acted against the temple administration, the petitioner had filed a petition in I.A.No.446 of 2005 to transpose the other trustees as plaintiffs in the suit and add them as defendant in the said suit and the same was allowed.
5. The petitioner further submitted that the other trustees have acted against the temple and they colluded with the encroachers and grabbed the temple property and also taken Hundi Collections. He has further submitted that the Hereditary Trustees have taken three Panchaloga Idols against the will of the other Trustees.
6. Aggrieved by the act of said Hereditary Trustees, the petitioner has sent a representation to the 2nd respondent on 20.09.2007 and 19.05.2008, but till date no action has been taken against the Trustees. Simultanenously, it can be seen that the first respondent by proceedings dated 22.05.2008 in Na.Ka.No.30545/7/A2 asked the 2nd respondent to take action against the petitioner's representation. Even though there was a direction issued by the first respondent to the second respondent, no action has been taken on the petitioner's representation and this petitioner is aggrieved by the said inaction by the 2nd respondent had preferred this writ petition for mandamus to direct the second respondent to consider his representation dated 19.05.2008.
Heard the learned counsels and perused the materials on record.
7. The allegations stated by the petitioner in his representation are very serious in nature. Nowadays in the newspapers, we often see news regarding theft of many of our valuable idols of Deities by some unknown persons and selling the same to third parties and therefore we cannot take these allegations just like any other allegations.
In the order dated 12.02.2018 made in WP(MD).No.14428/2017, the Madurai Bench of Madras High Court held as follows;
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.
8. Based on the above directions issued by the Madurai Bench of Madras High Court, Madurai, this Court directs the second respondent to consider and take action on the petitioner's representation dated 19.05.2008 within a period of four weeks after giving necessary notice to the parties concerned including petitioner within a period of one week from the date of receipt of a copy of this order and conduct enquiry on day-to-day basis and file a report before this Court on or before 13.07.2018. This writ petition is disposed of accordingly. No costs.
Post this Writ Petition on 16.07.2018 for reporting compliance 14.06.2018 Internet : Yes/No Index : Yes/No ak To
1.The Special Commissioner & Commissioner H.R & C.E Board, Nungambakkam High Road, Chennai-600034.
2.The Joint Commissioner, H.R & C.E Board, Salem V. BHAVANI SUBBAROYAN.J, ak W.P.No. 15134 of 2008 14.06.2018