Madras High Court
K.V.Lakshmi Ammal vs The Joint Commissioner on 8 December, 2009
Author: M.Jaichandren
Bench: M.Jaichandren
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATE: 08/12/2009 CORAM THE HONOURABLE MR.JUSTICE M.JAICHANDREN Writ Petition(MD) No.10566 of 2009 and M.P.Nos.1 and 2 of 2009 K.V.Lakshmi Ammal .. Petitioner. Versus 1.The Joint Commissioner, Hindu Religious and Charitable Endowment Department, Madurai-625 001. 2.Arulmighu Subramaniaswamy Thirukoil, represented by its Executive Officer, Thirupparamkundram, Madurai-625 005. .. Respondents. Prayer Petition filed seeking for a Writ of Certiorarified Mandamus, to call for the records relating to the impugned order of the first respondent, in Na.Ka.No.2289/2007/E1, dated 19.1.2009, and quash the same and consequently, forbear the second respondent from interfering with the petitioner's possession and enjoyment of the property described in the impugned notice, dated 19.1.2009. !For Petitioner ... Mr.G.R.Swaminathan ^For Respondents ... Mr.K.M.Vijayakumar (R1) Additional Government Pleader Mr.R.S.Manohar (R2) :ORDER
Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondents.
2. This writ petition has been filed praying for a writ of Certiorarified Mandamus to call for the records relating to the impugned order of the first respondent, dated 19.1.2009, and quash the same and to consequently, forbear the second respondent from interfering with the petitioner's possession and enjoyment of the property described in the impugned notice, dated 19.1.2009.
3. The petitioner has stated that the property comprised in S.R.No.945/6, measuring an extent of 1368 Sq.ft, referred to in the impugned notice of the first respondent, belongs to the petitioner. However, the impugned notice, dated 19.1.2009, has been addressed to the petitioner's husband, K.K.Viswanathan @ Rajamani.
4. The petitioner has also stated that the property in question had originally belonged to one Angu Thayammal and Nani Pandithar. Thereafter, one Govindasamy Naidu had purchased the property, in the year, 1953. Since the property is situated close to the temple, the second respondent temple wanted to take over the said property. The second respondent had made an offer to Govindasamy Naidu for exchange of land. Since Govindasamy Naidu had not accepted, the said proposal had been given up in the year, 1966. When the proposal had been made, by way of a communication, in Pa.Mu.No.1603/64.C.5, dated 20.1.1966, issued by the then Executive Officer of the temple, the title of Govindasamy Naidu, in respect of the property concerned, had been admitted. Thereafter, on 2.2.2007, the Board of trustees of the second respondent temple had passed a resolution, as if the subject land had been encroached upon by the petitioner. Therefore, proceedings, dated 14.2.2007, had been issued by the second respondent. In such circumstances, the petitioner was constrained to file a suit, in O.S.No.135 of 2007, before the Principal Subordinate Judge, Madurai, seeking for a declaration, regarding the validity of the resolution. The petitioner had sought for the consequential relief of injunction.
5. The petitioner had further stated that the property in question had been purchased, by a registered sale deed, by Govindasamy Naidu. After his demise the property had been purchased by Kuppusamy, from the sons of Govindasamy Naidu, in the year, 1983. The said Kuppusamy is the petitioner's husband's brother-in-law. He had executed a power of attorney in the name of the petitioner's husband. Based on the power of attorney the petitioner's husband had executed a sale deed, dated 27.1.2005, registered as Document No.1998 of 2005, on the file of the Sub Registrar, Thirupparamkundram, in favour of the petitioner. After purchasing the land the petitioner and her husband had built a residential house in the property in question. After the building of the house, the remaining portion is kept as a vacant site.
6. Even though a civil suit is pending in respect of the property in question the first respondent had issued a notice, dated 19.1.2009, under Section 78(2) of the Hindu Religious and Charitable Endowments Act, 1959. The petitioner had submitted a written reply, dated 24.8.2009. Without holding an enquiry and without passing final orders, the second respondent had attempted through his men to forcibly enter the property belonging to the petitioner. Therefore, a complaint had been lodged before the local police. On 14.10.2009, there was another attempt of criminal trespass by the servants of the second respondent. They had attempted to put up some stones in the property and they had behaved in a discourteous manner.
7. It has also been stated that the petitioner has been in possession and enjoyment of the property, for a long time. She has also got electricity connection and she has been remitting the house tax. The revenue records are in the name of the petitioner's vendor, Kuppusamy. The local authority had also granted approval to the petitioner's vendor, Kuppusamy, in the year, 1996, for erecting a shed in the property in question. The respondents have invoked the powers, under Section 78 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959. When there is a bona fide dispute existing in respect of the title, the powers under the said provision cannot be invoked. Even though there is an alternative remedy available to the petitioner before a Civil Court against the proceedings initiated, under Section 78 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959, it is not an efficacious remedy. In such circumstances, the petitioner has filed the present writ petition before this Court, under Article 226 of the Constitution of India.
8. In the counter affidavit filed on behalf of the second respondent it has been stated that the writ petition is not maintainable, both in law and on facts. No order has been passed by the first respondent against the petitioner, as on date. Only a notice, dated 19.1.2009, has been issued, under Section 78 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959, by the first respondent, asking the petitioner's husband to show cause as to why the encroachment made by the petitioner in the land in question, belonging to the second respondent temple, should not be removed. The petitioner having submitted to the jurisdiction of the first respondent had filed her objection, dated 24.8.2009, as a reply to the show cause notice. While so, the petitioner cannot be said to be an aggrieved person to challenge the impugned notice of the first respondent, dated 19.1.2009. In fact, the first respondent is the competent authority to enquire into the matter. Therefore, the writ petition is premature in nature.
9. It has also been stated that the second respondent temple is one of the ancient temples in the state of Tamil Nadu. The second respondent temple is a listed Public Temple notified, under Section 46(iii) of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959. It is being administered by the Executive officer in the cadre of Deputy Commissioner, appointed by the Government of Tamil Nadu, subject to the over all control of the Commissioner, Hindu Religious and Charitable Endowments, Administration Department.
10. It has also been stated that the lands in question admeasuring an extent of 1368 sq.ft. and the other lands comprised, in S.No.196/14 and subdivided as S.Nos.196/14A and 196/14B and presently T.S.No.945/6, were the subject matter of the claim by the temple, in respect of Hillock, Saravana Poikai, Vannankulam, Pancha Pandavar Kugai and Umari Andavar Koil, upto Giri Veedhi, as demarcated in the plan filed before the Additional Sub Court, Madurai, in O.S.No.4 of 1920. The said suit filed by the temple had culminated in the proceedings before the Privy Council, in Appeal No.5 of 1930, dated 12.5.1931. Accordingly, the property, admeasuring an extent of 572544 Sq.ft, as per the decree plan, had been declared as the property of the second respondent temple. On a perusal of the village `A' register, the lands comprised in S.No.196/14 had been subdivided as 196/14A and 14B, as per Taluk Ref.No.1628/48, dated 7.12.1948, registered in the name of the temple. While so, excepting the temple no other person can exercise any right or claim in respect of the lands, in its entirety.
11. It has also been stated that since the Executive officer of the temple has no right to compromise the dispute, in respect of the land in question, without the prior approval of the Commissioner of the Tamil Nadu Hindu Religious and Charitable Endowments, Administration Department, as contemplated, under Section 34 of the Act, it would have no legal effect. Therefore, the petitioner cannot claim any right, in respect of the property in question, based on the communication, in Pa.Mu.No.1603/64.C.5, dated 20.1.1966.
12. It has been further stated that before invoking the provisions of Section 78 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959, in furtherance of the resolution of the Trust Board of the second respondent temple, a notice, dated 14.2.2007, had been issued to the petitioner for the removal of the encroachment. Instead of responding to the notice, issued by the second respondent temple, the petitioner had filed a suit, on the file of the Principal Sub Court, Madurai, in O.S.No.135 of 2007, challenging the validity of the resolution. The said suit is still pending.
13. The lands in question and the other lands, up to Giri Veedhi, admeasuring about 5,72,544 sq.ft, on all the sides, belongs to the second respondent temple, as per the decree plan. The first respondent is the competent authority to initiate proceedings, under Section 78 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959. Therefore, no writ petition can be maintained before this Court, at the stage of the show cause notice. The petitioner had filed her objections to the show cause notice and the enquiry, under Section 78(4) of the Act, is pending. Hence, the writ petition, filed by the petitioner, is premature in nature.
14. The learned counsel for the petitioner had relied on the decision of the Supreme Court, reported in Government of A.P. V. Thummala Krishna Rao (1982(2) SCC 134), wherein, the Supreme Court, while dealing with the Andhra Pradesh Land Encroachment Act, 1905, had held as follows:
"The summary remedy for eviction provided by Section 6 of the Act can be resorted to by the Government only against persons who are in unauthorised occupation of any land, which is "the property of the Government". To decide whether the summary remedy can be used what is relevant is more the nature of the property on which the encroachment is alleged to have been committed and the consideration whether the claim of the occupant is bona fide. Facts which raise a bona fide dispute of title between the Government and the occupant must be adjudicated upon by the ordinary courts of law. The summary remedy under Section 6 is not suited to resolve questions of title. The Government cannot decide such questions unilaterally in its own favour and evict any person summarily on the basis of such decision. Duration of occupation is also relevant in that a person in occupation for a long time can be taken, prima facie, to have a bona fide claim to the property requiring an impartial adjudication according to the established procedure of law."
15. In State of Rajasthan Vs. Padmavati Devi (1995 Supp(2) SCC 290), the Supreme Court had held, while dealing with Section 91 of the Rajasthan Land Revenue Act, 1956, that the summary procedure for eviction of unauthorised occupants of Government Land cannot be invoked where a person, who is in occupation of the land, raises a bona fide dispute involving complicated questions of title and his right to remain in possession of the land in question.
16. The learned counsel for the respondents had relied on the following decisions in support of his contentions:
16.1. In M.Karunanidhi V. Union of India (AIR 1979 SC 898), the Supreme Court had held as follows:
"Where the provisions of a Central Act and a State Act in the Concurrent List are fully inconsistent and are absolutely irreconcilable, the Central Act will prevail and the State Act will become void in view of the repugnancy. Where a law passed by the State Legislature while being substantially within the scope of the entries in the State List entrenches upon any of the Entries in the Central List the constitutionality of the law may be upheld by invoking the doctrine of pith and substance if on an analysis of the provisions of the provisions of the Act it appears that by and large the law falls within the four corners of the State List and entrenchment, if any, is purely incidental or inconsequential."
16.2. In Sant Lal Bharti V. State of Punjab (1988(1) SCC 366), it has been held as follows:
"Article 14 does not authorise the striking down of a law of one State on the ground that in contrast with a law of another State on the same subject its provisions are discriminatory or different. Nor does it contemplate a law of the Centre or of the State dealing with similar subjects being held to be unconstitutional by a process of comparative study of the provisions of the two enactments. The source of authority for the two statutes being different, Article 14 can have no application."
16.3. In Bharat Petroleum Corporation Ltd. V. Maddula Ratnavalli (2007(6) SCC 81), it has been held as follows:
"Reasonableness and non-arbitrariness are the hallmarks of an action by the State. The "State" acting whether as a "landlord" or a "tenant" is required to act bona fide and not arbitrarily, when the same is likely to affect prejudicially the right of others."
16.4. In New India Assurance Co., Ltd. V. Nusli Neville Wadia (AIR 2008 SC
876), it had been held as follows:
"For proper interpretation not only the basic principles of natural justice have to be borne in mind, but also principles of constitutionalism involved therein. With a view to read the provisions of the Act in a proper and effective manner, literal interpretation, if given, may give rise to an anomaly or absurdity which must be avoided. So as to enable a superior Court to interpret a statute in a reasonable manner, the Court must place itself in the chair of a reasonable legislator/author. So done, the rule of Purposive Construction have to be resorted to which would require the construction of the Act in such a manner, so as to see that the object of the Act fulfilled; which in turn would lead the beneficiary under the statutory scheme to fulfill its constitutional obligations."
16.5. This Court by its order, dated 28.10.2008, while deciding on the constitutional validity of Sections 78, 79(3) and 109 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959, as amended by the Tamil Nadu Act 39 of 1996, as well as by Act 28 of 2003, had held that the challenge to the impugned provisions are not valid and that they must necessarily fail.
17. In view of the averments made in the affidavit filed in support of the writ petition and in the counter filed on behalf of the second respondent and in view of the submissions made by the learned counsels appearing for the parties concerned, this Court is of the considered view that the petitioner has not shown sufficient cause or reason for this Court to interfere with the impugned proceedings of the first respondent, dated 19.1.2009.
18. From the records available before this Court, it is seen that the petitioner and her husband have filed a suit, in O.S.No.135 of 2007, on the file of Principal Subordinate Judge, Madurai, praying for the relief of declaration to declare the notice sent on behalf of the defendant therein, namely, Arulmighu Subramaniaswamy Thirukoil Devasthanam, on 14.2.2007, as null and void and not binding on the plaintiffs. A consequential relief of permanent injunction had also been prayed for to restrain the defendant, its men, agents and servants from, in any way, interfering with the peaceful possession and enjoyment of the suit property and for other associated reliefs.
19. The contentions raised on behalf of the petitioner is that when it is accepted that the petitioner and her husband have been in occupation and enjoyment of the property in question, for a long time and when the title of the property is disputed, the respondents cannot invoke Section 78 of the Hindu Religious and Charitable Endowments Act, 1959, and that summary procedures cannot be brought into operation to evict persons, who have been in settled possession and that the only course that would be open to the respondents, who dispute the title of the petitioner, would be by way of civil proceedings, before the appropriate forum, cannot be countenanced, at this stage, before this Court.
20. It is not for this Court to decide the issues relating to the title of the property under dispute. Further, it is open to the petitioner to establish her title by way of civil proceedings, before the appropriate forum, in accordance with law. It is also seen that the impugned notice, dated 19.1.2009, has been issued by the first respondent, under Section 78(2) of the Hindu Religious and Charitable Endowments Act, 1959. Therefore, it would be open to the petitioner to raise all the issues before the first respondent, including the ground of lack of jurisdiction, raised by the petitioner, in the present writ petition. When it is open to the petitioner to pursue her remedy by way of a civil suit, before the civil forum, the writ petition preferred by her before this Court, under Article 226 of the Constitution of India, cannot be maintained.
21. In such circumstances, the first respondent is directed to complete the proceedings initiated by him, by way of the impugned notice, dated 19.1.2009, under Section 78(2) of the Hindu Religious and Charitable Endowments Act, 1959, after giving an opportunity of hearing to the petitioner, the second respondent temple, as well as to the other parties concerned, within a period of twelve weeks from the date of receipt of a copy of this order, without being influenced by the observations made by this Court in this order. With the above directions, the writ petition is disposed of. No costs. Consequently, connected M.Ps are closed.
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