Madras High Court
R.Banumathy vs The Joint Sub Registrar I on 6 December, 2017
Author: P.Velmurugan
Bench: K.K.Sasidharan, P.Velmurugan
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 06.12.2017
CORAM
THE HONOURABLE MR. JUSTICE K.K.SASIDHARAN
and
THE HONOURABLE MR. JUSTICE P.VELMURUGAN
WA.No.1273 of 2014
R.Banumathy ... Appellant
..Vs..
1.The Joint Sub Registrar I,
Chennai North, (District Registrar Grade)
Dept. of Registration,
Chennai 600 001.
2.Arulmigu Kachaleeswarar Devasthanam,
Rep. by its Executive Officer,
No.77, Armenian Street,
Chennai-1. ... Respondents
Writ Appeal has been filed under clause 15 of Letters Patent against the order of this Court dated 04.06.2014 made in W.P.No.28894 of 2013.
For Appellant : No appearance.
For Respondents : Mrs.A.Srijayanthi, Spl.GP for R1.
Mr.S.D.Ramalingam for R2.
JUDGMENT
(Judgment of the Court was delivered by P.VELMURUGAN, J.) This Writ Appeal has been filed by the appellant/petitioner challenging the order of this Court dated 04.06.2014 made in W.P.No.28894 of 2013.
2. The facts of the case would run thus :-
The appellant purchased the superstructure on 23.12.2010, from one P.H.Jamal Mohideen measuring to an extent of 925Sq.ft situated at old Door No.21, New Door No.37, Kanchaleeswarar Garden Street, Muthialpet, Chennai in S.No.1872 RS.No.2696 of Muthialpet. Originally, the property belong to one P.Balupillai and his wife Dhanakottiammal and they conveyed the same in favour of one K.N.Vadivelu Naicker under the sale deed dated 12.06.1975 vide Doc.No.4336 of 1975 on the file of the Sub Registrar, Chennai North. The said Vadivelu Naicker mortgaged the said property in favour of (i)Mohan, (ii)Ganesan and (iii)Lawrence Arockiaraj under a mortgage deed dated 05.02.1997 and he discharged the same on 10.11.1999. Subsequently, he conveyed the same in favour of the vendor of the appellant/petitioner. After purchasing the above said property, the appellant submitted the sale deed dated 23.12.2010 to the first respondent for the purpose of registering the same and it was taken on file as Doc.P-86/Book-I/2010. Since, the first respondent has not taken any action in registering the said document, the appellant filed the present writ petition.
3. The learned counsel for the second respondent would submit that the suit property belong to the second respondent/Arulmigu Katchaleeswarar Devasthanam, the temple is the owner of the land comprised in 1872, RS.No.2696 of Katchaleeswarar Garden Street in CC.No.1277 and it was let out to several tenants in small portions. The second respondent is under the control of HR&CE department, the land measuring about 850sq.ft on which the superstructure made and sought for registration by the appellant was let out to one K.N.Vadivelu on a monthly rent of Rs.70/-p.m. who assigned the leasehold right to one P.H.Jamal Mohammed on 14.12.2000 without getting any permission from the second respondent or from the HR&CE Department. The appellant submitted the sale deed before the first respondent for registration, inturn the first respondent sent a communication dated 27.12.2010 to the HR&CE department calling for any objection for registering the document. On receipt of the said communication, the Commissioner sent proceedings dated 07.01.2011 to the first respondent, objecting the registration of the sale deed. As per section 78(2) of the HR&CE Act, the said P.H.Jamal Mohideen was in authorised occupation of the temple land. As per Section 34 of the HR&CE Act, any immovable property belonging to the temple cannot be alienated without necessary sanction from the Commissioner, HR&CE Department, if alienated, the same would be null and void unless it is sanctioned by the Commissioner.
4. The learned single judge after hearing the arguments of both sides dismissed the writ petition filed by the appellant/petitioner.
5. Aggrieved against the order passed by the learned single judge in WP.No.28894 of 2013 dated 04.06.2014, the appellant/petitioner preferred the present writ appeal.
6. It is seen from records, admittedly the lands belong to second respondent and the appellant admitted that his vendor P.H.Jamal Mohideen got the superstructure from the Vadivelu Naicker. Both the appellant and the respondents now questioned whether the Vadivelu Naicker has got any right over the property to convey it in favour of P.H.Jamal Mohideen or to any third party without getting any permission from the HR&CE department. Under such circumstances, the appellant purchased the property from P.H.Jamal Mohideen is not valid.
7. The learned single judge rightly considered all the aspect that the land belongs to the second respondent/temple. Legally, the lessee or assignee have no right to assign or to sale the superstructure to the 3rd party without the permission of the Commissioner, HR&CE department. In this case, the Vadivelu Naicker has not obtained any permission from the HR&CE department to assign the land in favour of the P.H.Jamal Mohideen and the P.H.Jamal Mohideen has also not obtained any permission from the department. Infact, a suit in OS.No.1171 of 2011 has been filed by the second respondent against the said P.H.Jamal Mohideen and K.N.Vadivelu Naicker for permanent injunction restraining them from alienating or assigning the leasehold right and executing any document in respect of the second respondent/temple property to the third party under the guise of sale of superstructure and the same is pending for disposal. The appellant had suppressed the fact of pendency of the suit, hence, the appellant approached this Court with unclean hands.
8. It is pertinent to extract Sections 34 and 34(B) of HR&CE Act for perusal, the learned single judge has also reproduced the same :
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 purposes 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 considered by the Commissioner.
Provided further that the Commissioner shall not accord such sanction without the previous approval of the Government.
34-B. Termination of lease of immovable property (1)The lease of immovable property belonging to, or given or endowed for the purpose of, any religious institution shall be liable to be terminated on the non-payment of the lease rent after giving a reasonable opportunity of being heard.
2)No proceeding to terminate the lease shall be initiated, if-
(i)the time for appeal or revision under sub Section (3) or sub section (5), as the case may be, of section 34-A has not expired; or
(ii)the order has been made the subject of such appeal or revision till the disposal of the matter.
3)On the termination of the lease under sub section (1), the property shall vest with the concerned religious institution free from all encumbrance and the Executive Officer, the Trustee or the Chairman of the Board of Trustees, as the case may be, of such religious institution shall take possession of the property including the building, superstructure and trees, if any.
9. Thus the person who obtained sale deed from the person who has no right or title cannot claim over any remedy from the Court to give direction to Registration authority to register the document and the same is not maintainable. As such, the learned single judge after considering all the facts and circumstances rightly dismissed the writ petition filed by the appellant/petitioner.
10. In view of the above facts and circumstances and the discussions held above, we are of the considered view, that there is no illegality or infirmity in the order passed by the learned single judge and the same does not warrant any interference by this Court.
11. In the result, the writ appeal stands dismissed. No costs.
(K.K. SASIDHARAN, J.) (P. VELMURUGAN, J.)
06.12.2017.
tsh
Speaking / Non-speaking
Index : Yes/No
To
1.The Joint Sub Registrar I,
Chennai North, (District Registrar Grade)
Dept. of Registration,
Chennai 600 001.
2.Arulmigu Kachaleeswarar Devasthanam,
Rep. by its Executive Officer,
No.77, Armenian Street,
Chennai-1.
K.K. SASIDHARAN, J.
and
P. VELMURUGAN, J.
tsh
WA.No.1273 of 2014
06.12.2017