IN THE HIGH COURT OF JUDICATURE AT MADRAS Date:- 22.12.2008 Coram THE HONOURABLE MR. JUSTICE K. CHANDRU W.P. No.4371 of 2000 Deity of Koothandakoil Pethadhampatti village, rep. by its Trustee K.V. Kuppusamy ...Petitioner ..Vs.. 1. The Collector of Dharmapuri District, Dharmapuri. 2. The Commissioner, Hindu Religious & Charitable Endowment Department, Chennai – 600 034. ...Respondents Petition under Article 226 of The Constitution of India, praying to issue a writ of certiorari, to call for the records relating to the Notification Na.Ka.No.81359/97/Ko.8 dated 1.1.1999 on the file of the first respondent and published in Dharmapuri District Gazette dated 8.1.1999 and quash the same. For Petitioner : Mr. S. Doraisamy For Respondents : Ms. Sneka, Govt. Advocate for R1 Mr. T. Chandrasekar for R2 O R D E R This writ petition is filed by the deity of Koothandakoil, represented by its Trustee, seeking to challenge the acquisition of the temple land by virtue of Notification issued under Section 4(1) of the Tamil Nadu Acquisition of Land for Harijan Welfare Schemes Act 31 of 1978 (hereinafter referred to as "the Act") by the first respondent-District Collector. 2. The said land was sought to be acquired for the purpose of providing house-sites for Adi Dravidars of Palayam village. The https://hcservices.ecourts.gov.in/hcservices/ land in survey No.47-4 stands in the name of Arulmigu Koothanda Koil. Even the Notification impugned shows the name of the temple as Koothandakoil in survey No.47-4 and survey No.50-2 as Mariamman koil. It is claimed by the trustee that he was appointed as trustee by the Assistant Commissioner, H.R. and C.E., Harur by an order dated 25.5.1998 and he has been continuing in the said post. No notice was given for taking over the lands in survey Nos.147/1 and 147/3-B in Pethadhampatti village, which belongs to the temple. 3. Notice of motion was ordered on 14.3.2000 and subsequently, the writ petition was admitted on 5.12.2001 and an interim order was also granted on the same day, which was also made absolute on 9.9.2003. 4. In the counter affidavit filed by the first respondent dated nil.December, 2001, in paragraph 2, the locus standi of the petitioner has been questioned and in paragraphs 3 and 4, it is averred as follows:- " 3. This respondent further states that though the petitioner has contended that there is no other income to the said temple except from the lands under acquisition, the assistant commissioner Hindu Religious and Charitable Endowment Department to whom notice was issued at the time of enquiry did not object the acquisition proceedings and he has also accepted the compensation for the lands acquired. As such the petitioner's claim has no weight at all as the Assistant Commissioner accepted the compensation. 4. The contention that the he is trustee of the temple and he was not informed of the acquisition of lands is not tenable as the lands in S.No.147/1 and 147/3B which stood registered in the name of Koothandavar koil Tharmakartha and this temple is under the management of Hindu Religious and Charitable Endowment Department. As such the Assistant Commissioner Hindu Religious and Charitable Endowment Department was given due notice under the Land Acquisition proceedings before finalising the acquisition proceedings." 5. In the light of the stand taken by the first respondent, the original files were called for to verify as to whether any notice was given to the Trustee or to the temple. On direction by this Court, the original file was produced by Ms. Sneha, learned Government Advocate. On a perusal of the said file, https://hcservices.ecourts.gov.in/hcservices/ notice under Section 4(2) of the Act was not issued either to the temple or to the trustee of the temple. On the contrary, it was sent to the Assistant Commissioner of H.R. and C.E., Dharmapuri and the same was received by the Office Assistant of that office. The file also shows a query was made by the Commissioner of H.R. and C.E. department in this regard. However, there was no reply. 6. In any event, the counter affidavit filed by the second respondent is not supported by the records produced by the learned Government Advocate. There is no notice given to the temple trustees as the temple alone can be the necessary and proper party in such land acquisition. In the enquiry conducted by the Special Tahsildar, he merely records that no person from the Assistant Commissioner's office had appeared. Therefore, it is presumed that there was no objection for the said acquisition. Though the records states that no person from the Assistant Commissioner's office had appeared, the counter affidavit proceeded as if there is no objection from the Department. 7. When the land belongs to the temple, the notice must go to the trustees, who are lawfully managing the temple. On the contrary, as correctly stated by the learned counsel for the petitioner, the temple is kept in dark on the acquisition and file also reflects the same. In this context, Section 107 of the H.R. and C.E. Act clearly protects the rights of the temple in terms of the guarantee given in Article 25(2) of the Constitution of India. Therefore, at no point of time, for the acquisition of land either under the Central Act or under the State Act, the Authorities can ignore the temple trustees, who are suppose to protect the interest of the temple. 8. The Court is satisfied that the respondents have not followed mandatory provisions under Section 4(2) of the Act by not issuing notice to the real land owner. Even an attempt to serve notice on the Assistant Commissioner is only a misnomer. It is only acknowledged by the office assistant without the office seal of the Assistant Commissioner. Hence the proceedings issued by the first respondent under Section 4(1) of the Act and consequential proceedings necessarily must held to be illegal and invalid. Accordingly, the writ petition stands allowed and the impugned Notification stands quashed. No costs. sd/- Asst.Registrar /true copy/ Sub Asst.Registrar ssa. https://hcservices.ecourts.gov.in/hcservices/ To 1. The Collector of Dharmapuri District, Dharmapuri. 2. The Commissioner, Hindu Religious & Charitable Endowment Department, Chennai – 600 034. + 1 c.c. to M/s. S. Doraisamy, Advocate. S.R.No.71649. + 1 c.c. to The Government Pleader. S.R.No.72023. W.P.No.4371 of 2000 MG (CO) GSK 09.01.2009. https://hcservices.ecourts.gov.in/hcservices/