IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 28.10.2008 C O R A M : THE HONOURABLE MR. JUSTICE K. CHANDRU W.P.Nos.10447, 14377 to 14381, 14388 to 14391, 15358, 15359, 983 of 1999 Adivaram Varthagargal Sangam (Regd.S.No.39/92) Palani, rep.by its Secretary, Era.Vetrivel Chezhiyan, 60, Sannadhi Street, Adivaram, Palani Post, Dindigul District. .. Petitioner in WP.10447/1999 Rajendra Mudaliar .. Petitioner in WP.14377/1999 Peter Alphonse .. Petitioner in WP.14378/1999 Dr.M.Balamuralikrishna .. Petitioner in WP.14379/1999 T.C.A.Srinivasan .. Petitioner in WP.14380/1999 Charumathi Purushotham .. Petitioner in WP.14381/1999 K.Kuppuswamy .. Petitioner in WP.14388/1999 Sulochana Sadasivan .. Petitioner in WP.14389/1999 Sitha Govindan .. Petitioner in WP.14390/1999 M.L.Gupta .. Petitioner in WP.14391/1999 Jitendra Sharma ..Petitioner in WP.Nos.15358 & 15359 of 1999 R.Narayanan .. Petitioner in WP.983 of 1999 -vs- 1. The State of Tamil Nadu rep. by its Secretary, CT & RE Department, Fort St.George, Chennai-9. https://hcservices.ecourts.gov.in/hcservices/ 2. The Joint Commissioner, HR & CE Department, Madurai. 3. The Assistant Commissioner, HR & CE Department, Madurai. 4. The Executive Officer-cum-Joint Commissioner, rep. Arulmigu Dhandhayuthapani Thirukoil, Adivaram, Palani. ..Respondents in WP.10447/1999 1. The Commissioner, T.N.HR & CE Administration Department, Chennai-34. 2. The Joint Commissioner, T.N. HR & CE Administration Department, Chennai-34. 3. The Assistant Commissioner, T.N.HR & CE Administration Department, Chennai-34. 4. The Executive Officer, Madhavaperumal Temple, Mylapore, Chennai-4. 5. The Inspector, T.N.Hindu Religious and Charitable Endowments, Administration Dept, Chennai-34. 6. State of Tamil Nadu, rep.by Secretary, Commercial Taxes and Religious Endowments, Secretariat, Chennai-9. 7. Secretary to Government of T.N. Law Department, Secretariat, Chennai-9. .. Respondents in WPs.14388 to 14391 of 1999, 14377 to 14381 15358 & 15359 of 1999 1. The State of Tamil Nadu rep.by Secretary, HR & CE Department, Fort St.George, Chennai-9. https://hcservices.ecourts.gov.in/hcservices/ 2. The Commissioner, HR & CE Department, Nungambakkam High Road, Chennai-600 034. 3. The Joint Commissioner, HR & CE Department, Myladuthurai. 4. Arulmighu Padaleeswarar Devasthanam, rep.by its Executive Officer, Cuddalore-2. ... Respondents in WP.983/1999 PRAYER in WP.10447 of 1999 : Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of declaration declaring that section 79(3) of the Tamil Nadu HR & CE Act is repugnant to Section 79(2) of the Act and also unconstitutional and also to declare sub-section (3) of Section 78,which has taken away the grant of relief of injunction by any court, is also unconstitutional so far as the petitioner Sangam is concerned. Original Prayer in WP.Nos.14388 to 14391, 14377 to 14381, 15358, 15359 and 983 of 1999 : Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of declaration declaring the provisions contained under Sections 78 and 109 of the Tamil Nadu Hindu Religious & Charitable Endowments Act 22 of 1959 as amended by Act 39 of 1996 as ultra vires the Constitution of India and null and void in so far as the petitioner is concerned. Amended Prayer in WP.Nos.15359, 14388, 14389, 15358, 14380, 14377, 14391 and 14379 of 1999 : Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of declaration declaring the provisions contained under Sections 78 and 109 of the Tamil Nadu Hindu Religious & Charitable Endowments Act 22 of 1959 as amended by Act 39 of 1996 as well as amended by Act 28 of 2003 as ultra vires the Constitution of India and null and void in so far as the petitioner is concerned. (Prayer amended as per Court order dated 22.10.2008 in W.P.M.P.Nos.1561 to 1568/08 in W.P.15359, 14388, 14389, 15358, 14380, 14377, 14391 and 14379/99) W.P.983/99:- Petition filed u/ Art 226 of the Constitution of India praying to issue a writ of declaration declaring the provisions uner Sec.78 of the Tamilnadu Hindu Religious and Charitable Endowment Act 1996 as un constitutional and invalid in so far as the petitioner is concerned. https://hcservices.ecourts.gov.in/hcservices/ For petitioner in WP.10447 of 1999 :: Mr.V.Raghupathy for Mr.K.N.Pandian For petitioner in WP.14388 to 14391/1999 & WP.14377 to 14381/1999 & WP.15358 & 15359/1999 :: Mr.T.V.Ramanujam, SC for Mr.R.Kannan For petitioner in WP.983 of 1999 :: Mrs.Chitra Sampath For respondents in WP.10447 of 1999 :: Mr.S.Ramasamy, AAG assisted by Mr.T.Chandrasekaran, Spl.G.P. For HR & CE for RR1 to 3 Mr.M.Sriram for R4 For respondents in WP.14388 to 14391/1999 & WP.14377 to 14381/1999 & WP.15358 & 15359/1999 :: Mr.S.Ramasamy, AAG assisted by Mr.T.Chandrasekaran, Spl.G.P. For HR & CE for RR1 to 3, 5 & 6 Mrs.K.M.Nalinishree for R4 Mr.A.Arumugam, Spl.G.P. For R7 For respondents in WP.983 of 1999 :: Mr.S.Ramasamy, AAG assisted by Mr.T.Chandrasekaran, Spl.G.P. For HR & CE for RR1 to 3 Mr.K.Chandrasekaran- R4 O R D E R These writ petitions challenge the constitutional validity of Sections 78, 79(3) and 109 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 (Act 22 of 1959) (for short, 'the HR & CE Act') as amended by Tamil Nadu Act 39 of 1996 as well as by Act 28 of 2003 as ultra vires the Constitution. For the sake of convenience, sections 78, 79 and 109 of the HR & CE Act, as amended, may be extracted below:- https://hcservices.ecourts.gov.in/hcservices/ ''Section 78 : Encroachment by persons on land or building belonging to charitable or religious institution or endowment and the eviction of encroachers.- (1) Where the Assistant Commissioner having jurisdiction either suo motu or upon a complaint made by the trustee has reason to believe that any person has encroached upon (hereinafter in this section referred to as ''encroacher”) any land, building, tank, well, spring or water-course or any space wherever situation belonging to the religious institution or endowment (hereinafter referred to as ''the property”), he shall report the fact together with relevant particulars to the Joint Commissioner having jurisdiction over the division in which the religious institution or endowment is situated. Explanation.- For the purpose of this section, the expression ''encroacher” shall mean any person who unauthorisedly occupies any tank, well, spring or water- course or any property and to include- (a) any person who is in occupation of property without the approval of the competent authority (sanctioning lease or mortgage or licence) and (b) any person who continues to remain in the property after the expiry or termination or cancellation of the lease, mortgage or licence granted to him. (2) Where, on a perusal of the report received by him under sub-section (1), the Joint Commissioner finds that there is a prima facie case of encroachment, he shall cause to be served upon the encroacher a notice specifying the particulars of the encroachment and calling on him to show cause before a certain date why an order requiring him to remove the encroachment before the date specified on the notice should not be made. A copy of the notice shall also be sent to the trustees of the religious institution or endowment concerned. (3) The notice referred to in sub-section (2) shall be served in such manner as may be prescribed. (4) Where after considering the objections, if any, of the encroacher received during the period specified in the notice referred to in sub-section (2) and after conducting such inquiry as may be prescribed, the Joint Commissioner is satisfied that there has been an encroachment, he may by order and for reasons to be recorded, require the encroacher to remove the encroachment and deliver possession of the property (land or building or space) encroached upon to the trustee before the date specified in such order. (5) During the pendency of the proceeding, the Joint Commissioner shall order the encroacher to deposit https://hcservices.ecourts.gov.in/hcservices/ such amount as may be specified by him in consideration of the use and occupation of the properties in question in the manner prescribed. 79. Mode of eviction on failure of removal of the encroachment as directed by the Joint Commissioner.- Where within the period specified in the order under sub-section (4) of section 78, the encroacher has not removed the encroachment and has not vacated the property, the Assistant Commissioner having jurisdiction over the division may remove the encroachment and obtain possession of the property encroached upon, taking such police assistance as may be necessary. Any Police Officer whose help is required for this purpose shall render necessary help to the Assistant Commissioner. (2) Nothing in sub-section (1) shall prevent any person aggrieved by the order of the Joint Commissioner under sub-section (4) of section 78 from instituting a suit in a Court to establish that the religious institution or endowment has no title to the property. Provided that no Civil Court shall take cognizance of any suit instituted after six months from the date of receipt of the order under sub-section (4) of section 78. Provided further that no such suit shall be instituted by a person who is let into possession of the property or who is a lessee, licensee or mortgagee, of the religious institution or endowment. (3) No injunction shall be granted by any Court in respect of any proceeding taken or about to be taken by the Joint Commissioner under section 78. 79-A. Encroachment by group of persons on land belonging to charitable religious institutions and their eviction.- (1) Where the Joint Commissioner knows or has reason to believe that a group or groups of persons without any entitlement and with the common object of occupying any land, which is the property belonging to a charitable or religious institution or endowment, are occupying or have occupied any such land and if such group or groups of persons have not vacated the land on demand by the Joint Commissioner or any officer authorised by him in this behalf, the Joint Commissioner shall, notwithstanding anything contained in this Act, order after giving due notice, the immediate eviction of the encroachers from the land and the taking of possession of the land and thereupon, it shall be lawful for any officer authorised by the Joint Commissioner in this behalf to evict the encroachers from the land by https://hcservices.ecourts.gov.in/hcservices/ force, taking such police assistance as may be necessary and take possession of the land. Any police officer whose help is required for this purpose shall be bound to render the necessary help to the Joint Commissioner or to such officer authorised by him. (2) Where, in any proceedings taken under this section, or in consequence of anything done under this section, a question arises as to whether any land is the property of the charitable or religious institution or endowment, such land shall be presumed to be the property of the charitable or religious institution or endowment until the contrary is proved by the encroacher. (3) Any order of eviction passed by the Joint Commissioner under sub-section (1) shall be final and shall not be questioned in any Court. 79-B. Penalty for offences in connection with encroachment.- (1) No person, on or after the commencement of the Tamil Nadu Hindu Religious and Charitable Endowments (Amendment) Act, 1996 (Tamil Nadu Act 39 of 1996) shall occupy, otherwise than by lawful possession, any property belonging to a charitable or religious institution or endowment. (2) Whoever contravenes the provisions of sub- section (1), shall, on conviction, be punished with imprisonment for a term which shall not be less than three months but which may extend to five years and with fine which may extend to five thousand rupees. (3) No Court shall take cognizance of an offence punishable under sub-section (2) except on the complaint in writing of the Commissioner. (4) No offence punishable under sub-section (2) shall be inquired into or tried by any Court inferior to that of a Judicial Magistrate of the First-Class. 79-C. Recovery of moneys due to religious institution, as arrears of land revenue.- Without prejudice to any other mode of recovery which is being taken or may be taken under this Act or any other law for the time being in force, any moneys due to a religious institution may be recovered as if it were an arrear of land revenue and for the purposes of such recovery, the Commissioner of the Hindu Religious and Charitable Endowments (Administration) Department or any officer not below the rank of Deputy Commissioner authorised by the Commissioner in this behalf, shall have the powers of a Collector under the Tamil Nadu Revenue Recovery Act, 1864 (Tamil Nadu Act II of 1864). https://hcservices.ecourts.gov.in/hcservices/ 109. Central Act 36 of 1963 not to apply for recovery of properties of religious institution.- Nothing contained in the Limitation Act, 1963 (Central Act 36 of 1963) shall apply to any suit for possession of immovable property belonging to any religious institution or for possession of any interest in such property. 2. These three provisions provide for a mechanism for the religious institutions as defined under Section 6 (18) of the HR & CE Act to secure their properties from the encroachers and also for a speedy restoration of the properties without being driven to the forum of civil courts. 3. Before going into the merits of the stand taken by the parties, it is necessary to recapitulate two decisions of the Supreme Court which dealt with the need for the temple properties to be safeguarded. The Supreme Court in its decision in A.A.Gopalkrishnan Vs. Cochin Devaswom Board and others reported in 2007 (7) SCC 482, cautioned about the misuse of temple properties and the need to protect such properties. Speaking for the Court K.G.Balakrishnan, C.J., in paragraph.10 of the said judgment, it is observed as follows: "10. The properties of deities, temples and Devaswom Boards, require to be protected and safeguarded by their trustees / archakas / shebaits / employees. Instances are many where persons entrusted with the duty of managing and safeguarding the properties of temples, deities and Devaswom Boards have usurped and misappropriated such properties by setting up false claims of ownership or tenancy, or adverse possession. This is possible only with the passive or active collusion of the authorities concerned. Such acts of "fences eating the crops" should be dealt with sternly. The Government, members or trustees of boards/trusts and devotees should be vigilant to prevent any such usurpation or encroachment. It is also the duty of courts to protect and safeguard the properties of religious and charitable institutions from wrongful claims or misappropriation." (Emphasis added) 4. The Supreme Court in its decision reported in 2006(1) SCC 287, Joint Commissioner, Hindu Religious and Charitable Endowments, Admn. Department Vs. Jayaraman and others restored the land to the temple which was sold by orders of the Court by filing application under Section 34 of the Indian Trusts Act. The sale and the subsequent patta obtained were held to be invalid. While holding so, the Supreme Court forewarned attempts by certain people to corner the https://hcservices.ecourts.gov.in/hcservices/ temple properties and therefore, the following passage found in para:12, may be reproduced below:- "12. It is seen that there has been a clear attempt by the claimants to overreach the deities and the authorities under the HR & CE Act, while managing the properties dedicated for the purposes of the temple, properties granted and managed by them in their capacities as poojaris, for the maintenance of the temples. The attempt has to be deprecated." 5. These writ petitions ere admitted as early as in the year 1999. Pending the writ petitions, in many cases, stay of dispossession was given by this Court. In some cases, interim orders were refused. In W.P.No.10477 of 1999, it was directed that the respondents can evict the petitioner after adopting the procedure contemplated under the Act. 6. The ground of attack on the amendments made was that a class of persons have been carved out by the legislation, who are not allowed to avail the remedies by way of civil suit. The procedure provided under the Act is arbitrary and without guidelines. It is also stated that the executive authority has been given wide power, which is likely to be misused. While the land owners have been allowed to move the Civil Court, the other persons such as persons whose tenancy has not been renewed or who made developments in the properties on hiring the land belonging to the temple have been denied any relief under the Act. At the whims and fancies of the temple authorities or the Executive Officers, persons can be thrown out of possession. Against the order of the Joint Commissioner ordering eviction, there is no further appeal. 7. Further, the removal of limitation under section 109 of the HR & CE Act is also arbitrary. The Act also interferes with the rights conferred by the Transfer of Property Act. It is also further contended that no fair procedure has been evolved for evicting the persons from the properties. 8. The petitioners in W.P.Nos.14377 to 14381 and 14388 to 14391 of 1999 have also moved this Court by filing writ petitions in W.P.Nos.13873 to 13881, 15357 and 15360 of 1999 and sought for quashing the order issued under section 78(2) of the HR & CE Act by the Joint Commissioner, HR & CE Department, dated 16.9.1998. The grounds taken in those writ petitions were that they were the owners of the property and the notices issued were without jurisdiction. It was also stated that the temple in question, namely, Arulmighu Madava Perumal Temple, Mylapore had already filed a suit in C.S.No.796 of 1998 against those petitioners and since the petitioners were in possession, they cannot be called as encroachers. Therefore, it was https://hcservices.ecourts.gov.in/hcservices/ directed by this Court that as the temple had initiated action against the petitioners in a Civil Suit after establishing their title and ownership, they can always evict the petitioners as encroachers. The common order dated 12.12.2006 passed by this court was taken on appeal by the Executive Officer of the Temple in W.A.Nos.487 to 490 and 511 to 517 of 2007. This Court confirmed the order of the learned Judge and dismissed the writ appeals. It is now stated that the suit in C.S.No.796 of 1998 is pending trial before the Civil Court. 9. Mr.T.V.Ramanujam, learned Senior Counsel submitted that he is not appearing for any encroachers. But, however, in case of persons who are lessees, licencees or mortgagees, whose lease, licence are not renewed, have been left high and dry by the aforesaid Act. But in a notice given under section 106 of the Transfer of Property Act, a person holding over cannot be called as an encroacher. The sweeping power under section 109 excluding the Limitation Act, 1963, will result in all old issues raked up and it cannot be based on sound public policy. 10. Mrs.Chitra Sampath, learned counsel representing some petitioners submitted that the power granted under section 78 is an arbitrary power. The authority cannot pass any orders independently in view of the definition of ''encroacher" found in section 78 of the said Act. The procedure contemplated under section 78(1) and 78(4) is an arbitrary procedure. Further, the prevention of moving the Civil Court under section 79(2) with a total bar under section 79(3) is illegal and it is not a fair procedure extended to tenants. Though she wanted to argue on the merits of the notice issued to her client in W.P.No.983 of 1999, the counsel was told that as she was challenging only the show-cause notice and if any final orders are passed pursuant to the show-cause notice, her client can renew the prayer. 11. Mr.V.Raghupahy, learned counsel for the petitioner in W.P.No.10447 of 1999 submitted that the prohibition contained under Section 79(3) was totally invalid and the power of the Civil Court in grant of injunction cannot be barred. 12. Per contra, Mr.S.Ramasamy, learned Additional Advocate General submitted that the temple properties were exempted from the Tamil Nadu Buildings (Lease and Rent Control) Act. Therefore, for evicting the squatters over the temple property, the temple authorities were made to move the Civil Court, which is not only time consuming and many a times, the very purpose of moving the Civil Court is frustrated by the dilatory tactics adopted by persons who are squatting over temple properties. The legislature by the amendment, while protected the interest of genuine land owners, made classification of encroachers and other persons who are not https://hcservices.ecourts.gov.in/hcservices/ encroachers but are ex-lessees, licencees or mortgagees and dealt with them separately. While the encroachers are dealt under section 78, by section 79(2), the land owners are given power to move the Civil Court for establishing their title to the property. Section 79 (3) only prohibits the Civil Court from granting injunction if any proceeding is taken or about to be taken by the Joint Commissioner under section 78. With reference to the persons who are already having lease or licence and had developed the properties, section 82 provides for compensation on account of such persons are made to lose their possession. Section 83 provides for a Tribunal, which has been established for the purpose of passing an Award fixing the compensation. 13. Mr.K.Chandrasekaran, learned counsel submitted that the exclusion of Limitation Act cannot be found fault with as similar provision is found in the Limitation Act, 1963 and particularly referred to Section 10 of the said Act, which reads as follows:- 10. Suits against trustees and their representatives.- Notwithstanding anything contained in the foregoing provisions of this Act, no suit against a person in whom property has become vested in trust for any specific purpose, or against his legal representatives or assigns (not being assigns for valuable consideration), for the purpose of following in his or their hands such property, or the proceeds thereof, or for an account of such property or proceeds, shall be barred by any length of time. Explanation. - For the purposes of this section any property comprised in a Hindu, Muslim or Buddhist religious or charitable endowment shall be deemed to be property vested in trust for a specific purpose and the manager of the property shall be deemed to be the trustee thereof." 14. He also submitted that section 106 of the Transfer of Property Act does not create any interest in the property. It is only a clause relating to termination of lease and after termination of the lease if any suit is initiated by the landlord, the termination cannot be questioned by the ex-lessee and they will have no real defence before the Civil Court. The petitioners are interested only in driving the parties to the Civil Court. Though such persons will not get the relief from the Civil Court but wanted to enjoy the benefit of interim order and delay the disposal of the suits. Only to rectify such an hardship by the religious institutions, the present amendments have been brought into force. He also drew the attention of this Court to the provisions of the Tamil Nadu Land Encroachment Act, 1905 and the Public Premises (Eviction of Unauthorised Occupants) Act, 1971, wherein also, only procedure has been set out for evicting the encroachers. The present amendment under Section 79 is only similar to such provisions and, hence, no exception can be taken to these provisions. https://hcservices.ecourts.gov.in/hcservices/ 15. Mrs.Chitra Sampath, learned counsel for the petitioner relied upon the judgment of the Supreme Court in The State of Punjab and another -vs- Khan Chand (AIR 1974 SC 543) and relied on the passages found in paragraphs 5, 6 and 7, which may be usefully extracted below:- ''5. Mr.Mahajan on behalf of the appellants has assailed the judgment of the High Court and has argued that the provisions of Section 2 of the Act do not contravene Article 14 of the Constitution. This contention, in our opinion, is not well founded. The relevant provisions of the Act have been reproduced above and from a perusal thereof we find that the Act confers uncontrolled power on the State Government or the officers authorised by it to requisition any movable property. The only property excluded from the purview of the Act is one used for the purpose of religious worship or an aircraft or anything forming part of an aircraft or connected with the operation, repair or maintenance of aircraft. No guidelines