IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED; 06.09.2011 CORAM; THE HONOURABLE MR.JUSTICE T.RAJA W.P.NOs.30923 to 30925 OF 2008 and M.P.Nos.1 to 1 of 2008 A.Ramamurthy son of Arumugha Mudaliar Tenant Arulmighu Selliamman Thirukoil River Palar Bank Vellore-Katpadi Road Vellore ..Petitioner in W.P.No.30923/2008 V.B.Jayaraman son of Balakrishnan Tenant Arulmighu Selliamman Thirukoil River Palar Bank Vellore-Katpadi Road Vellore ..Petitioner in W.P.No.30924/2008 S.V.S.Mani son of Varadaraj Mudaliar Tenant Arulmighu Selliamman Thirukoil River Palar Bank Vellore-Katpadi Road Vellore ..Petitioner in W.P.No.30925/2008 vs 1.The Commissioner Hindu Religious and Charitable Endowments Chennai 2.The Joint Commissioner Hindu Religious and Charitable Endowments Vellore https://hcservices.ecourts.gov.in/hcservices/ 3.The Assistant Commissioner Hindu Religious and Charitable Endowents Vellore 4.The Executive Officer-cum-Fit Person Arulmighu Selliamman Thirukoil River Palar Bank Vellore-Katpadi Road Vellore ..Respondents in W.P.Nos.30923 to 30925 of 2008 Writ Petition Nos.30923/2008, 30924/2008 and 30925/2005 are filed under Article 226 of the Constitution of India praying for issuance of a writ of Certiorari calling for the records of the case in the proceedings of the second respondent in Na.Ka.No.4717/2006/E1 under Section 78 of the Tamil Nadu Hindu Religious and Charitable Endowments Act 1959 and quash the impugned order dated 18.12.2008 passed by the second respondent in his proceedings Na.Ka.No.4717/2006/E1 as illegal and invalid. for petitioners in W.P.Nos.30923 to 30925/2008 :Mr.T.P.Prabakaran for respondents in W.P.Nos.30923 to 30925/2008 :Mr.R.Kannan Government Advocate (for R1 to R3) Mr.P.V.Arulphazam Nee (for R4) O R D E R These three writ petitions are filed separately by the petitioners against a common order passed by the 2nd respondent-Joint Commissioner, Hindu Religious and Charitable Endowments Department in Na.Ka.No.4717/2006/E1 dated 18.12.2008 under Section 78 of the Hindu Religious and Charitable Endowments Act 1959 and to quash the same as illegal and invalid. 2. All these three petitioners claim to be the tenants since they have been granted lease of an extent of 70 feet x 33 ¼ feet of the property comprised in S.Nos.10/1 and 11/1 belonging to Arulmighu Selliamman Temple situated at the bank of River Palar at Vellore coming under the control and management of the Tamil Nadu Hindu Religious and Charitable Endowments Department. 3. The learned counsel appearing for the petitioners submits that these three petitioners were granted lease of the abovesaid land just adjacent to the said temple Arulmighu Selliamman Thirukkoil. Therefore, they erected a workshop to carry on the trade of repairing https://hcservices.ecourts.gov.in/hcservices/ of lorries and trucks etc in the year 1981. From the date of lease of the land in question they have been making regular payment without default though the 4th respondent-Executive Officer, HR&CE Department is not in the habit of issuing any rental receipt. When the matter stood as above, in the month of June 2005, the Vellore District Administration and the Vellore Municipality decided to shift the bus station from its original location opposite to the Vellore Fort to the NAFED ground situated West of the Arulmighu Selliamman Temple in view of the necessity caused by the heavy traffic congestion, severe safety problems and inadequate amenities. Accordingly, the bus station was shifted to the NAFED ground situated right behind the temple. Since access to the said bus station was unavailable from the New Vellore-Chittoor Road, the temple authorities were requested in the year 2005 to provide access through the temple land. In turn, the temple authorities made a request to the petitioners. At the request of the temple and the District Administration as well as the Vellore Municipality, all these three writ petitioners (1) A.Ramamurthy (2) V.B.Jayaraman and (3)S.V.S.Mani agreed to vacate their respective workshops and allowed the same to be demolished to serve the public cause. In this process, the petitioners lost their only source of income and incurred huge loss on account of demolition of the work shop. In appreciation of the immediate gesture of help in serving the public cause, the District Collector of Vellore as well as the temple authorities have come forward to grant alternative sites to the petitioners admeasuring in 33 1/4 feet by 70 feet to each of the petitioners at the place adjacent to the entrance of the bus stand. But, in view of exigency of time, no lease deed was executed. However, a monthly rent was fixed at Rs.1,000/- by the 4th respondent in consultation with the first and the third respondents. 4. The learned counsel appearing for the petitioners has also made his submissions by immediately adverting the counter filed by the 4th respondent. In para 2 of the counter it has been admitted by the 4th respondent that the petitioners were provided with alternative site measuring about 70' x 33 ¼' in Survey Nos.10/1 and 11/1 belonging to the fourth respondent temple, at the intervention of the then Collector of Vellore District due to urgency of public purpose of formation of new bus stand for Vellore Town, the alternative site was provided to the petitioners tentatively by the then Executive Officer on condition that the petitioners should neither sublet nor alter their purpose of business of running motor mechanic shed and pay Rs.1,000/- till the higher official of HR & CE Department accept them as tenants, by fixing fair rent in accordance with the rules and regulations and accepting the petitioners as lessee of the new site. 5. The learned counsel further added that as the new bus stand has become functional, the petitioners could not carry on the old trade of repairing heavy motor vehicles. Since the approach to the bus stand was so congested and choked with human and vehicular https://hcservices.ecourts.gov.in/hcservices/ movement with atleast six policemen regulating the traffic round the clock, the petitioners could not function continuously for the reason that the vehicles’ owners could not bring the vehicles for repairs on account of additional traffic congestion which has made the entire area under heavy control of the traffic police. Further, a huge transformer put up by the Electricity Department also prevented free access to the petitioners' newly let out premises. Frequent intervention of the police on account of the traffic rules caused the petitioners’ workshop business completely dwindled day by day. In view of that all the three petitioners decided to start a new hotel catering vegetarian food. On that basis they started a hotel by informing the 2nd and 4th respondents regarding the change in business. They put up a hotel and after some time, the 4th respondent issued a legal notice dated 14.7.2005 under Section 176 of the Transfer of Property Act. The learned counsel further submitted that in the said notice dated 14.7.2005 having safely admitted the case of the petitioners that they are the tenants of Arulmighu Selliamman Koil on a monthly rent of Rs.1,000/- it goes without saying that the petitioners are not encroachers. Therefore, the petitioners issued a reply notice dated 22.7.2005 categorically refuting the contentions made in the notice given by the 4th respondent that they cannot deal with the petitioners as encroachers as they have become tenants on payment of monthly tenants. However, in the meanwhile, the 4th respondent filed a O.S.No.526/2005 on the file of the learned Additional District Munsif, Vellore categorically admitting the case of the petitioners that they are all tenants in the property of the temple. The petitioners also filed a written statement and the same was posted for trial. In these circumstances, during the pendency of the Civil Suit when the petitioners' legal status as tenants was accepted by the respondent, the petitioners met the first respondent-Commissioner, Hindu Religious and Charitable Endowments on 29.8.2005 and on 30.11.2005 and explained their position and in the course of discussion, the petitioners also agreed to pay the enhanced rent. Accepting the said proposal, the first respondent also referred the petitioners to the 3rd respondent- Assistant Commissioner, Hindu Religious and Charitable Endowments, Vellore and called for his remarks. The 3rd respondent also conducted enquiry by examining the petitioners and thereafter, he recommended the petitioner's proposal to the second respondent. But no final decision was taken on the said proposal. At this juncture, the Joint Commissioner of Vellore assumed charge. After some time, his activities have attracted a public outcry. Therefore, some people pasted posters implicating his wrong doing in all prominent places of the town. But, unfortunately, the Joint Commissioner, H.R.& C.E., Vellore suspected the petitioners were behind such publication of the posters that were struck by various other persons, called upon the petitioners to his office under the wrong impression that the petitioners were behind the publication of such notices and informed the petitioners to vacate the land in question, failing which, he threatened that the petitioners would be evicted despite https://hcservices.ecourts.gov.in/hcservices/ the Civil Suit was pending against them. Subsequently, police also enquired with regard to the publication and sticking of posters. As the petitioners explained to them that they had nothing to do with such publications, they were issued with a notice dated 30.6.2006 under section 78(2) of the HR&CE Act by initiating the eviction proceedings as though the petitioners are encroachers, particularly, when the matter is pending on the file of the learned Additional District Munsif, Vellore. Under those circumstances, the petitioners were compelled to file a W.P.Nos.22132, 22133 and 22134/2006 and the same were pending on the file of this Hon'ble Court. In WPMP No.1 of 2006 in the said writ petitions, interim stay was granted. However, this Hon'ble Court was pleased to vacate the order of stay subsequently permitting the second respondent to proceed with the enquiry under Section 78 of the HR&CE Act. Again the petitioners filed W.P.No.2868/2008 challenging the constitutional validity of the provisions of section 78 of the HR & CE Act. The said writ petition was also dismissed at the admission stage. Thereafter, once again a notice dated 16.9.2008 was issued. Accepting the said notice the petitioners attended the enquiry specifically disputing the allegations that they were not defaulted in making the monthly rent to the respondent. The second respondent finally posted the matter for enquiry on 16.12.2008 and thereafter, without properly conducting the enquiry passed the impugned order evicting the petitioners from the premises vide order dated 18.12.2008. The said order was sent by registered post on 18.12.2008 to the petitioners. Aggrieved by the said orders, the present writ petitions have been filed by the petitioners separately. 6. By narrating the above facts the learned counsel for the petitioners placed the following submissions: (i) When the 4th respondent-the Executive Officer-cum-Fit Person in his counter affidavit categorically admitted the status of the petitioners that they were all provided with an alternative site measuring about 70 feetx 33 ¼ feet in Survey Nos.10/1 and 11/1 belonging to the 4th respondent temple at the intervention of the then Collector of Vellore District due to urgency and public purpose of formation of new bus stand for Vellore Town, on condition that they should pay the rent of Rs.1,000/-, that goes without saying that the petitioners are statutory tenants and therefore, they cannot be construed as encroachers. (ii) Secondly, when the respondents issued a legal notice dated 14.7.2005 calling upon the petitioners under Section 106 of the Transfer of Property Act terminating the tenancy, once again they admitted the case of the petitioners that the petitioners are all statutory tenants. (iii)Thirdly, when the 4th respondent filed a suit O.S.No.526/2005 on the file of the learned Additional District Munsif, Vellore seeking permanent injunction restraining the https://hcservices.ecourts.gov.in/hcservices/ defendant from putting up any construction, whatsoever, over the suit property without the permission of the plaintiff and mandatory injunction directing the defendant to remove all the constructions put up on the suit property by him and in case of his failure to do so, to have the constructions removed through the process of court, it is not open to the respondents to call the petitioners as encroachers. (iv) By relying on the judgment of a Division Bench rendered in W.A.(MD)No.694/2009 dated 23.02.2010 (K.V.LAKSHMI AMMAL V. THE JOINT COMMISSIONER, HINDU RELIGIOUS AND CHARITABLE ENDOWMENT DEPARTMENT, MADURAI AND ANOTHER) it was heavily contended by the learned counsel appearing for the petitioners that enquiry as contemplated under section 78(4) of the HR&CE Act is that the authority should give the necessary opportunity to the petitioners concerned including that of cross-examination of witnesses, production of documents, summoning of witnesses and also availing of the help of lawyer. It is more or less a full- fledged enquiry of that of a Civil Court that the proceedings are covered by the Act. When there has been a full- fledged enquiry contemplated, without giving any full-fledged enquiry as per the order passed in W.A.(MD)694/2009 dated 23.2.2010, summarily rejecting the petitioners from the land in question that was given as an alternative by the 4th respondent is not only contrary to law, but also running contrary to the provisions of Section 78(4) of the HR&CE Act. 7.(i)In reply, the learned counsel appearing for the second respondent-Joint Commissioner, HR&CE submitted that it was false to state that the District Collector and the temple authority granted alternative site in view of giving way to the bus station and neither the Collector nor the temple authority has got any power to grant alternative site. (ii) Further, it was contended by the learned counsel appearing for the second respondent that the petitioners had never got any consent from the second respondent regarding change of business since the 4th respondent had no power to permit or sanction or allow to make any alteration in the area or other terms of a lease without getting the approval of the first respondent-Commissioner, HR&CE. On that basis, it was contended that the petitioners are in unlawful possession and therefore, the termination of tenancy is necessary and on that basis the 4th respondent issued notice to the petitioners calling upon them to vacate and hand over the vacant possession since they continued as encroachers. (iii) When the petitioners challenged the notice dated 30.6.2006 in W.P.Nos.22132, 22133 and 22134 of 2006, the M.P.Nos.1/2006 were dismissed by this Court on the ground that they were not maintainable as they challenged the show cause notices. Once again the petitioners filed another set of W.P.Nos.24557, 24558 https://hcservices.ecourts.gov.in/hcservices/ and 24559 of 2006 before this Court by challenging the validity of Section 78 of the HR&CE Act XXII of 1959 in respect of removal of unauthorised occupants. Those writ petitions were dismissed on 1.12.2009 in the light of the order passed by this Court in W.P.No.10447 of 1999 upholding the validity of the said provisions. After dismissal of the said writ petitions, the Executive Officer, HR&CE reported that a sum of Rs.6,03,468/- was remaining unpaid upto 31.8.2008 by the temple as arrears of rent for the use of temple property by the petitioner. After taking all these factors into consideration, the Joint Commissioner, HR&CE Department, Vellore had issued a further notice to all the three unauthorized occupants in his R.C.No.4717/2006/C1 dated 16.09.2008 to show cause as to why they should not be evicted from the temple property. Thereafter, the petitioners, also filed their counter dated 25.11.2008 before the Joint Commissioner, HR&CE Department, Vellore through their counsel. Thereafter, since the enquiry contemplated under Section 78(2) of the HR&CE Act XXII of 1959 is a summary eviction proceeding, the Joint Commissioner, HR&CE Department in exercise of his power under Section 78(4) of the Act, passed the impugned order dated 18.12.2008 evicting the petitioners from the temple property. (iv) The learned counsel appearing for the second respondent also submitted that the Joint Commissioner, HR&CE Department also supported the case of the 4th respondent that the HR&CE Act is a Special Act and that is only applicable for a religious institution under its purview. Hence, the provisions of the Special Act will prevail over in respect of the religious institutions, the provisions of the general law, namely, Transfer of Property Act and further he mentioned that the very purpose of the new provision under Section 78 of the HR&&CE Act is to reduce the burden of Civil Courts from trying several lakhs of cases of encroachments in the properties belong to religious institutions. On this basis, the learned counsel justified the impugned order passed under Section 78 of the H&&CE Act for removing the petitioners as encroachers. 8. The submissions made by the learned counsel appearing for the 4th respondent in support of the submission made by the learned counsel appearing for the second respondent taking the stand that the procedure contemplated under Section 78(2) is only a summary proceeding, is running contrary to the judgment of the Division Bench rendered in W.A.(MD) No.694/2009 dated 23.2.2010 in the case of K.V.LAKSHMIAMMAL V. THE JOINT COMMISSIONER, HR&CE DEPT., MADURAI AND ANOTHER. 9. First of all, let us be clear on the status of the petitioners whether they are encroachers or tenants. The answer lies in the counter filed by the 4th respondent-The Executive Officer-cum- Fit Person. The relevant portion of the counter filed by the 4th respondent is extracted hereunder: https://hcservices.ecourts.gov.in/hcservices/ "2. I submit that when the administration of A/M Selliamman Thirukoil, Vellore came under the control of Hindu Religious and Charitable Endowments Department in the year on and from 15.09.2004, the petitioner herein is in occupation of the land belonging to the said temple on the banks of river Palar, and wherein he was running a workshop for repairing vehicles etc., that in the year 2005, when the said land was acquired by Govt. of Tamil Nadu for entrance of the new bus stand of Vellore, the petitioner herein was provided with an alternative site measuring about 70'X33 ¼' in Survey No.10/1 and 11/1 belonging to the fourth respondent temple, at the intervention of the then Collector of Vellore District due to urgency of public purpose of formation of new bus stand for Vellore Town, that the alternative site was provided to the petitioner tentatively, by the then executive officer, on condition the petitioner should neither sublet nor alter their purpose of business of running motor mechanic shed and pay Rs.1,000/- till the higher official of HR & CE Department accept them as tenant, fixing fair rent in accordance with the rules and regulation of the department and accepting the petitioner as lessee of the new site," A reading of the counter goes to show that the petitioners were inducted as tenants in the land in question admeasuring 70'x33 ¼' in Survey Nos.10/1 and 11/1 belonging to the 4th respondent at the intervention of the then Collector of Vellore District. Therefore, once the petitioners’ status as tenants is admitted by the 4th respondent, then they cannot proceed with, as though, they are the encroachers. Subsequently, when notices were issued calling upon the petitioners to clear their arrears of rent, the petitioners admittedly paid their rent clearing of the arrears and it is also admitted by the parties that till now there is no outstanding arrears pending against the petitioners. 10. The admission of the 4th respondent that they should be evicted by way of summary proceedings in pursuant to the impugned notice dated 16.9.2008 naming them as unauthorised occupants, also cannot be legally maintainable in the light of the judgment of the Division Bench of this Court in W.A.(MD) No.694/2009 dated 23.2.2010 in the case of K.V.LAKSHMIAMMAL V. THE JOINT COMMISSIONER, HR&CE DEPT., MADURAI AND ANOTHER. Paragraphs 13, 14, 15 and 16 of the said judgment are extracted hereunder: "13.On a reading of the rules, it is very clear that the enquiry as contemplated under Section 78(4) is that the authority should give the necessary opportunity to the petitioner concerned including that of cross-examination of witnesses, production of documents, summoning of witnesses and also availing of the help of lawyer. It is more or less, a full-fledged enquiry of that of a Civil Court, when the https://hcservices.ecourts.gov.in/hcservices/ proceedings are governed by the Act. The apprehension of the petitioner at this point of time even at the show cause notice stage itself is totally unacceptable. The petitioner knowing fully well that the remedy is given under the Act itself, has unnecessarily chosen to file writ petition to drag on the proceedings. 14.In fact, even in the writ petition, the learned Single Judge has very specifically stated that the first respondent is directed to complete the proceedings initiated by him, by way of the impugned notice, dated 19.01.2009, under Section 78(2) of the Hindu Religious and Charitable Endowments Act, 1959, after giving an opportunity of hearing the petitioner, the second respondent temple as well as to the other parties concerned. It is not known why the appellant has chosen to file this appeal itself. The only reason being to squat on the property, she filed writ. If really she has the right over the property, it is always open to the petitioner to establish her right in respect of the property, in the manner known to law in the enquiry before the competent authority, wherein she would have an ample opportunity to produce documents, produce evidence and to submit the same even through a legal counsel. Under those circumstances, as rightly pointed out by the learned Single Judge, the writ petition is not at all maintainable. 15.The learned counsel for the appellant relied upon a decision report in 1995 Supp.(2)Supreme Court Cases 290 (State of Rajasthan v. Padmavati Devi (Smt)Dead by LRs and others) for the proposition that if there is a bona fide dispute, summary procedure should not be imposed for evicting even from the public premises, eviction from the unauthorised occupation. 16.As stated supra since the Act contemplates specific procedure, whereby it is not a summary in nature it is an enquiry to be conducted "as far as practicable" like a suit, it cannot be treated as a summary procedure." A reading of the abovementioned four paragraphs of the judgment deals with section 78(4) of the HR&CE, 1959 holding that enquiry as contemplated under Section 78(4) is not summary in nature and it is an enquiry to be conducted as far as practicable like a suit. The impugned order passed by the respondent, namely, the 2nd and 4th respondents that the petitioners have been dealt with under an enquiry by way of summary procedure, is required to be interfered with. As held earlier that the petitioners even as per the admission of the 4th respondent in their counter have become statutory tenants and therefore, they should be dealtwith by a full-fledged enquiry under Section 78(4) of the HR&CE Act by giving reasonable opportunities including that of cross-examination of witnesses, production of documents, summoning of witnesses and also availing of https://hcservices.ecourts.gov.in/hcservices/ the help of lawyer. It is more or less, a full-fledged enquiry of that of a Civil Court, when the proceedings are governed by the Act. 11. In the decision rendered in W.P.Nos.10447 to 14377, 14388 to 14391, 15358, 15359, 983 of 1999 dated 28.10.2008, this Court has held that the Joint Commissioner of Hindu Religious and Charitable Endowments, who is the competent authority, must have information whether a person is an encroacher or a tenant so as to give him a procedural right of hearing so that he could have a reason to believe that a person has encroached upon the property of the religious institutions. Only after reaching the conclusion that a person is an encroacher in terms of section 78(2), he could decide whether a person should be given an enquiry which is summary in nature or a full-fledged enquiry like the suit. But, in the case on hand, the very admission of the respondents that the petitioners were given the land in question by way of lease makes the case of the petitioners that they became lawful tenants. Therefore, they cannot be dealt with as encroachers by way of summary procedure. 12. It is the case of the respondents that they have filed a Civil Suit in O.S.No.526/2005 on the file of the learned Additional District Munsif, Vellore categorically admitting the status of the petitioners as tenants in the property of the temple. The suit is filed and the matter is posted for trial, but the said suit, of course, in view of judgment of this Court in B.SHAJI V.