IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 09.08.2010 Coram: THE HONOURABLE Ms. JUSTICE K.B.K.VASUKI W.P. Nos.26843 to 26846 of 2009 and M.P. Nos.1+1+2+2+2+3+3 of 2009 & 1+1 f 2010 N.S.Ramachandra Iyer .. Petitioner in WP.26843/09 S.Usman .. Petitioner in WP.26844/09 B.Jaffarullah Khan .. Petitioner in WP.26845/09 Mani @ Kasi Viswanathan .. Petitioner in WP.26846/09 Vs. 1.The Commissioner, Hindu Religious and Charitable, Endowments Administrative Department, Nungambakkam, Chennai. 2.The Joint Commissioner, Hindu Religious and Charitable, Endowments Administrative Department, Kottai Mariannam Koil Complex, Salem-1. 3.The Executive Officer, Arulmigu Thalaivetti Muniappan and Thirumalai Amman Thirukoil, Fort, Salem-1 .. Respondents in all WPs. Prayer in WP.26843/2009 : Writ Petition is filed under Article 226 of the Constitution of India, praying for the issuance of Writ of Certiorarified mandamus to call for the entire records relating to the order passed by the 1st respondent in his proceedings No.RP.18 of 2007/D.2, dated 07.12.2009 and to quash the same and to consequently direct the respondents to hand over the vacant site situated at No.14, Navalar Nedunchezhiyan Salai, Fort Salem-1. Prayer in other WPs : Writ Petitions are filed under Article 226 of the Constitution of India, praying for the issuance of Writ of Certiorarified mandamus to call for the entire records relating to the order passed by the 1st respondent in his proceedings No.RP.20 of 2007/D.2; RP.19 of 2007/D.2; RP.No.21 of 2007/D2 respectively dated 07.12.2009 and quash the same. https://hcservices.ecourts.gov.in/hcservices/ For Petitioner in all WPs : Mr.C.Prakasam For Respondents : Mr.T.Chandrasekaran Spl. G.P. for HR&CE. COMMON ORDER All the four writ petitions 26843 to 26846 of 2009 are filed for issuing writ of Certiorarified mandamus to call for the records relating to the common order passed by the first respondent on 07.12.2009 in revision petitions No.18, 19, 20 and 21/2007-D2 and to quash the same and to consequently direct the respondents to hand over the vacant site in question. As all the four writ petitions are filed against the common order, for identical relief based on identical set of facts involving identical issue and against the same respondents all the four writ petitions are disposed of by common order. 2. The brief facts necessary for the disposal of these writ petitions are as follows : The respective father of the writ petitioners in WP.Nos. 26843, 26845 and 26846 of 2009 and the petitioner in WP.No.26844 of 2009 were allotted the vacant site belonging to the 3rd respondent temple at Salem for ground rent and the respective father of three petitioners and the other petitioner as above referred put up constructions over the land and had been running Sri Sarada Vilas Hotel, Usman motor works, Center tiffen center and Buddha saw mill respectively in such construction put up over the land belonging to 3rd respondent and had been paying rent to the respondent temple. While so, the ground rent payable by the respective occupiers was enhanced during 2001 by the 3rd respondent/executive officer of the temple and the original occupiers (i.e.) the respective father of the petitioners in WP.Nos.26843, 26845 and 26846 of 2009 and the original lessee who is the petitioner in WP.No.26844 of 2009 are issued notices demanding payment of rent at the enhanced rate. It is not in dispute that the original lessees did neither challenge the action of the temple executive officer in enhancing the rent nor complied with the demand by paying the enhanced rent and the same compelled the 3rd respondent temple to issue notice to the original lessees, thereby terminating the lease with effect from 31.07.2003 and to treat the petitioners as encroachers from 01.08.2003. The lessees were also in the same notice informed that in the event of the failure to comply with the demand due eviction proceedings will be initiated u/s.78 of the HR&CE Act. Even thereafter, the lessees did not either challenge of the proposed eviction proceedings or complied with the demand. https://hcservices.ecourts.gov.in/hcservices/ 3. The same is followed by eviction notice issued u/s.78(2) of the HR&CE Act to the present petitioners by the appropriate authorities and the enquiry was initiated and the occupiers of the land in question were also issued due notice for their personnel appearance in the enquiry before the Joint Commissioner and the petitioners were also called upon to file their written objections and written objections were filed, in which the petitioners sought revision of the fair rent fixed and sought extension of time for paying the same. In the course of enquiry therein the petitioners have also, apprehending forcible dispossession by the 3rd respondent temple, approached our High Court in WP.Nos.3936, 3940, 3941 and 3942 of 2006. 4. The identical relief sought for in all the earlier four writ petitions was for forbearing the respondents from evicting the petitioner therein without passing any order u/s.79 of HR&CE Act in MPs pending on the file of Joint Commissioner, HR&CE and without providing the petitioners therein due opportunity for filing appeal u/s.80 of the HR&CE Act. In the writ petitions the second respondent/executive officer filed his counter thereby drawing the attention of the High Court about the eviction proceedings initiated u/s.78 of the HR&CE Act before the first respondent, therefore our High Court by common order dated 17.11.2006 disposed of the writ petitions with the following order : "4. The very grievance of the petitioners is that they should not be evicted without the first respondent passing any order under section 79 of the said Act. In view of the statement made by the second respondent in his counter affidavit that proceedings have already been initiated and an enquiry had already been conducted, the issue raised no longer survives for adjudication. Consequently, the writ petitions are closed, giving liberty to the first respondent to pass orders in pursuance of the enquiry conducted by him, within a period of four weeks from the date of receipt of a copy of this corder. No costs. Consequently, connected WPMP.Nos.4192 to 4196 of 2006 are also closed. 5. It is made clear that till such orders are passed, the status quo shall be maintained and if the orders are passed, the parties are at liberty to work out their remedies." 5. In pursuance of such order the second respondent/Joint Commissioner proceeded with enquiry before him and has given further opportunity to the occupiers to comply with the demand for payment of entire arrears. The occupiers failed to do so and on their failure https://hcservices.ecourts.gov.in/hcservices/ to avail the opportunity the second respondent/Joint Commissioner proceeded to, by separate orders dated 23.03.2007, treat them as encroachers u/s.78(4) of the HR&CE Act and has passed an order of eviction against them thereby directing them to remove the encroachment and hand over the vacant possession of the land in question within 7 days failing which to execute the order for removal of encroachment and to evict them with the assistance of Revenue and Police personnel and then to hand over the possession to the temple authority as per section 79 of the Act. Aggrieved against the same, the occupiers/the petitioners herein have filed revision petitions 18 to 21 of 2007 u/s.21 of the T.N.HR&CE Act before the first respondent Commissioner, HR&CE. The petitioners were duly served with notice in the revision after the same are entertained and taken on file and they appeared in person and sought stay of the operation of the eviction order passed by Joint Commissioner by expressing their willingness to pay the arrears and current rent at enhanced rate. As such the first respondent Joint commissioner has stayed the order under revision for 8 weeks from 10.04.2007 subject to condition to pay 1/3rd of the arrears and the current rent forthwith and the balance of arrears to be paid within 8 weeks. The petitioners did not admittedly comply with the conditional order. In the meanwhile, the Government has passed G.O.Ms.456 dated 09.11.2007 revising and reducing the fair rent already fixed as per earlier G.O. The petitioners have also not come forward to pay the arrears as per the revised G.O. On the other hand the petitioners appear to have made a request to the first respondent/revisional authority to dispose of the revisions as the arrears were already paid by them. The learned counsel for the petitioners also advanced his argument before the revisional authority in the light of the material records available therein and pending reservation of the order, it is reported to the revisional authority by the executive officer that conditional stay order was not complied with. Even thereafter the petitioners have not come forward to discharge their statutory obligation of payment of rental arrears. 6. In the mean while, one of the petitioners (i.e) the petitioner in revision petition No.18 of 2007 approached our High Court in WP.24015 of 2009 for forbearing the respondents from evicting the petitioner from the building pending revision. Our High Court is after hearing both sides pleased to pass direction, not to disturb the petitioner's possession till the final order is passed by the revisional authority. The final order passed by the High Court in 24015/09 dated 23.22.2009 reads as follows : "3. On the face of it, as it is stated, revision petition is pending against the petitioner before the Commissioner, HR&CE., in respect of eviction as well fair rent proceedings. Until, the Commissioner passes the final order in the Revision petition, the petitioners possession shall not be https://hcservices.ecourts.gov.in/hcservices/ disturbed. After the orders passed by the Commissioner, depending upon the order of the Commissioner, appropriate action shall be taken in accordance with law. 4. The writ petition is disposed of with the above direction. No costs." 7. The first respondent/revisional authority having found that the original lessees and thereafter the petitioners were in huge arrears of rent and having found lack of readiness in them to comply with the demand despite repeated opportunities given to them proceeded to vacate the stay granted on 12.04.2007 and to dismiss the Revision petition by confirming the order of eviction passed by the Joint Commissioner. In pursuance of the disposal of the revision petitions on 07.12.2009 the petitioners were also issued with eviction notice on 11.12.2009, and the petitioners have again approached Our High Court in WP.No.27859 batch pending the same the possession of the land in question after removing the super structure was taken over by the respondents and the same compelled the petitioner to file these writ petitions thereby questioning the correctness and validity of the common order of the first respondent/revisional authority passed in revision petitions No.18 to 21 of 2007. 8. It is strenuously argued by the learned counsel for the petitioners that the petitioners are already recognised by the respondents as lessees and rents were demanded and collected from them in recognition of their right as lessees and the petitioners are not to be treated as encroachers and the eviction proceedings initiated by the respondents under Sections 78 and 79 of the HR&CE Act are applicable to the encroachers and are inapplicable to the lessees as such the orders issued by the second respondent/Joint Commissioner and the first respondent/Commissioner by invoking the wrong provisions of law and by adopting different procedure for eviction of the petitioners are illegal, unlawful and without jurisdiction. It is contended by the learned counsel for the petitioners that the eviction order is passed by the original authority concerned for the failure of the petitioners to pay arrears in pursuance of the earlier Government Order revising enhancing the land rent. The Government has subsequently passed another Government Order thereby revising and reducing the earlier rent and the claims of the petitioners was considered to that extent and the petitioners' representation to the respondents 2 and 3 for revising the rent as per the latest Government Order was not accepted by the respondents and had it been revised payments already made by the petitioners is sufficient enough to discharge the obligation of the petitioners and the petitioners cannot be treated as defaulters so as to treat them as encroachers and the orders passed against the petitioners for removal of encroachment and for eviction are hence arbitrary and https://hcservices.ecourts.gov.in/hcservices/ invalid in law and the possession of land forcibly taken from the petitioners in pursuance of such order is to be necessarily restored to them. 9. Such claim made by the petitioners is so vehemently opposed by the learned counsel for the official respondents by contending that petitioners are chronic defaulters who failed to avail more than adequate opportunities given to them to discharge their statutory obligations and out of four petitioners 3 of them are not original lessees but their legal descendants and the default in payment of rent is committed by the original lessees and the default continued by the present occupiers and the orders of eviction came to be passed only because of their incalcitrant attitude and there is no infirmity or illegality in the order treating them as encroachers and in passing an order of eviction against the petitioners and the order so passed are well within the procedure laid down under the relevant provisions of Act. 10. Heard the rival submission made on both sides. 11. The fact that the land in question does belong to the third respondent temple and the original lessees of the land covered in W.P.Nos.26843, 26845 26846/09 are not the petitioners herein but the respective father, by names N.S.Subramaninan, M.Babulal and V.Gurusamy since deceased. It is not in dispute that the original lessees and thereafter, the present occupiers committed default in payment of arrears of land rent at the rate revised with effect from 01.11.2001 as per earlier G.O.Ms.No.353, dated 04.06.1999. The receipts for payment of arrears of rent enclosed in the typed set of papers filed in W.P.No.26843/09 are, except in the case of W.P.No.26843/09, only after the disposal of the miscellaneous petitions by the Joint Commissioner HR&CE/Original authority and during the pendency of the revision petitions before the first respondent/revisional authority. As far as W.P.No.26843/09 is concerned one more receipt for the payment on 10.09.1997 is also enclosed the typed set of papers. 12. The fact remains undisputed is that the present occupiers did not in spite of repeated demands made by the temple authority for the payment of arrears come forward to discharge the statutory obligations of lessee and their failure to do so compelled the temple to issue notice to the occupiers treating them as encroachers with effect from 01.08.2003. Neither of the petitioners thought fit to challenge the correctness or validity of such notice issued by the temple authority. The occupiers even thereafter, not come forward to pay the arrears as per the revised rate as a result the temple authorities are compelled to initiate eviction proceedings against the petitioners by invoking the procedure under Section 78 of HR & CE Act, which are applicable to the eviction of the encroachers and the same culminated in an order of eviction passed by the Joint https://hcservices.ecourts.gov.in/hcservices/ Commissioner as confirmed by the Commissioner as revisional authority, who are the respondents 1 and 2 herein. 13. Though, the petitioners have during the pendency of the enquiry and revision before the first and second respondents respectively approached the High court from being evicted except under due process of law, the petitioners have not chosen to challenge the G.O. under which the rent is enhanced and the validity of the notice, in and under which, the lease is terminated and the petitioners are treated as encroachers by the temple authority. Even in the writ petitions filed before our High Court in W.P. No. 3938 batch W.P. No.24015 of 2009 and W.P.No.25007/2009 batch the relief sought for was for forbearing the respondents from forcibly evicting the petitioners. In none of these writ petitions, the petitioners have raised the plea that they are only tenants not encroachers. As a matter of fact in W.P.No.3938 batch, the relief sought for was for forbearing the respondent from evicting them without passing any order under Section 79 of the Tamil Nadu HR&CE Act. Similar relief was sought for in W.P.No.24015 of 2009. Both set of writ petitions are disposed of by directing the Commissioner to pass final order within the given time and proceed with the matter in accordance with such final order and to maintain status-quo till then. The order so passed is extracted herein the foregoing paragraphs. In none of these writ petitions, the issue as to whether the petitioners are tenants or encroachers and as to whether the eviction proceedings initiated against them under Sections 78 and 79 of the Act is legal or not are raised agitated or decided. 14. As a matter of fact, the petitioners have in pursuance of the disposal of the writ petitions participated in the enquiry before the original authority and in the revisional proceedings before the first respondent revisional authority without any murmur. The petitioners have put forth one such ground only in these batch of writ petitions. In the considered view of this Court, the conduct of the petitioners in not challenging the validity of the earlier notice issued by the temple treating them as encroachers and their failure to seriously raise and agitate this issue in the earlier writ petitions and the nature of the relief sought for by them in the earlier writ petitions for forbearing the respondents from evicting them without passing order under Section 79 of the Act and their acceptance of the manner of the disposal of the writ petition on earlier occasion, act as estoppel by conduct against them to raise the issue at this length of time. The very conduct of the petitioners in specifically asking the respondents to proceed against them after passing orders under Section 79 would, if viewed in the light of the fact that three out of four petitioners are not originally lessees but their descendants show that the petitioners were squatting on the property without paying due land rent to the temple/owner. https://hcservices.ecourts.gov.in/hcservices/ 15. In this context, it is pertinent to reproduce the mode of eviction of encroachers under the relevant provision of Act. The term encroachers is defined in the explanation clause Section 78 in chapter 7 which is the particular chapter dealing with encroachment Under Explanation clause, 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 the occupation of property without the approval of the competent authority (b) any person who continued in termination of the mortgage granted to them. 16. Here in this Case, the lease granted in favour of the respective father of the petitioners and the other petitioner who is the direct lessee under the temple authority was terminated by issuing notice and the validity of the notice was simply accepted by the petitioners without raising any objection or grievance in whatsoever manner on without questioning the validity and enforceability of such termination. The action of the petitioners in seeking in first batch of writ petitions the relief under Section 79 of the Act applicable to eviction proceedings against encroachers would lead to an irresistible inference that such factual position i.e, their status as encroachers is accepted by the petitioners. The petitioners have also allowed the authorities concerned to proceed within their enquiry under Sections 78 and 79 of the Act. When that being so, the petitioners cannot be now heard to say that they are tenants but not encroachers and the eviction proceedings initiated against them are illegal and improper. 17. The learned counsel for the petitioners have also further argued that the order of eviction is passed and confirmed by the original and revisional authority respectively mainly on the ground of default in payment of arrears calculated at the enhanced rate and pending revision, the G.O. issued passed for revising the rate of rent and the same was not revised and was not reduced by the authorities concerned, though approached by the petitioners and the authority concerned failed to make revised calculation and then to make demand of actual arrears at the later stage, but no copy of such representations is produced before this Court to substantiate their contention. The petitioners have admittedly not acted promptly and bonafide in the matter of payment of arrears. The list of dates and events produced herein would disclose the lack of their bonafide and despite continuance of act of default and the payments made under the receipts enclosed in the writ petitions are much after the disposal of original enquiry by the second respondent and during the pendency of revision petitions the payments are received without prejudice to the right of the parties in the revision petitions and subject to the final order passed in the same. The petitioners had been through out on the strength of orders of High Court in batch of writ petitions continuing to squat on the property and were finally dispossessed through execution of order of eviction passed by the second https://hcservices.ecourts.gov.in/hcservices/ respondent and confirmed by the first respondent. The petitioners have omitted to give due regard to the fact that the land in question belongs to the temple and the temple depends on the income derived from the property and any default in payment of rent, on the part of the lessee in the occupation of the temple property would result in loss of revenue to the temple. 18. As far as the latest G.O. revising the enhanced state is concerned, the same came to be passed only on 09.11.2007 during the pendency of the revision and the petitioners have not produced any records to show they actually represented to the authorities to revise the rate as per the rate fixed in the latest G.O. to enable them to pay the arrears. All the opportunities given to the petitioners proved to be in vein. Thus the petitioners had been managing to continue to occupy the property without paying any amount for their occupation and they cannot be hence permitted to raise any grievance either against treating them as encroachers or against their removal from the land in question. Viewing from any angle, the petitioners are not entitled to get any more indulgence of this court and are hence dis-entitled to get any relief in all these writ petitions. 19. In the result, all these writ petitions stand dismissed. No costs. Consequently, connected miscellaneous petitions are closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar tsh/vsm/kj To 1.The Commissioner, Hindu Religious and Charitable, Endowments Administrative Department, Nungambakkam, Chennai. 2.The Joint Commissioner, Hindu Religious and Charitable, Endowments Administrative Department, Kottai Mariamman Koil Complex, Salem-1. https://hcservices.ecourts.gov.in/hcservices/ 3.The Executive Officer, Arulmigu Thalaivetti Muniappan and Thirumalai Amman Thirukoil, Fort, Salem-1. 1 cc To Mr.C.Prakasam, Advocate, SR.58342 1 cc To Government Pleader SR.58305,58309,58308,58305. W.P. Nos.26843 to 26846 of 2009 trm(co) pmk.24.8.2010. https://hcservices.ecourts.gov.in/hcservices/