Dismissed

M. Ashok Kumar, v. the Joint Commissioner

Madras HC9 Nov 2021WP(MD)/17273/2014

Case brief

AI extract

What is this about?

In a writ petition challenging an encroachment removal order under the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959, the Court held that the remedy to question title under Section 79(2) was the exclusive mechanism. Dismissing the petition, the Court noted that the Madras High Court also emphasized the availability of statutory revision under Section 21. Preference for an alternat

What did the court decide?

The writ petition (W.P(MD).No.17273 of 2014) and the connected miscellaneous petition (M.P(MD).No.2 of 2014) are dismissed with no order as to costs.

M. Ashok Kumar, Vs the Joint Commissioner — Property and Title | Madras HC (2021)

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W.P(MD).No.17273 of 2014 and M.P(MD).No.2 of 2014

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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

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DATED: 09.11.2021 CORAM THE HON'BLE Mr.JUSTICE M.SUNDAR W.P(MD).No.17273 of 2014 and M.P(MD).No.2 of 2014

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M.Ashok Kumar

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A.Rahuman Beevi

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Hairunnissa Beevi

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P.Periayya

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S.Pugalenthi

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Varatharajan

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7.T.Rajendran

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Baragath Beevi

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Abdul Kareem

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Noorjagan 11. Kathija Beevi

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Mariadoss

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Asma Beevi ... Petitioners

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-Vs.-

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The Joint Commissioner, Hindu Religious and Charitable Endowment Department,

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Thanjavur, Thanjavur District.

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The Executive Officer,

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Arulmigu Kailasanathar Temple, Vazhuthur, Papanasam Taluk, Thanjavur District. ... Respondents

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Writ Petition filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorari, calling for the records relating to the impugned order passed by the first respondent in Se.Mu.Na.Ka.No.6815/2010/E2 dated 16.10.2013 and quash the same.

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For Petitioners : Mr.R.Giridharan

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For Respondents : Mr.M.Lingadurai, Government Advocate for R1 For R2 – No Appearance.

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O R D E R

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Mr.R.Giridharan, learned counsel for the thirteen writ petitioners and Mr.M.Lingadurai, learned Government Advocate (civil side) on behalf of both the respondents are before this Court.

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https://hcservices.ecourts.gov.in/hcservices/

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W.P(MD).No.17273 of 2014 and M.P(MD).No.2 of 2014

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The captioned main writ petition was heard out.

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3.Captioned main writ petition pertains to removal of encroachment proceedings under 'the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 (Tamil Nadu Act 22 of 1959)' [hereafter 'TNHR&CE Act' for the sake of convenience and clarity].

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An 'order dated 16.10.2013 bearing reference Se.Mu.Na.Ka.No.6815/2010/E2' made by the first respondent [hereinafter 'impugned order' for the sake of convenience and clarity] has been assailed in the captioned main writ petition.

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In the impugned order, the thirteen writ petitioners are respondents. To be noted, there are fourteen respondents in all in the impugned order. It may not be necessary to dilate much qua all these factual aspects as the captioned writ petition pertains to challenge to the impugned order.

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As already alluded to supra, the impugned order has been made inter alia under Section 78, more particularly, under Sections 78(4) and 79(1) of TNHR&CE Act.

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The subject matter of the impugned order is 'land admeasuring one acre or thereabouts comprised in Survey No.431/1 in Vazhuthur Village, Papanasam Taluk, Thanjavur District' (hereafter 'said land' for the sake of convenience and clarity). The proceedings under Section 78 of TNHR&CE Act culminating in the aforementioned impugned order pertain to said land and the proceedings were initiated on the basis that said land belongs to 'Arulmigu Kailasanathar Swamy Temple situate in Vazhuthur Village, Papanasam Taluk, Thanjavur District' (hereafter 'said Temple' for the sake of convenience and clarity).

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Notices were issued to the thirteen writ petitioners. They participated in the proceedings before the first respondent and the same culminated in the impugned order wherein the writ petitioners were held to be encroachers qua said land, their removal under Section 78(4) was ordered and further directions were issued under Section 79(1) of TNHR&CE Act.

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Adverting to the impugned order, learned counsel for writ petitioners submits that it is a title dispute. Learned counsel submitted that the said Temple which is a religious institution within the meaning of TNHR&CE Act has no title to said property but the first respondent in proceedings under Section 78 has virtually decided the title as if it is a title suit. Learned counsel drew the attention of this Court to paragraph 10 of the impugned order which reads as follows:

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W.P(MD).No.17273 of 2014 and M.P(MD).No.2 of 2014

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Learned counsel submitted that the aforementioned paragraph is the crux and gravamen of the impugned order and that by itself would demonstrate that the first respondent has virtually decided title qua said property.

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Learned State counsel defended the impugned order by saying that the first respondent dues have powers to order removal of encroachment qua temple properties under Section 78 of TNHR&CE Act and the impugned order has been made after following a quasi judicial legal drill procedure wherein adequate and ample opportunity has been given to the writ petitioners. To be noted, though not argued, this Court deems it appropriate to set out that a separate procedure has been prescribed for proceedings under Section 78 of TNHR&CE Act vide Rules i.e., subordinate legislation made in exercise of rule making power by the Government under Section 116 of TNHR&CE Act. These Rules go by the title 'the Removal of Encroachments on Lands or Buildings belonging to Religious Institutions Rules'. To be noted, this set of Rules is a piece of subordinate legislation having been made by the delegatee i.e., Government under Rule making power qua TNHR&CE Act i.e., Section 116 (2) of TNHR&CE Act. It is nobody's case that there was NJP (Natural Justice Principles) violation, to put it differently there is no complaint qua adequacy of opportunity given to writ petitioners. To be noted, learned State counsel also submitted that a quasi-judicial https://hcservices.ecourts.gov.in/hcservices/ proceedings under Section 78 has been conducted after putting the

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W.P(MD).No.17273 of 2014 and M.P(MD).No.2 of 2014

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writ petitioners on notice who responded to the notice. Learned State counsel also pointed out that the submissions of the writ petitioners have been captured, the documents produced by the writ petitioners have been examined and thereafter the impugned order has been passed.

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By way of reply, learned counsel for writ petitioners reiterated his submission that it is a question of title and the same cannot be decided in a cursory manner by the Joint Commissioner in summary proceedings under Section 78.

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This Court carefully considered the rival submissions.

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Notwithstanding very many averments in the writ petition and notwithstanding several grounds raised in the writ petition, learned counsel focused his submission on one point and that is, as alluded to supra, the first respondent cannot decide title in summary quasi judicial proceedings when the same is disputed. This was reiterated by making a buttressing argument that mere revenue records in the nature of patta, 'A' Register cannot be the basis for deciding title and coming to the conclusion that the said Temple is the owner of said land.

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This Court finds that there is a specific procedure adumbrated in Sections 78 and 79 of TNHR&CE Act whenever a noticee under Section 78 contends that the religious institution concerned has no title to the property. This is ingrained in Sub-section (2) of Section 79 of TNHR&CE Act, which reads as follows:

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“ (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:

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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 :

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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.”

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There is nothing to demonstrate why the writ petitioners did not take recourse to aforementioned Sub-section (2) of Section 79. If the writ petitioners had contested title of the said Temple, it was well open to the petitioners to take recourse to Sub-section (2) of Section 79. Not having done this, not having chosen to resort to the mechanism available under TNHR&CE Act which has been repeatedly held by this Court to be a self-contained code, the writ petitioners cannot now assail an order made under Section 78, more https://hcservices.ecourts.gov.in/hcservices/

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W.P(MD).No.17273 of 2014 and M.P(MD).No.2 of 2014

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particularly, under Section 78(4) read with 79(1) of TNHR&CE Act by way of a writ petition on the ground that the title of the said Temple is being disputed.

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There is one other reason as to why this Court refrains itself from interfering in the matter. That reason is, the impugned order is revisable under Section 21 of TNHR&CE Act. In other words, a statutory revision is available to the writ petitioners and that is an alternative remedy. There is nothing to demonstrate that the alternative remedy is not efficacious. Certain aspects of the matter turn on facts heavily and therefore this is yet another buttressing factor which has impelled this Court to come to the conclusion that this is not a fit case for interference in Writ jurisdiction.

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As rightly pointed out by learned State counsel, there is no complaint that the procedure adumbrated for proceedings under Section 78 have not been followed i.e., complaint in the nature of writ petitioners not being put on notice or violations of any NJP (Natural Justice Principles). To be noted, this facet of the matter has already been alluded to supra.

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Owing to the narrative thus far coupled with the discussion and dispositive reasoning set out supra, this Court is not inclined to interfere qua the impugned order in the captioned writ petition. Sequitur is, the captioned writ petition fails. However, it is made clear that if the writ petitioners choose the Section 79(2) route, it is well open to the writ petitioners to do so subject to limitation prescribed thereunder. Any plea under section 14 of the Limitation Act will not be impeded by this order. If the writ petitioners choose to make such a plea and such legal route is taken by the writ petitioners, the observations made in this order will not come in the way. In other words, the observations made in this order will neither impede nor be an impetus qua such proceedings if the writ petitioners choose to take recourse to Section 79(2) in TNHR&CE Act legal route. To be noted TNHR&CE Act has been repeatedly held to be a self-contained code by this Court and therefore it follows that Section 79(2) mechanism is part of such a selfcontained code.

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Captioned Writ Petition is dismissed. Consequently, connected WMP is also dismissed. There shall be no order as to costs.

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Assistant Registrar (CS-I)

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// True Copy //

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/ /2021 Sub Assistant Registrar(CS)

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W.P(MD).No.17273 of 2014 and M.P(MD).No.2 of 2014

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pkn

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The Joint Commissioner, Hindu Religious and Charitable Endowment Department, Thanjavur, Thanjavur District.

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The Executive Officer, Arulmigu Kailasanathar Temple, Vazhuthur, Papanasam Taluk, Thanjavur District.

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+1 CC to M/s.R.GIRIDHARAN, Advocate ( SR-33975[F] dated 10/11/2021 )

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+1 CC to M/s.SPL.GP ( SR-33933[F] dated 10/11/2021 )

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W.P(MD).No.17273 of 2014 and M.P(MD).No.2 of 2014 09.11.2021

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RK/SKN(22.11.2021) 6P 5C

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https://hcservices.ecourts.gov.in/hcservices/

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M. Ashok Kumar, v. the Joint Commissioner

Case brief

What is this about?

What did the court decide?

M. Ashok Kumar, v. the Joint Commissioner

Case brief

What is this about?

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