The Madurai Bench dismissed a writ petition filed by the wife of a sub-tenant seeking refund of rent paid for temple occupancy. The court held the possession amounted to an encroachment under Section 78 of the HCE Act, and the deposited amount was legally appropriated as rent for use and occupation pending eviction.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
W.P(MD)No.2028 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 18.02.2022
CORAM
THE HONOURABLE MR.JUSTICE C.SARAVANAN
W.P(MD).No.2028 of 2021
Samsammal
... Petitioner
Vs.
1.The Joint Commissioner,
Hindu Religious and Charitable Endowment,
West Chitirai Street, Madurai.
2.The Assistant Commissioner,
Hindu Religious and Charitable Endowment,
Madruai -1.
3.The Executive Officer,
Arulmigu Mahadeva Swami thirukovil, No.10, Rajamill Road, Madurai -1. ...Respondents
Prayer : Writ Petition filed under Article 226 of the Constitution of India, praying this Court To issue a writ of Certiorarified Mandamus calling for the records pertains to an impugned order dated 29-102020 passed by the 3rd Respondent and quash the same as illegal and consequently to direct the 3rd Respondent to repay the amount of Rs.1,50,000/- which was paid by the petitioners late husband Sikkanthar during the course of the case proceedings in WP(MD). No.14819/2017 on the file of this Court.
For Petitioner : Mr.S.Sukumar
For R1 & R2 : Mr.P.Subbaraj Special Government Pleader For R3 : Mr.S.Manohar
ORDER
The petitioner has challenged the impugned communication dated 29.10.2020 of the third respondent rejecting the request of the petitioner to refund a sum of Rs.1,50,000/- paid by the petitioner pursuant to interim orders passed in W.P.(MD).No.14819 of 2017.
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W.P(MD)No.2028 of 2021
circumstances, proceedings to recover the arrears of rent was initiated against the said Rajathiammal and as a consequence on account of failure to pay the rent, the said Rajathiammal was directed to be vacated.
10. However, taking into consideration of the
fact that the petitioner is in possession of the premises from 1995, for more than 22 years, now, if the petitioner is willing to pay the revised fair rent fixed by the authorities namely, Rs.20,000/per month along with arrears, the petitioner can file a fresh application for granting lease in his favour and if any such application is filed by the petitioner, the second and fourth respondents are directed to consider the application and pass suitable orders granting lease in his favour. It is also made clear that if the petitioner is not willing to pay revised fair rent, it is always open to the respondents to evict the petitioner without any further notice.
11. With the above direction, the writ petition is disposed of. No costs. Consequently, the W.M.P (MD).Nos.11661 and 11662 of 2017 are closed.
18. It is made clear that after taking out the goods/articles by the appellant/writ petitioner, the shop in question shall be re-sealed by the authorities concerned. It is always open to the appellant/writ petitioner that in the light of the liberty granted by the learned Judge, to submit a
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fresh application, to the second and fourth respondents. As and when such application is given, the same shall be considered and disposed of, on merits and in accordance with law, within a period of two weeks from the date of receipt of such application.
19. If the petitioner is so advised, subject to law of limitation, he may file a suit for recovery of the sum of Rs.2,76,823/-, said to have been paid by him on behalf of the chief tenant, namely, Rajathiammal.
20. In the result, the Writ Appeal is dismissed, confirming the order dated 25.01.2018 passed in W.P (MD).No.14819 of 2017. No costs. Consequently, the connected Miscellaneous Petitions are closed.
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order for the deposit made by the petitioner. In any event, it is for the petitioner to workout the remedy in a Civil suit before Civil Court as was ordered by the Hon'ble Division Bench.
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lease or mortgage or licence is an encroacher. Thus, the possession of the property by the petitioner’s husband during his life time was nothing but an encroachment. since the peitioner's husband was in possession of the property, the respondents initiated steps to recover the amount. A reading of Section 78 (5) of The Hindu Religious and Charitable Endowments Act, 1959, makes it clear that during the pendency of the proceeding, the Joint Commissioner shall order the encroacher to deposit such amount as may be stipulated by him in consideration of the use and occupation of the properties in question in the manner prescribed.
// True Copy //
/ /2022 Sub Assistant Registrar(CS)
sn
To
1.The Joint Commissioner,
Hindu Religious and Charitable Endowment, West Chitirai Street, Madurai.
2.The Assistant Commissioner, Hindu Religious and Charitable Endowment, Madruai -1.
3.The Executive Officer, Arulmigu Mahadeva Swami thirukovil, No.10, Rajamill Road, Madurai -1.
+1 CC to M/s.S.MANOHAR, Advocate ( SR-7368[F] dated 21/02/2022 )
+1 CC to M/s.SPL GP ( SR-7398[F] dated 21/02/2022 )
W.P(MD).No.2028 of 2021 18.02.2022
MGJ(16.03.2022) 5P 6C
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2 issues framed by the court
Whether the failure of the third respondent to regularise the tenancy arrangement entitles them to appropriate the amount paid by the petitioner during the pendency of the writ petition.
Whether the third respondent was justified in collecting the amount paid by the petitioner towards the use and occupation of the temple property.
2 provisions across 1 enactments
Samsammal
The Joint Commissioner, Hindu Religious and Charitable Endowment
The Assistant Commissioner, Hindu Religious and Charitable Endowment
The Executive Officer, Arulmigu Mahadeva Swami thirukovil
C. Saravanan
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
