Disposed

T. Velmurugan v. the Commissiner

Madras HC7 Dec 2022WP(MD)/20418/2015

Case brief

AI extract

What is this about?

This court, noting the petitioner's death but allowing the public interest claim to proceed, directed respondent authorities to conduct a comprehensive survey and audit of temple properties in and around Tiruchendur Temple to ascertain encroachment or alienation, directing immediate action under Section 78 of the HR&CE Act if found.

What did the court decide?

Directed respondent authorities to undertake a comprehensive survey and/or audit of temple properties and ascertain encroachment; if found, take immediate action within law.

T. Velmurugan Vs the Commissiner — Pension and Retirement Benefits | Madras HC (2022)

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WP (MD) No. 20418 of 2015

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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

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Reserved on Pronounced on 22.11.2022 07.12.2022

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CORAM

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THE HONOURABLE MR. JUSTICE R. MAHADEVAN and

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THE HONOURABLE MR.JUSTICE J. SATHYA NARAYANA PRASAD

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Writ Petition (MD) No. 20418 of 2015 and

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MP(MD) No. 1 of 2015

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T. Velmurugan .. Petitioner

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Versus

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The Commissioner Hindu Religious and Charitable Endowment Department Nungambakkam, Chennai

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The Joint Commissioner/Executive Officer Tiruchendur Arulmigu Subramania Swamy Thirukovil Tiruchendur Thoothukudi District

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The Thakkar Tiruchendur Arulmigu Subramania Swamy Thirukovil Tiruchendur Thoothukudi District

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The Assistant Commissioner Hindu Religious and Charitable Endowment Department Thoothukudi

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The Thuvadasi Anna Dhana Arakkattalai Abiviruthi Trust 37, Theppakulam Street

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https://www.mhc.tn.gov.in/judis

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Tiruchendur represented by its Managing Trustee Mr. Eswaran Iyer

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Mr. R. Murugesan Son of Ramachandran Nadar No.22, Veilukandhamman Kovil Street Keela Tiruchendur Town Tiruchendur Taluk Thoothukudi District .. Respondents

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Petition filed under Article 226 of The Constitution of India praying to issue a Writ of Mandamus directing the respondents 1 to 4 herein to resume the lands of Arulmigu Subramania Swamy Thirukovil, Tiruchendur situated in Survey No.1484/22, Theppakulam Street, Tiruchendur Special Grade Town Panchayat and Survey Nos.268/6, 268/9, Keela Tiruchendur Village, Tiruchendur Taluk, Thoothukudi District.

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For Petitioner : Mr.P.Rajkumar For Respondents : Mr. P. Subbaraj Special Government Pleader for RR1 & 4 Mr. M. Muthugeethayan for RR2 & 3

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Mr. S. Meenachi Sundaram, Senior Advocate for Mr. R.T. Arivukumar for R5

Mr.T.Selvan for R6

ORDER

R. MAHADEVAN, J.

The prayer made in this writ petition is to issue a Writ of Mandamus

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directing the respondents 1 to 4 herein to resume the properties in Survey No. 1484/22 situated at Theppakulam Street, Tiruchendur Special Grade Town Panchayat and Survey Nos.268/6, 268/9, Keezha Tiruchendur Village, https://www.mhc.tn.gov.in/judis

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Tiruchendur Taluk, Thoothukudi District, belonging to Arulmigu Subramaniya Swamy Temple, Tiruchendur.

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The petitioner claims to be an ardent devotee of the deity Lord Muruga and he frequently visits the subject temple for worship. According to him, the property called as Thuvadasi Madam comprised in Survey No. 1484/22 and other properties were purchased in the year 1924 and given to the temple for religious purposes. It is stated that upto the year 2005, the Government of Tamil Nadu had given subsidy for providing food to the devotees in the Thuvadasi Madam. Thus, except the Temple, no other individual or institution, has any right, title or interest over the said properties.

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It is further averred in the writ petition that in the year 2005, the fifth respondent Trust was created with an oblique motive, to grab the Thuvadasi Madam and other temple properties and sell it to third parties. After formation of the fifth respondent Trust, the Thuvadasi Madam has been sold to the sixth respondent illegally on 28.05.2009. Subsequently, the sixth respondent purchased another portion of the Thuvadasi Madam in Survey Nos. 268/6 and 268/9 situated in Keezha Thiruchendur Village through a sale deed dated 12.10.2009.

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According to the petitioner, the temple properties cannot be sold

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by the fifth respondent trust to any one, including the sixth respondent. The sixth respondent, after purchase, has obtained a building planning permission from the local body for constructing a three storey building by demolishing the existing Thuvadasi Madam. Upon knowing about the illegal sale of the temple properties, the petitioner sent a representation dated 23.08.2014 to the second respondent. On receipt of the same, the second respondent directed the petitioner to appear for enquiry on 25.10.2014 and 06.11.2014. Accordingly, the petitioner appeared before the second respondent and gave his statement. Except recording the statement of the petitioner, the second respondent did not take any further action to stop illegal construction made by the sixth respondent by demolishing the traditionally acclaimed Thuvadasi Madam. The sixth respondent, in the meantime, completed the three storeyed construction, which was likely to be opened on 13.11.2015. It is at this stage, the petitioner has approached this Court with the present writ petition, as a Public Interest Litigation.

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On 08.09.2022, when this writ petition was taken up for hearing,

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it was submitted by the learned counsel for the petitioner that the petitioner is no more. However, according to the learned counsel, the relief sought in this writ petition still survives for consideration of this Court and hence, he made https://www.mhc.tn.gov.in/judis

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his submissions. On merits of the case, the learned counsel submitted that the fifth respondent Trust has no right much less saleable right to sell the properties belonging to the temple. Adding further, the learned counsel submitted that the Thuvadasi Madam is one of the landmarks of Tiruchendur Temple and it was erased to ground by the sixth respondent, where a multistoreyed building was constructed. Thus, the temple lands have been successfully alienated by the fifth respondent in collusion with the sixth respondent, to which the official respondents remained a mute spectator. Therefore, the learned counsel prayed for appropriate direction to the official respondents to protect, safeguard and maintain the properties of the temple, without being alienated in favour of any third parties.

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The learned Special Government Pleader appearing for the respondents 1 and 4 submitted that the Hindu Religious and Charitable Endowment Department is taking earnest steps to ensure that the temple lands are not only protected, but also, not alienated to any third parties. The learned counsel further submitted that as directed by this court, the fourth respondent / Assistant Commissioner, HR & CE Department, Thoothukudi, filed a report dated 18.11.2022, after conducting a spot inspection of the subject properties. Therefore, the learned counsel prayed for appropriate direction in the light of the report submitted by the fourth respondent.

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On the other hand, the learned standing counsel appearing for the respondents 2 and 3 submitted that the second respondent is the Executive Officer, who is in-charge of the administration of the subject temple; and the third respondent, being the Thakkar of the temple, has nothing to do with the relief sought in the present writ petition. The learned counsel further submitted that the power to remove the encroachments, if any, vests only with the respondents 1 and 4. Therefore, the learned counsel prayed for appropriate direction to the respondent concerned in this regard.

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The learned Senior counsel appearing for the fifth respondent would submit that the fifth respondent is a bona fide purchaser of the property for a valuable consideration. According to the learned Senior counsel, the property in question does not belong to the temple and it is the property owned by the individuals. Had it been the property of the temple, the registering authority would not have entertained the sale deed dated 28.05.2009 executed in favour of the sixth respondent by the fifth respondent Trust. After a decade of purchase of the property by the sixth respondent, where he had put up a construction by spending huge amount, the petitioner has filed this writ petition alleging that the property belongs to the subject temple. To buttress the said submission, the learned Senior counsel produced the sale deeds executed in favour of the fifth respondent trust and the statement of accounts https://www.mhc.tn.gov.in/judis

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issued by the Indian Overseas Bank, Tiruchendur. Therefore, the learned Senior counsel submitted that the present writ petition has been filed by the petitioner only to take personal vengeance against the fifth respondent and there is no element of public interest and hence, the writ petition will have to be dismissed as devoid of merits.

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The learned counsel for the sixth respondent adopted the arguments of the learned senior counsel appearing for the fifth respondent.

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We have heard the learned counsel appearing for all the parties and also perused the entire materials available on record.

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In this writ petition, the petitioner sought a direction to the respondent authorities to resume the properties in S.No.1484/22, Theppakulam Street, Tiruchendur Special Grade Town Panchayat and S.Nos.268/6 and 268/9 of Keezha Tiruchendur Village, belonging to the subject temple, which have been illegally sold by the fifth respondent to the sixth respondent. Though the petitioner is no more, having regard to the nature of the issue involved herein, this court is of the view that in the larger public interest, the death of the petitioner will not be a ground to refrain from considering the claim made by him in this writ petition.

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12.1. At the first instance, it is noteworthy to mention that not only the Government and /or the Board of Trustees, but also the devotees should be vigilant to prevent any encroachment on temple lands. In this connection, the following observation of the Hon'ble Supreme Court in A.A.Gopalakrishnan

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v. Cochin Devaswom Board and others, [Appeal (Civil) No.3135 of 2007] , may be set out for easy reference:

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" 10. The properties of deities, temples and Devaswom Boards, require to be protected and safeguarded by their Trustees/Archaks/ Sebaits/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 concerned authorities. 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."

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12.2. That apart, this court has repeatedly held that temples in Tamil

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Nadu are not only a source of identification of the ancient culture, but also a testimony of knowledge and talent in the field of arts, science and sculpture and a conduit for spiritual activities as well. The properties of the religious institutions, more particularly, that of the temples, have to be maintained properly in order to derive more income to spend for their betterment.

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Therefore, the Commissioner of Hindu Religious and Charitable Endowments Department is duty bound to ensure that the temples and its properties are properly administered and that, their income is duly appropriated for the purpose for which, they were founded or exist.

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Recently, in a decision in suo moto WP.No.574 of 2015 and WP(MD)No.24178 of 2018 dated 07.06.2021, reported in (2021) 5 MLJ 413 , a Division Bench of this court, in which, one of us (RMDJ) was a part, has elaborately considered the importance of historical monuments, temples and its properties and ultimately, issued as many as 75 directions, of which, the following directions are relevant to the subject matter in issue:

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"55. ... ... ...

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LAND REVENUE, RENT, ARREARS, ENCHROACHMENTS ETC

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(31) The District Committees must take stock of the lands of all the temples within their respective District, list out the total extent with survey number and door number, vacant or leased, nature of land i.e agricultural or otherwise, current rent, date of fixation of rent, current market rent, name of lessee/tenant, duration of lease, whether authorised by the Commissioner, if the period of lease is beyond 5 years, nature of the lessee whether individual, firm or company and in case, lessee is an individual, then the religion of such individual, arrears if any of each lessee with period of default, list of cases pending before any forum or Court regarding the rent or entitlement to lease, list of encroachers including subtenant and sublessees and status of action taken to remove the encroachers, list of temple lands conveyed and action taken to retrieve them and status of the criminal complaint lodged against illegal sale of temple land, if any and document the same properly. A detailed report also be filed before this Court within a period of twelve (12) weeks.

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(33) The state Government or the Commissioner of the HR&CE department, who are the Trustee/administrator of the temple lands, shall https://www.mhc.tn.gov.in/judis not alienate or give away the lands contrary to the wish of the donor. The

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lands shall always remain with the temples. The public purpose theory shall not be invoked in cases of temple lands over which the interest of the community people of the religious denomination generally rests.

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(35) The encroachment and illegal constructions in the protected area, archaeological sites, temple lands, etc., must immediately be removed. The extent of lands owned by the temples must be identified with the help of the revenue Department by the District Level Committee. The District Collector of the appropriate District, on the request of the Heritage Commission or State Committee or District Level Committees or by any officer of the HR&CE Department, shall forthwith take steps for the removal of any such illegal construction or encroachment or unauthorised occupants. Appropriate action must be taken against the errant Government officials of the central as well as state department and officers under the HR&CE department for not removing the encroachments in the protected and regulated area, within a period of eight (8) weeks on expiry of the time given.

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(36) A list of defaulters with the arrears due from them must be prepared within a period of six (6) weeks and the same must be published in the website. Appropriate steps must be taken to evict them and recover the arrears as per the provisions of the HR&CE Act and the rules there under.

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(37) The respondent authorities shall regulate the period of lease pertaining to the properties of the religious institutions and renewal of the same."

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The aforesaid decision covered all the earlier directions issued in the orders

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passed by this court in V. Muthusamy v. The Joint Commissioner of

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HR&CE Department, Chennai, [2018-1-Writ.LR.530] and P. Lakshamanan and Ors. v. the Superintendent of Police, Sivagangai [(2018) 3 MLJ 202].

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However, various lands in and around the temples in Tamil Nadu,

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have been encroached by the third parties and are being used for the purposes

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other than religious and temple activities. Though the respondent authorities https://www.mhc.tn.gov.in/judis

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are taking steps to retrieve the temple lands from the encroachers, it is inadequate as it is evident from the cases filed before this court, one of which is the instant case.

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In the present case, as directed by this court, the fourth respondent conducted inspection of the properties in question and filed a comprehensive report on 18.11.2022, wherein, it is inter alia stated as follows:

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"9.18 jpUr;bre;J}h; ej;jk; ru;nt vz; 1484-36? y; ,Ue;J te;j Mtzp. khrp 8?k; jpUtpHh kz;lfg;gof;fhd 16 fhy; fy;kz;lgk; ,of;fg;gl;L tpl;ljhft[k; bjhpa tUfpwJ/ jw;nghJ Jthjrp kl brhj;jhf khwptpl;l ,e;j Mtzp kw;Wk; khrp jpUtpHh kz;lfg;go brhj;Jk; kPl;fg;gl ntz;Lk;/ nkYk; ,e;neh;tpy; ej;jk; rh;nt vz;/1844-22 kw;Wk; 1484-36? Mfpatw;wpw;F tH';fg;gl;l gl;lh vz;/3181 Fwpj;J jpUr;bre;J}h; fpuhk epUthf mjpfhhp mYtyfj;jpy; 24/11/2015 md;W bgwg;gl;l ej;jk; epythp jpl;l J}a ml';fypy; "Jthjrp klk;" vd;W Fwpg;gpl;L ml';fy; tH';fg;gl;l epiyapy; mnj jpdj;jpy; mnj fpuhk epUthf mjpfhhpahy; tH';fg;gl;l kw;bwhU ml';fypy; ej;jk; g[y vz;/1484-22 I bghUj;J "Jthjrp klk; bjg;gf;Fsk; gpuhkzu;" vd;Wk; ej;jk; g[y vz;/1484-36I bghUj;J "Jthjrp klk; bjg;gf;Fsk; gpuhkzu; _ fy;ahz tpehafh;" vd;Wk; ml';fy; tH';fg;gl;Ls;sik gy re;njf';fis Vw;gLj;JfpwJ (,izg;g[ Mtz vz;fs; 30 kw;Wk; 31)/ vdnt. nkw;fz;l tpra';fs; bjhlh;ghf rhh;gjpthsu; kw;Wk; tUtha; Jiwapduplk; Kiwahd Mtz';fs; bgw;W Kiwahf ghprPypj;jhy; jpUf;nfhapYf;Fr; brhe;jkhd fl;lisr; brhj;Jf;fs; Kiwaw;w tifapy; ghuhjPdk; bra;ag;gl;Ls;sJ Jy';Fk;/

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9/19/ nkny tptupf;fg;gl;Ls;s g[d;bra; g[y vz;/268-6 kw;Wk; 268-9. ej;jk; ru;nt vz;/1484-22 kw;Wk; 1484-21 Mfpa brhj;Jfs; bjhlu;ghd ,Us; NH;e;j eltof;iffis KGikahf mwpe;J bfhz;lhy; kl;Lnk ,tw;iw kPl;gjw;F chpa eltof;iffis nkw;bfhs;s ,aYk;/ ,jw;F tUtha; Jiw. gjpt[j;Jiw. jpUr;bre;J}h; efuhl;rp epUthfk; nghd;wit ,e;J rka mwepiyaj;Jiw kw;Wk; epUthfj;jhy; nfhug;gLk; Mtz';fs; midj;ija[k; tH';fp xj;JiHj;jhy; kl;Lnk ,e;j brhj;Jf;fs; kPl;g[ eltof;if

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rhj;jpag;gLk; vd;w tptuk; gzpe;J bjhptpj;Jf; bfhs;sg;gLfpwJ/"

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Thus, it is revealed from the aforesaid report that the documents issued by the Village Administrative Officer pertaining to the subject properties, raise suspicion and unless the records maintained by the Revenue and Registration departments and other documents required by the HR&CE Department, are scrutinised, the exact position relating to the encroachments of the properties belonging to the subject temple, cannot be ascertained for taking appropriate action.

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Therefore, in such circumstances, this court deems it appropriate to direct the respondent authorities to undertake a comprehensive survey and/or audit of the temple properties in and around Tiruchendur Temple and ascertain the nature of encroachment and/or alienation of the same. If there is any encroachment, immediate action shall be resorted to by invoking Section 78 of the HR&CE Act, after affording due opportunity of hearing to all the interested parties. It is made clear that pendency of civil suit, if any, between the private parties and the temple, will not be a bar for retrieving the properties of the temple and to take possession of those properties, in accordance with law. Needless to state that the concerned departments shall assist the HR&CE Department for identification of the encroached lands belonging to the subject

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17.

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