The Madras High Court dismissed two writ petitions challenging ex-parte orders under Section 78 of the TN HR & CE Act requiring deposit for use and occupation of temple properties. The court held that statutory revision is the proper remedy and no 'Whirlpool Exceptions' applied.
No order as to costs.
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]Nos.22902 & 23016 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 03.01.2022 CORAM: THE HONOURABLE MR.JUSTICE M.SUNDAR W.P.[MD]Nos.22902 & 23016 of 2021 and W.M.P.[MD]Nos.19370 & 19499 of 2021
K.Manokaran ... Petitioner in W.P.[MD]No.22902 of 2021 K.Venkatachalam ... Petitioner in W.P.[MD]No.23016 of 2021
Vs.
1.The Joint Commissioner,
Hindu Religious and Charitable Endowment Department, Thanjavur,
Thanjavur District.
Hindu Religious and Charitable Endowment Department, Thanjavur,
Thanjavur District.
3.The Executive Officer, Arulmigu Palaivana Nagasamy Thirukovil, Thirupalathurai,
Papanasam Taluk, Thanjavur District. ... Respondents in both petitions
COMMON PRAYER : Writ Petitions filed under Article 226 of the Constitution of India for issuance of Writs of Certiorarified Mandamus, calling for the records pertaining to the impugned order passed by the first respondent in his proceedings of I.A.Nos.2 and 4 of 2020 in M.P.Nos.17 and 21 of 2018 dated 03.12.2020, respectively and quash the same and consequently direct the respondents to not interfere with the petitioners' peaceful possession and enjoyment of the property in Survey Nos.354/7 and 354/8 situated at Thirupalathurai Village, Papanasam Taluk, Thanjavur District.
For Petitioners : Mr.G.Gomathi Sankar [In both Writ Petitions] For Respondents 1 & 2 : Mr.T.Amjadkhan Government Advocate [In W.P.(MD)No.22902 of 2021] For Respondents 1 & 2 : Mr.A.Baskaran Additional Government Pleader [In W.P.(MD)No.23016 of 2021] For Respondent No.3 : Mr.V.Chandrasekar [In both Writ Petitions]
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COMMON ORDER
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This common order will govern both the captioned two main Writ Petitions and the two captioned Writ Miscellaneous Petitions (WMPs) therein.
2. In this order, W.P.[MD]No.22902 of 2021 shall be referred to as senior W.P. and W.P.[MD]No.23016 of 2021 shall be referred to as junior W.P. To be noted, this is for the sake of convenience and clarity.
3. In the admission board, today senior W.P. was listed as Sl.No.1 and junior W.P. was listed as Sl.No.5. At the request of the Counsel for writ petitioner in both the captioned main writ petitions, Sl.Nos. 1 & 5 were taken up together.
4. In this web hearing on a video conferencing platform ie., virtual Court, Mr.A.Baskaran, learned Additional Government Pleader accepted notice on behalf of respondents 1 & 2 in junior W.P., Mr.T.Amjad Khan, learned Government Advocate accepted notice on behalf of respondents 1 & 2 in senior W.P. and Mr.V.Chandrasekar, learned private Counsel who joined the virtual hearing accepted notice on behalf of the Executive Officer of Arulmigu Palaivana Nagasamy Temple situate in Thirupalathurai, Papanasam Taluk, Thanjavur District [hereinafter 'said temple' for the sake of convenience and clarity].
5. Owing to the short point involved, captioned main writ petitions were taken up and heard out with the consent of all the aforementioned learned Counsel.
6. In the senior W.P. one Mr.K.Manokaran is the writ petitioner and in the junior W.P. one Mr.K.Venkatachalam is the writ petitioner and both are siblings being sons of one Kathirvel.
7. The immovable property forming subject matter of senior W.P. is as follows:
'jpUg;ghyj;Jiw fpuhkk; bts;is gps;isahh; nfhapy; bjU rh;nt vz; 354/6y; cs;s 1521 rJu mo.
,lk;
ehd;bfy;iyfs;
fpHf;F = gl;lk ;khs; vd;gtuJ fhypaplk;
nkw;F = Mf;fpukpg;g [jhuh; fjputd; Xl;L tPL kw;Wk ;
fhypaplk;
bjw;F = Mf;fpukpg;g [jhuh; btq;flh$yk; Xl;L tPL kw;Wk ; fhypaplk;
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tlf;F = bts;is gps;isahh; nfhtpy; bjU.
8. The immovableproperty forming subject matter of junior W.P. is as follows:
' 'jpUg;ghyj;Jiw fpuhkk; bts;is gps;isahh; nfhapy; bjU rh;nt vz; 354/6y; cs;s 2106 rJu mo.
,lk;
ehd;bfy;iyfs;
fpHf;F = gl;lk ;khs; vd;gtuJ fhypaplk;
nkw;F = Mf;fpukpg;g [jhuh; rPjh byl;Rkp fhypaplk;
bjw;F = ghrd tha;f ;fhy;
tlf;F = Mf;fpukpg;g [jhuh; kndhfud; Xl;L tPL kw;Wk ; fhypaplk;.'
9. A careful perusal of the aforementioned two parcels of lands will bring to light that only the extents are different. This Court is informed that in all other aspects captioned main writ petitions turn on the same point.
10. The aforementioned two immovable properties shall be collectively referred to as 'said properties' in plural for the sake of convenience and clarity. On a report from the jurisdictional Assistant Commissioner of 'Tamil Nadu Hindu Religious and Charitable Endowments Department' [hereinafter 'TN HR & CE Dept.,' for the sake of convenience and clarity] proceedings under Section 78 of 'the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 (Tamil Nadu Act 22 of 1959)' {hereinafter 'TN HR & CE Act' for the sake of brevity} were kick started against the writ petitioners qua said properties. In the proceedings, which is obviously before the first respondent [jurisdictional Joint Commissioner] an order came to be made under sub-section 5 of Section 78 inter alia calling upon the writ petitioners to deposit certain sums of money towards use and occupation qua said properties. Admittedly the deposit has not been made. It is also clear from the impugned orders as well as the writ affidavits that several opportunities were given to the writ petitioners but the writ petitioners did not go before the first respondent and therefore two ex-parte orders came to be made.
11. Interestingly, the writ petitioners instead of going before the first respondent Joint Commissioner have filed a suit on receipt of notices from the first respondent. In the suit the two writ petitioners are plaintiffs and the suit is O.S.No.113 of 2021 on the file of the Subordinate Judge's Court Kumbakonam. The suit is one for bare injunction wherein the writ petitioners have sought for an injunction decree qua possession of said properties. This Court is https://hcservices.ecourts.gov.in/hcservices/ informed that this suit is pending. This Court has serious doubts
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about the maintainability of such a suit but this Court refrains itself from expressing any opinion or view on this aspect of the matter in this order as the writ petitions on hand are to be decided on a different point altogether.
12. It is to be noted that after filing the aforementioned suit the writ petitioners filed two Interlocutory Applications namely I.A.Nos.2 of 2020 [senior W.P.] and I.A.No.4 of 2020 [Junior W.P.] with prayers to set aside the orders made under Section 78 of TN HR & CE Act. Both these applications came to be dismissed by the first respondent and these two orders (hereinafter 'impugned orders' for the sake of clarity and convenience) have been assailed in the captioned writ petitions. Before proceeding further, I need to mention that both these orders are dated 30.11.2021. In the prayer it is mentioned that the orders are dated 03.12.2021. This is clearly erroneous as that is the date on which the first respondent jurisdictional Joint Commissioner has signed the impugned orders. The date is not very clear in the case file qua senior W.P. but it is clear in the case file qua junior W.P. Therefore I proceed on the basis that both impugned orders are dated 30.11.2021 and all the Counsel before me submit that this is factually the correct position.
13. I now proceed to examine the grounds on which the impugned orders have been assailed by learned Counsel for writ petitioners. Notwithstanding several averments and several grounds raised in the writ affidavits, learned Counsel for writ petitioners makes three points and they are as follows:
a) The writ petitioners' mother had purchased two parcels of lands comprised in S.Nos.354/7 and 354/8 in 1955 & 1957 vide three separate sale deeds and therefore, the impugned orders are bad;
b) In the senior W.P., a plain reading of the impugned order makes it clear that the said temple ie., it's Executive Officer is not certain about the extent as a prayer for altering the extent has been made;
c) The writ petitioners could not avail the opportunities provided by the first respondent owing to ill health.
14. The two learned State Counsel made submissions, a summation of which is as follows:
a) Impugned orders pertain to S.No.354/6, S.No.354/7 is also land belonging to said temple and only S.No.354/8 belongs to a third party;
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b) There is no impediment in the impugned orders warranting interference in writ jurisdiction.
15. Learned private Counsel for the third respondent Executive Officer of said Temple besides reiterating the arguments of State Counsel made the following submissions:
a) The writ petitioners have not complied with the orders made by the first respondent under sub-section 5 of Section 78 of TN HR & CE Act by depositing damages for use and occupation;
b) The writ petitioners not having challenged the orders made under Section 78(5) cannot now be heard to contend that their applications to set aside the orders have been dismissed.
16. In response by way of reply learned Counsel for writ petitioner reiterated the submissions made in the opening arguments.
17. I carefully considered the rival submissions (captured supra) and I am unable to accede to the prayers of the writ petitioners. The reasons are as follows:
a) As against the impugned orders statutory revision is available under Section 21 of TN HR & CE Act;
b) Though alternate remedy is not an absolute bar qua writ jurisdiction, suffice to say that no ground for interference in writ jurisdiction has been made out;
c) In other words, the exceptions to alternate remedy rule, known in litigation parlance as ''Whirlpool Exceptions' being law laid down in Whirlpool Corporation case [ Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai and others reported in (1998) 8 SCC 1 ] and suffice to say that none of the 'Whirlpool Exceptions' have been pointed out in the case on hand;
d) Though the above point itself downs the curtains on the campaign against the impugned orders, I proceed to deal with the other points also infra;
e) Regarding the argument of the learned Counsel for writ petitioners that their mother purchased S.Nos.354/7 & 354/8, if the writ petitioners are setting up a rival title the writ petitioners should have taken recourse to Section 79(2) qua TN HR & CE Act but that has not been done. Therefore, this argument cannot be countenanced in writ jurisdiction;
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f) A careful perusal of the writ affidavit, more particularly the writ affidavit in senior W.P. makes it clear that the writ petitioners, after receiving 10.12.2018 order of the first respondent under Section 78 (5) have approached the Civil Court vide aforementioned O.S.No.113 of 2021 on the file of Subordinate Judge's Court Kumbakonam. In other words even after receipt of 10.12.2018 order the writ petitioners have not chosen to go before the first respondent.
g) The second argument that the writ petitioners could not avail several opportunities given to them owing to ill health, in my considered view is a non-starter. The reason is, after receipt of 10.12.2018 orders of first respondent Joint Commissioner, the writ petitioners have instructed a Counsel and presented a plaint in the Subordinate Judge's Court, Kumbakonam. If the writ petitioners can instruct a Counsel and have a suit filed with regard to the same subject matter, nothing prevented the writ petitioners from moving Interlocutory Applications which have lead to the impugned orders. Therefore, even going by the very affidavit of the writ petitioners, the argument becomes a non-starter. In this regard I deem it appropriate to extract and reproduce paragraph Nos.5 & 6 of the writ affidavits which read as follows:
'5.I submit that now the respondents taking advantage of the not issued patta in respect of the property in Survey No.354/8 they claimed my property in Survey No.354/7 has been included a part of the property of Survey No.354/6 but they does not having any documents with regard to the Survey No.354/7 a part of the property of 354/6 but they are claiming only under the presumption manner for which they issued notice to me and my brother to appear before the enquiry but I could not appear before the 1st respondent since I am affected heart attack and taking treatment and subsequently the matter Exparte decree was passed by the 1st respondent dated 10.12.2018 against me and I was directed to pay the sum of Rs.1,00,000/- for using the 3rd respondent's property. After that the respondents interfered with my peaceful possession and enjoyment of the property. Under these circumstances I approached civil Court and filed a suit in O.S.No.113 of 2021 on the file of the Sub Court, Kumbakonam for a relief of Injunction against the 3rd respondent and he appeared through counsel and the matter is pending.
6.I submit that after filing the suit, I made a
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1 st
petition in I.A.No.2 of 2020 in M.P.No.17 of 2018 before the 1st respondent to set aside the ex-parte order but it was not consider and dismissed by the 1st respondent and holding that I have to vacate the encroach portion and hand over the same to the 3rd respondent dated 03.12.2020 challenging that order I file Writ Petition before this Hon'ble Court under article 226 of Constitution of India and following among other grounds.'
The aforementioned paragraphs inter alia give the chronicle and trajectory the matter has taken. Therefore the second argument of being indisposed falls flat on its face;
h) The argument regarding said temple not being sure of the extent is clearly not a ground to dislodge the impugned orders as at the highest it is only an amendment that has been sought qua the said properties. Merely because an amendment is sought for in quasi judicial proceedings that cannot by itself become a ground to dislodge the impugned orders;
i) Interestingly and intriguingly writ petitioners do not dispute that S.No.354/6 which is subject matter of the impugned orders itself belongs to the said temple and the writ petitioners are not staking any claim. I deem it appropriate to leave it at that.
18. This Court having set out the reasons for not acceding to the prayers of the writ petitioners makes it clear that it is well open to the writ petitioners to file a statutory revision inter alia under Section 21 of TN HR & CE Act before the revisional authority namely, Commissioner, TN HR & CE Dept., sitting at 119, Uthamar Gandhi Salai (previously Nungambakkam High Road) Chennai – 600 034, if so advised and if the writ petitioners so desire.
19. The caveat is if the writ petitioners choose to do so that will be subject to limitation and pre-deposit condition if any. In this regard, I have to make it clear that on limitation, the obtaining law qua powers of Commissioner of TN HR & CE Dept., has been set out in G.Rukmani Ganesan's case [G.Rukmani Ganesan Vs. The Commissioner, The Tamil Nadu Hindu Religious and Charitable Endowments Board and Others reported in (2019) 7 SCC 108] . I leave it at that. Besides this is the caveat I would also provide a window to the writ petitioners and that window is if the writ petitioners take the statutory appeal route the same shall be considered on its own merits [subject of course to limitation and pre-deposit conditions] untrammelled by various observations that have been made in this order. https://hcservices.ecourts.gov.in/hcservices/
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20. Ergo curtains are down on the captioned writ petitions and the captioned Writ Miscellaneous Petitions therein. There shall be no order as to costs.
Sd/-
Assistant Registrar (CS-III)
// True Copy //
MR
NOTE: In view of the present lock down owing to COVID-19 pandemic, a web copy of the order may be utilized for official purposes, but, ensuring that the copy of the order that is presented is the correct copy, shall be the responsibility of the advocate/litigant concerned.
To
1.The Joint Commissioner,
Hindu Religious and Charitable Endowment Department, Thanjavur, Thanjavur District.
2.The Assistant Commissioner,
Hindu Religious and Charitable Endowment Department, Thanjavur, Thanjavur District.
+2 CC to M/s.G.GOMATHI SANKAR, Advocate ( SR-97[F],98 dated 04/01/2022 )
+1 CC to M/s.SPL.GP ( SR-186[F],176 dated 04/01/2022 )
+1 CC to M/s.V.CHANDRASEKAR, Advocate ( SR-279[F] dated 05/01/2022 )
W.P.[MD]Nos.22902 & 23016 of 2021 03.01.2022
NSN(CO) KB(20.01.2022) 8P 7C
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3 issues framed by the court
Whether a statutory revision under Section 21 of the TN HR & CE Act is the appropriate remedy to challenge the orders.
Whether any of the 'Whirlpool Exceptions' apply to bypass the principle of alternate remedy.
Whether the writ petitioners' claim of ill health justifies dispensing with the opportunity to appear before the Joint Commissioner.
Colour shows how this judgement treated each authority
Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai and othersReferred¶70
(1998) 8 SCC 1 · Who else cites this
3 provisions across 2 enactments
K. Manokaran
K. Venkatachalam
The Joint Commissioner, Hindu Religious and Charitable Endowment Department, Thanjavur
The Assistant Commissioner, Hindu Religious and Charitable Endowment Department, Thanjavur
The Executive Officer, Arulmigu Palaivana Nagasamy Thirukovil
M. Sundar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
