Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2011 Supreme(Mad) 4697

High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE ELIPE DHARMA RAO & THE HONOURABLE MR. JUSTICE D. HARIPARANTHAMAN
Narayanan
Versus
The State of Tamil Nadu rep. by its Secretary, Chennai & Others
W.A.Nos. 849, 1348 to 1355 of 2009 W.P.NOs. 10173 & 20487 of 2010 & Connected Miscellaneous Petitions
Decided On :Decided on : 09-12-2011

Advocates Appeared:
For the Petitioner - T.V. Ramanujan, Senior Counsel for T.C.A. Shrinivasan & T.C.A. Vijay Ananth, Ms. Chitra Sampath, M/s.V. Raghupathi & G. Devi, T.L. Rammohan, Senior Counsel for Ms.G. Sumitra, Advocates.
For the Respondents - V. Ramasamy, & H.R. & C.E., Addl. Advocate General for T. Chandrasekar, Special Govt. Pleader (HR&CE), K. Chandrasekaran, S.D. Ramalingam, Advocates.

The main legal point established in the judgment is the status of the appellants/petitioner as encroachers and the constitutional validity of Sections 78, 79(3) and 109 of the HR & CE Act.

Headnote:
HR & CE Act - Constitutional Validity - Sections 78, 79(3) and 109 - Summary of Acts and Sections
Fact of the Case:

The case involved the challenge to the constitutional validity of Sections 78, 79(3) and 109 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 (Act 22 of 1959) as amended by Tamil Nadu Act 39 of 1996 and Act 28 of 2003. The appellants and the petitioner claimed to be tenants/lessees in occupation of the land belonging to the Temple concerned and approached the Court to declare the various provisions of the HR & CE Act as unconstitutional.
Finding of the Court:

The Court found that the appellants/petitioner were encroachers as they were in occupation without the approval of the competent authority and continued to remain in the property after the expiry or termination or cancellation of the lease. The Court also upheld the amendment brought into existence by way of Tamil Nadu Amendment Act 28 of 2003 regarding Section 109 of the HR & CE Act.
Issues: The issues involved the constitutional validity of Sections 78, 79(3) and 109 of the HR & CE Act, and the status of the appellants/petitioner as encroachers.
Ratio Decidendi: The Court held that the appellants/petitioner were encroachers as they were in occupation without the approval of the competent authority and continued to remain in the property after the expiry or termination or cancellation of the lease. The Court also upheld the amendment brought into existence by way of Tamil Nadu Amendment Act 28 of 2003 regarding Section 109 of the HR & CE Act.
Final Decision: The writ appeals and the writ petitions were dismissed, subject to the directions given in the judgment.

Judgement Key Points

Key Points: - The Act challenges relate to the constitutional validity of Sections 78, 79(3) and 109 of the HR & CE Act, as amended, under challenge to ultra vires the Constitution of India. [21000878280001] - The Court held that the appellants/petitioners were encroachers since they occupied without the approval of the competent authority and continued after expiry/termination/cancellation of lease. [21000878280013] - The amendment Tamil Nadu Amendment Act 28 of 2003, introducing Section 109, is upheld and considered akin to providing a removal of limitation, allowing action to restore temple properties. [21000878280021] - Section 78 procedure requires Joint Commissioner to issue show-cause notices, consider objections, conduct inquiry, and pass eviction orders; the Joint Commissioner’s orders are not absolute and can be reviewed or remitted. [21000878280014][21000878280017] - Section 79(4) bars Civil Court suits or injunctions against proceedings under Section 78, but the bar applies to encroachers, not to lawful possessors such as lessees/licensees/mortgagees. [21000878280016] - The Court directs the Commissioner/State to implement Sections 34, 34-A, 34-B (lease regime) and to execute lease deeds with rent fixation to protect temple properties, indicating a shift towards enforcement via lease mechanisms. (!) [21000878280028]

What is the constitutional validity of Sections 78, 79(3) and 109 of the HR & CE Act as amended, and their application to encroachers?

What is the status of appellants/petitioners as encroachers under Section 78 and the implications for eviction procedures?

What is the validity and impact of Tamil Nadu Amendment Act 28 of 2003 (Section 109) on limitation for removal of temple properties?

Judgment :-

ELIPE DHARMA RAO, J

1. The issue involved in all these matters is being intrinsically inter-connected, all were heard together and disposed of by this common judgment.

2. In all these matters the challenge is with regard to constitutional validity of Sections 78, 79(3) and 109 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 (Act 22 of 1959) (in short "the HR & CE Act") as amended by Tamil Nadu Act 39 of 1996 as well as by amended Act 28 of 2003 as ultra vires the Constitution of India.

3. The appellants and the petitioner in W.P.No.20487 of 2010 claim to be the tenants / lessees in occupation of the land belonging to the Temple concerned for the past several years. According to the appellants / petitioner, while they are in lawful occupation, the authorities of the HR & CE Department had issued notice purported to be under Section 78(2) of the HR & CE Act to show cause as to why they should not be evicted. Admittedly, without offering any objections as contemplated in Section 78(4), the appellants as well as the petitioners have approached this Court to declare the various provisions of the HR & CE Act as unconstitutional.

4. Ms. Chitra Sampath, learned counsel appearing for the appellant in W.A.No.849 of 2009 contended that the procedure contemplated under Section 78(1) and (4) is arbitrary and the authorities at their whims and fancies can evict any person out of possession. She has also contended that the Joint Commissioner has no jurisdiction to issue notice under Section 78(2) as the appellants are not encroachers. She has further contended that that prevention of moving the Civil Court under Section 79(2) has been curtailed by Section 79(3), which is illegal and it is liable to be struck down.

5. Mr.T.V. Ramanujan, learned Senior Counsel submitted that though he is not appearing for the encroachers he is appearing for the persons who are lessees, licencees or mortgagees or whose lease were not renewed. He has specifically contended that the power granted under Section 109 of the HR & CE Act, excluding the Limitation Act, 1963, would result in all old issues being raked up and, therefore, it has to be held as unconstitutional.

6. Mr.V. Raghupathi, the learned counsel for the petitioner in W.P.No.10173 of 2010, submitted that the bar under Section 79(3) to approach the Civil Court in grant of injunction against the order of the Joint Commissioner is bad and should be interfered with.

7. Mr.T.L. Rammohan, Senior Counsel, appearing for the petitioner in W.P.No.20487 of 2010 would contend that the procedure contemplated under Sections 78 and 79 in Chapter VII relates to encroachments and, since the possession of the petitioner by the Department is admitted, instead of issuing notice under Section 78(2), the procedure contemplated under Section 34 should have been followed. In support of such contention, he has placed reliance upon a Division Bench decision of this Court reported in 2007(4) MLJ 1002 (C. Sathish Kumar v. Commissioner, Hindu Religious and Charitable Endowments Department, Chennai and others).

8. We have heard the learned counsel appearing for the parties and perused the materials placed on record.

9. The Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 (Tamil Nadu Act 22 of 1959) has received the assent of the President on 19.11.1959 and was first published in the Gazettee on 2.12.1959. The object of the Act is to amend and consolidate the law relating to the administration and governance of Hindu Religious and Charitable Institutions and Endowments in the State of Tamil Nadu.

10. The said Act was further amended by Tamil Nadu Act No.25/2003 after receiving the assent of the Governor on 1st July, 2003. The Statement of Objects and Reasons of such amended Act is as follows :-

"Statement of Objects and Reasons - The ground rent charged for the temple lands given on long term leases is abnormally low when compared to the present market rental values. The low ren

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