ORDER

The subject matter of challenge in the present Writ Petition is the interim order passed by the first respondent in I.A.No.1 of 2021 in M.P.No.17 of 2019, dated 04.02.2021.

2. Heard Mr.A.Saravanan, learned counsel appearing on behalf of the petitioner, Mr.K.P.Narayana Kumar, learned Special Government Pleader appearing on behalf of the first respondent and Mr.Lakshmi Shankar learned counsel appearing on behalf of the second respondent.

3. The second respondent has initiated proceedings against the petitioner under Section 78 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959, (Hereinafter referred to as “The Act”) on the ground that the petitioner is an encroacher upon the Temple property. Pending this petition, an Interlocutory Application was filed by the second respondent before the first respondent restraining the petitioner from proceeding further with his business. The said Interlocutory Application was allowed by the first respondent by order dated 04.02.2021. Aggrieved by the same, the present Writ Petition has been filed before this Court.

4. The second respondent had filed an Interlocutory Application before the first respondent to restrain the petitioner from utilising the property on the ground that the petitioner is using the property for serving non vegetarian food within the precincts of the Temple which goes against the agamas and adversely impacts the purity of the Temple. Therefore, according to the second respondent, the petitioner was virtually interfering with the sanctity of the Temple premises. The first respondent, on considering the facts and circumstances, exercised his discretion and passed the interim order restraining the petitioner from utilising the property for the above said purpose.

5. One of the main contention that was raised by the learned counsel appearing for the petitioner is that the first respondent did not have the power or jurisdiction to pass the interim order and Section 78 of the Act does not vest with any such power on the first respondent. In the considered view of this Court, the first respondent has been vested with the jurisdiction to remove the encroachment after conducting the enquiry under Section 78 of the Act. While exercising such a power, the first respondent is also vested with other attendant powers including the power to pass interim orders.

6. Section 78(4) of the H.R & C.E. Act (the Act) requires the Joint Commissioner to conduct an inquiry before passing orders for removal of encroachments. The manner of holding an enquiry under this provision has been elaborately set out in the Removal of Encroachments on Lands or Buildings belonging to Religious Institutions Rules (the Encroachment Rules). Rule 5 reads as follows:-

“Enquiries – The provisions of the rules issued under Section 116(2)(iii) shall apply to the conduct of enquiries under Section 78(4) to 81(3) of the Act, and the provisions of the Code of Civil Procedure, 1908 (Central Act V of 1908) and the Civil Rules of Practice and the Circular Orders shall apply, as far as practicable, to appearance of pleaders and to affidavits, production of documents, examination of witnesses, taking of oral evidence, proof by affidavits, filing of exhibits, issue of Commissions, return of documents not admitted in evidence and other connected matters.”

7. In exercise of power under Section 116(iii) the Government has framed the Holding of Inquiries Rules, 1961. Rule 5 of the Encroachment Rules specifically make the provisions of these rules applicable to an enquiry under Section 78(4) of the Act. Rule 20 of the 1961 Rules reads as follows:

“The provisions of the Code of Civil Procedure, 1908 (Central Act V of 1908) and the Civil Rules of Practice and Circular Orders shall apply, as far practicable, to appearance of pleader and to affidavits, production of documents, examination of witnesses, taking of oral evidence, proof by affidavits, filing of exhibits, issue of commissions, return of documents not admit