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Judgment
R. Banumathi, J.—Petitioner in both the Writ Petitions seek Writ of Certiorarified Mandamus to quash the impugned Order of the 1st
Respondent dated 30.9.2006 and consequently direct the 2nd Respondent to evict Respondents 3 to 13 in W.P. No. 44413/2006 from S. Nos.
251/3A, 251/4 and 251/5 and Respondents 3 to 8 from S. No. 426 of Rajapalayam Revenue Village and Taluk respectively.
Since common questions of fact and law are involved in these Writ Petitions, both Writ Petitions shall stand disposed by this Common order.
Facts in nutshell are as follows:
(i) Thiruvavaduthurai Adheenam owns movable and immovable properties all over Tamil Nadu. An extent of 1.41 acres of land comprised in S.
Nos. 251/3, 251/4, 251/5 and 426 in Rajapalaym Town belong to the Adheenam. In the year 1965 and 1966, these lands were leased out to the
father of 3rd Respondent by the Adheenam authorities and 3rd Respondent came into occupation after the death of his father Durai Venkataraja.
As per the terms and conditions of the lease deed, lessees were prevented from sub-letting the property to any third party. Contrary to the lease
conditions, 3rd Respondent leased out the property to various persons by way of sub-lease and violated the lease conditions.
(ii) Case of the Petitioner is that as per Tamil Nadu Hindu Religious and Endowment Act (for short HR & CE Act), sub-tenants are deemed to be
an encroachers and Adheenam has filed Petition before the 2nd Respondent-Joint Commissioner to evict the encroachers. After due enquiry, 2nd
Respondent by order date 21.2.2005 held that father of the 3rd Respondent had no right to sub-lease the properties to third persons and the
alleged sub-tenants are only encroachers and are liable to be evicted.
(iii) Further case of the Petitioner is that after holding enquiry, by the order dated 21.2.2005, 2nd Respondent has passed eviction order against
Respondents 3 to 13 in W.P. No. 44413/2006. Being aggrieved, Respondents have preferred Revision Petitions before 1st Respondent in R.P.
No. 13 and 14/2005. 1st Respondent arrived at the conclusion that even though Revision Petitioners filed number of documents relating to the
subject matter, the same was not marked as Exhibits and therefore, 1st Respondent-Commissioner has remanded the matter for denova enquiry
by giving opportunities to the parties to establish their case by filing necessary documents.
Submitting that before 2nd Respondent, no opportunity was given and that 3rd Respondent had filed counter stating that 1st Respondent has
passed an order to set right the proper judicious approach. It is averred that 2nd Respondent has never adverted to any of the facts on merits and
only to give fair and proper opportunity, 1st Respondent has remanded the matter.
First Respondent has filed the counter stating that as per the provisions u/s 21 of HR & CE Act, 1st Respondent is empowered to modify or
reverse any of the order passed by the Jt. Commissioner and therefore, the impugned order is in accordance with the provisions.
Mr. R. Muthukumarasamy, learned Senior Counsel for the Petitioner contended that the properties are Adheenam properties and that enquiry
held by the Jt. Commissioner was in accordance with the procedure and the 1st Respondent-Commissioner was not right in remanding the matter
for fresh enquiry. Drawing Court''s attention to the averments in the counter-affidavit filed by the 1st Respondent, learned Senior Counsel mainly
contended that when the Commissioner had observed that tenants are prohibited from subletting and that sub-lessees are to be treated as
encroachers u/s 78 and 79 of HR & CE Act, the Commissioner was not right in remanding the matter.
Mr. T. Srinivasa Raghavan, learned Counsel for the Respondents 3 to 8 contended that inspite of number of documents produced before the
2nd Respondent, 2nd Respondent-Jt. Commissioner had not taken note of those documents by giving them marking as Exhibits and without
proper enquiry, Jt. Commissioner has passed the order of eviction. It was further contended that having regard to violation of principles of natural
justice, 1st Respondent has rightly remanded the matter for fresh adjudication. It was further contended that the impugned order passed by the 1st
Respondent is well within the purview of Section 21 of HR & CE Act, as per which, the Commissioner has to satisfy himself the legality of the
proceeding and correctness or propriety of the decision.
Laying emphasis upon Section 21 of HR & CE Act, Mr. T. Chandrasekaran, learned Special Govt. Pleader for the 1st Respondent contended
that u/s 21 of HR & CE Act, 1st Respondent is empowered to annul or modify or reverse or confirm or remit any order passed by the Jt.
Commissioner after examining the same and therefore, the impugned order is in accordance with law warranting no interference.
Petitioner Adheenam seeks Writ of Certiorarified Mandamus to quash the order passed by the 1st Respondent. What emerges from various
decisions of the Supreme Court is that for issue of Writ of Ceriorarified Mandamus, the following propositions are to be established:
''Certiorari'' will be issued for correcting errors of jurisdiction, as when and inferior Court or Tribunal acts without jurisdiction or in excess of it, or
fails to exercise it.
''Certiorari'' will also be issued when the Court or Tribunal acts illegally in the exercise of its undoubted jurisdiction, as when it decides without
giving an opportunity to the parties to be heard, or violates the principles of nature justice.
The Court issuing a writ of ''certiorari'' acts in exercise of a supervisory and not appellate jurisdiction. One consequence of this is that the Court or
Tribunal, even if they be erroneous. This is on the principle that a Court which has jurisdiction over a subject-matter has jurisdiction to decide
wrong as well as right and when the Legislature does not choose to confer a right of appeal against that decision, it would be defeating its purpose
and policy, if a superior Court were to rehear the case on the evidence, and substitute its own findings in ''certiorari''.
In the given facts and circumstances, it is to be seen whether the order of the 1st Respondent is without jurisdiction and whether there is lack of
fair play in action.
In the order dated 21.2.2005, 2nd Respondent has pointed out that inspite of several adjournments, Respondents 3 to 8 have not produced
the documents. Observing that properties belong to Adheenam and that Respondents 3 to 8 are encroachers, 2nd Respondent passed the order of
eviction.
Respondents 3 to 8 stoutly deny any opportunity being granted to them by the 2nd Respondent. Section 78 of HR & CE Act deals with
encroachment by persons on land or building belonging to Charitable or Religious Institution or Endowment and the eviction of encroachers.
Where the Asst. Commissioner having jurisdiction either suo motu or upon a complaint made by the trustee has reason to believe that any person
has encroached upon the property belonging to the religious institution or endowment, he shall report the fact together with relevant particulars to
the Jt. Commissioner having jurisdiction over the division in which the religious institution or endowment is situated.
As per Section 78(2) of HR & CE Act, on perusal of the report received under Sub-section (1) by the Jt. Commissioner where Jt.
Commissioner finds that there is a prima facie case of encroachment, he shall cause to serve show cause notice upon the encroacher requiring him
to remove the encroachment before the dates specified on the notice. As per Section 78(4) of HR & CE Act, the Jt. Commissioner shall conduct
such enquiry as may be prescribed and pass order removing the encroachment.
Section 78(4) reads as under:
Section 78(4): Where after considering the objections, if any, of the encroacher received during the period specified in the notice referred to in
Sub-section (2) and after conducting such inquiry as may be prescribed, the Joint Commissioner is satisfied that there has been an encroachment,
he may by order and for reasons to be recorded, require the encroacher to remove the encroachment and deliver possession of the property (land
or building or space) encroached upon to the trustee before the date specified in such order.
For conducting enquiry, ''Holding of Enquiries Rules, 1961'' have been framed. Enquiry has to be conducted as per the prescribed rules.
Upon going through the order of the 2nd Respondent, 1st Respondent-Commissioner was satisfied that due opportunity was not given to the
Respondents. While setting aside the order of the 2nd Respondent, 1st Respondent has observed that ""a fair enquiry is necessary and must and in
order to ascertain the truth and arrive at a fair and justifiable conclusion, he can enquire witnesses and if he considers such an elaborate enquiry
was not necessary in the context of good and sufficient documentary evidence, he should say so in his orders."" While setting aside the order of the
2nd Respondent, Commissioner has observed that a reasonable opportunity must be afforded to the alleged encroachers. It cannot be said that 1st
Respondent has exceeded his jurisdiction warranting interference.
In Para (4) of the counter, 1st Respondent has observed that as per the lease deeds, tenant is prohibited from subletting the property and
therefore, sub-tenants are considered as ''encroachers'' as defined u/s 78 and 79 of HR & CE Act.
Mr. R. Muthukumarasamy, learned Senior Counsel for the Petitioner Adheenam contended that having expressed the view that sub-tenants
are to be considered as encroachers as defined u/s 78 and 79 of the Act, 1st Respondent ought not to have remanded the matter setting aside the
order of 2nd Respondent and remanded the same for fresh enquiry.
In the counter-affidavit filed in the Writ Petition, though 1st Respondent has observed that terms of lease deed prohibits subletting of the
property and that sub-tenants are to be considered as encroachers, 1st Respondent-Commissioner has categorically averred that to avoid any
technical objection, the matter has to be remanded back to the 2nd Respondent. Since no evidence was adduced by the Respondents and having
regard to the facts and circumstances of the case, the matter was remanded back to the 2nd Respondent for fresh adjudication on technical
grounds, so that later the Respondents may not raise objection on technical grounds.
As per Section 21 of HR & CE Act, 1st Respondent is empowered to annul or to modify or to reverse or to confirm or to remit any order
passed by the Jt. Commissioner/Dy. Commissioner/Asst. Commissioner or any Religious Institution by calling for the records and examining them.
1st Respondent is well within his power in examining the records and to satisfy himself as to the regularity of such proceeding or correctness,
legality or propriety of any decision or order passed therein. It cannot be said by examining the matter for fresh adjudication, 1st Respondent has
exceeded his jurisdiction warranting interference by this Court.
Power of judicial review is not intended to don the supervisory role. It is only to see that parties confined with their limits. The impugned order
does not suffer from serious infirmity warranting interference.
Much arguments were advanced on either side in respect of earlier litigations and rights of the parties. As the matter has to be heard afresh by
the 1st Respondent, this Court does not propose to go into the merits of the matter.
In the result, the order of the 1st Respondent in R.P. Nos. 13 & 14/2005 dated 30.9.2006 is confirmed and these Writ Petitions are disposed
of with the following directions and observations:
2nd Respondent shall afford sufficient opportunity to both parties (including Adheenam) and dispose the matter within a period of four months from
the date of first appearance of parties.
Both parties shall co-operate with the enquiry proceedings by the 2nd Respondent for early disposal of the matter.
Both parties are directed to appear before the 2nd Respondent on 10.12.2008.