M. Jaheer Hussain vs The Government of Tamil Nadu

R. Sudhakar, J.—This writ petition has been filed by the shop-owners, whose shops are located in and around the temple Tank of the 4th respondent temple, namely, Arulmigu Koodal Alagar Perumal Kovil seeking to quash the orders of the 4th respondent, dated 30.12.2013 (individual orders issued to all the petitioners) directing them to vacate their shops and hand-over vacant possession of the property within 30 days from the date of receipt of the orders and further stating that in case of failure action will be taken as per section 80 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959, since those shops above been put-up blocking the water course leading to the temple tank and encroaching upon the banks of temple tank. Mr. V.R. Shanmuganathan, learned Special Government Pleader, takes notice on behalf of respondents 1, 2, 3 and 5 Mr. S. Manohar, learned counsel takes notice for respondent No. 4 and Mr. R. Murali, learned counsel, takes notice for respondent No. 6 By consent, the main writ petition itself is taken up for final disposal at the admission stage itself.

Heard the learned counsel for the petitioner, and the learned counsel for the respondents. We have also perused the materials on record.

Earlier, in a public interest litigation, the authorities were directed to take steps to remove all sorts encroachments, so that the 4th respondent temple tank is restored to its original position, For whatever reason, the temple authorities have been allowing all sorts of shop keepers to occupy open places, adjacent to the temple as well as its tank. Now, the authorities have proposed to take action for resuming those lands in the manner provided under the Tamil Nadu Hindu Religious and Charitable Endowments Act and also under the provisions of the Transfer of Property Act.

The cause of action for filing this writ petition is the Final Notice issued to each one of the shop-owners and those notices are challenged by the individual shop-owners in this common writ petition. The authority, namely, the Assistant Commissioner/Executive Officer, Arulmighu Koodal Alagar Perumel Kovil, has issued those notices under section 80 of the Tamil Nadu Hindu Religious and Charitable Endowments Act read with Section 106 of the Transfer of Property Act.

Mr. A. Thirumurthy, learned counsel for the petitions submitted that the petitioners are occupying the shops as tenants/lessees, pursuant to the agreements executed between the shop-owners and the 4th respondent and the petitioners are regularly remitting monthly rents. It is pointed out by the learned counsel for the petitioner that Section 80 of the Tamil Nadu Hindu Religious and Charitable Endowments Act provides for certain procedures to evict lessees, licensees or mortgagees with possession and in any event it should start with issuance of show cause notice before any order is passed by the Assistant Commissioner. According to him, in this case, the provisions of Section 80 of the Tamil Nadu Hindu Religious and Charitable Endowments Act have been followed before issuing the impugned notices and in the last paragraph of the notices, it has been clearly indicated that the shop-owners should vacate the shops and hand-over premises to the temple authorities and therefore it is more in the nature of an order by an incompetent authority. He would further point out that the role of the Assistant commissioner in restricted to filing a report to the higher authority and it is the higher authority, as contemplated under Section 80 of the Tamil Nadu Hindu Religious and Charitable Endowments Act to exercise the right and to issue show cause notice and to proceed further, in accordance with law.

We find much substance and force in the argument of the learned counsel for the petitioners. A reading of Section 80 of the Tamil Nadu Hindu Religious and Charitable Endowments Act would clearly show that sub-section (1) of Section 80 provides for a report by the Assistant Commissioner if he is of the view that the lessee with possession of any land belonging to the religious institution situated within or outside the prakarams, mantapams, courtyards or corridors of the religious institution has taken action which has marred or is likely to mar the artistic appearance or the religious atmosphere of the religious institution, the Assistant Commissioner shall report the fact together with relevant particulars to the Joint Commissioner or the Deputy Commissioner, as the case may be, having jurisdiction over the area in which the religious institution is situated. Thereafter, as provided in sub-section (2) of Section 80, if the Joint Commissioner of the Deputy Commissioner, as the case may be, is satisfied with the report of the Assistant Commissioner shall issue a show cause notice requiring the lessee to explain as to why his lease or licence should not be terminated and also requiring him to deliver possession of the property.

In this case, we find that the Assistant Commissioner himself has exercised jurisdiction under Section 80(2) of the Tamil Nadu Hindu Religious and Charitable Endowments Act read with section 106 of the Transfer of Property Act and issued notices calling upon the individual shop-owners to vacate their shops and hand-over vacant possession of the premises, forthwith. Though the impugned notices are in the nature of notice, the pith and substance of the same is that the individual shop owners should vacate and hand-over possession immediately i.e. within 30 days from the date of receipt of the notices, which is not in consonance with Section 80 of the Tamil Nadu Hindu Religious and Charitable Endowments Act. It is another matter if the notices are issued under Section 106 of the Transfer of property Act and that is not the case in hand. Therefore, we are constrained to accept the plea of the petitioners and quash the impugned notices, dated 30.12.2013, issued by the 4th respondent, however, giving liberty to the authorities to proceed in the matter, in accordance with law, to resume possession of the property in question. Accordingly, the writ petition is allowed and the impugned notices, dated 30.12.2013, are quashed, however, with the liberty as indicated above. No costs. Connected miscellaneous petitions are closed.