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Judgment
D. Murugesan, J.—Though the writ appeal questions the order 30.3.2004 made in W.P.M.P. No. 44114 of 2003 & W.V.M.P. No. 131
of 2004 in W.P. No. 36353 of 2003 making the interim injunction absolute, considering the nature of dispute, the writ petition itself was directed
to be called along with the writ appeal. For convenience, we refer the parties as arrayed in the writ petition.
The land in Survey No. 1274/1 & 2 to an extent of 2 acres together with building for running a rice mill is owned by Arulmighu Katchaleswarar
Temple, Kancheepuram. It was initially leased out to the father of the petitioner and thereafter the petitioner was inducted as a lessee by the
execution of lease deed dated 22.10.99 for a period of three years upto 30.9.2002. On 11.7.2000, he was issued with a notice stating that
pursuant to the lease deed, he has not paid the rent in a sum of Rs. 83,333/- due and payable as on 30.6.2000. Therefore, the lease deed was
terminated on 31.7.2000. The petitioner was called upon to hand over vacant possession by 1.8.2000. As the petitioner did not act on the said
notice by depositing the amount and the said termination order was also not questioned, it appears that the temple filed O.S. No. 179 of 2002
before the learned Subordinate Judge, Kancheepuram seeking for a judgment and decree for delivery of vacant possession of the suit property and
also to pay a sum of Rs. 3,33,333/- together with interest at the rate of 12% per month from the date of plaint till the date of realisation. We are
informed that though the said suit was dismissed by the learned Subordinate Judge, on an appeal, the same was decreed and at the instance of the
petitioner, a second appeal has been filed and the same is pending on the file of this Court. Simultaneously, the Joint Commissioner of Hindu
Religious and Charitable Endowments Department, by the proceedings dated 26.8.2003 which is impugned in the writ petition, passed the order
u/s 78 of the Hindu Religious and Charitable Endowments Act.
In questioning the said order, Mr.S.Kamadevan, learned Counsel appearing for the petitioner would submit that as the petitioner was granted
lease and even after the expiry of the lease he is holding over the property, he cannot be treated as an encroacher and consequently the
respondents cannot invoke the provisions of Section 78 of the said Act to pass the impugned order.
We have heard Mr.T. Chandrasekaran, learned Special Government Pleader appearing for the H.R. & C.E. Department and Mr. K.
Hariharan, learned Counsel appearing for the Temple.
Section 78 of the Hindu Religious and Charitable Endowments Act was introduced by Tamil Nadu Act 39 of 1996 and the same came into
force on 9.12.96. The said provision was incorporated taking into consideration of the fact that large number of lands belonging to the temples are
occupied by individuals and the temples are facing serious problems in getting those persons evicted. There is no dispute that by virtue of Sub-
section (1) of Section 78, the Assistant Commissioner having jurisdiction over the area, either suo motu or upon a complaint made by the trustees,
could pass orders of eviction in the event he has reason to believe that there was encroachment of the temple property. By virtue of sub-clause (b)
of Sub-section (1) of Section 78, the word ""encroacher"" also includes any person who continues to remain in the property after the expiry or
termination or cancellation of the lease mortgaged or licence granted. By virtue of the said provision, a power is conferred on the commissioner to
issue orders of termination in the event he satisfies that the temple land is being encroached.
It is the contention of Mr.S.Kamadevan, learned Counsel for the petitioner that inasmuch as the petitioner is a lessee, he cannot be considered
to be an encroacher. In our opinion, the said contention cannot be accepted. It could be seen that though the lease deed was entered into for a
period of three years, on 30.9.2002, the said period expired, and after the expiry of the said period, the lessee cannot claim that the lease is
automatically renewed. That apart, even before the lease period was over, by a notice dated 11.7.2000, the Assistant Commissioner had already
terminated the lease. In this context, we may also refer to the lease deed. Clause 12 of the lease deed dated 22.10.99 empowers the temple to
terminate the lease and evict the tenant even without any notice after the lease period had come to an end. In exercise of the said power, the lease
was terminated and on and after 30.9.2002, the petitioner cannot claim that he is a lessee.
The learned Counsel for the petitioner had further advanced the argument that he is holding over the property. In our opinion, in view of the
termination of lease, he cannot claim the said benefit as well. As we are considering the validity of the order of eviction passed by the Assistant
Commissioner, it would be suffice for us to see whether the said order could be successfully attacked on the ground of want of jurisdiction. Section
78, in our opinion, would certainly give such a power of termination of lease in the event of default in the payment of rent and though in the
impugned order, the Assistant Commissioner has also stated that the petitioner is an encroacher, having regard to the fact that he has also applied
his mind to the fact that for want of payment of rent, the petitioner was issued with the proceedings terminating the lease on 11.7.2000. Hence the
question of holding over does not arise on the facts of this case.
It is also contended by the learned Counsel for the petitioner that inasmuch as the respondents had approached the civil Court seeking for
delivery of possession, the impugned proceedings should not have been issued. In our opinion, the said suit was filed based upon the termination
notice dated 11.7.2000 and merely because the temple had approached the civil Court for delivery of possession, that will not stand in the way of
the authority empowered u/s 78 to issue eviction order, provided if such authority is satisfied that the petitioner is an encroacher. Factually, right
from the date the lease deed was executed, there were arrears of rent and even as on 30.6.2000, there were arrears of Rs. 83,333/- representing
at least eight months from the said date. The lease deed was dated 22.10.99. Therefore, the petitioner had not even paid the rent for any period.
Hence the challenge to the impugned order that the Assistant Commissioner cannot invoke Section 78 of the Hindu Religious and Charitable
Endowments Act against the petitioner to evict him from the premises cannot be accepted. Accordingly, the writ petition fails and the same is
dismissed. Consequently, W.P.M.P. No. 44115 of 2003 is also dismissed. The writ appeal is allowed. No costs.