V. Sundararajan vs The Executive Officer, Arulmigu Senkulathan Kuzhanthazhamman Tirukoil Tillai Nagar, Trichy-18

K. Chandru, J.—The three writ petitions are filed by the petitioners against the order of the Executive Officer, Arulmigu Senkulathan Kuzhanthazhamman Tirukoil, Tillai Nagar, Trichirapalli. The prayer of the petitioners was to set aside the notice issued by the respondent temple, dated 02.05.2006. By the impugned notices, the petitioners were informed by the Executive Officer that rental agreement was cancelled as they are failed to pay rental as well as the balance. Therefore they will be deemed to consider as encroacher. Since the buildings belong to the temple, they were directed to entrust the site to the temple and also to pay back the balance. Failing which they were informed action will be initiated under Sections 78 and 79 of the Hindu Religious and Charitable Endowments Act, 1959 (hereinafter referred as the Act).

The writ petitions were admitted on 31.05.2006. Pending the writ petitions, this Court granted interim stay, subject to the condition that the petitioners paying 25% of the arrears, within a period of four weeks and also continues to pay the revised rent. Failure to comply with the orders will result in the automatic dismissal of the said applications.

It is not clear whether the petitioners had complied with the interim orders. Even otherwise, the contentions raised by the petitioners were that the building was a non-residential building and they were occupying the building from the days of their ancestral. The increase in the rent was abnormal and they need not pay any arrears.

In any event, Section 78 of the Act was introduced by the Tamil Nadu Act 39 of 1996. It is open to the authorities to move the Assistant Commissioner or the Assistant Commissioner can exercise suo motu jurisdiction if he believes that the lands have been encroached and he can ask for vacating the place. On such notice, the encroacher can satisfy the authorities as to why he should not be removed. Section 80 provides for removal of eviction of lessees, licensees or mortgagees who are in possession of the lands belong to the temple. Section 81 of the Act provides for an appeal and Section 83 provides for constitution of tribunal.

The constitutional validity of these provisions found in Chapter VII introduced by Tamil Nadu Act 39 of 1996 came to be challenged before this Court and the same was upheld vide its judgment in Adivaram Varthagargal Sangam Palani Vs. The State of Tamil Nadu reported in (2009 (1) TNCJ 319). It is necessary to refer paragraphs 28 and 29 of the judgment which is as follows:- 28. Therefore, in the light of the above legal precedents, it must be stated that the challenge to the amendment made in this writ petition cannot be countenanced by this Court and are liable to be rejected. The Amendment Act has validly classified the encroachers, other interest holders and title holders of the properties and has treated them differently. In respect of the encroachers, a procedural right of hearing has been given. The Joint Commissioner, HR & CE, who is the competent authority, first of all must have informatino before him so that he can have ''reason to believe'' that a person had encroached upon the property of a religious institution. Thereafter, he should ''prima facie'' come to the conclusion that the person is an encroacher in terms of explanation to Section 78(1). It is only on a prima facie conclusion he can order notice to the alleged encroachers as well as to the trustees of the religious institution. Section 78(4) gives three statutory mandate on the competent authority. They are that he should conduct such ''enquiry'' as may be prescribed and he should be ''satisfied'' that there was an encroachment and only by an order in which he has to ''record reasons'' he can direct removal of such a person.

In case the competent authority fails to follow the mandate of Section 78, judicial review under Article 226 is clearly available to such aggrieved persons. Therefore, even in the absence of any appeal, as directed by the Constitution Bench of the Supreme Court in Meenakshi Mills case, it is not as if parties are without remedies and they can move this Court under Article 226. Therefore, on this score this Section cannot be held to be unconstitutional.

In the impugned notices, the respondent had only threatened the petitioners to pay revised rent amount, failing which they informed that they will move the authorities concerned. Though the impugned order does not create any cause of concern, the petitioners rushed to this Court. As and when any notice issued by the jurisdictional Assistant Commissioner, the petitioners can put-forth their views. There is no case made out by the petitioners to entertain the writ petitions. Accordingly, the writ petitions will stand dismissed. No costs. Consequently, connected miscellaneous petitions are closed.