M/S.Gem Oil Company v. The Commissioner

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATE: 27.09.2021

CORAM

THE HONOURABLE MR.JUSTICE M.SUNDAR W.P.No.14380 of 2015 & M.P.No.1 of 2015 M/s. Gem Oil Company Represented by its Partner N.Simmi Rani No.14/1, Divan Bashyam Street Saidapettai, Chennai - 600 015 ... Petitioner Vs.

1. The Commissioner Hindu Religious and Charitable Endowment Mahatma Gandhi Road, Nungambakkam Chennai - 600 034

2. The Joint Commissioner/ Executive Officer Arulmigu Arunachaleswarar Thirukoil Thiruvannamalai 606 601

3. M. Ashok Sen S/o Indira Sen ... Respondents Prayer:

Writ Petition filed under Article 226 of the Constitution of India, seeking for writ of Certiorarified Mandamus calling for the records relating to the notice of cancellation of rental licence dated 14.02.2015 passed by the 2nd respondent and quash the same and directing the respondents 1 and 2 to transfer the name in favour of the petitioner in respect of the property at Oour Village S.No.22/2, Block No.3, No.18, Arunachalapuram IInd Street, Adyar, Chennai 20 measuring an extent of 4808 Sq.ft. wherein the petitioner is running kerosene dealership under the name of M/s.Gem Oil Company. For Petitioner :

M/S.M.Baskar For Respondents :

Mr.NRR.Arun Natarajan Government Advocate Ms.V.Pavithra for Mr.S.Rajasekar

ORDER

Mr.M.Baskar, learned counsel for writ petitioner, Mr.NRR.Arun Natarajan, learned State counsel for respondents 1 and 2 (official respondents) and Ms.V.Pavitra, learned counsel representing Mr.S.Rajasekar, learned counsel for third respondent (private respondent) are before this Court.

2. Pleadings are complete, main writ petition was taken up and heard out.

3. Though there is a slew of pleadings, after hearing all the aforementioned learned counsel, it comes to light that the entire matter turns on a very short point or in other words, it turns on a very narrow compass. 'Arulmigu Arunachaleswarar Thirukoil' (hereinafter 'said temple' for the sake of convenience and clarity) is the temple which is forming subject matter of the captioned writ petition, more particularly immovable property belonging to said temple is the fulcrum of the captioned writ petition. To state with specificity, 'immovable property admeasuring 4080 sq.ft or thereabouts at No.18, Arunachalapuram 2nd Street, Adyar, Chennai - 600 020' (hereinafter 'demised property' for the sake of convenience and clarity) belonging to said temple and lease of the same is the central theme of captioned writ petition.

4. There is no dispute or disagreement that demised property was given on lease to one Santha Indra Sen way back in 1937, she died and her date of demise is 17.08.1992. To be noted, third respondent M.Ashok Sen is her son.

5. State counsel has filed a status report and going by the status report, lease in favour of third respondent's mother was cancelled by the second respondent i.e., said temple in and by order dated 14.02.2015.

6. Be that as it may, what is of utmost relevance is, the third respondent has filed a counter affidavit in which the third respondent has made a categoric averment that demised property has been given on lease by the third respondent in favour of the writ petitioner on 01.04.1991. This averment is contained in paragraph 3 of the counter affidavit of the third respondent and the relevant portion of paragraph 3 reads as follows:

'3........ Later on 01.04.1991, I had given the subject property on lease to Gem Oil Company, the writ petitioner herein and the Devasthanam was fully aware of the same as evidenced by their letter dated 01.04.1992....'

7. Learned counsel drew the attention of this Court to a communication dated 01.04.1992 from the said temple and according to him this communication shows that said temple is aware of this sub-lease. A scanned reproduction of this communication is as follows:

8. A perusal of the above communication makes it clear that it certainly does not mention about the writ petitioner as sub-lessee, much less does it recognize the writ petitioner as sub-lessee. There is no scrap of paper to show that the lease in favour of third respondent has enured to the benefit of the writ petitioner, much less is there any other scrap of paper to show that third respondent has any right to sub-let the property in favour of the writ petitioner.

9. In the aforementioned fact setting, learned counsel for writ petitioner adverting to the status report filed by the State very fairly submitted that the State has now initiated proceedings under Section 78 of 'The Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 (Act 22 of 1959)', which shall hereinafter be referred to as 'TN HR & CE Act' for the sake of convenience and clarity, vide a notice dated 08.07.2021 bearing reference Na.Ka.No.1031/2021/A5 (hereinafter 'said 78 notice' for the sake of brevity) and that the writ petitioner has been arrayed as respondent in the same. The notice is before this Court as part of the status report and a scanned reproduction of the same is as follows:

10. Learned counsel for writ petitioner, very fairly submits that writ petitioner will have to necessarily face the Section 78 proceedings.

11. Before proceedings further, this Court deems it appropriate to set out that under Section 78 (a) of TNHR & CE Act, a departure from 'the Transfer of Property Act, 1882' (hereinafter 'TP Act' for the sake of of brevity, convenience and clarity) has been made and even a lessee becomes an encroacher on (i) expiry, (ii) termination, or (iii) cancellation of a lease. To be noted under the TP Act, lessee on expiry of lease would become a lessee holding over, but by operation of legal fiction ingrained in Section 78(a) of TN HR & CE Act even a lessee becomes an encroacher on termination, cancellation or expiry of a lease. In the instant case, the lessee herself i.e., erstwhile lessee (third respondent's mother) has become an encroacher. Be that as it may, third respondent has now made a positive averment (captured supra) that possession of demised property has been given to the writ petitioner.

12. Therefore, one cannot find fault with the said temple for taking recourse to Section 78 proceedings by resorting to Section 78(a) of TN HR & CE Act, but with a caveat that 78 proceedings have to be decided on its own merits and in accordance with law by the jurisdictional Joint Commissioner. 13 In the hearing today, learned counsel for third respondent strenuously contended that the third respondent should be given an opportunity to participate in the proceedings before the Joint Commissioner. I am unable to agree and I do not accede to this request and the reasons are as follows: (a) As already alluded to supra, there is nothing to demonstrate that the writ petitioner was recognized as lessee post demise of third respondent's mother in 1992.

(b) There is no document to demonstrate that the third respondent's mother or third respondent had any right whatsoever to sub-let demised property belonging to said temple.

(c) The status report filed by the second respondent states that the lease in favour of erstwhile lessee was cancelled owing to she being in arrears of rent. On a demurrer, even if this is subject to disputation, the cancellation ought to have been assailed and absent challenge to the cancellation, legal fiction ingrained in Section 78 of

TN HR & CE Act operates and therefore, the third respondent's mother herself becomes an encroacher. d) When the third respondent's mother herself becomes an encroacher, the question of third respondent parting with the demised property in favour of writ petitioner and transferring possession and giving lease to the writ petitioner is untenable. Even if sub-lease is prior to 14.02.2015, collecting rent post 14.02.2015 is clearly impermissible and opposed to the very scheme of TN HR & CE Act. In any event, to be noted, this is testing the argument on a demurrer as the third respondent has no right to sublet.

14. This Court, having set out the reasons i.e., dispositive reasoning for not acceding to third respondent's prayer for permitting third respondent to participate in the proceedings, now proceeds to dispose of the writ petition by holding that notice under Section 78 of TN HR &CE Act being notice dated 08.07.2021 bearing reference Na.Ka.No.1031/2021/A5 issued by the second respondent, shall proceed, the second respondent shall continue and conclude the same as expeditiously as his regular official business would permit and in any event, within three months from today i.e., on or before 27.12.2021. The second respondent shall proceed with the proceedings under Section 78 uninfluenced by the observation which appears to have the trappings of expression of opinion in this order or in other words, questions raised in the captioned writ petition are left open to be decided in 78 proceedings insofar as writ petitioner is concerned. Though obvious, all questions with regard to both sides, i.e., said temple and noticee, including arrears of rent are left open.

Captioned writ petition is disposed of. Consequently connected miscellaneous petition is also disposed of. There shall be no order as to costs.

Sd/- Assistant Registrar(CS-II) //True Copy// Sub Assistant Registrar gpa

To

1. The Commissioner Hindu Religious and Charitable Endowment Mahatma Gandhi Road Nungambakkam Chennai - 600 034.

2. The Joint Commissioner/ Executive Officer Arulmigu Arunachaleswarar Thirukoil Thiruvannamalai 606 601.

+1cc to Mr.S.Rajasekar, Advocate, S.R.No.50031 +1cc to the Government Pleader, High Court, Madras, S.R.No.49899 W.P.No.14380 of 2015 BR(CO) SU(18/10/2021)