Madras High CourtWP/17371/2021disposed of

M.Palani@Babu v. The Commissioner

2021-09-20Honourable Mr Justice M. Sundar17 pages

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATE: 20.09.2021

CORAM

THE HONOURABLE MR.JUSTICE M.SUNDAR W.P.No.17371 of 2021 & W.M.P.No.18419 of 2021

1. M.Palani @ Babu

2. Ramkanth

3. D.Karthikeyan ... Petitioners Vs.

1. The Commissioner Hindu Religious and Charitable Endowments Nungambakkam, Chennai

2. The Joint Commissioner Hindu Religious and Charitable Endowments 8th Street Gandhi Nagar Thiruvannamalai

3. The Assistant Commissioner Hindu Religious and Charitable Endowments 8th Street Gandhi Nagar Thiruvannamalai

4. The Executive Officer Kamatchi Amman Temple Street Thiruvannamalai - 600 601 ... Respondents Prayer:- Writ Petitions filed under Article 226 of the Constitution of India, seeking for Writ of Mandamus directing the respondents to handover possession of the property situated at Door No.111, 112, 112A, Kamatchi Amman Temple Street so to enable to petitioners to develop the property and gift the same to the temple and consequently to occupy the same as a tenant at any reasonable rent that the respondent may determine.

For Petitioners : Ms.K.Abhirame for Mr.V.Raghavachari For Respondents :

Mr.NRR.Arun Natarajan Government Advocate

ORDER

Ms.K.Abhirame, learned counsel representing the counsel on record for three writ petitioners and Mr.NRR.Arun Natarajan, learned State counsel for all the four respondents are before this Virtual Court.

2. Captioned writ petition is the second round of litigation. Before I advert to the earlier round of litigation, short facts imperative for appreciating this order may have to be set out. Short facts shorn of elaboration are that the three writ petitioners are tenants under 'Kamatchi Amman Temple' (hereinafter 'said temple' for the sake of brevity) in respect of lands owned by said temple; that said temple is under the control, administration and management of 'Tamil Nadu Hindu Religious and Charitable Endowments Department' (hereinafter 'TN HR & CE Dept.' for the sake of convenience, clarity and brevity), which is governed by 'the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 (Act 22 of 1959)' (hereinafter 'TN HR & CE Act' for the sake of convenience and clarity).

3. The property in which writ petitioners were tenants under said temple shall be referred to as 'demised property' for the sake of convenience and clarity. It is the case of the writ petitioners that they have been tenants under said temple qua demised property for a very long period, but there is no disputation that the lease is not subsisting. Suffice to say that eviction and termination notice issued by said temple were assailed by two writ petitioners in W.P.Nos.15755 and 15756 of 2020. To be noted, one writ petition was by one R.Devaraj, whom this Court is informed died on 20.01.2021 and his Son D.Karthikeyan is third writ petitioner in the captioned writ petition. The other writ petition was at the instance of one M.Palani @ Babu, who is first writ petitioner in the captioned writ petition. This Court is informed that the portion of the demised property which is in the occupation of one Ramkanth was covered in the order disposing of the two writ petitions and therefore, effectively entire demised property is within the sweep of earlier two writ petitions.

4. Though the earlier writ petition was filed assailing eviction/termination notice qua demised property, it culminated in a consent order vide a joint memo dated 21.12.2020. The order dated 23.12.2020 made in the earlier writ petition is as follows:

'Heard Mr.V.Prakash Babu, learned counsel for the petitioner, Mr.R.Venkatesh, learned Government Advocate for respondents 1 to 3 and Mr.R.Bharanidharan, learned counsel for R4.

2. The petitioners are admittedly encroachers in the premises at Door Nos.111A and 112A belonging to the Kamatchi Amman Temple at Tiruvannamalai (Temple).

3. An order was passed by me on 09.12.2020 to the following effect:

'Mr.R.Venkatesh, learned Government Advocate accepts notice for R1 to R3 and Mr.R.Bharanidharan, learned counsel undertakes to file vakalat for R4.

2. The following are admitted facts:

(i) The premises in question situated at 111A and 112A Kamatchi Amman Kovil Street, Thiruvannamalai Town and District belongs to the Kamatchi Amman Temple.

(ii) Admittedly the petitioners are in occupation of the premises in question since 1984 in utter violation of the provisions of Section 34 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959, since no lease deed has been executed by the officials of the HR&CE Department/Executive Officer.

(iii) The occupation of the premises by the petitioners is thus contrary to law, though with the active connivance of the officials of the HR & CE Department and the Executive Officer of the Temple.'

3. The premises in question is said to be dilapidated and poses a risk for

continued occupation. The petitioners shall thus identify an alternate premises for their businesses, vacate the premises in question and handover the same positively within a period of four (4) weeks from today.

4. This direction is issued bearing in mind the safety and security of the petitioners as well as others that would visit the premises, being commercial establishments.

5. Once the reconstruction of the premises is complete notwithstanding that the petitioners are trespassers therein as on date bearing in mind the fact that they have been in uninterrupted occupation since 1984 and paying the rents regularly as fairly stated by Mr.Bharanidharan, learned counsel for R4 and once the terms of lease are finalized, they shall be extended the right of first option to take on lease the premises.

6. To awiat a joint memo be filed by both learned counsels i.e. learned counsel for the petitioner as well as Mr.Bharanidharan, learned counsel for R4 within one (1) week from today, list on 16.12.2020.'

4. When the matter is called today, the following joint memos dated 21.12.2020 are filed by the petitioners and R4/the Executive Officer of the Temple. Though the premises at Door No.112 is not covered by the present writ petitions, memo filed in WP.No.15755 of 2020, based on a letter of the occupant of Door No.112, Kamatchi Amman Koil Street, covers this premises as well. This order thus covers the premises at Door Nos.111A, 112 and 112A, Kamatchi Amman Koil Street, Tiruvannamalai Town. A. 'Joint memo filed by the counsel for the petitioner and the fourth respondent in WP.No.15755 of

vacant possession of the shop premises at Door no.111-A, Kamatchi Amman Koil Street, Tiruvannamalai Town, belonging to the 4th respondent temple on the ground that the building had become dilapidated and has to be reconstructed.

2. It has been agreed that the petitioner would vacate and handover the shop premises in Door no.111-A, Kamatchi Amman Koil Street, Tiruvannamalai Town, within a period of 4 weeks from 9.12.2020 and thereafter, when the 4th respondent temple completes the construction, and lease out the same following the procedure under the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959, preference would be given to the petitioner considering the fact that he has been a tenant since 1984 under the temple and has been running the shop for his livelihood.

3. The petitioner has also furnished a letter of undertaking dated 14.12.2020 to the Executive Officer (4th respondent). The other premises in Door no.112, Kamatchi Amman Koil Street, Tiruvannamalai Town was originally leased to K.Arumugam, whose whereabouts are not known after filing petition for insolvency and at present is in occupation of C.Ramkanth, S/o Chinnadurai, who has been also issued with a notice of eviction dated 16.9.2020 also has addressed a similar undertaking letter dated 14.12.2020 to the Executive officer of the Temple praying for similar relief and accordingly the counsels for the petitioner and the 4th respondent have prayed this Hon'ble Court to record the memo and dispose the writ petition on the above mentioned terms.

4. For the aforesaid reasons, it is humbly prayed that this Hon'ble Court may be pleased to record the memo and dispose of the W.P.no: 15755 of 2020, pending on the file of this Hon'ble Court and pass such further or other orders as this Hon'ble Court deem fit and proper and thus render justice.'

B. 'Joint memo filed by the counsel for the petitioner and the fourth respondent in WP.No.15756 of

1. The above mentioned writ petition has been filed by the petitioner challenging the communications of the 4th respondent dated 14.8.2020 and 16.9.2020, terminating the lease and calling upon the petitioner to handover vacant possession of the shop premises at Door no.112-A, Kamatchi Amman Koil Street, Tiruvannamalai Town,

belonging to the 4th respondent temple on the ground that the building had become dilapidated and has to be reconstructed.

2. It has been agreed that the petitioner would vacate and handover the shop premises in Door no.112-A, Kamatchi Amman Koil Street, Tiruvannamalai Town, within a period of 4 weeks from 9.12.2020 and thereafter, when the 4th respondent temple completes the construction, and lease out the same following the procedure under the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959, preference would be given to the petitioner considering the fact that he has been a tenant since 1984 under the temple and has been running the shop for his livelihood.

5. These writ petitions are disposed in light of the aforesaid two memos granting a period of four (4) weeks from today to enable the petitioners as well as the occupant of Door No.112 to vacate the premises and handover vacant possession of the same to R4. R4 is at liberty, after the premises are secured, made ready and fit for occupation, to auction and lease the premises by way of public auction. The petitioners as well as the present occupant at Door No.112 are at liberty to participate in the auction. No costs'

5. This Court is informed without any disputation or disagreement that post aforementioned 23.12.2020 order (earlier round of litigation) possession of demised property was handed over to said temple on 21.01.2021.

6. Captioned writ petition has now been filed with a prayer to mandamus the respondents i.e., said temple (for all practical purposes), to handover the demised property to the writ petitioners so as to enable the writ petitioners to develop the property and give the same to the temple and also occupy the same as a tenant. In other words, as elaborated by learned counsel for writ petitioner, it is the case of the writ petitioners that they will put up new superstructure, develop the demised property and then occupy the same as tenants under said temple. I am of the view that the writ petitioners do not have any legal right in this regard. Post termination of lease, even a lessee becomes an encroacher and this is by way of a legal fiction which is ingrained in Section 78(2) of TN HR & CE Act. It may not be necessary to dilate on this aspects of the matter, owing to the consent order made in the previous round of litigation. The consent order takes care of these aspects of the matter.

This Court also reminds itself that writ petitioners who seek mandamus from a Court should have legal right and this principle is an age old principle laid down in the celebrated Praga Tools case law [Praga Tools Corporation Vs. Imanual and others [AIR 1969 SC 1306] and relevant paragraph is paragraph 6, which reads as follows:

'6. In our view the High Court was correct in holding that the writ petition filed under Article 226 claiming against the company mandamus or an order in the nature of mandamus was misconceived and not maintainable. The writ obviously was claimed against the company and not against the conciliation officer in respect of any public or statutory duty imposed on him by the Act as it was not be, but the company who sought to implement the impugned agreement. No doubt, Article 226 provides that every High Court shall have power to issue to any person or authority orders and writs including writs in the nature of habeas corpus, mandamus etc. or any of them for the enforcement of any of the rights conferred by Part III of the Constitution and for any other purpose. But it is well understood that a mandamus lies to secure the performance of a public or statutory duty in the performance of which the one who applies for it has a sufficient legal interest. Thus, an application for mandamus will not lie for an order of reinstatement to an office which is

essentially of a private character nor can such an application be maintained to secure performance of obligations owed by a company towards its workmen or to resolve any private dispute. (See Sohan Lal v. Union of India), [1957 SCR 738] In Regina v. Industrial court [ (1965) 1 QB 377] mandamus was refused against the Industrial court though set up under the Industrial courts Act, 1919 on the ground that the reference for arbitration made to it by a minister was not one under the Act but a private reference. "This Court has never exercised a general power" said Bruce, J. in R. v. Lawisham Union [(1897) 1 QB 498, 501] "to enforce the performance of their statutory duties by public bodies on the application of anybody who chooses to apply for a mandamus.

It has always required that the applicant for a mandamus should have a legal and a specific right to enforce the performance of those duties". Therefore, the condition precedent for the issue of mandamus is that there is in one claiming it a legal right to the performance of a legal duty by one against whom it is sought. An order of mandamus is, in form, a command directed to a person, corporation or an inferior tribunal requiring him or them to do a particular thing therein specified which appertains to his or their office and is in the nature of a public duty. It is, however, not necessary that the person or the authority on whom the statutory duty is imposed need be a public official or an official body.

A mandamus can issue, for instance, to an official of a society to compel him to carry out the terms of the statute under or by which the society is constituted or governed and also to companies or corporations to carry out duties placed on them by the statutes authorising their undertakings. A mandamus would also lie against a company constituted by a statute for the purposes of fulfilling public responsibilities. [Cf. Halsbury's Laws of England, (3rd ed.), Vol. II, p. 52 and onwards].'

(underlining made this Court to supply emphasis and highlight and for ease of reference)

7. It is again not necessary to dilate further on these aspects of the matter as learned State counsel very fairly submitted that he has got instructions since the last listing on 19.08.2021. In this regard, proceedings recorded by Hon'ble predecessor Judge in the last listing on 19.08.2021 are of relevance and the same reads as follows:

'Mr.N.R.R.Arun Natarajan, learned Government Advocate accepts notice for the respondents and seeks a short date to place on record the written instructions that he has in the matter.

2. Pursuant to order of this Court dated 23.12.2020 in W.P.Nos.15755 & 15756 of 2020, the property in question at Door Nos.111A and 112A belonging to Kamatchi Amman Temple in Thiruvannamalai (temple) has been handed back to the temple by the private occupants on 21.01.2021. The temple proposes to develop the property and rent it out by public auction. Meanwhile the proposal of the petitioners is that they may be permitted to develop the property and gift the same back to the temple. Rider, however, is that they wish to occupy the property themselves.

3. The written instructions that are conveyed to the Court at this juncture indicate that the temple is not inclined to tie itself down to a single set of occupants, that is the petitioners, and is intending to develop the property out of its own funds and rent the same out to the highest bidder by way of public auction. There is nothing untoward in this proposal putforth by the respondents and they are at liberty to proceed in the matter.

4. In any event to enable the respondents to place on record the written instructions obtained, list on 03.09.2021.'

8. Adverting to the earlier proceedings made in the previous listing by Hon'ble predecessor Judge, learned State counsel submitted that he has since got written instructions and was fair enough to share the same with the Court. To be noted, written instructions from a client to his counsel is privileged communication. However, in this case, learned State counsel has very fairly volunteered to share the same and therefore, the course that is being adopted in this case is being resorted to. Scanned reproduction of written instructions reads as follows:

9. A perusal of the aforementioned written instructions makes it clear that said temple is taking all and every effort to develop the demised property so that it yields good income. Respondents will do well to expedite this process and conclude the same as expeditiously as their business would permit and time that will be consumed by procedural formalities in this regard.

10. The above observation is made as this Court is parens patriae qua properties of said temple and it is made clear that it is not at the instance of writ petitioners.

11. Be that as it may, learned counsel for writ petitioners submitted that the writ petitioners should have the right to participate in the auction as and when said property i.e., demised property is developed and auctioned for lease. This aspect of the matter is already covered by the aforementioned consent order made in the earlier round of litigation, there is no reason for this Court to explain the same and in any event judicial discipline demands that I refrain from doing that. Adding or attempting to explain the same could only lead to avoidable dilution and therefore, this Court makes it clear that

the earlier order dated 23.12.2020 made in W.P.No.15755 and 15756 of 2020 being a consent order will continue to govern the parties and this order will not in any manner alter the earlier order.

12. The narrative discussion and dispositive reasoning thus far draws the curtains on the captioned writ petition as the stated position of the respondents has been recorded. Captioned writ petition disposed of recording the stated position of the respondents. Consequently, captioned WMP is also disposed of as closed. There shall be no order as to costs. Sd/- Assistant Registrar(CS IV) //True Copy// Sub Assistant Registrar gpa To 1.

The Commissioner Hindu Religious and Charitable Endowments Nungambakkam, Chennai 2.

The Joint Commissioner Hindu Religious and Charitable Endowments 8th Street Gandhi Nagar Thiruvannamalai 3.

The Assistant Commissioner Hindu Religious and Charitable Endowments 8th Street Gandhi Nagar Thiruvannamalai 4.

The Executive Officer Kamatchi Amman Temple Street Thiruvannamalai - 600 601.

+1cc to Mr.V.Raghavachari, Advocate, S.R.No.47993 +1cc to the Government Pleader, S.R.No.48083 W.P.No.17371 of 2008 & W.M.P.No.18419 of 2021 RGN(CO) GN/20/10/2021