Ukkamraj v. The Principle Secretary

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 27.09.2021

CORAM

THE HONOURABLE MR.JUSTICE M.SUNDAR W.P.No.9987 of 2017 & W.M.P.Nos. 10990 & 10991 of 2017 Ukkamraj

...Petitioner

.Vs.

1. The Principal Secretary The State Government of Tamil Nadu Hindu Religious and Charitable Endowments Secretariat, Chennai - 600 009.

2. The Commissioner Hindu Religious and Charitable Endowments Uthamar Gandhi Adigal Salai, Nugambakkam Chennai - 600 034.

3. The Fit Person/The Assistant Commissioner/ Executive Officer of A/M Pattinathar Thirukoil Thiruvotriyur Chennai - 600 019.

...Respondents

Prayer: Petition filed under Article 226 of the Constitution of India to issue a Writ of Certiorarified Mandamus calling for the records culminated in the impugned order in GO.Ms.No.67, Tourism, Culture and Endowments (CE3-1 Department) dated 21.03.2017 on the file of the 1st respondent, quash the same as unlawful, void abinitio, ultravires, not in accordance with law by way of mandamus forbearing the respondents, from evicting the petitioner from the leasehold property comprised in new Survey No.3111/2 bearing Door No.624, Ormes Road, Kilpauk, Chennai admeasuring to an extent of 6671 square feet with in the following four boundaries: North by M.CT.M.Muthaiah Memorial High School, South by Ormes Road, East by Hashim Kassim Sain's land and building, West by M,CT,M. Muthaiah Memorial Hr. Secondary School, until the 3rd respondent is paying the market value of the superstructure in the leasehold property to the petitioner.

For Petitioner : Mr. Shangar Murali For Respondents : Mr. NRR Arun Natarajan For R1 to R3 Government Advocate

ORDER

Mr. Shangar Murali, learned counsel for sole writ petitioner and Mr. NRR. Arun Natarajan, learned State counsel for all the three respondents are before this Court.

2. Immovable property admeasuring 6000 square feet or thereabouts with two shops admeasuring 1327 square feet or thereabouts (totalling 7327 sq.ft of immovable property in all) [hereinafter collectively referred to as 'said property' for the sake of brevity, convenience and clarity] belonging to 'Arulmigu Pattinathar Thirukkoil, Thiruvottiyur, Chennai - 600 019' {hereinafter 'said temple' for the sake of convenience and clarity} is the subject matter of captioned writ petition. To be noted, said property is situate in the heart of the city in a prime locality i.e., in Ormes Road, Kilpauk, Chennai - 600 010.

3. From the submissions made by learned counsel on both sides, it comes to light that three years lease of said property, permission to writ petitioner / lessee to pull down the old superstructure and put up a new superstructure in the said property during the pendency of three years lease, initiation of 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, post expiry of three years lease and challenge to the same is the central theme of the captioned writ petition.

4. The aforementioned three year lease is vide a lease deed dated 08.07.2010 and admittedly the three years lease period is from 20.06.2010 to 26.06.2013.

5. During the pendency of the aforementioned three year lease, writ petitioner / lessee approached said temple and sought permission to bring down the old superstructure and put up a new superstructure in the said property.

6. The Commissioner and the Assistant Commissioner of 'Tamil Nadu Hindu Religious and Charitable Endowments Department' ('TN HR & CE Dept.' for the sake of convenience, clarity and brevity) [second and third respondents] granted conditional permission to the lessee/writ petitioner to bring down the old superstructure and put up a new superstructure setting out not less than 9

clear conditions. This is vide proceedings dated 13.03.2012 made by the Commissioner and proceedings dated 20.04.2012 made by the Assistant Commissioner/ Executive Officer of the said temple, both of which read as follows:

7. It is submitted that the writ petitioner accepted the aforementioned conditions and put up a new superstructure i.e. commenced construction some time post March of 2012, completed the same in September-October of 2012, post completion of construction, the writ petitioner entered into a declaration

deed with the said temple which is styled 'xg;ghtzk; '; (Declaration Deed). This xg;ghtzk; is dated 05.10.2012 and a scanned reproduction of the same is as follows:

8. In the aforementioned permissions granted by the Commissioner, Assistant Commissioner and declaration deed dated 13.03.2012, 20.04.2012 and 05.10.2012, Clause 3 is of immense significance and the same reads as follows:

'3. g[jpa fl;Lkhd';fs; Kot[w;wt[ld; mf;fl;Lkhd';fis thlifjhuh; jpUf;nfhapy; bgahpy; jhdkhf jhdg;gj;jpuk; vGjp gjpt[ bra;J tH';fpl ntz;Lk;/ '

9. To be noted aforementioned clause 3 is replicated, repeated and reiterated in all the three documents. There is no disputation or disagreement that a gift deed as per

aforementioned Clause 3 has not yet been executed, but learned counsel for writ petitioner at the hearing submits that the writ petitioner is ready and willing to execute the gift deed even as of tomorrow. Be that as it may, it is not necessary to dilate further on this aspect of the matter as the three year lease period elapsed on 26.06.2013, post expiry of the lease period, the third respondent issued a 'notice dated 05.11.2014' (hereinafter 'impugned notice' for the sake of convenience) under Section 78 of the TN HR & CE Act.

A perusal of this notice makes it clear that the notice has been issued on the simple ground that on expiry of three year period of lease, the writ petitioner by legal fiction becomes an encroacher vide Section 78 of TN HR & CE Act and therefore, the writ petitioner has to hand over the possession of the said property to the said temple. In this regard, it is to be noticed that Section 78 (a) of TN HR & CE Act, being a special Statute makes a departure from ' The Transfer of Property Act, 1882' (hereinafter 'TP Act' for the sake of brevity) and even a lessee on expiry, cancellation or termination of a lease becomes an encroacher and does not continue as lessee holding over as under the TP Act. Section 78 of TN HR & CE Act reads as follows: '78.

Encroachment by persons on land or building belonging to charitable or religious institution or endowment and the eviction of encroachers.-(1) Where the Assistant Commissioner having jurisdiction either suo motu or upon a complaint made by the trustee has reason to believe that any person has encroached upon (hereinafter in this section referred to as "encroacher") any land, building, tank, well, spring or water-course or any space wherever situation belonging to the religious institution or endowment (hereinafter referred to as "the property"), he shall report the fact together with relevant particulars to the Joint Commissioner having jurisdiction over the division in which the religious institution or endowment is situated.

Explanation.-For the purpose of this section, the expression 'encroacher' shall mean any person who unauthorisedly occupies, any tank, well, spring or water-course or any property and to include- (a) any person who is in occupation of property without the approval of the competent authority (sanctioning lease or mortgage or licence); and (b) any person who continues to remain in the property after the expiry or termination or

cancellation of the lease, mortgage or licence granted to him.

(2) Where, on a perusal of the report received by him under sub-section (1), the Joint Commissioner finds that there is a prima facie case of encroachment, he shall cause to be served upon the encroacher a notice specifying the particulars of the encroachment and calling on him to show cause before a certain date why an order requiring him to remove the encroachment before the date specified on the notice should not made. A copy of the notice shall also be sent to the trustees of the religious institution or endowment concerned.

(3) The notice referred to in sub-section (2) shall be served in such manner as may be prescribed.

(4) Where after considering the objections, if any, of the encroacher received during the period specified in the notice referred to in sub-section

(2) and after conducting such inquiry as may be prescribed, the Joint Commissioner is satisfied that there has been an encroachment, he may by order and for reasons to be recorded, require the encroacher to remove the encroachment and deliver possession of the property (land or building or space) encroached upon to the trustee before the date specified in such order.

(5) During the pendency of the proceeding, the Joint Commissioner shall order the encroacher to deposit such amount as may be specified by him in consideration of the use and occupation of the properties in question in the manner prescribed.'

10. To be noted, Section 78 (a) is of relevance as legal fiction referred to supra is ingrained in Section 78(a) of TN HR & CE Act.

11. On receipt of the impugned notice writ petitioner assailed the same by way of a statutory revision before the second respondent Commissioner under Section 21 of TN HR & CE Act, revision did not find favour with the Commissioner and therefore, the writ petitioner approached this Court by way of a writ petition being W.P.No.26782 of 2015 and this Court vide order dated 27.08.2015 relegated the writ petitioner to proceedings under Section 114 of TN HR & CE Act. Proceedings under Section 114 of TN HR & CE Act were commenced and concluded

in and by 'order dated 21.03.2017 bearing reference murhiz (epiy) vz;/67. Rw;Wyh. gz;ghL kw;Wk; mwepiya';fs; (mep 3-1) Jiw' (hereinafter 'impugned order' for the sake of brevity, convenience and clarity). Assailing the impugned order the captioned writ petition has been filed.

12. In the hearing, learned counsel for petitioner strenuously contended that the writ petitioner has spent substantial sums of money barely one year before the expiry of three year lease period and therefore, he should be permitted to continue to be in occupation of the said property. Learned counsel also submitted that he has paid rent up-to-date.

13. Learned State Counsel in response to the above submission, stressed on Clause 3 of the aforementioned orders made by the Commissioner, Assistant Commissioner/ Executive Officer and the Declaration Deed i.e., (xg;ghtzk; ) and submitted that Clause 3 has not only not been complied, but also is clear and clarion qua the intention of parties i.e., writ petitioner and said temple that the superstructure to be put up by the writ petitioner would effectively be conveyed to said temple or in other words, it is axiomatic that the writ petitioner will not claim any right whatsoever owing to being permitted to put up the superstructure.

14. In the aforesaid backdrop, fact setting and trajectory i.e., the matter has taken I carefully examined the impugned order made by the first respondent, more so in the light of the focused submissions made by the learned counsel on both sides (captured supra as part of the narrative).

15. A careful perusal of the impugned order makes it clear that the contentions which are now being canvassed have been dealt with by the first respondent and first respondent has given a leeway /window to the writ petitioner by permitting the writ petitioner to participate in the auction as and when the said temple puts up the said property for public auction qua lease. To be noted I am not inclined to interfere qua the impugned order and the reasons are as follows: (a) Even post construction in October 2012, the writ petitioner has had the benefit of enjoying the said property belonging to said temple for nine long years now.

(b) Come October 2021 i.e., next month it would be nine years since the writ petitioner put up the superstructure. Writ petitioner put up the superstructure knowing fully well that he will not have any right whatsoever in the superstructure.

(c) As a corollary to the previous ground, writ petitioner is not only aware that he will have no right in superstructure, he having categorically agreed to gift the superstructure to said temple, but the same has not been done until now. Having put up superstructure on a specific condition that it will be gifted to the said temple, the writ petitioner cannot be now heard to contend to the contrary.

(d) No infirmity is pointed out qua impugned order. The writ petitioner should be satisfied with the window provided by the first respondent in the impugned order and should consider himself to be better placed because of the window and because of the same not being assailed even now.

16. There is an arbitration clause in the lease deed and the attention of this Court was drawn to the same. The effect of arbitration clause in a lease deed has been sealed by the authoritative pronouncement of Hon'ble Supreme Court in the recently rendered judgment in Vidya Drolia case [Vidya Drolia and Others v. Durga Trading Corporation reported in 2019 SCC OnLine SC 358]. In other words, arbitration clause of this nature in a lease deed when a special statute is holding the field cannot be canvassed. I am aware that Vidya Drolia was referred to a larger Constitution Bench, but that reference was on the question of stamp duty and registration qua arbitration agreement within the meaning of Section 2(1)(b) read with Section 7 of the Arbitration and Conciliation Act, 1996 validity of the same and not in terms of arbitrability qua a lease. Therefore, the arbitration agreement also does not carry the learned counsel for the petitioner any further. I deem it appropriate to make a mention about this as my attention was drawn to the same.

18. In the light of the narrative, discussion and dispositive reasoning set out supra, captioned writ petition fails and the same is dismissed. Consequently, connected WMPs are also dismissed. There shall be no order as to costs. Sd/- Assistant Registrar(CS IV) //True Copy// Sub Assistant Registrar GPA/NST

To

1. The Principal Secretary The State Government of Tamil Nadu Hindu Religious and Charitable Endowments Secretariat, Chennai - 600 009.

2. The Commissioner Hindu Religious and Charitable Endowments Uthamar Gandhi Adigal Salai, Nugambakkam Chennai - 600 034.

3. The Fit Person/The Assistant Commissioner/ Executive Officer of A/M Pattinathar Thirukoil, Thiruvotriyur, Chennai - 600 019.

W.P.No.9987 of 2017 & W.M.P.Nos.10990 & 10991 of 2017 SMI (CO) K.RK. (26.10.2021)