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A.N.Kumar Vs. Arulmighu Arunachaleswarar Devasthanam and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai High Court
Decided On
Case NumberO.S.A.NOS.302 AND 303 OF 2004
Judge
ActsHindu Religious and Charitable Endowments (HR and CE) Act - Sections 34, 108; General clauses Act - Section 6; Code of Civil Procedure (CPC) - Section 9
AppellantA.N.Kumar
RespondentArulmighu Arunachaleswarar Devasthanam and ors.
Appellant AdvocateMr.V.Lakshminarayanan, Adv.
Respondent AdvocateMrs.Chitra Sampath, Adv.
Cases ReferredDhulabhai v. State of M.P.
Excerpt:
prayer: petition filed seeking for a writ of mandamus, directing the respondents 1 and 2 herein to release the goods viz., 212 units of old and used digital multifunction print and copying machines, imported vide bill of entry no.793344, dated 26.2.2011, under free as second hand capital goods in terms of para 2.17 read with definitions under para 9.12 of the foreign trade policy of 2009-14, without imposing any restriction in the absence of specific restriction in para 2.17 of foreign trade policy and in para 2.33 of handbook of procedure 2009-14 and any notification by third respondent.common 1. these appeals arise out of the common judgment of the learned single judge in c.s.no.1486 of 1988 and tr.c.s.no.847 of 1993 dated 14.2.2001, whereby the learned single judge decreed the suit filed by the plaintiff devasthanam directing the defendants to quit and deliver the vacant possession and declining to grant the relief specific performance as prayed by the defendant-a.n.kumar. since the points for determination in both the appeals are one and same, both the appeals were taken up together and disposed of by this common judgment. for convenience, the parties are referred to as per their array in civil suit no.1486 of 1988 filed before this court.2. case of plaintiff-devasthanam is that plaintiff is the owner of the property measuring about 64 grounds in s.no.41, sri.....
Judgment:
COMMON

1. These appeals arise out of the common Judgment of the learned single Judge in C.S.No.1486 of 1988 and Tr.C.S.No.847 of 1993 dated 14.2.2001, whereby the learned single Judge decreed the suit filed by the Plaintiff Devasthanam directing the Defendants to quit and deliver the vacant possession and declining to grant the relief specific performance as prayed by the Defendant-A.N.Kumar. Since the points for determination in both the appeals are one and same, both the appeals were taken up together and disposed of by this Common Judgment. For convenience, the parties are referred to as per their array in Civil Suit No.1486 of 1988 filed before this Court.

2. Case of Plaintiff-Devasthanam is that Plaintiff is the owner of the property measuring about 64 grounds in S.No.41, Sri Arunachalampuram in the village of Urur, erstwhile Saidapet Taluk. According to Plaintiff-Devasthanam, the said 64 grounds was leased to one A.Ranaganatha Mudaliar under lease deed dated 24.02.1937 for a period of 50 years on a monthly rent at the rate of Rs.40/-. As per the lease, the lessee was permitted to erect buildings and superstructures over the property. Further case of Plaintiff is that lessee Ranganatha Mudaliar assigned portions of the lease hold property to some third parties in violation of the lease deed, thereby putting an end to the lease in respect of the forfeited portions. Lessee Ranganatha Mudaliar died leaving the Defendants 1 to 3, the grandsons and 4th Defendant, the granddaughter. Case of Plaintiff is that Defendants 1 to 4 as the legal heirs of the original lessee are entitled to the leasehold right in respect of the remaining property described in 'B' schedule.

3. According to Plaintiff, the period of lease fixed under Ex.A1 lease deed expired on 23.2.1987 and on the expiry of lease, Defendants 1 to 4 have not surrendered possession of the land or the superstructure and they continued to occupy only as tenants holding over. The Plaintiff-Devasthanam, being the public religious Institution and taking into account the interest of the Institution, the lease was not renewed. Since, Defendants failed to deliver possession of the suit property, Plaintiff issued Ex.A2 legal notice which was replied by the 1st Defendant under Ex.A3.

4. Admitting the ownership of Plaintiff-Devasthanam in the suit property and lease in favour of Ranganatha Mudaliar, 1st Defendant filed written statement stating that Ranganatha Mudaliar executed a settlement deed dated 12.4.1939 in favour of 1st defendant. According to 1st Defendant, he had sent a communication dated 10.02.1986 to the Executive Officer of Plaintiff Devasthanam and thereby he has duly exercised the option to renew the lease for a further period of fifty years and therefore the lease stands renewed upto 24.2.2037. The case of 1st defendant is that on the exercise of option, lease stands automatically extended until 24.2.2037 and that he is also entitled to the protection of City Tenants Protection Act. Since the lease automatically got extended, the 1st defendant cannot be asked to surrender possession. In the written statement, the 1st defendant has further referred to certain instances, whereby Devasthanam is said to have sold tenancies between 1953 and 1967 in Sri Arunachalapuram and absolutely there is no reason why those precedents of sale should not be followed in the case of 1st defendant.

5. The 5th Defendant filed written statement stating he is the tenant under the 1st Defendant for Door No.31, Besant Avenue from 1963 onwards and paying the rent regularly to the 1st Defendant. According to 5th Defendant, as Power Agent of 1st Defendant, 1st Defendant's father executed a sale deed dated 22.11.1971 in respect of Door No.10, Arunachalamapuram with the approval of the Trustees of Plaintiff and subsequently sub-lease deed dated 2.2.1972 was executed assigning the leasehold right to one Jagajothi. Further case of 5th Defendant is that since he is in lawful possession and enjoyment of Door No.31, Besant Avenue ever since December, 1980.

6. Stating that by virtue of the exercise of option to renew the lease, the 1st defendant has filed O.S.No.1969 of 1990 on the file of City Civil Court, Madras for specific performance to direct Devasthanam to specifically perform the renewal clause contained in the registered lease deed dated 24.2.1937 by executing the registered lease deed in respect of the suit property for a period of fifty years from 24.2.1987 to 23.2.2037 on the monthly rent to be fixed by the Court.

7. The plaintiff Devasthanam resisted the said suit contending that the period of lease fixed under the lease deed dated 24.2.1937 expired on 23.2.1987 and that after valid termination of the lease, plaintiff Devasthanam filed the suit for recovery of possession. In the written statement, plaintiff Devasthanam has taken a stand that as per Section 34 of Hindu Religious and Charitable Endowments Act, any lease for a term exceeding five years of any immovable property belonging to the religious institution shall be null and void and therefore there is no automatic renewal of the lease on mere exercising of the option by the lessee or his legal heirs.

8. By the order of the Court, the said suit - O.S.No.1969 of 1990 filed by the 1st defendant was transferred to the High Court and re-numbered as Transfer C.S.No.847 of 1993 and taken up for trial along with the suit filed by the plaintiff Devasthanam- C.S.No.1486 of 1988.

9. On the above pleadings in the suits, before the learned single judge following issues were framed:

"1. Whether the lease has been extended automatically?

2. Whether the defendant's possession is valid?

3. Whether the defendants are not entitled to any amount as damages?

Additional Issue:

(1) Whether the defendant is not entitled for specific performance?"

9. In both the suits, common evidence was adduced. Before the learned single Judge, one Dwarakanath - clerk of Plaintiff Devasthanam was examined as P.W.1 and Ex.A.1 lease deed executed by the trustees in favour of A.Rajagopala Mudaliar, Ex.A.2 legal notice issued by Plaintiflf Devasthanam to Defendants 1 to 4 for delivery of vacant possession of B Schedule property and Ex.A.3 reply notice were marked on behalf of the plaintiff. Onbehalf of the defendants, D.Ws.1 and 2, who are the 1st and 5th defendants, were examined and the settlement deed executed by Ranganatha Mudaliar in favour of defendant, letter allegedly written by Manager of plaintiff Devasthanam giving consent to transfer 36 grounds to 1st defendant A.N.Kumar and the letter of 5th defendant to the wife of 1st defendant were marked as Exs.B.1 to B.3.

10. Upon consideration of oral and documentary evidence, the learned single Judge held that the lessee would be entitled to renewal/fresh lease for a period of fifty years only if during the currency of tenancy, there was no breach or non-observance of any covenants. The learned single Judge further held that contrary to the covenants, lessee had conveyed the properties without getting previous consent of the lessor and in such circumstances, there is no question of further renewal of lease for a period of fifty years. The learned single Judge further held that the defendants are not entitled for automatic renewal of lease for a period of fifty years by merely exercising their option. It was held that since the lessee has violated covenants attached to the lease, the defendant is not entitled to the specific performance and the suit C.S.No.1486 of 1988 filed by the temple was decreed.

11. The learned counsel for appellant Mr.V.Lakshminarayanan contended that the lease deed dated 24.2.1937 is a registered document for a period of fifty years with an option of renewal for a further period of fifty years ending on 23.2.2037 and the appellant - 1st defendant exercised the option as stipulated in the agreement on 10.2.1986. The same is binding on plaintiff Devasthanam and the learned judge was not right in saying that the renewal should be by way of registered lease deed. Insofar as the applicability of Section 34 of H.R.& C.E.Act and the restriction as to the period, the learned counsel for the appellant Mr.Lakshminarayanan would contend that the lease entered into with Ranganatha Mudaliar was prior to the enactment of H.R. & C.E. Act and reliance cannot be placed upon its provisions to non-suit the 1st defendant in the suit for specific performance.

12. Drawing our attention to the various alienations, the learned counsel for respondent/plaintiff Devasthanam Ms.Chitra Sampath contended that in breach of the covenants, the lessee had alienated the properties and contrary to the terms of the agreement, Ranganatha Mudaliar sub-leased the portions to some third parties and therefore 1st defendant has forfeited the right to exercise the option for renewal of lease. In any event, the learned counsel would contend that after the enactment of H.R.& C.E.Act, as per Section 34, any lease of any immovable property of religious institution for a term exceeding five years shall be null and void unless it is sanctioned by the Commissioner. It was further contended that there cannot be a decree for specific performance contrary to the mandatory provisions of H.R. & C.E.Act.

13. Upon consideration of the judgment, evidence and materials on record and the above contentions, the following points arise for determination in this appeal:

"1. Whether the appellant/defendant is entitled to the specific performance directing the plaintiff Devasthanam to renew the lease?

2. Whether there is automatic renewal of lease for another fifty years as contended by the defendant?

3. Whether the appellant/defendant is right in contending that in view of the remedy available under Section 78 of H.R. & C.E.Act and bar under Section 108 of H.R. & C.E.Act, the suit for possession filed by the plaintiff Devasthanam is not maintainable?

4. To what relief the parties are entitled to?"

14. Points No.1 and 2:- The suit A schedule properties to an extent of about 64 grounds was given on lease to 1st defendant's grandfather- Ranganatha Mudaliar for a period of fifty years under Ex.A.1 lease deed (24.2.1937) and only vacant site was leased in favour of Ranganatha Mudaliar for which rent was Rs.40/- per annum. As per the terms of lease, the lessee was permitted to put up superstructures. As per clause (7) of Ex.A.1, the lessee/Ranganatha Mudaliar shall not be entitled to assign, transfer, sell all or any portion of leasehold rights except with the previous consent in writing of the lessors. Clause (7) of Ex.A.1 reads as under: "The Lessee shall notify the Lessors in writing regarding any transfer or disposition of the superstructures or any part thereof, involving a transfer of title, so as to enable the Lessors, to hold the transferees liable for rent, but the Lessee shall not be entitled to assign, transfer, sell, or any portion of the leasehold rights, in the demised premises hereby rented to any person, except with the previous consent in writing of the Lessors."

15. Ranganatha Mudaliar had executed Ex.B.1 settlement deed on 12.4.1939 assigning his leasehold right in favour of 1st defendant. In his evidence, D.W.1 has stated that the plaintiff Devasthanam has consented for the assignment of leasehold rights made by Ranganatha Mudaliar in his favour. According to D.W.1, Ex.B.2 is the consent letter of plaintiff Devasthanam permitting Ranganatha Mudaliar to assign his leasehold right in favour of the 1st defendant. By perusal of Ex.B.2, we find that it is a letter written by S.Narasimha Iyer, Manager to Ranganatha Mudaliar stating that he will obtain the trustees resolution at the next meeting for assigning leasehold right to the 1st defendant. Absolutely, there is no evidence produced by the 1st defendant to show that the plaintiff Devasthanam/trustees permitted Ranganatha Mudaliar to assign his leasehold right in favour of 1st defendant. In the absence of any evidence, the defence plea that plaintiff Devasthanam has consented to the transfer of leasehold right cannot be countenanced.

16. Under Ex.A.1, the property leased was an extent of about 64 grounds. By perusal of the written statement filed by the 5th defendant, it is seen that in 1971, the 1st defendant, through his father and power of attorney sold old Door No.10, Arunachalapuram house under a registered sale deed dated 22.11.1971 to one A.Jagajothi. Subsequently by a registered sub-lease deed dated 2.2.1972, assigned the leasehold right of about 6 < grounds appurtenant to the said old Door No.10, Arunachalapuram in favour of the said A.Jagajothi. Though it is stated that the plaintiff Devasthanam has consented for such alienation, absolutely, no evidence was adduced to substantiate the defence plea that the Devasthanam has consented for such alienations.

17. We have pointed out earlier that as per clause (7) of Ex.A.1, the lessee shall not be entitled to assign, transfer, sell, all or any portion of the leasehold rights in the demised premises, except with the previous consent in writing of the lessors. Excepting the interested testimony of 1st defendant, no material was produced to show that the Devasthanam has consented either for the settlement in favour of 1st defendant or the subsequent alienations. The learned single judge rightly held that contrary to the covenants in Ex.A.1, the lessee had conveyed the properties without getting the previous consent of the lessor. Therefore, when there is breach of covenants by the lessee, the lessee forfeited the right to exercise the option for renewal of the lease.

18. Ex.A.1 lease deed dated 24.3.1937 contains a clause authorising renewal of lease for a further period of fifty years, provided that there shall not be at any existing breach or non-observance of any of the covenants mentioned on the part of the lessee. The said clause authorising renewal for further period of fifty years reads as under: "The Lessors shall on the written request of the lessee made at least three calendar months before the expiry of the term hereby demised, provided there shall not be at the time of such request any existing breach or non-observance of any of the covenants herein mentioned on the part of the lessee, grant to the lessee at his expense a fresh lease of the leased plot for a further period of 50 years...."

19. Case of 1st defendant is that by a communication dated 10.2.1986 addressed to the plaintiff Devasthanam, 1st defendant exercised the option to renew the lease for a further period of fifty years and the lease therefore stands automatically renewed upto 24.2.2037 and by virtue of such automatic renewal he is entitled to continue in possession. Even though the 1st defendant in his evidence has stated that on 10.2.1986 he wrote a letter to the Devasthanam asking for renewal of the lease, no such document was produced. That apart, the 1st defendant/lessee has right to exercise the option of renewal only if there was no existing breach or non-observance of any of the covenants mentioned in the lease deed. As elaborated earlier, without the consent of the Devasthanam, the property's leasehold rights were assigned to 3rd parties, which is in clear violation of the covenants of the lease. Under clause (7) of lease deed, lessee is entitled to fresh lease for a period of fifty years only if during the currency of the tenancy there was no breach or non-observance of any covenants mentioned in the lease. But as pointed out earlier, contrary to the covenants, the lessee had conveyed the properties without getting previous consent of the lessor. As rightly held by the learned single Judge, in view of breach of the conditions of lease, the 1st defendant has forfeited his right to exercise the option to ask for renewal.

20. That apart, the clause containing option to renewal of lease for fifty years is inconsistent with the provisions of H.R.& C.E.Act, 1959. As per Section 34 of H.R. & C.E.Act, 1959, any exchange, sale or mortgage and any lease for a term exceeding five years of any immovable property, belonging to, or given or endowed for the purposes of, any religious institution shall be null and void unless it is sanctioned by the Commissioner as being necessary or beneficial to the institution. As per repeal clause under Section 118(2)(a), all decisions made, proceedings or action taken under H.R.& C.E.Act be deemed to have been passed or decision made or deemed to have been made under H.R.& C.E.Act, 1959 in so far as they are not inconsistent with 1959 Act deemed to have been made issued, passed, taken, settled or done by the appropriate authority under the provision of H.R. & C.E.Act and shall have effect accordingly.

21. The effect of repeal clause is that all the rules made or orders passed, decisions made shall be deemed to have been made under H.R. & C.E.Act, 1959, so long as they are not inconsistent with the provisions of 1959 Act. Whenever there is a repeal of an enactment, the consequences laid down in Section 6 of the General clauses Act will follow unless, as the section itself says, a different intention appears in the repealing statute. In T.S.BALIAH VS. I.T.O. (AIR 1969 SC 701), the Supreme Court held thus:- "Section 6 of the General clauses Act therefore will be applicable unless the new legislation manifests an intention incompatible with or contrary to the provisions of the section. Such incompatibility would have to be ascertained from a consideration of all the relevant provisions of the new statute and the mere absence of a saving clause is by itself not material. In other words, the provisions of Section 6 of the General clauses Act will apply to a case of repeal even if there is a simultaneous re-enactment unless a contrary intention can be gathered from the new statute."

22. In GAJRAJ SINGH VS. STAT, (1997) 1 SCC 650, the Supreme Court held as under:

"24. When there is a repeal and simultaneous re-enactment, Section 6 of the GC Act would apply to such a case unless contrary intention can be gathered from the repealing Act. Section 6 would be applicable in such cases unless the new legislation manifests intention inconsistent with or contrary to the application of the section. Such incompatibility would have to be ascertained from all relevant provisions of the new Act. Therefore, when the repeal is followed by a fresh legislation on the same subject, the Court would undoubtedly have to look to the provisions of the new Act only for the purpose of determining whether the new Act indicates different intention. The object of repeal and re-enactment is to obliterate the Repealed Act and to get rid of certain obsolete matters.

23. In the light of above principles, we now proceed to examine the facts of the present case. The question falling for consideration is, in the light of provisions of H.R. & C.E.Act, whether 1st defendant can seek for renewal of lease for a further period of 50 years i.e., till 2037. In view of the expression used in Section 118(2) of the H.R. & C.E.Act "in so far as they are not inconsistent with 1959 Act", the effect of repealing Act is to abrogate acts or decisions which are inconsistent with the 1959 Act. Clause (7) of Ex.A.1 lease deed containing clause authorising renewal of lease for a further period of fifty years is inconsistent with Section 34 of H.R. & C.E.Act, 1959 and therefore cannot be given effect to. Since clause (7) is inconsistent with the provisions of Section 34 of H.R. & C.E.Act, 1959, the 1st defendant/lessee is not entitled to the decree for specific performance.

24. In any event, granting specific performance is discretionary. Under Section 22 of the Specific Relief Act, one circumstance under which a Court of equity refuses to grant decree for specific performance is on the ground of unfairness. Such unfairness may be either due to the terms of the contract or the conduct of the parties or other existing circumstances. The plaintiff temple has the prerogative right to protect its property for proper administration of the temple and its properties. It is a matter of common knowledge that in the recent past the prices of lands escalated multifold, particularly in urban area. This is all the more so in Besant Avenue, South Madras, where the suit property is situated. In our considered view, passing decree for specific performance directing the temple authorities to renew the lease for a further period of fifty years would injuriously affect the interest of the temple.

25. Point No.3:- The learned counsel for the appellant contended that specific provisions for recovery of possession of the properties belonging to charitable or religious institutions or endowments and the eviction of encroachers have been provided in Tamil Nadu H.R. & C.E.Act, 1959 and hence the suit filed by the plaintiff Devasthanam for recovery of possession of the land and building in the Civil Court is not maintainable and that the same is barred under Section 108 of H.R.& C.E.Act. In support of his contention, the learned counsel placed reliance upon judgement of single Judge in B.SHAJI VS. SREE PRAVARASWAMY DEVASTHANAM, 2010(3) CTC 851, wherein the learned single Judge held that "provisions have been made for the removal of encroachment by the Joint Commissioner under Section 78. The bar provided under Section 108 of the Act will come into play to prevent a suit being filed straight away in a Civil Court for recovery of the property. The above contention is liable to be rejected on two simple grounds: Firstly, H.R. & C.E.Act, 1959 came into force on 2.12.1959 and in the case on hand, the lease is of the year 1937 and therefore provisions of H.R. & C.E.Act, 1959 are not applicable. Secondly, Section 78 was inserted by amendment under Tamil Nadu Act 39 of 1996, which came into force on 9.12.1996 and the suit - C.S.No.1486 of 1988 was filed way back in 1988 and Section 78 inserted by Amending Act 39 of 1996 is not applicable.

26. After extracting Sections 78 and 79, in B.Shaji's case (2010(3) CTC 851), the learned single Judge held that "since a specific provision has been made for the eviction of the encroacher, no suit can be directly instituted in any Court of law except and and in conformity with the provisions of the Act as per Section 108 of Tamil Nadu H.R. & C.E.Act, 1959." In B.Shaji's case (2010(3) CTC 851), the learned single Judge further held that in view of Section 108 of the Act, the Civil Court loses its jurisdiction to entertain the suit for recovery of possession and the learned judge has taken the view that a suit for recovery of possession squarely falls within the ambit of "administration or management of a religious institution or any other matter or disputes determining or deciding for which provision is made in the Act shall be made instituted.

27. Since the above findings of the learned single Judge in B.Shaji's case (2010(3) CTC 851) pertaining to the temple properties would adversely affect the number of suits filed by the Temples, we would like to analyse the said judgment to demonstrate that the view taken by the learned single judge is not a correct interpretation of Chapter VII and Sections 78 and 79 of the Act.

28. Chapter VII of 1959 Act containing Sections 77 to 85 is in the Statute book from the commencement of H.R. & C.E.Act, 1959. Chapter VII is introduced as new Chapter under the head "Encroachments". Section 77 deals with "Transfer of lands appurtenant to or adjoining religious institutions prohibited except in special cases." Section 77 starts with "Notwithstanding anything contained in Section 34, no trustee of the Religious institution shall lease or mortgage with possession or grant a licence for the occupation of:- (a) any land belonging to the religious institution which is appurtenant to or adjoins the religious institution, or any sacred tank, well, spring or water course, appurtenant to the religious institution whether situated within or outside the precincts thereof, of (b) any space within or outside the prakarams, mantapams, Courtyards or corridors of the religious institution."

The Section itself is explanatory. In Section 77, there is nothing express or implied barring the jurisdiction of the Civil Court.

29. Section 78 of the H.R. & C.E.Act deals with jurisdiction of Assistant Commissioner to remove encroachment by persons on land or building belonging to charitable or religious institution or endowment and the eviction of encroachers. Section 78 envisages a situation where encroachment of any land, building, sacred tank, well, spring or water course or any space, wherever situation belonging to the religious institution or endowment". As per explanation (b) of Section 78(1), an encroacher includes 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. Thus, Section 78 squarely deals with "encroachments". Section 79 deals with "Mode of eviction on failure of removal of the encroachment as directed by the Joint Commissioner." As per Section 79, if within the period specified in the Order under Section 78(4) the encroacher has not removed the encroachment and has not vacated the property, by taking police assistance, the Assistant Commissioner may remove the encroachment and obtain possession of the property encroached upon. Section 79(1) contemplates taking police assistance for the purpose of eviction. Proviso to Section 79 expressly prohibits the suit instituted by a person who is let into possession of the property or who is a lessee, licensee or mortgagee of the religious institution or endowment. Section 79 also provides that a person aggrieved by the order of the Joint Commissioner under sub-section 4 of Section 78 can institute a suit in a Cviil Court to establish that the religious institution or endowment has no title to the property.

30. In B.Shaji's case, (2010(3) CTC 851), the learned single judge has also held that similar provision has been made in Section 80 of the Act for eviction of a lessees, licensees or mortgagees. In our considered view, Section 80 deals with eviction of lessees, licensees or mortgagees with the possession only in certain cases.

31. As per Section 80(2), the Joint Commissioner or the Deputy Commissioner on being satisfied that the artistic appearance or the religious atmosphere of the religious institution has been marred or is likely to be marred by the action of the lessee, licensee or mortgagee concerned, shall issue show cause notice. Section 80(4) enables the Joint Commissioner or the Deputy Commissioner to pass orders on being satisfied when he decides that the artistic appearance or the religious atmosphere of the religious institution has been marred or ia likely to be marred by the action of the lessee, licensee or mortgagee. Close reading of Section 80 (1) would show that eviction contemplated under Section 80 only relates to the lease made by the authorities of which lessee,licensee or mortgagee has taken any action which has marred or is likely to mar the artistic appearance or the religious atmosphere of the religious institution.

32. Chapter VII of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 specifically speaks about "Encroachments". Sections 78 and 79 provide for mechanism to remove the encroachment. They merely speak about the powers and duties of the Assistant Commissioner and the joint Commissioner to take appropriate action under the Act to remove an encroachment. A perusal of Section 78 would make the position very clear that the action can be initiated by the Assistant Commissioner either suo motu on his own. In order to exercise such power, the Assistant Commissioner concerned will have to act when an alleged encroachment of a property belonging to the temple coming under the purview of the Act comes to his knowledge. Similarly, action can be taken on a complaint made by the trustee concerned. It is important to note that Section 78 speaks about a complaint by the Trustee, which means after a complaint has been given by the trustee, then the further action will have to be taken by the Assistant Commissioner. When it is brought to the knowledge of the Assistant Commissioner by the Executive officer, then that information can be the basis of a suo motu action. Similarly, when a complaint is made by a trustee to an Officer appointed by an authority under the Act, then it can be taken as a complaint. Therefore, the role of the trustee or an Officer In-charge is limited to the extent of giving a complaint. The question that arises for consideration is in a case where the Assistant commissioner has not pursued the complaint or not exercises his suo motu powers in spite of the encroachment having been brought to his knowledge, what would be the remedy available to protect the property of the temple to an authority, who is competent to do so. The officer, in our considered view, is to have recourse to the Civil Court. The Executive officer, being an Officer appointed by a competent authority, is duty bound to protect the property of the temple. Therefore, it is incumbent on him to file a suit and protect the right of the temple.

33. Sections 78 and 79 provide for a mechanism to evict an encroacher. Section 79 specifically provides an opportunity to the encroacher to approach the Civil Court. It is pertinent to note that such a clause has not been provided to an authority representing the temple. Therefore, there is no express bar under Sections 78 and 79 for an authority acting on behalf of the temple to approach the Civil Court. Such a bar can only be applied to the encroacher by having recourse to section 79(2) of the Act. In our considered view, the bar of jurisdiction of Civil Court under second proviso to Section 79 is the express bar in respect of suits instituted only by a lessee, licensee, or mortgagee of the religious institution or endowment.

34. Sections 77 to 85 provide for special mechanism empowering the Joint Commissioner/Deputy Commissioner to pass order of removal of encroachment or passing order of eviction against the lessees/licensees/mortgagees, whose action has marred or likely to mar the artistic appearance or the religious atmosphere of the religious institution. For facilitating eviction, under Section 79(1) or under Section 81(5), the Joint Commissioner or the Deputy Commissioner may seek police assistance for evicting the persons in possession on failure to removal of encroachment, as directed by the Joint Commissioner. Section 79-A deals with encroachment by group of persons on land belonging to charitable and religious institutions and their eviction. Section 79-B stipulates levy of penalty for offences in connection with encroachment. Section 79-C deals with recovery of moneys due to religious institution as arrears of land revenue. A close reading of Chapter VII containing Sections 78 to 85 would show that Chapter VII contains an inbuilt mechanism empowering the officers of Hindu Religious and Charitable Endowments to take speedy action for removal of encroachment and also to take action against those lessees, licensees or mortgagees, whose action has marred or is likely to mar the artistic appearance or the religious atmosphere of the religious institution.

35. In the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959, no express provision is made to recover possession from tenant, licensee, lessee or mortgagee, which the temple intends to take possession after terminating the lease. Since no express provision is made to recover possession from tenants, licensees, lessees or mortgagees the bar under Section 108 is not attracted by filing ejectment suit by the temple.

36. The crucial question in these appeals is, whether for ejectment suit filed by the temple, jurisdiction of the Civil Court is expressly barred.

37. The normal rule of law is that Civil Courts have jurisdiction to try all suits of civil nature except those of which cognizance by them is either expressly or impliedly excluded as provided under Section 9 of the Code of Civil Procedure but such exclusions are not readily inferred and the presumption to be drawn must be in favour of the existence rather than exclusion of jurisdiction of the Civil Courts to try civil suit. The test adopted in examining such a question is (i) whether the legislature's intention to exclude arises explicitly or by necessary implication, and (ii) whether the statute in question provides for adequate and satisfactory alternative remedy to a party aggrieved by an order made under it. However, where a statute gives finality to the orders of the special tribunals, jurisdiction of the Civil Courts must be held to be excluded, if there is adequate remedy to do what the civil Courts would normally do in a suit and such provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure (vide STATE OF ANDHRA PRADESH VS. MANJETI LAXMI KANTHA RAO, AIR 2000 SC 2220 = (2000) 3 SCC 689).

38. The authority for the proposition of law regarding exclusion of jurisdiction of Civil Court has been laid down by the Supreme Court

Dhulabhai v. State of M.P., (1968) 3 SCR 662 = AIR 1969 S.C. 78), wherein the Supreme Court held thus:

"(2) Where there is an express bar of the jurisdiction of the court, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the civil court. Where there is no express exclusion the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive. In the latter case it is necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability and further lays down that all questions about the said right and liability shall be determined by the Tribunals so constituted, and whether remedies normally associated with actions in civil courts are prescribed by the said statute or not."

39. As discussed earlier, under proviso to Section 79, there is express bar for the suits instituted by licensees/lessees or mortgagees, who are in possession of the temple property. There is no such express bar for the ejectment suits instituted by the temple. As discussed earlier, since there is no adequate remedy provided under the H.R. & C.E.Act for eviction of tenants, licensees, lessees or mortgagees, in our considered view, Section 108 is not a bar for the ejectment suits instituted by the temple notwithstanding the provisions contained in Chapter VII.

40. The Supreme Court in SRI VEDAGIRI LAKSHMI NARASIMHA SWAMI TEMPLE V. INDURU PATTABNIRAMI REDDI, (AIR 1967 SC 781= 1967(1) SCR 218), had occasion to deal with the scope of Madras Religious & Charitable Endowments Act in respect to interpretation of Section 74 and the history of Section 93 of the Act and Scope of Chapter VII of the Act. In the said case, the prayer was to direct the defendants as may be found liable to render a true and proper accounts to the management of the Temple, to assess the amount due to the temple as a result of the various acts of malfeasance, misfeasance and nonfeasance of the Defendants 1 to 3 in respect of the management and to direct the defendants to deliver the documents, Account Registers, etc. In the Second Appeal filed before the Andhra Pradesh High Court, a single Judge of Andhra Pradesh High Court allowed the appeal and held that the suit is barred. While dealing with ouster of jurisdiction of Cviil Court, in Sri Vedagiri Lakshmi Narasimha Swami Temple case, (AIR 1967 SC 781), the Supreme Court held as under: "16. Under Section 9 of the Code of Civil Procedure, the courts shall have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred. It is a well settled principle that a party seeking to oust the jurisdiction of an ordinary civil court shall establish the right to do so. Section 93 of the Act does not impose a total bar on the maintainability of a suit in a civil court. It states that a suit of the nature mentioned therein can be instituted only in conformity with the provisions of the Act; that is to say, a suit or other legal proceeding in respect of matters not covered by the section can be instituted in the ordinary way. It therefore imposes certain statutory restrictions on suits or other legal proceedings relating to matters mentioned therein. Now, what are those matters? They are: (1) administration or management of religious institutions; and (2) any other matter or dispute for determining or deciding which provision is made in the Act. The clause determining or deciding which a provision is made in this Act, on a reasonable construction, cannot be made to qualify the administration or management but must be confined only to any other matter or dispute. Even so, the expression administration or management cannot be construed widely so as to take in any matter however remotely connected with the administration or management. The limitation on the said words is found in the phrase except under and in conformity with the provision of this Act. To state it differently, the said phrase does not impose a total bar on a suit in a civil court but only imposes a restriction on suits or other legal proceedings in respect of matters for which a provision is made in the Act. Any other construction would lead to an incongruity, namely, there will be a vacum in many areas not covered by the Act and the general remedies would be displaced without replacing them by new remedies. ......

23. We find it difficult to accept this argument. Chapter VII only provides for a strict supervision of the financial side of the administration of an institution. The scope of the auditors investigation is limited. It is only an effective substitute for the trustee himself furnishing an audited account. It is concerned only with the current management of a trustee. It does not even exonerate a trustee of his liability to render accounts except to a limited extent mentioned in sub-section (7) of Section 74 it only facilitates the rendition of accounts. Under sub-section (7) of Section 74, an order of surcharge under that section against a trustee shall not bar a suit against him except in matters finally dealt with in such order. This shows by necessary implication that a suit can be filed for accounts against a trustee in other respects. In any view, it has nothing to do with the management of a temple by a previous trustee. It is contended that under sub-section (5) of Section 74 the trustee or any other person aggrieved by such order may file a suit in the civil court or prefer an appeal to the Government questioning the order of the Commissioner and, therefore, it is open to any member of the public to file a suit under the Act. Any person there only refers to a person mentioned in sub-section (3) of Section 74 i.e. a person who is guilty of misappropriation or wilful waste of the funds of the institution etc. It obviously refers to a trustee or some other person in management of the institution who is guilty of misappropriation. We, therefore, hold that Chapter VII of the Act has no bearing on the question of liability of an ex-trustee to render account to the present trustee of his management. Chapter VII does not provide for determining or deciding a dispute in respect of such rendition of accounts. If so, it follows that Section 93 of the Act is not a bar to the maintainability of such a suit."

41. The Supreme Court in a recent Judgment in RAMESH GOBLNDRAM VS. SUGRA HUMAYUN MIRZA WAKF, ((2010) 8 SCC 726), had occasion to deal with a similar question under the Wakf Act, 1995. While interpreting Section 85 of Wakf Act, 1995, and after detailing the Statement of Objects and Reasons and the legislative history of the Act, held that: "The well settled rule in this regard is that the civil Courts have jurisdiction to try all suits of civil nature except those entertainment whereof is expressly or impliedly barred. The jurisdiction of civil Courts to try suits of civil nature is very expansive. Any statute shall be triable by a civil Court. Any such exception cannot be readily inferred by the Court. The Court would lean in favour of a construction that would uphold the retention of jurisdiction of Civil Courts and shift 'the onus of proof to the party that asserts that civil Court jurisdiction is ousted." The Supreme Court after detailing the facts of the case extracted Section 85 of the Act which reads as under:

"85. Bar of Jurisdiction of Civil Courts: No suit or other legal proceeding shall lie in any civil Court in respect of any dispute, question or other matters relating to any wakf, wakf property, or other matters which is required by or under this Act to be determined by a Tribunal." The Supreme Court stated that a plain reading of the above that civil Court jurisdiction is excluded only in cases where the matter in dispute is required under the Act to be determined by the Tribunal. The Supreme Court finally answered the question holding that civil Court jurisdiction is not ousted and the ratio has been laid as under: "The crucial question that shall have to be answered in every case where a plea regarding exclusion of the jurisdiction of the civil Court is raised, is whether the Tribunal is under the Act or the Rules required to deal with the matter sought to be brought to a civil Court. If it is not, the jurisdiction of Cviil Court is not excluded."

42. It is a settled position of law that until and unless the jurisdiction of the Civil Court is ousted either expressly or impliedly, an affected party cannot be prevented from approaching it. As observed above, Sections 78 and 79 ,which deal with encroachment, merely embark upon a procedure for removing an encroacher of a temple property. They do not put any fetters on the power of the authority acting as a guardian of the temple property to have recourse to the Civil Court. The jurisdiction of the Civil Court is plenary in nature. Hence, unless the suit is barred either expressly or by necessary implication, it cannot be non-suited. (see NAHAR INDUSTRIAL ENTERPRISES LTD. VS. HONG KONG AND SHANGHAI BANKING CORPORATION, ((2009) 8 SCC 646) and RAJASTHAN SRTC VS. BAL MUKUND BAIRWA(2) ((2009) 4 SCC 299)).

43. When the temple has not chosen to go under the purview of the Act, then it cannot be said that the suit is barred. In other words, it is for the temple to choose either the common law remedy by way of filing a regular suit or invoke the provisions of the Act by approaching the authorities concerned. When such an action is taken against an encroacher, it cannot be questioned on the ground of lack of jurisdiction. Because initiation of the action ultimately lies with the temple.

44. As discussed above, Section 79 does not provide for any mechanism for the temple to approach the Civil Court. Therefore, the remedy is given only to the encroacher for passing an order against him. Hence, the bar certainly would apply to the case of the encroacher in directly filing the suit against the temple.

45. The decision to elect a particular procedure lies with the owner of the property, being the temple. Considering the object of the introduction of Chapter VII, which only demarcates the procedure for removing the encroachment by the Officers of the Department, we have no hesitation in holding that the said procedural law will not bar the filing of the suit by the temple to recover and protect its own property.

46. Therefore, a reading of Sections 78 and 79 with the right available in seeking remedy under the common law would show that there is no inherent or implied inconsistency between the remedies provided therein. What would be the best course for the temple will have to be decided by the Person In-charge. It is further to be seen that when the encroacher has been given a right to approach the Civil Court after an order has been passed by the Deputy Commissioner against him, there cannot be a bar for the temple to file a suit. After all, the object sought to be achieved either under Section 78 and 79 of the H.R. & C.E. Act or by filing the suit is one and the same. Hence, the remedy sought for being one, the suit filed on behalf of the temple is very much maintainable. After all, procedural law will have to make way for the substantial justice to be rendered between the parties.

47. In our considered view, in B.Shaji's case (2010(3) CTC 851) , the learned single Judge has not correctly interpreted Chapter VII containing Sections 78, 79 and 80 and the learned single Judge has not correctly laid down the law on the ejectment suits filed by the temples and the judgment in B.Shaji's case (2010(3) CTC 851) would adversely effect the pending ejectment suits filed by the temple and it would have the affect of paralysing the proper administration of the properties of the temple. In our considered view, the decision in B.Shaji's case (2010(3) CTC 851) has not been rendered on proper interpretation of Chapter VII and the view taken by the learned single Judge is not a correct view.

48. During the course of arguments, it was submitted that about 6500 eviction petitions are pending before the Joint Commissioner, H.R. & C.E.Act, out of which only few cases have been disposed. If the temples are to approach the Joint Commissioner in all the cases for filing eviction petitions, the very object of H.R. & C.E.Act would be defeated. Having regard to the number of eviction petitions, keeping in view the interest of temple and the temple properties, it would be in order if the Government appoints more Officers to deal with the eviction petitions.

49. We summarise our conclusions as under:

So far as the suits filed by the temple for eviction of tenants/licensees/lessees/mortgagees for filing of the ejectment suit, the Civil Court's jurisdiction is not barred. The decision to approach Civil Court or invoke the provisions of H.R. & C.E. Act vests with the Temple. In cases of encroachers, temple authorities can either resort to the provisions under Sections 78, 79, 79-A, 79-B or to approach the Civil Court. The decision to elect a particular procedure lies with the owner of the property, being the Temple.

In view of the express bar under 2nd proviso to Section 79, in so far as the suits by the encroachers/lessees/ licensees/mortgagees, the bar under Section 108 will get attracted excepting in instances specifically stated in the 1st proviso to Section 79.

50. The lease was taken for 64 grounds. In violation of the terms and conditions of the lease, the 1st defendant had assigned the leasehold rights for about 39 grounds. Even in respect of the remaining portion B Schedule, the 1st defendant had leased the suit property to the other defendants. Upon analysis of evidence, the learned single Judge rightly held that the defendants have no right to continue in possession after the expiry of the lease and the suit filed by the plaintiff Devasthanam was rightly decreed for delivery of possession and also to pay compensation. In so far as the prayer for specific performance of renewal of the lease, for the reasonings in Point No.1, the defendants are not entitled for renewal of lease for fifty years by merely exercising their option. The Transfer Suit Tr.C.S.No.847 of 1993 filed by the 1st defendant for specific performance was rightly dismissed by the learned single Judge. Upon analysis of evidence and materials on record, we are of the view that the learned single Judge rightly decreed the suit filed by the plaintiff Devasthanam in C.S.No.1486 of 1988 and rightly dismissed the suit for specific performance filed by the 1st defendant. We find no reason to interfere with the judgment of the learned single Judge. Accordingly, all the points are answered in favour of the plaintiff Devasthanam.

51. In the result, both the appeals are dismissed. However, there is no order as to costs.


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