EXECUTIVE OFFICER Vs. L GANESAN

JUDGEMENT

(1.) (Prayer: Appeal filed under Clause 15 of the Letters Patent against the order dated 30.3.2004 made in W.P.M.P.No,44114 of 2003 & W.V.M.P.No.131 of 2004 in W.P.No,36353 of 2003. Petition filed under Article 226 of The Constitution of India, praying for the issue of a Writ of Certiorarified Mandamus, calling for the records pertaining to the orders of the first respondent in Na.Ka.No,9408/98/A1 dated 26.8.2003 and quash the same and direct the respondents 2 and 3 to permit the petitioner to run the rice mill at Door No,23-E in T.S.No.1274/1 and 2 at Big Kancheepuram, Kancheepuram District.) Though the writ appeal questions the order 30.3.2004 made in W.P.M.P.No,44114 of 2003 & W.V.M.P.No.131 of 2004 in W.P.No,36353 of 2003 making the interim injunction absolute, considering the nature of dispute, the writ petition itself was directed to be called along with the writ appeal. For convenience, we refer the parties as arrayed in the writ petition.

(2.) THE land in Survey No.1274/1 & 2 to an extent of 2 acres together with building for running a rice mill is owned by Arulmighu Katchaleswarar Temple, Kancheepuram. It was initially leased out to the father of the petitioner and thereafter the petitioner was inducted as a lessee by the execution of lease deed dated 22.10.99 for a period of three years upto 30.9.2002. On 11.7.2000, he was issued with a notice stating that pursuant to the lease deed, he has not paid the rent in a sum of Rs.83,333/- due and payable as on 30.6.2000. THErefore, the lease deed was terminated on 31.7.2000. THE petitioner was called upon to hand over vacant possession by 1.8.2000. As the petitioner did not act on the said notice by depositing the amount and the said termination order was also not questioned, it appears that the temple filed O.S.No.179 of 2002 before the learned Subordinate Judge, Kancheepuram seeking for a judgment and decree for delivery of vacant possession of the suit property and also to pay a sum of Rs.3,33,333/- together with interest at the rate of 12% per month from the date of plaint till the date of realisation. We are informed that though the said suit was dismissed by the learned Subordinate Judge, on an appeal, the same was decreed and at the instance of the petitioner, a second appeal has been filed and the same is pending on the file of this Court. Simultaneously, the Joint Commissioner of Hindu Religious and Charitable Endowments Department, by the proceedings dated 26.8.2003 which is impugned in the writ petition, passed the order under Section 78 of the Hindu Religious and Charitable Endowments Act.

(3.) SECTION 78 of the Hindu Religious and Charitable Endowments Act was introduced by Tamil Nadu Act 39 of 1996 and the same came into force on 9.12.96. The said provision was incorporated taking into consideration of the fact that large number of lands belonging to the temples are occupied by individuals and the temples are facing serious problems in getting those persons evicted. There is no dispute that by virtue of sub-section (1) of SECTION 78, the Assistant Commissioner having jurisdiction over the area, either suo motu or upon a complaint made by the trustees, could pass orders of eviction in the event he has reason to believe that there was encroachment of the temple property. By virtue of sub-clause (b) of sub-section (1) of SECTION 78, the word "encroacher" also includes any person who continues to remain in the property after the expiry or termination or cancellation of the lease mortgaged or licence granted. By virtue of the said provision, a power is conferred on the commissioner to issue orders of termination in the event he satisfies that the temple land is being encroached.