Order in D.Dis.R.P.100/2017 D2 dated: The above Revision petition came up for final hearing before me on

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1 1 BEFORE THE COMMISSIONER, H.R. & C.E.ADMN.DEPARTMENT, CHENNAI-34. Monday the 12 th day of June, Two thousand and Seventeen. Present: Dr.M.Veera Shanmugha Moni, Commissioner. R.P.100/2017 D2 Between Mohamed Pari 2.E.Abdul Kuthoos 3.Sikkanthar Ali Petitioners And 1.The Joint Commissioner, HR&CE Admn.Department, Madurai. 2. The Assistant Commissioner, HR&CE Admn.Department, Dindigul. 3. The Executive Officer, Arulmigu Natarajar Thirukovil, Nilakottai, Dindigul District.... Respondents. In the matter of Arulmigu Natarajar Thirukovil, Nilakottai, Dindigul District. The Petition filed under Section 21(1) of the Tamil Nadu H.R. & C.E. Act, 1959 (Tamil Nadu Act 22 of 1959) against the order dated of the Joint Commissioner, HR & CE Admn.Dept., Madurai passed u/s.78 of the Act. Order in D.Dis.R.P.100/2017 D2 dated: The above Revision petition came up for final hearing before me on in the presence of Thiru. V.Meenakshisundaram, Counsel for the petitioner and Thiru.M.Nagarajan, Counsel for the 3 rd respondent. Upon hearing their arguments and having perused the connected records and the matter having stood over for consideration till this day, the following order is passed:- ORDER The above Revision Petition filed under Section 21 of the Act against the order dated of the Joint Commissioner, HR&CE Admn. Department, Madurai passed under Section 78 of the Act.

2 2 2. The petitioners have stated that one Vairavananthapillai S/o.Saravana Kumar had established Arulmighu Natarajar Thirukovil in Nilakottai in or about the year He executed a settlement deed dated in favour of the above said Arulmighu Natarajar temple in respect of various properties. He appointed his eldest son by name Nallakamu Pillai as Trustee and his younger son Ponnusamy Pillai as Assistant Trustee under the above said settlement deed dated Thus the temple became the owner of the various properties mentioned in the schedule to the settlement dated In the year 1928, the above mentioned Ponnusamy Pillai S/o. Vairavanatha Pillai executed a deed dated in favour of one M.Subbiah Pillai, S/o.Thirumalai Kozhunthu Pillai in respect of the property mentioned hereunder in the capacity of the Trustee of the temple. As per the recitals of the deed dated the transfer of the above said property was effected by Ponnusamy Pillai for the purpose of renovating the temple and also to purchase property for the Arulmigu Nataraja Swamy. In other words the said deed of transfer was effected for the benefit of the temple. On the same day i.e., on the above said Subbiah Pillai executed a deed in respect of total lands to an extent of 2 Acres and 29 cents in favour of the temple. Therefore the above said two transactions were made by two different separate documents in fact the transaction between them is nothing but an exchange of property in the eye of law. The properties mentioned in the schedule to the document dated executed by Subbiah Pillai are in possession and enjoyment of the temple till date. The Subbiah Pillai sold the property which were obtained by him under the deed dated to one Krishnasamy Naicker under a sale deed dated The said Krishnasamy Naicker sold the said property to one Chevarikoothan under a registered sale deed dated The legal heirs of the above said Chevarikoothan namely Sekar and kasi Vishwanathan sold a portion of the said property measuring 686 ¼ Square feet in Natham Survey No.248/2B, Nilakottai to one Mohamed Pari and his brothers under a sale deed dated Subsequently the above said legal heirs of Chevarikoothan namely Sekar and Kasi Vishwanathan sold the other portion of the property measuring 765 square feet in Natham Survey No.248/2B, Nilakottai to the petitioners under a sale deed dated The building in the above said land in Survey No.248 is now bearing Door

3 3 No Ever since from the date of purchase the petitioners are in peaceful possession and enjoyment of the same. Mutations has effected in respect of the above said property in all revenue records in favour of the petitioners. The petitioners are running an Electrical Shop in the above said building in the name and style of S.K. Electricals. The exchange of properties in the year 1928 between the above said Subbiah Pillai and the then Trustee of the Arulmigu Natarsja Swamy, Nilakottai are valid since it is for the benefit of the temple. When the temple authorities attempted to interfere with the possession, the previous owner namely Kasi vishwanathan filed a suit against the 3 rd respondent herein in O.S.No.19 of 2003 before the District Munsif Court, Nilakottai for permanent injunction restraining the temple authorities from interfering with his possession of the properties in his possession. The said suit was decreed on merit on In fact the 3 rd respondent herein is the defendant in the said suit. The 3 rd respondent herein filed an appeal against the Judgment and Decree in O.S.No.19 of 2003 before the Additional Sub Court, Dindigul in A.S.No.10 of The said appeal was allowed in favour of the 3 rd respondent herein. Aggrieved over the same the above said Kasi Vishwanathan preferred the Second Appeal in S.A.(MD)No.484 of 2011 before the Madurai Bench of Madras High Court and the Second Appeal was admitted and an order of Interim Injunction was also granted. Still the order of Injunction is in force against the 3 rd respondent. In the above said circumstances the 3 rd Respondent issued a notice dated to the petitioner to vacate the premises within 15 days time. Therefore the petitioners filed a Writ Petition in W.P.(MD)No.1767 of 2014 before the Madurai Bench of Madras High Court challenging the notice dated issued by the 3 rd Respondent. The Hon'ble High Court has passed an order dated that the petitioners need not apprehend eviction based on the notice issued by the 3 rd Respondent herein and no action could be taken by the authorities on the basis of the above said notice issued by the 3 rd Respondent herein and it is also held that it is always open to the authorities concerned to initiate proceedings under Section 78 of Tamil Nadu Hindu Religious and Charitable Endowment Act and giving liberty to the petitioners to substantiate of their claim of ownership and also about the details by pendency of the suit proceedings and only after full-fledged enquiry and thereafter only final order has to be passed and till then the possession of the petitioners would not be

4 4 disturbed by the authorities. Accordingly the Petitioners filed their objections inter-alia raising right of ownership on the basis of the exchange of lands made by the then Trustee Ponnusamy Pillai on and the subsequent transactions. Inspite of the long possession of more than 87 years and without considering the very valid objections made by the petitioners, the 1st respondent herein hold that the petitioners are encroachers and directed to handover possession of the property to the temple and failing which directed the 2 nd respondent to take action u/s.79 of the Tamil Nadu Hindu Religious and Charitable Endowment Act by his order dated The petitioners filed Writ Petition in W.P.No.5776 of 2016 before the Madurai Bench of Madras High Court to quash the above said order of the 1 st respondent dated and for other reliefs. The Hon ble High Court has disposed of the above said Writ Petition along with the Writ Petition in W.P.No.5777 of 2016 by a common order dated When disputes are raised by the person in possession of the land namely the petitioners which involved questions of applicability of the Tamil Nadu Hindu Religious and Charitable Endowment Act in respect of the property in question and interpretation of various laws and documents requiring recording of evidence, the matter cannot be adjudicated in a summary proceeding contemplated u/s.78 of Tamil Nadu Hindu Religious and Charitable Endowment Act. Therefore the very initiation of the proceedings u/s.78 of the Tamil Nadu Hindu Religious and Charitable Endowment Act is without jurisdiction. Even if the transactions effected in the year 1928 Le., the sale deed executed by Ponnusamy Pillai in favour of Subbiah Pillai is void as per the provisions of the Madras Hindu Religious and Charitable Endowment Act, 1926, and when the purchaser and subsequent alienees are in continuous possession by asserting their title without any interference till 1951, the title of the property thus vested upon them under law and therefore the temple lost their title even if it had title originally after 1951 and thereafter the temple is not at all the owner of the property and hence e proceedings initiated by the 1 st Respondent herein under Section 78 of the Tamil Nadu Hindu Religious and Charitable Endowment Act, 1959 is bad in law. When admittedly the temple is in possession of the properties given in exchange for the properties given in favour of the predecessors in title of the petitioners as per the deeds dated The Petitioners have filed a suit in O.S.No.361 of 2016 on the file of the Sub Court,

5 5 Dindigul under Section 79(2) of the Tamil Nadu Hindu Religious and Charitable Endowment Act, 1959 to establish that the 4 th Respondent temple has no title to the property involved in this proceedings and for other reliefs even before the Writ Petition in W.P.(MD)No.5776 of 2016 was disposed of and the above suit in O.S.No.361 of 2016 is still pending. 3. In the counter affidavit, the 3 rd respondent have stated that the petition mentioned property situate in Nilakottai Village in Survey No.248 comprised an extent of 686 sq.ft belongs to the 3 rd respondent temple. That property was encroached by the Revision Petitioners who are running in the name of S.K.textiles without permission of the HR & CE Department. Since the Petitioners have encroached the Petition mentioned property, the temple issued a registered legal notice to the petitioners on The Petitioners received the notice and either sent any reply nor delivers the property to the temple. So the 3 rd respondent temple suffered a lot in many ways. After that the 3 rd respondent temple filed a petition against the petitioners u/s.78(1)(2) of Tamil Nadu HR & CE Act before Joint Commissioner of Madurai. Which has been numbered as Na.Ka.No.10592/2014/E1 and various notice of enquiry have been issued by the Joint Commissioner to the Petitioners and the they had also appeared for enquiry before the Joint Commissioner, Madurai. Initially the petition mentioned property was given by one Late.Vairavanathapillai of Nilakottai Town through registered Gift Settlement (document No. 3562/1908) dated for the purpose of Sri Sivakami Sathema Nadeswara Swamy Pooja expenses. In that Settlement Deed the above mentioned Late.Vairavanathapillai has particularly mentioned his legal heirs are any others have no right to alienate this property for any encumbrance. If any encumbrance will accured by the Trustees that was legally questioned by the Mediators. Meanwhile on one Late.Ponnusamy Pillai who is the trustee of 3 rd respondent temple sold the property under registered sale deed (Doc.No. 74/1929) to M.Subbaiah Pillai for the purpose of construction of temple building, temple middle Mandabam for that transaction the above mentioned M.Subbaiah pillai has sold his lands situate in Nilakottai Village, In Survey No.408/2 comprised an extent of 2 Acre 29 cents through registered sale deed document No.75/1929 as exchange. After that on Thirumalai Kolunthu Pillai Vagayara who are the son s of the above mentioned late. M.Subbiah Pillai have sold the property to M.Krishnasamy under registered sale deed bearing No. 1742/1936 and in that sale deed there is no clear explanation of precedent title

6 6 of the property. On the above said M.Krishnasamy Naicker sold the property to one Savarikoothan under registered Sale Deed and in that deed also there is no clear description of the precedent title. After that on one S.Kasiviswanathan who is the on of Savarikoothan sold the property to the Petitioner without the clear description of the precedent title. The above mentioned all transactions are legally contrary to the Provisions of Tamil Nadu Hindu Religious Endowments Act 1926 and Tamil Nadu Hindu Religious and Charitable Endowments Act, "Sec. 76(1) of Madras Hindu Religious Endowments Act 1926 No exchange, sale or mortgage and no lease for a term exceeding five years of any immovable property belonging to any math, temple or specific endowment shall be valid or operative unless it is necessary or beneficial to the math, temple or specific endowment and is sanctioned by the Board". "Sec. 34 of Tamil Nadu Hindu Religious and Charitable Endowments Act 1959 Alienation of immovable trust property :- (1) 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 (the Commisioner) as being necessary or beneficial to the institution. Therefore it is prayed that this Hon ble Court may be pleased to dismiss the Revision Petition with cost and thus render justice. 4. I heard Thiru. V.Meenakshisundaram, Counsel for the petitioners and Thiru.M.Nagarajan, Counsel for the 3 rd respondent and perused the relevant records. 5. The counsel for the petitioners has raised the following points in support of his case:- (i) The property was exchanged by the then Trustee. Thereafter several transactions were taken place. (ii) The earlier Acts did not contain provision similar to that of Sec 34 of the present Act. (iii) Sec 109 of the Act came into effect from 2003 only. Hence, the claim of the temple barred by limitation. The petitioners acquired title by adverse possession. (iv) The Sec 78 of the Act has been introduced only in the year 1996, but the petitioners are in possession prior to the year Hence, the order passed by the Joint Commissioner lacks jurisdiction. (v) In the Second Appeal filed by the petitioners predecessor in title, interim injunction was granted and the declaration suit filed by the petitioners is also pending.

7 7 6. In the registered settlement deed No.3562/1908 executed by one Vairavanathapillai it was mentioned that nk go enl turthä ói# Arth tifawh iõ eluhròu š e«khš f l g ou»w Mya š vgªjuëæu F«iõ enl turthä ói# Arth tifawh if fça J fhf Ïjdoæš f l %.1500/- kâ ò bgwkhd brh J fis iõ Rthä»bad kd ó tkhœ é ou»nw. mjfs«mjfë tu«gofs«iõ Myaif»ça Kjyhd j k ÁyÎ F cgnahf gl j fj. mjfis ba thçrfs«k wt fs«v éj guhôdk«brœa gh Âaäšiybad mªâa fhy J F à å L iõ Mya óirahâ if»ça gçkhz J F«mitfis mãéu  brœa nt oaj F«mj F nt oa»uaªâfis ãaä J bfhÿs nt oaj F«ba thçáš ÁnuhZil ò Âuuhd ešyfhkãÿis j kf jhthfî«mt j«ã bgh Drhä ßisia mì bl L j kf jhthfî«nkšf l ÏUt fs F êÂ_ ò thçr»uk go F«xUt j k f jhthf ÏUªJ tu nt oaj. iõ j kf jhthdt fÿ iõ Áthya if fça J F nk g ou»w brh J fis guhôd«brœjhy«mj tu«gofis j fÿ brh J F cgnahf gl ÂdhY«mij g Áy Átk a j fÿ bašnyhu F«r l go gh Âaij c L. The above recitals clearly reveal that the endowed properties are inalienable. The legal heirs of the testator are entitled to manage and perform the endowment as per the wish of the testator as Trustees of the Endowment and they have no right to alienate the property in any manner. 7. The suit temple is a public temple and governed by the provisions of the TN HR&CE Act. The then Trustee Thiru.Ponnusamy Pillai had alienated the property to one M.Subbiah Pillai by way of Exchange vide registered document dated 74/1929 without obtaining permission from the erstwhile HR&E Board. 8. The Sec 76 of the Madras Hindu Religious Endowments Act 1926 read as follows:- No exchange, sale or mortgage and no lease for a term exceeding five year of any immovable property belonging to any math, temple or specific endowment shall be valid or operate unless it is necessary or beneficial to the math, temple or specific endowment and is sanctioned by the Board. But in this case no such sanction was obtained from the Board. Hence the transaction entered in the year 1929 was an invalid one. When I st transaction itself was an invalid one, the subsequent transactions were nonest in the eye of law. Further, as argued by the respondent s counsel, in the sale documents they had failed to mention about settlement deed executed by the testator. 9. Further, the suit properties are valuable properties. But lesser valued property was exchanged. The temple is not getting any income from the exchanged property, on

8 8 the other hand petitioners are earning money by exploiting the property commercially. Hence, the alleged exchange of the property was not beneficial to the Temple. The trustee had alienated the property against the will of the testator. He had acted with illmotive by allowing the purchasers to occupy the property for several decades against the interest of the temple. But the Executive Officer of the temple after knowing the illegal transaction made by the Trustees has rightly initiated action u/s.78 of the Act, 10. Further the Joint Commissioner has afforded sufficient opportunity to the petitioners to defend the case. But the petitioners were only interested in avoiding the enquiry. They had filed W.P.No.1767/2014 challenging the notice issued by the Joint Commissioner u/s.78 of the Act. The said Writ Petition was dismissed by order dated Thereafter, the petitioners had filed counter in the said proceedings. Hence nothing prevented them to file documents and adduce oral evidence to prove their side. As the petitioners failed to utilize the opportunities afforded by the Joint Commissioner, he cannot contend that the Joint Commissioner failed to conduct enquiry as per the procedures contemplated under the provisions of the Act. 11. Further, the suit filed by the petitioners predecessor in title was not a declaration suit, but it was for a permanent injunction against the temple. Further, the petitioners had filed a suit in O.S.No.361/2016 to establish that the temple has no title to the property, after passing of the eviction order by the Joint Commissioner. At the time of initiation of proceedings u/s.78 of the Act, no suit was pending disputing the title of the temple. The petitioners had instituted the suit only after passing of the impugned order. The Joint Commissioner has passed a well reasoned order after perusing all the relevant records Therefore, for the foregoing reasons stated supra, I find no infirmity in the order passed by the Joint Commissioner, Madurai and it is liable to be confirmed. Accordingly the order dated of the Joint Commissioner, Madurai is hereby confirmed and the Revision Petition is dismissed as devoid of merit. /typed to dictation/ /t.c.f.b.o./ Sd./- M.Veera Shanmugha Moni Commissioner

9 9 Superintendent To 1. The petitioner through Thiru. V.Meenakshisundaram, Advocate,No.677, 8 th Street, Karpaga Nagar, K.Pudur, Madurai The 3 rd respondent through Thiru.M.Nagarajan, No.19, Sub Collector Office Road, Dindigul. Copy To 3. The Joint Commissioner, H.R. & C.E. Admn.Dept., Madurai 4. The Assistant Commissioner, HR & CE Admn.Dept., Dindigul. 5-6) Extra.