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K Senthilkumar Vs The Principal Secretary To Government Of Tamil Nadu, Tourism, Culture, And Religious Department &Ors: Fraudulent Or Illegal Encroachment Of Temple Properties Is A Crime Against Society

Tushar Bansode ,
  25 September 2021       Share Bookmark

Court :
Madras High Court
Brief :

Citation :
W.P.No.18190 of 2021


Date of judgement:
15 September 2021

Bench:
Hon’able Justice S.M.Subramaniam

Parties:
Petitioner – K Senthilkumar
Respondent – The Principal Secretary to Government of Tamil Nadu, Tourism, Culture and Religious Department & Ors

Subject

This case involved eviction proceedings against the petitioner who had claimed to be the leaseholder of certain temple property. The main question before the High Court was whether the eviction order against the petitioner was justified and to what extent he is liable to be prosecuted for subletting properties belonging to religious institutions.

Legal Provisions

  • Section 78 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 (HR and CE Act) – Encroachment on land belonging to a religious institution and the eviction of such encroachers.
  • Section 34 of the Tamil Nadu Hindu Religious and Charitable Endowments Act – Alienation of immovable trust property
  • Article 226 of the Indian Constitution – Every High Court shall have the power to issue writs to grant relief to the affected petitioner.

Overview

  • The petitioner, in this case, claimed that the land situated in Chennai, which is the subject matter of the case, belonged to respondent number 4. But, the superstructure on the land belonged to the petitioner's father, who had later sold the superstructure to the petitioner’s uncle (respondent no 6) by a registered sale deed.
  • The petitioner asserted that he was in continuous possession and enjoyment of the property till now by letting it out to tenants and also paid rent regularly. The temple authorities had filed for a permanent injunction against the petitioner and his uncle, to not put up any illegal construction in the temple property.
  • The petitioner alleged that respondent 4 had arbitrarily increased the rent and later terminated the lease deed on 29.07.2008 and thereafter, filed for an injunction. Under Section 78 of the Tamil Nadu HR and CE Act, 1959 the competent authorities passed an order for the eviction of the petitioner. Hence, the aggrieved petitioner filed a writ petition in the High Court under Article 226, praying the Court to issue a writ of mandamus.
  • The Government Advocate on behalf of the respondents argued that the petitioner is an encroacher and is not recognized as a lessee by the temple authorities. Moreover, the petitioner has failed to produce any document to prove that the competent authorities had entered into a valid lease agreement with them. The Advocate also submitted that the petitioner has sublet the premises in favour of some third parties and collected a huge amount of rent by abusing the temple properties and thereby committing a serious offence.
  • He further submitted that the assumed lease ended on 29.07.2008 and since then, the petitioner has become an illegal occupant. He also pointed out that the said property was alienated by the petitioner without a valid sanction by the Commissioner, which thus makes it null and void, according to Section 34 of the HR and CE Act.

Issues

  • Whether the petitioner is an illegal occupant of the said property?
  • Should the order of eviction passed against the petitioner be set aside?
  • Can the petitioner be held guilty for subletting the property to a third party?

Judgement Analysis

  • Concerning the registered sale deed, the Court took notice of the fact that the petitioner had actually failed to produce any document to support his claim. There was no lease deed or permission from the Commissioner, HR and CE Department, which would recognise him as an authorised leaseholder. The court also held that the petitioner was unable to establish that he is the permissible tenant.
  • After perusal of the facts and circumstances, the Court held that the petitioner, his father and his uncle, are not only illegal occupants but have also utilized the temple property for their personal gain in an unlawful manner. The court also noted that the petitioner has failed to procure the sanction of the Commissioner which is mandatory under Section 34 of the HR and CE Act.
  • Justice S.M. Subramaniam said that a temple property is meant for the benefit of the temple and if it is being impeded, then it is the duty of the Court to intervene and take appropriate action. He also stated that the “deity” in the temple is a “minor” and thus, Courts must protect the interests of an idol in litigation and ensure that the 'deity' does not thereby suffer.
  • The court believed that the actions of the petitioner equate to the expression “fences eating the crops” and hence must be dealt with earnestly. It ordered the Government, members or trustees of Boards/Trusts, and devotees to be more vigilant, to overcome encroachment problems because offences like these are not private but public in nature.
  • Subsequently, the writ petition was rejected. The Court also ordered that the concerned authorities must ensure that whether the temple authorities had a passive or active involvement or collusion in such maladministration of the temple authorities. If yes, then they should be prosecuted. Further, it directed the HR and CE Department to hold an elaborate inquiry,considering the long-term illegal possession of the temple property by the petitioner and the money appropriated by them.

Conclusion

Justice S.M. Subramaniam opined that such illegal and fraudulent encroachments of temple properties are a crime against society at large. Persons found guilty of such misappropriation of the temple funds should be prosecuted by the State as the State is the controller of these temples. Temple properties are time and again robbed and looted by professional criminals and land grabbers.

Participation of officials of the HR and CE Department in such activities has also increased over time and requires a stern response to have a deterring effect. Appropriate action must also be taken to circumvent this.

Click here to download the original copy of the judgement

 
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