(Prayer: Petition filed under Article 226 of the Constitution of India to issue a Writ of Certiorarified Mandamus or any other writ or order in the nature of writ calling for the records pertaining to the 3rd respondent's unilateral demand notice bearing Na.Ka.No.4808/2007-A4, dated 01-08- 2013 pertaining to the lands measuring 4.16 Acres comprised in Survey Nos. 352/4, 16.78 Acres in Survey No.354/2 and 0.12 acres in Survey No.365 totally measuring 21.06 Acres situated in Mevalur Kuppam-B Village, Sriperumbudur Taluk, Kancheepuram District, quash the same and forbearing the respondents interference with the petitioners peaceful possession and enjoyment of the said property without due process of law and render justice.)
1. In six weeks from now, captioned writ petition will turn nine in this Court as it was filed in November of 2013, to be precise on 18.11.2013. Therefore, come November 18th i.e., next month, captioned writ petition will turn nine and enter the year, which will take it to making it a decade old case.
2. Be that as it may, captioned writ petition has been filed assailing a notice dated 01.08.2013 bearing Reference Na.Ka.4808/2007-A4 (hereinafter 'impugned notice' for the sake of brevity, convenience and clarity) issued by the third respondent demanding a lease amount (TAMIL) of Rs.1,08,69,423/- for different extents of lands, comprised in four different Survey Nos.364/1, 354/2, 354/3 and 354/2. This Court is informed that these four Survey Numbers are contiguous and it is an admitted position qua the writ petitioner that the total extent of land is 21.06 Acres (19.29 Acres) in all. Writ petitioner is a Private Limited Company and there is no disputation that the writ petitioner Company is running a hotel and an amusement theme park in this extent of 21.06 Acres (19.29 acres) of land, which shall hereinafter be referred to as 'demised land' for the sake of convenience and clarity.
3. Notwithstanding very many averments and several grounds raised in the writ affidavit, Mr. K.Ramakrishnan Reddy, learned counsel for writ petitioner makes a lone pointed submission in the hearing and that is, impugned notice has been issued without giving an opportunity to the writ petitioner i.e., a show cause notice, as it has straight away made a demand. To be noted, writ petitioner has responded to the impugned notice by way of a detailed communication dated 10.09.2013 addressed to the third respondent. A careful perusal of this reply of the writ petitioner company brings to light that writ petitioner has categorically averred that it was inducted as a tenant/lessee qua demised land under the 4th respondent temple i.e., 'Arulmigu Kasi Vishwanathaswami Thirukoil and Arulmigu Venugopalaswami Thirukoil situate at Palanjur, Poonamallee' (hereinafter collectively 'said temple' for the sake of convenience and clarity). To be noted, this averment has been repeated in the writ affidavit also which is an affidavit sworn on oath. There will be a little elaboration on this elsewhere infra in this order.
4. On 18.11.2013, this Court has granted an interim order i.e., an order of interim stay qua impugned notice and this Court is informed that the same is operating until today i.e., for over eight years now and the interim order will also turn nine in six weeks from today, next month and enter the year which will gravitate towards making it a decade old interim order.
5. Be that as it may, the writ petitioner, in the typed set of papers, has filed a notice issued by said temple being notice dated 26.06.2013 to six individuals demanding a sum of Rs. 2,75,46,748/- (Rupees Two Crores Seventy Five Lakhs Forty Six Thousand Seven Hundred and Forty Eight only) towards rent and damages for demised land. Learned counsel for writ petitioner submits that the noticees are closely associated with the writ petitioner company, but the exact details have neither been set out in the writ affidavit nor articulated in the hearing though this Court put a specific query to learned counsel in this regard. There is also no disputation or disagreement that the noticees have neither responded nor complied qua 26.06.2013 notice from the 4th respondent i.e., said temple. However, the submission that the noticees are part of the writ petitioner company is recorded, but this Court also notices that it is the stated position of the 4th respondent i.e., said temple that the lease was originally given to the noticees set out therein and they have sub-let the entire 21.06 Acres (19.29 acres) of demised land wherein the writ petitioner company is admittedly running a hotel and an amusement theme park as already alluded to supra.
6. Learned counsel for writ petitioner also submits that the writ petitioner was originally paying rent qua demised land to the local body i.e., the jurisdictional panchayat, but thereafter had stopped doing so owing to objection by the third respondent. In this regard, to a pointed query as to under what circumstances such an averment was made in the writ affidavit, attention of this Court was drawn to paragraphs 8 & 9 of the writ affidavit which read as follows:
'8) I am advised to state that in law the petitioner is also stood in the position of the 4th respondent as such the petitioner is also entitled for patta in respect of the subject "Anadheenam Lands" on par with the 4th respondent. Hence neither the 4th respondent nor the respondents 1 to 3 are entitled to claim any right over the subject property measuring 21.06 Acres (19.29 Acres). As already stated the "Anadheenam Lands" are similar to " Grama Natham Lands" which will not vest the Government.'
'9) I state that facts being the above to the shock and surprise of the petitioner the 3rd respondent by notice dated 01- 08-2013 straight away demanded a sum of Rs. 1,08,69,423/- as lease amount. Since the petitioner never was la lessee under the 3rd respondent there is no question of any liability to be any amount towards lease as alleged and claimed by the 3rd respondent. As stated earlier the subject lands under possession of the petitioner admittedly classified as "Anadheenam Lands" and as such the 3rd respondent does not have any jurisdiction whatsoever to reclassify the same to comply with the alleged audit objection. Inspite of all the above said legal proceedings pertaining to the issue of patta in favour of the 4th respondent in respect of the total extent of about 254 Acres in and around Poonamalle and inspite of the 3rd respondent being party to the said proceedings the said demand notice is issued without even any Show Cause Notice as if the petitioner is a lessee under the Government. As soon as the said demand notice is issued I met the 3rd respondent personally and explained the above said facts for which the 3rd respondent informed me that since there is an audit objection the said demand notice is issued and need not look serious of the same'.
7. The above paragraphs do not talk about payment to the local authority, but it merely says that the demised land is an Anadheenam lands and therefore is on par with or similar to Gramanatham lands.
8. Ms. Amirta Dinakaran, learned State counsel for Respondents 1 to 3, Mr.A.K.Sriram, learned counsel for said temple (4th respondent) and State Counsel Mr.NRR.Arun Natarajan for 5th respondent are before this Court. For convenience, learned State counsel for respondents 1 to 3 shall be referred to as 'Revenue State Counsel' and learned State Counsel for Respondent No. 5 shall be referred to as 'TN HR & CE State counsel' and learned Counsel for 4th Respondent will be referred to as 'counsel for said Temple'.
9. Counter affidavits have been filed and the same are on Board as part of the case file.
10. A perusal of the impugned notice brings to light that a copy has been marked to the Revenue Inspector of Thandalam. Therefore, it appears that Mevalur Kuppam-B Village, Sriperumbudur Taluk in Kancheepuram District may fall under the Thandlam Panchayat, but it is not necessary to go into those aspects of the matter owing to the pointed averment made by the writ petitioner in the writ affidavit in paragraphs 3 and 4 which read as follows:
'3) I state that the 4th respondent floated tenders for leasing of agricultural lands measuring 4.16 Acres comprised in Survey Nos.352/4, 16.78 Acres in survey No.354/2 and 0.12 Acres in Survey No.365 totally measuring 21.06 Acres (19.29 Acres) for the fasli 1405 to 1407 claiming that the 4th respondent is the owner of the subject lands. The petitioner became successful bidder in respect of the said lands and the total lease amount for the said three fasli's fixed and collected was Rs. 13785.25.
4) I state that the 4th respondent moved a Civil Suit O.S.No.427 of 1997 against the Directors of the petitioner and obtained an injunction restraining the petitioner from putting the subject lands for non-agricultural use. The said suit was decreed on 10-12-2008. Against which the petitioner's directors filed A.S.No.73 of 2009 on the file of the subordinate Judge, Poonamallee and is pending.'
11. A perusal of the aforementioned paragraphs and the averments contained therein make it clear that it is the stated position of the writ petitioner that the writ petitioner became a lessee under said temple qua demised land, in fasli 1405 i.e., in 1995 and that the lease is for a two year period upto 1407 i.e., upto 1997. To be noted, one fasli is 1st of July of the Gregorian calendar to the last day of June of the succeeding year in the Gregorian calendar. Therefore, the admitted position of the writ petitioner is, it is a lessee qua demised land under said temple and the lease expired/elapsed on 30.06.1997.
12. This Court is also informed and it also comes to light from the counter-affidavits of the Revenue and said temple that there is a tussle for title qua demised land as between Revenue and said temple but it is not necessary to go into that aspect of the matter in this writ petition. To be noted, there was a suit filed by said temple being O.S.No.427 of 1997 on the file of Principal District Munsif's Court, Poonamallee with a prayer to restrain the defendants therein from using the demised property for any purpose other than agricultural purposes. To be noted, there are four defendants therein, namely D.Selvaraj, D.Gnanaraj, Nalini Selvaraj and J.Rajani and Defendants 2, 3 and 4 are noticee numbers 1, 2 and 3 respectively in the 26.06.2013 notice of the said temple, which has been alluded to (supra). The suit, after full contest, was decreed by the jurisdictional Civil Court vide judgment and decree dated 10.12.2008. It was carried in appeal by the defendants and after full contest, the appeal also was dismissed by the first Appellate Court in and by judgment dated 13.11.2011 made in AS No.73 of 2009 on the file of Subordinate Judge's Court, Poonamallee. To be noted A.S.No.17 of 2009 is a regular first appeal under Section 96 of 'The Code of Civil Procedure, 1908' ('CPC' for the sake of brevity). There are seven appellants in the first appeal. Appellants 2, 3, 4, 5, 6 and 7 are noticees 1, 2, 3, 4, 5 and 6 respectively in the aforementioned 26.06.2013 notice of the said temple. What is of relevance is, there is a positive averment about the suit and Appeal Suit by the writ petitioner in the writ affidavit in paragraph 4 which has already been extracted and reproduced supra.
13. This buttresses the association or arrangement, as the case may be, as between the individuals and the writ petitioner's company. I have already noticed that while writ petitioner says the individuals are part of the writ petitioner company, said temple contends that they are original lessees and they have sub-let the demised land to the writ petitioner company.
14. From the narrative thus far, learned TN HR & CE State counsel and learned Revenue State counsel as well as learned counsel for said temple submit in one voice that the writ petitioner is taking advantage of the tussle between Revenue Department and 'Tamil Nadu Hindu Religious & Charitable Endowments Department' (hereinafter 'TN HR & CE Dept.' for the sake of brevity) and is not paying rent to either of them, but is in possession and occupation of vast and valuable property i.e., demised land admeasuring 21.06 Acres (19.29 acres) and is commercially exploiting the same by running a hotel and an amusement theme park that too on the teeth of aforementioned Civil Court decree that the demised land should not be used for any purpose other than agricultural activity. This court is informed that this civil court decree made in aforementioned appeal suit under section 96 of CPC has been given legal quietus by parties / attained finality and is operating. In other words, this court is informed without any disputation or disagreement that this decree in the appeal suit has not been further assailed either by way of second appeal under section 100 of CPC in this court or in any other manner.
15. As already alluded to supra, while the writ petitioner company has chosen to respond to the impugned notice in and by a detailed reply dated 10.09.2013, it has chosen to neither respond nor comply qua 26.06.2013 notice from said temple. The respondents' counsel i.e., the two State Counsel and counsel for said temple, make submissions in this regard in unison in one voice and the burden of the song is whenever there is a demand of rent from the Revenue Department, writ petitioner says it is a tenant/lessee under said temple and when said temple makes a demand, there is neither response nor compliance. The writ petitioner is thus squatting on demised property and commercially exploiting it without paying rent though (on a demurrer) the lease under said temple expired / elapsed in June of 1997.
16. Therefore, the argument that the impugned notice should have been preceded by a show-cause notice (SCN) pales into insignificance. There is one more reason owing to which it pales into insignificance and that is, writ petitioner has chosen to reply to the impugned notice and there is no provision which warrants a show-cause notice. In other words, there is nothing to demonstrate that it is statutorily imperative to precede impugned notice with a SCN. As rightly pointed out by learned State counsel, it is not a notice for dispossessing the writ petitioner qua demised land, it is only a demand of the lease rent/damages for use and occupation. Therefore, this SCN argument of writ petitioner does not weigh with this Court owing to the peculiar facts and circumstances of this case and the trajectory it has taken in this court. On an extreme demurrer, even if it is to be construed that SCN prior to impugned notice is necessary as a NJP (Natural Justice Principle) though not statutorily imperative, in the case on hand, there is no prejudice to the writ petitioner because the writ petitioner has sent a detailed reply to the impugned notice, that reply is before this court, close on the heels of the reply writ petitioner has obtained interim order in 2013 and now writ petitioner's reply has been considered by this court inter-alia in this order. This means that in the instant case, there is no prejudice to the writ petitioner qua the plea on SCN point, as that is the lone point that was focussed in the hearing, as already alluded to supra. To be noted, this has to be seen in conjunction with the undisputed position that the writ petitioner has neither complied nor replied qua notice dated 26.06.2013 from temple to noticees who according to writ petitioner's counsel form part of the writ petitioner company. It is also to be noted that the notice is in the hands of writ petitioner company and it has been filed in captioned matter by writ petitioner company. This Court is conscious of the fact that the impugned notice does not give the break up or the basis on which the internal audit arrived at the figure. Under the normal circumstances, it might have warranted interference, but in the peculiar facts and circumstances of the case on hand wherein writ petitioner is in occupation of vast and valuable land admeasuring 21.06 Acres (19.29 acres) exploiting the same commercially on the teeth of Civil Court's decree, this Court is not inclined to interfere qua impugned notice as writ petitioner by its own volition has averred in the writ affidavit that it became a tenant/lessee qua demised land under said temple (paragraphs 3 and 4 of writ affidavit extracted and reproduced supra).
17 The challenge predicated on the point that impugned notice does not give break up is no argument at least in this case on hand as the writ petitioner has admitted and made a positive averment in the writ affidavit that it is a lessee under 4th respondent temple. If writ petitioner had paid to said temple, then this argument would hold water. Admittedly, writ petitioner has not paid to said temple. If that is the case, it is for the writ petitioner to mention the quantum of rent. To be noted, there is nothing on record to show that writ petitioner has paid a penny to said temple. A lessee / tenant who is not able to demonstrate having paid a penny to the lessor (said temple) cannot be heard to contend that break up has not been given in impugned notice and take umbrage under the same. It is more so, as already alluded to elsewhere in this order, the quantum demanded by said temple is far in excess the quantum qua impugned notice. Therefore, no prejudice would be caused to writ petitioner if the writ petitioner pays the said temple. After all, a part of what the writ petitioner pays to said temple is only going to be adjusted qua impugned notice. On a legal hypotheses exercise, even if the impugned notice is treated as SCN, reply of the writ petitioner to the SCN is reply dated 10.09.2013 and this reply clearly justifies the directives to the writ petitioner to pay rent to said temple as demanded by notice dated 26.06.2013 issued by said temple as lease under said temple is admitted in the reply. Therefore, even if such legal hypotheses exercise is adopted, i.e., if impugned notice is construed to be a SCN and writ petitioner's reply to the same is examined, the impugned notice gets legally sustained and gets crystallised as a sustainable demand in the light of the sum demanded being less than the sum demanded by said temple. After all, at the end of the day, Revenue Department and TN HR&CE Dept have to apportion it suitably amongst themselves depending on how the tussle for title between the two departments progress. The bottom line is, writ petitioner cannot be permitted to squat on public property without paying a penny either to Revenue department or to said temple.
18 The other argument that demised land is Anadheenam land is also no argument as there is nothing to demonstrate that writ petitioner has moved its little finger towards getting patta. In other words, as of today, writ petitioner is occupying public land and therefore, it is only just and equitable that writ petitioner pays State, be it Revenue Department or TN HR&CE Dept.
19. The impugned notice, can be treated as notice from the State be it from Revenue Department or from the TN HR & CE Dept. If the payment under the impugned notice is made, it can be sorted out between the Revenue Department and the TN HR & CE Dept. and I propose to take this view owing to Section 116 of 'The Indian Evidence Act, 1872' (hereinafter 'Evidence Act' for the sake of brevity), which reads as follows:
'116. Estoppel of tenant; and of licensee of person in possession.—No tenant of immovable property, or person claiming through such tenant, shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property; and no person who came upon any immovable property by the licence of the person in possession thereof, shall be permitted to deny that such person had a title to such possession at the time when such licence was given.
20. This takes us back to the positive averment made by the writ petitioner in the writ affidavit, more particularly in paragraph 3 which has been extracted and reproduced (supra). It is the stated position of the writ petitioner that the writ petitioner became a tenant under said temple. If not a tenant, the writ petitioner is at least a sub-tenant under said temple. Even if the averment of the 4th respondent said temple is accepted, in the light of the Section 116 of Evidence Act, the writ petitioner has to necessarily pay rent to 4th respondent said temple, thereafter, it is for TN HR & CE Department and Revenue Department to sort it out as amongst themselves. To be noted, writ petitioner's say is, it is lessee holding over and continuance of tenancy qua Section 116 operates and being noticees qua 26.06.2013 notice of said temple to be noticees who are according to learned counsel, part of writ petitioner company makes writ petitioner coming upon possession by license of persons in possession and therefore, either way estoppel operates.
21. This takes us to the question as to challenge is only to the impugned notice issued by the 3rd respondent Revenue and it is not a challenge to the notice issued by said temple i.e., notice dated 26.06.2013. The answer to this is the law laid down by the Hon'ble Supreme Court in A.A.Gopalakrishnan case [A.A.Gopalakrishnan Vs. Cochin Devaswom Board and Ors., reported in (2007) 7 SCC 482] wherein Hon'ble Supreme Court held that it is the duty of the Courts to protect and safeguard the properties of religious and charitable institutions from wrongful claims. In other words, this Court is parens patriae qua properties vested in idols which have the status of minor in law. To be noted, the Courts are the guardians qua this minor status of idols and the law is too very well settled and A.A.Gopalakrishnan case is one in a long line of authorities.
22. This Court also finds that the demand made by the 4th respondent temple in the 26.06.2013 notice is more than the demand made qua impugned notice in terms of quantum. Therefore, the impugned notice is not interfered with and there is a further direction to the writ petitioner to comply with the demand qua said temple i.e., demand vide 26.06.2013 notice. The writ petitioner can pay the demand under 26.06.2013 demand by paying demand in impugned notice and the balance to said temple vide 26.06.2013 demand. As already alluded to supra, the Revenue and said temple can sort it out in the tussle amongst them.
23. The above directions is given based on two principles and they are as follows:
(a) Section 116 of the Evidence Act which estops the writ petitioner from saying that the writ petitioner is not a tenant/lessee under said temple.
(b) A.A.Gopalakrishnan principle being duty cast on this Court by the Hon'ble Supreme Court qua temple properties.
24. It is made clear that view taken in this order will not serve as a precedent in challenges to notice akin to impugned notice as this view has been taken owing to the peculiar facts and circumstances of this case which have already been alluded to supra.
25. This Court is conscious of the obtaining position that the prayer in the captioned writ petition is one for certiorari assailing the impugned notice, but besides answering the prayer in the negative, i.e., declining to accede to the certiorari prayer, this court is giving directives in the nature of mandamus which may be perceived by writ petitioner as going against it. This court has given its careful thought to this aspect of the matter, i.e., directives which can be perceived as mandamus against writ petitioner in a certiorari writ petition. This court is of the considered view that on the peculiar facts and circumstances of the case on hand, this is imperative in the interest of justice and it is legally permissible as this Court is parens patriae qua temple properties, idol being in a minor status, more so in the light of A.A.Gopalakrishnan principle laid down by Hon'ble Supreme Court (regarding temple properties alluded to supra). To be noted, technically speaking, this set of directives is under the residuary limb of the prayer in the captioned writ petition which reads '..... or any other writ .....'. Though a little repetitive and though it may come across as labouring on the point, this court deems it appropriate to address this aspect in this paragraph owing to what can be perceived as unconventional approach of this court in the case on hand. It can be explained by way of dispositive reasoning in this manner. De hors counter affidavits of respondents, de hors the tussle for title between Revenue department and TN HR & CE Dept, paragraphs 3 and 4 of the writ affidavit (where writ petitioner admits that it became tenant / lessee under 4th respondent said temple), section 116 of the Evidence Act, plea of writ petitioner that noticees in 26.06.2013 notice from said temple are part of writ petitioner company (association by being on the Board or arrangement in the nature of subletting is immaterial owing to this admitted position) and continued commercial exploitation for over a quarter century now (from 1995 – hotel and theme park) that too on the teeth of a civil court decree that has attained finality (decree that says that demised land should not be used for any purpose other than agricultural activities) read in this sequence conjunctively nails the matter against writ petitioner and warrants issue of directives in the nature of mandamus by resorting to the residuary limb of writ prayer, inter-alia owing to A.A.Gopalakrishnan principle laid down by Hon'ble Supreme Court.
26. In this case, it becomes a sanctus duty of this Court to do so. This answers the directives (infra) regarding proceedings under section 78 of TN HR&CE Act also, as far as writ petitioner is concerned. Admittedly, said temple (4th respondent) is landlord and there is estoppel staring at writ petitioner in this regard, i.e., estoppel in the form of section 116 of Evidence Act and therefore, section 78 proceedings are proper, appropriate and necessary. To put it differently, ultimately even Revenue can succeed, but as far as writ petitioner is concerned, said temple is landlord and this position will not change. It may well be self inflicted legal injury for the writ petitioner, but writ petitioner has chosen to do so by assailing the impugned notice.
27. The counter affidavit of the fourth respondent temple says that writ petitioner is an encroacher qua demised land within the meaning of Section 78 of TN HR & CE Act. This is in paragraph 9, which reads as f
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ollows: '9) In the light of the above circumstances I am not traversing into the other averments in the affidavit and rest content by stating that they are all matters of record. I state that in view of the above position and in as much as the Writ Petitioner is an encroacher as contemplated in the explanation to Sec.78 of H.R & C.E Act, the Respondents 1 to 3 have no locus standi to interfere with the peaceful possession and enjoyment of the property by this Respondent and therefore, pray that the impugned order may be quashed and Respondents 1 to 3 may be directed to conduct an enquiry in accordance with law and in accordance with the principles of natural justice and render justice.' 28. De hors the tussle between Revenue Department and TN HR & CE Dept., the said temple shall do well to commence proceedings under Section 78 of TN HR&CE Act as the writ petitioner cannot go back on the averments in paragraphs 3 and 4 of the writ affidavit and Section 116 of the Evidence Act stares at the writ petitioner in the form of estoppel. Therefore, the writ petitioner cannot but face Section 78 proceedings as and when initiated. Exercising my parens patriae locus, I observe that the 4th respondent will do well to kick start proceedings under Section 78 of TN HR & CE Act as expeditiously as possible and in any event, within a fortnight from today i.e., by 21.10.2021. 29. In continuation of preceding two paragraphs pertaining to section 78 of TN HR&CE Act, this Court draws inspiration from erstwhile 'The Tamil Nadu Buildings (Lease and Rent Control) Act, 1960' ('Rent Control Act' for the sake of brevity) and the definition of 'landlord' therein vide section 2(6). 'Landlord' includes the person who is receiving or is entitled to receive the rent of a building, whether on his own account or on behalf of another or on behalf of himself and others or as an agent, trustee, executor, administrator, receiver or guardian or who would so receive the rent or be entitled to receive the rent, if the building were let to a tenant. In this case, irrespective of the tussle between the Revenue department and TN HR&CE Dept as far as writ petitioner is concerned, landlord is said temple. To be noted, drawing inspiration from erstwhile Rent Control Act is only by way of an analogy, but in this case it is writ petitioner's averments made by its own volition in paragraphs 3 and 4 of writ affidavit read in conjunction with section 116 of Evidence Act that nails the matter. Therefore, as far as writ petitioner is concerned, said temple is landlord (by its own admission) and therefore, the directives. This court reminds itself that extraordinary situations demand extraordinary remedies. 30. Captioned writ petition is dismissed insofar as challenge to impugned notice is concerned albeit with aforementioned directives. Consequently connected miscellaneous petition is dismissed. There shall be no order as to costs.