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the Charitable Endowments Act, 1890
The Unit Trust Of India Act, 1963
Section 34 in The Indian Trusts Act, 1882
The Indian Trusts Act, 1882
Section 19 in The Indian Trusts Act, 1882

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Madras High Court
V.Angu vs The Commissioner on 9 February, 2012

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 09.02.2012

CORAM:

THE HONOURABLE MR.JUSTICE VINOD K.SHARMA

W.P.No.16904 of 2011

&

M.P.No.1 of 2011

V.Angu .. Petitioner

Vs.

1. The Commissioner

Hindu Religious & Charitable

Endowment Department

Nungambakkam High Road

Chennai-600 034

2. Desanatheswarar Temple

rep. by its Executive Officer

Hokenakkal, Dharmapuri District .. Respondents

Writ petition is filed under Article 226 of Constitution of India for issuance of writ of mandamus forbearing the respondents from interfering with petitioner possession of an extent of 7 acres of land in S.No.1099, Ootamalai Village, Hoigenekkal Taluk, Dharmapuri District without recourse to the proceedings under the Tamil Nadu Public Trusts (Regulation of Administration of Agricultural Lands) Act (57 of 1961). For Petitioner : Mr.R.Subramanian

For Respondents : Mr.R.Kannan Govt. Advocate

for TNHR&CE

*****

O R D E R

Petitioner has approached this court with a prayer for issuance of writ in the nature of certiorari, to quash the notice issued by the 2nd respondent for leasing out the land of Temple to the extent of 7 acres in possession of the petitioner.

2. The petitioner is the cultivating tenant of 7 acres of land in S.No.1099 of Ootamalai village, Hogenekkal Taluk. The land admittedly belong to the 2nd respondent. The petitioner is in possession of the land for more than 25 years and is regularly paying the lease rent.

3. The petitioner as per the pleadings in the affidavit has paid rent upto 29.02.2000. Thereafter 2nd respondent refused to accept any further lease rent. The petitioner therefore moved an application in this court in pending W.P.No.4071 of 2001 and it was under the interim direction of this court the petitioner paid the subsequent rent.

4. The case of the petitioner is that as there was a dispute relating to his tenancy, the petitioner applied to Record Officer to make entries under the Tamilnadu Agricultural Lands Record of Tenancy Rights Act, 1969 for recording his name as cultivating tenant.

5. The Record Officer vide order dated 2.11.1992, entered the name of the petitioner as cultivating tenant.

6. However, keeping in view the order was passed without notice to the HR&CE Department, the application moved by the petitioner was adjudicated again on 01.02.1993.

7. The Record Officer again entered the name of the petitioner in the record as cultivating tenant in respect of 7 acres of land.

8. The petitioner submits that as he is the cultivating tenant, thus entitled to protection under the Tamilnadu Public Trusts (Regulation of Administration of Agricultural Lands) Act (hereinafter called the Act) and cannot be evicted from the land except by following procedure laid down under the said Act.

9. 2nd respondent- Temple on an earlier occasion had conducted auction on 20.02.2001. The petitioner being aggrieved challenged the said auction in this court by filing W.P.No.4071 of 2001, wherein auction was stayed, but subsequently writ was dismissed as infructous.

10. Learned counsel for the petitioner contends that the 2nd respondent cannot be permitted to auction the land in possession of the petitioner being protected tenant, unless he is evicted in accordance with the procedure laid down under the Act.

11. In support of the writ petition, learned counsel for the petitioner referred to The Tamilnadu Agricultural Lands Record of Tenancy Rights Act 10 of 1969, which provides that the Government by notification can direct the preparation of a record of tenancy rights for such village or villages as may be specified in the notification. The record shall be prepared, maintained and revised in accordance with the provisions of the Act and the rules made thereunder. The recording of the name in the record maintained leads to a conclusion that the petitioner is a cultivating tenant over the land so recorded.

12. The learned counsel for the petitioner also referred to Tamilnadu Public Trusts (Regulation of Administration of Agricultural Lands) Act to contend that the cultivating tenant under the Act is a person who contributes his own physical labour or any member of his family in the cultivation of any land belonging to one under the tenancy agreement, express or implied and also includes any such person who continues to be in possession of the land after the determination of the tenancy agreement. It also includes the heir of such person, if the heir contributes his own physical labour or that of any member of his family in the cultivation of such land, but does not include a mere intermediary of his heir.

13. Public Trust defined under this Act, includes any temple, math, mosque, church or other place.

14. Learned counsel for the petitioner after referring to the definition of cultivating tenant under the Public Trust Act also referred to Section 3 of this Act, to contend that the provisions of this Act have over riding effect on any other law for the time being in force, or any custom, usage or contract or decree or order of a Court or authority. Finally reference was made to Section 19 of the Act to contend, that the tenant can only be evicted as per provisions contained in the Act, which is further subject to appeal and revision.

15. The contention of the learned counsel for the petitioner is that the respondent has no right to auction the land in possession of the petitioner as cultivating tenant.

16. It is also the contention of the learned counsel for the petitioner, that while recording the tenant in the record of right the Recording officer is entitled to record even the tenant under the Public trust.

17. Writ petition is opposed by the learned counsel appearing on behalf of the 2nd respondent, by contending that name of the petitioner in record of right was registered without notice to 2nd respondent, therefore does not give him any right of tenancy.

18. Learned counsel for the respondent has placed reliance on Section 34 of Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959, which reads as under: "34. 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 Commissioner) as being necessary or beneficial to the institution: Provided that before such sanction is accorded, the particulars relating to the proposed transaction shall be published in such manner as may be prescribed, inviting objections and suggestions with respect thereto; and all objections and suggestions received from the trustee or other persons having interest shall be duly considered by (the Commissioner). The contention of the learned counsel for the 2nd respondent is that Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959, being a Special Act would over ride the provisions of General Law under other statutes. The contention of the learned counsel for the petitioner being contrary to Section 34 reproduced above therefore cannot be accepted in Law.

19. On consideration of the matter, I find no force in this writ petition. Section 34 of Tamilnadu Hindu Religious and Charitable Endowments Act, 1959 referred to above imposes a Statutory bar against tenancy over five years, unless and until it is so approved by the Commissioner by way of special order.

20. The Tamil Nadu Public Trust Act does not prescribe any limitation for holding of tenancy and only deals with the lease granted and terms there of for the purpose of enforcement of right of the tenancy under the Act.

21. Section 19 of the Tamil Nadu Public Trust Act, therefore has to be read in consonance with the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959.

22. Once there is no provisions under the Tamil Nadu Public Trust Act being contrary to Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959, it cannot have a over riding effect. The 2nd respondent as landlord cannot lease out the property for more than five years, as any tenancy over five years has to be treated as null and void. The case put up by the petitioner himself is that he is the tenant in possession of the property for more than 25 years though he continued to be in possession under the interim direction passed by this court.

23. It is well settled law that the statute over rides the contract. Once it is not disputed that 2nd respondent is a registered temple under the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 and is governed by provisions of the Act, no lease beyond five years can be granted or recognised being null and void. On joint reading of provisions of Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959, and Tamil Nadu Public Trust Act leads to only one conclusion, that in the given case the tenant can enforce his right under the Public Trust Act for a period of five years and not more as lease beyond said period is null and void as per statute. Even otherwise Tamilnadu Public Trust Act deals with all the tenants, whereas the Tamilnadu Hindu Religious and Charitable Endowments Act, 1959 is a special Act dealing with temples registered under the Act. The lease beyond 5 years therefore is to be treated as null and void.

24. No merits. Dismissed. No costs. Connected miscellaneous petition is closed.

To

1. The Commissioner

Hindu Religious & Charitable

Endowment Department

Nungambakkam High Road

Chennai-600 034

2. The Executive Officer

Desanatheswarar Temple

Hokenakkal,

Dharmapuri District