HRNC order upheld MS.JUSTICE V.M.VELUMANI Writ Petition No.8115 of 2022 and W.M.P.No.8100 of 2022 M.Gothandam (since deceased) 1. G.Chandra 2. G.Vinoth 3. L.Priya .. Petitioners Vs. 1.The Commissioner HR & CE, Admn. Department. For HRNC. Mrs.M.Geetha Tamaraiselvan Special Government Pleader

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 11.04.2022
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
Writ Petition No.8115 of 2022 and W.M.P.No.8100 of 2022
M.Gothandam (since deceased)
1. G.Chandra
2. G.Vinoth
3. L.Priya .. Petitioners
Vs.
1.The Commissioner HR & CE, Admn. Department Chennai-600 034.
2.The Joint Commissioner HR & CE, Admn. Department Chennai-600 034.
3.The Executive Officer
A/M. Thiyagarayaswamy Temple
Thiruvottiyur, Chennai-19. .. Respondents
Prayer: Writ Petition is filed under Article 226 of the Constitution of India, praying for issuance of a Writ of Certiorarified Mandamus calling for the records by recalling the order passed by the 2nd respondent by his proceedings order dated 28.05.2018 made in Pro.RC.No.14179/2008 A-3 and
consequently order passed by the 1st respondent by his proceedings dated
18.06.2020 in R.P.No.87 of 2018 and quash the same.
For Petitioners : Mr.D.Nandagopal
For Respondents : Mrs.M.Geetha Tamaraiselvan
Special Government Pleader O R D E R
The petitioners are challenging the order of the 1st respondent dated
18.06.2020 passed in R.P.No.87 of 2018 confirming the order dated
28.05.2018 passed by the 2nd respondent under Section 78(4) of the Hindu Religious and Charitable Endowments Act.
2.According to the petitioners, one Kothandam, husband of the 1st petitioner and father of the petitioners 2 and 3, was working as Watchman in Arulmigu Thyagarajaswamy Temple, Tiruvottiyur. While he was working in the 3rd respondent temple, the land measuring 500 sq.ft. was allotted to the said Kothandam with instruction to construct a residential house in the land. The said Kothandam put up a thatched shed and was living in the shed from the year 2007 without any disturbance by the 3rd respondent temple. While so, the said Kothandam suffered from stroke in the year 2017 and was admitted in JIPMER hospital, Pondicherry, for treatment. The petitioners requested one of his relatives viz., Suseela to look after the house in their absence and
inform them, if there is any necessity. While so, employees of the 3rd respondent temple treated the said Suseela as an encroacher and on their report, the 2nd respondent initiated eviction proceedings. Even though the said Suseela represented that Kothandam is owner of the house in question, they did not issue any notice to the said Kothandam or petitioners. Without giving any opportunity to the petitioners, the 2nd respondent ordered eviction of the
said Suseela. Hence, the said Kothandam filed revision before the 1st respondent in R.P.No.87 of 2018 to remand the matter to the 1st respondent for fresh enquiry. Pending revision, the said Kothandam died and the petitioners were impleaded as legal representatives of the said Kothandam. The 1st respondent by order dated 18.06.2020 confirmed the order of the 2nd respondent. Hence, the petitioners have come out with the present Writ Petition.
3.The learned counsel appearing for the petitioners contended that 1st respondent without properly appreciating the facts, erroneously dismissed the revision confirming the order of the 2nd respondent treating the said Suseela as an encroacher. The said Kothandam was working as Watchman in Arulmigu Thyagarajaswamy Temple, Tiruvottiyur. The land in question was allotted to the said Kothandam, he constructed a thatched shed and was residing with his family. Due to medical treatment, the said Suseela was requested to look after the thatched shed in their absence. In view of the same, the orders passed by the respondents 1 and 2 are invalid and illegal as they have failed to consider the contention of Kothandam and petitioners and the respondents 1 and 2 have mechanically passed the orders and prayed for allowing the Writ Petition.
4.The learned Special Government Pleader appearing for the respondents submitted that the property in question measuring 500 sq.ft. was encroached by one Suseela. Notice was ordered under Section 78(2) of the HR and CE Act, to the said Suseela, on 15.12.2008 and 06.03.2009. The said Suseela received the notice issued on 06.03.2009. Even after receiving notice, she did not appear and participate in the enquiry before the Joint Commissioner, 2nd respondent. Subsequently, the Joint Commissioner, 2nd respondent passed order under Section 78(4) of the HR and CE Act, treating the said Suseela as an encroacher and directed the said Suseela to pay a sum of Rs.74,816/- towards damages for use and occupation of the temple property. The said Suseela did not file any revision. On the other hand, Kothandam, an employee of the 3rd respondent temple, filed revision in
R.P.No.87 of 2018. The 1st respondent after considering the fact that said
Kothandam or petitioners have not proved that the property was allotted to them, rejected the contention of the petitioners and dismissed the revision. There is no error in the said order of the 2nd respondent and order passed by the 1st respondent confirming the order of the 2nd respondent. The petitioners have not made out any case. The petitioners were never in the possession of the property in question. They have not filed any document to prove that they were in possession of the property and prayed for dismissal of the Writ Petition.
5.Heard the learned counsel appearing for the petitioners as well as the learned Special Government Pleader appearing for the respondents and perused the entire materials on record.
6.From the materials on record and contentions of the learned counsel appearing for the petitioners as well as the learned Special Government Pleader appearing for the respondents, it is seen that it is the case of the petitioners that land in which thatched shed is put up, was allotted to one Kothandam during his service as Watchman in the 3rd respondent temple and the petitioners were living there along with said Kothandam. The said Kothandam retired from service in the year 2015, he suffered stroke in the year 2017 and he was admitted in JIPMER hospital for treatment. The petitioners have not produced any materials to show that they were residing in the thatched shed along with Kothandam from the year 2007. It is the case of the respondents that one Suseela encroached the temple land, put up thatched shed and was residing there from 2008 itself. The 2nd respondent initiated proceedings in the year 2008 under Section 78 of the H.R. and C.E. Act for eviction of the said Suseela. Number of notices were served on her with regard to enquiry. The said Suseela did not appear for enquiry before the
Joint Commissioner. Curiously, the said Suseela has not informed the said
Kothandam or the petitioners during pendency of the enquiry. The Joint
Commissioner conducted enquiry and passed orders treating the said Suseela as encroacher and directed her to pay a sum of Rs.74,816/- towards damages for use and occupation of the temple property. The said Kothandam came into picture only after order passed by the 2nd respondent under Section 78(4) of the HR and CE Act in the eviction proceedings. Both the respondents 1 and 2 have considered all the materials in proper perspective and passed orders.
7.From the copies of the Voter I.D. of Kothandam and his wife/1st petitioner herein, filed by the petitioners in the typed set of papers, which was issued to the said Kothandam and to his wife/1st petitioner in the year 2006, it is seen that address of the said Kothandam and his wife is mentioned as 128-5, Village Street, Ward 16, Thiruvottiyur Town, Thiruvallur. Whereas the property in question is South Pragaram Street, Thiruvottiyur, Chennai-19. The petitioners have not produced any materials to show that they were residing in the property in question i.e. South Pragaram street, Thiruvottiyur at any point of time. On the other hand, notices sent during eviction proceedings were received by the said Suseela in the property in question. As much as petitioners have not proved their possession of property in question and considering the valid reason given by the respondents 1 and 2, there is no error in the impugned orders passed by them warranting interference by this Court.
8.For the above reasons, the Writ Petition is dismissed as devoid of merits. No costs. Consequently, connected Miscellaneous Petition is closed.
11.04.2022
Index : Yes / No kj
Note:Issue order copy on 22.04.2022
To
1.The Commissioner HR & CE, Admn. Department Chennai-600 034.
2.The Joint Commissioner HR & CE, Admn. Department Chennai-600 034.
3.The Executive Officer
A/M. Thiyagarayaswamy Temple
Thiruvottiyur, Chennai-19.
V.M.VELUMANI, J.,
kj
Writ Petition No.8115 of 2022 and W.M.P.No.8100 of 2022
11.04.2022