B. Shaji v. Sree Pravaraswamy De...

Prayer: Second Appeal filed under Section 100 of the Civil Procedure Code against the judgment and decree of the VI Additional City Civil Judge dated 14.07.2008 made in A.S No. 482 of 2007 confirming the judgment and decree of the III Asst. Judge, City Civil Court dated 31.03.2006 made in O.S No. 2711 of 2000.

JUDGMENT

1. Second Appeal No. 1316/2008 has been preferred against the judgment and decree of the learned VI Additional Judge, City Civil Court, Chennai made in A.S No. 482/2007 confirming the judgment and decree dated 31.03.2006 passed by the learned III Assistant Judge, City Civil Court, Chennai in O.S No. 2711/2000.

2. The Suit was filed by the respondent in the Second Appeal, namely Sree Pravaraswamy Devasthanam, represented by its Hereditary Managing Trustee-C. Balaji, against the appellant in the Second Appeal, praying for a direction against the defendant to vacate and deliver vacant possession of the suit property, for recovery of rental arrears and for recovery of damages for use and occupation on the basis of alleged termination of the lease created in favour of the appellant/defendant. Among other grounds of defence, the Suit was resisted on the ground that the same was not maintainable in law, as the respondent-Temple/plaintiff-Temple would come within the purview of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959.

3. The Trial Court framed the question of maintainability of the Suit as the first issue and three other issues. At the end of trial, the learned Trial Judge decided all the issues in favour of the respondent herein/plaintiff and against the Appellant herein/defendant and consequently decreed the suit for recovery of possession, for recovery of a sum of Rs. 4,500/- as arrears of the rent from February 1999 to July 1999 and thereafter damages for use and occupation at the rate of Rs. 1,500/- per month till delivery of possession.

4. Impugning the said judgment and decree of the Trial Court dated 31.03.2006, the appellant herein/defendant preferred A.S No. 482/2007 and the same was dismissed by the Lower Appellate Judge, namely learned VI Additional Judge, City Civil Court, Chennai on 14.07.2008 confirming the decree passed by the Trial Court. Hence the appellant/defendant has filed the present Second Appeal on various grounds set out in the memorandum of grounds of Second Appeal.

5. Along with the Second Appeal, the appellant has also filed a Miscellaneous Petition M.P No. 1/2008 in S.A No. 1316/2008 praying for stay of execution of the decree. This Court, by an order dated 29.10.2008 granted interim stay on condition that the Appellant should deposit a sum of Rs. 15,000/- towards arrears of rent to the credit of the original suit within two weeks from the date of the said order. In the said order permission was granted to the respondent herein/plaintiff to withdraw the said amount along with any other amount which was already deposited by the appellant/defendant. The appellant/defendant was also directed to pay future rents to the respondent. Admittedly, first part of the said condition was complied with and according to the Appellant, the second part of the condition was also substantially complied with by tendering the rent, which was declined by the Respondent herein/plaintiff. Under such circumstances, the respondent/plaintiff has filed M.P No. 1/2009 in S.A No. 1316/2008 for vacating the above said order of interim stay.

6. When both the stay Petition and the vacate stay Petition came up for hearing, it was brought to the notice of the Court that the Second Appeal involved a substantial question of law as to the maintainability of the Suit and that hence the Second Appeal itself could be taken up for disposal. Accordingly, the Second Appeal itself was heard and the following judgment is pronounced.

7. The Defendant in the original Suit, who suffered a decree for recovery of possession, recovery of arrears of rent and recovery of mesne profits before the Trial Court which came to be confirmed by the Lower Appellate Court, is the Appellant in the Second Appeal. The respondent in the Second Appeal is the Plaintiff in the original Suit, who proved to be successful before the Trial Court and the Lower Appellate Court. The respondent/plaintiff is Sree Pravaraswamy Devasthanam represented by its hereditary Managing Trustee-C. Balaji. Admittedly, the appellant/defendant was a lessee under the respondent herein/plaintiff in respect of the suit property, in which a old structure was standing at the time of inception of the lease. Subsequently, with the consent of the lessor, namely the respondent/plaintiff, the appellant/defendant put up a pucca construction, which is in existence as on today in the suit property spending his own funds for the said construction. However, it is claimed by the respondent/plaintiff that there was a specific agreement to the effect that the appellant/defendant, on termination of lease, should hand over the building also without claiming any compensation for the same and that there was a condition restraining the user of the property to the effect that it should be used only for the residential purpose of the respondent/plaintiff or by his sub-lessees in case it is sublet, for their own residential purposes. Claiming that the property was used as a lodge, as against the agreement between the parties, the respondent/plaintiff seems to have issued a notice under Ex.A2 terminating the tenancy and requiring the appellant/defendant to hand over possession and pay arrears of rent as well as damages for use and occupation. The said notice was received by the appellant/defendant as evidenced by Ex.A3-Acknowledgment Card. Thereafter, the parties seem to have been litigating in the High Court and in the City Civil Court by filing Writ Petitions and suits. At last, the present Suit came to be filed by the respondent/plaintiff for the reliefs indicated supra.

8. At the time of admission of the Second Appeal, the following questions were framed as substantial questions of law:

(i)Whether the Lower Appellate Court is right in holding that the term of lease under an unregistered lease deed executed in present could be enforced?

(ii)Whether the Lower Appellate Court is right in not considering the written permission under Ex.B1 and 2, marked in additional evidence before the Appellate Court, especially when such permission to build on the property cannot be revoked under Section 60 of the Easement Act?

(iii)Whether termination of the lease in respect of the superstructure which admittedly was constructed by the Defendant, is valid, especially when no deed of transfer of such immovable property has been registered by the Defendant in favour of the Plainitiff?

(iv)Whether the Suit is maintainable by a private trust, in view of the prohibition under Section 10 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960?

9. Out of the above said questions framed as substantial questions of law, there is a patent error in the fourth question, which has been framed on the assumption that the respondent/plaintiff trust is a private trust according to the pleadings. On the other hand, in paragraph 4 of the Plaint, it has been averred in clear terms without any scope for ambiguity that the Plaintiff is a public Hindu Religious and Charitable Trust and is therefore exempted under Section 29 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 read with Tamil Nadu Government Order in G.O.Ms No. 2000 Home dated 16.08.1976 The appellant herein/defendant has also stated in paragraph 3 of his written statement that the Plaintiff-Temple comes under the purview of the Hindu Religious and Charitable Endowments Board and hence the Plaintiff-Temple cannot maintain the Suit without the authority of the Hindu Religious and Charitable Endowments Board. However, in the next paragraph itself, namely paragraph-4 of the Written Statement, the appellant/defendant has stated that Thiru Balaji, who claims to be a Hereditary Trustee of the Plaintiff-Temple, did raise a contention before the Hindu Religious and Charitable Endowments Board that the plaintiff-Temple was a private trust and hence the Hindu Religious and Charitable Endowments Board had no right of control over the management of the temple and that in view of such a stand taken by Thiru C. Balaji, who has filed the Suit on behalf of the Plaintiff-Devasthanam, the maintainability of the plaintiff suit should be negatived as the Plaintiff-Temple is not exempted under Section 29 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960.

10. In paragraph-3 of his Written Statement, the appellant/defendant has taken a stand that the Suit is not maintainable since the plaintiff Devasthanam is a Hindu Public Religious Trust coming under the control of the Hindu Religious and Charitable Endowments Board. But, in paragraph-4 of the Written Statement, he has taken a different stand that the Suit is not maintainable in view of the stand taken by the trustee of the plaintiff Deveasthanam, who claimed before the Hindu Religious and Charitable Endowments Authorities that the plaintiff-Devasthanam is a private trust. It is the contention raised by the appellant/defendant in paragraph-4 of the written statement that the exemption provided under Section 29 of the Tamil Nadu Buildings (Rent and Lease Control) Act, 1960 is not applicable to the plaintiff-Devasthanam in view of such a peculiar stand taken by the trustee before the Hindu Religious and Charitable Endowments Authorities. Therefore, the following two additional substantial questions of law are framed:

(i) Whether the Suit is barred under Section 108 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959?

(ii) Whether the Suit is not maintainable even if it is assumed that the plaintiff institution is not a public religious institution?

11. There is no evidence, either oral or documentary, to show that the plaintiff-Devasthanam is a private trust, which do not come under the purview of the provisions of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959. On the other hand, the above said contention of the appellant herein/defendant seems to be based on the Principle of Estoppel. But, there cannot be any estoppel against a statute. In this case, the respondent herein/plaintiff has taken a concrete stand that the plaintiff Devasthanam is a Hindu Public Religious Institution and hence exempted from the purview of the Tamil Nadu Buildings (Lease and Rent Control Act), 1960 as per Section 29 of the said Act. The said contention of the plaintiff also has been admitted by the appellant/defendant in paragraph-3 of his written statement. When that being so, the Trial Court seems to have embarked upon a rowing enquiry as to whether the plaintiff-Devasthanam is a public trust or private trust.

12. Despite the admission made and despite the fact that the parties have not produced any order passed by the authorities under the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 to the effect that the plaintiff-Devasthanam is not a Public Hindu Religious Institution, the learned Trial Judge seems to have proceeded to assume that the Plaintiff Devasthanam is a private trust simply because no Administrator or Executive Officer was appointed to the plaintiff-Devasthanam by the Hindu Religious and Charitable Endowments Authorities and the plaintiff Devasthanam is managed by the Hereditary Trustees. There is no iota of evidence to arrive at such a conclusion that the plaintiff-Devasthanam is a private temple, which falls outside the purview of the Tamil Nadu Hindu Religious and Charitable Endowment Act, 1959. Hence the finding to the effect that it is a private trust is a perverse finding, liable to be interfered with.

13. The further blender committed by the Trial Judge is found in the closing lines of paragraph 6 of the judgment of the Trial Court. For better appreciation, the same is extracted here under:

The said observation will make it obvious that the learned Trial Judge has failed to give a clear finding as to whether the plaintiff-Devasthanam is a Public Religious Trust coming under the purview of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 or a private temple, which does not come under the purview of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959.

14. The learned Trial Judge has also committed a grave error in holding that a Religious Trust, whether public or private, is exempted from the purview of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 as per G.O.Ms No. 2000 dated 16.08.1976 Without even reading the said Government Order, the learned Trial Judge has gone to the extent of stating that all the properties of religious Trust, whether they are public or private, are exempted from the provisions of Tamil Nadu Buildings (Lease and Rent Control) Act, 1960. It shows non-application of mind on the part of the learned Trial Judge. The learned Lower Appellate Judge has also failed to notice such a grave error committed by the learned Trial Judge and blind-foldedly confirmed the judgment of the Trial Court. G.O.Ms No. 2000 Home dated 16.08.1976 reads as follows:

“In exercise of the powers conferred under Section 29 of the Tamil Nadu Buildings (Lease and Rent Control Act), 1960 (Tamil Nadu Act XVIII of 1960) and in supersession of the Home Department Notification No. II(2)/HO/3811/74, dated the 12th August, 1974, published at page 444 of Part II - Section 2 of the Tamil Nadu Government Gazette, dated the 21st August, 1974, the Governor of Tamil Nadu hereby exempts all the buildings owned by the Tamil Nadu Hindu, Christian and Muslim religious public trusts and public charitable trusts from all the provisions of the said Act.”

In the very same G.O, by notification No. II(2)/HO/6060/76, all buildings owned by all Government undertakings including Government Companies registered under the Indian Companies Act, 1956 (Central Act I of 1956) and by all the Co-operative Societies were exempted from the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960.

15. A reading of the G.O No. 2000 of 1976 dated 16.08.1976 will show that only the buildings belonging to public religious trusts and public charitable trusts are exempted from the provisions of the Rent Control Act. The learned Trial Judge and the learned lower Appellate Judge have failed to notice the same and in particular, the learned Trial Judge erroneously held that private trusts were also exempted from the provisions of the Rent Control Act.

16. In addition to that, there are clinching documents to show that the plaintiff-Devasthanam has been recognised and treated by the Hindu Religious and Charitable Endowments Department, as a hindu public religious endowment. Ex.A1 is the lease agreement. The last paragraph of the lease agreement reads as follows:

“If in - Event the lessor get permission from the commissioner H.R & C.E Department for the sale of the above said property the First Auction (sic option) will be given to purchase the above said property to the lessee at the prevailing market rate.”

The said clause numbered as “14” in the Lease Deed will make it clear that the permission of the Commissioner, Hindu Religious and Charitable Endowments Department was needed for the sale of the suit property belonging to the plaintiff-Devasthanam, which shall give a clear inference that the plaintiff-Devasthanam is a Hindu Public Religious Institution, as per the definition found in Section 6(18) of the Tamil Nadu Hindu Religious and Charitable Endowments Act. Therefore, it is quite obvious that the suit property stands exempted from the provisions of the Rent Control Act by virtue of the Notification issued under Section 29 of the said Act, namely G.O.Ms No. 2000 of 1976.

17. Though it was not specifically pleaded before the Courts below, with the permission of the Court, the Appellant has raised a legal issue as to the maintainability of a Suit by a Public Religious Institution against a lessee after termination of the lease for eviction (recovery of possession). The learned counsel for the appellant argued that specific provisions for recovery of possession of the properties belonging to public Hindu Charitable or Religious Institution or Endowment have been provided in the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 and hence the Suit filed by the plaintiff-Devasthanam for recovery of possession of the land and building in the Civil Court is not maintainable and that the same stands barred by Section 108 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959, 1959. Section 108 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 provides a bar of Suits in respect of administration or management of religious institutions or any other matter or dispute for determining or deciding which provision has been made in the Act. The Section reads as follows:

“108. Bar of Suits in respect of administration or management of religious institutions, etc.— No Suit or other legal proceeding in respect of the administration or management of a religious institution or any other matter or dispute for determining or deciding which provision is made in this Act shall be instituted in any Court of Law, except under, and in conformity with, the provisions of this Act.”

18. As rightly pointed out by the learned counsel for the appellant, provisions have been made in the Hindu Religious and Charitable Endowments Act for the eviction of the “encroachers” of the land or building belonging to the charitable or religious institution or endowment. Section 78 says that the Assistant Commissioner having jurisdiction either suo motu or upon a Complaint made by a trustee that any person encroached upon any land, building, tank, well, spring or water-course or any space wherever situated belonging to the religious institution or endowment to report the fact together with relevant particulars to the Joint Commissioner having jurisdiction over the division in which religious institution or endowment is situated and if the Joint Commissioner, on a perusal of the report sent by the Assistant Commissioner, finds that there is a prima-facie case of encroachment, he shall issue a notice to the encroacher calling upon him to show cause before a certain date as to why an order requiring him to remove the encroachment should not be made. The Section also empowers the Joint Commissioner to pass an order, after considering the objections, if any, of the encroacher, for the removal of such encroachment and directing him to deliver possession of the property. The Section also gives power to the Joint Commissioner to order the encroacher to deposit such amount, as may be specified by him. For better appreciation, the entire Section 78 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 is extracted here under:

78. Encroachment by persons on land or building belonging to Charitable or Religious Institution or Endowment and the eviction of encroachers.— (1) Where the Assistant Commissioner having jurisdiction either suo motu or upon a Complaint made by the trustee has reason to believe that any person has encroached upon (hereinafter in this Section referred to as “encroacher”) any land, building, tank, well, spring or water-course or any space wherever situation belonging to the religious institution or endowment (hereinafter referred to as “the property”), he shall report the fact together with relevant particulars to the Joint Commissioner having jurisdiction over the division in which the religious institution or endowment is situated.

Explanation.— For the purpose of this Section, the expression “encroacher” shall mean any person who unauthorisedly occupies any tank, well, spring or water-course or any property and to include —

(a) any person who is in occupation of property without the approval of the competent authority (sanctioning lease or mortgage or licence); and

(b) any person who continues to remain in the property after the expiry or termination or cancellation of the lease, mortgage or licence granted to him.

(2) Where, on a perusal of the report received by him under sub-section (1), the Joint Commissioner finds that there is a prima facie case of encroachment, he shall cause to be served upon the encroacher a notice specifying the particulars of the encroachment and calling on him to show cause before a certain date why an order requiring him to remove the encroachment before the date specified on the notice should not made. A copy of the notice shall also be sent to the trustees of the religious institution or endowment concerned.

(3) The notice referred to in sub-section (2) shall be served in such manner as may be prescribed.

(4) Where after considering the objections, if any, of the encroacher received during the period specified in the notice referred to in sub-section (2) and after conducting such enquiry as may be prescribed, the Joint Commissioner is satisfied that there has been an encroachment, he may by order and for reasons to be recorded, require the encroacher to remove the encroachment and deliver possession of the property (land or building or space) encroached upon to the trustee before the date specified in such order.

(5) During the pendency of the proceeding, the Joint Commissioner shall order the encroacher to deposit such amount as may be specified by him in consideration of the use and occupation of the properties in question in the manner prescribed.

19. Section 79 deals with the mode of eviction when the encroachment is not removed by the person, as directed by the Joint Commissioner. Section 79 also provides that a person aggrieved by the order of the Joint Commissioner under Section 78(4), can institute a Suit in a Court to establish that the Religious Institution or Endowment has no title to the property. While preserving such a right of an alleged encroacher, it has also been provided in Section 79 itself that no suit shall be instituted by a person who is let into the possession of the property by or who is a lessee, licensee or mortgagee of the Religious Institution or Endowment. Section 79 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 reads as follows:

79. Mode of eviction on failure of removal of the encroachment as directed by the Joint Commissioner.— (1) Where within the period specified in the order under sub-section (4) of Section 78, the encroacher has not removed the encroachment and has not vacated the property, the Assistant Commissioner having jurisdiction over the division may remove the encroachment and obtain possession of the property encroached upon, taking such police assistance as may be necessary. Any police officer whose help is required for this purpose shall under necessary help to the Assistant Commissioner.

(2) Nothing in sub-section (1) shall prevent any person aggrieved by the order of the Joint Commissioner under sub-section (4) of Section 78 from instituting a suit in a Court to establish that the religious institution or endowment has no title to the property:

Provided that no Civil Court shall take cognizance of any suit instituted after six months from the date of receipt of the order under sub-section (4) of Section 78:

Provided further that no such suit shall be instituted by a person who is let into possession of the property or who is a lessee, licensee or mortgagee, of the religious institution or endowment.

(3) No injunction shall be granted by any Court in respect of any proceeding taken or about to be taken by the Joint Commissioner under Section 78.

Similar provisions have been made in Section 80 for the eviction of lessees, licensees or mortgagees.

20. A conjoint reading of Sections 78, 79 and 108 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 will make it clear that a Suit by a Hindu Public Religious Institution for recovery of property of the Religious Institution cannot be straight away filed in a Civil Court. As provisions have been made for the removal of encroachment by the Joint Commissioner under Section 78, the bar provided under Section 108 of the Act will come into play to prevent a Suit being filed straight away in a Civil Court for the recovery of the property. A meek attempt was made by the learned counsel for the respondent/plaintiff by raising a contention that Section 78 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 was meant for evicting encroachers and not lessors, whose lease have been terminated. The Explanation appended to sub-section (1) of Section 78 shall be the fitting answer to the above said submission made by the learned counsel for the Respondent. As per the explanation, the term “encroacher” shall include any person who continues to remain in the property after the expiry or termination or cancellation of the lease, mortgage or license granted to him. Therefore, it is quite obvious from clause (b) of the Explanation appended to Section 78(1) of the H.R & C.E Act, that a person who continues to remain in the property after the termination of the lease also comes under the definition of “encroacher” for the removal of whom, the Joint Commissioner can pass an order under sub-section (4) of Section 78.

21. Since a specific provision has been made for the eviction of the encroacher, as rightly contended by the learned counsel for the appellant/defendant, no Suit can be directly instituted in any Court of law except under and in conformity with the provisions of the Act, as per Section 108 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959. Apart from the provision for eviction of the encroacher, provisions have also been made under sub-section (5) of Section 78 for depositing the amount determined by the Joint Commissioner for use and occupation, pending disposal of the proceedings for eviction under the above said Section. Section 79(c) also provides for recovery of the amount due to the religious institution as if it were an arrears of land revenue. But the said section provides a non-obstante clause that such recoveries can be made without prejudice to any other mode of recovery. A simple Suit for recovery of arrears of rent may be held not barred. But the present case has been filed for recovery of possession as the principal relief and the prayers regarding recovery of rent and damages for use and occupation are made consequential to the main relief. Pending the proceedings, entire arrears of rent has been collected. The recovery of damages for use and occupation depends upon the question of valid termination of the lease. Based on the alleged termination of lease, recovery of possession has been made by that lease. Principal relief and the prayer for mesne profit is made consequential to the said principal relief. Therefore, this Court comes to the conclusion that the contention of the learned counsel for the appellant that the Suit is not maintainable, as it has been straight away filed in a Civil Court for recovery of possession of the property, whereas provision for the same has been made in the Tamil Nadu Hindu Religious and Charitable Endowment Act, 1959 under Section 78, has got to be countenanced.

22. Even though there are indications in the lease deed itself that the plaintiff-Devasthanam is a public institution coming under the purview of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 and the plaintiff, in fact, has made an averment in the plaint that the Plaintiff Devasthanam is a Public Hindu Religious and Charitable Trust and hence exempted under Section 29 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, P.W.1 seems to have led evidence contra to the pleading by stating that the Plaintiff-Devasthanam is a private trust and hence he did not get the permission of the Hindu Religious and Charitable Endowments department for instituting the Suit. That is the reason why the Courts below have failed to determine whether Plaintiff-Devasthanam is a Public Religious Institution or Private Religious Institution and on the other hand, erroneously held that even if it is a Private Religious Institution, its properties shall stand exempted under Section 29 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960. We have already seen supra that G.O.Ms No. 2000/1976 dated 16.08.1976 exemps properties of the public religious or charitable institutions or endowments alone from the purview of the Rent Control Act. Even if it is assumed without accepting that the Plaintiff Devasthanam is not a Public Religious Institution, the exemption under Section 29 of the Rent Control Act shall not be applicable to the property, as the lease at the inception was not in respect of the land alone, but in respect of the land and the building which were existing on the date of lease. In either case, the Suit filed directly in the Civil Court for eviction shall not be maintainable. The question framed as substantial question of law 3 and 1 and 2, the additional substantial questions of law regarding maintainability of the Suit is answered accordingly. In view of the same, the other questions framed as substantial questions of law do not require any adjudication as the above said decision goes to the root of the case.

23. For all the reasons stated above, this Court comes to the conclusion that the Suit filed by the respondent/plaintiff institution is not maintainable and hence on that score alone, the Second Appeal shall succeed and the judgments and decrees of the Courts below are liable to be set aside. However, by way of clarification it is pointed out that the respondent/plaintiff is entitled to invoke the powers of the Joint Commissioner, H.R & C.E under the provisions of the H.R & C.E Act, 1959.

24. In the result, the Second Appeal is allowed and the decree passed by the Trial Court and confirmed by the lower Appellate Court is set aside. O.S No. 2711/2000 on the file of III Assistant Judge, City Civil Court is dismissed as not maintainable. Consequently, all the connected Miscellaneous Petitions are closed. No costs.

PBB