BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 26/09/2008 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.(MD) No.9895 of 2005 and W.P.M.P(MD)No.10614 of 2005 Arulmigu Sankaranarayanaswamy Thirukovil, Sankarankovil, Through its Deputy Commissioner/ Executive Officer, Sankarankovil. ... Petitioner Vs. 1.The Inspector General of Registration, Santhome High Road, Mylapore, Chennai 600 028. 2.The Sub Registrar, Sankarankovil, Tirunelveli District. 3.Kalappakulam Village Panchayat, Kalappakulam, Sankarankoil Taluk, Tirunelveli District. ... Respondents Prayer Writ Petition filed under Article 226 of the Constitution of India for issuance of a Writ of Mandamus, to forbear the respondents from registering any document in respect of the lands in Old Survey Nos.438/A1, 438/A2, 483, 556, 557 and 572 and the corresponding new survey Numbers in the schedule annexed herewith covering a total extent of 460.96 acres of land at Kalappakulam Village, Sankarankoil Taluk, Tirunelveli District by virtue of G.O.(MS)150 Commercial Taxes Department dated 22.09.2000. !For Petitioner ... Mr.K.Srinivasan ^For R-1 and R-2... Mr.K.A.Thirumalaiappan Addl. Government Pleader For R-3 ... Mr.F.X.Eugene ***** :ORDER
The petitioner in this writ petition is Arulmigu
Sankaranarayanaswamy Thirukovil, Sankarankovil, represented by its Executive
Officer. The prayer in this Writ Petition is for a direction to the first and
second respondents from registering any documents in respect of the lands in Old
Survey Nos.438/A1, 438/A, 483, 556, 557 and 572 which is also enclosed as
Annexure to the writ petition having a total extent of 460.96 acres of land at
Kalappakulam Village, Sankarankoil Taluk in terms of G.O.Ms.No.150 (Commercial
Taxes Department) dated 22.09.2000.
2. The writ petition was admitted on 15.11.2005. Pending the writ
petition an interim-injunction was granted on 15.11.2005 which is still in
force.
3. On notice from this Court, no reply is forthcoming from the first and
second respondents. On the contrary, the third respondent claiming to be the
Village President of Kalappakulam Village, Sankarankovil Taluk had filed a
counter affidavit. In the counter affidavit, he has admitted that the land
mentioned in the writ affidavit were originally alloted to nine Bhattars for the
purpose of doing Poojas in the temple. In the settlement, the Tahsildar, II
Kovilpatti, vide his proceedings dated 18.05.1968 has informed that the land
belonged to nine Bhattars. The same view was reiterated on 30.04.1972. But, by
that time, the number of Bhattars went up by 28.
4. Thereafter, many land transfers had taken place in the said land as
there was no bar from registering these lands. He also questioned the
competence of the Government issue in G.O.Ms.No.150 (Commercial Taxes
Department) dated 22.09.2000. He has also stated that being an Executive
Authority of the Village Panchayat, he has stopped issuing ‘No objection
Certificate’ for the purpose of registering these survey numbers by any sale
deeds. However, he contended that the writ petition deserves to be dismissed.
5. When questioned by this Court, the learned counsel for the third
respondent admitted that he is all the owner of some lands in the said survey
numbers. It was submitted by the learned counsel for the petitioner, that
earlier the temple filed a suit before the Civil Court for a similar prayer and
the same was dismissed for non-prosecution. Thereafter, they filed the present
writ petition. Even after filing the writ petition, they have again instituted
another suit. He further contended that under the provisions of the
Registration Act, there is no scope for refusing to register any document based
on Section 22-A or by the G.O.Ms.No.150 (Commercial Taxes Department) dated
22.09.2000 issued by the State Government.
6. With reference to the violation of Section 22-A, he referred to the
judgment in State of Rajasthan & Ors. Vs. Basant Nahata reported in 2005(4)CTC
606. In that case, the Hon’ble Supreme Court had held that Section 22-A of the
Registration Act as amended by the State of Rajasthan introducing a provision
for prohibition of registration of documents opposed to public policy was
unconstitutional.
7. He also referred to the subsequent Division Bench judgment of this
Court in Captain Dr.R.Bellie & Ors. Vs. The Sub-Registrar, Sulur and ors
reported in 2007(3) CTC 513. In that case, the Division Bench followed the
judgment of the State of Rajasthan case (cited supra) and held that Section 22-A
as well as G.O.Ms.No.150 (Commercial Taxes Department) dated 22.09.2000 are
invalid.
8. Further, reliance was also placed upon the Division Bench judgment of
this Court in S.Arunachalam & Ors. Vs. State of Tamil Nadu, Local Administration
and Water Supply Department and Others reported in 1997(1) CTC 129 wherein, it
was held that the Government by exercising it executive power under Article 162
cannot issue an order which is contrary to law and it cannot prohibit the
Registrar from registering the lands relating to the sale of house sites for 45
days from the date on which notice is served by the Commissioner of Panchayat.
During that period if the Registration of house sites is opposed the land cannot
be registered. There is no quarrel over the proposition laid in these
decisions. The short question that arises for consideration in this case is,
the temple by the ultimate owner of the property, it can certainly object to the
registration of the document by the Registrar.
9. In this context, this Court by an order dated 22.09.2008 in
S.Rangarajan Vs. The District Registrar & Ors., has held, that this Court under
Article 226 of the Constitution can direct the Registrar not to register the
properties of the temple by referring to two decisions of the Supreme Court and
to Section 34 of the Hindu Religious and Charitable Endowment Act.
10. In this context, it is necessary to refer to Section 34(1) of the
Hindu Religious & Charitable Endowments Act, 1959, which reads as follows:-
“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 purpose of, any religious institution
shall be null and void unless it is sanctioned by [the Commissioner] as being
necessary or beneficial to the institution.”
(Emphasis added)
11. Therefore, any sale of a temple land without the sanction by the
Commissioner is declared to be null and void. When the sale is held to be void,
the question of the third respondent coming forward with a plea that they had
purchased it with valuable consideration cannot be countenanced by this Court.
12. The Supreme Court in its decision in A.A.Gopalkrishnan Vs. Cochin
Devaswom Board and others reported in 2007 (7) SCC 482, cautioned about the
misuse of temple properties and the need to protect such properties. Speaking
for the Court K.G.Balakrishnan, C.J., in paragraph.10 of the said judgment, it
is observed as follows:
“10.The properties of deities, temples and Devaswom Boards, require to be
protected and safeguarded by their trustees / archakas / shebaits / employees.
Instances are many where persons entrusted with the duty of managing and
safeguarding the properties of temples, deities and Devaswom Boards have usurped
and misappropriated such properties by setting up false claims of ownership or
tenancy, or adverse possession. This is possible only with the passive or
active collusion of the authorities concerned. Such acts of “fences eating the
crops” should be dealt with sternly. The Government, members or trustees of
boards/trusts and devotees should be vigilant to prevent any such usurpation or
encroachment. It is also the duty of courts to protect and safeguard the
properties of religious and charitable institutions from wrongful claims or
misappropriation.”
(Emphasis added)
13. The Supreme Court in its decision reported in 2006(1) SCC 287, Joint
Commmr.,Hindu Religious and Charitable Endowments, Admn.Department Vs. Jayaraman
and others restored the land to the temple which was sold by orders of the Court
by filing application under Section 34 of the Indian Trusts Act. The sale and
the subsequent patta obtained were held to be invalid. While holding so, the
Supreme Court forewarned attempts by certain people to corner the temple
properties and therefore, the following passaged found in para:12, may be
reproduced below:-
“12. It is seen that there has been a clear attempt by the claimants to
overreach the0 deities and the authorities under the HR & CE Act, while managing
the properties dedicated for the purposes of the temple, properties granted and
managed by them in their capacities as poojaris, for the maintenance of the
temples. The attempt has to be deprecated.”
14. In the decision in 2006 (1) SCC 287, the Supreme
15. Though it is stated that the prayer of the writ petitioner temple
was based upon G.O.Ms.No.150 (Commercial Taxes Department) dated 22.09.2000, for
which there is no material available. Under these circumstances, in the light
of the earlier decision in the Srirangam Temple Case, the writ petition will
stand allowed. However, No order as to Costs. Consequently Miscellaneous
Petition is closed.
ba/sr
1.The Inspector General of Registration,
Santhom High Road,
Mylapore,
Chennai 600 028.
2.The Sub Registrar,
Sankarankovil,
Tirunelveli District.
3.Kalappakulam Village Panchayat,
Kalappakulam,
Sankarankoil Taluk,
Tirunelveli District.