(Prayer: Writ Petition filed under Article 227 of Constitution of India to issue a writ of Certiorarified Mandamus to call for the records of the 2 nd respondent in impugned notice dated 12.06.2024 and quash the same as arbitrary and illegal and consequently, restrain the respondents from interfering with the petitioner's possession and enjoyment of the property bearing Door No.9, New Sannathi Street, comprised in Paimash No.987, Old Survey No.115/2, New Survey No.1333/2, Poonamallee, Chennai – 600 056.)

1. The petitioner/Charities seeks issuance of a Writ of Certiorarified Mandamus, to quash the impugned notice dated 12-06-2024, as arbitrary and illegal and to consequently restrain the respondents from interfering with the petitioner's possession and enjoyment of the property belonging to the petitioner.

2. I have heard Mr.V.Raghavachari, learned Senior Counsel for Mr.M.Kempraj, learned counsel for the petitioner and Mr.N.R.R.Arun Natarajan, learned Special Government Pleader for the respondents.

3. Mr.V.Raghavachari, learned Senior Counsel appearing for the petitioner would submit that the property, which is subject matter of the proceedings, was purchased by the founder/trustee of the petitioner/Charities way back on 13-12-1928 and 15-12-1928 under two registered sale deeds. The said founder/trustee had created a trust, which is the petitioner trust in the year 1941, to perform certain specific Charities at Thirukachi Nambigal Temple, Poonamalli. The learned Senior Counsel would take take me to the contents of the trust deed dated 05-12-1941, registered as Document Number.2599 of 1941.

4. The learned Senior Counsel would submit that the Charities that have been set out in the trust deed are being performed year and year, without any default. However, contending that in so far as the property in question, the same was never dedicated to the temple and that the petitioner has been in absolute possession and enjoyment for several decades, the learned Senior Counsel would submit that taking advantage of revenue records, being mutated in the name of the temple, the authorities are now treating the owner of the property, as a trespasser/encroacher and are now slapping Section 78 proceedings as against the lawful and true owner of the property. The learned Senior Counsel would therefore state that the impugned notice dated 12-06-2024 is clearly unsustainable and without any authority under law.

5. The learned Senior Counsel would further submit that taking advantage of the mutation of the revenue records in the name of the respondent temple, the land acquisition compensation has been withdrawn by the Department, though the land acquisition compensation should have come to the hands of the petitioner/Charities alone. He would therefore pray for the writ petition being allowed and the proceedings of the respondents to be quashed.

6. Per contra, Mr.N.R.R.Arun Natarajan, learned Special Government Pleader appearing for the respondents would invite my attention to the revenue records, which clearly reflect the name of the temple and not the petitioner Charities. He would also invite my attention to the order passed by this Court in W.P.No.19393 of 2023, where the writ petitioner approached this Court and challenged the enquiry notice issued by the Land Acquisition officials, where this Court finding that the DRO, Land Acquisition had already passed final orders and compensation was already paid to the temple, dismissed the writ petition and would contend that it is not open to the petitioner to therefore challenge the show cause notice. The learned Special Government Pleader would further state that the petitioner can always participate in the proceedings and establish that the petitioner is the owner of the property and the challenge being only to a show cause notice, the same does not warrant interference in writ proceedings.

7. I have carefully considered the submissions advanced by the learned Senior Counsel for the petitioner and the learned Special Government Pleader for the respondents.

8. It is an admitted fact that the revenue records are mutated in the name of the respondent temple and based on the same, the land acquisition compensation has also been claimed by the respondent temple. No doubt, the petitioner challenged the enquiry notice under the land acquisition proceedings and the Court finding that the compensation has already been paid to the temple, dismissed the petition. It is however brought to my notice that a writ appeal has been preferred against the said dismissal order and said writ appeal is pending. In view of the above, the parties can always agitate their respective contentions with regard to entitlement of compensation, in the pending writ appeal.

9. Presently, I am confining the scope of enquiry to the show cause notice dated 12-06-2024. The 2 nd respondent has invoked Section 78 of the HR & CE Act, terming the petitioner as an encroacher and seeks to dispossess the writ petitioner. The subject property was admittedly purchased way back in the year 1928 by Nagalapuram Thangavelu Chettiar from A.K.Govindarajulu Chetty and A.K.Ranganathan Chetty, who were represented by the Official Assignee of Madras. Having purchased the subject property under two registered sale deed, the purchaser formed a trust in the year 1941 and under the trust deeds, the purchaser/founder trustee has directed performance of certain Charities at Thirukachi Nambigal Temple, Poonamallee. The trust deed is available for my perusal. The trust deed is a registered document executed on 05-12-1941. Income accruing, after meeting expenses of repairs, payment of taxes from the said house property was set apart for performing the Charities set out in Schedule A of the said trust deed.

10. In clause 9 of the said trust deed is significant and extracted hereunder usefully:

                     “9.This declaration of trustees in respect of the said house ground and premises setout in schedule “B” hereunder written and in respect of the said sum of Rs.4000/- (Rupees Four Thousand) only for the purpose of performing the charities at Thirukachi Nambi Temple at Poonamallee shall not be deemed to entitle either the deity at that place of the Dharmakartha of the said temple or any one else on behalf of the deity of the temple to demand of the trustee to hand over to them either the corpus of the trust properties or their income of any portion thereof or to account to them for the utilization of the said income the above temple is not under H.R.E Board and in witness whereof the party hereto have herein to set his land lord seal theis 24 th day of November one thousand and nine hundred and forty one.”

11. It is not the case of the respondents that there has been a default committed by the petitioner in performing the Charities that have been set out in Schedule A of the trust deed. The source of right to both the parties is only under the trust deed. But for this trust deed, the respondents do not claim any interest in the subject property. Mere fact that the revenue records are mutated in the name of the temple cannot confer title of the property on the temple. On the contrary, the petitioner has been able to clearly establish that the property is a private property, having been purchased in the year 1928 and subsequently, the purchaser has created a trust, wherein, for performance of certain specific Charities, the income accruing form the property alone has been directed to be utilized. The founder trustee has made it abundantly clearly that the amount of Rs.4,000/- set apart for performing Charities would not entitle the deity of the temple or anybody else on behalf of the deity of the temple to demand the trustees to hand over the corpus of the trust properties or income of any portion thereof or to call upon the trustees to give accounts as the temple is not under the HR & CE Board.

12. In the light of the clear declaration of the founder trustee, the property has not been dedicated to the temple and continues to vest only with the private parties. In such circumstances, the very notice, invoking Section 78 treating the owner of the property as a trespasser, is clearly unsustainable. The petitioner has been collecting the rents accruing from the property and carrying out the Charities that have been set out in Schedule A of the trust deed. It is only the petitioner who has been all along paying the property taxes, water charges and taxes, as well as electricity charges. The petitioner also appears to have carried out extensive alterations, after obtaining planning permission from the local body, has even demolished and reconstructed the building.

13. In the light of the above, there is absolutely no occasion for the respondents to treat the petitioner as a trespasser and invoke the provisions of Section 78 of the HR & CE Act. In view of the above, the impugned shown cause notice is wholly unsustainable in the eye of law. Insofar as the land acquisition compensation, as has been brought to my notice, there is a pending writ appeal, where this issue is being agitated by both the petitioner as well as the respondents. In the light of the above, I am not inclined to give any directions regarding entitlement of the petitioner to the land acquisition compensation which can be subject to final orders passed in the pending writ appeal.

14. For all the above foregoing discussion, the Writ Petition is allowed and the show cause notice dated 12.06.2024 issued by the 2 nd respondent is quashed. No costs. Connected Writ Miscellaneous Petition is closed.