'Temples May File A Civil Suit Or Invoke Provisions Of HR & CE Act To Evict Tenant': Madras High Court Reiterates

Madras High Court has reiterated that it is open to the temples to avail the common law remedy by filing a regular suit or invoking Section 78 of the HR & CE Act for the eviction of a tenant.

The single bench of Justice N. Anand Venkatesh observed that the substantial question of law is no longer res integra in light of the judgment in A.N. Kumar v. Arulmighu Arunachaleswarar Devasthanam Thiruvannamalai & Ors. (2011). In the said case law, it was clarified that the bar under Section 108 of the HR & CE Act for instituting civil suits will not apply for eviction of the lessee without resorting to Section 78 of the Act.

In the said judgment, the court, after referring to Section 9 of CPC and legislative intent, noted that Sections 78 and 79 only provide a mechanism for eviction and Section 79 gives a specific second opportunity for the lessee to approach the civil court. According to the judge in A.N Kumar, since Section 79 does not provide any mechanism for the temple to approach the civil court while expressly laying down the mechanism for the lessee against whom an order has been passed, the bar would apply only to the encroacher for directly filing a suit against the temple.

"It is pertinent to note that such a clause has not been provided to an authority representing the temple. Therefore, there is no express bar under Sections 78 and 79 for an authority acting on behalf of the temple to approach the Civil Court. Such a bar can only be applied to the encroacher by having recourse to section 79(2) of the Act", the court interpreted Section 79 in such a way so the inference is that the bar of jurisdiction of a civil court under Section 79 applies exclusively to the lessee/ licensee/mortgagee and not the temple.

"It is clear from the above judgment (N.Anil Kumar) that it is for the temple to choose either the common law remedy by filing a regular suit or invoke the provisions of the HR & CE Act for evicting the tenant who is overstaying and hence could be construed as an encroacher in the property. The second question of law is answered accordingly", Justice N.Anand Venkatesh observed.

The court was hearing a case pertaining to 2400 sq. ft of land owned by Arulmigu Arunachaleswarar Thirukkoil, which was given in tenancy. In 2001, the temple decided to terminate the tenancy on account of alleged unauthorised additional construction in the property without permission and commercial use. Therefore, a notice was issued under Section 106 of the Transfer of Property Act for eviction. The defendant did not comply with the same and the temple directly filed a civil suit. The subordinate courts ruled in favour of the temple and the appellant/ defendant approached the High Court.

Justice N. Anand Venkatesh also noted that a notice issued through the counsel upon instructions from the Assistant Commissioner / Executive Officer of the temple is not vitiated since the counsel only acts as an agent of his client and the acts performed by the counsel has to be necessarily construed to be the acts of the concerned authority. The court also noted that the Act does not provide for any express bar on the counsel issuing the termination notice.

About the termination notice being struck by Section 34-B of the Act, the court noted that the eviction notice was issued in 2001 and Section 34-B of the Act came into force in 2003.

"...This ground is totally unsustainable since the said provision was not in force at the time when the termination notice was issued and the suit was filed in the year 2001. Till this provision came into force, the issuance of notice under section 106 of the Transfer of Property Act is perfectly valid...", the court underscored.

According to Section 34-B of the Act, the lease can be terminated upon violation of any of the conditions of the agreement after giving the lesser an opportunity of being heard. However, the current termination notice was issued under Section 106 of the Transfer of Property Act.

The court noted that a notice under Section 106 of the Transfer of Property Act does not contemplate assigning reasons for eviction/ terminating tenancy:

"Insofar as the requirements under Section 106 of the Transfer of Property Act is concerned, it must be a notice in writing which should specifically inform the tenant about the intention of the landlord to terminate the lease and the period of notice is fixed as 15 days for monthly tenancies which period should end with the end of the month of tenancy. The provision nowhere contemplates assigning any reasons for termination of tenancy. The law on this issue is too well settled"

Therefore, the court concluded that the termination notice was issued in 2001 by complying with the provisions of Section 106 of Transfer of Property Act, including the time of expiry of tenancy under the notice.

The court went on to note that the allegations against the lessee about making modifications in the temple land and letting a part of the land for a commercial purpose need not be proved for termination of tenancy since the notice is issued under Section 106 of the TP Act.

"The learned counsel for the appellant by pointing out to the findings of the Trial Court and the Appellate Court submitted that both the Courts did not take into consideration the fact that the plaintiff temple never proved the allegations made against the defendant on the ground of unauthorised construction, sub-lease and arrears of rent...In the considered view of this Court, the findings on these allegations are completely irrelevant since this Court has already held that the notice under Section 106 of the Transfer of Property Act has been duly issued and there is no requirement to assign any reasons for terminating the tenancy"

The lower appellate court had noted that there was a compromise later between the temple and the lessee about allowing the continuance of tenancy with enhanced rent. However, the court had noted that the Joint Commissioner cannot make such a settlement and it is only the Commissioner who is empowered to do so under Section 43 of the HR & CE Act. Agreeing with the finding of the lower appellate court, the High Court also ruled that the settlement was entered into by the Joint Commissioner without jurisdiction. 

Agreeing with the findings of the trial court, Justice N. Anand Venkatesh concluded that the tenancy is terminated and there are no grounds to interfere with the same. Therefore the second appeal preferred by the defendant tenant was dismissed.

Case Title: M. Selvaraj v. Arulmigu Arunachaleswarar Thirukkoil

Case No: S.A.No.768 of 2015

Citation: 2022 LiveLaw (Mad) 103

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