VERDICTUM.

IN
2025:MHC:926

W.P.No.29630 of 2019

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Reserved on : Delivered on:

01.4.2025 08.4.2025

Coram :

The Honourable Mr.Justice N.ANAND VENKATESH

Writ Petition No.29630 of 2019

& WMP.No.29528 of 2019

Canara Bank, Asset Recovery

Management Branch, II Floor,
Circle Office Building, 563/1,
Anna Salai, Teynampet,
Chennai-18, Rep. by its Assistant
General Manager Mr.P.Saravanan …Petitioner

Vs
1.The Commissioner, Hindu
Religious & Charitable
Endowment, Nungambakkam,
Chennai-34.

2.The Sub-Registrar,
Kodambakkam.

3.M/s.Jayabharatham Lifespaces
International Pvt. Ltd., rep.by
its Managing Director
Mr.E.Srinivasan

4.Mr.E.Srinivasan
5.Mr.D.Karunagaran …Respondents

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W.P.No.29630 of 2019

PETITION under Article 226 of The Constitution of India praying

for the issuance of a Writ of Mandamus directing the first respondent

to issue NOC to the petitioner bank to register the sale certificate

dated 18.5.2019 issued in favour of the fifth respondent pertaining to

the property at Old Door No.14, New Door No.10, Tank Street, United

India Colony, Kodambakkam, Chennai-24 forming part of Puliyur

Village, Egmore – Nungambakkam Taluk, Chennai District comprised in

Survey No.19, T.S.No.73/8, Block No.44 and as per the present

revenue records T.S.No.73/10 measuring an extent of 4,560 sq.ft.

For Petitioner : Mr.M.L.Ganesh

For R1 : Mr.S.Ravichandran, AGP
For R2 : Mr.B.Vijay, AGP
For R4 : Mr.P.Jesus Moris Ravi
R3 : Not ready in notice
For R5 : No appearance

ORDER

This writ petition has been filed seeking for the issuance of a

Writ of Mandamus directing the first respondent to issue a no objection

certificate to the petitioner so as to enable them to register the sale

certificate dated 18.5.2019 issued in favour of the fifth respondent

pertaining to the property at Old Door No.14, New Door No.10, Tank

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W.P.No.29630 of 2019

Street, United India Colony, Kodambakkam, Chennai-24 forming part

of Puliyur Village, Egmore – Nungambakkam Taluk, Chennai District

comprised in Survey No.19, T.S.No.73/8, Block No.44 and as per the

present revenue records T.S.No.73/10 measuring an extent of 4,560

sq.ft.

2. Heard the respective learned counsel on either side.

3. When the writ petition came up for hearing on 24.3.2025,

this Court, upon hearing the learned counsel on either side, passed the

following order :

“Heard the learned counsel for the petitioner

and the learned Additional Government Pleader
appearing on behalf of the first respondent-
Temple.

2. The case of the petitioner-Bank is that the

subject property originally belonged to the Temple
and the superstructure was owned by one
Govindasamy Naicker. He subsequently conveyed
the same in favour of Elumalai Chettiyar, who is
the father of the fourth respondent, through a
registered sale deed dated 26.08.1967, registered

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W.P.No.29630 of 2019

as Document No.2336/1967. After the purchase of

the said property, Elumalai Chettiyar settled the
property in favour of the fourth respondent by a
registered settlement deed. Thereafter, an
Ejectment Suit was instituted in Suit No.61/1974
by the then Hereditary Trustee of the Temple
against the said Elumalai Chettiyar. The said
Elumalai Chettiyar filed an application in
CMP.No.3116/1974 under Section 9 of the Tamil
Nadu City Tenants Protection Act. This application
came to be allowed by the concerned Court on
20.08.1976, and a direction was issued to the
Hereditary Trustee of the Temple to execute a sale
deed in favour of the fourth respondent after
receiving the sale consideration. Accordingly, a sale
deed dated 15.12.1978 was executed in favour of
the fourth respondent and this document was
registered as Document No.4341/1978. Thus the
fourth respondent became the absolute owner of
the subject property. The legal heirs of fourth
respondent, namely his wife and children also
released/relinquished their respective rights in his
favour under the Deed of Release dated
09.10.2013 registered as Document No.3796/
2013.

3. The third respondent had availed a credit

facility from the petitioner Bank. The fourth

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W.P.No.29630 of 2019

respondent stood as a guarantor and deposited the

original title deeds with an intention to create an
encumbrance over the property. The fourth
respondent executed a MOD dated 30.12.2013 and
the same was registered as Document No.
4770/2013. Subsequently, there was a default in
repayment of loan amount and the account was
categorized as 'NPA', and proceedings were
initiated under SARFAESI Act by the petitioner-
Bank. Ultimately, the subject property came to be
sold in an e-auction conducted on 13.05.2019. The
auction purchaser was the fifth respondent. He
remitted the entire sale price and a sale certificate
dated 18.05.2019 was issued in favour of the fifth
respondent. When the sale certificate was
presented for registration before the second
respondent, the same was refused to be registered
on the ground that the petitioner must obtain an
NOC from the first respondent. It is under these
circumstances, the present writ petition came to be
filed before this Court.

4. The learned counsel for the petitioner

submitted that the fourth respondent became the
absolute owner of the subject property pursuant to
the order passed under Section 9 of the Tamil
Nadu City Tenants Protection Act, and a sale deed
came to be executed by the Temple on 15.12.1978

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W.P.No.29630 of 2019

itself. In view of the same, there is no question of

insisting that the petitioner must get an NOC from
the first respondent. It was further submitted that
in the meantime, the Temple had challenged the
order passed in favour of the fourth respondent by
filing an appeal in A.S.No.14/1977 to A.S.No.19/
1977, which was also dismissed by the Small
Causes Court, Chennai. Subsequently, the release
deed that was executed by the legal heirs of the
fourth respondent in favour of the fourth
respondent was entertained and it was registered
as Document No.3796/2013. Not stopping with
that, the fourth respondent stood as a guarantor
for the third respondent and executed a MOD,
which was registered as Document No.4770/2013
dated 30.12.2013. In view of the same, the second
respondent cannot insist the petitioner to get an
NOC from the first respondent and that the sale
certificate that was issued in favour of the fifth
respondent by the petitioner Bank must be
directed to be registered without insisting for an
NOC.

5. Per contra, the learned Additional

Government Pleader appearing on behalf of the
first respondent placing reliance upon the order
passed in W.P.No.7220 of 2022 dated 06.06.2022
[M/s.Super Good Films Pvt. Ltd., Vs. The

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W.P.No.29630 of 2019

Commissioner, Hindu Religious and Charitable

Endowments Department], which was
subsequently confirmed in an appeal in W.A.No.
2001/2022 dated 20.03.2024, submitted that even
though the sale was done under Section 9 of the
Tamil Nadu City Tenants Protection Act, the same
will not bind the Temple since the sale itself is
illegal by virtue of the fact that no permission was
sought for under Section 34 of the HR&CE Act. The
learned Additional Government Pleader submitted
that the case on hand is squarely covered by the
judgment that was cited supra.

6. The learned counsel for the petitioner

seeks for some time to go through the judgment
and make his submissions.

Post this case under the same caption 'part

heard' on 01.04.2025.”

4. The learned counsel for the petitioner submitted as follows :

(i) The sale deed was executed in favour of the fourth respondent,

by A/M Sri Vengeeswarar Sri Alagar Perumal and Sri Nagathamman

Temple, Vadapalani, Chennai (for short, the temple) through the

Hereditary Trustee pursuant to the orders passed by the competent

Civil Court under Section 9 of the Madras City Tenants Protection Act

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(for short, the Tenancy Act). The entire sale consideration was paid

and only thereafter, the sale deed came to be executed in favour of

the fourth respondent and it was registered as doc.No.4341 of 1978 on

the file of the second respondent. This sale deed was never challenged

at any point of time and the fourth respondent became the absolute

owner of the subject property and it was further confirmed after the

execution of the release deed dated 09.10.2013 in his favour.

(ii) That apart, when the fourth respondent stood as a guarantor

for the credit facilities availed by one M/s.JFI Interfurn Corporation

Private Limited and the third respondent namely M/s.Jayabharatham

Lifespaces International Private Limited, a memorandum of deposit of

title deeds dated 30.12.2013 was executed by the fourth respondent

and it was entertained and registered by the second respondent. Even

before that, the release deed dated 09.10.2013 was already

entertained and registered by the second respondent. In such an

event, the second respondent cannot, for the first time, insist upon for

a no objection certificate from the first respondent at this length of

time.

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(iii) When the sale deed was executed pursuant to the orders

passed by the competent Civil Court under Section 9 of the Tenancy

Act, there was no question of getting the consent of the Commissioner

of the Tamil Nadu Hindu Religious and Charitable Endowment (HR &

CE) Department under Section 34 of the Tamil Nadu Hindu Religious

and Charitable Endowment Act, 1959 (for brevity, the HR & CE Act). If

any such permission is insisted upon, it will have a deleterious effect

since the competent Civil Court will have to get the concurrence of the

Commissioner, HR & CE Department before passing the order in an

application filed under Section 9 of the Tenancy Act. This will touch

upon the independence of the Judiciary, which cannot be made

subordinate to the Executive.

(iv) The order passed in W.P.No.7220 of 2022 dated

06.6.2022, which was confirmed by the Division Bench in

W.A.No.2001 of 2022 vide judgment dated 20.3.2024, virtually

makes the Civil Court subordinate to the Commissioner, HR & CE

Department. At this length of time, even without the sale deed

executed in favour of the fourth respondent being put to challenge in a

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W.P.No.29630 of 2019

manner known to law, the same cannot be held to be non-est in a

collateral proceeding.

(v) Reliance is placed upon the common order dated 26.4.2013

passed in C.R.P.(NPD) Nos.1559 and 1560 of 2006 for the

contention that once (a) the condition imposed by the Civil Court under

Section 9(1)(b) of the Tenancy Act is complied with, (b) the amount is

deposited within the time fixed, (c) the Civil Court passes an order

directing conveyance and (d) a sale deed is also executed, then the

proceedings itself will come to an end and such a sale deed cannot be

questioned by the temple at a future point of time.

5. Per contra, the learned Additional Government Pleader,

relying upon the counter affidavit filed by the HR & CE Department,

submitted as follows:

(i) The temple in question is a listed public religious temple,

which was originally administered by the Hereditary Trustee and on

12.9.2019, the Executive Officer was appointed to administer the

temple. The father of the fourth respondent occupied the subject

property without any sanction from the temple or the HR & CE

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Department and due to non-payment of the rents, the ejectment suit

came to be filed by the then Hereditary Trustee against the father of

the fourth respondent. The fourth respondent claimed to be the owner

of the building and sought for the sale of the land under Section 9 of

the Tenancy Act.

(ii) The application filed in C.M.P.No.3116 of 1974 before the

Small Causes Court, Chennai was heard and allowed by order dated

20.8.1976 and the sale deed was executed by the Hereditary Trustee

representing the temple in favour of the fourth respondent after

receiving the sale consideration of Rs.20,176/-. The suit proceedings

itself was a collusive one and the Hereditary Trustee, without obtaining

permission from the HR & CE Department, proceeded to execute the

sale deed in favour of the fourth respondent. The sale deed itself is

illegal and non-est in the eye of law since it was executed without the

approval/sanction of the Commissioner, HR & CE Department as

mandated under Section 34 of the HR & CE Act.

(iii) In order to substantiate his submissions, he relied upon the

following :

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(a) judgment of the Hon’ble Apex Court

in the case of Joint Commissioner, HR & CE
Admn. Department Vs. Jayaraman
[reported in 2006 (1) SCC 257];

(b) order passed by the learned Single

Judge of this Court in the case of M/s.Super
Good Films Pvt. Ltd. Rep. by its Managing
Director Mr.R.B.Choudhary & another Vs.
Commissioner, HR & CE Department &
Others [W.P.No.7220 of 2022 dated
06.6.2022]; and

(c) judgment of a Division Bench of this

Court in the case of M/s.Super Good Films
Pvt. Ltd. Rep. by its Managing Director
Mr.R.B.Choudhary & another Vs.
Commissioner, HR & CE Department &
Others [W.A.No.2001 of 2022 dated
20.3.2024].

6. This Court has carefully considered the submissions of the

learned counsel on either side and perused the materials available on

record.

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W.P.No.29630 of 2019

7. The primary issue that arises for consideration in this writ

petition is as to whether the order under Section 9 of the Tenancy Act

passed by the Small Causes Court, Chennai in C.M.P.No.3116 of 1974

dated 20.8.1976, pursuant to which, the sale deed was executed in

favour of the fourth respondent by the then Hereditary Trustee

representing the temple, should be treated as null and void in view of

a lack of prior approval/permission from the Commissioner, HR & CE

Department under Section 34 of the HR & CE Act.

8. The other important issue to be considered is as to whether

the judgment of the Division Bench of this Court in the case of

M/s.Super Good Films Pvt. Ltd. Rep. by its Managing Director

Mr.R.B.Choudhary is a binding precedent and as to whether this writ

petition must be dealt with in line with this judgment.

9. To answer the aforesaid questions, it is first necessary to set

out the relevant provisions of the Tenancy Act.

10. Section 9(1)(a)(i) of the Tenancy Act reads as follows:

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“Any tenant who is entitled to compensation

under Section 3 and against whom a suit in
ejectment has been instituted or proceeding under
Section 41 of the Presidency Small Cause Courts
Act, 1882, taken by the landlord, may, within one
month of the date of the publication of Madras City
Tenants' Protection (Amendment) Act, 1979 in the
Tamil Nadu Government Gazette or of the date
with effect from which this Act is extended to the
municipal town, township or village in which the
land is situate or within one month after the service
on him of summons, apply to the court for an order
that the landlord shall be directed to sell for a price
to be fixed by the court, the whole or part of, the
extent of land specified in the application.”

11. The Hon’ble Apex Court, in the case of S.R.Radhakrishnan

Vs. Neelamegam [reported in 2003 (10) SCC 705], culled out the

following four conditions, which must be cumulatively satisfied before

the relief is granted to a tenant under Section 9 of the Tenancy Act :

• He should be a tenant in possession of the land.

• He should have erected a superstructure on the

land in respect of which he would be entitled to
claim compensation under Section 3.

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• A suit or proceeding for eviction should have

been taken by the landlord against him.

• He should have applied to the court for direction

in that regard within one month from the date of
service of summons in such suit.

12. If the aforesaid conditions are satisfied, then Clauses (1)(b)

& (3)(a) & (b) of Section 9 of the Tenancy Act come into operation.

They read as follows:

“9.
(1)……
(b) On such application, the court shall first
decide the minimum extent of the land which may
be necessary for the convenient enjoyment by the
tenant. The court, shall then fix the price of the
minimum extent of the land decided as aforesaid,
or of the extent of the land specified in the
application under Clause (a) whichever is less. The
price aforesaid shall be the average market value
of the three years immediately preceding the date
of the order. The court shall order that within a
period to be determined by the court not being less
than three months and not more than three years
from the date of the order, the tenant shall pay

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into court or otherwise as directed the price so

fixed in one or more instalments with or without
interest.
…………
(3)(a) On payment of the price fixed under
Clause (b) of Sub-Section (1) the court shall pass
an order directing the conveyance by the landlord
to the tenant of the extent of land for which the
said price was fixed. The court shall by the same
order direct the tenant to put the landlord into
possession of the remaining extent of the land, if
any. The stamp duty and registration fee in respect
of such conveyance shall be borne by the tenant.
(b) On the order referred to in Clause (a)
being made, the suit or proceeding shall stand
dismissed, and any decree or order in ejectment
that may have been passed therein but which has
not been executed shall be vacated.”

13. The question as to whether the provisions of the Tenancy Act

would apply to the lands owned by the temples and the religious

charitable institutions has been persistently visiting the portals of this

Court for over a century. Soon after the enactment of the Tenancy Act,

the question came up before the Division Bench of this Court

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consisting of Spencer and Venkatasubba Rao,JJ in the case of

Parthasarathi Aiyangar Vs. Doraisawmi Naicker [reported in

1923 (44) MLJ 91], which reads as follows :

“Whether a tenant in occupation of trust

lands belonging to a temple or mosque can enforce
a compulsory sale under section 9 of the Madras
City Tenants Protection Act and require the temple
or mosque to deliver the land to him on a valuation
to be made by the Court.”

The Division Bench answered the question by holding that the power of

sale under Section 9 of the Tenancy Act is subject to the requirement

of necessity i.e. it must be shown that such a sale was necessary for

the benefit of the temple/mosque.

14. This interpretation was, however, overruled by a Full Bench

decision of this Court in the case of Doraivelu Mudaliar Vs. Natesa

Gramani [reported in AIR 1925 Mad 7] wherein the question that

arose for consideration before the Full Bench was as follows:

“Does the Madras Act III of 1922 apply to

landlords who hold their land as trustees of a
religious institution?

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Coutts-Trotter, CJ answered the question in the affirmative and held

as hereunder:

“A trustee landlord can convey the interest

of the trust in certain given circumstances. Two of
those circumstances have been already referred to,
—necessity and benefit for the trust, —and I think
there is added a further one by this new Act III of
1922, namely, when a tenant has been in
possession of the land and has put up a
superstructure on the land and to eject whom
would be in certain circumstances plainly
inequitable without compensation, and in other
circumstances, such as the one contemplated by
the section would be inequitable without giving him
an opportunity of acquiring the land for himself on
payment. That consideration appears to dispose of
this case.

We cannot accede to the, contrary opinion

of Spencer and Venkatasubba Rao,JJ in
Parthasarathi Aiyangar Vs. Doraisawmi Naicher
[(1923) I.L.R., 46 Mad., 823.] and must answer the
reference, not in the form of a direct answer to the
question put but by saying that in our opinion
section 9 of the Madras Act III of 1922 applies to
landlords who hold their land as trustees of a
religious institution.”

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15. However, in the case of Vasudeva Pillai Trust, Madras

Vs. Neelavathy Ammal [reported in 1962 (1) MLJ 116],

Jagadisan,J held that a tenant holding under a trustee, a lease hold

property and claiming the benefit of the Tenancy Act can only obtain

the benefit where such purchase is a matter of necessity for the Trust

or will result in a benefit to the Trust. The Court concluded that the

tenant cannot have an absolute right in the matter.

16. This decision was, however, overruled by a Division Bench of

this Court in the case of Sundareswarar Devasathanam Vs.

S.V.Marimuthu [reported in AIR 1963 Mad. 369] wherein

Ramachandra Iyer, CJ observed that the provisions of Section 9 of

the Tenancy Act were applicable to a religious institution irrespective of

the question of necessity. It was further observed as follows :

“As we have pointed out a sale under S. 9

can never be regarded as one for the benefit of the
institution; even if there is necessity, a provision
which compels a sale at a price which might turn
out to be less than the market price cannot be
regarded as justified. Therefore the option to
purchase conferred on the tenant must be

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irrespective of any benefit to the institution. The

Legislature evidently thought that there was a
superior equity in favour of the tenant and he
should be enabled to purchase the property where
he comes within S. 9 of the Act. To construe the
section as authorising a sale only in cases of
necessity would be practically to make it a dead
letter so far as vacant lands belonging to religious
institutions are concerned. We are therefore with
great respect unable to share the view expressed
by Jagadisan, J., in Vasudeva Pillai Trust v.
Neelavathi Ammal(1), that S. 9 could be invoked
by the tenant only if there is to be either necessity
or benefit to the institution by the sale, in our
opinion none of those circumstances need exist; it
would be enough if the tenant of the land had put
up a superstructure prior to the date of the Act in
the cases where the land is not part of the temple
or mosque etc.”

17. At this juncture, a question may arise as to whether a sale

under Section 9 of the Tenancy Act is subject to Section 34 of the HR

& CE Act, which prohibits the sale of lands of religious and charitable

endowments without the prior sanction of the Commissioner.

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18. A similar provision existed in Section 36-A of Waqf Act, 1954

(presently Section 51 of the Waqf Act, 1995). In the case of Madhi

Hussain Khan Ashurkhana Vs. Manivanna Naicker [reported in

1973 (1) MLJ 74], the question that arose for consideration was as

to whether Section 36-A of the Wakf Act operated as a bar to

invalidate a sale made under Section 9 of the Tenancy Act. Considering

the two provisions, it was held that a bar under Section 36A of the

Wakf Act only operated in respect of a voluntary sale and not in

respect of an involuntary sale under Section 9 of the Tenancy Act. It

was further held as follows:

“It is next contended by the learned counsel

for the appellant that S. 36-A of the Wakf Act
prohibits the sale of wakf property by a mutavalli,
without the previous sanction of the Board and,
that, therefore, S. 9 of the City tenants Protection
Act could not be invoked. In my opinion, S 36-A is
not a bar for the applicability of S. 9 of the City
Tenants Protection Act. S. 36-A prohibits voluntary
transfer without the previous sanction of the Board
and not involuntary transfers or transfers by orders
of court.”

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In the context of Section 34 of the HR & CE Act, this Court had also

observed thus:

“It may also be noticed that there is a

similar prohibition of sale or mortgage by a trustee
of Hindu Religious and Charitable Endowments
under S. 34 of the Madras Hindu Religious and
Charitable Endowments Act. In spite of this
prohibition, it has been held in a number of cases,
including in Sundareswarar Devasthanam v.
Marimuthu(2) that S. 9 of the City Tenants
Protection Act is applicable to lands held by Hindu
Religious and Charitable endowments.”

19. Thus, a reading of the decisions in the case of

Sundareswarar Devasathanam and Madhi Hussain Khan

Ashurkhana would leave no manner of doubt that Section 9 of the

Tenancy Act was applicable to the lands held by the temples under the

HR & CE Act. The prohibition contained in Section 34 of the HR & CE

Act is directed against a voluntary sale and not against an involuntary

sale, which is effected by the Court under a statute.

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20. At this stage, it is necessary to take note of an important

amendment viz., the Madras City Tenants Protection (Amendment)

Act, 1994 (for short, the Tamil Nadu Act 2 of 1996), which received

the Presidential assent on 05.1.1996 and came into force from

11.1.1996. It contains 3 Sections. Section 1 inserts Clause (f) to the

Proviso to Section 1(3), which declares that the provisions of the Act

will not apply to the lands owned by certain bodies. After the Tamil

Nadu Act 2 of 1996 inserting Clause (f) to the Proviso, Section 1(3)

reads as follows:

“Section 1(1)…..

(2)……….

(3) This Act shall apply, -

(a) in the areas in which this Act is in force

on the date of the publication of the [Chennai]
[Substituted for the word 'Madras' by the City of
Madras (Alteration of Name) Act, 1996 (Tamil
Nadu Act 28 of 1996).] City Tenants' Protection
(Amendment) Act, 1979 in the Tamil Nadu
Government Gazette, only to tenancies of land
created before that date; and

(b) in any other area, only to tenancies of

land created before the date with effect from which

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this Act is extended to such area by notification

under clause (b) of sub-section (2):]

Provided that nothing contained in this

Act shall apply to tenancies of land owned

(a)……
(b)…..
(c)…..
(d)…..
(e)…..
(f) by any religious institution or religious
charity belonging to Hindu, Muslim, Christian or
other religion
Explanation. - For the purpose of this
clause,-

(A)"religious institution" means any-

(i) temple;
(ii) math;
(iii) mosque;
(iv) church; or
(v) other place by whatever name known,
which is dedicated to, or for the benefit of, or used
as of right by, any community or section thereof as
a place of public religious worship;
(B) "religious charity" means a public charity
associated with a religious festival or observance of
religious character (including a wakf associated

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with a religious festival or observance of religious

character), whether it be connected with any
religious institution or not;”

21. After inserting Clause (f) in Section 1(3) of the Tenancy Act,

Section 3 of the Tamil Nadu Act 2 of 1996 proceeded to declare as

under:

“Every proceeding instituted by a tenant in

respect of any land owned by any religious
institution or religious charity belonging to Hindu,
Muslim, Christian or other religion and pending
before any Court or other authority or officer on
the date of the publication of this Act in the Tamil
Nadu Government Gazette, shall, in so far as the
proceeding relates to any matter falling within the
scope of the principal Act, as amended by this Act,
in respect of such land, abate, and all rights and
privileges which may have accrued to the tenant in
respect of any such land and subsisting before the
said date shall in so far as such rights and
privileges relate to any matter falling with the
scope of the principal Act, as amended by this Act,
cease and shall not be enforceable;
Provided that nothing contained in this
section shall be deemed to invalidate any suit or

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proceeding in which a decree or order passed has

been executed or satisfied in full before the said
date.”

22. The Constitutional validity of Section 3 of the Tamil Nadu Act

2 of 1996 was upheld by a Full Bench of this Court in the case of

Sreedharan Nair Vs. State of T.N. [reported in 2000 (3) MLJ

616], which was also affirmed by the Hon’ble Supreme Court in the

case of Mylapore Club Vs. State of T.N. [reported in 2005 (12)

SCC 752]. The Hon’ble Supreme Court, while upholding Section 3 of

the Tamil Nadu Act 2 of 1996, had concluded as under:

“Reading Section 3 of the amending Act 2 of

1996, it could not be said that it is a legislative
intervention with a judicial decision. The proviso
has saved concluded transactions based on judicial
adjudications. All that Section 3 does is to make it
explicit that the amendment is intended to apply to
pending proceedings. In the context of Section 6 of
the General Clauses Act, unless it is shown that
any right has accrued to the claimant under
Section 6 of the General Clauses Act, such a
provision making it clear that the Act could not be
applied any more to pending proceedings is not in
any way invalid or incompetent. Unless the

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proceedings have concluded and the rights of the

landlord have passed to the tenant, no right
accrues to the tenant. He is only in the process of
acquiring a right, the process having been set in
motion at his instance. When pending proceedings
are affected by an amendment, it is open to the
legislature to provide that the said process cannot
continue. That alone has been done by Section 3 of
the amending Act of 1996. As far as concluded
judicial proceedings are concerned and cases
where orders for possession have been
executed or decrees satisfied in full before
the date of the amendment, they have been
saved by the proviso thereby ensuring that
there was no interference by the legislature
with judicial proceedings which had reached a
conclusion, even though that judicial
proceeding related to a religious or charitable
institution exempted by the amendment from
the purview of the Parent Act. We are,
therefore, not in a position to find any merit
in challenge to Section 3 of the amending
Act.”

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23. From a reading of Section 3 of the Tamil Nadu Act 2 of 1996

and the decision of the Hon’ble Supreme Court in the case of

Mylapore Club, the following propositions emerge:

• All pending proceedings under Section 9 of the

Tenancy Act concerning tenancies in the lands

owned by religious institutions shall abate on

and from 11.1.1996 i.e., the date, on which,

the Tamil Nadu Act 2 of 1996 came into force.

• Any proceeding pending as on 11.1.1996,

where an order under Section 9 of the Tenancy

Act has not been executed by executing a sale

deed and/or handing over possession, would

also stand abated and any rights accrued to

the tenant until that point would cease to be

enforceable.

• Any decree passed under Section 9 of the

Tenancy Act on or after the said date i.e.,

11.1.1996 concerning a tenancy in lands

owned by the religious institutions would

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resultantly be a nullity in law (See Bagirathi

Ammal Vs. Palani Roman Catholic Mission

[reported in 2009 (10) SCC 464]).

• All concluded proceedings ie., where sale

deeds have been executed in favour of the

tenants, etc., these decrees and the deeds

executed thereunder are saved by the Proviso

to Section 3 of the Tamil Nadu Act 2 of 1996.

This implies that such orders/decrees and sale

deeds executed in favour of tenants prior to

11.1.1996 i.e., prior to the coming into force

of the Tamil Nadu Act 2 of 1996 remain legal

and valid.

24. In the instant case, Mr.Elumalai Chettiyar filed an application

in CMP.No.3116 of 1974 under Section 9 of the Tenancy Act, which

came to be allowed on 20.8.1976. A direction was issued to the

Hereditary Trustee of the Temple to execute a sale deed in favour of

the fourth respondent after receiving the sale consideration.

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Accordingly, a sale deed dated 15.12.1978 was executed in favour of

the fourth respondent and this document was registered as document

No.4341 of 1978. Thus, the proceedings under the Tenancy Act stood

concluded in 1978 itself with the result that these proceedings would

be ring-fenced by the protection granted by the Proviso to Section 3 of

the Tamil Nadu Act of 1996. As a consequence, it must necessarily

follow that the proceedings under the Tenancy Act and the sale in

favour of the 4th respondent are valid and saved by the Proviso to

Section 3 of the Tamil Nadu Act 2 of 1996.

25. The aforesaid conclusions should normally have sufficed to

dispose this case but for the fact that Mr.S.Ravichandran, learned

Additional Government Pleader appearing for the first respondent had

brought to the notice of this Court a decision of a Division Bench of this

Court in the case of S.M.Subramaniam and K.Rajasekar,JJ in the

case of M/s.Super Good Films Pvt. Ltd. Rep. by its Managing

Director Mr.R.B.Choudhary. According to the learned Additional

Government Pleader, this decision would show that the Tenancy Act

was inapplicable to the lands covered under Section 34 of the HR & CE

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Act and any order under Section 9 of the Tenancy Act passed in

respect of such lands is a nullity. This Court has closely examined this

decision and finds, with regret, that the Division Bench has not taken

note of any of the decisions of this Court and the Hon’ble Supreme

Court and more importantly, the provisions of the Tamil Nadu Act 2 of

1996.

26. In the decision in the case of M/s.Super Good Films Pvt.

Ltd. Rep. by its Managing Director Mr.R.B.Choudhary, the

Division Bench of this Court begins by observing that the HR & CE Act

is a special law and the Tenancy Act is a general law and that as a

consequence, the provisions of the former would prevail over the

latter. The attempt to invoke a rule of interpretation, which goes by

the name of generalia specialibus non derogant, is unfortunately

misconceived for the reason that such a rule can apply only when the

provisions of a special law clash with those of a general law. In such a

situation, the provisions of the general law must yield to those of the

special law. The provisions of the HR & CE Act and the Tenancy Act

obviously do not clash, which is why the provisions of the the Tenancy

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Act were made applicable to the lands covered under the HR & CE Act

as could be seen from the decisions of this Court in the cases of

Sundareswarar Devasathanam and Madhi Hussain Khan

Ashurkhana.

27. That apart, it is only because the provisions of Section 9 of

the Tenancy Act were applicable to the temple lands that the Tamil

Nadu Act 2 of 1996 came into force with effect from 11.1.1996 to

remedy the mischief by making the provisions of the Tenancy Act

inapplicable to the lands owned by the religious institutions. If the

theory propounded by the Division Bench of this Court in the case of

M/s.Super Good Films Pvt. Ltd. Rep. by its Managing Director

Mr.R.B.Choudhary is to be accepted, there would have been no need

for enacting the Tamil Nadu Act 2 of 1996. The proper maxim to apply

in such cases is that the Legislature cannot be presumed to act

mistakenly or ignorantly by enacting the futile laws.

28. Reverting to the judgment of the Division Bench of this Court

in the case of M/s.Super Good Films Pvt. Ltd. Rep. by its

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Managing Director Mr.R.B.Choudhary, this Court is surprised to

find the following observations:

“27. When the Hindu Religious and

Charitable Endowments Act stipulates conditions
for alienation of temple property and to deal with
the temple properties in the manner contemplated
under the Hindu Religious and Charitable
Endowments Act and in the interest of the temple
administration, the petition filed under Section 9 of
the City Tenants Protection Act is not maintainable
and the said Act has no applicability in respect of
the temple properties governed under the
provisions of the Madras Hindu Religious
Endowment Act, 1926 and the subsequent Acts.
Therefore, order passed by the XIIIth Assistant
City Civil Court in an Interlocutory Application with
a direction to execute the Sale Deed is an order of
nullity in the eye of law. Since the order passed
under Section 9 of the City Tenants Protection Act
is null and void, all consequent Sale Deeds
executed in respect of the temple property
consequentially became null and void and
unenforceable.”

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29. Unfortunately, for the Division Bench, the correct legal

position is exactly the converse of what it has declared in the aforesaid

paragraph. Prior to 11.1.1996, a petition under Section 9 of the

Tenancy Act was maintainable in respect of a tenant, who had put up a

superstructure on the lands belonging to the religious institutions as is

evident from the decision of the Full Bench in the case of Doraivelu

Mudaliar and the decision of the Division Bench in the case of

Sundareswarar Devasathanam. In the case of M/s.Super Good

Films Pvt. Ltd. Rep. by its Managing Director Mr.R.B.Choudhary

before the Division Bench of this Court, the order under Section 9 of

the Tenancy Act was passed on 29.3.1990 and the sale deed was

executed on 11.10.1990. Consequently, the case was squarely covered

by the Proviso to Section 3 of the Tamil Nadu Act 2 of 1996. However,

the Division Bench has not noticed any of those previous cases and

more importantly has not noticed the provisions of the Tamil Nadu Act

2 of 1996 and the decision of the Hon’ble Supreme Court in the case of

Mylapore Club.

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30. Consequently, the decision rendered by the Division Bench of

this Court in the case of M/s.Super Good Films Pvt. Ltd. Rep. by

its Managing Director Mr.R.B.Choudhary is clearly and obviously

per incuriam and cannot be said to be a good law. This is the obvious

consequence in the light of the decision of the Hon’ble Supreme Court

in the case of Sundeep Kumar Bafna Vs. State of Maharashtra

[reported in 2014 (16) SCC 623] wherein it was held as under:

“A decision or judgment can be per

incuriam any provision in a statute, rule or
regulation, which was not brought to the notice of
the court. A decision or judgment can also be per
incuriam if it is not possible to reconcile
its ratio with that of a previously pronounced
judgment of a co-equal or larger Bench;”

31. Consequently, as the entire foundation of the Division Bench

judgment in the case of M/s.Super Good Films Pvt. Ltd. Rep. by

its Managing Director Mr.R.B.Choudhary is based on a completely

erroneous understanding that the Tenancy Act could never be applied

to the temple properties at all, the declaration made by the Division

Bench that a decree passed under Section 9 of the Tenancy Act is a

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nullity is in direct conflict with the Proviso to Section 3 of the Tamil

Nadu Act 2 of 1996.

32. In the face of a clear statutory provision, what then is the

effect of the declaration made by the Division Bench? The answer is

simple: nothing. It is and remains as ineffectual as the command

given by King Canute, who ordered the seas to recede from his feet.

33. Another aspect of the reasoning given by the Division Bench

of this Court in the case of M/s.Super Good Films Pvt. Ltd. Rep. by

its Managing Director Mr.R.B.Choudhary is found in the following

paragraphs:

“33. Section 111 of Hindu Religious and

Charitable Endowments Act states that
“Notifications, orders, etc., under the Act not to be
questioned in Court of Law. Save as otherwise
expressly provided in this Act, no notification or
certificate issued, order passed, decision made,
proceedings or action taken, scheme settled, or
other thing done under the provisions of this Act by
the Government, the Commissioner [or the
Additional Commissioner] [or a Joint or Deputy

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Commissioner, or an Assistant Commissioner shall

be liable to be questioned in any Court of Law.
34. In view of Section 111, lease granted
under the provision of the Hindu Religious and
Charitable Endowments Act cannot be subjected to
a civil suit nor a petition under Section 9 of the City
Tenants Protection Act, 1921 is entertainable.”

34. Having read Section 111 of the HR & CE Act, this Court is left

puzzled. When a petition is filed under Section 9 of the Tenancy Act,

the tenant is not challenging the lease. As a matter of fact, the tenant

cannot challenge the lease for the simple reason that the protection

under Section 9 of the Tenancy Act was available only if the tenant

admitted the tenancy and not otherwise. There are at least 25

decisions of this Court, which reiterate this elementary proposition.

Therefore, to say that Section 111 of the HR & CE Act bars a challenge

to the lease and consequently a petition under Section 9 of the

Tenancy Act appears to make no apparent sense at all, is, in fact, a

contradiction in terms.

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35. The Division Bench of this Court in the case of M/s.Super

Good Films Pvt. Ltd. Rep. by its Managing Director Mr.R.B.

Choudhary, has, thereafter, gone on to conclude as under:

“It was also noted that in many instances,

people entrusted with the duty of safeguarding
temple properties have 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
concerned authorities. 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.”

36. With all due respect to the Division Bench, these are general

observations. Of late, this Court has encountered a few decisions of

this Division Bench lamenting the presence of greedy men looting

resources of the community etc. By citing and relying on these

passages, learned counsel would attempt to extoll and persuade this

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Court that the interpretation of law must be influenced by the fact that

the world has fallen into evil times. But, the presence (or

omnipresence) of greedy men (and women) swarming the world is not

a new phenomenon. It has always existed from time immemorial.

37. For instance, the Bible says at Luke 12:15 “Be on your

guard against all kinds of greed; for one's life does not consist

in the abundance of possessions.” Similarly, from the classic

Mahabharata, we know that Duryodhana's greed was a major factor,

which led to the battle and subsequent massacre that followed.

Therefore, the omnipresence of greedy people can scarcely serve as

an excuse for the Court to give effect to the plain words of the law.

After all, it is the law that binds and not the perception of judges.

Consequently, merely because in “many instances, people

entrusted with the duty of safeguarding the temple properties

have misappropriated such properties by setting up false

claims of ownership or tenancy, or adverse possession,” it

cannot serve as a ready excuse for Judges not to apply the plain letter

of law when the facts of concrete instances before them are clear and

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plain. On facts, this case cannot be thrown out citing the perception of

“many instances” of people misappropriating funds and claiming

false ownership etc.

38. This Court is also reminded of what the Hon’ble Supreme

Court held in the case of Union of India Vs. Bharat Fritz Werner

Ltd. [reported in 2022 (13) SCC 362], which reads thus :

“Even otherwise, on the basis of a solitary

case, general observations could not have been
made by the High Court that the Indian bidders are
being discriminated against. We advise the High
Courts not to make general observations which are
not warranted in the case. The High Courts shall
refrain from making sweeping observations which
are beyond the contours of the controversy and/or
issues before them.”

39. As stated, supra, it is not in dispute that the application under

Section 9 of the Tenancy Act was allowed on 20.8.1976. The appeals

filed at the instance of the temple in A.S.Nos.14 to 19 of 1977 were

also dismissed. A sale deed was executed by the then Hereditary

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Trustee in favour of the 4th respondent pursuant to the orders of the

Court on 15.12.1978. By virtue of the Proviso to Section 3 of the Tamil

Nadu Act 2 of 1996, the order dated 20.8.1976 and the sale deed

dated 15.12.1978 are protected and recognized as legitimate

transactions.

40. It must also be pointed out that another document dated

09.10.2013, being a deed of release executed by the family members

of the 4th respondent in his favour, was also registered by the second

respondent. The 4th respondent had, thereafter, stood as a guarantor

for the 3rd respondent for the loan borrowed by the latter from the

petitioner bank. The 4th respondent has also executed a mortgage

deed dated 30.12.2013 in favour of the petitioner bank and the same

was also registered as document No.4770 of 2013. The 3 rd respondent

having defaulted, the property of the 4th respondent was brought to

sale under the SARFAESI Act, 2002 concluding with the issuance of a

sale certificate in favour of the 5th respondent - auction purchaser. It is

at this juncture that the second respondent has woken up and

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demanded a no objection certificate from the temple preventing

registration and forcing the secured creditor to approach this Court.

41. There is another aspect of the matter. At this distance of time,

it may not be open to the temple to contend that the order dated

20.8.1976 and the sale deed dated 15.12.1978 pursuant to

proceedings under Section 9 of the Tenancy Act are not binding on it.

The temple was undoubtedly a party to those proceedings. It is settled

law that a decision inter partes, which has attained finality, will

operate as a res judicata inter partes (See Neelima Srivastava

Vs. State of U.P. [reported in 2021 (17) SCC 693]). As has been

discussed in the earlier paragraphs, the order dated 20.8.1976 and the

sale deed dated 15.12.1978 are protected by the Proviso to Section 3

of the Tamil Nadu Act 2 of 1996. Consequently, the question of nullity

could never arise in a case of this nature.

42. That apart, the 1st respondent cannot be permitted to

collaterally challenge the correctness of the sale and that too in a writ

petition filed by the petitioner bank. This is so especially when the

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temple itself had filed appeals in A.S.Nos.14 to 19 of 1977 challenging

the order under Section 9 of the Tenancy Act and lost. For these

reasons, this Court finds that the course adopted by the Division Bench

of this Court in the case of M/s.Super Good Films Pvt. Ltd. Rep. by

its Managing Director Mr.R.B.Choudhary is not capable of

emulation when the legal position is otherwise.

43. From the above discussions, it is clear that the question of

obtaining a no objection certificate from the temple does not arise at

all. The temple lost its title as far back as in 1978, pursuant to the

orders of the Court in an application under Section 9 of the Tenancy

Act. In this view of the matter, there can be no question of the second

respondent demanding a no objection certificate from the petitioner to

register the sale certificate issued under the SARFAESI Act, 2002 in

favor of the fifth respondent - auction purchaser.

44. In the result, the writ petition is disposed of and there shall be

a direction to the petitioner bank as well as the 5 th respondent -

auction purchaser to present the sale certificate for registration before

the 2nd respondent. Upon such presentment, the 2nd respondent shall

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register the same after collecting the applicable stamp duty and the

registration charges alone. This exercise shall be completed forthwith.

No costs. Consequently, the connected WMP is closed.

08.4.2025
Index : Yes
Neutral Citation : Yes

To
1.The Commissioner, Hindu
Religious & Charitable
Endowment, Nungambakkam,
Chennai-34.

2.The Sub-Registrar,
Kodambakkam.

RS

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W.P.No.29630 of 2019

N.ANAND VENKATESH,J

RS

WP.No.29630 of 2019 &

WMP.No.29528 of 2019

08.4.2025

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