Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondents.
2. This writ petition has been filed praying for a writ of Certiorarified Mandamus to call for the records relating to the impugned order of the first respondent, dated 19.1.2009, and quash the same and to consequently, forbear the second respondent from interfering with the petitioner's possession and enjoyment of the property described in the impugned notice, dated 19.1.2009.
3. The petitioner has stated that the property comprised in S.R.No.945/6, measuring an extent of 1368 Sq.ft, referred to in the impugned notice of the first respondent, belongs to the petitioner. However, the impugned notice, dated 19.1.2009, has been addressed to the petitioner's husband, K.K.Viswanathan @ Rajamani.
4. The petitioner has also stated that the property in question had originally belonged to one Angu Thayammal and Nani Pandithar. Thereafter, one Govindasamy Naidu had purchased the property, in the year, 1953. Since the property is situated close to the temple, the second respondent temple wanted to take over the said property. The second respondent had made an offer to Govindasamy Naidu for exchange of land. Since Govindasamy Naidu had not accepted, the said proposal had been given up in the year, 1966. When the proposal had been made, by way of a communication, in Pa.Mu.No.1603/64.C.5, dated 20.1.1966, issued by the then Executive Officer of the temple, the title of Govindasamy Naidu, in respect of the property concerned, had been admitted. Thereafter, on 2.2.2007, the Board of trustees of the second respondent temple had passed a resolution, as if the subject land had been encroached upon by the petitioner. Therefore, proceedings, dated 14.2.2007, had been issued by the second respondent. In such circumstances, the petitioner was constrained to file a suit, in O.S.No.135 of 2007, before the Principal Subordinate Judge, Madurai, seeking for a declaration, regarding the validity of the resolution. The petitioner had sought for the consequential relief of injunction.
5. The petitioner had further stated that the property in question had been purchased, by a registered sale deed, by Govindasamy Naidu. After his demise the property had been purchased by Kuppusamy, from the sons of Govindasamy Naidu, in the year, 1983. The said Kuppusamy is the petitioner's husband's brother-in-law. He had executed a power of attorney in the name of the petitioner's husband. Based on the power of attorney the petitioner's husband had executed a sale deed, dated 27.1.2005, registered as Document No.1998 of 2005, on the file of the Sub Registrar, Thirupparamkundram, in favour of the petitioner. After purchasing the land the petitioner and her husband had built a residential house in the property in question. After the building of the house, the remaining portion is kept as a vacant site.
6. Even though a civil suit is pending in respect of the property in question the first respondent had issued a notice, dated 19.1.2009, under Section 78(2) of the Hindu Religious and Charitable Endowments Act, 1959. The petitioner had submitted a written reply, dated 24.8.2009. Without holding an enquiry and without passing final orders, the second respondent had attempted through his men to forcibly enter the property belonging to the petitioner. Therefore, a complaint had been lodged before the local police. On 14.10.2009, there was another attempt of criminal trespass by the servants of the second respondent. They had attempted to put up some stones in the property and they had behaved in a discourteous manner.
7. It has also been stated that the petitioner has been in possession and enjoyment of the property, for a long time. She has also got electricity connection and she has been remitting the house tax. The revenue records are in the name of the petitioner's vendor, Kuppusamy. The local authority had also granted approval to the petitioner's vendor, Kuppusamy, in the year, 1996, for erecting a shed in the property in question. The respondents have invoked the powers, under Section 78 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959. When there is a bona fide dispute existing in respect of the title, the powers under the said provision cannot be invoked. Even though there is an alternative remedy available to the petitioner before a Civil Court against the proceedings initiated, under Section 78 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959, it is not an efficacious remedy. In such circumstances, the petitioner has filed the present writ petition before this Court, under
Article 226 of the Constitution of India.
8. In the counter affidavit filed on behalf of the second respondent it has been stated that the writ petition is not maintainable, both in law and on facts. No order has been passed by the first respondent against the petitioner, as on date. Only a notice, dated 19.1.2009, has been issued, under Section 78 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959, by the first respondent, asking the petitioner's husband to show cause as to why the encroachment made by the petitioner in the land in question, belonging to the second respondent temple, should not be removed. The petitioner having submitted to the jurisdiction of the first respondent had filed her objection, dated 24.8.2009, as a reply to the show cause notice. While so, the petitioner cannot be said to be an aggrieved person to challenge the impugned notice of the first respondent, dated 19.1.2009. In fact, the first respondent is the competent authority to enquire into the matter. Therefore, the writ petition is premature in nature.
9. It has also been stated that the second respondent temple is one of the ancient temples in the state of Tamil Nadu. The second respondent temple is a listed Public Temple notified, under Section 46(iii) of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959. It is being administered by the Executive officer in the cadre of Deputy Commissioner, appointed by the Government of Tamil Nadu, subject to the over all control of the Commissioner, Hindu Religious and Charitable Endowments, Administration Department.
10. It has also been stated that the lands in question admeasuring an extent of 1368 sq.ft. and the other lands comprised, in S.No.196/14 and subdivided as S.Nos.196/14A and 196/14B and presently T.S.No.945/6, were the subject matter of the claim by the temple, in respect of Hillock, Sarav