Roopalakshmi Padmanabhan vs The Commissioner, H.R and C.E

WP.No.35458 of 2026
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 04-11-2026
CORAM
THE HON'BLE MR.JUSTICE K.SURENDER
WP.No.35458 of 2026
CNR:{HCMA012066062026}
Roopalakshmi Padmanabhan,
W/o.Late.General S.Padmanabhan,
(Retd. Chief of Army Staff)
A3, Basera Apartments, 46, Besant Avenue,
Adyar, Chennai-600 020.
..Petitioner(s)
1. The Commissioner, H.R and C.E.,
Uthamar Gandhi Road,
Nungambakkam,
Chennai-600 034.
2. The Inspector General of Registration,
Santhome, Chenna-600 0004.
3. The Sub Registrar Adayar,
C73, Lattice Bridge Road,
Kamaraj Nagar,
Chennai-600 041.
4. Arulmighu Arunachaleswarar Temple,
Rep. by the Joint Commissioner / Executive Officer,
Thiruvannamalai-606601.
..Respondent(s)
PRAYER: Writ Petition is filed under Article 226 of Constitution of India, to
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issue a Writ of Mandamus, directing the 1 respondent to issue forthwith a No
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objection certificate to the third respondent to enable the petitioner’s family
members to deal with their property measuring 2,700 sq.ft in Old Door No.12D,
New No.40, Besant Avenue, Adyar, Chennai-600020 in Old S.No.41, within the
registration district of Adyar, Madras, forming part of Arunachalapuram, in
Urur Village No.116, Saidapet Taluk.
[Prayer Amended as per order of this
Court dated 04.11.2026 in
W.M.P.No.49225 of 2026 in
W.P.No.35458 of 2026.]
For Petitioner(s): Ms.Hema Sampath, Senior Counsel for
Ms.R.Meenal
For Respondent(s): Mr.S.Surya
Government Advocate (H.R.&C.E.)
For R1, R2 & R4
ORDER
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The relief sought in this Writ Petition is to direct the 1 respondent to
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issue forthwith a No Objection Certificate to the 3 respondent to enable the
petitioner's family members to deal with their property measuring an extent of
2,700 sq.ft., situated at Old Door No.12D, New Door No.40, Besant Avenue,
Adyar, Chennai-600 020, comprised in Old S.No.41, T.S.No.40/6, forming part
of Arunachalapuram, Urur Village, Saidapet Taluk, Chennai.
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WP.No.35458 of 2026
2.The case of the petitioner is that the subject property originally
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belonged to the 4 respondent Temple. The petitioner's mother-in-law,
S.Kannammal, wife of S.Sundararajan, purchased the leasehold right in respect
of the property from Devasthanam under a registered Lease Deed dated
06.12.1956. Thereafter, the Commissioner, HR & CE Department, vide Order
dated 31.01.1962 in Application No.91/61, passed under Section 34 of the then
Madras Hindu Religious and Charitable Endowments Act, 1959 (Act XXII of
1959), granted permission for sale of the leased property to S.Kannammal.
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Pursuant to the said order, the Executive Officer of the 4 respondent Temple
sold the subject property to S.Kannammal vide Sale Deed dated 26.06.1963 for
a valuable consideration of Rs.30,150.31 Np. @ Rs.1,750/-/ground. Thereafter,
by a registered Release Deed dated 22.08.1964, S.Kannammal distributed the
property among her children and released an extent of 2,700 sq.ft. in favour of
her daughter, V.Vedavalli, who took possession and put up construction
thereon. Thereafter, V.Vedavalli executed her last Will and Testament dated
23.07.1992, which was subsequently probated by this Court on 25.06.2018 in
O.P.No.968 of 2017. As per the said Will, the subject property devolved upon
the beneficiaries therein.
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WP.No.35458 of 2026
3.The learned Senior Counsel for the petitioner further submits that one of
the legal heirs, Daya Kannan, filed O.S.No.8127 of 2022 before the learned
XXIII Assistant City Civil Court, Chennai, seeking partition of her 1/54th share
in the subject property. A preliminary decree for partition was passed on
27.02.2024. Thereafter, I.A.No.5 of 2024 was filed seeking passing of a final
decree. Since the property measuring 2,700 sq.ft., along with a dilapidated
house, could not be divided among the numerous sharers, the Civil Court
permitted the sale of the property and distribution of the sale proceeds among
the legal heirs. The sale price offered by the purchaser was also approved by
the Civil Court and an Advocate Commissioner was appointed to supervise the
sale. The Court also approved the draft sale deed and authorised the Court
Officer to act on behalf of the exparte defendants and deposit their respective
shares into the credit of the suit. Thus, the sale of the property alone remained
to be completed.
4.She would further submit that when the draft sale deed was presented
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before the 3 respondent for registration, the 3 respondent raised an objection
stating that the HR & CE Department had instructed the Registration
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Department that the entire S.No.41 belongs to the 4 respondent Temple and
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WP.No.35458 of 2026
that the sale deed could not be registered without obtaining a No Objection
Certificate from the HR & CE Department.
5.It is further submitted that the Commissioner, HR & CE Department,
had already granted sanction for the sale of the subject property on 31.01.1962,
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pursuant to which the 4 respondent Temple executed the Sale Deed dated
26.06.1963 in favour of S.Kannammal. From the date of the said sale, the
Temple ceased to have any right, title or interest over the property.
6.The learned Senior Counsel further submitted that the petitioner and her
family members have been in uninterrupted possession and enjoyment of the
property for more than six decades and that the revenue records and other
documents stand in their respective names. The Civil Court, after considering
the title and the rights of the parties, has also passed orders for partition and sale
of the subject property. Therefore, insisting upon a No Objection Certificate
from the HR & CE Department for registration of the sale deed is not
sustainable in law.
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WP.No.35458 of 2026
7.The learned Government Advocate appearing for the respondents 1 & 4
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would submit that the subject property originally belonged to the 4 respondent
Temple and that the property was sold in favour of S.Kannammal, mother-in-
law of the petitioner, pursuant to the order dated 31.01.1962 passed by the
Commissioner, HR & CE Department, in Application No.91/61. It is further
submitted that the petitioner seeks a No Objection Certificate from the HR &
CE Department to enable the registration of the sale deed in respect of the
subject property, which is presently objected to by the Registration Department
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on the ground that the property is recorded as belonging to the 4 respondent
Temple.
8.The learned Government Advocate drew the attention of this Court to
the Common Order dated 07.06.2021 in Suo Motu W.P.No.574 of 2015 &
W.P(MD) No.24178 of 2018 , wherein, the Division Bench of this Court has
issued 75 directions to the Respondent Authorities therein for the purpose of
protecting the historical monuments including temples, idols, antiques,
manuscripts, murals, etc. Out of the 75 directions issued by the Division Bench
of this Court, Direction No.33 is the Trustee or Administrator cannot sell a
temple property against the wish of the donor. For better appreciation, Direction
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WP.No.35458 of 2026
No.33 issued by the Division Bench of this Court in the said common order is
extracted hereunder:
“ (33) The State Government or the Commissioner of the HR
& CE Department, who are the Trustee/Administrator of the
temple lands, shall not alienate or give away the lands contrary to
the wish of the donor. The lands shall always remain with the
temples. The public purpose theory shall not be invoked in cases
of temple lands over which the interest of the community people of
the religious denomination generally rests. ”
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9.It is further submitted by the learned Government Advocate that the 1
respondent had filed two Review Applications in Rev.Appl.(W) Nos.169 & 170
of 2021 before the Division Bench of this Court seeking to review the Common
Order dated 07.06.2021 passed in Suo Motu W.P.No.574 of 2015 & W.P(MD)
No.24178 of 2018. During the pendency of said Review Applications, three
persons had filed a Writ Petition in W.P.No.12697 of 2022 before this Court
praying for issuance of a writ of declaration, declaring that
(i) Mylai Sri Kapaleeswarar Temple
(ii) Vadpalani Murugan Temple
(iii) Vadapalani Sri Vengeeswarar Temple
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(iv) Vadapalani Sri Alagar Perumal Temple
(v) Virugambakkam Sri Sundaravardharaja Perumal Temple
(vi) Valasaravakkam Sri Velveeswarar Temple
(vii) Poonamallee Sri Thirukachi Nambigal and Sri Varadaraja Perumal Temple
(viii) Poonamallee Sri Thirukachi Nambigal and Sri Varadaraja Perumal
Temple Tank which are impacted under the Corridor 4 of the Phase II of the
Chennai Metro Rail Project, as ancient monuments and Heritage Structures
under the Ancient Monuments and Archaeological Sites and Remains Act, 1958
read with Article 26 of the Constitution of India. The First Bench of this Court
vide Order dated 20.06.2022, closed W.P.No.12697 of 2022 with the following
observation:
“ 11. …….... It is settled law that any judgment of the Court
running counter to any statutory provision would be per
incuriam, as has been held by the Apex Court in the case of Dr.
Shah Faesal and others v. Union of India and another, (2020) 4
SCC 1.
12. If a Court issued direction going contrary to the
statutory provision, then such direction is to be treated as per
incuriam. It is more so when the Court has power to declare any
provision as ultra vires, if it is hit by the provisions of the
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WP.No.35458 of 2026
Constitution of India or other statutory provisions. But unless it
is so declared as ultra vires, it cannot be nullified by a direction
and such direction given is to be treated as per incuriam. In the
light of the aforesaid, what will prevail is the provision of law,
that is Section 34 of the Act of 1959 and Section 3 of the Act of
1997. Thus, the provisions having not been declared as ultra
vires, the competent authorities are empowered to exercise the
said provisions. Therefore, it needs to be clarified that if the
direction quoted in paragraph 33 of the judgment in the suo motu
writ petition cited supra runs counter to any of the statutory
provision, it may be treated as per incuriam.
13. In view of the finding recorded above, we hold that if
the lands belonging to the temples, like vacant lands, or used
lands for commercial purposes are required, it can be acquired
for public purposes by applying the provisions of law. In doing
so, it has already been admitted that no heritage structures or
ancient monuments of the temples would be affected. ”
10.Thereafter, the Division Bench of this Court has disposed of the
aforesaid Rev.Appl.(W) Nos.169 & 170 of 2021 vide Common Order dated
02.06.2023. In Paragraph No.16 of the Common Order dated 02.06.2023
passed in Rev.Appl.(W) Nos.169 & 170 of 2021 , the Division Bench of this
Court has held that a donor’s will and intention are paramount, prohibiting the
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WP.No.35458 of 2026
State or HR & CE Department from alienating temple properties against the
original charitable intent and the Authorities cannot bypass this intent through
executive actions or by invoking public purpose to divert property from its
designated use. For better appreciation, the relevant portion of the said common
order is extracted hereinbelow:
“ 16. With regard to direction no.33, it will be necessary to look
into the relevant provision of the HR&CE Act, which reads as
follows:
“34. Alienation of immovable Trust property:-
(a) 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. Provided that before such sanction is
accorded, the particulars relating to the proposed
transaction shall be published, in such manner as
may be prescribed, inviting objections and
suggestions with respect thereto, and all objections
and suggestions received from the trustee or other
persons having interest shall be duly considered by
the Commissioner. Provided further that the
Commissioner shall not accord such sanction
without the previous approval of the Government.
Explanation:- (4-A) The Government may
issue such directions to the Commissioner as in
their opinion are necessary, in respect of any
exchange, sale, mortgage or lease of any immovable
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WP.No.35458 of 2026
property, belonging to or given or endowed for the
purpose of any religious institution and the
Commissioner shall give effect to all such
directions.”
From the above provision, it is clear that the exchange, sale or
mortgage and any lease for a term exceeding five years of any
immoveable property is generally null and void. The exception
being the prior sanction of the Commissioner for the necessity or
beneficial to the institution. It is pertinent to mention that the word
'necessity' used therein would have to be related to the necessity of
the temple or institution and not for the necessity of third parties.
Necessity and beneficial intent being a pre-requisite condition,
must be satisfied before the decision to even lease out the property
for more than five years. Such a decision must be taken for the
rational consideration. Therefore, this court is of the opinion that
for alienation of the immovable properties belonging to the
religious institutions, all the conditions stipulated in the proviso
like publication, calling for objections and previous sanction from
the Government and explanation to Section 34 of the HR&CE Act
have to be scrupulously followed and it has to be established that
such alienation is beneficial to the interest of the temple or
institution and that, the alienation is the only option to ensure that
the activities of temples including performance of rituals will be
disturbed, if the property is not sold. It must also be for necessity
or beneficial for the temple or the religious institution. Before the
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WP.No.35458 of 2026
properties are alienated, the other provisions regarding common
good fund, funds of other temples to be used for the preservation
and other activities of the other temples, contribution from the
public, will have to be taken into consideration. Even thereafter, if
there is a requirement, a decision on sale of property can be
taken, that too, after following due procedure as contemplated
under the HR&CE Act. The government lands are to be first
utilized for public purpose before the lands belonging to the
temples are touched. The directions to be issued by the
Government under the explanation should also be inconformity
with the above principles. It is significant to mention here that a
Division Bench of this Court in the judgment in W.A No. 2831 of
2002 has already held that temple properties cannot be acquired.
There are Government orders in G.O.MS.No.1266 (Rev.) dated
30.05.1981 and G.O.Ms.No.1630 dated 26.09.1984 on the subject.
As such, the temple properties cannot be gifted away against the
interest of the institution. The intention with which the charities
given by the donor cannot be shun away at the pleasure of the
government or the Commissioner. The Will of the donor is of
paramount importance, which cannot be surpassed at executive
pleasure against the interest of the temples. At this juncture, it is
necessary to place on record the importance of maintenance of
accounts regarding the contribution by the donors, hundi
collection, expenditure and importance of independent audit
performed by an authority not forming part of state functionary.
Therefore, the alienation by the government can only be in
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WP.No.35458 of 2026
consonance with the provisions and object of the HR&CE Act;
and that, the actions taken by the HR&CE Department shall
always be subject to judicial review as this Court being one of the
guardians of the rights guaranteed by the constitution, is vested
with such power. ”
11.The learned Government Advocate would further submit that pursuant
to the Common Order dated 07.06.2021 in Suo Motu W.P.No.574 of 2015 &
W.P(MD) No.24178 of 2018 and Common Order dated 02.06.2023 in
Rev.Appl.(W) Nos.169 & 170 of 2021 passed by the Division Bench of this
Court, 3rd Respondent had issued a circular directing the Temple Authorities
not to register any document belonging to the temple.
12.In reply, the learned counsel for the petitioner submitted that, in the
th
present case, the Executive Officer of the 4 respondent Temple sold the subject
property to S.Kannammal only after obtaining sanction from the Commissioner,
HR & CE Department, under Section 34 of the HR & CE Act. Therefore, there
is no violation of the provisions of Section 34(1) of the HR & CE Act. Further,
the subsequent transactions and the rights of the legal heirs have also been
recognised by the competent Civil Court, which has passed orders permitting
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WP.No.35458 of 2026
the sale of the subject property.
13.Heard the learned counsel for the petitioner and the learned
Government Counsel appearing for the respondents and also perused the
materials available on record.
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14.In the present case, the subject property originally belonged to the 4
respondent Temple. The Commissioner, HR & CE Department, vide Order
dated 31.01.1962 in Application No.91/61, granted permission for sale of the
subject property in favour of S.Kannammal. Pursuant to the said order, the
th
Executive Officer of the 4 respondent Temple sold the subject property to
S.Kannammal vide Sale Deed dated 26.06.1963. Thereafter, S.Kannammal
distributed the property among her children by way of registered documents,
including the Release Deed dated 22.08.1964, under which an extent of 2,700
sq.ft. was released in favour of V.Vedavalli. Subsequently, the rights of the
legal heirs in respect of the subject property were considered by the competent
Civil Court in O.S.No.8127 of 2022. Taking note of the fact that the property
could not be divided among the numerous sharers, the Civil Court permitted the
sale of the property and distribution of the sale proceeds among the legal heirs.
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WP.No.35458 of 2026
The sale price was approved and an Advocate Commissioner was appointed to
supervise the sale. However, when the draft sale deed was presented before the
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3 respondent for registration, the same was not proceeded with on the ground
that a No Objection Certificate from the HR & CE Department was required.
15.At this juncture, it is pertinent to state that in the Order dated
20.06.2022 passed in W.P.No.12697 of 2022 , the First Bench of this Court has
clarified that if the direction quoted in paragraph 33 of the Common Order
dated 07.06.2021 passed in Suo Motu W.P.No.574 of 2015 and W.P.(MD)
No.24178 of 2018 runs counter to any statutory provision, the same may be
treated as per incuriam.
16.As per the provisions of Section 34(1) of the HR & CE Act, any
exchange, sale or mortgage and any lease for a term exceeding five years of any
immovable property belonging to a religious institution requires the prior
sanction of the Commissioner, HR & CE Department. For the sake of clarity,
Section 34(1) of the HR & CE Act is extracted herein below:
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WP.No.35458 of 2026
“ 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 purposes, of any religious institution
shall be null and void unless it is sanctioned by [the
Commissioner] [Substituted by Tamil Nadu Act 39 of l996.] as
being necessary or beneficial to the institution:
Provided that before such sanction is accorded, the particulars
relating to the proposed transaction shall be published in such
manner as may be prescribed, inviting objections and suggestions
with respect thereto; and all objections and suggestions received
from the trustee or other persons having interest shall be duly
considered by [the Commissioner] [Substituted by Tamil Nadu Act
39 of l996.]:
[Provided further that the Commissioner shall not accord such
sanction without the previous approval of the Government.]
[Inserted by section 2(1) of the Tamil Nadu Hindu Religious and
Charitable Endowments (Second Amendment) Act, 1998 (Tamil
Nadu Act 38 of 1998).]
Explanation. - Any lease of the property above mentioned though
for a term not exceeding five years shall, if it contains a provision
for renewal for a further term (so as to exceed five years in the
aggregate), whether subject to any condition or not, be deemed to
be a lease for a period exceeding five years. ”
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17.As far as this case is concerned, the Commissioner, HR & CE
Department, exercising the power under Section 34(1) of the HR & CE Act, had
passed the Order dated 31.01.1962 in Application No.91/61 granting permission
for the sale of the subject property in favour of S.Kannammal. Pursuant to the
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said order, the Executive Officer of the 4 respondent Temple sold the subject
property to S.Kannammal vide Sale Deed dated 26.06.1963. Hence, there is no
violation of the rule contemplated under Section 34(1) of the HR & CE Act.
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18.When the 4 respondent Temple sold the subject property to
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S.Kannammal vide Sale Deed dated 26.06.1963, the 4 respondent Temple
transferred all its rights, title and interest over the subject property to
S.Kannammal. Thereafter, the property was dealt with by the purchaser and her
legal heirs through registered documents. Therefore, unless and until the Order
st
dated 31.01.1962 passed by the 1 respondent and the Sale Deed dated
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26.06.1963 executed by the 4 respondent Temple are set aside by a competent
Court, the respondents 1 and 4 have no right to make any objection for
registration of the sale deed in respect of the subject property.
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WP.No.35458 of 2026
19.Considering the above facts and circumstances of the case, this Court
is inclined to allow this Writ Petition. Accordingly, this Writ Petition is
allowed. The petitioner and the other legal heirs are directed to re-present the
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sale deed approved by the Civil Court before the 3 respondent for registration.
Upon such re-presentation of the sale deed by the petitioner and the other legal
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heirs, the 3 respondent shall register the same, if it is otherwise in order,
forthwith. However, there shall be no order as to costs.
04-11-2026
Index: Yes/No
Speaking/Non-speaking order
Neutral Citation: Yes/No
vv2
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WP.No.35458 of 2026
To
1. The Commissioner, H.R and C.E.,
Uthamar Gandhi Road,
Nungambakkam,
Chennai-600 034.
2. The Inspector General of Registration,
Santhome, Chenna-600 0004.
3. The Sub Registrar Ad,ayar,
C73, Lattice Bridge Road,
Kamaraj Nagar,
Chennai-600 041.
4. Arulmighu Arunachaleswarar Temple,
Rep. by the Joint Commissioner / Executive
Officer,
Thiruvannamalai-606601.
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WP.No.35458 of 2026
K.SURENDER, J.
vv2
WP.No.35458 of 2026
04-11-2026
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