C.R.P.(NPD)No.1256 of 2013
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 01.08.2023
CORAM:
THE HONOURABLE MR.JUSTICE V.LAKSHMINARAYANAN
C.R.P.(NPD)No.1256 of 2013
and M.P.Nos.1,2,5 & 6 of 2013 and 1 of 2014
1.S.Pathikarasi (died)
2.M.Velayutham
3.G.Jayanthi
4.S.Vasanthi
5.S.Gomathi
6.K.S.Hemalatha
7.D.Janarthani .. Petitioners
(Petitioners 3 to 7 brought on record
as legal heirs of the deceased 1st
petitioner viz., S.Pathikarasi,vide
Court order dated 21.07.2023 made in
C.M.P.No.10896 of 2023)
Vs.
1.The Commissioner
HR & CE Department
Chennai-600 034.
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https://www.mhc.tn.gov.in/judis
C.R.P.(NPD)No.1256 of 2013
2.The Executive Officer
Arulmigu Ekambaranathar Thirukoil
Kancheepuram.
3.T.Damodaran
4.D.Kesavan
5.M.Suersh .. Respondents
PRAYER: Civil Revision Petition is filed under Section 34-A(5) of the
HR and CE Act, against the order dated 12.02.2013 made in A.P.No.50 of
2012 by the 1st respondent, confirming the order dated 15.07.2011 of the
2nd respondent.
For Petitioners : Mr.S.Thangavel
For R1 : Mr.Edwin Prabakar, Spl.G.P.
Mr.B.Tamil Nidhi, AGP (CS)
For R2 : Mr.R.Karthikeyan
and Mr.R.Bharanidharan
For R3 to R5 : Mr.J.Lakshminarayanan
ORDER
The revision challenges an order passed by the Commissioner, HR and CE Department, in A.P.No.50 of 2012, dated 12.02.2013. 2/10 https://www.mhc.tn.gov.in/judis C.R.P.(NPD)No.1256 of 2013
2. The 1st petitioner before this Court is the tenant. The tenant is in occupation of 2941 sq.ft. The original tenant was one Vaithiyalinga Nadar. From him, the property came to S.Pathikarasi, the 1st petitioner. The rent that was being paid for 2941 sq.ft. was Rs.5/- per month. It is an admitted case that the 1st petitioner had sublet the property to the third parties and they are in occupation of the same. As against those tenants, the fair rent that was fixed was Rs.6,240/- per month for 300 sq.ft. The Executive Officer had taken into consideration the fair rent fixed for the building and had fixed the value at Rs.28,992/- per month.
3. According to Mr.S.Thangavel, the learned counsel for the petitioners, the Executive Officer ought not to have taken into consideration the value fixed in the rent control proceedings and he ought to have independently taken into consideration the value that is fixed by the Statutory Committee under Section 34-A(1) of the HR and CE Act. According to him, the Executive Officer should have referred only to that proceeding and fixed the value. He would bring to my notice 3/10 https://www.mhc.tn.gov.in/judis C.R.P.(NPD)No.1256 of 2013 that there is a procedural violation of G.O.Ms.No.353 and a circular issued by the Commissioner, HR and CE Department, dated 02.02.2009. According to him, the Statutory Committee should have issued a notice to him, received his reply and thereafter, fixed the value.
4. Mr.R.Bharanidharan, learned counsel for the 2nd respondent would point out that the fixation of fair rent was only based on the admitted fair rent fixed in R.C.O.P.No.453 of 2007 on the file of the Small Causes Court, Chennai and therefore, there is no violation by the order of fixing fair rent by the Executive Officer. The Executive Officer has only fixed the fair rent at Rs.16.60 per sq.ft. He would further point out that the property is situated in the heart of the City of Chennai and the market value goes beyond the value fixed by the Executive Officer. He would also point out that from the judgment of the Division Bench of this Court relied upon by the learned counsel for the petitioners in Arulmigu Angala Parameswari and Kasivishwanathaswami Temple, Adimanaiveal House Owners Association vs. State of Tamil Nadu, 4/10 https://www.mhc.tn.gov.in/judis C.R.P.(NPD)No.1256 of 2013 represented by its Secretary to the Government, HR and CE Department, Chennai, (2009) 4 MLJ 1223, the value fixed by the Statutory Committee in terms of the circular issued by the Commissioner, HR and CE Department, dated 02.02.2009 is only recommendatory and not final. He would also draw my attention to “explanation” appended to Section 34-A(1) of the HR and CE Act, to press home the point that the Executive Officer can determine the market value on the basis of a similar type of property situated in the locality.
5. It is pertinent to note that the Executive Officer has fixed the fair rent only for 1736 sq.ft. The original extent which had been leased out to the 1st petitioner is 2941 sq.ft. The discrepancy in the area is, because the 1st petitioner before me had sublet the property to two persons and they had directly approached the temple for attornment of lease in their favour. The two tenants are Damodaran and Kesavan. When the temple had leased out the premises to the extent of 2941 sq.ft., the concession extended by the Executive Officer to the revision petitioners for 1736 5/10 https://www.mhc.tn.gov.in/judis C.R.P.(NPD)No.1256 of 2013 sq.ft. is bewildering. He ought to have fixed the fair rent for the entire extent of 2941 sq.ft. This is so because a sub tenant of a building under a tenant will not become a direct tenant of the temple with respect to the land.
6. In fact, following the said principle, in so far as the revision filed under the Rent Control Act is concerned, I held the principal tenant is the landlord for the subtenant and have dismissed the connected revision in C.R.P.No.1652 of 2014. Therefore, the first error that I have to note is the extent of the land taken up for fixation of fair rent. Consequently, the Executive Officer shall fix the fair rent for the entire extent of 2941 sq.ft.
7. In so far as the value of the land is concerned, the Executive Officer has fixed the rent only as per the rent control proceedings. As per Section 34-A(1) of the HR and CE Act, the rent must be fixed as per the “prevailing market rental value” and this should have been revised once 6/10 https://www.mhc.tn.gov.in/judis C.R.P.(NPD)No.1256 of 2013 in every three years. The rent was fixed in the year 2006. It is only by virtue of an interim order of this Court, a sum of Rs.14,478/- is being deposited towards rentals. There has been no revision of the rent for a block period of three years from 2009 onwards.
8. First, the institution which is getting the benefit of fair rent is a temple, which is perpetually a minor and this Court has taken note of that fact and accordingly pass orders. Secondly, the Executive Officer ought to have fixed the rental value for the period of three years from 2006 and it should have revised it once in every three years thereafter. That not having been done, though it is the revision at the instance of the revision petitioners and since it is an infraction of statutory direction, I am constrained to interfere with the orders of the respondents 1 & 2 and consequently, the following orders are passed:
(i) The orders of the Executive Officer, the 2nd respondent dated 15.07.2011 and the Commissioner, HR and CE Department, in A.P.No.50 of 2012 dated 12.02.2013 are set aside.
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(ii) The matter is remitted to the Executive Officer to fix the rental value from 2006 onwards at the prevailing market rental value of the relevant time, following the statutory directions under Section 34-A(1) of the HR and CE Act read with its explanation.
(iii) The Executive Officer shall calculate the rent for the block period of three years and revise it once in three years till 2023.
(iv) He shall give adjustment towards Rs.22,31,470/- or any other payment that has been made by the tenant in favour of the temple pursuant to the interim order passed by this Court. The said exercise shall be completed within four weeks from today.
(v) It is made clear that the amounts that have been paid by the subtenants cannot be adjusted, since under this order, value is being fixed for the entire extent of 2941 sq.ft.
(vi) The tenant shall continue to remit a sum of Rs.14,478.00 pending the fixation of fair rent.
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9. With the above directions, the Civil Revision Petition is disposed of. No costs. Consequently, connected Miscellaneous Petitions are closed.
Call the matter for compliance on 07.09.2023.
01.08.2023 Index:Yes/No Speaking Order :Yes/No Neutral Citation:Yes/No kj Note:Issue order copy on 01.08.2023 To
1.The Commissioner HR & CE Department Chennai-600 034.
2.The Executive Officer Arulmigu Ekambaranathar Thirukoil Kancheepuram.
9/10 https://www.mhc.tn.gov.in/judis C.R.P.(NPD)No.1256 of 2013 V.LAKSHMINARAYANAN,J.
Kj C.R.P.(NPD)No.1256 of 2013 and M.P.Nos.1,2,5 & 6 of 2013 and 1 of 2014 01.08.2023 10/10 https://www.mhc.tn.gov.in/judis