Mermaid Properties Private ... vs The Secretary
2021 Latest Caselaw 23516 Mad

                                                                                       W.P.No.9328 of 2017

                                      IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                   DATED : 01.12.2021

                                                        CORAM :

                                     THE HONOURABLE MR.JUSTICE R.SURESH KUMAR

                                                  W.P.No.9328 of 2017
                                  and W.M.P.Nos.10300 & 10302 of 2017 and 20652 of 2021

            Mermaid Properties Private Limited
            Rep.by its Director P.Ramachandran
            1-C, JVL Towers, New No.51
            Nelson Manickam Road
            Chennai 600 029.                                                     ...    Petitioner
                                                       -Vs-


            1. The Secretary
               Hindu Religious and Charitable Endowment Department
               Fort St.George, Secretariat, Chennai -600 009

            2. The Commissioner
               HR & CE Department
               No.119, Uthamar Gandhi Salai
               Nungambakkam, Chennai 600 034.

            3. The Executive Officer
               Arulmighu Nithya Kalyana Perumal Temple
               Thiruvidanthai, Kancheepuram District.                            ...    Respondents


            PRAYER : Writ Petition filed under Article 226 of the Constitution of India, praying for
            issuance of Writ of Certiorarified Mandamus calling for the records of the 2 nd respondent vide
            R.C.No.45584/2016/V-2 dated 30.03.2017 and quash the same and issue directions to the 1st
            respondent to consider the request of the petitioner to grant lease by conducting an enquiry
            and pass orders in accordance with law relating to grant of lease for the property of an
            extent of 22 cents out of 31 cents comprised in Survey No.96/1, Thiruvidhanthai Village,
            Thirupporur Taluk, Kanchipuram District.



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                                                                                        W.P.No.9328 of 2017

                                  For Petitioner   : Mr.P.Subba Reddy


                                  For Respondent   : Mr.S.Yashwanth, Additional Government Pleader
                                                    - for Respondents 1 and 2
                                                    Mrs.V.Srimathi – for R3


                                                         ORDER

The prayer sought for herein is for a Writ of Certiorarified Mandamus calling for the

records of the 2nd respondent vide R.C.No.45584/2016/V-2 dated 30.03.2017 and quash the

same and issue directions to the 1st respondent to consider the request of the petitioner to

grant lease by conducting an enquiry and pass orders in accordance with law relating to

grant of lease for the property of an extent of 22 cents out of 31 cents comprised in Survey

No.96/1, Thiruvidhanthai Village, Thirupporur Taluk, Kanchipuram District.

2. The petitioner claims that it is owning lands in S.No.136/1B Part and 136/2,

Thiruvidanthai Village, Thirupporur Taluk, Kanchipuram District. The lands in S.No.136/2

was originally purchased by the petitioner company from one Eswaramoorthy Nadar in the

year 1992 to the extent of 19.50 Acres vide Document No.887/1992 dated 07.05.1992 and

Document No.888/1992 dated 07.05.1992. The petitioner further purchased another piece

of land in S.No.136/1B Part to an extent of 1.50 Acres from third parties. These lands are

adjacent and next to the lands of Sri Nithya Kalyana Perumal Temple, ie., the third

respondent temple to the extent of 0.31 Cents, which is in S.No.96/1. Since the temple land

at S.No.96/1 falls between the petitioner's land and the East Coast Road (ECR) and since the

petitioner has developed the said land of the petitioner as a gated community, in order to

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have direct access towards the ECR from the property of the petitioner, this adjacent temple

land at S.No.96/1 was required. Therefore, in this regard the petitioner had approached the

respondents ie., the temple as well as the HR & CE Department, where, pursuant to a

recommendatory communication received in this regard by the HR & CE Department from

the Joint Commissioner to the Special Commissioner, HR & CE Department, by proceedings

dated 19.01.2007, the first respondent Commissioner had permitted to give the 22 cents out

of 31 cents of the land belonging to the temple on lease to the petitioner by issuance of a

Government Order in G.O.(D) No.177 dated 08.06.2007.

3. Thereafter, when the petitioner approached for renewal of the said lease, since

there had been some issue, the petitioner approached this Court by filing a writ petition in

W.P.No.16245 of 2016, where an order was passed by this Court on 28.04.2016, directing

the respondents therein to consider the request of the petitioner by affording an opportunity

of being heard. Thereafter, the Commissioner, HR & CE Department passed an order on

21.06.2016 for giving extension of lease by fixing a monthly rent of Rs.5000/-.

4. Further, the petitioner had also filed another writ petition in W.P.Nos.38348 and

38349 of 2016, where the petitioner sought for grant of lease or extension of lease to the

petitioner by taking into account the earlier Government Order in G.O.(D) No.177 dated

08.06.2007. Those writ petitions were disposed of by a learned Judge of this Court by an

order dated 04.11.2016 dismissing the writ petitions filed by the petitioner. As against

which, the petitioner preferred writ appeals in W.A.Nos.6 and 7 of 2017, where a Division

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Bench of this Court, passed the following interim order on 24.01.2017.

“ 3. Accordingly, preserving liberty to the appellant to approach the

Commissioner, HR&CE, as expeditiously as possible, offering a minimum

donation of Rs.5,00,000/- (Rupees Five Lakhs Only) for securing renewal of

leasehold rights / licence for every period of three years and also offering the

arrears of lease amount, together with a proposal enhancing by it by a minimum

of 15% for every period of three years, we are confident that the same will be

considered suitably by the Commissioner.

5. Subsequently, the writ appeals came up for final hearing and were disposed of

finally by an order dated 09.03.2017 by the Division Bench, where the following orders have

been passed.

“ 6. The appellant company was granted lease on 03.08.2007 for a period of three years and the lease period expired on 31.07.2010. As per the learned counsel for the appellant, renewal application submitted by the appellant is pending before the respondent/authorities.

7. During the course of arguments, the learned counsel for the appellant is agreeable to offer donation of Rs.5,00,000/- for securing renewal of leasehold rights for every period of three years and also offering the arrears of lease amount together with a proposal enhancing it by a minimum of 15% for every period of three years.

8. In view of the said submission, the appellant is granted liberty to make the offer before the authority concerned and it is left to the discretion of the

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authority concerned to decide the claim of the appellant on merits and in accordance with law within a period of three months from the date of the offer so made.

9. The appeals are disposed of and the order of the learned Single Judge made in W.P.Nos.38348 & 38349 of 2016, dated 04.11.2016 is modified to the extent indicated above. No costs. Consequently, C.M.P.Nos.2631 & 2632 of 2017 are closed.”

6. Thereafter, the petitioner has made applications and representations to consider

their request for grant of lease of 22 cents of land. However, after having considered the

said request, the Commissioner, HR & CE Department ie., the second respondent, vide his

proceedings dated 30.03.2017, having taken note of the objections raised by the third

respondent temple, has permitted to execute the lease in favour of the petitioner only in

respect of 400 Sq.ft for the purpose of or use of approach road to their land by fixing the

rent at Rs.7,000/- per month for a period of three years with various other conditions. Felt

aggrieved over the said proceedings dated 30.03.2017, the present writ petition has been

filed with the aforesaid prayer.

7. Heard Mr.P.Subba Reddy, learned counsel for the petitioner, who would submit

that, whatever the donation which the third respondent temple wants for the purpose of

development of the temple that has been since indicated by the earlier orders passed by this

Court, even double the amount the petitioner is ready and willing to deposit. Moreover, the

long stretch of the land of more than 22 cents running through all along abutting or adjacent

to the land belongs to the petitioner, which is the land located in between the land of the

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petitioner as well as the ECR road, is a barren vacant land, where, there has been no utility

for the temple and it has been kept as barren vacant land for time immemorial. When that

being so, because the petitioner has taken the said land on lease for several years, it has

been developed aesthetically and it has been maintained by the petitioner, by thus, the

petitioner prevented or avoided unwarranted encroachment by any unscrupulous persons in

the said temple land as it is abutting the ECR Road. Therefore, the third respondent temple

can fetch a reasonable money by allotting the said land in entirety ie., 22 cents to the

petitioner for a long term lease and for this purpose, if the law does not permit to give long

term lease, three years lease given already in the year 2007 extended subsequently, can be

further extended from time to time at the expiry of three years, wherein, every three years if

they want to enhance the rent, that is also agreeable to the petitioner.

8. Learned counsel for the petitioner further submits that, insofar as the said land is

concerned, if it is meant for any other utility for the temple, that too for fetching any

revenue, there must be some justification for the H.R.&C.E., Department as well as the

temple concerned to refuse to give it to the petitioner by way of lease. Instead, the land

since has been kept as a barren vacant land for several decades and continue to be

maintained in the same nature, therefore it can be best utilized only to keep it as a land not

exploiting the same by the petitioner except using it only for a small ingress and egress

towards ECR Road so that it will be more beneficial to the temple. Hence, the present order

which is impugned herein passed by the second respondent Commissioner restricting the

land only for 400 Sq.ft instead of 22 cents is totally unwarranted and unjustifiable.

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Therefore, the impugned order is liable to be interfered with and a consequential direction

can be issued to the respondents especially the Commissioner, H.R.&C.E., Department to

execute the lease or renew the lease in favour of the petitioner for the entire stretch of 22

cents at least for three years and in respect of the long lease or outright purchase or for

exchange of land, the petitioner is ready and willing to give any land as exchange, and the

petitioner is also ready to approach the H.R.&C.E., Department as well as the Government

and in this regard both authorities may be directed to consider such request, if any, to be

made by the petitioner, to be decided on merits under Section 34 of the H.R. & C.E., Act , he

contended.

9. Heard the submissions made by Mr.Subba Reddy, learned counsel for the

petitioner, Mr.S.Yashwanth, learned Additional Government Pleader appearing for

respondents 1 and 2 and Mrs.V.Srimathi learned counsel appearing for the third respondent

temple.

10. It is the vehement contention on the part of the learned counsel for the third

respondent right from the beginning that, the third respondent temple has been objecting

for giving the temple land by way of lease in favour of the petitioner since the land is located

strategically abutting the ECR, it may be utilized for any useful purpose at a later point of

time by the temple to fetch more income. Despite those objections having been raised by

the third respondent temple, the H.R.&C.E., Department, through the second respondent

Commissioner has come forward to execute the lease or renew the lease in favour of the

petitioner, however restricting the area only to 400 Sq.ft instead of 22 cents.

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11. Be that as it may. Even an inch of land of the third respondent temple need not

be given to the petitioner by way of lease. The reason being that, if at all the petitioner

wants that temple land to be leased out to the petitioner for the purpose of approach road

towards ECR since a big development has been made in the land belonging to the petitioner,

such kind of approach road is not a temporary phenomena as it can be a permanent affair.

Therefore, if at all lease is granted for three years, the petitioner would definitely require the

lease to be extended for a longer period as it can be a perennial requirement on the part of

the petitioner.

12. Taking into consideration all these consequences only the temple has raised an

objection. Despite the said objection, now through the impugned order since the second

respondent has come forward to give 400 Sq.ft of the land belongs to the temple to the

petitioner for the purpose of approach road, even that was objected. However, since the

H.R.&C.E., Department headed by the Commissioner has passed the order, the temple

authorities cannot object to it at present. Therefore, the stand already taken by the temple

since has been made known to the H.R.&C.E., Department, beyond which the authorities

who are maintaining the temple ie., the Executive Officer, or Managing Committee or Fit

Person, if any, cannot do anything. Therefore, the present order does not require any

interference from this Court, they contended.

13. I have considered the submissions made by the learned counsel for both sides

and have perused the materials placed on record.

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14. Though the temple land is a vacant land and it has been kept as vacant land for

decades together, that does not mean that the land could not be made use for any useful

purpose in future. If we look at the map produced in this regard by the petitioner's side, the

temple land is located strategically in between the ECR Road and the petitioner's property

running for a long distance. Therefore, that kind of long stretch (frontage) would not be

available for those who are having the property, like the petitioner, inside i.e., beyond the

property of the temple, unless they acquire the temple land.

15. Having this strategic location in their mind, the petitioner probably might have

approached the H.R.&C.E., Department to take the entire stretch of land consisting of 22

cents. Though objection was raised in this regard by the third respondent temple, the

H.R.&C.E., Department, for the reasons best known to them, had come forward to lease out

the land for a period of three years of course knowing well that, the three years period is to

be extended as the said land was given on lease only for approach road purpose.

16. If it is for the approach road purpose, that is perennial or permanent in nature.

Therefore, the three years restricted lease period provided in the lease is only to circumvent

the prohibition contemplated under Section 34 of the H.R.&C.E., Act.

17. In this context, Section 34 of the H.R.& C.E., Act is to be taken note of, which

reads thus,

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"34...

Any exchange, sale or mortgage and any lease for a term exceeding five years of

any immovable property, trust belonging to, or given or endowed for the purposes

of any religious institution shall be null and void unless it is sanctioned by the

Comissioner 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 a 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.

2.Provided further that the Commissioner shall not accord such sanction

without the previous approval of the Government.”

18. According to Section 34, any exchange, sale or mortgage and any lease for a term

exceeding five years of any immovable property, trust 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 as being necessary or beneficial to the institution.

19. The second provisio to Section 34 makes it clear that, the Commissioner shall not

accord such sanction without the previous approval of the Government. Therefore, it is the

Government to give nod, for any sale or mortgage and any lease for a term exceeding five

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years of any immovable property, belonging to any religious institution coming under the

purview of the H.R.&C.E., Department.

20. Here in the case in hand, in order to overcome this prohibition under Section 34,

probably the second respondent Commissioner restricted the lease period for three years

knowing well that after three years period, again the petitioner will knock the doors of the

Commissioner to give further extension of the lease.

21. This kind of action taken on behalf of the H.R.&C.E., Department as reflected in

the impugned order of the second respondent Commissioner circumventing the prohibition

made by the legislation under Section 34 of the Act, cannot be approved by this Court.

22. If at all the petitioner wants to get a piece of land only for the purpose of

approach road or ingress and egress from their property to ECR road, it is open to the

petitioner to make such request to the Government through the H.R.&C.E., Department and

in this regard, the Government must hear the views of the temple who is the owner of the

property and if any objection comes, that should be objectively taken into account by the

Government and the Government must be very slow in exploiting the temple property even

for good reasons by giving such relaxation as provided under Section 34 of the H.R.&C.E.,

Act.

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23. Such kind of prohibition as has been contemplated under Section 34 has been

made by the legislature with an intention to protect and preserve the temple properties.

That is the reason why even though the temple is the owner of the property and the

administrative department is headed by the Commissioner, H.R.&C.E., final nod is to be

given only by the Government. That is why the second proviso to Section 34 was inserted

which has come into effect from 22.01.1999.

24. If that legislative intent is taken into account, this Court has no hesitation to hold

that, the present move made by the Commissioner, H.R.&C.E., Department as reflected in

the impugned order for giving lease of even 400 Sq.ft to the petitioner for three years period

is not strictly in consonance with the spirit of Section 34 of the Act, even though such kind of

short term lease for three years is permissible without getting approval from the Government

as contemplated under the second proviso to Section 34 of the Act.

25. Be that as it may. Now the petitioner has challenged the impugned order as if the

petitioner is entitled for the lease or outright purchase or otherwise to utilize the entire

stretch of 22 cents of land belongs to the third respondent temple and therefore, the present

lease of 400 Sq.ft for three years is not acceptable to the petitioner. Therefore, it has come

forward to challenge the impugned order. Absolutely there has been no plausible reasons

available for the petitioner to challenge such order. In fact, this Court is of the considered

view that, the Commissioner ought not to have passed the impugned order giving on lease

even 400 Sq.ft of land despite the objections strictly made by the third respondent temple,

who is none other than the owner of the land concerned.

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26. In these kind of cases, an approach in strict sense, having in mind the legislative

intent which brought the second proviso to Section 34 in the Statute Book, is needed and

therefore, accordingly a conscious decision shall be taken by the Government before

exploiting the temple land towards the third parties' interest.

27. In this context, this Court wants to remind the Government that, already the issue

as to how the temple properties have to be protected, had engaged this Court, where a

special Division Bench in Suo Motu W.P.No.574 of 2015 etc., batch, by order, dated

07.06.2021, has given an exhaustive Judgment, where, in Direction No.33, the following

direction has been given :

"(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."

28. The Division Bench has made it clear that, even for public purpose, the temple

lands cannot be exploited, as the land belongs to temples comes under the purview of HR &

CE Department will have larger interest of the community people of the religious

denomination, for which those temples have been dedicated. If this mandate of the Division

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Bench is taken into account by the Government, while deciding any application being made

by any third party like the petitioner, to seek for any right over the temple property by way of

lease, sale or exchange, the Government even for public interest or for any private interest or

industrial or economic or commercial growth, shall not exploit the temple property. By

reminding these legal position, as has been enunciated by the said decision of the Division

Bench of this Court, the following observations and directions are made.

29. Therefore, this Court feels that, the impugned order, even though is passed by

the second respondent Commissioner paving the way for the lease of 400 Sq.ft in favour of

the petitioner, the said order need not be given effect to further. Instead, it is open to the

petitioner to make an application to the State Government through the H.R.&C.E.,

Department seeking for lease of any small portion of the land of the third respondent temple

for the purpose of ingress and egress and in that case, it can be decided by the Government

after elucidating the views and objections of the temple concerned and in this regard, the

State Government must be slow in taking any decision to exploit the temple properties

towards the progress of any individual, company, firm or industrial houses etc., as the

economic progress of the State, though is important, however not at the cost of the

properties of the God. Therefore, this Court is of the firm view that, the impugned order

need not be given effect to. Instead, the petitioner can be relegated to approach the State

Government to redress their grievance as has been indicated above.

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30. With the above observations and directions, this writ petition is disposed of. No

costs. Consequently, connected miscellaneous petitions are closed.

01.12.2021 Index : Yes Internet : Yes KST

To

1. The Secretary Hindu Religious and Charitable Endowment Department Fort St.George, Secretariat, Chennai -600 009

2. The Commissioner HR & CE Department No.119, Uthamar Gandhi Salai Nungambakkam, Chennai 600 034.

3. The Executive Officer Arulmighu Nithya Kalyana Perumal Temple Thiruvidanthai, Kancheepuram District.

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R. SURESH KUMAR, J.

KST

W.P.No.9328 of 2017

01.12.2021

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