Madras High Court
P.S.Educational Society vs The Joint Commissioner on 7 September, 2021
W.P.No.18758 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED:07.09.2021
CORAM:
THE HONOURABLE Mr. JUSTICE M.SUNDAR
W.P.No.18758 of 2021
and
W.M.P.Nos.20047 & 20049 of 2021
P.S.Educational Society
Represented by its Secretary
Mr.K.V.S.Gopalakrishnan,
215, R.K. Mutt Road,
Mylapore, Chennai - 600 004. ... Petitioners
Vs.
1.The Joint Commissioner, (Chennai Zone-II)
Hindu Religious & Charitable Endowments,
No.130, R.K. Mutt Road,
Mylapore, Chennai - 600 004.
2.The Joint Commissioner / Executive Officer,
Arulmighu Kapaleeshwarar Temple,
Mylapore, Chennai - 600 004.
3.Assistant Commissioner
Hindu Religious & Charitable Endowments,
Padi, Chennai - 600 050.
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W.P.No.18758 of 2021
4.The Commissioner,
Hindu Religious & Charitable Endowments
Chennai - 600 034. ... Respondents
Prayer: Petition filed under Article 226 of the Constitution of India
praying to issue a writ of mandamus directing the 1st respondent to
conduct enquiry M.P.No.57 of 2013 strictly in accordance with law and
in compliance with the principles of Natural Justice and further
communicate any orders passed therein to the petitioner with sufficient
time to the petitioner to comply or challenge the same in accordance with
law.
For Petitioner : Mr.K.Harishankar
assisted by Mr.B.Gopinath
For Respondents : Mr.R.Shanmugasundaram
Advocate General assisted by
Mr.NRR.Arun Natarajan
Government Advocate &
Mr.G.Sarath Babu
ORDER
This consent order will dispose of Captioned main Writ Petition
and the two 'Writ Miscellaneous Petitions' ('WMPs' in plural and 'WMP'
in singular for the sake of convenience and clarity) i.e., captioned WMPs.
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W.P.No.18758 of 2021
2. Mr.K.Harishankar, learned counsel assisted by Mr.B.Gopinath,
learned counsel for writ petitioner and Mr.R.Shanmugasundaram, learned
Advocate General instructed and assisted by Mr.NRR.Arun Natarajan,
learned State Counsel and learned counsel Mr.G.Sarath Babu are before
this Court.
3. As the captioned Writ Petition and WMPs are being disposed of
by a consent order, it is not necessary to delve into facts in detail and it
will suffice to set out bare minimum essential facts that are imperative for
appreciating this order.
4. Bare minimum essential facts in a nutshell are that the writ
petitioner is an Educational Society which runs several Educational
Institutions inter alia in the City of Chennai and one of the Educational
Institutions is 'P.S. Higher Secondary School at No.215, R.K. Mutt Road,
Chennai - 600 004' (hereinafter 'said School' for the sake of convenience);
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W.P.No.18758 of 2021
that the said School is a 115 years old School; that the said School is a
Government aided School; that said School is a lessee under 'Arulmigu
Kapaleeshwarar Temple, Mylapore, Chennai' (hereinafter 'said Temple'
for the sake of brevity) qua a vast parcel of vacant land which is used as
playground for said School; that this playground ad-measures 46 grounds
886 sq.ft. and it shall hereinafter be referred to as 'demised playground'
for the sake of convenience and clarity; that the original lease was for a
much larger extent, but a part of that larger extent is now in the
possession of said Temple and therefore, we are now concerned only with
the demised playground; that said Temple terminated the lease on
29.01.1999 and filed a Civil Suit in O.S.No.2632 of 1999 on the file of
the II Assistant Judge's Court, City Civil Court, Chennai; that the said suit
was dismissed by trial Court vide judgment and decree dated 30.09.2005;
that the matter was carried in appeal by way of a regular First Appeal
filed under Section 96 of 'The Code of Civil Procedure, 1908' (hereinafter
'CPC' for the sake of brevity) by said Temple vide A.S.No.255 of 2006 on
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W.P.No.18758 of 2021
the file of the II Additional Judge's Court, City Civil Court, Chennai and
the First Appellate Court also dismissed the Appeal vide judgment and
decree dated 25.07.2006; that said Temple has carried the matter to this
Court by way of a Second Appeal being S.A.No.1252 of 2007 obviously
under Section 100 CPC; that the Second Appeal is now pending; that in
the interregnum, there was an amendment to the 'Tamil Nadu Hindu
Religious and Charitable Endowments Act, 1959 (Tamil Nadu Act
22/1959)' {hereinafter 'TN HR & CE Act' for brevity}; vide amendment
which came into effect on and from 09.12.1996, Section 78 was brought
into the Statute Books qua TN HR & CE Act; that under Section 78, a
lessee whose lease period has elapsed or whose lease is terminated would
also become an encroacher if the lessor continues to remain in the
demised property and if the lessor is a Religious Institution or
Endowment under TN HR & CE Act; that said Temple is a Religious
Institution under TN HR & CE Act is not undisputed; that said Temple is
under the management and control of 'Tamil Nadu Hindu Religious
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W.P.No.18758 of 2021
Department, Government of Tamil Nadu' (hereinafter 'TN HR & CE
Department' for the sake of brevity); that said Temple commenced
proceedings under Section 78 of TN HR & CE Act qua demised
playground and the same is M.P.No.57 of 2013 on the file of the first
respondent; that the jurisdictional Joint Commissioner (first respondent in
this case) is the Statutory Authority vested with powers under Section 78
of TN HR & CE Act to exercise powers thereunder; that the first
respondent reserved orders in M.P.No.57 of 2013 on 31.08.2021; that
said School assailed these proceedings inter alia on the ground that there
was no adjudication in accordance with Section 78 and orders were
reserved based on written submissions submitted by said School; that the
writ petition is now before this Court i.e., Captioned Writ Petition.
5. It is to be noticed that when the above proceedings were
underway, respondents embarked upon the exercise of demanding a sum
of Rs.12,99,88,864/- towards arrears of rent for the period from
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W.P.No.18758 of 2021
01.11.2001 to date by saying that the same is the difference between
contractual rent of Rs.1250/- per month and what according to the
respondents is fair rent for various periods.
6. As already alluded to supra, captioned Wit Petition and WMPs
are being disposed of by a consent order and therefore, it is not necessary
to capture the grounds on which the writ petition is predicated and the
counter submissions on which the grounds are resisted.
7. However, it is imperative to capture the submission of learned
Advocate General, on instructions, as that is also essential to appreciate
this order. Learned Advocate General submitted that demised playground
will continue to be maintained as a playground and that it will not be put
to any other use without leave of this Court. It was also elaborated by
learned Advocate General that this is a policy decision which the
Government has taken, taking into account the location of the demised
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W.P.No.18758 of 2021
playground and the need for a playground for the local populace,
particularly children studying in various Schools in that area/locality and
more particularly Government Schools and Chennai Schools, which do
not have a playground. This makes the task of disposing of captioned
Writ Petition by a consent order fairly simple.
8. In the light of the aforementioned stated position of State,
learned counsel for writ petitioner submitted that it would only be
appropriate that the writ petitioner surrenders possession of demised
playground to the said Temple forthwith as it would serve larger public
utility and larger public interest. Regarding the balance of the larger
extent qua demised playground, possession of which is already with said
Temple, all questions are left open.
9. In the light of the narrative thus far, captioned Writ Petition and
WMPs are disposed of on following terms:
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W.P.No.18758 of 2021
(a) Writ Petitioner i.e., said School shall surrender
possession of said demised playground admeasuring 46
grounds 886 sq.ft. to said Temple forthwith and in any
event, before close of working hours on 09.09.2021.
(b) The claim of Rs.12,99,88,864/- or in other words
little over Rs.12.99 Crores towards difference between
contractual rent and rent fixed is set at naught i.e., set aside
as there will be a directive infra to fix lease rent for demised
playground, strictly in accordance with Section 34-A of TN
HR &CE Act and arrears claim will be on this basis.
Therefore, proceedings of said Temple dated 08.03.2019
made in Na.Ka.722/1989/A4 is set aside without expressing
any opinion on the merits of the matter merely to facilitate
fixation of lease rent for demised playground strictly in
accordance with Section 34-A.
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W.P.No.18758 of 2021
(c) Respondents shall fix lease rent for demised
playground strictly in accordance with Section 34-A of TN
HR & CE Act (which kicked in on and from 10.05.2003) as
expeditiously as possible and in any event within eight
weeks from today i.e., on or before 02.11.2021.
(d) Said School i.e., writ petitioner shall clear arrears
subject to its statutory rights of appeal (if it becomes
necessary) post fixation of lease rent in accordance with
Section 34-A.
(e) To show the bona fides, writ petitioner will pay a
sum of Rs.50,00,000/- (Rupees Fifty lakhs only) to said
Temple and this will be on account towards rental arrears
subject to fixation of lease rent in accordance with Section
34-A of TN HR & CE Act.
(f) Aforesaid sum of Rs.50,00,000/- (Rupees Fifty
lakhs only) will be paid in three instalments of
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W.P.No.18758 of 2021
Rs.18,00,000/- (Rupees Eighteen lakhs) on or before
13.09.2021, Rs.16,00,000/- (Rupees Sixteen lakhs) on or
before 31.10.2021 and the balance Rs.16,00,000/- (Rupees
Sixteen lakhs) on or before 30.11.2021.
(g) It is open to said Temple/respondents to let out
demised playground to other Schools/Educational
Institutions on daily rent qua terms that are deemed
appropriate. This will include giving it free of charges to
Chennai Schools or any other School at the discretion of the
State.
(h) The above option will be available to the writ
petitioner also and priority shall be given to said School to
the extent it is practicable regarding Sports day, Annual day
or any other recurring Annual function that the said School
has been conducting hitherto.
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W.P.No.18758 of 2021
(i) If there is any request or representation from the
writ petitioner qua demised playground, it is open to the
State to consider the same on its own merits and in
accordance with law without this order coming in the way.
In other words, this order will neither impede nor serve as
an impetus if such representation is made. This limb of the
operative portion is made as it is a consent order and
therefore, it will not serve as a precedent in cases of similar
nature.
(j) The Second Appeal being S.A.No.1252 of 2007
will either be withdrawn or closed as infructuous and State
which is the Appellant undertakes to do the needful in this
regard.
(k) On possession being handed over by writ
petitioner / said School to said Temple on or before
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W.P.No.18758 of 2021
09.09.2021 aforementioned M.P.No.57 of 2013 on the file
of first respondent will be closed as infructuous.
10. Captioned Writ Petition is disposed of by this consent order on
above terms. No costs. Consequently, connected Writ Miscellaneous
Petitions are closed.
07.09.2021
Index : Yes / No
Speaking Order : Yes / No
Sgl
To
1.The Joint Commissioner, (Chennai Zone-II)
Hindu Religious & Charitable Endowments,
No.130, R.K. Mutt Road,
Mylapore, Chennai - 600 004.
2.The Joint Commissioner / Executive Officer,
Arulmighu Kapaleeshwarar Temple,
Mylapore, Chennai - 600 004.
3.Assistant Commissioner
Hindu Religious & Charitable Endowments,
Padi, Chennai - 600 050.
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W.P.No.18758 of 2021
M.SUNDAR, J.
Sgl
4.The Commissioner,
Hindu Religious & Charitable Endowments
Chennai - 600 034.
W.P.No.18758 of 2021
07.09.2021
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