Madras High Court
J.A.C.Raj vs The Commissioner on 8 August, 2022
W.A(MD).Nos.503 and 509 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 08.08.2022
CORAM
THE HONOURABLE MR.JUSTICE S.S.SUNDAR
AND
THE HONOURABLE MRS.JUSTICE S.SRIMATHY
W.A(MD).Nos.503 and 509 of 2022
and
C.M.P(MD).Nos.4572, 4573, 4600 and 4601 of 2022
J.A.C.Raj ... Appellant in W.A(MD).No.503 of 2022
M.Cruz Anthony Martin ... Appellant in W.A(MD).No.509 of 2022
Vs.
1.The Commissioner,
Hindu Religious and Charitable Endowments Department,
No.119, Nungampakkam High Road,
Chennai-34.
2.The Joint Commissioner,
Hindu Religious and Charitable Endowments Department,
Tirunelveli.
3.Arulmigu Agastheeswarar Swamy Temple,
Rep.by its Trustee,
Ambasamudram,
Tirunelveli District. ... Respondents in both petitions
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W.A(MD).Nos.503 and 509 of 2022
COMMON PRAYER: Writ Appeals filed under Clause 15 of Letter
Patent, against the order dated 18.03.2022 passed in W.P(MD).Nos.4687
of 2019 and 4729 of 2022 by this Court.
In both petitions
For Appellant : Mr.R.J.Karthick
For Respondents : Mr.M.Lingadurai,
Special Government Pleader
for RR1 and 2
Mr.V.Thirumal for R3
COMMON JUDGMENT
(Judgment of the Court was delivered by S.S.SUNDAR, J.)
These Writ Appeals are directed against the orders passed by the
learned Single Bench of this Court in W.P(MD).Nos.4687 of 2019 and
4729 of 2022, on 18.03.2022.
2. The appellants were inducted as tenants by the third respondent
in the writ petitions in respect of the properties owned by Arulmigu
Agastheeswarar Swamy Temple in Ambasamudram, Tirunelveli District.
The said Arulmigu Agastheeswarar Swamy Temple is a public temple
which is administered by its Trustees. Though the temple is the public
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temple, it has been recognized as Religious Denomination which is under
the exclusive control of the members of a particular Community, who are
elected as Trustees.
3. It is not in dispute that the appellant in W.A.(MD).No.503 of
2022 is a tenant in respect of the commercial building measuring 1987
sq.ft bearing Door No.14/83, whereas, the appellant in W.A.(MD).No.
509 of 2022 is the son of one Mathavdaiyan, who was inducted as tenant
in respect of the commercial building measuring 5712 sq.ft bearing Door
No.14/75 and a smaller portion with building measuring 70 sq.ft bearing
Door No.14/76.
4. In W.A(MD).No.509 of 2022, the father of the appellant died
and the appellant was inducted as tenant. The rent payable earlier in
respect of the property which is the subject matter in the writ appeal in
W.A.(MD).No.503 of 2022 is Rs.1,910/-, whereas, the rent payable in
respect of the building which is the subject matter in W.A.(MD).No.
509 of 2022 is Rs.5,620/-.
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W.A(MD).Nos.503 and 509 of 2022
5. Though it is stated that the rental agreement was executed
between the appellants and the third respondent in both the cases, the
third respondent herein submitted an application to the second
respondent for fixing the fair rent on 05.02.2018. A Committee was
constituted by including the Joint Commissioner as one of the members,
as per Section 34(A) of the TN HR & CE Act. The Committee has
increased the rent in respect of the premises occupied by the appellant in
W.A.(MD).No.503 of 2022 from Rs.1,910/- to Rs.30,000/-. Similarly, the
Committee has increased the rent in respect of the premises occupied by
the appellant in W.A(MD).No.509 of 2022 from Rs.5,620/- to Rs.
85,000/-. Thereafter, a demand notice was issued by the third respondent
to pay the increased rent with retrospective effect from 01.07.2016. The
demand notice was issued with a warning that the tenants will be vacated
by initiating the proceedings under Sections 78 and 79 of the TN HR &
CE Act, unless they pay the fair rent fixed by the Committee.
6. In the said circumstances, the appellants have preferred the writ
petitions in W.P(MD).Nos.4687 of 2019 and 4729 of 2022. The
appellants have challenged the orders fixing the fair rent mainly on the
ground that the procedures followed for fixing the fair rent are arbitrary
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W.A(MD).Nos.503 and 509 of 2022
and illegal and that the fair rent has been fixed by the Committee without
issuing a show cause notice or a notice informing the tenants about
specific factors that were taken into account for the purpose of arriving at
a fair rent. The appellants have also challenged the right to fix the fair
rent with retrospective effect. The learned Single Judge of this Court
disposed of the writ petitions by directing the appellants to file an appeal
before the Commissioner as provided under the Act, after paying 50% of
the arrears, namely, the fair rent fixed by the Committee. Aggrieved by
the order of the learned Single Judge of this Court, the appellants have
filed these writ appeals.
7. From the proceedings initiated for fixing the fair rent, this Court
notices that the appellants were not given sufficient opportunity before
fixing fair rent by the Committee. The fair rent was based on the
guideline value and the market rent prevailing in that area as determined
by the Committee. However, the appellants were not put on notice about
the factors which were taken into account by the Committee while fixing
the fair rent.
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W.A(MD).Nos.503 and 509 of 2022
8. The learned counsel appearing for the appellants relied upon the
judgment of this Court in the case of M.Gurusamy Nadar vs.
Commisisoner, Hindu Religious and Charitable Endowment
Department reported in 2018(3) MWN (Civil) 167, in which one of us is
also party and this Court has considered similar position after referring to
the judgment of the Hon'ble Division Bench of this Court in the case of
Arulmigu Angala Parameswari & Kasivishwanathaswami Temple
Adimanaiveel House Owners' Association vs. State of Tamil Nadu and
others reported in 2009 (6) CTC 512. The relevant paragraphs are
extracted hereunder:-
14.In the case of Arulmigu Angala Parameswari and
Kasivishwanathaswami Temple Adimanaiveel House Owners
Association vs The State of Tamil Nadu and others, reported in
2009 (6) CTC 512, a Honourable Division Bench of this Court
considered the constitutional validity of Section 34-A of Tamil
Nadu Hindu Religious and Charitable Endowment Act, 1959.
While upholding the validity of Section 34-A, the Honourable
Division Bench has observed as follows:
.......15. The grievance regarding lack of opportunity
must be accepted. We agree with the view expressed in
CHEMPLAST SANMAR case. But, this defect is cured
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by the proceedings dated 2.2.2009. Originally by
proceedings in Na.Ka.NO. 40651/ 2008/ M3 dated
18.7.2008, the Government laid down guidelines for
determination of lease rent and also directed that the
Executive Officer should inform the lessee, the lease
rent as determined as per Section 34A(2) of the Act.
The Government also noted the fact that though 34 A
of the Act had come into force on 10.11.2003, certain
guidelines had not been followed by the committee,
while determining the lease rent and the defects are as
follows:-
1/rl;lg;gphpt[ 34V?d; fPHhd thlif eph;zaf;
FGthy; epaha thlif eph;zak; bra;ag;gLtjpy;iy.
2/rpy ,d';fspy; bray; mYtyh;. mw';;fhtyh;.
cjtp nfhl;lg; bghwpahsh; Mfpnahh;fshy; kl;Lnk
thlif eph;zapj;J mwpf;if mDg;ggLfpwJ/
3/gy ,d';fspy;. khtl;l gjpthshpd; ,irt[ld;
thlif eph;zak; bra;ag;gLtjpy;iy/
4/re;ij kjpgg; pid fUj;jpy; bfhs;shky;.
tHpfhl;o kjpg;gpd; go epahathlif fzf;fPL
bra;ag;gLfpwJ/
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5/murhiz vz;/353 ehs; 04/06/1999 kw;Wk;
murhiz vz;/456 ehs; 09/11/2007 Mfpatw;wpy;
bjhptpf;fg;gl;l tHp Kiwfisf; filg;gpof;;fhkny
thlif eph;zak; bra;ag;gl;L tUfpwJ/
6/murhiz vz;/353 ehs; 04/06/1999 “gj;jp VIII
m”?y; bjhptpf;fg;gl;lthW tPLfs.; fhypkidfs;.
filfs;. Fj;jif thlifapid “thlif eph;zaf;FG”
K:yk; eph;zak; bra;ag;gl;L mw';fhtyh; FGtpd;
ghprPyid me;je;j ,iz Mzah;fshy;
m';fPfhpf;fg;gLtjpy;iy/
7/murhiz vz;/353 ehs; 04/06/1999y; IX tJ
gj;jpapy; bjhptpj;jthW K:d;whz;LfSf;F xUKiw
thlif cah;tpid “thlif eph;zaf; FGtpd; K:yk;
cah;j;jg;gLtjpy;iy/
8/thlif eph;zaf; FGthy; eph;zak; bra;ag;Lk;
thlifapid fzf;fPl;Lj;jhSld; thlifjhuh;fSf;F
mDg;gp xg;g[jy; bgWtjpyi
; y./
16. The Government also noted that if guidelines are not
followed, then the lease rent fixed by the committee is quashed
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W.A(MD).Nos.503 and 509 of 2022
either in appellate proceedings or by proceedings before the
High Court wherein deficiency are pointed out. It was also
noted that this only leads to the delay and loss to the lease rent
for the temple and therefore, three strict guidelines were issued
and it was also indicated that if they were not followed,
stringent action would be initiated. Following this, further
proceedings dated 2.2.2009 as per which, additional and
clarificatory guidelines were issued and therefore, it is found
that opportunity of raising objections is given to the lessee. The
proceedings dated 2.2.2009 reads as follows:-
1/thlif eph;zaf; FGthy; eph;zak; bra;ag;gLk;
thlifapid fzf;fPl;Lj;jhSld; thlifjhuh;fSf;F
mDg;g[jy; ntz;Lk;/
2/fzf;fPl;Lj;jhspy; eph;zapf;fg;gl;Ls;s
thlif. ,lj;jpd; gug;gst[. fl;llj;jpd; gug;gst[.
epykjpg;g[. FoapUg;g[ tzpfj;jd;ik. thlif rjtPjk;.
g[jpa thlif Mfpait Fwpj;J Ml;nrgidfs;
VjkpUg;gpd;. mjid bka;g;gpf;Fk; Mtz';;fSld;.
xUthu fhyj;jpw;Fs; kDjhuh;fs; gjpit mDg;g[jy;
ntz;Lbkd thlifjhuh;fSf;F mwptpgg; [ mDg;gg;gly;
ntz;Lk;.
3/nkny Fwpg;gpll; tprhuizf;F thlifjhuh;fs;
neuoahf tuntz;Lbkd typa[Wj;j njitapy;iy.
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mth;fsplkpUe;J gjpiyg; bgw;W ghprPypj;jhny
nghJkhdJ/
4/nkw;Fwpg;gpl;lgo thlifjhuh;fsplkpUe;J
bgwg;gLk; gjpy;. thlif eph;zaf;FGthy; ghprPypf;fg;gl
ntz;Lk;.
5/chpa fhyj;jp;w;Fs; gjpy; VJk; tutpy;iybadpy;.
,Uf;Fk; Mtz';fspd; mog;gilapy;. epaha thlif
eph;zak; bra;jpl ghprPypf;fgl ntz;Lk;/
6/ghprPyidapd; mog;gilapy; chpa tptu';fis
gjpt[ bra;J. ,Wjpahd thlif eph;za cj;jutpid
thlifjhuh;fSf;F tH';fp xg;g[jy; bgw ntz;Lk;
nkw;fhZk; mwpTiuapd; go. thlifjhuh;fSf;F.
thlif cah;t[ Fwpj;J mwptpg;g[ mDg;gp
Ml;nrgizfs; bgw;W ,Wjpahf thlif eph;zak;
bra;tjd; K:yk;. thlifjhuh;fs; ePjpkd;wj;ij mQqfp
tHf;Ffs; bjhLg;gij jtph;f;fyhk; vdt[k;
bjhptpf;fg;gLfpwJ/ ,r;Rw;wwpf;ifapid bgw;Wf;
bfhz;likf;fhd xg;g[jiy ,t;tYtyfj;jpw;F mDg;g
midj;J rhh;epiy mYtyh;fSk; nfl;Lf;
bfhs;sg;gLfpwhh;fs;
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17. It was clarified that it is not necessary for the lessees
to appear in person and that it is sufficient for them to submit
their written objections to the temple authorities, who will take
note of the objection before fixing the final rent and then it will
go before the committee which will pass the order as per sub
section 2 of Section 34 A of the Act for fixing the lease rent and
intimate the same to the lessee. Therefore, the committee
consisting of the Joint Commissioner and the Executive Officer
or trustees or Chairman of the Board of Trustees as the case
may have to take note of the prevailing market value and the
guidelines and then they will fix the lease rent or refix the lease
rent as the case may be once in three years. The explanation to
sub Section 1 of Section 34 A of the Act also makes it clear that
what is meant by 'prevailing market value'. The Executive
Officer thereafter shall fix the lease rent. He is given the
discretionary power to take note of what the Committee had
recommended and then he shall fix the lease rent and intimate
the same to the lessee. By virtue of the circular extracted above,
the evidence submitted by the lessee will form part of the
material for determining the lease rent. Therefore, we are of the
opinion that lessees have been given sufficient opportunity to
place before the committee the materials regarding fair rental
value and it is only thereafter, that the lease rent would be fixed.
Therefore, the complaint that principle of natural justice is
violated, has been answered by the proceedings dated 2.2.2009.
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The direction contained therein shall be compulsorily
followed.?........
15.It is well settled that an appeal cannot be an overall
cure when the original authority has passed an order in
violation of principles of natural justice. Hence in this case, this
Court has no hesitation to hold that in this case fare rent has
been fixed without following the guidelines and in violation of
principles of natural justice.
16.In the order passed by the Commissioner, HR & CE
Department, Chennai, it is stated that the rent has been fixed
arbitrarily at Rs.6,000/- in the year 1998. When the Executive
Officer of the temple has fixed the fair rent at Rs.6,000/- and
that was the agreement till 2008, the tenant cannot be asked to
pay more than what is agreed. Even, when the respondent is
authorised to revise the rent, that cannot be with retrospective
effect, as the tenant has indefeasible right to vacate the
property, in case he is incapable of paying rent. The tenant
cannot be mulcted by fixing rent arbitrarily with retrospective
effect. Under the Transfer of Property Act, 1882, the rent should
be primarily agreed between the parties. Except by agreement
or a specific contract, there is no legal obligation on the part of
the tenant to pay any rent that may be asked by the landlord.
17.It is no doubt true that the Government can issue
guidelines for the purpose of fixing fair rent. In this case also,
the Government originally framed guidelines in 1998 and
thereafter, on 04.06.1999, vide G.O.Ms.No.353 and
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subsequently the guidelines were revised by G.O.Ms.No.456,
dated 09.11.2007. As per the Government Orders, the increase
in rent once in three years was restricted to 15%. It was only on
account of the fact that the previous Government Order issued
in 1999 was implemented only w.e.f., 01.11.2001, a direction
was issued to the temple authorities to revise the rent w.e.f.,
01.11.2001. Since the revision of rent was suggested from 1998,
a further direction was issued to revise the rent w.e.f.,
01.07.1998 to 30.10.2001 by reducing the fair rent fixed by 15%
from 01.11.2001. This Government Order cannot be interpreted
to enable the temple authorities to revise the fair rent fixed even
in a case where the fair rent was fixed earlier and paid till it
was revised for the first time in 2008. Having regard to the
settled principles of law, this Court is of the view that fixing the
fair rent with retrospective effect is impermissible in law.
However, the proceedings for fixing the fair rent was initiated
for the first time in 2008, and it was promptly approved by the
Joint Commissioner, HR & CE Department, by proceedings
dated 29.04.2008. The tenant is liable to pay the rent fixed by
authorities in terms of the Government Order, w.e.f.,
01.05.2008. As pointed out earlier, the fair rent in this case was
fixed by the Committee without issuing any prior notice to the
tenant and without giving any opportunity to raise his objection
with regard to extent of land in his enjoyment or with regard to
value of the property.
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18.It is relevant to mention the one important aspect of
this matter in this context is that the guidelines issued by the
Government indicated that the fair rent should be on the basis
of the value of the building or on the basis of market rate,
whichever is higher. The value of the building and the land need
not be on the basis of market value, unless, there is a specific
direction in this case by the Government. Having regard to the
position that 0.06% of the value of the building can be the
monthly rent for commercial building let out by the temple
authorities, this Court is of the view that the fair rent may be
even more than what it was fixed by the Committee earlier.
Since the Committee has fixed fair rent in this case without
notice to the tenant, this Court is of the view that the fair rent in
respect of the property occupied by the petitioner as tenant is
fixed arbitrarily and in violation of principles of natural justice.
Without affording any opportunity, the demand notice dated
11.09.2009 was sent through RPAD, which is a clear violation
of principles of natural justice. Hence the impugned order of the
Commissioner, HR & CE Department, Chennai, in A.P.No.27 of
2015, D2, dated 28.03.2016, is set aside. It is open to the temple
authorities to fix the fair rent w.e.f., 01.05.2008 following the
guidelines issued by the Government, vide G.O.Ms.No.456,
dated 09.11.2007 or any other subsequent guidelines or
amendment in accordance with law, after giving an opportunity
to the petitioner to raise his objection with regard to the basic
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factors, which are to be taken into account for the purpose of
fixing fair rent w.e.f., 01.05.2008.
19.Though the Commissioner, HR & CE Department,
Chennai, has confirmed the order of the Joint Commissioner,
HR & CE Department, Madurai approving the rent suggested
by the Fixation Committee, the third respondent, namely, the
Executive Officer of the Temple is directed to place the matter
before the Committee or the officers concerned, after issuing
notice to the petitioner informing the petitioner about the basic
factors, namely, the extent of land, extent of the building,
probable market value of the land, cost of construction and
other details, which are proposed to be taken by the Committee
or the Officers concerned to fix the fair rent and after hearing
whether he has any objection regarding the fixation of fair rent.
Hence, the Civil Revision Petition is allowed and disposed of
accordingly.
9. Even though Section 34 (A) of the Act does not contemplate the
issuance of notice before arriving at a fair rent, the observance of
principles of natural justice is mandatory as the outcome of the
proceedings affects the civil rights of parties. Therefore, the impugned
demand notice fixing fair rent by the Committee cannot be sustained.
Even though this Court expresses its concern and questions the propriety
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of fixing the fair rent with retrospective effect, the learned counsel
appearing for the third respondent fairly admits that the lease rent that
was increased earlier was taken note of and that the existing lease as per
the lease agreement till 31.12.2018 will not be enhanced. It is represented
that a proposal has also been submitted to the Joint Commissioner to the
effect that the enhancement of fair rent will be with effect from
01.01.2019.
10. Taking into consideration the submissions of the learned
counsel appearing for the third respondent and the fact that the fair rent
has been fixed without issuing show cause notice to the appellants as to
the factors which had been taken into account by the Committee while
fixing the fair rent, this Court is of the view that the orders of the learned
Single Judge of this Court in W.P(MD)Nos.4729 of 2022 and 4687 of
2019 dated 18.03.2022 are liable to be set aside and the orders of the
Joint Commissioner fixing fair rent in respect of the premises occupied
by the appellants are also quashed.
11. It is open to the respondent Nos.2 and 3 to initiate fresh
proceedings to fix the fair rent with effect from 01.01.2019. Before
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fixing fair rent, the second respondent is directed to issue show cause
notice specifying the proposed enhancement and the basic factors which
are relevant and taken for fixing fair rent as contemplated under Section
34(A) of the TN HR & CE Act. Only after considering the objections and
the documents that may be filed by the appellants in response to the show
cause notice, the Committee shall pass appropriate orders fixing the fair
rent. It is open to the appellants to challenge the order of the second
respondent fixing fair rent by filing an appeal under Section 34(A) of the
Act as contemplated under the Act. Whatever money that has been paid
by the petitioner on the basis of the fair rent fixed by the respondent,
shall be adjusted towards the amount payable by the appellants for the
period after 01.01.2019.
12. Accordingly, these Writ Appeals are allowed. No costs.
Connected miscellaneous petitions are closed.
[S.S.S.R., J.] [S.S.Y., J.]
08.08.2022
Index :Yes/No
Internet :Yes
ssb
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W.A(MD).Nos.503 and 509 of 2022
To
1.The Commissioner,
Hindu Religious and Charitable Endowments Department,
No.119, Nungampakkam High Road,
Chennai-34.
2.The Joint Commissioner,
Hindu Religious and Charitable Endowments Department,
Tirunelveli.
3.Arulmigu Agastheeswarar Swamy Temple,
Rep.by its Trustee,
Ambasamudram,
Tirunelveli District.
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W.A(MD).Nos.503 and 509 of 2022
S.S.SUNDAR, J.
AND
S.SRIMATHY, J.
ssb
ORDER MADE IN
W.A(MD).Nos.503 and 509 of 2022
08.08.2022
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