Madras High Court
Kongu Educational Trust vs The Commissioner on 19 January, 2022
WP(MD) Nos.17092 and 19582 of 2016
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 19.01.2022
CORAM
THE HON'BLE MR. JUSTICE M.SUNDAR
W.P(MD)Nos.17092 and 19582 of 2016
and
W.M.P.(MD)Nos.12401, 14122, 14192 of 2016 and 15327 of 2017
Kongu Educational Trust,
Rep. by its Chairman
M.Nachimuthu ... Petitioner
(in both W.Ps)
Vs.
1.The Commissioner,
Hindu Religious and
Charitable Endowment Department,
Chennai.
2.The Joint Commissioner,
Hindu Religious and
Charitable Endowment Department,
Trichy Division, Trichy.
3.The Hereditary Trustee,
A/M Balasubramaniaswamy Temple,
Vennaimalai, Karur Taluk and District.
4.The Executive Officer,
A/M Balasubramaniaswamy Temple,
Vennaimalai, Karur Taluk and District. ... Respondents
(in both W.Ps)
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5. The District Registrar,
O/o. District Registration Department,
Karur. ... Respondent
in W.P(MD) No.19582 of 2016
PRAYER in W.P(MD) No.17092 of 2016: Petition filed under Article 226
of the Constitution of India, for the issuance of a Writ of Certiorarified
Mandamus, calling for the records of the fourth respondent's impugned
communications dated 02.12.2015 and 28.06.2016 and quash the same as
illegal, arbitrary, without the authority of law and against the provisions of
the Tamil Nadu Hindu Religious and Charitable Endowment Act, 1959 and
the circular of the first respondent herein bearing Na.Ka.No.
40651/2008/M3/Dated 02.02.2009.
PRAYER in W.P(MD) No.19582 of 2016: Petition filed under Article 226
of the Constitution of India, for the issuance of a Writ of Certiorarified
Mandamus, calling for the records of the impugned proceedings of the Joint
Committee dated 12.02.2015 comprising of respondents 3 to 5 and the
consequential proceedings of the second respondent in Se.Mu.Pa.Mu.No.
1795/2015/A2 dated 12.02.2015 fixing the fair rent and quash the same as
illegal, arbitrary, without the authority of law and against the provisions of
the Tamil Nadu Hindu Religious and Charitable Endowment Act, 1959 and
consequentially forbearing the respondents herein from interfering with the
peaceful possession and enjoyment of the property by the petitioner without
following the due process of law.
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WP(MD) Nos.17092 and 19582 of 2016
For Petitioner : Mr.V.Srikanth
for Mr.R.S.Pandiya Raj
(in both W.Ps)
For Respondents : Mr.M.Lingadurai,
Spl. Govt. Pleader for R1 & R2
and for R5 in W.P(MD) No.19582/16
Mr.V.R.Shanmuganathan for R4
(in both W.Ps)
No Appearance for R3 (in both W.Ps)
COMMON ORDER
This common order will govern the captioned two main writ petitions
and the captioned writ miscellaneous petitions (WMPs) thereat.
2. In this order, W.P(MD) No.17092 of 2016 shall be referred to as I-
WP and W.P(MD) No.19582 of 2016 shall be referred to as II-WP (both for
the sake of convenience and clarity).
3. Factual matrix in a nutshell containing facts that are imperative for
appreciating this order are; that 'Arulmigu Balasubramaniaswamy Thiru
Koil, Manmangalam Taluk, Karur District' ('said Temple' for the sake of
convenience and clarity) is the subject matter of the captioned writ petitions;
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that a vast extent of 'land admeasuring 7.81 acres or thereabouts situate in
Survey No.269 in Kadhapparai Village in Manmangalam Taluk, Karur
District' ('demised land' for the sake of convenience and clarity) admittedly
belongs to said Temple; that lease, fixation of lease rent for said demised
land and disputation qua the same is the central theme of the lis in the
captioned writ petitions; that the writ petitioner has been described as a
Trust; that this Court is informed that writ petitioner Trust is running a
School; that writ petitioner Trust entered into a registered lease agreement
dated 19.06.1995 with legal heirs of one late Ramasamy Gounder taking on
sublease said land for a period of thirty years; that this Court is informed by
writ petitioner that said demised land is being used as a playground for a
school run by the writ petitioner Trust, but the respondents say it is being
used as a car park (to be noted, this is a factual disputation); that post
sublease there was a communication dated 08.12.2005 from hereditary
trustee of said Temple to the writ petitioner calling upon the writ petitioner
to disclose the rent that is being paid qua demised land and saying that no
construction should be put up; that writ petitioner replied vide
communications dated 20.12.2005, 29.06.2005; that thereafter vide
proceedings dated 28.11.2008 and 17.08.2001, lease rent was quantified qua
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demised land; that the lease rent for the period from 01.07.2008 to
30.06.2011 was Rs.4130/- per month; that the writ petitioner received a
communication dated 02.12.2015 from the Executive Officer of said Temple
saying that lease rent for demised land has been fixed at Rs.2,04,122/- per
month and calling upon the writ petitioner to pay arrears computed at this
rate of Rs.2,04,122/- lakhs per month; that the writ petitioner responded
vide communication dated 04.01.2016 addressed to the Executive Officer of
said Temple but receipt of this communication is disputed by the Executive
Officer of said Temple (there shall be some discussion on this infra); that
thereafter the Executive Officer of said Temple sent a communication dated
28.06.2016 calling upon the writ petitioner to pay arrears which by then had
swelled to a little over Rs.37.99 lakhs; that in the typed set of papers filed
along with the counter-affidavit/vacate stay WMP in I-WP, writ petitioner
came to know that Lease Rent Fixation Committee had fixed lease rent for
demised land on 12.02.2015; that on same 12.02.2015, the jurisdictional
Joint Commissioner of the 'Tamil Nadu Hindu Religious & Charitable
Endowments Department' (hereinafter referred to as 'TNHR&CE Dept' for
the sake of convenience and clarity) had written a letter about this fixation
of lease rent; that on coming to know about the fixation of lease rent on
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12.02.2015, II-WP was filed by writ petitioner assailing 12.02.2015 lease
rent fixation proceedings and 12.02.2015 communication from jurisdictional
Joint Commissioner; that when the I-WP was moved, this Court granted a
blanket stay qua lease rent vide an interim order dated 09.09.2016 in
WMP(MD) No.12401 of 2016; that thereafter in and by a further interim
order dated 21.09.2017, this Court directed 50% of the arrears as on that day
to be deposited; that this Court is informed that such deposit has since been
made; that the interim order is operating; that post completion of pleadings
captioned writ petitions and WMPs thereat are now before this Court.
4. Mr.V.Srikanth, learned counsel appearing on behalf of counsel on
record for writ petitioner in both the captioned writ petitions,
Mr.M.Lingadurai, learned Special Government Pleader on behalf of the
Commissioner, Joint Commissioner of TNHR&CE Dept and District
Registrar, Karur (fifth respondent in II-WP), Mr.VR.Shanmuganathan,
learned private counsel appearing on behalf of Executive Officer of said
Temple (fourth respondent in both writ petitions) are before this Court. To
be noted, the hereditary trustee of said Temple has been arrayed as third
respondent in both writ petitions, hereditary Trustee has been duly served,
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the third respondent is shown in the cause list, but there is no representation.
This Court is informed that the third respondent has not entered appearance
through any counsel. Service and pleadings are duly completed and
therefore with the consent of all the counsel, both the captioned writ
petitions were taken up heard out.
5. As would be evident from the factual matrix in a nutshell set out
supra, there are two impugned proceedings in each of the writ petitions. The
facts being common and the entire issue arising out of one bundle of facts,
learned counsel for writ petitioner in his campaign against the impugned
orders, notwithstanding very many averments in the writ affidavit and
several grounds raised in writ affidavit made pointed submissions, a
summation of which is as follows:
(a) The first impugned order in I-WP dated 02.12.2015
does not contain any annexures. The writ petitioner
nonetheless sent objections dated 04.01.2016 but a demand
dated 28.06.2016 was made without considering the
objections;
(b) On coming to know about the lease rent fixation on
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12.02.2015 vide counter and typed set papers of I-WP and a
communication qua the same vide a letter of the
jurisdictional Joint Commissioner (JC for brevity), II-WP
was filed assailing the 12.02.2015 lease rent fixation and
communication of JC;
(c) The lease rent fixation is bad as it has taken 0.30
percentage of the value as indicia qua demised land whereas
it should have been 0.10% as the demised land is being used
by a educational institution and if the writ petitioner had
been given an opportunity before fixation of lease rent, the
writ petitioner would have inter-alia raised this point;
(d) No opportunity qua lease rent fixation has been
given to writ petitioner and therefore there is an infraction of
Angala Parameswari principle being observations in
Arulmigu Angala Parameswari and
Kasivishwanathaswami Temple Adimanaiveal House
Owners Assn. v. State of Tamil Nadu, reported in (2009) 6
CTC 512 case law resulting in NJP (Natural Justice
Principle) violation.
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6. In response to the above submissions, learned State counsel made
submissions, a summation of which is as follows:
(a) The very occupation of demised land by writ
petitioner is illegal as the writ petitioner has entered into a
sublease with lessees (with no consent or permission to
sublet) under said Temple which is impermissible.
Therefore, writ petitioner cannot now be heard to contend
that there is infraction of Angala Parameswari principle or
claim as a matter of right qua the status and legal character
of a lessee;
(b) On instructions, it was also submitted that
proceedings under section 78 of 'the Tamil Nadu Hindu
Religious and Charitable Endowments Act,
1959' (hereinafter referred to as 'TNHR&CE Act' for
brevity) have already been kick-started;
(c) The writ petitioner is not running a free school
and it will be evident even from the 04.01.2016
communication (receipt of which disputed by the Executive
Officer of said Temple) that the writ petitioner is in fact
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charging fees from the students. Therefore, writ petitioner
does stand to gain by using demised land of said Temple. In
other words, writ petitioner is exploiting the demised land
and generating income;
(d) The arrears of rent as of now is over Rs.1.50
crores and that is one of the grounds which have resulted in
kick-starting proceedings under Section 78 of TNHR&CE
Act qua the deeming fiction by which even a lessee put in
possession legally and legitimately would become an
encroacher on termination, cancellation or efflux of time.
This is an argument on a demurrer without prejudice to the
contention that the occupation of demised land by the writ
petitioner itself is illegal;
(e) There is alternate remedy available to the writ
petitioner vide Section 34-A(3) of TNHR&CE Act, the writ
petitioner has bypassed the same, come to this Court,
obtained an interim order and is squatting for several years
on the demised land of said Temple which is a vast extent
of land admeasuring 7.81 acres.
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7. Mr.VR.Shanmuganathan, learned private counsel appearing on
behalf of counsel on record for the Executive Officer of said Temple made
submissions, a summation of which is as follows:
(a) Angala Parameswari principle does not say that
the writ petitioner should be given an opportunity before
fixation of lease rent. The Executive Officer has discretion
qua lease rent fixed by the Committee and communicate the
same to the lessee, thereafter the lessee can send objections
(if any). In the case on hand, on 04.01.2016 objections were
never received by the Executive Officer. Though it is
addressed to the Executive Officer, even according to what
has been placed before this Court, the acknowledgment
appears to be made only by some one who has described
himself / herself as 'vOj;jh;'. Receipt of 04.01.2016
communication is categorically denied. In any event, this
communication does not raise any objection of any
substance. It was pointed out that the position that no
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objections were received has been articulated in paragraph
10 of the counter-affidavit which has been used to support
the vacate stay WMP;
(b) The Natural Justice Principle (NJP) point is well
answered by 02.12.2009 clarification and this is being
recorded in Angala Parameswari case itself. In the case on
hand, the writ petitioner not having chosen to respond to the
02.12.2015 communication from the Executive Officer (first
impugned order in I-WP) cannot now make a complaint
about 12.02.2015 lease rent fixation proceedings and Joint
Commissioner's communication (first and second impugned
orders in II-WP) as Angala Parameswari principle even if
applied to the case on hand stands satisfied;
(c) Learned counsel pressed into service an order
dated 09.12.2021 made by this Court in W.P(MD) No.20031
of 2013 (MK.M.Muthusamy's case) arising out of Section
34-A proceedings, wherein writ petitioner was relegated to
alternate remedy.
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8. By way of reply submissions, learned counsel appearing on behalf
of counsel for writ petitioner submitted as follows:
(a) Lease rent fixation having been made on
12.02.2015 has been communicated ten months later only on
02.12.2015;
(b) The order of this Court dated 09.12.2021 in
W.P(MD) No.20031 of 2013 (MK.M.Muthusamy's case) is
clearly distinguishable as that is a case where the writ
petitioner himself by his own volition took a stand that he is
going to convert the demised land into plots.
9. This Court carefully considered the aforementioned rival
submissions. The discussion and dispositive reasoning is as follows:
(a) At the outset, in the pleadings as well as in the
proceedings, the term 'fair rent' in English and 'epaha thlif'
in Tamil have been used. The proceedings admittedly turn on
Section 34-A of TNHR&CE Act, therefore it is not 'fair rent' or
'epaha thlif' but it is 'lease rent' i.e., 'Fj;jif thlif'.
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The caption of Section 34-A of TNHR&CE Act itself makes this
clear as it reads 'Fixation of lease rent'. Jurisprudentially, there
is a difference between 'fair rent' and 'lease rent'. Fair rent is a
term used in erstwhile Rent Control Act i.e., the Tamil Nadu
Buildings (Lease and Rent Control) Act, 1960 vide Section 4
and a specific formula is laid down there for computation of rent
qua tenancies. Lease rent is a concept which was brought into
the TNHR&CE Act on and from 10.05.2003 by way of an
amendment and TNHR&CE Act is not only a special statute but
is also a self contained code as held in a long line of authorities
i.e., catena of case laws where this Court has taken a clear
categoric, unambiguous view that TNHR&CE Act is a self
contained Code and an illustrative but not exhaustive list of this
line of case laws is as follows:
(i) In R.Lakshmi Narasimha Bhattar v. The
Commissioner, HR&CE case, reported in 2011 SCC On
Line Mad 2474, while inter-alia dealing with a honour
(during 'Viswaroopa Dharsanam' in Arulmigu
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Aranganatha Swamy Thirukovil Srirangam, Trichy) and
while referring to earlier orders vide Chapter V inquiry
proceedings after holding that remedy is by way of
statutory revision under Section 21, a learned Single
Judge held that TNHR&CE Act is a self contained code.
Most relevant portions are contained in paragraphs 25
and 27 and the same read as follows:
Relevant portion in paragraph 25:
'...Ultimately, if at all the petitioner's grievance
to establish an honour attached to his office if any held
it can be gone into only by instituting a proceedings
under Section 63(e) of the TN HR&CE Act followed by
a suit under Section 70(1) and a further appeal to this
court under section 70(2) of the Act. Merely accusing
the Joint Commissioner cum Executive Officer as
biased or contending that the remedy by way of
revision need not be availed since the Joint
Commissioner cum Executive Officer has no
jurisdiction to pass orders cannot be countenanced by
this court.
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Paragraph 27:
27. In fact the petitioner's hereditary right to
receive honour is seriously under challenge by the
temple management by relying upon the Tamil Nadu
Act 2/1971 and also the allegation was that Rengesa
Prohida service is done only by temple servants and
hereditary succession over such Kaingaryams is not
recognised under law. The so-called custom pleaded
was also broken many times and reading of
Panchangam was done by other families. All the more
reasons, the petitioner has to only approach the
authority under the Act and cannot bypass the Act. The
Act is the self contained code. Only after exhausting
all the remedies, a statutory appeal to this court is
available over the action of the authorities. Under
these circumstances, W.P.(MD) Nos. 9202 and 9263 of
2011 are also liable to be rejected.'
(Underlining made by this Court for ease of
reference)
(ii) As there are long line of authorities as alluded to
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supra for the proposition that TN HR&CE Act is a self
contained Code, this Court deems it appropriate to give
a list of case laws alone in order to avoid this order
becoming verbose, which is as follows:
(i)order dated 21.06.2016 in W.P(MD) No.
10840 of 2016 vide V.Subramanian v. The Joint
Commissioner, HR&CE Department case
[Paragraph 7];
(ii)Palanichamy v. The Commissioner,
HR&CE Department case, reported in 2016 SCC
OnLine Mad 21977 [Paragraph 30];
(iii)M/s.Temple Worshippers Society v.
Government of Tamil Nadu reported in 2017 SCC
OnLine Mad 7178 [Paragraph 5(i)];
(iv)order dated 09.11.2021 in W.P.(MD)No.
20109 of 2021 vide R.S.Mani v. The Joint
Commissioner [Paragraph 11];
(v)order dated 26.04.2019 made in
W.P(MD) No.10392 of 2019 reported in 2019
SCC OnLine Mad 10975 (C.Rajamohan Vs.
Commissioner and another) [Paragraph 2].
(b) Therefore, this Court proceeds on the basis that it is
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a case of fixation of lease rent under Section 34-A of
TNHR&CE Act and disputation to the same. The arguments
made by counsel on either side which has been captured supra
will make it clear that if reduced to bare bones, the bone of
contention is NJP or in other words, the writ petitioner not being
given an opportunity to object qua fixation of lease rent for
demised land belonging to said Temple. In this regard, the NJP
facet is dealt with in paragraphs 14 to 17 of Angala
Parameswari case law. In fact these four paragraphs have been
clearly captioned Plea Regarding Natural Justice. Paragraphs 14
to 17 of Angala Parameswari read as follows:
14. Plea Regarding Natural Justice: The provision as it
stands affords no opportunity to the lessee before the rent is
fixed. It is at the time of the Appeal that hearing is provided.
In Chemplast Sanmar Limited v. The Appellate Authority, Tamil
Nadu Pollution Control Board, 2008 (4) CTC 793, the Division
Bench held,—
“……………. In any event, as stated by Sir William Wade,
when Natural Justice was violated at the first stage, it
cannot be held that a fair Appeal can cure such an unfair
Trial. In this context, the decision of the Hon'ble Supreme
Court reported in Institute of Chartered Accountants of
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India v. L.K. Ratna, AIR 1987 SC 71, assumes greater
significance inasmuch as an Appeal cannot be an overall
substitute in respect of the breach of fundamental
procedure committed in the riginal proceedings. To
strengthen the above principle, an English decision
reported in Leary v. National Union of Vehicle Builders,
1971 Chncellory 34, can be aptly quoted, wherein
Megarry, J., has held that, as a general rule, a failure of
Natural Justice in the trial body cannot be cured by a
sufficiency of Natural Justice in the Appellate body.”
Applying the above well established principles to the case on
hand, the violation of Principles of Natural Justice which had
occurred at the level of the original authority cannot be said to
have been cured at the level of the Appellate Authority. We have,
therefore, no hesitation to hold that the order of the First
Respondent cannot be said to have set right the violation
committed at the level of the original authority. Since the
Petitioner is entitled to substantiate its stand that the consent
obtained by it in the order dated 5.5.2006/16.11.1998 was passed
on the real claim that the existing power plant operated by diesel
is going to be operated in future by the usage of coal and that the
same cannot be construed as a new power plant, in all fairness,
the First Respondent after reaching the conclusion that the
Pollution Control Board breached the Principles of Natural
Justice ought to have set aside the order dated 22.1.2008 and
remitted the matter back to the Pollution Control Board for fresh
hearing………………….”
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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 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 34-A(2) of the Act. The Government
also noted the fact that though Section 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:
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16. The Government also noted that if guidelines are not
followed, then the lease rent fixed by the Committee is quashed
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:
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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
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violated, has been answered by the proceedings dated
2.2.2009. The direction contained therein shall be
compulsorily followed.'
(c) The penultimate paragraph of Angala Parameswari is
also relevant, the same is paragraph 25 and it reads as follows:
'25. In view of the proceedings dated 2.2.2009, it is clear
that the Government intends to give an opportunity to the lessees
before the rent is fixed. Therefore, Writ Petitioner is given one
week time from the date of receipt of copy of this order to give
their objections supported by whatever documents they have in
their possession and on receipt of the same, the authorities may
fix or refix the lease rent in accordance with law.'
(d) In the light of the aforementioned excerpted relevant
portions of Angala Parameswari case law, there can be no doubt or
difficulty in accepting the submissions of learned private counsel
for Executive Officer that there is no concept of giving opportunity
before fixation of lease rent. It is clear that the lease rent has to be
communicated to the tenant and thereafter, if the tenant/lessee
objects to the same that has to be considered. In this case, the
04.01.2016 objections of the writ petitioner has become subject
matter of disputation as alluded to supra. A copy of 04.01.2016
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objections has been placed before this Court and a scanned
reproduction of the same is as follows:
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(e) A perusal of the above will reveal that it appears to
be received (if at all and if that be so) by 'vOj;jh;'. In paragraph
10 of the counter-affidavit filed in support of vacate stay WMP,
it has been averred that writ petitioner has not sent any
objections. There is nothing to demonstrate that this 04.01.2016
has been served on the Executive Officer. In any event, this
being a factual disputation, it may not be appropriate to give a
conclusive finding on whether it is actually received by the
Executive Officer of said Temple. It is in this context that the
alternate remedy under Section 34-A(3) becomes significant.
The appellate authority could have well looked into the records
and could have come to a conclusion regarding this factual
disputation. However, prima facie even according to the
aforementioned submissions, it appears to have been received by
'vOj;jh;' and there is nothing to demonstrate that it has been
duly served on the Executive Officer of said Temple who is an
Officer within the meaning of Section 45 of TNHR&CE Act
with certain defined duties and responsibilities. Executive
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Officer is also a defined term and it has been defined vide
section 6(9) which reads as follows:
'(9)”executive officer” means a person who is
appointed to exercise such powers and discharge such
duties appertaining to the administration of a religious
institution as are assigned to him by or under this Act or the
rules made thereunder or by any scheme settled or deemed
to have been settled under this Act;'
(f) Be that as it may, the contents of writ petitioner's
letter dated 04.01.2016 as rightly pointed out by learned State
counsel makes it clear that the writ petitioner is not running a
free school and in fact charging fee as all that has been said by
writ petitioner is 'Fiwe;j fl;lzj;jpy; fy;tp
fw;g;gpg;gjw;fhf Vw;gl;lJ'.
(g) As alluded to supra, interim order was granted by
this Court on 09.09.2016 and the same reads as follows:
'Mr.N.S.Karthikeyan, learned Addl.Govt.Pleader
takes notice for R1 and R2.
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WP(MD) Nos.17092 and 19582 of 2016
The petitioner is directed to take private notice to R3 and
R4 returnable by 21.09.2016.
Post on 21.09.2016.
Till then, the respondents are directed not to demand the
increased rent.'
(h) When a condition was imposed, another Hon'ble
Single Judge of this Court vide 21.09.2017 order wrote as
follows:
'Heard the learned counsel on either side.
2. It is represented by the learned Special
Government Pleader appearing for H.R.&C.E., that
the total extent of land is more than 8 acres and the
monthly rent fixed earlier was only Rs.4,000/-.
According to him, if a fair rent is fixed, it will surely
fetch more than Rs.2,04,122/- towards monthly rent
and therefore, the impugned orders came to be issued
for remittance of such amount, which are impugned in
these writ petitions.
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WP(MD) Nos.17092 and 19582 of 2016
3. For such a large extent of land, the meagre
payment of Rs.4,000/- as monthly rent cannot be
accepted at any cost and therefore, the petitioners are
directed to deposit 50% of the total demand till today,
on or before 10.10.2017, failing which, liberty is
granted to the respondents to initiate appropriate
action against the petitioners for recovery of the
property from them.
Call on 11.10.2017 for reporting compliance.'
(i) This Court is able to notice the sentiments articulated
vide 21.09.2017 proceedings / orders. The argument predicated
on applicable indicia being 0.10 and not 0.30 is essentially based
on G.O.Ms.No.353 dated 04.06.1999. Clause (6) is relevant and
the same reads as follows:
'nghJ Nritahf elj;jg;gLk; fy;tp
epWtdq;fs;/eypTw;Nwhh; eyd; fUjp elj;jg;gLk;
njhz;L epWtdq;fs; Mfpatw;wpw;Fk; nfhLf;fg;gL;k;
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WP(MD) Nos.17092 and 19582 of 2016
fhyp epyq;fSf;F ,lj;jpd; re;ij kjpg;gpy; 0.10%
Fj;jif t#ypf;fg;glNtz;Lk;.'
(j) The argument of learned counsel for writ petitioner
predicated on the aforementioned Clause (6) does not impress
this Court as that applies only to 'nghJ Nritahf elj;jg;gLk;
fy;tp epWtdq;fs;/eypTw;Nwhh; eyd; fUjp elj;jg;gLk;
njhz;L epWtdq;fs';. As alluded to supra, even in the
04.01.2016 communication (receipt disputed by respondents) the
writ petitioner has admitted that fee is being charged. Therefore,
it will definitely not qualify qua 'nghJ Nritahf elj;jg;gLk;
fy;tp epWtdq;fs;;'.
(k) Regarding the opportunity issue, even according to
Angala Parameswari principle, the same has been given a
quietus vide 02.02.2009 proceedings of II-WP which reads as
follows:
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WP(MD) Nos.17092 and 19582 of 2016
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WP(MD) Nos.17092 and 19582 of 2016
(l) In the case on hand, regarding the 04.01.2016
purported objections said to have been sent, discussion and
dispositive reasoning have already been set out supra.
(m) On the alternate remedy aspect, Angala
Parameswari no doubt says that NJP cannot be set right by
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WP(MD) Nos.17092 and 19582 of 2016
giving an opportunity in the appeal but in the case on hand, the
factual scenario is different as receipt of 04.01.2016 purported
objections said to have been sent by the writ petitioner itself is
disputed and such factual disputation could have been examined
by the appellate authority. Therefore, the appeal remedy gains
significance as already alluded to supra if not in terms of
opportunity but in terms of examining the factual disputation.
10. Notwithstanding the discussion and dispositive reasoning thus far,
in the considered view of this Court, there is one aspect of the matter which
is clearly a clincher in the case on hand. Before setting out what that the
clincher is, this Court reminds itself of the celebrated Constitution Bench
judgment in Padma Sundara Rao case being Padma Sundara Rao Vs.
State of Tamil Nadu case reported in (2002) 3 SCC 533 which deals with
how a case law or precedent has to be looked into. Relevant paragraph in
Padma Sundara Rao case law is paragraph 9 and the same reads as follows:
'9.Courts should not place reliance on decisions without
discussing as to how the factual situation fits in with the fact
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WP(MD) Nos.17092 and 19582 of 2016
situation of the decision on which reliance is placed. There is
always peril in treating the words of a speech or judgment as
though they are words in a legislative enactment, and it is to be
remembered that judicial utterances are made in the setting of the
facts of a particular case, said Lord Morris in Herrington Vs.
British Railways Board (1972) 2 WLR 537. Circumstantial
flexibility, one additional or different fact may make a world of
difference between conclusions in two cases.'
11. In the Angala Parameswari case, as would be evident from the
factual narrative captured in paragraph 3, it is clear that there was no
disputation that anybody is an illegal occupant or that there was no
disputation about the character of possession of the persons in possession of
temple lands. Paragraph 3 of Angala Parameswari case reads as follows:
'3. The facts of the case are as follows:
The members of the Appellant Association in the Writ Appeal and
the Petitioner in the W.P. are Tenants of Arulmigu Angala
Parameswari and Kasivishwanathaswami temple. According to
them, they and their predecessors-in-interest have been in
occupation of the temple lands for several decades. Originally the
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WP(MD) Nos.17092 and 19582 of 2016
lease rent was 50 paise per half ground. They are the owners of
the superstructures. In 1991, the lease rent was enhanced to a
mere Rs. 25/- per month. The members objected even to that. The
temple acceding to their objections, reduced the rent to a pitiful
sum of Rs. 5/- per month. According to the Petitioners they have
been paying this amount without fail. On 18.4.2005, the Joint
Commissioner fixed the fair rent and the Executive Officer
communicated the decision to the lessees in 2005. The liability to
pay the fair rent so fixed came into effect from 1.11.2001. The
lessees were called upon to pay the arrears of rent within 15 days
of receipt of the letter. The lessees were also informed that if they
were aggrieved they could file an Appeal under Section 34-A of
the HR & CE Act. One of the members filed an Appeal. It was
returned for want of pre-deposit. Immediately the Association filed
W.P. No. 25992/2005 for a declaration that Section 34-A(3) of the
Act is violative of Article 14 and for a direction to the Respondents
to entertain the Appeal without insisting on the pre-deposit.'
12. In the case on hand the clincher is, the purported sublease dated
19.06.1995 referred to supra. There is nothing on record to show that the
heirs of late Ramasamy Gounder had any authority to sublet the demised
land of said Temple that too a vast extent of 7.81 acres and more so for
thirty long years. Assuming, on a demurrer, even if there was any authority
for sublease, there could have been no lease deed dehors Section 34 of
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WP(MD) Nos.17092 and 19582 of 2016
TNHR&CE Act. Section 34 of TNHR&CE Act reads as follows:
'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 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 consider by [the Commissioner] :
[Provided further that the Commissioner shall not accord
such sanction without the previous approval of the Government].'
13. Section 34 of TNHR&CE Act is lethal in the case on hand. The
reason is Section 34 does not merely make it mandatory to get the
permission of the Commissioner (albeit with the prior consent of the
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WP(MD) Nos.17092 and 19582 of 2016
Government for any lease exceeding five years) but it goes a step further. It
goes a step further because it clearly declares that any lease executed in
violation of Section 34 is null and void. In other words, any lease is null and
void unless it is sanctioned by the Commissioner as being necessary or
beneficial to the institution under section 34 of TN HR&CE Act and such
sanction being accorded by Commissioner is also statutorily circumscribed
by the second proviso of section 34 which says that the Commissioner shall
not accord such sanction without previous approval of the Government.
Nothing of that kind is there in the case on hand and therefore, writ
petitioner's lease deed dated 19.06.1995 under which it first got possession
itself is null and void. This statutory requirement which is lethal and which
makes it clear that the lease itself is null and void cannot be cured by two
proceedings dated 28.11.2018 and 05.04.2010 by which lease rent has been
fixed under Section 34-A of TNHR&CE Act. In other words, the very
inception of purported tenancy or lease, is clearly hit by Section 34 of
TNHR&CE Act and it is null and void. When it is null and void, it cannot
be cured by mere fixation of lease rent by a Committee under Section 34-A
of TNHR&CE Act. The writ petitioner does not qualify as a lessee within
the meaning of Section 34-A of TNHR&CE Act. Absent status of a lessee
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WP(MD) Nos.17092 and 19582 of 2016
and absent character of possession of demised land as a lease, the writ
petitioner cannot take shelter under Angala Parameswari principle.
14. This Court deems it appropriate to consider the matter as
parens patriae, this Court being guardian qua the presiding deity idol being
in the status of a minor. That this Court is parens patriae qua said temple,
temples of similar nature and also custodia legis qua properties vested in a
minor idol are well settled legal principles. Hon'ble Supreme Court in
A.A.Gopalakrishnan's case [A.A.Gopalakrishnan v. Cochin Devaswom
Board and Ors.,] reported in (2007) 7 SCC 482, has also held that it is the
duty of this Court to protect the properties vested in temples.
15. The other aspect that weighs in the mind of this Court is the huge
arrears. The arrears as of today as per the tabulation placed before this Court
is as follows:
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16. The above will demonstrate that the arrears as of today is a little
over Rs.1.50 crores, to be precise Rs.1,50,16,233/-. Added to this it is the
submission of learned State counsel that proceedings under Section 78 of
TNHR&CE Act have been kick-started.
17. Therefore, even if the 04.01.2016 disputation/objection is
considered to have been actually sent, that does not come to the aid of writ
petitioner on the facts and circumstances of this case as the writ petitioner's
purported lease itself is null and void. In other words, the registered lease
deed dated 19.06.1995 entered into by the writ petitioner with legal heirs of
late Ramasamy Gounder is clearly null and void by operation of Section 34
of TNHR&CE Act. If that itself was null and void, the writ petitioner is
neither a lessee nor is the character of possession qua demised land is that of
a lessee. The concluding paragraph of the registered lease deed is relevant
and the same reads as follows:
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WP(MD) Nos.17092 and 19582 of 2016
18. Therefore lease (sub lease without authority or consent from said
temple) for thirty years has been entered into dehors Section 34 of
TNHR&CE Act and by operation of Section 34 of TNHR&CE Act, this
purported sublease dated 19.06.1995 clearly becomes null and void. The
moment it becomes null and void it cannot be cured by any subsequent
proceedings.
19. The sentiments echoed / articulated by another Ho'ble Single
Judge in the 21.09.2017 proceedings directing deposit of 50% also
reverberates in the hearing before this Court.
20. In the light of the discussion and dispositive reasoning thus far,
Angala Parameswari principle does not come to the aid of writ petitioner in
the case on hand. Sequitur is, captioned writ petitions fail and the same are
dismissed. Consequently, captioned WMPs are also dismissed. This Court
refrains itself from imposing costs.
pkn 19.01.2022
Index : Yes/No
Internet : Yes /No
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WP(MD) Nos.17092 and 19582 of 2016
To
1.The Commissioner,
Hindu Religious and
Charitable Endowment Department,
Chennai.
2.The Joint Commissioner,
Hindu Religious and
Charitable Endowment Department,
Trichy Division, Trichy.
3.The Hereditary Trustee,
A/M Balasubramaniaswamy Temple,
Vennaimalai, Karur Taluk and District.
4.The Executive Officer,
A/M Balasubramaniaswamy Temple,
Vennaimalai, Karur Taluk and District.
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WP(MD) Nos.17092 and 19582 of 2016
M.SUNDAR, J.
pkn
W.P(MD) Nos.17092 and 19582 of 2016
and W.M.P.(MD)No.364 of 2022
19.01.2022
https://www.mhc.tn.gov.in/judis
