Madras High Court
S.Malliga vs The Commissioner on 20 June, 2022
W.A.(MD)No.557 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 20.06.2022
CORAM:
THE HONOURABLE MR.JUSTICE S.S.SUNDAR
and
THE HONOURABLE MRS.JUSTICE S.SRIMATHY
W.A(MD)No.557 of 2022
and
C.M.P(MD)No.4850 of 2022
S.Malliga ... Appellant
Vs.
1.The Commissioner, H.R. & C.E., Department,
Chennai-34.
2.The Joint Commissioner, H.R. & C.E., Department,
Madurai.
3.Arulmighu Vandi Kaliamman Thirukoil,
Thadikombu Road, Dindigul,
through its Executive Officer. ... Respondents
Prayer: Writ Appeal filed under Clause 15 of the Letter Patent, to call for
the records and set aside the order in W.P(MD)No.8415 of 2018, dated
16.02.2022 and allow the Writ Appeal with costs.
For Appellant :Mr.H.Lakshmi Shankar
For R1 and R2 :Mr.M.Linga Durai
Special Government Pleader
For R3 :Mr.A.K.Baskara Pandian
1/10
https://www.mhc.tn.gov.in/judis
W.A.(MD)No.557 of 2022
JUDGMENT
(Judgment of the Court was delivered by S.S.SUNDAR, J.)
Challenging the order passed by the learned Single Judge of this
Court in W.P.(MD)No.8415 of 2018, dated 16.02.2022, the above Writ
Appeal is filed.
2.Heard Mr.H.Lakshmi Shankar, learned Counsel for the
appellant, Mr.M.Linga Durai, learned Special Government Pleader, who
takes notice on behalf of respondents 1 and 2 and
Mr.A.K.Baskarapandian, learned Counsel, who takes notice on behalf of
third respondent.
3.Brief facts that are necessary for the disposal of this Writ
Appeal are as follows:
3.1.Pursuant to the notice issued by the third respondent,
directing the appellant to pay the fair rent at the rate of
Rs.1,02,100/- per month with effect from 01.07.2016, the appellant/Writ
Petitioner filed a Writ Petition in W.P.(MD)No.14971 of 2017. The said
Writ Petition was heard along with few other Writ Petitions. After finding
that the fair rent has been fixed without proper notice to the tenants
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W.A.(MD)No.557 of 2022
contrary to the judgment of this Court reported in 2009 (6) CTC 512, a
learned Single Judge of this Court disposed of the Writ Petitions by a
common order, dated 21.09.2017 in the following lines:
“7. In view of the submissions made by the learned counsel for
the 3rd respondent, following the judgment of the Hon'ble Division Bench of
this Court referred to supra and also taking into account the proceedings
issued by the State dated 02.02.2009, the following directions are issued in
these writ petitions:
i) the 3rd respondent is directed to provide a copy of the order
of the Fair Rent Fixation Committee presided over by the Joint
Commissioner, Hindu Religious and Charitable Endowment Department
dated 11.04.2017 as well as the calculation sheet to the petitioners
forthwith, if not already given;
ii) This Court, normally while granting interim orders, would
uniformly direct the petitioners/lease holders to deposit 50% of the
enhanced rent immediately (as in the case of W.P.(MD) Nos.16785 to 16794
of 2017 and 13383 to 13392 of 2017) and in view of final disposal of all
these writ petitions, the petitioners shall at the first instance, deposit 50%
of the enhanced amount, if not already remitted and thereafter file their
objections supported by whatever documents they have in their possession
on or before 11.10.2017 to the concerned authorities; and
iii) the authorities, upon satisfaction of the remittance of the
50% of the amount by the petitioners, on scrutiny of the documents
produced by the petitioners and upon considering their objections, shall fix
or refix the lease rent in accordance with law, within a period of two
weeks thereafter.”
3.2.Though the appellant/Writ Petitioner was directed to pay
50% of the enhanced amount, there was no direction to pay arrears. The
petitioner remitted only 50% of revised rent for one month and requested
the respondents to furnish the copy of order fixing fair rent and the
working sheet. However, the respondents did not serve the order fixing
fair rent or working sheet, but issued only the impugned demand notice,
dated 08.03.2018 challenged in the Writ Petition. The learned Counsel
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W.A.(MD)No.557 of 2022
for the third respondent admitted that the demand notice, which is
impugned in the present Writ Petition, is only a demand of 50% of the fair
rent, that was demanded in the previous demand notice, which is the
subject matter of the previous Writ Petition.
4.The question, whether the appellant/Writ Petitioner is liable to
pay 50% of the entire arrears of fair rent or not is not relevant, in view of
the subsequent developments we have noticed while hearing the Writ
Appeal.
5.First of all, the fair rent, that was fixed earlier as per the
demand notice impugned in the previous Writ Petition, has given a go by,
because of the subsequent proceedings, by which the fair rent was
revised by the Joint Commissioner. As pointed out by the learned
Counsel for the appellant, the fair rent was subsequently reduced to
Rs.85,650/- for the same premises by a subsequent communication. It
was thereafter, the fair rent was again reduced to Rs.61,250/- by a
subsequent proceedings. Therefore, the direction issued by this Court in
the previous Writ Petition by order, dated 14.09.2017 has lost its
significance to insist the petitioner to pay 50% of the demand calculating
arrears as per the fair rent earlier fixed.
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W.A.(MD)No.557 of 2022
6.It is further represented before this Court that the
appellant/Writ Petitioner, by a subsequent communication, dated
08.11.2018, has expressed her willingness to vacate the premises, if she
is required to pay the fair rent, as fixed by the Joint Commissioner. As a
matter of fact, the third respondent has now taken possession of the
premises, which was leased out to the appellant/Writ Petitioner on
18.10.2019 pursuant to eviction proceedings initiated under Sections and
79 of Tamil Nadu Hindu Religious and Charitabe Endowments Act.
7.In view of the subsequent developments, this Court is unable
to insist the petitioner to remit 50% of the demand calculating arrears, as
per the direction of this Court in the Writ Petition filed by the appellant in
W.P.(MD)No.14971 of 2017, which was disposed of by this Court by
order, dated 21.09.2017, especially, when the petitioner has suffered the
consequences for not remitting 50% of enhanced rent. When the
petitioner requested the respondents to serve a copy of proceedings
fixing fair rent and the working sheet, the Executive Officer served only a
demand notice demanding a sum of Rs.10,23,549/-, as arrears for the
period upto 28.02.2018. Hence, the petitioner filed the present Writ
Petition challenging the said demand notice alleging that the petitioner
was not furnished with the copy of order fixing fair rent or the working
sheet as per the direction of this Court earlier. However, the Writ
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W.A.(MD)No.557 of 2022
Petition is dismissed giving liberty to the appellant/writ petitioner to file
an appeal before the Commissioner under Section 34A(3) of the Tamil
Nadu HR & CE Act, 1989, ignoring the fact that the order fixing fair rent
is not served on the Writ Petitioner/appellant.
8.In the peculiar circumstances of the case, this Court is of the
view that the direction of the learned Single Judge by order, dated
16.02.2022 in W.P.(MD)No.8415 of 2018, cannot be sustained. Taking
into account the conduct of the respondents in passing different orders,
this Court is unable to sustain the impugned demand notice, dated
08.03.2018, as this Court is of the view that a fair rent cannot be fixed
with retrospective effect, as the rent payable for any premises, either it is
owned by a temple or any individual, is a contractual liability. Unless
there is a contract to the contrary, a fair rent cannot be fixed without
consensus ad idem for the past period.
9.In this case, the liability cannot be fixed on the appellant/Writ
Petitioner to pay the fair rent with retrospective effect, as such liability is
not authorised by any law or any statutory provision. From the impugned
notice, it is seen that fair rent was demanded with effect from 01.07.2017
to 28.02.2018 without serving the proceedings, by which the fair rent
was fixed.
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W.A.(MD)No.557 of 2022
10.The learned Counsel for the appellant pointed out that
pursuant to an order of eviction passed by the Joint Commissioner on
04.10.2019, the premises in question was handed over to the Joint
Commissioner on 18.10.2019. It is also admitted before this Court that
the premises is not let out to any other persons for want of prospective
tenant, who would accept to pay the fair rent fixed in respect of the same
premises. Hence, this Court is of the prima facie view that fair rent fixed
by the respondents is on the higher side.
11.From the records available and produced before this Court,
this Court is unable to find any previous notice or a show cause notice
issued to the appellant/Writ Petitioner before arriving at the fair rent.
Unless the basis for assessment of fair rent is supplied to the
appellant/Writ Petitioner, she will not be in a position to respond. Any
other opportunity, after fixing the liability of the petitioner on the basis of
working sheet, will not be proper.
12.Hence, this Court is inclined to pass the following order:
(1)The order of the learned Single Judge in
W.P(MD)No.8415 of 2018, dated 16.02.2022 is set aside;
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W.A.(MD)No.557 of 2022
(2)The respondents are directed to fix the fair rent
with effect from 11.04.2017 after issuing notice to the
appellant with regard to the basic factors that will be adopted
or taken to fix the fair rent;
(3)After hearing the appellant/Writ Petitioner, final
order can be passed by the Joint Commissioner with regard to
the actual fair rent payable by the appellant for the period
from 11.04.2017 to 18.10.2019, when the respondents took
possession of the premises;
(4)Upon service of notice with all particulars,
including the proceedings by which fair rent was arrived at,
which are required for the appellant/Writ Petitioner to
respond, the appellant is directed to file her
objection/explanation along with the documents, if any, in
support of her objection within a period of three weeks from
the date of receipt of copy of proceedings and working sheet
and other relevant documents; and
(5)The second respondent is directed to pass
appropriate orders fixing fair rent after giving an opportunity
of personal hearing to the appellant/Writ Petitioner on merits
and in accordance with law within a period of eight weeks
from the date of submission of the explanation by the
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W.A.(MD)No.557 of 2022
appellant along with the documents.
13.With the above directions, this Writ Appeal is allowed. No
costs. Consequently, connected miscellaneous petition is closed.
[S.S.S.R., J.] [S.S.Y., J.]
20.06.2022
Index : Yes / No
cmr
To
1.The Commissioner, H.R. & C.E., Department,
Chennai-34.
2.The Joint Commissioner, H.R. & C.E., Department,
Madurai.
https://www.mhc.tn.gov.in/judis
W.A.(MD)No.557 of 2022
S.S.SUNDAR, J.
and
S.SRIMATHY, J.
cmr
W.A(MD)No.557 of 2022
20.06.2022
https://www.mhc.tn.gov.in/judis
