Madras High Court
S.Gomathiammal vs The State Of Tamil Nadu on 27 June, 2022
W.P.(MD)No.10895 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 27.06.2022
CORAM
THE HONOURABLE MR.JUSTICE M.NIRMAL KUMAR
W.P.(MD)No.10895 of 2022
and
W.M.P.(MD)No.7864 of 2022
S.Gomathiammal ... Petitioner
Vs.
1. The State of Tamil Nadu,
Represented by its Principal Secretary to Government,
Department of Tourism, Culture and Hindu Religious
and Cultural Affairs,
Secretariat,
Chennai.
2. The Commissioner,
Tamil Nadu Hindu Religious and Charitable Endowment
Administration Department,
Gandhi Road,
Nungambakkam,
Chennai.
3. The Joint Commissioner,
Hindu Religious and Charitable Endowments
Administration Department,
Dindigul West,
Dindigul District.
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W.P.(MD)No.10895 of 2022
4. The Executive Officer,
Arulmighu Muthuthalamman and
Bagavathiamman Thirukkovil,
Dindigul,
Dindigul District. ... Respondents
PRAYER: Petition filed under Article 226 of the Constitution of India
praying for issuance of Writ of Certiorarified Mandamus calling for the
records relating to the impugned notice issued by the fourth respondent vide
his proceedings Nil dated 04.02.2022 and the consequential impugned
notice dated 14.03.2022 and quash the same as illegal and consequently,
forbear the respondents or their subordinates from in any way dispossessing
the petitioner except by following the procedure established by law.
For Petitioner : Ms.H.Jasima Yasmin
for M/s.Ajmal Associates
For Respondents : Mr.M.Lingadurai
Spl. Govt. Pleader for R1 to R3
Mr.Muthugeethaiyan
Standing Counsel for R4
ORDER
Vide notice dated 04.02.2022, the petitioner was termed as an
encroacher, since the dues till 31.12.2021, a sum of Rs.7,24,019/- and
further the monthly rent of Rs.24,000/- have not been paid, vide notice
dated 14.03.2022, the lease agreement was terminated by invoking Section
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W.P.(MD)No.10895 of 2022
34B of the Tamil Nadu Hindu Religious and Charitable Endowments Act,
1959 (herein after referred to as 'the Act') and calling the petitioner to hand
over the property and for appearance on 29.03.2022. Seeking to quash the
said notices issued by the fourth respondent / Executive Officer, this Writ
Petition has been filed.
2. The contention of the petitioner is that the petitioner is a tenant
under the fourth respondent Temple. She had constructed and running a
small steel shop in the name and style of 'Sangar Steel'. She has been paying
a rent of a sum of Rs.5,550/- per month as agreed between her and the
respondents without any default. When that being so, on 18.12.2017, the
fourth respondent issued a notice and calling for objection to the proposed
fair rent of Rs.56,000/- per month, alleged to have been fixed by a
Committee constituted under Section 34A of the Act. The petitioner
immediately submitted her objection on 02.01.2018, stating that the
proposed rent is exorbitantly high and she would be ready and willing to
pay the rent fixed fairly. Thereafter, the fourth respondent Temple issued
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W.P.(MD)No.10895 of 2022
another notice dated 01.02.2018, calling for objection to the proposed rent
of Rs.56,000/- per month. She has also submitted her objection on
21.02.2018, stating that the proposed rent is exorbitantly high and the same
is ten times higher than the existing rent.
3. As per the scheme of the Tamil Nadu Hindu Religious and
Charitable Endowments Act, the rent in respect of the Temple is to be fixed
by a Committee comprising of the jurisdictional Joint Commissioner,
Executive Officer and District Registrar etc., as provided under Section 34A
of the Act. The said Committee alone is empowered to refix the rent.
Further, she relied on the judgment of the Hon'ble Division Bench of this
Court in the case of Arulmighu Angalaparameshwari
Kasiviswanatharswamy Temple Adimanai House Owners Association v.
the State of Tamil Nadu reported in 2009 6 CTC 512, where this Court
held that though Section 34A does not contemplate issuance of notice
before fixation of rent / re-fixation of rent by the Committee, by import of
the principles of natural justice and in consonance with the guidelines
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W.P.(MD)No.10895 of 2022
issued by the Government of Tamil Nadu vide proceedings in Na.Ka.No.
40651/2008/M3 dated 18.07.2008 as well as the proceedings dated
02.02.2009, wherein it has been clarified that the lessees are to be provided
with an opportunity to submit their objections before fixation of final rent.
After considering the said objections, the Committee would have to fix /
refix the lease rent taking note of the prevailing market value and the
guidelines and then fix the lease rent once in three years.
4. The further contention of the petitioner is that as per the
calculation sheet furnished by the fourth respondent, it is seen that the
proposed rent had not been fixed by such a Committee comprising of the
jurisdictional Joint Commissioner, Executive Officer and District Registrar
etc., as provided under Section 34A of the Act. Per contra, the same is fixed
only by the fourth respondent viz., the Executive Officer of the Temple and
the Assistant Divisional Engineer, Hindu Religious and Charitable
Endowments Department, Madurai and as such, the same is without
jurisdiction. Hence, the entire exercise of fixing the proposed rent is not
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W.P.(MD)No.10895 of 2022
proper. No action seems to have been taken by the fourth respondent
thereafter. Be that as it may, the fourth respondent has chosen to straight
away issued another notice dated 13.02.2019 under Section 78 of the Act
alleging that the petitioner has been in due of arrears of rent of
Rs.5,44,019/- from January '2019 onwards. The said notice claimed that the
fair rent was fixed with effect from 01.07.2016. It further claimed that the
petitioner would be considered as an encroacher, if she failed to pay the said
arrears of rent within a period of 15 days thereon. Immediately, the
petitioner has sent a representation to the fourth respondent stating that the
rent was fixed retrospectively without any fixation of rent as contemplated
under the scheme of Section 34A of the Act and as such, the same has to be
fixed fairly in accordance with law. However, without considering any
objections and representations, the fourth respondent issued notices dated
05.11.2020, 24.08.2021 and 19.01.2022 that the petitioner is in arrears of
rent and that the rent was fixed at Rs.24,000/- per month. Neither furnishing
any calculation nor calling for any objection from the petitioner, the
monthly rent was fixed at Rs.24,000/- per month, which is caused prejudice
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W.P.(MD)No.10895 of 2022
to the petitioner. Even after the impugned notices, the petitioner paid a sum
of Rs.3,41,000/-. Further, it is also relevant to note that the power to declare
a tenant to be an encroacher by the fiction under Section 78 of the Act or
any of the powers for removal of a tenant can be exercised only by the
jurisdictional Joint Commissioner. However, in the present case, the
impugned order declaring the petitioner as an encroacher under Section 78
of the Act has been made by the fourth respondent. Hence, the impugned
notices is without jurisdiction and liable to be quashed. Therefore, this
petition.
5. In response, Mr.M.Lingadurai, learned Special Government
Pleader appearing for the respondents 1 to 3 submitted that the petitioner in
her affidavit at paragraph No.3 admitted that a Committee has been
constituted under Section 34A of the Act and it has fixed the rent of
Rs.56,000/- per month. Thereafter, the objections were received from the
petitioner. Further, calculation sheet have also been submitted in this regard.
Thereafter, on consideration of the objection, the rent has been reduced from
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W.P.(MD)No.10895 of 2022
Rs.56,000/- to Rs.24,000/- per month. The petitioner is a tenant of 16000
sq.ft. of a vast area, which is situated in a prime location. The petitioner is in
possession and enjoyment of the property and earning for the past several
years. Initially, the petitioner agreed with the rent, however, since she
sought time, the same was granted. Thereafter, she had been paying arrears
of rent regularly. Even after the impugned notices, the petitioner has paid a
sum of Rs.3,41,000/-. Further for 16000 sq.ft., the rent is only Rs.24,000/-
which is admittedly Rs.1.50 per sq.ft.
6. Mr.Muthugeethaiyan, learned Standing Counsel appearing for
the fourth respondent / Temple, submitted that the petitioner is a tenant
under the Temple of 16000 sq.ft of vacant land. Thereafter, the petitioner
has put up a Steel shop using the entire place and is earning. The petitioner
was earlier paying Rs.5,550/- per month and thereafter, fair rent was fixed at
Rs.56,000/-, which was objected to by the petitioner and a worksheet was
provided. After considering her objections, the rent was fixed at
Rs.24,000/-. The petitioner thereafter approached the Temple Authorities
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W.P.(MD)No.10895 of 2022
and agreed to pay the arrears of enhanced rent and the present rent. She had
paid almost the entire arrears and cleared the same. As on 31.05.2022, she
had paid part of arrears and also agreed to pay the revised enhanced rent of
Rs.24,000/- per month. When that being so, this petition has been filed
during June 2022 and thereafter, she failed to pay the rent.
7. The learned counsel for the petitioner objected the contention
of the learned Standing Counsel by stating that calculation of arrears cannot
be done beyond the period of notice. As regards the enhancement of rent of
Rs.24,000/-, it has been regularly paid.
8. I have considered the rival submissions made by the learned
counsel appearing for the parties and perused the materials placed before
this Court.
9. It is seen that under Section 34B of the Act, the Executive
Officer finds that the petitioner has failed to make the payment of rent. For
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W.P.(MD)No.10895 of 2022
the purpose of termination, the said notices are given. If the petitioner has
any objection with regard to the notices, she has to file appropriate petition
before the concerned Authority under Section 34B of the Act challenging
termination the lease of the property in question. It is also seen that the
petitioner had admitted the fixation of rent and sought time for payment of
arrears. In view of the same, the Temple Authorities, pursuant to the order
passed under Section 34B of the Act, proceeded further and also took action
for removal of encroachment in the property by following the procedures. If
the petitioner has got any objections, she has to file a petition under Section
21A of the Act before the Joint Commissioner within a period of three
weeks from the date of receipt of a copy of this order. Thereafter, the
Temple Authorities would take appropriate action, if the petitioner was
found to be an unauthorised occupier. Therefore, the Executive Officer is
directed to proceed further by approaching the Assistant Commissioner of
Hindu Religious and Charitable Endowments Department to inspect the
property in question and file a report to the Joint Commissioner under
Section 78 of the Act. Thereafter, the Joint Commissioner shall conduct an
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W.P.(MD)No.10895 of 2022
enquiry and conclude the same and pass appropriate orders under Section 79
of the Act within a period of two months from the date of receipt of the
report from the concerned Assistant Commissioner.
10. With the above directions, this Writ Petition is disposed of. No
costs. Consequently, connected Miscellaneous Petition is closed.
27.06.2022
Index : Yes / No
Speaking Order : Yes / No
vji
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W.P.(MD)No.10895 of 2022
To
1. The Principal Secretary to Government,
The State of Tamil Nadu,
Department of Tourism, Culture and Hindu Religious
and Cultural Affairs,
Secretariat,
Chennai.
2. The Commissioner,
Tamil Nadu Hindu Religious and Charitable Endowment
Administration Department,
Gandhi Road,
Nungambakkam,
Chennai.
3. The Joint Commissioner,
Hindu Religious and Charitable Endowments
Administration Department,
Dindigul West,
Dindigul District.
4. The Executive Officer,
Arulmighu Muthuthalamman and
Bagavathiamman Thirukkovil,
Dindigul,
Dindigul District.
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W.P.(MD)No.10895 of 2022
M.NIRMAL KUMAR, J.
vji
W.P.(MD)No.10895 of 2022
and
W.M.P.(MD)No.7864 of 2022
27.06.2022
_________
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