Madras High Court
Mrs.Therasy Vinod Kumar vs The Commissioner on 25 April, 2023
W.P.No.1436 of 2023
In the High Court of Judicature at Madras
Dated : 25.4.2023
Coram :
The Honourable Mr.Justice N.ANAND VENKATESH
Writ Petition No.1436 of 2023
& WMP.Nos.1522 & 1525 of 2023
Mrs.Therasy Vinod Kumar
(a) Vincy Renuka ...Petitioner
Vs
1.The Commissioner, HR & CE
Admin Department,
Chennai-34.
2.The Additional Commissioner,
HR & CE Admin Department,
Chennai-34.
3.The Executive Officer,
Arulmigu Agatheeswarar
Prasanna Venkatesaperumal
Temple, Nungambakkam,
Chennai-34. ...Respondents
PETITION under Article 226 of The Constitution of India praying
for the issuance of a Writ of Certiorarified Mandamus to call for the
records relating to the impugned order in Na.Ka.No.2378/2020/R2
dated 22.9.2021 by the 1st respondent, quash the same and direct
the respondents to lease the property at No.7, Appu Street,
1/14
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W.P.No.1436 of 2023
Nungambakkam Chennai-34 to the petitioner on the lease rental to
be fixed by the respondents.
For Petitioner : Mr.D.Suriya Durai
For Respondents : Mr.N.R.R.Arun Natarajan,
Special Government Pleader
ORDER
This writ petition has been filed challenging the impugned
proceedings of the first respondent dated 22.9.2021 and for a
consequential direction to the respondents to lease the property
situated at No.7, Appu Street, Nungambakkam, Chennai-34 to the
petitioner after fixing the monthly rent payable by the petitioner.
2. The petitioner made a similar request on an earlier occasion
and it was rejected by the second respondent - Additional
Commissioner by proceedings dated 24.9.2014. The same became a
subject matter of challenge in W.P.No.33559 of 2014.
3. The said writ petition namely W.P.No.33559 of 2014 was
disposed of by a learned Single Judge of this Court by order dated
06.11.2019. It will be relevant to extract the entire order dated
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W.P.No.1436 of 2023
06.11.2019 in order to understand the background of this case, which
is as hereunder:
".....
2. The brief facts, leading to file the writ
petition, reads as follows:
An extent of 2295 sq.ft. vacant site at No.7,
Appu Street, Nungambakkam belongs to the third
respondent temple was leased to the fourth respondent.
Due to non payment of rent, an eviction proceedings
has been initiated by the third respondent temple, and
a suit has been filed against the fourth respondent in
O.S.No.1384 of 1983, the suit was decreed, and the
appeal filed by the fourth respondent in A.S.No.319 of
2004 also came to be dismissed. Thereafter, the
temple filed an execution proceedings in E.P.No.1560 of
2009 and the same is pending on the file of the X
Assistant City Civil Court, Chennai. Pending execution
proceedings, the petitioner and the fourth respondent
said to have made some arrangements, by which, the
petitioner said to have paid the entire arrears on behalf
of the fourth respondent. Thereafter, the petitioner
made an application before the Joint Commissioner for
compromise in the said execution proceedings to
transfer the tenancy in favour of the petitioner. Earlier
Joint Commissioner, H.R & C.E., by an order 27.12.2010
recommended for transfer of the tenancy in favour of
the petitioner and to enter into a compromise between
the parties. Thereafter, another Joint Commissioner,
H.R.& C.E., Chennai, has rejected the proposal for
transfer of tenancy by an order dated 28.06.2013.
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W.P.No.1436 of 2023
Challenging the above said order, the petitioner has
filed a Revision in R.P.No.94 of 2013 D2 under Section
21 of the H.R.& C.E. Act before the Commissioner and
the Commissioner by an order dated 28.10.2013 set
aside the order passed by the Joint Commissioner
holding that the Joint Commissioner has no jurisdiction
to pass the order and he had usurped the power of the
Commissioner, and only the Commissioner has the
power to deal with such matters. Thereafter, once
again, the Additional Commissioner, without considering
the order passed by the first respondent/Commissioner
dated 28.10.2013 in R.P.No.94/2013, rejected the
proposal of compromise by an order dated 24.09.2014
in Na.Ka.No.46669 of 2014 and directed the parties to
expedite the execution proceedings. Now, the above
order is challenged in this writ petition.
3. Mr.M.Ravindran, learned Senior Counsel,
appearing for the petitioner would submit that earlier
the order passed by the Joint Commissioner rejecting
the proposal for compromise has been set aside by the
Commissioner on the ground that only the
Commissioner has power to entertain any petition for
compromise, and also for transfer of lease. But the
second respondent/Additional Commissioner, without
even considering the order passed by the
Commissioner, has passed the impugned order, for
which she has no jurisdiction. Hence, it is liable to be
dismissed.
4. Mr.M.Maharaja, learned Special Government
Pleader, appearing for the respondents 1 and 2, on
instructions, would submit that pending writ petition,
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W.P.No.1436 of 2023
possession was taken by the temple and the Execution
Proceedings is also closed. Now, the third respondent
temple is in possession of the property. Since the
Execution Proceedings has already been closed, and
possession was also taken, at this stage, the
petitioner's request for compromise and transfer of
lease cannot be considered and the prayer sought for in
the writ petition is also infructuous.
5. I have considered the submissions made on
either and perused the materials available on records
carefully.
6. The grievance of the petitioner is that the
petitioner has paid the entire lease amount, and sought
for transfer of lease in his favour by entering into a
compromise in the suit filed by the temple, the
Additional Commissioner has arbitrarily rejected the
petitioner's request, for which he has no jurisdiction
and he was also supported by the order passed by the
Commissioner in R.P.94/2013 dated 28.10.2013,
wherein, the Commissioner has stated that the power
for permitting compromise is only vest with the
Commissioner.
7. Now it is submitted that the Execution Petition
has already been closed and possession also taken by
the temple. At this stage, there is no possibility of
entering into compromise in the suit. Considering the
above circumstances, the relief sought by the
petitioner cannot be granted at this stage. However,
considering the fact that the petitioner has paid the
entire arrears of lease amount and also sought for lease
in his favour, the petitioner is directed to submit a fresh
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W.P.No.1436 of 2023
representation before the first
respondent/Commissioner seeking for granting of lease
in his favour.
8. The petitioner is directed to submit his
representation within a period of four weeks from the
date of receipt of a copy of this order. Thereafter, the
Commissioner is directed to consider the same and pass
suitable orders on merits in accordance with law within
a period of six weeks thereafter, after giving
opportunity to the petitioner. Till then, the respondents
are directed not to lease out the subject property to
any other third party.
......"
4. Pursuant to the above order of the learned Single Judge of
this Court dated 06.11.2019, the petitioner made a representation
seeking for leasing the subject property in her favour and the
impugned proceedings dated 22.9.2021 came to be passed by the 1st
respondent rejecting the request made by the petitioner and further
informing the petitioner that lease can be granted to the subject
property only by calling for a public auction. Aggrieved by the same,
the present writ petition has been filed before this Court.
5. I have heard the learned counsel for the petitioner and the
learned Special Government Pleader appearing for the respondents.
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W.P.No.1436 of 2023
6. There is no dispute with regard to the fact that the property
in dispute belongs to the third respondent - Temple. The nature of
right that is claimed by the petitioner seems to be more in the nature
of a legitimate expectation based on some understanding that was
reached between the parties in E.P.No.1560 of 2009 on the file of the
10th Assistant Judge, City Civil Court, Chennai, when the petitioner
paid the entire arrears of rent to the third respondent - Temple on
behalf of the original tenant Ms.Dakshayani Ammal. There is also no
dispute with regard to the fact that the subject property is in the
possession of the third respondent - Temple from 2018 onwards.
7. It is seen from the records that initially, a recommendation
was made by the Joint Commissioner to the Commissioner, Hindu
Religious and Charitable Endowments Department (for short, the
Department) through the letter dated 27.12.2010 to consider
transferring the tenancy from the name of the said Ms.Dakshayani
Ammal to the name of the petitioner. However, the Executive Officer
of the third respondent - Temple was not inclined to transfer the
lease in favour of the petitioner and accordingly, the request made by
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W.P.No.1436 of 2023
the petitioner was rejected through communication dated 28.6.2013
by conveying the order of the Joint Commissioner concerned dated
04.9.2012.
8. The said order of the third respondent dated 28.6.2013
became the subject matter of challenge before the first respondent
and the petitioner filed a revision petition. Further, the first
respondent, through the order dated 28.10.2013, interfered with the
order passed by the Joint Commissioner dated 04.9.2012 and the
revision petition filed by the petitioner was allowed.
9. The matter again went before the second respondent -
Additional Commissioner, who, by proceedings dated 24.9.2014,
rejected the claim made by the petitioner and directed the possession
of the property in dispute to be taken over immediately. Pursuant to
that, the possession was also taken over by the third respondent -
Temple. The said order dated 24.9.2014 was the subject matter of
challenge in W.P.No.33559 of 2014 and the order dated 06.11.2019
passed in the said writ petition has already been extracted supra.
10. The crux of the issue involved in this writ petition is as to
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W.P.No.1436 of 2023
whether the petitioner has any legal right to compel the Department
to give the subject property on lease to the petitioner and as to
whether there is any corresponding duty on the part of the
Department to comply with the request made by the petitioner.
11. The main ground that was raised by the learned counsel for
the petitioner is that this Court must take into consideration the
antecedents of this case and the payment that was made by the
petitioner towards arrears of rent on behalf of the erstwhile tenant. It
is further submitted that some weightage must be given for the
payment made by the petitioner and that the petitioner was made to
run from pillar to post for the last 12 years without being given any
relief.
12. I have carefully considered the submissions made by the
learned counsel for the petitioner.
13. The first respondent, through the impugned proceedings
dated 22.9.2021, had taken into account the antecedents in this case
and had come to the conclusion that the subject property must be
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W.P.No.1436 of 2023
given on lease only by calling for public auction. The first respondent
had also taken into consideration the fact that the petitioner had been
holding certain properties belonging to the third respondent - Temple
as a lessee.
14. During the course of hearing, the learned Special
Government Pleader appearing for the respondents has brought to
the notice of this Court the fact that the petitioner and her family
members are the lessees with respect to some of the properties
belonging to the third respondent - Temple, that there is a huge
arrears of rent due and payable by them and that even in so far as
the property, in which, the petitioner is a lessee, is concerned, she is
in arrears of rent to the tune of Rs.4,07,360/-. The learned Special
Government Pleader submits that this conduct of the petitioner and
her family members must also be taken into consideration by this
Court.
15. At this juncture, it will be relevant to take note of the
judgment of this Court in the case of the Director, Archaeological
Survey of India, Janpat, New Delhi-4 [Suo Motu W.P.No.574 of
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W.P.No.1436 of 2023
2015 dated 07.6.2021], in which, the Division Bench of this Court
issued a slew of directions and in so far as the granting of lease with
regard to the temple lands is concerned, it was made clear that it
must be done through public auction. Further directions were also
issued to the effect that for those, who are holding on to the
properties belonging to the temples, action must be initiated to evict
them as per law.
16. In the considered view of this Court, the first respondent
was perfectly right in rejecting the claim made by the petitioner since
the petitioner does not have any legal right to insist for letting the
subject property in her favour and to recognize her as a tenant. The
previous events, at the best, only gave a hope to the petitioner that
she would be given the subject property on lease. This hope does not
attain the status of a legal right warranting interference into the
order passed by the first respondent.
17. If really the Department was serious enough to recognize
the petitioner as a tenant, there was no need for them to take
possession of the subject property as early as 2018. Unfortunately,
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W.P.No.1436 of 2023
the subject property is lying idle and has not fetched any income to
the third respondent - Temple for more than a decade. Hence, it is
high time that the subject property is brought for public auction and a
fair rent is fixed to be collected from the successful bidder, who is
recognized as a tenant. It goes without saying that the petitioner is
also entitled to participate in the auction and submit her bid. Except
giving this liberty, this Court does not find any ground to interfere
with the order passed by the first respondent as it is perfectly in line
with the directions issued by the Division Bench of this Court in the
order dated 07.6.2021 in Suo Motu W.P.No.574 of 2015 referred
supra.
18. In the result, the writ petition stands dismissed. No costs.
Consequently, the connected WMPs are also dismissed.
25.4.2023
To
1.The Commissioner, HR & CE
Admin Department, Chennai-34.
2.The Additional Commissioner,
HR & CE Admin Department,
Chennai-34.
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W.P.No.1436 of 2023
3.The Executive Officer,
Arulmigu Agatheeswarar
Prasanna Venkatesaperumal
Temple, Nungambakkam,
Chennai-34.
RS
https://www.mhc.tn.gov.in/judis
W.P.No.1436 of 2023
N.ANAND VENKATESH,J
RS
WP.No.1436 of 2023 &
WMP.Nos.1522 & 1525
of 2023
25.4.2023
https://www.mhc.tn.gov.in/judis
