Vishal.M.M v. The Commissioner

ORDER This Writ Petition is filed to quash the order dated 25.11.2022 and all other orders passed by the respondents in consequent to the impugned order and quash the same as illegal, unconstitutional and without jurisdiction.

¶2Admittedly, the petitioner was a lessee under the third respondent Temple for the Shop No.50-G comprised in S.No.3297 situated at Malaivasal inside, Trichy – 2. Originally the petitioner's paternal uncle namely, M.N.K.Padmanaban was a tenant under the third respondent. After his demise, the petitioner was continuing his tenancy till 18.05.2022. The petitioner was in possession of the subject property to an extent of 2793.80 square feet and the petitioner is running a textile shop and regularly paying the rent. The temple authorities have periodically enhanced the rent based on G.O.Ms.No.456 dated

09.11.2007 and Section 34(A) of the Act at 15% increase every three years as fair rent. For the concurrent period, the Fair Rent Committee was constituted by appointing the Joint Commissioner / Executive Officer (3rd respondent) as Head of the Committee. The Committee has erroneously increased the rent with retrospective effect in respect of the premises occupied by the petitioner. The third respondent has issued a notice to the petitioner dated 21.08.2020 under Section 34(A) of HR and CE Act, informing the petitioner about the fixation of fair rent and demanded the petitioner to pay the same with retrospective effect from 30.06.2016. The petitioner submitted an application dated 10.09.2020 to the third respondent Temple that he would continue the tenancy in respect of 760 square feet alone, but unfortunately, the same was not considered by the third respondent. The third respondent vide order dated

21.08.2020 had arbitrarily demanded the petitioner to pay an exorbitant amount of Rs.76,40,710/- as arrears of rent. The contention of the petitioner is that the authorities fixed the fair rent without affording an opportunity and without hearing the petitioner, thereby violated the principles of natural justice. The said amount was calculated from 01.07.2016 till the notice dated 21.08.2020. The Committee has arrived at the conclusion to fix fair rent without giving notice to the petitioner and without following the dictum laid down by this Court reported in 2009(6) CTC 512 in Angala Parameshwari case. Aggrieved over the same, the petitioner has filed Statutory Appeal under Section 34(3A) of the Act. The Commissioner of HR and CE has refused to entertain the appeal by raising a query regarding the maintainability of the appeal without pre-depositing the entire rent arrears fixed by the Fair Rent Committee. Hence, the petitioner has preferred C.R.P.(MD).No.1563 of 2021 and this Court partly allowed the CRP and directed the petitioner to pay the fair rent from the date of communication that is from 01.09.2020. The further contention of the petitioner is that the appellate authority has confirmed the original authority order and has fixed the rent from 01.07.2016 and for the subsequent period that is from 01.07.2019 to 01.07.2022 as per the guidelines issued in G.O.Ms.No. 353 dated 04.06.1999, G.O.Ms.No.456 dated 09.11.2007 and G.O.Ms.No.298 dated 20.07.2010 and as per instruction dated 10.03.2022. Aggrieved over the same, the present Writ Petition is filed.

¶3The learned Standing Counsel appearing for the third respondent vehemently objected to the maintainability of the Writ Petition, since only revision ought to be filed under Section 34A (5) that too within 90 days before High Court. Instead of preparing said application, the petitioner has filed this Writ Petition for sole reason, in order to prefer revision petition before the High Court, the petitioner should deposit the entire amount. Therefore, the petitioner has preferred this Writ Petition which is not maintainable. The second objection is that the petitioner has challenged the impugned order dated 25.11.2022, but based on this order, subsequently the third respondent has issued notice calling for objection on 03.03.2023, for which the petitioner has submitted objection on 18.03.2023. Based on the objection, the third respondent has already passed order dated 28.03.2023, confirming the order of the Commissioner and demanded Rs.1,17,56,555/-. The contention of the learned Standing Counsel is that without challenging the subsequent orders, the petitioner has challenged only the order passed by the Commissioner, which cannot be entertained. However, the learned counsel appearing for the petitioner submitted that the issue of retrospective collection was never considered by the Commissioner as well as the subsequent orders by any authorities. The issue of retrospective enhancement was not dealt by Commissioner as well as the subsequent authorities. Even before the Hon'ble Court in CRP, the collection of retrospective effect of rent was not dealt with. Therefore, the petitioner submitted that he has preferred Writ Petition rather than a Revision Petition.

¶4The learned Special Government Pleader appearing for the respondents 1 and 2 submitted that the fair rent is fixed based on G.O.Ms.No. 353 dated 04.06.1999. Therefore, based on the said Government Order, the fair rent has been refixed with effect from 01.07.2016 as per Section 34-A of the Act. Hence the petitioner has not sustainable legal ground to interfere with the impugned order.

¶5But fixation of fair rent by giving retrospective effect was considered by the Hon'ble Division Bench of this Court in W.A.(MD)No.503 and 509 of 2022 vide order dated 08.08.2022 in the case of J.A.C.Raj Vs. Commissioner HR&CE. This order is passed by following the order passed in Arulmigu Angala Parameswari & Kasivishwanathaswami Temple Adimanaivazh 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, an Hon'ble 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 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:-

¶1rl;lg;gphpt[ 34V?d; fPHhd thlif eph;zaf; FGthy; epaha thlif eph;zak; bra;ag;gLtjpy;iy.

¶2rpy ,d';fspy; bray; mYtyh;. mw';fhtyh;. cjtp nfhl;lg; bghwpahsh; Mfpnahh;fshy; kl;Lnk thlif eph;zapj;J mwpf;if mDg;ggLfpwJ.

¶3gy ,d';fspy;. khtl;l gjpthshpd; ,irt[ld; thlif eph;zak; bra;ag;gLtjpy;iy.

¶4re;ij kjpg;gpid fUj;jpy; bfhs;shky;. tHpfhl;o kjpg;gpd; go epahathlif fzf;fPL bra;ag;gLfpwJ.

¶5murhiz 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.

¶6murhiz 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 mwq;fhtyh; FGtpd; ghprPyid me;je;j ,iz Mzah;fshy; mq;fPfhpf;fg;gLtjpy;iy.

¶7murhiz 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.

¶8thlif eph;zaf; FGthy; eph;zak; bra;ag;Lk; thlifapid fzf;fPl;Lj;jhSld; thlifjhuh;fSf;F mDg;gp xg;g[jy; bgWtjpy;iy.

¶16The 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:-

1.thlif eph;zaf; FGthy; eph;zak; bra;ag;gLk; thlifapid fzf;fPl;Lj;jhSld; thlifjhuh;fSf;F mDg;g[jy; ntz;Lk;.

¶2fzf;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; Mtzq;fSld;> xUthu fhyj;jpw;Fs; kDjhuh;fs; gjpit

mDg;g[jy;

ntz;Lbkd

thlifjhuh;fSf;F mwptpg;g[ mDg;gg;gly; ntz;Lk;.

¶3nkny Fwpg;gpl;l tprhuizf;F thlifjhuh;fs; neuoahf tuntz;Lbkd typa[Wj;j njitapy;iy. mth;fsplkpUe;J gjpiyg; bgw;W ghprPypj;jhny nghJkhdJ.

¶4nkw;Fwpg;gpl;lgo thlifjhuh;fsplkpUe;J bgwg;gLk; gjpy;. thlif eph;zaf;FGthy; ghprPypf;fg;gl ntz;Lk;.

¶5chpa fhyj;jp;w;Fs; gjpy; VJk; tutpy;iybadpy;. ,Uf;Fk; Mtz';fspd; mog;gilapy;. epaha thlif eph;zak; bra;jpl ghprPypf;fgl ntz;Lk;.

¶6ghprPyidapd; mog;gilapy; chpa tptu';fis gjpt[ bra;J. ,Wjpahd thlif eph;za cj;jutpid thlifjhuh;fSf;F tHq;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 mZfp 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;.

¶6In the present case, the litigation started between the petitioner and the respondents only through Na.Ka.No.918/2019/A5 dated 21.08.2020. On perusing the contents of the proceedings, it is seen that the notice was not issued prior to fixation of the fair rent. The relevant portion is extracted hereunder: ghh;itapy; fhZk; jpUr;rpuhg;gs;sp ,iz Mizah; cj;jutpd;go> rh;nt vz;.3297> kiythry; vd;w Kfthpapy; 2793.80 rJu mo ,lj;jpy; fl;olk; (tzpfk;) vd;w tifghl;oy; ,j;jpUf;nfhapypd; thlifjhuuhf ,Ue;J tUk; jpU.vk;.vd;.nf.gj;kehgd; Mfpa jq;fSf;F 1/07/2016 Kjy; nkw;fhZk; ,lj;jpw;fhd khj thlifahf U:.1>76>370/- eph;zak; bra;J cj;jputplg;gl;Ls;sJ. 01/07/2016

md;W

g[jpathlif

eph;zak; bra;ag;gl;Ls;s epiyapy; 30/06/2019 cld; K:d;whz;Lfs; epiwtile;J tpl;ljhy;> 01/07/2016 Kjy; eph;zapf;fg;gl;l g[jpa thlifapy; 15% cah;t[ bra;J khj thlifahf U:.202825/-eph;zak; bra;J cj;jutplg;gLfpwJ. 01/07/2019-k; njjp md;W jhq;fs; brYj;j ntz;oa g[jpa khj thlifj; bjhif U:.202825/-. 01/07/2020f;F Kd;dh; cs;s fhyq;fSf;F jhq;fs; brYj;j ntz;oa thlif jhq;fs; brYj;jpa[s;s thlif> brYj;jntz;oa epYitj;bjhiffs;> cs;spl;l tpguq;fs; moq;fpa fzf;fPl;Lj;jhs; ,j;Jld; ,izf;fg;gl;Ls;sJ. jpUf;nfhapYf;Fr; brhe;jkhd nkw;fhZk; ,lj;jpd; thlifjhuuhd jhq;fs; gpujp khjk; 5k; njjpf;Fs; thlif bjhifia

jtwhJ

brYj;jpl

ntz;Lk;

vd cj;jputplg;gLfpwJ.

¶7On perusal of the notice, it is seen that the notice was not issued at all. Even though a strong objection was raised that the petitioner ought to prefer the revision petition under Section 34-A of the Act, this Court is inclined to entertain this Writ Petition, for the sole reason that the initiation of the proceedings is against the dictum laid down in Writ Appeal. Moreover, the enhanced rent is fixed without hearing the petitioner and the same is violative of principles of natural justice and hence the writ petition is maintainable. Therefore, the respondents cannot further proceed to collect the rent which is fixed retrospectively. The said initiation of proceedings was from 21.08.2020 and therefore, the petitioner is liable to pay rent from 21.08.2020. It is submitted that the petitioner has vacated the premises on 18.05.2022 and hence the petitioner is liable to pay the enhanced rent until 18.05.2022. As far as the rent prior to 21.08.2020 i.e. from 30.06.2016 to 20.08.2020, the petitioner is not liable to pay the enhanced rent, since it is claimed with retrospective effect. However, the petitioner is liable to pay the regular rent for this period. If the petitioner had not paid the regular rent the same may be collected. The respondents are directed to re-calculate the enhanced rent for the period from

21.08.2020 to 18.05.2022 and collect the same. The impugned orders dated

25.11.2022 and all other orders subsequent orders passed by the respondents in consequent to the impugned order 25.11.2022 are hereby quashed. The said exercise shall be completed within a period of eight (8) weeks from the date of receipt of a copy of this order.

¶8When the Hon'ble Courts have repeatedly held that fair rent cannot be fixed retrospectively, then the respondents ought not to have fixed the enhanced rent retrospectively in the petitioner's case as well. Even though the Hon'ble Courts had decided the cases among the parties who were before the Courts, the ratio decidendi is that enhanced fair rent cannot be fixed retrospectively, which means the ratio is applicable in rem. But the respondents have imposed enhanced fair rent retrospectively only from 21.08.2020. The petitioner had stated the litigation by filing revision petition before the Commissioner on

09.10.2020. But the issue is already decided in Angala Parameswari's case (reported in 2009 (6) CTC 512) in the year 2009 itself. Thereafter also the petitioner was driven from pillar to post. Infact the petitioner had submitted an application to reduce the rent by allowing him to occupy 760 square feet rather 2793.80 square feet. Had that been considered, the petitioner would not have suffered increased rent which runs to crores. It is pertinent to state herein that the respondents have not issued any notice to the petitioner before fixing the fair rent. And this is the fact in almost all cases. When several litigations were filed on the question of notice not issued to the lessees, this fact was taken into account by the Commissioner, HR&CE who has issued a Circular dated

10.03.2022, wherein it has been categorically recorded that no notices were issued to the lessees and strictly directed to issue notice before fixing the fair rent. The temple land belongs to "Lord Thayumana Samy", but the authorities have acted which is affront to "Thayumana Samy".

¶9In view of the above, this Writ Petition is allowed. There shall be no order as to costs. Consequently, connected miscellaneous petition is closed.

25.09.2023 NCC : Yes/No Index : Yes / No Internet : Yes/ No Nsr 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, Trichirapalli.

S.SRIMATHY, J.

Nsr

25.09.2023

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 25.09.2023 CORAM THE HONOURABLE MRS.JUSTICE S.SRIMATHY and W.M.P.(MD).No.10745 of 2023 M.M.Vishal ... Petitioner 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, Trichirapalli. 3.Arulmigu Thayumanaswamy Temple, Represented by its, Executive Officer / Joint Commissioner, Malaikottai, Trichirapalli District. ... Respondents Prayer : Writ Petition filed under Article 226 of the Constitution of India, praying this Court to issue a Writ of Certiorari, to call for the records of the impugned order passed by the first respondent in R.C.No.6384/2021 dated 25.11.2022 and all other orders passed by the respondents in consequent to the impugned order and quash the same as illegal, unconstitutional and without jurisdiction. For Petitioner : Mr.S.Ramesh For R-1 and R-2 : Mr.S.P.Maharajan, Special Government Pleader. For R-3 : Mr.V.Chandrasekar