M. Kumarasamy Health and Educational Trust v. The Commissioner

O R D E R The petitioner is an Educational Trust, namely, M. Kumarasamy Health and Educational Trust running an Educational Institution in Karur. The petitioner Trust was in possession of a land in S.No.143/2 at Thottakurichi Village, Karur to an extent of 6.33 acres, which belongs to Arulmighu Mariamman Thirukovil, Karur/the fourth respondent herein. The petitioner claims that this land has been leased out to the petitioner trust by the then hereditary trustees of the fourth respondent temple. The petitioner has challenged the following orders in this writ petition:- i. The proceedings of the Commissioner, HR & CE Department in RC No.53265/19, dated 23.10.2018, directing the petitioner to pay a sum of Rs.67,44,700/- towards arrears of rent till 30.09.2018 to the fourth respondent temple. ii. The appeal filed by the petitioner in RC 53265/2018 before the Commissioner, under Section 34(A)(3) of the HR & CE Act,1959 challenging the notice dated

19.05.2018 issued by the fourth respondent, claiming the fair rent from the petitioner for the subject land was dismissed by the Commissioner on 03.12.2021 that the appeal is not accompanied with the deposit amount as required to be paid by the petitioner under Section 34(A)

(3) of the HR & CE Act. iii.The order of the Assistant Commissioner in Na.Ka.No. 701/2022/A2, dated 14.12.2023, for attaching the petitioner's property towards the arrears of rent as the petitioner has failed to pay the fair rent.

2.The learned senior counsel appearing for the petitioner submits that the subject land was leased out to the petitioner by the then trustees of the fourth respondent temple for a period of 99 years. The land was utilized by the Educational Institution run by the petitioner trust. Since the fourth respondent is claiming exorbitant rent, the petitioner trust has handed over the land to the fourth respondent temple on 28.02.2022. The respondents have fixed the fair rent for the land, for the period, for which, they are in occupation, without considering the procedure as contemplated under Section 34 of the HR & CE Act,1959 and the Government orders issued in this regard. The learned counsel has pointed out that the fourth respondent has demanded the fair rent by proceedings dated 23.10.2018. In the said proceedings, the fair rent has been fixed for the period from 01.12.2013 to 30.06.2016 – Rs.1,08,700/- per month and for the period 01.07.2016 to 30.06.2019 – 1,25,000/- per month. According to the petitioner, the rent has been fixed for the period from 01.12.2013 to 30.06.2019 in the year 2018, by deducting 15% of the fair rent, which was fixed for the year 2018, that too, without providing any opportunity to the petitioner.

3.The learned senior counsel has relied on the judgment of the Division Bench of the Principal Seat of this Court in Angala Parameswari and Kasivishwanathaswami Temple Vs. The State of Tamil Nadu, represented by its Secretary, reported in 2009 (6) CTC 512 and submits that in the above judgment certain guidelines have been issued for fixation of fair rent. According to the learned senior counsel, the respondents while fixing the fair rent, they have not issued any notice to the petitioner enabling him to raise his objections, if any. The learned senior counsel has also relied on the following judgments to substantiate his contentions. i. Order passed by this Court in R.Jaganathan Vs. Commissioner, HR & CE Department, reported in 2023

(1) CTC 737. ii. Judgment of by this Court in W.A(MD) Nos. 503 and 509 of 2022, dated 08.08.2022. The learned senior counsel further submits that the orders impugned in this writ petition are liable to be set aside on the ground of violation of principles of natural justice.

4.Mr.Aathimoolapandian, learned counsel appearing for the fourth respondent temple submits that the petitioner was in occupation of the temple land without any authorization and therefore, action was initiated as against this petitioner in the year 2013. Notice was issued under Section 78 of the HR & CE Act,1959 treating him as an encroacher. In the said proceedings, the petitioner has given an undertaking that he would pay the fair rent. On the undertaking given by the petitioner, the proceedings initiated as against the petitioner under Section 78 of the HR & Ce Act,1959 was dropped at the relevant point of time with a direction to the authorities to fix the fair rent. However, the concerned officer, who was in charge at that relevant point of time has not taken any initiative for fixing the fair rent. Subsequently, the fair rent has been fixed by the Committee constituted in the year 2018, after taking into account all the required parameters including the prevailing market rent and the same was communicated to the petitioner. Since there was an omission in fixing the fair rent by the Committee for the period from 2013 to 2016, it was also fixed by deducting 15% of the fair rent from the rent which has been fixed for the year 2018. The learned counsel has relied on the judgment passed in W.A.No. 425 of 2007, in K.Narayanan Vs.Joint Commissioner, HR & CE Department, dated 15.03.2007 and submits that the fourth respondent is entitled to claim arrears of rent from the petitioner and the same has been upheld by the Division Bench of this Court in Angala Parameswari and Kasivishwanathaswami Temple Vs. The State of Tamil Nadu, represented by its Secretary, reported in 2009

(6) CTC 512. The learned counsel further submits that the order of the year 2018 is challenged in the year 2023 and therefore, this writ petition is liable to be dismissed on the ground of latches.

5.This Court considered the rival submissions made and also perused the materials placed on record.

6.Admittedly, the petitioner was in possession of the fourth respondent temple land to an extent of 6.33 acres in S.No. 143/2. The petitioner claims that the subject land was entrusted to this petitioner by a lease deed by the then trustees of the temple. However, this petitioner was treated as an encroacher and a proceedings was initiated as against him under Section 78 of the HR & CE Act. In the said proceedings, the petitioner has given an undertaking letter before the Joint Commissioner that he is ready to pay the fair rent as fixed by the Department. Accordingly the petition was disposed of and a direction was issued to the fourth by the Joint Commissioner to fix the fair rent for the property in possession of this petitioner. However, the fair rent was not fixed as directed by the Joint Commissioner at that relevant point of time and it was only fixed in the year 2018. The learned counsel for the fourth respondent temple has produced a proceedings, dated 03.04.2018, in which, the fair rent was fixed. The Committee has taken into account certain parameters as contemplated under Section 34A of the HR & CE Act and has fixed the fair rent. The fourth respondent temple claims that this order has been communicated to the petitioner. However, the learned senior counsel for the petitioner has denied that this has not been communicated to this petitioner. By the said order, dated

03.04.2018, the fair rent for the period from 01.07.2016 to

30.06.2019 was fixed as Rs.1,25,000/- per month. By the communication, dated 25.10.2018, the fourth respondent has demanded the fair rent from the year 2013 at the rate of Rs.1,08,700/- per month by deducting 15% from the fair rent, which was fixed for the year 2018. The temple authorities have to fix the fair rent as per Section 34(A) of the HR & CE Act,1959 and the same is extracted as under:- 34-A. Fixation of lease rent.—The lease rent payable for the lease of immovable property belonging to, or given or endowed for the purpose of, any religious institution, shall be fixed by a Committee consisting of the Joint Commissioner, the Executive Officer or the Trustee or the Chairman of the Board of Trustees, as the case may be, of the religious institution and the District Registrar of the Registration Department in the district concerned taking into account the prevailing market rental value and the guidelines, as may be prescribed and such lease rent shall be refixed in the like manner once in three years by the said Committee.

7.In this regard, several guidelines have been issued by the Government. By discussing the guidelines and the issues, the Division Bench of this Court in Angala Parameswari and Kasivishwanathaswami Temple Vs. The State of Tamil Nadu, represented by its Secretary, reported in 2009 (6) CTC 512 has held as follows:

¶15The 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; fPohd thlif eph;zaf; Fothy; epaha thlif eph;zak; nra;ag;glitzy;iy.

¶2rpy ,dq;fspy; nray; mYtyh; / mwq;fhtyh;> cjtp Nfhl;lg; nghwpahsh; MfpNahh;fshy; kl;LNk thlif eph;zapj;J mwpf;if mDg;gg;gLfpwJ.

¶3gy ,dq;fspy;> khtl;lg; gjpthshpd; ,irTld; thlif eph;zak; nra;ag;gLtjpy;iy.

¶4re;ij kjpg;gpid fUj;jpy; nfhs;shky;> topfhl;b kjpg;gpd; gb epahathlif fzf;fPL nra;ag;gLfpwJ.

¶5murhiz vz;.353 ehs; 04.06.1999 kw;Wk; murhiz vz;. 456 ehs; 09.11.2007 Mfpatw;wpy; njhptpf;fg;gl;l top Kiwfisf; filg;gpbf;fhkNy thlif eph;zak; nra;ag;gl;L tUfpwJ.

¶6murhiz vz;.353 ehs; 04.06.1999 "gj;jp VIII-m"-y; njhptpf;fg;gl;lthW tPLfs; fhypkidfs;/ filfs; /Fj;jif/ thlifapid "thlif eph;zaf;FO" %yk; eph;zak; nra;ag;gl;L mwq;fhtyh; Fotpd; ghprPyidAld; me;je;j ,iz Mizah;fshy; mq;fPfhpf;fg;gLtjpy;iy.

¶7murhiz vz;.353 ehs; 04.06.1999 IX-tJ gj;jpapy; njhptpj;jthW %d;whz;LfSf;F xUKiw thlif cah;tpid "thlif eph;zaf; FO"tpd; %yk; cah;j;jg;gLtjpy;iy.

¶8thlif eph;zaf; FOthy; eph;zak; nra;ag;gLk; thlifapid fzf;fPl;Lj; jhSld; thlifjhuh;fSf;F mDg;gp xg;Gjy; ngWtjpy;iy".

16.The Government also noted that of 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 02.02.2009 as per which, additional and clarificatory guidelines were issued and therefore, it is found that opportunity W.P(MD)No.31345 of 2023 of o raising o objections o is o given o to o the o lessee.Theo proceedings,odatedo02.02.2009oreadsoasofollows:-

¶1thlif eph;zaf; FOthy; ephz; ak; nra;agg; Lk; thlifapid fzff; Pl;Lj; jhSld; thlifjhuhf; Sf;F mDgG; jy; Ntz;Lk;.

¶2fzf;flP ;Lj;jhspy; ephz; apf;fg;gl;Lss; thlif> ,lj;jpd; gugg; sT> fll; lj;jpd; gug;gsT> epykjpgG; > FbapUgG; / tzpfj;jd;ik> thlif rjtPjk;> Gjpa thlif Mfpait Fwpj;J Ml;Nrgizfs; vJkpUg;gpd;> mjid nka;gg; pfF; k; Mtzq;fSld;> xUthu fhyj;jpwF; s; kDjhuh;fs; gjpiy mDg;Gjy; Ntz;Lnkd thlifjhuhf; Sf;F mwptpg;G mDg;gg;gly; Ntz;Lk;.

¶3NkNy Fwpg;gpl;l tprhuizf;F thlifjhuh;fs; Neubahf tuNtz;Lnkd typAWj;j Njitapy;iy. mthf; splkpUe;J gjpiyg; ngw;W ghprPypj;jhNy NghJkhdJ.

¶4NkwF; wpg;gpll; gb thlifjhuh;fsplkpUe;J ngwg;gLk; gjpy;> thlif ephz; af;FOthy; ghprPypf;fg;gl Ntz;Lk;.

¶5chpa fhyj;jpwF; s; gjpy; VJk ; tutpy;iynadpy;> ,UfF; k; Mtzq;fspd; mbg;gilapy;> epaha thlif eph;zak; nra;jpl ghprPypf;fg;glNtz;Lk;.

¶6ghprPyidapd; mbgg; ilapy; chpa tptuq;fis gjpT nra;J> ,Wjpahd thlif ephz; a cj;jutpid thlifjhuhf; Sf;F toqf; p xgG; jy; ngw Ntz;Lk;. Nkw;fh?k; mwpTiufspd;gb> thlifjhuh;fSfF; > thlif cah;T Fwpj;J mwptpgG; mDg;gp Ml;Nrgidfs; ngw;W ,Wjpahf thlif eph;zak; nra;tjd; %yk;> thlifjhuh;fs; ePjpkd;wj;ij mZfp tof;Ffs; njhLg;gij jtph;f;fyhk; vdTk; njhptpf;fg;gLfpwJ. ,r;Rw;wwpf;ifapid ngw;Wf; nfhz;likf;fhd xg;Gjiy ,t;tYtyfj;jpw;F mDg;g midj;J rhh;epiy mYtyh;fSk; Nfl;Lf; nfhs;sg;gLfpwhh;fs;." :

¶17It 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 violated, has been answered by the proceedings dated 2.2.2009. The direction contained therein shall be compulsorily followed.

¶8In the same judgment, the Division Bench of this Court has also discussed with regard to the dismissal of the appeal by the Commissioner under Section 34(A) of the HR & CE Act that appeal is a creature of statute and the authorities are entitled to laid down the conditions subject to which, the appeal will be entertained. Admittedly, the petitioner has not paid the amount as required under Section 34(A) (5) of the HR & CE Act, 1959, while preferring the appeal. The right of the temple in claiming the rent retrospectively was already discussed by the division Bench of this Court in W.A.No.425 of 2007, K.Narayanan Vs.The Joint Commissioner and another, dated 15.03.2007 and the same is extracted as under:-

2.We tried to find out the nexus of fixing the date such as

01.11.2001 for payment of enhanced rent. It was brought to the notice of the learned single Judge that vide G.O.Ms.No.353, dated 04.06.1999, the State Government issued revised guidelines for enhancement of rent at the rate of 33.31 once in three years. While so, the Government issued another order dated 08.08.2001 addressing the Special Commissioner and the Commissioner, HR & CE referring the earlier G.O.Ms.No.353, dated 04.06.1999 and two other letters of the Government and directed the Commissioner to implement the said decision, dated 04.06.1999 with effect from 01.11.2001. The authority should have implemented the order way back in the year 1999 but it was implemented from the subsequent date that is with effect from 01.11.2001. In view of the aforesaid fact and that the property belongs to Devasthanam (temple), this Court is not inclined to interfere with the order passed by the learned single Judge. The Writ appeal is dismissed. No costs.''

9.In view of the above, this writ petition is disposed of with the following directions: i. The Committee, which was constituted under Section 34(A) of the HR & CE Act, 1959 shall revisit the fixation of fair rent on the subject property from the year 2013, by taking into consideration the market rent prevailing at that relevant point of time along with the calculation from the year 2013 till the date of hand over of the property by the petitioner to the fourth respondent temple, within a period of twelve weeks from the date of receipt of a copy of this order. ii. The fourth respondent shall communicate the rent fixed by the Department along with the calculation to this petitioner enabling him to offer his reply, if any, and thereafter finalise the fair rent. iii.The petitioner shall file his reply within a period of four weeks from the date of receipt of such information from the fourth respondent. iv. On finalization of the fair rent, it shall be communicated to this petitioner and the petitioner shall pay the arrears of rent in six equal monthly installments. v. The petitioner shall pay a sum of Rs.25,00,000/- (Rupees Twenty Five Lakhs only) within a period of eight weeks from the date of receipt of a copy of this order. The amount to be paid by the petitioner shall be adjusted from the fair rent to be fixed by the respondents. vi. In the event of failure in making the aforesaid payment, the respondents shall proceed with the recovery proceedings.

No costs. Consequently, connected Miscellaneous petitions are closed.

29.02.2024 NCC:Yes/No Index:Yes/No Internet:Yes vrn To

1.The Commissioner, Hindu Religious and Charitable Endowments Department, Nungambakkam, Chennai 600 034.

2.The Joint Commissioner, Hindu Religious and Charitable Endowments Department, Thiruppur.

3.The Assistant Commissioner, Hindu Religious and Charitable Endowments Department, Karur.

4.The Fit Person / Executive Officer, Arulmigu Mariamman Thirukovil, Thalavapalayam, Pugalur Taluk, Karur District. W.P(MD)No.31345 of 2023 B.PUGALENDHI,oJ. vrn Orderomadeoin W.P(MD)No.31345oofo2023oand WMP(MD)oNos.26900,26901o&o26902oofo2023

29.02.2024

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 29.02.2024 CORAM: THE HONOURABLE MR.JUSTICE B.PUGALENDHI W.P(MD)No.31345 of 2023 and WMP(MD) Nos.26900,26901 & 26902 of 2023 M. Kumarasamy Health and Educational Trust, 127, Main Road, Thalavapalayam, Punjaithotta Kurichi Village, Pugalur Taluk, Karur District. Represented by its K.R.Charan Kumar ... Petitioner Vs 1.The Commissioner, Hindu Religious and Charitable Endowments Department, Nungambakkam, Chennai 600 034. 2.The Joint Commissioner, Hindu Religious and Charitable Endowments Department, Thiruppur. 3.The Assistant Commissioner, Hindu Religious and Charitable Endowments Department, Karur. 4.The Fit Person / Executive Officer, Arulmigu Mariamman Thirukovil, Thalavapalayam, Pugalur Taluk, Karur District. 5.Arulmigu Mariamman Thirukoil,, Rep by its Hereditary Trustee, K.M. Magentra Balaji, Thalavaipalayam, Pugalur Taluk, Karur District. ..Respondents (R5 is impleaded Vide Court Order Dated.16.02.2024 in WMP(MD) No.1158 of 20214 by BPJ) . PRAYER: Writ Petition filed under Article 226 of the Constitution of India, praying this Court to issue a Writ of Certiorarified Mandamus, calling for the records pertaining to the impugned order passed by the 3rd respondent in Na.Ka.no.701/2022/A2 dated 14.12.2023 and the impugned order dated 03.12.2021 passed by the 1st respondent in R.C.No. 53265/2018 and the impugned order dated 23.10.2018 passed by the 4th respondent, and quash the same and consequently forbearing the respondents from demanding any arrears of rent for the land in Survey no. 143/2 measuring to an extent of 6.33 acre Punjai Thottakurichi Village, Karur District from the petitioners. For Petitioner : Mr.Meenakshi Sundaram Senior Counsel For R1 to R3 : Mr.P.Subba Raj Special Government Pleader For R4 : Mr.Aathimoolapandian