Madras High Court
Chennapuri Annadana Samajam vs State Of Tamil Nadu on 25 July, 2014
Equivalent citations: AIR 2015 (NOC) 450 (MAD.), 2014 AIR CC 3299 (MAD)
Author: T. Raja
Bench: T.Raja
IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated:- 25.07.2014 Coram:- The Honourable Mr. Justice T.Raja Writ Petition No.7988 of 2013 and M.P. Nos.1 and 2 of 2013 Chennapuri Annadana Samajam, rep. By its Honorary Secretary V.R.Udaya Shankar, 13/76, Nyniappa Naicken Street, Park Town, Chennai 600 003. ... Petitioner vs. 1. State of Tamil Nadu, rep. by its Secretary, Hindu Religious and Charitable Endowments Department, Fort St. George, Chennai 600 009. 2. The Commissioner, Hindu religious and Charitable Endowments, Nungambakkam High Road, Chennai 600 034. 3. Arumighu Kapaleswarar Temple, rep. by the Executive Officer / Deputy Commissioner, Mylapore, Chennai 600 004. ... Respondents For petitioner : Mr.G.Masilamani, Senior Counsel for Mr.Mani Sundargopal For Respondent-3 : Mr.N.Varadarajan For R-1 & R-2 : Mr.S.Kandaswamy, Special Govt. Pleader (HR & CE). Petition under Article 226 of the Constitution of India for the issuance of a writ of certiorarified mandamus as stated therein. O R D E R
The petitioner herein seeks for issuance of a writ of certiorarified mandamus to call for the records relating to the order dated 08.06.2012 bearing Na.Ka.No.2793/86/A4 on the file of R-3 and also the consequential Order dated 08.10.2012 bearing Na.Ka.No.2793/86/A4 culminating in the order dated 31.01.2013 bearing Na.Ka.No.2793/86/A4 on the file of R-3, quash the same and consequently, direct the respondents to renew the lease period on the same terms and conditions of the lease deed dated 12.04.1961.
2. The only question involved for consideration in the present writ petition is, when there was a lease granted under Section 41(1) of the Tamil Nadu Hindu Religious and Charitable Endowments Act (hereinafter referred to as the Act')- in favour of the petitioner - Chennapuri Annadhana Samajam as Lessee by the Lessor-Trustee of the third respondent/temple for a period of 50 years with a specific clause for automatic renewal of lease for a further period of 25 years on the same terms and conditions, without there being any violation of the lease conditions, whether the third respondent/temple is legally entitled to refuse for extension of the lease more particularly when the Government had accorded its sanction to such lease with a clause for automatic renewal for a further period of twenty five years on the ground that the petitioner/lessee is not agreeable for fixation of fair rent for the leased property which phenomenon will serve as a reason for the Collector to resume the lands on failure to perform the charity as mentioned in Section-41(2)(a)(iii) of the Act?
3. Mr.G.Masilamani, learned Senior Counsel appearing for the petitioner, at the first instance, highlighting upon core factual aspects, submitted thus:
The petitioner is a Public Charitable Trust established on 01.07.1890 with an avowed object of doing service to the downtrodden, orphans and poor people. In that perspective, the Trust has been running an Orphanage from the year 1892 along with an Educational Institution meant for orphans. In order to strengthen the constitution of the Samajam-Trust and to secure legal status, the Samajam was registered on 20.01.1893 under Act XXI of 1860. Consequently, on 18.12.1985, H.E.Lord Wenlock, G.C.I.E., the then Governor of Madras inaugurated the main building of the Samajam situated near Park Town, Chennai. The Samajam also started a Primary School named as Chennapuri Annadana Samajam E.N.V. Sangam Primary School at Park Town, Chennai, for the benefit of orphans in the Orphanage. Appreciating and recognizing the social services of the Samajam, the State Government also granted salary aid to the school ever since its inception. While so, in the year 1960, the petitioner-Trust was in great need of space to accommodate about 150 orphans maintained by it and R-3/temple, which was also running an Orphanage with 18 students at Greenways Road, Adyar, Chennai, was finding it difficult to continue the Orphanage run by it and, in the said background, R-3/Temple wanted the petitioner-Trust to take over the Orphanage run by the temple so as to continue the charitable activity of running the Orphanage in the name of the Trust and, in that regard, the temple also came forward to lease the lands owned by it in favour of the petitioner by applying to the State Government, seeking its sanction to lease the temples lands measuring to an extent of 103 grounds comprised in R.S. No.3896, Sundaram Salai, Greenways Road, Adyar, Chennai, under the proviso to Section 41 (1) of the Act. Accordingly, the State Government, in G.O. Ms. No.5273, dated 22.12.1960, sanctioned the lease of R-3/temples lands to the petitioner-Trust after satisfying itself with the terms of the lease that the petitioner-Samajam to have a lease of 103 grounds of land comprised in RS No.3896, Sundaram Salai, Greenways Road, Adyar, Chennai, for a period of 50 years on an annual rent of Rs.1,250/- with an option to renew the lease for a further period of 25 years on the same terms and conditions as in the lease. It was further provided in the Government Order that at the end of the period of (50 + 25) 75 years, the petitioner/Samajam to have the option to renew for a further period of 25 years each successively. Thus, only after proper sanction from the Government, R3/temple had leased the lands in question to the petitioner-Trust by Lease Deed dated 12.04.1961 registered as Document No.675/1961 on the file of the Sub Registrar, Mylapore.
Adding further, learned Senior Counsel submitted that, after taking possession of the said land in the year 1962, the petitioner-Trust had raised ground plus single storeyed buildings consisting of Kitchen, Dining Hall, Prayer Hall, 22 Residential Rooms for the inmates of the Orphanage, Toilets and Bathrooms over an area measuring to an extent of about 30000 sq. ft. besides a single-storeyed school building ad-measuring about 4500 sq. ft., thus, the total built up area is approximately 34500 sq. ft. In order to provide better education, a High School from 6th to 10th standard was started in 1964 after the name of Chennapuri Annadana Samajam Dr.P.Venkataramana Rao, one of the Founder Trustees of the petitioner-Trust.
It is further highlighted that, in course of time, 200 students from poor and downtrodden families were admitted for pursuing studies in the school by staying in the Hostel. The Trust is running the school and Orphanage in the best possible way with all available means. Apart from healthy food and reasonably good lodging facilities, the students are also given periodical medical check-up/medication by a team of Doctors as and when required. According to him, all along, the Trust has been keenly ensuring that the orphans are kept in a happy and harmonious environment. Further, sufficient number of qualified teachers and non-teaching staff are employed in order to keep both the School and Orphanage in an orderly fashion. The outcome is, a number of students from the Orphanage and the School have attained high positions such as Engineers, Police Officials, Government Officials etc. and the said factum bears testimony to the dedicated services of the Trust in fulfilling the charitable obligations. As a token of recognition for such services, the Social Welfare department, Government of Tamil Nadu as well as the Backward, Most Backward and Minority Welfare Board & Scheduled Tribe Departments of the Government of Tamil Nadu sanctioned grants at the rate of Rs.650/- per month for each of the 107 students out of the total strength of 200. Apart from the said support, the daily expenses of the trust are met by donations received from a number of philanthropists and also from the funds of the Trust.
Learned Senior Counsel would add that, when the matter stood thus, in the year 1992, R-3/temple, to prevent encroachment by the nearby slum dwellers on the vacant lands leased out to the petitioner-trust, had requested it to hand over 74 grounds and 2040 sq. ft. of vacant land out of the 103 grounds leased to the Trust and to retain only 28 grounds and 360 sq. ft. of land whereat the buildings exist, housing the School and the Orphanage/Hostel. Immediately, the petitioner-Trust handed over an extent of 74 grounds and 2040 sq. ft. of land to the temple as per letter dated 14.09.1992 and, vide Resolution No.270 dated 14.09.2992, R3/temple consequently took possession of the land way back in 1992. When the above surrender was done even before expiry of the lease period of 50 years and further, when the Trust, by letters dated 18.06.2009, 06.10.2009 and 17.09.2010 had expressed its willingness to extend the lease period for another 25 years as per clause-8 of the Lease deed dated 12.04.1961, very unfortunately, R3-temple issued a reply through its Advocate on 25.04.2011 rejecting the petitioners request for extension of lease for another period of 25 years. By impugned Notice dated 08.06.2012, the Temple threatened the petitioner with eviction proceedings under Section 78 of the Act. After repeated representations, by subsequent impugned notice dated 08.10.2012, it was conveyed that the period of lease can only be extended for a period of three years alone that too after fixing a fair rent.
By heavily contending that the approach adopted by the temple in proposing to extend the lease just for three years by absolutely bidding a go-bye to the automatic renewal clause in the lease deed which came into existence after proper sanction by the Government through a G.O. and to levy sizable amount as rent under the guise of fixing fair rent is nothing but a well-designed effort to evict the Trust with a view to terminate the charitable activities. According to the learned senior counsel, such an effort runs not only contrary to the terms of conditions mentioned in the lease deed dated 12.04.1961 but also would result in a very adverse situation by operation of the provision under Section 41 (2) (a) (iii) of the Act. When further representation was made to the temple to act by the renewal clause contained in the Lease deed, by impugned notice dated 31.01.2013, it informed the petitioner-Trust about their decision to terminate the tenancy of the trust by 28.02.2013 and thereby, directed to surrender back the demised properties on or before 01.03.2013 with a warning that, otherwise, the petitioner would be treated as an Encroacher and action will be taken under section 78 of the Act for eviction. Fearing adverse action by the temple and the resultant situation putting in question the future of hundreds of Orphans and their education as well as future, the petitioner-Trust, finding no other option, has come to this Court by invoking the equity jurisdiction under Article 226 of the Constitution of India.
Assailing the hard approach of the temple in declining to renew the lease as per clauses-8 and 9 of the Lease Deed for further effectively continuing the charitable cause, learned Senior Counsel would submit that the action of the temple based on Section 34 of the Act for refusing automatic renewal on the same terms and conditions as found in the original lease but agreeing to go for extension of lease just for a period of three years that too on hiked rent under the guise of fixing fair rent is legally unacceptable inasmuch as sub-Section (5) of the very same provision under Section-34 makes it abundantly clear that it does not apply to inam lands as referred to in Section-41 of the Act. He has also referred to the contents of G.O. Ms. No.5273 dated 22.12.1960 which explicitly show that the lands in question are inam lands for placing his further submission that if the respondents intend to enhance the lease rent for the lands in question, any consequential action in that perspective would run fatal to the temple since the inability on the part of the petitioner-Trust to pay the enhanced rent would ultimately result in failure to carry out the charitable purpose to perform which the Inam was made. In other words, according to him, such a perilous situation would ultimately pave way for the Collector to resume the lands in terms of Section 41 (2) (a) (iii) of the Act. Therefore, when the lands in question are admittedly inam lands, after allowing the petitioner-trust to perform charity by rendering service to the Orphans in the form of providing qualitative education with hostel, food and medical facilities, any unholy effort to take back the lands by fixing fair rent as if the property is meant for generating income would ultimately make the temple lose the very leased out lands in question by resumption of the same by the Collector. Ultimately, the charitable purpose which admittedly continues till today at the hands of the Trust would come to an end and thereby, the very future of the Orphans whose one and only hope is the Orphanage run by the Trust would be put at stake.
It is repeated that even though 103 grounds of land was given under the lease with an automatic clause for renewal for 25 years on the same terms and conditions, even before expiry of 50 years period, the temple asked for surrender of about 74 grounds by passing a resolution dated 14.09.1992, whereupon, the petitioner, without any hesitation, immediately surrendered 74 grounds of land retaining only 28 grounds and 360 sq. ft. consisting of the school and orphanage with a compound wall constructed by the petitioner-trust. Therefore, it is absolutely unfair for the temple to curtail the automatic renewal period and even to think for fixing fair rent for the remaining extent of land which is exclusively used for orphans in the Orphanage. The effort of the temple to deprive the Trust to get the benefit of the automatic renewal clause goes contrary to the basic doctrine of the religion insisting upon charity to the needy and when the case of the orphans comes, the charitable purpose is further expanded as it is seen by everyone as one of the best forms of charity. Therefore, the temple cannot be allowed to succeed in its destructive endeavor whereby, it may even lose the lands by virtue of Section 41 (2)(a)(iii) of the Act because of non-performance of charity, and ultimately, the charitable purpose for which the inam of the lands in question was made would come to a grinding halt and thereby, irreparable damage and injustice would result to the Orphans in the Orphanage as they would lose their future.
While concluding his arguments, learned Senior Counsel again stressed the point that the demand for fixation of fair rent is nothing but an antithesis to charity. In the event of the inability of the petitioner-trust to accede to the enhancement of the rent as they are running only an Orphanage without getting any income, failure to continue the charity would definitely resume the whole of the Inam land with the Collector either on his own motion or on the application of the trustee of the Institution or any person having interest in the Institution, therefore, the impugned order is first of all running contrary to the interests of the temple itself. This vital aspect has been ignored while rejecting the request of the petitioner seeking automatic renewal of the lease so as to continue the charitable purpose. So submitting, he pleaded for interference by this court to ensure continuance of the charitable purpose for the welfare of the poor Orphans at the hands of the petitioner-trust.
4. Per contra, Mr.N.Varadarajan and Mr.S.Kandaswamy, learned counsels appearing for R3/temple and the HR & CE Board respectively, raising questions over maintainability of the writ petition, sought for dismissal of the same on the ground of mis-joinder of necessary party since the petitioner-Trust has not impleaded the Board of Trustees of the temple. Secondly, the petitioner, who has the remedy to file a suit for specific performance for enforcement of the renewal clause Nos.8 and 9 of the Lease Deed, has erroneously approached this Court by filing the present writ petition. In other words, a writ petition for enforcement of the lease conditions cannot be maintained and hence, the same is liable to be dismissed as per the ruling of the Division Bench of this Court in A.N.Kumar v. Arumighu Arunachaleswarar Devasthanam, Thiruvannamalai and others (2011-2-L.W.-1), wherein, it is held that the bar of jurisdiction of Civil Court under the 2nd proviso to Section 79 is the bar in respect of suits instituted only by a lessee/licensee/mortgagee of the religious institution or endowment. Again, by referring to Section-41 of the Act, it is submitted that any lease for a term exceeding 5 years of the whole or any portion of any inam granted for the support of maintenance of a religious institution, even recognized by the Government, is held to be null and void, therefore, the temple rightly refused to renew the lease for another 25 years, however, it agreed to renew the same for three years on condition that fair rent will be applied. Only by operation of law, the original lease deed executed in favour of the petitioner for 50 years with an option to renew the lease for further period of 25 years on the same terms and conditions has been held to be null and void. In such circumstances, the lease cannot be directed to be extended as sought for by the petitioner.
It is submitted further that, as per the terms of the lease, the petitioner being lessee, was bound to protect and safeguard the leased out property in question, but the petitioner miserably failed in that perspective by indolently allowing the slum dwellers to occupy over an extent of about 74 grounds and 2040 sq. ft., thereby, the entire 74 grounds of valuable land came to be declared as a Slum Area under the Tamil Nadu Slum Clearance Act, 1971, therefore, the temple passed the resolution against the petitioner negativing the request for automatic renewal of lease for 25 years on the same terms and conditions. Viewed in that angle, no unreasonableness or unfairness can be attributed to the temple. If the petitioner is not willing to accede to the new conditions, as per law, he will be treated as an encroacher and subjected to eviction in terms of Section 78 of the Act. Moreover, the Government have issued G.O. Ms. No.353, dated 04.06.1999, as modified by G.O. No.446, dated 09.11.2007. Ultimately, the said G.O. No.353 dated 04.06.1999 came to be upheld by a Division Bench of this Court in W.A. No.402 of 2000 on 13.3.2000 and the temple is now bound by the said G.O. as well as the Division Bench Judgment in the Writ Appeal. Therefore, if the petitioner cannot pay the fair rent, it has no option but to face eviction. Inasmuch as the impugned proceedings of the temple as well as the HR & CE Board are based on legal provisions, it is pleaded that there is no scope for interference, hence, the writ petition may have to be dismissed as devoid of any merit.
5. In reply to the arguments by the learned counsel for the respondents on the maintainability of the Writ Petition, Mr.G.Masilamani, learned Senior Counsel for the petitioner would submit that the Division Bench decision in A.N.Kumar's case relied upon by the other side is unnecessarily construed by the learned counsels for the respondents as the one endorsing their stand that the petitioner has to approach only the civil court for enforcement of the lease conditions. According to him, any narrow construction would leave the petitioner-trust without remedy in its struggle to run the Institute/Orphanage and the School meant for orphans. He added that at paragraph No.49 of the case law, it is observed that there is a specific bar under the 2nd proviso to Section 79 of the Act to the effect that no such suit shall be instituted by a person who is let into possession of the property or who is a lessee, licensee or mortgagee of the religious institution or endowment. Again, sub-section(3) provides that no injunction shall be granted by any Court in respect of any proceeding taken or about to be taken by the Joint Commissioner under Section-78. According to him, in view of the bar under Section 79(2), if this Writ petition is simply discarded by this Court, the Orphanage hitherto run by the petitioner-Trust from 1892 would face closure and the poor orphans, who have no support in the society, would be driven to the corners of the Streets and allowing such ill thing to happen would never be the endeavor of this Court, dispensing justice under equity jurisdiction. Apart from that, Section 34-D of the Act also specifically bars institution of any suit or other legal proceeding in respect of an order passed under Section 34-A, 34-B or 34-C as the case may be. In the present case, for the reason that the petitioner may not be able to pay the enhanced rent, which in pure logical sense a demand of rent on commercial basis from an Institution performing charitable/pious obligations, the proceedings of the temple under Section 34-C of the Act would not definitely allow the petitioner to maintain a suit, therefore, in fine tune with the legal maxim Ubi Jus Ibi Remedium applied in equity jurisprudence that there is no wrong without a remedy, writ proceedings are absolutely maintainable. In view of the proceedings of the temple under Section 34-C which operate as a bar under Section 34-D to maintain a suit, the petitioner can very well maintain the present writ petition for getting proper relief to safeguard the Orphanage and the Educational Institution so as to continue the acts of charity by utilizing the land in question, which is admittedly and undoubtedly an inam made to execute only charitable acts.
6. In view of the strong objections raised on the maintainability of the writ petition, it is but relevant to deal at the first instance with the legal provisions governing the issue.
Section-79 of the Act reads thus:-
Mode of eviction on failure of removal of the encroachment as directed by the Joint Commissioner [(1) Where within the period specified in the order under sub-section (4) of section 78, the encroacher has not removed the encroachment and has not vacated the property, the Assistant Commissioner having jurisdiction over the division may remove the encroachment and obtain possession of the property encroached upon, taking such police assistance as may be necessary. Any Police Officer whose help is required for this purpose shall render necessary help to the Assistant Commissioner.
(2) Nothing in sub-section (1) shall prevent any person aggrieved by the order of the Joint Commissioner under sub-section (4) of section 78 from instituting a suit in a Court to establish that the religious institution or endowment has no title to the property:
Provided that no Civil Court shall take cognizance of any suit instituted after six months from the date of receipt of the order under sub-section (4) of section 78 :
Provided further that no such suit shall be instituted by a person who is let into possession of the property or who is a lessee, licensee or mortgagee, of the religious institution or endowment.
(3) No injunction shall be granted by any Court in respect of any proceeding taken or about to be taken by the Joint Commissioner under section 78.
Thus, the 2nd proviso to Section-79(2) of the Act operates as a bar for a lessee from filing a suit. In this regard, the observation of the Division Bench in A.N.Kumar's case (cited supra) is useful to be extracted below:-
44. As discussed above, Section 79 does not provide for any mechanism for the temple to approach the Civil Court. Therefore, the remedy is given only to the encroacher for passing an order against him. Hence, the bar certainly would apply to the case of the encroacher in directly filing the suit against the temple.
.....
49. We summarise our conclusions as under:
So far as the suits filed by the temple for eviction of tenants/licensees/lessees/mortgagees for filing of the ejectment suit, the Civil Court's jurisdiction is not barred. The decision to approach Civil Court or invoke the provisions of H.R. & C.E. Act vests with the Temple. In cases of encroachers, temple authorities can either resort to the provisions under Sections 78, 79, 79-A, 79-B or to approach the Civil Court. The decision to elect a particular procedure lies with the owner of the property, being the Temple.
In view of the express bar under 2nd proviso to Section 79, in so far as the suits by the encroachers/lessees/licensees/mortgagees, the bar under Section 108 will get attracted excepting in instances specifically stated in the 1st proviso to Section 79. The above observation clearly reiterates the position that no civil suit can be filed by a lessee in view of the specific bar under the 2nd proviso to Section 79. As rightly pointed out by the learned Senior Counsel, the petitioner cannot approach the Civil Court as per the above ruling of this Court since the petitioner, who is a lessee, cannot maintain a suit in view of such specific bar. Therefore, in the light of the legal principle that there is no wrong without a remedy, this Court is fully convinced to endorse the maintainability of the writ petition by discarding the contrary submissions of the other side so as to consider the vital issue relating to the future of the Orphanage and the Educational Institution run by the petitioner-Trust meant for orphans.
7. The petitioner being a Public Charitable Trust, established on 01.07.1890, ever since its inception, has been functioning with the avowed object of doing service to the downtrodden, orphans and poor people. To execute the objects, the Trust has been running an Orphanage since 1892 along with an educational institution for the orphans. The petitioner-Samajam secured its legal status by registering its name on 20.01.1893 under Act XXI of 1860. It is seen that on 18th December, 1895, H.E.Lord Wenlock, G.C.I.E, the then Governor of Madras inaugurated the main building of the Samajam situated near Park Town, Chennai. Subsequently, the petitioner-Trust started maintaining a primary school named as Chennapuri Annadana Samajam E.N.V. Sangam Primary School at Park Town in Chennai, for the benefit of the orphans in the Orphanage. During that time, the petitioner-Trust was also in great need of space to accommodate the inmates of the Orphanage. While so, the Temple was also running an Orphanage but it was struggling to continue the Orphanage. Therefore, it was willing to transfer the Orphanage run by it to the petitioner and also to lease out the lands in question on condition that the Trust should take over the Orphanage run by the Temple so as to continue the charitable act without any hiccup. In the meanwhile, the Act came into effect during 1959 and the contents of the provisions under Section 34 and 41 being relevant, they are quoted below:
Section 34 "
Alienation of immovable trust property (1) Any exchange, sale or mortgage and any lease for a term exceeding five years of any immovable property, belonging to, or given or endowed for the purpose of, any religious institution shall be null and void unless it is sanctioned by 1[the Commissioner] as being necessary or beneficial to the institution :
Provided that before such sanction is accorded, the particulars relating to the proposed transaction shall be published in such manner as may be prescribed, inviting objections and suggestions with respect thereto; and all objections and suggestions received from the trustee or other persons having interest shall be duly consider by [the Commissioner] :
[Provided further that the Commissioner shall not accord such sanction without the previous approval of the Government].
Explanation."Any lease of the property above mentioned though for a term not exceeding five years shall, if it contains a provision for renewal for a further term (so as to exceed five years in the aggregate), whether subject to any condition or not, be deemed to be a lease for a period exceeding five years.
(2) When according such sanction, [the Commissioner] may impose such conditions and give such direction, as [he] may deem necessary regarding the utilization of the amount raised by the transaction, the investment thereof and in the case of a mortgage regarding the discharge of the same within a reasonable period.
(3) A copy of the order made by [the Commissioner] under this section shall be communicated to the Government and to the trustee and shall be published in such manner as may be prescribed.
(4) The trustee may, within three months from the date of his receipt of a copy of the order, and any person having interest may within three months from the date of the publication of the order [appeal to the Court] to modify the order or set it aside.
[(4-A) The Government may issue such directions to the Commissioner as in their opinion are necessary, in respect of any exchange, sale, mortgage or lease of any immovable property, belonging to, or given or endowed for the purpose of, any religious institution and the Commissioner shall give effect to all such directions].
(5) Nothing contained in this section shall apply to the imams referred to in section 41.
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.
Explanation."For the purpose of this sub-section, "prevailing market rental value" means the amount of rent paid for similar types of properties situated in the locality where the immovable property of the religious institution is situated.
(2) The Executive Officer or the Trustee or the Chairman of the Board of Trustees, as the case may be, of the religious institution concerned, shall pass an order fixing the lease rent and intimate the same to the lessee specifying a time within which such lease rent shall be paid.
(3) Any person aggrieved by an order passed under sub-section (2), may, within a period of thirty days from the date of receipt of such order, appeal to the Commissioner, in such form and in such manner, as may be prescribed.
(4) The Commissioner may after giving the person aggrieved an opportunity of being heard, pass such order as he thinks fit.
(5) Any person aggrieved by an order passed by the Commissioner under sub-section (4) may, within ninety days from the date of receipt of such order, prefer a revision petition to the High Court:
Provided that no appeal or revision shall be entertained under sub-section (3) or sub-section (5), as the case may be, unless it is accompanied by satisfactory proof of deposit of the lease rent so fixed or refixed, in the account of the religious institution concerned and such amount shall be adjusted towards the lease amount payable by the lessee as per the order passed in the appeal or revision, as the case may be.
Section 34B "
Termination of lease of immovable property (1) The lease of immovable property belonging to, or given or endowed for the purpose of, any religious institution shall be liable to be terminated on the non-payment of the lease rent or on violation of any of the conditions imposed in the lease agreement (Added by the Act 31/09) after giving a reasonable opportunity of being heard.
(2) No proceeding to terminate the lease shall be initiated, if"
(i) the time for appeal or revision under sub-section (3) or sub-section (5), as the case may be, of section 34-A has not expired; or
(ii) the order has been made the subject of such appeal or revision till the disposal of the matter.
(3) On the termination of the lease under sub-section (1), the property shall vest with the concerned religious institution free from all encumbrances and the Executive Officer, the Trustee or the chairman of the Board of Trustees, as the case may be, of such religious institution shall take possession of the property including the building, superstructure and trees, if any.
Payment of amount (1) There shall be paid an amount to the lessee for the building, superstructure and trees, if any, erected or planted in accordance with the terms of agreement or with the permission of the Commissioner by the lessee on the property vested with the religious institution under section 34-B. (2) The amount specified in sub-section (1) shall be determined by the Committee consisting of the Joint Commissioner, Executive Engineer (Buildings) of Public Works Department having jurisdiction over the area in which the religious institution is situated, the Divisional Engineer (Hindu Religious and Charitable Endowments) concerned and the Executive Officer or the Trustee or the Chairman of the Board of Trustees, as the case may be, of the religious institution and shall be paid by such religious institution in such manner, as may be prescribed.
(3) In determining the amount, the Committee shall be guided by the provisions contained in sections 23, 24 and other relevant provisions of the Land Acquisition Act, 1894 (Central Act I of 1894).
(4) The Executive Officer of the Trustee or the Chairman of the Board of Trustees, as the case may be, shall pass an order specifying the amount payable under sub-section (1) after adjusting the arrears of lease rent, if any, due.
(5) Any person aggrieved by an order passed under sub-section (4) may, within a period of thirty days form the date of receipt of such order, appeal to the Commissioner in such form and in such manner, as may be prescribed.
(6) The Commissioner may, after giving the appellant an opportunity of being heard, pass such order as he thinks fit.
(7) Any person aggrieved by an order passed by the Commissioner under sub-section (6) may, within ninety days form the date of receipt of such order, prefer a revision petition to the High Court.
Bar of jurisdiction of Civil Court Save as otherwise provided in section 34-A or 34-C, no suit or other legal proceeding in respect of an order passed under section 34-A or 34-B or 34-C, as the case may be, shall be instituted in any court of law.
Section 41 "
Resumption and re-grant of inam granted for performance of any charity or service (1) Any exchange, gift, sale or mortgage and any lease for a term exceeding five years of the whole or any portion of any inam granted for the support or maintenance of a religious institution or for the performance of a charity or service connected therewith or of any other religious charity and made, confirmed or recognized by the Government shall be null and void :
Provided that any transaction of the nature of aforesaid (not being a gift) may be sanctioned by the Government as being necessary or beneficial to the institution.
Explanation."Nothing contained in this sub-section shall affect or derogate from the rights and obligations of the landholder and tenant in respect of any land which is ryoti land as defined in the 1[Tamil Nadu] Estates Land Act, 1908 (1[Tamil Nadu] Act I of 1908).
(2) (a) The Collector may, on his own motion, or on the application of the trustee of the religious institution or the Commissioner or of any person having interest in the institution who has obtained the consent of such trustee or the Commissioner, by order, resume the whole or any part of any such inam, on one or more of the following grounds, namely : "
(i) that except in the case referred to in the proviso to sub-section (1), the holder of such inam or part or the trustee of the institution has made an exchange, gift, sale or mortgage of such inam or part of any portion thereof or has granted a lease of the same or any portion thereof for a term exceeding five years ; or
(ii) that the religious institution has ceased to exist or the charity or service in question has in any way become impossible of performance ; or
(iii) that the holder of such inam or part has failed to perform or make the necessary arrangements for performing, in accordance with the custom or usage of the institution, the charity or service for performing which the inam had been made, confirmed or recognized as aforesaid, or any part of the said charity or service as the case may be.
When passing an order under this clause, the Collector shall determine whether such inam or the inam comprising such part as the case may be, is a grant of both the melvaram and the kudivaram or only of the melvaram :
Provided that, in the absence of evidence to the contrary the Collector shall presume that any minor inam is a grant of both the melvaram and the kudivaram.
(b) Before the passing an order under clause (a), the Collector shall give notice to the trustee, to the Commissioner, to the inamdar concerned, to the person in possession of the inam where he is not the inamdar and to the alienee, if any, of the inam ; the Collector shall also publish a copy of such notice in such manner as may be prescribed and such publication shall be deemed to be sufficient notice to every other person likely to be affected by such order; and the Collector shall hear the objections, if any, of the persons to whom such notice is given or deemed to be given and hold such inquiry as may be prescribed.
Explanation."Where only a part of the inam is affected, notice shall be given under this clause to the holder of such part as well as to the holder or holders of the other part or parts, to the person in possession of every such part where he is not the holder thereof, and to the alienee, if any, of every such part ; and the objections of all such persons shall be heard by the Collector.
(c) A copy of every order passed under clause (a) shall be communicated to each of the persons mentioned in clause (b), and shall also be published in the manner prescribed.
(d) (i) Any party aggrieved by an order of the Collector under clause (a) may appeal to the District Collector within such time as may be prescribed, and on such appeal, the District Collector may, after giving notice to the Commissioner and each of the persons mentioned in clause (b) and after holding such enquiry as may be prescribed, pass an order confirming, modifying or canceling the order of the Collector.
(ii) The order of the District Collector on such appeal, or the Collector on such appeal, or the Collector under clause (a) where no appeal is preferred under sub-clause (i) to the District Collector within the time prescribed, shall be final :
Provided that where there has been an appeal under sub-clause (i) and it has been decided by the District Collector or where there has been no appeal to the District Collector and the time for preferring an appeal has expired, any party aggrieved by the final order of the District Collector or the Collector, as the case may be, may file a suit in a Civil Court for determining whether the inam comprises both the melvaram and the kudivaram or only the melvaram. Such a suit shall be instituted within six months from the date of the order of the District Collector on appeal where there has been an appeal under sub-clause (i), or from the date of the expiry of the period prescribed under sub-clause (i) for an appeal to the District Collector where there has been no such appeal.
(e) Except as otherwise provided in clause (d), an order of resumption passed under this section shall not be liable to be questioned in any Court of law.
(f) Where any inam or part of any inam is resumed under this section, the Collector or the District Collector, as the case may be, shall by order, re-grant such inam or part"
(i) as an endowment to the religious institution concerned, or
(ii) in case of resumption on the ground that the religious institution has ceased to exist or that the charity or service in question has in any way become impossible of performance, as an endowment for such religious, educational or charitable institution as the Commissioner may recommend.
(g) The order of re-grant made under clause (f) shall, on application made to the Collector within the time prescribed, be executed by him in the manner prescribed.
(h) Nothing in this section shall affect the operation of section 40. A conjoint reading of the above provisions would show that any lease for a term exceeding five years of the whole or any portion of any inam granted for the support or maintenance of a religious institution or for performance of a charity or service connected therewith, confirmed or recognized by the Government, shall be null and void. But the proviso makes the scheme clear that any transaction of the aforesaid nature like lease, rent, sale, mortgage, etc. may be sanctioned by the Government as 'necessary or beneficial to the institution'. In that perspective, if the present case is looked into, the subject matter of lease viz., the lands in question, is purely inam lands given to the temple to perform acts of charity and such trait of the land is specifically mentioned in G.O. No.5273, dated 22.12.1960, in the following terms at para No.3 thereof:-
3. The Government are convinced that the proposed lease is beneficial to the temple. They approve the proposal and accordingly sanction under the proviso to sub-section (1) of Section 41 of the Madras H.R. & C.E. Act, 1959, the lease of the inam lands mentioned in para 1 above in favour of Chennapuri Annadhana Samajam, 9, Nyniappa Naick Street, Park Town, Madras subject to the conditions mentioned therein. Therefore, when the nature of the leased lands is absolutely clear that they are 'inam lands' and the operative vigor of the legal provision under proviso to sub-section(1) of Section 41 of the Act has saved the lease in question from being null and void as highlighted above, this Court is unable to endorse the submissions made on behalf of the respondents by referring to the provisions of the Act in a different way.
8. At this juncture, a distinct basic feature must also be taken note of. It is the specific case of the petitioners, not disputed by the respondents, is that the temple was also running an Orphanage with 18 inmates and not being able to manage the said Orphanage during 1960s, they were looking for a proper Institution to transfer the Orphanage and on coming to know that the petitioner-Trust, which is also running an Orphanage with 180 inmates was in dire need of space, the Temple approached them to take over its Orphanage and also it readily came forward to lease out the lands to an extent of 103 grounds so that the charitable purpose for which inam of those lands was made is achieved without there being any wastage. Thus, in fact, a pious obligation was imposed upon the petitioner by none else than the temple to run the Orphanage purely on charitable basis and very unfortunately, the temple now tries to project a case as if they desire to utilise the properties with a view to generate income. There is no difficulty for anyone to draw an inference that, but for the charitable purpose involved, the long-term lease for 50 years that too with automatic renewal clauses of successive spells would not have been incorporated. In other words, if the purpose of the lease was purely commercial, definitely, the Government would not have accorded the lease for 50 years with the following automatic renewal clauses.
8. At the expiry of the term of the Fifty years of lease hereby granted unto it, the LESSEE shall have the option to renew the lease for another period of twenty-five years on the same terms and conditions as herein set out.
9. The LESSEE shall have the further option to renew the lease at the end of the period of 75 years, as herein before set out, for further periods of twenty five years each successively, each renewal commencing from and after the expiration of the previous term of lease to be renewed, subject to the condition that at the date of each such renewal, the rate of rent shall be such as may be mutually agreed to between the LESSORS and LESSEE herein or failing such mutual agreement at such rate of rent as should be fixed by the Commissioner for Hindu Religious and Charitable Endowments or such other Government authority representing such Endowments, other terms and conditions being the same as in this lease to be renewed.
9. Now, in the light of the above automatic clause on the first renewal for 25 years, the issue is as to whether the temple is entitled to ask for enhanced/fair rent even before the expiry of the original lease period. In this regard, it is relevant to refer to Section 41 (2)(a)(iii) of the Act which reads thus:-
Section 41 "
Resumption and re-grant of inam granted for performance of any charity or service (1) ......
(2) (a) The Collector may, on his own motion, or on the application of the trustee of the religious institution or the Commissioner or of any person having interest in the institution who has obtained the consent of such trustee or the Commissioner, by order, resume the whole or any part of any such inam, on one or more of the following grounds, namely : "
(i) .......
(ii) ........ ;
(iii) that the holder of such inam or part has failed to perform or make the necessary arrangements for performing, in accordance with the custom or usage of the institution, the charity or service for performing which the inam had been made, confirmed or recognized as aforesaid, or any part of the said charity or service as the case may be.
A close reading of this provision would make it clear that when a religious institution has ceased to exist or the charity or service in question has in any way become impossible of performance, the District Collector either on his own motion or on application by the persons specified, resume the whole or any part of the inam. Admittedly, in this case, the lands in question are inam lands vested with the temple for doing charitable acts and the temple, by its own act of transferring the management of the Orphanage run by it during 1960s and simultaneously granting a long-term lease for 50 years with automatic renewal clauses on successive spells, made it absolute and unambiguous that the purpose behind the same is to do charity in the form of properly running the Orphanage to maintain the orphans and to give them better future through quality education and meeting other needs. Even though it is the claim of the temple that about 73 grounds of land came to be notified under the provisions of the Slum Clearance Act and that of the petitioner that they had already handed over the same to the temple subsequent to the resolution passed by the Board of Trustees, it is not known why the temple did not even take any step for all these years to retrieve those lands.
10. Thiruvalluvar adulated the act of charity and adverted to the real enjoyment derived therein through the following couplets, ????????????? ????? ??????? ????????
?????????????? ??? ????????.
- MEANING Giving to the poor is charity; all else have the quality of anticipating a return. ?????????? ????? ????????? ????????
????????????? ???? ????.
- MEANING Do they not know to enjoy the joy of giving, those loveless people, who keep their wealth only to lose it. ' Also, Great Saints sharply admonished thus, Oh Fool, Do charity, when death approaches you, the Rule of Grammar which you are Memorising now, will be of no use to you. It is the natural tendency of a good human-being that whatever position he assumes, be a doctor, a lawyer, teacher, or a public servant, etc., he or she endeavours to serve with overflowing love and a spirit of dedication to do good to his fellow human beings in particular for those who are physically and financially weak. Even men of understanding, who have some deeper insight about the transient nature of this world, failed to appreciate that what one accumulates after hard earnings in the form of estates and properties would, in a trice disease accident etc., vanish any moment or the holder himself may expire before even he could enjoy those earnings. Further, every religion imperatively insists upon doing charity. It is often said that service to humanity is service to God. When God created human beings, He took upon himself the obligations to feed, clothe and care his creation and when such obligation is carried out by a human being for his fellow beings in need, again, every religion says that such man is held in high esteem in the eye of the Creator. Even though mutually helping one another out of human consideration is looked at as a virtuous deed, when the help is done to the absolutely weak persons like orphans, who have none to take care of theirs, such act is undoubtedly greater than the usual charity. Viewed in that angle, in the given instance where the avowed object to serve the orphans is sought to be invaded just for generating income for the temple which too actually interested only in promoting the cause of the orphans, is it not an obligation saddled on this Court dispensing justice to protect the interest of such fragile persons. It is really unfortunate that the trustees of the temple knowing fully well that it was the temple which, at its own motion, had transferred its own Orphanage to the administration of the petitioner and also benevolently granted to them a long-term lease with automatic and successive renewal clauses, now endeavors to take back the property for generating income by once and for all putting an end to the charitable purpose of running orphanage for which purpose only, the inam was made.
11. Once the petitioner hands over the property back to the temple citing inability to pay the enhanced fair rent, the charitable purpose would come to extinction which situation automatically paves way for the collector to resume the entire property in terms of Section 41(2)(a)(iii) of the Act. As rightly pointed out by the learned Senior Counsel for the petitioner, R-3/temple seems to be absolutely ignorant of such a situation and ultimately, the sufferers would be the poor orphans for whose benefit and well-being, the lands in question were leased out to the petitioner.
12. In such circumstances, this Court has no hesitation to hold that that R-3 temple has no justification at all in refusing for renewal in terms of the original lease deed dated 12.04.1961 and in particular, demanding fair rent from the petitioner. Therefore, in my well considered opinion, the present action of the temple would only result in resumption of the property with the Collector and failure of the purpose for which the inam land was given on a long-term lease and notably, the interest of the Orphanage and the orphans would be definitely exposed to an irreversible risk.
13. Undoubtedly, the power of High Courts under Article 226 of the Constitution of India is plenary in nature and hence, writs can be issued to any person or authority for enforcement of any of the fundamental rights and for any other purpose. In other words, a mandamus cannot be denied on the ground that the duty to be enforced is not imposed by the statute, for, mandamus is a very wide remedy available to reach injustice wherever it is found, particularly where the High Court is set to face a social obligation by suitably moulding the relief in the interest of justice towards the safety, security and well-being of helpless orphans. While doing so, Courts are not swayed by any technicality from granting suitable relief under Article 226 of the Constitution. In the case on hand, if the temple authorities are allowed to act in a different ambit deviating from the charitable cause, the continuing charity exclusively for the Orphans would come to a grinding halt with perpetual closure of the Institution, which instance can never be allowed to happen. In that perspective, this Court, after appreciating the peculiar situation that the petitioner/Orphanage would be left without any remedy since, in terms of the ratio laid down in A.N.Kumar's case (cited supra), there is a bar of jurisdiction of Civil Court under the 2nd proviso to Section-79 in respect of suits instituted by a lessee/licensee/mortgagee of the religious institution or endowment, and also applying the traditional definition of justice underlined in the maxim Ubi Jus Ibi Remedium that there is no wrong without a remedy, is inclined to exercise its extraordinary powers under Article 226 of the Constitution both for maintaining the writ petition and for granting the relief sought for so that the interest and welfare of the poor orphans are safeguarded. Hence, this Court is inclined to accede to the prayer sought for in the Writ Petition; accordingly, the impugned order is hereby set aside.
Net result, the Writ Petition stands allowed as prayed for. No costs. Connected Miscellaneous Petition stands closed.
25.07.2014.
Index : yes / no. (2/2) Internet : yes / no. Office to note:- Issue order copy on or before 01.08.2014. JI. To
1. The Secretary, Hindu Religious and Charitable Endowments Department, Fort St. George, Chennai 9.
2. The Commissioner, Hindu religious and Charitable Endowments, Nungambakkam High Road, Chennai 600 034.
T. Raja, J.
Pre-Delivery Order in WP No.7988 of 2013.
25.07.2014.