Madras High Court
M.Gurusamy Nadar vs The Commissioner on 27 June, 2018
Author: S.S.Sundar
Bench: S.S.Sundar
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 27.06.2018
Reserved on: 26.03.2018
Delivered on: 27.06.2018
CORAM
THE HONOURABLE MR.JUSTICE S.S.SUNDAR
C.R.P.(NPD)(MD)No.982 of 2016
and
C.M.P.(MD)Nos. 4877 of 2016 and 10579 to 10581 of 2017
and
W.P.(MD)Nos.11977 of 2016 18371, 18372, 18875 and 21806 of 2017
W.M.P(MD)Nos.9174 of 2016 and 14814, 14815, 15966, 15967, 15223, 18096 and
18097 of 2017
C.R.P.(NPD)(MD)No.982 of 2016:-
M.Gurusamy Nadar :Petitioner
vs.
1.The Commissioner,
Hindu Religious and Charitable
Endowment Department,
The Administration Department,
Chennai ? 34.
2.The Joint Commissioner,
Hindu Religious and Charitable
Endowment Department,
Madurai.
3.The Deputy Commissioner /
Executive Officer,
Arulmigu Kallalagar Thirukovil,
Alagarkovil,
Madurai. : Respondents
PRAYER: Civil Revision Petition filed under Article 227 of the Constitution
of India, to call for the records pursuant to the impugned order passed by
the first respondent in A.P.No.27 of 2015, D2, dated 28.03.2016 and set aside
the same and consequently to direct the first respondent to fix the fair rent
as per the Tamil Nadu Hindu Religious and Charitable Endowment Act and Rules
and as per G.O.Ms.No.456, dated 09.01.2007 and the norms stipulated in the
writ order passed in W.P.(MD)No.8285 of 2013, dated 27.08.2015.
!For Petitioner : Mr.J.John
^For R1 and R2 :Mr.A.Thiyagarajan,
Government Advocate
For R3 : Mr.S.Manohar
W.P(MD)No.11977 of 2016:-
M.Gurusamy Nadar :Petitioner
vs.
1.The Commissioner,
Hindu Religious and Charitable
Endowment Department,
The Administration Department,
Chennai ? 34.
2.The Joint Commissioner,
Hindu Religious and Charitable
Endowment Department,
Madurai.
3.The Deputy Commissioner /
Executive Officer,
Arulmigu Kallalagar Thirukovil,
Alagarkovil,
Madurai.
4.The Assistant Commissioner,
Hindu Religious and Charitable
Endowment Department,
Madurai. : Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution of India,
to issue a Writ Certiorari, to call for the records in pursuant to the fourth
respondent proceedings in Na.Ka.No.3614/2013-4, Aa1, dated 23.06.2016 and
quash the same.
For Petitioner : Mr.J.John
For R1, R2 and R4 :Mr.A.Thiyagarajan,
Government Advocate.
For R3 : Mr.S.Manohar
W.P(MD)No.18371 of 2017:-
M.Gurusamy Nadar :Petitioner
vs.
1.The Commissioner,
Hindu Religious and Charitable
Endowment Department,
The Administration Department,
Chennai ? 34.
2.The Joint Commissioner,
Hindu Religious and Charitable
Endowment Department,
Madurai.
3.The Deputy Commissioner /
Executive Officer,
Arulmigu Kallalagar Thirukovil,
Alagarkovil,
Madurai.
4.The Assistant Commissioner,
Hindu Religious and Charitable
Endowment Department,
Madurai. : Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution of India,
to issue a Writ Certiorarified Mandamus, to call for the records in pursuant
to the fourth respondent's impugned proceedings in Na.Ka.No.3614/2013-4/Aa1,
dated 13.09.2017 and quash the same and consequently to direct the first
respondent to number the petitioner's appeal in S.R.No.20839 of 2017 filed
under Section 34(A) of the Tamil Nadu Hindu Religious and Charitable
Endowment Act and decide the case on merits and in accordance with law.
For Petitioner :Mr.J.John
For R1, R2 and R4 :Mr.A.Thyagarajan,
Government Advocate
For R3 : Mr.M.Muthugeethayan
W.P(MD)No.18372 of 2017:-
M.Gurusamy Nadar :Petitioner
vs.
1.The State of Tamil Nadu
Represented by its Secretary,
Hindu Religious and Charitable
Endowment Department,
Secretariat, Chennai ? 9.
2.The Joint Commissioner,
Hindu Religious and Charitable
Endowment Department,
Madurai.
3.The Deputy Commissioner /
Executive Officer,
Arulmigu Kallalagar Thirukovil,
Alagarkovil,
Madurai.
4.The Assistant Commissioner,
Hindu Religious and Charitable
Endowment Department,
Madurai. : Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution of India,
Writ Mandamus to direct the first respondent to dispose the petitioner's
review application No.22 of 2016 in accordance with law.
For Petitioner : Mr.J.John
For R1, R2 and R4 :Mr.A.Thiyagarajan,
Government Advocate
For R3 : Mr.M.Muthugeethayan
W.P(MD)No.18875 of 2017:-
S.Muthuramalingam :Petitioner
vs.
1.The Joint Commissioner,
Hindu Religious and Charitable
Endowment Department,
Madurai.
2.The Assistant Commissioner,
Hindu Religious and Charitable
Endowment Department,
Alagercoil, Madurai.
3.G.Vivekandan : Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution of India,
to issue a Writ of Mandamus, to direct the respondents 1 and 2 herein to hand
over the seized papers, which were taken away by them on 28.09.2017 from the
premises bearing D.No.46, North Perumal Maistry Street, Madurai to the
petitioner.
For Petitioner : Mr.P.Subburaj
For R1 and R2 :Mr.A.Thiyagarajan
Government Advocate
W.P(MD)No.21806 of 2017:-
M.Gurusamy Nadar :Petitioner
vs.
1.The Joint Commissioner,
Hindu Religious and Charitable
Endowment Department,
Madurai.
2.The Assistant Commissioner,
Hindu Religious and Charitable
Endowment Department,
Madurai.
3.The Deputy Commissioner /
Executive Officer,
Arulmigu Kallalagar Thirukovil,
Alagarkovil,
Madurai. : Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution of India,
to issue a Writ of Certiorari to call for the records in pursuant to the
first respondent impugned order dated 10.11.2017 in I.A.No.34 of 2017, in
M.P.No.62 of 2017 and quash the same.
For Petitioner :Mr.J.John
For R1 and R2 :Mr.A.Thiyagarajan,
Government Advocate
For R3 :Mr.M.Muthugeethayan
:COMMON ORDER
In all the above cases, except, W.P.(MD)No.18875 of 2017, the petitioner is one M.Gurusamy Nadar (hereinafter referred to as ?tenant?). Since all the petitions are connected, they are disposed of by this common order.
2.The brief facts that are necessary for the purpose of disposing all these cases are as follows:
2.1.A property, namely, a building measuring an extent of 2629 sq.ft., in T.S.No.359/1 and T.S.No.360, bearing D.No.46, situated in North Perumal Maistry Street, Madurai was leased out to the petitioner/tenant by the Assistant Commissioner and Executive Officer of Arulmighu Kallalagar Temple, Alagarkovil. There is no dispute that the property belongs to the Kallalagar Temple. The lease was granted by proceedings dated 02.11.1990. The Executive Officer of the Temple granted lease for a period of three years from 01.11.1990 to 31.10.1993. The rent was agreed at 1500/- per month and six months rent was paid as advance. An unregistered lease deed was also executed. Though it is inadmissible in evidence, the terms of the lease as per the proceedings dated 02.11.1990 is not in dispute.
2.2.It appears that the lease was renewed after 1993 and the petitioner, M.Gurusamy Nadar was continuously in possession of the property as a tenant under the temple. Though the Executive Officer of the temple by proceedings dated 29.09.1998, determined the fair rent at Rs.12,373/- per month, taking into consideration the fact that the petitioner/tenant is doing a small scale business by dealing with gunny bags, the fair rent was fixed at Rs.6,000/- per month. It appears that the tenant has not even paid the fair rent of Rs.6,000/- per month. Hence by proceedings dated 20.12.2001, the Executive Officer demanded payment of a sum of Rs.1,09,820/- as arrears of rent for the period upto October-2001.
2.3.The Government issued G.O.Ms.No.353, dated 04.06.1999, drawing guidelines for fixing fair rent in respect of shops, buildings and vacant sites belongs to the temples, throughout the State. This Government Order, in fact, contains certain guidelines revising the guidelines that were issued earlier vide G.O.Ms.No.56, dated 19.02.1998. As per this Government Order, the rent should be fixed for the shops either at 0.06% of the value of the building or at the market rate whichever is higher. The rent should be fixed through the Rent Fixation Committee and should be approved by the concerned Joint Commissioner. In respect of buildings and vacant site, the rent should be renewed once in three years by enhancing the rent by 33.3.%. The exemption was also given in respect of tenants, who are below the poverty line.
G.O.Ms.No.353, dated 04.06.1999, was revised by a subsequent Government Order vide G.O.Ms.No.456, dated 09.11.2007. This Government Order refers to subsequent communications, by which the Government requested the temple authorities to maintain status-quo till such time the Government reconsiders the fixation of fair rent. It appears that a letter dated 08.08.2001, to implement the Government Order vide G.O.Ms.No.353, dated 04.06.1999 w.e.f., 01.11.2001 was issued. Subsequently, an amendment was also made to Section 34 of Tamil Nadu Hindu Religious and Charitable Endowment Act, 1959 (herein after refers to the Act), w.e.f., 10.05.2003 and G.O.Ms.No.456, dated 09.11.2007 was issued. As per this Government Order, in respect of commercial shops, the enhancement of the rent, once in three years, was restricted to 15%, as against the direction in earlier Government Order to increase the rent by 33.3% once in three years. In this Government Order also, it is admitted that the previous Government Order vide G.O.Ms.No.353, dated 04.06.1999, was kept in abeyance till 01.11.2001. The Government also gave a direction regarding the manner in which the fair rent should be fixed. As per the guidelines, the fair rent should be calculated w.e.f., 01.11.2001. It is further stated that w.e.f., 01.07.2004, the rent should be increased by 15%, in respect of cases, where the fair rent was fixed by implementing G.O.Ms.No.56 dated 19.02.1998. The Government directed the fixation of fair rent for the period from 01.07.1998 to 30.10.2001 by reducing the fair rent fixed in 2001 by 15%.
2.4.It appears that in 2008, the fair rent for all the shops and premises and vacant lands owned by Kallalagar Temple was fixed by the Committee. It appears that the fair rent was fixed based on the Government Order without any notice or enquiry and on the basis of guideline value fixed by the Sub-Registrar of Registration Department. For the property leased out to the petitioner/tenant, it is seen that the total extent of land was taken as 2786.62 sq.ft. Taking into account the guideline value at Rs.790/- per sq.ft., the fair rent was fixed at Rs.18,093/- for the period from 01.07.1998 to 31.10.2001. The rent was again fixed for the period from 01.11.2001 to 30.06.2004 at Rs.21,286/- per month. Again for the period from 01.07.2004 to 30.06.2007, the fair rent was fixed at Rs.24,479/- per month and the fair rent was fixed at Rs.28,151/- per month w.e.f., 01.07.2007 to 30.06.2010. In the table prepared by the Committee, fixation of fair rent for different properties of the temple is indicated. The prevailing market rate in the same locality for the premises, which is in the occupation of the petitioner was stated to be Rs.32,374/- per month. The fair rent fixed by the Rent Fixation Committee was also approved by the Joint Commissioner, by proceedings dated 29.04.2008.
2.5.From the records, it is seen that the fair rent was fixed by the Committee for the first time only in April'2008 and there was no communication or proceedings suggesting any idea for fixation of fair rent for the premises occupied by the tenant earlier. It is seen from the table produced before this Court by the respondents that the existing rent for the premises is Rs.6,000/-. Pursuant to the fixation of fair rent for the property of the Temple, individual communication was sent to the tenant in this case on 11.09.2009, demanding fair rent w.e.f., 01.07.1998. It is also pertinent to mention that the petitioner was in arrears in payment of rent for the period from 01.07.1997 to 30.06.1998 and a sum of Rs.33,324/- was due as arrears even for this period. As per the communication, dated 11.09.2009, a sum of Rs.21,77,240/- was demanded as arrears of rent for the period from 01.07.1997 to 30.06.2009. This demand notice was acknowledged by the tenant, however, by a letter dated Nil, the tenant requested the Executive Officer to permit him to pay the rent at the existing rate of Rs.6,000/- per month stating that the rent fixed by the Committee is on the higher side. The request of the tenant / petitioner was rejected by the Executive Officer by his communication dated 04.12.2009 and a revised demand for a sum of Rs.22,76,045/- was made towards arrears of rent upto November'2009. In this communication, the tenant was informed that he will face eviction under Sections 78 and 79 of the Act, in case, he fails to pay the arrears of rent. The tenant neither paid the rent nor challenged the demand notice, dated 11.09.2009.
2.6.Once again, the Executive Officer of the Temple by communication dated 06.12.2013, demanded a sum of Rs.32,12,987/- towards arrears of rent, upto 01.07.2012. Despite the repeated notices, the communications earlier in 2009 and 2013, it appears that the tenant has not paid the fair rent or arrears. However the tenant filed a writ petition in W.P.(MD)No.8285 of 2013 to quash the subsequent demand notice 06.02.2013 and to direct the respondents to fix the least rent under Section 34(A) of the Act, in accordance with law. The said writ petition was disposed by this Court by order dated 27.08.2015. The operative portion of the order reads as follows:
?.....6.However, considering the factual aspects of the case and also considering the fact that the petitioner has already filed an Appeal and the same was returned, I am of the opinion that before passing the impugned order, the third respondent ought to have given an opportunity of hearing to the petitioner. Hence, this Court directs the petitioner to respondent the Appeal which was already filed by him before the first respondent, challenging the order dated 06.02.2013, by depositing a sum of Rs.3,00,000/- within a period of four weeks from the date of receipt of a copy of this order. On representing such Appeal, the first respondent is directed to afford an opportunity of hearing to the petitioner and pass appropriate orders on merits and in accordance with law within a period of four weeks thereafter. The Registry is directed to return the original impugned order after getting endorsement from the learned Counsel for the petitioner and taking photocopy of the same.?.....
2.7.The petitioner has also challenged the order dated 29.04.2008, of the Deputy Commissioner, HR&CE Department, Madurai, approving the fair rent fixed by the Committee, as well as the subsequent demand notice dated 06.02.2013, by way of appeal in A.P.No.27 of 2015 before the Commissioner, HR & CE Department, Chennai. In the meanwhile, the Assistant Commissioner / Executive Officer of the temple filed a petition before the Joint Commissioner, HR & CE Department, Madurai, under Section 78(4) of the Act to evict the tenant from the demised property and to restore possession to the temple. The Joint Commissioner allowed this petition vide proceedings dated 13.05.2015. The order of Joint Commissioner, HR & CE Department, dated 13.05.2015, was challenged before this Court in W.P.(MD)No.14804 of 2015. This Court by order dated 27.08.2015, dismissed the writ petition with liberty to the petitioner to prefer an appeal before the Authorities concerned under Section 21 of the Act within a period of four weeks from the date of receipt of copy of the order. The Commissioner, HR & CE Department, dismissed the appeal in A.P.No.27 of 2015, filed against the order fixing fair rent dated 29.04.2008 and the consequential demand notice issued on 06.02.2013. This order was passed on 28.03.2016. Challenging the order of Commissioner, HR & CE Department, Chennai, dated 28.03.2013, in A.P.No.27 of 2015, the tenant has preferred the Civil Revision Revision before this Court in CRP(MD)No.982 of 2016.
3.Though the tenant has preferred an appeal, challenging the order passed by the Joint Commissioner, HR & CE Department, under Section 79 of the Act, dated 13.05.2015, the Assistant Commissioner, HR & CE Department, has passed an order on 23.06.2016 notifying the tenant that he will be vacated on 08.07.2016 with the assistance of revenue officials and police officials. This order was challenged by the tenant by filing a writ petition in W.P.(MD)No.11977 of 2016, merely on the ground that the CRP preferred by the petitioner regarding the fair rent is pending before this Court and that the order to vacate the petitioner from the premises cannot be passed till the issue relating to the fair rent is decided by this Court in the Civil Revision Petition.
4.In W.P.(MD)No.11977 of 2016, this Court made an observation that the petitioner has to prefer revision under Section 21 of Act, and advised the petitioner to file necessary revision before the Commissioner, HR & CE Department as provided under the Act. During the pendency of the said Writ Petition before this Court, the petitioner preferred a revision before the Commissioner, HR & CE Department and the revision was also dismissed by the Commissioner, HR & CE Department, by order dated 06.09.2016. While dismissing the revision preferred against the order passed by the Joint Commissioner, HR & CE Department, dated 13.05.2015, the Commissioner, HR & CE Department, issued further direction to the Assistant Commissioner, HR & CE Department, Madurai to pass further order based on the notice dated 23.06.2016 to evict the tenant. In the same communication, it was further observed that the temple need not interfere with the possession of the tenant, if he pays the revised rent along with the arrears.
4.1.Based on the order passed by the Commissioner, HR & CE Department, dated 06.09.2016, the Assistant Commissioner, HR & CE Department, passed an order on 13.09.2017 calling upon the tenant to pay the arrears of fair rent calculating the arrears upto then at Rs.50,55,909/- within 30 days from the date of notice, by way of bank guarantee. At least a bank guarantee was requested by Assistant Commissioner, HR & CE Department, for postponing the eviction. Since the tenant neither paid the arrears nor produced any bank guarantee as security, the Deputy Commissioner, HR & CE Department, Madurai, directed the Assistant Commissioner, HR & CE Department, Madurai to evict the tenant from the premises and to take possession. Hence the Assistant Commissioner, HR & CE Department, Madurai, by proceedings dated 13.09.2017, sent a communication to the tenant stating that he would be evicted on 28.09.2017 and that the property will be taken taken by the Temple authorities.
4.2.The tenant has filed a writ petition in W.P.(MD)No.18371 of 2017 to quash the proceedings of the Assistant Commissioner, HR & CE Department, Madurai dated 13.09.2017 and for directing the Commissioner, HR & CE Department, Chennai, to number the appeal preferred by the tenant in S.R.No.20839 of 2017 filed under Section 34(A) of the Act in accordance with law. The appeal that was referred to in this writ petition, is against the order dated 05.04.2017 passed by the Executive Officer of the Temple revising the rent w.e.f., 01.07.2016 at Rs.51,480/ per month.
5.It is also stated that the petitioner / tenant has filed a review application in Review Application No.22 of 2016 before the Government, as against the order passed by the fourth respondent dated 13.09.2017 under Section 79 of the Act. Since there was no interim order granted in any of the writ petitions filed by the petitioner/tenant, the petitioner was evicted from the premises on 28.09.2017. This fact is not in dispute. The premises in which the petitioner was occupying is kept under lock and key. Pursuant to the eviction, the property was taken over by the Temple Administration, and it was reported on 29.09.2017 that steps will be taken to collect the rental arrears of Rs.51,07,389/-. It was therefore stated in the communication dated 29.09.2017 that rental arrears will be recovered by attaching and selling the properties and the materials and the machinery parts found in the demised premises. In the report dated 28.09.2017, the list of articles, which were taken custody by the Temple administration is also given. The expenses for transporting the materials, which were taken custody by the Temple administration was also given, apart from the details of the rental arrears. The order passed by the Joint Commissioner, HR & CE Department, Madurai, dated 10.11.2017, attaching the movables of the petitioner in the premises let out to the petitioner / tenant is challenged by the petitioner in W.P(MD)No.21806 of 2017.
6.Yet another writ petition was also filed by a third party, by name, S.Muthuramalingam, in W.P.(MD)No.18875 of 2017. The petitioner claimed that he is the sub tenant under the petitioner in other writ petitions. In the affidavit filed in support of the petition, the petitioner/sub tenant has stated that he has taken lease of all portion of the building from M.Gurusamy Nadar, main tenant, for a monthly rent of Rs.15,000/-per month and has paid a sum of Rs.2,00,000/- as advance. He further states that on 28.09.2017, the Joint Commissioner, HR & CE Department, Madurai and the Assistant Commissioner, HR & CE Department, Madurai, Kallalagar Temple, have taken away the materials belongs to him and kept by him in the premises occupied by him as a sub tenant under the petitioner in the other writ petitions. He further states that he was not aware of the fact that the premises that was let out to him belongs to the Temple. It was his further case that the paper materials procured by him, for his business, which were kept in the demised premises is worth for more than Rs.80 lakhs. Despite the fact that a representation was given by the petitioner / sub tenant for permitting him to remove his articles, it is stated that he was not allowed to take them. It is his case that the materials now taken by the official respondents for the dues of the main tenant is impermissible in law. In this petition, the petitioner, namely, S.Muthuramalingam, sub tenant, approached this Court to direct the official respondents, namely, the Joint Commissioner, HR & CE Department, Madurai, and the Assistant Commissioner, HR & CE Department, Madurai, to hand over the seized papers and materials, which were taken away from him on 28.09.2017 from the premises bearing D.No.46, North Perumal Maistry Street, Madurai to the petitioner.
7.From the narration of events and the reliefs prayed for in the writ petitions and civil revision petition filed by the tenant, this Court is able to see that the main issues in all these matters is about the validity of proceedings fixing fair rent and order under Sections 78 and 79 of the Act to evict the tenant from the premises.
8.In W.P.(MD)No.11977 of 2016, the petitioner has challenged the order dated 23.06.2016, wherein, the Assistant Commissioner, HR & CE Department, Madurai, has communicated to the petitioner that eviction process will be taken and the petitioner will be evicted from the premises on 08.07.2016. This order is consequential to the order passed by Joint Commissioner, HR & CE Department, Madurai dated 13.05.2015, in a petition filed by the Executive Officer of the Temple under Section 78(4) of the Act. As pointed out earlier, during the pendency of these writ petitions, this Court observed that the writ petitioner / main tenant has to prefer a revision under Section 21 of the Act against the impugned order dated 23.06.2016 and directed the petitioner to file necessary revision before the Commissioner, HR & CE Department, Chennai. There was an order of status-quo till 01.08.2016. The petitioner filed a Revision Petition in R.P.No.225 of 2016 challenging the order dated 13.05.2015 and the consequential order dated 23.06.2016 and the same was dismissed by the Commissioner, HR & CE Department, by order dated 06.09.2016. Since the petitioner has availed the alternative remedy, the writ petition in W.P.(MD)No.11977 of 2016 has become infructuous and therefore, W.P.(MD)No.11977 of 2016 is dismissed as infructuous.
9.Pursuant to the disposal of the revision petition by the Commissioner, HR & CE Department, Chennai, by order dated 06.09.2016, the petitioner states that he has moved a revision before the Government under Section 114 of the Act. In the meanwhile, as stated earlier, based on the consequential order passed by the Commissioner, HR & CE Department, dated 06.09.2016, the Assistant Commissioner, HR & CE Department, requested the Commissioner of Police, Madurai to provide police protection to carry out eviction of tenant with the help of revenue officials on 28.09.2017 by proceedings dated 13.09.2017. Again by proceedings vide Ref.Na.Ka.3614/2013- 4/A1, dated 13.09.2017, the Assistant Commissioner, HR & CE Department, informed the tenant about the proposal to evict the tenant on 28.09.2017. Challenging this communication, the tenant has preferred another writ petition in W.P.(MD)No.18371 of 2017. In the said writ petition, a direction was also sought for to number the appeal filed by the petitioner in SR.No.2831 of 2017 under Section 34(A) of the Act. Sum and substance, the petitioner availed alternative remedy by preferring an appeal as against the order passed by the Assistant Commissioner, dated 13.09.2017, under Section 34(A) of the Act, and as against the order dated 05.04.2017, fixing fair rent w.e.f., 01.07.2016. Hence the petitioner primarily challenged the order dated 13.09.2017 on the ground that the Civil Revision Petition regarding the fixation of fair rent is pending before this Court and the appeal preferred against the consequential revision of rent is pending before the Commissioner, and that therefore, the eviction of tenant will be unfair and unreasonable.
10.W.P.(MD)No. 18371 of 2017 is filed against the order for eviction dated 13.09.2017. W.P.(MD)No.18372 of 2017 is for a direction to the State Government of Tamil Nadu to dispose of the revision application stated to have been filed by the petitioner before the Government under Section 114 of the Act, as against the order dated 06.09.2016 passed by the Commissioner, HR & CE Department, Chennai, confirming the order of Joint Commissioner, HR & CE Department, Madurai, dated 13.05.2015 for evicting the petitioner from the premises and notice for eviction dated 23.06.2016. Therefore, these two writ petitions are relating to the eviction of tenant from the premises.
11.The conduct of the tenant right from 2008, in this case, assumes more importance. It is no doubt true that the tenant was paying rent till 2008 at the rate of Rs.6,000/- per month. However, the petitioner has not paid any amount towards arrears of rent except a sum of Rs.3,00,000/- pursuant to the direction of this Court in the writ petition filed by him in W.P.(MD)No.8285 of 2013. The fact that possession has been taken from the petitioner on 28.09.2017 is not in dispute. The petitioner admittedly had knowledge about the fair rent fixed by the authorities and the approval granted by the Joint Commissioner, by proceedings dated 29.04.2008. The petitioner had received the communication, dated 11.09.2009, wherein, a sum of Rs.21,77,240/- was claimed by way of arrears of rent till 30.06.2009. The petitioner has kept quiet till a subsequent demand notice was issued in 2013. Though the petitioner can dispute the arrears w.e.f., 1997 for some tenable ground, the non payment of rent from 2008 cannot be justified. It is seen that the petitioner has dragged on the proceedings without making any payment towards arrears of rent from 2000. The intention appears to be to avoid paying any amount towards arrears.
12.From the communications, which are available before this Court on record, it can be seen that the petitioner has not even paid the rent at the rate of Rs.6,000/-. Even this amount was fixed as against the fair rent of Rs.12,000/- and odd. The attitude and conduct of the tenant in this case did not show that he is entitled for any indulgence from this Court, in a writ petition invoking this Court's extraordinary jurisdiction under Article 226 of Constitution of India. The arrears as on date is more than Rs.51,00,000/-. Even if the case of the petitioner that the revision of rent with retrospective effect is not permissible in law, that does not justify the petitioner from refusing to pay the fair rent from 2008. The quantum of rent is questioned. It has to be fixed with reference to various factors. The fact that the petitioner has leased out a portion of a premises for a sum of Rs.15,000/- will not justify his conduct in refusing to pay any amount towards arrears. In that view of the matter, the writ petitions in W.P.(MD)Nos.18371 and 18372 of 2017 need not be entertained and the possession taken from the petitioner under Sections 78 and 79 of the Act is justified and this Court is unable to find any reason to interfere with the order of eviction. Hence, W.P.(MD)Nos.18371 and 18372 of 2017 are dismissed.
13.As regards C.R.P.(NPD)(MD)No.982 of 2016, this Civil Revision Petition is filed by the revision petitioner challenging the order of the Commissioner, HR & CE Department, Chennai, in A.P.No.27 of 2015, dated 28.03.2016. By order dated 28.03.2016, the Commissioner, HR & CE Department, Chennai, has confirmed the order of the fair rent fixed by the Committee, dated 29.04.2008 and the notice of demand dated 06.02.2013. It is not in dispute that fair rent was fixed by the Committee for the first time in 2008 and communicated to the tenant on 11.09.2009. No notice was issued to the petitioner before fixing fair rent for the premises occupied by him. In 2008, fair rent has been fixed for the period from 01.07.1998 to 30.06.2010. When fair rent is fixed, the tenant should know the basic facts which were taken into account by the Committee, for the purpose of determining the fair rent. The proceedings filed before this Court by the revision petitioner and the table signed by the members of the Committee, is not disputed before this Court. As per the table, it is found that the extent of land in the occupation of petitioner is stated as 2786.62 sq.ft., and the value as per Sub-Registrar of Registration Department is taken as Rs.790 per sq.ft. From this, the fair rent has been arrived at Rs.18,093/- per month from 01.07.1998 till 31.10.2001 and fair rent was fixed at Rs.21,286/- from 01.11.2001 to 30.06.2004. This Court is unable to see on what basis the fair rent was arrived at and how it is possible to arrive at the fair rent on the basis of so called guideline value of Sub Registrar. The tenant has every right to raise his objection, with regard to basic facts that are to be taken while fixing fair rent. Admittedly, in this case, no notice was issued to the tenant before fixing the fair rent by the Committee. The fact that the tenant was paying only a sum of Rs.6,000/- till March'2008 is not in dispute.
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, a Honourable 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:-
1.rl;lg;gphpT 34V-d; fPohd thlif eph;zaf; FOthy; epaha thlif eph;zak; nra;ag;gLtjpy;iy.
2.rpy ,dq;fspy; nray; mYtyh;/mwq;fhtyh;> cjtp Nfhl;lg; nghwpahsh; MfpNahh;fshy; kl;LNk thlif eph;zapj;J mwpf;if mDg;ggLfpwJ.
3.gy ,dq;fspy;> khtl;l gjpthshpd; ,irTld; thlif eph;zak; nra;ag;gLtjpy;iy.
4.re;ij kjpg;gpid fUj;jpy; nfhs;shky;> topfhl;b kjpg;gpd; gb epahathlif fzf;fPL nra;ag;gLfpwJ.
5.murhiz vz;.353 ehs; 4.6.1999 kw;Wk; murhiz vz;.456 ehs; 9.11.2007 Mfpatw;wpy; njhptpf;fg;gl;l top Kiwfisf; filg;gpbf;fhkNy thlif eph;zak; nra;ag;gl;L tUfpwJ.
6.murhiz vz;.353 ehs; 4.6.1999 ?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; ghprPyid me;je;j ,iz Mzah;fshy; mq;fPfhpf;fg;gLtjpy;iy.
7.murhiz vz; 353 ehs; 4/6/1999-y; 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.
8.thlif eph;zaf; FOthy; eph;zak; nra;ag;Lk; thlifapid fzf;fPl;Lj;jhSld; thlifjhuh;fSf;F mDg;gp xg;Gjy; ngWtjpy;iy.?
16. The 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; FOthy; eph;zak; nra;ag;gLk; thlifapid fzf;fPl;Lj;jhSld; thlifjhuh;fSf;F mDg;Gjy; Ntz;Lk;.
2.fzf;fPl;Lj;jhspy; eph;zapf;fg;gl;Ls;s thlif> ,lj;jpd; gug;gsT> fl;llj;jpd; gug;gsT> epykjpg;G> FbapUg;G/tzpfj;jd;ik> thlif rjtPjk;> Gjpa thlif Mfpait Fwpj;J Ml;Nrgidfs; VJkpUg;gpd;> mjid nka;g;gpf;Fk; Mtzq;fSld;> xUthu fhyj;jpw;Fs; kDjhuh;fs; gjpit mDg;Gjy; Ntz;Lnkd thlifjhuh;fSf;F mwptpg;G mDg;ggly; Ntz;Lk;. 3.NkNy Fwpg;gpl;l tprhuizf;F thlifjhuh;fs;
Neubahf tuNtz;Lnkd typAWj;j Njitapy;iy. mth;fsplkpUe;J gjpiyg; ngw;W ghprPypj;jhNy NghJkhdJ.
4.Nkw;Fwpg;gpl;lgb thlifjhuh;fsplkpUe;J ngwg;gLk; gjpy;> thlif eph;zaf;FOthy; ghprPypf;fg;gl Ntz;Lk;.
5.chpa fhyj;jp;w;Fs; gjpy; VJk; tutpy;iynadpy;> ,Uf;Fk; Mtzq;fspd; mbg;gilapy;> epaha thlif eph;zak; nra;jpl ghprPypf;fglNtz;Lk;.
6.ghprPyidapd; mbg;gilapy; chpa tptuq;fis gjpT nra;J> ,Wjpahd thlif eph;za cj;jutpid thlifjhuh;fSf;F toq;fp xg;Gjy; ngw Ntz;Lk; Nkw;fhZk; mwpTiuapd; gb> thlifjhuh;fSf;F> thlif cah;T Fwpj;J mwptpg;G mDg;gp Ml;Nrgizfs; 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;.?
17. It 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.?........
15.It is well settled that an appeal cannot be an overall cure when the original authority has passed an order in violation of principles of natural justice. Hence in this case, this Court has no hesitation to hold that in this case fare rent has been fixed without following the guidelines and in violation of principles of natural justice.
16.In the order passed by the Commissioner, HR & CE Department, Chennai, it is stated that the rent has been fixed arbitrarily at Rs.6,000/- in the year 1998. When the Executive Officer of the temple has fixed the fair rent at Rs.6,000/- and that was the agreement till 2008, the tenant cannot be asked to pay more than what is agreed. Even, when the respondent is authorised to revise the rent, that cannot be with retrospective effect, as the tenant has indefeasible right to vacate the property, in case he is incapable of paying rent. The tenant cannot be mulcted by fixing rent arbitrarily with retrospective effect. Under the Transfer of Property Act, 1882, the rent should be primarily agreed between the parties. Except by agreement or a specific contract, there is no legal obligation on the part of the tenant to pay any rent that may be asked by the landlord.
17.It is no doubt true that the Government can issue guidelines for the purpose of fixing fair rent. In this case also, the Government originally framed guidelines in 1998 and thereafter, on 04.06.1999, vide G.O.Ms.No.353 and subsequently the guidelines were revised by G.O.Ms.No.456, dated 09.11.2007. As per the Government Orders, the increase in rent once in three years was restricted to 15%. It was only on account of the fact that the previous Government Order issued in 1999 was implemented only w.e.f., 01.11.2001, a direction was issued to the temple authorities to revise the rent w.e.f., 01.11.2001. Since the revision of rent was suggested from 1998, a further direction was issued to revise the rent w.e.f., 01.07.1998 to 30.10.2001 by reducing the fair rent fixed by 15% from 01.11.2001. This Government Order cannot be interpreted to enable the temple authorities to revise the fair rent fixed even in a case where the fair rent was fixed earlier and paid till it was revised for the first time in 2008. Having regard to the settled principles of law, this Court is of the view that fixing the fair rent with retrospective effect is impermissible in law. However, the proceedings for fixing the fair rent was initiated for the first time in 2008, and it was promptly approved by the Joint Commissioner, HR & CE Department, by proceedings dated 29.04.2008. The tenant is liable to pay the rent fixed by authorities in terms of the Government Order, w.e.f., 01.05.2008. As pointed out earlier, the fair rent in this case was fixed by the Committee without issuing any prior notice to the tenant and without giving any opportunity to raise his objection with regard to extent of land in his enjoyment or with regard to value of the property.
18.It is relevant to mention the one important aspect of this matter in this context is that the guidelines issued by the Government indicated that the fair rent should be on the basis of the value of the building or on the basis of market rate, whichever is higher. The value of the building and the land need not be on the basis of market value, unless, there is a specific direction in this case by the Government. Having regard to the position that 0.06% of the value of the building can be the monthly rent for commercial building let out by the temple authorities, this Court is of the view that the fair rent may be even more than what it was fixed by the Committee earlier. Since the Committee has fixed fair rent in this case without notice to the tenant, this Court is of the view that the fair rent in respect of the property occupied by the petitioner as tenant is fixed arbitrarily and in violation of principles of natural justice. Without affording any opportunity, the demand notice dated 11.09.2009 was sent through RPAD, which is a clear violation of principles of natural justice. Hence the impugned order of the Commissioner, HR & CE Department, Chennai, in A.P.No.27 of 2015, D2, dated 28.03.2016, is set aside. It is open to the temple authorities to fix the fair rent w.e.f., 01.05.2008 following the guidelines issued by the Government, vide G.O.Ms.No.456, dated 09.11.2007 or any other subsequent guidelines or amendment in accordance with law, after giving an opportunity to the petitioner to raise his objection with regard to the basic factors, which are to be taken into account for the purpose of fixing fair rent w.e.f., 01.05.2008.
19.Though the Commissioner, HR & CE Department, Chennai, has confirmed the order of the Joint Commissioner, HR & CE Department, Madurai approving the rent suggested by the Fixation Committee, the third respondent, namely, the Executive Officer of the Temple is directed to place the matter before the Committee or the officers concerned, after issuing notice to the petitioner informing the petitioner about the basic factors, namely, the extent of land, extent of the building, probable market value of the land, cost of construction and other details, which are proposed to be taken by the Committee or the Officers concerned to fix the fair rent and after hearing whether he has any objection regarding the fixation of fair rent. Hence, the Civil Revision Petition is allowed and disposed of accordingly.
20.As regards W.P.(MD)No.21806 of 2017, the petitioner has challenged the order of attachment by which the movables then found inside the demised premises, which was in the occupation of the tenant for selling the articles attached by public auction, in case the petitioner did not pay the arrears of rent within 15 days. This Court has earlier set aside the order regarding the fixation of fair rent. This Court has already pointed that the tenant is liable to pay fair rent w.e.f., 01.05.2008. It is not in dispute that the tenant has collected a sum of Rs.15,000/- as rent from a sub-tenant in respect of a portion of the premises. Having regard to the extent of land and the area of construction, this Court can deduce that the rent for enjoyment of building and it cannot be less than Rs.10,000/- from 2008. Considering the facts and circumstances in this case, this Court of the view that the tenant can be directed to pay at least a reasonable amount towards rent, so as to maintain status-quo, till a decision regarding the fixation of fair rent is taken as per the direction of this Court in the connected Civil Revision Petition. Hence, this Court is inclined to pass the following order.
?The petitioner is directed to pay a sum of Rs.15,00,000/-(Rupees fifteen lakhs) to the third respondent within a period of two months from the date of receipt of a copy of this order and upon payment within the time stipulated, the respondent shall hand over all the movables that were taken from the petitioner's premises as per the inventory list attached to the impugned order, leaving the items which were earlier released by the respondent pursuant to the order of this Court in the connected writ petition.?
21.W.P.(MD)No.18875 of 2017, has been filed by a stranger claiming to be in enjoyment of the property and carrying on business as a sub-tenant under the petitioner in other cases. The petitioner has filed the Writ Petition for directing the respondents 1 and 2 to hand over the seized papers belonged to the petitioner, which are taken away by the respondents on 28.09.2017 from the property bearing D.No.46, North Perumal Maistry Street, Madurai. No doubt, the respondents can exercise the power of Collector under the Tamil Nadu Revenue Recovery Act, 1864, to recover the arrears of rent from the tenants of the properties of the Temple. However the power cannot be enlarged to seize the goods or articles belong to any third party within the premises of the Temple. Hence the seizure of papers and articles that belongs to the petitioner is not authorised under any provisions of law. This Court has earlier passed an order in W.M.P.(MD)No.15223 in W.P(MD)No.18875 of 2017, directing the petitioner to take the papers and materials belong to the petitioner upon payment of Rs.10,00,000/- to the Executive Officer of the Temple, as the petitioner has come forward that the goods available within the demised premises were worth about Rs.50,00,000/- as per invoices and that allowing the goods under the custody of temple authorities may result in deterioration of the value of the goods. It was in that circumstances, the second respondent was directed to hand over the goods, however, on condition.
22.Now the money to be deposited by the writ petitioner is available with the respondents. The temple authorities may not be aware of the ownership of the goods seized from the premises. Hence, upon satisfying the Executive Officer of the temple as to the ownership of the goods that were taken by the second respondent from the petitioner, the second respondent is directed to pay the amount collected from the writ petitioner pursuant to the direction of this Court. Since the petitioner was a sub tenant under the main tenant, without the consent of the temple authorities, the temple authorities is directed to make payment out of money which is to be collected from the petitioner pursuant to the direction of this Court, in the connected writ petitions. It is open to the temple authorities to approach this Court for further direction in this regard, in case any clarification is required in the event of any unforeseen circumstances.
23.In fine,
(a) Civil Revision Petition in C.R.P.(NPD)(MD)No.982 of 2016 is allowed and disposed of in terms of para 18 and 19 of this order;
(b)W.P(MD)No.11977 of 2016 is dismissed as infructuous;
(c)W.P(MD)Nos.18371 and 18372 of 2017 are dismissed;
(d)W.P(MD)No.18875 of 2017, is allowed with directions as indicated above in para 21 and 22 of this order; and
(e)W.P.(MD)No.21806 of 2017, is disposed of with directions as indicated in para 20.
No Costs. Consequently, connected miscellaneous petitions are closed.
To
1.The Commissioner, Hindu Religious and Charitable Endowment Department, The Administration Department, Chennai ? 34.
2.The Joint Commissioner, Hindu Religious and Charitable Endowment Department, Madurai.
3.The Deputy Commissioner / Executive Officer, Arulmigu Kallalagar Thirukovil, Alagarkovil, Madurai.
4.The Assistant Commissioner, Hindu Religious and Charitable Endowment Department, Madurai.
5.The Section Officer, Vernacular Records, Madurai Bench of Madras High Court, Madurai.
.