Madras High Court
Arulmighu Meenakshi Sundareswarar ... vs The State Of Tamil Nadu, Rep. By The ... on 10 February, 2000
Equivalent citations: 2000(1)CTC471, 2000 A I H C 3260, (2000) WRITLR 672
ORDER
1. In W.P. No.1178 of 2000, an Association of tenants of Arulmighu Meenakshi Sundareswarar Koil, Madurai has sought to quash the Government Order in G.O. Ms. No.353, Tamil Development and Culture, Hindu Religious Department dated 4.6.1999.
2. In the next batch of writ petitions, i.e. W.P. Nos.1234 to 1265 of 2000, individual tenants have preferred writ petitions against the orders of the Joint Commissioner, H.R. & C.E., fixing the rent for the premises in their occupation.
3. The brief facts necessary to dispose of these writ petitions are given below:
About 200 shops are situated in and around the Arulmighu Meenakshi Sundareswarar Koil, Madurai. It is stated that the petitioners are tenants for several years and continuing. It is further not disputed that the Rent Control Act. does not apply to the buildings coming under the H. R. & C.E. Department. The Government has issued guidelines in G.O. Ms. No.56 dated 19.2.1998 fixing the rent relating to lands, shops, buildings and houses belonging to the various temples in Tamil Nadu. After considering the recommendation of the Commissioner, H.R. & C.E., the guidelines, providing different rates of the value of the buildings, were issued. For instance, in case of shops, the rent was fixed at 1% of the building's value. In case where houses were constructed on vacant land, the rent was fixed at 0.25% of the market value. If further stated that rent will be fixed at 10% every year after such fixation as per the guidelines. For the buildings, the revision must be for every three years. As against this Government Order, objections were raised by the tenants. After considering the objections and the recommendation of the Department, the earlier Government Order was modified and fresh guidelines were issued by the impugned Government Order. The relevant clauses that we are concerned with are Clause Nos.l and 7. As per Clause 1, the rent shall be 0.6% of the building's value or the present market rental value in that area, whichever is higher. Clause 7 states that for the shops located inside the Praharam, the rent shall be 0.30% of the market value. The latter portion of the guideline relates to the writ petitioner Association in W.P. No.1178 of 2000.
4. The main contention of the learned counsel for the petitioner in the first writ petition is that the Government has no power to issue guidelines and that the fixation of rent is discriminatory and unreasonable.
5. The common point raised and argued by the individual tenants in the batch of writ petitions in W.P. Nos. 1234 to 1365 of 2000 is that there is an arbitrary enhancement of rent without giving opportunity to the petitioners before fixing a fair rent and that the respondents have not followed any norms in fixing a fair rent.
6. Mr. R. Balasubramaniam, Special Government Pleader appeared on behalf of the respondents and submitted that the marked value of the buildings were ascertained after finding out the guideline value of the land and after finding out the value of the building. The market value of the building thus arrived at formed the basis for fixation of the rent. He argued that the petitioners have got a right of appeal against the fixation of rent under Section 21 of the Tamil Nadu Hindu Religious & Charitable Endowment Act, 1959 (hereinafter referred to as the Act). He further submitted that the Government is empowered to issue guidelines when the Act is silent on the particular subject.
7. I have heard the counsel for the petitioners and the respondents and considered the matter carefully.
8. Section 34 of the Act deals with the alienation of immovable property, sub-section (4) (a) as inserted under Act 38 of 1998 is as follows:
"(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."
Section 116 of the Act empowers the Government to make rules. The impugned Government Order is not made as a statutory rule, but is issued as guidelines and directions in the Commissioner. Though this Government Order is not framed under any particular rule, there is a statutory rule called Religious Institutions (Lease of Immovable Property) Rules, 1963. These rules are framed under Section 116(2) of the Act. Rules 2 states that lease of immovable property and rights belonging to religious institution shall be made by public auction. Rule 3 deals with the period and terms of lease. As per this rule, when the rent is not paid on the date and the place at which the rent is to be given, penalty can be imposed for default in payment of the rent. The terms of the lease can be prescribed under this rule. Rule 12 says that when a lease is granted for a period of less than five years, any further extension upto a period of five years shall be made only with the previous sanction of the Commissioner. Lease exceeding five years shall be made in accordance with the provisions contained in Section 34. Rule 17, which provides for fixation of fair rent belonging to buildings of religious institutions, reads as follows:
"17. Fixation of fair-rent to buildings belonging to the religious institutions: Pair rent to the site and buildings belonging to the religious institutions shall be revised periodically at-lease once in three years by a Committee constituted for each Deputy/Joint Commissioner's division by the Commissioner. If there is an Executive Officer, appointed for the religious institution, he shall also be associated with the work of the Committee. If there is no Executive Officer appointed for the religious institution, the trustee or Chairman, Board of Trustees shall be associated with the work of the Committee. The fair-rent shall be fixed in accordance with the market value of the land and the cost of the building worked out as per the code of the public Works Department.
Therefore, there is sufficient provision dealing with fixation of terms of the lease, rent and fixation of fair rent for the buildings. Assuming for the sake of argument that Section 34(4)(a) is not applicable and cannot be invoked in reference to the impugned Government Order, the Act which provides for the administration and governance of Hindu Religious institutions in Tamil Nadu, the Government is competent to issue orders in furtherance of their power. In Sant Ram Sharma v. State of Rajasthan, , a Constitutional Bench of the supreme Court has held that in the absence of specific provision in the rule, the Government can issue administrative instructions. If the rules are silent on any particular point, the Government can fill up the gaps and supplement the rules and issue instructions not inconsistent with the rules already framed. Therefore, the contention that the Government is lacking competency to issue the guidelines cannot be accepted.
9. The next contention is that there is a discrimination between two groups of shops. But, it is seen that as far as shops belonging to the temple under category is concerned, 0.6% of the market value is fixed as the fair rent. Whereas, in respect of the shops inside the temple Praharam, it has been fixed as 0.30% of the market value. Therefore, there is a difference of 100% between the shops belonging to the petitioner in W.P.No.1178 of 2000 and the other writ petitioners. Besides, both are of different categories, namely the shops of the petitioner in W.P.No. 1178 of 2000 are situated inside the Praharam, whereas the other shops are situated outside the praharam. Therefore, there is a valid classification for reducing the rate of rent on the market value and hence, there is no discrimination. In O.N.G.Commission v. Association of N.G.C. Industries of Gujarat, , the Supreme Court held that the corporation is duty-bound to act reasonably and fairly and in consonance with the directive principle of State Policy. In this judgment, the Supreme Court was dealing with price fixation of gas. It was held that assuming that since O.N.G.C. is a State instrumentality and the price demanded is susceptible to judicial review, the Court may, where a contract has been entered into, consider the sustainability of the price agreed upon or, where no contract has been entered into, injunct the ONGC from demanding a price for supply, if it is found unreasonable. The Court expressed doubt whether it is upon the Court to direct ONGC. to continue the supply indefinitely without a contract and without any price fixation. In the very same judgment, the Supreme Court held that the basis for fixation of price may vary and a reasonable profit margin is permissible in certain cases.
10. In Shri Sitaram Sugar Co Ltd. v. Union of India, AIR 1990 SC 1227, a constitutional Bench of the Supreme Court held that the price fixation is not within the province of the Court. Their lordships have observed as follows:-
"Judicial function in respect of such matters is exhausted when there is found to be a rational basis for the conclusions reached by the concerned authority. In the same, judgment, it was held that the person assailing classification carries the heavy burden of making a convincing showing that it is invalid because it is unjust and unreasonable in its consequences".
In corporation of Calcutta v. Smt. Padma Debi, , interpreting the Calcutta Municipalities Act, it was held that the rental value cannot be fixed higher than the standard rent under the Rent Control Act. It was held that a contract for rent at a rate higher than the standard rent is not only unenforceable, but also that the landlord would be committing an offence if he collects a rent above the standard rent.
11. The contention of the counsel for the petitioners that the fair rent has been fixed arbitrarily cannot be sustained in the light of the factual position namely that the respondents have fixed the market value of the building by following a prescribed norm. As per the instructions, it is seen that they have taken into account the nature of the building, the extent of the building and the age of the building, and then fixed the market value the building. They have given depreciation for the building and ultimately fixed the market value. One such calculation memo fixing the market value of the building and the monthly rent fixed on that basis is furnished before me. The same is illustratively extracted below:
1. Name of the temple and particulars of Address Arulmighu Vellai Pillaiyar Thiru Kovil, Aathur City & Circle, Salem District
2. Name of the tenant Thiru G. Ramaraj
3. Door No. 575, H.I., Main Road
4. The nature of land/ or building building
5. Nature of Building Built with brick mixed with sand and mortar with asbestors sheet.
6. Extent of the Building Ix26'6'x =947.38 sq.ft. (or) 88.00 sq.mts.
7. Age of the Building 20 years
8. Value of Building Rs.56,320 (Rs,640 per sq.mt.)
9. Depreciation 2% (0.33.239)
10. Value of the depreciation Rs.3,600(px 0.66761)
11. Facilities available
(a) Electricity
(b) Water
(c) Sanitation Rs.2,820(7'/2%)
12. Total 10+11) Rs.40,420
13. Extent enjoyment by the tenants 947.38 sq. ft.
14. Guideline value Rs.410.70per sq.ft.
15. Total value of land Rs. 3,80,563
16. Additional facilities if any ....
17. Total value (12+ 15+ 16) Rs. 4,20,938
18. Purpose for which it is used Commercial
19. Annual rental value Rs. 50,520 (12% of the total value of tKe building)
20. Monthly rental Value (Present rent value) Rs.4,210 Rs. 230
12. Therefore, it could be seen that the respondents have taken into account the relevant factors for fixing the building value. It cannot be stated that this method of fixation is unreasonable or arbitrary. It is the normal method by which even the property tax for the municipalities are fixed. This is also similar to the fair rent value that is fixed under the Rent Control Act. Whereas, under the other provisions of the Act, the rental value is fixed taking into account 9% return. Here, it is only a nominal rate of rent that is fixed, namely 0.6% of the building value and 0.30% of the building value respectively. Inasmuch as a rational basis has been followed for fixing the rental value, I do not find any grounds warranting interference with the value thus fixed. The contention that they have enhanced the rent arbitrarily therefore cannot be sustained. In any event, if there is any specific objection as to the fixation of the rental value, that will be a question of disputed fact, for which the petitioners have got an effective remedy under section 21 of the Act. As a matter of fact, under similar circumstances, as against the enhancement of the rent, this court, in W.P No.194563 of 1999, dismissed the writ petition with liberty to move the appellate authority under section 21. In this case also, based on the guidelines, the authorities concerned have fixed the rent. Therefore, petitioners, if aggrieved, can move the appellate authority. The said order was confirmed in Writ Appeal No.2672 of 1999 dated 28.12.1999.
13. For all these reasons, no grounds are made out to interfere with the impugned Government order and the orders fixing the enhanced rent. Hence, the writ petitions fail and they are accordingly dismissed. No costs. Consequently, all the connected W.M.Ps. are also dismissed.