Madras High Court
The Commissioner Of Hindu Religious And ... vs Mary Isabal And Anr. on 1 November, 1988
Equivalent citations: (1989)1MLJ83
JUDGMENT Mohan, J.
1. These writ appeals raise an important question as to the jurisdiction of this Court under Article 226 of the Constitution of India with regard to the issue of Mandamus. The brief facts, which are necessary, are set out below:
2. The parties are referred to in the manner in which they are arrayed in these writ appeals. The second respondent Aadheenakarthar owns large extent of land in the State of Tamil Nadu scattered over various districts and one such property which forms the subject matter of these writ appeals is survey No. 234/3 and 234/4 (old survey Nos.53 and paimash Nos.307, 308 and 311 to 316). It comprises an extent of 4 acres and 5 cents of wet lands in Adambakkam Village, Saidapet Taluk, Chelgalpattu District. On 27-8-1969, the second respondent entered into an agreement for sale of this land with one M.S. Sabapathy. Under the terms of the agreement the consideration was fixed at Rs. 180 per cent. On this agreement, an application was made to the appellant herein for sanction under Section 34 of the Tamil Nadu Hindu Religious and Charitable Endowments Act,1959 (hereinafter referred to as the Act). The appellant directed the Assistant Commissioner, Kancheepuram, to hold an enquiry and submit his report on the necessity for the sale and market value of the property. By his report dated 11-12-1972 the Assistant Commissioner found that there was necessity for the sale and sanction might be accorded to the second respondent. However, it was stated by him that the price would be somewhere in the region of Rs. 400 percent. In the event of the intending vendor proposing to offer that consideration of Rs. 400 per cent, necessary permission might be accorded. The agreement holder viz., M.S. Sabapathy was not interested in purchasing the property at Rs. 400 per cent and insisted on the sale of the property at Rs. 180 per cent to him. Since the parties could not come to an amicable settlement and as the said M.S. Sabapathy was not willing to purchase the property at Rs. 400 per cent he asked for the return of the advance paid by him. He also claimed damages as against the second respondent. For the recovery of the advance paid by M.S. Sabapathy and also damages and interest, he filed O.S. No. 129 of 1972 on the file of the Subordinate Judge of Chengal-pattu against the second respondent. The advance claimed was Rs. 20,000 and damages of Rs. 10,000 with interest. In all the suit was laid for the recovery of Rs. 35,562.50. The said suit, on trial came to be decreed on 28-11-1975. Under the terms of the decree, the plaintiff therein was held to be entitled to the refund or the advance of Rs. 20,000, while the damages came to be fixed at Rs. 5,000, in all a decree for Rs. 25,000 together with interest at 6% per annum was passed. The plaintiff was also awarded proportionate costs of the suit.
3. The second respondent, who figured as defendant in the suit, preferred an appeal, A.S. No. 439 of 1976 to this Court. This Court confirmed the decree of the trial Court for refund and interest, but the quantum of damages was reduced to Rs. 3,562.50 by judgment dated 6-3-1981.
4. Pending the said appeal, stay of execution of the decree was granted and later the interim stay was modified in respect of the return of the advance of Rs. 20,000, interest and proportionate costs and ultimately the stay was restricted only to Rs. 5,000.
5. A mortgage had been created over the property for a sum of Rs. 10,000 in favour of one P.G. Sekhar, son of Pattabirama Mudaliar. The second respondent entered into an agreement to sell the property with the first respondent on 12-5-1978. The agreement stipulated that the sale price will be Rs. 300 per cent. In pursuance of the agreement, a sum of Rs. 50,000 was paid in order to enable the second respondent (1) to discharge the decree debt in O.S. No. 129 of 1972 and (2) the mortgage in favour of P.G. Sekhar. Pursuant to this agreement, possession was also handed over to the first respondent. The first respondent appears to have evicted two tenants by paying a sum of Rs. 3,500 to one of them and got a deed of release of the tenancy right. With regard to another tenant, on the same date another agreement was executed, the consideration being Rs. 4,000. These were also unauthorised trespassers who had put up huts. The first respondent got them evicted by taking appropriate proceedings, including payment of certain money.
6. One important clause of the agreement for sale stipulated that within nine months from the date of the agreement, necessary sanction under Section 34 of the Act was required to be obtained by the vendor. It requires to be mentioned at this stage that though the consideration that was agreed to be paid originally was Rs. 300 per cent, later on, by a mutual agreement, it was increased to Rs. 600 per cent.
7. On 4-1-1979 an application was made to the Commissioner for sanction to sell the land at the rate of Rs. 600 per cent. In that application it was pointed out by the second respondent herein that Rs. 600 per cent now offered would be beneficial to the institution. A report was called for by the Commissioner from the Assistant Commissioner, Urban Land Tax, Saidapet. It was reported that the value of the property might be Rs. 1,000 per cent. On 29-10-1980 the-Commissioner called upon the first respondent to send a letter of acceptance to signify his consent to purchase the property at Rs. 1,000 per cent. The Commissioner was informed that the valuation fixed by the District Revenue Officer, Kancheepuram, was Rs. 730 per cent, that the present claim of Rs. 1,000 per cent was exorbitant and that on the date of the agreement the market value would be only Rs. 600 per cent and not more. It was also pointed out that the first respondent had incurred a lot of expenses in evicting the tenants and the unauthorised occupants. Therefore, the Commissioner was requested to fix a reasonable price. The second respondent also wrote a latter to accept the price offered by the first respondent originally. The Commissioner, however, insisted on payment of a sum of Rs. 1,000 which could not be reduced under any circumstances. The first respondent by her letter dated 21-11-1980 agreed to pay Rs. 1,000 Pursuant to this, on 27-11-1980, the first respondent was called upon to pay a sum of Rs. 350 by way of advertisement charges. The same was paid by the first respondent on the same date. Whereupon the publication appeared in the newspapers, inviting objections, if any, either in writing or in person for the proposed sale of the land at Rs. 1,000 per cent by the second respondent in favour of the first respondent. It was also informed that an enquiry in this regard would take place on 20-1-1981 and the objectors could make their representations. No objection was received by the Commissioner; nor again was there any oral representation made on the date of hearing viz., 20-1-1981. However, on 22-2-1982 the Commissioner refused to grant sanction and proposed that the sale be held in public auction. Even before this, finding that no (SIC) had been granted, the first respondent came forward with W.P. No. 1857 of 1982 on 1-3-1982 for a writ of mandamus to direct the Commissioner to accord sanction on the application dated 4-1-1979 filed by the second respondent under Section 34 of the Act. As we observed already, since an order was passed on 22-2-1982, that drove the first respondent herein to the necessity of filing another writ petition viz., W.P. No. 8418 of 1982 on 11-10-1982 for a writ of certiorarified mandamus to quash this order and consequential direction to grant sanction. Both these writ petitions came up for hearing before our learned brother V. Ramaswami,J., as he then was. The learned Judge took the view that under Section 34 of the Act, sanction could be refused only in the following circumstances:
There could be no doubt that if the price is grossly inadequate that may be put as a ground on the basis that the sale for grossly inadequate price would not be for the benefit of the institution. Though the section requires sanction by the Commissioner, the powers of the Commissioner could not be exercised arbitrarily. It could be exercised only on reasons recorded that the sale would neither be necessary nor beneficial to the institution either on the ground that the price accorded was grossly inadequate or the transaction was a result of a fraud or corruption or nepotism or at such similar grants. Merely on the basis that the transaction was one entered into private by parties and not in pursuance of a public auction, it is not possible to refuse sanction.
He was also of the view that if at this stage after the lapse of six years the property were sold in public auction, it would be most unreasonable and unjust, as the reasonableness of the price would have to be fixed with reference to the date on which the Commissioner had made the order or the date on which the public auction has to be held in pursuance of the order of the Commissioner. He found that having regard to the report of the Assistant Commissioner, above referred to, there was necessity for sale. It would be made clear by the Assistant Commissioner, above referred to, there was necessity for sale. It would be made clear by the Assistant Commissioner in his report dated 11-12-1972. In the result, the Commissioner was only considering whether the price was adequate and reflected the market value. He was clearly of the view that since the first respondent herein had agreed to the price as suggested by the Commissioner viz., Rs. 1,000 per cent, the order could not be supported. It was also found that the second respondent institution supported the case of the first respondent herein and was willing to sell the property for Rs. 1,000 per cent. In view of what is stated above, the learned Judge held in paragraph 7 of his judgment as follows:
For the foregoing reasons, the impugned order of the Commissioner is set aside and there will be a mandamus directing the Commissioner to sanction the sale in favour of the petitioner at the rate of Rs. 1,000 per cent and such order shall be made within a period of one week from the date of the receipt of this order.
It is under these circumstances, these two appeals have arisen, W.A. 1198 of 1983 has been preferred against the order in W.P. No. 8418 of 1982 and WA. No. 1199 of 1983 has been preferred against the order in W.P. No. 1857 of 1982.
8. The learned Government Pleader strenuously urges that what the learned Judge has done is nothing more than passing a decree for specific performance. Merely because the Commissioner suggested the price of Rs. 1,000 per cent and if the same was agreed to by the writ petitioner (first respondent herein), it was also agreeable by the Institution, the second respondent, it does not mean that the Commissioner is bound to grant sanction.
9. Section 34 is a very important section with regard to the power of alienation by the religious or charitable institution. That section categorically provides that in the absence of sanction any exchange, sale or mortgage and any lease beyond the period of five years whatever may be the case, would be null and void. That means, the power to grant sanction is coupled with a duty to consider ordains the Commissioner to have regard to (1) the necessity for sale and (2) whether the sale is beneficial to the institution. In this case neither of these considerations had crept in nor had the Commissioner considered the sale. Therefore, the learned Judge had not found a finding in this regard. Therefore, now to direct, as the learned Judge had done, would amount to foreclosing the consideration of these two vital aspects. For aught one knows the Commissioner may still find that the sale is necessary or again it is beneficial to the institution. Merely because the Assistant Commissioner in his report dated 11-12-1972 has stated that the sale is necessary, it does not follow that it would be binding on the Commissioner. Still as the only statutory authority conferred with the power of sanction, he will have to consider that the sale is necessary and beneficial to the institution. The learned Judge had assumed these aspects in favour of the petitioner in the writ petition having regard to the circumstances of the case. Further the learned Judge has substituted his discretion to that of the Commissioner's discretion. Therefore, in any event, the direction contained in paragraph 7, commanding the Commissioner to issue sanction cannot be supported in law.
10. Mr. A.C. Muthanna, learned Counsel for the first respondent would urge that there is no point in driving his client from pillar to post. The matter has been dragging on for a long time. The second respondent institution wanted to sell the property. Many hurdles were crossed in evicting the tenants and removing the unauthorised hut dwellers. The only aspect which loomed large was the consideration. Though the first respondent was initially unwilling for payment at Rs. 1,000 per cent, ultimately she agreed to do so. It is only thereafter she was called upon to pay the advertisement fee of Rs. 350, which was paid. Obviously, having regard to the report, which was available before the Commissioner and having regard to all these facts, the Commissioner has found that (1) sale is necessary and (2) it is beneficial to the institution. Under those circumstances, nothing remains, excepting to make a formal order of sanction by the Commissioner which, under writ jurisdiction, this Court was entitled to pass an order. From this point of view, the Commissioner cannot plead technicality and get over the statutory obligations. It is incorrect to contend that the decree for specific performance had been granted. All that the learned Judge has done is to direct the Commissioner, to perform his statutory duty under Section 34 of the Act, which is well permissible within the jurisdiction of mandamus.
11. Mr. W.C. Thiruvengadam, learned Counsel appearing for the second respondent, supporting the arguments of Mr. A.C. Muthanna, would say that this is a case in which one cannot lose sight of the events preceding the order of the Commissioner. At every point, all that the Commissioner was interested was, to secure the best price, so that it will be beneficial to the institution., Earlier, when lesser price was offered, it was rejected and the Commissioner insisted on payment of Rs. 1,000 per cent, which was agreed to by both the vendor and the purchaser under the agreement. Now, to the Commissioner to say that the property must be sold in public auction is not justified. Further, the order dated 22-2-1982 does not give any valid reason as to why public auction was resorted to. If, therefore, one has regard to the grounds of the case on the facts preceding the order of the Commissioner, the only direction that is possible is, as is done by the learned single Judge. No exception could be taken to the same.
12. In order to appreciate the above controversy, it is necessary for us to extract Section 34 of Act:
34(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 purposes of, any religious institution shall be null and void unless it is sanctioned by 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 considered by the Commissioner.
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 period exceeding five years.
(2) When according such sanction, the Commissioner may impose such conditions and give such directions 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 Government to modify the order or set it aside.
(5) Nothing contained in this section shall apply to the name referred to in Section 41.
13. A careful reading of Sub-section (1) of Section 34 of the Act shows the following:
Any exchange, sale or mortgage and any lease for a term exceeding five years of any immovable property belonging to the religious institution shall be null and void unless it is sanctioned by the Commissioner.
This we consider has a serious import in law. What we mean by this is that unless and until sanction is granted by the Commissioner, such a sale will be void abs initial.
14. While granting the sanction, the Commissioner will have to examine and find as a fact whether exchange, sale, and mortgage is:
(1) necessary; and (2) beneficial to the institution.
Therefore, grant of sanction is based on these two important elements. In order to find out either necessity or benefit to the institution, the Commissioner must have materials. This is where the proviso comes into operation. The proviso says that objections and suggestions could be received not only from the trustees, but also from other persons having interest, as well Therefore, from the materials placed before the Commissioner, as a fact, he has to find whether it is necessary or beneficial to the institution. No doubt, he may seek the aid of the subordinate officer, like the Assistant Commissioner or any other person. But, again, as we pointed out now, because the Commissioner and the Commissioner alone has been constituted the statutory authority for the grant of sanction, he will have to find out, as of fact. Merely because the Assistant Commissioner or the Deputy Commissioner or any other officer says that the sale is necessary or beneficial to the institution, that does not mean that the Commissioner will have go accept the report, nor again that report can be relied on, as though it is a substitute for his finding. All these precautions were made because the religious institution is practically made the custodian of the property in whose name the alienation is done in disregard of the necessity of the institution. The very object of creating the highest authority in the set up of the Endowment Board as sanctioning authority is of a great legal significance. It is also to be noted in this connection that such a power cannot be delegated by the Commissioner, because it is a plenary power. While saying so, we are aware of Section 13 of the Act, which speaks of delegation. But we need not pursue this line of reasoning. All that we endeavor to point out is that this is a safeguard to prevent indiscriminate alienation by the religious institution. If such an alienation takes place contrary to the provisions of the Act to make it null and void abs initial, it would have serious repercussions, because after several years one may say that he had not derived valid title because of the lack of statutory sanction. It is with this background that we have to analyses the fact.
15. No doubt, we set out the case is great detail during our narrative part of our judgment. One thing is clear, As a matter of fact, it is conceded by all the learned Counsel that nowhere the Commissioner has found that the sale is necessary or beneficial to the institution. Unfortunately, these two important elements, as we have already pointed out, would alone form the basis of sanction and, therefore, unless and until they have been considered, the grant of sanction cannot arise at all. The whole case seems to have loomed large only with regard to consideration. But that alone is not sufficient. The learned Judge himself has noted that the powers of the Commissioner could not be exercised arbitrarily. The arbitrariness is cut down by these two important elements. That is why it is necessary all the more to render a finding in this regard.
16. Price alone may not be a determinative factor. That may be only an aid as to how far it will be beneficial to the institution. But yet whether it is necessary to sell the property by the religious institution, the Commissioner will have to find out, as a fact. The learned Judge relied on the report of the Assistant Commissioner dated 11-12-1972 as well as the earlier report of the year 1969 of the Assistant Commissioner. But that is, as we have already pointed out, only one of the materials on which the consideration with regard to the necessity must emanate, Equally, the benefit to the institution must be rested. So long as these have not been determined to issue a writ of mandamus, as has been done in paragraph 7 of the order of the learned Judge, it cannot be supported in law, with great respect:
17. The Latin term 'Mandamus' means 'command'. This Court has issued a command to the Commissioner to straightaway sanction in favour of the first respondent herein viz., the writ petitioner at the rate of Rs. 1000 per cent and sanction has to be made within a week. We are of the view that it goes beyond the jurisdiction under Article 226 of the Constitution of India, because, as we have repeatedly pointed out above, the very sanction is based on relevant consideration of (1) necessity and (2) beneficial to the institutions which the Commissioner is required to find out, as a fact, on the materials before him. The file does not disclose any such finding. At this stage, it may be relevant to extract the finding of the learned single judge, which is as follows:
Even at a later stage when the agreement was entered into with the petitioner and the application for sanction was made on 4-1-1979, it would not be the case of the first respondent that there was no necessity for the sale or that the sale of the property would not be for the benefit of the institution. The Commissioner was only considering whether the price was adequate and reflects the market value.
If that is so, the learned Judge had not underscored the necessity to render a finding on these 1 two important aspects. It is on this basis that we hold that paragraph 7 goes beyond the jurisdiction of Article 226 of the Constitution of India.
18. We find also justification in the complaint of the learned Government Pleader that what has been done by the learned single Judge tant-amounts to a decree for specific performance, perhaps even without levy of execution. Therefore, we are constrained to set aside the order and direct the Commissioner to reconsider the entire matter in the light of Section 34 of the Act and the statutory consideration which are required to be borne in mind and decide the matter on the materials placed before him. The orders in this regard shall be passed within three months from this date.
19. In the result, WA. 1198 of 1983 will stand allowed in terms of what we have observed above. Since no order has been passed in W.P. No. 1857 of 1982, no order is necessary in W.A. No. 1199 of 1983 and the same shall stand dismissed. No costs.