Madras High Court
B.Venkatesh Babu vs The Commissioner on 30 September, 2015
Author: R.Mahadevan
Bench: R.Mahadevan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 30.09.2015
CORAM
THE HONOURABLE MR.JUSTICE R.MAHADEVAN
W.P(MD)No.8622 of 2014
and
M.P(MD)No.1 of 2014
B.Venkatesh Babu ... Petitioner
Vs.
1.The Commissioner,
Department of Hindu Religious and
Charitable Endowments,
119, Nungambakkam High Road,
Chennai - 600 034.
2.The Joint Commissioner,
Department of Hindu Religious and
Charitable Endowments,
Sivagangai,
Sivagangai District.
3.The Fit Person/Executive Officer,
Arulmighu Subramania Swamy Thirukoil,
Kamuthi Village & Taluk,
Ramanathapuram District.
4.K.Muniasamy
5.V.Kottaichamy
6.R.Aayar Raman ... Respondents
PRAYER: Writ Petition is filed under Article 226 of the Constitution of India
praying to issue a Writ of Certiorarified Mandamus to call for the records
relating to the proceedings of the first respondent made in
Na.Ka.No.7169/tp3, dated 18.03.2014, cancelling the declaration, declaring
the petitioner as a successful bidder in respect of the payment of donation
relating to the lease of the shop to an extent of 2668 sq. ft. belonging to
Arulmighu Subramania Swamy Thirukoil, Kamuthi Village and Taluk, by the then
Fit Person of the Thirukoil and quash the same and direct the first
respondent to confirm the auction held on 24.12.2013 in declaring the
petitioner as a successful bidder in respect of the subject aforesaid.
!For Petitioner : Mr.V.Sitharanjandas
For Respondents : Mr.N.S.Karthikeyan,
Additional Govt. Pleader for R.1 & R.2
Mr.S.Manohar for R.3
Mr.V.Nagarajan for R.4 & R.6
No appearance for R.5
:ORDER
The petitioner is the successful bidder in the auction held on 24.12.2013 in respect of the payment of donation relating to the lease of the shop to an extent of 2668 sq. ft. belonging to Arulmighu Subramania Swamy Thirukoil, Kamuthi Village and Taluk, by the then Fit Person of the Thirukoil and the first respondent, by his proceedings dated 18.03.2014, made in Na.Ka.No.7169/tp3, cancelled the entire auction proceedings and aggrieved by the same, the petitioner has come forward with the present writ petition.
2. Heard both sides.
3. Nutshell facts of the case of the petitioner, are as follows:
3.1. The then Fit Person/Executive Officer of the third respondent temple called for tender in a sealed cover for the payment of donation for enjoying the lease of the tiled building/shop to the extent of 2,668 sq. ft. in S.No.606/35, Maravar Sanga Savadi Street, Kamuthi Town, Ramanathapuram.
3.2. The terms and conditions of the tender were given in the Tender Notice dated 10.12.2013 and the date of auction was on 24.12.2013.
3.3. The petitioner along with the respondents 4 to 6 participated in the tender.
3.4. Since the petitioner quoted the highest amount, he was declared as successful bidder and he also paid a sum of Rs.75,000/-.
3.5. He also paid a sum of Rs.44,700/- being the rent for ten months.
3.6. When that being so, the petitioner was issued with a show cause notice dated 18.02.2014 calling for the explanation as to why the lease declared in favour of the petitioner should not be cancelled.
3.7. The petitioner also submitted his explanation, however, the first respondent passed the impugned order dated 18.03.2014, on the ground that the publication of the tender notice was not given fifteen days prior to the date of auction. Therefore, the petitioner is before this Court.
4. Whereas the first respondent filed the counter affidavit, inter alia, contending thus:
4.1. The third respondent temple is a Hindu Public Religious Institution under the administrative and supervisory control of the H.R. &C C.E. Department.
4.2. In respect of the property of the third respondent temple comprised in S.No.606/35, an open public auction-cum-tender was called for on 24.12.2013.
4.3. The second respondent submitted a report dated 31.01.2014 to the first respondent stating that the said auction was not conducted properly in accordance with the Rules framed under the Act and the notice was not published fifteen days prior to the date of the auction.
4.4. Based on the said report, the first respondent issued a show cause notice calling for the explanation of the petitioner and on receipt of the same, the impugned order came to be passed.
4.5. He, therefore, prayed for the dismissal of this writ petition.
5. In the counter affidavit filed by the third respondent, it is, among other things, stated thus:
5.1. The then Fit Person/Executive Officer was suspended by the Department for violating the provisions of the Tamil Nadu Act 22 of 1959 and disciplinary action was initiated against him.
5.2. A former Member of the Legislative Assembly made a complaint alleging that without opening the tender, the auction was held.
5.3. The paper publication was issued on 22.12.2013 for the auction to be held on 24.12.2013, in violation of the Religious Institutions (Lease of Immovable Property) Rules, 1963. (in short 'the Rules').
5.4. The notice of auction shall be issued fifteen days before the date of auction.
5.5. The first respondent issued a show cause notice dated 18.02.2014 to the petitioner alleging that the petitioner paid a sum of Rs.25,000/- in the name of the sixth respondent.
5.6. Since the procedures as contemplated under the Act 22 of 1959 were not followed, the first respondent cancelled the auction, by the impugned order dated 18.03.2014 and hence, prayed for the dismissal of this writ petition.
6. The respondents 4 and 6 filed the counter affidavit, stating that they are not necessary parties to the present writ petition and hence, prayed for passing appropriate orders.
7. Mr.V.Sitharanjandas, learned Counsel for the petitioner made the following submissions:
7.1. The first respondent passed the impugned order without assigning any valid reasons.
7.2. The impugned order came to be passed by the first respondent based on the complaint made by a third party to the tender proceedings and in the show cause notice, no reasons were assigned.
7.3. The allegation that the petitioner paid the amount for the Demand Draft of the sixth respondent is baseless.
7.4. The then Fit Person/Executive Officer had scrupulously followed the procedures as contemplated under the Act in regard to the conduct of the auction.
7.5. The show cause notice was not issued in accordance with the relevant Rules.
7.6. Hence, the impugned order passed by the first respondent warrants interference by this Court.
8. Per contra, Mr.N.S.Karthikeyan, learned Additional Government Pleader appearing for the respondents 1 and 2, submitted that the auction held on 24.12.2013 was not conducted properly and hence, the disciplinary proceedings were initiated against the officials concerned and the first respondent, based on the report as well as the explanation submitted by the petitioner, passed the impugned order, cancelling the entire auction proceedings and therefore, the same need not be interfered with by this Court.
9. Whereas Mr.S.Manohar, learned Counsel for the third respondent submitted that the tender notice has not been published properly fifteen days prior to the date of auction and even on the date of auction, it was not opened, but, the petitioner was declared as the successful bidder of the shop in question and moreover, the petitioner paid a sum of Rs.25,000/- in the name of the sixth respondent, which vitiated the entire auction proceedings and therefore, the first respondent rightly cancelled the same and prayed for the dismissal of this writ petition.
10. Mr.V.Nagarajan, learned Counsel for the respondents 4 and 6 submitted that they are not at all proper parties to the present writ petition and prayed for passing appropriate orders.
11. I have considered the rival submissions and perused the materials available on record.
12. A close reading of the impugned order, dated 18.03.2014, passed by the first respondent, would reveal the following facts:
12.1. The auction was scheduled to be held on 24.12.2013 and the tender notice was published only on 22.12.2013.
12.2. A former Member of the Legislative Assembly made a complaint alleging that the auction was not conducted properly.
12.3. The first respondent issued a show cause notice to the petitioner calling for his explanation as to why the auction should not be cancelled.
12.4. The petitioner also submitted his explanation and thereafter, the first respondent passed the impugned order, cancelling the entire auction proceedings, as it was not conducted in accordance with the provisions of the Act.
12.5. Moreover, the disciplinary proceedings were initiated as against the officials concerned for the alleged misconduct on their part while conducting the said auction.
12.6. The petitioner paid a sum of Rs.25,000/- in the name of the sixth respondent for participating in the tender process.
12.7. Having considered the above circumstances, the first respondent passed the impugned order, dated 18.03.2014.
13. According to the petitioner, since the auction cum tender notice was issued on 10.12.2013, informing the date of auction as 24.12.2013, the provisions of Rule 4 of the Rules, have been complied with and hence, the reasons assigned by the first respondent for cancelling the earlier tender process are not tenable in law.
14. However, the first respondent has categorically found that since the auction cum tender notice was published only on 22.12.2013, i.e. two days prior to the date of auction, i.e. on 24.12.2013, there is a clear violation of the provisions of Rule 4(1) of the Rules and thereby, the participation of the persons having interest in the religious institutions from taking part in the alleged auction was prohibited. Moreover, the officials concerned were also proceeded with departmentally, as they have violated the provisions of the Act 22 of 1959, in conducting the auction cum tender.
15. At this stage, this Court is of the view that the properties of the religious institutions have to be maintained by the H.R. & C.E. Department to ensure more revenue to the temple, so that, the religious and other works could be carried out without any hindrance. No doubt, the main object for leasing out the properties of the temple, is to protect the religious institutions, out of the income derived therefrom. If any violation is committed while conducting such auction cum tender, it would ultimately go against the interest of the temple, which, this Court could not allow by keeping the fingers crossed, at no point of time.
16. What the first respondent felt in the impugned order, is that there is a clear violation of the provisions of the Act and Rules relating to the conduct of auction cum tender. Even though the petitioner was the successful bidder, the first respondent is having jurisdiction to look into the allegations regarding the conduct of the auction cum tender in the interest of the temple and exercise his powers under the Act to ensure transparency in the auction cum tender.
17. The main ground on which the impugned order dated 18.03.2014 came to be passed, is that the auction cum tender notice was not published fifteen days before the date of auction. It is seen that the auction cum tender notice was issued on 10.12.2013, stating that the auction was scheduled to be held on 24.12.2013, however, the said notice was published in the newspapers only on 22.12.2013.
18. Now, it is useful to refer to Rule 4 of the Rules, hereunder, for ready reference:
"4. Auction notice. - (1) The notice of auction of all leases shall be published, at least 15 days before the date fixed for auction, by affixture-
(a) on the notice board or in the case of a specific endowment, on the notice board or front door of the religious institution to which the specific endowment is attached;
(b) on the notice board of the office of the Municipal Council or the Corporation of Chennai or the Panchayat or the Panchayat Union or the village chavadi in the places where the properties are situate; and
(c) on the notice board of the office of the Assistant Commissioner having jurisdiction over the area in which the properties are situate.
(2) The executive authority shall also give publicity to the notice in the language of the locality, by circulating or distributing copies thereof or announcing its content by beat of tom tom in the area or by publishing it in a newspaper in the language of the locality having circulation in the area.
(3) Where the auction is conducted by the Executive Officer, a copy of the auction notice shall also be sent to the trustees at least 3 days before the date fixed for auction."
(emphasis supplied.)
19. A mere reading of the aforesaid provision would make it clear that as per Rule 4(1) of the Rules, the notice of auction of all leases shall be published, at least 15 days before the date fixed for auction, by affixture, on the notice board or in the case of a specific endowment, on the notice board or front door of the religious institution to which the specific endowment is attached. Whereas Rule 4(2) of the Rules, contemplates that the executive authority shall also give publicity to the notice in the language of the locality, by circulating or distributing copies thereof or announcing its content by beat of tom tom in the area or by publishing it in a newspaper in the language of the locality having circulation in the area.
20. Here, the date of auction cum tender notice is 10.12.2013 and it has been published in the newspapers on 22.12.2013 and the date fixed for auction cum tender is on 24.12.2013. Applying the provisions of Rule 4(1) of the Rules, it is seen that the time stipulated by the Act was not adhered to by the authorities concerned, as there was no clear 15 days and the fifteenth day only fell on the date of auction itself and it could not be taken as though the provisions of the Act have been complied with, for the reason that there must be a notice fifteen days prior to the date of auction and on that ground alone, the contentions raised by the petitioner are liable to be rejected. Contrary to the provisions of the Act, nothing can be permitted to go on and in the case on hand, the first respondent has already initiated the disciplinary proceedings against the officials concerned and the same speaks volume about the nature of the auction cum tender held in the third respondent temple. Therefore, this writ petition fails.
21. In the result, this writ petition is dismissed. Consequently, the connected miscellaneous petition is also dismissed. No costs.
To
1.The Commissioner, Department of Hindu Religious and Charitable Endowments, 119, Nungambakkam High Road, Chennai - 600 034.
2.The Joint Commissioner, Department of Hindu Religious and Charitable Endowments, Sivagangai, Sivagangai District.
3.The Fit Person/Executive Officer, Arulmighu Subramania Swamy Thirukoil, Kamuthi Village & Taluk, Ramanathapuram District..