Madras High Court
N.Dhanasekaran vs The Tamil Nadu Government on 14 March, 2018
Author: S.M.Subramaniam
Bench: S.M.Subramaniam
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 14.03.2018 CORAM THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM W.P.(MD) Nos.4428 of 2018, 4429, 4430, 4431, 4432, 4433, 4434, 4435, 4436, 4437, 4438, 4439 and 4440 of 2018 and W.M.P.(MD)Nos.4519, 4520, 4521, 4522, 4523, 4524, 4525, 4526, 4527, 4528, 4529, 4530, 4531, 4532 of 2018 N.Dhanasekaran ... Petitioner in W.P.(MD)No.4428 of 2018 N.Dhanasekaran ... Petitioner in W.P.(MD)No.4429 of 2018 V.Saratha ... Petitioner in W.P.(MD)No.4430 of 2018 V.Pushpavalli ... Petitioner in W.P.(MD)No.4431 of 2018 A.Nagarajan ... Petitioner in W.P.(MD)No.4432 of 2018 A.Nagarajan ... Petitioner in W.P.(MD)No.4433 of 2018 A.Nagarajan ... Petitioner in W.P.(MD)No.4434 of 2018 G.Thirugnana Sambandam... Petitioner in W.P.(MD)No.4435 of 2018 G.Thirugnana Sambandam... Petitioner in W.P.(MD)No.4436 of 2018 G.Thirugnana Sambandam... Petitioner in W.P.(MD)No.4437 of 2018 Subburaj ... Petitioner in W.P.(MD)No.4438 of 2018 N.S.Lakshumanan ... Petitioner in W.P.(MD)No.4439 of 2018 Muthukumar ... Petitioner in W.P.(MD)No.4440 of 2018 Vs 1.The Tamil Nadu Government Represented by The Secretary to Government, Tourism, Culture and Religious Endowment Department, Fort St. George, Chennai-9. 2.The Commissioner, Hindu Religious and Charitable Endowments, Nungambakkam High Road, Chennai-34. 3.The Joint Commissioner / Executive Officer, A/m.Dhandayuthapani Swamy Thirukoil, Palani, Dindigul District. ...Respondents in all writ petitions PRAYER in W.P.(MD) Nos.4428 to 4434 of 2018: Writ Petition filed under Article 226 of the Constitution of India for issuance of Writ of Certiorari, calling for records of the order passed by the third respondent in Na.Ka.No.1728/11/C3 dated 21.02.2018 and quash the same as illegal arbitrary and unenforceable. PRAYER in W.P.(MD) Nos.4435 to 4440 of 2018: Writ Petition filed under Article 226 of the Constitution of India for issuance of Writ of Certiorari, calling for records of the order passed by the third respondent in Na.Ka.No.1728/11/C3 dated 22.02.2018 and quash the same as illegal arbitrary and unenforceable. !For Petitioner : Mr.V.K.Vijayaraghavan for M.R.S.Prabhu ^For R1 to R2 : Mr.M.Muthu Additional Government Pleader For R3 : Mr.K.Govindarajan (in all writ petitions) :COMMON ORDER
The issues to be decided in all these batch of writ petitions are similar. The relief sought for are also one and the same. Thus all the writ petitions are taken together for hearing and a common order is passed.
1. The notice issued to the writ petitioners vide proceeding dated 21.02.2018 and 22.02.2018 by the Joint Commissioner / Executive Officer, Arulmigu Dhandayuthapani Swamy Thirukoil, Palani, directing the writ petitioners to vacate the portion of the premises occupied by the petitioners. This apart, the impugned notice states that the arrears of enhanced rent also to be deposited, failing which further legal action would be initiated against the petitioners for eviction.
2. The factual matrix in nutshell to be considered for the purpose of deciding these batch of writ petitions are that, the petitioners claim that they are lessees of the property belongs to Arulmigu Dhandayuthapani Temple, Palani. The writ petitioners are paying the monthly rent and a nominal rent was initially fixed by the temple authorities and subsequently the rent was periodically enhanced. The writ petitioners made a submission that the monthly rent due to the temple is being paid punctually and there is no arrears of rent to be deposited in the temple accounts. The grievances of the writ petitioners are that the third respondent issued a notification dated 28.04.2015 to auction the shop in their possession and subsequently the third respondent caused a paper publication in ?Thinamani?, Tamil news paper in this regard.
3. Challenging the said notification, the writ petitioners along with other tenants filed W.P.(MD)No.7926 of 2015. The batch of writ petitions were allowed by this Court on 14.05.2015. The third respondent filed Writ appeals against the said order in W.A.(MD)No.511 to 594 of 2015. This Court allowed the writ appeal on 06.01.2016 stating that, the writ petitioners and the other tenants who all are the parties to the writ proceedings did not establish a cause of action to challenge the auction notification. During the pendency of the writ appeal, the third respondent initiated action for enhancement of the rent vide proceeding dated 09.07.2015 and the same was referred as damages.
4. The rent fixed had been enhanced on several occasions with effect from 01.07.2015 onwards, without any basis by the third respondent. The writ petitioners claim that the demand of the enhanced rate of monthly rent was not legal and no prior notice was given to the writ petitioners in respect of the fixing of the quantum of rent. Thus, the petitioners submitted representations to the third respondent to reduce the rent. However, the said representations were rejected. The writ petitioners filed an appeal before the second respondent, the Commissioner, Hindu Religious and Charitable Endowments, Chennai, against the proceedings of the third respondent dated 14.09.2015. Since no order was passed in the appeal, the third respondent commenced coercive actions to evict the writ petitioners and to collect the enhanced rent.
5. Once again, the petitioners were constrained to file W.P.(MD)No.21078 of 2015 and the batch of writ petitions were decided on 25.01.2016, directing the second respondent to dispose of the appeals pending before him in accordance with law and on merits within a period of 4 weeks from the date of receipt of the order. The second respondent passed two separate final orders on 28.03.2016 and on 30.03.2016 and they were dismissed. Against the order of dismissal passed by the Commissioner, Hindu Religious and Charitable Endowments, Chennai, the petitioners preferred an appeal before the first respondent Government and the learned senior counsel appearing for the petitioner states that the said appeal is now pending before the Government for consideration. When the appeals are pending before the first respondent, the third respondent once again initiated coercive steps to evict the writ petitioner and also vacate the tenants who all are in occupation of the premises belongs to the temple. Once again, the petitioners along with other occupants filed W.P.(MD)Nos.11582 to 11585 of 2016 and the batch of writ petitions were decided on 31.07.2017, wherein this Court directed the first respondent to consider the appeal filed by the petitioners after affording due opportunity to all the petitioners for hearing individually and pass orders on merits and in accordance with law within a period of six weeks from the date of receipt of a copy of the order. However, the first respondent has not yet passed the final orders and those appeals are pending as of now.
6. Under these circumstances, the third respondent passed an order on 21.02.2018 and on 22.02.2018, which are impugned in the present writ petitions, to hand over the possession of the shop within 15 days from the date of receipt of the order. The learned counsel for the writ petitioners state that though there is a reference in respect of the order of this Court, Madurai Bench, no details are provided and in the absence of details, the impugned order cannot be sustained. Even the case numbers are not provided in the impugned order, so also, in the copy of the order. Thus, the impugned order is vague and not specific. Further, the petitioners state that there was no arrears of rent to be paid to the temple. The petitioners are regularly paying the rent and the enhanced rent is now the subject matter of appeal, pending before the Government. Thus the third respondent cannot claim the enhanced rent under the pretext that, the same is accepted by the petitioners. The petitioners had disputed the enhanced monthly rent and the appeal is now sub-judice before the first respondent and therefore the enhanced rent cannot be taken as monthly rent for the purpose of claiming of arrears in the impugned order.
7. The grievances of the writ petitioners are that the procedures to be adopted for eviction has not been followed. Contrarily, the third respondent has initiated coercive action by issuing an order which is vague. At the outset, the learned counsel for the petitioners state that the petitioners are in occupation of small area and leading their livelihood and therefore in the event of eviction, the entire family will be affected. However, the third respondent is initiating serious steps to evict the petitioners forcibly and unlawfully, therefore an urgent order from this Court is necessary.
8. The learned counsel appearing on behalf of the third respondent contended that these writ petitions are not maintainable in view of the fact that the order under challenge is a notice directing the petitioners to hand over the possession. However, the learned counsel appearing on behalf of the third respondent states that they are providing an opportunity for the writ petitioner to submit their explanations / objections if any and on receipt of the same, the third respondent shall be permitted to take a decision and pass further orders.
9. Further it is contended that the impugned order dated 21.02.2018 is a notice issued under section 34-B of Tamil Nadu Hindu Religious & Charitable Endowments Act, 1959 (hereafter called as 'Act') and therefore it is the obligation on the part of the writ petitioners to submit their explanations / objections and on receipt of the same, the third respondent would be in a position to pass final orders on merits and in accordance with law. This being the legal position, these writ petitions are premature and the same cannot be entertained.
10. Further it is contended that in respect of the fixation of fair rent, no appeal before the Government is maintainable and in fact Section 34- A deals with fixation of lease rent. Under Section 34-A(5) a revision lies before the High Court after depositing the entire arrears of enhanced rent. The learned counsel for the third respondent states that such an appeal to the Government is not maintainable under the provisions of the Act. Thus, the appeal now stated to be pending before the Government cannot be considered for the purpose of the present writ petition and the same became irrelevant.
11. The learned counsel for the third respondent further states that as per Section 34 of the Act ?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?. However in respect of the present writ petition, there was no permission from the commissioner for continuing lease beyond five years and therefore the petitioners are not entitled to claim any benefit from and out of the provisions.
12. This apart, the claim of the writ petitioners is that they are paying the monthly rent periodically is incorrect. The writ petitioners have to pay the arrears of rent and the fact regarding the arrears of rent is suppressed by the writ petitioners. The fair rent fixed by the committee has not been paid by the writ petitioners. Even in earlier occasion, the Hon'ble Division Bench dismissed the writ petitions filed by the petitioners along with other occupants on the ground that they have not established any cause of action. Therefore the appeal preferred before by the Government may not have any relevance and admittedly the writ petitioners are not preferred any revision petition before the Hon'ble High Court under Section 34-A(5).
13. Considering the arguments as advanced by the learned counsel for the writ petitioner as well as the respondents, this Court is of an opinion that the provisions of the Act are to be now looked into. Section 34 of the Act deals with alienation of immovable trust property. Section 34-A provides Fixation of lease rent, which provides that ?The lease rent payable for the lease of immovable property belonging to, or given or endowed for the purpose of, any religious institution, shall be fixed by a Committee consisting of the Joint Commissioner, the Executive Officer or the Trustee or the Chairman of the Board of Trustees, as the case may be, of the religious institution and the District as the case may be, of the religious institution and the District Registrar of the Registration Department in the district concerned taking into account the prevailing market rental value and the guidelines, as may be prescribed and such lease rent shall be re-fixed in the like manner once in three years by the said Committee.?
14. Thus, it is made clear that the committee constituted under the provisions of Section 34-A is empowered to refix the rent in commensuration with the market prevailing rent. Such an enhancement can be done once in three years by the said committee. Therefore, this Court is of an opinion that there is no infirmity in respect of the fixation of fair rent by the committee which was constituted under Section 34-A. Sub Clause(5) of Section 34-A of the Act provides that ?Any person aggrieved by an order passed by the Commissioner under sub-section (4) may, within ninety days from the date of receipt of such order, prefer a revision petition to the High Court.? However, no such revision was preferred by the writ petitioners before the High Court admittedly.
15. Contrarily, the writ petitioners have chosen to prefer an appeal to the Commissioner, Hindu Religious and Charitable Endowments Department under Section 21 of the Act. Section 21 of the Act deals with the powers of Commissioner to call for records and pass orders. The said section states that ?The Commissioner may call for and examine the record of any Joint and Deputy or Assistant Commissioner or of any trustee of a religious institution other than a math or a specific endowment attached to a math in respect of any proceedings under this Act.? Subsequently, the procedures were also contemplated.
16. It is pertinent to note that Sub Clause (3) of Section 34-A of the Act stipulates that ?Any person aggrieved by an order passed under sub- section (2), may, within a period of thirty days from the date of receipt of such order, appeal tot he Commissioner, in such form and in such manner, as may be prescribed.? Thus the procedures made under Section 34-A of the Act is unambiguous. The committee duly constituted is empowered to enhance the lease rent. If the decision of the committee is not acceptable to the lease holders then they are at liberty to invoke sub clause (3) of Section 34-A of the Act by preferring an appeal to the Commissioner. If the Commissioner also has not considered the grounds raised by the petitioners, then they are at liberty to file a revision petition before the Hon'ble High Court under sub clause (5) of Section 34-A of the Act. A three tire remedial system is provided under the Act. Even before the committee the lease holders are at liberty to submit their explanations / objections, secondly, they are at liberty to appeal before the Commissioner, and thirdly, they are at liberty to approach the High Court by way of a revision petition.
17. This being the provisions contemplated under the Act, the learned counsel for the respondents states that the appeal filed by the petitioners under Section 21 is improper and not maintainable. When the appeal preferred under Section 21 is improper, then the question of considering the current appeal pending before the Government will become irrelevant. Thus, the writ petitioners cannot create a separate channel, which is not contemplated in respect of the lease conditions and in respect of the payment of monthly rent.
18. The learned counsel for the writ petitioners state that the notice issued by the third respondent was non-specific and not issued under Section 34-A of the Act. Thus, the writ petitioners were constrained to move appeal before the Commissioner under Section 21 of the Act and therefore to the Government under Section 114 of the Act. In view of the irregular actions initiated by the third respondent, the petitioners had no option, but to approach the Commissioner and the Government for appropriate remedy. When the appeal is now pending before the Government, the third respondent has initiated coercive action against the writ petitioners.
19. When this Court raised a question whether the writ petitioners are lessees or licensees, the answers are not specific both by the learned counsel for the writ petitioner as well as by the learned counsel for the respondent. The respective counsels are unable to specify whether the occupation of the writ petitioner can be designated as a lessee or as a licensee. However, this Court has to examine the nature of the occupation of the writ petitioners.
20. Admittedly, there is no document for lease. In other words, lease deed or any other document in respect of grant of permission has not been submitted before this Court along with the typed set of papers filed in this writ petition. In the absence of any document of lease or grant of permission under the provisions of the Act, this Court has to consider that the writ petitioners can be considered as a licensee. Thus the status of the writ petitioners have to be considered as a licensee under the provisions of the Act.
21. Now, the question arises, what is the right of a licensee under the Act. Chapter-VII of the Act deals with encroachment. Section 78 of the Act provides, encroachments by persons or land or building belonging to charitable or religious institution or endowment and the eviction of encroachers. Section 79 provides, Mode of eviction on failure of removal of the encroachment as directed by the Joint Commissioner. Section 79-A provides, encroachment by group of persons on land belonging to charitable or religious institutions and their eviction. Section 79-B provides Penalty for offences in connection with encroachment. Section 79-C denotes about the recovery of moneys due to religious institution, as arrears of land revenue.
22. It is pertinent to note that Section 80 of the Act enumerates eviction of lessees, licensees or mortgagees with possession in certain cases. Section 80(1) states ?Where the Assistant Commissioner having jurisdiction over the area in which, the religious institution is situated is of the view that the lessee, licensee or mortgagee with possession of any land belonging to the religious institution, wherever it is situated or any sacred tank, well, spring or water-course, appurtenant to the religious institution, whether situated within or outside the precincts thereof or any space within or outside the prakarams, mantapams, Courtyards or corridors of the religious institutions, has taken any action which has marred or is likely to mar the artistic appearance or the religious atmosphere of the religious institution, the Assistant Commissioner shall report the fact together with relevant particulars to the Joint Commissioner or the Deputy Commissioner, as the case may be having jurisdiction over the area which the religious institution is situated.?
23. Sub-clause (2) of Section 80 of the Act provides that ? The Joint Commissioner or the Deputy Commissioner, as the case may be if satisfied that the artistic appearance or the religious atmosphere of the religious institution has been marred or is likely to be marred by the action of the lessee, licensee or mortgagee with possession shall cause to be served on the lessee, licensee or mortgagee concerned a notice calling on him to show cause before a certain date why an order terminating the lease or licence or cancelling the mortgage and requiring the lessee, licensee or mortgagee, as the case may be, to deliver or possession of the property which is the subject of the lease, licence or mortgage to the trustee before a date specified in the notice should not be made. A copy of the notice shall also be sent to the trustee of the religious institution concerned.?
24. Sub Clause (3) of Section 80 of the Act provides that ?The notice referred to in sub-section (2) shall be served in such manner as may be prescribed.? Sub Clause (4) of Section 80 of the Act provides that ?After considering the objections, if any, of the lessee, licensee or mortgagee, received within the period specified in the notice referred to in sub-section (2), the Joint Commissioner or the Deputy Commissioner, as the case may be, may, if he decides that the artistic appearance or the religious atmosphere of the religious institution has been marred or is likely to be marred by the action of the lessee, licensee or mortgagee, by order, terminate the lease or licence or cancel the mortgage and require the lessee, licensee or mortgagee to deliver possession of the property which is the subject of the lease, licence or mortgage to the trustee, before a date specified in the order.?
25. Sub Clause (5) of Section 80 of the Act provides that ?The order of the Joint Commissioner or the Deputy Commissioner, as the case may be, shall be in writing and shall contain the grounds on which he has passed the order.?
26. Under this context this Court has to be examine the present possession in respect of the premises of the temple in which the writ petitioners are in occupation. It is necessary to state that an unfortunate incident recently took place in Arulmigu Meenakshi Sundareswarar Temple at Madurai, wherein the temple Mandapam was completely in occupation of commercial activities. The temple authorities were absolutely negligent in properly maintaining the temple properties. It was informed to this Court that originally certain vendors were permitted to sell flowers and pooja items for the benefit of the devotees, who are entering into the temple.
27. At this juncture, the learned counsel for the petitioner fairly referred that Section 77 of the Act. Section 77 of the Act deals with transfer of lands appurtenant to or adjoining religious institutions prohibited except in special cases. The proviso to Section 77(1)(b) states that ?Provided that nothing contained in this sub-section shall apply to the leasing or licensing of any such land or space for the purpose of providing amenities to pilgrims or of vending flowers or other articles used for worship or of holding for specified periods, fairs or exhibitions during festivals connected with the religious institution.?
28. When the purpose and the nature of the shops to be permitted is well enumerated under the provisions of the Act, this Court has to record that the respondents had unnecessarily allowed all the commercial vendors to enter into the temple premises and thereby created alarming situation, because of that not only the pilgrims are affected, but also the larger architecture values, other values and the sentiments of the temple are also be affected. The object of the Act is to protect such religious values and monuments. When the object and purpose of the Act is not implemented by the authorities concerned, this Court is of an opinion that serious actions are to be initiated against the responsible officials, who have indulged in such activities and committing irregularities by permitting the commercial vendors inside the temple premises.
29. When the Act provides comprehensive provisions to avoid all such irregularities and illegalities, this Court take note of the fact that in many temples in the State, such activities are permitted by the officials concerned illegally. It is the duty of the Commissioner as well as the State to see that all such activities are completely stopped and the temple must be free for the pilgrims and the devotes who are entering. Such ancient temples are of great values of our culture and heritage. It is the duty of the State to protect such monuments and religious places.
30. Consequently, the Government agencies and authorities are also duty bound to maintain the temples in the manner prescribed under the provisions of the Act. Allowing the commercial activities inside the temple will defeat the very religious sentiments of the people itself. The Hon'ble Supreme Court of India defined the term religion in many judgments. Though the term ?Religion? has not been defined in the Indian Constitution. The New Oxford Dictionary of English stated that ?The belief in and worship of a superhuman controlling power, especially, a personal God or Gods?. In Black's Law Dictionary it is stated that ?Man's relation to Divinity, to reverence, worship, obedience and submission to mandates and precepts or supernatural or superior beings in its broadest sense, includes all forms of belief in the existence of superior beings, exercising power over human beings by volition, imposing rules of conduct, with future rewards and punishments?.
31. In the case of The Commissioner, Hindu Religious Endowment, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, AIR 1954 SC 282 it is observed that ?Religion is a matter of faith with individuals or communities and it is not necessarily Theistic. There are well known religions in India like Buddhism and Jainism which do not believe in God or in any Intelligent First Cause. A religion undoubtedly has its basis in a system of beliefs or doctrines which are regarded by those who profess that religion as conducive to their spiritual well-being but it will not be correct to say that religion is nothing else but a doctrine or belief. A religion may not only lay down a code of ethical rules for its followers to accept. It might prescribed rituals and observances, ceremonies and modes of worship which are regarded as integral parts of religion and these forms and observances might extend even to matters of food and dress?.
31(a). In the case of M.P.Gopalakrishnan Nair v. State of Kerala, 2005(1) SCC 45, the Hon'ble Supreme Court observed that the definition of the term ?Hindu? is comprehensive expression (as the religion itself) giving the widest freedom to people of all hues, opinions, philosophies and beliefs to come within its fold and is restricted to those who believe in temple worship. In any case, the word ?Hindu? is not defined. A Hindu admittedly may or may not be a person professing Hindu religion or a believer in temple worship. A Hindu has a right to choose his own method of worship. He may or may not visit a temple. He may have a political compulsion not to openly proclaim that he believes in temple worship. Idol worships, rituals and ceremonials may not be practised by a person although he may profess Hindu religion. The Legislature has not chosen to qualify the word ?Hindu? in any manner. The meaning of the word is plain and who is a Hindu is well known. The Legislature was well aware that ?Hindu? is a comprehensive expression (as the religion itself is) giving the widest freedom to people of all hues, opinions, philosophies and beliefs to come within its fold.
(b). Acceptance of the Vedas with reverence ; recognition of the fact that the means or ways to salvation are diverse ; and realisation of the truth that the number of gods to be worshipped is large, that indeed is the distinguishing feature of Hindu religion. This definition brings out succinctly the broad distinctive features of Hindu religion. Therefore, it would be inappropriate to apply the traditional tests in determining the extent of the jurisdiction of Hindu religion. It can be safely described as a way of life based on certain basic concepts referred to above. It is the release and freedom from the unceasing cycle of births and rebirths ; Moksha or Nirvana, which is the ultimate aim of Hindu religion and philosophy, represents the state of absolute absorption and assimilation of the individual soul with the infinite. The Constitution-makers were fully conscious of this broad and comprehensive character of Hindu religion; and so, while guaranteeing the fundamental right to freedom or religion, Explanation II to Article 25 has made it clear that in sub-clause (b) of clause (2), the reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jaina or Buddhist religion, and the reference to Hindu religious institutions shall be construed accordingly.
32. This being the nature of the religious institutions, and the sentiments of the people of this great nation, it is the duty of the competent authorities to see that these temples are maintained in its real spirit and in accordance with the provisions of the Act. In this context this Court has to respect the concept of faith attached with the religious institutions and the religious places. This being the sentiments of the people of this great nation, it is the duty of the competent authorities to see that those institutions are permitted to continue with the values attached and any dilution in this regard ought to be viewed seriously by the State authorities.
33. It is brought to the notice of this Court that the private temples which all are maintained by private administration are flourishing and the temples maintained by the department is not up to the expectations of the devotees and pilgrims. Such being the lacunas and attitudes of the public officials, this Court is of an opinion that the State has to take urgent steps to rectify all these irregularities and illegalities and to maintain such religious institutions up to the expectations of the people who are having faith on such religious institutions and who all are large in number in our country.
34. Further, this Court is aware that the actions of the Department itself is under now challenge by some of the religious heads on the ground that the State is not maintaining the religious institutions up to the expectations of the devotees and pilgrims. Such is the frustration, prevailing in the minds of the devotees and the people in general. The State has to act on war foot basis to rectify all these irregularities and illegalities.
35. Coming to the merits of these writ petitions, undoubtedly, the writ petitioners cannot be designated as lessees. The writ petitioners claim that they are in occupation of small portion of the temple premises for long years. However, no documents to establish a lease or permission has been produced before this Court. Even assuming that the writ petitioners are licensees, then the authorities competent are empowered to invoke Section 80 of the Act. Section 80 provides a comprehensive procedure for the purpose of effecting mortgage that possession in certain cases.
36. It is pertinent to note that the impugned notice issued in proceeding dated 21.02.2018 and 22.02.2018 states that the interest and welfare of the devotees are taken into consideration in respect of the commercial premises now in occupation by the petitioners as well as by other occupants. Thus, an expression is made in the impugned order that the occupants in respect of the petitioner and some other persons in the temple premises are causing certain inconvenience to the devotees. When such an expression is made in the impugned order, this Court has to draw an interference that such commercial premises are to be cleared and a free access to the devotees are to be provided undoubtedly in all respects by the respondents.
37. Arulmigu Dhandayuthapani Temple, Palani, is a familiar temple wherein large number of devotees are visiting day in and day out. Devotees from other States and abroad are also visiting the temple. Thus it is the duty mandatory on the part of the respondents to ensure adequate facilities and free access to all the devotees to enter into the temple premises. Though, there are guidelines and procedures to be followed in respect of the temple premises, this Court is of an opinion that all such procedures and guidelines are flouted by the authorities on extraneous considerations. Thus, this Court is of an opinion that all such commercial premises situated inside the temple premises are to be vacated.
38. Earlier, this Court referred an unfortunate incident occurred in Arulmigu Sri Meenakshi Sundareswarar Temple, Madurai, wherein a fire accident took place. The damage was large in nature and the heritage structure is damaged. The incident is to be taken as an example in respect of the ill- effect of developing the commercial premises inside the temple and the State authorities are to clear all such commercial premises situated inside the temple premises throughout the State.
39. It is brought to the notice of this Court that the commercial premises situated inside the temple are causing inconvenience to the devotees and the sanctity of the temple is also affected to the extent. When the very sanctity of the temple is in peril, then it is the duty of the authorities to interfere without any further delay.
39 (a). Allowing the commercial complex inside the temple premises and within the temple premises are certainly opposed to the religious principles. The concept of Hinduism is to respect the faith of the large sector of people of this great nation. The faith alone is the source to the religion. Thus commercialisation of temple is certainly opposed to the principles of religion. Commercialisation is not known to the religion. After all, people are visiting temples, churches and mosques, for their peace and for happy living. When the religious institutions are filled up with commercial organizations, this Court is genuinely doubtful, how a person can get peace inside the temple. People are so much attracted with commercial displays and show-cases. Thus, the authorities competent who all are responsible and accountable for maintaining all these Hindu temples are certainly failing in their duties and they are violating the very spirit of the provisions of the Hindu Religious and Charitable Endowments Act, 1959.
(b). This Court would further cite the holy words from Bible. The gospel according to John, Jesus cleanses the temple ?The pass over of the Jewish was near and Jesus went up to Jerusalem. In the temple courts he found people selling cattle, sheep and doves and others sitting at tables exchanging money. So he made a whip out of cords, and drove all from the temple courts, both sheep and cattle; he scattered the coins of the money changers and overturned their tables. To those who sold doves he said, ?Get these out of here! Stop making my Father's house a market place !?
(c) In the gospel according to Mathew also it is stated as follows:
Then Jesus entered the temple courts and drove out all who were buying and selling in the temple. He overturned the tables of the money changers and the benches of those selling doves. ?Xt is written,? he said to them, ?My house will be called a house of prayer, but you are making it a den of robbers?
(d) Thus, all the religions all over the world preaches almost the principles of maintenance of the place of worship in a proper manner. It is the main phenomena amongst the religion that the place of worship is to be maintained cleanly and the devotees entering into the temple must get an impression that they are entering in a place of worship. There must be some good atmosphere to get peace and tranquility. This being the spirit of religion, there is no reason to pollute the temples at the insistence of officials, who are supposed to maintain the temples in good atmosphere. Thus this Court is of an undoubted opinion that there is lack of involvement and dedication on the part of the officials, who all are maintaining the temple, and they are not supposed to perform this job for the sake of performance.
Certainly, specific qualifications are prescribed for the post of Executive Officers in the Hindu Religious and Charitable Endowments department. The special qualifications are prescribed only with an idea to maintain the temples in its real spirit. Therefore, the authorities competent now vested with the power of maintenance of this temple are certainly responsible and accountable.
(e) The legislation was enacted for the purpose of controlling and maintaining the Hindu temples across the State. Thus the duty cast upon the State to ensure that the devotees get all required facilities and an atmosphere as contemplated under the provisions of the Act and Rules. However, it is painful to note that the officials who are responsible to maintain such temple are frequently colluding with these commercial establishments and allowing them to continue their commercial ventures in temple premises without even granting any legal permission, lease or license in accordance to law. Inside the temple premises, the authorities cannot grant any lease for commercial ventures or shops. When that is the intention of the Act, this Court is of an opinion that commercial complexes / shops established within the premises of the temple are very much in violation of the very spirit of the Act and the State and its officials are certainly responsible and liable for prosecution in this regard.
40. Certain, technical grounds raised by the writ petitioners that the provisions under Section 34 of the Act, is not properly maintained by the authorities concerned in view of the fact that the writ petitioners have not established their lease or permission in the present writ petitions. This apart, the order impugned also states that they are directed to vacate, in the event of non-payment of the arrears of enhanced rent. At the outset, a notice was issued by the respondents with an idea to evict the commercial premises in view of the recent developments took place in Arulmigu Sri Meenakshi Sundareswarar Temple, Madurai.
41. Now, the State authorities have suddenly awakened in respect of the commercial premises established inside various ancient temples across the State. Under these circumstances, auction in this regard to vacate all the said commercial premises situated inside the temples are certainly imminent and urgent. Undoubtedly, the petitioners are in occupation of such premises for a considerable length of time. However, the interest of the temple is of paramount importance. The larger interest of the people in general alone should prevail over the private interest. Private interest are secondary in nature. Thus, it is paramount duty of the constitutional Courts to ensure that philosophy and ethos of the constitution are implemented in its letter and spirit. The constitutional perspectives and the mandates are to be scrupulously implemented by all concerned. When Article 25 ensures the religious freedom and the State has enacted law in respect of the Hindu Religious and Charitable Endowments, it is the duty of the executives to implement the laws without any violation. Thus the larger interest in respect of the religious institutions are to be protected and the private commercial interest of the individual cannot be sustained.
42. Though, the respondents have not clearly mentioned in respect of the provisions in favour of them for the purpose of issuing the impugned order, this Court is of an opinion that the intention and expression made in the impugned order shows that the occupation of the writ petitioners in the temple premises are causing inconvenience to the devotees. Therefore they have issued a notice by stating that they should pay the enhanced rent arrears and failing which they will be evicted from the premises.
43. This Court is of an opinion that even as per Section 80 of the Act, the authorities can evict the lessee, licensee and mortgagees with possession in certain cases. The circumstances are very much stated in Section 80 of the Act. As per the ingredients stipulated in Section 80, the ?religious atmosphere and the architecture appearance? are also to be protected. When the ?religious atmosphere? is in peril then those commercial vendors cannot be permitted in temple premises.
44. The religious atmosphere is that a peaceful and conducive atmosphere has to be provided for the purpose of devotees who are entering into the temple premises. Over all, atmosphere in the religious institutions are also to be protected and the same is stipulated in the Act. Thus, a commercial shops and vendors inside the temple premises cannot create a religious atmosphere. The commercial premises are permitted inorder to sell varieties of items which is not connected with the poojas and offerings to be performed inside the temples. However, all commercial items are being sold by this vendors who all are in occupation of the temple premises.
45. It is the duty mandatory on the part of the executives to protect the ?Religious atmosphere? in the temple as contemplated under the Act. In the event of permitting the commercial vendors to sell the commercial products inside the temple premises, certainly the religious atmosphere cannot be maintained. Enough commercial establishments are ventured outside the temple premises in almost all the places in our country. Thus, further allowing the commercial establishments inside the temple premises are certainly unnecessary and unwarranted. The attitude of the competent authority in this regard in granting permission for commercial vendors are to be certainly deprecated. This Court has forced to come to a conclusion that the competent authorities of the department of Hindu Religious and Charitable Endowments are not performing their duties and responsibilities as required under the Act and Rules and to the expectations of the pilgrims and devotees who all are having high sentiments, faith and attachments with large number of ancient and other temples all over the State.
46. This Court with pain has to record the factual situations prevailing in may temples across the State. This Court cannot shut its eyes in respect of such evil social happenings prevailing within the premises of the religious institutions. This Court expects atleast hereafter the respondents would show some sensitiveness in respect of these happenings and initiate effective and urgent measures to neutralise such acts and situations, for the purpose of improving the religious atmosphere, both inside and within the premises of the temples.
47. The Act requires that a notice to be served to these commercial occupants citing the reasons. The notice shall contains the reasons for eviction of these lessees, licensees and mortgagees. Now it is made clear that the temple administration is to be maintained in all respects and the temple cannot be utilized for commercial ventures. The sacred tank, well, spring or water-course, appurtenant to the religious institution, whether situated within or outside the precincts thereof or any space within or outside the prakarams, mantapams, Courtyards or corridors of the religious institutions are to be taken care of. There cannot be any damage in respect of such areas. Permitting such vendors to occupy such places cited supra, certainly, the religious atmosphere will be paralysed and furthermore there is a possibility of damage of the temple building, more specifically the heritage values of such structures. Thus the spirit of the Act is to be implemented by all concerned without any compromise.
48. In respect of the present writ petitioners they had preferred an appeal under Section 21 of the Act before the Commissioner and the Commissioner rejected the appeals. Thus, they preferred an appeal under Section 114 of the Act before the Government in respect of the enhancement of rent fixed by the respondents. However, these factors are one aspect of the matter and this Court is of an opinion that preferring of an appeal before the Commissioner under section 21 may not be an appropriate relief in respect of the facts and circumstances of the present case.
49. The entire issue in these writ petitions are based upon fixation of fair rent. The grievances of the writ petitioners are that the enhancement of rent was not in proportionate with the prevailing market rental value. When the subject matter is in relation to the fixation of rent certainly Section 34-A alone to be applied. Though, the respondents have not quoted the provisions, the same will not vitiate the entire proceedings issued by the competent authorities under the Act. When the enhancement of rent is stated by the respondents, then it is to be construed that the provisions applicable in relation to the fixation of rent alone to be applied. Thus, the issues are to be dealt only under Section 34-A of the Act. Section 34 is unambiguous that the committee is constituted for the purpose of fixation of fair rent. If the persons in occupation are aggrieved then they are at liberty to approach the Commissioner under Sub clause (3) of Section 34-A of the Act. Thereafter the remedy available is by filing a revision petition before the High Court.
50. This being the provisions contemplated under the Act, the question of considering the case of the writ petitioner under Section 21 by the Commissioner would not arise at all. To substantiate the above contention, this Court is of an opinion that when the statute specifically covers a particular subject by way of specific provisions, that provision alone to be applied and other general provisions contemplated under the Act cannot be applied at all. When the Act stipulates specific section for the purpose of fixation of rent, then the general provisions provided under Section 21 for the Commissioner to call records and pass orders cannot be invoked. Such general provisions are provided to deal with the matters, which all are not covered under the Act specifically. Thus, Section 21 shall be invoked by the Commissioner in the absence of any specific provision under the Act to deal with particular subject or otherwise.
51. Section 114 as contended by the learned counsel for the writ petitioner also cannot have any application in respect of the present facts and circumstances. Under Section 114, power of Government to call for records and pass order is applicable to the powers granted to the Commissioner under Section 21 of the Act. Section 21 and 114 runs together. When the Commissioner called for records and pass order under Section 21, then an appeal to be preferred under Section 114 of the Act.
52. As stated earlier, if there is a specific provision under the Act to deal with the fixation of rent then an appeal under Section 21 or under Section 114 would not arise at all. In the event of entertaining Section 21 or Section 114, the very purpose of Section 34-A would be defeated. When the legislations have specifically intended to provide a Section for the purpose of dealing with a particular subject, then there cannot be any application of other general provisions of the Act.
53. The legal principles in this regard is that whenever there is a special provision, the same alone to be applied and the general provisions cannot be applied at all and the general provisions can be invoked only in the absence of any specific provisions. In the present case, the fixation of rent is specifically covered under Section 34-A of the Act and that alone is to be applied in the facts and circumstances of the present case.
54. In all other respects this Court is of an opinion that the authorities competent are duty bound to maintain the entire temple premises in accordance with the standard of norms contemplated under the Act and Rules and up to the expectations of the devotees and pilgrims who are having faith, sentiments and attachments towards the temples. This being the overall object of the Act and the Rules, it is the duty of the State to ensure non- polluted, clean and peaceful environment for the devotees to worship the idols in the temple.
55. Under these circumstances, this Court is of an opinion that the right of the writ petitioners are certainly limited. They have not established that they are authorised lessees or permissive occupants. No order of permission or a deed of lease is submitted before this Court. Even in case of licensee, the right is certainly limited. Thus, the writ petitioners have not established their legal right, so as to consider their case on merits and for grant of relief. They are certainly the licensees and they cannot be considered as lessees and even for that licensees there is no document available with the writ petitioners. In the absence of such authorisation or documents, this Court is of an opinion that they have no legal right to continue in the temple premises.
56. This being the factum of the case this Court is of an opinion that, the authorities cannot allow any such illegal or commercial occupations inside the temple premises hereafter. As the crowd increases in ancient temples, developing commercial ventures inside the temple premises not only cause nuisance to the devotees but creates dangerous atmosphere, wherein there is a possibility of untoward incidents. The temple premises must be free for the usage of the pilgrims and devotees. Development of commercial vendors, will create a dangerous situation and any such situations arises, the authorities competent are to be held liable and responsible. It is needless to state that if such commercial ventures are developed hereafter at the permission of the authorities, then the authorities competent are to be held accountable and responsible for all such illegal activities and they should be prosecuted not only under the provisions of the Act and also under the discipline and appeal Rules.
57. It is brought to the notice of this Court that nearly about 36,000 temples are now under the control of the Hindu Religious and Charitable Endowments Department. Thus urgent steps are to be taken in respect of the maintenance of all these temples as per the observations made in this order and in accordance with the provisions of the Hindu Religious and Charitable Endowments Act and Rules there on. An uniform procedure in order to settle all these issues are imminent and to be undertaken by the competent authorities. The second respondent Commissioner has to issue a consolidated instruction / circular to all the competent authorities who all are incharge of the temples to initiate appropriate action for eradicating all the irregularities and illegalities. The consolidated instructions to be issued, shall contain that, the violation of any such instructions will be viewed seriously and appropriate prosecution and action will be initiated against the official concerned. In this view of the matter, the writ petitioner have not established any legal right either for their continuance or in respect of their occupation in the temple premises belong to Arulmigu Dhandayuthapani Temple, Palani. Thus, this Court do not find any infirmity in respect of the actions initiated by the third respondent for collection of arrears of enhanced rent and for eviction.
58. Accordingly, the following directions are issued.
(i) The respondents 1 and 2 are directed to issue consolidated instructions / circular to all the competent authorities, to initiate appropriate actions, in respect of the commercial establishments situated inside the temple premises, which all are now under the control of the Hindu Religious and Charitable Endowments Department.
(ii) The consolidated instructions / circular should be issued by the respondents 1 and 2, within a period of eight weeks from the date of receipt of a copy of this order.
(iii) The consolidated instructions / circular should contain the procedures to be followed for the purpose of evicting all the commercial establishments, situated inside the temple premises
(iv) The consolidated instructions / circular should contain the clause that violation of the instructions and procedures contemplated in the consolidated instructions / circular to be issued, will be viewed seriously and suitable disciplinary actions will be initiated against the officials concerned.
(v) Accordingly, all the writ petitions are devoid of merits and stand dismissed. However, there shall be no orders as to costs.
To
1.The Tamil Nadu Government Represented by The Secretary to Government, Tourism, Culture and Religious Endowment Department, Fort St. George, Chennai-9.
2.The Commissioner, Hindu Religious and Charitable Endowments, Nungambakkam High Road, Chennai-34.
.