Madras High Court
M.Lingaraj vs The Commissioner on 12 November, 2021
Author: M.Sundar
Bench: M.Sundar
WP(MD) No.20323 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 12.11.2021
CORAM
THE HON'BLE MR. JUSTICE M.SUNDAR
W.P(MD) No.20323 of 2021
and W.M.P.(MD)No.16975 of 2021
M.Lingaraj ... Petitioner
Vs.
1.The Commissioner,
Hindu Religious and Charitable
Endowment Department,
119, Uthamar Gandhi Road,
Thousand Lights West, Nungambakkam,
Chennai – 34.
2.The District Collector,
Tuticorin District,
Tutocorin.
3.The Assistant Commissioner,
Hindu Religious and Charitable
Endowment Department,
Tuticorin,
Tuticorin District.
4.The Tahsildar,
O/o.The Tahsildar,
Vilathikulam,
Tuticorin District.
1/20
https://www.mhc.tn.gov.in/judis
WP(MD) No.20323 of 2021
5.The Executive Officer,
Arulmigu Kulanthai Vinayagar Temple,
Kulathur,
Vilathikulam Taluk,
Tuticorin District. ... Respondents
PRAYER: Petition filed under Article 226 of the Constitution of India, for
the issuance of a Writ of Certiorarified Mandamus, call for the records
pertaining to the impugned order in Moo.Mu.No.58586/2019/V3 dated
19.02.2020 on the file of the respondent No.1 and consequential impugned
tender notification dated 26.10.2021 on the file of the respondent No.5 and
quash the same as illegal and consequently direct the respondents to restore
the land in Survey No.221 in an extent of 49Acres 60 as agricultural land
situated at Kulathur Village, Villathikulam Taluk, Tuticorin District within a
time stipulated by this Court.
For Petitioner : Mr.T.Thiurmurugan
For Respondents : Mr.M.Lingadurai,
Special Govt. Pleader for R1 to R4
Ms.K.Mahalakshmi for
Mr.S.Muthumanikandan for R5
ORDER
Captioned writ petition has been filed assailing proceedings dated 19.02.2020 bearing reference Moo.Mu.No.58586/2019/V3 made by the first 2/20 https://www.mhc.tn.gov.in/judis WP(MD) No.20323 of 2021 respondent and a auction notice dated 26.10.2021 published by the fifth respondent. To be noted, this auction notice has been referred to as tender notification in the prayer. These two i.e., 'proceedings of the first respondent dated 19.02.2020 and auction notice dated 26.10.2021 issued by the fifth respondent' shall be collectively referred to as 'impugned orders' for the sake of convenience and clarity. Likewise for the sake of convenience and clarity '19.02.2020 proceedings of the first respondent' shall be referred to as 'first impugned order' and '26.10.2021 auction notice of the fifth respondent' shall be referred to as 'impugned auction notice'.
2. Mr.T.Thirumurugan, learned counsel for sole writ petitioner submits that subject matter of captioned writ petition is 'land admeasuring 49.60 Acres of thereabouts situate in Survey No.221 in Kulathur Village, Vilathikulam Taluk, Tuticorin District' (hereinafter 'said land' for the sake of convenience and clarity) which belongs to 'Arulmigu Kulanthi Vinayagar Temple at Kulathur Village, Vilathikulam Taluk, Tuticorin District' (hereinafter 'said temple' for the sake of convenience and clarity). 3/20 https://www.mhc.tn.gov.in/judis WP(MD) No.20323 of 2021
3. Learned counsel for writ petitioner submits that said land was originally given on lease to various persons by the said temple for doing agricultural work for three years period and the lease period had elapsed. To be noted, this is expressly set out in paragraph No.4 of the writ affidavit, wherein it has been mentioned that the auction was last conducted on 28.06.2016 and lease holders were permitted to do agricultural work in said land for a period of three years which elapsed. Obviously it elapsed in June of 2019. Thereafter, the first respondent has decided to conduct public auction and lease out the said land as salt pan (Uppalam) now.
4. Learned counsel for writ petitioner, notwithstanding very many averments in the writ affidavit and several grounds raised in the writ affidavit made pointed submissions, a summation of which is as follows:
a) the conversion of said land from agricultural purposes to Uppalam is contrary to 'Rules 6(1)(a) and 6(1)(b) of Tamil Nadu Change of Land Use (From Agriculture to Non-
agriculture Purposes in Non-planning Areas) Rules, 2017' (hereinafter 'said Rules' for the sake of convenience and clarity).
4/20 https://www.mhc.tn.gov.in/judis WP(MD) No.20323 of 2021
b) the third respondent (Assistant Commissioner of 'Hindu Religious and Charitable Endowment Department, Government of Tamil Nadu' i.e, 'TN HR & CE Department' for the sake of brevity) even as of 20.02.2019 had replied (based on 11.02.2019 report of Thakkar of said temple) that Uppalam in the said land is not contemplated. It was also pointed out that this is based on District Collector's advise also.
5. Mr.M.Lingadurai, learned Special Government Pleader accepted notice on behalf of respondents 1 to 4. Ms.K.Mahalakshmi, learned counsel who was there before this Court on behalf of Mr.S.Muthumanikandan (private counsel) accepted notice on behalf of fifth respondent (Executive Officer of said temple).
6. Owing to the narrow compass on which the matter turns, captioned main writ petition was taken up with the consent of all the aforementioned counsel.
5/20 https://www.mhc.tn.gov.in/judis WP(MD) No.20323 of 2021
7. In response to the submissions made by the learned counsel for writ petitioner, learned Special Government Pleader made reply submissions (on instructions), a summation of which is as follows:
a) the said Rule applies only for 'development' and exploitation of land under 'The Tamil Nadu Town and Country Planning Act, 1971' (Tamil Nadu Act 35 of 1972) and therefore Rules cited are not attracted qua said land, which is merely being leased out and not developed.
b) in any event, a no objection certificate (jilapy;yh rhd;W) has been obtained from the Joint Director of Agricultural Department, Tuticorin on 25.07.2019 vide proceedings jp/3572/09, which is to the effect that said land is not fit for agricultural purposes and that this jilapy;yh rhd;W has been given after making soil test and a thorough inspection. Learned counsel also pointed out that said land is surrounded by salt pans and there has also been lack of irrigation which has led to this decision.
6/20
https://www.mhc.tn.gov.in/judis WP(MD) No.20323 of 2021
8. Learned private counsel, who accepted notice on behalf of the fifth respondent (Executive Officer of said temple) submitted that income of said temple has to be augmented and a vast extent of land in the nature of said land admeasuring 49.60 Acres cannot be left to idle and the Executive Officer has a statutory duty to put it to auction, Commissioner/said temple can decide the use it is put to and that is the reason why the auction notice has been issued.
9. In response to the aforementioned submissions, learned counsel for writ petitioner by way of rejoinder reiterated his submissions made in the opening spell and emphasised that there is infraction of Rules 6(1)(a) and 6(1)(b) of said Rules.
10. This Court has carefully considered the rival submissions. This Court is convinced that this is not a fit case for interfering in writ jurisdiction. The discussion and dispositive reasoning i.e, reasons are as follows:
a) under the 'Tamil Nadu Hindu Religious and 7/20 https://www.mhc.tn.gov.in/judis WP(MD) No.20323 of 2021 Charitable Endowments Act, 1959 (Tamil Nadu Act 22 of 1959)' (hereinafter 'TN HR&CE Act' for the sake of convenience and clarity) the term/expression 'person having interest' is defined in sub-section 15 of Section 6. A perusal of the writ affidavit and submissions made by the learned counsel for writ petitioner makes it clear that writ petitioner does not qualify as a 'person having interest' qua said temple much less 'person having interest' within the meaning of Section 6(15) of TN HR&CE Act. This by itself draws the curtains on the writ petitioner's campaign against the first respondent and the impugned auction notice, but this Court, owing to the submissions made considers it appropriate to examine the other submissions also as this Court is parens patriae qua temple properties.
b) Writ petitioner is virtually canvassing a public interest litigation and this cannot be done by way of a simple writ petition before a Single Bench in the garb of assailing first impugned order and the auction notice. 8/20
https://www.mhc.tn.gov.in/judis WP(MD) No.20323 of 2021
c) the Rules that have been referred to viz., 6(1)(a) and 6(1)(b) of said Rules form part of subordinate legislation being Rules made by the Government in exercise of rule making powers under Section 122(1) and Section 47-A of 'the Tamil Nadu Town and Country Planning Act, 1971 (Tamil Nadu Act 35 of 1972)' ('Town and Country Planning Act' for the sake of brevity). Rule 6 is captioned 'Guidelines to be followed by the Collector for giving his prior concurrence' and a perusal of Rule 6 makes it clear that it pertains to land in which development is proposed. A perusal of the subordinate legislation and the parent legislation make it clear that the case on hand is certainly not a development and it is not a commercial venture either. To be noted, this may not qualify as material change in use of land and on a demurer there is nothing to demonstrate this being in loggerheads qua a plan. It is a case of a temple under TN HR&CE Act ensuring that a vast extent of land is not left idle and the lease hold rights are auctioned so that it 9/20 https://www.mhc.tn.gov.in/judis WP(MD) No.20323 of 2021 generates income. To be noted, said land has already remained idle for 2 Faslis (2 years). In this regard, Rules 6(1)(a) and 6(1)(b) of the said Rules read as follows:
'6. Guidelines to be followed by the Collector for giving his prior concurrence.-
(1) The Collector shall satisfy himself that the land in which development is proposed does not fall in any of the following categories, namely:-
(a) Public water body like channel, canal, tank, lake, river, etc.
(b) Government Proomboke land, temple lands, wakf properties and other lands belonging to religious/charitable institutions.
The term 'development' is defined in sub-section (13) of section 2 of Town and Country Planing Act and the same reads as follows:
'(13) “development” means the carrying out of all or any of the works contemplated in a regional plan, master plan, [detailed development plan, new town development plan or a land pooling area developments scheme] prepared under this Act, and shall include the carrying out of building, engineering, mining or other operations in, or over or under land, or the making of any 10/20 https://www.mhc.tn.gov.in/judis WP(MD) No.20323 of 2021 material change in the use of any building or land:
Provided that for the purposes of this Act, the following operations or uses of land shall not be deemed to involve development of the land, that is to say,-
(a) the carrying out of any temporary works for the maintenance, improvement or other alteration of any building, being works which do not materially affect the external appearance of the building;
(b) the carrying out by a local authority of any temporary works required for the maintenance or improvement of a road, or works carried out on land within the boundaries of the road;
(c) the carrying out by a local authority or statutory undertaker of any temporary works for the purpose of inspecting, repairing or renewing any sewers, mains, pipes, cables or other apparatus, including the breaking open of any street or other land for that purpose;
(d) the use of any building or other land within the curtilage of a dwelling-house for any purpose incidental to the enjoyment of the dwelling-house as such; and
(e) the use of any land for the purpose of agriculture, gardening or forest (including afforestation) and the use for any purpose specified in this clause of this proviso of any building occupied together with the land so used;'
d) impugned auction notice has been issued on 11/20 https://www.mhc.tn.gov.in/judis WP(MD) No.20323 of 2021 26.10.2021 (fixing auction on 12.11.2021 at 11.00 a.m.) but the case file placed before this Court shows that the writ petition has been filed only on 10.11.2021 barely one working day before the auction. There is nothing to demonstrate as to why the writ petitioner did not approach this Court earlier. This is clearly a eleventh hour (nay eleventh hour fifty ninth minute if one may say so) exercise and in the absence of any glaring illegality or adverse impact qua temple as interfering now would only be detrimental to said temple. It would not serve the cause of augmentation of income of said temple.
e) As a further sequitur to the above, as already alluded supra, the writ petitioner is not a person having interest and therefore, there is nothing that warrants interference in such a eleventh hour venture.
f) this takes us to the no objection certificate issued by the Joint Director of the Agricultural Department, Tuticorin. 12/20 https://www.mhc.tn.gov.in/judis WP(MD) No.20323 of 2021 13/20 https://www.mhc.tn.gov.in/judis WP(MD) No.20323 of 2021 14/20 https://www.mhc.tn.gov.in/judis WP(MD) No.20323 of 2021 15/20 https://www.mhc.tn.gov.in/judis WP(MD) No.20323 of 2021 16/20 https://www.mhc.tn.gov.in/judis WP(MD) No.20323 of 2021 The above demonstrates a scientific drill has been done for issue of the aforementioned certificate and it is not a arbitrary or casual exercise.
g) As already alluded to supra, interdicting the auction 17/20 https://www.mhc.tn.gov.in/judis WP(MD) No.20323 of 2021 more so at this stage will only be detrimental to said temple more so when it has a vast extent of land admeasuring 49.60 acres.
11. Owing to all that have been set out supra, captioned writ petition fails and therefore, the same is dismissed. Consequently, captioned WMP is also dismissed. This Court refrains itself from imposing costs.
vsm 12.11.2021
Index : Yes/No
Internet : Yes /No
Note :
In view of the present lock down owing to COVID-19 pandemic, a web copy of the order may be utilized for official purposes, but, ensuring that the copy of the order that is presented is the correct copy, shall be the responsibility of the advocate / litigant concerned.
M.SUNDAR, J.
vsm To 18/20 https://www.mhc.tn.gov.in/judis WP(MD) No.20323 of 2021
1.The Commissioner, Hindu Religious and Charitable Endowment Department, 119, Uthamar Gandhi Road, Thousand Lights West, Nungambakkam, Chennai – 34.
2.The District Collector, Tuticorin District, Tutocorin.
3.The Assistant Commissioner, Hindu Religious and Charitable Endowment Department, Tuticorin, Tuticorin District.
4.The Tahsildar, O/o.The Tahsildar, Vilathikulam, Tuticorin District.
5.The Executive Officer, Arulmigu Kulanthai Vinayagar Temple, Kulathur, Vilathikulam Taluk, Tuticorin District.
W.P(MD) No.20323 of 2021
and W.M.P.(MD)No.16975 of 2021 19/20 https://www.mhc.tn.gov.in/judis WP(MD) No.20323 of 2021 12.11.2021 20/20 https://www.mhc.tn.gov.in/judis