T. A. B. Jaleel (deceased) v. The Deputy Commissioner/, Executive Officer, Arulmighu Kapaleeswarar Temple
2011-12-02
R.SUDHAKAR
body2011
DigiLaw.ai
Judgment :- 1. All the Civil Revision Petitions are filed against the orders dated 26.4.2011 passed by the second respondent in R.C.Nos.1154, 11542, 11544, 11545, 11546, 11553 and 11554 of 2009 respectively. 2. The relief sought for in the seven Civil Revision Petitions is one and the same. The respondents are also same. Hence, by consent the seven Civil Revision Petitions are taken up together and disposed of by this common order. 3. The lessees of the first respondent temple are before this Court. In proceedings Na.Ka.No.280/2008-34/A-4 dated 10.10.2008, the then Deputy Commissioner/Executive Officer of the first respondent temple issued a calculation memo determining the lease amount based on certain data. The said proceedings was in the nature of demand. Before passing that order no opportunity was given to the lessees to make their objection to the determination. It is also the grievance of the revision petitioners/lessees that the procedure prescribed under Section 34A of the Tamil Nadu Hindu Hindu Religious and Charitable Endowment Act, 1959 was not followed. Aggrieved by the said unilateral determination of the lease rent, appeals were preferred to the Commissioner, Hindu Religious and Charitable Endowment Department, viz., the second respondent, added as per order of this Court dated 29.11.2011. 4. The appeals were heard on merits and the appellants/lessees were represented by a counsel. 18 appeals came to be disposed of on 24.6.2011 by the then Commissioner. Challenging the same, present revision petitions have been filed in terms of Section 34A (5) of the Tamil Nadu Hindu Religious and Charitable Endowment Act. 5. In the revision petitions, the following issues are canvassed by Tmt.K.Bhawatharini, learned counsel appearing for the revision petitioners:- (1) Before determining the lease amount in Proceeding dated 10.10.2008 no opportunity was given to all the lessees to give their objections. (2) The Committee did not consider the issue, in terms of Section 34A(2) of the Act and no opportunity was given to the lessees to place their objections. Therefore, the entire procedure is contrary to law. 6. Heard Sri Varadarajan, learned counsel appearing for the first respondent temple and Sri Kandasami, learned Special Government Pleader appearing for the second respondent. 7. Learned counsel appearing for the first respondent stated that the proceedings dated 10.10.2008 was issued after deliberation by a Committee consisting of the Joint Commissioner, Deputy Commissioner-cum-Executive Officer and the District Registrar.
6. Heard Sri Varadarajan, learned counsel appearing for the first respondent temple and Sri Kandasami, learned Special Government Pleader appearing for the second respondent. 7. Learned counsel appearing for the first respondent stated that the proceedings dated 10.10.2008 was issued after deliberation by a Committee consisting of the Joint Commissioner, Deputy Commissioner-cum-Executive Officer and the District Registrar. They applied their mind into the issue prior to passing the order on 10.10.2008. He, however, fairly submitted that no opportunity was, in fact, given to the lessees to make their objections on merits. He, however, contended that the requirement of Section 34A of the Act has been substantially complied with and therefore, revision petitioners have no case on merits. 8. On the same line Sri Kandasamy, learned Special Government Pleader stated that the Committee had properly considered the issue and passed the order. He, however, submitted that the guidelines issued by the Commissioner, HR & CE Department in Na.Ka.No.40651/2008/M3 dated 2.2.2009 which is based on an earlier Government Order No.353 dated 4.6.1999 and G.O.No.456 dated 9.11.2007 is difficult to comply with as it will take very long time to fix rent for the hundreds of shops. 9. The guidelines issued in Na.Ka.No.40651/2008/M3 dated 2.2.2009 reads as follows:- VERNACULAR (TAMIL) PORTIONS DELETED The guidelines are primarily meant to avoid allegation of violation of principles of natural justice. In this case, admittedly, the guidelines appears to have not been followed. It is binding on the department. 10. The first clause of the guidelines provides that, the basis for determining the lease amount should be communicated to the parties, but, it has not been complied. However, this court is of the opinion that the proceedings Na.Ka.No.280/2008-34/A-4 dated 10.10.2008 can be treated as the claim or base for determination of the rent. This will therefore, ensure compliance of clause (1) of the guidelines. 11. Clause (2) of the guidelines provides for submitting objection by the lessees against such determination. This clause of the guidelines had not been complied with as no opportunity was given. Therefore, all the revision petitioners/lessees are entitled to give their objections to the proceedings Na.Ka.No.280/2008-34/A-4 dated 10.10.2008 within two weeks from the date of receipt of a copy of this order. 12. Clause (3) of the guidelines provides for considering the objections of the lessees.
This clause of the guidelines had not been complied with as no opportunity was given. Therefore, all the revision petitioners/lessees are entitled to give their objections to the proceedings Na.Ka.No.280/2008-34/A-4 dated 10.10.2008 within two weeks from the date of receipt of a copy of this order. 12. Clause (3) of the guidelines provides for considering the objections of the lessees. The guidelines state that personal appearance need not be insisted upon in all cases as a matter of rule. However, if a specific request is made for personal hearing, the Committee shall give an opportunity for personal hearing. 13. Clause (4) and (5) of the guidelines provides that the Committee will decide the final determination based on the objection given and the submission made at the time of personal hearing, if any, and thereafter proceed to conclude the proceedings. 14. Clause (6) of the guidelines provides that final orders should be passed after considering the relevant documents. The final orders should be served on the lessees and acknowledged. 15. The procedures as above have not been followed. In a similar issue, a Division Bench of this Court in W.A.No.8 of 2008 and W.P.No.1611 of 2008 in its common judgment dated 6.2.2009 has clearly indicated that these guidelines should be followed and the relevant paragraphs reads as follows:- “16. The Government also noted that if guidelines are not followed, then the lease rent fixed by the committee is quashed either in appellate proceedings or by proceedings before the High Court wherein deficiency are pointed out. It was also noted that this only leads to the delay and loss to the lease rent for the temple and therefore, three strict guidelines were issued and it was also indicated that if they were not followed, stringent action would be initiated. Following this, further proceedings dated 2.2.2009 as per which, additional and clarificatory guidelines were issued and therefore, it is found that opportunity of raising objections is given to the lessee. The proceedings dated 2.2.2009 reads as follows:- VERNACULAR (TAMIL) PORTIONS DELETED 17.
Following this, further proceedings dated 2.2.2009 as per which, additional and clarificatory guidelines were issued and therefore, it is found that opportunity of raising objections is given to the lessee. The proceedings dated 2.2.2009 reads as follows:- VERNACULAR (TAMIL) PORTIONS DELETED 17. It was clarified that it is not necessary for the lessees to appear in person and that it is sufficient for them to submit their written objection to the temple authorities, who will take note of the objection before fixing the final rent and then it will go before the committee which will pass the order as per sub Section 2 of Section 34A of the Act for fixing the lease rent and intimate the same to the lessee. Therefore, the committee consisting of the Joint Commissioner and the Executive Officer or Trustees or Chairman of the Board of Trustees as the case may have to take note of the prevailing market value and the guidelines and then they will fix the lease rent or refix the lease rent as the case may be once in three years. The explanation to sub section 1 of Section 34A of the Act also makes it clear that what is meant by prevailing market value. The Executive Officer thereafter shall fix the lease rent. He is given the discretionary power to take note of what the Committee had recommended and then he shall fix the lease rent and intimate the same to the lessee. By virtue of the circular extracted above, the evidence submitted by the lessee will form part of the material for determining the lease rent. Therefore, we are of the opinion that lessees have been given sufficient opportunity to place before the committee the materials regarding fair rental value and it is only thereafter, that the lease rent would be fixed. Therefore, the complaint that principle of natural justice is violated, has been answered by the proceedings dated 2.2.2009. The direction contained therein shall be compulsorily followed.” The proceedings under challenge has not taken into consideration the violation of procedure prescribed under Section 34A and the guidelines and therefore is bad. 16. In view of the above, the order under challenge in so far as each of the petitioner is set aside.
The direction contained therein shall be compulsorily followed.” The proceedings under challenge has not taken into consideration the violation of procedure prescribed under Section 34A and the guidelines and therefore is bad. 16. In view of the above, the order under challenge in so far as each of the petitioner is set aside. The matter is remitted to the Deputy Commissioner-cum-Executive officer of the first respondent temple to proceed in the matter in terms of Section 34A of the Act and the guidelines dated 2.2.2009. The lessees if they seek personal hearing shall be given personal hearing. They shall not at any cost seek adjournment for more than one occasion and that too beyond seven days. The Civil Revision Petition is allowed by way of remand. No costs. Consequently, connected miscellaneous petitions are closed.