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2014 DIGILAW 2047 (MAD)

R. Balasubramani v. Joint Commissioner

2014-07-10

S.NAGAMUTHU

body2014
Judgment : 1. Since common issues are involved in all these writ petitions, they are heard together and disposed of by way of common order. 2. The petitioner in all the writ petitions are the tenants under the second respondent temple in respect of buildings in their respective occupation. The second respondent has now sent a demand notice dated 22.10.2009 to all the respondents in respect of their respective building refixing the rent for the same with effect from 01.07.1998. Challenging those notices, the petitioners have come forward with these writ petitions. 3. I have heard the learned counsel appearing for the petitioners and the learned counsel appearing for the respondents and I have also perused the records carefully. 4. The primary contention of the learned counsel for the petitioners, by referring to the impugned orders, raised in the writ petitions is that the impugned order refixing the rent retrospectively from 1998 is illegal and according to him, rent can be refixed only prospectively. 5. Secondly, according to the learned counsel, before refixing the rent, no opportunity whatsoever was afforded to the petitioners and thus, the refixation of rent has been made in gross violation of principles of natural justice. 6. The learned counsel would nextly contend that while refixing the rent, the second respondent did not follow the statutory provisions contained under Section 34(A) of the Tamil Nadu Hindu Religious and Endowments Act, 1959 and the guidelines issued by the Government then and there. He would further add that the prevailing market rental value was not at all considered in this matter, as required under the statute, while refixing the rent. 7. But the learned Special Government Pleader appearing for the first respondent would stoutly opposed these writ petitions. According to him, these writ petitions are not maintainable under law and the petitioners have got an appellate remedy under Section 34(A) (3) of the Tamil Nadu Hindu Religious and Endowments Act, 1959. When such an alternative remedy is available to the petitioners, according to him, these writ petitions are more vexatious and they could not have been entertained. 8. According to him, these writ petitions are not maintainable under law and the petitioners have got an appellate remedy under Section 34(A) (3) of the Tamil Nadu Hindu Religious and Endowments Act, 1959. When such an alternative remedy is available to the petitioners, according to him, these writ petitions are more vexatious and they could not have been entertained. 8. The learned Special Government Pleader further submitted that Section 34(A) of the Tamil Nadu Hindu Religious and Endowments Act, 1949 (Hereinafter referred to as 'Act') was introduced by way of amendment with effect from 10.05.2003 and before that, refixation of rent for the buildings belonging to the temples coming under the Tamil Nadu Hindu Religious and Endowments Department was governed by various Government Orders. But, the rent for the buildings which are in the occupation of the petitioners could not be fixed from 1998, because of various litigations before the High Court. After the route was cleared, the rent was refixed in this matter. The learned counsel further added that as required under Section 34(A) of the Act, a committee has been constituted for refixing the rent. The Committee headed by the Joint Commissioner, Hindu Religious and Endowments Department, Sivagangai, by refixing the rent for the buildings in the occupation of the petitioners, submitted a recommendation by his proceedings in K.K.vz;.928/2009/ m3, dated 20.04.2009. Based on the same, the second respondent has issued the impugned proceedings, which are all orders under Section 34(A)(ii) of the Act. Therefore, according to the learned counsel, if the petitioners have got any grievance regarding refixation, they have to work out their remedy before the Commissioner of Hindu Religious and Endowments Department. The learned counsel further submitted that the prevailing market value of each building was meticulously considered by the Committee and then only refixation was made. He would further submit that the refixation committee is not required to afford any opportunity as required under the Act. The opportunity for the petitioner is available only before the Commissioner, in the event, they make appeals. In such view of the matter, according to the learned counsel, there is no violation of principles of natural justice. For all these reasons, according to the learned Special Government Pleader, all these writ petitions are liable to be dismissed. 9. I have considered the above submissions carefully. 10. In such view of the matter, according to the learned counsel, there is no violation of principles of natural justice. For all these reasons, according to the learned Special Government Pleader, all these writ petitions are liable to be dismissed. 9. I have considered the above submissions carefully. 10. Of course, it is a settled position of law that when there is an alternative remedy in the statute, it is not open for this Court to exercise its jurisdiction under Article 226 of the Constitution of India in respect of the very same subject matter. In this regard, it is absolutely necessary for this Court to refer to Section 34(A) of the Act, upon which much reliance is made by the learned counsel for the respondent. 11. Admittedly, Section 34(A) of the Act came into being with effect from 10.05.2003. As per Section 34(A) of the Act, the rent shall be refixed once in three years. But in the case on hand, between 1998 to 2009, the refixation should have been made, according to the various Government Orders. It is not necessary for this Court whether any guidelines were taken into account for refixing the rent for the years 1998 to 2003. From 10th May 2003, refixation has to be made as per Section 34(A) of the Act. Section 34(A) of the Act has, pure and simple, provisions to deal with the procedures for refixing the rent and therefore, it has got retrospective operation. Therefore, under Section 34(A) of the Act, rent can be refixed for the period commencing from 01.07.1998. In this legal position, there is no controversy. 12. Now, turning to the proceedings of the committee, in the instant cases, the learned counsel for the respondent has produced an order communicated by the Joint Commissioner of Hindu Religious and Endowments Department, headed by the Committee. It shows the participation of the members of the committee including the District Registrar, Virudhunagar and the Assistant Divisional Engineer, Hindu Religious and Endowments Department, Sivagangai and others. They have taken into account, the present land value of the property for refixing the rent. 13. The contention of the petitioner is that under Section 34(A) of the Act, rent has to be refixed based on the prevailing market rental value and not on the basis of the present rent value. They have taken into account, the present land value of the property for refixing the rent. 13. The contention of the petitioner is that under Section 34(A) of the Act, rent has to be refixed based on the prevailing market rental value and not on the basis of the present rent value. The learned counsel would refer to the explanation appended to sub-section (i) of Section 34(A), which reads as follows: “For the purpose of this sub-section, “prevailing market rental value” means the amount of rent paid for similar type of properties situated in the locality where the immovable property of the religious institution is situated.” 14. In my considered opinion, whether the Committee had taken into account the prevailing market rental value or the present land value is a matter only to be agitated before the Commissioner. Hence, I do not want to express any opinion in this regard. I only want to clarify the legal position that refixation of rent once in three years can be made only on the basis of the prevailing market value, as defined in explanation appended to sub-section (i) of Section 34-A of the Act. 15. Now, turning to the contention of the learned counsel that before refixation of rent, no opportunity has been afforded and thus, the refixation of rent has been made in gross violation of principles of natural justice, I find no substance. 16. As rightly pointed out by the learned counsel for the respondent, no such opportunity was given to the tenants so as to make any representation before the Committee. As has been held by the Honourable Supreme Court of India in 1978 SCR 621 in (Maneka Gandhi vs Union of India) that in the absence of a specific provision in the statute, providing for an opportunity is immaterial, in cases, where a decision taken by the authority is likely to result in civil or criminal consequences. In other words, in Maneka Gandhi's case, the Supreme court has recognised the principles of natural justice as part of fundamental rights, as guaranteed under Article 14 of Constitution of India. Therefore, the contention of the learned counsel for the respondent that there is no provisions in the Act enabling the refixation Committee or impelling the said committee to afford an opportunity to the tenants cannot be accepted. 17. Therefore, the contention of the learned counsel for the respondent that there is no provisions in the Act enabling the refixation Committee or impelling the said committee to afford an opportunity to the tenants cannot be accepted. 17. At the same time, in the instant cases, under Section 34(A) of the Act, in my considered view, the Committee need not give any notice or opportunity to the tenants and the absence of any such notice or opportunities will not amount to violation of principles of natural justice. The Committee only measures the prevailing market rental value of the property and refixed the rent once in three years, put it in precise, there is no adjudication at all. There is only a paper work, resulting in recommendation by the Executive Officer. A close reading of the sub-section (1) of Section 34-A would clearly go to indicate that the Committee makes only the recommendation refixing the rent and it does not pass any order. Therefore, the question of affording any opportunity by the Committee does not arise at all. This, in my considered opinion, there is no violation of principles of natural justice, because the Committee did not give any opportunity of notice to the petitioners. Sub-Section (ii) of Section 34-A of the Act says that based on the said recommendation of the committee, consisting of the Executive Officer or the Trustee or the Chairman of the Board of Trustees, appropriate order shall be passed refixing the rent. Therefore, it is absolutely necessary that the Executive Officer should pass an order in these cases. According to the learned counsel for the petitioners, no such order was however passed by the Executive Officer. The learned counsel for the respondent would submit that the impugned proceedings are nothing but orders under Sub-Section (ii) of Section 34-A of the Act. 18. In my considered opinion, though the proceedings are not happily worded, they have been made under Sub-Section (ii) of Section 34-A of the Act, I have to accept the contention of the learned counsel for the respondent that these proceedings had been issued under Sub-Section (ii) of Section 34-A of the Act. In other words, the impugned proceedings are to be treated as orders made under Sub-Section (ii) of Section 34-A of the Act. In other words, the impugned proceedings are to be treated as orders made under Sub-Section (ii) of Section 34-A of the Act. If it so considered that these proceedings are made under Sub-Section (ii) of Section 34-A of the Act, then the remedy for the petitioner is only to approach the Commissioner. 19. In my considered opinion, though the Act does not provide for opportunity by the Executive Officer, the Board of Trustee, or the Chairman of the Board, before passing the order, in my considered opinion, by way of adhering to the principles of natural justice, which has been recognised in Maneka Gandhi's case, though there is no specific provision impelling the Executive Officer and others to afford an opportunity, they should have afforded an opportunity. But, in this case, that was not done and the said question of fact cannot be gone into by this Court at this stage. 20. In view of the above conclusions, the impugned proceedings should be treated as 'Orders' under Sub-Section (ii) of Section 34-A of the Act. Therefore, it is open to the petitioners to file regular appeals before the Commissioner, as provided under Sub-Section (3) of Section 34-A of the Act. For this purpose, the limitation provided under the Act is 30 days. Since the proceeding is not so clear that it was made under Sub-Section (ii) of Section 34-A of the Act, since this Court only declares that these proceedings are only to be considered as 'Orders', since this Court has entertained these writ petitions and since they have been kept pending for four years, the delay in presenting the appeals should be condoned. Therefore, in my opinion, at this stage, it is for the petitioners to prefer appeals as per Sub-Section (3) of Section 34-A of the Act, within a period of four weeks from the date of receipt of a copy of this order and if any such appeal is filed within such time, the Commissioner, Hindu Religious and Charitable Endowments Department shall entertain the same without reference to the limitation. In other words, the delay shall stand condoned. It is made clear that all the observations made in this order herein above are only for the purpose of the disposal of these writ petitions and the same shall not influence the mind of the Commissioner. In other words, the delay shall stand condoned. It is made clear that all the observations made in this order herein above are only for the purpose of the disposal of these writ petitions and the same shall not influence the mind of the Commissioner. It is for the Commissioner to independently analyse the facts and law in the appeals to be preferred by the parties and pass appropriate orders, after affording sufficient opportunity to all the parties, within a period of 12 weeks thereafter. 21. In the result, these writ petitions are disposed of in the following terms : (i) The impugned proceedings shall be treated as 'Orders' under Sub-Section (2) of Section 34-A of the Hindu Religious and Charitable Endowments Act, 1959 and the petitioners shall be at liberty to prefer appeals to the Commissioner, Hindu Religious and Charitable Endowments Department under Sub-Section (3) of Section 34-A of the Hindu Religious and Charitable Endowments Act within a period of four weeks from the date of receipt of a copy of this order. (ii) If any such appeal is filed within the said period of time, the delay if any, in preferring the appeals, shall stand condoned. (iii) The Commissioner, Hindu Religious and Charitable Endowments Department shall dispose of the appeals within a period of 12 weeks, after affording sufficient opportunities to the appellants as well as to the Executive Officer of the temple. (iv) It is directed that if any amount has been paid, as per the interim order passed by this Court in these writ petitions, the same shall be adjusted subject to the result of the appeals, if any is filed. It is further directed that the petitioners shall continue to pay the original rent as it prevailed before the impugned proceedings until the disposal of the appeals. If no such appeal is filed, the petitioners have to pay the enhanced rent. Consequently, connected M.P.(md).Nos.1 and 2 of 2010 in each writ petition are closed. No costs.