Dismissed

Kongu Educational Trust, v. the Commissioner

Madras HC19 Jan 2022WP(MD)/17092/2016

Case brief

AI extract

What is this about?

An educational trust holding 7.81 acres of temple land under a registered sublease challenged the fixation of lease rent and the demand for arrears, alleging breach of natural justice. The court held the sublease void for want of sanction under Section 34 of the HR&CE Act; the trust was not a lessee and could not invoke natural justice. The writ petitions were dismissed.

What the court decided

AI extract

Kongu Educational Trust, Vs the Commissioner — Landlord and Tenant | Madras HC (2022)

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WP(MD) Nos.17092 and 19582 of 2016

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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

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DATED : 19.01.2022

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CORAM

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THE HON'BLE MR. JUSTICE M.SUNDAR W.P(MD)Nos.17092 and 19582 of 2016

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and

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W.M.P.(MD)Nos.12401, 14122, 14192 of 2016 and 15327 of 2017

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Kongu Educational Trust, Rep. by its Chairman M.Nachimuthu ... Petitioner

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(in both W.Ps)

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Vs.

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1.The Commissioner, Hindu Religious and Charitable Endowment Department, Chennai. 2.The Joint Commissioner, Hindu Religious and Charitable Endowment Department, Trichy Division, Trichy. 3.The Hereditary Trustee, A/M Balasubramaniaswamy Temple, Vennaimalai, Karur Taluk and District. 4.The Executive Officer, A/M Balasubramaniaswamy Temple, Vennaimalai, Karur Taluk and District. ... Respondents (in both W.Ps) 5. The District Registrar, O/o. District Registration Department, Karur. ... Respondent in W.P(MD) No.19582 of 2016 PRAYER in W.P(MD) No.17092 of 2016: Petition filed under Article 226 of the Constitution of India, for the issuance of a Writ of Certiorarified Mandamus, calling for the records of the fourth respondent's impugned communications dated 02.12.2015 and 28.06.2016 and quash the same as illegal, arbitrary, without the authority of law and against the provisions of the Tamil Nadu Hindu Religious and Charitable Endowment Act, 1959 and the circular of the first respondent herein bearing Na.Ka.No.40651/2008/M3/Dated 02.02.2009.

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https://hcservices.ecourts.gov.in/hcservices/

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PRAYER in W.P(MD) No.19582 of 2016: Petition filed under Article 226 of the Constitution of India, for the issuance of a Writ of Certiorarified Mandamus, calling for the records of the impugned proceedings of the Joint Committee dated 12.02.2015 comprising of respondents 3 to 5 and the consequential proceedings of the second respondent in Se.Mu.Pa.Mu.No.1795/2015/A2 dated 12.02.2015 fixing the fair rent and quash the same as illegal, arbitrary, without the authority of law and against the provisions of the Tamil Nadu Hindu Religious and Charitable Endowment Act, 1959 and consequentially forbearing the respondents herein from interfering with the peaceful possession and enjoyment of the property by the petitioner without following the due process of law.

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For Respondents : Mr.M.Lingadurai, Spl. Govt. Pleader for R1 & R2 and for R5 in W.P(MD) No.19582/16 (*)Mr.V.R.Shanmuganathan learned counsel representing Mr.P.Aathimoolapandian, leaned counsel on record for R4

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(in both W.Ps)

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No Appearance for R3 (in both W.Ps)

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COMMON ORDER

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This common order will govern the captioned two main writ petitions and the captioned writ miscellaneous petitions (WMPs) thereat.

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In this order, W.P(MD) No.17092 of 2016 shall be referred to as I-WP and W.P(MD) No.19582 of 2016 shall be referred to as II-WP (both for the sake of convenience and clarity).

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Factual matrix in a nutshell containing facts that are imperative for appreciating this order are; that 'Arulmigu Balasubramaniaswamy Thiru Koil, Manmangalam Taluk, Karur District' ('said Temple' for the sake of convenience and clarity) is the subject matter of the captioned writ petitions; that a vast extent of 'land admeasuring 7.81 acres or thereabouts situate in Survey No.269 in Kadhapparai Village in Manmangalam Taluk, Karur District' ('demised land' for the sake of convenience and clarity) admittedly belongs to said Temple; that lease, fixation of lease rent for said demised land and disputation qua the same is the central theme of the lis in the captioned writ petitions; that the writ petitioner has been described as a Trust; that this Court is informed that writ petitioner Trust is running a School; that writ petitioner Trust https://hcservices.ecourts.gov.in/hcservices/

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entered into a registered lease agreement dated 19.06.1995 with legal heirs of one late Ramasamy Gounder taking on sublease said land for a period of thirty years; that this Court is informed by writ petitioner that said demised land is being used as a playground for a school run by the writ petitioner Trust, but the respondents say it is being used as a car park (to be noted, this is a factual disputation); that post sublease there was a communication dated 08.12.2005 from hereditary trustee of said Temple to the writ petitioner calling upon the writ petitioner to disclose the rent that is being paid qua demised land and saying that no construction should be put up; that writ petitioner replied vide communications dated 20.12.2005, 29.06.2005; that thereafter vide proceedings dated 28.11.2008 and 17.08.2001, lease rent was quantified qua demised land; that the lease rent for the period from 01.07.2008 to 30.06.2011 was Rs.4130/- per month; that the writ petitioner received a communication dated 02.12.2015 from the Executive Officer of said Temple saying that lease rent for demised land has been fixed at Rs.2,04,122/- per month and calling upon the writ petitioner to pay arrears computed at this rate of Rs.2,04,122/lakhs per month; that the writ petitioner responded vide communication dated 04.01.2016 addressed to the Executive Officer of said Temple but receipt of this communication is disputed by the Executive Officer of said Temple (there shall be some discussion on this infra); that thereafter the Executive Officer of said Temple sent a communication dated 28.06.2016 calling upon the writ petitioner to pay arrears which by then had swelled to a little over Rs.37.99 lakhs; that in the typed set of papers filed along with the counter-affidavit/vacate stay WMP in I-WP, writ petitioner came to know that Lease Rent Fixation Committee had fixed lease rent for demised land on 12.02.2015; that on same 12.02.2015, the jurisdictional Joint Commissioner of the 'Tamil Nadu Hindu Religious & Charitable Endowments Department' (hereinafter referred to as 'TNHR&CE Dept' for the sake of convenience and clarity) had written a letter about this fixation of lease rent; that on coming to know about the fixation of lease rent on 12.02.2015, II-WP was filed by writ petitioner assailing 12.02.2015 lease rent fixation proceedings and 12.02.2015 communication from jurisdictional Joint Commissioner; that when the I-WP was moved, this Court granted a blanket stay qua lease rent vide an interim order dated 09.09.2016 in WMP(MD) No.12401 of 2016; that thereafter in and by a further interim order dated 21.09.2017, this Court directed 50% of the arrears as on that day to be deposited; that this Court is informed that such deposit has since been made; that the interim order is operating; that post completion of pleadings captioned writ petitions and WMPs thereat are now before this Court.

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4. Mr.V.Srikanth, learned counsel appearing on behalf of counsel on record for writ petitioner in both the captioned writ petitions, Mr.M.Lingadurai, learned Special Government Pleader on behalf of the Commissioner, Joint Commissioner of TNHR&CE Dept and https://hcservices.ecourts.gov.in/hcservices/ District Registrar, Karur (fifth respondent in II-WP),

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Mr.VR.Shanmuganathan, learned private counsel appearing on behalf of Executive Officer of said Temple (fourth respondent in both writ petitions) are before this Court. To be noted, the hereditary trustee of said Temple has been arrayed as third respondent in both writ petitions, hereditary Trustee has been duly served, the third respondent is shown in the cause list, but there is no representation. This Court is informed that the third respondent has not entered appearance through any counsel. Service and pleadings are duly completed and therefore with the consent of all the counsel, both the captioned writ petitions were taken up heard out.

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5. As would be evident from the factual matrix in a nutshell set out supra, there are two impugned proceedings in each of the writ petitions. The facts being common and the entire issue arising out of one bundle of facts, learned counsel for writ petitioner in his campaign against the impugned orders, notwithstanding very many averments in the writ affidavit and several grounds raised in writ affidavit made pointed submissions, a summation of which is as follows:

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(a) The first impugned order in I-WP dated 02.12.2015 does not contain any annexures. The writ petitioner nonetheless sent objections dated 04.01.2016 but a demand dated 28.06.2016 was made without considering the objections;

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(b) On coming to know about the lease rent fixation on 12.02.2015 vide counter and typed set papers of I-WP and a communication qua the same vide a letter of the jurisdictional Joint Commissioner (JC for brevity), II-WP was filed assailing the 12.02.2015 lease rent fixation and communication of JC;

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(c) The lease rent fixation is bad as it has taken 0.30 percentage of the value as indicia qua demised land whereas it should have been 0.10% as the demised land is being used by a educational institution and if the writ petitioner had been given an opportunity before fixation of lease rent, the writ petitioner would have inter-alia raised this point;

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(d) No opportunity qua lease rent fixation has been given to writ petitioner and therefore there is an

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infraction of Angala Parameswari principle being observations in Arulmigu Angala Parameswari and Kasivishwanathaswami Temple Adimanaiveal House Owners Assn. v. State of Tamil Nadu , reported in (2009) 6 CTC 512 case law resulting in NJP (Natural Justice Principle) violation.

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6. In response to the above submissions, learned State counsel made submissions, a summation of which is as follows:

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(a) The very occupation of demised land by writ https://hcservices.ecourts.gov.in/hcservices/

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petitioner is illegal as the writ petitioner has entered into a sublease with lessees (with no consent or permission to sublet) under said Temple which is impermissible. Therefore, writ petitioner cannot now be heard to contend that there is infraction of Angala Parameswari principle or claim as a matter of right qua the status and legal character of a lessee;

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(b) On instructions, it was also submitted that proceedings under section 78 of 'the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959' (hereinafter referred to as 'TNHR&CE Act' for brevity) have already been kick-started;

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(c) The writ petitioner is not running a free school and it will be evident even from the 04.01.2016 communication (receipt of which disputed by the Executive Officer of said Temple) that the writ petitioner is in fact charging fees from the students. Therefore, writ petitioner does stand to gain by using demised land of said Temple. In other words, writ petitioner is exploiting the demised land and generating income;

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(d) The arrears of rent as of now is over Rs.1.50 crores and that is one of the grounds which have resulted in kick-starting proceedings under Section 78 of TNHR&CE Act qua the deeming fiction by which even a lessee put in possession legally and legitimately would become an encroacher on termination, cancellation or efflux of time. This is an argument on a demurrer without prejudice to the contention that the occupation of demised land by the writ petitioner itself is illegal;

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(e) There is alternate remedy available to the writ petitioner vide Section 34-A(3) of TNHR&CE Act, the writ petitioner has bypassed the same, come to this Court, obtained an interim order and is squatting for several years on the demised land of said Temple which is a vast extent of land admeasuring 7.81 acres.

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7. Mr.VR.Shanmuganathan, learned private counsel appearing on behalf of counsel on record for the Executive Officer of said Temple made submissions, a summation of which is as follows:

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(a) Angala Parameswari principle does not say that the writ petitioner should be given an opportunity before fixation of lease rent. The Executive Officer has discretion qua lease rent fixed by the Committee and communicate the same to the lessee, thereafter the lessee can send objections (if any). In the case on hand, on 04.01.2016 objections were never received by the Executive Officer. Though it is addressed to the

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Executive Officer, even according to what has been placed before this Court, the acknowledgment appears to be made only by some one who has described himself / herself as 'vOj ; jh ; '. Receipt of 04.01.2016 communication is categorically denied. In any event, this communication does not raise any objection of any substance. It was pointed out that the position that no objections were received has been articulated in paragraph 10 of the counter-affidavit which has been used to support the vacate stay WMP;

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(b) The Natural Justice Principle (NJP) point is well answered by 02.12.2009 clarification and this is being recorded in Angala Parameswari case itself. In the case on hand, the writ petitioner not having chosen to respond to the 02.12.2015 communication from the Executive Officer (first impugned order in I-WP) cannot now make a complaint about 12.02.2015 lease rent fixation proceedings and Joint Commissioner's communication (first and second impugned orders in II-WP) as Angala Parameswari principle even if applied to the case on hand stands satisfied;

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(c) Learned counsel pressed into service an order dated 09.12.2021 made by this Court in W.P(MD) No.20031 of 2013 ( MK.M.Muthusamy's case ) arising out of Section 34-A proceedings, wherein writ petitioner was relegated to alternate remedy.

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8. By way of reply submissions, learned counsel appearing on behalf of counsel for writ petitioner submitted as follows:

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(a) Lease rent fixation having been made on 12.02.2015 has been communicated ten months later only on 02.12.2015;

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(b) The order of this Court dated 09.12.2021 in W.P (MD) No.20031 of 2013 ( MK.M.Muthusamy's case ) is clearly distinguishable as that is a case where the writ petitioner himself by his own volition took a stand that he is going to convert the demised land into plots.

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9. This Court carefully considered the aforementioned rival submissions. The discussion and dispositive reasoning is as follows: (a) At the outset, in the pleadings as well as in the proceedings, the term 'fair rent' in English and 'epaha thlif' in Tamil have been used. The proceedings admittedly turn on Section 34-A of TNHR&CE Act, therefore it is not 'fair rent' or 'epaha thlif' but it is 'lease rent' i.e., 'Fj ; jif thlif'. The caption of Section 34-A of TNHR&CE Act itself makes this clear as it reads ' Fixation of lease rent '. Jurisprudentially, there is a difference between 'fair rent' and 'lease rent'. Fair rent is a term used in

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erstwhile Rent Control Act i.e., the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 vide Section 4 and a specific formula is laid down there for computation of rent qua tenancies. Lease rent is a concept which was brought into the TNHR&CE Act on and from 10.05.2003 by way of an amendment and TNHR&CE Act is not only a special statute but is also a self contained code as held in a long line of authorities i.e., catena of case laws where this Court has taken a clear categoric, unambiguous view that TNHR&CE Act is a self contained Code and an illustrative but not exhaustive list of this line of case laws is as follows:

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(i) In R.Lakshmi Narasimha Bhattar v. The Commissioner, HR&CE case, reported in 2011 SCC On Line Mad 2474 , while inter-alia dealing with a honour (during 'Viswaroopa Dharsanam' in Arulmigu Aranganatha Swamy Thirukovil Srirangam, Trichy) and while referring to earlier orders vide Chapter V inquiry proceedings after holding that remedy is by way of statutory revision under Section 21, a learned Single Judge held that TNHR&CE Act is a self contained code. Most relevant portions are contained in paragraphs 25 and 27 and the same read as follows:

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Relevant portion in paragraph 25:

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' ...Ultimately, if at all the petitioner's grievance to establish an honour attached to his office if any held it can be gone into only by instituting a proceedings under Section 63(e) of the TN HR&CE Act followed by a suit under Section 70(1) and a further appeal to this court under section 70(2) of the Act. Merely accusing the Joint Commissioner cum Executive Officer as biased or contending that the remedy by way of revision need not be availed since the Joint Commissioner cum Executive Officer has no jurisdiction to pass orders cannot be countenanced by this court.

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Paragraph 27:

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27. In fact the petitioner's hereditary right to receive honour is seriously under challenge by the temple management by relying upon the Tamil Nadu Act 2/1971 and also the allegation was that Rengesa Prohida service is done only by temple servants and hereditary succession over such Kaingaryams is not recognised under law. The socalled custom pleaded was also broken many times and reading of Panchangam was done by other families. All the more reasons, the petitioner has to only approach the authority under the Act and cannot bypass the Act. The Act is the self

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contained code. Only after exhausting all the remedies, a statutory appeal to this court is available over the action of the authorities. Under these circumstances, W.P.(MD) Nos. 9202 and 9263 of 2011 are also liable to be rejected.' (Underlining made by this Court for ease of reference)

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(ii) As there are long line of authorities as alluded to supra for the proposition that TN HR&CE Act is a self contained Code, this Court deems it appropriate to give a list of case laws alone in order to avoid this order becoming verbose, which is as follows:

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(i)order dated 21.06.2016 in W.P(MD) No.10840 of 2016 vide V.Subramanian v. The Joint Commissioner, HR&CE Department case [Paragraph 7];

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(ii) Palanichamy v. The Commissioner, HR&CE Department case, reported in 2016 SCC OnLine Mad 21977 [Paragraph 30];

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(iii) M/s.Temple Worshippers Society v. Government of Tamil Nadu reported in 2017 SCC OnLine Mad 7178 [Paragraph 5(i)];

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(iv)order dated 09.11.2021 in W.P.(MD) No.20109 of 2021 vide R.S.Mani v. The Joint Commissioner [Paragraph 11];

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(v)order dated 26.04.2019 made in W.P(MD) No.10392 of 2019 reported in 2019 SCC OnLine Mad 10975 (C.Rajamohan Vs. Commissioner and another) [Paragraph 2].

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(b) Therefore, this Court proceeds on the basis that it is a case of fixation of lease rent under Section 34-A of TNHR&CE Act and disputation to the same. The arguments made by counsel on either side which has been captured supra will make it clear that if reduced to bare bones, the bone of contention is NJP or in other words, the writ petitioner not being given an opportunity to object qua fixation of lease rent for demised land belonging to said Temple. In this regard, the NJP facet is dealt with in paragraphs 14 to 17 of Angala Parameswari case law. In fact these four paragraphs have been clearly captioned Plea Regarding Natural Justice. Paragraphs 14 to 17 of Angala Parameswari read as follows:

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14. Plea Regarding Natural Justice: The provision as it stands affords no opportunity to the lessee before the rent is fixed. It is at the time of the Appeal that hearing is provided. In Chemplast Sanmar Limited v. The Appellate Authority, Tamil Nadu Pollution Control Board, 2008 (4) CTC 793, the Division https://hcservices.ecourts.gov.in/hcservices/ Bench held,—

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“……………. In any event, as stated by Sir William Wade, when Natural Justice was violated at the first stage, it cannot be held that a fair Appeal can cure such an unfair Trial. In this context, the decision of the Hon'ble Supreme Court reported in Institute of Chartered Accountants of India v. L.K. Ratna, AIR 1987 SC 71, assumes greater significance inasmuch as an Appeal cannot be an overall substitute in respect of the breach of fundamental procedure committed in the riginal proceedings. To strengthen the above principle, an English decision reported in Leary v. National Union of Vehicle Builders, 1971 Chncellory 34, can be aptly quoted, wherein Megarry, J., has held that, as a general rule, a failure of Natural Justice in the trial body cannot be cured by a sufficiency of Natural Justice in the Appellate body.”

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Applying the above well established principles to the case on hand, the violation of Principles of Natural Justice which had occurred at the level of the original authority cannot be said to have been cured at the level of the Appellate Authority. We have, therefore, no hesitation to hold that the order of the First Respondent cannot be said to have set right the violation committed at the level of the original authority. Since the Petitioner is entitled to substantiate its stand that the consent obtained by it in the order dated 5.5.2006/16.11.1998 was passed on the real claim that the existing power plant operated by diesel is going to be operated in future by the usage of coal and that the same cannot be construed as a new power plant, in all fairness, the First Respondent after reaching the conclusion that the Pollution Control Board breached the Principles of Natural Justice ought to have set aside the order dated 22.1.2008 and remitted the matter back to the Pollution Control Board for fresh hearing………………….”

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15. T he grievance regarding lack of opportunity must be accepted. We agree with the view expressed in Chemplast Sanmar case. But, this defect is cured by the proceedings dated 2.2.2009. Originally by proceedings in Na. Ka. NO. 40651/2008/M3 dated 18.7.2008, the Government laid down guidelines for determination of lease rent and also directed that the Executive Officer should inform the lessee, the lease rent as determined as per Section 34-A(2) of the Act. https://hcservices.ecourts.gov.in/hcservices/

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The Government also noted the fact that though Section 34-A of the Act had come into force on 10.11.2003, certain guidelines had not been followed by the committee, while determining the lease rent and the defects are as follows:

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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:

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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 objections 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 34-A 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 34-A 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 https://hcservices.ecourts.gov.in/hcservices/ to the lessee. By virtue of the circular extracted

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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.'

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' 25 . In view of the proceedings dated 2.2.2009, it is clear that the Government intends to give an opportunity to the lessees before the rent is fixed. Therefore, Writ Petitioner is given one week time from the date of receipt of copy of this order to give their objections supported by whatever documents they have in their possession and on receipt of the same, the authorities may fix or refix the lease rent in accordance with law. '

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(d) In the light of the aforementioned excerpted relevant portions of Angala Parameswari case law, there can be no doubt or difficulty in accepting the submissions of learned private counsel for Executive Officer that there is no concept of giving opportunity before fixation of lease rent. It is clear that the lease rent has to be communicated to the tenant and thereafter, if the tenant/lessee objects to the same that has to be considered. In this case, the 04.01.2016 objections of the writ petitioner has become subject matter of disputation as alluded to supra. A copy of 04.01.2016 objections has been placed before this Court and a scanned reproduction of the same is as follows:

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(e) A perusal of the above will reveal that it appears to be received (if at all and if that be so) by 'vOj ; jh ; '. In paragraph 10 of the counter-affidavit filed in support of vacate stay WMP, it has been averred that writ petitioner has not sent any objections. There is nothing to demonstrate that this 04.01.2016 has been served on the Executive Officer. In any event, this being a factual disputation, it may not be appropriate to give a conclusive finding on https://hcservices.ecourts.gov.in/hcservices/

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whether it is actually received by the Executive Officer of said Temple. It is in this context that the alternate remedy under Section 34-A(3) becomes significant. The appellate authority could have well looked into the records and could have come to a conclusion regarding this factual disputation. However, prima facie even according to the aforementioned submissions, it appears to have been received by 'vOj ; jh ; ' and there is nothing to demonstrate that it has been duly served on the Executive Officer of said Temple who is an Officer within the meaning of Section 45 of TNHR&CE Act with certain defined duties and responsibilities. Executive Officer is also a defined term and it has been defined vide section 6(9) which reads as follows:

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'(9)” executive officer ” means a person who is

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appointed to exercise such powers and discharge such duties appertaining to the administration of a religious institution as are assigned to him by or under this Act or the rules made thereunder or by any scheme settled or deemed to have been settled under this Act;'

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(f) Be that as it may, the contents of writ petitioner's letter dated 04.01.2016 as rightly pointed out by learned State counsel makes it clear that the writ petitioner is not running a free school and in fact charging fee as all that has been said by writ petitioner is 'Fiwe ; j fl ; lzj ; jpy ; fy ; tp fw ; g ; gpg ; gjw ; fhf Vw ; gl ; lJ'.

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(g) As alluded to supra, interim order was granted by this Court on 09.09.2016 and the same reads as follows: ' Mr.N.S.Karthikeyan, learned Addl.Govt.Pleader takes notice for R1 and R2.

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The petitioner is directed to take private notice to R3 and R4 returnable by 21.09.2016.

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Post on 21.09.2016.

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Till then, the respondents are directed not to demand the increased rent. '

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(h) When a condition was imposed, another Hon'ble Single Judge of this Court vide 21.09.2017 order wrote as follows:

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' Heard the learned counsel on either side.

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2. It is represented by the learned Special Government Pleader appearing for H.R.&C.E., that the total extent of land is more than 8 acres and the monthly rent fixed earlier was only Rs.4,000/-. According to him, if a fair rent is fixed, it will surely fetch more than Rs.2,04,122/- towards monthly rent and therefore,

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the impugned orders came to be issued for remittance of such amount, which are impugned in these writ petitions.

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3. For such a large extent of land, the meagre payment of Rs.4,000/- as monthly rent cannot be accepted at any cost and therefore, the petitioners are directed to deposit 50% of the total demand till today, on or before 10.10.2017, failing which, liberty is granted to the respondents to initiate appropriate action against the petitioners for recovery of the property from them.

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Call on 11.10.2017 for reporting compliance. '

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(i) This Court is able to notice the sentiments articulated vide 21.09.2017 proceedings / orders. The argument predicated on applicable indicia being 0.10 and not 0.30 is essentially based on G.O.Ms.No.353 dated 04.06.1999. Clause (6) is relevant and the same reads as follows:

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'nghJ Nritahf elj ; jg ; gLk ; fy ; tp epWtdq ; fs ; /eypTw ; Nwhh ; eyd ; fUjp elj ; jg ; gLk ; njhz ; L epWtdq ; fs ; Mfpatw ; wpw ; Fk ; nfhLf ; fg ; gL ; k ; fhyp epyq ; fSf ; F ,lj ; jpd ; re ; ij kjpg ; gpy ; 0.10% Fj ; jif t#ypf ; fg ; glNtz ; Lk ; . '

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(j) The argument of learned counsel for writ petitioner predicated on the aforementioned Clause (6) does not impress this Court as that applies only to 'nghJ Nritahf elj ; jg ; gLk ; fy ; tp epWtdq ; fs ; /eypTw ; Nwhh ; eyd ; fUjp elj ; jg ; gLk ; njhz ; L epWtdq ; fs' ; . As alluded to supra, even in the 04.01.2016 communication (receipt disputed by respondents) the writ petitioner has admitted that fee is being charged. Therefore, it will definitely not qualify qua 'nghJ Nritahf elj ; jg ; gLk ; fy ; tp epWtdq ; fs ; ; '.

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(k) Regarding the opportunity issue, even according to Angala Parameswari principle, the same has been given a quietus vide 02.02.2009 proceedings of II-WP which reads as follows:

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(l) In the case on hand, regarding the 04.01.2016 purported objections said to have been sent, discussion and dispositive reasoning have already been set out supra.

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(m) On the alternate remedy aspect, Angala Parameswari no doubt says that NJP cannot be set right by giving an opportunity in the appeal but in the case on hand, the factual scenario is different as receipt of 04.01.2016 purported objections said to have been sent by the writ petitioner itself is disputed and such factual disputation could have been examined by the appellate authority. Therefore, the appeal remedy gains significance as already alluded to supra if not in terms of opportunity but in terms of examining the factual disputation.

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10. Notwithstanding the discussion and dispositive reasoning thus far, in the considered view of this Court, there is one aspect of the matter which is clearly a clincher in the case on hand. Before setting out what that the clincher is, this Court reminds itself of the celebrated Constitution Bench judgment in Padma Sundara Rao case being Padma Sundara Rao Vs. State of Tamil Nadu https://hcservices.ecourts.gov.in/hcservices/

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case reported in (2002) 3 SCC 533 which deals with how a case law or precedent has to be looked into. Relevant paragraph in Padma Sundara Rao case law is paragraph 9 and the same reads as follows:

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' 9 . Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. There is always peril in treating the words of a speech or judgment as though they are words in a legislative enactment, and it is to be remembered that judicial utterances are made in the setting of the facts of a particular case, said Lord Morris in Herrington Vs. British Railways Board (1972) 2 WLR 537. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. '

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11. In the Angala Parameswari case, as would be evident from the factual narrative captured in paragraph 3, it is clear that there was no disputation that anybody is an illegal occupant or that there was no disputation about the character of possession of the persons in possession of temple lands. Paragraph 3 of Angala Parameswari case reads as follows:

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' 3 . The facts of the case are as follows:

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The members of the Appellant Association in the Writ Appeal and the Petitioner in the W.P. are Tenants of Arulmigu Angala Parameswari and Kasivishwanathaswami temple. According to them, they and their predecessorsin-interest have been in occupation of the temple lands for several decades. Originally the lease rent was 50 paise per half ground. They are the owners of the superstructures. In 1991, the lease rent was enhanced to a mere Rs. 25/- per month. The members objected even to that. The temple acceding to their objections, reduced the rent to a pitiful sum of Rs. 5/- per month. According to the Petitioners they have been paying this amount without fail. On 18.4.2005, the Joint Commissioner fixed the fair rent and the Executive Officer communicated the decision to the lessees in 2005. The liability to pay the fair rent so fixed came into effect from 1.11.2001. The lessees were called upon to pay the arrears of rent within 15 days of receipt of the letter. The lessees were also informed that if they were aggrieved they could file an Appeal under Section 34-A of the HR & CE Act. One of the members filed an Appeal. It was returned for want of pre-deposit. Immediately the Association filed W.P. No. 25992/2005 for a declaration that Section 34-A(3) of the Act is violative of Article

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14 and for a direction to the Respondents to entertain the Appeal without insisting on the pre-deposit.'

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12. In the case on hand the clincher is, the purported sublease dated 19.06.1995 referred to supra. There is nothing on record to show that the heirs of late Ramasamy Gounder had any authority to sublet the demised land of said Temple that too a vast extent of 7.81 acres and more so for thirty long years. Assuming, on a demurrer, even if there was any authority for sublease, there could have been no lease deed dehors Section 34 of TNHR&CE Act. Section 34 of TNHR&CE Act reads as follows:

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' 34. Alienation of immovable trust property. —(1) 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 purpose of, any religious institution shall be null and void unless it is sanctioned by [the Commissioner] as being necessary or beneficial to the institution :

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Provided that before such sanction is accorded, the particulars relating to the proposed transaction shall be published in such manner as may be prescribed, inviting objections and suggestions with respect thereto; and all objections and suggestions received from the trustee or other persons having interest shall be duly consider by [the Commissioner] :

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[Provided further that the Commissioner shall not accord such sanction without the previous approval of the Government]. '

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13. Section 34 of TNHR&CE Act is lethal in the case on hand. The reason is Section 34 does not merely make it mandatory to get the permission of the Commissioner (albeit with the prior consent of the Government for any lease exceeding five years) but it goes a step further. It goes a step further because it clearly declares that any lease executed in violation of Section 34 is null and void. In other words, any lease is null and void unless it is sanctioned by the Commissioner as being necessary or beneficial to the institution under section 34 of TN HR&CE Act and such sanction being accorded by Commissioner is also statutorily circumscribed by the second proviso of section 34 which says that the Commissioner shall not accord such sanction without previous approval of the Government. Nothing of that kind is there in the case on hand and therefore, writ petitioner's lease deed dated 19.06.1995 under which it first got possession itself is null and void. This statutory requirement which is lethal and which makes it clear that the lease itself is null and void cannot be cured by two proceedings dated 28.11.2018 and 05.04.2010 by which lease rent has been fixed under Section 34-A of TNHR&CE Act. In other words, the very inception of purported tenancy or lease, is clearly hit by Section 34 of TNHR&CE https://hcservices.ecourts.gov.in/hcservices/

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Act and it is null and void. When it is null and void, it cannot be cured by mere fixation of lease rent by a Committee under Section 34-A of TNHR&CE Act. The writ petitioner does not qualify as a lessee within the meaning of Section 34-A of TNHR&CE Act. Absent status of a lessee and absent character of possession of demised land as a lease, the writ petitioner cannot take shelter under Angala Parameswari principle.

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14. This Court deems it appropriate to consider the matter as parens patriae , this Court being guardian qua the presiding deity idol being in the status of a minor. That this Court is parens patriae qua said temple, temples of similar nature and also custodia legis qua properties vested in a minor idol are well settled legal principles. Hon'ble Supreme Court in A.A.Gopalakrishnan's case [ A.A.Gopalakrishnan v. Cochin Devaswom Board and Ors., ] reported in (2007) 7 SCC 482 , has also held that it is the duty of this Court to protect the properties vested in temples.

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15. The other aspect that weighs in the mind of this Court is the huge arrears. The arrears as of today as per the tabulation placed before this Court is as follows:

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16. The above will demonstrate that the arrears as of today is a little over Rs.1.50 crores, to be precise Rs.1,50,16,233/-. Added to this it is the submission of learned State counsel that proceedings under Section 78 of TNHR&CE Act have been kick-started.

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17. Therefore, even if the 04.01.2016 disputation/objection is considered to have been actually sent, that does not come to the aid of writ petitioner on the facts and circumstances of this case as the writ petitioner's purported lease itself is null and void. In other words, the registered lease deed dated 19.06.1995 entered into by the writ petitioner with legal heirs of late Ramasamy Gounder is clearly null and void by operation of Section 34 of TNHR&CE Act. If that itself was null and void, the writ petitioner is neither a lessee nor is the character of possession qua demised land is that of a lessee. The concluding paragraph of the registered lease deed is relevant and the same reads as follows:

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18. Therefore lease (sub lease without authority or consent from said temple) for thirty years has been entered into dehors Section 34 of TNHR&CE Act and by operation of Section 34 of TNHR&CE Act, this purported sublease dated 19.06.1995 clearly becomes null and void. The moment it becomes null and void it cannot be cured by any subsequent proceedings.

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19. The sentiments echoed / articulated by another Hon'ble Single Judge in the 21.09.2017 proceedings directing deposit of 50% also reverberates in the hearing before this Court.

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20. In the light of the discussion and dispositive reasoning https://hcservices.ecourts.gov.in/hcservices/ thus far, Angala Parameswari principle does not come to the aid of

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writ petitioner in the case on hand. Sequitur is, captioned writ petitions fail and the same are dismissed. Consequently, captioned WMPs are also dismissed. This Court refrains itself from imposing costs.

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Sd/-

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Assistant Registrar(P & A)

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(*)Corrected as per order of this Court dated 31.01.2022

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Assistant Registrar(CS-II)

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// True Copy //