Bhagavathiyappan, v. The Joint Commissioner /
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 21.12.2021
CORAM
THE HON'BLE MR. JUSTICE M.SUNDAR W.P(MD)No.17042 of 2014 M.P.(MD).No.1 of 2014 Bhagavathiyappan ... Petitioner Vs.
1.The Joint Commissioner/Executive Officer, Kanyakumari District Temples, Susindram, Agastheeswaram Taluk, Kanyakumari District.
2.The Manager, Arulmigu Bhagavathi Amman Thirukovil, Kanyakumari.
3.The Assistant Commissioner, Hindu Religious and Endowment Department, Nagercoil.
4.The Joint Commissioner, Hindu Religious and Endowment Department, Tirunelveli.
... Respondents PRAYER: Petition filed under Article 226 of the Constitution of India, for the issuance of a Writ of Mandamus, calling for the records relating to the proceedings of the third respondent made in Na.Ka.No.5142/13/A1 dated 14.12.2013 and the proceedings of 1st respondent in Na.Ka.No.2695/2010/D3 dated 06.09.2014 and quash the same and consequently direct the first respondent to collect rent from the petitioner.
For Petitioner :
Mr.S.Srinivasan for Mr.M.Suresh Kumar For Respondents :
Mr.K.Sathiya Singh for R1 & R2 Mr.A.Baskaran, Additional Government Pleader for R3 & R4
O R D E R
This order will govern the captioned main writ petition and captioned Miscellaneous Petition therein.
2. The facts of the case, central theme of the lis and the trajectory the matter has taken thus far have already been captured 1/8
in earlier proceedings of this Court made in previous listing on 07.12.2021 and the same reads as follows:
' W.P.[MD]No.9820 of 2010 shall be referred to as senior W.P. and W.P.[MD]No.17042 of 2014 shall be referred to as junior W.P. for the sake of convenience and clarity. 2.A shop admeasuring 28.75 sq.ft or thereabouts belonging to Arulmigu Bhagavathi Amman Temple in Kanyakumari District is the subject matter of captioned two writ petitions. The land shall be referred to as 'said land' and the aforementioned temple shall be referred to as 'said temple' for the sake of convenience and clarity.
3.Case of the writ petitioner is that he is a land lessee under said temple qua aforementioned shop [hereinafter 'demised shop' for the sake of convenience and clarity].
4.The shop was put up for auction and that prompted the senior W.P. To be noted it was put up for auction vide proceedings dated 26.06.2010 made by the Joint Commissioner bearing Reference No.e.f.vz;.2282/2010/gp.1. In this writ petition interim orders were made, no bidders in the auction, writ petitioner was given lease but thereafter in 2012, the shop along with several other adjacent shops were gutted. This resulted in proceedings of the Joint Commissioner dated 20.04.2012 bearing Reference No.e.f.vz;.1248/2012/gp2 permitting the lessees to put up construction on a specific condition that the superstructure should be conveyed to the said temple by way of Gift Deed.
5.This Court is informed that thereafter a new shop (superstructure) was put up and the writ petitioner was permitted to occupy the same.
6.When things stood as above, the jurisdictional Assistant Commissioner made proceedings dated 14.12.2013 bearing Reference No.e.f.vz; ;.5142/13/m1 which appears to have triggered proceedings under Section 78 of 'the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 (Tamil Nadu Act 22 of 1959)' {hereinafter 'TN HR & CE Act' for brevity} which comes to light from communication dated 06.09.2014 bearing Reference No.e.f.vz;.2695/2010/o3. The Joint Commissioner has communicated to the writ petitioner about the Section 78 proceedings, These two proceedings made by the jurisdictional Assistant Commissioner and Joint Commissioner have been assailed in the junior W.P. 2/8
7.Learned Counsel for writ petitioner very fairly submitted that nothing really survives in the senior W.P. at this point of time. Therefore, the senior W.P. will be disposed of as closed (without expressing any view or opinion on the merits of the matter) by way of separate order.
8.Be that as it may, learned Counsel for writ petitioner submits that in junior W.P., there are about 24 shops, all the shops were gutted in fire and a common construction was put up but the writ petitioner discriminated and disparingly targetted. This argument will be considered in the ensuing hearing but clarity on the following factual points is required:
a) The period of lease / license qua demised shop. b) Whether the period of lease has elapsed / expired, terminated or cancelled.
c) The particulars such as case number, Joint Commissioner on whose file it is pending etc., regarding the Section 78 proceedings and the present status of Section 78 proceedings.
d) Whether there are defaulters in payment of rent with regard to the other 23 shops and whether any proceedings have been initiated against them. To be noted this becomes necessary in the light of the discrimination argument raised by learned Counsel for petitioner. 9.List W.P.[MD]No.17042 of 2014 alone after one [1] week.
10.List on 15.12.2021.'
3. The above proceedings shall now be read as integral part and parcel of this order.
4. To be noted, after aforementioned proceedings, there was one more listing of captioned matter on 15.12.2021 and the proceedings made on that day reads as follows:
'Read this in conjunction with and in continuation of earlier proceedings made in the previous listing on 07.12.2021, same set of learned counsel who were before me in the previous listing are before this Court in this hearing also.
2. Adverting to paragraph 8 of the previous proceedings, learned counsel on both sides request for further time. Request acceded to.
3. List on 21.12.2021.'
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5. Today, learned Private counsel (Mr.K.Sathish) representing respondent Nos.1 and 2 has obtained written instructions from first respondent dated 19.12.2021 bearing reference No.e.f.vz;.2695/2010/o3 and has placed the same before this Court (by way of additional typed set of papers dated 21.12.2021). Scanned reproduction of the written instructions is as follows:
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6. The aforementioned written instructions answers four points captured in paragraph No.8 of my 07.12.2021 proceedings. A perusal of the written instructions makes it clear that it is license and not lease.
7. This Court is also informed that period of license elapsed in 2010. The proceedings before the Joint Commissioner i.e., 6/8
Jurisdictional Commissioner [fourth respondent] under Section 78 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 (Tamil Nadu Act 22 of 1959) [hereinafter 'TN HR & CE Act' for the sake of brevity] appears to have been filed but the same has been returned for certain clarifications and it has been decided by the respondent Nos.1 and 2 to await the outcome of the captioned writ petition for further action (if any) in this regard. Regarding the fourth point captured in paragraph No.8 of 07.12.2021 proceedings, this Court is informed that remaining 23 shops are not in default and no proceedings have been initiated.
8. This brings me back to the arrears issue. The arrears, according to typed set placed before me by respondent No.1, is Rs.1,85,812/- (Rupees One Lakh Eighty Five Thousand Eight Hundred and Twelve Rupees Only). Learned counsel for petitioner, on instructions, submits that the writ petitioner would pay the entire arrears forthwith. However, written instructions [extracted and reproduced supra] talk about a further sum of Rs.1,75,000/- [Rupees One Lakh Seventy Five Thousand Only] towards donation and licensed fee of Rs.840/- per month.
9. If the petitioner complies with payment of demand of entire arrears of respondent Nos.1 and 2 within one month from today i.e., on or before 21.01.2022, it is well open to respondent Nos.1 and 2 to renew the license of the petitioner qua said shop on appropriate terms and conditions. If the petitioner does not comply with the requirement of paying arrears of Rs.1,85,812/- and license fee at the rate of Rs.840/- [Rupees Eight Hundred and Forty Rupees Only] per month, it will be open to respondent Nos.1 and 2 to proceed with Section 78 proceedings.
10. A perusal of written instructions brings to light that there is a demand of ed;bfhil i.e., donation. Donation has to be voluntary and it cannot be by way of a demand. This Court also notices that the writ petitioner has earlier made a donation of Rs.1,51,000/- on 07.07.2007 which is evidenced by a receipt. Therefore, the payment of this sum of Rs.1,75,000/- has to necessarily be optional.
11. Whether the writ petitioner would pay a sum of Rs.1,75,000/- in its entirety or part of it, is left to the discretion of the writ petitioner as it cannot be involuntary.
12. The sequitur is I am not interfering with the impugned proceedings and I am disposing of the captioned Writ petition and W.M.P therein with the aforementioned observations. The captioned 7/8
Writ Petition is disposed of with the observations as indicated above. There shall be no order as to costs. Consequently, captioned Miscellaneous Petition is also disposed of as closed. Sd/- Assistant Registrar (CS-III) // True Copy // / /2022 Sub Assistant Registrar(CS) 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. To 1.The Joint Commissioner/Executive Officer, Kanyakumari District Temples, Susindram, Agastheeswaram Taluk, Kanyakumari District.
2.The Manager, Arulmigu Bhagavathi Amman Thirukovil, Kanyakumari.
3.The Assistant Commissioner, Hindu Religious and Endowment Department, Nagercoil.
4.The Joint Commissioner, Hindu Religious and Endowment Department, Tirunelveli.
+1 CC to M/s.K.SATHIYA SINGH, Advocate ( SR-39903[F] dated 22/12/2021 ) +1 CC to M/s.M.SURESH KUMAR, Advocate ( SR-39920[F] dated 22/12/2021 W.P(MD)No.17042 of 2014 21.12.2021 TSK(CO) KB(11.01.2022) 8P 7C 8/8