R.Vinayaga Sengunder & Ors. v. The Executive Officer

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 31.07.2009CORAMTHE HONOURABLE MR.JUSTICE S.J.MUKHOPADHAYAANDTHE HONOURABLE MR.JUSTICE RAJA ELANGOW.A.Nos.471 to 474 of 2009R.Vinayaga Sengunder..Appellant inW.A.No.471 of 2009K.S.Natarajan Sengunder..Appellant inW.A.No.472 of 2009Krishna & Co.rep.by its PartnerK.N.Namasivaya SenguntharOld No.9/1, New No.13Jones Road, SaidapetAppellant inChennai 600 015..W.A.No.473 of 2009Asiatic Enterprisesrep.by its Partner T.V.BalajiOld No.6, New No.5Jones Road, SaidapetAppellant inChennai 600 015..W.A.No.474 of 2009-Vs-1. The Executive Officer Arulmighu Karaneeswarar Thirukoil Devastanam, Saidapet Chennai 600 0152. The Joint Commissioner HR & CE NungambakkamRespondents 1 & 2 in all Chennai 600 034..the Writ AppealsAppeals filed under Clause 15 of the Letters Patent against theorder dated 2.7.2008 made in W.P.Nos.6784, 6785, 6786 & 10405 of 2005.Petitions filed under Article 226 of the Constitution of Indiapraying to issue a writ of Certiorari to call for the recordsrelating to the impugned proceedings dated 18.1.05 of the firstrespondent and quash the same as illegal against law.For Appellants::Mr.K.V.Anantha Krishnan No appearanceFor Respondents::Mr.T.ChandrasekaranSpecial Government Pleader(H.R.&C.E.) https://hcservices.ecourts.gov.in/hcservices/ JUDGMENT(Judgment of the Court was delivered by S.J.MUKHOPADHAYA, J.) As the appeals have been preferred against the common order andcommon question of law is involved, they are disposed of by thiscommon judgment. 2. The appellants are running timber shops in the premisesbelonging to the temple, Arulmighu Karaneeswarar Tirukoil, Chennai(hereinafter referred to as "the temple") and were inducted astenants since 1980 and 1999 respectively. In the year 2001, the rentwas enhanced, but subsequently, by notices issued on 18th January,2005, the rent has further been enhanced giving retrospective date ofeffect from 1st November, 2001 and arrears have also been claimed bythe respondents. They preferred different writ petitions in 2005challenging the order on the ground that (i) Fixation Committeereport dated 22nd July, 2004 and Joint Commissioner's order dated 7thOctober, 2004 fixing rent were not served, only notices dated 18thJanuary, 2005 issued by the Executive Officer were received; (ii)fixing of rent from retrospective date is illegal; (iii) insertion ofSection 34-(A) to (D) during 2003 superseded G.O.Ms.No.353 dated 4thJune, 1999 and hence fixing the rent on the basis of theG.O.Ms.No.353 dated 4th June, 1999 is wrong. Initially, interim staywas granted, but subsequently, by the common order dated 2nd July,2008, all the writ petitions were dismissed there being alternativeremedy of appeal available to the appellants.3. It is stated that after the Court's order, they preferredstatutory appeals on 14th July, 2008 before the Commissioner, whichhave not been numbered. In the meantime, notices have been issuedterminating the tenancy for non-payment of the arrears.4. Earlier the case was taken up on 20th April, 2009, when thefollowing interim order was passed:-"Meanwhile, Mr.Ananda Kannan, learned counselfor the appellants submits that the appellants willclear the arrears of revised rent from the date ofknowledge i.e., from January, 2005 at the rate ofRs.7,940/- per month in W.A.No.471 of 2009, at therate of Rs.3,500/- per month in W.A.No.472 of 2009,and at the rate of Rs.6,290/- per month inW.A.Nos.473 and 474 of 2009 after giving credit tothe amount which has been paid already. Similarly,from 1st January, 2007 the appellants will clearthe arrears of rent at the rate of Rs.9,131/- permonth in W.A.No.471 of 2009, at the rate ofRs.4,629/- per month in W.A.No.472 of 2009 and atthe rate of Rs.8,319/- per month in W.A.Nos.473 and474 of 2009 after giving credit to the amount whichhas been paid already. These payments will becleared by end of May, 2009." https://hcservices.ecourts.gov.in/hcservices/

5. The learned Special Government Pleader appearing on behalf ofthe respondents accepted that the appellants are paying the rent asper the interim order from January, 2005 at the rate shown by thisCourt and quoted above.6. We have perused the records and also heard the learnedSpecial Government Pleader appearing on behalf of the respondents.7. It will be evident from the impugned order passed by thelearned single Judge that the learned Judge, while noticed the standtaken by the appellants, as also taken in these appeals, has notentertained the writ petitions in view of the alternative remedy ofappeal being available. In fact, a similar matter came up forconsideration before this Court in Arulmighu Meenakshi SundareswararKoil Kadaikarargal Sangam, Madurai v. State of Tamil Nadu and others,2000 (1) CTC 471, wherein, under similar circumstances, as againstthe enhancement of rent, the Court dismissed the writ petition withliberty to move before the appellate authority under Section 21. Thesaid matter was taken up on appeal by the association of shop ownersof the temple in Writ Appeal No.402 of 2000 and a Bench presided byK.G.Balakrishnan, Chief Justice (as he then was), by judgment dated13th March, 2000, observed as follows:-"3. The learned counsel for the appellant hassubmitted that the tenants of the temple cannot becompared with the tenants of the privateproperties and there is no basis for theGovernment to direct the authorities to fix rentat 8.38 per cent on the basis of the market rate.The learned counsel assailing the Clause 7 of theimpugned order has submitted that such a fixationis nothing but arbitrary. He has also submittedthat the members of the appellant association arevery small merchants and they cannot afford to paysuch a higher rent. We are not able to accept thesaid submission. The Government issued the saidorder only to guidelines to be followed in all thetemples. The appellant has not established beforeus that Clause 7 of the Government Order directingthe authorities to fix the rent at 0.30 per centof the market rate is an arbitrary one. Since theyare the guidelines, if any amount is fixedcontrary to the same, the appellant can alwaysapproach the appellate authority under Section 21of the Act as directed by the learned singleJudge. Hence, we do not find any merits in thewrit appeal. Writ Appeal is dismissed."8. Similar was the view of the Division Bench in Writ AppealNo.849 of 2005 (A.Raghunathan v. The Executive Officer and twoothers) disposed of by judgment dated 21st April, 2003. Taking intoconsideration the aforesaid judgment in A.Raghunathan's case, theDivision Bench presided by M.Katju, Chief Justice (as he then was) https://hcservices.ecourts.gov.in/hcservices/ observed as follows:-"4. It is alleged by the appellant that by hisdemand letter dated 16.1.2005, the ExecutiveOfficer of the temple is now demanding exorbitantrent, failing payment of which he has threatenedlegal proceedings and eviction proceedings. In ouropinion, if the landlord is demanding exorbitantrent which the tenant is unwilling or unable topay, then unless the tenant has the protection ofthe Rent Control Act or some other statute, thetenant will have to vacate the property becausethat property does not belong to him. Such mattersare purely contractual, unless some statutoryprotection is provided for. In the present case,there is no statutory protection at all for theappellant and hence if he is unwilling to pay therent demanded by the landlord he has to vacate.5. The matter is purely in the realm ofcontract and at any event writ jurisdiction is notthe proper remedy. The writ appeal is dismissed.Consequently, WAMP.No.1605 of 2005 is alsodismissed. No costs."9. A Division Bench in Writ Appeal No.425 of 2007 (K.Narayanan v.The Joint Commissioner and another) by judgment dated 15th March,2007, dealt with G.O.Ms.No.353 dated 4th June, 1999 and in paragraph-2of the said judgment, the following observation was made:-"2. We tried to find out the nexus of fixingthe date such as 1.11.2001 for payment ofenhanced rent. It was brought to the notice ofthe learned single Judge that vide G.O.Ms.No.353,dated 4.6.1999 the State Government issuedrevised guidelines for enhancement of rent at therate of 33.31 once in three years. While so, theGovernment issued another order dated 8.8.2001addressing the Special Commissioner and theCommissioner, HR & CE referring the earlierG.O.Ms.No.353, dated 4.6.1999 and two otherletters of the Government and directed theCommissioner to implement the said decision dated4.6.1999 with effect from 1.11.2001. Theauthority should have implemented the order wayback in the year 1999 but it was implemented fromthe subsequent date that is with effect from1.11.2001. In view of the aforesaid fact and thatthe property belongs to Devasthanam (temple),this Court is not inclined to interfere with theorder passed by the learned single Judge. Thewrit appeal is dismissed. No costs." https://hcservices.ecourts.gov.in/hcservices/

10. Having noticed all the aforesaid facts including theamendment made by Section 34-A, the substance of the decisions werenoticed by the learned Judge, as quoted hereunder:1. The relationship between the petitioners and the temple is onlycontractual in nature and therefore, the Court cannot interfere withany dispute between them.2. G.O.Ms.No.353, Tamil Development and Culture, Hindu ReligiousDepartment, dated 4.6.1999 is a guideline, which can be validlyadopted by subordinate officers and executive officers of the temple.3. Section 34-A of the Act is only an enabling provision inconstituting the committee and the Executive Officers can either actupon such a revision or can by the general guidelines made by theGovernment.4. If any party, who is aggrieved by such fixation on the ground thateither the guidelines were not followed or it is exorbitant, there isa remedy provided under Section 21 of the Act and therefore, withoutavailing such remedy, this Court cannot entertain the writ petition.11. Subsequent to the judgment, Section 34-A was introduced. Asper Section 34-A(3), any person aggrieved by an order passed undersub-section (2), may, within a period of thirty days from the date ofreceipt of such order, prefer appeal to the Commissioner.12. In view of the aforesaid ruling and the provisions of law,the learned single Judge having not interfered with the writpetitions, allowing the appellants to prefer statutory appeals, wefind no ground to interfere with the said order. The appellants mayraise all the questions they raised in the writ petitions before theappellate authority, who will decide the question taking intoconsideration the relevant law or record and the judgments renderedby this Court.13. So far as the eviction of the appellants is concerned, thisCourt has already made it clear by order dated 20th April, 2009 as towhat amount to be paid by one or other appellant(s). If theappellants pay the amount in terms of the interim order passed bythis Court and continue to pay such amount till the statutory appealsare finally decided, the respondents should not evict the appellantsfrom their respective shops. However, for non-compliance, i.e., ifthe fixed amount is not paid as per the interim order, it will beopen to the respondents to take appropriate steps against theappellants. https://hcservices.ecourts.gov.in/hcservices/ The writ appeals stand disposed of with the aforesaidobservations, but there shall be no order as to costs. Consequently,M.P.Nos.1, 2 & 3 of 2009 are closed. Sd/- Asst.Registrar/true copy/ Sub Asst.RegistrarssTo1. The Executive Officer Arulmighu Karaneeswarar Thirukoil Devastanam Saidapet Chennai 600 0152. The Joint Commissioner (H.R.& C.E.) Uthamar Gandhi Road Nungambakkam Chennai 600 034+4 cc to Mr.K.V.Anantha Krishnan, Advocate, SR.No.33627, 33629 to336312 cc To The Government Pleader, SR.33760 to 33762W.A.Nos.471 to 474 of 2009MSM {CO}TP/11.8.2009.