Thiagarajan v. State of Tamil Nadu

For petitioner : Mr.V.SelvarajFor respondents: Mr.K.Ramasamy1 to 3 Addl.Advocate General for Mr.T.Chandrasekaran Spl.Govt.Pleader (HR&CE) For respondents: Mr.R.Thiagarajan,Sr.Counsel4 and 5 for Mr.G.R.Swaminathan .. ORDERThe writ petition is directed against the order of the secondrespondent, Commissioner, Hindu Religious Endowment Department, dated21.12.2010 and the subsequent modification order dated 14.02.2011.2. The petitioner is a President of the Hindu Baktha Jana Sabai,which is a registered Society. He is a resident of Tiruparunkundram,Madurai District and is a pious Hindu and believer in fosteringinter-religious friendship and filed the above writ petition as aHindu worshipper.(a) Arulmigu Madanagopalaswamy Thirukoil, Madurai, is one ofthe ancient temples. There was an advertisement in Daily Thanthidated 5.01.2011, calling for tenders for allotment of shops in theproposed commercial complex in the temple. It is stated that on11.01.2011, the petitioner sent a representation to respondents 1 and2, opposing the proposed construction and he has also asked forinformation regarding the sanction if any granted by the Governmentfor the proposed commercial complex. (b) The petitioner has received a communication from thesecond respondent on 24.01.2011, stating that till 24.01.2011 nofinal order granting sanction for the proposed construction waspassed and therefore, the petitioner preferred a complaint before theCommissioner of Police, Madurai on 2.02.2011. The proposedcommercial complex sought to be constructed is within the precinctsof the temple, is prohibited under Section 77 of the Tamil Nadu HinduReligious and Charitable Endowments Act, 1959 (in short, "the Act"),since the temple property cannot be converted into commercial complexwith political motive and by putting up commercial complex, theTemple’s appearance will be obstructed.(c) The petitioner has received a copy of the proceedings ofthe second respondent dated 21.12.2010, calling for tenders, forconstruction of commercial complex in the temple precinct.Questioning the same the petitioner has filed W.P No. 5003 of 2011.By an order dated 1.03.2011, this Court, has permitted the third https://hcservices.ecourts.gov.in/hcservices/ respondent to receive the tenders, but not to open the same untilfurther orders.(d) Respondents 4 and 5 have filed a petition to vacate thesaid order of stay along with counter affidavit in the above writpetition, and when the matter came up before this court, it wasinformed that the impugned order dated 21.12.2010, was modified bythe second respondent on 14.02.2011 and therefore, the said W.PNo.5003 of 2011 was withdrawn with liberty to file fresh writpetition. According to the petitioner, the impugned orders passed bythe second respondent dated 21.12.2010 and 14.02.2011, which are thetender notifications, are not valid as per the provisions of theAct. There is no Scheme called as Public auction-cum- deposit-cum-donation Scheme.3. The impugned orders are challenged on various groundsincluding that the property of the temple which is situated withinthe precinct of the temple cannot be used for putting up of acommercial complex and the Scheme framed by the second respondentdated 21.12.2010, is of a non- existence one and it is in violationof law and contrary to Section 77 of the Act. As per the impugnedtender notification, the lease is for three years and thereafter, itcan be renewable once in three years under Section 34 of the Act. Anylease of the property exceeding five years is null and void unlesssanction is accorded and such sanction can be accorded only aftercalling for objections from the public and considering the same, suchsanction can be accorded only with the prior approval of theGovernment and according to the petitioner, the Commissioner, theJoint Commissioner and the Executive Officer have jointly decided togive perpetual lease of the property, which is in violation of lawand therefore, they are liable to be prosecuted under the Preventionof Corruption Act and thus, the present writ petition is filedchallenging the impugned tender notifications.4. When the matter was taken up for admission on 31.03.2011, thiscourt has granted an order of status quo, which is continued bysubsequent orders.5. The second respondent has filed a counter affidavit along withthe petition to vacate the order of status quo. According to thesecond respondent, Arulmigu Madanagopalaswamy Thirukoil, Madurai, isa listed temple published under Section 46(ii) of the Act and it isunder the administrative jurisdiction of the Joint Commissioner,Hindu Religious and Charitable Endowment Department, Madurai. It isadministered by the Executive Officer appointed under Section 45(1)of the Act and the Trust Board consisting of five non-hereditary https://hcservices.ecourts.gov.in/hcservices/ Trustees appointed from time to time. The assessable income of thetemple is Rs.23,13,338/- for the fasli year 1419. (a) It is stated that the temple owns lands measuring 9500sq.ft., which was in possession of Mr.C.Thangasamy. The temple fileda suit for possession in O.S.No.1840 of 1996 before the AdditionalDistrict Munsif Court, Madurai, which was decreed in favour of thetemple on 25.11.2003, the appeal and the second appeal filed alsoended in favour of the Temple and thereafter, the property was takenpossession by the temple. The property was situated in the primelocality viz., near Periyar Bus Stand. (b)It is, to augment more income and to avoid anyencroachment, the temple has proposed to build a commercial complexin the said land and the proposal was submitted to the secondrespondent. An estimate was prepared to build a commercial complex atthe cost of Rs.4.5 crores and necessary planning permission was alsoobtained from the Madurai Corporation in May,2010. Since the cost ofestimate was very high, the temple administration devised a plan toconstruct the commercial complex from collecting deposits anddonations from public. (c) According to the plan, it is decided to conduct a publicauction, fixing an amount as donation and deposit for each shop andthe shops will be allotted to the donor who offers the highest amountof donation, and after completion of the construction, the allotteehas to pay the fair rent to be fixed by the temple as per theexisting guidelines. It is stated that the lease period was fixed atthree years. The second respondent, after considering the proposal,has granted sanction on 21.12.2010 and subsequently, modified it on14.2.2011, which are impugned in the writ petition.(d) It is stated that by the impugned order dated 21.12.2010, thesecond respondent has granted permission to construct a commercialcomplex, and a public advertisement was also issued in Daily Thanthion 05.01.2011, in response to which 34 applications were received bythe Temple and most of them were interested in allotment of groundfloor shops and only three applications were received for threefloors of the commercial complex. Later, another application wasreceived for the whole commercial complex and in total among the 4applications, the highest offer amount of Rs.4.70 crores was quotedby one Pothiraj from Srivilliputhur.(e) After considering the resolution of the Trust Board andrecommendations of the Joint Commissioner, Madurai, the secondrespondent felt that instead of granting permission to differentindividuals regarding allotment of shops, an individual tender forwhole complex is preferable, and therefore, a revised sanction wasgranted on 14.02.2011, which is also impugned in this writ petition.(f) It is stated that the Scheme has been constituted forthe purpose of augmenting income, especially after long battle for 14 https://hcservices.ecourts.gov.in/hcservices/ years, for taking possession from the previous person, who was inpossession. Putting up of a commercial complex does not cause anyhindrance to the pilgrims and the petitioner has no locus standi toquestion the same. The Scheme, as formulated by the templeadministration was approved by the second respondent.(g) It is stated that the orders passed on 21.12.2010 and14.02.2011 are well considered and self speaking orders. It is statedthat the temple administration, as early as in the year 2008, afterthe judgment in Second Appeal No.897 of 2008 of the Madurai Bench ofthis Court on 05.12.2008, confirming the decree in favour of thetemple in the suit in O.S.No.1840 of 1996 for recovery of possession,passed a resolution to construct a shopping complex in the place toavoid encroachment and also to augment more income for the temple andit was due to the administrative reason, there was a delay and nowonly it was given effect to under the impugned tender notifications.(h) It is stated that earlier there was a rice mill in theplace, which was also used for commercial purpose, and there is areasonable space available between the temple and the proposedCommercial Complex. There are many private buildings and therefore,the commercial complex proposed to be put up will not obstruct theview of the temple. The disputed property is situated in a highlyurbanized area and the construction of three storied building is notgoing to be a hardship to any one.(i) It is stated that an amount of Rs.11,05,200/- was spentfor planning permission, only after getting approval from the secondrespondent. The temple is not going to spend any amount towardsconstruction of commercial complex and it is going to be constructedfrom the donation received as called for in the public auction. It isstated that calling for donation by way of public auction for puttingup of a commercial complex is a new plan devised, which cannot bequestioned, since the same cannot be found to be illegal. Anyinterested person including the petitioner can participate in thepublic auction.(j) The writ petitioner has filed the earlier writ petitionin W.P.No.5003 of 2011 on various false grounds, in respect of whichalso the second respondent has filed a counter affidavit and thepresent writ petition is filed with flimsy grounds. It is, becausethe temple is not having any further fund, the present new Scheme hasbeen formulated. It is also stated that the place in which thecommercial complex is to be constructed is outside the compound wallof the temple and hence, it is not contrary to Section 77 of the Act.(k) The period of lease is only for three years and afterthree years, it is for the temple authorities to decide for extensionand it is not a perpetual lease. Therefore, the applicability ofSection 34 does not arise. It is stated that even otherwise, there isan alternate remedy available to the petitioner under Section 114 of https://hcservices.ecourts.gov.in/hcservices/ the Act before the first respondent, and therefore, the writ petitionis liable to be dismissed. Inasmuch as the petitioner is not able toshow any illegality or infirmity in the impugned tendernotifications, simply because it is a new process, the same cannot bequestioned.6. In the counter affidavit filed by respondents 4 and 5, who arethe Executive Officer and Chairman Board of Trustees respectively ofArulmigu Madanagopalaswamy Thirukoil, Madurai, which is in consonancewith the counter affidavit filed by the second respondent, it isstated that the writ petition is not maintainable. It is the case ofthe 4th and 5th respondents that the petitioner has chosen tochallenge the order of the second respondent dated 14.02.2011, whilea notification has already been issued on 15.02.2011, which waspublished in the Daily Thanthi on 16.02.2011. (a) It is stated that the petitioner is not a regularvisitor of the temple and if he has got any grievance regarding theinfraction of the procedure set out under Section 34 of the Act, hecan only file a Public Interest Litigation. It is also stated thatthe writ petition before this Court is not maintainable and if at allthere is any grievance, the petitioner can file a petition before theMadurai Bench of the Madras High Court. The petitioner has not chosento file a petition in the Madurai Bench, because he was alreadyimposed with the costs of Rs.10,000/- for filing a frivolouspetition, complaining about the encroachment of a Urani inRajapalayam, in which costs was awarded.(b) It is stated that Arulmigu Madanagopalaswamy Thirukoil,Mela Masi Street, Madurai is an ancient Temple, which comes under thecategory of “Abhimana Sthalam”. The temple is bounded on the northernside by Mela Vadampokki Street and on the northern side a number ofmulti-storied buildings have already come up, and Arisikara Streetruns parallel to Mela Masi Street on the western side. Between theTemple and Arisikara Street, there was a rice mill functioning for along time. The said property also belonged to the temple and a verynominal and low rent was paid every month and therefore, the templedecided to initiate action to vacate them. A suit was initiated inthe year 1996, which went up to second appeal stage and ultimately,the tenant was given 9 months time to vacate and hand over possessionof the property to the temple.(c) It is stated that 7 permanent employees are working inthe temple. On account of the weak financial condition, even anemployee who has put in more than 25 years of service is getting onlyRs.10,000/- per month as salary. The monthly income of the temple ishardly Rs.2 lakhs and the staff salary alone comes to Rs.60,000/-.Hence, the Trustees have decided to take action for augmenting theincome and therefore, when the earlier tenant was successfullyevicted in the year 2008, a resolution was passed, putting the saidland for proper use. https://hcservices.ecourts.gov.in/hcservices/ (d) After the judgment was passed on 05.12.2008, aresolution was passed for putting up of a commercial complex on19.12.2008 and delivery of possession was taken on 05.12.2009.Thereafter, the matter was referred by the Joint Commissioner ofHindu Religious and Charitable Endowment to the Commissioner forapproval. A proposal was submitted with a proper design throughreputed architect. The second respondent has issued an order on19.10.2009. On 04.08.2009, yet another resolution was passed since itwas an ambitious project and it was informed to the Ministry also.The Hon’ble Minister has also made an announcement on the floor ofthe Assembly during budget session of the year 2010-11. (e) The Commissioner of Corporation, Madurai has grantedpermission on 01.04.2010. The building approval was granted by theCorporation on 14.05.2010 and subsequent resolution was passed on09.08.2010 by the Trust Board and thereafter, the Joint Commissionerhas forwarded the recommendation to the Commissioner on 23.09.2010and on 21.12.2010, and the second respondent has approved theconstruction of commercial complex and that was challenged in boththe writ petitions. (f) The Board has further passed another resolution on21.12.2010, pursuant to which public advertisement was issued on05.01.2011. Though 34 applications were received in response to thenotification dated 05.01.2011, most of them were interested in takingthe shops on the ground floor and ultimately, the original proposalwas modified in the interest of the temple by another resolutiondated 21.01.2011 to give it to a single person instead of many numberof entities and that was given permission by the second respondentand thereafter, the Trust Board passed resolution on 15.2.2011, tocall for public tender notification on 16.2.2011, the notificationhas been published in Daily Thanthi. (g) The last date for the tender was 2.3.2011. Thecommercial complex construction will not be conducted within theprecinct of the temple and there is no infringement of Section 77 ofthe Act. The Temple has spent its own money for the preliminaryformalities. Accordingly, the tenders have been called for frominterested parties, they have offered a deposit of Rs.3,61,25,000/-and a sum of Rs.1,08,75,000/- will be the starting quotation fordonation. Apart from the deposit, whoever offers the highest donationwill be chosen as the highest tenderer.(h) With the amount generated from the tender process, thetemple will put up a 3 storied commercial complex including theground floor. The building will be absolute property of the templeand therefore, the temple have a valuable commercial complex in theheart of Madurai City without spending any amount. The highesttenderer will be given a lease for a period of three years and theamount will be fixed strictly in accordance with Section 34A of theAct by a Committee as per the Government Order. https://hcservices.ecourts.gov.in/hcservices/ (i) As of now, the Department is following the practice ofrenewing the lease period, when 15% enhancement of rent is agreed andpaid by the tenant. It is stated that right of a lease holder forrenewal once in three years is universally applied throughout TamilNadu with only one condition that the holder has to pay the enhancedrent.7. According to Mr.V.Selvaraj, learned counsel appearing for thepetitioner, the entire impugned orders are fraudulent in the sensethat the temple has not taken any action, and it is only by theextraordinary pressure, the present new Scheme has been formulated.Even though as per the impugned tender, the lease period has beennoted as three years, there is a right given for continuationthereafter, which means that it is for more than 5 years, whichrequires a permission under Section 34 of the Act. It is only to bye-pass the provisions of Section 34 of the Act, three years has beenincluded, and very purpose of giving it to a single person shows thatthere is a political interference and the intention is not bona fide,for the interest of the temple. According to him, under Section 77 ofthe Act, there is no power to transfer any land appurtenant to oradjoining the religious institutions, which is prohibited exceptunder special circumstances. There is no Scheme framed to show anyspecial circumstances. According to him, the place wherein theconstruction is sought to be put up is forming part of the temple andthe petitioner is a person interested. When the law does not permitanything, it means it is prohibited and inasmuch as such powers arenot available under Section 23 of the Act, the Commissioner’s orderbecomes nullity. Even the Trustees have no unguided powers as perSection 28 of the Act, and there are various regulatory provisionsunder the Act and the Trustees themselves cannot bye-pass the same.Even under Section 34A of the Act, fair rent has to be fixed andwithout fixing the fair rent, the tender called for becomes totallyalien to the concept of lease. There is no administrative sanctiongranted by the Government. This amounts to alienation, even if theCommissioner accepts, and for such alienation as per the proviso toSection 34 of the Act, he has to make publication for gettingobjections. If it is a new Scheme, it should be placed before theLegislature as per Sec.116(3) of the Act and there is violation ofvarious provisions of the Act and therefore, according to him, theentire proceedings are to be held null and void.8. Mr.K.Ramasamy, learned Additional Advocate General appearingfor the Special Government Pleader for respondents 1 to 3 wouldsubmit that the writ petition is not maintainable. The petitioner isneither an aggrieved person nor an interested person, and for that herelied upon Section 6(15)(b) of the Act. He would also rely upon theprovisions of Sections 59, 64 and 65, which require a minimum number https://hcservices.ecourts.gov.in/hcservices/ of persons to be declared as aggrieved and therefore, the petitionercannot be deemed to be a person interested. On merits of the case, itis his submission that the tender process is only to identify theprospective lessee, Section 34(4) of the Act will come into operationonly after identification of the lessee and what was granted by theCommissioner was, permission to the Executive Officer to construct abuilding under the Scheme and it is in the preliminary stage.According to learned Additional Advocate General, the tender has notbeen challenged and no doubt, the process is a new one by way ofdonation before lease. The lease amount will be fixed as per theprovisions of the Act, after the lease is finalized and what isdecided is only to receive the application by way of donation. It isonly the person who offers highest donation will be accepted and thedonations by others will be returned and that will not be forfeitedand therefore, the process is that the highest donation amount willbe received, with which the construction will be put up andthereafter, the lease amount will be fixed as per the Act. It isstated that the petitioner has not challenged the tendernotification, and there is no question of lease, since such lease hasnot been executed. If the contents of the lease deed do not containany renewal clause, then the proviso to Section 34 of the Act willnot apply. As far as reference to Section 77(3) is concerned, theconstruction is only outside the precinct of the temple and there isno blocking of the temple. According to him, donation is not alien tothe Scheme of the Act. The tender notification only contemplates thedonations and the conditions are not stipulated. 9. Mr.R.Thiagarajan, learned senior counsel appearing forrespondents 4 and 5 would submit that the advertisement has beenissued and it is a policy of the Government, since the Hon’bleMinister has made a reference on the floor of the Assembly.According to him, it is like putting up of cottages in ThirumalaThirupathi Devasthanam by individual donations and thereafter, therent will be fixed as per the provisions of the Act.10. I have heard the learned counsel for the petitioner, apartfrom the learned Additional Advocate General appearing forrespondents 1 to 3 and the learned senior counsel for respondents 4and 5 and given my anxious thoughts to the issue involved in thiscase.11. Since a preliminary issue is being raised on behalf of therespondents, as submitted by the learned Additional Advocate Generalabout the locus standi of the petitioner in filing the above writpetition, which will have a bearing on the maintainability of thewrit petition itself, it is incumbent on the part of this Court todeal with the said issue at the first instance. https://hcservices.ecourts.gov.in/hcservices/

12. The petitioner is stated to be a worshiper of the temple as aHindu. The term “Temple” is defined under Section 6(2) of the Act,which is as follows:“ 6.(20) “temple” means a place by whatever designationknown, used as a place of public religious worship anddedicated to, or for the benefit of, or used as of rightby, the Hindu community or of any section thereof, as aplace of public religious worship;Explanation: Where a temple situated outside the Statehas properties situated within the State, control shall beexercised over the temple in accordance with the provisionsof this Act, in so fat as the properties of the templesituated within the State are concerned.” 13. According to the learned Additional Advocate General, thepetitioner is neither aggrieved by the issue nor he is a personinterested. Whether he is aggrieved or not depends on the merits ofthe matter and it will be dealt with separately. It is relevant tofind out, as to whether he is a person interested. Section 6(15) ofthe Act defines the term “person having interest”. Under the saidprovision, the person having interest in respect of a math, templeand endowment has been separately defined. In respect of the term“person having interest” regarding Temple the same has been dealtwith under Sec.6(15)(b), which is as follows:“6 (15) (b). in the case of a temple, a person who isentitled to attend at or is in the habit of attending theperformance of worship or service in the temple, or who isentitled to partake or is in the habit of partaking in thebenefit of the distribution of gifts thereat”Therefore, an analysis shows that even a person who is entitled toattend or partake in the temple services is a person having interest,whether he actually exercises his entitlement or not. Being a Hindu,as stated in the affidavit, a believer of Hindu Temples, thepetitioner is certainly a person entitled to worship in the temple,and therefore, the contention raised in the counter affidavit by therespondents as if the petitioner is not in the habit of visiting thepresent temple, viz., Arulmigu Madanagoapalaswamy Thirukoil, haslittle significance while considering the definition of “personhaving interest". 14. The reliance placed on Sections 59, 64 and 65 of the Act, whichcontemplate a minimum number of persons to join together for certain https://hcservices.ecourts.gov.in/hcservices/ remedies under the Act, is certainly not relevant to the facts of thepresent case. Section 59 of the Act relates to removal of Trustee ofa Math or specific endowment, in which case the empowerment of theCommissioner or two or more persons having interest may institute asuit for removal of a Trustee. The present temple is not being aMath, Section 59 has no application. 15. Section 64 of the Act empowers the Joint Commissioner orDeputy Commissioner to settle Schemes regarding the properadministration of an institution either it is exercised suo motu orby not less than 5 persons having interest in making suchapplication. The present issue has nothing to do with the settlementof any Scheme of any institution and therefore, requirement of 5persons or more has no significance. 16. Similarly, under Section 65 of the Act, which empowers theCommissioner to settle the Scheme in respect of certain specificendowment attached to a Math or administration of a Math, when notless than 5 persons interested can make an application. These are allmatters relating to administration of a Math, Temple or institutionwhatsoever and these three provisions which are relied upon by thelearned Additional Advocate General for driving home that minimumnumber of persons affected must be available to constitute a personinterested is not tenable, especially on the facts of the presentcase, wherein the petitioner being a simple devotee of a temple,wants to challenge a commercial transaction, which is sought to bemade on behalf of the temple. Therefore, I am of the consideredview that the petitioner is certainly a person having interest in theaffairs of the temple and accordingly, the preliminary objectionraised on behalf of the respondents about the locus standi of thepetitioner, is rejected. 17. Now, coming to the facts of the case, on an over all view,especially after issuing two impugned orders of the second respondentdated 21.12.2010 and 14.02.2011, it is clear that in respect ofArulmigu Madanagopalaswamy Thirukoil, which is a temple recognizedunder the Act as per its Schedule, either the Board of Trustees orthe second and third respondents wanted to introduce a new method asa prelude for the purpose of leasing out the temple land, where theprovisions under Section 77 of the Act prohibiting the alienation ofthe land of the temple or appurtenant to the temple, need not beconsidered at this stage. The fact remains that under the twoimpugned orders, there is no proposal for lease to be made out. Therespondents 2 to 5 appear to have decided based on the requirement ofthe fund for the development of the temple and invented a novel idea of donation Scheme as a prelude for the purpose of proceeding with https://hcservices.ecourts.gov.in/hcservices/ the lease in accordance with law. Under the Act, there is no suchprovision enabling either the Commissioner of the Department or theBoard of Trustees to have such novel scheme to be implemented, ofcourse without any restrictions. It is no doubt true that when anew Scheme is contemplated and it is in the interest of theinstitution, there cannot be any impediment, but that must besubject to the approval of law and whatever may be the laudableobject, it becomes no sense if it is not approved by law. Though itis for mere monetary benefit or augmentation of income for thetemple, but such augmentation must be in the manner known to law andnot based on any novel idea so long as such idea has not beenformulated as a Scheme approved by the State Government. 18. As correctly submitted by the learned Additional AdvocateGeneral, the time for fixation of lease rent has not yet arisen, onthe facts of the present case, so as to make application underSection 34A of the Act for fixation of lease rent by the Departmentin that regard, and that is why, as I stated earlier, the entireimpugned orders including the publication, which has beensubsequently issued in Daily Thanthi on 16.2.2011, are only preludeto fixation of lease rent. 19. Before going into the propriety of such novel Scheme, whichmay be no doubt in the best interest of the temple, it is relevant torefer Section 34 of the Act, which imposes a restriction about thealienation of immovable Trust property either by sale, mortgage orlease etc., and Section 34 is as follows:“34. Alienation of immovable trust property: (1) Any exchange, sale or mortgage and any lease for a termexceeding five years of any immovable property, belongingto, or given or endowed for the purposes of, any religiousinstitution shall be null and void unless it is sanctionedby (the Commissioner) as being necessary or beneficial tothe institution:Provided that before such sanction is accorded, theparticulars relating to the proposed transaction shall bepublished in such manner as may be prescribed, invitingobjection and suggestions with respect thereto; and allobjections and suggestions received from the trustee orother persons having interest shall be duty considered by(the Commissioner); https://hcservices.ecourts.gov.in/hcservices/ [Provided further that the Commissioner shall notaccord such sanction without the previous approval of theGovernment].Explanation: Any lease of the property abovementioned though for a term not exceeding five years shall,if it contains a provision for renewal for a further term(so as to exceed five years in the aggregate), whethersubject to any condition or not, be deemed to be a leasefor a period exceeding five years.(2) When according such sanction, (the Commissioner)may impose such conditions and give such direction, as (he)may deem necessary regarding the utilization of the amountraised by the transaction, the investment thereof and inthe case of a mortgage regarding the discharge of the samewithin a reasonable period.(3) A copy of the order made by (the Commissioner)under this section shall be communicated to the Governmentand to the trustee and shall be published in such manner asmay be prescribed.(4) The trustee may, within three months from the dateof his receipt of a copy of the order, and any personhaving interest may, within three months from the date ofthe publication of the order, (appeal to the Court) tomodify the order or set it aside.(4-A) The Government may issue such directions to theCommissioner as in their opinion are necessary, in respectof any exchange, sale, mortgage or lease of any immovableproperty, belonging to, or given or endowed for the purposeof, any religious institution and the Commissioner shallgive effect to all such directions).(5) Nothing contained in this section shall apply tothe inams referred to in section 41.” 20. Section 34(1) read with explanation makes it very clear thateven if the term, 'lease' is stated to be for less than 5 years, andif it contains a clause for renewal for a further term, whether it issubject to any condition or not, it is deemed to be a periodexceeding 5 years. Now, if we make a reference to the advertisementissued in Daily Thanthi on 16.02.2011, one of the clauses in theadvertisement, viz., Clause 11, is as follows:“11/ thlif xg;ge;j fhyk; K:d;W Mz;LfSf;F kl;Lk;/ mjw;F gpd;g[ xt;bthUK:d;W Mz;LfSf;F xU Kiw murhizapd; thlifapy; 15 rjtPjk; cah;t[ bra;Jg[Jg;gpj;Jf; bfhz;L thlif xg;ge;jg;gj;jpuk; vGjpf; bfhLf;f ntz;Lk;/” https://hcservices.ecourts.gov.in/hcservices/ A reading of the said clause in the advertisement which of coursedoes not form part of the two impugned orders of the secondrespondent, in the context of the explanation to Section 34(1) of theAct, shows abundantly clear that even if a lease is to be given atthe later point of time, the same has to be a treated for a periodmore than 5 years. If that is so, as per Section 34 of the Act, theCommissioner must not only give permission, but he must also issuepublication inviting objections or suggestions in respect of the saidproposal. Mere publication to an advertisement calling for tenderdoes not mean the publication calling for objections. Therefore, therespondents cannot take refuge to show that the advertisement dated16.02.2011 or any other advertisement published earlier should betreated as a publication calling for or inviting objections. 21. So far, no objection has been received and therefore,according to the respondents, it should be presumed that the peoplehave accepted the same. That is not the purport of the Act. Section34(1) says that the sanction can be granted by the Commissioner onlyafter receiving objections in respect of granting of sanction andnot for the purpose of inviting tenders. But the contention of thelearned Additional Advocate General is that the said advertisementdated 16.02.2011, is not an advertisement for lease, it is only anadvertisement asking for donations, and therefore, the impugnedorders as well as the advertisement dated 16.02.2011, are only toselect the lessee for the entire premises based on the highest offerof donation. Hence, it is an approval given to the Trustees by theCommissioner to call for donations from public by fixing the minimumamount as Rs.4.70 crores, which was made as a highest offer by onePothiraj from Srivilliputhur based on the earlier publication issuedin Daily Thanthi dated 05.01.2011. Therefore, under the impugnedorders, especially in the impugned order dated 14.02.2011, the secondrespondent has directed that Rs.4.70 crores quoted as donation mustbe the starting point for the offer from public and the highestofferer in respect of the donation will be chosen as a lessee andthat donation amount will be used for the purpose of putting up theconstruction and the amounts given by other participants will bereturned as per the terms. Therefore, it is based on the highestdonation amount, the second respondent has permitted the 4th and 5threspondents to put up the construction. This is certainly a uniqueplan in the form of a new Scheme, and after the construction, as perSection 34A of the Act, fair rent will be fixed in respect of theportion for which the highest donation is quoted by a person and inaddition to the donation already paid based on which the building isput up, the selected lessee shall pay fair rent every month. Thatappears to be the Scheme, but even at the time when the donation iscalled for under the advertisement dated 16.02.2011, an assurance hasbeen given to the highest donor that the lease will be given forthree years which will be extended for another three years on payment https://hcservices.ecourts.gov.in/hcservices/ of 15% more of the rent fixed under Section 34A of the Act, andtherefore, applying the explanation to Section 34(1) before issuingsuch advertisement, the public objections should have been calledfor, but admittedly, such objection has not been called for.22. Be that as it may, even if the contention of the learnedAdditional Advocate General is to be accepted that it is only at apreliminary stage and the lease is yet to be materialised, in whichevent, the present novel Scheme should be treated as a Scheme whichis not known to any other provisions of the Act, in so far as itrelates to the temple, Section 34 of the Act has to be read alongwith Section 77, which is intended to avoid encroachment of templelands. Section 77 of the Act is as follows:“ 77. Transfer of lands appurtenant to or adjoiningreligious institutions prohibited except in special cases:(1) Notwithstanding anything contained in section 34,no trustee of a religious institution shall lease ormortgage with possession or grant a licence for theoccupation of-(a)any land belonging to the religious institutionwhich is appurtenant to or adjoins the religiousinstitution, or any sacred tank, well, spring or watercourse, appurtenant to the religious institution whethersituated within or outside the precincts thereof, or(b) any space within or outside the prakarams,mantapams, courtyards or corriodors of the religiousinstitution;Provided that nothing contained in this sub –sectionshall apply to the leasing or licensing of any such land orspace for the purpose of providing amenities to pilgrims orof vending flowers or other articles used for worship or ofholding for specified periods, fairs or exhibitions duringfestivals connected with the religious institution.(2) Any lease or mortgage with possession or licence incontravention of the provisions of sub-section (1) shall benull and void.(3) Notwithstanding anything contained in sub –section(1) or (2), (The Commissioner) may sanction the lease ormortgage with possession or granting of a licence for theoccupation of any such land or space as is mentioned in https://hcservices.ecourts.gov.in/hcservices/ sub-section (1) and situated outside the precincts of areligious institution for any purpose other than a purposementioned in the proviso to sub-section (1).” 23. The above said section imposes an embargo on the Trustee ofthe religious institution from leasing out, mortgaging any landbelonging to religious institution, which is appurtenant or adjoiningthe religious institution or any space within or outside the prakaramor mantapam except it is for the purpose of providing amenities tothe pilgrims. Of course, Section 77(3) empowers the Commissioner togive permission for the purpose otherwise than the amenities, and insuch an event, Section 77(3) has to be read along with Section 34(1)of the Act and consequently, the Commissioner has to call forobjection before deciding about the lease. Admittedly, these twoprovisions have not been followed. Even as submitted by the learnedAdditional Advocate General, such a situation has not yet arisen andit is only at the preliminary stage. If that is the case, it becomespowers of the Government to approve such unique Scheme either by wayof making Rules or by issuing notification by placing it on the tableof the Legislative Assembly. Section 116(3) of the Act enables suchnotification, which is as follows:“Section 116(3). All rules made and all notificationsissued under this Act shall as soon as possible after theyare made or issued, be placed on the table of (thelegislative assembly) and shall be subject to suchmodifications by way of amendment or repeal as (thelegislative assembly) may make either in the same session orin the next session.” 24. A reading of Section 116(3) enables the proposal or a Schemelike that of the novel Scheme sought to be introduced in the presentcase to be placed before the Assembly for the elected representativesto take a collective decision. Mere making of statement by theHon’ble Minister on the floor of the Assembly is not sufficient tocomply with the requirement of Section 116(3) of the Act. Section 34is totally different from Section 116. Inasmuch as, admittedly,Section 34 or 77 is not applicable to the facts of the presentcase, as submitted by the learned Additional Advocate General,certainly it would come under the rule making power of the Governmentunder Section 116 of the Act and this Scheme being a new one, is notcovered under any of the provisions of the Act, unless and until theGovernment grants sanction for such a Scheme, whatever may be thelaudable object, such Scheme cannot be held to be a lawfullyenforceable Scheme. https://hcservices.ecourts.gov.in/hcservices/

25. At the risk of repetition, it is to be reiterated that, it isnot the monetary benefit to the temple which alone is relevant, butacquiring such monetary benefit to the temple must also be as per theprovisions of the Act. The contention of Mr.R.Thiagarajan, learnedsenior counsel for respondents 4 and 5 by comparing it to thecottages in Thirumala Thirupathi Devasthanam, is not acceptable. Itis not known, under which policy or the regulations, such cottageshave been constructed. In the absence of any such rules placed beforethis Court, inasmuch as the temple concerned is governed by theprovisions of the Tamil Nadu Hindu Religious and Charitable EndowmentAct, 1959, I do not agree with the contention of the learned seniorcounsel for the respondents that it is merely a donation Scheme,under which the donation, which is not unknown donation, is to becollected for the purpose of the temple because, calling for donationfor commercial purpose requires a statutory approval, apart fromtransparency. 26. There is another issue to be decided, as to whether theCommissioner can decide and give the entire constructed area to asingle individual, when admittedly the entire complex is going toconsist of many commercial shops, simply because it isadministratively inconvenient. In any event, in democracy, it is forthe Government and not for the second respondent Commissioner or the4th and 5th respondent Trustees to decide as to whether suchmonopolisation can be given to a particular individual, whenadmittedly the temple is under the control of the Hindu Religious andCharitable Endowment Department. Therefore, looking into any angle, Iam of the considered view that unless and until the procedurecontemplated under the Act is followed, viz., statutory sanction bythe State Government, such proposed Scheme under the impugned ordersor by way of advertisement issued in the Daily Thanthi dated16.02.2011 has no legal basis to be implemented.27. Accordingly, the impugned orders of the second respondentdated 21.12.2010 and 14.02.2011, including the advertisement issuedin Daily Thanthi on 16.2.2011 in respect of ArulmiguMadanagopalaswamy Thirukoil, Madurai, calling for donation forleasing out the commercial complex to be constructed, stand set asideand the writ petition is allowed. However, as per the provisions ofthe Act, it is always open to the Government to take appropriateaction in the manner known to law, if so advised. No costs. https://hcservices.ecourts.gov.in/hcservices/ Connected miscellaneous petitions are closed.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarKhTo1.The the Secretary to Government State of Tamil NaduReligious Endowment DepartmentFort St.George, Chennai 600 009.2.The CommissionerHindu Religious Endowment DepartmentFort St.George, Chennai 600 009.3.The Joint CommissionerHindu Religious Endowment DepartmentMadurai.4.The Executive Officer Arulmigu Madanagopalaswamy ThirukoilMelamasi Street, Madurai 1.5.ThamburajChairman Board of TrusteesArulmigu Madanagopalaswamy ThirukoilMelamasi Street, Madurai 1.+1 CC to Mr.R.Thiagarajan, Advocate, S.R.No.3197 1 cc To The Government Pleader, SR.32078+1 CC to Mr.V.Selvaraj, Advocate, S.R.No.32049P.D.Order in W.P.No.8270 of 2011SP(CO)SRA(9/6/2011)