CoramThe Honourable Mr v. Jagathambigai Nagar Co-OperativeHouse Site Society

IN THE HIGH COURT OF JUDICATURE AT MADRASDated : 27-3-2007CoramThe Honourable Mr.Justice P.SATHASIVAMandThe Honourable Mr.Justice N.PAUL VASANTHAKUMARW.A.Nos.2077 of 2004W.A.M.P.No.3905, 6730 of 20041.The Executive Officer,Arulmighu Thiruvalleswarar thirukkoil,Padi, Chennai - 50.2.P.S.Shanmugasundaram...Appellants/Respondents 3 & 4Vs.1.Jagathambigai Nagar Co-OperativeHouse Site Society,rep.by its President,No.81-A, Thiruvalluvar Street,Padi, Chennai - 50.2.S.P. Pandian3.S. Veeraragavalu4.A. Thirunavukkarasu5.S. ParthasarathyRespondents 1 to 5/Petitioners6.The State of Tamil Nadu,rep.by the Secretary to Government,Hindu Religious and CharitableEndowments Departments,Fort St.George, Chennai - 9.7.The Commissioner,Hindu Religious and CharitableEndowments Department,chennai - 600 034....Respondents 6 & 7/Respondent 1 & 2This writ appeal is preferred under Clause 15 of Letters Patent againstthe order of this Court made in W.P.No.15527 of 2000 dated 31.3.2004 theWrit Petition filed under Article 226 of the Constitution of India to https://hcservices.ecourts.gov.in/hcservices/ issue a Writ of Mandamus directing the 2nd respondent to filed enquiryunder Section 34 of the HR & CE Act 1959 as directed by this HonourableCourt and consequently sell the house sites at the same rate fixed in 1984to the 135 members of the petitioner society whose houses are given in thetyped sets who are owning the superstructure and occupying and living inthe said temple lands.For Appellant :Mr.Sriram for M/s.A.S.Kailasam &AssociatesFor Respondents 1&4 :No appearanceFor Respondents 2,3&5:Mr.N.G.R.Prasad, for Mr.R.RajaramFor Respondents 6&7 :Mr.T.Chandrasekaran, Spl. GP, HR&CEJUDGMENTN. PAUL VASANTHAKUMAR, J.This writ appeal is directed against the order of the learned singleJudge made in W.P.No.15527 of 2000 dated 31.3.2004 allowing the writpetition filed by the writ petitioners/respondents 1 to 5 herein. Respondents 3 and 4 in the writ petition are appellants herein.2.Parties herein will be described as arrayed in the writ petition.3.The brief facts necessary for disposal of the writ appeal are asfollows.(a)The first petitioner Society is a registered Housing Societyrepresenting the residents of Jagadambigai Nagar, Sakthi Nagar andThiruvalleeswarar Colony. The respondents 3 and 4 are the ExecutiveOfficer and Hereditary Trustees of Arulmigu Thiruvalleeswarar Thirukoil,an ancient temple at Padi in Madras. The temple owns considerable extentof lands comprised in S.No.271, 303/1 to 4, 364/1 to 3 near the temple.(b)The trustees of the temple in the year 1968 decided to give thelands on lease to the individuals, who were desirous of constructingsuperstructure on the said lands at their own costs. Several leaseholdersconstructed superstructures and some of them sold superstructures to thethird parties, giving up their leasehold right in the house sites. Thus,there are original allotees and subsequent purchasers of superstructuresfor whom the first petitioner Society represents.(c)The first petitioner Society requested the respondents to sellthe house sites to the individuals, who are occupying the said housesites. The second respondent decided to sell the lands to the occupantsby proceedings Na.Ka.No.11/76 R2, dated 7.12.1984 followed with GovernmentOrder dated 7.12.1984. Objections were invited and enquiry was conductedas per section 34 of the HR&CE Act, 1959. There was no objection and https://hcservices.ecourts.gov.in/hcservices/ therefore the respondents decided to sell the house sites to theoccupants. The said order dated 7.12.1984 was challenged by some of theindividuals interested in the welfare of the temple in W.P.No.286 of 1986before this Court and during the pendency of the writ petition some of theoccupants obtained sale deed in their favour and from 15.10.1987respondents stopped allotment of house sites through sale.(d)This Court by order dated 11.1.1994 set aside the order of thesecond respondent dated 7.12.1984 and remitted the matter back to theCommissioner, HR&CE for fresh disposal by following the provisions of theAct and Rules. The Commissioner was directed to issue notice to theinterested parties and pass final orders before passing order undersection 34 of the HR&CE Act. The second respondent till date has notpassed any order and also not taken any steps to consider the matterafresh and therefore the first petitioner was taking effective steps tomake the second respondent to conduct enquiry by submitting variousrepresentations from 29.8.1997 to 8.6.2000.(e)No action having been taken by the second respondent in respectof the said representations, petitioners have filed the writ petition forissuing a writ of mandamus directing the second respondent to hold enquiryunder section 34 of the HR&CE Act, 1959, as directed by this Court andconsequently sell the house sites at the same rate fixed in 1984 to 135members of the Society, whose names are given in the typed set of papersand who are owning the superstructure and occupying and living in the saidtemple lands.(f)The contentions raised in the writ petition are that thehereditary trustee in his letter dated 4.3.1998 addressed to theCommissioner, recommended transfer of house sites to the occupants.Similarly, the Deputy Registrar Housing, by letter datted 25.3.1998addresssed to the Commissioner, requested to pass orders for transfer ofthe house sites to the occupants. Society submitted report on behalf of135 member, but no action was taken by the respondents even though about66 persons were already given sale deeds in their favour and the othermembers are discriminated by not extending the same benefit to them.4.The Executive Officer filed counter affidavit wherein it isstated that the State Government has enacted Act 2 of 1996 in order toprotect the temple proeprties and if the temple lands are sold the templewill be left with no income and under Act 2 of 1996, even statutorytenants are prohibited to purchase the temple lands. It is further statedthat the sale of temple property can be effected ony after gettingpermission from the Government under section 34 of the HR&CE Act and theCommissioner shall record his reasons for his satisfaction to recommendthe sale and the said decision can be questioned by the trustees if it isnot for the benefit of the temple and the petitioners cannot seek amandamus to compel the HR&CE Commissioner to sell the lands under section34 of the Act. https://hcservices.ecourts.gov.in/hcservices/

5.The learned single Judge allowed the writ petition on the groundthat the Hereditary and Managing Trustees of the temple will propose tosell the lands and the petitioners were directed to negotiate the saleconsideration with the 4th respondent and make a representation to thesecond respondent Commissioner for the sanction of sale and on receipt ofthe said representation the Commissioner was directed to obtain priorapproval of the Government as contemplated under section 34 of the Act andpass appropriate orders having regard to the necessity for the saleconcluded long back i.e., on 7.12.1984 and that the quantum of saleconsideration alone should be decided for the benefit of the temple.6.The said order of the learned single Judge is challenged by theExecutive Officer and Hereditary Trustee in this writ appeal on the groundthat in the earlier writ petition, this Court in W.P.No.286 of 1986 byorder dated 11.1.1994, having set aside the decision taken to sell theland on 7.12.1984 and remitted the matter to the second respondent forfresh disposal strictly according to the provisions of the Act and Rules,the learned single Judge in the subsequent writ petition is not justifiedto give a positive direction to sell the land and negotiate only withregard to the quantum of the sale consideration.7.The learned counsel for the appellants submitted that the saiddirection impugned in this writ appeal is contrary to the direction issuedearlier in the above referred order and the decision to sell the land hasalready been set aside and therefore denovo consideration under theprovisions of the HR&CE Act has to be made by the department in accordancewith section 34 of the Act and the discretionary right of the departmentcannot be curtailed by the order of this Court and prayed for allowing thewrit appeal. The learned counsel also cited two decisions of this courtreported in 1989 WLR 1 (The Commissioner of HR&CE v. Mary Isabal) and ourdecision made in W.A.No.2524 of 2001 and 253 of 2002 (T.Subbaraman andothers v. Sri Vedanda Desikar Devasthanam, Madras and another) dated20.1.2007.8.The learned counsel for the respondents submitted that thedecision to sell the lands for the interest of the temple was alreadytaken and 66 persons were already given sale deeds and the remainingmembers are also entitled to get same treatment and they are prepared topay the market rate as fixed in the year 1984. The interest of the templewill not be affected since the then Executive Officer and the HereditaryTrustee recommended for the sale of the remaining land and the decision tosell the land having been taken already, the learned judge is right inissuing a direction with reference to the facts of this case and the saidorder is sustainable.9.We have considered the rival submissions made by the learnedcounsel for the appellants as well as the respective respondents. https://hcservices.ecourts.gov.in/hcservices/

10.The point in issue is whether the appellants can be compelled tosell the temple lands to the writ petitioners.11.It is not in dispute that even though a decision to sell thelands was taken as early as on 7.12.1984, the said order was set aside bythis Court in W.P.No.286 of 1986 by order dated 11.1.1994. Reason forsetting aside the order is stated in paragraph 4 of the order, which readsas follows,"4.In view of the stand taken by the 1stRespondent, the order challenged in the Writ Petitionhas to be set aside and the matter has to be remittedback to the 2nd Respndent-The Commissioner, HinduReligious and Charitable Endowments Department, Madras,for fresh disposal according to the provisions of theAct and the Rules framed thereunder. Before passingthe fresh order under Section 34 of the Act, the secondrespondent is directed to issue notice to all theinterested parties, hear their representations and passfinal orders under section 34 of the Act according tothe provisions of the Act and the Rules framedthereunder. The Writ petition is ordered in the aboveterms. No costs."The first petitioner in the present writ petition was respondent NO.7 inthe earlier writ petition. No appeal was filed against the said order ofthe single Judge. Hence the said order of the learned single Judge dated11.1.1994 has become final. The sale of temple land is governed under theprovision of section 34 of the HR&CE Act, 1959, which reads as follows,"Section 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, invitingobjections and suggestions with respect thereto; and allobjections and suggestions received from the trustee orother persons having interest shall be duly considered bythe Commissioner.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 yearsshall, if it contains a provision for renewal for afurther term (so as to exceed five years in the https://hcservices.ecourts.gov.in/hcservices/ aggregate) whether subject to any condition or not bedeemed to be a lease for a period exceeding five years.(2) When according such sanction the Commissionermay impose such conditions and give such directions as hemay deem necessary regarding the utilisation of theamount raised by the transaction the investment thereofand in the case of a mortgage, regarding the discharge ofthe same within a reasonable period.(3) A copy of the order made by the Commissionerthis section shall be communicated to the Government andto the trustee and shall be published in such manner asmay be prescribed.(4) The Trustee may within three months from thedate of his receipt for 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 felt it aside.(4-A) The Government may issue such directions tothe Commissioner as in their opinion are necessary, inrespect of any exchange, sale mortgage or lease of anyimmovable property, belonging to, or given or endowed forthe purpose of, any religious institution and theCommissioner shall give effect to all such directions.(5) Nothing contained in this section shall apply tothe inams referred to in section 41."12.It is not in dispute that for the non-compliance of thestatutory provision, this Court set aside the earlier decision to sell thelands and the department was directed to conduct denovo consideration.Section 34 makes it clear that before sale of the temple property, theremust be a sanction by the Commissioner and there must be a specificfinding by the Commissioner to the effect that the same is necessary orbeneficial to the institution. After arriving at such conclusion by theCommissioner before ordering sanction, the proposed transaction shall bepublished in the prescribed manner, inviting objections, suggestions, withrespect thereto and all objections and suggestions received from thetrustees or other persons having interest are to be duly considerd by theCommissioner. The second proviso to sub-section (1) makes it clear thatthe Commkissioner shall not accord such sanction without previous approvalof the Government. Hence it is clear that the lands belonging toreligious institutions without compliance of the conditions prescribed inSection 34, no sale, mortggage or lease exceeding a period of five yearsis permissible. https://hcservices.ecourts.gov.in/hcservices/

13.A similar issue was considered by us in W.A.No.2524 of 2001 and253 of 2004 by judgment dated 20.1.2007 wherein we have considered thescope of section 34 of the HR&CE Act and held that there cannot be anydirection by this Court to compel the respondents to sell the landsbelonging to religious institution in favour of the petitioners. Weconfirmed the decision of the learned single Judge dismissing the writpetitions by holding that the lessees cannot either compel the religiousinstitutions to sell or seek direction from the competent authority toaccord sanction under section 34 of the Act.14.A Divisiion Bench of this Court in the decision reported in 1989WLR 1 (The Commissioner of HR&CE v. Mary Isabal) in paragraphs 9 and 14held as follows,9.S.34 is a very important section with regardto the power of alienation by the religious orcharitable institution. That section categoricallyprovides that in the absence of sanction any exchange,sale or mortgage and any lease beyond the period offive years whatever may be the case, would be null andvoid. That means, the power to grant sanction iscoupled with a duty to consider and the duty toconsider ordains the Commissioner to have regard to (1)the necessity for sale and (2) whether the sale isbeneficial to the institution. In this case neither ofthese considerations had crept in, or had theCommissioner considered the same. Therefore, thelearned Judge had not found a finding in this regard.Therefore, now to direct, as the learned Judge haddone, would amount to foreclosing the consideration ofthese two vital aspects. For ought one knows thecommissioner may still find that the sale is necessaryor again it is beneficial to the institution. Merelybecause the Assistant Commissiioner in his report dated11.12.1972 has stated that the sale is necessary, itdoes not follow that it would be binding on theCommissioner. Still on the only statutory authorityconferred with the power of sanction, it will have toconsider that the sale is necessary and beneficial tothe institution. The learned Judge had assumed theseaspects in favour of the petitioner in that writpetition having regard to the circumstances of thecase. Further the learned Judge has substituted hisdirection to that of the Commissioner's direction.Therefore, in any event, the direction contained inparagraph 7, commanding the Commissiioner to issuesanction cannot be supported in law."10............11............12............ https://hcservices.ecourts.gov.in/hcservices/

13............14.While granting the sanction, the Commissionerwill have to examine and find out as a fact whetherexchange, sale and mortgage is (1) necessary; and (2)beneficial to the institution. Therefore, grant ofsanction is based on these two important elements. Inorder to find out either necessity or benefit to theinstitution, the Commissioner must have materials.This is where the proviso comes into operation. Theproviso says that objections and suggestions could bereceived not only from the trustees, but also fromother persons having interest, as well. Therefore, fromthe materials placed before the Commissioner, as afact, he has to find out whether it is necessary orbeneficial to the institution. No doubt, he may seekthe aid of the subordinate officer, like the AssistantCommissioner or any other person. But, again, as wepointed out now, because the Commissioner and theCommissioner alone has been constituted the statutoryauthority for the grant of sanction, he will have tofind out, as of fact. Merely because the AssistantCommissioner or the Deputy Commissioner or any otherofficer says that the sale is necessary or beneficialto the institution, that does not mean that theCommissioner will have to accept the report, nor againthat report can be relied on, as though it is asubstitute for his finding. All these precautions weremade because the religious institution is practicallymade the custodian of the property in whose name thealienation is done in disregard of the necessity of theinstitution. The very object of creating the highestauthority in the set-up of the Endowment Board assanctioning authority is of a great legal significance.It is also to be noted in this connection that such apower cannot be delegated by the Commissioner, becauseit is a plenary power. While saying so, we are awareof S.13 of the Act, which speaks of delegation. But weneed not pursue this line of reasoning. All that weendeavour to point out is that this is a safeguard toprevent indiscriminate alienation by the religiousinstitution. If such an alienation takes placecontrary to the provisions of the Act, to make it nulland void ab initio, it would have seriousrepercussions, because after several years one may saythat he had not derived valid title because of the lackof statutory sanctions. It is with this backgroundthat we have to analyse the fact." https://hcservices.ecourts.gov.in/hcservices/

15.As held in the above cited Division Bench decision and also byus in W.P.No.2524 of 2001 & 253 of 2002, and having regard to the factthat the earlier decision to sell the lands dated 7.12.1984 having beenset aside as early as in the year 1994, we are of the view that thelearned Judge is not right in issuing a mandamus to accord sanction to theproposal after negotiating the sale consideration alone and in effect thesaid direction amounts to curtailing the discretion of the statutoryauthorities as contemplated under section 34 of the Act. However, therespondents shall take note of the sale of the lands for 66 personssimilarly placed while taking decision as to whether to sell the lands anymore or not and the benefit of the temple alone should be the criteria andthe same can be decided by the respondents on denovo consideration underthe provisions of the Act as ordered in W.P.No.286 of 1986 dated11.1.1994. The respondents shall comply with the above direction withinsix months from the date of receipt of copy of this judgment.16.The writ appeal is allowed with the above observation and theorder of the learned single Judge is set aside. No costs. Connectedmiscellaneous petitions are closed.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarvrTo1.The Secretary to Government, Hindu Religious and Charitable EndowmentsDepartments, Fort St.George, Chennai - 9.2.The Commissioner,Hindu Religious and Charitable Endowments Department,Chennai - 600 034.1 cc To M/S.A.S.Kailasam Associates, Advocate, SR.19687.2 cc To Mr.R.Rajaram, Advocate, SR.19435.1 cc To The Special Government Pleader (HR & CE), SR.19573.1 cc To The Government Pleader, SR.19413.W.A.No.2077 of 2004 RS(CO)RVL 03.04.2007