14. In the light of the above, all the writ petitions will stand dismissed. All the miscellaneous petitions will also stand closed. The dismissal of the writ petitions will not preclude the petitioners from availing such remedies as are available to them under law. No costs.
15. Since the learned Counsel for the petitioners stated that if statutory remedy as provided under Section 34-A(3) of the Act has to be availed, it has to be filed within thirty days from the date of the impugned order. In the present case, since the matters have been pending for some time, their appeals may be likely to be thrown out on the ground of limitation. To avoid any such contingencies, the Commissioner, Hindu Religious Charitable Endowments Department is hereby directed to entertain if any petition is filed in terms of Section 34-A(3) of the Act, within a period of three weeks from the date of receipt of a copy of this order without reference to the limitation and on their merits. However, this does not mean that the petitioners can refuse to comply with the other provisions of the Act including proviso to Section 34(5) of the Act."
7. Section 34-A of the H.R & C.E. Act is attacked on two grounds. One is that, no opportunity is given to the lessee before the lease rent is fixed and that the opportunity given to the lessee for the first time only in the appeal to the Commissioner is clearly an illusory one and that to satisfy the requirements of natural justice, the party should be given an opportunity at the time of the original proceeding.
8. The other ground of grievance is about the requirement of deposit of entire arrears of lease rent as pre condition for entertaining the appeal or revision. According to the learned counsel, this condition is an onerous condition. The learned counsel for the petitioner submitted that in MARDIA CHEMICALS LTD. v. UNION OF INDIA (2004) 4 SUPREME COURT CASES 311, the Supreme court held that safeguard under Section 17(1) is rendered illusory due to the requirement of pre deposit of 75% of the amount claimed by the secured creditor under Section 17(2).
9. The learned counsel referred to CHEMPLAST SANMAR LIMITED v. THE APPELLATE AUTHORITY, TAMIL NADU POLLUTION CONTROL BOARD - 2008 (4) CTC 793 to support his case that giving an opportunity at the appellate stage will not cure the violation of principle of natural justice at the initial stage.
10. The learned Additional Advocate General submitted that both these grounds are without merit. He submitted that there are several enactments, which require pre-deposit as condition precedent for entertaining the appeal or revision. Appeal is a creature of statute and subject to any condition imposed by the statute, and therefore, the amendment cannot be said to be unconstitutional or ultra-vires.
11. As regards the denial of opportunity, the learned Additional Advocate General submitted that when the section makes it clear that the committee will decide the lease rent on the basis of the market value, there is no question of an arbitrary increase. It is also submitted that most of these lessees have been squatting on temple property for several decades paying a mere pittance as rent and now, the rent is raised in commensurate with the market value. Their grievance is unreasonable. It is actually the temple which has suffered on account of meagre rent paid by all these lessees. However, the learned Additional Advocate General fairly submitted that if the lessees want to submit any documents to decide the quantum of rent, such evidence may be submitted to the committee which will take note of it. He also submitted that necessary instructions will also be issued in this regard.
12. The learned Additional Advocate General also submitted that when Section 34 B of the Act clearly provides that no proceedings to terminate the lease will be initiated without giving lessee an opportunity of being heard, it may not be necessary to give a hearing to the lessee at the time of fixing the lease rent payable.
13. Section 34 A of the Tamil Nadu HR & CE Act, which is challenged reads as follows:-
Section 34-A of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959:
Fixation of lease rent-
(1) The lease rent payable for the lease of immovable property belonging to, or given or endowed for the purpose of, any religious institution, shall be fixed by a Committee consisting of the Joint Commissioner, the Executive Officer or the Trustee or the Chairman of the Board of Trustees, as the case may be, of the religious institution and the District Registrar of the Registration Department in the district concerned taking into account the prevailing market rental value and the guidelines, as may be prescribed and such lease rent shall be refixed in the like manner once in three years by the said Committee.
Explanation For the purpose of this sub section, "prevailing market rental value" means the amount of rent paid for similar types of properties situated in the locality where the immovable property of the religious institution is situated.
34-A (2) The Executive Officer or the Trustee or the Chairman of the Board of Trustees, as the case may be, of the religious institution concerned, shall pass an order fixing the lease rent and intimate the same to the lessee specifying a time within which such lease rent shall be paid.
(3) Any person aggrieved by an order passed under sub-section (2) may, within a period of thirty days from the date of receipt of such order, appeal to the Commissioner, in such form and in such manner, as may be prescribed.
(4). The Commissioner may after giving the person aggrieved an opportunity of being heard, pass such order as he thinks fit.
(5) Any person aggrieved by an order passed by the Commissioner under Sub-section (4) may, within ninety days from the date of receipt of such order, prefer a revision petition to the High Court.
Provided that no appeal or revision shall be entertained under sub section (3) or sub section (5) as the case may be, unless it is accompanied by satisfactory proof of deposit of the lease rent so fixed or refixed, in the account of the religious institution concerned and such amount shall be adjusted towards the lease amount payable by the lesee as per the order passed in the appeal or revision, as the case may be.
34 B . Termination of lease of immovable property (1) The lease of immovable property belonging to or given or endowed for the purpose, of any religious institution shall be liable to be terminated on the non payment of the lease rent after giving a reasonable opportunity of being heard.
(2) No proceeding to terminate the lease shall be initiated if,
i) the time for appeal or revision under sub section (3) or sub section (5) as the case may be, of Section 34-A has not expired, or
ii) the order has been made the subject of such appeal or revision till the disposal of the matter.
(3) On the termination of the lease under sub-section (1), the property shall vest with the concerned religious institution free from all encumbrances and the Executive Officer, the Trustee or the Chairman of the Board of Trustees, as the case may be, of such religious institution shall take possession of the property including the building superstructure and trees, if any.
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 (cited supra), the Division Bench held, "................ 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 original 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. "
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...................... "
15. The 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 34A(2) of the Act. The Government also noted the fact that though 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:-
VERNACULAR (TAMIL) PORTION DELETED
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:-
VERNACULAR (TAMIL) PORTION DELETED
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 to the lessee. By virtue of the circular extracted 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.
18. PLEA REGARDING PRE DEPOSIT: - MARDIA CHEMICALS is strongly relied upon by the learned counsel for the petitioner to show that the condition relating to pre deposit is bad. In MARDIA CHEMICALS, the condition of pre-deposit for filing the proceedings under
Section 17 of the Act was found to be onerous by the Supreme Court which held that though
Section 17 is termed as "appellate proceedings", it is in fact an initial action brought before a forum for any action or measures taken by a party. The Supreme Court observed that "It is the stage of initial proceeding like filing a suit in civil court". It was further held as follows:-
60. The requirement of pre-deposit of any amount at the first instance of proceedings is not to be found in any of the decisions cited on behalf of the respondent. All these cases relate to appeals. The amount of deposit of 75% of the demand, at the initial proceeding itself sounds unreasonable and oppressive, more particularly when the secured assets/the management thereof along with the right to transfer such interest has been taken over by the secured creditor or in some cases property is also sold. Requirement of deposit of such a heavy amount on the basis of a one-sided claim alone, cannot be said to be a reasonable condition at the first instance itself before start of adjudication of the dispute. Merely giving power to the Tribunal to waive or reduce the amount, does not cure the inherent infirmity leaning one-sidedly in favour of the party, who, so far has alone been the party to decide the amount and the fact of default and classifying the dues as NPAs without participation/association of the borrower in the process. Such an onerous and oppressive condition should not be left operative in expectation of reasonable exercise of discretion by the authority concerned. Placed in a situation as indicated above, where it may not be possible for the borrower to raise any amount to make the deposit, his secured assets having already been taken possession of or sold, such a rider to approach the Tribunal at the first instance of proceedings, captioned as appeal, renders the remedy illusory and nugatory.
The Supreme Court further held as follows:-
62. As indicated earlier, the position of the appeal under
Section 17 of the Act is like that of a suit in the court of the first instance under the Code of Civil Procedure. No doubt, in suits also it is permissible, in given facts and circumstances and under the provisions of the law to attach the property before a decree is passed or to appoint a receiver and to make a provision by way of interim measure in respect of the property in suit. But for obtaining such orders a case for the same is to be made out in accordance with the relevant provisions under the law. There is no such provision under the Act.
63..............
64. The condition of pre-deposit in the present case is bad rendering the remedy illusory on the grounds that: (i) it is imposed while approaching the adjudicating authority of the first instance, not in appeal, (ii) there is no determination of the amount due as yet, (iii) the secured assets or their management with transferable interest is already taken over and under control of the secured creditor, (iv) no special reason for double security in respect of an amount yet to be determined and settled, (v) 75% of the amount claimed by no means would be a meagre amount, and (vi) it will leave the borrower in a position where it would not be possible for him to raise any funds to make deposit of 75% of the undetermined demand. Such conditions are not alone onerous and oppressive but also unreasonable and arbitrary. Therefore, in our view, sub-section (2) of
Section 17 of the Act is unreasonable, arbitrary and violative of
Article 14 of the Constitution.
19. So in MARDIA CHEMICALS case, the Supreme Court quashed the condition of pre-deposit of 75% because such a condition was imposed for initiating the original proceedings under
Section 17. In the present case, the requirement of pre-deposit laid down in sub section (5) of Section 34 A is for filing revision or appeal. There is a determination of lease under Section 2 of Section 34 A of the Act and it is only in the appeal proceedings, this pre-deposit is required.
20. The Supreme Court in MARDIA CHEMICAL's case drew the difference between an original and an appellate proceedings by referring to GANGA BAI v. VIJAY KUMAR (1974) 2 SCC 393. The right to file a suit is different from the right of appeal.
"There is an inherent right in every person to bring a suit of civil nature and unless the suit is barred by statute one may, at one's peril, bring a suit of one's choice. It is no answer to a suit, howsoever, frivolous to claim, that the law confers no such right to sue"
21. Appeal is a creature of statute and the authorities are entitled to laid down the conditions subject to which, the appeal will be entertained. There are many enactments which require pre-deposit as a condition for filing appeal, particularly, tax enactments. In VIJAY PRAKASH D. MEHTA v. COLLECTOR OF CUSTOMS (1989) 72 STC 324 and in several other decisions, the Supreme Court has held that the right of appeal can be subjected to certain conditions:-
"The case of the appellants was that they had not gone out of India and had no assets in India. Their passports were impounded at the time of arrest. Their visa had lapsed and could not be renewed. They had no money, hence, the right of appeal could be illusory unless they are permitted to deposit only Rs.60,000 each which they contend they are able to procure with the assistance of their father."
.... .. .... ..... .... ... .....
"............................................ In the instant case the only substantive right is the right of appeal as contemplated under Sections 129A and 129E of the Act and that right is a conditional one and the legislature in its wisdom has imposed that condition. No question of whittling down that right by an alteration of procedure arises in this case.
Right to appeal is neither an absolute right nor an ingredient of natural justice the principles of which must be followed in all judicial and quasi judicial adjudications. The right to appeal is a statutory right and it can be circumscribed by the conditions in the grant."
.... ... .... ... ... ..... ..... .... .... ......
"It is not the law that adjudication by itself following the rules of natural justice would be violative of any right- constitutional or statutory without any right of appeal, as such. If the statute gives a right to appeal upon certain conditions, it is upon fulfilment of those conditions that the right becomes vested and exercisable to the appellant. ................."
For the reasons stated above, the condition requiring pre-deposit is upheld.
22. On behalf of the State, it was contended that
Section 34 B of the Act, which deals with termination of lease affords the lessee an opportunity of being heard. It is clear from a reading of the Section that the right to terminate the lease arises the moment the lessee fails to pay the rent as determined in
Section 34 A of the Act. Therefore, it is no answer to them to say that
Section 34 B of the Act gives them an opportunity and therefore, they are not prejudiced if they are not heard before fixing the lease rent. Hypothetically if an exorbitant lease rent is fixed, then the lessee who is unable to pay the rent, automatically becomes liable to have his lease terminated and at that stage, giving him an opportunity may only be an illusory right.
23. What was challenged in the writ appeal is the requirement of pre deposit. Since, we have held that this is valid, the writ appeal is dismissed. No costs. Consequently, connected MP is also dismissed.
24. As far as the prayer for declaring sub section 2 of Section 34 A of Tamil Nadu Hindu Religious and Charitable Endowment Act 1959 as null and void is concerned, this is also rejected for the reasons already given. Section 34 A(1) shows that the lease rent is fixed by the committee and under sub section (2), the Executive Officer passes an order fixing the rent and also intimates the same. Therefore, so long as sub
section 1 stands, sub section 2 cannot be declared as null and void. Further we have also seen that this Court has also upheld in earlier cases referred in in WP.Nos.8831/2003 etc., batch dated 29.7.2008 the fixation of fair rent based on market value and cost of building, the rate of rent has been declared to be purely contractual excluding writ jurisdiction and the revision of rent once in three years has also been sustained. These orders have been referred to in paras 7,8, 9 and 10 supra, which also show that provisions of Section 34 A have been considered.
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.
26. With the above direction, the writ petition is disposed of. No costs. Consequently, connected MP is closed.
bg To
1. The State of Tamil Nadu rep. By its Secretary to Government, Hindu Religious and Charitable Endowment Dept., Fort St.George Chennai 600 009.
2. The Commissioner Hindu Religious and Charitable Endowment Dept., Nungambakkam Chennai.
3. The Joint Commissioner Hindu Religious and charitable Endowment Dept., Nungambakkam Chennai.
4. The Executive Officer Arulmigu Angala parameswari and Kasiviswanathasway temple.
5. The Secretary to Government of Tamilnadu Law Department Fort St.George Chennai 600 009.
6. The Administrative Officer A/m.Raveeswarar Temple Vyasarpadi, Chennai