Tirupur Lorry Urimaiyalargal Sangam 23 Sababathypuram Tirupur Coimbatore District 641 601 rep. By its President C.N.Ramasamy. .. Petitioner in both the WPs.
vs.
1.The Joint Commissioner HR & CE Department Coimbatore.
2.The Assistant Commissioner HR & CE Department Coimbatore.
The writ petitioner in both the cases is one and the same viz., Tiruppur Lorry Urimayalargal Sangam. While W.P.No.30560 of 2007 challenges the order of the third respondent dated 16.6.2007 under which the third respondent has demanded an amount of Rs.97,72,637/- from the petitioner towards arrears of lease/rental amount and for direction to the respondents to renew the lease in respect of landed property to an extent of 125 x 160 = 20,000 sq. ft. situated in Thottipalayam village, Tiruppur belonging to the third respondent, W.P.No.37095 of 2007 is for direction against the 2nd and 3rd respondents, the Joint Commissioner, Hindu Religious and Charitable Endowments Department, Coimbatore and the Assistant Commissioner, Hindu Religious and Charitable Endowments Department, Coimbatore to implement and rework the arrears of rent as per G.O.(Ms.) No.456, TDRE & I (RE.4-2) Department dated 9.11.2007.
2. Originally both the writ petitions were dismissed as withdrawn by order dated 11.2.2008, on the counsel for the petitioner seeking permission to withdraw the writ petitions. However, on the applications filed by the petitioner Sangam for the purpose of setting aside the order dated 11.2.2008, this Court by order passed in M.P.Nos.2 of 2008 in the respective writ petitions dated 19.11.2008, has reopened the matter by allowing the above M.Ps. and setting aside the earlier order of dismissal dated 11.2.2008, and both the writ petitions were heard afresh.
3. It is also relevant to point out at this stage that the respondent Department has filed a suit for possession in respect of the land stated above in O.S.No.627 of 1996 on the file of the District Munsif, Tiruppur. By judgement dated 22.10.2003, the learned trial Judge has decreed the suit by directing the petitioner to vacate the suit premises and hand over vacant possession. The first appeal filed by the petitioner in A.S.No.17 of 2004 on the file of Sub Court, Tiruppur was dismissed on 29.4.2008. The second appeal filed in this Court in S.A.No.1092 of 2008 against the said concurrent judgements of both the courts below also came to be dismissed by judgement and decree dated 1.9.2008. It is also seen that the review application filed against the judgement in Review Application No.148 of 2008 in S.A.No.1092 of 2008 came to be dismissed on 5.12.2008, thereby confirming the trial Court decree directing the petitioner to hand over the possession to the third respondent. However, Mr.A.E. Chellaiah, learned senior counsel for the petitioner submits that as against the said judgement, an SLP has been filed in the Supreme Court and the same is pending. Be that as it may, the said proceedings are entirely different and in these writ petitions, we are not concerned about the suit for possession filed by the third respondent and it is always for the respondents to take action as per the judgement and decree in accordance with law.
4. In these cases, we are concerned only with the quantum of rent which has been claimed in the impugned order in one of the writ petitions as rental amount which is disputed by the petitioner Sangam. The petitioner Sangam is a society registered under the Societies Registration Act. It is stated that the society was constituted for the purpose of transporting essential commodities to the market and other places having public access apart from transporting the exporting knit-wears. In addition to that, the petitioner Sangam has decided to establish a retail petrol outlet and an extent of 20,000 sq. ft. in Thottipalayam village, Tiruppur belonging to the third respondent temple was leased out to the petitioner by the second respondent on 1.4.1983 at the rate of Rs.2,700/- per annum. According to the petitioner, the lease was renewed once in three years with an increase of lease by 10% and the lease amount ending March, 1996 was revised and increased to Rs.12,178/-. According to the petitioner, the petitioner Sangam has been paying the lease amount till 1996. It is stated that when the petitioner has applied for renewal of lease in 1996 for a further period of three years, the third respondent attempted to dispossess the petitioner unlawfully. In those circumstances, the petitioner filed O.S.No.136 of 1996 on the file of District Munsif, Tiruppur for permanent injunction. According to the petitioner, the rent sent to the respondents was refused and a demand draft sent to the Commissioner of Hindu Religious and Charitable Endowments Department, Chennai was also returned and the petitioner filed an application before the Court for deposit of rent. It was, thereafter, the third respondent has filed the above suit for possession.
5. Despite the filing of the suit for possession and the decree having been granted which has been subsequently confirmed as stated above upto this Court, the petitioner continues to be in possession. It is stated that the third respondent has received part payment of rent in April 2005. It is stated that the third respondent has worked out the arrears from 1.4.1996 till March, 2007 to Rs.14,315.19. However, the third respondent subsequently issued the impugned demand calculating the amount of arrears at Rs.97,72,637/-. According to the petitioner, the calculation is not correct. It is also the case of the petitioner that the petitioner is not using leased property for any profitable purpose and therefore, the respondents should have fixed a reasonable rent.
6. The Executive Officer of the temple in the common counter affidavit filed in these writ petitions stated that the temple is under the administrative control of the Joint Commissioner, Hindu Religious and Charitable Endowments Department, Coimbatore and the petitioner Sangam was originally inducted as a tenant by the then hereditary trustee in the year 1983 and the lease was subsequently extended from time to time upto the year 1993. It is also stated that the lease agreement was also entered between the temple and the petitioner in June, 1993 for a period of three years with effect from 1.4.1993. It is stated that even though the said lease was not approved by the Commissioner, Hindu Religious and Charitable Endowments Department, Chennai as required under the Hindu Religious and Charitable Endowments Act, 1959 (for short, 'HR & CE Act') and there was no legal agreement, the petitioner was permitted to use the land and the rent was also received upto March, 1996.
6(a). The temple issued a notice on 12.3.1996 to vacate and hand over possession by the end of March, 1996 stating that the temple is not willing to extend the lease any further to the petitioner Sangam. Since there was no response, the temple had to file the suit for possession, which was decreed on 22.10.2003 and the suit filed by the petitioner Sangam for injunction was dismissed on 26.3.2004. It is stated that an execution petition was filed in E.P.No.70 of 2006 and an application filed by the petitioner in E.A.No.74 of 2007 for the stay of decree was also dismissed and the execution petition was ordered by directing delivery on 28.1.2008. The appeal filed against the original decree was dismissed on 26.7.2005 for non-prosecution and the matter was prolonged by the conduct of the petitioner. In the revision filed by the petition in C.R.P.No.935 of 2008 against the order of dismissal of stay petition by the executing Court in E.A.No.74 of 2007 in E.P.No.70 of 2006 in O.S.No.627 of 1996 dated 21.1.2008, this Court has directed the first appellate Court to dispose of the application for restoration of appeal and ultimately the appeal was restored and as per the direction in C.R.P., the appeal by the petitioner was heard and dismissed on merits on 30.4.2008.
6(b). It is the case of the respondents that the impugned proceedings in W.P.No.30560 of 2007 is only a calculation sheet given by the temple to the petitioner Sangam at the request of the petitioner Sangam. The said calculation was made based on G.O.Ms.No.353, dated 4.6.1999 which was implemented only from 1.11.2001. It is the case of the respondents that the impugned calculation sheet itself was prepared on the basis of G.O.Ms.No.353, dated 4.6.1999 and also after taking into consideration G.O.No.456, Tamil Development and Hindu Religious and Charitable Endowments Department, dated 9.11.2007. It is the case of the respondents that after termination of tenancy especially after the suit filed by the respondents for possession was decreed, the petitioner is only a trespasser. It is also clearly stated in the counter affidavit that the temple is interested in recovery of suit property from the petitioner Sangam.
6(c). It is also stated that W.P.No.37095 of 2007 to rework the calculation of arrears so as to enable the petitioner to renew the lease is not maintainable. The temple being the lessor cannot be compelled by the petitioner in the matter of renewal of lease. It is also stated that while W.P.No.30560 of 2007 was admitted on 20.9.2007, the order of interim stay was granted on condition that the petitioner should pay an amount of Rs.40 lakhs within eight weeks, but the petitioner has not paid any amount.
7. It is also relevant to incidentally point out that when M.P.No.2 of 2008 in each writ petition was taken up, this Court after hearing the learned senior counsel for the petitioner and the learned counsel for the respondents, by order dated 13.11.2008, directed the petitioner to pay an amount of Rs.75 lakhs by way of demand draft. The petitioner was not prepared to pay the amount on the ground that the calculation was not correct, but the learned senior counsel appearing for the petitioner submit that the petitioner is always prepared to pay the agreed amount. However, Mr.T.Chandrasekaran, learned Special Government Pleader appearing for the temple would submit that the temple is interested only in taking possession and as far as the right of the respondents to recover the arrears of rent amount is concerned, separate proceedings will be initiated. It was on that basis, the said M.Ps. stood allowed and the writ petition were heard on merits.
8. Mr.A.E.Chellaiah, learned senior counsel appearing for the petitioner while admitting that the issue involved in this case is contractual between the petitioner and the third respondent temple, would submit that still the writ petitions are maintainable by relying upon the judgement in R.Raghunathan vs. The Executive Officer, Sri Marutheeswarar Temple, Thiruvanmiyur & 2 Others ( 2005 (2) LW 761 ). According to him, the respondents have taken different stands at different times regarding quantum of rent and while in the letter dated 11.6.2007 the demand made was Rs.97.72 lakhs, the working sheet dated 14.12.2007 given by the third respondent states the arrears of rent as Rs.62.62 lakhs. According to him, the public authority has followed different yardstick at different times in respect of quantum of rent and it is the decision making process which is being question here and therefore, the writ petitions are maintainable as per the judgement of the Supreme Court in M/s.Style (Dress Land) vs. Union Territory, Chandigarh ( AIR 1999 SC 3678 ). Relying upon the judgement in Food Corporation of India and another vs. Seil Ltd., and others ( 2008 (3) SCC 440 ), he would also submit that even in respect of contractual matters, if an element of public law is involved, and for the purpose of rendering equity, the writ petition is maintainable. He would also rely upon the judgement in The Assistant Commissioner of Income-tax, Company Circle-I, Chennai vs. Apollo Hospitals Enterprises Ltd., ( 2008(2) CTC 1 ) apart from Jyoti Sanjeev, Proprietor, Jyoti Transport and Jay Jyoti Gas Agency, Ahmedabad vs. Bharat Petroleum Corporation Ltd., Hariyala & Another [ (AIR 2008 (NOC) 2762 (Gujarat) ]. According to him, merely because the issue involved is contractual, it would not affect the right of the petitioner to approach this Court under
Article 226 of the Constitution of India. He would submit that the agreement entered in 1993 is perfectly valid since the approval of the Commissioner is required only in cases where the lease period exceeds five years. He would submit that the rent was fixed by the Committee which according to him, was as per Section 34A of the HR & CE Act and based on that, by a communication dated 26.12.1994 the third respondent directed for the payment of Rs.50,000/- per annum as rent. According to him, as per the calculation of the petitioner, the rental arrears due from the petitioner would be Rs.7,16,188/- and even a part of the said amount, viz., Rs.5 lakhs was sent to the Special Commissioner and Commissioner, HR & CE, Chennai, which was returned to the counsel for the petitioner on 3.12.2008. It is also his submission that on the northern side of the property there was an encroachment by third parties and it was the petitioner who helped to remove the said encroachment and the petitioner is not at fault in payment of rent and therefore, according to him, the calculation memo which is impugned in one of the writ petitions has to be set aside and a direction has to be given to renew the lease.
9. On the other hand, Mr.T.Chandrasekaran, learned Special Government Pleader appearing for the respondent Department has made it clear that as stated in the counter affidavit the temple is not willing to extend the lease in favour of the petitioner. The writ petition is only a dilatory tactic for the purpose of postponing the execution of the decree especially after the review application was dismissed on 5.12.2008. It is also submitted that in fact after the dismissal of the second appeal, the writ petitioner has filed another writ petition in W.P.No.21866 of 2008 to consider the representation dated 29.8.2008 with an interim application for injunction and the said writ petition came to be dismissed on 6.9.2008 and even without informing the same to this Court, the present writ petitions have been proceeded with. It is also his case that the impugned proceedings in W.P.No.30795 of 2007 is only a calculation memo and it is not a demand. In any event, it is his submission that the calculation itself is based on the Government Order and therefore, there is no illegality in the same. He would rely upon the judgement of a Division Bench of this Court in R.Raghunathan vs. The Executive Officer, Sri Marutheeswarar Temple, Thiruvanmiyur & 2 Others ( 2005 (2) LW 761 ) to substantiate his contention that the writ petitions are not maintainable. It is his further submission that the petitioner Sangam which has suffered a decree for possession cannot maintain the present writ petitions.
10. I have heard the learned senior counsel for the petitioner and the learned Special Government Pleader for the respondents and perused the entire records.
11. The judgement of the Supreme Court in M/s.Style (Dress Land) v. Union Territory, Chandigarh (AIR 1999 SC 3678) relates to the capital of Punjab (Development and Regulation) Act, 1952 which enables the Chandigarh administration to lease out the property. In respect of award of interest on the amount of arrears of rent, the Supreme Court, while holding that it is not illegal, however, found that 18% interest is excessive and hence, modified it into 15%. It is true that the Hon'ble Supreme Court has held that judicial review of administrative orders which are against the natural justice is permissible, which is in the following words:
"Even the administrative orders and not quasi judicial are required to be made in a manner in consonance with the rules of natural justice, when they affect the rights of the citizens to the property or the attributes of the property. While exercising the powers of judicial review the Court can look into the reasons given by the Government in support of its action but cannot substitute its own reasons. The Court can strike down an executive order, if it finds the reasons assigned were irrelevant and extraneous. The Courts are more concerned with the decision making process than the decision itself."
11 (a). However, in that case, in respect of awarding of interest there was a stay by the Court and it was held that when the said stay cannot be presumed to be conferment of additional right upon the litigating party, the direction of the High Court to pay interest is not opposed to public policy or interest of justice, but only interfered with the quantum of interest by reducing the same to 15% from 18%. The operative portion of the judgement is as under:
"Regarding awarding of the interest by the High Court for the period of stay it is argued that as in Sahib Singh's case, no such direction was issued, the appellants could not be burdened with the liability of paying the interest and that at the rate of 18% per annum was excessive and exorbitant. It is settled principle of law that as and when a party applies and obtains a stay from the Court of law, it is always at the risk and responsibility of the party applying. Mere passing of an order of stay cannot be presumed to be the conferment of any additional right upon the litigating party. This Court in Shree Chamundi Mopeds Ltd. v. Church of South India Trust Asscn., (1992) 3 SCC 1: 1992 AIR SCW 1517: (AIR 1992 SC 1439), held that the said portion of order by the Court mean only that such order would not be operative from the date of its passing. The order would not mean that the order stayed had been wiped out from existence. The order of stay granted pending disposal of a case comes to an end with the dismissal of substantive proceeding and it is the duty of the Court in such cases to put the parties in the same position they would have been but for the interim orders of the Court. Again in Kanoria Chemicals and Industries Ltd. v. U.P. State Electricity Board (1997) 5 SCC 772, the Court held that the grant of stay had not the effect of relieving the litigants of their obligation to pay late payment with interest on the amount withheld by them when the writ petition was dismissed ultimately. Holding otherwise would be against public policy and the interests of justice. In case law Kashyap Zip Industries v. Union of India (1993) 64 ELT 161, interest was awarded to Revenue for the duration of stay under Court's order, since the petitioners therein were found to have the benefit of keeping back the payment of duty under orders of the Court.
14. The High Court was, therefore, not wring in directing the payment of interest on the amount of arrears of rent for the period when the stay order was obtained till the period the writ petitions were dismissed. We, however, feel that awarding of interest @ 18% per annum from the aforesaid period was on the excessive side. The respondent-authority could not be equated with private commercial institutions and conferred with an amount of compensation in the form of interest which, in the judicial parlance, may amount to penalty, despite the fact that the persons found to have jeopardised the process of law were rightly held liable to compensate the respondent-authority by way of interest. In our opinion 15% per annum interest for the aforesaid period would have been just and proper. We, however, agree with the findings of the High Court that the respondents are free to charge appropriate interest on the amount of arrears of rent between 1.3.1992 to the date when the stay orders were passed by the High Court. We are sure that in determining such rate of interest the respondent-authority would act fairly and justly."
The above said judgement relied upon by the learned senior counsel is of no help to the petitioner's case because, the case on hand is not a case of mere payment of interest for belated payment, but the dispute relates to the rent itself.
12. Further, the judgement of the Supreme Court in Food Corporation of India v. Seil Ltd. [(2008) 3 SCC 440] on which reliance was placed by the learned senior counsel is also not helpful to the petitioner's case. That was a case relating to the contract for supply of sugar based on Essential Commodities Act, 1955 and when the payment to supplier was withheld the question of maintainability of the writ petition arose, in which it was held that even though it is contractual, it is amenable to writ jurisdiction since it involves public law element.
12 (a). The Supreme Court held on the facts of that case that there was no disputed question of fact involved and hence, the High Curt is entitled to grant appropriate relief under
Article 226 of the Constitution of India in equity. The relevant portion of the judgement is as follows:
"
Article 14 of the Constitution of India has received a liberal interpretation over the years. Its scope has also been expanded by creative interpretation of the Court. The law has developed in this field to a great extent. In this case, no disputed question of fact is involved.
24. The High Court, in an appropriate case, may grant such relief to which the writ petitioner would be entitled to in law as well as in equity."
On the face of it, the said judgement has no application to the facts of the present case especially in the circumstances that according to the respondents the impugned proceedings is only a calculation memo while the liability to pay the amount is disputed by the petitioner and therefore, it involves certainly a factual question to be decided which cannot be within the purview of this Court while exercising jurisdiction under
Article 226 of the Constitution of India.
13. Further, the judgement of the Division Bench of this Court in The Assistant Commissioner of Income-tax, Company Circle-I(1) v. Apollo Hospitals Enterprises Limited (2008 (2) CTC 1) on which reliance was placed by the learned senior counsel is also of no use to the petitioner. That was a case where notice of reassessment was issued under the Income-tax Act on the alleged loss of Rs.11,60,29,077/- as escaped assessment and the Division Bench has held that necessary disciplinary action should be taken against the officials who are responsible for their lethargic attitude which is as follows:
"Officers of the appellant at the helm of affairs at the relevant point of time shall be made responsible for their lethargic attitude in discharging their official duty and for their dereliction in duty. Therefore, we direct the appellants to initiate necessary disciplinary proceedings against the officers who are responsible for availing of such illegal set off by the respondent leading to loss of revenue to the State and report compliance to this Court within twelve weeks from the date of receipt of a copy of this judgement."
Certainly if the officials of the respondents have decided to forgo arrears of rent liable to be paid by the petitioner due to their lethargic attitude, such direction can be issued against the officials, but it is not known as to how such direction would be helpful to the petitioner in respect of its claim made in the writ petition especially when the petitioner is challenging the impugned calculation memo and also seeking for renewal of lease.
14. In the context of the decision by the Civil Court in respect of handing over possession by the petitioner to the respondents which has been confirmed upto the level of second appeal, it is not open to the petitioner to claim the relief in the nature of a direction in the writ petition to renew the lease in favour of the petitioner. Therefore, there is no difficulty to conclude that the prayer relating to the direction for renewal of lease is not maintainable in the context of the decision by the Civil Court. However, it is always open to the petitioner to work out its remedy after the Hon'ble Apex Court disposes the S.L.P. said to have been filed against the decision of this Court in the second appeal.
15. As correctly pointed out by the learned Special Government Pleader for the respondents, when the present writ petitions were pending before this Court, the petitioner filed another writ petition in W.P.No.21866 of 2008 for direction against the first respondent to consider its representation and that writ petition came to be dismissed on 8.9.2008 with the following observations:
"On the above said contentions, this Court heard the learned Special Government Pleader for the respondents, who has submitted that the petitioner has committed default in paying the rent from 1996 onwards, which, as on date comes to the tune of Rs.1,00,00,000/- and that the petitioner has filed M.P.No.1/2007 in the said W.P.no.30560/2007 for interim stay, which was also granted by this Court by order dated 20.9.2007 on condition that the petitioner should pay Rs.40,00,000/- within a specified time, but the petitioner has not paid the same, however, both the said writ petitions were dismissed as withdrawn, with the intention to get over the said conditional order and this writ petition is filed to drag on the proceedings in EP.No.70/2006, which is posted to 11.9.2008 before the District Munsif Court and prayed for dismissal of this writ petition.
3. Considering the submissions of the learned Special Government Pleader for the respondents and also the fact that the second appeal filed by the petitioner was dismissed and the EP is pending, even the prayer for disposal of the representations sought for by the petitioner cannot be granted."
16. That apart, on the specific stand of the respondents as it is stated in the counter affidavit that the respondents are not willing to extent the lease and they will work out their remedy for recovery of amount from the petitioner later, and in the light of the specific submission made by the learned counsel for the respondents that what is impugned in W.P.No.30560 of 2007 is only a calculation memo and not a demand and separate action will be taken for the purpose of recovery, I do not think that there is anything to be adjudicated in these writ petitions. As and when the respondents take such steps for recovery of the amount from the petitioner, it is for the petitioner to factually dispute that the quantum claimed by the respondents is not the correct amount, but not now.
17. In Arulmighu Meenakshi Sundareswarar Koil Kadaikarargal Sangam, Madurai v. State (2000(1) CTC 471), P.Shanmugam,J. (as he then was) has held by relying upon various judgements of the Apex Court that the price fixation is not within the province of this Court in the following words:
"The next contention is that there is a discrimination between two groups of shops. But is it seen that as far as shops belonging to the temple under category is concerned, 0.6% of the market value is fixed as the fair rent. Whereas, in respect of the shops inside the temple Praharam, it has been fixed as 0.30% of the market value. Therefore, there is a difference of 100% between the shops belonging to the petitioner in W.P.No.1178 of 2000 and the other writ petitioners. Besides, both are of different categories, namely the shops, of the petitioner in W.P.No.1178 of 2000 are situated inside the Praharam whereas the other shops are situated outside the praharam. Therefore there is a valid classification for reducing the rate of rent on the market value and hence, there is no discrimination. In O.N.G.Commission v. Sangam of N.G.C. Industries of Gujarat, AIR 1990 SC 1851, the Supreme Court held that the corporation is duty bound to act reasonably and fairly and in consonance with the directive principle of State Policy. In this judgement, the Supreme Court was dealing with price fixation of gas. It was held that assuming that since O.N.G.C. is a State instrumentality and the price demanded is susceptible to judicial review, the Court may, where a contract has been entered into, consider the sustainability of the price agreed upon or, where no contract has been entered into, injunct the ONGC from demanding a price for supply, if it is found unreasonable. The Court expressed doubt whether it is upon the Court to direct ONGC to continue the supply indefinitely without a contract and without any price fixation. In the very same judgement, the Supreme Court held that the basis for fixation of price may vary and a reasonable profit margin is permissible in certain cases.
10. In Shri Sitaram Sugar Co Ltd. v. Union of India, AIR 1990 SC 1227, a constitutional Bench of the Supreme Court held that the price fixation is not within the province of the Court. Their lordships have observed as follows:
'Judicial function in respect of such matters is exhausted when there is found to be a rational basis for the conclusions reached by the concerned authority (emphasis added). In the same judgement, it was held that the person assailing classification carries the heavy burden of making a convincing showing that it is invalid because it is unjust and unreasonable in its consequences.' In Corporation of Calcutta v. Smt. Padma Debi, AIR 1962 SC 151, interpreting the Calcutta Municipalities Act, it was held that the rental value cannot be fixed higher than the standard rent under the Rent Control Act. It was held that a contract for rent at a rate higher than the standard rent is not only unenforceable, but also that the landlord would be committing an offence if he collects a rent above the standard rent."
The said judgement has been confirmed by the Hon'ble First Bench of this Court consisting K.G.Balakrishnan, CJ. (as His Lordship then was) and K.Govindarajan,J. in W.A.No.402 of 2000 by judgement dated 13.3.2000.
18. While referring to the constitution of a Committee under Section 34A of the HR & CE Act, K.Chandru,J. in a batch of writ petitions in W.P.No.36833 of 2003, etc., by order dated 2.7.2008 has held that in contractual matters, it is not for the Court under
Article 226 of the Constitution of India to interfere and the person who is aggrieved has a right of appeal under section 34A(3) of the HR & CE Act in the following words:
" 10. The substance of the three decisions rendered by three different Benches are as follows:-
1. The relationship between the petitioners and the temple is only contractual in nature and therefore, the Court cannot interfere with any dispute between them.
2. G.O.Ms.No.353, Tamil Development and Culture, Hindu Religious Department, dated 4.6.1999 is a guideline, which can be validly adopted by subordinate officers and executive officers of the temple.
3. Section 34-A of the Act is only an enabling provision in constituting the committee and the Executive Officers can either act upon such a revision or can by the general guidelines made by the Government.
4. If any party, who is aggrieved by such fixation on the ground that either the guidelines were not followed or it is exorbitant, there is a remedy provided under Section 21 of the Act and therefore, without availing such remedy, this Court cannot entertain the writ petition.
11. Subsequent to the judgement, Section 34-A was introduced by amending Act (Tamil Nadu Act 25/2003). It is also brought to the notice of this Court by Mr.T.Chandrasekaran, learned Special Government Pleader for the respondent-Hindu Religious and Charitable Endowments Department that when Section 34-A was introduced by the Tamil Nadu Act 25 of 2003. The amendment also provided for an internal safeguard for any person aggrieved and that Section 34-A(3) reads as follows:-
" Section 34-A(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."
12. In the light of the above binding legal precedents, it is unnecessary to go into the individual grievances projected in these writ petitions. Once this Court holds that it is in the realm of contract and this Court cannot deal with it under writ jurisdiction and it is not a proper remedy, all writ petitions are liable to be rejected. This will cannot affect the right of the individuals in preferring appeals to the Commissioner.
13. Further, Mr.K.S.Viswanathan, the learned counsel for the petitioner in W.P.No.35396 of 2004 brought to the notice of this Court the judgement of the Supreme Court in FOOD CORPORATION OF INDIA AND ANOTHER VS. M/S. SEIL LTD., & OTHERS reported in 2008 (3) L.W. 16, laying down that it is not as if that in contractual matters, the Court has no jurisdiction. But if the same involves any public law element, the Court has certainly power under
Article 226 of the Constitution of India to deal with such issues. Though the said proposition of law is well founded in the present case in respect of the very same provisions relied upon by the learned counsel for the petitioners, there are three binding precedents of this Court and hence this Court is not to take any other view other than following the decisions referred to earlier. Further, in these cases, there are no public law element involved."
19. In view of the abovesaid discussion, I have no hesitation to conclude that the writ petitions as such are not maintainable and liable to be dismissed. Accordingly, the writ petitions are dismissed, however, with liberty to the petitioner to work out its remedy as and when any recovery proceedings are initiated by the respondents against the petitioner. No costs.
kh To
1.The Joint Commissioner HR & CE Department Coimbatore.
2.The Assistant Commissioner HR & CE Department Coimbatore.
3.The Executive Officer Arulmigu Mariamman Vinayakar Thirukoil Pithcampalayam Tirupur.
4.The Secretary to Government HR & CE Department Fort St.George Chennai 9