BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 23/10/2007 CORAM THE HONOURABLE MR.JUSTICE G.RAJASURIA W.P.No.8327 of 2005 and W.P.M.P.No.9017 of 2005 N.A.Alihan ... Petitioner Vs 1.The Commissioner, Hindu Religious and Charitable Endowments Board, Chennai - 600 034. 2.The Joint Commissioner, Hindu Religious and Charitable Endowments Board, Madurai. 3.Arulmigu Dhrowpathy Amman Thirukovil, represented by its Hereditary Trustee, Thenkarai, Periyakulam Town and Taluk, Theni District. ... Respondents Prayer Petition filed under Article 226 of the Constitution of India, to issue a Writ of Certiorarified Mandamus calling for the records relating to the order made in Na.Ka.No.21979/2004/M1 dated 18.12.2004 passed by the first respondent in confirming the orders dated 01.01.2004 and 03.07.2004 passed by the second respondent and quash the same and direct the respondents to fix the monthly rent of the petitioner shops bearing Door Nos.54, 55 and 56, Kadai Veedhi, Tenkarai, Periyakulam in terms of G.O.Ms.No.353, Tamil Development, Culture and Religious Endowments Department dated 04.06.1999 and consequently refund the excessive amount collected from the petitioner. !For Petitioner ... Mr.G.Ethirajulu ^For Respondents ... Mr.So.Paramasivam Special Government Pleader (Writs) for R1 and R2. Mr.B.Bommayan for R3. :ORDER
This Writ petition is focussed to get issued a Writ of Certiorarified
Mandamus calling for the records relating to the order made in
Na.Ka.No.21979/2004/M1 dated 18.12.2004 passed by the first respondent in
confirming the orders dated 01.01.2004 and 03.07.2004 passed by the second
respondent and quash the same and direct the respondents to fix the monthly
rent of the petitioner shops bearing Door Nos.54, 55 and 56, Kadai Veedhi,
Tenkarai, Periyakulam in terms of G.O.Ms.No.353, Tamil Development, Culture and
Religious Endowments Department dated 04.06.1999 and consequently refund the
excessive amount collected from the petitioner.
2. Heard both sides.
3. The facts giving rise to the filing of this petition as stood exposited
from the records would run thus:
Incontrovertibly and indubitably, the petitioner is a lessee under the
third respondent in respect of three shops. The petitioner was paying Rs.300/-
per mensum as rent for each shop concerned. While so, the third respondent vide
his communication dated 01.01.2004, fixed the revised rent at the rate of
Rs.600/- for two shops and Rs.560/- for one shop with retrospective effect so to
say, with effect from 01.11.2001. It so happened that the petitioner sent a
petition to the Chief Minister’s Cell of Tamil Nadu, which in turn forwarded the
same to the Commissioner, Hindu Religious and Charitable Endowments Board,
Chennai – 600 034 for consideration and the Commissioner in turn communicated
vide letter dated 27.12.2004, to the petitioner that since the revised rent was
fixed as per G.O.Ms.No.353, dated 06.03.1999, no further analysis is required.
4. It is also the grievance of the petitioner that subsequently the
Executive Officer, the third respondent further revised the rents as Rs.660/-
per mensum each for two shops and Rs.616/- for yet one other shop with effect
from 01.11.2001.
5. Being aggrieved by and dissatisfied with, the method and manner in
which the re-fixation of rents were effected by the third respondent, this writ
petition is focussed.
6. Whereas the learned Government Pleader as well as the learned Counsel
for R.1 to R.3 in unison, would contend that in commensurate with the
G.O.Ms.No.353 dated 04.06.1999, the third respondent revised the rents; there is
nothing wrong in giving retrospective effect to it; no regular appeal was filed
by the petitioner before the Commissioner and as such, he is having no right to
file this writ petition.
7. The point for consideration is as to whether the third respondent
properly dealt with the matter in fixing the rents and that too with
retrospective effect and whether the appellate authority, the Commissioner, who
was directed by the Government to deal with the representation of the
petitioner, dealt with it in accordance with law?
The Point:
8. The perusal of the G.O.Ms.No.353 dated 04.06.1999, would show that
broad guidelines were given by the appropriate authority under the Hindu
Religious and Charitable Endowments Act, so as to enable the Trustees/Executive
Officers concerned to exercise their power of fixing rent under Section 34(A) of
the Hindu Religious and Charitable Endowments Act.
9. It is a fact that the third respondent in accordance with the aforesaid
G.O.Ms.No.353 dated 04.06.1999, proceeded to act, but he fixed the rent with
retrospective effect. But, this aspect has not been considered by the
Commissioner also.
10. The grievance of the petitioner as aired by the learned Counsel for
the petitioner is that the petitioner is kept in the dark relating to what was
the Market Value prevailing in Periyakulam area and how the mandates of the said
G.O was implemented by the third respondent.; and that there are no details
furnished etc.
11. The perusal of the records would show that even though the petitioner
has not filed a regular appeal within thirty days before the Commissioner as
contemplated under Section 34(A)(iii) of the Act, yet the Chief Minister’s cell
thought fit to refer the matter to the Commissioner who is the appellate
authority relating to fixation of rent, but the appellate authority instead of
giving opportunity of being heard, simply as stated supra, rejected it by
referring to the aforesaid G.O.
12. I recollect the maxim ‘obscurum per obscurius’ [explaining the obscure
by means of the more obscure.] The petitioner states that he was in the dark
relating to the method and manner of fixation of fair rent fixed by the third
respondent, nevertheless the appellate authority by way of adding fuel to the
fire, in referring to the aforesaid G.O., rejected the petitioner’s
representation.
13. There is considerable force in the submission made by the learned
Counsel for the petitioner that the petitioner is having the right of hearing
before the Commissioner who is the appellate authority.
14. Hence, in the facts and circumstances of the case, I would like to
pass the following direction:
The appellate authority namely the Commissioner shall treat that
representation itself as an appeal and issue notice to the petitioner as well as
to the third respondent and hear them relating to the method and manner in which
such rent was fixed and he shall also consider the legality of having fixed the
fair rent with retrospective effect and accordingly, pass orders and communicate
the same to him. The entire process shall be completed within a period of two
months from the date of receipt of a copy of this order.
15. In the result, this writ petition is disposed of. Consequently,
connected W.P.M.P.No.9017 of 2005 is also closed. No costs.
rsb
To
1.The Commissioner,
Hindu Religious and Charitable Endowments Board,
Chennai – 600 034.
2.The Joint Commissioner,
Hindu Religious and Charitable Endowments Board,
Madurai.
3.Arulmigu Dhrowpathy Amman Thirukovil,
represented by its Hereditary Trustee,
Thenkarai, Periyakulam Town and Taluk,
Theni District.