ORDER
K. Chandru, J.
1. The petitioner, a practising Advocate at Poonamallee, claiming to be a devotee of Arulmighu Thirukachi Nambigal Varadaraja Perumal at Poonamallee, has filed the present writ petition seeking to challenge the action of the respondent in trying to dispose of the property of the said temple’s deity to the extent of 3.55 acres comprised in Survey No. 115/1A in Poonamallee Village on an outright sale basis to the Poonamallee Municipality for the purpose of constructing a new bus stand.
2. Even though the original prayer was to quash the order dated 11.7.2006 passed by the second respondent Commissioner, Hindu Religious and Charitable Endowment [for short ‘HR&CE] Department by which objections were called for from the public about the proposed sale of the said property under Section 34 of the HR&CE Act [Tamil Nadu Act 22 of 1959], subsequently, by an amendment sought for in M.P. No. 3 of 2006, the petitioner challenged the order dated 06.9.2006 passed by the second respondent, by which the Commissioner has approved the sale of the property after overruling the objection made by the parties and also directed publication in the District Gazette regarding the sale.
3. Initially, the writ petition was directed to be posted before the Division Bench as a Public Interest Litigation. However, the Division Bench, by order dated 11.10.2000, directed the Registry to place the matter before the single Bench and thus, it came to be posted before this Court.
4. I have heard the arguments of Mr. M. Ravindran, learned Senior Counsel leading
Mr. V. Chandrakanthan, learned Counsel appearing for the writ petitioner, Mr. T.
Chandrasekaran, learned Special Government Pleader representing the HRCE Department and Mr. I. Paranthaman, learned Counsel appearing for the Commissioner Muncipality and also perused the records.
5. It is seen from the records that a notification dated 11.7.2006 was issued by the second respondent Commissioner, which was also published in the newspaper including Daily Thanthi dated 18.7.2006. In that notification, it was stated that by accepting the Executive Officer/Joint Commissioner’s recommendation and also the resolution passed by the Thakkar (fit person), the Government had issued G.O.Ms. No. 129, Tamil, Development, Culture and Endowment Department dated 30.6.2006 granting approval for the sale of the land. It is also stated that as per the evaluation fixed by the Divisional Revenue Officer, Thiruvallur, the land was valued at Rs. 181/- per Sqft and by adding 50% on the said value, the property was valued at a sum of Rs. 4,20,22,770/- and it was proposed to sell the land set out in the schedule and any person, who wants to raise objection can send their objections and also appear before the enquiry to be conducted by the second respondent on 10.8.2006.
6. Pursuant to the said advertisement, the writ petitioner had sent a letter dated 19.7.2006 stating that there is a requirement of the land for constructing a bus stand with full infrastructure since the existing bus stand does not have enough parking facility and since the present land is adjacent to the existing bus stand, the said land may be given to the Municipality with a specific clause so as not to construct any commercial complex in that land. His only objection was that, instead of selling the land, it may be leased out on long term basis so that the temple will get permanent income.
7. However, by a detailed order dated 06.9.2006, the Commissioner, after enquiry of the parties, rejected the request made by the writ petitioner as well as one
M. Palanisamy, who had encroached on the temple land and who also raised objections. The second respondent categorically found that the resolution passed by the Thakkar and the recommendation made by the Executive Officer are reasonable and the objection raised by one Palanisamy was not sustainable as he had no interest in the land. With reference to the writ petitioner, his objection was only on the mode of conveying the land rather than any substantive objection. In fact, the second respondent Commissioner said that the sale of the land was much better than leasing it out, because the money derived out of the sale can be deposited on long term basis and there will be a permanent income to the temple. Further, once the land is conveyed to the Municipality, it can be kept free from encroachment.
8. Therefore, he granted approval for sale of the land under Section 34(1) of the HR&CE Act and also stated that registration of the sale deed will be done only after the entire amount is paid and after a notification is published in the Gazette so that any person can apply under Section 34(4) of the Act to the Court within a period of three months. It was further stated that after the appeal period is exhausted, registration can be done by the Temple. A further direction was also given to deposit the entire amount on a long term deposit in terms of the existing orders of the Department. It is this order which is now being challenged by virtue of the amendment made in the writ petition by the petitioner.
9. According to the learned Senior Counsel, the present impugned order is wholly unsustainable as it fails to follow the mandatory provisions of the Act inasmuch as the Government Order was made first, and thereafter as an after-thought, the Commissioner’s consent was obtained. He also stated that since the land belong to the temple and the idol is the owner of the property, public auction must be made for the sale of the property so that it can fetch an higher income. However, this was not the objection made by the writ petitioner before the Commissioner when he participated in the proceedings and this is an improvement over the original objection made by the writ petitioner before the authorities. His only contention as an objector before the authority was that it should be done on a long term lease basis and not as an outright sale.
10. In this context, the learned Senior Counsel drew the attention of this Court to the decision [Chenchu Rami Reddy and Anr. v. The Government of Andhra Pradesh and Ors.] which arose under the provisions of a similar Act in Andhra Pradesh. Under Section 71 of the Andhra Pradesh Charitable and Hindu Religious Endowment Act of 1956, certain pre-conditions under Section 74 were prescribed by the Act on the Government regarding the alienation of any property belonging to the temple. Section 74(1)(c) of the A.P. Act reads as follows:
(1) That the Government must be satisfied that it is in the interest of the institution or endowment to permit the sale of these lands otherwise than by public auction.
(2) That reasons for reaching this satisfaction must be recorded in the order.
(c) Every sale of any such immovable property sanctioned by the Commissioner under Clause (b) shall be effected by public auction in the prescribed manner subject to the confirmation by the Commissioner within a period prescribed:
Provided that the Government may, in the interest of the institution or endowment and for reasons to be recorded therefor in writing, permit the sale of such immovable property, otherwise than by public auction.
11. In that case, without calling for any public auction, by private negotiation, amounts were fixed by the Government and persons who challenged the said auction submitted before the Court that they were willing to purchase the said land at a price four times than what it was offered by the successful allottees. It is in this context in paragraph 6, the Supreme Court observed as follows:
6. We cannot conclude without observing that property of such institutions or endowments must be jealously protected. It must be protected, for, a large segment of the community has beneficial interest in it (that is the raison d’etre of the Act itself). The authorities exercising the powers under the Act must not only be most alert and vigilant in such matters but also show awareness of the ways of the present day world as also the ugly realities of the world of today. They cannot afford to take things at their face value or make a less than the closest-and-best-attention approach to guard against all pitfalls. The approving authority must be aware that in such matters the trustees, or persons authorised to sell by private negotiations, can, in a given case, enter into a secret or invisible underhand deal or understanding with the purchasers at the cost of the concerned institution. Those who are willing to purchase by private negotiations can also bid at a public auction. Why would they feel shy or be deterred from bidding at a public auction? Why then permit sale by private negotiations which will not be visible to the public-eye and may even give rise to public suspicion unless there are special reasons to justify doing so? And care must be taken to fix a reserve price after ascertaining the market value for the sake of safeguarding the interest of the endowment. With these words of caution we close the matter.
12. He also drew the attention of this Court to the decision
[R. Venugopala Naidu and Ors. v. Venkatarayulu Naidu Charities and Ors.]. In that case, the Supreme Court, after referring to the earlier decision cited above, has held in paragraph 13 of the judgment as follows:
Para 13: Sale by private negotiation which is not visible to the public eye and may even give rise to public suspicion should not, therefore, be permitted unless there are special reasons to justify the same. It has further been held that care must be taken to fix the reserve price after ascertaining the market value for safeguarding the interest of the endowment.
13. I do not know as to how these two decisions are helpful to the case of the writ petitioner. In the Andhra Pradesh case, the provisions of law quoted therein are entirely different from the Tamil Nadu HR&CE Act. Further, in that case, there was also an offer to pay higher amount than the one arbitrarily fixed by the Andhra Pradesh Government. In the second case relating to Tamil Nadu, it was not a case which arose under the provisions of the HR&CE Act, but it was on a scheme suit filed under Section 92 CPC. While deciding the matter, one should not lose sight of the provisions of law under which the impugned order came to be passed. It is, therefore, necessary to extract the provisions of Section 34 of the Tamil Nadu HR&CE Act in extenso for better appreciation of the facts of this case:
34. Alienation of immovable trust property.-(1) Any exchange, sale or mortgage and any lease for a term exceeding five years of any immovable property, belonging to, or given or endowed for the purposes of, any religious institution shall be null and void unless it is sanctioned by the Commissioner as being necessary or beneficial to the institution:
Provided that before such sanction is accorded, the particulars relating to the proposed transaction shall be published in such manner as may be prescribed, inviting objections and suggestions with respect thereto; and all objections and suggestions received from the trustee or other persons having interest shall be duly considered by the Commissioner:
Provided further that the Commissioner shall not accord such sanction without the previous approval of the Government.
Explanation.- Any lease of the property above mentioned though for a term not exceeding five years hall, if it contains a provision for renewal for a further term (so as to exceed five years in the aggregate), whether subject to any condition or not, be deemed to be a lease for 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 utilisation of the amount raised by the transaction, the investment thereof and in the case of a mortgage, regarding the discharge of the same within a reasonable period.
(3) A copy of the order made by the Commissioner under this section shall be communicated to the government and to the trustee and shall be published in such manner as may be prescribed.
(4) The trustee may, within three months from the date of his receipt of a copy of the order, and any person having interest may, within three months from the date of the publication of the order, appeal to the Court to modify the order or set it aside.
(4-A) The Government may issue such directions to the Commissioner as in their opinion are necessary, in respect of any exchange, sale, mortgage or lease of any immovable property, belonging to, or given or endowed for the purpose of, any religious institution and the Commissioner shall give effect to all such directions.
(5) Nothing contained in this section shall apply to the inams referred to in Section 41.
14. In fact, this provision has undergone extensive amendment by various amendment Acts. Firstly, by the Tamil Nadu Amendment Act 46 of 1991 and secondly, by the Tamil Nadu Amendment Act 38 of 1998. The power for alienating the property beyond five years was given subject to the Commissioner’s sanction and the manner of sale is also prescribed under the first proviso. The second proviso prescribes that even the Commissioner cannot accord sanction without the previous approval of the Government. Wide powers have been given to the Commissioner, HR&CE Department to impose such conditions as are necessary and it also requires the Commissioner to communicate his order to the Government and the trustees and it should be published in the manner as may be prescribed. Further, the trustees or any person having interest in the matter is given the right to challenge the said action by way of appeal to the Court to modify the order or to set aside the same. Originally, an appeal was made to lie with the Government. Now, by the Amendment Act 38 of 1998 (with effect from 22.01.1999), the power is given to the Court, thereby ensuring judicial review over the action made by the Commissioner.
15. Even before this section was amended, a Division Bench of this Court vide its decision reported in 1989 (1) M.L.J. 83 [The Commissioner of Hindu Religious and Charitable Endowment Department v. Mary Isabal and Anr.] held in paragraph 14 of the judgment which is as follows:
Para 14: While granting the sanction, the Commissioner will have to examine and find as a fact whether exchange, sale, and mortgage is:
(1) necessary; and
(2) beneficial to the institution.
Therefore, grant of sanction is based on these two important elements. In order to find out either necessity or benefit to the institution, the Commissioner must have materials. This is where the proviso comes into operation. The proviso says that objections and suggestions could be received not only from the trustees, but also from other persons having interest, as well. Therefore, from the materials placed before the Commissioner, as a fact, he has to find whether it is necessary or beneficial to the institution.
…
…
All these precautions were made because the religious institution is practically made the custodian of the property in whose name the alienation is done in disregard of the necessity of the institution. The very object of creating the highest authority in the set up of the Endowment Board as sanctioning authority is of a great legal significance. It is also to be noted in this connection that such a power cannot be delegated by the Commissioner, because it is a plenary power. While saying so, we are aware of Section 13 of the Act, which speaks of delegation. But we need not pursue this line of reasoning. All that we endeavour to point out is that this is a safeguard to prevent indiscriminate alienation by the religious institution.
16. Even on the question of the price to be fixed, the Court in paragraph 16 of the very same judgment stated as follows:
Para 16: Price alone may not be a determinative factor. That may be only an aid as to how far it will be beneficial to the institution. But yet whether it is necessary to sell the property by the religious institution, the Commissioner will have to find out, as a fact.
17. However, after the said decision, Section 34 has undergone enormous change wherein the power to grant lease beyond five years has been vested with the State Government and judicial review has been provided over such action by the Court.
18. The petitioner has misconstrued the provision under Section 34 of the HR&CE Act. In fact, a fetter has been put only on the trustee or the Administrative Board from dealing with the property and a complete safeguard has been given since a prior approval has to be obtained by the Government and the Commissioner’s sanction has been made mandatory. In this regard, it is relevant to refer to the decision of this Court reported in 2003 (1) M.L.J. 563
[Basha Sahib v. Valikadapuram Village Kasi Viswanathaswamy Koil and Ors.] wherein in paragraph 7 of the judgment, it has been held as follows:
Para 7: Further, the suit property is the property of the temple. Therefore, neither the trustee nor the manager of the temple has any right to sell the property to any other person. If at all only with the permission of the Commissioner, H.R. & C.E. Board, such a sale can be effected. Admittedly, the Commissioner of H.R. & C.E. has not conveyed the property nor the property was conveyed by the second plaintiff with the permission of the Commissioner.
19. It is also significant to note that by the insertion of Sub-section 4-A to Section 34, the Government has also been given power to issue directions to the Commissioner in respect of any sale and the Commissioner has been directed to give effect to all such directions.
20. It is also seen that by G.O.Ms. No. 866 Revenue dated 15.02.1960 (as amended with effect from 16.7.1997), Rules have been framed for the purpose of alienation of immovable trust property. The relevant Rules are also extracted below:
(1) The notice shall specify a reasonable time, being not less than 30 days from the date of the issue of the notice, within which objections or suggestions may be sent. It shall also specify the date on which an enquiry, if any, is proposed to be held to consider the objections or suggestions. A copy of the notice shall be served in person or sent by registered post, with acknowledgment due to the trustee or trustees of the religious institutions concerned, and where the properties belong to a specific endowment, also to the trustee or trustees of the temple or math to which the specific endowment is attached. Any refusal or evasion to receive the notice shall be deemed to be sufficient notice.
(2) A copy of the notice shall be published by affixture-
(a) on the notice board of the office of the Commissioner and the Assistant Commissioner having jurisdiction over the area in which the math or temple concerned is situate:
(b) on the notice board of the front door of the math or temple concerned;
(c) on the notice board of the office of the Municipal Council including the Corporation of Chennai or the Village Chavadi or the Panchayat Union Council and if there is no Village Chavadi or Panchayat Union Council, in some other public place in the village in which the math or temple concerned is situate;
(d) in another conspicuous place in the locality which may be selected by the Commissioner in his discretion; and
(e) in at least one daily newspaper published in the language of the locality where the math or temple concerned is situate;
provided that where the proposal is in respect of a specific endowment, the properties of which are not situate in the village in which the temple, or math is situate, the notice shall be published also in the village or villages in which the properties are situate.
3. Order sanctioning an exchange, sale or mortgage, or lease for a term exceeding five years shall be communicated by the Commissioner in the form of proceedings under Section 34 duly signed by him to the trustee or trustees and the person having interest, if any, who appeared in the proceedings and shall be published in the manner laid down in Clauses (a) to (e) of Sub-rule (2) of Rule 2 for the publication of the notice. The order shall also be published –
(a) in the District Gazette in the language of the district concerned in the case of the math or temple or specific endowments attached to a math or temple situated in the district; or
(b) in the Tamil Nadu Government Gazette in the case of a math or temple or specific endowments attached to a math or temple situated in the City of Chennai or to specific endowments attached to maths or temples situated in more than one district.
21. A bare reading of the provisions and the Rules made thereunder will clearly show that in the present case, the authorities have not violated any such rule and there is no order passed for the purpose of making the action ‘fait accompli’. In fact, all that the Government has indicated in G.O.Ms. No. 129, Tamil Development, Culture and Religious Endowment Department dated 30.6.2006, was to indicate the various proceedings that had taken place before the decision to sell the property was taken. Further, without this order of the Government, the second respondent Commissioner could not have passed any order. Since under the second proviso to Section 34(1), there must be a prior approval of the Government before the Commissioner initiates any action, in any sale of the temple property, the Commissioner’s sanction can be granted only after getting prior approval of the Government and therefore, this cannot be in violation of any Rules.
22. Further, by a notification dated 11.7.2006, the Commissioner called for objections and this was duly published in the newspaper as provided under the Rules and copies were also furnished to the trustees [fit person in the present case] and no objection was received from him. The decision to sell the property, which was finalised, was also directed to be published in the District Gazette and the entire sale proceedings were to be made only after a period of three months, before which time either the trustees or any interested person can challenge the said action. Without doing any of these things, the petitioner has rushed to this Court and wants to stall the decison of the authorities to sell the property, which was in the best interest of the temple and which has also received due attention by the authorities, including the Commissioner.
23. It is the admission of the writ petitioner that the properties are already under encroachment and that the temple is not getting even a single paise as revenue from any other tenants and that the temple was unable to evict those encroachers. Therefore, unless the property is entrusted to any other body in a profitable manner, the temple will lose even the existing property. Further, as found by the Commissioner in the impugned proceedings, the construction of an extention to the existing bus stand was only in public interest and there is no private profit to any person. The evaluation is done by the Divisional Revenue Officer in accordance with the existing Rules. The writ petitioner cannot make a sweeping statement that if it had been done on public auction, it may fetch higher amount. Such a statement is not borne out by records and the writ petitioner’s interest in the present case is only limited. The case cited by the learned Counsel will show that there was an offer by the said petitioner in those proceedings to purchase the property four times higher than the cost fixed by the Government. Even otherwise, those litigations were at the instance of the private parties and the sale itself was done by the private negotiation, which is not the case in the present instance.
24. It is the admission of the writ petitioner that even as of now, all the buses could not be parked in the existing bus stand or parked with the present space and virtually it has been used as an extended bus stand without any authority of law for the past two decades. I do not think that the grievance projected by the writ petitioner is sustainable and there is no violation of either the Act or the Rules and no public interest suffers by the impugned action. All relevant considerations have been taken by the Commissioner of the HR&CE Department, who was guided by the direction issued by the Government, which is also authorised under law.
25. In the light of the above, the writ petition fails and the same shall stand dismissed. However, there will be no order as to costs. Consequently, M.P. Nos. 1 to 5 of 2006 will also stand dismissed.