IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 07.01.2010 CORAM: THE HON’BLE MR. JUSTICE T.S.SIVAGNANAM W.P.Nos.26408 of 2007 & M.P.No.1/2007 & 12800 of 2009 & M.P.Nos.1 & 2/2009 W.P.No.26408/2007 L.Kulasekaran ... Petitioner -vs- 1.The Government of Tamil Nadu Rep. by its Secretary Hindu Religious & Charitable Endowments Department Secretariat, Fort St. George, Chennai – 600 009. 2.The Commissioner Hindu Religious & Charitable Endowments Department 119, Mahatma Gandhi Road, Chennai – 600 034. 3.The Assistant Commissioner Hindu Religious & Charitable Endowments Department 119, Mahatma Gandhi Road, Chennai – 600 034. 4.The Executive Officer, Arulmigu Komaleswarar Thirukoil Komaleswaranpet, Chennai – 600 002. ... Respondents W.P.No.12800/2009 L.Kulasekaran ... Petitioner Vs. https://hcservices.ecourts.gov.in/hcservices/ 1.The Government of Tamil Nadu Rep. by its Secretary Hindu Religious & Charitable Endowments Department Secretariat, Fort St. George, Chennai – 600 009. 2.The Commissioner Hindu Religious & Charitable Endowments Department 119, Mahatma Gandhi Road, Chennai – 600 034. 3.The Assistant Commissioner Hindu Religious & Charitable Endowments Department 119, Mahatma Gandhi Road, Chennai – 600 034. 4.The Executive Officer, Arulmigu Komaleswarar Thirukoil Komaleswaranpet, Chennai – 600 002 5.G.V.Madhavan ... Respondents 5th respondent impleaded vide order of court dated 05.01.2010 made in M.P.No.3 of 2009 in W.P.No.12800/2009 Prayer in W.P.No.26408 of 2007 : The Writ Petition filed under Article 226 of the Constitution of India for issue of Writ of Certiorarified Mandamus to call for the records of the 4th respondent's proceedings dated 01.08.2007 and quash the same and consequently direct the respondents to grant lease in favour of the petitioner for the property situated in the Southern portion of the entrance in the premises bearing door No.26, Old No.31, Venkatachala Naicken Street, Komaleswaranpet, Chennai -2 morefully described in the petition schedule. Prayer in W.P.No.12800 of 2009 : The Writ Petition filed under Article 226 of the Constitution of India for issue of Writ of Certiorari to call for the entire records pertaining to the paper publication in Dina Malar dated 06.07.2009 made by the 4th respondent and quash the same. https://hcservices.ecourts.gov.in/hcservices/ For Petitioner in W.P.No.26408 of 2007 :Mr.K.V.Sundararajan For Respondents W.P.No.26408 of 2007:Mr.T.Chandrasekaran Spl. Govt. pleader for R1 to R3 Mr.Sriram for M/s.A.S.Kailasam& Associates for R4 For Petitioner in W.P.No.12800 of 2009 :Mr.K.V.Sundararajan For Respondents W.P.No.12800 of 2009 :Mr.T.Chandrasekaran Spl. Govt. pleader for R2 to R4 Mr.Sriram for M/s.A.S.Kailasam& Associates for R5 COMMON O R D E R Since the issue involved in both the writ petitions relate to an auction of lease hold right of an immovable property owned by the fourth respondent temple. By consent of all the parties these writ petitions are taken up for final disposal and disposed of by a common order. 2. The fourth respondent temple is an institution coming under the control of the Hindu Religious & Charitable Endowments Department (hereinafter referred to as "the H.R.&C.E."). The fourth respondent called for tenders for leasing out the Southern portion in the entrance of the premises bearing new door No.26, Old No.31, Venkatachala Naicken Street, Komaleswaranpet, Chennai -2, measuring about 210 sq.ft. of shop area and 876 sq.ft. of residential portion on a monthly rent of Rs.2,635/- and donation payable to the temple was fixed at Rs.1.6 lakhs as the basic rate. The tender was widely published in the dailies on 25.07.2007. The petitioner participated in the tender and offered a sum of Rs.9,05,000/- as donation and the tender was opened on 01.08.2007 by the third respondent and the petitioner's offer was the highest and he was informed that he should remit the amount immediately, which was complied with by the petitioner. 3. Subsequently, by an order dated 01.08.2007, the fourth respondent informed the petitioner that though the petitioner was the highest bidder in the auction, based on complaint given on 14.06.2007, a case was registered by the F-2, Egmore, Police Station regarding certain law and order situation, which had arisen and that the petitioner was arrested based on the said complaint and the case is pending investigation and by relying upon on clause 21 of the tender condition, stated that the petitioner has become disqualified from participating in the tender, along with the order dated 01.08.2007, the copy of the report received from the Inspector of Police, F-2 Police Station and the tender condition No.21 was https://hcservices.ecourts.gov.in/hcservices/ enclosed. This order dated 01.08.2007 is impugned in writ petition No.26408/2007. It is contended by the petitioner that clause 21 of the tender condition is not applicable and that cannot be a reason for rejecting the petitioner's tender. It is further stated that the complaint, which was lodged against the petitioner before the F- 2 Police Station was by a participant in the tender and against the said complainant, the petitioner has also lodged a counter complaint. It is further stated that if the petitioner's bid amount is not accepted, it would result in loss of revenue to the temple. The third respondent has filed a counter affidavit stating that in view of the law and order problem, during the tender cum public auction held on 14.06.2007, a criminal case having been registered against the petitioner, he has suffered disqualification in participating in the tender. It is further stated that the third respondent as the tender inviting authority has right to reject, cancel or postpone the tender or permanently abandon the same and the petitioner cannot dictate the temple administration to award the tender in his favour. The third respondent also sought for vacating the interim order, which was granted on 27.08.2007 stating that the tender shall not be confirmed till the disposal of the writ petition. The fourth respondent in his counter affidavit stated that since there were pending case in respect of the petitioner in terms of clause 21 of the terms and conditions, the petitioner was held ineligible and accordingly the impugned order was passed and as such there is no error or defect in such order. 4. When, writ petition No.26408/2007 was pending, the fourth respondent by paper publication dated 06.07.2009 called for fresh tenders in respect of the same lease hold right. In the fresh tender notification, the minimum upset price for donation amount was fixed at Rs.9,10,000/- and the date of auction was fixed on 10.07.2009. This auction notification dated 06.07.2009 has been challenged in writ petition No.12800 of 2009. It is contended by the petitioner that calling for fresh tender is not proper, when the earlier writ petition is pending and the issuance of the second tender notification only establishes, the haste on the part of the fourth respondent and the second tender notification has been issued only to circumvent, the petitioner's offer and deny him the lease hold right. 5. The fifth respondent herein is stated to have participated in the second tender notification and according to the fifth respondent, he had also participated in the earlier tender and it is contended by the sixth respondent that on account of the interim orders granted, he is not able to obtain the lease. The fourth respondent has filed a counter affidavit by stating that there is no haste in the proceedings and if the property is brought for auction, it would be for the benefit of the temple and on account of the pending litigation, the temple is not able to earn any income from https://hcservices.ecourts.gov.in/hcservices/ the property and the petitioner is stalling the entire auction proceedings. The learned standing counsel for the Department relied on the Division Bench Judgment of this Court in W.A.No.3861/2003 etc., dated 16.11.2007, in support of his contention and prayed for dismissal of the writ petitions. 6. Heard the submissions made by the learned counsel appearing for the petitioner, learned standing counsel appearing for the Department, learned counsel appearing for the temple and the private party. The impugned order in W.P.No.26408/2007 dated 01.08.2007 has been passed by placing reliance on condition No.21 of the terms and conditions of the tender cum auction date 12.07.2007. Condition No.21 states that certain categories of persons are not entitled to participate in the tender namely persons, who are either Plaintiffs or Defendant in any suits in which the temple is concerned, persons who are in arrears of any lease amount payable to the temple and persons who have acted in a manner prejudicially to the interest of the temple. The principle submission of the learned counsel appearing for the petitioner is that none of the ingredient in clause 21 are attracted to the petitioner's case and invoking such power is misconceived. I am unable to agree with the submission of the learned counsel for the petitioner, since the criminal case, which was registered against the petitioner at the instant of a third party related to a law and order situation, which arose due to an incident, which took place on 14.06.2007 at about 03.50 hours in front of the temple concerning the lease of the temple property. 7. Based the complaint given by one Suresh s/o Thaiyalan, a case has been registered against the petitioner by the Inspector of Police, F-2 Egmore Police Station, in crime No.1144 of 2007 for offenses under Section 147, 341, 323 and 325 I.P.C. In my view the criminal complaint, which was registered on 14.06.2007 is directly relatable to the affairs of the temple inasmuch as the problem arose in a matter concerning the auction of the subject lease. Therefore, there is no error in the decision of the fourth respondent in invoking clause 21 of the tender conditions, since the registration of criminal case followed by the arrest of the petitioner would definitely be a matter, which would be prejudicially to the interest of the fourth respondent temple. Therefore, during the relevant point of view, the fourth respondent could not have been compelled to enter into a contract with a person, who has been accused of committing a crime and who has also been arrested and the subject matter of the complaint is a dispute relating to the property owned by the temple. Hence, the fourth respondent was fully justified in passing the impugned order dated 01.08.2007. Hence, I find that there is absolutely no merit in W.P.No.26408/2007. 8. During the pendency of W.P.No.26408/2007, the temple has issued a fresh notification on 06.07.2009, calling for fresh auction https://hcservices.ecourts.gov.in/hcservices/ and fixing a much higher upset price. Therefore, in effect the earlier notification dated 12.07.2007 impliedly stood withdrawn by the subsequent notification dated 06.07.2009. The petitioner cannot complain that the second notification dated 06.07.2009 is on account of haste on the part of the third & fourth respondent. The tender inviting authorities have sufficient jurisdiction to even cancel the tender. In the instant case, there is no specific allegation of malafide alleged to hold that the subsequent notification dated 06.07.2009 was intended for any collateral purpose. In fact the upset price in the second notification dated 06.07.2009 has been fixed at Rs.9,10,000/-, which is much higher than the upset price fixed in the 2007 notification. Therefore, by any stretch of imagination, it cannot be stated that the second notification is illegal. 9. Ultimately, the lease to be granted by the temple should be beneficial for the institution and the authorities are empowered to fix the upset price, considering the welfare of the institution. Therefore, the respondents 3 & 4 cannot be faulted for having issued the notification dated 06.07.2009 and accordingly, I find that there are no good grounds for interfering with the notification dated 06.07.2009. 10. Having held that the petitioner has failed to make out the case in both the writ petitions, it is necessary to be seen as what directions are to be issued to the respondents 3 & 4, which would serve the interest of the institution. In this context, it is useful to the refer to the decision of the Hon'ble Supreme court in A.A.Gopalakrishnan Vs. Cochin Devaswom Board and Other, [(2007) 7SCC 482], while considering the aspect regarding protection of properties of deities, temples etc., observed that:- "10. The properties of deities, temples and Devaswom Boards, require to be protected and safeguarded by their trustees/archakas/shebaits/employees. Instances are many where persons entrusted with the duty of managing and safeguarding the properties of temples, deities and Devaswom Boards have usurped and misappropriated such properties by setting up false claims of ownership or tenancy, or adverse possession. This is possible only with the passive or active collusion of the authorities concerned. Such acts of "fences eating the crops" should be dealt with sternly. The Government, members or trustees of boards/trusts, and devotees should be vigilant to prevent any such usurpation or encroachment. It is also the duty of courts to protect and safeguard the properties of religious and charitable institutions from wrongful claims or misappropriation." (Emphasis added) https://hcservices.ecourts.gov.in/hcservices/ 11. Bearing the above legal principle in mind, if the facts of the present case are taken into consideration, the interest of the 4th respondent temple would be best protected, if the fourth respondent is directed to call for fresh tenders in respect of the subject property. The learned standing counsel appearing for the Department rightly placed reliance on the Judgment of the Hon'ble Division Bench in W.A.No.3861/2003, which also related to sale of a temple property and the question, which arose was whether the appellant in the said case should be allow the match the offer given by his competitor. The Hon'ble Division Bench held as follows:- "18. The earlier auction lost its significance in view of the passage of time and the land value had also been increased in the meantime, as evident by the valuation certificate produced by the learned counsel for H.R. & C.E. Department. 19. It is quite clear from the provisions contained in section 34 of the H.R. & C.E. Act that while permitting the temple authority to alienate any property, the best interest of the temple has to be kept in mind. In fact, the previous decision of the Division Bench also clearly reflects such a sentiment. As has been observed earlier, the auction had not been held properly and therefore, such auction had been set aside and there was a direction for holding a fresh auction. It is no doubt true that the temple authority had no grievance against the last auction and only the appellant has challenged the said auction. 20. Therefore keeping in view of the overriding factor relating to the protection of the deity and keeping in view the long passage of time, we do not think it fit, in the interest of justice, to accept the submission of the appellant to complete the transaction by matching the offer given by the ninth respondent. 21. The proper course which could be resorted to for receiving best price for public property would be conducting public auction in a fair and transparent manner after giving wide publicity. 22. In AGARWAL & MODI ENTERPRISES PVT. LTD. & ANR. V. NEW DELHI MUNICIPAL COUNCIL (2007 (10) SCALE 549, The Supreme Court observed as follows:- "Disposal of public property partakes the character of trust and there is distinct demarcated approach for disposal of public property in contradiction to the disposal of private property i.e. it should be for public purpose and in public interest. Invitation for participation in public auction ensures transparency and it would be free from bias or discrimination and beyond reproach." 23. In the above circumstances, we are inclined to direct the conduct of fresh auction to sell the property in https://hcservices.ecourts.gov.in/hcservices/ T.S.Nos.2750/1, 2750/2 and 2751 in Cuddalore O.T, belonging to the third respondent through tender-cum-auction by fixing the upset price at Rs.2 crores. Therefore, this Court would be fully justified in ordering for a fresh auction to be conducted. 12. Having held so, should the writ petitioner be permitted to participate in such tender?. The learned counsel appearing for the petitioner brought to the notice of this Court that the criminal case, which was registered against the petitioner was taken on file as C.C.No.8580/07 on the file of the XIV Metropolitan Magistrate, Egmore and the criminal Court by Judgment dated 18.05.2009 held that the petitioner is not found guilty for the offenses stated to have been committed by giving the benefit of the doubt to the petitioner and he has been acquitted under Section 248(1) CrPC. Therefore, the objection which was raised by the temple while passing the impugned order dated 01.08.2007, does not survive any longer, since the prosecution were not able to prove the guilt beyond all reasonable doubt. Hence, I am of the view that the petitioner shall also be entitled to participate in the fresh tender to be invited by the fourth respondent. 13. In the light of above discussion the following order is passed. i) W.P.No.26408/2007 and 12800/2009 are dismissed. ii) The fourth respondent is directed to call for fresh tender cum auction for grant of lease of the property being Southern portion of the entrance in the premises, bearing new door No.26, Old No.31, Venkatachala Naicken Street, Komaleswaranpet, Chennai-2 and it is open to the fourth respondent to fix up the upset price based on their discretion and guidelines if any issued by the H.R.&C.E. Department. iii) The petitioner shall be entitled to participate in such fresh tender to be invited by the fourth respondent. It is needless to state that fifth respondent in W.P.No.12800/2009, as well as any other person of the public, who would be eligible to participate in such fresh tender would also be entitled to participate. iv) The fourth respondent shall issue fresh tender notification within a period of four weeks from the date of receipt of a copy of this order, by giving wide publicity. https://hcservices.ecourts.gov.in/hcservices/ v) Consequently, connected miscellaneous petitions are also closed. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar pbn To 1..The Secretary,Government of Tamil Nadu Hindu Religious & Charitable Endowments Department Secretariat, Fort St. George, Chennai – 600 009. 2.The Commissioner Hindu Religious & Charitable Endowments Department 119, Mahatma Gandhi Road, Chennai – 600 034. 3.The Assistant Commissioner Hindu Religious & Charitable Endowments Department 119, Mahatma Gandhi Road, Chennai – 600 034. 4.The Executive Officer, Arulmigu Komaleswarar Thirukoil Komaleswaranpet, Chennai – 600 002. +2ccs to Govt. Pleader Sr 1054,1055 +1cc to M/s.A.S.Kailasam & Associates Sr 1271 +1cc to Mr.K.V.Sundarajan,Advocate Sr 977 KA(CO) km/25.1. W.P.Nos.26408 of 2007 & 12800/2009 https://hcservices.ecourts.gov.in/hcservices/