IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 27.6.2011 CORAM: THE HONOURABLE MR.JUSTICE V.DHANAPALAN Writ Petition No.14184 of 2008 & M.P.Nos.1 to 3 of 2008 1. Chinnasamy 2. Sundaram 3. Palanisamy 4. Markandasamy .. Petitioners Vs. 1. The Commissioner, Hindu Religious and Charitable Endowment (Admn) Department, Nungambakkam High Road, Chennai-34. 2. The Assistant Commissioner, Hindu Religious and Charitable Endowment (Admn) Department, Coimbatore. 3. The Executive Officer, A/M Thannachiappar Temple, Pachapalayam Village, Avinasi Taluk, Coimbatore District. 4. Natarajan 5. Loganathan .. Respondents Writ Petition under Article 226 of the Constitution of India, praying for issuance of a Writ of Certiorari, to call for the records relating to the impugned order passed by the first respondent herein issued in his proceedings Se.Mu.Na.Ka.No.4034/2008 H.4, dated 18.4.2008 and quash the same as illegal. For petitioners : Mr.W.C.Thiruvengadam For respondents : Mr.Kandasamy, Spl.G.P. for RR-1 & 2 Mr.M.Sundar for R-3 https://hcservices.ecourts.gov.in/hcservices/ ORDER Heard Mr.W.C.Thiruvengadam, learned counsel appearing for the petitioner, Mr.Kandasamy, learned Special Government Pleader appearing for the respondents 1 and 2 and Mr.M.Sundar, learned counsel appearing for the third respondent. The respondents 4 and 5 have been served and none appears for them. 2. The order of the first respondent issued in proceedings in Se.Mu.Nada.Na.Ka.No.4034/2008 H4, dated 18.4.2008, has been called in question in this Writ Petition, wherein, the first respondent- Commissioner of Hindu Religious and Charitable Endowment Department, negatived the Veto Power and rejected the petitioner's claim. 3. According to the petitioners, they are all brothers, who are holding office as hereditary trustees of Arulmighu Thannachiappar Temple, situated in Pachapalayam Village and Post, Avinashi Taluk, Coimbatore District. It is their case that their grandfather Kuppanna Gounder purchased total extent of land measuring about 9.86 acres in S.No.55/1 and in S.No.58 situated in Pachapalayam Village and Post, Avinashi Taluk, Coimbatore District, for valuable consideration through two registered documents in No.1110/1910 and 1111/1910, vide registration dated 8.8.1910. At that time, their grandfather was holding position as hereditary trustee. The vendor of the said documents stated that certain "Kaingaryam" has to be done in the Temple in question and did not contemplate performance of any festival in the Temple specifically. There was no document creating any endowment either absolutely or partially. There is no charge created in the documents. So, it is clear that the lands mentioned in the aforesaid two documents do not contemplate and fulfil the definition of Section 6(19) of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 (for short, 'the Act'). 4. While so, the second respondent/Assistant Commissioner, H.R. & C.E. (Admn), Coimbatore and the third respondent/Executive Officer of the Temple joined together and leased out the lands measuring about 9.86 acres in public auction on 5.12.2007 without any intimation to the owners of the land or any intimation to the hereditary trustees in office of the Temple. Therefore, the petitioners have challenged the said action before the first respondent/Commissioner, H.R. & C.E. (Admn), Chennai, who initially granted stay in the matter and later on, after hearing the parties, came to the conclusion that the lands belong to the Temple and the lands were given absolutely in favour of the deity for the performance of Kaingaryam in the Temple. 5. It is the claim of the petitioner that reading of the two documents will clearly show that there is no dedication of any property in favour of the Deity. It is only for the performance of the usual Kaingaryam in the Temple. Since there is no dedication of https://hcservices.ecourts.gov.in/hcservices/ the land in favour of the Deity, it is not justified to take away the lands through public auction, which were purchased by their grandfather through valid sale deeds. It is the stand of the first respondent that there has been an endowment created in the documents, but it did not go into the extent whether it constitutes absolute dedication or partial dedication. In order to decide the character of the lands mentioned in the documents and whether it constitutes a specific endowment and whether it attracts Section 6(19) of the Act, the petitioners filed an Original Application before the Joint Commissioner, H.R. & C.E. (Admn) Department, Coimbatore, for proper adjudication. Hence, the auction held on 5.12.2007 is illegal and against law. As the Commissioner has not applied his mind and did not go into the character of the lands and whether it constitutes a specific endowment, impugned proceedings of the Commissioner is liable to be set aside. 6. The first respondent has filed a counter affidavit stating that Arulmighu Thannachiappar Temple situated at Pachapalayam Village, Avinashi Taluk, Coimbatore District, is a public religious institution under the administrative jurisdiction of the Assistant Commissioner, H.R. & C.E. Admn. Department, Coimbatore. The Executive Officer of Arulmighu Aranganathaswamy Temple, Karamadai, was appointed as the Executive Officer of the Temple under Section 45(1) of the Act. The Temple was administered by hereditary trustees along with the Executive Officer appointed under Section 45(1) of the Act. While so, the hereditary trustees were suspended by the Joint Commissioner, H.R. & C.E., Coimbatore in view of various irregularities. The said suspension order was challenged by the petitioners before the respondent by way of revision petition in R.P.No.1 of 2007 and stay was initially granted for four weeks and it was not further extended, as the petitioners have not filed any petition for extension of stay. However, the revision petition is pending and the Temple is now administered by the Executive Officer. 7. It is further stated in the counter affidavit filed by the first respondent that the Temple owns land ad-measuring 9.86 acres comprised in S.Nos.55/1 and 58 and hence, the Executive Officer, who is in the administration, took steps to lease out the lands by way of public auction to augment the income for the benefit of the Temple from the said lands. In the above situation, public auction was conducted on 5.12.2007 under the provisions of the Religious Institutions (Lease of Immovable Property) Rules, 1963, by adhering to all the procedures. The writ petitioners who are the hereditary trustees, though were not in management at that time, were asked to participate in the public auction to witness the same. But they refused to participate in the public auction. Five bidders participated in the public auction by depositing the security deposit of Rs.10,000/- each as per the auction notice. The respondents 4 and 5 were the highest bidders for the said lands, they having bid for https://hcservices.ecourts.gov.in/hcservices/ Rs.11,200/- and Rs.12,000/- for the one year lease period from 1.2.2008 to 31.1.2009 for 4.27 acres of land in S.Nos.58 and 55/1 respectively. 8. On 14.12.2007, the writ petitioners filed miscellaneous petition before the first respondent claiming that the abovesaid public auction should be vetoed under Rule 13 of the Lease Rules on the ground that the said lands were not dedicated or endowed to the said Temple. The first respondent, after hearing all the parties concerned, and after examining the records, vide the impugned order dated 18.4.2008, dismissed the miscellaneous petition and directed the confirmation of the auction. Challenging the said order dated 18.4.2008, the petitioners are before this Court. 9. The first respondent further avers that the impugned order has been passed after hearing all the parties concerned and after examining all the relevant records and documents including the document dated 8.8.1910 bearing document No.1110/1910 under which Palaniappa Gounder received valuable sale consideration and divested himself of all his rights in the said lands in favour of the Temple and the recitals in the document are as follows: @/////gr;rhghisaj;jpypUf;Fk; bts;shs $hjp Foj;jd $Ptdk; gHdpf; ft[z;ld; kfd; gHdpf; ft[z;ld; vGjpitj;Jf; bfhLj;j g[";ir g{kp fpiua rhrdg; gj;jpuk; "and" moapw;fz;l g{kpfis eP';fSk;/ c';fSf;F gpd;dpl;L c';fs; thhpRfSkhtJ ahbjhU tpy;y';fj;jpw;Fk; cl;gLj;jhky; g{kpfspy; cw;gj;jpahFk; kfNy;fis nkw;go rd;dpjhd';fSf;F cgnahfg;gLj;jp bfhz;L tuntz;oaJ/@ 10. Therefore, it is the stand of the first respondent in the counter affidavit that by reading the above sentences, any one can come to a conclusion that Palaniappa Gounder had clearly transferred his right of the said lands to the said Temple and the sale consideration was paid to the creditors of Palaniappa Gounder for satisfying / paying all his debts. It is further stated that Rule 13 of the Lease Rules vests the Commissioner, H.R. & C.E., with the power of veto. There would be no legal right in favour of any one, much less in favour of the writ petitioners herein to compel the first respondent to exercise the power of veto. The impugned order passed by the first respondent is valid and prayed for dismissal of the Writ Petition. 11. The third respondent has filed counter affidavit and inter- alia it is stated that the petitioner who were the hereditary trustees of the Temple, were suspended under Section 53(2) of the Act from the hereditary trusteeship by the Joint Commissioner of H.R. & C.E. Department, Coimbatore, vide order dated 6.12.2006 and the said order was passed pending enquiry into serious charges against the https://hcservices.ecourts.gov.in/hcservices/ four writ petitioners for acting against the interest of the Temple. The four writ petitioners filed Revision Petition in R.P.No.1 of 2007 under Section 21 of the Act before the Commissioner and an order of interim stay of suspension was granted by the Commissioner for a period of four weeks from 19.1.2007, vide order dated 20.1.2007. In the abovesaid circumstances, the public auction was conducted on 5.12.2007 under the Religious Institutions (Lease of Immovable Property) Rules, 1963, after duly following the procedures contemplated under the Rules and after giving publicity in the language of the locality, inter-alia by beat of tom tom. The petitioners refused to participate in the public auction inspite of being requested to do so. Five bidders participated in the public auction and respondents 4 and 5 were the highest bidders. On 14.12.2007 the writ petitioners filed Miscellaneous Petition before the Commissioner claiming that the abovesaid public auction should be vetoed by the Commissioner under Rule 13. However, the Commissioner, vide order dated 18.4.2008, dismissed the said petition and directed the confirmation of the auction. Challenging the same, the petitioners are before this Court. 12. The third respondent, besides stating the similar facts as pleaded by the first respondent in the counter affidavit, further stated that the notice for public auction dated 5.12.2007, was published on 16.11.2007 and the publicities were also made by tom tom, besides affixture of the said auction notice on the notice boards of the Panchayat Board and VAO Office. The petitioners were also personally invited to be present during public auction, for which, they have refused. Be that as it may, the petitioners could not claim any ignorance of knowledge of public auction. When the petitioners have not challenged the auction notice, cannot now be heard to contend that the auction itself ought not to have been conducted. The third respondent prayed for dismissal of the Writ Petition. 13. The foremost contention of the learned counsel for the petitioner is that the property in question has been dedicated for the purpose of "Kaingaryam" to be done in the Temple and it did not contemplate the performance of any festival in the Temple. There is no document creating any endowment, either absolutely or partially, and there is no charge created in the document and therefore, the lands mentioned in the documents do not contemplate and fulfil the definition of Section 6(19) of the Act. Therefore, the public auction contemplated by the respondents, is contrary to the dedication made by the grandfather of the petitioners. He further contended that the Commissioner has not fairly and reasonably exercised his power under Rule 13 in respect of the veto power. 14. Per contra, learned Special Government Pleader appearing for the respondents 1 and 2 contended that there was certain https://hcservices.ecourts.gov.in/hcservices/ irregularities by the hereditary trustees and therefore, the petitioners were suspended and they have moved before the competent authority challenging the suspension order. However, the stay granted by the competent authority was only for four weeks, and thereafter, it was not extended. In the absence of any extension order, the petitioners were asked to participate in the public auction, and they refused. The respondents, in order to augment the revenue of the Temple, proceeded to conduct public auction. He further contended that the Commissioner has fairly and reasonably exercised his power while passing the impugned order. Under Rule 13 of the Religious Institutions (Lease of Immovable Property) Rules, the Commissioner shall have the power of veto such lease for reasons to be recorded in writing after giving a reasonable opportunity to the parties concerned to make their representations, if any. The Commissioner granted permission to the third respondent-Executive Officer of the Temple to proceed with the auction. Therefore, when the procedures contemplated under the Rules, are followed, and when the Commissioner has rightly exercised his power, it is not for the petitioners to contest the public auction when it is for the public interest of the Temple. 15. Learned counsel for the third respondent contended that the third respondent-Executive Officer of the Temple being an authority to administer the Temple, has followed the procedures contemplated under the Rules while conducting the public auction by issuance of notice and the publicity was also made by tom tom, affixture of notice on the notice board of the Panchayat Office and VAO office and thereafter, public auction was conducted and while doing so, the petitioners have also been asked to participate in the auction, but they have refused and therefore, the entire procedure has been followed by the third respondent and the auction was conducted in a fair and transparent manner, which cannot be questioned when the petitioners have refused to participate. 16. Heard the learned counsel on either side and perused the records and the relevant provisions of law. 17. It is seen that the lands in question of an extent of 9.86 acres were purchased by the petitioners' grandfather Kuppanna Gounder for valuable consideration and at the time of purchase of the property, their grandfather was holding office as hereditary trustee of the Temple and the property has been dedicated by two documents, stating that certain Kaingaryam to be done in the Temple in question. It is not in dispute that the lands were dedicated to the Temple and thereby, the Temple acquired right over the lands and owns the lands measuring 9.86 acres. The Temple is a public religious institution under the administration of the H.R. & C.E. Department under the control of Assistant Commissioner and thereafter, the Executive Officer was appointed under Section 45(1) of the Act and along with https://hcservices.ecourts.gov.in/hcservices/ the hereditary trustees, they have to administer the Temple. But however, there were certain irregularities committed by the hereditary trustees and they were suspended and the order of suspension was challenged by them and it was ultimately before the Commissioner by way of Revision Petition in R.P.No.1 of 2007 and initially, there was stay for a period of four weeks and thereafter, it was not extended. The petitioners have not filed any petition for extension of stay. 18. While so, the third respondent has proceeded to conduct the public auction by issuance of public auction notice, on 16.11.2007 and the auction was conducted on 5.12.2007 and before the auction, the procedures contemplated under law, were followed by making tom tom in the locality and the auction notice was also affixed on the notice boards of the Panchayat Board and the VAO Office. In the meanwhile, the petitioners have moved the Commissioner by filing a miscellaneous petition to exercise his veto power under Rule 13 of the Religious Institutions (Lease of Immovable Property) Rules, 1963. However, the Commissioner, by the impugned order dated 18.4.2008, rejected the claim of the petitioner and affirmed the view of the third respondent for conducting the public auction and thereby, the third respondent conducted the public auction on 5.12.2007 and the respondents 4 and 5 herein, have been the successful bidders in the auction and they are the highest bidders. It is placed on record by learned counsel for the parties that the public auction was only for one Fasli, namely one year period and the said period is also over, namely 1.2.2008 to 31.1.2009. 19. It is now appropriate for this Court to notice Rule 13 of the Religious Institutions (Lease of Immovable Property) Rules, which relates to the veto power by the Commissioner, which contemplates that the Commissioner shall have the power of veto such lease for reasons to be recorded in writing after giving a reasonable opportunity to the parties concerned to make their representations, if any. 20. To examine as to whether the power of veto has been exercised fairly and reasonably by the Commissioner after giving an opportunity of hearing to the parties concerned, the petitioners have filed the Miscellaneous Petition before the Commissioner. The Commissioner, after hearing all the parties concerned and after examining the records, and taking into account all the factors, and following the procedures contemplated under law, has passed the impugned order, confirming the public auction and recorded the reasons for his conclusion. In the absence of any infirmity in the impugned order of the Commissioner, it is not for this Court to entertain such a challenge made to the impugned order, unless it is shown to this Court that the power exercised by the Commissioner in regard to conduct of auction, is arbitrary and unreasonable and contrary to the https://hcservices.ecourts.gov.in/hcservices/ provisions of law. Therefore, there is no other option except to reject the petitioners' claim in respect of the challenge to the impugned order passed by the Commissioner under Rule 13 of the Religious Institutions (Lease of Immovable Property) Rules. 21. After exhaustive arguments and discussion, learned counsel for the petitioners made a plea that the claim of the petitioners in respect of the character of the documents created by the petitioners' grandfather, is pending before the Joint Commissioner concerned and unless the Joint Commissioner decides the issue, the petitioners' rights will be defeated. It is not disputed by the respondents 1 to 3 that the petitioners have already moved before the Joint Commissioner concerned and the application in O.A.No.38 of 2009 is pending before him, and particularly, the petitioners have raised the question that the documents do not contemplate and fulfil the definition under Section 6(19) of the Act. It is an independent action before the competent authority, namely the Joint Commissioner, who has to decide the said application. The said Joint Commissioner is not a party before this Court. Therefore, the plea of the petitioners to direct the Joint Commissioner to dispose of the said application, could not be considered. However, it is for the petitioner to move the competent authority before whom they have already moved the said O.A.No.38 of 2009. Learned Special Government Pleader, on instructions, submitted today that the said application moved by the petitioners, is pending before the competent authority and it is posted for hearing on 6.7.2011. If that is so, it is open for the petitioners to move the concerned authority for disposal of the said application as expeditiously as possible. 22. The Writ Petition is dismissed with the above observations. No costs. The Miscellaneous Petitions are closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar cs To 1. The Commissioner, Hindu Religious and Charitable Endowment (Admn) Department, Nungambakkam High Road, Chennai-34. https://hcservices.ecourts.gov.in/hcservices/ 2. The Assistant Commissioner, Hindu Religious and Charitable Endowment (Admn) Department, Coimbatore. 3. The Executive Officer, A/M Thannachiappar Temple, Pachapalayam Village, Avinasi Taluk, Coimbatore District. 1 CC to Mr.M.Sundar, Advocate, S.R.No. 37080 1 cc To The Government Pleader, SR.36938 1 CC to Mr.W.C.Thiruvengadam, Advocate, S.R.No.36852 W.P.No.14184 of 2008 TS(CO) SRA(21/7/2011) https://hcservices.ecourts.gov.in/hcservices/