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Judgment
D. Murugesan, J.—The petitioner in W.P. No. 3840 of 1999 has challenged the circular issued by the Special Commissioner and
Commissioner, Hindu Religious and Charitable Endowments Department in Na. Ka. No. 95206/98/R2 dated 27.1.99. The petitioners in W.P.
Nos. 11573 and 11617 of 1999 have also challenged the proceedings of the Special Commissioner and Commissioner, Hindu Religious and
Charitable Endowments Department in Na. ka. No. 8516/92/R2 dated 24.3.92 as amended by the circular in Na.Ka. No. 95206/98/R2 dated
27.1.99.
By consent of parties, all the writ petitions are taken up together for disposal. The brief facts leading to the filing of all the writ petitions may be
stated as follows.
All the petitioners applied for allotment of houses belonging to the 2nd respondent namely Arulmighu Kapaleeswarar Temple, Mylapore on
rental basis. Since the requests of the petitioners were not conceded in view of the circular of the 1st respondent dated 27.1.99, the present writ
petitions have been filed challenging the said circular. It is the case of the petitioners that on 24.3.92, the 1st respondent issued circular containing
guidelines for the purpose of leasing out the houses noted and belonging to the 2nd respondent Temple by way of lease. Among other conditions
the 1st respondent directed that 1/3rd available houses shall be allotted to the employees of the H.R. & C.E. Department, 1/3rd of houses shall be
allotted to the employees of the Temple and the remaining 1/3rd of the houses shall be allotted to public. On 27.1.99 the 1st respondent issued
another circular modifying the conditions for leasing out the houses belonging to the Temple by directing that 50% of the houses shall be allotted to
the employees of the H.R. & C.E. Department and the remaining 50% shall be allotted to the employees of the Temple. He also directed that in
the event any house is left unallotted from among the employees of the Temple and the H.R. & C.E. Department, those houses can be allotted to
the public. By the said circular the 1st respondent also directed the other conditions to be incorporated for the terms of lease. The grievance of the
petitioners is that the condition specifying that the employees of H.R. & C.E. Department and the Temple are alone entitled for such allotment is
arbitrary, violative of principles of equality, violative of the provisions of H.R. & C.E. and would result in loss of revenue to the Temple. The
request of the petitioners for allotment of houses has not been considered in view of the impugned circulars and therefore the petitioners were
constrained to challenge the circulars themselves.
Mr. P. Srinivas, learned counsel appearing for the petitioner in W.P. Nos. 3840 of 1999 and Mr. K. Venkatasubramanian, learned counsel
appearing for the petitioners in W.P. Nos. 11573 and 11617 of 1999 contended that by virtue of Section 116of the Tamil Nadu Hindu Religious
and Charitable Endowments Act, 1959 hereinafter called as ""the Act"", the Government may, by notification, make Rules to carry out the purpose
of this Act and without prejudice to the generality of the above power, the Government may also provide for Rules in relation to the manner in
which and the period for which leases of properties of religious institutions shall be made. By virtue of such power, the Government have framed
The Religious Institutions Lease of Immovable Property Rules 1963"" and notified in G.O.Ms. No. 3060 Revenue dated 17.10.63 hereinafter
referred to as ""the Rules"". As per Rule 2 of the said Rules, lease of immovable property and rights belonging to a religious institution shall be made
by public auction. Therefore, the learned counsel submitted that when there is a specific Rule framed for the purpose of leasing of the property
belonging to the Temple only by public action, the impugned circulars giving powers to the respective Executive Officers to allot the houses and
that too only to the employees of the H.R. & C.E. Department and the Temple is without jurisdiction. In any event the learned counsel submitted
that reservation of the allotment of houses only to the employees of the H.R. & C.E. Department and the Temple is arbitrary and violative of
Article 14of the Constitution of India. The learned counsel would further contend that in any event by allotting the entire houses only to the
employees of the H.R. & C.E. Department and the Temple, and fixing the rent on the basis of the salary without resorting to public auction would
result in loss of revenue to the Temple. Hence, the impugned circulars are not in the interest of the temple itself and therefor are liable to be set
saide.
Mr. R. Subramanian, learned counsel appearing for the 2nd respondent in all the writ petitions would submit that there are 225 buildings
belonging to the 2nd respondent Temple out of which 185 buildings are now under occupation by the public. Most of the tenants are chronic
defaulters in payment of monthly rent. Sometimes, after accumulation of huge arrears of rent, the tenants vacate the property and leave the place
without paying the arrears of rent. The Temple is put to great difficulty in collecting the rents from those tenants. As on today roughly about Rs.13
lakhs are due to the Temple by way of arrears from tenants. The learned counsel would submit that therefore, in augmenting the revenue for the
Temple and also in the interest of the Temple, the 1st respondent issued circular dated 24.3.92 with instructions containing the procedures to be
followed for letting out house properties belonging to the Temple. In the said circular it was instructed that 1/3rd of the houses shall be allotted to
the employees of the H.R. & C.E. Department, 1/3rd of the houses shall be allotted to the employees of the Temple and the remaining 1/3rd of the
house shall be allotted to the public. Since the 1st respondent found it difficult even for following the said instructions in making the allotment to the
public and collecting the rent from the public, a revised circular was issued on 27.1.99 wherein out of the total houses belonging to the Temple,
50% of the same shall be allotted to the employees of the H.R. & C.E. Department and the remaining 50% of the houses shall be allotted to the
employees of the temple. The said circulars were issued by the 1st respondent by virtue of the powers conferred on him u/s 34of the Act. The
learned counsel would further contend that as per Rule 2 of the Rules, the lease of immovable property and right of religious institution shall be
made by public action. However, as per Rule 11 of the Rules, the Joint Commissioner on an application made to him by the executive authority of
a religious institution permit the lease of any property or right otherwise than by public auction, if he is satisfied that the interests of the institution will
not surfer by dispensing with the public auction. Therefore, the learned counsel submitted that it cannot be contended that there is no power for the
1st respondent to issue such directions.
The learned counsel would also submit that only in view of the fact that the Temple was unable to collect the arrears of rent from its tenants
when the houses were leased out to the public and as admittedly a sum of Rs. 13 lakhs is due to the temple from the tenants and if the houses are
leased out to the employees of the H.R. & C.E. Department and the Temple, the rent is recovered from their salary and the Temple will not be put
to any loss. Only in order to secure and safeguard the revenue of the Temple, the classification of 50% has been made for allotment of the houses
to the houses to the employees of the H.R. & C.E. Department and the remaining 50% to the employees of the Temple. Therefore, the learned
counsel submitted that the classification cannot be contended as violative of Article 14of the Constitution of India. The learned counsel would
further submit that the leasing out of houses cannot be considered as commercial activity of the Temple as in the case of leasing out of shops
belonging to the Temple. The learned counsel would also submit that by the impugned circulars, the public like the petitioners are not completely
eliminated for the allotment of houses. On the other hand, in the very same circular the 1st respondent has instructed, if any houses remain vacant
after allotment to the employees of the H.R. & C.E. Department and employees of the Temple, the same can be allotted to public. Hence, the
learned counsel submitted that all contentions raised by the respective learned counsel for the petitioners are liable to be rejected.
Mr. Patty B. Jagannathan, learned Special Government Pleader appearing for the 1st respondent would adopt the arguments of Mr. R.
Subramanian, learned counsel for the 2nd respondent.
I have heard the submissions of the respective counsel. The houses which are the subject matter in the writ petitions belong to the 2nd
respondent Temple and these houses are charitable endowments as could be seen from the definition of religious endowment or endowment
defined u/s 6(17) of the Act which reads as follows:
religious endowment"" or ""endowment"" means all property belonging to or given endowed for the support of mutts or temples, or given or
endowed for the performance of any service or charity of a public nature connected therewith or of any other religious charity, and includes the
institution concerned and also the premises thereof, but dose not include gifts of property made as personal gifts to the archaka, service-holder or
other employee of a religious institution.
By Regulation VII of 1817, the power of supervision of the temples was vested with the Board of Revenue. Thereafter, under reversal of policy of
Government in 1839, the village temples were handed over to the pujaries and larger Temples were handed over to the leading mutts.
Subsequently, by Act 20 of 1863 local Temple Committees were formed for supervision in the place of Board of Revenue. Thereafter, the Madras
Hindu Religious Endowments Act, 1927 (Act II of 1927) was enacted to provide for proper administration and governance of the Hindu religious
endowments. The said Act provided for the supervision of the religious endowments through a statutory body known as the Madras Hindu
Religious Endowments Board. By an amendment Act 9 of 1937 a new chapter VI-A was introduced to provide that a temple or specific
endowment attached to a Temple should be governed by a scheme either framed by the Board or settled by a Court. The Board was given power
to appoint Executive Officers for notified Temple or endowment and defined his duties. Thereafter, in the year 1951, the Board was abolished and
the administration of religious and charitable endowments was vested in a Department of Government, the head of which is the Commissioner. The
said Act also provided the application of powers to the officers subordinate to him. u/s 9of the Act, Commissioner is appointed by the
Government. u/s 23, the powers and duties of the Commissioner are provided and the said Section reads as under:
Subject to the provisions of this Act, the administration of all temples (including specific endowments attached thereto) and all religious
endowments shall be subject to the general superintendence and control of the Commissioner; and such superintendence and control shall include
the power to pass any orders which may be deemed necessary to ensure that such temples and endowments are properly administered and that
their income is duly appropriated for the purposes for which they were founded or exist: Provided that the Commissioner shall not pass any order
prejudicial to any temple or endowment unless the trustees concerned have had a reasonable opportunity of making their representations.)
The power to frame Rules also vests with the Government u/s 116. The relevant provisions of the said Section is extracted as under:
(1) The Government may, by notification, make rules to carry out the purposes of this Act.
(2) Without prejudice to the generality of the foregoing power, such rules may provide for-(xiii) the manner in which and the period for which
leases of properties of religious institutions shall be made.
By virtue of the said power, the Government framed the Religious Institutions (Lease of Immovable Property Rules, 1963) and notified in
Government Gazette in G.O. No. 3060 Revenue dated 17.10.63. The relevant Rules for the purpose of disposal of the writ petitions are extracted
as under:
Rule 2: Lease by public auction: Lease of immovable property and rights belonging to a religious institution shall be made by public auction. The
auction shall ordinarily be conducted in the place in which the property is situate or the rights exist.
Rule 11: Leases otherwise by public auction: The Joint Commissioner having jurisdiction over the area may, on an application made to him by the
executive authority of a religious institution permit the lease of any property or right otherwise than public auction, if he is satisfied that the interests
of the institution will not suffer by dispensing with the public auction.
On the basis of the above provisions, it is to be now considered as to whether the circulars issued by the 1st respondent can be considered as
one issued with power conferred on him u/s 23and whether these circulars are violative of the Rules framed by the Government u/s 116(2) (xiii) of
the Rules. In so far as the power of the Commissioner to issue such circular in the interest of the institution, it is to be seen that the erstwhile power
of the administration, supervision and control of the religious institutions and specific endowments in the State of Tamil Nadu which were vested
with the Board of Revenue have been vested now with the Commissioner by virtue of the introduction of Section 23of the Act. As per the said
Section, the administration of the Temple including the specific endowments attached thereto and all religious endowments shall be subject to the
general superintendence and control of the Commissioner. The said provision also makes it clear that such superintendence and control shall
include the power to pass any orders which may be deemed necessary to ensure that such temples and endowments are properly administered and
their income is duly appropriated for the purposes for which they were founded or exist. Proviso to the said section imposes a restriction on the
Commissioner in passing any orders prejudicial to any temple or endowment unless the trustees concerned have had a reasonable opportunity of
making their representations. By the said proviso, it could be inferred that the Commissioner is otherwise shall have the power to pass any order in
the interest of the temple and endowment. When the said section is read along with Rule 11 of the Rules wherein a power is conferred even on the
Joint Commissioner to dispense with the public auction in leasing out any properly or right of a religious institution if he is satisfied that the interest
of the institutions will not suffer by dispensing with such public action, the Commissioner namely the 1st respondent can order dispensing with the
public auction, of course, for the interest of the Temple. Arguments were advanced that as per Rule 2 of the Rules, the 2nd respondent could allot
the houses only by auction and the public cannot be deprived of having allotment of the houses. It is to be noted that as per Rule 2 of the Rules, of
course it is stated that lease of immovable property and rights belonging to religious institution shall be made by public auction. However, on a
reading of Rule 11, the public auction could be also dispensed with if the respondents are satisfied that the interests of the institution will not surfer
by dispensing with the public auction. Therefore, by virtue of the said provision, power is conferred on the respondents to dispense with public
auction. Moreover, in view of the specific stand taken by the respondents which was referred to above for resorting to the procedure as instructed
in the impugned order for leasing out the houses, I do not find any merit in the contention of the learned counsel for the petitioners that the houses
should be leased out only through public auction.
The next question to be considered is as to whether the allotment of entire houses could be made only to the employees of the H.R. & C.E.
Department and the Temple. The reason for issuance of circulars and reserving 50% of the houses to the employees of H.R. & C.E. department
and the remaining 50% of the houses to the employees of the Temple has been made only when the 2nd respondent experienced the difficulty in
collecting the rent from the tenants when the houses are leased out to the public. As could be seen from the counter affidavit, out of 225 houses
belonging to the 2nd respondent, 185 houses are now under occupation by the public and a sum of Rs. 13 lakhs are due from these tenants as
arrears of rent. It is the case of the 2nd respondent that if the houses are allotted to the employees of H.R. & C.E. Department and the Temple, the
rents are fixed as per Rule 17 of the Rules enabling the 2nd respondent to fix the fair rent and the same can be recovered from the salary of the
employees. The said submission would clearly indicate that the instructions for allotment of 50% of the. houses to the employees of H.R. & C.E.
Department and the remaining 50% of the houses to the employees of the Temple would be only in the interest of the Temple and in order to
secure and safeguard the revenue of the Temple. It is also to be noted that the entire allotment of houses cannot be construed as reserved for only
the employees of the H.R. & C.E. Department and the Temple by totally excluding the public. As per paragraph 4 of the said circular, it is made
clear that in the event of any houses not leased out to the employees of the H.R. & C.E. Department and Temple, the same could be allotted to the
public also. The earmarking of 50% of the houses to the employees of H.R. & C.E. Department and the remaining 50% of the houses to the
employees of the Temple would at best be called as a rule of preference and cannot be called as reservation of the houses for the employees only.
Such preference has been made only in the interest of the Temple as could be seen from the submission of the learned counsel for the respondents
as well as from the counter affidavit filed on behalf of the 2nd respondent. Hence, I reject the contention of the petitioners in this regard also and I
do not find any discrimination or violation under Article 14of the Constitution of India in earmarking percentages for allotment of houses to the
employees of the H.R. & C.E. Department and the Temple.
The next submission advanced by the learned counsel for the petitioners is that if the impugned circular is given effect to, the Temple will be put
to loss of revenue. Going by the details given by the respondents with regard to the difficulty experienced by the Temple authorities in collecting the
rent from the tenants, if the houses are allotted to the employees of the Department and the Temple the rent can be recovered from the salary and
the Temple can be benefitted instead of resorting to legal proceedings for recovery of rents from the defaulting tenants. In this context Rule 17 of
the Rules enabling the authorities for fixing of fair rent to the buildings belonging to the religious institution can also be taken note of and the same
reads as follows:
Fixation of fair rent to buildings belonging to the religious institutions. Fair rent to the site and buildings belonging to the religious institutions shall
be revised periodically at least once in three years by a Committee constituted for each Joint/Joint Commissioner''s division by the Commissioner.
If there is an Executive Officer, appointed for the religious institution, be shall also be associated with the work of the Committee. If there is no
Executive Officer appointed for the religious institution, the trustee or Chairman, Board of Trustees shall be associated with the work of the
Committee. The fair rent shall be fixed in accordance with the market value of the land and the cost of the building worked out as per the code of
the Public Works Department.
By virtue of the above provision, the rents fixed to the allottees of the houses can be reviewed and fixed at least once in three years. I am
unable to reject the contention of the learned counsel for the respondents that in the event of retirement, termination or transfer there won''t be any
difficulty for the Temple to take possession of the vacant houses and to immediately lease out the same to the intending employee without there
being any break in the income to the Temple by way of rent. When the houses are leased out to the tenants, in view of the difficulty experienced by
the Temple even to recover the rent, and in some cases after accumulation of rent the tenants leave the houses without even payment of any arrears
of rent and the Temple was put to great difficulty in recovering such arrears, the earmarking of the houses for being allotted to the employees of
H.R. & C.E. Department and the Temple would be justified. In view of the above findings, I also do not find any reason to accept the contentions
of the learned counsel for the petitioners that by allotting the houses only to the employees of the H.R. & C.E. Department and the Temple, the
temple is put to revenue loss.
Further, the scope of judicial review in the matters like this is very very limited. In the judgment reported in Tata Cellular Vs. Union of India,
the scope of judicial review was considered very exhaustively and more particularly in the matter of contracts. While approving the dictum of the
Supreme Court in the Judgment reported in "" Sterling Computers Limited and Others Vs. M and N Publications Limited and Others, their
Lordships of the Supreme Court have held thus:
...If the decisions have been taking in bona fide manner although not strictly following the norms laid down by the courts, such decisions are upheld
on the principle laid down by Justice Holmes, that courts while judging the constitutional validity of executive decisions must grant certain measure
of freedom of ''play in the joints'' to the executive."" Their Lordship have also held that the Government must have freedom of contract. In other
words a fair play in the joints is a necessary concomitant for an administrative body functioning in an administrative sphere or quasi administrative,
sphere. However, the decision must not only be tested by the application of Wednesbury principle of reasonableness but must be free from
arbitrariness not affected by bias or actuated by mala fides.
When applying the above dictum, the scope of the judicial review of this Court to interfere in the circulars which have been made by the
authority who is competent to make such circular in the interest of the religious institution is very limited. The instructions contained in the circulars
are only in the interest of the institution and in view of the fact that there is no total exclusion of the public from allotment of houses in the event of
any such houses available for making such allotment, and in view of my finding that there is no discrimination in earmarking 50% of the houses for
the employees of the H.R. & C.E. Department and the remaining 50% of the houses to the employees of the Temple, I do not find any merit in the
submissions made by the learned counsel for petitioners that if the impugned circulars are given effect to, the Temple will be put loss of revenue,
and therefore the writ petitions are liable to be dismissed. However, I make it clear that the petitioners have admittedly applied for allotment of the
houses to the 2nd respondent and as per the impugned circulars, if any, houses remain unallotted, the petitioners request shall be considered by the
2nd respondent and such houses could be allotted if the petitioners are otherwise eligible and entitled for such allotment subject to all the conditions
of allotment as instructed in the impugned circulars. With the above observation, all the writ petitions are dismissed. No costs. Consequently,
connected W.M.Ps. are also dismissed.