COMMISSIONER OF HINDU RELIGIOUS AND CHARITABLE ENDOWMENTS DEPARTMENT NUNGAMPAKKAM MADRAS 34 Vs. MARY ISABAL

JUDGEMENT

(1.) THESE writ appeals raise an important question as to the jurisdiction of this Court under Art. 226 of the Constitution of India with regard to the issue of Mandamus. The brief facts, which are necessry, are set out below:

(2.) THE parties are referred to in the manner in which they are arrayed in these writ appeals. THE second respondent Aadheenakarthar owns large extent of land in the State of Tamil Nadu scattered over various districts and one such property which forms the subject matter of these writ appels is survey No. 234/3 and 234/4 (old survey Nos. 53 and paimash Nos. 307, 308 and 311 to 316 ). It comprises an extent of 4 acres and 5 cents of wet lands in Adambakkam Village , Saidapet Taluk, Chelgalpattu district. On 27-8-1969, the second respondent entered into an agreement for sale of this land with one M. S. sabapathy. Under the terms of the agreement the consideration was fixed at Rs. 180 per cent. On this agreement, an application was made to the appellant herein for sanction under section 34 of the Tamil nadu Hindu Religious and Charitable Endowments Act,1959 (hereinafter referred to as the Act ). THE appellant directed the Assistant Commissioner, kancheepuram, to hold an enquiry and submit his report on the necessity for the sale and market value of the property. By his report dated 11-12-1972 the assistant Commissioner found that there was necessity for the sale and sanction might be accorded to the second respondent. However, it was stated by him that the price would be somewhere in the region of Rs. 400 percent. In the event of the intending vendor proposing to offer that consideration of Rs. 400 per cent, necessary permission might be accorded. THE agreement holder viz. ,m. S. Sabapathy was not interested in purchasing the property at Rs. 400 per cent and insisted on the sale of the property at Rs. 180 per cent to him. Since the parties could not come to an amicable settlement and as the said M. S. Sabapathy was not willing to purchase the property at Rs. 400 per cent he asked for the return of the advance paid by him. He also claimed damages as against the second respondent. For the recovery of the advance paid by M. S. Sabapathy and also damages and interest, he filed O. S. No. 129 of 1972 on the file of the subordinate Judge of Chengal-pattu against the second respondent. THE advance claimed was Rs. 20,000 and damages of Rs. 10,000 with interest. In all the suit was laid for the recovery of Rs. 35,562. 50. THE said suit, on trial came to be decreed on 28-11-1975. Under the terms of the decree, the plaintiff therein was held to be entitled to the refund or the advance of Rs. 20,000, while the damages came to be fixed at Rs. 5,000, in all a decree for Rs. 25,000 together with interest at 6% per annum was passed. THE plaintiff was also awarded proportionate costs of the suit.

(3.) ON 4-1-1979 an application was made to the commissioner for sanction to sell the land at the rate of Rs. 600 per cent. In that application it was pointed out by the second respondent herein that Rs. 600 per cent now offered would be beneficial to the institution. A report was called for by the Commissioner from the Assistant Commissioner, Urban Land Tax, saidapet. It was reported that the value of the property might be Rs. 1,000 per cent. ON 29-10-1980 the Commissioner called upon the first respondent to send a letter of acceptance to signify his consent to purchase the property at rs. 1,000 per cent. The Commissioner was informed that the valuation fixed by the District Revenue Officer, Kancheepuram, was Rs. 730 per cent, that the present claim of Rs. 1,000 per cent was exorbitant and that on the date of the agreement the market value would be only Rs. 600 per cent and not more. It was also pointed out that the first respondent had incurred a lot of expenses in evicting the tenants and the unauthorised occupants. Therefore, the commissioner was requested to fix a reasonable price. The second respondent also wrote a latter to accept the price offered by the first respondent originally. The Commissioner, however, insisted on payment of a sum of Rs. 1,000 which could not be reduced under any circumstances. The first respondent by her letter dated 21-11-1980 agreed to pay Rs. 1,000 Pursuant to this, on 27-11-1980, the first respondent was called upon to pay a sum of Rs. 350 by way of advertisement charges. The same was paid by the first respondent on the same date. Whereupon the publication appeared in the newspapers, inviting objections, if any, either in writing or in person for the proposed sale of the land at Rs. 1,000 per cent by the second respondent in favour of the first respondent. It was also informed that an enquiry in this regard would take place on 20-1-1981 and the objectors could make their representations. No objection was received by the Commissioner; nor again was there any oral representation made on the date of hearing viz. , 20-1-1981. However, on 22-2-1982 the Commissioner refused to grant sanction and proposed that the sale be held in public auction. Even before this, finding that no nction had been granted, the first respondent came forward with W. P. No. 1857 of 1982 on 1-3-1982 for a writ of mandamus to direct the Commissioner to accord sanction on the application dated 4-1-1979 filed by the second respondent under section 34 of the Act. As we observed already. since an order was passed on 22-2-1982, that drove the first respondent herein to the necessity of filing another writ petition viz. ,w. P. No. 8418 of 1982 on 11-10-1982 for awrit of certiorarified mandamus to quash this order and consequential direction to grant sanction. Both these writ petitions came up for hearing before our learned brother v. Ramaswami, J. , as he then was. The learned Judge took the view that under section 34 of the Act, sanction could be refused only in the following circumstances: "there could be no doubt that if the price is grossly inadequate that may be put as a ground on the basis that the sale for grossly inadequate price would not be for the benefit of the institution. Though the section requires sanction by the Commissioner, the powers of the commissioner could not be exercised arbitrarily. It could be exercised only on reasons recorded that the sale would neither be necessary nor beneficial to the institution either on the ground that the price accorded was grossly inadequate or the transaction was a result of a fraud or corruption or nepotism or at such similar grants. Merely on the basis that the transaction was one entered into private by parties and not in pursuance of a public auction, it is not possible to refuse sanction'. " He was also of the view that if at this stage after the lapse of six years the property were sold in public auction, it would be most unreasonable and unjust, as the reasonableness of the price would have to be fixed with reference to the date on which the Commissioner had made the order or the date on which the public auction has to be held in pursuance of the order of the Commissioner. He found that having regard to the report of the assistant Commissioner, above referred to, there was necessity for sale. It would be made clear by the Assistant Commissioner, above referred to, there was necessity for sale. It would be made clear by the Assistant Commissioner in his report dated 11-12-1972. In the result, the Commissioner was only considering whether the price was adequate and reflected the market value. He was clearly of the view that since the first respondent herein had agreed to the price as suggested by the Commissioner viz. , Rs. 1,000 per cent, the order could not be supported. It was also found that the second respondent institution supported the case of the first respondent herein and was willing to sell the property for Rs. 1,000 per cent. In view of what is stated above, the learned Judge held in paragraph 7 of his judgment as follows: - For the foregoing reasons, the impugned order of the commissioner is set aside and there will be a mandamus directing the commissioner to sanction the sale in favour of the petitioner at the rate of rs. 1,000 per cent and such order shall be made within a period of one week from the date of the receipt of this order". It is under these circumstances, these two appeals have arisen, W. A. 1198 of 1983 has been preferred against the order in W. P. No. 8418 of 1982 and W. A. No. 1199 of 1983 has been preferred against the order in w. P. No. 1857 of 1982.