1. This is a petition for the issue of a writ of certiorari to call for the records of the Commissioner, Hindu Religious and Charitable Endowments and the Deputy Commissioner, Tanjore and to quash their orders by which a lease granted in favour of the petitioner by the trustee of the Swayambunathaswami temple was cancelled.
2. It is necessary to set out a few facts to appreciate the contentions of the petitioner. The 3rd Respondent in this petition, the Pandarasannathi of the Dharmapuram Adhinam is the hereditary trustee of the abovesaid Swayambunathaswami temple at Peralam. The present petition is concerned with a lease effected by the trustee, of an extent of 275.96 acres of nanja and 22.28 acres of punja, in favour of the petitioner on an annual rental of 2,900 kalams of paddy, Rs. 300 in cash, 500 coconuts, 500 coconut palm leaves, 400 bundles of straw, 5 kalams of blackgram and. 5 kalams of green gram. The term of the lease was 5 years and the lease was granted on 14th June, 1957. Freshes were soon expected in the river and hence agricultural operations had to be immediately commenced and the petitioner did so. But meanwhile by an order dated 16th July, 1957 pased by the Commissioner, the said lease has been directed to be cancelled and it is the validity of this cancellation that is challenged in this writ petition.
3. Before, however, discussiong the questions involved, there is one fact that I need mention, that the trustee, the 3rd Respondent appeared through Counsel and supported the petitioner in impugning the validity of the order of the Commissioner, for the reason that the lease executed by him was in the best interests of the institution, and that the institution would suffer grievous injury if the lease were cancelled. I shall now proceed to set out the statutory provisions which are relevant for the decision of this petition.
4. Section 29(1) of Madras Act XIX of 1951, the Hindu Religious and Charitable Endowments Act, enacts.
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.
As the lease in the present case was not for a term exceeding 5 years, it was within the powers of the trustee to enter into, and was not avoided for want of sanction of the Commissioner under Section 29(1). Section 100 of the Act enables Government to make rules to carry out the purposes of the Act, and in particular Sub-section (2)(m) of that section enables rules to be made with referrence to 'the manner in which and the period for which leases of properties of religious institutions shall be made'. Rules have been made under Section 100(2)(m) and under Rule 1 of these rules,
all leases of lands, buildings sites and other immovable properties and rights belonging to a religious institution shall be made by public auction held in the places in which the properties are situate or the rights exist....
However, the Deputy Commissioner is given power to sanction a variation of the locus of the auction.
5. In accordance with this provision the 3rd Respondent, trustee, advertised for the holding of a public auction of the lease of the lands now in controversy on 13th May, 1957, and an auction was held in pursuance of that notification in the presence of the Inspector of Endowments on 29th May, 1957. The highest bid fetched was only 2,700 kalams and as this was considered too low the bid was not accepted and a second auction was advertised to be held. This was conducted on 1st June, 1957. But this auction did not show any appreciable increase in the highest bid, the figure remaining at 2,725 kalams. Not being satisfied with the bid and the offer, the trustee held a third auction on 6th June, 1957 also in the presence of the Inspector of the Board where the highest bid was for 2,750 kalams. This compared rather unfavourably with the rent which had been stipulated to be paid by the lessee for the previous 5 year period, which was 3,200 kalams. Unfortunately however, this previous lessee one Ramayya Odayar had defaulted in the payment of rent and the trustee had to take legal proceedings for the recovery of arrears and these suits were defended. Having regard to the relationship between the previous lessee and the trustee, and the manner in which the former had behaved in regard to the lease which he took, the trustee considered and in my opinion reasonably that no one connected with the former trustee should be permitted to take the lease for the period commencing from 1957 and this was a further ground upon which the trustee was not inclined to accept the highest bid of one Thyagaraja Pillai, who had bid at the three auctions held in the presence of the Inspector of the Board. The last of the auctions was on 6th June, 1957, and when this failed to produce a proper lessee the trustee was eager to effect a lease urgently because the agricultural season was approaching and freshes in the river were expected any moment. At that stage, on 9th June, 1957, the petitioner made an offer to the trustee to take the lands on lease for the priod of 5 years at the rental of 2,900 kalams of paddy and payment of the other sums and delivery of the other produce, which I have set out earlier. The trustee considered this a proper offer and being satisfied that the rent stipulated was the best that could in the circumstances be obtained for the temple sanctioned the lease by order dated 14th June, 1957.
6. Immediately the lease was sanctioned, the petitioner as stated already entered on the property and started cultivation operations. The trustee communicated this lease of the lands to the Deputy Commissioner. Meanwhile on coming to know of the lease having been granted to the petitioner, Thyagaraja Pillai, who was the unsuccessful highest bidder at the three auctions held by the trustee at which he had made bids of 2,700, 2,725 and 2,750 kalams per year, appears to have approached the Deputy Commissioner on 19th June, 1957, with a request that he might be granted the lease offering now 3,201 kalams per year. Thereafter the Deputy Commissioner addressed a communication to the trustee on 3rd July, 1957, informing him that the lease to the petitioner could not be accepted on the ground that the rental was low and instructing him to lease the lands otherwise than by public auction to Thyagaraja Pillai for 3,201 kalams after obtaining sufficient security from him. The trustee did not give effect to these instructions, and thereafter, the Commissioner passed an order on 16th July, 1957, vetoing the lease of the lands to the petitioner. By a further communication dated 19th July, 1957, the Deputy Commissioner directed the trustee to lease out these lands to a co-operative farming society of cultivating tenants which it is understood had not by then been formed.
7. Before referring to the contentions urged on behalf of the petitioner, it would be necessary to set out a few of the relavant rules on which reliance has been placed on the one side or the other. I have already set out Rule 1 of the Rules framed under Section 100(2)(m) of the Act under which the trustees of religious institutions were directed to effect leases by public auction. The two other rules which are relevant in this connection are Rules 9 and 10. They run as fellows:
Rule 9(1):-' Leases otherwise than by public auction, shall not be resorted to except with the previous sanction of the Deputy Commissioner. No extension of lease shall be granted without the previous sanction of the Deputy Commissioner.'
Rule 9(2) : The Deputy Commissioner may, if it is necessary in the best interests of the institution, dispense with the requirement of Sub-rule (2) of Rule 2.
Rule 10 : All leases stipulating an annual rental of Rs. 500 or more or its equivalent in paddy or other produce shall be reported to the Commissioner who shall have power to veto such leases. If within one month from the date of receipt of the report by the Commissioner, no order vetoing or cancelling the lease is received, the lease shall be deemed to have been approved.
8. The first contention urged by Mr. Gopalaswami Iyengar, the learned Counsel for the petitioner, was that the Rules under Section 100 (a)(m) were invalid a? being in contravention of Section 29(1) of the Act, which I have extracted earlier. The argument was that Section 29(1) vested in trustees an absolute right to effect leases of immovable property, if the term of lease was 5 years or less, and that the rules which sought to place re friction on this power were inconsistent with such absolute right and were, therefore, invalid. I feel unable to accept this argument. Section 29(1) does not deal with the manner of leasing and Section 100(2)(m) which also I have extracted enables Government to frame Rules as regards the manner in which these leases shall be effected. There can be no doubt that a lease by public auction properly advertised is normally calculated to secure the best rental for the temple, and in these circumstances I am unable to uphold the contention that Rule 1. framed under Section 100(2)(m) requiring the trustees to effect sales of leases by public auction is not within the rule-making power.
9. It was next urged by the learned Counsel that under the Rules a lease which would otherwise be voidable or be the subject of a veto by the Commissioner would become confirmed unless the power of veto was exercised within the period of one month specified in the second sentence of Rule 10. The following dates are relevant for the purpose of the application of this rule. The lease in favour of the petitioner was sanctioned on 14th June, 1957. The trustee reported this immediately and the report reached the Commissioner on 16th June, 1957. The Commissioner passed the order now impugned on 16th July, 1957, though it is doubtful whether it was despatched on the same date. From the affidavit in support of the petition it would appear as if it was despatched only on the 17th. But anyway even if it was despatched on the 16th it could not have reached the trustee before the 17th but actually it is stated that it reached him much later. In fact in the counter-affidavit it is stated that
even if the order had reached the trustee one or two days later than the due limit of 30 days this circumstance cannot cure the initial infirmity in the lease which is bad in law for want of the previous sanction of the Deputy Commissioner.
The question that I have to consider now is what is the effect of the lapse of 30 days within which the power to veto could be exercised under Rule 10.
10. The contention urged by the learned Additional Government Pleader was that Rule 9(1) imposed an absolute bar on leases otherwise than by. public auction, and that such leases were, unless the previous sanction of the Deputy Commissioner had been obtained, ab inltlo void. The argument further ran that even if there was no cancellation the lease never took effect. On the other hand the submission of Mr. Gopalaswami Iyengar was that Rules 9 and 10 had to be read together and Rule 9 should be read so as to effectuate the purposes for which it was framed. His contention was that Rule 9 was directory, and that the failure to obtain the Deputy Commissioner's sanction only made it voidable, and that could properly be a ground upon which it could be vetoed by the Commissioner under Rule 10. I see considerable force in the argument of the learned Counsel for the Petitioner, and I accept that as the proper construction of Rule 9. Any other interpretation of the same would leave the institution as well as the person who has taken the lands on lease in a state of uncertainty which would act detrimentally to the interests of the institution. It could not be that a person who had entered into a lease in contravention of Rule 9--the lease not having been vetoed under Rule 10 should be treated as a trespasser and be liable to mesne profits at the suit of the trustee. Nor would it be in the interests of the institution that it should have no right to insist upon the stipulated rental from the lessee in such circumstances. I hold, therefore, that Rule 10 applies equally to cases where the terms of Rule 9 have not been complied with, and that even in such cases the veto has to be exercised within the period of one month prescribed by Rule 10. In this view the order of the Commissioner dated 16th July, 1957, was without jurisdiction and has to be set aside.
11. In the view that I have taken of the proper construction of these rules it has become unnecessary to consider whether the order of the Commissioner is vitiated by reason of its having been passed with a view to enable the lands to be leased not by public auction, but to a co-operative society of cultivating tenants to be formed. I have already drawn attention to the fact that the Deputy Commissioner has on 19th July, 1957, intimated to the trustee that the lease to the petitioner was cancelled and that in its place he should lease these lands to a co-operative society.
12. From the communication of the Deputy Commissioner it is clear that he was merely carrying out the directions of the Commissioner and that the impugned order directing the cancellation of the lease was in part at least influenced by the intention to aid the policy of Government to encourage cultivation by co-operative farms.The Court is not concerned with the economic policies of Government, but the matter becomes relevant only for considering whether the direction was given in the sole and exclusive interest of the Trust which it was the duty of the Commissioner to protect. I therefore directed the learned Additional Government Pleader to ascertain from the Commissioner or from the Government whose policy he was implementing, whether either of them could guarantee that the rent which the Co-operative Society would pay or deliver would be not less than what the 3rd Respondent had agreed to and adjourned the hearing for the purpose. I was however informed that no such guarantee could be given and that the temple should be content to receive the 40 or other percentage of the yield that the law might fix as the share of the landlord.
13. In these circumstancs, if the reason why the Commissioner exercised his power under Rule 10 to cancel the lease granted by the trustee was to have the lands cultivated by a Co-operative Society, a question would arise whether it would be a proper exercise of the power vested in him since admittedly the power to veto had to be exercised solely for the benefit of the institution. But in view however of my conclusion that the order violates the statutory time-limit imposed by Rule 10. I am relieved of the necessity of discussing this point any further.
14. The petition succeeds and the rule nisi is made adbolute. There will be no order as to costs.