The Madras High Court has dismissed a writ appeal filed against the leasing out of 2.40 acres of land, belonging to the Somanathaswamy Temple at Kolathur in Chennai, to the Mylapore Kapaleeswarar Temple for establishment of an arts and science college.
A Division Bench of Justices R. Subramanian and C. Kumarappan rejected the appeal preferred by temple activist T.R. Ramesh after observing that the advantages of the transaction between the two temples would outweigh the procedural infractions involved in the leasing process.
The judges recorded the submission of senior counsel R. Shunmugasundaram, assisted by Special Government Pleader (Hindu Religious and Charitable Endowments department) that the temple land had been leased out for a period of 25 years at a monthly rent of ₹3.19 lakh.
The court was also told that the monthly rent would be increased by 15% every three years and that the college had already begun functioning from the academic year 2021-22. At present, 743 students were pursuing undergraduate and postgraduate courses, the senior counsel said.
On the other hand, Mr. Ramesh had contended that the HR&CE department had failed to strictly comply with Rule 2 of the Alienation of Immovable Property Trust Rules, 1960 which mandate public disclosure of all details regarding temple lands proposed to be given on lease.
He contended that the Rule uses the expression ‘shall’ and therefore, the department must have mandatorily disclosed the revenue assessed on the property and its probable rental value too as required under sub clauses (c) and (f) while calling for public objections, for the lease proposal, under Section 34 of the HR and CE Act of 1959.
Mr. Shunmugasundaram argued that the expression ‘shall’ used in certain procedural laws could be read as ‘may’ depending upon the object sought to be achieved. He relied upon a catena of decisions rendered by the Supreme Court to buttress his submission and said, procedural infractions would not vitiate the entire proceedings.
Concurring with his submissions, the Division Bench said: “As rightly contended by Mr. Shanmugasundaram, the effect of the term ‘shall’ used in a statute or a rule can also be held to be directory, and not necessarily mandatory, depending upon the object that is sought to be achieved… more so, when the Rule does not prescribe the consequence of failure to adhere to it.”
Pointing out that the object sought to be achieved by the 1960 Rules was to prevent indiscriminate lease or sale of temple properties, the judges said, once the HR&CE Commissioner, a public functionary, was ceased of the entire matter and had applied his mind in sanctioning the lease, the procedural infractions could not be cited as a reason to nullify the entire transaction.
