Madras High Court
Arulmigu Paravai Annam Katharuliya ... vs The District Collector on 3 June, 2015
Author: R.Mahadevan
Bench: R.Mahadevan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 03.06.2015 CORAM THE HONOURABLE MR.JUSTICE R.MAHADEVAN W.P(MD)No.713 of 2013 and M.P(MD)No.1 of 2013 Arulmigu Paravai Annam Katharuliya Swamy Deity through its Executive Officer, Sankarankoil Road, Rajapalayam, Virudhunagar District. ... Petitioner Vs. 1.The District Collector, Virudhunagar Colletor's Office, Virudhunagar. 2.The District Revenue Officer, Collector's Office, Virudhunagar. 3.The Revenue Divisional Officer, Sivakasi. 4.The Tahsildar, Taluk Office, Rajapalayam, Virudhunagar District. 5.P.B.Rajeswara Raja 6.Thilagam 7.S.V.Jeyakumar 8.R.Rathi 9.N.K.Ramasamy Raja 10.N.K.Subburama Raja 11.N.K.Venkateswara Raja 12.N.S.Krishnama Raja 13.N.K.Ramkumar ... Respondents PRAYER: Writ Petition is filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorari to call for the records in Na.Ka.B- 2/25426/2010, dated 22.09.2012 on the file of the second respondent and quash the same as illegal, ultra vires and against the principles of natural justice. !For Petitioner : Mr.S.Manohar For Respondents : Mr.N.Manoharan, Special Govt. Pleader for R.1 to R.4 Mr.K.Srinivasan, Senior Counsel for Mr.M.P.Senthil for R.5 to R.8 Mr.G.Venugopal for R.9 to R.13 Date of reserving the order : 27.04.2015 Date of pronouncing the order : 03.06.2015 :ORDER
Alleging that the lands granted to the petitioner temple as Inam, have been illegally transferred to the respondents 5 to 13, this writ petition has been filed seeking a Writ of Certiorari to call for the records in Na.Ka.B- 2/25426/2010, dated 22.09.2012 on the file of the second respondent and quash the same as illegal, ultra vires and against the principles of natural justice.
2. The case of the petitioner is that the properties in S.No.291/A measuring 8.53 acres; in S.No.291/B measuring 0.85 cents and in S.No.291/C measuring 2.30 acres in Pudupalayam village, Rajapalayam Taluk, were granted as Inam lands to the petitioner and the said grant is Devadayam. However, the fourth respondent transferred the patta in respect of the said lands in favour of the respondents 5 to 13 without giving any opportunity to the petitioner. By virtue of the Tamil Nadu Act 30 of 1963, the proceedings were initiated under the said Act in 48/Srivilliputtur/66, dated 01.03.1967 and the said lands were covered under the Inam Title Deed No.178 and therefore, they are inalienable under the provisions of the said Act. Further, one Parasurama Ayyar, who was in the administration of the temple, had obtained the orders under Act 2 of 1927, in O.A.No.83 of 1940 from the Board of Commissioners, Hindu Religious Endowment, wherein the temple has been excepted.
3. Aggrieved by the order of the fourth respondent in transferring the patta in the name of the respondents 5 to 13, the petitioner filed the appeal before the third respondent in Na.Ka.A-1/14533 of 2006 and the same was rejected by the third respondent by order dated 05.07.2010 (P-2), holding that the said lands were sold by the said Parasurama Battar to various persons. According to the petitioner, the said Parasurama Battar had no legal right to alienate the lands of the petitioner and it is illegal. Challenging the order of the third respondent, the petitioner preferred a revision before the second respondent, who, by the impugned order dated 22.09.2012, dismissed the revision. Therefore, the petitioner is before this Court.
4. The second respondent filed the counter affidavit denying the allegations made by the petitioner and stated that the title of the properties had been decided by the Settlement authorities only based on the documentary evidence adduced by the parties and that the said Parasurama Battar being the hereditary trustee sold the properties under the registered sale deeds during the years 1946 and 1947. It is denied that the said Parasurama Battar had no legal right to alienate the lands in question. Further, it is contended that the order passed by the Settlement Tahsildar under Section 8(2)(i)(b) of the Act 30 of 1963, regarding the lands in S.No.291/A measuring 8.53 acres, is valid and the petitioner did not prefer any appeal till date. Hence, the second respondent prayed for the dismissal of this writ petition.
5. In the counter filed by the respondents 5 to 8, it is, among other things, contended that the temple has been under the continuous management of the said Parasurama Battar and since he is the descendant of the original grantee, sold the properties by way of various sale deeds to several persons during 1946 and 1947, through valid registered documents. Pursuant to the enquiry conducted by the Settlement Tahsildar as per the provisions of the Tamil Nadu Minor Inam Abolition Act, 1963, the above said sale deeds were accepted as they were in exclusive possession continuously for the entire relevant periods and held that the properties are Iruwaram Grant and also ordered to grant patta under Section 8(2)(i)(b) of the Act 30 of 1963, by order dated 01.03.1967, against which, no appeal was filed. Therefore, the petitioner cannot claim any right at this stage by invoking the jurisdiction of this Court under Article 226 of the Constitution of India.
6. The respondents 9 to 13 also filed their counter affidavit refuting the claim of the petitioner and prayed for the dismissal of this writ petition.
7. Mr.S.Manohar, learned Counsel for the petitioner submitted that the lands granted to the petitioner temple as Inam lands, were illegally sold by the said Parasurama Battar to several persons and later, the patta has been transferred in the names of the respondents 5 to 13. He further submitted that the third respondent without even considering the claim of the petitioner rejected the appeal filed by the petitioner and the same has been confirmed by the second respondent.
8. It is the main contention of the learned Counsel for the petitioner that the respondents 5 to 13 appear to have purchased the lands from a person, who had no rights to alienate and who did not represent the petitioner temple and therefore, the respondents 5 to 13 could not be held to have derived valid rights or said to have legally acquired any interest in the properties in question and consequently, the transfer of patta made by the authorities concerned in their favour, is bad in law.
9. In support of his submissions, the learned Counsel for the petitioner relied on the following decisions:
(i) Periya Muthu Naicker & another v. Arulmighu Sevantheeswarar Koil reported in 1997-2-L.W. 159. The relevant portions are extracted as under:
"5. A Division Bench of this Court has held in the decision reported in 1983 T.L.N.J., 126 (Vellaisamy vs. Sri Chinnasellandiamman Temple by its Trustee Govindaswamy Gounder and another) that in cases where the grant is in favour of the temple and permanently made of both warams and confirmed as long as the temple exists, mere long possession by any one other than the temple or as representing the temple will not by itself militate against the nature of the grant being of both warams in favour of the institution. As a matter of fact, there was no serious contest or dispute over this settled position and before us it was proceeded on the basis, by the counsel appearing on either side, that the grant was of both warams in favour of the temple.
6. In the above circumstances, the next issue that arises for consideration is as to whether the appellants could claim to be entitled to patta under S. 8(2)(i)(b) of the Act by virtue of the sale said to have been effected in their favour or their predecessors in interest. To bring a case under S. 8(2)(i)(b) of the Act, it has to be proved that the Land, which was the subject matter of the inam granted for the support or maintenance of the religious institution has been transferred by way of sale and the transferee or his heir assignee or legal representative or person deriving rights through him had been in exclusive possession of such land for a continuous period of 12 years immediately before 1.4.1960 subject to his payment of the consideration as stipulated therein."
(emphasis supplied.)
(ii) A.A.Gopalakrishnan v. Cochin Devaswom Board reported in AIR 2007 SUPREME COURT 3162. Paragraph 10 is reproduced hereunder: "10. The properties of deities, temples and Devaswom Boards, require to be protected and safeguarded by their Trustees/Archaks/Sebaits/employees. Instances are many where persons entrusted with the duty of managing and safeguarding the properties of temples, deities and Devaswom Boards have usurped and misappropriated such properties by setting up false claims of ownership or tenancy, or adverse possession. This is possible only with the passive or active collusion of the concerned authorities. Such acts of 'fences eating the crops' should be dealt with sternly. The Government, members or trustees of Boards/Trusts, and devotees should be vigilant to prevent any such usurpation or encroachment. It is also the duty of courts to protect and safeguard the properties of religious and charitable institutions from wrongful claims or misappropriation."
(iii) Arulmighu Lakshmi Narayanaswamy Temple v. Nallammal reported in 2011 (5) CTC 569. Paragraph 13 reads thus:
"7) The expression "Malevarm" referred to in Section 2(5) means the share of the produce due to the landlord and the expression "Kudiwaram" means the cultivator's share of the produce. Chapter III of the Act deals with "Grant of Ryotwari Pattas". Section 8 deals with grant of Ryotwari Pattas. In terms of Section 8, any person claiming to be entitled to Kudiwaram right has to prove the same by virtue of any grant in his favour or in favour of his predecessors-in-interest and the Kudiwaram interest being a peculiar concept, depending upon the status and grant only, could not be claimed to have been acquired by mere possession or cultivation of lands for any length of time.
Such rights as an ordinary cultivating tenant, have got to be asserted or sustained or substantiated under the ordinary tenancy law. Inasmuch as further details are not required, there is no need to delve into other provisions of the Act.
***** ***** ***** *****
13. Once the lands are notified as minor Inam lands under Act No.30 of 1963, the same is binding on the authorities constituted under the Act. Thereafter, they cannot go beyond the Act and decide the character of the lands, namely, whether the lands are minor Inam lands or not. ...." (emphasis added.)
10. Mr.N.Manoharan, learned Special Government Pleader for the respondents 1 to 4, reiterating the averments made in the counter affidavit filed by the second respondent, contended thus:
10.1. The transfer of patta has been effected in the names of the respondents 5 to 13 only based on the documentary evidences by adhering to the procedures laid down by law.
10.2. The title of the properties has been decided by the Settlement authorities under the Inam Abolition proceedings, based on the documentary evidence adduced by the parties.
10.3. The petitioner did not prefer any appeal as against the said proceedings within the stipulated time and hence, it reached finality.
10.4. The said Parasurama Battar, who obtained the orders from the Board of Commissioner, Hindu Religious and Charitable Endowments Department, that the petitioner temple is an excepted one, sold the properties in question through the registered sale deeds in the capacity of the hereditary trustee.
10.5. As the sale effected by the said Parasurama Battar through the valid registered sale deeds, the petitioner cannot plead that they are illegal.
10.6. The second respondent has passed the impugned order after taking into account all the relevant materials available and after affording the opportunity of hearing to either side.
10.7. The order passed by the Settlement Tahsildar under Section 8(2)(i)(b) of the Act 30 of 1963, in respect of S.No.291/A measuring 8.53 acres, is sustainable in law and so far, the petitioner had not filed any appeal as against the same. Hence, he prayed for the dismissal of this writ petition.
11. Mr.K.Srinivasan, learned Senior Counsel appearing for the respondents 5 to 9 made the following submissions:
11.1. Originally, the lands in question measuring 11 acres and 68 cents were the Iruwaram Grant Inam lands and the grantees were in possession and enjoyment of the said lands and it has also been confirmed by the Government.
11.2. One Parasurama Battar, the service holder of the petitioner temple, got declared the temple as an excepted one, in O.A.No.83 of 1940 on the ground that the said temple has been under his continuous management and his ancestors. Thereafter, the said Parasurama Battar, being the descendant of the original grantee, sold away the lands in question to various persons through registered sale deeds.
11.3. During the enquiry under the provisions of the Tamil Nadu Minor Inam Abolition Act, the Settlement Tahsildar ordered to grant patta under Section 8(2)(i)(b) of the Act 30 of 1963, in his proceedings dated 01.03.1967 in 48/SRI/66 - TD.No.178, however, the petitioner temple failed to challenge the same by filing any appeal and therefore, the petitioner is estopped from claiming any right over the lands in question.
11.4. The respondents 5 to 8 derived their titles through valid registered sale deeds and hence, the petitioner is not entitled to any relief as prayed for.
11.5. The request of the petitioner temple for transfer of patta has also been categorically rejected by the third respondent, stating that the lands in question stood only in the name of the grantee and moreover, the revision petition filed by the petitioner before the second respondent was also dismissed, confirming the order of the third respondent.
11.6. The delay on the part of the petitioner temple in seeking the remedy before this Court is huge and thus, this writ petition is liable to be dismissed on the ground of delay and laches. Accordingly, the learned Senior Counsel appearing for the respondents 5 to 8 prayed for the dismissal of this writ petition.
12. Mr.G.Venugopal, learned Counsel for the respondents 9 to 13, while reiterating the averments in the counter affidavit filed by the respondents 9 to 13, has adopted the arguments of the learned Senior Counsel appearing for the respondents 5 to 8 and hence, prayed for the dismissal of this writ petition.
13. In support of the contentions of the respondents 5 to 13, the following decisions have been relied on:
(i) Palaniappa Pandaram and others v. The Special Commissioner and Commissioner of Land Administration, Madras and others reported in 1995-2-
MLJ-594. The relevant portion is reproduced hereunder:
"Section 21 of the Act has relevance only to service inams and the grant, of the patta in the name of the deity and for the support of the Pagoda cannot be said to be a service inam. If the inam is really a service inam, Patta would have been granted only in favour of the service holders subject to the condition of performance of the service. It is only in such cases, there is scope for having recourse to Section 21 and not a case like the one concerned before us. That apart, the Regular Tahsildar of the Taluk under the Revenue side has no power to deal with claims under the special enactment in question. The patta granted in favour of the temple cannot be interfered with by the Tahsildar or any of the ordinary revenue authorities exercising their powers under the Revenue Standing Orders and the patta granted under the said Special enactment under a particular provision can, if at all, be interfered or modified only by the statutory authorities provided under the statute itself in the manner and the extent provided therein."
(ii) V.P.Kandasamy & 29 others v. The Tahsildar, Coimbatore North and others reported in 2008 Writ L.R. 795. Paragraphs 10 to 15 would run thus:
"10. Section 11 of the Act enables the Settlement Tahsildar to decide about the claim of ryotwari patta. As per sub-section (3) of Section 11, against the order of the Settlement Tahsildar, the Government can file appeal to the Tribunal within one year from the date of decision and any other person aggrieved by such decision may file appeal within three months from the date of order. However, the Tribunal in its discretion may allow further time not exceeding two months for filing any such appeal. It also provides that in cases where the Government files appeal, the Tribunal may in its discretion entertain the appeal, if it appears to the Tribunal that the decision of the Settlement Officer is vitiated by fraud or mistake of fact. The said section reads as under:
"11.Determination of lands in respect of which any person is entitled to ryotwari patta.-
(1) .....
(2) .....
(3) Against a decision of the Assistant Settlement Officer under sub-
section (2), the Government may, within one year from the date of the decision, and any person aggrieved by such decision may, within three months of the said date, appeal to the Tribunal:
Provided that the Tribunal may, in its discretion, allow further time not exceeding two months for the filing of any such appeal. Provided further that the Tribunal may, in its discretion, entertain an appeal by the Government at any time if it appears to the Tribunal that the decision of the Assistant Settlement Officer was vitiated by fraud or by mistake of fact."
11. Under Section 7 of the Act, Tribunal has been constituted, which shall consist of one person only, who shall be a Judicial Officer not below the rank of Subordinate Judge. It is also relevant to point out that as against the order of the Assistant Settlement Officer, under Section 11(3) of the Act the Government can file appeal to the Tribunal within one year and any person aggrieved can file appeal within three months from the date of such decision, however with power to the Tribunal to extend the time not exceeding another two months and the Tribunal also has the power to entertain appeal by the Government at any time if it appears to the Tribunal that the decision of the Assistant Settlement Officer was vitiated by fraud or by mistake of fact and the decision of the Tribunal is final as per Section 46 of the Act.
12. In the present case, it is not in dispute that the Settlement Tahsildar acting as per the powers of the Act,1963 has conducted a suo-motu enquiry after causing wide publication as required under the Rules in respect of the subject matter of land which is concerned in the present writ petition. In fact, the Settlement Tahsildar has referred to TD.No.240, which in the form of unenfranchised Devadayam Inam. The Settlement Tahsildar has relied upon the judgement of the High Court in Second Appeal No.301 of 1889 dated 14.02.1890, wherein it was held that the grant of inam land to the temple consisting only melvaram and not iruvaram and the temple did not own any kudivaram right in the land, since the kudivaram right was exclusively owned by the predecessor-in-title of the petitioners,viz., Ayi Gounder. In the enquiry by Settlement Tahsildar as per the Act, the Karnam of the Village was examined as C.W.1, who filed a true copy of the Inam B-Register marked as Ex.C.1 and deposed that there is no temple by name Muttathu Royan in existence in the Village. That evidence was also supported by the further evidence of Settlement Inspector, Gobichettipalayam, who was examined C.W.2 and he filed a True Extract of Inam Fair Register relating to the T.D. marked as Ex.C.2. The Settlement Tahsildar found that even though under Ex.C.2 the land in question is stated as unenfranchised Devadayam Inam granted in support of Muttathu Royan temple, the evidence of C.W.1 shows that the temple is not in existence for quite a long time and in addition to that the High Court has also made a final judgement as stated above that the temple itself was having only Melvaram and not Kudivaram right.
13. It was in those circumstances, the Settlement Tahsildar has directed issuance of patta in favour of the predecessor-in-title of the petitioners by order dated 29.09.1968. A reference to the order also shows that the copy of the order has been submitted to the Assistant Settlement Officer, Gobichettipalayam and also to the Assistant Commissioner, H.R. & C.E. (Admn.) Department, Coimbatore, who is the second respondent.
14. On the face of it, even when the second respondent has been served with a copy of the order of the Settlement Tahsildar dated 29.09.1968, even at that time it is not known as to how the second respondent could file any appeal in the light of Section 11 of the Act, as enumerated above. Because even the Tribunal has no right to condone the delay beyond the time prescribed under the proviso to Section 11 of the Act. In any event, as on date, the order of the Settlement Tahsildar is in force and as stated by the first respondent in the counter affidavit, it is the duty of the first respondent to implement the same. On the other hand, the first respondent, has chosen to deny the claim of the petitioners only on the basis that the second respondent has made a claim that the property belongs to the temple and therefore, patta cannot be granted in respect of temple property.
15. The second respondent, having received the order of the Settlement Tahsildar, has not chosen to question the same for nearly 40 years. The receipt of copy of the order of the Settlement Tahsildar dated 29.09.1968 by the second respondent can be taken to be a notice to the third respondent Temple, which is represented by Fit Person, who is stated to have been appointed by the second respondent by order dated 17.02.2006."
(iii) R.Natesan v. The District Collector and others [W.P.(MD)No.9060 of 2014, etc. batch, decided on 04.08.2014]. Paragraph 20 is extracted below:
"20. The impugned order, dated 12.05.2014, has virtually nullified all the sale transactions, which have been taken place, since 2005 and it has cancelled the mutations effected during the past nine years, which were effected by the Revenue Officials. The validity of the impugned order after the grant of approval for conversion of agricultural land into residential layout is a big question mark. Further, planning permission is said to have been granted in favour of twenty persons and they have put up constructions. Unless and until the ryotwari pattas, which was granted to the Aarachars during 1967, are terminated or cancelled or modified in the manner known to law for failure of any condition or such other matters, the question of nullifying the subsequent transactions made by the legal heirs of the Aarachars would not arise. As rightly contended by the learned counsels for the petitioners, it amounts to putting the cart before the horse. The entire proceedings are in a total disarray, principles of natural justice have been thrown to the winds, arbitrariness looms large on the face of the impugned order, perversity is manifest and the impugned order does not satisfy the test of reasonableness or fairness."
(emphasis given.)
14. This Court has carefully considered the rival submissions and perused the materials available on record.
15. A perusal of the materials placed before this Court would reveal the following facts:
15.1. The Board of Commissioners for Hindu Religious Endowments, Madras, by order dated 22.04.1940, declared the petitioner temple as excepted one.
15.2. The Settlement Tahsildar, Kovilpatti, conducted an enquiry under Section 11 of the Madras Minor Inam Abolition Act, 1963 (Act 30 of 1963), into the claims for ryotwari patta in respect of the lands in S.Nos.291/A, B, C and 290/1 in the village of 41, Pudupalayam, in Rajapalayam Sub Taluk, endowed for rendering pooja service in the petitioner temple and passed the following order, dated 01.03.1967:
"4. The extract from the B register for the village (EXCI) shows that the grant has been confirmed by the Government and that these are the lands dealt with in the grant. This grant has to be dealt with under section 8(2) of the Act alone in the absence of any rebuttal proof under section 44 of the Act. From the evidence on record, I am satisfied that this is an iruvaram grant and that the present occupants except Kandasami Raja are entitled on payment of consideration to Government under section 8(2)(1)(b) for an extent of 7.16 cents in S.No.291-A and that the temple of Sri.Paravaiannam Katharuliaswami represented by the service holder Sivakamiammal is entitled to patta under section 8(2)(ii) read with section 8(5) for the remaining extent of 87 cents. Patta will issue accordingly for the land in the joint names of Dharma Raja, Subramania Raja,Ponnambalam, Lakshmanaperumal, Sivagurunathan and the temple represented by the service holder Sivakamiammal jointly."
15.3. Accordingly, the patta has been issued in respect of S.No.291/A in favour of the above individuals by the Settlement Tahsildar.
15.4. In the impugned order, it has been held by the second respondent that insofar as S.Nos.291/B and 291/C are concerned, they were Government poramboke lands.
15.5. The second respondent has categorically found that since the petitioner temple has been declared as excepted one, the provisions of the Hindu Religious and Charitable Endowments Act, have no application to the petitioner temple and therefore, the patta has not been granted in the name of the petitioner temple, but, in favour of the service holder and hence, no action has been taken as against the said Parasurama Battar who sold the lands in question through the registered sale deeds. Thereafter, the patta in respect of the said lands, has been transferred in the names of the respondents 5 to 13 herein.
15.6. Further, the second respondent found that the petitioner temple did not take any steps to retrieve the lands in question by challenging the proceedings of the Settlement Tahsildar, Kovilpatti, who had granted the ryotwari patta in favour of the individuals. The petitioner temple ought to have filed the appeal before the appropriate forum in this regard, but, it failed to do so and no documentary evidence was let in before the second respondent to prove the same.
15.7. Therefore, the second respondent held that the petitioner temple had not filed any objection as per Section 46 of the Act 30 of 1963, impugning the grant of ryotwari patta and therefore, the petitioner has to seek remedy before the appropriate civil Court.
16. Considering the submissions put forth on either side and taking into account the dicta laid down in the decisions relied on by the parties, this Court is of the view that this writ petition lacks merit and is liable to be dismissed for the following reasons:
(i) No materials have been produced either before the respondent 2 and 3 or before this Court to establish that the petitioner temple had taken effective steps to challenge the proceedings of the Settlement Tahsildar, Kovilpatti, who had granted ryotwari pattas in favour of the individuals, by his order dated 01.03.1967.
(ii) In the absence of the same, the petitioner cannot claim any right over the said lands at this distant point of time by filing this writ petition.
(iii) The second respondent has rightly found that since the petitioner temple is declared as excepted one, the patta has not been given in the name of the petitioner temple as per the provisions of the Act 30 of 1963.
(iv) Similarly, no action was taken as against the said Parasurama Battar for the sale effected by him in favour of the private individuals.
(v) Having kept quiet for the decades together, it is not for the petitioner temple to raise its objection suddenly without any iota of evidence and only in the year 2006 alone, the claim for patta transfer has been made by the Assistant Commissioner, H.R & C.E., Virudhunagar.
(vi) This Court finds that the second respondent has scrutinised the entire materials available before him and made a thorough study on it and rightly held that the petitioner temple is not entitled to claim any right over the lands in question.
(vii) Also, this writ petition fails on the ground of delay and laches.
17. In fine, this writ petition stands dismissed. However, the petitioner temple is given liberty to work out the remedy before the appropriate forum in accordance with law. Consequently, the connected miscellaneous petition is dismissed. In the facts and circumstances of the case, there shall be no order as to costs.
To
1.The District Collector, Virudhunagar Colletor's Office, Virudhunagar.
2.The District Revenue Officer, Collector's Office, Virudhunagar.
3.The Revenue Divisional Officer, Sivakasi.
4.The Tahsildar, Taluk Office, Rajapalayam, Virudhunagar District.