Madras High Court
K.Radha vs The Commissioner on 25 August, 2022
Author: M.Nirmal Kumar
Bench: M.Nirmal Kumar
W.P.(MD)No.12017 of 2018
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 25.08.2022
CORAM
THE HONOURABLE MR.JUSTICE M.NIRMAL KUMAR
W.P.(MD)No.12017 of 2018
K.Radha ... Petitioner
Vs.
1.The Commissioner,
Hindu Religious and Charitable Endowment,
Chennai – 600 034.
2.The Deputy Commissioner,
Arulmigu Subramanisamy Temple
Thirupuramkundram,
Madurai.
3.Thirunagar Cooperative Housing
Construction Society Limited
Rep.by its Competent Authority,
Madurai District.
4.The Sub-Registrar,
Registration Office,
Thirupuramkundram,
Madurai. ... Respondents
PRAYER : Writ Petition filed under Article 226 of Constitution of
India, praying for issuance of a Writ of Mandamus, directing the
respondent No.1 to delete the land in S.No.114/1C of
Thirupuramkundram Village in the property register and
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W.P.(MD)No.12017 of 2018
consequentially direct the 2nd respondent to issue no objection
certificate to the petitioner considering the petitioner's
representation, dated 15.04.2018.
For Petitioner : Ms.Chamundi Bose
For R1 & R4 : Mr.P.T.Thiraviam
Government Advocate
For R2 : Mr.V.Chandrasekar
For R3 : Mr.S.Kumar
ORDER
The petitioner filed this Writ Petition, seeking a direction to to delete the land in S.No.114/1C of Thirupuramkundram Village in the Property Register of the Temple and direct the 2nd respondent to issue 'No Objection Certificate' to the petitioner, considering the petitioner's representation, dated 15.04.2018.
2. The contention of the petitioner is that the petitioner purchased a property in Survey No.114/1C in Plot No.3 Chitrakala Colony, Mani Street, Tirunagar, from the 3rd respondent on 03.12.1983. Thereafter, constructed a house, after getting due approval from Thirupuramkundram Union. The petitioner is in possession of the property from thereon. The petitioner and her husband retired and decided to move to native, they wanted to 2/26 https://www.mhc.tn.gov.in/judis W.P.(MD)No.12017 of 2018 dispose of the property. At that time, it is found from the Sub Registrar's Office that the Sale Deed to all property in Survey No. 114/1C cannot be registered and it belongs to the 'Arulmigu Subramaniya Swami Temple', Thirupuramkundram, Madurai. The petitioner's property in Plot No.3 was duly acquired by the Tamil Nadu Government, handed over to the Thirunagar Cooperative Housing Constructions Society, under the Abolition of Minor Inam by the Settlement Tahsildar, by proceedings dated 15.05.1972, in S.R.Nos.287 & 304 / 1967 and S.R.Nos.3, 4, and 5 / 1969.
3. By communication dated 25.05.2017 in Na.Ka.No.430 of 2017 of the 2nd respondent, the 2nd respondent claimed that on the orders passed by the Settlement Tahsildar, an appeal preferred by them in C.M.A.No.451 of 1972, on the file of Principal Sub Court, Madurai and the said appeal was dismissed on 17.07.1977. The Judgment in C.M.A.No.451 of 1972 confirmed that the land acquired by the Government, handed over to the Thirunagar Cooperative Housing Constructions Society, patta was issued as per Section 13 of the Tamil Nadu Inam Estates (Abolition and Conversion into Ryotwari) Act, 1963.
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4. Thereafter, Thirunagar Cooperative Housing Constructions Society sold the housing plots with Houses to several persons, petitioner was one among them. The petitioner is in possession and enjoyment of the property. The petitioner, when approached the 4th respondent for registering the Sale Deed, was directed to obtain a 'No Objection Certificate' from the Temple Authorities, since the property belongs to the Temple. On 25.05.2017, the petitioner received a communication in Na.Ka.No.430 of 2017 E1. In the said letter, the order obtained in C.M.A.No.45 of 1972 referred. The petitioner approached the respondent several times and lastly on 12.10.2017. The petitioner was informed that recommendations sent to the Authorities to remove the said survey numbers from the Register. From the communication in Na.Ka.No.430 of 2017, dated 25.05.2017, it is said that Survey No. 114/1C not deleted from the Temple Register as a mistake. The Judgment in C.M.A.No.451 of 1972 confirms the same.
5. This being so, keeping the petitioner's representation pending for 'No Objection Certificate' is in violation of principles of natural justice. The petitioner sent several representations on 16.02.2018, 07.03.2018 and 15.04.2018 to register the sale deed. 4/26 https://www.mhc.tn.gov.in/judis W.P.(MD)No.12017 of 2018 Till date, the Temple Authorities not responded. Further, in the typed set, the petitioner produced the Judgment in C.M.A.No.451 of 1972, sale deed in favour of the petitioner, Corporation Tax Receipts, Encumbrance Certificate, Communication from the Deputy Commissioner, Reply to the letter of the petitioner, Representations of the petitioner, order in W.P.No.117 of 2018. Further referring to the typed set submitted that in C.M.A.No.451 of 1972 preferred by the 2nd respondent Temple, the 3rd respondent and others are respondents.
6. In the Judgment, dated 17.02.1977, in the penultimate paragraph, it is clearly held that the lands required by the Government are vested in the 1st respondent Society along with the buildings thereon and consequently, the appellant Temple is not entitled for Ryotwari Patta in respect of the lands in question. Further, in the communication in Na.Ka.No.430/2017/E.1, dated, 25.05.2017, the Deputy Commissioner / Executive Officer of the Temple, written to the Commissioner narrating the sequence, finally recommending to remove the property in S.No.114/1 of 1.63 Acre, S.No.114/5, 60 cents, S.No.108/2, 8 Acres and 99 Cents and S.No.114/1, 1.59 Acres and Cents.
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7. The Commissioner in Na.Ka.No.29152/2017 M1, dated 12.10.2017, confirmed that S.No.114/1C of 1.63 Acre wrongly entered in the Property Register of the Temple and the same to be removed. Further referred to the order passed in W.P.(MD)No.117 of 2018 wherein one of the allottee and owner of the property in Plot No.22, approached this Court to delete the entries made by the Executive Officer in the Property Register in respect of Survey No. 114/1C of Thirupuramkundram Village. This Court considering the sequence and events, communication of the Commissioner, HR&CE, directed the Executive Officer to provide No Objection Certificate to the petitioner therein. The petitioner herein is also on the same footing. In view of the above, direction to be given to the Temple Authorities to issue 'No Objection Certificate' to the petitioner, consequently, the 4th respondent, Sub-Register of Registration Department to register the sale deed of the petitioner.
8. The learned counsel appearing for the 1st respondent submitted that earlier, the Executive Officer of the Temple, on a wrong premise, without verifying the past records, such as orders passed by the High Court in S.A.Nos.173, 398, 387 and 437 of 1943 wherein it is held that the land in survey number comprising both 6/26 https://www.mhc.tn.gov.in/judis W.P.(MD)No.12017 of 2018 Melvaram and Kudivaram and dismissed the appeal in favour of the Temple. Thereafter, initiating the proceedings by the Tahsildar in S.R.No.287 and 304 of 1967 and S.R.Nos.3, 4 and 5 of 1969 is patently illegal. Consequently, any order or any order of right claiming thereafter based on this proceedings is non-est in law. The Inam land belonging to the Temple is confirmed. Further submitted that Departmental action is contemplated against the Executive Officer, who recommended in Na.Ka.No.430 of 2017, dated 25.05.2017, based on which, the Commissioner earlier directed to remove the Survey Number 114/1C from the property register of the Temple. Hence, the Writ Petition to be dismissed.
9. Mr.V. Chandrasekar, the learned Counsel appearing for the 2nd respondent Temple referred to the typed set filed submitted that earlier a Suit in O.S.No.71 of 1938 filed by the temple against the several persons, including battars of the Temple. The lands are Inam land, attached to stahanikam service or worshipping in Sri Subramaniya Swami Temple, Thirupuramkundram and the lands are liable to be resumption and re-grant to the plaintiff Devastanam.
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10. In the schedule of the Suit, TD.No.1062 in S.No.114/1 to the extent of 3.22 Acres to be declared for resumption filed. This suit was dismissed. Against which, Appeal Suit in A.No.183 of 1940 filed before the learned District Judge, Madurai by the Temple Authorities. In the appeal, the nature and character of TD.No.1062, pertaining to S.No.114/1 was considered and finally Appeal Suit in A.S.No.190 of 1940 allowed, confirming Inam lands in respect of both warams.
11. Thereafter, Second Appeals in S.A.Nos.173, 359, 387 and 437 of 1943 filed against the Temple. The High Court, while dismissing the Second Appeals, confirmed that Inam lands comprised both Melvaram and Kudivaram. Following the same, Resumption proceedings initiated before the Revenue Divisional Officer to re-grant the Inam and declaration issued. Thereafter, the 3rd respondent filed an Interim Application before the District Revenue Officer in I.A.Nos.1, 2, 3 of 2016 against the order of the Revenue Divisional Officer, the applications dismissed, confirming the property is Inam land of both warams.
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12. This being so, subsequent initiation of proceedings before the Settlement Tahsildar in S.R.NOs.287 and 304 of 1964, S.R.No. 3, 4 and 5 of 1965 is improper. The proceedings and order is nothing but a colourable exercise. Further, referring to the sale deed, dated 26.05.1970 of Chitrakala Studios, Thirunagar represented by its Liquidator and the Thirunagar Cooperative House Constructions Society, Ltd wherein in the sale deed at page No.24 it is mentioned that the property in R.S.No.114/1 of Ayan Punja 1 Acre 66 cents out of 3 acres to be conveyed latter. Through the 2nd sale deed, dated 16.04.1981, the property in S.No. 114/1 of 1 Acres 66 cents have been conveyed. Thus, it is clear that the property conveyed is much after the declaration and order passed by the High Court as well as by the District Revenue Officer. Subsequently, the settlement Tahsildar initiated proceedings, followed by C.M.A.No. 451 of 1972, the petitioner and Thirunagar Housing Society claiming right based on the orders of settlement Tahsildar is non-est in law. The Temple though filed an appeal in C.M.A.No.451 of 1972, later not filed any appeal against the said CMA. Dismissal of the Civil Miscellaneous Appeal cannot be a reason to confirm the title to the Thirunagar Housing Society. 9/26 https://www.mhc.tn.gov.in/judis W.P.(MD)No.12017 of 2018
13. The learned counsel for R4 submitted that on the communication received from the Temple Authorities, following Section 22-A of the Registration Act, refusal to register documents belonging to or given or endowed to the purpose of any religious institution, in which HR&CE Act applicable, is followed. In this case, on the letter received from the Temple Authorities, registration authorities refused to register the document, advised the petitioner to get 'No Objection Certificate' from the concerned authorities.
14. Considering the submission and perusal of the materials it is seen the property said to have acquired by the 3rd respondent is Iruvaram property, as declared by the District Judge, Madurai, in A.S.No.190 of 1940, A.S.Nos.55 & 62 of 1941, confirmed by the High Court in S.A.Nos.173, 359, 387 and 437 of 1943, in unequivocal terms declared that Inam grant consists of both Melvaram and Kudivaram. Thereafter, for the purpose of resumption and regrant petitions filed by the Temple Authorities, before the Revenue Divisional Officer. The Revenue Divisional Officer, by his order dated 16.08.1958, as ordered by the competent civil Court, held that there is no legal bar for making a 10/26 https://www.mhc.tn.gov.in/judis W.P.(MD)No.12017 of 2018 declaration that the Inam lands of Thiruparamkundram Village, covering T.D.No.1062, in Sy.No.114/1, T.D.Nos.1064, T.D.No.1065 in S.No.114/1, 114/5, 108/2, 11/2, 16/8, 238/5, 228/4, 258/6, 244/5, 295/2 and 7/1, 22/2, 24/3 208/7, 24/3, 358/7, 243/2 353/3, total extent of dry lands 12.71 Acres and wet lands of 12.73 Acres resumption of both varams ordered to be regranted to the Devastanam. Against the order of the Revenue Divisional Officer, the Secretary, Madurai Co-operative House Construction Society, Tirunagar, filed an appeal to the District Revenue Officer, who dismissed the appeal, confirming the order of the Revenue Divisional Officer.
15. Thus, the Inam lands of Iruwaram and the land vest with the Temple declared by the Courts and the concerned Revenue Authorities. Thereafter, revisit the same by the settlement Tahsildar, Madurai, by his order dated 15.05.1972, is improper. Further, the proceedings initiated itself appears to be with suppression of fact. As could be seen from the order of settlement Tahsildar, dated 15.05.1972, in T.D.No.1062, it is recorded, no proceedings initiated earlier and considered afresh. Further, the findings given for issue No.7 pertains to S.No.114/1, for 1.63 Acres, S.No. 114/5, for 0.60 Acres. This issue dealt in a perfectionary 11/26 https://www.mhc.tn.gov.in/judis W.P.(MD)No.12017 of 2018 manner for the simple reason that the Judgment produced was only short notes and the entire Judgment in S.A.No.1380 of 1969 reported in 84 Law Weekly 492 and in the Judgment reported in 1972 T.L.N.J. (13) 220 not produced in details. This reason, on the face of it, not sustainable.
16. The Temple preferred an appeal in CMA No.451 of 1972 therein too, the conclusion in penultimate paragraph 12 not proper. In any event, the orders of the Settlement Tahsildar, dated 15.05.1992 and C.M.A.No.451 of 1972 are subsequent to the earlier orders passed by the District Court, High Court and the Revenue Authorities, as stated above.
17. It is to be seen that the buildings found in the Inam land subsequently built by the Housing Society, after acquiring the same. Section 13 of the Tamil Nadu Minor Inams (Abolition and Conversion into Ryotwari) Act, 1963 refers to the building situated in the Inam land vest in the person who owned it immediately before the appointed day. The appointed day is defined in Section 2(2) of the said Act. Further, Section 8(2) is a non obstante clause wherein, it deals in case of lands, Iruwaram Minor Inam granted for the support or maintenance of a religious Institutions for the 12/26 https://www.mhc.tn.gov.in/judis W.P.(MD)No.12017 of 2018 performance of a charity or service connected in religious charity. As per Section 11 of the said Act, determination of lands in respect of which any person is entitled to ryotwari patta. Thus, the Settlement Tahsildar can issue patta subject to the provisions of Section 11(2)(ii) of the said Act, wherein, if the Inam has been granted for the benefit of Hindu religious institution or for service therein, to the Commissioner appointed under the Tamil Nadu Hindu Religious and Charitable Endowments Act, shall be given a notice in the prescribed manner. In this case, this statutory notice not followed. It would beneficial to extract Section 11(2) of the Tamil Nadu Minor Inams (Abolition and Conversion into Ryotwari) Act, 1963:-
"11.(2)(a) Before holding the enquiry under sub-section (1), the Assistant Settlement Officer shall give notice in the prescribed manner to the inamdar and to the Tahsildar of the taluk or Deputy Tahsildar of the sub-taluk in which the inam land is situated; and
(i) if the person in occupation of the land is not the inamdar, to the occupant;
(ii) if the inam has been granted for the benefit of a Hindu religious institution or for service therein, to the Commissioner 13/26 https://www.mhc.tn.gov.in/judis W.P.(MD)No.12017 of 2018 appointed under the [Tamil Nadu] Hindu Religious and (sic) Endowments Act, 1959 [Tamil Nadu] Act 22 of 1959), or to an officer specified by the said Commissioner in this behalf;
(iii) if the inam is a wakf within the meaning of the Wakf Act, 1954 (Central Act XXIX of 1954), to the Board of Wakfs constituted under that Act, or to an officer specified by the said Board in this behalf.
[(iv) to such other persons as may be specified in the rules made by the Government in this behalf.]
(b) The Assistant Settlement Officer shall also publish in the prescribed manner in the village the notice referred to in clause (a) and after giving the parties who appear before him an opportunity to be heard and to adduce their evidence, give his decision."
18. This Court in the case of P.Moorthi Vs. The Superintendent of Police, Thiruvannamalai and others made in W.P.No.6664 and 14074 of 2021, dated 30.09.2021, dealt with in this regard in detail, it would be appropriate to refer to the following paragraphs:-
"28. It is not in dispute that the lands are devadayam inam lands with both varam. The 14/26 https://www.mhc.tn.gov.in/judis W.P.(MD)No.12017 of 2018 presumption under Section 44 of the Tamil Nadu Minor Inams (Abolition and Conversion into Ryotwari) Act, 1963 is in favour of the temple authorities. In this case, the 4th respondent has not properly acted, which does not mean the right of the idol to be denied. Idol is a minor and the Court is the custodian to safeguard the same and hence, the minor interest cannot be abandoned. The admitted case is that the lands are vacant lands. In view of the proviso of Section 11 of the Tamil Nadu Minor Inams (Abolition and Conversion into Ryotwari) Act, 1963, it is seen that the order of the Assistant Settlement Officer, Chennai is vitiated by fraud. The appeal by the Government can be entertained even after the appeal period.
29. For a clear understanding of Inam Abolition Act, this Court extracts the relevant portion of the judgment in the case of "Sri Karivardaraja Perumal Temple and Ors.
Versus K.S.J. Raju Chettiar and Ors. reported in MANU/TN/0463/1976":-
"12. As we mentioned earlier the whole purpose of Tamil Nadu Act XXX of 1963 was to abolish the minor inams in the State and introduce the ryotwari settlement in their 15/26 https://www.mhc.tn.gov.in/judis W.P.(MD)No.12017 of 2018 place. The scheme of the Act, in its operative provisions, was so contrived to effectuate this desired legislative objective. One of the objects being abolition of the minor inams, it was necessary for the legislature first to do away with the rights and obligations, powers and privileges that were in vogue under the pre- exacting system, which it was decided to destroy. Understandably enough therefore, Section 3(a) explicity declares, inter alia, that as and from the appointed day, the Tamil Nadu Act XXX of 1963 alone shall be applicable to the minor inams and that any other existing law on the subject shall be deemed to be repealed. Section 3(c) declares that all rights created by the inamdar in or over his inam before the appointed day shall cease and determine as against the Government. Section 3(g), which is important for the present discussion, lays down that: any rights and privileges which may have accrued in the minor inam to any person before the appointed day against the inamdar shall cease and determine and shall not be enforceable against the Government or against the inamdar and every such persons shall be entitled only to such rights and privileges as are recognised or conferred on him, by or under this Act. It is in the context of these previsions that the 16/26 https://www.mhc.tn.gov.in/judis W.P.(MD)No.12017 of 2018 statutory machinery for the introduction of the ryotwari settlement and the grant of ryotwari patta should be considered.
13. In our considered opinion, the claim, as put forward by the Respondents cannot lie in view of the dear provisions of Section 3(g) of the Act. While Section 3(c) destroys the rights created by the inamdar himself in or over his inam, Section 3(g) applies to rights which had accrued to any person against the inamdar and puts an end to all such rights and interests which had accrued before the appointed day. Title by adverse possession, obviously does not fall under Section 3(1), but the language of Section 3(g) apply covers it. Acquisition of title to the Kudivaram by prescription or adverse possession must, in in our view, be held to answer the description accrual of rights against the inamdar occurring in Section 3(g) of the Act. Two results flow from this position. In the first place, such right as might have accrued to the Respondents against the Temple cease to exist. Secondly in the place of these accrued rights which have ceased to exist, nothing would be recognised by the law excepting such rights as are conferred or recognised under the Act itself. It follows therefore, that the 17/26 https://www.mhc.tn.gov.in/judis W.P.(MD)No.12017 of 2018 Respondents could not rely on their so sailed prescriptive title which accrued to them as against the temple as a foundation for claiming ryotwari patta under Section 8(1) of the Act.
14. There is yet another consideration. In our view the very scheme of Sections 8 rules out of the recognition of prescriptive title to Kudivaram right in a religious inam. We have earlier referred to the terms of Section 8(1) to the effect that its provisions are subject to the provisions of Sub-section (2). Section 8(2) reiterates the same overriding effect in its opening words, Notwithstanding anything contained in Sub-section (1)...Section 8(2) as we have noted earlier, is a special provision in the matter of grant of ryotwari patta specially designed for iruvaram religious inams. Section 8(2) has two clauses, clause (i) and clause (ii). Under the scheme of the sub-section, clause
(ii) would apply only where clause (i) does not apply. Clause (i) has two sub-causes, (a) and
(b). They are in the following terms:
8. (2)(i) where the land has been transferred by way of sale and the transferee or his heir, assignee, legal representative or person deriving rights through him had been in exclusive possession of such land:18/26
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(a) for a continuous period of sixty years immediately before the 1st day of April, 1960, such person shall, with effect on and from the appointed day, be entitled to a ryotwari patta in respect of that land;
(b) for a continuous period of twelve years immediately before the 1st day of April, 1960, such person shall, with effect on and from the appointed day, be entitled to a ryotwari patta if he pays a consideration to the Government in such manner and in such number of instalments as may be prescribed an amount equal to twenty times the difference between the fair rent in respect of such land determined in accordance with the provisions contained in the Schedule and the land revenue due on such land.
These two sub-clauses contemplate that ryotwari patta in an iruvaram minor inam of a religious institution would be denied to that institution and would be granted to any other person only in cases where that other person is able to establish two things; (i) that he had obtained a transfer of the land from the religious institution by way of sale; and (ii) that he had been in uninterrupted possession 19/26 https://www.mhc.tn.gov.in/judis W.P.(MD)No.12017 of 2018 of the land for a period of sixty years or twelve years, as the case may be immediately before 1st April 1960. Both the conditions, the transfer by sale as well as the continuous possession, must be fulfilled in order that the said provision may be relied on. In Marimuthu v. K.K. Sri Sankaranarayanaswami Temple 87 L.W. 652 it was held that where a religious or charitable inam land had been alienated, but possession was not proved as provided in Clause (1) of Sub-section (2) of Section 8, the alliance will not be entitled to patta. In a case where, such as the present, persons claim kudivaram interest solely on the basis of adverse possession, Section 8(2)(i)(a) or (b) cannot, obviously apply. The fact that these provisions require not merely long possession, but also a right derived from actual transfer of title by purchase as the foundation of the claim shows that the legislative intention was not to recognise, for the purposes of the Act, any claim to ryotwari patta on the basis, merely, of adverse possession.
15. To sum up, on the very language of the provisions of Section 8(1), read in the context of Section 8(2), Respondents cannot ask for a ryotwari patta in their favour. The expression lawfully entitled to the Kudviaram 20/26 https://www.mhc.tn.gov.in/judis W.P.(MD)No.12017 of 2018 occurring in Section 8(1) would only be applicable to cases where the person claiming to be entitled to ryotwari patta is in a position to show that he was entitled to the kudivaram interest under the very terms of the grant of the inam. On the terms of Section 8(1) an inamdar who is the grantee of both the varams would certainly be entitled to the kudivaram interest. So too would be a person holding land as a kudivaramdar under an inamdar the grant to whom is of the melwaram alone. In cases where the grantee is of both the varams and is, in additions religious institution, Section 8(1) cannot apply, because of the special provisions under Sub-section (2). We have already referred to the provisions of Section 8(2)(i) clauses (a) and (b). Section 8(2)
(ii) provides for those cases which are not covered by Section 8(2)(i)(a) and (b) clause
(ii), in other words, provides for all cases of iruvaram religious, in as much in which there have been no transfer by way of sale of the land and the transferee is not in possession at all or is in possession for less than twelve years continuously prior to 1st January 1960. In the case of such lands, it is categorically enacted that the ryotwari patta has got to be granted only to the religious institution and to no other persons. In Marimuthu v. K.K. Sri 21/26 https://www.mhc.tn.gov.in/judis W.P.(MD)No.12017 of 2018 Sankaranarayanaswami Temple 87 L.W. 652 it has been held that if either of the provisions in clause (a) or (b), is not satisfied, then under clause (ii) of Section 8(2) the Tribunal will have to grant patta to the institution itself. To the same effect is an unreported decision of this Bench dated 15th March 1976 in S.T.A. No. 66 of 1973. In that case, Sri Sandhi Vinayagar Devasthanam, Tirunelveli, was the grantee of a Devadhayam Inam Grant consisting of both the varams. It was found as a fact that the lands were, however, in the possession and enjoyment of the Respondents. But, it was also found that there was no sale of the land on the basis of which possession was claimed within 60 years or within 12 years before 1st April 1960 in favour of the Respondents or their predecessors-in-interest. In the circumstances, the Bench held that Section 8(2)(ii) being applicable, the religious institution cannot be deprived of a patta. It was observed that a reading of that sub-
section itself would show that the application should succeed and the relief prayed for by him had to be granted.
16. In view of the above legal position, we have no doubt whatever that in this case it is the Appellant temple that should get the 22/26 https://www.mhc.tn.gov.in/judis W.P.(MD)No.12017 of 2018 ryotwari patta in regard to the lands in question. There can be no question at all that Section 8(2)(ii) applies to the temple in regard to these lands. We have already held the grant in the temple's favour to be iruvaram lands, and although the possession may not be with he temple for over 12 years or even 60 years, the persons in possession have not been able to make out that their possession and those of their predecessors in title are derived from a transfer of title by the temple by way of sale. It follows that Section 8(2)(i) does not apply. Thus, the residuary provision in Section 8(2)
(ii) clearly applies and the temple would be exclusively entitled to the patta. We hold accordingly."
30. On appeal, the Hon'ble Apex Court confirmed the above decision of this Court reported in AIR 1996 SC 234. In the case of "A.A. Gopalakrishnan Versus Cochin Devaswom Board and Ors. reported in AIR 2007 SC 3162", the Hon'ble Apex Court held as follows:-
"10. The properties of deities, temples and Devaswom Boards, require to be protected and safeguarded by their Trustees / Archaks / Sebaits / employees. Instances are many 23/26 https://www.mhc.tn.gov.in/judis W.P.(MD)No.12017 of 2018 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."
19. In view of the above, it is clear that the settlement officer, Madurai, by his order, dated 15.05.1972, revisited the issue, which was already decided and confirmed by the High Court in Second Appeal. Further, from the order of the Settlement Tahsildar, it is seen that the statutory notice not issued to the Commissioner, which is a condition precedent. Hence, consequential order in C.M.A.No.451 of 1972, dated 17.02.1977 is of no significance. Thus, the order passed by the Settlement Tahsildar, Maudrai and subsequent orders are improper.
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20. In the result, this Court is not inclined to entertain the Writ Petition of the petitioner and the same is liable to be dismissed and hereby dismissed. No costs.
Index: Yes/No 25.08.2022
MPK / SMN2
To
1.The Commissioner,
Hindu Religious and Charitable Endowment, Chennai – 600 034.
2.The Deputy Commissioner, Arulmigu Subramanisamy Temple Thirupuramkundram, Madurai.
3.Thirunagar Cooperative Housing Construction Society Limited Rep.by its Competent Authority, Madurai District.
4.The Sub-Registrar, Registration Office, Thirupuramkundram, Madurai.
25/26 https://www.mhc.tn.gov.in/judis W.P.(MD)No.12017 of 2018 M.NIRMAL KUMAR, J.
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