Madras High Court
Tmt. S.Sarojini vs The Addl. Chief Secretary &
Author: M.Dhandapani
Bench: M.Dhandapani
____________
W.P. No.14536/2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on Pronounced on
05.07.2022 20.07.2022
CORAM
THE HONOURABLE MR. JUSTICE M.DHANDAPANI
W.P. NO. 14536 OF 2017
Tmt. S.Sarojini .. Petitioner
- Vs -
1. The Addl. Chief Secretary &
Commissioner of Land Administration
Chepauk, Chennai 600 005.
2. The Addl. District Magistrate &
District Revenue Officer
Coimbatore.
3. The Revenue Divisional Officer
The District Collector Office
Coimbatore.
4. The Tahsildar (North Coimbatore)
Tahsildar (North) Office
Coimbatore.
5. The Executive Officer
Arulmighu Viuntheeswar Swami Temple
K-Vadamadurai (P.O.)
1
https://www.mhc.tn.gov.in/judis
____________
W.P. No.14536/2017
Kurudampalayam Village
Coimbatore 641 017. .. Respondents
Writ Petition filed under Article 226 of the Constitution of India praying
this Court to issue a writ of certiorarified mandamus to call for the records
pertaining to the impugned order passed by the 1 st respondent in his
proceedings K1/15630/2002 dated 4.12.2016 and quash the same and direct the
4th respondent to carry out the corrections as directed by the ASO, Dharapuram
and reissue the patta in terms of order dated 28.3.2001 in the name of the
petitioner.
For Petitioner : Mr. N.Pragasam
For Respondents : Ms.Akila Rajendran, GA for RR-1 to 4
Mr. R.Bharanidharan for R-5
ORDER
Assailing the cancellation of patta ordered by the 4 th respondent, which has been, in principle confirmed by the 1st respondent by remitting the matter for fresh consideration, the petitioner is before this Court by filing the present petition contending it to be perverse, arbitrary, illegal and unsustainable. 2/38 https://www.mhc.tn.gov.in/judis ____________ W.P. No.14536/2017
2. The short facts leading to the filing of the present petition, as could be culled out from the affidavit filed in support of the petition are as under:-
Lands to an extent of 8.50 acres in S. No.69, Kurudampalayam Village, Coimbatore, as an unenfranchised Iruvaram Devadayam Inam was granted and confirmed in T.D. No.28 of Coimbatore Taluk for the support of the Pagoda of Virudheeswarar Swami Temple. It is the case of the petitioner that the Inam tenure of the land stood abolished consequent to the enactment of the Tamil Nadu Minor Inams (Abolition & Conversion into Ryotwari) Act, 1963 (for short ‘the Act’) and stood vested in the Government free of all encumbrances u/s 3 (b) of the Act. It is the further averment of the petitioner that suo motu enquiry was conducted by the Settlement Tahsildar, Gobichettipalayam, by following all the procedures prescribed under the Act and, thereafter, the petitioner’s husband R.Swaminathan & Father-in-law, Subramania Mudaliar, were granted patta in their capacity as service holders of the temple.
3. It is the further averment of the petitioner that during the resurvey proceedings, the name in the patta was altered to the name of the temple without any notice to the petitioner’s husband. The petitioner’s husband and 3/38 https://www.mhc.tn.gov.in/judis ____________ W.P. No.14536/2017 father-in-law passed away in the interregnum and, therefore, the petitioner and her children became entitled to the property. Coming to know about the alteration of the name in the patta, the petitioner filed an application before the Assistant Settlement Officer for rectification of patta and to issue a fresh patta in her name and in the name of her children, as the legal heirs of R.Swaminathan and Subramania Mudaliar. It is the further averment of the petitioner that after detailed enquiry, the Assistant Settlement Officer opined, through his order, that the alteration of patta in the name of the temple is wrong and, therefore, passed orders directing the Tahsildar to carry out necessary corrections in the revenue records to reflect the name of the petitioner and her children in the patta, vide order dated 28.3.2001.
4. It is the further averment of the petitioner that pursuant to the said order, on the application of the petitioner to the 4th respondent for reissuance of patta in terms of the order of the Assistant Settlement Officer dated 28.3.2001, the 4th respondent rejected the application of the petitioner vide order dated 29.11.03 against which appeal was filed before the 3 rd respondent, which was too rejected vide order dated 7.6.05. Aggrieved by the said order, the petitioner 4/38 https://www.mhc.tn.gov.in/judis ____________ W.P. No.14536/2017 preferred further appeal before the 2nd respondent, which was also dismissed against which revision was preferred before the 1 st respondent. However, the 1st respondent, unmindful of the relief sought for by the petitioner, had gone ahead and set aside the very order passed by the Assistant Settlement Officer and had ordered for a fresh enquiry by the Settlement Officer under the Act, which has resulted in the petitioner coming before this Court to ventilate her grievance.
5. Learned counsel appearing for the petitioner submitted that the 1 st respondent has gone beyond his jurisdiction and scope of the revision petition by setting aside the order and remanding the matter for fresh consideration, which is per se impermissible and unsustainable.
6. It is the further submission of the learned counsel that the order of the Assistant Settlement Officer dated 28.3.01 has attained finality inasmuch as the 5th respondent has not filed any appeal u/s 11 (3) before the Tribunal. It is the further submission of the learned counsel that the suit filed by the 5 th respondent seeking for permanent injunction and other reliefs having been dismissed, which has since been confirmed in the appeal before the First Appellate Court as well 5/38 https://www.mhc.tn.gov.in/judis ____________ W.P. No.14536/2017 as before this Court in the Second Appeal, the orders having been passed by the appropriate authority in the matters agitated before the courts, the 1 st respondent is not vested with the power to set aside the order passed by the Assistant Settlement Officer in the main proceedings, which is nothing but acting in excess of jurisdiction vested in the 1st respondent. Learned counsel, therefore, prays that this Court may allow the petition as prayed for with a consequential direction to issue patta in the name of the petitioner and her children.
7. As usual, in the inimitable style of the State, no counter has been filed on behalf of respondents 1 to 4 to sustain the order passed by respondents 1 to
4. However, the contesting respondent, viz., the 5 th respondent, has filed a counter.
8. Learned counsel appearing for the 5th respondent, basing his arguments on the counter, submitted that while the lands measuring 8.50 acres is an unenfranchised Iruvaram Devadayam, which was initially granted as an Inam in favour of the Pagoda of Virudheeswarar Swami Temple, however, on and after taking up of the land under the Act, the lands having vested with the 6/38 https://www.mhc.tn.gov.in/judis ____________ W.P. No.14536/2017 Government free of all encumbrances, suo motu enquiry was conducted u/s 11 of the Act. It is the further submission of the learned counsel that the petitioner’s husband, viz., R.Swaminathan claimed to be the Karnam of Kurudampalayam Village and also one of the hereditary poojaris deriving rights as heirs of the original service holders to perform pooja in the temple along with one Subramania Mudaliar and based on the deposition of the petitioner’s husband that the subject lands are under his joint enjoyment and by leasing out to third parties, the income derived therefrom was utilized for rendering service and up-keep of the Temple.
9. It is the further submission of the learned counsel that the Settlement Tahsildar, on the basis of the Inam Fair Register, in which entries had been made that the subject land was an unenfranchised Devadayam Inam and granted permanently in 1863 for the up-keep of the Temple so long as they are well kept. It is therefore the submission of the learned counsel that both warams were to be utilized for the benefit of the temple and not to any individual. 7/38 https://www.mhc.tn.gov.in/judis ____________ W.P. No.14536/2017
10. It is the further submission of the learned counsel that based on the materials and also the deposition of the petitioner’s husband, viz., R.Swaminathan, who were the original service holders and had continued to perform service in the temple from and out of the income derived from the Inam land, concluded that the temple was entitled for ryotwari patta u/s 8 (2)(ii) of the Act with effect from 15.2.1965 and, accordingly, granted ryotwari patta in the name of the temple represented by its service holders u/s 8 (2) of the Act. It is therefore the submission of the learned counsel that the order would clearly reveal that the subject land is a Minor Inam held for the benefit of the temple for rendering service to the religious institutions and not by any individual as a condition for rendering service so as to claim the benefit of grant of ryotwari patta.
11. It is the further submission of the learned counsel that the said Swaminathan and Subramania Mudaliar, who had deposed that they were holding the land as the legal heirs of the service holders did not question the issuance of patta in favour of the temple in a manner known to law and, therefore, the order of the Settlement Tahsildar, Gobichettipalayam dated 8/38 https://www.mhc.tn.gov.in/judis ____________ W.P. No.14536/2017 26.8.1968 had become final. It is the further submission of the learned counsel that the said Swaminathan and Subramania Mudaliar were enjoying the subject lands in the capacity as heirs of the original service holders and that they were rendering service to the temple.
12. It is the further submission of the learned counsel that on the basis of the representation of the petitioner and her daughter to issue patta in their names, the Assistant Settlement Officer, relying upon two circulars had directed rectification of patta in the name of the petitioner and her daughter and son, without even putting the temple on notice before passing the said order. It is the further submission of the learned counsel that based on the objections of the 5 th respondent, the 4th respondent had refused to entertain the representation of the petitioner for change of name in the patta, which was upheld in appeal.
13. It is the further submission of the learned counsel that the petyitioner had attempted to lease out the lands to various persons to create encumbrance and to avert such a scenario, the temple had filed the suit in O.S. No.20 of 1997 claiming the relief of permanent injunction restraining the defendants therein 9/38 https://www.mhc.tn.gov.in/judis ____________ W.P. No.14536/2017 including the petitioner herein from interfering or dealing in any manner with the suit property on the basis of the sale deeds created by the petitioner. It is the vehement submission of the learned counsel that the petitioner had claimed title over the land contrary to the fact that even before the Assistant Settlement Officer, it has been the case of the petitioner that her husband was holding the lands belonging to the temple on the basis of his performing service in the temple. It is the submission of the learned counsel that the trial court clearly misunderstood the necessity of the filing of the suit and going in a tangent on the basis of the dispute raised by the petitioner on the question of ownership of the subject lands, had dismissed the suit, which was confirmed in A.S. No.70/06 as also in S.A. No.585/07. It is the submission of the learned counsel that all the courts have totally neglected the main document, viz., the Fair Inam Register, which had recorded that the lands were initially given as inam to the temple and upon vesting of the lands with the Government under the Act, ryotwari patta was granted in favour of the temple in the name of the petitioner’s husband and another person for the upkeep of the temple.
10/38 https://www.mhc.tn.gov.in/judis ____________ W.P. No.14536/2017
14. It is the further submission of the learned counsel that the records clearly establish that permanent grant was made in favour of the temple and that the resurvey and resettlement register also shows the temple to be the owner of the subject lands and that it was represented by the husband of the petitioner. It is the further submission of the learned counsel that the report of the Special Deputy Collector (Temple Lands), Tiruchirappalli, clearly establish that poojas in the temple was performed by one Muthuswami Gurukkal and not by the husband of the petitioner and Subramania Mudaliar and that they could not have been the poojaris of the temple, as the said Swaminathan being the Karnam of the village, had misrepresented before the Settlement Tahsildar in the year 1968 and got their names included as hereditary poojaris of the temple.
15. It is the further submission of the learned counsel that merely on the strength of the entries made by the Settlement Tahsildar on 26.8.1968, after the demise of the said Swaminathan, the petitioner had executed the sale deeds in favour of various third parties. Further, it is submitted that the petitioner’s husband nor Subramania Mudaliar had performed the religious services in the temple and it was performed by the hereditary gurukkals, which is continuing 11/38 https://www.mhc.tn.gov.in/judis ____________ W.P. No.14536/2017 even today and under the guise of hereditary poojari, due to the affluence of the petitioner’s husband as the Karnam of the village, the petitioner’s husband had got his name engrafted in the patta and trying to siphon off the lands belonging to the temple, which has been rightly interfered with by the respondents and, therefore, not only for the false claim, but also due to misrepresentation and suppression of material facts, the present petition deserves to be dismissed.
16. In support of the aforesaid contention, learned counsel appearing for the 5th respondent placed reliance on the decision of the Hon’ble Supreme Court in Subramania Gurukkal through LRs & Ors. – Vs – Shri Patteswaraswami Devasthanam, Perur & Ors. (1993 Supp. (4) SCC 519) wherein almost similar issue has been dealt with and the following portion of the order is stressed upon by the 5th respondent, which is quoted hereunder :-
“42. In the light of these principles we will now examine the various entries in the Inam Fair Register, Column 8 says;
"Devadayam granted for the samamdam in Paroda of Pattesvaraswami at Perur and it is continued". This by itself is no means conclusive or decisive that it was a grant to the temple or to an office attached to the temple. In Ayya Nadar v. Sri 12/38 https://www.mhc.tn.gov.in/judis ____________ W.P. No.14536/2017 Vaidyanathaswami Koil Devasthanam (1970 II Madras LJ 129) it was observed:
In Subramania v. Kailasanatha ILR 1955 Mad. 35, it has been pointed out that the word devadayam is used in inam registers not only in connection with religious grants strictly so called but also where the ultimate purposes are religious, it is clear from the decision that the test to be applied in distinguishing a grant to an institution from a grant to an individual is the intention and that each case depends upon its own facts. In Sami Ayyangar v. Venkataramana , it was held that devadayam in a grant does not necessarily import that the grant is made to the temple. It was further held that where a grant contains the clause that it is to be confirmed to party as long as he continues the performance of the service. It is a grant to the party burdened with service and not to the deity even though the word devadayam is used as the inam register disclosed that the land was continuously held at least for two generations by the family of the party. It appears from page 260 of Sundararaja lyengar's Land Tenures that the mere description of an inam as devadayam is not conclusive that the grant is in favour of a religious institution, though it is a strong proof that the institution is a public one.” 13/38 https://www.mhc.tn.gov.in/judis ____________ W.P. No.14536/2017
17. Therefore, it is submitted that this Court has to look into all the documents, which were considered while granting ryotwari patta in favour of the temple, which are necessary for deciding whether the grant is for the purpose of the temple or the service holder.
.
18. This Court gave its anxious consideration to the submissions advanced by the learned counsel appearing on either side and perused the materials available on record.
19. There is no quarrel with regard to the subject land being given for the support of the Pagoda of Virudheeswarar Temple and that unenfranchised Iruvaram Devadayam Inam was granted and confirmed way back in the year 1862. The issue that is sought to be canvassed is that the patta granted is a personal patta and not a patta in favour of the Temple and that the name change in the patta during the resurvey and resettlement proceedings is wholly impermissible as the lands were granted to the petitioner’s husband and one Subramania Mudaliar in their capacity as service holders of the temple. 14/38 https://www.mhc.tn.gov.in/judis ____________ W.P. No.14536/2017
20. To appreciate the contention of the petitioner that the subject lands were given to the petitioner’s husband, in the capacity of service holder of the temple and that it was not given to the temple and, therefore, the change of name in the patta to that of the temple in the resurvey and resettlement proceedings without notice to the petitioner is bad. It is the further stand of the petitioner that the title to the property having not proved by the temple, as has been held in the suit, which has been confirmed in appeal by this Court as well, the temple cannot have any right or claim over the subject lands.
21. Before embarking upon finding out as to the nature of patta that was granted and the entitlement of the patta in favour of one or other person, the decree in the suit, which has gone against the temple deserves to be dealt with at the threshold.
22. True it is that the suit has been laid by the 5 th respondent for permanent injunction and for other reliefs. The suit has been dismissed by the Court below as also this Court on the ground that the 5th respondent/Temple has not sought for a declaration and in the absence of title being established in 15/38 https://www.mhc.tn.gov.in/judis ____________ W.P. No.14536/2017 favour of the temple, negation of the right of the defendant therein/petitioner herein cannot be inferred. Certain records have been taken in aid of to arrive at the said conclusion by the courts below as also this Court. However, in the present case, it is not the question of title, which forms the subject matter of the lis before this Court. It is the right of the party to possession of the lands on the basis of the grant of ryotwari patta by the appropriate authority, which would be the binding factor and not the title to the respective lands, as even as per the admitted case of the petitioner, the lands have vested with the Government upon the enactment of the Act and, therefore, the title to the lands cannot be passed on to any person, but only patta, which can be granted, which signifies the possession of the lands at the hands of the particular person. Therefore, the dismissal of the suit would in no way enure to the benefit of the petitioner to claim right over the lands and also for grant of patta in favour of the petitioner and her son and daughter.
23. It is to be pointed out that except for the proceedings of the Settlement Tahsildar dated 26.8.1968 and the proceedings of the various respondents for or against the petitioner and also the judgment and decree in 16/38 https://www.mhc.tn.gov.in/judis ____________ W.P. No.14536/2017 the suit and appeal, no other document has been placed by the petitioner before this Court to establish her right or for the matter, the right of her husband over the subject lands.
24. On the contrary, the respondents have placed a report of the Special Deputy Collector dated 25.8.1973 along with material records relating to the original grant. Before adverting to the aforesaid materials, it would be proper for this Court to find out the materials on the basis of which the petitioner claims patta to the subject lands.
25. The affidavit of the petitioner discloses that initially the lands were granted as Iruvaram Devadayam Inam to Virudheeswara Swami Temple and later, upon enactment of the Act, the lands vested with the Government and, thereafter, upon initiation of suo motu enquiry, the Settlement Tahsildar, Gobichettipalayam issued ryotwari pattas to the petitioner’s husband, viz., Swaminathan and her father-in-law, Subramania Mudaliar in their capacity as service holders of the temple. The petitioner has further stated in the affidavit that patta was altered from the name of her husband and father-in-law to the 17/38 https://www.mhc.tn.gov.in/judis ____________ W.P. No.14536/2017 name of the temple during resurvey proceedings. It further transpires that as the petitioner’s husband and father-in-law passed away and on coming to know the alteration of name in the patta, the petitioner has filed the representation for rectification of patta. It is to be pointed out that during the lifetime of the petitioner’s husband and her father-in-law, no claim was made by either of the person to claim patta in their name, inspite of the fact that alleged resurvey proceedings had resulted in the change of patta in the name of the temple. Further, it is curious to note as to how the petitioner had come to have knowledge about the change of name in the patta during the alleged resurvey proceedings, which necessitated the petitioner to approach the Assistant Settlement Officer for rectification of patta.
26. Be that as it may. This Court is not, for a split second, going into the contentious issue of the title to the property, as it is not for this Court to deliberate on the title of the property. It is merely the possessory right, which is sought to be deciphered from the materials, which would alone give right to the said entity to claim patta in terms with the Act. Further, the patta that could be granted is only a ryotwari patta, as it is the admitted case of the parties that 18/38 https://www.mhc.tn.gov.in/judis ____________ W.P. No.14536/2017 pursuant to the enactment of the Act, the subject lands stood vested with the Government. It is also the admitted case of the parties that the enquiry initiated u/s 11 was suo motu by the Settlement Tahsildar and that no claim has been made by any person claiming ryotwari patta.
27. The patta has come to be issued on the basis of the enquiry, initiated suo motu, by the Settlement Tahsildar u/s 11 of the Act. The Settlement Tahsildar in the said order dated 26.8.1968, in and by which the claim for patta was taken up, has recorded a categorical finding that the subject lands formed an Iruvaram Devadayam Inam, which was granted for the support of the Pagoda of Virundeswaraswamy Temple so long as it is well kept up. The Settlement Tahsildar has recorded a further finding that pursuant to the enactment of the Act, the inam tenure of the land stood abolished and the lands stood vested with the Government and since no claim was made for grant of ryotwari patta, notice was caused to be published as per rules.
28. It is found recorded in the said order that R.Saminathan, who is the Karnam of Kurudampalayam village, who is one of the interested persons in this 19/38 https://www.mhc.tn.gov.in/judis ____________ W.P. No.14536/2017 case was examined as P.W.1 and he deposed that he is one of the two present hereditary poojaris deriving right as the heirs of the original service holder to perform pooja in the temple. It is further recorded therein that P.W.1 deposed that he is rendering service in the temple along with his cousin, Subramania Mudaliar and that an extent of 8.50 acres of dry land is under the joint enjoyment and it has been leased out and that the income derived from the land is being utilized for rendering service and upkeep of the temple. A true extract from the Inam ‘B’ Register has also been filed as Ex.C-1.
29. The Settlement Tahsildar has further recorded the deposition of the Village Munsif, who was examined as C.W.1, and the Settlement Inspector was examined a C.W.2, who had filed the abstract of the Inam Fair Register maintained in the Collector’s Office as Ex.C-2.
30. Upon perusal of the aforesaid materials and deposition, the Settlement Tahsildar had held that entries in Column 16 to 22 in the Inam Fair Register (Ex.C-2) show that the land was granted and confirmed permanently in the year 1863 for the upkeep of the above temple so long as they are well kept 20/38 https://www.mhc.tn.gov.in/judis ____________ W.P. No.14536/2017 up. From the above, the Settlement Tahsildar has recorded a categorical finding that the grant of inam lands of both varams were given for the benefit of the temple and not to any individual. It has been further recorded therein that P.W.1 and another person were the service holder, which is evident from column 16 of the Inam Fair Register Extract and are continuing the performance of the service in the temple out of the income derived from the inam land. Holding that the case falls u/s 8 (2) (ii) of the Act, ryotwari pattas in respect of the subject lands were allowed to the temple represented by the service holders specified therein.
31. From the above, it is explicitly clear that since 1863, the temple has been given the land as inam and that the service holders were using the returns from the subject land for the upkeep of the temple and the same was continued by the Settlement Tahsildar by granting ryotwari patta in the name of the temple represented by Saminathan and one another person. Further, even the deposition of Saminathan, the husband of the petitioner, clearly reveals that along with another person, he has been holding the land on behalf of the temple and utilizing the proceeds for the purpose of the temple. That being the 21/38 https://www.mhc.tn.gov.in/judis ____________ W.P. No.14536/2017 admitted case of even the petitioner, this Court is at a loss to understand as to how, all of a sudden, when the lands stood vested with the Government upon the enactment of the Act, ryotwari patta in respect of the lands could have been given to the petitioner’s husband and the other person to the exclusion of the temple.
32. When the lands are inam lands given to the temple as back as in the year 1863 and that the service holders of the temple, of which lineage the petitioner allege that they too come, having been holding the said land and utilizing the proceeds of the said land for the upkeep of the temple, how, all of a sudden, merely on the enactment of the Act, ryotwari patta could have been granted to the petitioner’s husband to the exclusion of the temple, is a question which is bereft of any answer.
33. The order, which is impugned herein and which is sought to be acted upon to rectify the name in the patta to that of the petitioner and her son and daughter, is a baffling piece of document, which is incomprehensible. The findings that have been rendered in the said orders is not only grossly erroneous, 22/38 https://www.mhc.tn.gov.in/judis ____________ W.P. No.14536/2017 but also devoid of any legal sanctity. The Assistant Settlement Officer had recorded a finding that ryotwari patta had been granted in the name of Saminathan and Shanmuga Mudaliar vide the order dated 26.8.1968. However, the said order, as discussed above, has, in clear and unequivocal terms granted patta to the temple represented by the service holders. For better clarity, the relevant portion of the order of the Settlement Tahsildar dated 26.8.1968 is quoted hereunder :-
“3. ………..This case falls under section 8 (2)(ii) of the above said Act which provides that the institution rendering service shall be entitled to ryotwari patta in respect of this land with effect on and from the appointed day (viz.) 15.2.1965. I therefore direct that ryotwari patta in respect of the land be allowed to the temple represented by the service holders specified therein under section 8 (2) of the Madras Minor Inams (Abolition and Conversion into Ryotwari) Act, 1968, read with section (ii) of the Act.”
34. As aforesaid, when the Settlement Tahsildar, upon enactment of the Act, had, suo motu, initiated proceedings and granted ryotwari patta to the temple represented by the service holders, which order was passed as early as on 26.8.1968, the order of the Assistant Settlement Officer, dated 28.3.2001, 23/38 https://www.mhc.tn.gov.in/judis ____________ W.P. No.14536/2017 trying to unsettle the said order by recording a finding that patta has been granted in the name of the service holders in S.R. No.694/68 dated 26.08.1968 is not only against the materials available on record, but a finding not supported even by an iota of documentary evidence.
35. Further, the 5th respondent has placed materials in the form of the letter of the Special Deputy Collector (Temple Lands) dated 13.5.1973, in which the said authority has stated about the extent of lands that were granted to the temple and at the material point of time the extent of land that is held by the 5 th respondent. In effect, the said authority has clearly stated that an extent of 8.50 acres alone is being held by the temple and that the returns from the said lands is being used by the temple for its upkeep. Further, materials is also found therein, more particularly the letter dated 10.2.1973, it is noted that poojas are being prepared regularly and systematically by the priest Muthusami Gurukkal.
36. If really the ancestors of the petitioner’s husband had been performing poojas as the hereditary poojaris of the temple, the same should have been substantiated with material documents. However, even according to 24/38 https://www.mhc.tn.gov.in/judis ____________ W.P. No.14536/2017 the petitioner’s husband, Swaminathan, who has been examined as P.W.1 before the Settlement Tahsildar, he has clearly deposed that he is the Karnam of Kurudampalayam Village. When such claim is made by the petitioner’s husband, this Court is at a loss to understand as to how the Karnam of the village could be the hereditary poojari of the temple. Both the facts are not substantiated by any materials, which clearly strikes at the substratum of the case of the petitioner.
37. Be that as it may. The proceedings of the Settlement Tahsildar finds reflection in the register and therein it is clearly found that in respect of T.D. No.28 granted for the support of the Pagoda of Sri Virundeeswarar at Kurudampalayam, upon enactment of the Act, ryotwari patta had been granted to the temple u/s 8 (2)(ii) of the Act and that the lands have been let on lease by the temple management. However, contrary to the said record, except for oral submissions and contentions, no other material is placed by the petitioner to establish her case that patta was granted to her husband and Subramaniya Mudaliar in their individual capacity. Merely because the 5th respondent temple had not sought for a declaratory relief in the suit filed and that only mandatory injunction was sought for and erroneously in addition to other reliefs, without 25/38 https://www.mhc.tn.gov.in/judis ____________ W.P. No.14536/2017 adverting to the aforesaid records, the suit has been dismissed and decree passed in terms of the dismissal of the suit, which has been confirmed even by this Court cannot be the basis to defeat the rightful claim of the temple of its hold on the patta granted in its favour as early as in the year 1968 by the Settlement Tahsildar based on the inam granted in favour of the temple even a century back in the year 1863. Further, even as per the deposition of P.W.1, the husband of the petitioner before the Settlement Officer, they are maintaining the lands and the returns are being utilized for the upkeep of the temple
38. In this backdrop, it is to be pointed out that the temple is under the control of the HR & CE Department. A scrutiny of Section 6 (17) of the HR & CE Act, which defines “religious endowment” and the explanation attached thereto would show that in respect of the lands, which have been granted as personal gift to the archaka, service holder or employee, it shall be deemed to be a religious endowment. Therefore, for all purposes, the personal grant, according to the respondents, is an enjoyable grant, at the wish of the Presiding Deity, which holds the patta, so long as the said archaka performs the service for which the grant has been given to the said archaka and it does not confer any title on 26/38 https://www.mhc.tn.gov.in/judis ____________ W.P. No.14536/2017 the archaka to alienate the land and that alienation is not only impermissible, but it is also void. Further, it has also been submitted that patta does not confer title, but only possessory rights to the persons holding the patta. To appreciate the above, Section 6 (17) and the Explanation attached thereto are quoted hereunder for better clarity :-
(17) " religious endowment " or “endowment " means all property belonging to or given or endowed for ''-e support of maths or temples, or given or endowed for the performance of any service or charity of a public nature connected therewith or of any other religious charity ; and includes the institution concerned and also the premises thereof ; but does not include gifts of property made as personal gifts to the archaka, service-bolder or other employee of a religious institution ;
Explanation (I).- Any inam granted to an archaka, service- holder or other employee of a religious institution for the performance of any service or charity in or connected with a religious institution shall not be deemed to be a personal gift to the archaka, servi ce-holder or employee but shall be deemed to be a religious endowment.
Explanation (2).-All 'property which belonged to, or was given or endowed for the support of a religious institution, or which was given or endowed for the performance of any service or charity of a public nature connected therewith or of any other religious charity 27/38 https://www.mhc.tn.gov.in/judis ____________ W.P. No.14536/2017 shall be deemed to be a " religious endowment " or " endowment"
within the meaning of this definition, notwithstanding that, before or after the date of the commencement of this Act, the religious institution has ceased to exist or ceased to be ' used as a place of religious worship or instruction or the service or charity has ceased to be performed :
Provided that this Explanation shall not be deemed to apply in respect of any property which vested in any person before the 30th September 1951, by the operation of the law of limitation.
39. There is no quarrel with the submission that patta does not confer title and that it only confers possession of the property at the hands of the individual holding the patta. Further, the explanation appended to Section 6 (17) clearly reveals that any inam granted to an archaka, service-holder or other employee of a religious institution for the performance of any service or charity in or connected with a religious institution shall not be deemed to be a personal gift to the archaka, service-holder or employee but shall be deemed to be a religious endowment. In fine, even if any personal grant of patta is given to any person for rendering service to the Temple, such land would, in effect, be the property of the temple and not the individual. In effect, so long as the archaka 28/38 https://www.mhc.tn.gov.in/judis ____________ W.P. No.14536/2017 renders service to the Presiding Deity in the Temple, he can enjoy the lands and that the lands should be used for the benefit of the temple. Therefore, the foremost requirement is that attendant to the archaka enjoying the land, the said enjoyment should have to enure to the benefit of the temple and in addition to performing puja service to the temple. Therefore, patta for any land, that is given even as personal grant to the archaka by any inam, would invariably be deemed to be a religious endowment for the benefit of the temple.
40. Further, Section 21 of the Tamil Nadu Minor Inams (Abolition & Conversion into Ryotwari) Act, which relates to “Service Inams” too has a bearing on this case and for better appreciation, the said provision is extracted hereunder:-
“21. Service inams. - (1) The provisions of this section shall apply in respect of any minor inam which was held immediately before the appointed day by an individual (hereinafter referred to in this section as the service-holder) on condition of rendering service to a religious, educational or charitable institution. (2) The service-holder shall, subject to the provisions of sub-
section (3), be bound to continue to render the service after the appointed day.
29/38 https://www.mhc.tn.gov.in/judis ____________ W.P. No.14536/2017 (3) (i) Where a service-holder is entitled to a ryotwari patta under section 8 in respect of any land, he shall have the option -
(a) either to pay to the religious institution the amount specified in subsection (4) and on such payment the land shall, notwithstanding anything contained in sub-section (7), be discharged from the condition of the service; or
(b) to hold the land and continue to render service subject to the provisions contained in sub-sections (1), (2), (6) and (7).
(ii) The option referred to in clause (i) shall be 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.
(5) Where the service-holder has exercised his option to pay the amount specified in sub-section (4), the tasdik allowance referred to in sub-section (6) in respect of the period subsequent to the date of the exercise of such option shall be the absolute property of the institution and the institution shall be at liberty to make such arrangements as it thinks fit for the performance of the service. (6) (a) For so long as the service-holder renders the service, the institution shall pay to the service-holder the tasdik allowance paid by the Government under section 20.
(b) If the service-holder fails to render the service, the prescribed officer shall, after such inquiry and after such notice to the service-holder as may be prescribed in this behalf, notify such failure in such manner as may be prescribed. He shall then declare 30/38 https://www.mhc.tn.gov.in/judis ____________ W.P. No.14536/2017 that the tasdik allowance payable to the institution in respect of the period subsequent to the failure shall be the absolute property of the institution and the institution shall be at liberty to make such arrangement as it thinks fit for the performance of the service.
(7) (a) For so long as the service-holder renders the service, he shall be entitled to occupy permanently the lands in respect of which he is entitled to a patta under section 8, subject however, to the payment of the assessment fixed [under section 16 or section 16-A, as the case may be], in respect of such lands.
(b) If the service-holder fails to render the service, the prescribed officer shall, after such inquiry and after such notice to the service-holder as may be prescribed in this behalf, notify such failure in such manner as may be prescribed. He shall then declare that the service-holder's right to occupy permanently the land under clause (a) shall cease and determine, and the institution shall be at liberty to make such arrangement as it thinks fit for the performance of the service and shall be entitled to hold the land as its absolute property subject, however, to the payment of the assessment fixed therefor [under section 16 or section 16-A, as the case may be].
Explanation I. - For the purposes of this section, -
(i) service-holder includes his heirs;
(ii) non-performance of the service due to illness or other temporary disability shall not be deemed to be failure to render 31/38 https://www.mhc.tn.gov.in/judis ____________ W.P. No.14536/2017 service, provided that the service-holder makes alternative arrangements for rendering the service during the period of such illness or of other temporary disability.
Explanation II. - For the purposes of sub-section (4), "land revenue" means the ryotwari assessment including the additional assessment, water-cess and additional water-cess.”
41. From the above provision, it is abundantly clear that in respect of service inams, for the purpose of discharge from the condition of service, either the amount towards the land as specified in sub-section 3 (i) (a) should be paid else the pattadar should continue to hold the land and do service as per the condition prescribed under sub-section 3 (i) (b). However, in the case on hand, it is not the case of the petitioner that sub-section 3 (i)(a) has been fulfilled. That being the case, the service holder cannot have any right to alienate the property and can continue to hold the property so long as the service holder renders service to the temple.
42. It is also to be pointed out that the petitioner’s husband along with the other person had never sought the patta in their individual capacity nor any patta was granted in them in their individual capacity. Further, no alienation or 32/38 https://www.mhc.tn.gov.in/judis ____________ W.P. No.14536/2017 sale had taken place during the life time of the original service holders, viz., the petitioner’s husband and only in the year 2001, on the representation of the petitioner, the Assistant Settlement Officer, going beyond his powers, has directed rectification of the revenue records, which has been rightly not acceded to by respondents 2 to 4. As pointed out above, the materials available on record, which has been adverted to, clearly show that ryotwari patta has been granted in favour of the temple represented by the service holders taking into consideration the Iruvaram Devadayam Inam granted to the temple as early as in the year 1863.
43. A careful perusal of all the materials, which were taken note of by the Settlement Tahsildar to grant the ryotwari patta in favour of the temple unerringly point out that patta was granted exclusively in favour of the temple, which was represented by the service holders and, therefore, till the service holders render service to the temple, they were eligible to enjoy the lands, though they are to utilize the proceeds earned for the purpose of the temple. Therefore, the various entries in the Inam Fair Register, which have been taken note of by the Settlement Tahsildar, taken in conjuction with the other 33/38 https://www.mhc.tn.gov.in/judis ____________ W.P. No.14536/2017 documents lead to the irrefutable conclusion that the patta was granted in favour of the temple and all the entries in the Inam Fair Register coupled with the other documents support that ryotwari patta was granted in favour of the temple.
44. Further, it is to be pointed out that the decree passed in the suit in O.S. No.20/1997, which has been confirmed in appeal by this Court in S.A. No.585/07 cannot bar this Court from affirming the patta granted in favour of the temple by the Settlement Tahsildar to preclude the petitioner or any of the heirs of the said Swaminathan from interfering with the lands of the 5 th respondent temple in exercise of its extraordinary jurisdiction under Article 226 of the Constitution of India, as failure of pass such an order would not only defeat the rights of the temple on the basis of the patta granted under the Act as early as on 26.8.1968, but would negate the very patta granted in favour of the temple due to the unscrupulous and devious acts of the service holders acting in detriment to the welfare of the temple.
34/38 https://www.mhc.tn.gov.in/judis ____________ W.P. No.14536/2017
45. Further, the order of the 1 st respondent directing to carry out a detailed enquiry with regard to the ryotwari patta also does not arise in view of the discussion aforesaid, as the ryotwari patta has, all along, stood in the name of the temple represented by the service holders and, therefore, the service holders can only enjoy the land till such time they discharge service to the temple and, the said land would not be available to the service holder for being alienated. Such being the case, there was no necessity for a direction by the 1st respondent to conduct fresh enquiry relating to grant of patta, as the matter of grant of patta stood settled even as early as on 26.8.1968. Therefore, the direction insofar as ordering of enquiry by the 1 st respondent deserves to be interfered with.
46. For the reasons aforesaid, this writ petition is dismissed confirming the order of the 1st respondent insofar as affirming the orders passed by respondents 2 to 4, but setting aside that portion of the order of the 1 st respondent in and by which the Settlement Officer was directed to conduct fresh enquiry. Further, respondents 2 to 4 are directed to maintain the entry in the patta holding the name of the temple as the holder of the patta as was done 35/38 https://www.mhc.tn.gov.in/judis ____________ W.P. No.14536/2017 pursuant to the resurvey and resettlement proceedings. In the circumstances of the case, there shall be no order as to costs.
20.07.2022
Index : Yes / No
Internet : Yes / No
GLN
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https://www.mhc.tn.gov.in/judis
____________
W.P. No.14536/2017
To
1. The Addl. Chief Secretary &
Commissioner of Land Administration
Chepauk, Chennai 600 005.
2. The Addl. District Magistrate &
District Revenue Officer
Coimbatore.
3. The Revenue Divisional Officer
The District Collector Office
Coimbatore.
4. The Tahsildar (North Coimbatore)
Tahsildar (North) Office
Coimbatore.
37/38
https://www.mhc.tn.gov.in/judis
____________
W.P. No.14536/2017
M.DHANDAPANI, J.
GLN
PRE-DELIVERY ORDER IN
W.P. NO.14536 OF 2017
Pronounced on
20.07.2022
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