Madras High Court
A.Radhakrishnan vs The Commissioner Of Survey And ... on 23 October, 2019
Equivalent citations: AIRONLINE 2019 MAD 1169
Author: B.Pugalendhi
Bench: R.Subbiah, B.Pugalendhi
WP(MD)No.64 of 2018
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON : 23.07.2019
PRONOUNCED ON : 23.10.2019
CORAM:
THE HON'BLE MR.JUSTICE R.SUBBIAH
AND
THE HON'BLE MR.JUSTICE B.PUGALENDHI
WP(MD)No.64 of 2018
and
WMP(MD)Nos.54 and 860 of 2019
A.Radhakrishnan ... Petitioner
Vs.
1.The Commissioner of Survey and Settlements,
Chepauk,
Chennai – 600 005.
2.The Commissioner,
Hindu Religious and Charitable Endowments Department,
119, Nungambakkam High Road,
Chennai – 600 034.
3.The Additional Director General of Police,
Law and Order,
Dr.Radhakrishnan Road,
Chennai – 600 004.
4.The District Collector,
Karur,
Karur District.
5.The Sub Divisional Executive Magistrate cum
Revenue Divisional Officer,
Karur.
6.The Superintendent of Police,
Karur.
7.The Assistant Director,
District Land Survey Office,
Karur.
8.The Executive Officer,
Arulmighu Balasubramania Swamy Temple,
Vennaimalai – 639 006,
Manmangalam Taluk, Karur District.
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WP(MD)No.64 of 2018
9. THE DISTRICT REGISTRAR, KARUR.
10.THE DISTRICT REVENUE OFFICER, KARUR.
11 K.S.SENTHILKUMAR S/O.M.KANDASAMY
12 C.SUNDARAM S/O.CHINNASAMY
13 C.KALIYAMMAL W/O.CHINNASAMY
14 PAPPAYEE AMMAL D/O.PALANIAPPA GOUNDER
15 M.SUBRAMANI S/O.PAPPAYEE AMMAL
16 P.SELLAMUTHU S/O.PALANIAPPA GOUNDER
17 R.MURUGESAN S/O.RAMASAMY
18 S.GOWTHAMAN S/O.SUBRAMANI
19 R.VASANTHI W/O.RAMASAMY
20 M.THIRUMOORTHY S/O.MARIAPPAN
21 P.BOOMATHI W/O.PARAMASIVAM
22 P.NACHAMMAL W/O.P.PALANISAMY
23 R.RAMANATHAN S/O.RENGASAMY
24 E.MOHANASUNDARAM S/O.ETTIYAPPA GOUNDER
25 CHINNASAMY S/O.MARAPPA GOUNDER
26 KALIYAPPAN S/O.PALANIAPPA GOUNDER
27 SENTHIL S/O.CHINNASAMY
28 R.RAMATHAAL W/O.LATE RAMASAMY GOUNDER
29 R.PERIYASAMY S/O.RAMASAMY GOUNDER
30 M.SUBRAMANI S/O.MUTHUSAMY GOUNDER
31 C.JEYABALAN S/O.LATE K.M.CHELLAPPAN
32 C.RAMAYEE W/O.LATE K.M.CHELLAPPAN
33 M.ANANDAN S/O.V.SUBRAMANIAM
34 M.RAMAYEE W/O.P.MURUGESAN
35 M.JEYABALAN S/O.MURUGAN
36 KALIYAMMAL W/O.KANDASAMY
37 A.AMSALAKSHMI W/O.ASHOKAN
38 P.ASHOKAN S/O.PERIYASAMY
39 K.POONGODI W/O.KATHIRVEL
40 E.ELANGOVAN S/O.ETTIYAPPA GOUNDER
41 K.SARASWATHI W/O. KANDASAMY
42 K.SANKARAYEE AMMAL W/O.LATE ETTI GOUNDER
43 K.JEYAKODI W/O.K.SUBRAMANI
44 T.BOOMATHI W/O.THANGAVEL
45 SARASWATHI @ PALANIAMMAL W/O.KANDASAMY GOUNDER
46 P.SARAVANAN S/O.PALANIAPPA GOUNDER
47 SELLAMUTHU S/O.CHINNAPPA GOUNDER
48 K.JEGANATHAN S/O.KALIYANNA GOUNDER
49 SARASWATHI W/O.SELLAMUTHU
50 S.VIJAYALAKSHMI W/O.SAKTHIVEL
51 R.KANDASAMY S/O.RASAPPA GOUNDER
52 SIVASAMY S/O.RAMASAMY GOUNDER
53 R.RAMASAMY S/O.RASAPPA GOUNDER
54 LAKSHMI W/O.KUPPUSAMY
55 SHANMUGAM S/O.KUPPUSAMY
56 SEKAR S/O.KUPPUSAMY
57 SAMBOORNAM W/O.SELLAMUTHU
58 R.PERIYASAMY S/O.RASAPPA GOUNDER
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WP(MD)No.64 of 2018
59 RAJESWARI W/O.VELUSAMY
60 SELVI W/O.BALASUBRAMANIAM
61 P.ARUNACHALAM S/O.PACHANACHIYAPPA GOUNDER
62 A.ARUNKUMAR S/O.P.ARUNACHALAM
63 K.M.ESWARAMOORTHY W/O.MUTHUSAMY GOUNDER
64 E.BHARATHI W/O.K.M. ESWARAMOORTHY
65 A.R.SADASIVAM S/O.K.P.RAMASAMY
66 M.KUMARAKANNAN S/O.N.S.MARIAPPAN
67 P.SELLAMMAL W/O.PERUMAL
68 R.MARAPPAN S/O.RAMASAMY GOUNDER
69 P.RAJENDIRAN S/O. K.PERIYASAMY
70 R.SIVASAKTHI VINAYAGAN S/O.K.P.RAMADOSS NADAR
71 S.SELVARANI W/O.R.SIVASAKTHI VINAYAGAN
72 B.KANAGARAJ S/O.BALAMUTHU
73 M.LAKSHMI W/O.MARAN
74 M.JEGADESAN S/O.V.K.MURUGESAN
75 A.DHARMALINGA S/O.N.AMMAIYAPPAN
76 M.MAHALINGAM S/O.P.MUTHUSAMY
77 R.THANGAVEL S/O.T.K.E.RAMASAMY
78 K.PERIYASAMY S/O.KALIYANNAN GOUNDER
79 C.RAMAYEE W/O.M.CHINNASAMI
80 K.NALLAMMAL W/O.KANDASAMY
81 P.VASUDEVAN S/O.PERIYASAMY
82 K.KANDASAMY S/O.A.KARUPPANNA GOUNDER
83 P.NALLUSAMY S/O.PALANIYAPPA GOUNDER
84 P.MARIYAPPAN S/O.PALANIYAPPA MUDALIYAR
85 R.CHITRA W/O.RAJAMANI
86 R.PALANIYAPPAN S/O.PARAMASIVAM
87 P.DHANAM W/O.P.PALANIYAPPAN
88 A.MUTHUSAMY S/O.ANNAMALAI
89 V.GANESAN S/O.VEERAPPA GOUNDER
90 S.CHANDRASEKARAN S/O.SUBRAMANIAM
91 K.SAVITHRI W/O.KANDASAMY
92 S.THANGAVEL S/O.SUBRAMANIAM
93 P.RAMAMOORTHY S/O.PALANIYAPPAN
94 K.SHANMUGAM S/O.KARUPPANNAN
95 P.SUBRAMANI S/O.SUBRAMANI
96 M.PRABHU S/O.N.MANI
97 T.SIVAGAMI W/O.THIYAGARAJAN
98 S.VIJAYASHANKAR S/O.K.SUBRAMANIAN
99 P.KANDASAMY S/O.PALANIYAPPA PILLAI
100 M.PALANISAMY S/O. MARAPPA GOUNDER
101 VENNILA W/O.LATE PANDIYAN
102 C.MADHANBABU S/O. LATE CHIIDAMBARAM
103 K.SELVI W/O. LATE CHIDAMBARAM
104 R.KALPANA W/O. N.RAMAMOORTHY
105 A.MATHIVANAN S/O. AMMAIYAPPAN
106 M.PALANISAMY S/O. MALAYAPPA GOUNDER
107 PALANIYAMMAL @ LAKSHMI W/O. PALANISAMY
108 M.GUGANATHAN S/O. MALAIYAPPAN
109 LOGAMBAL W/O. NALLUSAMY
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WP(MD)No.64 of 2018
110 K.NIRMALADEVI W/O. C.KARUPPUSAMY
111 S.VELUSAMY S/O. CHINNASAMY GOUNDER
112 C.SELVI W/O. LATE P.CHANDRASEKAR
113 P.MUTHUSAMY S/O. V.PALANIAPPA GOUNDER
114 N.YUVARAJ S/O. K.NAGULSAMY
115 P.S.CHINNATHAMBI S/O. SURYA GOUNDER
116 S.KASTHURI W/O. SIVASAMY
117 K.P.RAGUPATHI W/O. PITCHIMUTHU
118 S.TAMILARASAN S/O. LATE SUBBURAYA GOUNDER
119 S.SELLAMUTHU S/O. SADAIAPPA GOUNDER
120 P. VAIYAPURI S/O. LATE PALANIAPPA GOUNDER
121 N.PALANISAMI S/O. P.NALLAGOUNDER
122 V.SIVASAMY S/O. LATE VAIYAPURI GOUNDER
123 M.TAMILSELVI MOHAN W/O. B.MOHAN
124 S.KAVITHA W/O. T.MUTHUSAMY
125 P.RAMASWAMI S/O. PALANIAPPAN
126 P.SIVASAMI S/O. M.PERIASAMI
127 S.MALLIGA W/O. K.SUBRAMANI
128 K.PALANISAMI S/O. V.KUTTIAPPAN
129 R.VALARMATHI W/O. T.K. RAJENDRAN
130 A.KARUPPANANNAN S/O. K. AMBALAVANAN
131 M.CHINNASAMY S/O. MARAPPA GOUNDER
132 P.MUTHUSAMY S/O. PERIYASAMY GOUNDER
133 P.G.MOORTHY S/O. S.GURUSAMI
134 N.AMARAVATHI W/O. NACHIMUTHU
135 P. MALATHI W/O. V.PALANISAMI
136 S.RAJENDRAN S/O. P.SUBRAMANIAN
137 N.PRASANNA S/O. NARAYANASAMI
138 P.SAKTHIVEL S/O. PALANISAMY
139 S.MANIMEGALAI W/O. M.SELVAM
140 S.MANIKANDAN S/O. SAMIAPPAN
141 K.RAMESH S/O. LATE K.KANDASAMY
142 K.RUKMANI W/O. K.KUMARASAMY
143 S.DHAKSHINAMURTHI S/O. M.SELVAM
144 R.THANGAVEL S/O. RAMASAMY GOUNDER
145 S.THIRUGNANASAMBANDAM S/O.T.S.SADASIVAM
146 P.VASUDEVAN S/O.S.PICHAIMUTHU
147 S.VASUDEVAN S/O.C.SADAIAPPAGOUNDER
148 K.VELUSAMI S/O. KARUPPANNAN
149 R.KANDASAMI S/O RAMASAMI GOUNDER
150 K.SUBRAMANI S/O. KARUPPANAN
151 S.SARASWATHI W/O. K.SUBRAMANI
152 C.RAJADURAI S/O. T.SELLAMUTHU
153 G.M.SIVAKUMAR S/O. P.MOORTHI
154 R.PERIASAMI S/O. P.RASAPPAN
155 P.VANSATHAMANI W/O. P.S.PERIYASAMY
156 K.YASOTHA W/O. C.KRISHNASAMY
157 R.YOGABAMMAL W/O. K.RAMESH
158 R.RAJU S/O. M.RAMASAMY
159 V.NIRMALA W/O. K.VELUSAMY
160 K.P.ANBALAGAN S/O. P.PONNUSAMY
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161 M.KAVITHA W/O. MANI
162 M.RAMASAMY S/O. LATE MUTHUSAMY GOUNDER
163 A.NIRMALA W/O. C.M. ANBUTHAMBI
164 R.KAVITHA W/O. P.RAMASAMY
165 K.BALASUBRAMANIAN S/O. P.KANDASAMY
166 K.SADASIVAM S/O. KARPPANNA GOUNDAR
167 S.MUTHUSARAVANAN S/O. SOLIAPPAGOUNDER
168 E.PASKAR S/O. T.P.ETTIKAN
169 P.DORAISAMI S/O. PITCHIMUTHUGOUNDER
170 S.SELLAMUTHU S/O. S.SUBBURAYAN
171 R.S.PERIYASAMY S/O. SOLIAPPA GOUNDER
172 S.P. SUBRAMANI S/O. PERIYASAMY
173 K.KALIMUTHU S/O. KARPANNAGOUNDER
174 S.KAILASAM S/O. SHOLIAPPAGOUNDER
175 R.SELVARANI W/O.RAJENDRAN
176 R.KASTHURI W/O. P.K. RAJENDRAN
177 M.KATHIRVEL S/O. MUTHUSAMY
178 N.MURUGAN S/O. NADESAN
179 K.SUBRAMANI S/O. A.KALIAPPAN
180 A.S.R. ALAGARSAMY S/O. A.S.RENGASAMY
181 M.NAVAMANI W/O. MAYAVAN
182 V.MURUGESAN S/O. VELLAPPAN
183 K.SUMATHI W/O. K.KANDASAMI
184 S.MUTHUSAMI S/O. CHELLAPPA GOUNDER
185 P.N.KRISHNAN S/O. NATARAYAN
186 M.SELVAKUMAR S/O. MARAPPA GOUNDER
187 S.JAYAMANI W/O. K.N.SUBRAMANIAM
188 K.N. SUBRAMANIAM S/O. N.NATCHIAPPAN
189 A.SUMATHI W/O. AMMAIAPPAN
190 A.SUBRAMANIAN S/O.P. ARUMUGAM
191 K.PONNUSAMI S/O. KARUPPANAN
192 S.THANGAVEL S/O. CHELLAPPA GOUNDER
193 E.NALLASAMI S/O. YETTIAPPAN
194 N.VIVEKANANDAN S/O.P. NACHIMUTHU
195 K.KALAISELVI W/O. R.KUMARASAMY
196 C.NATESAN S/O. N. CHOKALINGAM
197 N.MALATHI W/O. P.NACHIMUTHU
198 M.BALUSAMI S/O. MOTTAIAPPAN
199 P.BANUMATHI W/O. PALANISAMI
200 DR.B.RAJALAKSHMI W/O. LATE P.RAJENDRAN
201 T.VIJAYAKUMAR S/O. V.THIRUNEELAKANDAN
202 A.KAVITHA W/O. ANBUSIVAM
203 M.MUTHUSAMY S/O. MUGAIAGOUNDER
204 M.ESWARI W/O. M.MUTHUSAMY (***)
205 V.VISWANATHAN S/O.VANGILIYAPPAN
206 V.SATHI W/O.VISWANATHAN
207 K.PALANIYAPPAN S/O.KALIYANNA GOUNDER
208 R.SAKTHIVEL S/O.P.RAMASAMY
209 LATHA D/O.LATE PONNUSAMY
210 M.SUBRAMANIAN S/O.K.MURUGAPILLAI
211 K.NATCHIMUTHU S/O.KANDASAMY
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212 K.KANNAN S/O.KANDASAMY
213 K.V.MANIMARAN S/O.K.VARADARAJAN
214 M.DEEPA W/O.MANIMARAN
215 C.MURUGAIYAN S/O.CHINNAPPAN
216 E.MOHANASUNDARAM S/O.ETTIYAPPA GOUNDER
217 R.RASATHI W/O.LATE.RAMASAMY
218 R.RAJASEKAR S/O.LATE.RAMASAMY
219 V.SUBRAMANIAM S/O.K.VAIYAPURI GOUNDER
220 S.INDIRAGANDHI W/O.M.SUBRAMANI
221 A.VANITHA NATARAJAN W/O.R.P.ANANTHA NATARAJ
222 G.THIRUMOORTHY S/O.GOVINDARAJ
223 A.VENKATESAN S/O.AALAPPAN
224 M.RAMACHANDRAN S/O.SRI RENGAN
225 S.LOGANATHAN S/O.SELLAPPA GOUNDER
226 T.MANI W/O.THANGAVEL
227 M.GANESAN S/O.MARIAPPAN
228 P.ARUKKANI W/O.PALANISAMY
229 PUNITHA W/O.MOHAN
230 V.KUPPUSAMY S/O.VENKATACHALAM
231 K.STALIN S/O.V.KUPPUSAMY
232 G.SAGUNTHALA W/O.GANESAN
233 C.DHANABAL S/O.CHINNAPPAN
234 A.JEGADEESWARI W/O.ANANDAN
235 VIJAYALAKSHMI W/O.KANDASAMY
236 E.N.GAYATHRI W/O.NAGARAJAN
237 C.DHARAMALINGAM S/O.CHINNAPPA GOUNDER
238 C.SUDHA W/O.C.DHARAMALINGAM
239 K.PALANIYAPPAN S/O.KALIYANNA GOUNDER
... RESPONDENTS
[ R9 & R10 are suo motu impleaded vide
court order dated 11.01.2018 in WP(MD)NO.
64 of 2018.
R11 to R204 are impleaded vide court
order dated 11.06.2018 in WMP(MD)Nos.3287,
3288, 3289, 3291, 6021, 6289, 6290, 6291
and 6310 of 2018.
R205 to R239 are impleaded vide order
dated.25.06.2018 in WMP(MD)Nos.12186 to
12190, 12243, 12244, 12248, 12276 and
12277 of18]
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WP(MD)No.64 of 2018
PRAYER: Writ Petition filed under Article 226 of the
Constitution of India praying for issuance of a writ of
mandamus directing the respondents to remove the encroachment
mad in the Temple lands in Survey Nos.195, 230,236/2, 237,
238/2, 239/1, 239/2, 239/3, 241, 242, 269, 235 in Kathaparai
Village and Survey Nos.539/1, 539/3, 569/1, 569/2, 577/2,
577/3, 579, 580, 582, 583, 593, 596/1, 596/2, 593/3 in Authoor
Village, Manmangalam Taluk, Karur District.
For Petitioner : Mr.A.Radhakrishnan
party in person
For respondents :Mr.V.R.Shanmuganathan,
Special Government Pleader
for RR 1 to 7, 9 & 10.
: Mr.P.Aathimoola Pandian,
for R8
: Mr.K.Suresh,
for RR 11 to 23, 106 to 109.
: Mr.K.Doraisami,
Senior Counsel,
for Mr.Muthumani Doraisami,
for RR 72 to 80 & 110 to 204
: Mr.K.Suresh,
for Mr.K.Kumaresan,
for RR 24 to 71, 81 t0 105 &
205 to 239.
ORDER
(Order of the Court was made by B.PUGALENDHI, J.,) This writ petition has been filed seeking a writ of mandamus directing the respondents to remove the encroachment made in the Temple lands in Survey Nos.195, 230,236/2, 237, 238/2, 239/1, 239/2, 239/3, 241, 242, 269, 235 in Kathaparai http://www.judis.nic.in 7/43 WP(MD)No.64 of 2018 Village and Survey Nos.539/1, 539/3, 569/1, 569/2, 577/2, 577/3, 579, 580, 582, 583, 593, 596/1, 596/2, 593/3 in Authoor Village, Manmangalam Taluk, Karur District.
2.The petitioner represents himself to be a devotee of the Arulmighu Bala Subramanya Swami Temple, Vennaimalai, Manmangalam Taluk, Karur District, claims that the said temple is a 1000 years old temple and is having hundreds of acres of land in various places including Kathaparai and Athur Villages at Karur District, that most of the lands of the temple have been encroached by third parties and they have not even paid any rent to the temple. In this connection according to petitioner he made several representations to remove the encroachment and the officials have also conducted several meetings, but, the encroachments have not been removed yet. On his representation dated 22.09.2015 the fourth respondent, namely, the District Collector, Karur District, constituted a Committee consisting of various Department Officials like Revenue, Police, Survey, Health, HR & CE, etc., and directed them to complete the survey and identify the lands on or before 07.10.2015. However, the order of the District Collector was not complied with and his further efforts in this regard also ended in vain. On 23.11.2015, the Temple had paid the amount for surveying the lands and sent a representation dated 25.11.2015 to the Tahsildar, Manmangalam. Subsequently, the 7th respondent by order dated 18.12.2015 directed the Tahsildar, http://www.judis.nic.in 8/43 WP(MD)No.64 of 2018 Manmangalam to survey the lands. But, even then no action was taken. Finally the petitioner sent a representation on 27.12.2017, seeking immediate and necessary action and then filed this writ petition to remove the encroachers from the temple lands.
3.While entertaining this petition by order dated 04.01.2018, this Court directed the District Collector, Karur and the other officials to appear before this Court and answer as to why action has not been taken as per the decision taken in the meeting held on 22.09.2015 to remove the encroachment made over the property belonging to Arulmighu Balasubramania Swamy Temple, Vennaimalai, Manmangalam Taluk, Karur District.
4.As per the direction of this Court, the District Collector, Karur, the Revenue Divisional Officer, Karur, the Superintendent of Poice, Karur District and the Additional Director of Land Survey, Karur have appeared before this Court on 11.01.2018. The District Collector has filed a status report with the details of the properties, which are encroached by various parties in Kathamparai Village, Authoor Village and Aandankoivl village. Based on the report a further direction was issued that while identifying the properties, the authorities have to take into consideration the extent of properties and four boundaries of properties, apart from the survey numbers and file a report along with the sketch showing http://www.judis.nic.in 9/43 WP(MD)No.64 of 2018 the properties, which are in occupation of the encroachers and the nature of construction being made in the said properties and also to photograph and videograph each property, so that further encroachment could be prevented. The District Registrar, Karur was suo motu impleaded as 9th respondent and a further direction was also issued to the temple authorities as well as the other authorities to give the survey numbers of the temple lands to the District Registrar, Karur, who will maintain separate register showing the properties as temple properties. In case, if any body attempts to make any other alienation /encumbrance in respect of the same properties, the same shall not be registered by the registration authorities. Therefore, the District Registrar, Karur is impleaded suo motu as 9th respondent. The temple authorities were also directed to give the details in writing to the District Registrar, Karur, so that it can be kept by the District Registrar by maintaining separate register.
5.Since pattas were issued with regard to certain survey numbers, the District Revenue Officer, Karur was impleaded suo motu as 10th respondent. While so, the Respondent Nos. 11 to 204 have filed WMP(MD)Nos. 3287, 3288 3289, 3291, 6021, 6289, 6290, 6291 and 6310 of 2018 for impleading themselves as necessary parties to the proceedings and by order dated 11.06.2018, they were impleaded as respondent Nos.11 to 204. The Respondent Nos.205 to 239 have filed WMP(MD)Nos.12186 to http://www.judis.nic.in 10/43 WP(MD)No.64 of 2018 12190, 12243, 12244, 12248, 12276 and 12277 of 2018 for impleading themselves as necessary parties to the proceedings and by order dated 25.06.2018, they were impleaded as respondent Nos.205 to 239.
6.In compliance of the directions of this Court, periodical status reports have been filed by the District Collector, Karur. It is the stand of the District Collector that the Executive Officer of Balasubramania Swamy Temple, Vennaimalai, has identified the properties of the temple as per A register of the Revenue Department in Kathaparai, Andankoil and Authr village, in Manmangalam Taluk.
7.Out of 113 survey fields mentioned in the list submitted by the Executive Officer, A/M Balasubramania Swamy Temple, Vennaimalai, some of the lands pattas had been granted by the Settlement Tahsildar / Assistant Settlement Officer under Section 8(2)(1)(a), 8(2)(1)(b), 8(1) of Tamil Nadu Minor Inam (Abolition And Conversion into Ryotwari) Act, 1963 and therefore, it was expressed by the District Administration, that the Revenue Authorities are not empowered / competent to alter the decision of the Settlement Authorities.
8. On 30.01.2019 The District Revenue Officer, Karur has filed an additional affidavit, that the lands registered in the name of the temple were categorised as follows:
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1.The lands standing in the name of the temple but are vacant lands.
2.The lands standing in the name of the temple but with constructions.
3.The lands standing in the name of the temple during 1912 settlement, but settlement pattas were issued during enquiry under Act 30 of 1963 in the name of the individuals.
4.The lands standing in the name of the temple during 1912 settlement, but revenue pattas were issued during Updating Registry Scheme [UDR] in the name of the individuals.
5.The lands standing in the name of the temple during 1912 settlement, but revenue patts were issued after updating Registry Scheme [UDR] in the name of the individuals.
9.It has been further stated in the report that in respect of the lands in Category 1 and 2, the revenue records are in the name of the temple and if there are any encroachments the temple has to initiate appropriate proceedings under Section 78 of the HR and CE Act. Insofar as the third category is concerned, as settlement pattas were given in the name of the individuals, the revenue authorities express that they cannot http://www.judis.nic.in 12/43 WP(MD)No.64 of 2018 interfere with the same. Insofar as the fourth category is concerned the revenue records have been altered in the name of the individuals during UDR, the District Revenue Officer has held the enquiry and passed orders restoring patta to the temple. In respect of the fifth category is concerned, the revenue records have been altered to the name of individuals after UDR and hence, Revenue Divisional Officer is the competent authority and he has held appropriate enquiry and has also restored the pattas to the name of the temple. If the parties are aggrieved, it is for them to challenge them in the manner known to law.
10.The newly impleaded respondents.110 to 204 had raised objections that they are not encroachers and they are bonafide purchasers from Royatwari Patta holders. According to them, Royatwari pattas were issued to their predecessors only after following the due procedures as contemplated under the Tamil Nadu Act 30 of 1963 and also after hearing the Trustee of the Temple. Statutory orders passed by the Statutory Authorities can be interfered with only as per the provisions of the Act. Since no Appeal / Revision was preferred in time, the orders passed by the Settlement Authorities cannot be interfered with by the Revenue Authorities. They also objected to the inclusion of their lands in Survey Nos.185, 186 and 195 of Kathaparai Village that it is contrary to the records and the ground realities. According to them, they have been in continuous http://www.judis.nic.in 13/43 WP(MD)No.64 of 2018 possession and enjoyment of their respective lands purchased for valuable consideration and they have also put up construction and residing in the properties for several decades.
11.Mr.K.Suresh, learned Counsel appearing for the respondent Nos. 11 to 71, 81 to 109 and 205 to 239 had submitted that these respondents have been in possession and enjoyment of their respective properties from time immemorial and most of the properties have been purchased by them and there were several transactions, whereby the properties have been exchanged and they are the absolute owners.
12.The respondents relied upon the documents which are executed and entered into between the parties for the past hundred years and are issued by the Government officials and contend that the validity of the said documents, can be tested only in a Court of law by applying the principles of evidence and hence, civil Court is the proper forum to decide the title.
13.They also relied on the decision of the Supreme Court in Government of Andhra Pradesh Vs Thummala Krishna Rao and another, reported in AIR 1982 SC 1081, wherein it has been held as follows:
“What is relevant for the decision of that question http://www.judis.nic.in is more the nature of the property on which the 14/43 WP(MD)No.64 of 2018 encroachment is alleged to have been communicated and the consideration whether the claim of the occupant is bonafide. Facts which is a bonafide dispute of title between the government and the occupant must be adjudicated upon by the ordinary course of law. The government cannot decide such questions unilaterally in its own favour and evict any person summarily on the basis of such decision. But duration of occupation is relevant in the sense that the person who is in occupation of the property openly for an applicable length of time can be taken, prima facie to have a bona fide claim to the property requiring an impartial adjudication according to the established procedures of law.
14.Further it is submitted that only on the basis of the temple registers, the enquiry has been initiated. In this connection they relied on the decision of this Court in Sudha Ravi Kumar and another Vs, The Special Commissioner and Commissioner, Hindu Religious and Charitable Endowments Department and others, reported 2017 (3) CTC 135, wherein it has been held as follows:
“thus, the preparation as well as the maintenance of the registers by the electoral act of the religious institution and therefore, likelihood of the private lands belonging to any individual being included in the register by error cannot be ruled out. All this issues sought to be resolved by the civil Court. Therefore, in our considered view, once patta has been issued under either the Tamil nadu Estates (Abolition and Conversion http://www.judis.nic.ininto Ryotwari) Act, 1948, Tamil Nadu Inam Estates 15/43 WP(MD)No.64 of 2018 (Abolition and Conversion into Ryotwari) Act, 1963 and the Tamil Nadu Minor Inams (Abolition and Conversion into Ryotwari) Act, 1963, it is for the temple to establish its title before the civil Court.” So, the civil Court is the appropriate forum to agitate these kind of issues as all the documents required to be testified by way of evidence.
15.They also claim liberty to approach the civil Court for raising the dispute of title over the said properties that RDO, Karur cancelled their Pattas and they are not in a position to file appeal before the DRO, Karur, on whose direction the pattas have been cancelled.
16.Mr.K.Doraisamy, learned Senior Counsel appearing for the respondent Nos.72 to 80 and 110 to 204 submitted that these respondents are the owners of the lands in Survey Nos.181, 182/2, 182/2B, 182/2C, 184, 184/1A1, 184/B, 184/3D, 185, 185/3K, 186, 186/1, 186/11, 192, 246, 246B, 249 and 250 of Kathaparai Village and they are in possession and enjoyment of the same and they have purchased various portions on payment of valuable consideration from the erstwhile owners, who enjoyed ancestrally and these respondents are having possession and enjoyment for more than 60 years and have constructed terrace house thereon. He further submits that the settlement Thasildar after conducting enquiry and issuing notice under Tamil Nadu Minor http://www.judis.nic.in Inams (Abolition and Conversion into Ryotwari) Act 30 of 16/43 WP(MD)No.64 of 2018 1963 to the predecessors-in interest of the respondents 72 to 80 and 110 to 204 as well as the Balasubramaniasamy Temple, Vennaimalai and found that the predecessors of the respondents 72 to 80 and 110 to 204 were in continuous occupation.
17.It is his further submission that the District Collector, Karur has taken a stand in the status report that pattas granted to these respondents found at Table Nos.IV to VI cannot be interfered with. In the circular dated 12.06.2015 issued by the Additional Chief Secretary and the Commissioner of Land Administration in K4/35687/2015, it has been categorically mentioned that if the statutory pattas issued under the provisions of the Tamil Nadu Estate (Abolition and Conversion into Ryotwari) Act, XXVI of 1948, Tamil Nadu Minor Inam (Abolition and Conversion into Ryotwari) Act XXX of 1963 the pattas had reached finality, since no appeals were preferred in time.
18.The learned Senior Counsel has also relied on a Circular of the Additional Chief Secretary and Commissioner of Land Administration dated 12.06.2015, wherein the Director of Survey and Land Tax in RC.U2/7113/2018, dated 04.07.2018 directed the District Revenue Officer, Karur that the pattas issued will be binding on the temple authorities, The District Revenue Officer, Karur as well as the individuals, if they had reached finality in the absence of statutory appeals. http://www.judis.nic.in 17/43 WP(MD)No.64 of 2018
19.The learned Senior Counsel further submits that in Survey No.195 of Kathaparai Village, statutory patta was granted on 31.08.1967 in favour of various individuals by the settlement Thasildar. According to the temple, appeal has been filed against the order of the settlement Thasildar in CMA.No.4 of 1979. As per Section 11(3) of the Tamil Nadu Act (30 of 1963) appeal should be filed within one year and the Tribunal has no jurisdiction to condone the delay and entertain the appeal beyond delay of two months. Even if the appeal had been filed in the year 1979 against the order granting patta in the year 1967, it will be nullity, in view of Section 3 of the Limitation Act and it is the obligation on the part of the Tribunal to reject such time barred appeal even in the absence of objection from the contesting party. The pattas in respect of Survey No.195 have been in the names of various individuals till now and if it is true that patta was restored to the name of the temple on 24.01.1983, the temple authorities and the revenue officials would not have kept quite for more than thirty years.
20.He further contended that the reliance placed by the authorities on Section 38(3) of HR & CE Act, is unsustainable, since pattas issued to the predecessors-in-interest by the competent authorities reached finality, Section 38(3) cannot be applied to the lands of the predecessors of these respondents. The respondents have put up pucca terraced houses and are http://www.judis.nic.in 18/43 WP(MD)No.64 of 2018 living therein for generations cannot be treated as trespassers.
21.Mr.V.R.Shanmuganathan, learned Special Government Pleader appearing for the official respondents had submitted that the 8th respondent Arulmighu Balasubramania Swamy Thirukovil, Vennaimalai, Manmangalam Taluk, Karur District claims that the following lands belong to the temple. (1) The lands Survey Nos.583, 569, 599, 568, 577, 579, 594, 560, 562, 571, 578, 573, 540, 558, 559, 561, 563, 564, 567, 570, 572, 574, 582, 584, 588, 589, 592, 595, 597, 600, 601, 609, 611, 612, 5871, 539, 577, 579 and 596 in Authoor Village, (2) The lands in Survey Nos. 238, 269, 239, 182, 184, 192, 246, 249, 181, 250, 185, 186, 248, 146, 187, 195, 230, 235, 236, 237, 239, 241 and 242 in Kathaparai Village, and (3) the lands in Survey Nos.7, 20, 21, 22, 23, 24, 25 and 26 Andankoil village.
22.It is further submitted that appropriate enquiry has been held and orders have been passed. Thus, the orders of this Court have been duly complied with and nothing further remains to be adjudicated in this writ petition and it is for the parties concerned to work out the remedies accordingly. It is also submitted that the respondents have been in possession for more than thirty years, based on the settlement patta and the revenue patta and those pattas in their names have been http://www.judis.nic.in 19/43 WP(MD)No.64 of 2018 cancelled pursuant to the orders of this Court and therefore, this Court alone can decide the validity of such order of RDO and DRO in this petition itself. He also claims that the settlement pattas were also cancelled and such orders were also confirmed by this Court in Special Tribunal Appeals.
23.The learned Special Government Pleader has also relied upon the following judgments that inam lands are never alienable.
1.Neti Anjaneyalu Vs Venugopal Rice Mill reported in AIR 1922 Mad 197.
2.The Secretary of State Vs Gulam Mahaboob Khan 1919 (37) MLJ 71.
3.Soora Ramakrihnamma Vs Paumarthi Venkata Subbiah 1935 (68) MLJ 46.
4.V.E.Ramanathan Chettiyar Vs Kalidasa Kavandan and another reported in 1936 (71) MLJ 398.
5.Gopal Naidu & EO vs Special Tahsildar 1974 (1) MLJ 124.
6.C. Muthu Battar Vs The Authorised Officer 1979 (1) MLJ 480 http://www.judis.nic.in 20/43 WP(MD)No.64 of 2018
7.Ayyankutty Goundar and others Vs The Revenue Divisional Officer, Salem and others [decided on 31.07.2009 in WP.No. 44556 to 4458 of 2006, confirmed in WA.No.1346 of 2009.
8.V.Thiyagarajan and another Vs The State of Tamil Nadu [decided on 31.10.2014 in WP(MD)No.7047 of 2006]
9.Saraswathi Ammal Vs V.Vadamalai Rengappan and others reported in 2018 (6) CTC 744.
24.The learned Special Government Pleader has also submitted that Section 38 (3) of the Act 30 of 1963 creates a bar for such alienation and all the transactions / transfers based, on which the parties claim title to aforesaid lands are void ab initio. Mere possession for several years will not convey any right or title or interest to them as per the dictum laid down in Saraswathi ammal's case cited supra.
25.Heard Mr.A.Radhakrishnan [party – in person], and Mr.K.Doraisamy, learned Senior Counsel appearing for the the respondent Nos.72 to 80 and 110 to 204, Mr.K.Suresh, learned Counsel appearing for the respondent Nos. 11 to 71, 81 to 109 and 205 to 239 and Mr.V.R.Shanmuganathan, learned Special Government Pleader appearing for the official respondents and perused the materials and documents produced on either side. http://www.judis.nic.in 21/43 WP(MD)No.64 of 2018
26.The main contention of the petitioner is that the several acres of lands belonging to Arulmighu Balasubramania Swamy Temple, Vennaimalai – 639 006, Manmangalam Taluk, Karur District, have been encroached. But the respondents 11 to 239 claim that settlements pattas have been issued as early as in the year 1967 and they are not encroachers and they are the bonafide purchasers of the said lands. After several years of purchase and issuance of patta, now, no coercive action can be taken after several years.
27. In the case of V.Thiyagarajan and another Vs The State of Tamil Nadu [decided on 31.10.2014 in WP(MD)No.7047 of 2006], Justice Mahadevan, in a similar circumstances has elaborately discussed the issue and passed a detailed order and it is relevant to extract the same.
12. The questions that arise for consideration, in the case on hand, are as to whether the temple lands had been illegally alienated? and whether steps have been initiated by the temple administration to retrieve the same?
14. Coming to the facts of the present case, this Court finds that it is the claim of the petitioner that the lands belonging to Arulmigu Subramaniya Swamy Thirukoil, Thiruparankundram, were illegally grabbed by the politically influenced persons, to the extent of 100 acres and the temple administration did not maintain any records to show the lands of the temple. http://www.judis.nic.in 22/43 WP(MD)No.64 of 2018
17. On facts, this Court finds that a resumption petition had been filed by the Executive Officer of the temple to retrieve the temple lands and it came to be dismissed by the Revenue Divisional Officer and consequently, an appeal was also preferred before the District Collector, but, the said appeal is still to be numbered. Hence, this Court is of the view that the temple authorities had not taken steps to retrieve the lands belonging to the temple. The word 'atrocious' would fall short to describe the conduct of the respondents 1 to 6. The appeal was filed in 2009 and the same is yet to be numbered. The 4th respondent has either not understood the seriousness of the case or the staff under him may not have brought the filing of the appeal to his knowledge. If the case is later, the 4th respondent must immediately take steps against the concerned staff for having colluded with encroachers and third parties in delaying the numbering and hearing of the appeal. Apparently, the Service Inams can only be enjoyed and cannot be alienated. The purpose of granting service inams is mainly to utilize the income from the lands to satisfy the basic needs of the pujaris and the expenses towards maintenance of the temple. There is a specific bar under section 34 of the Act against alienation without the approval of the commissioner. Any alienation in violation of section 34 is null and void. The commissioner has to call for objections and then pass an order sanctioning the sale by giving specific reasons and after the approval of the government. Money alone cannot be the criteria for according sanctions. In any case,no such permission was accorded in the instant case. The alienation in this http://www.judis.nic.in 23/43 WP(MD)No.64 of 2018 case was not done by the trustees or the executive officer but by the beneficiaries under the grant. Indisputably, there is a condition in the grant forbearing alienation and therefore the beneficiaries under the settlement patta can never alienate the land. Once the service of the beneficiary is terminated, the land will have to be passed on the person in service. The only motive behind the delaying of the appeal is to be in possession and reap the profit as long as possible, as, in any case the appeal would have to be allowed in view of the settled proposition of law as laid down by the Honourable Apex Court in the decision relied upon by the learned Counsel for the petitioner, in Joint Commissioner, Hindu Religious and Charitable Endowments, Administration Department v. Jayaraman and others reported in (2006) 1 Supreme Court Cases 257. The relevant paragraphs are extracted hereunder for ready reference:
7. It is seen that the claimants had got themselves appointed as hereditary trustees by applying under Section 63(b) of the H.R & C.E. Act. They could not thereafter shed their character as trustees of the temples holding the lands belonging to the temples at a subsequent stage at least without impleading the H.R & C.E. Department and the deities and without getting a valid adjudication of their right over the properties.
It is clear that in spite of the necessity for impleading the H.R & C.E. Department being pointed out, the claimants made no attempt to implead the H.R & C.E. Department either before the Settlement Tahsildar or before the District Judge and consequently, the orders passed by the Settlement Tahsildar and by the District Court were clearly illegal and not binding on the http://www.judis.nic.in 24/43 WP(MD)No.64 of 2018 deities or the H.R & C.E. Department. The claimants had, in fact, acted totally without bona fides in an attempt to corner the properties for themselves or at least to make undue gains for themselves by selling the properties. Such action would certainly not bind the deities or the H.R & C.E. Department. The High Court, representing the sovereign as parens patriae ought to have come down on the respondents herein and ought to have issued directions for the protection of the properties.
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11. It was contended that the purchase price had been deposited in a Fixed Deposit and so long as there is no failure on the part of the claimants to perform the services which they are liable to perform, there is no necessity to interfere with the transaction of sale effected by them. It is seen that going by the prevalent valuation and the market value as reported, the lands were sold for a meager price or that the sale deeds indicated only a meager price as consideration for the same with all that it implies. Such a transaction is clearly seen to be not in good faith. That the District Court proceeded to accept the value for which the property was being sold even without making an enquiry into the market value that the properties would have fetched at the relevant time while giving the permission for the sale, is shocking. The jurisdiction under Section 34 is advisory. The Court should have satisfied itself of the need for sale and the propriety of the sale proposed. The mere pleas that it was difficult to protect the property and that there was only meager income therefrom were by themselves not grounds to direct or permit the sale. http://www.judis.nic.in 25/43 WP(MD)No.64 of 2018
12. It is seen that there has been a clear attempt by the claimants to over-reach the deities and the authorities under the H.R & C.E. Act, while managing the properties dedicated for the purposes of the temple, properties granted and managed by them in their capacities as poojaries, for the maintenance of the temples. The attempt has to be deprecated.
13. In the circumstances, we allow this appeal and setting aside the order of the High Court in Civil Revision Petition (NPD) No. 1684 of 2002 and that of the Principal District Judge, Dindigul in Trust Original Petition No. 44 of 2001, dismiss Trust Original Petition No. 44 of 2001 filed by the claimants. Consequently, the permission granted for the sale would also stand set aside and the sale effected by the claimants pursuant to such permission will be deemed void and would confer no right on the purchasers thereunder or on any one claiming under or through them. It is also clarified that the revised order of the Settlement Tahsildar under Act 30 of 1963 and the revised patta granted are not binding on the deities or on the H.R & C.E. Department. The appellant would be entitled to its costs both here and in the High Court. Applying the above dictum of the Honourable Apex Court, the alienations made by the beneficiaries are void and not binding on the temple and the H.R & C.E Department. However, to prevent any future allegations regarding the violations of principles of natural justice, the appeal must immediately be taken on record and disposed by the 4th respondent within eight weeks after giving opportunity to all the parties concerned.
18. The effect of non-maintenance of records has not only resulted in alienation of service inams, but has http://www.judis.nic.in 26/43 WP(MD)No.64 of 2018 also resulted in sub-leasing of the leased properties and extended tenure of the lesees. As stipulated in section 34, the lease of the property cannot be beyond five years. In the present case, the lessees have been squatting over the properties for more than five years by paying a meagre rent. A sub-lessee can only be termed as an encroacher. This court finds the contention of the respondents that it is the petitioner who has to give particulars regarding sub-lease as unreasonable. Entrusted with the administration of endowments of the temple, the respondents must not only be vigilant but also act with responsibility. The contention only further augments the case of the petitioner that the records are not maintained properly. Hence the respondents are directed to immediately identify the encroachers and evict them in accordance with Sections 78, 79 and 79-A of the Act. The main purpose of leasing out the properties is to generate income to the temple. Therefore after eviction, the lands must be leased out by conducting public auction. The upset rent in the auction shall be determined by following the procedure contemplated under Section 34-A of the Act. Ultimately, this Court finds that a roving enquiry has to be conducted regarding the non-maintainability of the records by the temple administration, as to the actual lands owned by the temple and appropriate action has to be initiated as against the erring officials.
19. Accordingly, the respondents 1 and 2 are directed to hold an enquiry as to the non-maintainability of the records by the temple authorities and take action in accordance with law as against the officials concerned in this regard. The Preamble of the Tamil Nadu Hindu http://www.judis.nic.in 27/43 WP(MD)No.64 of 2018 Religious and Charitable Endowments Act, 1959 reads as follows:
An Act to amend and consolidate the law relating to the administration and governance of Hindu Religious and Charitable Institutions and Endowments in the State of Tamil Nadu.
WHEREAS it is expedient to amend and consolidate the law relating to the administration and governance of Hindu Religious and Charitable Institutions and Endowments in the State of Tamil Nadu." As evident, the main object of the Act is to maintain the endowments of Hindu Religious and Charitable Institutions. It is a separate Department under the control of the State Government and enormous expenditure is incurred towards salary of the various categories of persons in the Department. This court, under the extra-ordinary jurisdiction under Article 226 cannot shut its eyes to the irregularity and permit the authorities to demean the object of the Laws and the provisions of the Act. Therefore, merely appointing officers and functioning without any responsibility will not serve any purpose. If any officer of the HR & CE Department acquires knowledge regarding any violation of any grant or inaction or undue favouritism towards any particular person, he must immediately inform the authority concerned or the Fit Person to take immediate steps against such person(s) committing the violation or the erring official(s). The income from the endowments of the institutions are maintained in separate accounts under the control of the State Government. There are many temples in the State which though are under the control of the HR & CE Department, are poorly maintained. The incomes of many such temples are so http://www.judis.nic.in 28/43 WP(MD)No.64 of 2018 poor that the lighting of the lamps has itself become difficult. The 2nd respondent is directed to constitute a committee to look into the income of various temples under its control and pave a scheme so as to not only preserve the old temples but also to ensure that the daily rituals are carried out without any hindrance. Further, the respondents 1 and 2 are directed to issue circulars to the temple authorities, all over the State to keep maintaining the relevant records pertaining to the temple lands properly and to follow the guidelines to be framed there under, without any default, to cut at the root of land grabbing in future.”
28.In the case of Saraswathi Ammal Vs V.Vadamalai Rengappan and others reported in 2018 (6) CTC 744, it has been held as follows:
45.There were a number of inams granted as remuneration for services rendered particularly in religious institution.
The persons to whom these inams were granted either alienated the inam lands or were enjoying the lands without rendering the service. Section 44-B of Act 2 of 1927, Section 35 of the Madras Hindu Religious and Charitable Endowments Act, 1951 and Section 41 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959, have been in force successively to make good the loss the institutions will suffer if the services which they are entitled to on account of the inams are lost.
46.An explanation had been given to Section 41 that it will not affect the rights and obligations of the landholder and tenant of any land, which is ryot land as defined in the http://www.judis.nic.in 29/43 WP(MD)No.64 of 2018 Tamil Nadu Estates Land Act, 1908.
47.Under Section 41 (2) (a), the Collector upon following due process has a right to resume the whole or any part of any such inam, which had been exchanged, gifted, sold, mortgaged or leased for a exceeding period of five years. The further provisions under Section 41 related to procedure given for said resumption of the land.
48.A plain reading of the Section 41 implies that if any land had been marked as inam for the support or maintenance of a religious institution or for the performance of a charity or service connected with any religious charity, then, sale of such land shall be null and void.
49.In the instant case, lands measuring 3.20 acres in Kulasekaran Kottai Village, Vadipatti Taluk, Madurai District had been originally granted as Malaikatti inam sevai for the pagoda of Sri Kadali Narasinga Perumal situated in Ammaya Naickenur Village.
50.The grante of the inam was Rengaier. He had a son Singaperumal Iyer. Singaperumal Iyer had two sons, S.Rengaiyer and S.Thirupuli Krishnaiyer. Both of them orally partitioned the 3.20 acres into eastern and western halfs. The eastern half measured 1.60 acres and the western half also measured 1.60 acres. S.Rengaiyer was allotted the eastern half and S.Thirupuli Krishnaiyer was allotted the western half. S.Rengaiyer had three sons, R.Ponnadi, Thirumalirunsolai and Chinna Krishnaiyer. S.Thirupuli Krishnaiyer had two sons, T.Sundarajaiyer and T.Chenna Krishnaiyer. http://www.judis.nic.in 30/43 WP(MD)No.64 of 2018
51.S.Rengaiyer, who was allotted the eastern half of 1.60 acres, sold the entire area to the plaintiff V.Vadamalai Rengappan, by sale deed dated 17.05.1959. This had been produced as Ex.A1. In the sale deed, the lands were described as “Pithurargitha Pathiam” namely, ancestral property. This statement is false. The character of inam had not changed in the year 1959. It was still inam land. The purpose of the inam was to provide service to the Deity, Sri Kadali Narasinga Perumal. The inam itself was Malaikatti inam. It was to provide garlands to the Deity.
52.A reading of Ex.A1 reveals that the schedule mentioned property in the sale deed namely 1.60 acres on the eastern half in S.No.395/2 was already sold to the plaintiff and the sale deed was only a document reducing in writing such sale. It is also seen that Rengaier had leased out the property. He also created a mortgage with right to possess to Pappathiammal, on 17.05.1943. In the sale deed, it was stated that the plaintiff should redeem the mortgage. The entire land was sold for a total consideration of Rs.1,000/-;. S.Rengaiyer, similarly sold 80 cents on the north western half of Survey No.395/2 by Ex.A2 to C.Govindan. Those lands were also mortgaged by Pappathiammal. The total consideration was Rs.5,00/-. Again on 18.05.1959, T.Chenna Krishnaiyer, sold the remaining 80 cents on the western half to C.Govindan, for a total consideration of Rs.500/- Again, the said property had also been mortgaged with right to possess in favour of Pappathiammal.
53.Section 35 of the Madras Hindu Religious and Charitable Endowments Act, 1951 and Section 41 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959, specifically prohibit such sale. When a statute prohibits sale http://www.judis.nic.in 31/43 WP(MD)No.64 of 2018 of this nature, then, the sale deed is void by statute. It is void in law and no right can ever flow from the sale even in future. Void by statute is to be distinguished from void by act of one of the parties.
54.It is in this background that Section 43 of Transfer of Property Act, has to be examined. Section 43 of Transfer of Property Act is as follows:
43.Transfer by unauthorized person who subsequently acquires interest in property transferred Where a person fraudulently or erroneously represents that he is authorized to transfer certain immovable property and professes to transfer such property for consideration, such transfer shall, at the option of the transferee, operate on any interest which the transferrer may acquire in such property at any time during which the contract of transfer subsists. Noting in this section shall impair the right of transferees in good faith for consideration without notice of the existence of the said option.
55.Section 43 of Transfer of Property Act relates to fraudulent representation. It comes into operation when a fraudulent representation is made that the vendor is authorized to transfer the immovable property. In such an instance, then, at the option of the transferee, Section 43 comes into play. This fraudulent representation under Section 43 is different from rendering a sale as null and void by statute as provided under Section 35 of the Madras Hindu Religious and Charitable Endowments Act, 1951 and under Section 41 of Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959.
http://www.judis.nic.in 32/43 WP(MD)No.64 of 2018 Under Section 43 of the Transfer of Property Act, if subsequently the vendor is found to have gained title then, the transferee can seek the right to regularize his sale. But under Section 41 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959, since the statute declares that the sale transaction of inam lands are void, the transferee can never have any right even subsequently to regularize his sale. I hold that the entire premise, on which, the first appellate Court gave its findings is totally erroneous.
30.This Court in P.Lakshmanan and others Vs. The Superintendent of Police, Sivangai, [in WP(MD)No.14428 of 2017, decided on 12.02.2018 has held as follows:
“14.As the legal maxim “Ignorantia juris non excusat or ignorantia legis neminem excusat” says Ignorance of fact can be excused, but not ignorance of law, the theory of bonafide purchaser or the theory of limitation cannot be invoked against the temple and its properties. The law on this point is well settled by this Court. The validity of Section 109 of the HR & CE Act and the applicability of Section 10 of the Limitation Act has been laid to rest in favour of the temple in the following decisions:
http://www.judis.nic.in 33/43 WP(MD)No.64 of 2018
(i)In Arulmigu Kolavizhi Amman Temple v.
R.Shamugham [MANU/TN/2211/2008 = 2008 3 MLJ 732], this Court has held at paras 35 and 39 as under:
“35. Issue No.4 and additional issue relating to adverse possession framed on 4.10.2002:- The learned counsel appearing for the plaintiff would submit that as per section 10 of the Limitation Act, 1963, the suit property which vested in trust for specific purpose can be recovered at any point of time and there is no limitation for laying a suit for recovery of such properties. He would further contend that section 109 of the H.R & C.E. Act substituted by Act 28 of 2003 is retrospective in operation. Further, the law of limitation is a procedural one and therefore, the substitution of a new provision would be deemed to have come into effect from the date when originally the litigation was commenced.” “39.The intention of the legislature for substitution of section 109 of the Act is to protect the property of the religious institutions from being lost by adverse possession on account of the limitation prescribed under the Limitation Act, 1963.
Let us visualize a situation where the plaintiff temple withdrew this suit and laid a fresh suit after the year 2003. Can the defendants still contend that the suit laid for recovery of possession by the plaintiff temple is barred by limitation in the face of the substitution of section 109 of the H.R & C.E.Act? The defendants cannot definitely set up such a plea. Denying the plaintiff temple to take advantage of the benevolent substitution of section 109 of the H.R & C.E. Act will multiply the civil proceedings between the parties.
http://www.judis.nic.in 34/43 WP(MD)No.64 of 2018 Therefore, the court finds that even for the pending suits, the provision under the substituted section 109 of the H.R & C.E. Act will apply. Such being the case, the court finds that the suit is not barred by limitation in view of the fact that there is no limitation for the religious institutions to lay a suit for possession of immovable property belonging to it.”
(ii)In Narayanan v. The State of Tamil Nadu rep. by its Secretary, CT & RE Department, Fort St. George, Chenna-9 and others [MANU/TN/4748/2011 = 2012 1 CTC 474], at para 11, the Division Bench of this Court extracted Section 109 of the HR & CE Act, along with other provisions, which reads as follows:
“S.109. Central Act 36 of 1963 not to apply for recovery of properties of religious institution: Nothing contained in the Limitation Act, 1963 (Central Act 36 of 1963) shall apply to any suit for possession of immovable property belonging to any religious institution or for possession of any interest in such property.” Thereafter, at para 21, it has been observed as under:
“21.So far as the contention relating to introduction of Section 109 of the HR & CE Act is concerned, we uphold the amendment brought into existence by way of Tamil Nadu Amendment Act 28 of 2003. As rightly held by the learned Single Judge since Section 109 is only akin to Section 10 of the Limitation Act, no exception could be taken for the removal of limitation for taking action in restoring http://www.judis.nic.in the temple properties. The decisions relied on by the 35/43 WP(MD)No.64 of 2018 learned counsel in this aspect are not applicable to the facts of the present case.”
(iii)In Yadhava Community Trust of Edatheru and others v. Jawahar Nisha and others [MANU/TN/3744/2016], at para 12, this Court held thus:
“12.The learned Senior Counsel appearing for the appellant would rely upon the Judgment in Arulmigu Kolavizhi Amman Temple rep. by the Executive Officer, Madras v. R.Shanmugam (died) and others reported in MANU/TN/2211/2008 : (2008) 3 MLJ 732, and contend that there is no limitation for recovery of possession of the trust property. Here again there is no quarrel with the legal proposition that Section 109 of the Tamil Nadu Hindu Religious and Charitable Endowment Act, literally removes any restriction by way of limitation, for a suit to be filed by a trust for recovery of property. In this case, the plaintiffs have to fail, because they have not established their title to the suit property.
Therefore, the question as to whether the plaintiff suit is barred by limitation or does not really arise.
29.In the said writ petition this Court issued certain directions to the HR & CE Department, which could subserve the object for which, the lands have been donated to the temple http://www.judis.nic.in 36/43 WP(MD)No.64 of 2018
30.There are numerous temples in the State of Tamil Nadu and most of the temples have thousands of acres of land. Statistics reveals that there are 5.25 lakh of acres of land are with the temple and the same were donated by the devotees of the temples with certain object to do services to the temples. The object behind the enactment of the HR & CE Act itself is for better administration of the temples, mutts and their endowments. Considering the necessity even during the British regime by Act 1 of 1925, the Government constituted the HR & CE Board. Even after the establishment and existence of the board, the sad reality is endowments of the temples are not maintained properly. This is yet another example how the endowments have been misused.
31.The Hon'ble First Bench of this Court in WP.No.1972 of 2015, by order dated 29.02.2016, has observed as follows:
“The lands of the Lords are in trouble!! Even Gods and Lords are not spared. The temples in Tamil Nadu are historic symbols of Tamil history and they are the properties of the community as a whole. But God's money is robbed by the notorious society. The tenants and encroachers are defrauding on rents for the temple lands which are taken on lease and breaking of Hundis, steeling the temple jewels, the value of which are unmeasurable and the lifting of antique metal icons to other http://www.judis.nic.in countries are increasing day by day.” 37/43 WP(MD)No.64 of 2018
32.In this case also the lands belonging to the temple are encroached by the third parties and it is evident from the status reports filed by the District Collector, Karur on various dates. Only after the directions of this Court, the official respondents have conducted enquiry and identified the lands of the Arulmighu Balasubramania Swamy Temple, Vennaimalai, Karur District and as per their reports most of the lands of the temple have been encroached. However, according to the officials, as stated above, the pattas have been restored in the name of the temple after due enquiry.
33.The final status report filed by the District Collector, Karur, on 30.01.2019, would reveal the present status of the lands, which they have categorised into five. Though the impleaded respondents have raised very many contentions that they are the bonafide purchasers and they have been in possession and enjoyments of the respective lands for years together, the same cannot be a ground to allow them to continue with their occupation in the lands, in view of the judgments cited above and the specific stand taken by the District administration and the temple administration, they have to redress their grievance only in the manner known to law. However, it is open to the Commissioner, HR & CE Department to consider the case of the respondents 11 to 239 that they have put up constructions and residing in the place for several decades, provided they come with a proposal to http://www.judis.nic.in 38/43 WP(MD)No.64 of 2018 treat them as tenant or willing to take the lands make good the loss at the prevailing market price or prescribed by the committee and the same can be considered by the Commissioner, HR & CE Department, as per Section 34 of the HR & CE Act.
34.The very object the lands that have been donated by the devotees has been defeated in this case. It is not only in this temple at Karur and it is almost a common affair in all the temples under the control of the HR & CE Department. The very object of establishing the HR & CE Department is to maintain the endowments, but the case in hand expose the manner in which the properties are protected. Under Section 29 of the HR & CE Act, the religious institution has to prepare and maintain the registers, but it appears the registers are not maintained properly. The HR & CE Department alone cannot be blamed and it appears the Revenue Officials have also colluded with the encroachers and have created the records in favour of the encroachers.
35.It is not in dispute that the private respondents are in long and absolute possession over the aforesaid properties and it is the case of the petitioner as well as the 8th respondent that the 8th respondent temple alone is the title holder and all the lands referred in this writ petition belonged to the temple and are service inam lands. http://www.judis.nic.in 39/43 WP(MD)No.64 of 2018
36.The judgments cited above are squarely applicable to the facts in case on hand and by applying the decisions cited supra and also in view of the stand taken by the temple and the District Collector, Karur, this Court passes the following order:
1.Insofar as the first and second categories are concerned, the revenue records are in the name of the temple and if there are any encroachments the temple administration has to initiate appropriate proceedings under Section 78 of HR & CE Act and all the encroachments shall be removed within a period of six months from the date of receipt of a copy of this order.
2.Insofar as the third category is concerned, wherein settlement pattas were given in the name of the individuals, the temple has to work out its remedies by filing a suit within a period of three months from the date of receipt of the copy of the order and the same has to be disposed of by the concerned Court within a period of one year thereof. The fourth respondent as well as the Commissioner, Archives and Historical Research Department shall provide all relevant records of the lands in issue to the HR & CE Department within two months from the date of receipt of copy of this order enabling them to initiate a suit as directed.
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3.Insofar as the fourth category is concerned the revenue records have been altered to the name of the individuals during UDR, and it is now reported that the DRO, after due enquiry, has passed orders restoring pattas to the temple and therefore, the temple authorities have to initiate proceedings under Section 78 of HR & CE Act and take further action. If the parties are aggrieved, it is for them to challenge the same, in the manner known to law, by approaching appropriate forum and in any event, if any appeal is filed, the same shall be decided within a period of six months thereof.
4.Insofar as the fifth category is concerned, the revenue records have been altered into the name of the individuals after UDR and now it is reported that the RDO has conducted an enquiry and restored the pattas in the name of the temple and therefore, the temple is at liberty to restore their properties by initiating proceedings under Section 78 of HR & CE Act and take further action. If anybody is aggrieved by the order of the RDO, it is open to them to challenge the same before the competent authority, and if any such appeal is filed, the same shall be disposed by the concerned forum on merits within a period of six months from thereof.
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37.With the above observation the writ petition is disposed of. No costs. Consequently, connected miscellaneous petitions are closed.
[R.P.S.,J] [B.P.,J]
.10.2019
Index : Yes / No
Internet : Yes / No
dsk
To
1.The Commissioner of Survey and Settlements, Chepauk,Chennai – 600 005.
2.The Commissioner, Hindu Religious and Charitable Endowments Department, 119, Nungambakkam High Road, Chennai – 600 034.
3.The Additional Director General of Police, Law and Order, Dr.Radhakrishnan Road, Chennai – 600 004.
4.The District Collector, Karur, Karur District.
5.The Sub Divisional Executive Magistrate cum Revenue Divisional Officer, Karur.
6.The Superintendent of Police, Karur.
7.The Assistant Director, District Land Survey Office, Karur.
8.The Executive Officer, Arulmighu Balasubramania Swamy Temple, Vennaimalai – 639 006, Manmangalam Taluk, Karur District.
9.The Commissioner, Archives and Historical Research Department, Chennai.
http://www.judis.nic.in 42/43 WP(MD)No.64 of 2018 R.SUBBIAH.,J, and B.PUGALENDHI.,J dsk Pre delivery order made in WP(MD)No.64 of 2018 23.10.2019 http://www.judis.nic.in 43/43