Madras High Court
Mohammad Farook vs The State Of Tamil Nadu on 28 May, 2015
Author: V.Dhanapalan
Bench: V.Dhanapalan, G.Chockalingam
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 28 -05-2015
CORAM:
THE HONOURABLE MR.JUSTICE V.DHANAPALAN
AND
THE HONOURABLE MR.JUSTICE G.CHOCKALINGAM
S.T.A.Nos.11, 12, 105, 106, 107 of 1979
and S.T.A.No.34 of 1980
S.T.A.No.11 of 1979:
1. Mohammad Farook
2. Abdul Rub
3. Noorul Hath Beevi ... Appellants
Vs.
1. The State of Tamil Nadu
represented by the Collector of
Thanjavur, having its office at
Collectorate,Thanjavur.
2. Abisheka Kattalai attached to
Sri. Thiyagarajaswamy Devasthanam,
Thiruvarur, represented by its
Executive Officer ... Respondents
(R2 impleaded vide order dated 22.07.1981 in S.T.P.No.3/1981)
Special Tribunal Appeal No.11 of 1979 filed under Section 46 of Act 26 of 1963 against the order dated 27.10.1978 in C.M.A.Nos.7 and 17 of 1977 on the file of the Inam Abolition Tribunal (Subordinate Judge of Nagapattinam), against the order and decision of the Settlement Tahsildar (SE), Thanjavur in R.P.No.130/IA/NGT/71 (Remanded) dated 16.11.1976.
* * * * *
For Appellants in S.T.A.Nos.11 & 12/1979;
For R3 to R5 in S.T.A.No.105/1979 &
S.T.A.No.34/1980;
For R2 to R4 in S.T.A.No.106/1979;
For R2 & R3 in S.T.A.No.107/1979;
Mr.T.M.Hariharan
For Appellant in S.T.A.Nos.105 to 107/1979 and R2 in S.T.A.Nos.11 & 12/1979 &
S.T.A.No.34/1980
Mr.M.Venkatachalapathy, Senior Counsel for Mr.K.Jayaraman
For Appellant in S.T.A.No.34/1980
Mr.T.M.Hariharan for Mr.B.Thilak Narayanan
For R1 in STA Nos.11,12 & 106/1979 and 34/1980
and R2 in
STA Nos.105 & 107 of 1979
Mr.P.H.Arvindh Pandian, Addl. Advocate General assisted by Mr.M.Venugopal,
Special Govt. Pleader
Judgment Reserved on : 29.04.2015
Judgment Delivered on : 28.05.2015
C O M M ON J U D G M E N T
V.DHANAPALAN,J These Special Tribunal Appeals (in short, 'STAs') arise out of the common judgment and decree dated 27.10.1978 made in C.M.A.Nos.7, 17 and 18 of 1977 on the file of the Inam Abolition Tribunal (I.A.T.).
2. As all the STAs arise out of a common judgment, they are now taken up for disposal by a common judgment.
3. Of the six STAs taken up for disposal, two STAs in S.T.A.Nos.11 and 12 of 1979 are filed by two different parties; three STAs in S.T.A.Nos.105 to 107 of 1979 are filed by Abisheka Kattalai attached to Sri Thiyagarajaswami Devesathanam, Thirurvarur and S.T.A.No.34 of 1980 is filed by one D.Rajagopala Iyer.
4. Facts leading to the filing of the above appeals are thus:
4.1. Initially, in a suo motu enquiry instituted under the provisions of Act 26/63, the then Assistant Settlement Officer, Thanjavur passed orders in R.P.No.130 and 186/IA/NGT/71, dated 15.02.1972 allowing ground patta in the name of Sri Thiyagarajaswamy Devasthanam, Thiruvarur, represented by its Executive Officer and vesting the superstructure thereon by one Mohammed Farook and his brothers and sisters in respect of the schedule mentioned lands. Aggrieved by the said decision, one D.Rajagopala Iyer, son of Dharma Iyer, the claimant in C.M.A.No.369/1972 took the matter on appeal before the Inam Abolition Tribunal, Nagapattinam on the ground that no finding was given by the Assistant Settlement Officer with regard to his claim for grant of patta. Similarly, the claimants in C.M.A.No.1/1973, viz. Mohammed Farook and others moved the Inam Abolition Tribunal on appeal against the decision of the Assistant Settlement Officer on the ground that no proper notice of the proceedings before the Lower Court was given to the claimants actually interested in the properties and that the order was liable to be set aside for want of following the provisions under Rules 9(4) and (5) of Act 26/63. The Inam Abolition Tribunal allowed the appeal and passed orders in C.M.A.No.1/1973 remanding the case back to the Lower Court for fresh enquiry and disposal according to law.
4.2. The claimants in C.M.A.No.2/1973, aggrieved by the decision of the Assistant Settlement Officer in respect of T.S.No.746/1, preferred an appeal before the Inam Abolition Tribunal, Nagapattinam representing that no notice of the proceedings before the Lower Court was personally served on the claimants actually interested in the property and that the order of the Assistant Settlement Officer was liable to be set aside for want of observance of the provisions under Rules 9(4) and 9(5) of the Act. The Inam Abolition Tribunal allowed the appeal and remanded the case back to the Lower Court for fresh enquiry and disposal according to law vide order dated 15.09.1975 in C.M.A.No.2/1973.
4.3. The Settlement Tahsildar (SE), Thanjavur vide order dated 16.11.1976 made in R.P.Nos.130 and 186/IA/NGT/71, disposed of the Review Petitions with the following observation:
11. I made a careful appraisal of the different materials placed before me and heard the arguments advanced on different sides. The points for consideration are (1) Whether the lands belonged to the institution as private lands as on the notified date and (2) as to who was entitled to the vestiture of the site and the superstructure in these lands.
Point No.1:
As rightly contended by the learned counsel for the claimants in C.M.A.1/73 and 2/73, it is the established legal position as borne out by the highest judicial forums that the Iruwaram lands need not necessarily be private lands. The onus of proof that the lands belonged to the institution as private lands as on the notified date rested on the institution only. The private lands are either domain or home farm lands. These are not lands situated around the residence of the landholder and hence are not domain lands. They are also not home farm lands in the absence of direct cultivation by the institution and in the context of their happening to be built up sites. Hence the institution has to prove the private character of the lands by evidence other than proof of cultivation with reference to the criteria set out in the majority full Bench decision of the High Court, Madras in Periannan's case reported on 64 L.W. Page I (Supplement). The requirement to be satisfied according to the decision is proof of continuous course of conduct on the part of the Landholder asserting and acting on the footing that he is the absolute owner of the land with the recognition and tacit acceptance by the tenants that he has got the absolute right in the land. It has to be considered whether requirements of that legal dictum are met in the instant case by careful evaluation of the evidence let in on different sides.
The lands in T.S.Nos.644, 645 and 646 had been leased out as early as 1881 and they have continued to be in the uninterrupted enjoyment and possession of the successive occupants who have been dealing with the lands as their own age long with unfettered freedom by subjecting them to sale, mortgage, etc. The lease deed in Ex.R5 does not contain any surrender clause indicative of the intention of the Devasthanam for the resumption of the lands for its personal use. Similarly, the lease hold interests had been granted in perpetuity in respect of T.S.No.746/1 which has been dealt with by the occupants as their own land. The lands have never been in direct enjoyment of the institution in the recent or even remote past. The collection of manai pagudhi by the Devasthanam in only indicative of exercise of nominal right only and has to be equated to the collection of rent for ryoti lands put to cultivation. In the above circumstances, the evidence regarding the continuous course of conduct on the part of the institution asserting and acting on the footing that it was the absolute owner of the lands is lacking in this case. I therefore hold that there is nothing in the evidence indicative of an intent to regard the lands as retained for the personal use of the institution in order to place these lands in the special category of the private lands in which the tenant under the Estate Land Act, 1908 cannot acquire occupancy right. The High Court's ruling quoted by the learned counsel for the institution is not applicable to the case on hand as it is relevant only to show that the claim for patta for the built up sites is not sustainable under Section 11 of the Act XXVI/48 and as it can in no way be construed to shut out consideration of the character of the lands built upon us on the notified date. In fine, I cannot but come to the irresistable conclusion that the overall effect of the entire evidence is not such as to outweigh the presumption under Section 185 of the Estate Land Act, 1908. The policy of this Section being that the lands should be presumed to be ryoti until the contrary is proved. So, Point No.1 is answered accordingly.
Point No.2 :
The next point for consideration is as to who is entitled to the vestiture of the sites and the superstructures in these lands. In the absence of proof to show that the lands belonged to the institution as private lands as on the notified date, the institution is not entitled to the vestiture of the sites in the suit lands in it. The evidence let in has shown that the predecessors-in-title or the claimants in C.M.A.Nos.1/73 and 2/73 held the ryoti interests in these lands and that the claimants had the status of a ryot therefore as on the notified date. I therefore hold that they have established their claim to patta as a ryot for the site. The evidence let in has established that Rajagopala Iyer the claimant in C.M.A.No.369/72 owns the building complex at the rear of the site in T.S.No.644, 645 and 646 and has been using the passage to the south of the buildings at Door Nos.25 A to F as an appurtenant site and also path way for having access to the place of his business. He will therefore be entitled to the vestiture of the superstructures located at the rear of the sites in question. By reason of the fact that the area covered by the passage on an extent of about 200 square feet serving the path way at the southern portion of the sites has also been included in the total area let on pagudhi to Dharma Iyer and also because of use by Rajagopala Iyer on the site as an appurtenance on pathway, this portion shall vest as on appurtenance both in Rajagopala Iyer, the claimant in C.M.A.No.369/72 and also the claimants in C.M.A.1/73. The remaining site on an extent of about 88.16 sq. feet in T.S.No.644,645 and 646 shall vest in the claimants in C.M.A.1/73. The superstructures at Door Nos.25A to F and also that over the passage to the south of these buildings shall vest in the claimants in C.M.A.No.1/73. Both the superstructure and the site in T.S.No.746/1 shall vest in the claimants in C.M.A.No.2/73. I therefore decide and direct under Sections 15(4) of Act 26/63 that the sites and the superstructures in the suit lands shall vest in the persons as shown in the schedule below subject to the levy of appropriate ground rent from the fasli year in which the inam estate was notified. 4.4. Aggrieved by the said order of the Settlement Tahsildar, D.Rajagopala Iyer filed C.M.A.No.7 of 1977 and Abisheka Kattalai attached to Sri Thiyagarajaswami Devasthanam, Tiruvarur filed C.M.A.Nos.17 and 18 of 1977 before the Inam Abolition Tribunal, Nagapattinam, wherein, by a common judgment dated 27.10.1978, the Appeals were disposed of as under:
11. C.M.A.No.7/1977 : In the result, the buildings which situate in an extent of 9279 sq. ft. in S.No.644 and part of 645 and 646 shall vest with the appellant viz. Rajagopala Iyer. The site shall vest with the Government. The buildings which situate in an extent of 200 sq. ft. in S.No.646 part shall vest with Mohamed Farook, Abdul Rub and Noorul Hath Beevi. The site shall vest with the Government. The order of the Settlement Tashildar, will stand modified accordingly. Otherwise, the appeal will stand dismissed. The parties will bear their own costs. ...
12. C.M.A.No.17/1977 : In the result, the buildings which situate in an extent of 9279 sq. ft. in S.No.644 and part of 645 and 646 shall vest with Rajagopala Iyer. The site shall vest with the Government. The buildings which situate in an extent of 200 sq. ft. in S.No.646 part shall vest with Mohammed Farook Abdul Rub and Noorul Ruth Beevi. The site shall vest with the Government. The buildings which situate in an extent of 1337 sq. ft. in S.No.645 part and 646 part shall vest with Mohammed Farook, Abdul Rub and Noorul Hutha Beevi. The site shall vest with the government. The order of Settlement Tahsildar will stand modified accordingly. Otherwise, the appeal will stand dismissed. The parties will bear their own costs. ...
13. C.M.A.No.18/77 : In the result, the building which situate in an extent of 454 sq. ft. in S.No.746/1 shall vest with Kathija Beevi and Minor Mohammed Shabi represented by his guardian. The site shall vest with the Government. The order of the Settlement Tahsildar will stand modified accordingly. Otherwise, the appeal will stand dismissed. The parties will bear their own costs. ... 4.5. Challenging the said judgment, S.T.A.Nos.11, 12, 105 to 107 of 1979 and S.T.A.No.34 of 1980 and S.A.No.1997 of 1978 were filed before this Court and a Division Bench of this Court, by a common judgment dated 05.01.1987 held as under:
"... In the circumstances, therefore, we are unable to agree with the learned counsel for the Kattalai that the lands are private lands of the Kattalai in respect of which they are entitled to a ryotwari patta. That leaves us to the question as to whether the appellants in the other appeals are entitled to a patta under Section 15 of the Act and if so in respect of what portions. The lands being not the private lands belonging to the Abisheka Kattalai or the Inamdar and the case of the persons in possession being not that they are ryoti lands in respect of which they are entitled to a ryotwari patta under Sections 10 and 11 of the Act, they are lands which vest in the Government under Section 3(h) of the Act. Since there are buildings in Items 1, 3 and 4 and a canopy in Item 2, the question will have to be considered with reference to the rights of such owners of the superstructure. Under Section 15(4) of the Act, every building other than a building referred to in sub-sections (1), (2) and (3) shall, with effect on and from the notified date, vest in the portion who owned it immediately before that date subject to the payment of levy of such appropriate assessment provided therein. Therefore, even after the notification, the appellants in these cases continue to own the superstructure in their own right. A Division Bench of this Court, in the decision reported in Silamani Sri Chidambara Vinayagaraswami Devasthanam, Devakottai, through its Trustees S.T.M.V.R. Mirugappa Chettiar and others v. Duraiwami Nadar and others (1971 II MLJ 278), considering a similar provision as that contained in Section 15 under the earlier Act (Madras Act 26 of 1948) held that unless the person owns the site in which the building is put up, he will not be entitled to a patta under that provision but the site will have to be dealt with as land vested in the Government for appropriate relief under Section 19 of that Act corresponding to Sections 16 and 17 of the Tamil Nadu Act 26 of 1963. In the circumstances, therefore, we have only to make a declaration that the buildings in item 1 is vested in the appellant in S.T.A.No.34 of 1980 and the buildings in Items 2 and 3 are vested in the appellants in S.T.A.No.11 of 1979 and the building in Item 4 is vested in the appellants in S.T.A.No.12 of 1979. It should also be made clear that item 2 shall be kept as a common passage for Items 1 and 3 though a canopy constructed by the appellants in S.T.A.No.11 of 1979 is existing there. The Government shall deal with the question of assignment of the lands. It is represented by the learned counsel for the appellant in S.T.A.No.34 of 1980 that subsequent to the decision of the Tribunal, the Government, in fact, have assigned the land on which the superstructure stands in Item 1 in favour of that appellant. We have no doubt that similar orders will be issued in respect of Items 3 and 4 also in favour of the appellants in S.T.A.Nos.11 of 1979 and 12 of 1979, respectively as they would normally be entitled to such an assignment, they being the owners of the superstructure built long before the notification and taking over under valid leases of the land from the inamdar. This declaration should suffice the disposal of the Special Tribunal Appeals. Accordingly, S.T.A.Nos.105 of 1979, 106 of 1979 and 107 of 1979 are dismissed. There will be an order of declaration as stated above in S.T.A.Nos.11 of 1979, 12 of 1979, 34 of 1980. However, the will be no order as to costs. ..."
4.6. Pursuant to the Division Bench decision of this Court, the matter was taken to Supreme Court in Civil Appeal Nos.1382 to 1390 of 1982 and Civil Appeal Nos.1391/1982, 1392/1982, 1379 to 1381/1982 and 1720-27/1980 and the Hon'ble Supreme Court, by an order dated 08.08.1995 remanded the matter to High Court. Hence, these appeals are yet again before this Court.
5. Mr.T.M.Hariharan, learned counsel appearing for the appellants in S.T.A.Nos.11 & 12 of 1979 and S.T.A.No.34 of 1980, would contend that the Inam Abolition Tribunal erred in law in entertaining the appeals filed by the tenant and the Inamdar Kattalai. He would further contend that the Tribunal failed to see that at origin, the lands in question were ryoti lands and were leased for the purpose of agriculture by the Inamdar to the predecessors of the appellants and the buildings were put up generations ago with the consent and acquiescence of the Inamdar. It is also his contention that the Tribunal failed to see that the ryoti character of the lands in question cannot be doubted or disputed by reason of Ex.R5-Lease Deed of 1881 between the Inamdars and the predecessors of the appellants. Further, he would contend that the learned Judge erred in proceeding on the footing that the lands were only building sites on the notified date and the ryots would not be entitled to patta on that score. In support of his case, learned counsel has relied on the following decisions:
(i) K.Gopalaswami Ayyangar v. Sri Athmanathaswami Devasthanam (Vol 69 L.W. 1009) We shall discuss the points seriatim below:
Point No.1: There is absolutely no doubt in the light of the evidence in the case, that the suit lands are ryoti lands situated in an estate, and are not private lands either ab initio or by conversion from ryoti, or tank-beds, bunds, threshing floors, cattle stands, village sites or service tenures, exempted from the definition of ryoti lands under S.3(16) of the Estates Land Act. The lower Court itself has rightly held, in paragraph 10 of its judgment, that there can be no doubt that the suit lands are situated in an estate as defined in Act 1 of 1908, as amended by Act XVIII of 1936, and that being cultivable lands, they must be deemed to be ryoti in character until the contrary was proved by the plaintiff. It went on to say that, after the Amending Act of 1936, the mere fact that the temple owned both the warama and that the lands were iruwaram lands, would not prevent the appellant from getting occupancy right, if he was properly let into possession by the person entitled to do so. It also rejected the plaintiff's case that the suit lands were home-farm lands of the temple, as there was no proof of that, or of any cultivation by the temple itself, prior to 1st July 1908 or 1st November 1933, for a continuous period of 12 years. It held also that the temple had not acquired the kudivaram interest in the lands prior to 1st November 1933 for valuable consideration. It referred to the Full Bench judgment of this Court Periannan v. A.S.Amman Koil (1) and the observation of the learned Judges therein that a land can be deemed to be private land only on proof of the facts mentioned in S.3(10) of the Estates Land Act, and that mere proof that the landlord was the owner of both the warams was not sufficient to establish the case that the land was private land. It went on to say that the law recognised only two categories of land in an estate viz., private land and ryoti land, and that the contention of the plaintiff that the suit land must be deemed to be part of old waste land, and therefore, private pannai land of the temple, could not be accepted. The learned counsel for the respondent-temple was unable to attack that finding, which is, in our opinion, the only proper finding in the light of the law and the ruling as they stand."
(ii) Sri Athmanathaswami Devasthanam v. K.Gopalaswami Ayyangar (1964 (1) MLJ 42 (SC)) Waste lands covered with shrubs, jungle and the like cannot be held to be uncultivable merely on that account or on account of their being not cultivated for a long time. Land which can. be brought under cultivation is cultivable land unless some provision of -law provides for holding it otherwise in certain circumstances. This is not disputed for the appellant, but what is urged on its behalf, is that land will not be cultivable land if it can be brought under cultivation only after incurring great expenditure. ...
The land in suit was sought to be brought under cultivation in connection with the Grow More Food Campaign and this must have been as the land in suit could be brought under cultivation without any undue expenditure of money and labour. The expenditure on reclaiming the land might have been more than the usual expenses in view of the fact that most of the labour had to be imported from outside and as tractors had to be used on account of the large size of the land to be reclaimed within as short a time as possible. It is not even shown that the reclamation of land has not been profitable financially. We are therefore of the opinion that the Courts below have rightly held the land in suit to be cultivable land. ...
Ryot is defined in S.3 (15) of the Act and means a person who holds for the purpose of agriculture ryoti land in an estate on condition of paying to the landholder the rent which is legally due upon it. The contention is that the respondent alleged that no rent was payable and that in view of this assertion the respondent would not be a ryot as he holds land without any condition of paying rent to the landholder. The contention is not factually correct. The respondent made no such defi- nite statement in either the written statement or in his evidence which would indicate that he completely disowned his liability to pay rent. We have been referred to certain statements in the written statement. They only show that there was some dispute about the rate of rent to be paid and not about the liability to rent. In paragraph 4 of the written statement it was said "at that time the actual cash rent which was to be paid was not fixed but the defendant orally requested and was promised remission of rent as long as Government remitted water charges in this area on confessional rates of rent for some years thereafter, in view of the heavy reclamation expenses.
... We are of opinion that the mere fact that s. 6 of the Act confers such a right on a person admitted to a ryoti land, does not make the letting of the land to such a person equi- valent to the grant of a lease to him for a term exceeding 5 years, and as such requiring the previous sanction of the Board. If it be held otherwise, the result would be that either the Pandarasannidhi will have to obtain the sanction of the Board for every proposed letting of land of whatever area, or not to exercise his ordinary duties of letting the as a trustee. The provisions of s. 76 could not have been intended to put such a restriction on the exercise of his ordinary rights by the Pandarasannidhi. It is too much to expect that the combined effect of s. 76 of the Endowments Act and s. 6 of the Estates Land Act is that there be no more letting of land belonging to a temple by the Pandarasannidhi. We hold that the letting of the land to the respondent did not amount to the leasing of the land to him for a term exceeding 5 years and that therefore required no sanction of the Board and that the letting of the land to the respondent is valid and good in law.
Suits by a landholder to recover arrears of rent and to eject a ryot are triable by a Collector, vide entries at serial Nos. 3 and 11, Part A of the Schedule to the Act. Such suits cannot be taken cognizance of by a Civil Court in view of second paragraph of s. 189 (1). The High Court is right in holding that the Revenue Court alone has the jurisdiction over the suit and therefore in ordering the return of the plaint for presentation to the proper court. The last point urged is that when the Civil Court had no jurisdiction over the suit, the High Court could not have dealt with the cross-objection filed by the appellant with respect to the adjustment of certain amount paid by the respondent. This contention is correct. When the Court had no jurisdiction over the-subject matter of the suit it can- not decide any question on merits. It can simply decide on the question of jurisdiction and coming to the conclusion that it had no jurisdiction over the matter had to return the plaint. ...
(iii) R.Ramanathan Chettiar v. M.C.Manickam Pillai and 45 others (1992 (2) L.W. 245) 3. Now we proceed to examine the merits of the case. We find that the Tribunal has kept in the forefront, the tests to be applied to find out whether the lands are private lands. The tests recapitulated by the Tribunal run as follows: (1) If the land is known to be ryoti at its inception the only mode by which it could be converted into private land is by proof of continuous cultivation for a period of 12 years prior to the commencement of the Act. (ii) Even if the nature of the land is not known continuous cultivation for the required period of 12 years before the commencement of the Act would conclusively establish that the land is private land. (iii) If there is no proof of cultivation for a continuous period of 12 years before the commencement of the Act, the land may be proved to be private land by other methods provided the land was not shown to be once ryoti. (iv) Cultivation of the lands or leasing of the lands under short-term leases may be one mode of proof. (v) An intention to cultivate or resume for cultivation is also a test to decide that the land is private land and such intention may be established by any other means, not necessarily by cultivation and by cultivation alone. (vi) The essence of private land is continuous course of conduct on the part of the landholder asserting and setting on the footing that he is the absolute owner thereof and recognition and acceptance by the tenants that the landholder has absolute right in the land. (vii) Mere proof that the landholder is the owner of both the waram is not sufficient to prove that the land is private land. The petitioner is a land-holder and when he claims that he is entitled to ryotwari patta, he must prove that the land is his private land. The Tribunal has discussed in our view threadbare all the relevant materials exposed in the case and it has come to the ultimate conclusion that there is no convincing or satisfactory evidence to show that the petitioner/land-holder had ever cultivated the lands personally or through tenants nor is there any evidence to show that at any time he had the ryot's interest by purchase or otherwise in the lands in dispute. Though Mr. K. Yamunan, learned counsel, for petitioner, drew our attention to the discussion in a decision in O.S. No. 511 of 1966 on the file of the District Munsif's Court, Sivaganga, to say that the claim of his client must be accepted, we do not think we should persuade ourselves to ignore the other pieces of evidence, which have spoken against the claim of the petitioner. While this Court exercises powers under Article 226 of the Constitution of India, it is not supposed to exercise an appellate jurisdiction, much less a second appellate one. The factual adjudication having been done by the Tribunal and we having not found any infirmity in the reasonings of the Tribunal, we have not found a warrant to interfere in writ appeal. Accordingly the writ appeal fails and is dismissed No Costs.
(iv) Sri-la Sri Subramania Desika Gnanasambanda Pandarasannidi v. State of Madras [(1965) 3 SCR 17] On August 4, 1956, the Governor of Madras issued a notification in exercise of the powers conferred on him by sub-section (4) of Section 64 of the Madras Hindu Religious and Charitable Endowments Act, 1951 (Madras Act 19 of 1951) directing that Notification 638, dated the 25th May, 1937, relating to Sri Thiyagarajaswami Temple, Tiruvarur, Nagapattanam Taluk, Tanjor District, be continued for a period of five years from September 30, 1956. The earlier notification which was thus continued had itself been issued by the respondent State of Madras in exercise of the powers conferred on it by clause (b) of sub-section (5) of Section 65-A of the Hindu Religious Endowments Act, 1926 (Madras Act 2 of 1927), declaring that the temple in question and the specific endowments attached thereto shall be subject to the provisions of Chapter VI-A of the said Act. In other words, the earlier notification which brought the temple of Sri Thiyagarajaswami at Tiruvarur under the purview of the earlier Madras Act has been extended by the notification issued on 4th August, 1956, for a further period of five years. By a writ petition filed by the appellant, Sri-la-Sri Subramania Desika Gnana Sambanda Pandarasannadhi, Hereditary Trustee of the Rajan Kattalai of the temple in question, in the High Court of Madras the validity of this latter notification was challenged. The High Court has rejected the pleas raised by the appellant in support of his case that the impugned notification is invalid, and has dismissed the writ petition filed by him. It is against this order that the appellant has come to this Court with a certificate granted by the High Court. The controversy between the parties as it has been presented before us in appeal, really lies within a very narrow compass, but in order to appreciate the points raised for our decision, it is necessary to set out very briefly the background of the present litigation.
9. The Pandarasannadhi of the Dharmapuram Mutt who was then the hereditary Trustee of the Rajan Kattalai instituted CS No. 20 of 1938 in the Madras High Court for a declaration that the said notification was illegal and for setting aside the orders issued by the Board in pursuance of the said notification. It appears that the suit did not proceed to a trial, because the parties entered into a compromise. In substance, as a result of the compromise, the notification was maintained, but the possession of the Kattalai properties was restored to the Trustee who was to manage the same by a staff under his control and had to keep accounts. Certain other provisions were made to safeguard the efficient management of the said trust, and the overall control and supervision of the Executive Officer was maintained. One of the clauses of the compromise, clause (k) expressly reserved to the Board liberty to re-define the powers and duties as specified above in case the trustee commits any wilful breach of the above terms and conditions or is guilty of wilful neglect of the duties specified above, provided that the Board shall not do so except on notice to the trustee and after giving reasonable opportunity to him to be heard in his defence. This compromise decree was passed on August 1, 1940, and since then, the administration of the Kattalai in question has been conducted in accordance with the terms of this decree.
17. That takes us to the consideration of the question as to whether the two reasons given by the High Court in support of this decision are valid. The first reason, as we have already indicated, is that the High Court thought that the plea in question had not been raised by the appellant in his writ petition. This reason is no doubt, technically right in the sense that this plea was not mentioned in the first affidavit filed by the appellant in support of his petition; but in the affidavit-in-rejoinder filed by the appellant, this plea has been expressly taken. This is not disputed by Mr Chetty, and so, when the matter was argued before the High Court, the respondents had full notice of the fact that one of the grounds on which the appellant challenged the validity of the impugned Order was that he had not been given a chance to show cause why the said notification should not be issued. We are, therefore, satisfied that the High Court was in error in assuming that the ground in question had not been taken at any stage by the appellant before the matter was argued before the High Court.
18. The second reason given by the High Court appears to be plainly erroneous. In assuming that the impugned Order would come to an end on September 30, 1961, the High Court appears to have ignored the fact that before it delivered its judgment, a new Act had come into force (Madras Act 22 of 1959). This Act came into operation on January I, 1960. Section 72(7) of this Act provides that any notification published under sub-section(1) or sub-section(3) of Section 64 of Act 19of 1951 before the commencement of this Act shall be as valid as if such notification had been published under this Act. This provision has again been subsequently amended by Act 40 of 1961, and the amended provision is retrospectively brought into operation from January 1, 1960. We do not propose to consider in this appeal the effect of these amendments, because it is enough for our purpose to state that as a result of the subsequent Act which had already come into force on the date when the High Court delivered its judgment, it is obvious that the impugned notification would not automatically come to an end on September 30, 1961. This position is not disputed by Mr Chetty and appears to be plain; so that the main reason which weighed with the High Court in not issuing a writ in favour of the appellant that the impugned notification would remain in operation for a very short period after it delivered its judgment, is found to be erroneous; and the impugned notification would continue in operation without the appellant getting an opportunity to show cause why it should not continue to be in operation. We are, therefore, satisfied that the High Court should have granted the prayer made by the appellant for the issue of an appropriate writ cancelling the impugned notification. Though the impugned notification has been issued in 1956 for five years, its life gets statutorily extended, and the only way in which the appellant would be able to show cause why the said notification should not be extended in respect of his Kattalai is to quash the said notification.
(v) Sri-la Sri Subramania Desika Gnanasambanda Pandarasannidi v. State of Madras [1994 (1) L.W. 245] 4. Ordinarily speaking a Kattalai is a special or specific endowment for certain specific services or religious charity to be performed. The property endowed for the performance of the Kattalai vests in the deity itself. The position of a Kattalai trustee therefore would be nothing more than that of a manager of a Hindu religious endowment. But Kattalais which are attached to Sri Thiyagarajaswami temple at Tiruvaur are, however, of a slightly different variety. In the words of Muthuswamy Aiyer, J. in Vythilinga Pandara Sannadhi v. Somasundara Mudaliar I.L.R. 17 Mad. 199, relating to this very temple, it is a distinct endowment under a separate trustee to which specific items of expenditure are assigned as legitimate charges to be paid therefrom. The eminent Judge was of the view that the Kattalais merely formed a classification of the sources of income rather than separate endowments designed for specific services.
5. Whatever may be the origin and nature of these Kattalais, there can be no doubt that all the Kattalais are integrally connected with the worship in the temple and a coordination of the duties by the various trustee would be absolutely necessary for the maintenance of proper worship in the temple. In course of time however emphasis appears to have been laid on the individuality of the Kattalais. This led to unseemly fights between trustees of the various Kattalais. There was gross mismanagement of the affairs of the temple and some scheme for the co-ordination of the various Kattalais arid for some control over the various Kattalais insofar as it may ensure the harmonious, working of the Kattalais, wherever they have to co-operate, was felt necessary. As early as 1910 a suit was filed under Section 92 of the Civil Procedure Code for settlement of a scheme to manage the affairs of the temple in the Sub Court at Thanjavur. A scheme was settled and there was an appeal to this Court from that decree in Gnanasambanda v. Vaithilinga Mudaliar 18 L.W. 247. There the Division Bench pointed out that the history of the temple from 1870 to 1882 that the Kattalais were independent institutions and that the trustee of one such Kattalai was not subordinate to another namely, the ulthurai trustee. In that view the scheme of the lower court was modified in such a manner as would have the effect of maintaining the individuality of the several Kattalais, without interfering with the essential character of the independent trusts while at the same time securing a machinery for the proper management of the temples.
26. On the ratio laid down in the decisions referred to above, the enactment of Section 75-A cannot stand the test of Judicial scrutiny. In the present case, by introducing Section 75-A the Legislature has simply directed the Commissioner of Hindu Religious and Charitable Endowments and Executive Officer of Sri Thiyagarajaswami Temple to disobey or disregard the decision of the highest court of the land in S.D.G. Pandara Sannadhi v. State of Madras (1965) 2 M.L.J. 167. The obvious purpose of Section 75-A extending the impugned notification is to nullify the effect of this decision of the Supreme Court. The object in the explanatory note Ex. B-33 makes no secret of the said fact and in fact the written statements filed on behalf of the Department and the Government aver that the courts scheme was not conducive to the proper administration of the Kattalais or the supervision thereof. The steps were taken to notify. The temple and the various Kattalais attached thereto. After the judgment of the Supreme Court in (1965) 2 M.L.J. 167, the Government felt that the existing state of affairs cannot be allowed to continue and so in the interest of proper administration of all the religious institutions including that of Sri Thiyagarajaswami temple it was imperative to continue the earlier notifications beyond 15.7.1966. No doubt the Legislatures under the Constitution have, within the prescribed limits, power to make laws prospectively as well as retrospectively. By exercise of those powers a legislature can remove the basis of the decision rendered by a competent court thereby rendering the decision ineffective. But no Legislature in the country has power to set aside an individual decision inter-parties and affect their rights and liabilities alone. In the words of their Lordships of the Supreme Court in Cauvery Water Disputes Tribunal case, such an act on the part of the Legislature amounts to exercising the Judicial power of the State and to functioning as an appellate Court or Tribunal. Since notification in G.O. No. 3069, dated 4.8.1956 is simply declared to be valid under Section 75-A this section makes a direct inroad into the judicial powers of the State, and so it has necessarily to be struck down so far as the notification is concerned.
27. Section 75-B of the Act enables the Commissioner to continue any notification which was validated by virtue of Section 75-A beyond 16th July, 1966 after calling upon the trustee concerned to show cause why it should not be so continued. Notification No. 638, dated 25.5.1937 is statutorily extended till 16.7.1965 and for a period of one year later in view of Section 75-A of the Act read with G.O. No. 3069 (Revenue), dated 13.7.1956. Notification No. 2347 (Revenue), dated 13.7.1966 was issued declaring that the Notification No. 638 would continue beyond 15.7.1966. We have already seen that there could be no valid extension of the notification under Section 75-A. Learned Counsel for the appellants next contends that where a notification is quashed its existence ceases. There can be no order continuing that which does not exist. In other words, there can be no law which seeks to extend the provisions of a rule which is non-est. By the time G.O. No. 2347 (Revenue), dated 13.7.1966 was published, Notification No. 638, dated 25.5.1937, was no longer in existence by virtue of the decision of the Supreme Court. So there is substance in the claim of learned Counsel for the appellants that the G.O. No. 2347 passed under Section 75-B of the Act is not valid.
28. Thiru M.N. Padmanabhan, learned Counsel for the respondents submitted that Sri Thiyagarajaswami Temple has no property of its own. For its daily pooja expenses it depends on the various kattalais attached to it. The bickerings and quarrels among the trustee or Kattalaidars even in small matters made the temple to suffer for its requirements. This is sufficient to show that even for daily pooja co-ordination among various kattalaidars is necessary. And so the trial court was justified in dismissing the suit for the reason that there is imperative necessity for the central agency for co-ordination of the functions of the various kattalais. The kattalais cannot serve the purpose without the temple. The properties of the temple are distributed among the kattalais which are under separate trustees and the maintenance of the temple, its services and festivals depend upon the kattalais being administered in proper co-ordination. The Executive Officer appointed under the notification has been able to regulate the maintenance of the services in the temple by the various kattalais and to administer the temple smoothly all these years. And a Central agency under the control of H.R. and C.E. Board is essential to maintain the services of various kattalais. Evidently this cannot be a ground for validating the impugned notifications. In fact, learned Subordinate Judge himself has found that the Executive Officer was not acting in the best interests of the kattalai. The Department can always regulate the services of the temple by ensuring that the various kattalaidars make their contributions properly. And in view of our decision that the notifications are not valid, it is not necessary to go into the merits of the case.
6. Mr.M.Venkatachalapathy, learned Senior Counsel appearing for the appellants in S.T.A.Nos.105 to 107 of 1979 would contend that the Court below failed to note that the Temple being the grantee of the Inam with Iruvaram rights and it being admitted that the Temple has not alienated the suit properties at any time, the suit property is the private land of the Temple and in the circumstances, the appellant Temple was entitled for grant of patta for the suit land. It is his further contention that the appellant Temple has only leased out the suit land and the lease deed also provided that on the expiry of the lease, the tenant should surrender back possession of the land to the Temple.
7. On the other hand, Mr.P.H.Arvindh Pandian, learned Additional Advocate General appearing for the respondents would submit that the Inam Abolition Tribunal has rightly decided the matter in view of Section 13 of the Act that a dual estate is permissible.
8. We have given careful consideration to the submissions of the learned counsel on either side and perused the entire material available on record.
9. The above appeals are taken up for consideration in view of the order dated 08.08.1995 passed in Civil Appeal Nos.1382 to 1390 of 1982 and Civil Appeal Nos.1391/1982, 1392/1982, 1379 to 1381/1982 and 1720-27/1980, (K.S.Thiruganasambandam Chettiar (dead) by LRs. etc. Vs. The Settlement Tahsildar, Coimbatore and others reported in 1996 (1) LW 19 (SC)), wherein, the Hon'ble Supreme Court, while setting aside the impugned judgment and orders of the High Court, remanded the appeals to the High Court to examine as to whether anything further survives in these matters and if so, to pronounce the same. The Supreme Court, after going through the legal provisions of the Act, on consideration of the question under Section 13 of the Madras Minor Inams (Abolition and Conversion into Ryotwari) Act, 1963, came to the following conclusion :
In exercise of the powers conferred on Special Appellate Tribunal under Section 30 of the Madras Minor Inams (Abolition and Conversion into Ryotwari) Act, 1963 its nominated members, two Hon'ble Judges of the Madras High Court, non-suited the Appellants herein in two batch of cases on the ground that their conflicting claims to the site(s) and to building(s) standing thereon were unsustainable as both had to belong to one and the same person and in the absence thereof, on abolition of inams must vest in the State in terms of Section 3(b) of the Act. Primarily, it is this view which is under challenge in these appeals, which are of a bunch, preferred by persons, some of whom claiming to be site-owners and others claiming to be owners of the buildings erected thereon. The claim of the site-owners is that not only do they own the sites, but in some cases they own the buildings too. The claim of the building-owners is that since the building includes the site in terms of Section 13, they become owners of both the estates i.e., the site and the building. Before the High Court (Special Appellate Tribunal) disputes arose about title as also of law and fact as to which estate was owned by whom. The Special Appellate Tribunal on the basis of the findings recorded by the Inams Tribunal, that none of the contesting parties owned both the site as also the building took the view that Section 13 was inapplicable and the land had to vest in the Government under Section 3(b).
2. To demolish that finding of the Special Appellate Tribunal, as urged by the Appellant, it would be appropriate to reproduce here Section 13 itself.
"13(1).Every building situated within the limits of an inam land shall, with effect and from the appointed day, vest in the person who owned it immediately before that day but the Government shall be entitled for each fasli year commencing with the fasli year in which the appointed day falls to levy the appropriate assessment thereon. (2) In this section, 'building' includes the site on which it stands and any adjacent premises occupied as an appurtenance thereto."
3. It is plain from a bare reading of the Section and its setting that it is a provision occurring in Chapter III as one of the tools to confer ryotwari pattas to persons entitled. The Preamble of the Act makes it clear, as also its name, that the Act enables the State to accomplish acquisition of the rights of inamdars in minor inams in the State of Tamil Nadu and the introduction of ryotwari settlements in such inam lands. It nowhere envisaged that the rights of a person who held a ryotwari patta in his favour or was otherwise entitled to a ryotwari patta, were meant to be abolished under the Act. Rather on abolition of inams claims of persons entitled to the grant of ryotwari pattas had to be examined and settled. Under the provision under scrutiny too, it is patent that some ryotwari pattas had to be settled where buildings stood erected on inam lands immediately before the appointed day and the government in that event was entitled to an appropriate assessment as envisaged therein. Designedly, the building so erected was to include the site on which it stood and any adjacent premises occupied as an appurtenance thereto. Since the scheme of the Act patently was in establishment and preservation of ryotwari rights, it cannot be said that by virtue of Section 13, the ryotwari rights of the site-owners stood abolished or those rights got merged in the building and hence vesting in the building owner. Rather, a dual estate is conceived of in the scheme of Section 13, that is to say, the building may belong to one and the site to another. It is, therefore, not necessary that both the site and the building should belong to one and the same person so as to derive the benefit of Section 13 with effect from the appointed day. A dual estate is not repugnant to the provision, which evidently is of a very special nature, when ryotwari patta may not be admissible for a building per se, but may be admissible for the site standing thereon. Yet, this is a special provision which confers rights on the building-owners also, though in the strict sense that right may not be a ryotwari right conferrable in the form of a patta. The provision, self-contained as it is, allow, the Government levying an appropriate assessment thereon for each fasli year commencing with the fasli year in which the appointed day fell, which assessment obviously would be based on the assessment due on the site as if unbuilt, and not on the price of the building. It would, thus, seem to us that the Special Appellate Tribunal went astray in giving an interpretation to the provision which neither furthers the objectives sought to be achieved by the Legislature nor in the fitness of the legislative design, which was drawn up to achieve a purpose. We thus have no hesitation in allowing these appeals and upsetting the impugned orders of the Special Appellate Tribunal. After doing so, it would necessitate us to remit the matter back, for, we would not advisedly go into any question of fact or law which had been left by the Special Appellate Tribunal undecided. The appeal before the Special Appellate Tribunal gets revived in order to be disposed of in accordance with law and facts as arising and raised in the respective appeals. No costs.
10. The Supreme Court has held that since the scheme of the Act was patently in establishment and preservation of ryotwari rights, it cannot be said that by virtue of Section 13, the ryotwari rights of the site-owners stood abolished or those rights got merged in the building and hence vesting in the building owner. Rather a dual estate is conceived of in the scheme of Section 13, that is to say, the building may belong to one and the site to another. Therefore, the Supreme Court felt that it is not necessary both the site and the building should belong to one and the same person so as to derive the benefit of Section 13 with effect from the appointed day. It is made clear in the judgment that a dual estate is not repugnant to the provision, which evidently is of a very special nature, when ryotwari patta may not be admissible for a building per se, but may be admissible for the site standing thereon. Yet another important aspect noticed by the Supreme Court is that the provision self-contained as it is, allows the Government levying an appropriate assessment thereon for each fasli year commencing with the fasli year in which the appointed day fell, which assessment obviously would be based on the assessment due on the site as if unbuilt, and not on the price of the building.
11. In the light of the above, the issue in these appeals which needs to be looked into is whether the Inam Abolition Tribunal is right in coming to the conclusion as to the claim of the appellants for grant of patta. Now, to decide these appeals, two questions need to be answered:
(i) Whether the Inam Abolition Tribunal has decided the appeals in view of Section 13 of the Act?
(ii) Whether the claimants applied for ryotwari patta in time and were they in possession of the site and building?
12. As regards the first question, it is seen that the Inam Abolition Tribunal, while deciding the appeals in C.M.A.Nos.7, 17 and 18 of 1977, taking note of the provisions under Section 13, invariably held that the building shall vest with the claimants and that the site shall vest with the Government. Thereby, neither the ryotwari rights of the site-owners stood abolished nor the rights of the site-owners stood abolished or got merged in the building. It is also pertinent to note that when these appeals were decided before a Division Bench of this Court, considering a provision contained in Section 15 under the earlier Act (Madras Act 26 of 1948), it was held therein that unless the person owns the site in which the building is put up, he will not be entitled to a patta under that provision, but the site will have to be dealt with as land vested in the Government for appropriate relief under Section 19 of that Act corresponding to Sections 16 and 17 of the Tamil Nadu Act 26 of 1963.
13. Coming to the second question as regards the claim of patta by the appellants within the period of limitation, it is seen that though the claimants have been in possession of the lands for a long time, they have not sought for ryotwari patta within the period of limitation.
14. Therefore, the appeals do not deserve any merit consideration and the same are dismissed, confirming the order of the Inam Abolition Tribunal. No costs.
Index : Yes/No (V.D.P.,J.) (G.C.,J.) Internet : Yes/No 28-05-2015 aeb V.DHANAPALAN,J and G.CHOCKALINGAM,J aeb/ Pre-delivery Judgment in S.T.A.No.11 of 1979 batch Dated: 28-05-2015