Madras High Court
S.Rm.M.Ct.M.Thirupani Trust vs The Principal Secretary And on 24 April, 2012
Author: K.Chandru
Bench: K.Chandru
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 24.04.2012 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.No.8754 of 2009 and M.P.Nos.2 and 3 of 2009 and 1 and 2 of 2010 S.Rm.M.Ct.M.Thirupani Trust, represented by its Trustee, M.Ct.P.Chidambaram No.202 (Old No.742) Anna Salai, Chennai-600 002. ...Petitioner Vs. 1.The Principal Secretary and Commissioner of Land Administration, Chepauk, Madras-5. 2.The Settlement Officer, Office of the Land Survey and Land Settlement, Special Commissioner and Director Chepauk, Chennai-600 005. 3.The Assistant Settlement Officer, Tiruvannamalai. 4.Padmavathy Ammal Charitable Trust, represented by its Managing Trustee, 857,Income Tax First Street, Adambakkam, Chennai-600 088. 5.Srilasri Srimath Adhinakarthar Kunrakudi Thiruvannamalai Madam, represented by its Manager, 4/47,State Bank colony, Chrompepet, Chennai-600 044. ...Respondents This writ petition is preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorari to call for the records of the first respondent herein pertaining to the order dated 17.3.2009 passed in Rc.K1/24723/2008 confirming the order of the second respondent dated 23.7.2008 passed in RP No.1/2003 which confirmed the order of the third respondent in S.R.No.148/88 dated 29.7.1991 and quash the same. For Petitioner : Mr.C.Ramakrishnan for Mr.M.S.Subramanian For Respondents : Mr.V.Subbiah, Spl.G.P. For RR1 to 3 Mr.G.Ethirajulu for R-4 Mr.K.Chandrasekaran for R-5 O R D E R
The writ petition is filed by a Trust known as S.Rm.M.Ct.M.Thirupani Trust represented by its Trustee M.Ct.P.Chidambaram. The writ petition challenges an order passed by the first respondent viz., Principal Secretary and Commissioner of Land Administration, dated 17.03.2009, confirming the order of the second respondent viz., Settlement Officer, Chennai dated 23.07.2008 made in R.P.No.1 of 2003, which in turn confirmed the order of the third respondent in S.R.No.148 of 1988 dated 29.07.1991.
2. In the writ petition, notice of motion was ordered on 30.04.2009. Pending notice, an interim stay was granted for eight weeks. Subsequently, it was extended for more than 20 times on different dates by different learned Judges.
3. The following table will show the date on which interim order was granted, duration of the time extended and the learned Judges who had granted extension:
Sl.No. Date of interim order Period Name of the Judge 1 30.04.2009 8 weeks KSAJ 2 24.06.2009 Till 20.07.2009 KVJ 3 22.07.2009 Till 28.07.2009 KVJ 4 28.07.2009 2 weeks KVJ 5 12.08.2009 1 week SNJ 6 20.08.2009 2 weeks SNJ 7 07.09.2009 3 weeks SNJ 8 29.09.2009
4 weeks SNJ 9 27.10.2009 2 weeks TRJ 10 10.11.2009 2 weeks TRJ 11 24.11.2009 Till 01.12.2009 TRJ 12 01.12.2009 2 weeks TRJ 13 15.12.2009 1 week TRJ 14 23.12.2009 Till 14.02.2010 TRJ 15 15.02.2010 Two weeks TSSJ 16 01.03.2010 Till 08.03.2010 RPSJ 17 08.03.2010 4 weeks RPSJ 18 05.04.2010 2 weeks RPSJ 19 19.04.2010 1 week RPSJ 20 26.04.2010 Till 10.06.2010 RPSJ 21 11.06.2010 Till 02.07.2010 DHPJ 22 02.07.2010
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DHPJ
4. During the pendency of the proceedings, the writ petitioner had filed two other applications in M.P.Nos.1 and 2 of 2010, for grant of stay of further proceedings in O.S.No.211 of 1998 and in O.S.No.411 of 2003 on the file of District Munsif Court, Alandur. Originally, the 4th respondent Smt.Padmavathy Ammal Charitable Trust, represented by its Managing Trustee filed a suit before the District Munsif Court at Poonamallee being O.S.No.1793 of 1988. The prayer in the suit was for a declaration that the 4th respondent is the absolute owner of the properties in various survey numbers of the Adambakkam Village, Saidapet Taluk. The survey numbers are set out in the schedule of properties listed in the plaint and the total area worked out to 4.32 acres. It was bounded on the north by Railway line, South by Kunrakkudi Thiruvannamalai Adheenam, east by by Railway Line and west by Police line.
5. Subsequent to the formation of a separate District Munsif Court at Alandur, the suit was transferred to the Court at Alandur and re-numbered as O.S.No.411 of 2003. Similarly, the petitioner Trust filed O.S.No.6110 of 1996 before the City Civil Court, Chennai and after formation of District Munsif Court at Alandur, the matter was transferred and re-numbered as O.S.No.211 of 1998. In that suit, the petitioner Trust claimed permanent injunction restraining the 4th respondent from interfering with their peaceful possession and enjoyment of the suit property. In both applications, no orders have been passed till date. It is agreed by both sides that the suits are still pending.
6. The case of the petitioner Trust was that the disputed property was purchased by them under a registered sale deed dated 14.06.1941 by one Ayyasamy Iyer, who was a retired Assistant Engineer, P.W.D. He in turn purchased the said property from Devaraja Mudaliar for consideration. The petitioner Trust and their vendors were in continuous and uninterrupted possession of the property right from the year 1938. The Trust had also established a school known as M.Ct.M.Chidambaram Chettiar Matriculation Higher Secondary School. During the settlement proceedings, in the year 1973, the petitioner Trust being Inamdar was confirmed the ownership and possession of the land. However, claim for patta was also made by Adhinakarthar Kunrakudi Thiruvannamalai Madam, the 5th respondent under the Tamilnaud Minor Inams (Abolition and Conversion into Ryotwari Act), 1963. The Assistant Settlement Officer, after examining held that the inam lands covered by the grant in T.D.No.482 were of the melwaram alone and that the kudiwaran vests with the owners of the sites and buildings. Subsequently, new proceedings were commenced in the year 1988 in SR.No.148/88 in respect of the land in Town Survey No.154. The Assistant Settlement Officer in SR.No.148/88 dated 29.07.1991 directed the grant of patta in favour of the 4th respondent Trust without any justification.
7. It was at that time 4th respondent Trust filed a suit in O.S.No.1793 of 1988 before the District Munsif Court, Poonamallee, for a declaration that they were the absolute owner of the suit property and therefore, they were entitled to get patta under T.N.Act 30 of 1963. Before the Assistant Settlement Officer, the petitioner produced the title deeds and also established their continued possession. Without due consideration of the title deeds and established possession with the petitioner as evidenced and proved by documentary and oral evidence, the Assistant Settlement Officer, Tiruvannamalai held that there was no grant of Kudiwaram in favour of the petitioner Trust and hence, they were not entitled to the properties.
8. Thereafter, the petitioner Trust filed a revision petition in R.P.No.1 of 2003 before the Settlement Officer. The Settlement Officer on the basis of an exparte decree made in O.S.No.1793 of 1988 on the file of the District Munsif Court, Poonamalle, which order was subsequently set aside, ignoring the earlier order, confirmed the order of the Assistant Settlement Officer, Tiruvannamalai. The order setting aside the exparte decree was produced before the Settlement Officer as well as the earlier order passed by the Assistant Settlement Officer in the earlier proceedings, in which patta was granted to the petitioner Trust. The further revision petition before the first respondent was also dismissed by order dated 17.03.2009 confirming the order of the Settlement Officer.
9. It is the case of the petitioner that there is no dispute regarding the identity of the property of the original numbers assigned to them and subsequently correlated with the present Town Survey number. The authorities did not take note of the same and for the first time, the Muchilikas and rental receipts was sought to be produced and there being no corresponding revenue records or Inam settlement accounts, the authorities should have found them to be not genuine. Even 4th respondent did not claim any Kudiwaram rights in the earlier proceedings. Since the petitioner Trust continued to be in possession of the property in T.S.No.154 and the petitioner had been granted patta under the settlement proceedings taken under Act 30 of 1863, the order passed by the authority was erroneous. Hence, they were forced to file the writ petition.
10. The Commissioner of Land Administration rejected the case of the petitioner only on the ground that the Sale Certificate of 1938 was not produced land therefore,the title was not proved. Even the question of jurisdiction came to raised for the first time. Further, genuineness of Muchalika was not attacked earlier. As per the order dated 02.07.2001 made in I.A.No.1440 of 2001, the ex-parte decree dated 09.09.1992 passed in O.S.No.1793 of 1988 was set aside and the suit was restored and transferred to the DMC, Alandur and renumbered as O.S.No.411 of 2003. Once a suit is restored to file, all the interim orders passed therein also be restored. It was contended that the findings rendered by the Commissioner was not borne out by records and non-application of mind.
11. In the counter affidavit filed by the 4th respondent, it was contended that on 05.04.1862, the Inam Commissioner on behalf of Governor in Council of Madras of the then Madras State granted a Certificate of Title to an extent of 167.64 acres of dry lands and 239.58 acres of wet lands in T.D.NO.482 situated at Adambakkam in favour of Sree Kalatasitiswar of Tiruvanmiyur Devasthanam Desikar Sannidi Mattam, which comes under the administrative control of the 5th respondent Mutt as Inamdar. The lands were in various survey numbers and situated in Adamabakkam village form part of T.D.No.482. By the introduction of Act 30 of 1963, the Inam lands were abolished and stood vested with the Government with effect from 15.02.1965. Subsequently, suo motu steps were taken on the basis of materials gathered by the field staff to find out as to who were eligible for ryotwari patta under the Act. In some of the proceedings, notices were not issued to any individuals who are in possession and enjoyment of the land. On 05.05.1973, the Settlement Tahsildar, Chengalpet - 2, held that the lands were iruwaram personnel inam (Fakir Manyam) confined to T.D.No.1421 and the original grantee had alienated the lands long ago.
12. However, he issued a direction to grant patta under Section 8(1) of the Tamil Nadu Estates (Abolition and Conversion into Ryotwari) Act, 30 of 1963 to the petitioner Trust without conducting any proper enquiry. Similarly, on 20.05.1973, the Settlement Tahsildar, in respect of T.D.No.482 directed grant of patta under Section 8(1) of the Act to the petitioner Trust in respect of the land comprised in S.F.No.31/4 and 31/5 to the extent of 0.38.0 hectares dry lands. On 30.11.1973, the Settlement Tahsildar, Chengalpet -2, in respect of T.D.No.407, directed grant of patta in respect of S.F.No.31/2, to an extent of 0.77 hectares to the petitioner Trust as if the said lands were purchased by them under sale deed dated 14.05.1970 in Document No.1845 of 1970. But no parent documents were produced before the authority, though an undertaking was given. The orders dated 05.05.1973, 20.05.1973 and 30.11.1973 were passed without notice to the claimants namely the Inamdars and persons were actually in possession and enjoyment of the lands which are subject matter of that properties. Hence, on 06.10.1988, the Assistant Settlement Officer, Tiruvannamalai, the third respondent, by his proceedings in S.R.No.148/88 held over the enquiry in respect of issue of patta and the proof of the same was produced. Photocopy of the same was produced by the petitioner. This was done at the instance of the 5th respondent.
13. Thereafter, a fresh enquiry was conducted in S.R.No.148/88 by the third respondent to grant patta in respect of the lands mentioned in T.S.No.154, (old S.F.No.11/1 - 1.89 acres, S.F.No.11/3 - 1.96 acres; S.F.No.60/1 - 0.39 acres and S.F.No.60/3 - 0.08 acres = 4.32 acres) corresponds to new S.F.No.31/1 to 31/5, Adambakkam Village to an extent of 1,76,200 sq.meters (approximately 4.36 acres). Since no stay was granted in the suit and on the direction issued by the Settlement Officer, Thanjavur in terms of Section 5(2) of the Act. In the aforesaid proceedings, notice was given to the petitioner Trust and one Malaiyandi appeared on behalf of the Trust. In the enquiry, it was held properties were given to Sree Kalatastiswarar of Tiruvanmiyur Devasthanam Desikar Sannidi Madam, Mylapore by the petitioner Trust in respect of the properties, subject matter in Grant No.482 and the 4th respondent was inducted as a tenant by grant in order made in S.R.No.148 of 1988 dated 29.07.1991. The Assistant Settlement Officer, Tiruvannamalai, also granted patta to the 4th respondent in respect of the properties under Section 13(1) of the Act and also passed an order stating that if any person aggrieved by the said order can prefer an appeal to the Settlement Officer,Thanjavur.
14. Aggrieved by the said order, the petitioner filed a revision petition on 11.12.1991 before the Inam Abolition Tribunal, Chengalpet. After knowing the mistake, the petitioner filed a revision petition before the Settlement Officer, Thanjavur on 18.03.1992. There was a delay of one day in filing the above said revision and hence, the same was dismissed by the Settlement Officer, Thanjavur on 06.04.1992. Aggrieved by the same, the petitioner Trust filed a further revision under Section 6 of the Act before the Commissioner of Land Administration and Settlement of Estates (Minor Inam). The same was also dismissed on 24.05.1993 confirming the order passed by the Settlement Officer, Thanjavur. Aggrieved by the same, the petitioner preferred a writ petition before this Court, being W.P.No.3298 of 1998. This Court allowed the writ petition vide order dated 04.02.2002 and remitted the matter to the authority for fresh disposal. After the remand, the revision was numbered as R.P.No.1 of 2003 on the file of the second respondent and after hearing parties, the second respondent dismissed the revision petition by an order dated 23.07.2008.
15. Aggrieved by the said order, once again, the petitioner preferred a further revision to the first respondent, that was also dismissed on 17.03.2009. It was contended that though the petitioner claims to have title over the property from the year 1938, no particulars were given about the previous owner of the property. Therefore, the parent deed relied by the petitioner is not valid and it is only a self serving document. The petitioner Trust itself was created only on 24.02.1970. By no stretch of imagination, the petitioner is entitled to get any right over the property. On the other hand, the 4th respondent has clear title. The petitioner had relied on Kist receipt and Urban Land Tax payment receipt. However, these documents pertain to the year 1985 i.e. After the enactment of Act 30 of 1963. Apart from the above fact, the petitioner herein filed a suit in O.S.No.6110 of 1996 on the file of the City Civil Court in respect of the aforesaid property, which was also dismissed.
16. Though Mr.C.Ramakrishna, learned counsel for the petitioner Trust assisted by Mr.M.S.Subramanian, Mr.G.Ethirajulu, learned counsel for the 4th respondent strenuously argued on the merits of their claims, it is unnecessary to go into those issues at this stage, because both parties have moved the Civil Court, especially, the 4th respondent with substantive suit and bare injunction suit. Ultimately, the decision of the Civil Court with reference to the title of the property will determine the rights of parties and hence, it will be unnecessary exercise of time to remit the matter for further consideration by the authorities under the Inam Abolition Act.
17. The question as to whether, after the decision rendered under the Inam Abolition Act, the parties can file appropriate suit before Civil Court came to be considered by the Supreme Court vide decision reported in (1985)4 SCC 10 [State of T.N. v. Ramalinga Samigal Madam]. It is worthwhile to extract the following passages found in paragraphs 12,13,14 and 16:-
"12. Now turning to the question raised in these appeals for our determination, it is true that Section 64-C of the Act gives finality to the orders passed by the Government or other authorities in respect of the matters to be determined by them under the Act and sub-section (2) thereof provides that no such orders shall be called in question in any Court of law. Even so, such a provision by itself is not, having regard to the two propositions quoted above from Dhulabhai case2 decisive on the point of ouster of the civil court's jurisdiction and several other aspects like the scheme of the Act, adequacy and sufficiency of remedies provided by it etc., will have to be considered to ascertain the precise intendment of the Legislature. Further, having regard to the vital difference indicated above, in between the two sets of provisions dealing with grant of ryotwari pattas to landholders on the one hand and ryots on the other different considerations may arise while deciding the issue of the ouster of civil court's jurisdiction to adjudicate upon the true nature or character of the concerned land. Approaching the question from this angle it will be seen in the first place that Section 64-C itself in terms provides that the finality to the orders passed by the authorities in respect of the matters to be determined by them under the Act is for the purposes of this Act and not generally nor for any other purpose. As stated earlier the main object and purpose of the Act is to abolish all the estates of the intermediaries like Zamindars, Inamdars, Jagirdars or under-tenure holders etc. and to convert all land-holdings in such estates into ryotwari settlements which operation in revenue parlance means conversion of alienated lands into non-alienated lands, that is to say, to deprive the intermediaries of their right to collect all the revenues in respect of such lands and vesting the same back in the Government. The enactment and its several provisions are thus intended to serve the revenue purposes of the Government, by way of securing to the Government its sovereign right to collect all the revenues from all the lands and to facilitate the recovery thereof by the Government and in that process, if necessary, to deal with claims of occupants of lands, nature of the lands, etc. only incidentally in a summary manner and that too for identifying and registering persons in the revenue records from whom such recovery of revenue is to be made. The object of granting a ryotwari patta is also to enable holder thereof to cultivate the land specified therein directly under the Government on payment to it of such assessment or cess that may be lawfully imposed on the land. Section 16 is very clear in this behalf which imposes the liability to pay such ryotwari or other assessment imposed upon the land to the Government by the patta-holder. The expression for the purposes of this Act has been designedly used in the section which cannot be ignored but must be given cogent meaning and on a plain reading of the section which uses such expression it is clear that any order passed by the Settlement Officer either granting or refusing to grant a ryotwari patta to a ryot under Section 11 of the Act must be regarded as having been passed to achieve the purposes of the Act, namely, revenue purposes, that is to say for fastening the liability on him to pay the assessment or other dues and to facilitate the recovery of such revenue from him by the Government; and therefore any decision impliedly rendered on the aspect of nature or character of the land on that occasion will have to be regarded as incidental to and merely for the purpose of passing the order of granting or refusing to grant the patta and for no other purpose.
13. Secondly, the principle indicated in the second proposition enunciated in Dhulabhai case2 requires that the statute, when it creates a special right or liability and provides for its determination, should also lay down that all questions about the said right or liability shall be determined by the Tribunal or authority constituted by it, suggesting thereby that if there is no such provision it will be difficult to infer ouster of the civil court's jurisdiction to adjudicate all other questions pertaining to such right or liability. Since from the notified date all the estate vests in the Government free from encumbrances it must be held that all the lands lying in such estate including private land of landholder and ryoti land cultivated by a ryot would vest in the Government and the Act could be said to be creating a new right in favour of a landholder (re: his private lands) and a ryot (re: ryoti land) by granting a ryotwari patta to them under Sections 12 to 15 and Section 11 respectively, and the Act provides for determination of such right by the Settlement Officer. Question is whether the Act also provides for determination of all questions about such right by the Settlement Officer? On this aspect, as has been indicated earlier unlike in the case of an application for a ryotwari patta by a landholder under Sections 12, 13 or 14 where an inquiry into the nature or character of the land and the history thereof is expressly directed to be undertaken by virtue of Section 15 in the case of an application for a ryotwari patta by a ryot under Section 11 there is no express provision for any inquiry into the nature or character of the land before granting or refusing to grant such patta to the applicant. It is true that some inquiry is contemplated if Section 11 is read with proviso to clause (d) of Section 3 but even then there is no provision directing inquiry for the ascertainment of the nature of the land, namely, whether it is a ryoti land or communal land but it is obvious that impliedly a decision on this aspect of the matter must be arrived at by the Settlement Officer before he passes his order on either granting or refusing to grant such patta. Obviously such decision rendered impliedly on this aspect of the matter will be an incidental one and arrived at in the summary manner only for the purpose of granting or refusing to grant the patta. A summary decision of this type in an inquiry conducted for revenue purposes cannot be regarded as final or conclusive so as to constitute a bar to a civil court's jurisdiction adjudicating upon the same issue arising in a suit for injunction filed by a ryot on the basis of title and/or long and uninterrupted possession. Since a full-fledged inquiry on the nature or character of land is provided for under Section 15 in the case of an application by a landholder the character of the Settlement Officer's decision on such issue may be different but that question is not before us.
14. Thirdly, having regard to the principle stated by this Court while enunciating the first proposition in Dhulabhai case2 it is clear that even where the statute has given finality to the orders of the special tribunal the civil court's jurisdiction can be regarded as having been excluded if there is adequate remedy to do what the civil court would normally do in a suit. In other words, even where finality is accorded to the orders passed by the special tribunal one will have to see whether such special tribunal has powers to grant reliefs which civil court would normally grant in a suit and if the answer is in the negative it would be difficult to imply or infer exclusion of civil court's jurisdiction. Now take the case of an applicant who has applied for a ryotwari patta under Section 11 staking his claim thereto on the basis of his long and uninterrupted possession of the ryoti land but the Settlement Officer on materials before him is not satisfied that the land in question is ryoti land; in that case he will refuse the patta to the applicant. But can he, even after the refusal of the patta, protect the applicant's long and uninterrupted possession against the Government interference? Obviously, he cannot, for it lies within his power and jurisdiction merely to grant or refuse to grant the patta on the basis of materials placed before him. But such a person even after the refusal of the ryotwari patta would be entitled to protect his possessory title and long enjoyment of the land and seek an injunction preventing Government's interference otherwise than in due course of law and surely before granting such relief the civil court may have to adjudicate upon the real nature or character of the land if the same is put in issue. In other words since the Settlement Officer has no power to do what civil court would normally do in a suit it is difficult to imply ouster of civil court's jurisdiction simply because finality has been accorded to the Settlement Officer's order under Section 64-C of the Act.
16. Having regard to the above discussion we confirm the High Court's view that the civil court's jurisdiction to adjudicate on the real nature of the land is not ousted under Section 64-C by reason of the Settlement Officer's decision to grant or refuse to grant a patta under Section 11 read with the proviso to Section 3(d) of the Act. The appeals are, therefore, dismissed but with no costs."
18. Even otherwise, very recently, the Supreme Court vide its judgment reported in (2012) 2 SCC 76 [Achyutanand Choudhary v. Luxman Mahto] held that when matters are pending in suit, this Court in exercise of its power should not interdict the suit unless there was lack of jurisdiction. The Supreme Court in paragraphs 19 and 20 held as follows:-
"19. Section 15 contemplates the grant of a certificate:
15. Certificate of transfer.(1) The Consolidation Officer shall grant to every raiyat to whom a holding has been allotted in pursuance of a scheme of consolidation a certificate in the prescribed form containing the prescribed particulars. Such certificate shall be conclusive proof of the title of such raiyat to such holding and he shall be liable for payment of such rent as may be specified in the certificate.
20. Section 35 provides for a revision, etc. to the Director of Consolidation against any case decided or proceedings taken under the provisions of the Act by any authority subordinate to him..."
19. Since the jurisdiction of the Civil Court is very much available and both parties are locked up each other before the Civil Court, 4th respondent, starting it from the year 1988 and the writ petitioner, starting it from the year 1996, it is a fit case where parties must be delegated to go before the Civil Court.
20. In view of the above, the writ petition is disposed of with the following directions:-
a) The order impugned in the writ petition cannot be an estoppel from contending ownership of the property in question.
b) The impugned cannot be relied upon by the parties before the Civil Court.
c) The suit in O.S.No.411 of 2003 and O.S.No.211 of 1998 on the file of the District Munsif Court,Alandur, will be consolidated and will be disposed of.
21. It is regrettable that the suit of the year 1998 is still pending for reasons unexplained. Therefore, the learned District Munsif, Alandur is hereby directed to dispose of the above said suits, after due notices to the parties and within a period of six months from the date of receipt of a copy of this order on merits. Both parties are directed to cooperate with the trial without seeking unnecessary adjournments since the first suit filed by the 4th respondent is pending for over 23 years. Parties are allowed to bear their own costs. Connected miscellaneous petitions are closed.
24.04.2012 Index : Yes Internet : Yes Note to Registry: Mark a copy of the order to District Munsif, Alandur, Chennai -16.
svki To
1.The Principal Secretary and Commissioner of Land Administration, Chepauk, Madras-5.
2.The Settlement Officer, Office of the Land Survey and Land Settlement, Special Commissioner and Director Chepauk, Chennai-600 005.
3.The Assistant Settlement Officer, Tiruvannamalai.
4.The District Munsif, Alandur, Chennai - 600 016.
K.CHANDRU,J.
svki ORDER IN W.P.NO.8754 of 2009 24.04.2012