Legal Document View

Unlock Advanced Research with PRISMAI

Integrated with over 4 crore judgments and laws — designed for legal practitioners, researchers, students and institutions

- Know your Kanoon - Doc Gen Hub - Counter Argument - Case Predict AI - Talk with IK Doc - ...
Upgrade to Premium
[Cites 25, Cited by 1]

Madras High Court

S.Nagaraj vs The Sub-Collector on 2 August, 2011

Author: V.Dhanapalan

Bench: V.Dhanapalan

       

  

  

 
 
 IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED:  2.8.2011

CORAM:

THE HONOURABLE MR.JUSTICE V.DHANAPALAN

Writ Petition No.19955 of 2008

S.Nagaraj			..  Petitioner 
Vs.
1.  The Sub-Collector, Hosur.
2.  The Joint Commissioner,
    Hindu Religious & Charitable
	Endowments Department,
     Salem.

3.  The Tahsildar, Hosur.

4.  The Village Administrative Officer,
    Nallur, Hosur Taluk.

5.  M.Krishna Reddy
    
6.  Arulmigu Someswaraswamy Temple
    rep. by its Executive Officer
    Hosur Taluk, Krishnagiri District.
   (R.6 impleaded as per the order
     dated 18.8.2010 passed in 
    M.P.No.1 of 2010 in 	W.P.No.19955 of 2008).      
.. Respondents

	Writ petition under Article 226 of the Constitution of India praying for issuance of a Writ of Certiorari calling for the records relating to the order passed by the 1st respondent in ROC.1638/2008 (B2), dated 9.7.2008 and quash the same.  
		For petitioner  : Ms.Rita Chandrasekaran for 
						M/s.C.Ramkumar

		For respondents : Ms.V.M.Velumani, Spl.G.P. for
					     RR-1, 3 and 4
					   Mr.S.Kandasamy, Spl.G.P. for R-2
					   No appearance for R-5
					   Mr.A.S.Kailasam for R-6

ORDER

The cancellation order passed by the first respondent-Sub-Collector, Hosur, in the proceedings in ROC.1638/2008 (B2), dated 9.7.2008, under Section 19(5) of the Tamil Nadu Minor Inams (Abolition and Conversion into Ryotwari) Rules, 1965 (for short, 'the Rules') read with Rules 19(1), (2), (3) and (4) of the said Rules, wherein, the Ryotwari patta issued to the petitioner by the Settlement Tahsildar No.I, Salem, was cancelled and the lands were recorded in the name of (i) Sri Devaraja Swamy Temple at Nallur Village (Vide T.D.No.858) and (ii) Sri Someswara Swamy Temple at Hosur Village (Vide T.D.No.859) in patta Nos.232 and 2204, by deleting the name of S.Nagaraj (writ petitioner) in the above pattas and further cancelling the order of the Tahsildar, Hosur in fixing the fair rent and issuing patta in the name of the petitioner, is called in question, seeking to quash the same.

2. The case of the petitioner goes thus:

2.1. The lands comprised in Survey Nos.33, 425/3, 425/1, 426/1, 426/3 and 329, Nallur Village, Hosur Taluk, were minor Inam lands covered by T.D. No.858 and taken over by the Government under the Madras Inams Abolition Act. Similarly, the lands comprised in Survey Nos.6, 65, 72, 73 and 74, Nallur Village, Hosur Taluk were minor Inam lands covered by T.D.No.859 and taken over the Government under the Minor Inams Abolition Act. As a result of taking over, the Inam Tenure had been extinguished and the lands stood converted as Ryotwari. The petitioner's father Thiru.Sudanatha Dikshithar, son of Senga Dikshithar appeared for an enquiry initiated suo-motu by the Settlement Tahsildar-1, Salem, and deposed in the enquiry, and stated that he is paying the land revenue to the Government for the said lands and produced Kist receipts and that he is the descendant of the original Grantee. The petitioner's father who was performing Pooja to the Deity of Sri.Devaraja Swamy Temple, Nallur, and he is willing to render the service of performing Pooja and requested for grant of Ryotwari patta in his name.
2.2. In the enquiry conducted by the Settlement Tahsildar-1, Salem, the Karnam of Nallur Village was examined and corroborated the evidence given by the petitioner's father and that the family is in continuous possession and actual enjoyment of the lands and there is no objection for grant of Ryotwari patta to the petitioner's father in the capacity of service holder of the religious institution. Accordingly by proceedings dated 30.07.1968 in S.R.No.545/M.I. Act 30/63 and S.R.No.546/M.I. Act 30/63, the Settlement Tahsildar-1, Salem, granted Ryotwari patta to the petitioner's father under Section 11 read with Section 8(2)(ii) of the Tamil Nadu Minor Inams (Abolition and Conversion into Ryotwari) Act 30 of 1963 (hereinafter referred to as 'the Act'), subject to the condition that the petitioner's father performs the Pooja services to the temple as per the terms of the original grant.
2.3. Under Section 21(a)(i) of the Act, a service holder is entitled to a Ryotwari patta under Section 8 in respect of any land and he shall have the option either to pay to the religious intitution the amount specified under Section 21(4) and on such payment the land shall, not withstanding anything contained in Section 21(7), by discharged from the condition of the service or the service holder shall hold the land and continue service subject to the provisions contained in Section 21(1), (2), (6) and (7). Though such option is available to the petitioner's father, the same was not mentioned by the Settlement Tahsildar-I, Salem, in the order dated 30.07.1968.
2.4. The petitioner's father was granted Ryotwari patta in respect of the land comrpised in S.No.690/1, Hosur Taluk, by order dated 11.05.1968 and the petitioner's father submitted a representation after nearly 10 years on 06.10.1977 stating that the option available to him under Section 21(3)(i) of the Act was omitted to be added and therefore requested the Assistant Settlement Officer, Salem, to add the condition regarding the payment to be made under Section 21(3)(i) and issue a modified order. The Assistant Settlement Officer stated that the right to exercise the option under Section 21(3) of the Act goes without saying and he instructed the Tahsildar, Hosur, to take appropriate action if the petitioner's father exercises his option under Section 21(3) of the Act. Thus the petitioner's father was permitted by the Assistant Settlement Officer to exercise the option under Section 21(3). Accordingly a notice in Form XXIV under Rule 33(5) of the Rules was issued to the petitioner's father who appeared for enquiry and expressed his willingness to pay the fair rent as per rules and get discharged from the condition of rendering service to the religious institution. The Tahsildar, Hosur, addressed the Assistant Settlement Officer, Salem, to clarify whether the option given by the petitioner's father beyond the period of 6 months can be entertained. The Assistant Settlement Officer by order dated 23.11.1977 in ROC. 8376/77, mentioned that since such option was omitted in the order of the Settlement Tahsildar, the Tahsildar, Hosur, may take appropriate action if the petitioner's father exercises option under Section 21(3). Based on the said order the option given by the petitioner's father was taken into consideration, enquiry conducted and after following the procedure established by law, the fair rent was fixed for the property in S.No.690/1 in Hosur Tahsildar's Proceedings Rc.26461/77, dated 20.04.1979 and the condition to serve the religious institution stood discharged.
2.5. The petitioner became entitled to the above referred properties after the demise of his father on 18.04.1995 by virtue of Section 21(7)(4)(i) of the Act and also by a Partition Deed. The petitioner submitted a petition to the Tahsildar, Hosur, dated 2.1.1996 stating that as a legal heir of his father he is entitled to opt either to pay the fair rent to the religious institution to be fixed by the Tahsildar and get discharged from the condition imposed in the Ryotwari patta regarding rendering service to the Temple under Section 21(3) of the Act and that the Settlement Tahsildar in his order dated 30.07.1968 has omitted to add that provisions of the said order was subject to the liberty to exercise the option to get discharged from the condition by remitting the fair rent to be fixed by the Tahsildar.
2.6. The Tahsildar, Hosur, after considering the matter and after taking note of the earlier orders dated 20.04.1979 and 5.7.1996 under similar circumstances in the case of the petitioner's father entertained in the application for fixing fair rent. The petitioner was served with the notice in Form XXIV as required under Rule 33(5) on 1.2.1996. The petitioner appeared for an enquiry on 16.02.1996 and a statement was recorded expressing his willingness to pay fair rent to get discharged of the condition imposed for rendering service for the temple. The Tahsildar, Hosur, after following the procedure contemplated and after perusing the report of the Agricultural Officer (T & V), Hosur, and after perusing the records directed the petitioner to pay Rs.3,47,696/- under Section 8(2)(i)(b) of the Act and directed the first instalment to be paid on or before 31.07.1996. The petitioner also remitted the said amount and thereafter, made an application on 5.8.1996 to the Tahsildar, Hosur for deletion of the condition imposed in the Ryotwari patta. Accordingly, the third respondent, by proceedings dated 5.8.1996, deleted the condition of performing the Pooja to Sri Devaraja Swamy Temple and similar order was also passed by the third respondent, by order dated 29.6.2007 in respect of the lands in S.Nos.65, 72, 73, 74 and 329, Nallur Village and by another order dated 15.9.2007 and upon remittance of the fair rent fixed, the third respondent by proceedings dated 13.7.2007, removed the condition for the Ryotwari patta regarding the service to be rendered and patta Nos.2204 and 2236 were issued in the name of the petitioner.
2.7. Thereafter, the petitioner, for himself and on behalf of his minor daughter, by sale deed dated 27.8.2007, registered as Document No.14708/07 on the file of the Sub-Registrar, Hosur, sold an extent of 8 hectare 1.94.0 in Survey No.65 to the fifth respondent. The petitioner and his children, by another sale deed dated 27.8.2007, registered as Document No.12461/07 on the file of the Sub-Registrar, Hosur, sold the properties in S.Nos.72, 73 and 74, measuring a total extent of 6.81 acres to the fifth respondent. The petitioner also sold an extent of 2.70 acres in S.No.329 to the fifth respondent by sale deed dated 25.10.2007, registered as Document No.15003, on the file of the Sub-Registrar, Hosur. The petitioner, by sale deed dated 6.12.2007, sold the lands in S.No.33, an extent of 3.17 acres to the fifth respondent, registered as Document No.16767/07 on the file of the Sub-Registrar, Hosur.
2.8. While that being so, the first respondent, in his proceedings dated 9.7.2008 in ROC.1638 (B2), cancelled the proceedings of the Settlement Tahsildar, dated 30.7.1968 by wrongly mentioning the date as 30.7.1980. Aggrieved by the above order, the petitioner has challenged the said proceedings in this Writ Petition on the ground that the order is without jurisdiction, illegal, against law and liable to be set aside. There was settlement made in favour of the petitioner's father, and again on the petitioner and the impugned order is passed without affording an opportunity to the petitioner and therefore, it is in violation of the principles of natural justice and the petitioner was not issued with any show cause notice as laid down under Rule 19(1) of the Rules prior to the passing of the impugned order, and therefore, it is liable to be set aside.
3. The respondents 1, 3 and 4 filed their counter affidavit, stating inter-alia as under:

3.1. The lands are covered by Ryotwari patta issued by the Settlement Tahsildar, Salem in Title Deed Nos.858 and 859 under the Act, situated in Nallur Villagae, Hosur Taluk, and the lands relate to the service and maintenance of Temples, details of which are as follows:

T.D.No.858, Nallur Village:-
SurveyNo.
Extent Name of the Temple 33 3.68 acre Lands allotted for service to Sri Devarajaswamy Temple of Nallur Village 425/1 5.43 acre
-do-
426/1
5.66 acre
-do-
426/3
5.54 acre
-do-
329
2.71 acre
-do-
Total 23.09 acre T.D.No.859 Nallur Village :-
Survey No. Extent Name of the Temple 6 1.26 acre Lands allotted for service to Sri Someswara Swamy Temple of Hosur Village 65

4.79 acre

-do-

72

2.27 acre

-do-

73

3.27 acre

-do-

74

4.27 acre

-do-

Total 15.86 acre 3.2. The above two Ryotwari pattas were issued to one Sudanatha Dikshithar, subject to the condition that he had to perform service to the above Temples as per the terms and conditions of the original grant. During the Updating Registry Scheme also, patta was issued to the said Sudanatha Dikshithar for the above lands in patta Nos.232 and 2204 of Nallur Village on condition that the service to the above Temples had to be performed. After the demise of the said Sudanatha Dikshithar on 18.4.1995, the services to the Temples were not performed and the writ petitioner being the legal heir of the said deceased pattadar, got the patta transferred to his name, vide Hosur Tahsildar's D.Dis.4077/05, dated 13.7.2007 after paying 20 times of fair rent wrongfully fixed by the Tahsildar, Hosur in violation of the Rules contained in Rule 33(1) of the Tamil Nadu Minor Inams (Abolition and Conversion into Ryotwari) Rules, 1965, read with Section 16 of the Act. The petitioner without any prior approval and permission from the competent authorities, sold the lands in S.No.65 and S.No.329 of the above village to one Krishnareddy, S/o Munireddy, Uliyalam Village, Hosur Taluk, vide registered sale deeds dated 27.8.2007, 27.8.2007 & 25.10.2007, 6.12.2007, registered as Document Nos.14708/2007, 12461/2007, 15003/2007 & 16767/2007 on the file of the Sub-Registrar, Hosur. Thus, there is sheer violation of condition of Ryotwari patta issued to the father of the writ petitioner and therefore, the Sub-Collector, Hosur cancelled the Ryotwari patta issued to the said Sudanatha Dikshithar, i.e. the father of the writ petitioner, after holding due enquiry on 1.4.2008 with the writ petitioner and Village Administrative Officer, Nallur Village, vide Roc.1638(B2), dated 9.7.2008 and the same is impugned in this Writ Petition.

3.3. The Ryotwari patta was prima-facie, issued on condition that the said Sudanatha Dikshithar should perform services to the Temples, viz., Sri Devaraja Swamy and Sri Someswara Swamy Temples, respectively, and the said Ryotwari pattas were issued under Section 8(2)(ii) of the Act, subject to the condition that the pattadar should perform service to the Temples as per the terms of the original grant. Thus, it is evident that the Ryotwari pattas were issued based on specific condition only and the violation of the condition defeats the basic tenet upon which the Ryotwari patta was issued.

3.4. The land in S.No.690/1 mentioned without the name of the village by the petitioner, is not related to the present Writ Petition. Section 21 of the Act shall apply in respect of minor Inam which was held immediately before the appointed day by an individual (service holder) on condition of rendering service to a religious, educational or charitable institution. The service holder shall, subject to the provisions of sub-section (3) be bound to continue to render the service after the appointed day. Sub-section (3)(i) of Section 21 of the Act clearly stipulates that where a service holder is entitled to Ryotwari patta under Section 8 in respect of any land, he shall have the option to pay the religious institution the amount specified in sub-section (4) and on such payment, the land, shall, notwithstanding anything contained in sub-section (7), be discharged from the condition of the service. Sub-section (7)(a) stipulates that so long as the service holder renders the service, he shall be entitled to occupy the lands in respect of which he is entitled to a patta under Section 8, subject however to the payment of the assessment fixed under Section 16 or under Section 16-A. As per the Rules, under Section 16, the option referred to in sub-section (3) of Section 21 of the Act shall be in Form 11 and it shall be exercised within six months from the date on which he was granted Ryotwari patta.

3.5. The clarification of the Assistant Settlement Officer, Salem that the option given by the petitioner's father beyond the period of six months, could be entertained, is against the penal provision of well established Act, since clarification of an officer cannot prevail over an Act. From the very admission of the petitioner, it is clear that the alleged clarification was sought for from the Assistant Settlement Officer, Salem, by the Tahsildar, Hosur at the behest and to suit the convenience of the writ petitioner. The service holder, namely Sudanatha Dikshithar who died on 18.4.1995, did not file his option during his lifetime which he ought to have filed within six months from the date on which he was granted Ryotwari patta to get himself freed from the condition of original grant. Therefore, in the absence of any option filed by the service holder, the condition of performing Pooja to the Temples for which the Ryotwari patta was issued, continues and still exists.

3.6. The writ petitioner under the pretext that he is the legal heir of the service holder, has no right under established law to file option at a later date in lieu of his deceased father and to sell the property meant for the performance of service to the Temples for monetary gains against the original condition. In any context, the service holder and after his death, his legal heir, should be the custodian and occupant of the lands meant for Temple service and cannot sell the lands for explicit monetary gains. Thus, the action of the writ petitioner amounts to manifest illegality and therefore, the alleged orders passed by the then authorities, are the handiwork of the writ petitioner to suit his illegal, mala-fide and ulterior motives. The very allegations of the petitioner are contradictory to each other, as the petitioner has alleged that the condition to serve stood discharged and if that be so, there was no necessity for the petitioner to apply afresh for discharge of condition.

3.7. The petitioner did not perform any service to the Temples after the demise of his father, i.e. after 18.4.1995 and during the enquiry before the Sub-Collector, Hosur, on 1.4.2008, the writ petitioner did not speak anything regarding rendering of service to the Temples. Only with reference to his petitions dated 2.1.1996 and 31.3.2005, the Tahsildar, Hosur fixed the fair rent. The Tahsildar, Hosur had not scrupulously followed the instructions and procedures contained in Rules 16 and 33(1) to (7) of the Rules. While fixing fair rent, the Tahsildar, Hosur, erroneously fixed the fair rent under Section 8(3) of the Act and this Section clearly deals with the recovery of arrear amount. Thus, the order of the Tahsildar, Hosur, in both fixing the fair rent and transferring Ryotwari patta in the name of the writ petitioner, has no bearing in the eye of law and therefore, the order was cancelled by the impugned order of Sub-Collector, Hosur, dated 9.7.2008.

3.8. As per Sections 43(1)(2) and 44 of the Act, the appropriate Civil Court has the authority and jurisdiction to rescind with the conditions of the original grant. The Tahsildar, Hosur has not followed the procedures contained in the Act while fixing the fair rent. The Act does not mention anything to call for the clarification for the acceptance of the delayed filing of the option beyond six months and the Tahsildar, Hosur, suo-motu has no authority to rescind the condition imposed in the Ryotwari patta. The writ petitioner hurriedly remitted an erroneously fixed amount as fair rent and got patta transferred to his name to suit his illegal, mala-fide motives to sell the lands and thereby illegally enrich himself. Thereafter, the writ petitioner executed the sale deeds and sold away the lands meant for the service of the Temples leaving the Temples in lurch, devoid of any Pooja and finances for the Temples. Not only in the Ryotwari patta issued by the Settlement Tahsildar-I, Salem on 30.7.1968, but also in the patta issued during Updating Registry Scheme on 26.2.1985, it has been clearly mentioned that the pattas were granted to perform service to Sri Devaraja Swamy Temple at Nallur and Sri Someswara Swamy Temple at Hosur. Therefore, the transactions by selling away the above lands by the service holder's legal heir, under the guise of sole pattadar of the lands, is null and void and illegal, since the performance of service to the Temples to the Temples, the very purpose for which the Ryotwari pattas were issued, has been put into jeopardy.

3.9. The order of the Settlement Tahsildar-I, Salem in SR 545 and SR 546/MI Act 30/63 Hosur Taluk/Dharmapuri District, was dated 30.7.1968 only and due to typographical error, the date was mentioned as 30.7.1980. The Sub-Collector initiated enquiry in the case on receipt of a report dated 28.12.2007 from the Tahsildar (Retired) appointed by the Hindu Religious and Charitable Endowments Department. Opportunity was given to the writ petitioner under Section 19(3), he was personally heard by the Sub-Collector, Hosur on 1.4.2008 and proceeded with the case as per Section 19(4) publishing requisite Notice in Form 17 on 2.4.2008 in the manner prescribed in the Rules and issued order cancelling the Ryotwari patta.

3.10. The Sub-Collector, Hosur, cancelled the Ryotwari patta issued on condition, and since the condition was not kept up as per Section 21(7)(b) of the Act, mere non-stating of the provision of law about the right under the Act, will not vitiate the proceedings/orders issued and therefore, they prayed for dismissal of the Writ Petition.

4. The sixth respondent-Temple has filed a counter affidavit, stating as follows:

4.1. The petitioner has made an unsuccessful attempt to appropriate the valuable properties belong to the Idol. According to the sixth respondent-Temple, the large extent of lands situated in various Survey Nos.33, 425/1, 425/3, 426/1, 426/3 and 329 measuring in all about 23.09 acres as set out in T.D.No.858 Nallur Village and lands situated in S.Nos.6, 65, 72, 73 and 74 as set out in T.D.No.859 measuring 15.86 acres absolutely belong to Arulmighu Devaraja Swamy Temple and to the sixth respondent-Arulmighu Sri Someswara Swamy Temple, respectively. The two Temples are group Temples and the Executive Officer who sworn to the counter affidavit, is the Executive Officer for both the Temples.
4.2. Originally, the patta was standing in the name of the Temples and after coming into force of the Act, the patta for the said lands was issued under Section 11 read with Section 8(2)(ii) of the Act to one Sudanatha Dikshithar, son of Senga Dikshithar and the said patta was issued subject to the condition that the said Sudanatha Dikshithar render services to the Temples as per original grant. Therefore, it is obvious that the original Inamdars were the two Temples. The proceedings of the Settlement Tahsildar, dated 30.7.1968 and 30.9.1968 were without notice to the Temples and therefore, not binding on the Temples and also a nullity.
4.3. During the lifetime of Sudanatha Dikshithar, he did not exercise the option available under the Act, nor did he render any service to the Temples. The petitioner, without doing any service to the Idol, got the patta transferred in his name by virtue of a legal heirship certificate, which in turn was based on the family partition deed between Nagaraj and the mother J.Subbalakshmi. Though the petitioner claims to be the son, the sixth respondent is not aware of the same and the petitioner will have to prove the same with material documents. While so, the Tahsildar, who had been specially deputed by the H.R. & C.E. Department, reported that the petitioner wrongly got the patta transferred in his name, though he is not entitled to the benefits conferred under the Act.
4.4. The petitioner made an application for exercising the option under the Act to discharge from the condition of service, but such application was filed beyond the period of six months from the date the Ryotwari patta was granted as contemplated under the Act. Since the Ryotwari pattadar did not exercise such option within the stipulated period of six months, the order of the Tahsildar, granting permission, discharging the condition of service is a nullity in the eye of law and the petitioner is not entitled to such relief. Even the order of the Tahsildar discharging the condition of service, was passed without notice to the Temples and on the ground of violation of principles of natural justice, the said order is liable to be set aside and was rightly set aside. On the basis of the report of the Tahsildar, H.R. & C.E. Department, the first respondent conducted an enquiry and after observing all the formalities, including issuance of notice to the petitioner, the first respondent came to the conclusion that before grant of Ryotwari patta to the petitioner, no notice was given to the Temple and as such, the entire enuqiry is vitiated by irregularity and the order passed by the Tahsildar was a nullity. Therefore, the sixth respondent prayed for dismissal of the Writ Petition.
5. Ms.Rita Chandrasekaran, learned counsel for the petitioner in her submissions strenuously contended that the procedure and principles contemplated under Rule 19 of the Rules, have not been complied with by the competent authority before passing the impugned order. Therefore, the order is in violation of non-compliance of the relevant Rules and in violation of the principles of natural justice. She further contended that as a legal heir of the service holder, the petitioner is having right to claim the benefits under the Ryotwari patta and as per the provisions of law, he can ask for discharge of the condition contemplated under the provisions of the Act and therefore, the impugned order passed by the Tahsildar cannot be faulted with.
6. On the other hand, Ms.V.M.Velumani, learned Spl.G.P. appearing for respondents 1, 3 and 4 contended that the patta granted to the Inamdar was a conditional grant and the very tenet of the grant was that the Inamdar should perform the Poojas to the Temple and therefore, as service holder, Ryotwari patta was granted. In case of any breach of the condition, the authority competent can initiate proceedings and cancel the patta and hence, the action of the respondents in cancelling the patta, is in accordance with law. She also submitted that as per Rule 16 of the Rules, option shall be exercised within six months from the date on which the grant was made and during the lifetime of the service holder, there was no option and in the absence of any such option, the clarification sought for by the Tahsildar is contrary to the provisions of the Act and the Rules, which cannot be sustained, and therefore, the first respondent, after giving due notice, enquiry and following the procedures, has passed the order cancelling the patta.
7. Mr.S.Kandasamy, learned Spl.G.P. appearing for the second respondent contended that the properties stand in the name of the Temples and they were the original owners and thereafter, the lands in question were granted to the petitioner's father with a condition to perform the Poojas to the Temples and no one under the grant, can sell the properties of the Temples to defeat the very object of the existence of the Temples, and therefore, the performance of Poojas be continued with an object that the Temples survive with the properties with the sole condition that the Ryotwari can enjoy the properties as service holder and not as any other capacity and therefore, the act of the petitioner in selling the property is against the interest of the Temples as well as the object of the grant made in favour of the petitioner's father.
8. Mr.A.S.Kailasam, learned counsel appearing for the sixth respondent also made similar contentions and submitted that the properties are under the control of the Temples and if it is granted to any Ryotwari with condition to do service to the Temples, it will not be taken away by any person under the guise of legal heir and particularly to sell the same to the persons for their monetary gain and enrichment.
9. On the above background of pleadings, I have heard the learned counsel appearing for the parties and perused the records and the relevant provisions of law.
10. The circumspection of the facts, reveals that the lands in Title Deed No.858 of an extent of 23.09 acres and Title Deed No.859 of an extent of 15.86 acres of Nallur Village, Hosur Taluk, Dharmapuri District, stand in the name of Arulmighu Sri Devaraja Swamy Temple and Arulmighu Sri Someswara Swamy Temple, respectively, and thereafter, the Settlement Tahsildar-I, Salem, in his proceedings dated 30.7.1968 in SR.No.545/MI Act 30/63 and S.R.No.546/MI Act 30/63, granted Ryotwari patta to Mr.Sudanatha Dikshithar, S/o Senga Dikshithar, who is the father of the writ petitioner, with a condition that he should perform the Poojas to the Temples and it appears that the said Sudanatha Dikshithar has continued with the same position as service holder till his death on 18.4.1995 and after the demise of the said Sudanatha Dikshithar, the petitioner, being the legal heir of the said deceased, got patta transferred in his name, vide Hosur Tahsildar's proceedings in D.Dis.No.4077/05, dated 13.7.2007.
11. It is seen that the Ryotwari patta was issued on condition that the petitioner's father Sudanatha Dikshithar should perform service to the Temples, namely Sri Devaraja Swamy Temple and Sri Someswara Swami Temple, as per the Ryotwari patta issued under Section 8(2)(ii) of the Act. Therefore, the condition imposed on Ryotwari is specific and violation of the condition defeats the very basic tenet upon which the Ryotwari was granted.
12. While so, the respondents have now taken action as there was breach of condition and therefore, the Ryotwari patta granted in the name of the petitioner in the absence of any option within the prescribed time limit, during the lifetime of Sudanatha Dikshithar, cannot now be taken by the legal heir of the said service holder to obtain grant in the name of the legal heir of the service holder to take absolute right of the entire properties, and therefore, the action taken by the first respondent in cancelling the Ryotwari patta in the impugned proceedings, dated 9.7.2008, is valid in law or not, has to be examined.
13. The Act contemplates the grant of patta in favour of Ryotwari under Section 8(2)(ii) of the Act and the other conditions under Section 21 of the Act, which shall be complied with in respect of any minor Inam, which was held immediately before the appointed day by the individual, namely the service holder, on condition of rendering service to the religious, educational or charitable institution. The service holder shall subject to the provisions of sub-section (3) of Section 21 of the Act, be bound to continue to render the service after the appointed day, and sub-section (3)(i) of Section 21 contemplates that where a service holder is entitled to Ryotwari patta under Section 8 of the Act, in respect of any land, he shall have the option either to pay to the religious institution the amount specified in sub-section (4) and on such payment, the land shall, notwithstanding anything contained in sub-section (7) be discharged from the condition of service, or to hold the land and continue to render service subject to the provisions contained in sub-sections (1), (2), (6) and (7). Further, sub-section (7)(a) to Section 21 of the Act stipulates that, for so long as the service holder renders the service, he shall be entitled to occupy permanently the lands in respect of which he is entitled to patta under Section 8, subject, however, to the payment of the assessment fixed under Section 16 or under Section 16-A, as the case may be in respect of such lands. The option referred to in sub-section (3) of Section 21 of the Act shall be in Form-11, and it shall be exercised within six months from the date on which he was granted Ryotwari patta.
14. A reading of the above provisions of law makes it clear that the service Inams are to be under the above Sections and Section 21(6)(b) of the Act provides that if the service holder fails to render service, the prescribed officer shall, after such enquiry and after such notice to the service holder, as may be prescribed in this behalf, notify such failure in such manner as may be prescribed, and he shall then declare that tasdik allowance payable to the institution in respect of the period subsequent to the failure, shall be absolute property of the institution and the institution shall be at liberty to make such arrangement as it thinks fit for the performance of the service.
15. Similarly, Section 21(7)(a) of the Act provides that for so long as the service holder renders the service, he shall be entitled to occupy permanently the lands in respect of which he is entitled to a patta under Section 8, subject however to the payment of assessment fixed under Section 16 or under Section 16-A, as the case may be, in respect of such lands. Section 21(7)(b) of the Act contemplates that if the service holder fails to render the service, the prescribed officer, shall, after such enquiry, and after such notice to the service holder as may be prescribed in this behalf, notify such failure in such manner as may be prescribed, and he shall then declare that the service holder's right to occupy permanently the land under clause (a) shall cease and determine, and the institution shall be at liberty to make such arrangement as it thinks fit for the performance of the service and shall be entitled to hold the lands as its absolute property, subject, however, to the payment of the assessment fixed therefor under Section 16 or Section 16-A as the case may be.
16. In the instant case, the first respondent being the competent authority, has taken into consideration all the above provisions of the Act and the Rules and proceeded to assess the situation and accordingly, the Sub-Collector, Hosur on 1.4.2008, conducted enquiry and found that the Tahsildar, Hosur, had not scrupulously followed the instructions and the procedures contained in Rules 16 and 33(1) to (7) of the Rules while fixing the fair rent and the Tahsildar, Hosur, has erroneously fixed the fair rent under Section 8(3) of the Act and this Section clearly deals only with the recovery of arrear amount. The order of the Tahsildar, Hosur, in fixing the fair rent and transferring the Ryotwari patta in the name of the petitioner, has no bearing in the eye of law, and therefore, the Sub-Collector, Hosur, cancelled the patta, by order dated 9.7.2008.
17. To examine the above position, it is to be seen that the petitioner's father, who was having the right of the Ryotwari patta with condition as a service holder, died on 18.4.1995 and thereafter, the petitioner applied to Hosur Tahsildar and he conducted the proceedings and fixed the fair rent to the above lands.
18. Section 8 of the Act contemplates the power of grant of Ryotwari patta and under Section 8(1), subject to the provisions of sub-section (2), every person who is lawfully entitled to "Kudiwaram" in an Inam land immediately before the appointed day whether such person is an Inamdar or not, shall, with effect on and from the appointed day, be entitled to Ryotwari patta in respect of that land and Section 8(2) of the Act provides that notwithstanding anything contained in sub-section (1) in the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 (Tamil Nadu Act 22 of 1959) and in the Tamil Nadu (Transferred Territory) Incorporated and Unincorporated Devaswoms Act, 1959 (Tamil Nadu Act 30 of 1959), the provisions mentioned therein shall apply in case of lands in an "Iruvaram" minor Inam granted for the support or maintenance of religious institution or for the performance of a charity or service connected therewith or of any other religious charity and sub-clause (ii) to Section 8(2) provides that in the case of any other land, the institution or the individual rendering service shall, with effect on and from the appointed day, be entitled to a Ryotwari patta in respect of that land.
19. The object of the above provisions of law clearly indicates that the Inams are granted for the support or maintenance of religious institution or for the performance of a charity or service connected therewith or of any other religious charity, and it was acted upon with condition to the Ryotwari at the time of grant of patta and the option is available to him under Rule 16 of the Rules, which provides that the Ryotwari shall exercise his option within six months from the date on which he was granted Ryotwari patta.
20. In the instant case, the Ryotwari who was having a right of conditional patta, has not exercised his option for change, as per Rule 16 of the Rules in the form prescribed and therefore, the conditional Ryotwari patta granted to the petitioner's father has become final and whether the claim of the petitioner that he can also apply for grant of patta or transfer the same in his name with similar option available to the original Ryotwari, with an option to change the condition to form of patta with fair rent fixation in order to gain the absolute right over the lands in favour of him, can be done, as the Settlement Officer has assigned the land with condition.
21. Whether such an option is made to the competent authority and whether such an option is available to the petitioner after the prescribed time limit as per the Rules, have to be examined. It is pointed out that as per Rule 43 of the Rules, the power is vested with the Tahsildar of the local jurisdiction for accepting the option exercised by the service holder with regard to Section 21(3) of the Act.
22. In this case, for fixation of fair rent or to accept the option exercised by the service holder under Section 21(3) of the Act, the Tahsildar is competent to decide the option exercised by the service holder. The question of exercising the option by a service holder, is a matter concerned with the petitioner's claim, which is to be examined as per the above provision. In view of the above power conferred upon the Tahsildar, the Tahsildar, Hosur, has taken up the application made by the petitioner and considered the claim of the petitioner for accepting the option of change over from the service holder to fair rent fixation. The Tahsildar, Hosur, in his proceedings dated 5.8.1996 in ROC.469/96 C2, passed an order to the effect that as per their office proceedings dated 5.7.1996 in ROC.469/96 C2, the fair rent was fixed in respect of G.Nos.33 etc., of Nallur Village, Hosur Taluk, for the purpose of deleting the condition imposed in patta No.232 imposing that the pattadar should perform Poojas to Sri Devaraja Swamy Temple. It is also stated in the said proceedings dated 5.8.1996, that in his application, the writ petitioner-S.Nagaraj has stated that he has remitted a sum of Rs.54,503/- in chalan No.215, dated 5.8.1996 in respect of S.No.425/1A and another sum of Rs.24,503/- in chalan No.217, dated 5.8.1996 in respect of S.No.420/3B of Nallur Village, Hosur Taluk at the State Bank of Mysore, Hosur and requested to delete the conditions aforesaid from the patta in respect of S.Nos.425/1 and 426/3B. It is further stated in the said proceedings dated 5.8.1996 that inasmuch as the entire amount fixed as fair rent in respect of G.Nos.425/1A and 426/3B of Nallur Village, Hosur Taluk, has been remitted by the applicant, it was ordered that the condition of performing Poojas to Devaraja Swamy Temple for these survey numbers, were ordered to be deleted and these two survey numbers were ordered to be registered in the last patta of the son of Sudanatha Dikshithar.
23. In the proceeding of the Tahsildar, Hosur, dated 5.7.1996, taking into account the petitioner as the sole legal heir of the deceased pattadar Sudanatha Dikshithar, who has then applied for the fixation of fair rent to the lands mentioned therein to get discharge the condition imposed in the Ryotwari patta issued and also taking note of a similar case in which the same issue was involved, the Assistant Settlement Officer, Salem, in his proceedings in Roc.8376/77, dated 23.11.1977, has stated that the omission to incorporate the option to be exercised by the grantee is subject to Section 21(3) also and it goes without saying that the orders issued under Section 8(2)(ii) of the Act on condition of service, was subject to Section 8(5) read with Section 21(3) of the Act and based on the same, the Tahsildar's predecessor in his Roc.No.20491/77, dated 20.4.1979 issued orders fixing the fair rent for the lands covered in that order and hence, the petition requesting to fix fair rent was entertained. Accordingly, a notice in Form XXIV as required under Rule 33(5) of the Act was issued to the petitioner on 1.2.1996 and the petitioner appeared before the Tahsildar on 16.2.1996 and gave a statement expressing his willingness to pay the fair rent to be fixed to get discharge the condition imposed for rendering service to the Temples.
24. It is further stated in the proceedings dated 5.7.1996 that as per the Schedule to the Act which deals with the provisions relating to the determination of fair rent, the normal gross produce in a year has to be taken into account for fixing the fair rent and the Agricultural Officer (T & V), Hosur was addressed by the Tahsildar's Office Roc.496/96 C2, dated 1.2.1996 and the Agricultural Officer (T & V), Hosur, in his report dated 27.2.1996, has furnished the gross produce of the lands in a normal year for the purpose taking Fasli 1405 as the normal year. The value of the gross produce as furnished by the Agricultural Officer (T & V), Hosur, in his report dated 27.2.1996, has been taken into account in fixing the fair rent to be fixed according to the provisions in the Schedule to the Act. Accordingly, the fair rent was fixed for the dry lands for which Ryotwari patta was issued by the Settlement Tahsildar, Salem, in his order, as per the Schedule attached to the said proceedings dated 5.7.1996. Thiru.S.Nagaraj, son of Late Sudanatha Dikshithar, Hosur, was directed to pay the amount noted in the Schedule, i.e. Rs.3,47,695.80 or Rs.3,47,696/- under Section 8(2)(i)(b) of the Act and the above amount was to be paid in ten annual instalments together with interest at 5% per annum as if it were an arrear of land revenue as per sub-section (3) of Section 8 of the Act.
25. In respect of the other lands in S.Nos.65, 72, 73, 74 and 329, the fair rent was fixed as per the proceedings of the Tahsildar, Hosur, dated 29.6.2007 and the amount was remitted as stated in the proceedings of the Tahsildar, Hosur, dated 13.7.2007, but not looking into Rule 16 of the Rules, which contemplates that an Inamdar can exercise option within six months from the date of grant.
26. The petitioner claims that after the option was exercised by him, the same was considered by the Tahsildar as per the power conferred upon him under Rule 43 of the Rules and the fair rent was fixed and the option exercised by him has been determined and thereafter, the petitioner has been discharged from the condition of doing Pooja service to the Temples. Therefore, the impugned order passed by the Sub-Collector is contrary to the fair rent fixation and the discharge of the condition and entirely, the right has been vested with the petitioner in respect of the lands, which was the matter before the Sub-Collector. In such a situation, the Sub-Collector is empowered to proceed to enquire into the matter, by following the procedures contemplated under law. Therefore, it has to be examined as to whether the impugned order is passed in compliance with the procedures contemplated under Rule 19(1) to (6) of the Rules.
27. The claim was made by the petitioner after the death of his father on 18.4.1995, namely, his application for transfer of patta, fair rent fixation and thereafter his application for discharging the condition as a service holder, which was granted to the original pattadar, namely the petitioner's father and thereafter, the petitioner has remitted the required amount to the account of the competent authority. It was considered by the Sub-Collector in the impugned order based on enquiry conducted by the Sub-Collector on 1.4.2008 and after enquiring the petitioner about his performance of the service of Poojas to the Temples, the Sub-Collector, while proceeding further, has taken into account the proceedings of the Tahsildar, Hosur based on the petitioner's application dated 2.1.1996 and 31.3.2005 and it was the opinion of the Sub-Collector that the Tahsildar, Hosur, has not scrupulously followed the instructions and procedures contained in Rules 16 and 33(1) to (7) of the Rules and the Tahsildar has erroneously fixed the fair rent under Section 8(3) of the Act, which Section deals with the recovery of arrear amount and therefore, the order of the Tahsildar both in fixation of fair rent and transferring the Ryotwari patta in the name of the petitioner, has no bearing in the eye of law, and therefore, the Sub-Collector cancelled the order issuing patta to the petitioner.
28. Even assuming that the entire proceedings of the Tahsildar in the Sub-Collector's opinion appear to be wrong and not in accordance with the provisions of the Act and the Rules, both in fixation of fair rent and transferring the Ryotwari patta, and exercising the option after the expiry of the prescribed period before passing any order. The Sub-Collector has to follow the procedures contemplated under Rule 19 of the Rules, which provides as to how an enquiry under Sections 21(6)(b) and 21(7)(b) of the Act has to be conducted and what are the procedures to be followed.
29. Rule 19(1) of the Rules provides that the enquiry under clause (b) of sub-section (6) of Section 21 and clause (b) of sub-section (7) of Section 21 shall be either suo-motu or on application from the institution concerned or from other persons interested and shall be conducted by the Revenue Divisional Officer of the division concerned. Rule 19(2) of the Rules provides that notice regarding the date, time and place of enquiry shall be in Form No.12 in respect of enquiry under clause (b) of sub-section (6) of Section 21 and in Form No.13 in respect of the enquiry under clause (b) of sub-section (7) of Section 21 and shall be served on the service holder concerned. A copy of the notice shall also be served on the applicant and on the institution, if the institution is not the applicant. Rule 19(3) of the Rules contemplates that the Revenue Divisional Officer shall make a summary enquiry into the matter and he shall hear the service holder, the institution and other person interested, if any, and give his decision after giving them a reasonable opportunity for adducing evidence. Rule 19(4) of the Rules states that if the decision aforesaid is that there has been failure to render the service by the service holder, the Revenue Divisional Officer shall notify such failure in Form No.14 in respect of cases falling under clause (b) of sub-section (6) of Section 21 and in Form No.15 in respect of cases falling under clause (b) of sub-section (7) of Section 21 and shall publish such failure. Rule 19(5) of the Rules provides that the decision of the Revenue Divisional Officer shall be communicated to the parties concerned. Rule 19(6) of the Rules provides that the declaration referred to in clause (b) of sub-section (6) of Section 21 and in clause (b) of sub-section (7) of Section 21 shall be made immediately after the publication of the notification referred to in sub-rule (4) and shall be in Form No.16 or 17, as the case may be and the copies of the declaration shall be served on the service holder and on the institution.
30. While examining the above position, it has to be determined whether the impugned order has been passed by the authority concerned by following the procedures contemplated under Rule 19 of the Rules. On verification of the entire records, in page 62, it is found that there was a notice of enquiry, which deals with the notice of fixation of fair rent and not in respect of the failure of the service holder in performing the condition.
31. It is pointed out by learned counsel for the petitioner that the Forms in Form No.12 as well as Form No.13, have not been scrupulously followed in the manner as prescribed for issuance of notice as contemplated in Rule 19(2) of the Rules and also the enquiry to be conducted as contemplated under Rule 19(3) of the Rules and enquiry is also to be conducted in respect of the failure of service holder to perform Pooja to the Temples and thereafter, the decision taken shall be communicated to the parties concerned.
32. On a perusal of the entire records, what transpires is that though the procedure prescribed under Form No.17 is followed by the respondents, the procedures contemplated under Rule 19 of the Rules, have not been followed by the competent authority before cancelling the patta in the name of the petitioner. Of course, it is a matter for the competent authority to go into the very object and tenet of the grant of conditional Ryotwari patta for a particular institution, namely the Temples in the instant case and if there is a failure on the part of the petitioner in respect of such performance and if the option is not exercised in the manner as provided under Rule 16 and thereafter, whether such option can be accepted beyond the prescribed time limit, are all the matters for the concerned authority to examine and enquire, after following the procedures and thereafter, it can be decided on what right the petitioner is entitled to. The respondents having not followed the requisite procedures as provided under the Act and the Rules, the impugned order dated 9.7.2008 passed by the first respondent, i.e. the Sub-Collector, Hosur, suffers from procedural irregularity and infirmity and the same cannot be sustained and the matter requires re-consideration by the competent authority.
33. It is also to be further noticed that the principles of natural justice have not been followed by the respondents while passing the impugned order. The Act contemplates a particular procedure to conduct enquiry and hear the parties concerned and thereafter, a decision is to be taken by the competent authority and such a decision is also to be communicated. If that procedure is not followed, it amounts to violation of principles of natural justice. Law is well settled that if the procedures contemplated under the Act/Rules are not adhered to by the competent authority, it amounts to violation of principles of natural justice. This position of law is fortified by the judgment of the Apex Court reported in 2010 (5) SCC 791 (Mysore Urban Development Authority Vs. Veer Kumar Jain).
34. For all the reasons stated above, the impugned order passed by the first respondent is set aside. However, looking into various factors and the object of the conditional Ryotwari patta and the manner in which the option has been exercised, the matter requires detailed re- consideration by the competent authority, and therefore, the matter is remanded to the first respondent for fresh consideration and passing orders, after following the procedures contemplated under Rules 16, 19 and 33(1) to (7) of the Rules and the other provisions of the Act and the Rules, after giving an opportunity of hearing to all the parties concerned and on a perusal of the entire records. It is open for the parties in the Writ Petition, the persons concerned and the stake-holders in this case to raise all the contentions which are all agitated in this Writ Petition, before the competent authority. The competent authority shall pass appropriate orders, uninfluenced by any of the observations made in this Writ Petition, on merits and in accordance with law, as expeditiously as possible.
35. With the above observations and direction, the Writ Petition is disposed of. No costs.
2.8.2011 Index: Yes Internet: Yes cs To
1. The Sub-Collector, Hosur.
2. The Joint Commissioner, Hindu Religious & Charitable Endowments Department, Salem.
3. The Tahsildar, Hosur.
4. The Village Administrative Officer, Nallur, Hosur Taluk.
5 . Arulmigu Someswaraswamy Temple rep. by its Executive Officer Hosur Taluk, Krishnagiri District.

V.DHANAPALAN, J cs W.P.No.19955 of 2008 2.8.2011