S.Kamala v. The Executive Engineer Kallalagar Devasthanam Aalagar Koil Madurai District

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 10.11.2010 CORAM: THE HONOURABLE MR.JUSTICE P.JYOTHIMANIW.P.No.10290 of 2003S.Kamala.. PetitionerVs.1. The Executive Engineer Kallalagar Devasthanam Aalagar Koil Madurai District.2. The Commissioner Hindu Religious and Charitable Endowments Department Chennai – 600 034. .. RespondentsPRAYER: Petition under Article 226 of the Constitution of India forissue of a writ of Mandamus as stated therein.For Petitioner: Mr.S.Parthasarathy for Ms.KalpanaFor Respondents: Mr.P.Gopalan for 1st respondent Mr.T.Chandrasekaran Special Government Pleader(HR & CE) for 2nd respondent ORDERThis writ petition is for a direction against the respondents topay the entire accrued interest in respect of the compensationamount, including the enhanced compensation payable in respect of theland comprised in R.S.No.167/1 measuring 4.16 Acres situated atThallakulam Village, Madurai District.2.1. The petitioner's husband is stated to be a service holderperforming service of Nachiarparikalam and Sannadhi Paricharakamsince 1956 at Arulmigu Kallalaghar Thirukoil till his death on20.3.1992. It is stated that her husband's predecessors were grantedservice inam in respect of the land measuring 4.16 Acres comprised inR.S.No.167/1, Thallakulam Village, Madurai for the service of https://hcservices.ecourts.gov.in/hcservices/ Paricharakam Pagoda of Kallalaghar Devasthanam and petitioner'shusband and his predecessors were in exclusive possession andenjoyment of the said land and they were utilizing the incometherefrom in lieu of the services rendered.2.2. It is stated that the petitioner's husband has sold anextent of 2.53 Acres of land out of 4.16 Acres to one Gopal Naidu on1.3.1960 and that sale deed was not questioned by the firstrespondent/Devasthanam. According to the petitioner, her husbandbeing the service holder was entitled to the absolute enjoyment. TheGovernment has acquired the land in the year 1963 and that resultedin claiming compensation by the first respondent/Devasthanam, thepetitioner's husband and the alienee. LAOP No.564 of 1965 was filedon the file of the I Additional Sub Court, Madurai under Sections 30and 31 of the Land Acquisition Act and there was an apportionment ofthe compensation among the claimants. As against which, the alienee– Gopal Naidu filed A.S.No.769 of 1967, the first respondent filedAppeal in A.S.No.15 of 1968 and the petitioner's husband filedA.S.No.631 of 1972 before the High Court. 2.3. By judgment dated 17.11.1972 in A.S.Nos.769 of 1967 and 15of 1968, the Division Bench of this Court has held that the alieneeis not entitled to claim any compensation and that the firstrespondent/ Devasthanam is also not entitled to claim compensation.However, there was a direction issued to the first respondent forsecuring the compensation amount so that the service may becontinued. In the appeal filed by the petitioner's husband inA.S.No.631 of 1972, there was an order stating that in respect of hisparicharakam service in the temple, so long as he continues toperform his service, he will be entitled to receive interest on thecompensation amount from the first respondent/ Devasthanam, which thefirst respondent/Devasthanam is receiving by way of interest from theinvestment of the entire compensation amount in respect of 4.16 Acresin R.S.No.167/1, Thallakulam Village.2.4. According to the petitioner, by virtue of the judgment infirst appeals, the first respondent/Devasthanam is bound to pay theamount to her husband by return from the investment of compensationamount. It is stated that the interest amount of ` 75,993.75 lyingin the credit of L.A.O.P.No.477 of 1965 on the file of the IAdditional Sub Court, Madurai, was withdrawn by the first respondentin I.A.No.250 of 1986 and out of the same the petitioner's husbandwas stated to have been paid an amount of ` 60,000/- during his lifetime.2.5. The petitioner's husband died on 20.3.1992, leaving behindhim six minor daughters aged between 2½ years and 17 years. It isstated that the first respondent is refusing to pay the amount on theground that there is a clerical error in the decree and in spite ofher representation, the amount has not been paid. It is also stated https://hcservices.ecourts.gov.in/hcservices/ that the first respondent has admitted its liability in I.A.No.250 of1985 in I.A.No.403 of 1985 in L.A.O.P.No.477 of 1965 stating thatentire compensation amount has to be invested and the accruedinterest has to be paid to the petitioner's husband, being theservice holder.2.6. It is also stated that the alienee is not entitled toreceive compensation amount in respect of 2.53 Acres purchased fromthe petitioner's husband. It is stated that the compensation amountdeposited in the lower court was withdrawn by the first respondentand the same was renewed periodically accruing more than ` 10 Lakhswith accrued interest ever since 1963, viz., for the past 40 years.Hence, the present writ petition is filed for a direction as statedabove.3.1. In the counter affidavit filed by the Executive Officer ofthe first respondent/Devasthanam, it is stated that the firstrespondent is a listed Public Temple notified under Section 46 of theTamil Nadu Hindu Religious and Charitable Endowments Act, 1959 and isadministered by the Executive Officer.3.2. While it is admitted that the predecessors of thepetitioner's husband were granted service inam in respect of the landmeasuring 4.16 Acres comprised in R.S.No.167/1, Thallakulam Villagem,Madurai for rendering service in the first respondent/Devasthanam, itis stated that contrary to the said condition the petitioner'shusband has sold 2.53 Acres of the temple lands under the sale deeddated 1.3.1960 to one Gopal Naidu. It is the case of the firstrespondent that the petitioner's husband being a service holder withpermissible possession has no right to sell the said lands.3.3. It is stated that thereafter the entire lands were acquiredby the Government and the first respondent/Devasthanam, being theowner, has claimed compensation in respect of the entire amount.However, it is stated that the petitioner's husband has claimedcompensation only in respect of 1.63 Acres and his alienee hasclaimed compensation in respect of the extent purchased by him. TheAdditional Sub Court, Madurai in L.A.O.P.No.564 of 1965 has held thatthe first respondent is not entitled to claim compensation amountsince the grant of land to the petitioner's husband is personal innature.3.4. It was against the said order, the alienee filed appeal inA.S.No.769 of 1967, the first respondent/Devasthanam filed A.S.No.15of 1968 and thereafter, the petitioner's husband filed A.S.No.631 of1972 before this Court. The appeals filed by the first respondent aswell as the alienee came to be dismissed holding that the alienee hasno right to receive from the petitioner's husband any title andstating that the first respondent was also not entitled to anycompensation amount. But in the appeal filed by the petitioner's https://hcservices.ecourts.gov.in/hcservices/ husband in A.S.No.631 of 1972, even though it was held that the firstrespondent was not entitled to receive the compensation amount, itwas observed that so long as the petitioner's husband continues toperform the services, he will be entitled to receive from the firstrespondent/Devasthanam such amount as the first respondent mayreceive by way of return from the investments made in the LAOP. 3.5. It is pursuant to the direction of the High Court, thefirst respondent has withdrawn ` 60,007.25 towards proportionateinterest and paid the same to the petitioner's husband by way ofcheques and the petitioner's husband has received it without raisingany dispute during his life time. It is also stated that thepetitioner's husband has in fact restricted his claim only in respectof 1.63 Acres retained by him and it was only for that extent theproportionate interest was paid to him. For the representation madeby the petitioner after the death of her husband, which was made byher on 1.3.1993, a reply was given on 15.3.1993 stating that thepetitioner was entitled to only the proportionate interest in respectof the land retained by him. Apart from the said amount, it is statedthat the petitioner's husband was also paid ` 500/- towards hismonthly remuneration, a further sum of ` 750/- to ` 800/- per monthtowards his share in the issue of Archana Ticket and also his annualshare of ` 14,000/- towards the sale of prasadam. It is stated thatthe amount due to the petitioner's husband has been paid till hisdeath.3.6. It is also stated that after the demise of the petitioner'shusband, qualified persons have been appointed to continue theAmudhar service in the first respondent/Devasthanam. It is statedthat even though the petitioner claimed that after the demise of herhusband she is entitled to perform the Paricharakam Service in thetemple through an agent or by proxy, that claim was rejected andagainst the same, she filed W.P.No.20525 of 1992, which was alsodismissed on merits. 4. It is the contention of the learned counsel for thepetitioner that when in the judgment in the first appeal the rightclaimed by the first respondent/Devasthanam has been rejected holdingthat the grant is personal in nature, thereby rejecting the claim ofthe alienee – Gopal Naidu also, the petitioner's husband should beentitled to receive the interest out of the compensation in respectof the entire extent of land, viz., 4.16 Acres, and that when oncethe High Court judgment holding that the grant given to thepetitioner's husband is personal in nature has become final, thefirst respondent/Devasthanam loses its right. 5.1. On the other hand, it is the contention of the learnedcounsel for the first respondent/Devasthanam that the petitioner'shusband died on 20.3.1992 and the petitioner has chosen to file thewrit petition in the year 2003, after eleven years, and therefore, https://hcservices.ecourts.gov.in/hcservices/ the writ petition is liable to be dismissed on the ground of laches.5.2. It is his submission that when the petitioner's husband hasacted against the grant of inam, which is based on the service to berendered by him to the temple, by alienating a part the land to GopalNaidu, he loses his right in respect of the property, which includesthe interest. 5.3. It is his submission that unless and until the petitionertakes steps to rectify the defect in the decree she has no right. Itis his further submission that when the petitioner's husband himselfhas not claimed the right in respect of the alienated extent of land,the petitioner, who steps into his shoes, cannot claim better right.6. The fact that originally 4.16 Acres of land has been given tothe petitioner's husband as service inam is not in dispute. However,the first respondent/Devasthanam has claimed kudivaram right, whilethe grant given to the petitioner's husband was personal for theservices to be rendered by him. Therefore, it is clear that thepetitioner's husband would not have sold 2.53 Acres of land to GopalNaidu, which is not permissible in law. It is also not in disputethat the High Court has already held that the said alienee has noright over the land.7. On the acquisition of the entire lands by the Government, thedispute has revolved around the compensation amount which has beendeposited by the acquiring authority and during the life time of thepetitioner's husband, he has received the interest amount till hisdeath, namely on 20.3.1992, in respect of the proportionate extent of1.63 Acres of land, which was retained by him after sale of 2.53Acres to the said Gopal Naidu.8. The main contention of the learned counsel for the firstrespondent is that when the petitioner's husband himself hasrestricted his claim only in respect of 1.63 Acres of land, thepetitioner, after the death of her husband, cannot claim compensationamount for a larger extent. 9. It is also admitted that as far as 1.63 Acres of land isconcerned, the proportionate amount due to the petitioner's husbandhas been paid till the date of his death and the only remaining pointto be decided is in respect of 2.53 Acres of land which has been soldby the petitioner's husband to Gopal Naidu under a sale deed executedby him on 1.3.1960.10. Aggrieved by the order of the I Additional Sub Judge,Madurai dated 24.1.1967 in L.A.O.P.No.564 of 1965 apportioning thecompensation among the claimants, the petitioner's husband, thealienee and the first respondent/Devasthanam filed appeals. Whilethe appeals filed by the alienee and the first respondent/ https://hcservices.ecourts.gov.in/hcservices/ Devasthanam stood dismissed by holding that the first respondent/Devasthanam has no kudivaram right, in the appeal filed by thepetitioner's husband, viz., A.S.No.631 of 1972, this Court, in thejudgment dated 14.12.1972, has ordered as follows:"The Appellant in this appeal was claimant No.1 inL.Acq.O.P.564 of 1965 on the file of the SubordinateJudge, Madurai, which was a reference under Section 30of the Land Acquisition Act, 1894. Arising out of thesaid order, the second claimant Gopal Naidu and the 24thclaimant, the Executive Officer of the Devasthanam, hadfiled Appeals A.S.No.769 of 1967 and 15 of 1968respectively. By our judgment dated 17.11.1972, we heldthat Gopal N. who claimed to be an alienee from thepresent appellant had not title to the property and assuch he was not entitled to claim any portion of thecompensation. We also held that so far as theDevasthanam was concerned though it was not entitled toreceive the compensation amount, it was entitled to havesuitable orders passed for securing the amount so longas services in the temple may be continued. We gaveliberty to the Devasthanam to move the court before toget suitable orders for investing the amount. Theappellant herein, who is the first claimant, is theservice-holder, our decision in the said appeals appliesto this appeal also, and so long as the appellant hereincontinues to perform the services, he will be entitledto receive from the Devasthanam such amount as theDevasthanam may be receiving, by way of return, from theinvestments which we have directed to be made as per ourJudgment in the two appeals referred to above."11. The point which has been clarified in the said judgment,which has become final between the parties, is that so long as thepetitioner's husband continues to perform his services to the temple,whatever amount of compensation which the temple may be receivingwill be receivable by the petitioner's husband. By virtue of thejudgment dated 17.11.1972 in A.S.Nos.769 of 1967 and 15 of 1968 filedby the first respondent and the alienee, by which the alienee's rightto claim either compensation or interest came to be rejected,ultimately the first respondent/Devasthanam has been receiving theinterest amount in respect of the entire 4.16 Acres of land andtherefore, as per the judgment of the High Court, whatever amount thefirst respondent/Devasthanam will be receiving, which is in respectof the entire extent, the petitioner's husband was entitled to.However, while drafting the decree, this Court has drafted it asfollows:"1) that the Appellant (first claimant) be and is herebyentitled, so long as he continues to perform the https://hcservices.ecourts.gov.in/hcservices/ paricharakam services in the Alagarkoil, Madurai Dt., toreceive from the Kallalagar Devasthanam, Alagarkoil, the24the respondent herein, such amount as the Devasthanammay be receiving, by way of return, from the investmentof the compensation amount for 1.63 Acres inR.S.No.167/1, Tallakulam Village, acquired herein"12. It is true that in normal circumstances the decree has to beamended suitably, since there is an apparent contradiction betweenthe contents of the judgment elicited above and the decree drafted bythe Court. While the judgment is clear that whatever amount theDevasthanam will be receiving in respect of the entire extent thepetitioner's husband will be entitled to, the decree restricts suchbenefit only in respect of 1.63 Acres of land.13. In the common judgment dated 17.11.1972 in A.S.Nos.769 of1967 and 15 of 1968, based on which the subsequent judgment waspassed in A.S.No.631 of 1972, as stated above, the Division Bench haspassed the following order:"12. In the result A.S.No.769 of 1967 is dismissed.There will be no order as to costs. So far as theDevasthanam is concerned, though it is not entitled tothe compensation amount, it is entitled to have suitableorders being passed for securing the amount so that theservice may be continued. The Court below will passsuitable orders under Section 32(1) of the LandAcquisition Act for investing the amount. TheDevasthanam is at liberty to move the Court below forthis purpose. A.S.No.15 of 1968 is ordered accordingly.No order as to costs."thereby making it clear that the Land Acquisition Court shall passappropriate orders under Section 32(1) of the Land Acquisition Actfor the investment of the amount, with liberty to firstrespondent/Devasthanam to move the Court for the said purpose.14. It is not in dispute that pursuant to the said judgment, onthe first respondent/Devasthanam moving the Court, the compensationin respect of the entire extent of 4.16 Acres of land was depositedbefore the Court and the first respondent/Devasthanam is receivinginterest in respect of the entire extent, while admittedly till thedeath of the petitioner's husband, the petitioner's husband was paidonly proportionate share of interest in respect of 1.63 Acres ofland. 15. Under these circumstances, I am of the considered view thatbecause the petitioner's husband has not chosen to claim interest inrespect of the entire extent of 4.16 Acres of land, it does not meanthat the petitioner, being his legal heir, on whom the right to https://hcservices.ecourts.gov.in/hcservices/ receive the interest on the entire extent till the date of herhusband's death, viz., on 20.3.1992 vests, has ceased to have anyright. 16. Taking into consideration the special circumstances thatadmittedly the petitioner's husband has rendered services to thefirst respondent/Devasthanam till the date of his death, I am of theview that the delay on the part of the petitioner in making claim inrespect of the share due to her husband for the services renderedcannot be considered on the technical ground of laches. I am of theconsidered opinion that on the facts of the case, this is not a casewhere this court should harp on the technicality of laches fordepriving the legal right of the petitioner, being the legal heir ofthe service holder who has rendered services to the Devasthanamduring his life time and which claim accrued to him during his lifetime.17. However, as on date there is a discrepancy between thejudgment and decree in A.S.No.631 of 1972 passed by the DivisionBench of this Court. Even though on a reading of the judgment of theDivision Bench it is clear that the petitioner will be entitled tointerest up to the date of death of her husband in respect of theentire extent of 4.16 Acres of land which has been receivable by thefirst respondent/Devasthanam, unless and until the decree drafted inthe said appeal is suitably amended, it is not possible to giverelief to the petitioner in this case. In effect, the claim of thepetitioner is revolving on the decree and judgment of the DivisionBench of this Court and when there is a contradiction, it is for thepetitioner to get the decree rectified so as to approach theauthority concerned thereafter.In such view of the matter, giving liberty to the petitioner toget the decree passed in A.S.No.631 of 1972 rectified in accordancewith the judgment dated 14.12.1972 and also giving liberty to thepetitioner thereafter to approach the first respondent/Devasthanamfor payment of interest due to her husband till the date of hisdeath, the writ petition stands disposed. No costs. Sd/-Asst. Registrar//true copy//Sub Asst.Registrarsasi https://hcservices.ecourts.gov.in/hcservices/ To:1.The Commissioner Hindu Religious and Charitable Endowments Department Chennai – 600 034.2.The Executive Engineer Kallalagar Devasthanam Aalagar Koil Madurai District.1 cc to Government Pleader, Sr.No.807511 cc to Mr.P.Gopalan, Advocate, Sr.No.80456W.P.No.10290 of 2003PUR {CO}TP/23.11.2010.