High Court · 2008

IN THE HIGH COURT OF JUDICATURE AT MADRASDATE:03-4-2008CORAM:THE HON'BLE MR.JUSTICE P.JYOTHIMANIW.P.No.11193 of 2006.....1. V.P. KANDASAMY 2. P. YASODA3. THULSIAMMAL4. M. DEVAMMAL5. K. ARULKUMAR6. MEENAKSHI AMMAL7. VISHALATCHI8. V. PONNAMMAL9. GNANASUBRAMANIAM10. M.ARUMUGAM11. J. THULSIMANI12. K. MARAGATHAM13. K. MURALIDHARAN14. K. GEETHAMANI15. M. NACHIMUTHU GOUNDER16. V.P. SUNDARAM17. V.P. PALANISAMI 18. S. VISLATCHI19. M. SUBBANNA GOUNDER 20. PALANIAMMAL21. DHANAMMAL @ DHANALAKSHMI22. V.P.MURUGESAN23. NAGARAJ24. MUTHULAKSHMI25. M. KUPPATHAL26. S. MARAGATHAM27. S. RMATHAL28. SARSWATHI29. S. SOMASUNDARAM30. S. KITTUSAMY.. Petitioners Vs1. THE TAHSILDAR COIMBATORE NORTH TALUK COIMBATORE DISTRICT. https://hcservices.ecourts.gov.in/hcservices/

2. THE ASSISTANT COMMISSIONER HINDU RELIGIOUS CHARITABLE & ENDOWMENT BOARD COIMBATORE.3. SRI MUTTATHU ROYAN TEMPLE VELLAKINAR REP. BY ITS FIT PERSON COIMBATORE NORTH TALUK COIMBATORE DISTRICT.. RespondentsR3 impleaded as per order dt.16.7.2007 by AKJ in WPMP No.1526/2007Writ Petition filed under Article 226 of the Constitution of Indiapraying for issuance of a Writ of Certiorarified Mandamus calling forthe records relating proceedings of the first respondent dated8.3.2006 in Na.Ka.No.22329/05/A2 quash the same and direct the firstrespondent to carryout the changes in the revenue records as per theorders of Settlement Tahsildar No.IV, Gobichettipalayam made inS.R.No.73/68/M.I.Act/Coimbatore Taluk dated 29.9.1968 as stated therein.For petitioners: Mr.R.N.AmarnathFor respondents: Mr.Hasan Fizal,GA for R.1 Mr.T.Chandrasekaran,Spl.G.P.for R.2 Mr.R.T.Doraisamy for R.3...ORDERThe petitioners have filed the above writ petition to quash theorder of the first respondent dated 08.03.2006 and for direction to thefirst respondent to carry out the changes in the revenue records as perthe orders of the Settlement Tahsildar No.IV, Gobichettipalayam made inS.R.No.73/68/M.I.Act/Coimbatore Taluk, dated 29.09.1968.2. According to the petitioners in this writ petition, one NathaGounder of Vellakinaru Village, Coimbatore North Taluk was in possessionand enjoyment of the dry lands to an extent of 6 acres and 49 cents inS.F.No.103 and 3 acres and 46 cents in S.F.No.105, comprised inT.D.No.240 of Vellakinaru Village, Coimbatore North Taluk for a periodof 50 years from 1888. After the advent of Tamil Nadu Minor Inams(Abolition and Conversion into Ryotwari) Act,1963, the lands vested withthe Government, free from all encumbrances.2(a). Since the said Natha Gounder was enjoying the kudivaramrights, after his demise, his son Ayi Gounder was in possession of thelands under kudivaram rights. There was a civil dispute between him andone Chinnia Gounder, who filed a suit for recovery of possession inO.S.No.191 of 1887, which was decreed; the first appellate Court hasdismissed the suit and the said plaintiff Chinnia Gounder has filedS.A.No.301 1889 before this Court and the order of the first appellateCourt was confirmed, thereby holding that Ayi Gounder was in possession https://hcservices.ecourts.gov.in/hcservices/ and enjoyment of the property in his own right. 2(b). An enquiry under Section 11 of the Act was conducted by theSettlement Tahsildar No.IV, Gobichettipalayam in the year 1968. In theenquiry, the Tahsildar, based on the records, in his order dated29.09.1968 has concluded that M/s.Palani Gounder, Marappa Gounder,Nachimuthu Gounder, Perianna Gounder, Subbanna Gounder, Palani Gounderand Thangammal are entitled to ryotwari patta and he has also passedorder to that effect granting patta.2(c). In this writ petition, except the 15th petitioner and 19thpetitioner, viz., M.Nachimuthu Gounder and M.Subbanna Gounder, who weregranted patta by the Settlement Tahsildar, all other petitioners are thelegal representatives of the other persons who were granted patta by theSettlement Officer in the order dated 29.09.1968 and according to thepetitioners, they are in possession continuously from 1968, paying allpublic charges in respect of the lands.2(d). On 25.11.2005, the petitioners have represented theTahsildar, first respondent to grant patta in their name and foralteration of revenue records, such as Adangal, Chitta etc. based onthe order dated 29.09.1968. The first respondent, by the impugned orderdated 08.03.2006, has refused to change the entries in the revenuerecords and directed the petitioners to approach the Court. It is, asagainst the order of the first respondent dated 08.03.2006, thepetitioners have filed the present writ petition for direction to thefirst respondent to carry out the changes in the revenue records as perthe order of the Settlement Tahsildar dated 29.09.1968, passed inS.R.No.73/68/M.I.Act/ Coimbatore Taluk on various grounds, includingthat the first respondent is bound to implement the order of theSettlement Tahsildar passed by exercising the powers under Section 8(1)of the Act; that the first respondent has no authority to decide aboutthe correctness of the order of the Settlement Tahsildar under the Act;that by issuing the impugned notice, the first respondent has exceededhis jurisdiction; that the second respondent has abdicated his publicduty in advising the petitioners to approach the Court; and that thefirst respondent has failed to see that the authority to decide whetherthe lands are ryotwari or not has already decided the same by orderdated 29.09.1968 and it is only the duty of the first respondent toexecute the same.2(e). In the writ petition, the third respondent, Sri MuttathuRoyan Temple, Vellaikinar represented by its Fit Person was impleaded byorder dated 16.07.2007.3. The first respondent in the writ petition has filed a counteraffidavit. While disputing the factual aspects of the case referred toabove, in the counter affidavit the first respondent has admitted thatthe order of the Settlement Tahsildar dated 29.09.1968 has become final https://hcservices.ecourts.gov.in/hcservices/ and no appeal has been preferred. It is also stated that the GovernmentPleader, Coimbatore has given opinion on 07.01.2006 stating that thepatta shall be transferred jointly in the names of the applicants andthe order has to be issued by the first respondent, Tahsildar.3(a). It is the case of the first respondent that since the landswere inam lands, the Assistant Commissioner of Hindu Religious andCharitable Endowment Board, viz., the second respondent has beenaddressed a letter on 27.12.2005 and the second respondent by his letterdated 20.01.2006 has informed that the above lands were given to thetemple under Devadayam Inam, which is a service inam in respect of whichpatta should not be granted to any person, since the lands belong to thetemple.3(b). It is the case of the first respondent that thereafter theGovernment Pleader, Coimbatore by his letter dated 25.01.2006 hasconfirmed that after the Settlement Tahsildar passed order on29.09.1968, the same was notified in the Government gazette and the copywas served to the second respondent, as seen from the original orderpassed by the Settlement Tahsildar and in spite of it no appeal wasfiled and therefore, the order of the Settlement Tahsildar dated29.09.1968 has become final. He has also found that for the claim of thesecond respondent that patta is in the name of Uthandarayar Kovil, thereis no evidence and even as per the order of the Settlement Tahsildardated 29.09.1968, the Temple has not been given any right and therefore,at this later point of time the second respondent Department cannotclaim any right over the property without any evidence.3(c). In spite of it, the second respondent has raised an objectionon 14.02.2006 stating that the lands are in the name of deity to dopooja and therefore no patta should be given to anybody and it was inthose circumstances the first respondent has informed the petitionersunder the impugned order to approach the civil Court for remedy. Thefirst respondent in the counter even though has admitted that theTahsildar is bound to carry out changes in the revenue records based onthe Settlement Tahsildar's order, it is stated that the lands inquestion were given to the Temple under Devadayam Inam and the secondrespondent is the owner and since the second respondent has objected tothe same, no order can be passed.3(d). It is also stated that even though the Settlement Tahsildarhas passed orders as early as on 29.09.1968, for nearly 38 years thepetitioners have not made any representation and therefore, the claim ofthe petitioners is belated. It is also stated that inasmuch as theproperty belongs to Devadayam Inam, the consent of the Department is anessential ingredient. According to the first respondent, even if thefirst respondent makes change as per the Settlement Tahsildar's order,it will only result in further litigation. https://hcservices.ecourts.gov.in/hcservices/

4. The third respondent Temple, which was impleaded as a party, inthe counter affidavit, while denying all the averments made by thepetitioners in the affidavit filed in support of the writ petition, hasstated that the third respondent Temple has been endowed with Inam landsin T.D.No.240 and in S.F.No.103 of extent 6.49 acres and S.F.No.105extent 3.46 acres. It is an unenfranchised Devadayam Inam land.According to the third respondent, it is not as if the Kudivaram rightwas held by one Nadha Gounder, but both melvaram and kudivaram weregranted in favour of the Temple. Regarding the decision in the civilsuit, it is the case of the third respondent that it is not bound by thesame, since it was not a party. It is the further case of the thirdrespondent that the Settlement Tahsildar while passing order on29.09.1968 has not taken any steps to include the persons in managementof the Temple. According to the third respondent, the records show thatone Avinashilinga Pandaram and one Chinnia Gounder were in managementof the temple and none of them or their successors in interest wereenquired and therefore the enquiry conducted by the Settlement Tahsildarunder Section 8 of the Act should be treated as a nullity. It is thefurther case of the third respondent that the predecessors in title ofthe petitioners themselves have no right and therefore, the petitionerscannot claim any right over the property. It is the case of the thirdrespondent that in page number 22, it is mentioned as Uthandi RoyarTemple inam land. It is the further case of the third respondent thatthe Settlement Tahsildar, Gobichettipalayam has not conducted enquiry atall. No persons of temple management were enquired before grantingryotwari patta in favour of the petitioners' predecessors. The templewas not properly administered by the villagers at that time andtherefore, according to the third respondent, the H.R. & C.E. Departmenthas appointed him as Fit Person to the third respondent temple on17.2.2006. After knowing about the order of the Settlement Tahsildar on29.07.2006, the third respondent has applied for certified copy of thesaid order dated 29.09.1968, and filed appeal in CFR No.47732/06 beforethe Principal Subordinate Judge, Coimbatore against the order of theSettlement Tahsildar dated 29.09.1968, to set aside the same. Accordingto the third respondent, an appeal remedy is provided under Section 11(3) of the Act.5. Mr.R.N.Amarnath, learned counsel appearing for the petitionerswould submit that the present stand of the third respondent as well asthe first respondent as if the property belongs to the third respondentTemple cannot be sustained for the reason that in fact the SettlementTahsildar in the order passed by him dated 29.09.1968 has considered thecase of the Temple and rejected the same. He would further submit thateven though the temple was not a party, the case of the Temple wasconsidered and the Department, second respondent was informed about theorder even in the year 1968 and therefore, it is too late for the secondrespondent now to say that they are preferring appeal against the orderof the Settlement Tahsildar as per Section 11(3) of the Act. He wouldalso submit that as per Section 11(3) of the Act, as against the order https://hcservices.ecourts.gov.in/hcservices/ of Settlement Tahsildar, time limit has been given for individuals tothe extent of three months and for the Government, it is one year andthe third respondent can never think about filing of appeal at thislater point of time. The claim of the petitioners, according to thecounsel, is in respect kudivaram and what all the temple is entitled toclaim is only melvaram.6. Mr.R.T.Duraisamy, learned counsel appearing for the thirdrespondent would insist that an appeal has been filed by the thirdrespondent against the order of the Settlement Tahsildar and in themeantime, it is not open to the first respondent to issue any patta inthe name of the petitioners in consonance with the order of theSettlement Tahsildar. According to him, the Settlement Tahsildar eventhough has stated about the Temple, he has not chosen to give notice tothe persons who have been in control of the Temple at that time andtherefore, the enquiry conducted should be deemed to be not properenquiry at all.7. Mr.T.Chandrasekaran, learned Special Government Pleaderappearing for respondents 1 and 2 would submit that inasmuch as thelands belong to the temple, no patta can be granted under the Act andtherefore, the entire proceedings of the Settlement Tahsildar are to beignored.8. At the outset, it should be seen that there is no dispute thatafter the advent of the Tamil Nadu Minor Inam (Abolition and Conversioninto Ryotwari) Act,1963, which came into force from 1.1.1964, the entireinam estate including all communal lands and porambokes, waste lands,pasture lands, forests, mines and minerals, quarries, rivers andstreams, tanks and ooranies including private tanks and ooranies andirrigation works, fisheries and ferries stood transferred to theGovernment and vested with it free from all encumbrances.9. The said Act provides for appointment of Settlement Officers tocarry out the functions and duties assigned under the Act. Chapter IIIof the Act deals with the grant of ryotwari patta and enables a personwho is not entitled for issuance of patta under Sections 9 and 10, whenthe land vested with the Government to obtain ryotwari patta, firstly,if he had been personally cultivating such land for a continuous periodof 12 years immediately after 1st April, 1960; or secondly, if he hadbeen lawfully admitted into possession of such land on or before 27thSeptember, 1955 and had been personally cultivating such land eversince; or thirdly, if he had been personally cultivating the land on26th September,1955 and for a period of twelve years immediately beforethat date, and the grant of ryotwari patta should be considered in theorder of priority as stated above and there are provisos to the Sectionwhich deal with the cases where such persons abandoned the property orthe property belongs to forests, beds and bunds of tanks and of supply,drainage surplus or irrigation channels, threshing floor, cattle stands, https://hcservices.ecourts.gov.in/hcservices/ village sites, car tracks, roads, temple sites and rivers, streams andother porombokes.10. Section 11 of the Act enables the Settlement Tahsildar todecide about the claim of ryotwari patta. As per sub-section (3) ofSection 11, against the order of the Settlement Tahsildar, theGovernment can file appeal to the Tribunal within one year from the dateof decision and any other person aggrieved by such decision may fileappeal within three months from the date of order. However, theTribunal in its discretion may allow further time not exceeding twomonths for filing any such appeal. It also provides that in cases wherethe Government files appeal, the Tribunal may in its discretionentertain the appeal, if it appears to the Tribunal that the decision ofthe Settlement Officer is vitiated by fraud or mistake of fact. Thesaid section reads as under:"11.Determination of lands in respect of which any person isentitled to ryotwari patta.-(1) .....(2) .....(3) Against a decision of the Assistant Settlement Officer undersub-section (2), the Government may, within one year from the date ofthe decision, and any person aggrieved by such decision may, withinthree months of the said date, appeal to the Tribunal:Provided that the Tribunal may, in its discretion, allowfurther time not exceeding two months for the filing of any such appeal.Provided further that the Tribunal may, in its discretion,entertain an appeal by the Government at any time if it appears to theTribunal that the decision of the Assistant Settlement Officer wasvitiated by fraud or by mistake of fact."11. Under Section 7 of the Act, Tribunal has been constituted,which shall consist of one person only, who shall be a Judicial Officernot below the rank of Subordinate Judge. It is also relevant to pointout that as against the order of the Assistant Settlement Officer,under Section 11(3) of the Act the Government can file appeal to theTribunal within one year and any person aggrieved can file appeal withinthree months from the date of such decision, however with power to theTribunal to extend the time not exceeding another two months and theTribunal also has the power to entertain appeal by the Government atany time if it appears to the Tribunal that the decision of theAssistant Settlement Officer was vitiated by fraud or by mistake of factand the decision of the Tribunal is final as per Section 46 of the Act.12. In the present case, it is not in dispute that the SettlementTahsildar acting as per the powers of the Act,1963 has conducted a suo-motu enquiry after causing wide publication as required under the Rules https://hcservices.ecourts.gov.in/hcservices/ in respect of the subject matter of land which is concerned in thepresent writ petition. In fact, the Settlement Tahsildar has referredto TD.No.240, which in the form of unenfranchised Devadayam Inam. TheSettlement Tahsildar has relied upon the judgement of the High Court inSecond Appeal No.301 of 1889 dated 14.02.1890, wherein it was held thatthe grant of inam land to the temple consisting only melvaram and notiruvaram and the temple did not own any kudivaram right in the land,since the kudivaram right was exclusively owned by the predecessor-in-title of the petitioners,viz., Ayi Gounder. In the enquiry bySettlement Tahsildar as per the Act, the Karnam of the Village wasexamined as C.W.1, who filed a true copy of the Inam B-Register markedas Ex.C.1 and deposed that there is no temple by name Muttathu Royan inexistence in the Village. That evidence was also supported by thefurther evidence of Settlement Inspector, Gobichettipalayam, who wasexamined C.W.2 and he filed a True Extract of Inam Fair Registerrelating to the T.D. marked as Ex.C.2. The Settlement Tahsildar foundthat even though under Ex.C.2 the land in question is stated asunenfranchised Devadayam Inam granted in support of Muttathu Royantemple, the evidence of C.W.1 shows that the temple is not in existencefor quite a long time and in addition to that the High Court has alsomade a final judgement as stated above that the temple itself was havingonly Melvaram and not Kudivaram right.13. It was in those circumstances, the Settlement Tahsildar hasdirected issuance of patta in favour of the predecessor-in-title of thepetitioners by order dated 29.09.1968. A reference to the order alsoshows that the copy of the order has been submitted to the AssistantSettlement Officer, Gobichettipalayam and also to the AssistantCommissioner, H.R. & C.E. (Admn.) Department, Coimbatore, who is thesecond respondent.14. On the face of it, even when the second respondent has beenserved with a copy of the order of the Settlement Tahsildar dated29.09.1968, even at that time it is not known as to how the secondrespondent could file any appeal in the light of Section 11 of the Act,as enumerated above. Because even the Tribunal has no right to condonethe delay beyond the time prescribed under the proviso to Section 11 ofthe Act. In any event, as on date, the order of the SettlementTahsildar is in force and as stated by the first respondent in thecounter affidavit, it is the duty of the first respondent to implementthe same. On the other hand, the first respondent, has chosen to denythe claim of the petitioners only on the basis that the secondrespondent has made a claim that the property belongs to the temple andtherefore, patta cannot be granted in respect of temple property.15. The second respondent, having received the order of theSettlement Tahsildar, has not chosen to question the same for nearly 40years. The receipt of copy of the order of the Settlement Tahsildardated 29.09.1968 by the second respondent can be taken to be a notice to https://hcservices.ecourts.gov.in/hcservices/ the third respondent Temple, which is represented by Fit Person, who isstated to have been appointed by the second respondent by order dated17.02.2006. 16. The third respondent in the counter affidavit has specificallystated that one Avinashilinga Pandaram and Chinnia Gounder were inmanagement of the Muttathu Royan temple. The specific averments in thecounter affidavit of the third respondent in that regard is as follows: "4. ..... From the records it will be seen that one AvinashilingaPandaram and one Chinna Gounder was in the management of theTemple. ......"17. Now, a reference to the judgement of this Court in S.A.No.301of 1889 dated 14.02.1890 shows that the said Chinnia Gounder was in themanagement of the Temple as admitted by the third respondent itself inits counter affidavit and the said Chinnia Gounder was the appellant inthe second appeal, who filed the original suit for declaration. Whiledismissing the appeal, this Court consisting Hon'ble Mr.JusticeMuttusami Aiyer and Handley has specifically considered the case of theplaintiff that the first and second defendants were the poojaries of thetemple and they have given to the plaintiff a lease of the inam of thetemple and ultimately dismissed the appeal filed by the said ChinniaGounder, in the following words:"15. I consider the evidence for the plaintiff wholly unreliable andinconclusive. Not a single witness speaks to the alleged oral lease. Ifind them on the 1st issue that the land is not shown to belong to the 1stand 2nd defendants, i.e., to constitute the Inam."18. In view of the finding of this Court in the suit filed byChinnia Gounder, who is claimed to be in management of the temple, I donot see any reason in the contention of the learned counsel for thirdrespondent that the temple was not given sufficient opportunity in thesettlement proceedings especially in the circumstances that theSettlement Tahsildar has in fact considered the entire documents whilepassing the order, which has become final.In view of the same, the impugned order of the first respondent isset aside and the first respondent is directed to implement the order ofthe Settlement Tahsildar dated 29.09.1968. However, it is made clear https://hcservices.ecourts.gov.in/hcservices/ that any observation made in this order shall not affect the right ofthe third respondent, if the third respondent is entitled to any rightunder law against the order of the Settlement Tahsildar dated29.09.1968. The writ petition stands allowed. No costs. Sd/Asst.Registrar/true copy/Sub Asst.RegistrarkhTo1. THE TAHSILDAR COIMBATORE NORTH TALUK COIMBATORE DISTRICT.2. THE ASSISTANT COMMISSIONER HINDU RELIGIOUS CHARITABLE & ENDOWMENT BOARD COIMBATORE.+1cc to Mr.R.N.Amarnath, Advocate Sr 19270+1cc to Govt. Pleader Sr 18779+1cc to M/s.R.T.Doriasamy, Advocate Sr 18985KSK (CO)km/4.4.W.P.No.11193 of 2006