NO. 2875 OF 2004 ANDW.A.M.P. NO. 247 OF 2007 V.S. Rathinam Chettiar v. 1. A/m. Vedaraneswarar Swami Temple

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE : 05.09.2007CORAMTHE HONOURABLE MR. JUSTICE S.J.MUKHOPADHAYAANDTHE HONOURABLE MR. JUSTICE N.PAUL VASANTHAKUMARW.A. NO. 2875 OF 2004ANDW.A.M.P. NO. 247 OF 2007V.S. Rathinam Chettiar.. Appellant- Vs -1. A/m. Vedaraneswarar Swami Temple rep. by its Executive Officer Vedaranyam, Nagapattinam.2. The Special Commissioner and Commissioner of Land Administration Ezhilagam, Chennai – 5.3. The Director of Survey and Settlement Ezhilagam, Chennai 5.4. The Assistant Settlement Officer Thanjavur... RespondentsWrit Appeal filed against the order dated 24th June, 2004,passed by the learned single Judge in W.P. No.34355 of 2003 asstated therein.This Petition presented to this Court under Article 226 ofthe Constitution of India to issue a Writ of CertiorarifiedMandamus calling for the records of the first respondentculminating in the order No.Ni Mu(Ki)/8/2000 dated 15.2.2003 andquash the same and forbear the respondents 1 to 3 from proceedingany further in the matter.For Appellant : Mr. K.ChandrasekarFor Respondents : Mr. A.S.Kailasam for R-1 Mr. D.Sreenivasan, AGP, for RR-2 & 3JUDGMENTS.J.MUKHOPADHAYA, J.In this appeal, the appellant/respondent has challenged theorder dated 24th June, 2004, passed by learned single Judge in W.P.No.34355 of 2003 whereby and whereunder while it was accepted that https://hcservices.ecourts.gov.in/hcservices/ the order passed on 23rd Dec., 1971, had not been served onappellant, and the order passed by the respondent SpecialCommissioner-cum-Commissioner of Land Administration remanding thecase was upheld, instead of remanding the case to the authority towhom the case was remanded by respondent, Special Commissioner-cum-Commissioner of Land Administration, learned single Judgeremitted the case to the Tribunal constituted under the Tamil NaduMinor Inam Estates (Abolition & Conversion into Ryotwari) Act,1963 (hereinafter referred to as 'Inam Estates Act').2. As the case could be disposed of on a short question oflaw, it is not necessary to discuss all the facts, except therelevant one, as noticed hereunder :According to the appellant, the property R.P. 391 waspurchased by him from Mariappa Pillai on 3rd April, 1965, alongwitha building constructed thereon. He was paying house tax throughassessment No.115. He purchased superstructure in N.S. No.175/309(to the extent of 0.01) and paying a sum of Rs.200/= every year tothe respondent Vedaraneswarar Swami Temple (hereinafter referredto as 'Devasthanam') for the site. There are seven shops assessedto panchayat tax under assessment Nos.134, 135, 44, 46 and 50.Similar claim was also made with regard to N.S. 175/308 (to anextent of 0.02).Further case of the appellant is that the AssessmentSettlement Officer issued impugned order on 23rd Nov., 1971,allowing the claim of Devasthanam with regard to Schedule-Aproperty and the appellant's prayer for issuance of patta in hisname in respect of land in question was rejected withoutintimating the same.The appellant preferred an appeal before the SettlementOfficer in R.C. No.6886/93/A2 as per Explanation 1 (b) belowSchedule attached to the Madras Inam Estates (Abolition andConversion into Ryotwari) Rules, 1965 – now known as Tamil NaduInam Estates (Abolition & Conversion into Ryotwari) Rules, 1976,(hereinafter referred to as 'Rules, 1976'), which was rejected on14th Feb., 1994. Thereafter, the appellant preferred firstrevision application under Rule 7 before the Director ofSettlement in E2/838/97 dated 30th Aug., 1998, dismissed of on 30thAug., 1998. Subsequently, second revision was preferred by theappellant under Rule 8 before the Special Commissioner-cum-Commissioner, Board of Revenue having been abolished, it wasregistered as No.K-1/8/2000. In the said case, by impugned orderdated 12th May, 2003, the Commissioner having noticed the fact thatthe order dated 23rd Dec., 1971 was not communicated to theappellant, remitted the matter to the Director of Settlement forreconsideration of the first revision application (used the term –Appeal). The respondent Devasthanam having challenged the saidorder, learned single Judge, by impugned order dated 24th June,2004, while did not choose to interfere with the order of remand,observed that the appeal should be determined by Tribunal underInam Estates Act.3. The main plea taken by appellant is that the order dated https://hcservices.ecourts.gov.in/hcservices/ 23rd Nov., 1971, having passed by Assistant Settlement Officer u/s15 (4) of Inam Estates Act, the appeal was maintainable before theSettlement Oficer as per Explanation 1 (b) below Schedule attachedto the original Tamil Nadu Inam Estates (Abolition and Conversioninto Ryotwari) Rules, 1965, against which first revision underRule 7 was maintainable before the Director of Settlement andsecond revision under Rule 8 was maintainable before Board ofRevenue, which having abolished, will lie before the SpecialCommissioner-cum-Commissioner, who has passed the order on 12thMay, 2003.On the other hand, counsel for the Devasthanam, whilereferred to the first part of the order dated 23rd Nov., 1971,submitted that the enquiry being made pursuant to suo motu poweru/s 12 of Inam Estates Act, the appeal is only maintainable beforethe Tribunal u/s 12 (2) of Inam Estates Act, which was the groundand accepted by the learned single Judge.It was contended on behalf of Devasthanam that the AssistantSettlement Officer is not required to pass any order u/s 15 (4).Section 12 empowers him to make an enquiry. However, it wasaccepted that the appellant has no grievance against the firstpart of the order dated 23rd Nov., 1971, passed by the AssistantSettlement Officer, wherein order was issued in favour ofDevasthanam in respect of Schedule-A properties. The grievance ofthe appellant is only with regard to N.S. No.175/309 (to theextent of 0.1) and N.S. 175/308 (to an extent of 0.02), which wasshown under Schedule-B property, and as prayer for grant of pattau/s 15 (4) has been rejected by the last paragraph of the orderdated 23rd Nov., 1971.4. Chapter III of Inam Estates Act, deals with grant ofryotwari pattas. Section 9, while stipulates the land in whichthe land holder is entitled to ryotwari pata, Section 10 dealswith land in respect of which ryot is entitled to ryotwari patta.Under Section 11, ryotwari patta can be granted on the basis ofpersonal cultivation in certain cases. On the other hand, sub-section (1) to Section 12 empowers the Settlement Officer todetermine the lands in which any person is entitled to ryotwaripatta. Sub-section (2) to Section 12 provides appeal to theTribunal against decision of the Settlement Officer taken undersub-section (1) to Section 12.From the aforesaid provision, it will be evident that if anyorder is passed by the Settlement Officer under sub-section (1) toSection 12 determining the question of entitlement to ryotwaripatta in respect of any land, an appeal is maintainable under sub-section (2) to Section 12 before the Tribunal.There is no specific provision made under the Inam EstatesAct prescribing appeal against any declaration or determinationmade u/s 15 (4). It is only under Explanation 1 (b) belowSchedule attached to the Rules, 1965, provision has been made toprefer such appeal before the Settlement Officer. As noticed,first revision application is maintainable under Rule 7 before theDirector of Settlement and the second revision is maintainableunder Rule 8 before the Board of Revenue, now Special https://hcservices.ecourts.gov.in/hcservices/ Commissioner-cum-Commissioner.5. In the present case, it will be evident that the appellantwas aggrieved against the last part of the order dated 23rd Nov.,1971, passed by the Assistant Settlement Officer u/s 15 (4) ofInam Estates Act. In this background, we are of the view that theappeal against the same was maintainable before the SettlementOfficer under Explanation 1 (b) below the Schedule attached toRules, 1965, and against such decision in appeal, the firstrevision under Rule 7 was maintainable before the Director ofSettlement. Therefore, there was no occasion for the learnedsingle Judge to remit the case to the Tribunal for determinationof any such appeal, no order having been passed against theappellant under sub-section (1) to Section 12.6. Learned counsel appearing on behalf of the respondentreferred to impugned order dated 23rd Nov., 1971, to suggest thatthe enquiry was made u/s 12 of the Act. However, it was acceptedthat while passing order allowing relief in favour of therespondent in respect of Schedule-A property, in the lastparagraph the claim of the appellant was rejected u/s 15 (4) ofthe Inam Estates Act.7. We have also noticed the order dated 23rd Nov., 1971,passed by Assistant Settlement Officer and heard the rivalcontentions of the parties. Having regard to the fact that theappellant has not challenged the total order dated 23rd Nov., 1971,but the last part of it, whereby his claim in respect of N.S.No.175/309 (to the extent of 0.1) and N.S. 175/308 (to an extentof 0.02), was rejected, we are of the view that instead ofremitting the matter to the appellate or revisional authority, thematter should be referred back to the original authority, i.e.,the Assistant Settlement Officer, Pudukottai, who passed theimpugned order dated 23rd Nov., 1971, so far as it relates to thelast paragraph of the said order.8. In the first part of the order dated 23rd Nov., 1971, theAssistant Settlement Officer has noticed the deposition as wasmade on behalf of the appellant (R.W.2) that the property in R.P.391 was purchased by him from Mariappa Pillai on 3rd April, 1965;there is a building on it for which he pays house tax videassessment No.115; he purchased only the superstructure inN.S.175/309 and was paying rent to the Devasthanam for the site,i.e., the land, every year; he was paying panchayat tax in respectof seven shops constructed therein. The officer has furthernoticed the deposition of C.W.1, a Karnam of the village, whocorroborated the version of P.W.1, relating to Schedule A landwhich was in possession of Devasthanam, but Schedule-B land hadbeen leased to public. He has also noticed that in regard toSchedule-B lands, the sites, i.e., the land only belongs to theDevasthanam, but the buildings are owned and enjoyed by lessees.In the aforesaid background, while the Devasthanam's claim inrespect of Schedule-A land was allowed and no claim of Devasthanamin respect of Schedule-B land was accepted, for the same reason, https://hcservices.ecourts.gov.in/hcservices/ it appears that the application for grant of patta in favour ofother claimants, who had a building over Schedule-B land wereaccepted and allowed.9. Though the aforesaid facts have been noticed by theAssistant Settlement Officer, Pudukottai, in the last paragraphwhile he dealt with Schedule-B lands, vis-a-vis, the claim of theappellant (R.W.2), without discussing the aforesaid claim of theappellant (R.W.2), he rejected the claim of the appellant merelyon the ground that the site belongs to the Devasthanam.The aforesaid finding in the last portion in respect ofappellant vis-a-vis Schedule-B lands having been passed withoutnoticing the relevant facts as discussed earlier and not disputedby the Devasthanam that the appellant has a building, havingpurchased from Mariappa Pillai on 3rd April, 1965, and paying rentto Devasthanam @ Rs.200/= per annum, the last part of such ordercannot be upheld and, therefore, instead of remitting the matterto the appellate or revisional authority, it is desirable that theclaim of the appellant (R.W.2) should be decided afresh on thebasis of the statement already recorded and noticed in the orderdated 23rd Nov., 1971.We may make it clear that we are not disturbing the decisionas contained in order dated 23rd Nov., 1971, passed by theAssistant Settlement Officer in respect of Devasthanam or , otherapplicants and so far as it relates to evidence of appellant andDevasthanam as reflected therein; they are affirmed. The lastpart of the order where claim of appellant (R.W.2) has merely beenrejected is only set aside and the matter is remitted back to theAssistant Settlement Officer to decide the claim of appellant(R.W.2) afresh on the basis of evidence on record as shown in theorder dated 23rd Nov., 1971, which has been upheld by us. Decisionin this regard be taken within a period of three months from thedate of appearance of the appellant.10. The order dated 24th June, 2004, passed by the learnedsingle Judge in W.P. No.34355 of 2003 is modified to the extentabove. The writ appeal is disposed of with the aforesaidobservation. Consequently, connected miscellaneous petition isclosed. However, there shall be no order as to costs.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.GLN https://hcservices.ecourts.gov.in/hcservices/ To1. The Executive Officer A/m. Vedaraneswarar Swami Temple Vedaranyam, Nagapattinam.2. The Special Commissioner and Commissioner of Land Administration Ezhilagam, Chennai – 5.3. The Director of Survey and Settlement Ezhilagam, Chennai 5.4. The Assistant Settlement Officer Thanjavur.1 cc to Mr.K. Chandrasekaran, Advocate, SR. 55237 W.A. NO. 2875 OF 2004 AKR (CO)kk 7/9