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 https://hcservices.ecourts.gov.in/hcservices/ 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 https://hcservices.ecourts.gov.in/hcservices/ 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 https://hcservices.ecourts.gov.in/hcservices/ 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 https://hcservices.ecourts.gov.in/hcservices/ 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 https://hcservices.ecourts.gov.in/hcservices/ 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 https://hcservices.ecourts.gov.in/hcservices/ 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 https://hcservices.ecourts.gov.in/hcservices/ 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 https://hcservices.ecourts.gov.in/hcservices/ 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 https://hcservices.ecourts.gov.in/hcservices/ 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