IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:16.12.2010 CORAM: THE HON'BLE MR.JUSTICE P.JYOTHIMANI WRIT PETITION NO.9851 of 2003 .. K.S.Raja Shanmugavel .. Petitioner vs. 1.The State of Tamil Nadu rep. By its Secretary Revenue Department Fort St.George, Chennai 600 009. 2.The Special Commissioner & Commissioner of Land Administration Chepauk, Chennai 600 005. 3.The District Revenue Officer Additional District Magistrate Trichy. 4.The Revenue Divisional officer Lalgudi Trichy District. 5.The Executive Officer Arulmigu Samayapuram Mariamman Koil Devasthanam, Samayapuram Tiruchi. .. Respondents Writ Petition filed under Article 226 of the Constitution of India praying for issuance of a Writ of Certiorarified Mandamus calling for the entire records in connection with the impugned proceedings of the 2nd respondent made in Pa.Mu.K.4/36621/2002 dated 21.1.2003 quash the same, and consequently restore the patta issued in favour of the petitioner by the 4th respondent and confirmed by the 3rd respondent. For petitioner : Mr.M.Venkatachalapathy,Sr.Counsel for Mr.M.Sriram https://hcservices.ecourts.gov.in/hcservices/ For respondents : Mr.N.Senthilkumaran Addl.Govt.Pleader for R.1 to R.4 Mr.P.Gopalan for R.5 .. ORDER The writ petition is directed against the proceedings of the second respondent, the Special Commissioner and Commissioner of Land Administration dated 21.1.2003, by which the revision filed by the 5th respondent against the order of the third respondent dated 28.5.2002 came to be allowed by the second respondent. 2. The short facts leading to the passing of the impugned order in the revision are as under: a) The Punja land in old survey No.14, new survey No.27 to an extent of 0.95.5 hectares in S.Kannanoor (West) village, Manachanallore taluk, Tiruchy District was given to two persons performing Nadhaswaram service in the temple. However, they were not in enjoyment of the same and even before that, the lands were in possession of third parties. From 1930 onwards one Angappan was in possession of the land and cultivating crops. He sold the property to one Muthuswami Pillai under a registered sale deed dated 31.10.1950, from whom one Rajaiya purchased the same under a sale deed dated 16.6.1959. He constructed a school by name Shri Mariamman School which was upgraded as Higher Secondary School. Since he was unable to manage the school, he sold the property along with the constructed building of the school to one Raju Pillai. b) The petitioner is the foster son of the said Raju Pillai. After the death of the said Raju Pillai, the petitioner inherited the property by way of a Will executed by Raju Pillai on 24.5.1982 and therefore, he became the absolute owner and has been in possession from 1982. The petitioner as the Secretary of the School has got recognition from various authorities and the building plans have also been approved in his name. The 5th respondent temple has claimed title over the property based on the patta given in terms of the Tamil Nadu Minor Inams (Abolition and Conversion into Ryotwari) Act, 30 of 1963 which was granted 31.1.1970. c) After the above said fact was revealed, the petitioner made representation to the authorities for transfer of patta on the basis that the petitioner and his predecessor-in-title have been in possession from 1959 onwards and therefore, the petitioner is entitled for the patta as per the Revenue Standing Order 31(7). On such representation, the 4th respondent, the Revenue Divisional Officer https://hcservices.ecourts.gov.in/hcservices/ found that there was no correlation between the property owned by the petitioner and the claim made by the 5th respondent and having found that the property was given as service inam to some other persons who were in possession of the property and the same was purchased by the predecessor-in-title of the petitioner and the petitioner is in possession of the property from 1959 onwards and the proceedings under the Act 30 of 1963 were not conducted following the procedures and without notice to the petitioner. d) The 4th respondent also found that the enquiry conducted from 22.1.1970 to 31.1.1970 was suo motu in nature, without notice to the petitioner or any publication and as such the patta granted to the 5th respondent is not valid under law. In the said order it was stated that the Revenue Standing Order 31(7) would apply since the petitioner and his predecessor have been in possession conducting the school for more than 40 years. It is against the said order of the Revenue Divisional Officer, dated 12.7.2000, the 5th respondent temple filed an appeal before the third respondent, the District Revenue Officer who confirmed the order of the 4th respondent on the ground that the petitioner and his predecessor have been in possession for more than 70 years and that order was passed by the third respondent on 28.5.2002. e) It was against the said order, the 5th respondent filed a revision before the second respondent and that revision came to be allowed setting aside the orders of the 3rd and 4th respondents, against which the present writ petition has been filed by the petitioner. 3. It is the case of the petitioner that the 5th respondent did not file the revision in time and there was a delay and in spite of the fact that the 5th respondent filed an application to condone the delay, without condoning the delay, the main revision was taken up for orders and orders were passed. It is stated by the petitioner that the petitioner required for personal hearing by the second respondent and that opportunity was not given. The order of the second respondent has been challenged on various grounds including that the same is contrary to law and there is no reason for reversing the well- founded orders of the third and fourth respondents based on the Revenue Standing Order 31(7); that the order in revision passed by the 2nd respondent without hearing the petitioner is opposed to the principles of natural justice; that copies of records have not been furnished by the second respondent before passing the impugned order; that the second respondent has failed to take note of the fact that the petitioner and his predecessor-in-title have been in continuous possession of the property for more than 70 years; that the patta proceedings under the Tamil Nadu Minor Inams (Abolition and Conversion into Ryotwari) Act, 30 of 1963 are against the law and without giving notice to the parties and that the patta proceedings were initiated https://hcservices.ecourts.gov.in/hcservices/ and completed within 10 days without applying the legal requirements; that the 5th respondent ought to have approached the civil Court against the orders of the 3rd and 4th respondents and the delayed revision filed by the 5th respondent is not maintainable; that the second respondent erred in relying upon the judgment reported in Palaniappa Pandaram and others vs. The Special Commissioner and Commissioner of Land Administration, Madras and others [1995 (2) MLJ 594] which has no application to the facts of the case and that the 5th respondent cannot assert title against the petitioner and his predecessor-in-title who have been in continuous possession from 1959 onwards. 4. It is the counter affidavit filed by the 5th respondent that the writ petition is not maintainable in view of the fact that the Settlement Tahsildar by virtue of powers under the Act 30 of 1963 conducted the settlement enquiry and after enquiry, passed the final orders on 31.1.1970 granting patta in favour of the 5th respondent temple to an extent of 0.95.6 hectares comprised in old survey No.14 and new survey No.27 along with the land to an extent of 4.04 acres comprised in S.F.No.36/1 situate in No.29/1, S.Kannanur West Village, Mannachanallur taluk, Trichy District and the said order of the Settlement Tahsildar has become final. a) It is stated that the 3rd respondent and 4th respondent interfered with the statutory order passed by the Settlement Tahsildar under the said Act, in spite of the fact that the judgment of the Division Bench of this Court reported in Palaniappa Pandaram and others vs. The Special Commissioner and Commissioner of Land Administration, Madras and others [1995(2) MLJ 594] to the effect that the Ryotwari patta granted in favour of the temple cannot be interfered with by the Revenue Tahsildar or any other ordinary revenue authorities, was brought to notice to the 3rd and 4th respondent. It is stated that due to the said reason, the second respondent rightly interfered with the orders of the 3rd and 4th respondent and set aside the same. b) It is stated that admittedly the land was given as Inam under a title deed No.151 and confirmed in favour of the 5th respondent temple as Devadayam Grant with Iruvaram rights for the purpose of rendering Nagaswaram service in the temple and it was later notified under section 1(4) of the Act 30 of 1963 and therefore, the person who is in possession can utmost be a permissible occupier and cannot have a right to continue to be in possession against the 5th respondent and the service holder having abandoned the service has no right in respect of the land and therefore, the petitioner who is claimed to be the transferee, can have no right in respect of the land at all. c) It is also stated that when the grant was given in favour of the temple permanently in respect of both warams viz., kudiwaram and https://hcservices.ecourts.gov.in/hcservices/ melwaram, the mere possession by any other person against the temple cannot have right to claim and therefore, the transferee from the permissible occupier cannot be construed to have adverse possession against the religious institution and either Angappan or his transferees have no right over the property. d) It is stated that the petitioner can only be treated as a trespasser by unauthorisedly putting up the building and that will not affect the right of 5th respondent temple in claiming possession based on the ryotwari patta granted by the Settlement Tahsildar in accordance with the statutory powers. It is stated that the Devadayam grant given in favour of the 5th respondent is permanent in nature. It is the case of the 5th respondent that the second respondent has rightly interfered with the unlawful orders of the 3rd and 4th respondents and set aside the same which cannot be found fault with. e) It is stated that the 5th respondent has also filed a suit in O.S.No.847 of 2000 on the file of District Munsif, Trichy and the same is pending and the petitioner is effectively contesting the suit which is ripe for trial and there is no adverse possession which the petitioner can claim. It is stated that the 5th respondent which is a public temple notified under the Tamil Nadu Hindu Religious and Endowments Act, 1959 having filed a suit for recovery of possession, there is nothing warranting to interfere with the order of the 2nd respondent. It is stated that the writ petition filed against the Government which is not a necessary party and therefore, the writ petition is liable to be dismissed on the ground of misjoinder of parties. When the suit filed by the 5th respondent temple for recovery of possession is against the petitioner, there is no grievance against the Government at all. 5. Mr.K.Venkatachalapathy, learned senior counsel appearing for the petitioner would mainly rely upon the Standing Orders of the Board of Revenue, viz., RSO 31(7) which provides for transfer in favour of persons providing possession for 12 years by payment of revenue which is as follows: "31. Rules for the transfer of Registry of Holdings: 1 to 6 xxxx 7. Transfer in favour of persons providing possession for twelve years.- When parties have no documents of title are shown in a summary inquiry to have been in possession as reputed owners for twelve years or more, transfer of registry may be made after notice, etc., as provided in rule 3(i). The action contemplated in this paragraph may be taken by the revenue officers either on their own motion or on the application presented by the parties concerned. https://hcservices.ecourts.gov.in/hcservices/ Payment of revenue as evidenced by the production of kist receipts or by the testimony of the village officers may be taken as proof of possession, but the absence of such proof should not be considered entirely to invalidate the claim and oral evidence of possession may be accepted." a) Therefore, according to him, the revenue authority, viz., the 4th respondent granted transfer of registry in the name of the petitioner as per the order dated 12.7.2000, on representation made by the petitioner and that was confirmed by the third respondent in the order dated 28.5.2002 after an elaborate enquiry and hence, as per Standing Orders, when the revenue authorities, after conducting enquiry, have specified about the possession of the petitioner, the said orders do not require any interference by the second respondent and the second respondent’s revisional power is not permissible. b) It is his further submission that even under the Tamil Nadu Minor Inams (Abolition and Conversion into Ryotwari) Act,1963 when patta was granted by the Settlement Tahsildar to the 5th respondent, that too, when the school was situate at that time, there was no enquiry conducted at all while passing the order by the Settlement Tahsildar on 31.1.1970 and therefore, the proceedings under the Act 30 of 1963 have to be ignored since the same has not been done in accordance with law. c) While it is admitted that in recognition of Nadhaswaram service of one Angappan the property was given to him and when he sold it to one Muthuswami Pillai on 31.10.1950 who in turn sold the same to one Rajaiya on 16.6.1959 from whom one Raju Pillai purchased the property from whom the petitioner inherited the same by way of a Will and a school in the name, Sri Mariamman Higher Secondary School has been functioning in the property, according to the learned senior counsel, there was nothing for the second respondent to interfere. d) It is his submission that when the dispute is of civil in nature, it is not for the settlement authorities to interfere by relying upon the judgments in Periya Muthu Naicker vs. Arulmighu Sevantheeswarar Koil rep. By its Trustee, Rengasami Naicker, The Assistant Settlement Officer, Thanjavur [1997 (2) LW 159] and V.P.Kandasamy and 29 others vs. Tahsildar, Coimbatore North Taluk, Coimbatore District and others [2009 (1) MLJ 93]. e) According to him, even if the 5th respondent is entitled for possession, inasmuch as the 5th respondent has already approached the civil Court, it is for the 5th respondent to work out the remedy in the manner known to law and the 2nd respondent’s order is detrimental to the interest of the petitioner and therefore, it is liable to be set aside. https://hcservices.ecourts.gov.in/hcservices/ 6. On the other hand, it is the contention of Mr.P.Gopalan, learned counsel for the 5th respondent/temple that the petitioner and his predecessors-in-title can only be claimed to be the permissible occupiers and cannot have right over the property and inasmuch as it is a service inam vesting the right with the temple, as long as the service is rendered, the person holding possession will be entitled to continue to be in possession and when such person fails to render service and transfers the property, that transfer is against the settlement law. He would rely upon the judgment in C.Muthu Bhattar vs. The Authorised Officer, Land Reforms, Madurai [1992 LW 212] to substantiate his contention that by the service inam, neither the ownership is granted, nor the person is entitled to be treated as a tenant, but the persons can only be a permissible occupier. a) It is his submission that the patta granted in the year 1970 under the Act 30 of 1963 as on date is standing in the name of 5th respondent temple and the Revenue Divisional Officer or District Revenue Officer has no jurisdiction when the Settlement Tahsildar as per the provisions of the Act 30 of 1963 decided the issue. b) It is his submission that in the presence of statutory provisions under the Act the Board’s Standing Orders have no application. He would rely upon the judgment in Palaniappa Pandaram and others vs. The Special Commissioner and Commissioner of Land Administration, Madras and others [1995 (2) MLJ 594] apart from the judgment in A.Shankar Suresh & others vs. Revenue Divisional Officer, Madurai and others [2007 (6) MLJ 955]. c) It is his submission that in fact when there was a delay in filing the revision, the delay was condoned after the pleadings were filed. It is his submission that even if a person is in possession for 100 years as against the patta holder under the settlement proceedings, he cannot get right over the property. He would rely upon the judgment in Periya Muthu Naicker and another vs. Arulmighu Sevantheeswarar Koil rep. By its Trustee, Rengasami Naicker, The Assistant Settlement Officer, Thanjavur [1997 (2) LW 159] to substantiate his contention that the temple has got absolute right over the property. He would also rely upon the judgment in Joint Commissioner, H.R. & C.E. Administration Department vs. Jayaraman & Others [2006 (1) L.W. 306 (SC)]. 7. I have heard the learned senior counsel for the petitioner and learned counsel for the respondents and given my anxious thoughts to the issues involved in this case. 8. The facts are not much in dispute. It is admitted by both the parties that originally the land belonged to the temple and that was given as a service grant for Nadhaswaram service rendered to Sri https://hcservices.ecourts.gov.in/hcservices/ Mariamman Temple, Samayapuram by one Angappan. Since admittedly the grantee abandoned the service, by virtue of the Tamil Nadu Minor Inams (Abolition and Conversion into Ryotwari) Act,1963 (Act 30 of 1963) which came into force with effect from 5th February, 1964 with an object of acquisition of rights of inamdars in minor inams, on the 5th respondent/temple approaching the Settlement Tahsildar, the Settlement Tahsildar, by a suo motu enquiry initiated as per the Act 30 of 1963 granted patta in favour of the 5th respondent temple. Admittedly, the said land was minor inam land and it was originally standing in the name of Mariamman Pagoda for Nadhaswaram service, as it is seen in the records of the year 1964. The said inam comprised in Devadhayam grant as confirmed in T.D.No.151 and that was notified by the Assistant Settlement Officer on 15.2.1965 under section 1(5) of the Act which is as follows: " Sec.1(5) The Assistant Settlement Officer shall, immediately after the date of the publication of the notification under sub-section (4), publish in the District Gazette, a copy of the notification under sub-section (4) and shall also cause to be published in a conspicuous place in the village in which the minor inam is situated a copy of the notification under sub-section(4) together with such particulars as may be prescribed." Therefore, after notification, the tenure of inam stood abolished and the land vested with the Government free from all encumbrances. 9. It was, thereafter, as per section 11 of the Act which empowers the Assistant Settlement Officer to determine the entitlement of ryotwari patta in respect of inam lands which were vested with the Government, orders were passed on 31.1.1970 and patta was granted in respect of the land in dispute in favour of the temple under section 8 (2)(ii) of the Act, which is as follows: "Sec.8.Grant of ryotwari pattas. (1)xxx (2)(i)xxx (ii) 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. Explanation.- For the purpose of this sub-section, "land revenue" means the ryotwari assessment including the additional assessment, water-cess and additional water-cess." Therefore, the ryotwari patta in favour of Mariamman temple represented by its Executive Officer as on 31.1.1970 was issued in accordance with the statutory powers conferred under Tamil Nadu Minor https://hcservices.ecourts.gov.in/hcservices/ Inams (Abolition and Conversion into Ryotwari) Act, 1963 (Act 30 of 1963) and admittedly, that order remains as on date and nobody has questioned the same in the manner known to law. 10. In the light of the above said legal position, now we have to decide as to the powers of the revenue authorities in respect of the lands relating to which ryotwari patta under the Act 30 of 1963 was already granted. It is true that as per the Board Standing Orders, the revenue authorities are entitled for such change of registry in the revenue records based on the possession for 12 years but that right cannot be in supersession of the statutory orders passed by the Assistant Settlement Officer by virtue of the powers conferred under the Act 30 of 1963. Even if the ryotwari patta granted under the Act 30 of 1963 is either by not giving adequate opportunity to any person or by not following the provisions in the said Act, as long as the patta issued under the said Act remains as on date, without being not challenged by any person in the manner known to law, in my considered view, it is certainly not open to the revenue authorities to enter into the said field by applying the executive powers conferred under the Board Standing Orders. 11. Even in the judgment relied upon by the learned senior counsel for the petitioner, the Division Bench of this Court in Periya Muthu Naicker and another vs. Arulmighu Sevantheeswarar Koil rep. By its Trustee, Rengasami Naicker, The Assistant Settlement Officer, Thanjavur [1997 (2) LW 159], while referring to the Tamil Nadu Minor Inams (Abolition and Conversion into Ryotwari) Act, (30 of 1963) and also the earlier judgment of the Andhra Pradesh High Court, held that as against the temple or religious institution, there cannot be any claim of adverse possession, of course, in the light of Limitation Act, 1908, in the following words: " 9. Even in the decision reported 1967 I Andhra Weekly Reporter, page 141 (Srinivasa Reddiar vs. Ramasamy Reddiar) the Apex Court impliedly in our view, approved the said principle though in respect of application of the relevant article in the Schedule to the Limitation Act, 1908 (Article 134-B). It was considered that the possession of the transferee cannot be considered to be adverse to the religious endowment from the very beginning and the succeeding manager's right to challenge the said transfer could not be held to have been lost. Apparently, the provisions contained in Article 134-B having been specially divised to protect the interests of the religious institutions and trusts, their Lordships of the Supreme Court have chosen to view the position that the first column of Article 134-B do not permit the making of any difference whether the property was sold as belonging to the temple or trust concerned or as belong to the trustee or the manager https://hcservices.ecourts.gov.in/hcservices/ for the time being himself and once it is proved that the property really belonged to the religious institution Article 134-B applied to all such cases in respect of suits filed by the succeeding trustee or manager. Consequently, the claim on behalf of the appellants that they have lawfully acquired or succeeded to the rights and interest of the inamdar, which happens to be in the present case the temple itself cannot merit our acceptance and their possession under such void and illegal documents has equally to be only unlawful possession....." 12. A reference made by the learned senior counsel for the petitioner to the judgment rendered by me in V.P.Kandasamy and 29 others vs. Tahsildar, Coimbatore North Taluk, Coimbatore District and others [2009 (1) MLJ 93], is not helpful to the petitioner. In fact, in that case, the Settlement Tahsildar granted patta in favour of a private individual as per the Act 30 of 1963 against the temple and the temple had not challenged the conferring of such patta for 40 years and the same became final and it was in those circumstances, the Settlement Tahsildar’s order was upheld by me and in my considered view, the said judgment does not advance the case of the petitioner herein