IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:12.02.2010 CORAM: THE HON’BLE MR. JUSTICE T.S.SIVAGNANAM W.P.No.18641/2009 & M.P.No.1/2009 & M.P.No.1/2010 R.Syed Azmath Basha Trustee/Power Agent Shah Rahamatullah Wali Mosque Inam Samayapuram No.17/5A, R.V.R. Illam Lal Pettai Street, Chidambaram – 608 601. ... Petitioner -vs- 1.The Settlement Officer/ District Revenue Officer, Officer of the Land Survey and Settlement Special Commissioner and Director, Chepauk, Chennai – 600 005. 2.The District Collector, Tiruchirapalli 3.M/s.Mayatas Infra (Private) Ltd., No.5/33A Chennai Main Road, Bikshandar Koil (so) Koothur Paluvur, Tiruchirappalli 4.R.Neelakandan (R4 impleaded as per order dated 18.1.2010 in M.P.No.2/2009 in W.P.No.18641/2009) ... Respondents Prayer : The Writ Petition filed under Article 226 of the Constitution of India for issue of Writ of Mandamus to direct the first respondent herein to forthwith dispose off the application of the petitioner (received by the first respondent on 27.02.2007) for reclassification of the land Survey No.208. Old No.34/A, R.S.No.1/A and for issuance of patta in favour of Shah Rahamatullah Wali Mosque. For Petitioner : Mr.V.T.Gopalan Senior Counsel for Mrs.Radha Gopalan For Respondents : Mr.P.Subramani Addl. Govt. Pleader for R1-R2 Mr.V.Sanjeevi & K.Muthukumarasamy for R4 https://hcservices.ecourts.gov.in/hcservices/ ORDER By consent the Writ Petition itself is taken up for disposal. The prayer in the writ petition is for a mandamus to direct the first respondent to forthwith dispose off the application of the petitioner received by the first respondent on 27.02.2007 for reclassification of the land in Survey No.208. Old No.34/A, R.S.No.1/A and for issuance of patta in favour of Shah Rahamatullah Wali Mosque. 2. Heard Mr.V.T.Gopalan, senior counsel appearing for the petitioner, Mr.P.Subramani, Additional Government Pleader appearing for the respondents 1 and 2 and Mr.V.Sanjeev appearing for the fourth respondent. 3. Learned Senior Counsel would submit that the land in question was gifted in favour of Syed Shah Rahamatulla Sahib by a gift deed executed by Queen Meenakshi Ammal and that there is a decree passed in O.S.No.32/1934 by the District Munsif Court, Tiruchirapalli dated 16.04.1936 and a subsequent decree in O.S.No.172/195 on the file of the Sub-Court, Tiruchirapalli dated 14.02.1953 and the decree of the Civil Courts affirms the title of the wakf. The petitioner submitted an application before the first respondent for grant of Patta in respect of subject property stating that the property belongs to the wakf and has been wrongly classified as "Tank Poramboke" without issuing notice to the petitioner. Based on such request, the first respondent by proceedings Na.Ka.E1/1562/2007 dated 21.03.2007 directed the District Revenue Officer, Trichy to forward the relevant records. The first respondent by a further communication dated 06.07.2007 had once again called for the records. Since, no action has been taken thereafter in spite of a representation having been submitted by the petitioner on 29.10.2007 and 27.08.2009, the petitioner is before this Court seeking for issuance of writ of mandamus. 4. The learned senior counsel would submit that the legal principle is "once a wakf is always a wakf" and the grant of patta in favour of any third party or any reclassification of the land under the provisions of the Tamil Nadu Inam Estates (Abolition and conversion into Ryotvari) Act 1963, (hereinafter referred to "as the Act") cannot confer any benefit on any person and does not affect the character of the wakf property. In support of his submissions, the learned senior counsel placed reliance on the decision of the Hon'ble Supreme Court in Sayyed Ali and others Vs. A.P.Wakf Board, Hyderabad and others - 1998 2 SCC 642. 5. Per contra, the learned Additional Government Pleader would submit that the petitioner is seeking to reopen a stale claim and the request of the petitioner had been rejected much earlier and the petitioner is not entitled to seek for any relief. The learned Additional Government Pleader would submit https://hcservices.ecourts.gov.in/hcservices/ that the Tank is classified as Government Poramboke (Samayapuram Eri) in the village records and the tank is in dry condition and having gravel deposit and accordingly the District Collector has been empowered to grant licence to remove gravel subject to certain conditions and as on date such permission has been granted to the fourth respondent by proceedings of the District Collector dated 10.08.2009 and the permission is valid for a period of 10 months. Therefore, the learned Additional Government Pleader would submit that there are no merits in the contentions raised by the petitioner. 6. Mr.V.Sanjeev, learned counsel appearing for the fourth respondent would contend that the petitioner has no right over the property in question and the property is a Government Poramboke Tank and that the claim made by the petitioner for grant of patta came to be rejected by the Commissioner of Land Administration by order dated 31.08.2000 and after such rejection, it appears that the petitioner made another representation on which report was called for by the Special Commissioner and Commissioner for Land Administration by proceedings dated 08.03.2002 and this request also came to be rejected as the claim is time barred under the provisions of the Act. It is further submitted by the learned counsel for the fourth respondent that for the past 44 years, the tank is treated as a "Eri Poramboke" and the Government is exercising the right over the said land exclusively. 7. The learned counsel would further submit that the fourth respondent is aggrieved by the interim orders granted by this Court, which has prevented him from quarrying gravel, pursuant to the permission granted by the second respondent dated 10.08.2009 and therefore, the fourth respondent is aggrieved on account of the present writ petition, which would has a bearing on his permission to quarrying gravel. 8. In reply, the learned senior counsel appearing for the petitioner would submit that the Special Commissioner and Commissioner of Land Administration by endorsement dated 14.05.2004 had stated as follows:- " The time limit for applying patta under the Act 26/48 was over on 29.07.1987 as per the G.O.Ms.No.714, Commercial Tax and Religious Endowments Department, dated 29.06.1987 and the time limit for applying patta under O.S.A. Act was also over on 30.06.1975 as per the G.O.Ms.No.589, Commercial Tax and Religious Endowments Department, dated 14.05.1975. Hence, the claim of the petitioner cannot be complied with. Therefore, the request of the petitioner is hereby rejected as time barred and he is directed to file his claim in the competent court." https://hcservices.ecourts.gov.in/hcservices/ By relying upon the same, the learned senior counsel would submit that the request has been rejected only on technical grounds and therefore, there is no embargo on the petitioner to substantiate his case on merits. 9. Considered the submissions made and on perusal of the documents placed before this Court. It appears that a request was made by the petitioner for grant of patta under the provisions of the Act, and this request has been rejected on the ground that the time limit for applying for patta under Act 26 of 48 has expired on 29.07.1987 and therefore, the claim of the petitioner cannot be complied with. The learned senior counsel for the petitioner placed heavy reliance on the decision of the Hon'ble Supreme Court in the case of Sayyed Ali and others to state that once a wakf property, it always remains a wakf property and by relying upon the decision of the Hon'ble Supreme Court in Mohammad Shah Vs. Fasihuddin Ansari and others - AIR 1956 SC 713, would state that in a suit for declaration that the property in possession of the mutawalli is wakf property no question of limitation can arise in respect of the property if it be found that the property comprises the wakf estate. 10. Therefore, the essence of the submission would be that the petitioner should be entitled to agitate the matter. In my view the first limb of the prayer sought for in the writ petition is to dispose of the petitioner's application dated 27.02.2002 for classification. However, the second limb of the prayer is seeking a positive direction to issue patta. Though arguments have been advanced on the merits of the claim made by the petitioner, I do not propose to go into the same, since I am of the view that a direction could be issued for consideration of the petitioner's application on merits and in accordance with law. Undoubtedly, a positive direction to grant patta cannot be granted by this Court at this stage. However, if a statutory authority had failed to exercise its powers, this Court could definitely step in and compel such authority to perform his statutory function. Of course, this Court will not issue a direction as to how such authority should function under the statute. In the instant case, after receiving the petitioner's request on 27.02.2007, the first respondent has called for the relevant records from the District Revenue Officer, Tiruchirapalli by proceedings dated 21.03.2007, 06.07.2007 and 26.12.2007. 11. Thus, it appears that the first respondent has considered the petitioner's representation, but has failed to proceed further after a particular point of time and in such circumstances, this Court is of the view that appropriate direction could be issued to the first respondent to proceed further in the matter. At this stage, it is to be noted that as on date, the land has been classified as "Eri Poramboke" and it is stated that such classification is in force for nearly 44 https://hcservices.ecourts.gov.in/hcservices/ years. The second respondent has been periodically granting permission to quarry gravel from the said tank and the fourth respondent is one such beneficiary pursuant to the order passed by the second respondent dated 10.08.2009, which is valid for a period of 10 months. As long as the classification of the land continues to remain as "Eri Poramboke", the Revenue Authorities would be justified to utilize the property as being done now for the purpose of quarrying gravel. 12. Therefore, the respondents cannot be injuncted from allowing the fourth respondent from quarrying gravel. Further the prayer in the interim application is beyond the scope of the prayer in the main writ petition. Hence, I am of the view that pending decision by the first respondent, the fourth respondent cannot be injuncted from carrying on his quarrying gravel for the period for which permission has been granted and subject of course to the conditions in the proceedings dated 10.08.2008. Accordingly, M.P.No.1/2009 is dismissed. 13. Considering the facts and circumstances of the case and in view of the reasons assigned supra, there will be a direction to the first respondent to pass orders on merits and in accordance with law on the petitioner's application received by the first respondent on 27.02.2007 for reclassification of the land Survey No,208. Old No.34/A, R.S.No.1/A, by taking note of the fact that records have been already called for by the first respondent by proceedings dated 21.03.2007, 06.07.2007 and 26.12.2007. The first respondent shall pass orders on merits and in accordance with law within a period of eight weeks from the date of receipt of a copy of this order. 14. The Writ Petition is disposed of on the above terms. Consequently, connected M.P.No.1/2009 is dismissed and M.P.No.1/2010 is closed. No costs. Sd/- Asst.Registrar /True Copy/ Sub.Asst.Registrar pbn To 1.The Settlement Officer/ District Revenue Officer, Officer of the Land Survey and Settlement Special Commissioner and Director, Chepauk, Chennai – 600 005. https://hcservices.ecourts.gov.in/hcservices/ 2.The District Collector, Tiruchirapalli. + 1 cc to Mr.V.Sanjeevi,Advocate,SR.2313 + 1 cc to Mr.S.Radha Gopalan,Advocate,SR.9357 W.P.No.18641/2009 RV(CO) EM/12.2.10 https://hcservices.ecourts.gov.in/hcservices/