`IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED 04.12.2009 CORAM THE HONOURABLE MR. JUSTICE M.M.SUNDRESH W.P. NO.7649 OF 2002 Arulmighu Thiruvateeswarar Devasthanam Triplicane Madras – 5 Rep. by its Executive Officer .. Petitioner Versus 1.The State of Tamil Nadu Rep. by its Secretary Land Administration Department Fort St. George Chennai – 9. 2.The Settlement Tahasildar - II Chengalpattu. 3.The Settlement Officer Thanjavur. 4.The Special Commissioner and Commissioner of Land Administration Chepauk, Chennai – 5. 5.S.P.Mohansundaram 6.Saroja 7.Palani Mudaliar K. 8.S.K.Karunakaran 9.S.K.Rajendran 10.C.S.Gopalakrishnan 11.K.N.Velusamy 12.P.Sivagami Ammal 13.R.Krishnaveni Ammal 14.K.Rajeswari 15.K.R.Selvaprakasam 16.A.Nagappan 17.T.C.Jayammal 18.M.Thangamani 19.V.R.Srinivasan 20.E.Devarajan 21.E.T.Nirmala https://hcservices.ecourts.gov.in/hcservices/ 22.Prema Arthur 23.V.N.Kothandaraman 24.C.Padmavathi Ammal 25.R.Babu 26.R.Gopalakrishnan 27.K.Rajalakshmi 28.J.Bhoopathy 29.E.Nagabushana Rao 30.S.Kanagam 31.S.P.Dhananjayan 32.M.B.Thanigaivelu 33.Syed Abdul Kadir 34.J.Suryanarayanan 35.V.Krishnakumar 36.M.V.Devaraj 37.Rupchand M.Shah 38.Mafibhan R.Shah 39.A.Krishnamurthy Rao 40.T.Arumuga Naicker 41.Syed Nooruddin 42.A.Arumuga Chettiar 43.E.Panchaksharam 44.C.D.Devasenan 45.A.Marimuthu 46.G.Ramiah 47.S.Jebathai Ammal 48.P.K.Sundram 49.S.P.Soundarapandian 50.Dhanarathina Sivakumar 51.T.Vijayammal 52.Moulvi. Mohamed Riyasathullah 53.S.Mohana 54.K.Chandrasekaran 55.A.Babulal Bokadia 56.Krishna Pillai 57.S.Visalakshi Ammal 58.C.K.Rajendran 59.Padmasini Shanmugam 60.K.Sridevi 61.R.Humara Begam 62.Radha Ammal 63.Tharani Kumar 64.Dilli Bai 65.M.Loganathan 66.G.Alamelu 67.B.Dhanalakshmi 68.Vittal Rao 69.E.V.Parthasarathy 70.Amsa 71.P.Murali https://hcservices.ecourts.gov.in/hcservices/ 72.V.Santhanakrishnan 73.N.Karunanidhi 74.Jayabhai Benedict 75.V.Abraham 76.R.V.Baskaran 77.S.Govindarajan 78.Leela Ammal 79.S.Subbulakshmi 80.F.R.Shakir 81.M.Shanthi 82.L.Natarajan 83.J.Ramani 84.Shanthi Devichanden 85.V.Siva Raman 86.V.Tharanipathy 87.N.Chandra Kantha Bai 88.K.Premila 89.K.Bhavaneswari 90.Athiya Shakir 91.D.Ranganathan 92.Kamala Devi 93.P.E.Sundaramurthy 94.A.Anbazhagan 95.Janab Jailani Beevi 96.M.I.Waheeda Begam 97.M.I.Yasmin Sulthana 98.M.I.Feroza Sulthana 99.M.I.Masooda Begam 100.Dr.D.Saravana Muthu 101.S.Devaraja Chettiyar 102.R.Shanmugam 103.Manak Chand 104.G.Naresh Kumar 105.G.Shreepal Kumar 106.G.Prakash Chand 107.G.P.Jain 108.P.D.Sivaji 109.Kotteswaraiah 110.V.R.Subramanian 111.Ghulam Abid Ali Khan 112.G.Hari Babu alias G.H.Babu 113.G.H.Chandra 114.P.Kasthuri 115.S.Sathya Booshanam 116.V.C.Rao 117.T.S.Prakasam 118.Somasundaram 119.B.M.Narayanaswamy 120.M.Bharathi 121.V.S.Singaravelu https://hcservices.ecourts.gov.in/hcservices/ 122.B.Shanthi 123.R.V.Bhaskar 124.L.S.Lakshmi @ C.Lakshmi Prasad 125.S.P.Loganathan 125.M.Shyamala .. Respondents PRAYER: Petition filed Under Article 226 of the Constitution of India praying to issue a Writ of Certiorari, calling for the records of the 4th respondent in R.Dis.K1/R.P.12/95, dated 19.12.2001 and quash the same. For Petitioner : Mr.B.Kumar Senior Counsel for M/s.T.R.Rajaraman Mrs.Pushpa Satyanarayana For R-1 to 4 : Mrs.Lita Srinivasan Government Advocate For R-5,6,8,9,10,11,12,15 to 28, 30 to 44, 46, 48, 49, 51 to 57, 59 to 61, 66 to 69, 70 to 74, 77, 78, 80, 81, 82, 83, 84 to 86, 88 to 90, 92, 93, 96 to 99, 101 to 105, 107 to 113, 115, 117, 123. : M/s.T.N.Rajagopalan For R-118 & 119 : M/s.S.Thankasamy For R-124 : M/s.R.S.Ranganadhan R-121 : M/s.P.Seshadri R-45,90 & 113 : M/s.D.Kanaga Sundaram O R D E R The petitioner herein has filed the present writ petition seeking for a Writ of Certiorari, calling for the records of the 4th respondent in R.Dis.K1/R.P.12/95, dated 19.12.2001 and quash the same. 2.This case has a long history to trace. The historical background of the case starts from the year 1734 onwards. Unfortunately, the dispute started in the year 1970 has continued till date. In the attempt to resolve the dispute the factual matrix is necessary. 2.The brief facts leading to the case are as follows: https://hcservices.ecourts.gov.in/hcservices/ The writ petitioner is a religious institution. By two cowls dated 01.11.1734 and 10.08.1787 which are in the nature of grants inam of lands have been granted to the petitioner. The lands originally form part of Pudupakkam Village which now forms part of the present Royapettah were originally owned by the Nawabs. After the entry of the East India Company into Chennai, the then Nawabs ceded the said lands in favour of the Company. Thereafter, the East India Company has made the grants referred above in favour of the petitioner. The grants in favour of the petitioner are called Thiruvateeswarar Shothrium which is a religious grant. The petitioner does not have the cowls granted by the East India Company in its favour. The petitioner also does not have the title deeds to confirm the inam made in its favour. The Inam Fair Register which is usually under the custody of the petitioner is also not available. The petitioner temple is situated in Triplicane and the properties which are subject matter of the writ petition are in Royapettah. The petitioner has produced extract of "quit rent register" indicating the name of the owner with the particulars of the property and the amount payable as "quit rent" which is called in Tamil as "epy thp". The petitioner has also produced before this Hon'ble Court some other additional documents which are as follows: S.No. Date Particulars of list of documents 1 17.02.191 2 L.A. Case No.2 of 1912 Letter from Special Deputy Collector to the Chief Judge, Small Causes Court, Chennai. 2 3/10/14 Land Case No.84 of 1914 3 26.10.196 6 Counter filed by the 3rd respondent B.N.Narayanasamy before the Deputy Commissioner, H.R.&C.E., Madras. 4 26.10.196 6 Compromise recorded by the respondent with the petitioner temple before the Deputy Commissioner, H.R.&C.E. 5 22.09.199 9 Letter from the then Executive Officer of the temple to District Collector. 6 6/11/08 Letter from the Commissioner, Archives Department to the Commissioner, H.R.&C.E. 7 31.12.200 1 Letter from the Special Commissioner of Land Administration to the Executive Officer of temple with Survey Register. 8 28.09.193 8 Sale Deed regarding the Thiruvateeswaranpet, Shrotriem. https://hcservices.ecourts.gov.in/hcservices/ S.No. Date Particulars of list of documents 9 13.10.194 5 Sale Deed 10 7/10/45 Sale Deed 11 22.03.194 1 Sale Deed 12 28.08.195 0 Sale Deed After the coming into existence of the Tamil Nadu Minor Inams (Abolition and Conversion into Ryotwari) Act, 1963 which is otherwise called as Tamil Nadu Act, 30 of 1963, an order was passed by the Settlement Tahsildar who is the 2nd respondent in the writ petition in and by his proceedings No.G.R.Sr.No.37/MSR dated 25.05.1971 granting patta to the various parties including the respondents. The petitioner did not appear for the said enquiry even though notice was served. Accordingly the 2nd respondent came to the conclusion that the grant made in favour of the petitioner was only a "melvaram" which is a right to collect "quit rent" and the land and building belong to the occupants. In other words, it was held that the petitioner was entitled to collect the revenue alone from the occupants to whom the pattas were issued. Since in the said proceedings some lands were classified as poramboke lands, a revision was filed by some persons before the Settlement Officer, Chengalpet and the same was allowed in favour of the revision petitioners therein. It appears that no further steps have been taken by the petitioner to challenge the said order. However after an inordinate and huge delay of 11 years, the petitioner filed a revision challenging the proceedings of the 2nd respondent dated 25.05.1971 before the Assistant Settlement Officer, Chengalpet. The said revision filed by the petitioner was dismissed on 20.06.1982 as barred by limitation. Again after two years, the petitioner filed a further revision before the Settlement Officer, namely the 3rd respondent herein on 06.09.1984. The said revision filed by the petitioner in R.P.12 of 1988 was allowed on the sole ground that in view of the presumption available under Section 44 of Act 30 of 1963 in favour of the petitioner they are entitled to get the patta. Thereafter, the respondents 5 to 126 preferred a revision before the 4th respondent who in turn allowed it by setting aside the order passed in R.P.12 of 1988 based upon the materials available on record including the documents tracing title in favour of the respondents 5 to 126 which are more than 100 years old. Not satisfied with the said order, the petitioner has challenged the order passed by the 4th respondent by way of the present writ petition seeking to https://hcservices.ecourts.gov.in/hcservices/ set aside the order passed by the 4th respondent dated 19.12.2001. Pending the writ petition, the petitioner has filed an affidavit seeking to mark about 12 documents as additional documents in support of its contention. Taking into consideration of the fact that the petitioner is a temple and by applying the principle that a temple is an eternal and perpetual minor, this Court has permitted the learned senior counsel appearing for the petitioner to make his submissions based upon the said documents. The said permission has been granted also in view of the fact that the dispute has been pending for nearly four decades and therefore there is no useful purpose that would be served by sending the documents to the authorities below warranting a finding. Moreover the documents are public documents in nature and the learned counsel appearing for the respondents fairly submitted that they do not question the admissibility of the documents. It is further brought to the notice of this Court that some of the offices of the respondents have been wound up. Therefore, the documents filed by the petitioner have been taken into consideration for adjudication. 3.The contentions of the learned counsel for the petitioner:- The petitioner has raised various contentions by way of arguments and written submissions even though all of them have not been raised in the affidavit filed in support of the writ petition. The said contentions are as follows: (i)The Estate Land Act, 1908 is applicable to the present case. The said Act provides for only occupancy rights to the ryots in respect of ryoti lands. Therefore in view of the applicability of the Estate Land Act, it is not open to the respondents 5 to 126 to claim any independent patta over the land. In other words, they cannot seek a larger relief than that of a tenant. (ii)Under Inam Estates (Abolition and Conversion into Ryotwari) Act Tamil Nadu Act 26 of 1948, an estate has been defined as an area granted in a village of melwaram only. However, under the Tamil Nadu Act 26 of 1963, the definition of 'estate' includes both warams in Inam such as "melwaram" and "kudiwaram". Therefore, a reading of the said enactments would show that the landlord owns the land and the tenant merely lives in the land of the landlord by paying the rent. Thereafter, Minor Inam Abolition Act 30 of 1963 was introduced and this Act does not provide for the cultivation by the landlord as a criterion for grant of patta. (iii)Under the Act 30 of 1963, there is a presumption under Section 44 of the said Act that unless the contrary is proved by the tenant, a particular Inam is an "iruwaram" Inam consists of both "melwaram" and "kudiwaram". The said presumption under Section 44 is https://hcservices.ecourts.gov.in/hcservices/ not a rebuttable presumption. (iv)Under Section 8(2) of the Act 30 of 1963, a transferee is entitled to get the patta where there is a transfer by way of an alienation by the trustee provided the transferee satisfied the requirement of Section 8(1)(a) or 8(1)(b). Therefore, when there is no proof of alienation by a trustee of the petitioner temple, the petitioner alone is entitled to get the patta. Further only when Section 8(2) of the Act does not apply, a person is entitled to get patta under Section 8(1). (v)Section 13(2) of Act 30 of 1963 which provides for the ground rent patta cannot be made applicable to the contesting respondents, since the mere fact that they have put up the building by itself cannot be a ground to confer patta on them, as there can be a ownership of a building which is different from the ownership of a site and both are separate and distinct. (vi)The additional documents filed by the petitioner would prove and substantiate the case of the petitioner. The Madras Town Survey Register in column no.12 which is a remarks column clearly spells the name of the petitioner as Thiruvateeswarar Shothrium, since it is an admitted fact that the Shothrium is a religious grant. The Madras Town Survey Register is an ample proof to show that the petitioner is the owner of the lands in question. (vii)The award passed by the Land Acquisition Officer also indicates the title in favour of the petitioner. The proceedings before the Deputy Commissioner, H.R.&C.E. between the petitioner and one B.M.Narayanaswami also establish the said fact. The sale deeds produced by the petitioner also speaks about the payment of "quit rent" which again prove that the petitioner is the owner. (vii)In support of the above said contentions, the learned senior counsel for the petitioner Shri.B.Kumar has relied upon the judgment reported in AIR 1995 SUPREME COURT 1613 [R.MANICKA NAICKER v. E.ELUMALAI NAICKER] and submitted that under Section 13 (2) there can be an owner of the building and there can be another owner of the ground. The learned senior counsel also relied upon the judgment reported in 1996-1-L.W.231 [SRI MADHAVAPERUMAL DEVASTHANAM v. TMT.DHANLAKSHMI & OTHERS] and submitted that a "quit rent" is paid by the tenant to the superior title holder namely, the landlord for his quiet possession and enjoyment. The learned counsel further relied upon the judgment reported in 1997 (2) MLJ 340 [MUTHUSAMY GOUNDER v. ARULMIGU VARADARAJA PERUMAL TEMPLE AT NATHAKADAIYAR] and submitted that from the available material produced by the petitioner, it has to be held that from the grant in favour of the petitioner is both "melwaram" and "kudiwaram". In fine, the learned senior counsel for the petitioner prayed for the writ petition to be allowed. https://hcservices.ecourts.gov.in/hcservices/ 4.The submissions of the respondents 5 to 126:- The learned counsel for the respondents Shri.T.N.Rajagopal has made the following submissions: (i)Admittedly, the petitioner has not produced the two cowls which alone would throw light of the fact about the nature of the grant given in favour of the petitioner. The petitioner also did not produce any title deeds to confirm the Inam. The failure of the petitioner to produce the Inam Fair Register which is supposed to be under the custody of the petitioner would lead to an adverse inference. Therefore, the non-production of the above said documents would disentitle the petitioner from getting the relief sought for. (ii)The writ petition has been filed seeking the relief for about 8 streets whereas according to the petitioner the grant covers 25 streets. It is also a fact that for the remaining streets pattas have been given in favour of various third parties and therefore, the petitioner cannot agitate its rights only against the contesting respondents alone in the present writ petition. (iii)The sale deeds produced by the contesting respondents are more than 100 years old. A perusal of the certificate issued by the Collector in the year 1900 would show that the certificate has been registered by payment of registration fee. The said certificate would clearly indicate that there were houses even at that point of time and the annual quit rent has been fixed by the Collector. It also indicates the description of the property and the transfer of the said property. Therefore from the said document, it is clear that the transfer has been duly registered and hence there is no title in favour of the petitioner. (iv)The quit rent register of the petitioner clearly clinches the entire issue, since it states in unequivocal terms that the patta stands in the name of a private party with clear description of the property and what is required to be paid is a quit rent which in Tamil means (epy thp bjhif) which can be translated as "land tax amount". Hence the document of the petitioner itself is the best document to show that the grant is only for the collection of revenue by way of land tax and nothing more. (v)The land acquisition documents produced by the petitioner do not help its case, since a perusal of the same do not indicate as to whether the said lands are similar to the lands involved in the present cast. There is also no mention about Shrotriem and therefore, the lands involved in the award must have been the temple lands and not Inam lands. Further the sale deeds relied on by the petitioner also helps the case of the contesting respondents, since the sale deeds merely state that what is required to be paid is only a tax. The sale deeds also show that what were https://hcservices.ecourts.gov.in/hcservices/ sold were both the houses and the ground. (vi)The reliance made by the petitioner on the counter affidavit filed by the third party and the consequential order passed before the H.R.&C.E. Department also has no factual basis, since it has been clearly stated in the counter affidavit at paragraph 7 that the petitioner temple is not the owner of the property and in any case the said compromise will not bind the contesting respondents. Moreover it is not in dispute that the petitioner is entitled to receive the quit rent. (vii)The submissions of the learned senior counsel for the petitioner relying upon the Estate Land Act, 1908 is not factually and legally sustainable. The said Act is not applicable to the Minor Inam proceedings. The patta mentioned in the said Act is different, since the same is given every year whereas the present case, the patta is issued as and when the transfer of ownership of land takes place. (viii)In the present case, it is not in dispute that various sales have been effected on different points of time to the knowledge and concurrence of the petitioner. Therefore in view of the above said fact, it is not open to the petitioner to contend that the petitioner is not the owner of the land. (ix)In so far as the Madras Town Survey Register is concerned, the same cannot form the basis of title. A Town Survey Register is maintained only for the purpose of surveying the properties with its locations. Further the mere fact that in the remarks column it is mentioned as "Thiruvateesvaranpet Shrotriem" cannot be construed to hold that the petitioner is the owner of the land. There is no dispute that the area is covered by the Shrotriem but the important aspect to be noted is the absence of the petitioner name in the ownership column. Moreover, the certificate issued by the petitioner for transfer of ownership is an important document to show that the petitioner can only collect the quit rent and cannot question the ownership. The said document clearly indicates the title deed with description the name of the owner. (x)The judgment relied upon by the learned senior counsel for the petitioner reported in 1996-1-L.W.231 [SRI MADHAVAPERUMAL DEVASTHANAM v. TMT.DHANLAKSHMI & OTHERS] regarding the definition of quit rent is not correct, since the said judgment has not consider the scope of the relevant Act which has been considered by the Division Bench of the Hon'ble High Court reported in 1981 (2) MLJ 254 [G.N.VENKATASWAMY v. THE TAMIL NADU SMALL INDUSTRIES DEVELOPMENT CORPORATION LTD.]. (xi)The provision contained under Section 8(2) Act 30 of 1963 does not apply to the case of the contesting respondents, since https://hcservices.ecourts.gov.in/hcservices/ the petitioner in the present case has not proved that the grant is iruvaram grant and only when there is an iruvaram, Section 8(2) would be applicable. Hence the contesting respondents are entitled to get the patta under Section 13 of Act 30 of 1963, since they have been put up the construction already. (xii)In any case, the 4th respondent has considered all the materials available on record and came to the conclusion that the contesting respondents are entitled to get the patta under Section 13 of Act 30 of 1963. The said findings of fact cannot be adjudicated in a writ proceedings. (xiii)The learned counsel in support of his contention submitted that a quit rent is only a tax or a revenue and relied upon the judgment of the Hon'ble Division Bench reported in 1981 (2) MLJ 254 [G.N.VENKATASWAMY v. THE TAMIL NADU SMALL INDUSTRIES DEVELOPMENT CORPORATION LTD.]. Further in support of his contention that the Estate Land Act, 1908 is not applicable to the present case, a reliance was made on the judgment reported in 1949 (2) MLJ 500 [LAKSHMANNA v. VENKATESWARLU]. The learned counsel further relied upon the judgments reported in 1997-2-L.W.320 [JALINI AMMAL (DIED), A & ANOTHER v. SRI VEDARANYASWAMI DEVASTHANAM]; 1997-2-L.W.323 [SRI VEDARANYASWAMI DEVASTHANAM v. A.C.DHARMA DEVI AND OTHERS]; 2001-3- L.W.97 [ADHEENAKARTHAR, SRI KUNDRAKKUDI, THIRUVANNAMALAI MUTT, KUNDRAKKUDI v. THIRU.M.PATTABHIRAMAN AND OTHERS] in support of his contention that the presumption under Section 44 of Act 30 of 1963 is a rebuttable presumption and the fact that the petitioner has acknowledged the transfer made by various persons is an important factor to hold that the grant is not iruvaram grant. Therefore, the learned counsel submitted that the writ petition will have to be dismissed. (xiv)Shri.P.Seshadri, learned counsel appearing for some of the respondents submitted that the petitioner cannot be allowed to expand the scope of the Writ Court, since substantial arguments have been made other than the grounds raised in the affidavit filed in support of the writ petition. He further submitted that the disputed questions of fact cannot be adjudicated in a writ petition. Hence the writ petition will have to be dismissed. 5.I have heard the arguments made by Shri.B.Kumar, learned senior counsel appearing for the petitioner and Shri.T.N.Rajagopal, Shri.S.Thankasamy, Shri.R.S.Ranganadhan, Shri.P.Seshadri and Shri.D.Kanaga Sundaram, learned counsels appearing for the contesting respondents and Mrs.Lita Srinivasan, learned Government Advocate appearing for the respondents 1 to 4. 6.The issue to be decided in the present writ petition is as to whether the Shrotriem grant given in favour of the petitioner by way of two cowls is iruwaram grant covering both "melwaram" and https://hcservices.ecourts.gov.in/hcservices/ "kudiwaram" or "melwaram" alone. In other words, whether the "quit rent" payable by the contesting respondents would amount to a rent acknowledging the title of the land in favour of the petitioner or a revenue or a tax to be collected. 7.A reading of the facts narrated above would show that by two cowls in the year 1734 and 1787 lands were granted in inam in favour of the petitioner temple. It is also an admitted fact that the said cowls are not available. The petitioner temple has been receiving quit rent and maintaining the permanent register evidencing the transfer of title of the property made from one person to another person for which a certificate is issued and a separate quit rent register is maintained evidencing the collection of the land. It is also not in dispute that the petitioner temple is not in possession of the Inam Fair Register which would indicate the nature of grant nor does it have the title deeds to confirm the inam made in pursuant to the two cowls. Hence this Court will have to proceed with the available factual matrix to resolve the dispute between the parties. 8.The word "Shrotriem" has been described in the History of Land Revenue Settlement and Abolition of Intermediary Tenure in Tamil Nadu. Shrotriem has been defined as "grants made to Brahmins skilled in the Sruti or Vedas". Such a grant can also be made in favour of the temple. In order to appreciate the disputes raised in the present case one has to see the facts of the case. In the certificate issued by the Deputy Collector of Madras pertaining to the year 1900 which has been examined by the Registrar of the Registration Department after the collection of the payment towards the measuring fees and the Government fees pertaining to the year 1900, it has been mentioned that the person mentioned therein has purchased the said property with clear description from another one. The said document also indicates the payment of annual quit rent mentioned therein for each house payable to the church-warden of Tiroovatteeswarer Pagoda in conformity with the two cowls granted by the Government in the year 1734 and 1787 respectively. The said document is a very important document because it acknowledges the transfer of the property in possession of the occupier to a 3rd party by the Government. Therefore it dispels the contention of the petitioner that the petitioner is the owner of the property. It also indicates the payment of quit rent fixed by the Government, of course payable to the petitioner for each house and therefore it is clear that the houses were in existence even at that point of time. The said document being an ancient document it can very well be relied upon by this Court since its admissibility