IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATE:03-4-2008 CORAM:
THE HON'BLE MR.JUSTICE P.JYOTHIMANI
W.P.No.11193 of 2006
1. V.P. KANDASAMY
2. P. YASODA
3. THULSIAMMAL
4. M. DEVAMMAL
5. K. ARULKUMAR
6. MEENAKSHI AMMAL
7. VISHALATCHI
8. V. PONNAMMAL
9. GNANASUBRAMANIAM
10. M.ARUMUGAM
11. J. THULSIMANI
12. K. MARAGATHAM
13. K. MURALIDHARAN
14. K. GEETHAMANI
15. M. NACHIMUTHU GOUNDER
16. V.P. SUNDARAM
17. V.P. PALANISAMI
18. S. VISLATCHI
19. M. SUBBANNA GOUNDER
20. PALANIAMMAL
21. DHANAMMAL @ DHANALAKSHMI
22. V.P.MURUGESAN
23. NAGARAJ
24. MUTHULAKSHMI
25. M. KUPPATHAL
26. S. MARAGATHAM
27. S. RMATHAL
28. SARSWATHI
29. S. SOMASUNDARAM
30. S. KITTUSAMY .. Petitioners
Vs
1. THE TAHSILDAR
COIMBATORE NORTH TALUK COIMBATORE DISTRICT.
2. THE ASSISTANT COMMISSIONER
HINDU RELIGIOUS CHARITABLE & ENDOWMENT BOARD
COIMBATORE.
3. SRI MUTTATHU ROYAN TEMPLE
VELLAKINAR REP. BY ITS FIT PERSON
COIMBATORE NORTH TALUK COIMBATORE DISTRICT .. Respondents
Writ Petition filed under Article 226 of the Constitution of India praying for issuance of
a Writ of Certiorarified Mandamus as stated therein.
For petitioners: Mr.R.N.Amarnath
For respondents: Mr.Hasan Fizal,GA for R.1
Mr.T.Chandrasekaran,Spl.G.P.for R.2 Mr.R.T.Doraisamy for R.3.
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ORDER
The petitioners have filed the above writ petition to quash the order of the first
respondent dated 08.03.2006 and for direction to the first respondent to carry out the
changes in the revenue records as per the orders of the Settlement Tahsildar No.IV,
Gobichettipalayam made in S.R.No.73/68/M.I.Act/Coimbatore Taluk, dated
29.09.1968.
2. According to the petitioners in this writ petition, one Natha Gounder of
Vellakinaru Village, Coimbatore North Taluk was in possession and enjoyment of the
dry lands to an extent of 6 acres and 49 cents in S.F.No.103 and 3 acres and 46
cents in S.F.No.105, comprised in T.D.No.240 of Vellakinaru Village, Coimbatore
North Taluk for a period of 50 years from 1888. After the advent of Tamil Nadu
Minor Inams (Abolition and Conversion into Ryotwari) Act,1963, the lands vested
with the Government, free from all encumbrances.
2(a). Since the said Natha Gounder was enjoying the kudivaram rights, after
his demise, his son Ayi Gounder was in possession of the lands under kudivaram
rights. There was a civil dispute between him and one Chinnia Gounder, who filed a
suit for recovery of possession in O.S.No.191 of 1887, which was decreed; the first
appellate Court has dismissed the suit and the said plaintiff Chinnia Gounder has
filed S.A.No.301 1889 before this Court and the order of the first appellate Court was
confirmed, thereby holding that Ayi Gounder was in possession and enjoyment of the
property in his own right.
2(b). An enquiry under Section 11 of the Act was conducted by the Settlement
Tahsildar No.IV, Gobichettipalayam in the year 1968. In the enquiry, the Tahsildar,
based on the records, in his order dated 29.09.1968 has concluded that M/s.Palani
Gounder, Marappa Gounder, Nachimuthu Gounder, Perianna Gounder, Subbanna
Gounder, Palani Gounder and Thangammal are entitled to ryotwari patta and he has
also passed order to that effect granting patta.
2(c). In this writ petition, except the 15th petitioner and 19th petitioner, viz.,
M.Nachimuthu Gounder and M.Subbanna Gounder, who were granted patta by the
Settlement Tahsildar, all other petitioners are the legal representatives of the other
persons who were granted patta by the Settlement Officer in the order dated
29.09.1968 and according to the petitioners, they are in possession continuously
from 1968, paying all public charges in respect of the lands.
2(d). On 25.11.2005, the petitioners have represented the Tahsildar, first
respondent to grant patta in their name and for alteration of revenue records, such
as Adangal, Chitta etc. based on the order dated 29.09.1968. The first respondent,
by the impugned order dated 08.03.2006, has refused to change the entries in the
revenue records and directed the petitioners to approach the Court. It is, as against
the order of the first respondent dated 08.03.2006, the petitioners have filed the
present writ petition for direction to the first respondent to carry out the changes in
the revenue records as per the order of the Settlement Tahsildar dated 29.09.1968,
passed in S.R.No.73/68/M.I.Act/ Coimbatore Taluk on various grounds, including
that the first respondent is bound to implement the order of the Settlement Tahsildar
passed by exercising the powers under Section 8(1) of the Act; that the first
respondent has no authority to decide about the correctness of the order of the
Settlement Tahsildar under the Act; that by issuing the impugned notice, the first
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respondent has exceeded his jurisdiction; that the second respondent has abdicated
his public duty in advising the petitioners to approach the Court; and that the first
respondent has failed to see that the authority to decide whether the lands are
ryotwari or not has already decided the same by order dated 29.09.1968 and it is
only the duty of the first respondent to execute the same.
2(e). In the writ petition, the third respondent, Sri Muttathu Royan Temple,
Vellaikinar represented by its Fit Person was impleaded by order dated 16.07.2007.
3. The first respondent in the writ petition has filed a counter affidavit. While
disputing the factual aspects of the case referred to above, in the counter affidavit
the first respondent has admitted that the order of the Settlement Tahsildar dated
29.09.1968 has become final and no appeal has been preferred. It is also stated
that the Government Pleader, Coimbatore has given opinion on 07.01.2006 stating
that the patta shall be transferred jointly in the names of the applicants and the order
has to be issued by the first respondent, Tahsildar.
3(a). It is the case of the first respondent that since the lands were inam
lands, the Assistant Commissioner of Hindu Religious and Charitable Endowment
Board, viz., the second respondent has been addressed a letter on 27.12.2005 and
the second respondent by his letter dated 20.01.2006 has informed that the above
lands were given to the temple under Devadayam Inam, which is a service inam in
respect of which patta should not be granted to any person, since the lands belong
to the temple.
3(b). It is the case of the first respondent that thereafter the Government
Pleader, Coimbatore by his letter dated 25.01.2006 has confirmed that after the
Settlement Tahsildar passed order on 29.09.1968, the same was notified in the
Government gazette and the copy was served to the second respondent, as seen
from the original order passed by the Settlement Tahsildar and in spite of it no
appeal was filed and therefore, the order of the Settlement Tahsildar dated
29.09.1968 has become final. He has also found that for the claim of the second
respondent that patta is in the name of Uthandarayar Kovil, there is no evidence and
even as per the order of the Settlement Tahsildar dated 29.09.1968, the Temple has
not been given any right and therefore, at this later point of time the second
respondent Department cannot claim any right over the property without any
evidence.
3(c). In spite of it, the second respondent has raised an objection on
14.02.2006 stating that the lands are in the name of deity to do pooja and therefore
no patta should be given to anybody and it was in those circumstances the first
respondent has informed the petitioners under the impugned order to approach the
civil Court for remedy. The first respondent in the counter even though has admitted
that the Tahsildar is bound to carry out changes in the revenue records based on the
Settlement Tahsildar's order, it is stated that the lands in question were given to the
Temple under Devadayam Inam and the second respondent is the owner and since
the second respondent has objected to the same, no order can be passed.
3(d). It is also stated that even though the Settlement Tahsildar has passed
orders as early as on 29.09.1968, for nearly 38 years the petitioners have not made
any representation and therefore, the claim of the petitioners is belated. It is also
stated that inasmuch as the property belongs to Devadayam Inam, the consent of
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the Department is an essential ingredient. According to the first respondent, even if
the first respondent makes change as per the Settlement Tahsildar's order, it will
only result in further litigation.
4. The third respondent Temple, which was impleaded as a party, in the
counter affidavit, while denying all the averments made by the petitioners in the
affidavit filed in support of the writ petition, has stated that the third respondent
Temple has been endowed with Inam lands in T.D.No.240 and in S.F.No.103 of
extent 6.49 acres and S.F.No.105 extent 3.46 acres. It is an unenfranchised
Devadayam Inam land. According to the third respondent, it is not as if the
Kudivaram right was held by one Nadha Gounder, but both melvaram and kudivaram
were granted in favour of the Temple. Regarding the decision in the civil suit, it is
the case of the third respondent that it is not bound by the same, since it was not a
party. It is the further case of the third respondent that the Settlement Tahsildar
while passing order on 29.09.1968 has not taken any steps to include the persons in
management of the Temple. According to the third respondent, the records show
that one Avinashilinga Pandaram and one Chinnia Gounder were in management of
the temple and none of them or their successors in interest were enquired and
therefore the enquiry conducted by the Settlement Tahsildar under Section 8 of the
Act should be treated as a nullity. It is the further case of the third respondent that
the predecessors in title of the petitioners themselves have no right and therefore,
the petitioners cannot claim any right over the property. It is the case of the third
respondent that in page number 22, it is mentioned as Uthandi Royar Temple inam
land. It is the further case of the third respondent that the Settlement Tahsildar,
Gobichettipalayam has not conducted enquiry at all. No persons of temple
management were enquired before granting ryotwari patta in favour of the
petitioners' predecessors. The temple was not properly administered by the villagers
at that time and therefore, according to the third respondent, the H.R. & C.E.
Department has appointed him as Fit Person to the third respondent temple on
17.2.2006. After knowing about the order of the Settlement Tahsildar on 29.07.2006,
the third respondent has applied for certified copy of the said order dated
29.09.1968, and filed appeal in CFR No.47732/06 before the Principal Subordinate
Judge, Coimbatore against the order of the Settlement Tahsildar dated 29.09.1968,
to set aside the same. According to the third respondent, an appeal remedy is
provided under Section 11(3) of the Act.
5. Mr.R.N.Amarnath, learned counsel appearing for the petitioners would
submit that the present stand of the third respondent as well as the first respondent
as if the property belongs to the third respondent Temple cannot be sustained for the
reason that in fact the Settlement Tahsildar in the order passed by him dated
29.09.1968 has considered the case of the Temple and rejected the same. He
would further submit that even though the temple was not a party, the case of the
Temple was considered and the Department, second respondent was informed
about the order even in the year 1968 and therefore, it is too late for the second
respondent now to say that they are preferring appeal against the order of the
Settlement Tahsildar as per Section 11(3) of the Act. He would also submit that as
per Section 11(3) of the Act, as against the order of Settlement Tahsildar, time limit
has been given for individuals to the extent of three months and for the Government,
it is one year and the third respondent can never think about filing of appeal at this

4
later point of time. The claim of the petitioners, according to the counsel, is in
respect kudivaram and what all the temple is entitled to claim is only melvaram.
6. Mr.R.T.Duraisamy, learned counsel appearing for the third respondent
would insist that an appeal has been filed by the third respondent against the order
of the Settlement Tahsildar and in the meantime, it is not open to the first respondent
to issue any patta in the name of the petitioners in consonance with the order of the
Settlement Tahsildar. According to him, the Settlement Tahsildar even though has
stated about the Temple, he has not chosen to give notice to the persons who have
been in control of the Temple at that time and therefore, the enquiry conducted
should be deemed to be not proper enquiry at all.
7. Mr.T.Chandrasekaran, learned Special Government Pleader appearing for
respondents 1 and 2 would submit that inasmuch as the lands belong to the temple,
no patta can be granted under the Act and therefore, the entire proceedings of the
Settlement Tahsildar are to be ignored.
8. At the outset, it should be seen that there is no dispute that after the advent
of the Tamil Nadu Minor Inam (Abolition and Conversion into Ryotwari) Act,1963,
which came into force from 1.1.1964, the entire inam estate including all communal
lands and porambokes, waste lands, pasture lands, forests, mines and minerals,
quarries, rivers and streams, tanks and ooranies including private tanks and
ooranies and irrigation works, fisheries and ferries stood transferred to the
Government and vested with it free from all encumbrances.
9. The said Act provides for appointment of Settlement Officers to carry out
the functions and duties assigned under the Act. Chapter III of the Act deals with the
grant of ryotwari patta and enables a person who is not entitled for issuance of patta
under Sections 9 and 10, when the land vested with the Government to obtain
ryotwari patta, firstly, if he had been personally cultivating such land for a continuous
period of 12 years immediately after 1st April, 1960; or secondly, if he had been
lawfully admitted into possession of such land on or before 27th September, 1955
and had been personally cultivating such land ever since; or thirdly, if he had been
personally cultivating the land on 26th September,1955 and for a period of twelve
years immediately before that date, and the grant of ryotwari patta should be
considered in the order of priority as stated above and there are provisos to the
Section which deal with the cases where such persons abandoned the property or
the property belongs to forests, beds and bunds of tanks and of supply, drainage
surplus or irrigation channels, threshing floor, cattle stands, village sites, car tracks,
roads, temple sites and rivers, streams and other porombokes.
10. Section 11 of the Act enables the Settlement Tahsildar to decide about the
claim of ryotwari patta. As per sub-section (3) of Section 11, against the order of the
Settlement Tahsildar, the Government can file appeal to the Tribunal within one year
from the date of decision and any other person aggrieved by such decision may file
appeal within three months from the date of order. However, the Tribunal in its
discretion may allow further time not exceeding two months for filing any such
appeal. It also provides that in cases where the Government files appeal, the
Tribunal may in its discretion entertain the appeal, if it appears to the Tribunal that
the decision of the Settlement Officer is vitiated by fraud or mistake of fact. The said
section reads as under:
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" 11.Determination of lands in respect of which any person is entitled to ryotwari
patta.-
(1) .....
(2) .....
(3) Against a decision of the Assistant Settlement Officer under sub-section
(2), the Government may, within one year from the date of the decision, and any
person aggrieved by such decision may, within three months of the said date, appeal
to the Tribunal:
Provided that the Tribunal may, in its discretion, allow further time not
exceeding two months for the filing of any such appeal.
Provided further that the Tribunal may, in its discretion, entertain an
appeal by the Government at any time if it appears to the Tribunal that the decision
of the Assistant Settlement Officer was vitiated by fraud or by mistake of fact."
11. Under Section 7 of the Act, Tribunal has been constituted, which shall
consist of one person only, who shall be a Judicial Officer not below the rank of
Subordinate Judge. It is also relevant to point out that as against the order of the
Assistant Settlement Officer, under Section 11(3) of the Act the Government can file
appeal to the Tribunal within one year and any person aggrieved can file appeal
within three months from the date of such decision, however with power to the
Tribunal to extend the time not exceeding another two months and the Tribunal also
has the power to entertain appeal by the Government at any time if it appears to the
Tribunal that the decision of the Assistant Settlement Officer was vitiated by fraud or
by mistake of fact and the decision of the Tribunal is final as per Section 46 of the
Act.
12. In the present case, it is not in dispute that the Settlement Tahsildar acting
as per the powers of the Act,1963 has conducted a suo-motu enquiry after causing
wide publication as required under the Rules in respect of the subject matter of land
which is concerned in the present writ petition. In fact, the Settlement Tahsildar has
referred to TD.No.240, which in the form of unenfranchised Devadayam Inam. The
Settlement Tahsildar has relied upon the judgement of the High Court in Second
Appeal No.301 of 1889 dated 14.02.1890, wherein it was held that the grant of inam
land to the temple consisting only melvaram and not iruvaram and the temple did not
own any kudivaram right in the land, since the kudivaram right was exclusively
owned by the predecessor-in-title of the petitioners,viz., Ayi Gounder. In the enquiry
by Settlement Tahsildar as per the Act, the Karnam of the Village was examined as
C.W.1, who filed a true copy of the Inam B-Register marked as Ex.C.1 and deposed
that there is no temple by name Muttathu Royan in existence in the Village. That
evidence was also supported by the further evidence of Settlement Inspector,
Gobichettipalayam, who was examined C.W.2 and he filed a True Extract of Inam
Fair Register relating to the T.D. marked as Ex.C.2. The Settlement Tahsildar found
that even though under Ex.C.2 the land in question is stated as unenfranchised
Devadayam Inam granted in support of Muttathu Royan temple, the evidence of
C.W.1 shows that the temple is not in existence for quite a long time and in addition
to that the High Court has also made a final judgement as stated above that the
temple itself was having only Melvaram and not Kudivaram right.
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 13. It was in those circumstances, the Settlement Tahsildar has directed
issuance of patta in favour of the predecessor-in-title of the petitioners by order
dated 29.09.1968. A reference to the order also shows that the copy of the order
has been submitted to the Assistant Settlement Officer, Gobichettipalayam and also
to the Assistant Commissioner, H.R. & C.E. (Admn.) Department, Coimbatore, who
is the second respondent.
14. On the face of it, even when the second respondent has been served with
a copy of the order of the Settlement Tahsildar dated 29.09.1968, even at that time it
is not known as to how the second respondent could file any appeal in the light of
Section 11 of the Act, as enumerated above. Because even the Tribunal has no
right to condone the delay beyond the time prescribed under the proviso to Section
11 of the Act. In any event, as on date, the order of the Settlement Tahsildar is in
force and as stated by the first respondent in the counter affidavit, it is the duty of the
first respondent to implement the same. On the other hand, the first respondent, has
chosen to deny the claim of the petitioners only on the basis that the second
respondent has made a claim that the property belongs to the temple and therefore,
patta cannot be granted in respect of temple property.
15. The second respondent, having received the order of the Settlement
Tahsildar, has not chosen to question the same for nearly 40 years. The receipt of
copy of the order of the Settlement Tahsildar dated 29.09.1968 by the second
respondent can be taken to be a notice to the third respondent Temple, which is
represented by Fit Person, who is stated to have been appointed by the second
respondent by order dated 17.02.2006.
16. The third respondent in the counter affidavit has specifically stated that
one Avinashilinga Pandaram and Chinnia Gounder were in management of the
Muttathu Royan temple. The specific averments in the counter affidavit of the third
respondent in that regard is as follows:
"4. ..... From the records it will be seen that one Avinashilinga Pandaram and one
Chinna Gounder was in the management of the Temple. ......"
17. Now, a reference to the judgement of this Court in S.A.No.301 of 1889
dated 14.02.1890 shows that the said Chinnia Gounder was in the management of
the Temple as admitted by the third respondent itself in its counter affidavit and the
said Chinnia Gounder was the appellant in the second appeal, who filed the original
suit for declaration. While dismissing the appeal, this Court consisting Hon'ble
Mr.Justice Muttusami Aiyer and Handley has specifically considered the case of the
plaintiff that the first and second defendants were the poojaries of the temple and
they have given to the plaintiff a lease of the inam of the temple and ultimately
dismissed the appeal filed by the said Chinnia Gounder, in the following words:
" 15. I consider the evidence for the plaintiff wholly unreliable and inconclusive.
Not a single witness speaks to the alleged oral lease. I find them on the 1st issue
that the land is not shown to belong to the 1st and 2nd defendants, i.e., to constitute
the Inam."
18. In view of the finding of this Court in the suit filed by Chinnia Gounder,
who is claimed to be in management of the temple, I do not see any reason in the
contention of the learned counsel for third respondent that the temple was not given
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sufficient opportunity in the settlement proceedings especially in the circumstances
that the Settlement Tahsildar has in fact considered the entire documents while
passing the order, which has become final.
In view of the same, the impugned order of the first respondent is set aside
and the first respondent is directed to implement the order of the Settlement
Tahsildar dated 29.09.1968. However, it is made clear that any observation made in
this order shall not affect the right of the third respondent, if the third respondent is
entitled to any right under law against the order of the Settlement Tahsildar dated
29.09.1968. The writ petition stands allowed. No costs.