@JUDGMENTTAG-ORDER
B. Rajendran, J.@mdashThe Petitioner in the writ petitions as well as the second Respondent are one and the same, besides, the issues involved in the writ petitions are also common, hence, by consent of the Counsel for both sides, the writ petitions are disposed of by this common order.
2. The case of the Petitioner in W.P. No. 23436 of 2002 is that the Petitioner had purchased nearly 7.69 acres of land in Survey No. 148/1, 2, 3, and 4 of Padikkasuvaithanpatti Village of Srivilliputhur Taluk. The vendors of the Petitioners have prescribed title by virtue of earlier sale transaction, which took place from the year 1942 and 1943. In the Chitta and Adangal extract, the Petitioner''s name was shown as owner and necessary name transfer has already been effected in the patta. Earlier to this, it was in the name of the Petitioner''s predecessor in title. All the revenue records are in the name of the Petitioner''s predecessor in title. The Petitioner is the bona fide purchaser for a valuable consideration. The Petitioner has obtained loan from IDBI bank and other banks and invested more than Rs. 9 crores for putting up construction, purchase of machineries and now running mill in the land. The property was also subjected to equitable mortgage and the mill has also raised funds from private financiers. The building was constructed after obtaining necessary approval and licence for running the mill was also obtained from the various departments and Electricity service connection to the Petitioner''s mill was given taking into consideration the ownership and the various regulations. Ultimately, the building was also subjected to property tax and the Petitioner''s factory started running from the year 1997. The Petitioner was also assessed to sales tax. While things are so, the first Respondent, on the instructions of the second Respondent, has cancelled the patta in the name of the Petitioner without taking into consideration the representation of the Petitioner dated 12.4.2002 and without even affording an opportunity to the Petitioner. According to the Petitioner, the first Respondent/Tahsildar has no power to pass an order contrary to the order dated 26.2.1974 of the Settlement Tahsildar. Even in the order, it was not taken into consideration that the predecessor in title and original owner Periyasamy Nadar has passed away on 13.12.1971 and his legal heirs were not brought on record, hence, impugned order is legally not sustainable. Even otherwise, the second Respondent has not done anything for the past more than 30 years, after the alleged settlement patta, which itself is legally not sustainable and non est in the eyes of law. Inasmuch as the order is passed by an authority, settlement Tahsildar, who is not competent to pass such an order, the Petitioner need not file any appeal, hence, he has come forward with the present writ petition. Even otherwise, admittedly, no notice has been served on the Petitioner before passing the impugned order, hence, the impugned order is per se illegal and unsustainable in law and against the principles of natural justice.
3. The case of the Petitioner in W.P. No. 5640 of 2008 was that all the lands in Padikkasuvaithanpatti Village, Srivilliputhur Taluk are minor inam lands and these lands were granted to Sthalsthars, who were rendering service to the second Respondent/temple. T.D. 503 was issued by the Inam Commissioner in recognition of grant of Inam to the Sthalsthars. Thus, under T.D. 503, grantees are all Sthalsthars and not the temple. The Sthalsthars were alienating Inam properties and the Inam being a conditional one, violation of the condition would give right to the Government to resume the inam lands one of the conditions is that the grantees must perform various services and should not alienate the lands. Though a few items were resumed by the Collector on alienation by the grantees, in respect of remaining items covered by the T.D. 503, proceedings in ROC E.4533/32 and ROC E.7794/52 were initiated. The Sub-Collector, Sivakasi ordered resumption of remaining items of lands covered by T.D. 503. The parties filed Appeal to the Collector and the appeals were dismissed. u/s 35 of Tamil Nadu Act 19 of 1951, the aggrieved parties are entitled to file Civil Suit to get declaration that the grant was only a mehvaram. Thereafter, various alienees filed O.S. No. 3 of 1954 etc., before the District Munsif Court, Srivilliputhur for declaration that the grant was only a Melwaram. Ultimately, by a Decree and judgment dated 25.4.1955 all the suits were dismissed holding that both warams granted is Inam and the Sub-Collector, Sivakasi has got right to order resumption of the lands on account of alienations. Aggrieved bythe same,theparties have filedA.S.No. 110 of 1955 etc., before the Sub Court, Ramnad at Madurai and the appeals were also dismissed. As against the same, S.A. Nos. 126 to 135 of 1957 were filed by the Alienees, which were also dismissed. Thereafter, L.P.A. Nos. 21 to 26 of 1961 have been filed and the same were also dismissed by this Court and the decision was
4. It is also the admitted case that long before the advent of Act 30 of 1963, the Collector has resumed the Inam lands, he did not re-grant it to anybody, therefore all the lands covered by TD 503 ceased to be the Inam lands after 1952. The settlement Tahsildar, under Act 30 of 1963 will have no authority to initiate any proceedings under Act 30 of 1963. If there had not been any resumption proceedings, the settlement Tahsildar would have had jurisdiction to consider the nature of the grant and the persons to whom Ryotwari Patta can be given. As stated supra, in this case, after the resumption, there was no re-grant to anybody, therefore, the land in question are beyond the purview of Act 30 of 1963. Though the second Respondent has now been stated to have granted patta under Act 30 of 1963, no where it is stated that the lands covered were re-granted to the temple. Therefore, the order granting Patta in favour of the temple is not sustainable.
5. Originally, Periyasamy Nadar purchased, by different sale deeds, the entire area covered in TD 503 and on the death of Periyasamy Nadar, the land devolved upon his three sons Duraisamy, Alagumuthu and Theriappa Nadar and Survey Number was given as 148 of Padikkasuvaithanpatti Village, which was subsequently sub-divided as Survey No. 148/1, 2, 3 and 4. The sons of Periyasamy Nadar were given pattas and they were enjoying the property. The Petitioners had purchased the land in Survey No. 148 from the legal heirs of Periyasamy Nadar under three sale deeds dated 10.8.1994, 10.8.1994 and 16.5.1996 and after purchase, the Petitioner''s properties were included in a single Patta No. 399.
6. It is pertinent to point out that even though the said Periyasamy Nadar was party to the proceedings initiated by the Settlement Tahsildar, the original patta was granted in the name of occupiers and aggrieved by the same, appeal was filed and the appeal was allowed and the matter was remanded for fresh disposal to the Settlement Tahsildar. The Settlement Tahsildar noted that all the lands covered by T.D. 503 are service Inam lands and the alienations have taken place before 1948 and hence, opportunity to be given to the alienees to buy the lands on payment of price. As they were not prepared to pay, the Settlement Tahsildar granted patta to the temple, after remand, by order dated 26.2.1974. It is also pertinent to note that before the Settlement Tahsildar, even though the Civil Court judgment, upto LPA were produced, the authority, who is empowered to act under the Minor Inam Abolition Act does not know the effect of resumption of lands. As the lands ceased to be Inam lands, after resumption, the provisions of Minor Inam Abolition Act, Act 30 of 1963 will not apply to the lands covered by TD 503. Therefore, the authorities under the Act have no power to consider the claim for lands covered by TD 503 and any order passed in respect of the said lands covered by TD 503 is illegal and without jurisdiction as per the decision in
7. Originally, the second Respondent issued a lawyer''s notice dated 11.12.2006 asking the Petitioner to surrender possession of the lands in view of the order passed by the Settlement Tahsildar. The Petitioner sent a reply dated 3.2.2007 disputing the title of the temple. In this connection, it is pertinent to point out that in respect of land covered by TD 503, the second Respondent filed a suit in O.S. No. 418 of 1998 on the file of District Munsif. Srivilliputhur and it was dismissed, hence, A.S. No. 9 of 2005 was filed before the Sub Court, Srivilliputhur and it was also dismissed. Thereafter, the second Respondent filed S.A. No. 855 of2008 before this Court and the same is pending till date. Furthermore, at the time of filing this Writ Petition, as W.P. No. 23436 of 2002 was pending, the notice issued by the second Respondent is illegal and not correct and it is liable to be quashed. Furthermore, u/s 78(2) of HR and CE Act, the first Respondent has no power to consider the claim at all. The only power granted u/s 78(2) of the HR and CE Act is to decide whether there is an encroachment or not. As the land in question does not belonged to the temple, the first Respondent has no jurisdiction and therefore the first Respondent has no legal right to issue the impugned notice and the order granting patta by the Settlement Tahsildar is itself being a nullity cannot confer any title on the temple.
8. In both the writ petitions, the temple authorities have filed a detailed counter affidavit stating that the impugned notice issued in W.P. No. 5640 of 2008 is only a show cause notice u/s 78(2) of HR and CE Act calling upon the Petitioner as to why he should not be removed from the subject matter of the lands. The first Respondent is the competent authority to interfere into the matter and hence, the Petitioner is not entitled to challenge the impugned notice. It was further contended that TD 503 consists of both warams attached to temple offices namely Sthalasthars, Paricharakkams, Sthanikams, Karivelam, Sripadam, Othuvar Service, Ulavaram Service, Kattiyam Service etc., and the holders of the office being remunerated by the enjoyment of the inams for rendering various services in the second Respondent temple. According to the second Respondent, it is not a grant to a particular individual or to benefit a specified person, but it is a grant granted to the second Respondent/temple. It was further contended that the possession of inam lands by the office holders is only a permissive occupant under the temple and the office holders have no alienable right to inam lands. Thus, the service holders can hold the inam lands as permissive occupant and not owners. The Settlement Tahsildar has conducted enquiry and granted Ryotwari Patta in favour of the temple. The Settlement Tahsildar, in his order observed that the Petitioner''s vendor''s father Periyasamy Nadar was only an alienee from the service holders and hence, his claim for Pvyorwari patta has been rejected. It is further contended that the legal heirs of Periyasamy Nadar namely Duraisamy, Alagumufhu and Theriappa Nadar, who are cited as Appellants 50 to 52 along with others, have filed appeal in Revenue Appeal No. 103 of 1974 before the Special Tribunal for Inam Abolition, Ramnad @ Sivagangai, which was dismissed on merits on 28.8.1975 confirming the order of the Settlement Tahsildar, Kovilpatti and the same has become final, binding and conclusive. The Special Tribunal further held that grant of all the inam lands under TD 503 consists of both warams and the Respondents therein, including Periyasamy Nadar are only alienees from the service holders and alienation is found to be void. The said alienation is not binding on the temple and it is void and unjust, hence, the second Respondent temple alone is the absolute owner of the subject matter of Inam lands.
9. It was further contended that the Petitioner would have no better title than his predecessor in title, whose claim has been rejected by the Settlement Tahsildar. Once patta has been granted in favour of the temple, it cannot be interfered with by the Tahsildar or any revenue authorities in respect of the patta granted under the special enactment. The further contention of the temple is that inasmuch as S.A. No. 855 of 2008 is pending before this Court, the Petitioner cannot contend in regard to the right of the first Respondent to initiate the proceedings as ultimately, this Court has to decide on the title of the property in the civil proceedings. Above all, the impugned notice is only a show cause notice and not a final order. Without filing objection, the Petitioner has filed the writ petition. The Respondent has only followed the Rules and Regulations provided under the Act to take possession of the properties. The Petitioner has also filed W.P. No. 23436 of 2002 before this Court challenging the order of the Tahsildar, Srivilliputhur dated 18.3.2002, which was allowed by this Court on 1.7.2002 without giving notice to the temple, hence, the temple has filed W.A. No. 3928 of 2002, which was allowed and the matter was remanded back to the learned single Judge for fresh disposal. Further, as per the report of the Assistant Commissioner. HR and CE dated 13.2.2007 with regard to encroachment of the inam lands by the Petitioner, after inspection on 11.1.2008, the Joint Commissioner, HR and CE has requested to take necessary action u/s 78(2) of HR and CE Act and it is always open to the Petitioner to approach the first Respondent for effective adjudication of the claim. As the position of the service holders are only permissive occupation, the Petitioner cannot claim any right over the property. The order dated 18.3.2002 has been passed transferring patta in the name of the temple only to implement the order of the Settlement Tahsildar and the inam lands only vest with the temple, hence, prayed for dismissal of both the writ petitions.
10. Heard all the parties concerned. The admitted facts in this case are the properties, which are the subject matter of this writ petition, are originally inam lands and such inam was granted to the Sthalsthars, Paricharakkams, Sthanikams, Karivelam, Sripadam, Othuvar Service, Ulavaram Service, Kattiyam Service etc., for the purpose of doing service to the temple. When it is a service inam, the question is whether it has two warams namely Melwaram or Kudiwaram. In this case, it is also admitted that it is a conditional inam and any alienation made will give right to the Inamdharto cancel the Inam. In the year 1942-1943, by virtue of sale deeds, the properties in question were sold to Periyasamy Nadar. Therefore, there were earlier proceedings for resumption of land as there is violation of the conditional grant. Ultimately, the lands were directed to be resumed to the Government in the year 1952. Thereafter, the alienees, as per the then prevailing Act filed suit challenging the resumption of lands, which went upto Letters Patent Appeal before this Court and the Letters Patent Appeal was dismissed by this Court confirming the right of the government to resume the land as there is violation of the conditional grant. So, way back in the year 1952, the land vested with the government. All these things admittedly have taken place before the advent of Act 30 of 1963 namely Inam Abolition Act. Under Inam Abolition Act, the authority vested with the power has got a legal right to decide on the grant of patta pursuant to the warams as enunciated. In this case, the further admitted fact is de hors the earlier proceedings of the competent authority seeking for resumption of land, the authority constituted under the Minor Inam Abolition Act has taken steps to decide the question on the ownership of the land, wherein the Petitioner''s predecessor in title has also participated and ultimately the competent authority has held that the alienees namely original inam holder, who are service holders, though are entitled to seek the land on payment of money, as it is two warams, which was refused by the alienees, hence, patta was granted in the name of the temple as early as in the year 1974. Furthermore, the legal representatives of the deceased Periyasamy have preferred necessary appeal before the authority in Revenue Appeal No. 103 of 1974. They challenged the finding regarding the payment of the land cost as already it was held they are entitled to patta but refused to pay the cost and the appeal was dismissed. Now, the only question raised was even though patta was granted in the year 1974, the temple had not taken any steps till 2002 for taking possession of the lands or to assert their right, title and interest in the property. It is further admitted by the parties concerned that during the relevant period, right from the year 1942 till 2002, successfully, patta was standing in the name of the Petitioner and their predecessor in title without any interruption, even though the Settlement Tahsildar has granted patta in the name of the temple way back in the year 1974. The kist in respect of the property was paid by the Petitioner and their predecessor in title and they have been in possession and enjoyment of the property in their own right as owners of the property and the temple has never ever taken any steps to take possession pursuant to the order of the Settlement Tahsildar from the year 1974 till 2002. It is further admitted for the first time that the temple has filed O.S. No. 426 of 1998 on the file of District Munsif Court, Srivilliputhur seeking possession and the same was dismissed on 6.7.2004, as against the same A.S. No. 97 of 2005 was filed before the Sub Court, Srivilliputhur which was also dismissed on 22.10.2007. Thereafter, the temple has filed Second Appeal No. 455 of 2008 which is still pending before this Court. It is further admitted that the Civil Court has held that the temple does not have title to the land covered by T.D. 503 in respect of the patta granted under Act 30 of 1953 and the Civil Court has jurisdiction to decide the question of title and the decision regarding the same is pending before this Court in S.A. No. 455 of 2008.
11. In this factual background, the learned senior Counsel appearing for the Petitioner contended that (i) when the lands were resumed way back in the year 1952, the lands vested with the Government. Once the property vest with the Government, it has never been reverted or re-granted to the temple at any point of time. Therefore, once the property has been vested with the government, the question of invoking Act 30 of 1963 namely Inam Abolition Act, pursuant to the coming into force of the Act for grant of Patta does not arise at all (ii) when once the Act itself is not applicable, any order passed by the authority concerned, such order passed is non est in the eye of law and the Petitioner need not file any appeal and it is always open to the Petitioner to invoke Article 226 of the Constitution of India and (iii) the temple having slept over for a period of more than 30 years after the grant of Settlement Tahsildar Patta, it sought for patta transfer in the name of the Temple and the Tahsildar, without giving any opportunity to the Petitioner has summarily changed patta in the name of the temple and therefore, rightly, this Court remanded the matter to the Tahsildar in the earlier occasion to re-investigate after giving necessary opportunity, including taking into consideration the order passed by the Settlement Tahsildar and therefore, in the meanwhile, the present notice issued u/s 78(2) of the HR and CE Act by the first Respondent is challenged in W.P. No. 5640 of 2008 as illegal and unsustainable in law. Another important legal question raised by the learned senior Counsel for the Petitioner is inasmuch as the temple itself had filed the suit pursuant to the grant of patta under Inam Abolition Act seeking for possession of the property from the Petitioner and that suit having been dismissed by the trial Court as well as the first appellate Court the matter is now pending before this Court in second appeal stage, hence, it is premature on the part of the first Respondent in W.P. No. 5640 of 2008 to issue the impugned notice u/s 78(2) of HR and CE Act. Therefore, according to the learned senior Counsel for the Petitioner, the temple cannot claim any relief as owner of the property. Lastly, it was submitted that when service inam is granted, as per the decision of the Honourable Supreme Court, the property vest only with the Service Inamdhar and not the temple and therefore, the temple has no legal authority to claim the grant. In support of his submission, the learned senior Counsel for the Petitioner relied on the following decisions:
(i) Muthavalli of Sha Madhari Diwan Wakf S.J. Syed Zakrudeen and Anr. v. Syed Zindasha and Ors. (2009) 3 MLJ 1337 : 2009 (4) LW 112 and submitted that it is well settled that no amount of consent can confer jurisdiction on a Court when it has none. If the Court had no jurisdiction, any order passed by it is a nullity. When the Court lacks inherent jurisdiction, the procedural provision of estoppel, waiver or res judicata shall not apply.
(ii)
(iii) Ayya Nadar and Ors. v. Sri Vaidyanathaswami Koil Devasthanam, Madavar Villagam, Srivilliputhur, through its-Executive Officer and Anr. (supra) which is a matter arose between the very same parties to the writ petitions in respect of the very same property involved in the above writ petitions, wherein a Division Bench of this Court has categorically held that interest of Devasthanam in service inam is not an interest in the property itself, but it is only for the purpose of the service in which inam was granted and Devasthanam cannot claim compensation or any part of it. The Division Bench also relied on the decision of the Honourable Supreme Court in Satyanarayana v. Venkatapayya (1953) 1 MLJ 693 (SC) wherein it was held that the exclusive jurisdiction of the Collector u/s 44-B of Act 2 of 1927 is only with regard to that part of Inam which forms the subject matter of the resumption proceedings and he has exclusive jurisdiction to determine whether part of the inam is liable to resumption on account of the default of the particular service holder, and his order is final. The Collector has no exclusive jurisdiction to determine the extent of inam, whether it includes the Kudiwaram and his decision in respect of the same cannot obviously be a bar to subsequent proceedings in a civil suit so as to preclude the devasthanam from raising an issue as to the true scope and nature of the inam grant.
(iv) The learned senior Counsel also relied on the findings of the judgment in O.S. No. 418 of 1998 and A.S. No. 97 of 2005 tiled by the temple as against the Petitioner herein for recovery of possession. Both the Courts below have clearly held, relying on the decision .
1998 (2) CTC 630, that the Civil Court has got jurisdiction to set aside the order passed by the Settlement Tahsildar and taking into consideration of the facts of the case that the Settlement Tahsildar has granted patta, the temple has not taken possession of the property and not established title to the property, the suit for possession filed by the temple has been rejected. Of course, the matter is now pending before this Court in S.A. No. 855 of 2008. Therefore, the right u/s 78(2) of the HR and CE Act has not accrued to the Respondents at all.
12. On the contrary, the learned Additional Government Pleader appearing for the first Respondent argued the case on the ground that the notice issued is only a show cause notice and it is always open to the Petitioner to participate in the proceedings before the authorities concerned and defend the same on merits. Even otherwise, inasmuch as the predecessor in title of the Petitioners themselves having participated and challenged the order of the Settlement Tahsildar, what is now sought for is only a consequential order of change of patta in the name of the temple and subsequent action contemplated u/s 78(2) of HR and CE Act which the Respondents are entitled to. Insofar as the disposal of the civil suit, ultimately, it is for this Court to decide the civil proceedings in S.A. No. 855 of 2008 and it may not be a bar for the temple to take necessary action for change of patta in their name as per the earlier writ petition and also to issue the notice u/s 78(2) of HR and CE Act to maintain the property and to safeguard the right and interest of the temple. Therefore, any action taken by the temple in this regard is in accordance with law. In this connection, the learned Additional Government Pleader relied on the following decisions
(i)
(ii) Periya Muthu Naicker and Anr. v. Arulmighu Sevantheeswarar Koil, rep. by its Trustee Rengasami Naicker, Assistant Settlement Officer, Thanjavur (1997) 2 LW 159 to say that mere long possession by any one other than the temple, or as representing temple, will not by itself militate against the grant being of both warams, in nature, in favour of the institution.
(iii)
(iv) S. Rangarajan v. District Registrar, Tiruchirapalli and Anr. 2008 (4) LW 411 and submitted that any sale of a temple land without the sanction by the Commissioner is declared as null and void. When the sale is held to be void, the question of the Petitioner coming forward with a plea that he had purchased it for a valuable consideration cannot be countenanced by this Court. So long as the temple is able to satisfy the Court that they are the real owners and eligible to get patta for the land in question, this Court cannot give any direction to a statutory authority to perform a duty which will be violating provisions of law.
(v) Kundrakudi Devasthanam v. Vellayan (1974) TNLJ 292 for the proposition that Section 82(2) specifically provides for grant of ryotwari patta in favour of the institution in which service is to be performed in certain cases. It is only under this provision the Devasthanam has been granted ryotwari patta as the service holders themselves could not claim ryotwari patta they having admittedly alienated the inam properties long ago. Therefore, the issue of ryotwari patta to the Plaintiff cannot be said to be invalid.
13. From the above pleadings and the Rulings cited by both sides, the factual matrix is that the predecessor in title of the Petitioner herein had purchased the property way back in the year 1942 and 1943 from the original grantee namely Sthalsthars under the inam. As admitted by both sides, the property in question is covered under TD 503, which is an inam land granted in favour of Sthalsthars and thereafter the inamdars alienated the property by virtue of sale deeds ranging from 1942 to 1945 in favour of the predecessor in title of the Petitioner namely Periyasamy Nadar and the said Periyasamy Nadar died on 13.12.1971 leaving behind him his three sons namely Duraisamy, Alagumuthu and Theriappa Nadar and patta also changed in their name. In the year 1984, Duraisamy, Son of Periyasamy Nadar executed a gift deed dated 3.2.1984 in favour of his daughter Theriammal and pursuant to the said deed, his 1/3rd share has been granted in the name of his daughter. Alagumuthu, son of Periyasamy Nadar, for himself and his minor children have executed the sale deed dated 1.3.1990 in favour of Theriappan Branch. Thereafter, by means of three sale deeds dated 10.8.1994, 10.8.1994 and 16.5.1996, the Petitioner mill purchased the property and in 1996 to 1997, the Petitioner mill improved the vacant site as spinning mills alter obtaining necessary permission from the authorities concerned and running the mill as on date. At the same time, it is also very clear that in view of the sale effected between 1942 to 1943, by order dated 21.7.1953, marked as Exhibit A-7 in the earlier suit, the Collector ordered resumption of land regarding both warams. Questioning the said proceedings of the District Collector, the alienees have filed suit claiming Warams in O.S. Nos. 3, 5, 6, 7, 8, 9, 10, 12 to 20 and 22 of 1954 before the District Munsif Court, Srivilliputhur which were dismissed on 25.4.1955, except O.S. No. 13 of 1954. As against the same, the Alienees filed AS. Nos. 110 to 114, 116 to 124 of 1995 before the Sub Court, Ramnad at Madurai and the temple has also filed A.S. No. 1 15 of 1955 against the decree passed in O.S. No. 13 of 1954. All the appeals were taken up together and they were dismissed on 15.8.1960. Thereafter, the alienees have filed S.A. No. 126 to 129, 131 to 133 of 1957 which were also dismissed. Thereafter. L.P.A. Nos. 21 to 26 of 1961 were filed which was also dismissed on 24.8.1967 and it was Ayya Nadar and Ors. v. Sri Vaidyanathaswami Koil Devasthanam, Madavar Villagam, Srivilliputhur, through its Executive Officer and Anr. (supra). A finding rendered by this Court in the order dated 24.8.1967 in the Letters Patent Appeal is crucial and the same is extracted hereunder:
It is true that the inam was not in favour of Sri Vaidyanathaswami Temple, Madavarvilagam. In fact, the claim of the Devasthanam is that the inam is a service inam, namely an inam granted to the holders of the offices attached to the temple like Archaka. Paricharaka. Karivelam, Sripandaram etc., as emoluments for their services etc.,...
We have already referred to the fact that the Devasthanam does not claim the inam grant as one made to the temple.
(emphasis supplied)
...We have already found that the inam grant was not a personal grant burdened with service but a service inam grant attached to the office of sthaladars of the devasthanam....
...It is mentioned in that colum that the whole of the pirivu of Padikasuvattam minus certain minor inams is held by the sthaladars and the other servants of the pagoda and that the tank by which these lands are irrigated is maintained at the cost of the inamdars.
...There is nothing in the inam extract or in the inam title deed, or the evidence in this case, to show that the inam is in respect of the Melwaram alone.
...The Collector has no exclusive jurisdiction to determine the extent of inam, whether it includes the Kudiwaram and his decision in respect of the same cannot obviously be a bar to subsequent proceedings in a civil suit so as to preclude the devasthanam from raising an issue as to the true scope and nature of the inam grant.
14. As per the Division Bench judgment, the final finding is the order of resumption made by the Collector is valid and therefore the alienees cannot question the right of the Collector in resumption of the land.
15. The question raised by the learned senior Counsel for the Petitioner is once the land are resumed by the Government under the Act and the land vested with the Government, whether the land to be further treated under the Minor Inams Act. His further contention is the subsequent enquiry conducted under Act 30 of 1963 and patta granted under the Act in favour of the Devasthanam is outside the scope and jurisdiction vested with the concerned authority inasmuch as the land has lost its character of inam the moment the land is vested with the Government and therefore, he further pleaded that any order passed by the authority, even for the grant of patta isperse illegal and therefore the subsequent appeal provisions under the Act 30 of 1963 even if it is not followed by the persons aggrieved inasmuch as the order itself is nan est in the eyes of law. It is further contended that as per the latest judgment of the Honourable Supreme Court and this Court, the order of the inam Settlement Tahsildar can always be questioned in a civil Court and the Civil Court is competent to decide the same on merits. It was also pointed out that though the patta was granted by Inam Settlement Tahsildar in the year 1974, till 2002, the temple has not taken any steps, whereas, patta continued to remain in the name of the vendors and predecessor in title of the Petitioner and thereafter, it was also transferred in the name of the Petitioner. Therefore, for the first time, the temple sought to transfer the patta in the year 2002, which is dealt with separately, though this patta transfer was done behind the back of the Petitioner.
16. At this juncture, it is pertinent to mention that already the temple has filed O.S. No. 418 of 1998 against the Petitioner for recovery of possession on the basis that the lands are inam lands and they have been encroached upon by the Petitioner, including his predecessor in title. That suit was hotly contested and ultimately, it was dismissed holding that the temple has not established title to the property not they have filed the suit for declaration of title to the property, hence, based on the patta issued by the Settlement Tahsildar, the relief sought for by the Petitioner cannot be granted. As against the same, the Temple has filed A.S. No. 97 of 2005, which was also dismissed on 22.10.2007. Thereafter, the temple has preferred Second Appeal No. 855 of 2008 before this Court and the same is pending adjudication in the civil side. At this stage, the temple has invoked the provisions of Section 78(2) of the HR and CE Act and issued the notice to the Petitioner as an encroacher calling upon them to show cause as to why they should not be removed from the property, which is challenged in W.P. No. 5640 of 2008.
17. In view of the above, either the first Respondent or the second Respondent in W.P. No. 5640 of 2008 cannot invoke Section 78(2) of HR and CE Act against the Petitioner, who claims to have been in lawful possession of the property and are bona fide purchaser for valuable consideration and duly put in possession by the predecessor in title of the Petitioner. It is also contended by the Petitioner that inasmuch as the inam land has lost its character subsequent to the passing of the order of the District Collector, cancelling the inam, their possession has to be safeguarded.
18. In this connection, it is pertinent to refer to the earlier writ petition filed by the Petitioner on the ground that the temple has sought for transfer of patta pursuant to the order passed by the settlement Tahsildar way back in the year 1974. From a reading of the civil Court judgment and the pleadings therein, it is clear that pursuant to the enquiry conducted by the Settlement Tahsildar, patta was granted not only in the name of the temple but also in the name of others, thereafter, the temple preferred an appeal and the name of the others were removed and patta was ultimately granted in the name of the temple in the year 1974. Thereafter, the temple has not taken any steps till 2002 when they sought for transfer of patta in their name. It is also the admitted case of both sides that though patta transfer was sought for by the temple, no notice was issued to the Petitioner and summarily the name of the temple has been incorporated in the records taking into consideration the settlement tahsildar''s order granting patta in the year 1974. Aggrieved against the same, the Petitioner has filed W.P. No. 23436 of 2002 which was allowed by this Court on 1.7.2002 on the ground that the well known proposition of ''Audi Alteram Partem'' has been violated while transferring the patta in favour of the temple. It was also held that atleast notice ought to have been given to the Petitioner to put forth their case and it is not open to the temple to seek transfer of patta. Aggrieved by the said order dated 1.7.2002, the temple filed W.A. No. 3928 of 2002 which was allowed by the Division Bench of this Court remanding the matter to the learned single Judge for fresh disposal after giving notice to both sides.
19. The Prayer in the W.P. No. 23476 of 2002 is to quash the order dated 18.3.2002 passed by the first Respondent Tahsildar in his proceedings Nee. Mu. No. B3/3 18/2000. On a careful perusal of the impugned order, it is seen that the Tahsildar himself has noted that as per Land Registration Development Scheme a number of persons have already obtained pattas and it is also admitted by the Temple that they were not aware of grant of patta in the name of different persons and they came to know of this only very belatedly, but they have sought for transfer of patta in their name and they have also given an undertaking before the Tahsildar, which has been recorded in the very order itself that the Temple would abide by any decision of Civil Court if the said pattathars had filed any case or filed any appeal as against the original grant. In fact, they have also given an undertaking that the decision made by the Civil Court would be binding on them. The Tahsildar himself has passed this order only on the basis of the opinion of the Government Pleader and the undertaking given by the Temple that they would abide by the result of the Civil Court. It is also pertinent to point out that the Tahsildar has not given any notice at all, to any of the parties in whose name the patta had been originally given.
20. It is evidenced from the earlier round of litigation in the writ petition stage itself that the application was quashed on the ground that there was no notice at all. But, unfortunately, since in that order, notice was not given to the Temple, the Temple preferred a writ appeal. Therefore, the writ appeal was allowed remitting the matter back to the Tahsildar and the learned single Judge is to dispose of the writ petitions.
21. Now, the question still remains is admittedly no notice has been issued at all to the persons in whose name the patta stood and has not at all been enquired. If that is the case, the order passed by the Tahsildar is per se illegal. In any view of the matter, the said Tahsildar has passed this order only on the undertaking given by the Temple itself that any order of the Civil Court will be binding on them and that will be the ultimate decision to decide the fate of the grant of patta. In that case, the present second appeal which is now pending before this Court, which is a comprehensive suit filed by the temple itself, as they have lost on both the Courts below. The ultimate decision of this Court in the Second Appeal No. 855 of 2008 will decide the issue. In any view of the matter, as it has been pointed out rightly that impugned order dated 18.3.2002 is liable to be set aside on the sole ground that no notice at all has been issued to the affected parties, especially, the Petitioner herein and it is also not the case of the Temple that originally as per the earlier order of the Settlement Tahsildar, immediately, the patta has been transferred. Patta has not been transferred till 2002 and it continues in the name of the original owner''s vendors of the writ Petitioner herein.
22. Under those circumstances, the principle of equity and natural justice require a minimum notice to the party concerned. In this case, it has not been done. Therefore, the impugned order is liable to be quashed. If the impugned order in W.P. No. 23436 of 2002 is quashed, then the question of issue of notice which is impugned in the second writ petition does not arise at all. In any view of the matter, it has been discussed in detail that it is only a show cause notice and the rights of the parties are to be decided in the suit which is now pending in the second appeal. Therefore, the authorities having failed in their attempt in the civil suit cannot summarily take over and issue notice as against the Petitioner. In this connection, I am also governed by the principles enunciated by the Supreme Court
23. In the above said ruling, the Supreme Court also relied upon the case in
6. As noticed earlier Section 91 of the Act prescribes a summary procedure for eviction of a person who is found to be in unauthorised occupation of Government land. The said provisions cannot be invoked in a case where the person in occupation raises bona fide dispute about his right to remain in occupation over the land. Dealing with similar provisions contained in Section 6 of the Andhra Pradesh Land Encroachment Act, 1945, this Court in Government of Andhra Pradesh v. Thummala Krishna Rao (supra) has laid down though the the summary remedy for eviction provided by Section 6 of the said Act could be resorted to by the Government only against persons who are in unauthorised occupation of any land which is the property of the Government and if the person in occupation has a bona fide claim to litigate he could not be ejected save by the due process of law and that the summary remedy prescribed by Section 6 was not the kind of legal process which is suited to an adjudication of complicated questions of title. For the same reasons, it can be said that summary remedy available u/s 91 of the Act is not the legal process which is suited for adjudication of complicated questions of tile where the person sought to be evicted as an unauthorised occupant makes a bona fide claim regarding his right to be in possession. In such a case, the proper course is to have the matter adjudicated by the ordinary Courts of law.
7. In the present case, Respondent 1 has put forward a bona fide claim about her right to remain in occupation over the land. The said claim raises questions involving applicability and interpretation of various laws and documents as well as investigation into disputed questions of fact involving recording of evidence. These matters could not be satisfactorily adjudicated in summary proceedings u/s 91 of the Act and can be more properly considered in regular proceedings in the appropriate forum.
8. In view of the fact that these proceedings have been pending for the past 25 years, we were not disinclined to consider the claim of Respondent 1 that she is entitled to remain in occupation of the land. But, we find that many of the questions that arise for such determination require an investigation into facts and in the absence of the factual foundation we are not in a position to deal with the same and record our findings. We, therefore, refrain from expressing our views on the said questions.
24. In this case, admittedly, when the Civil Suit was instituted by the Temple itself for recovery of possession and which is now pending adjudication in the Second Appeal, the present notice u/s 78(2) of the Hindu Religious and Charitable Endowments Act, 1959, for removal of encroachment cannot be considered at all. The issuance of patta, cancellation of patta and transfer of patta are all the subject matter of the Civil proceedings. Under those circumstances, when a suit for possession itself is pending adjudication by this Court, it is premature to issue a notice u/s 78(2) of the Hindu Religious and Charitable Endowments Act, 1959. As held by the Supreme Court in the above said decision, when there is a bona fide dispute we cannot treat the party as an encroacher and summarily throw him out. As per the principles enunciated by the Supreme Court also, the notice issued u/s 78(2) of the Hindu Religious and Charitable Endowments Act, 1959, cannot be lightly treated.
25. Above all these things, as the temple itself has given an undertaking before the Tahsildar that they will be abiding as per the decision of the Civil Court, it is premature at this point of time for them to invoke Section 78 of the Hindu Religious and Charitable Endowments Act. The notice issued by the Petitioner is not legally enforceable and in any view of the matter, all these things can be decided only based on the outcome of the second appeal in S.A. No. 855 of 2008.
26. The party, who is to be adversely affected by any order has to be given notice. In this case, the first Respondent in W.P. No. 23436 of 2002 has passed the order dated 18.3.2002 transferring patta in the name of the temple without notice to the Petitioner. As rightly pointed out by this Court in the order dated 1.7.2002, the principles of ''Audi Alteram Partem'' has been violated while transferring the patta in favour of the temple and the Petitioner ought to have been given notice to put forth their stand. Therefore, this Court is of the view that the order dated 18.3.2002 passed by the first Respondent in W.P. No. 23436 of 2002 is liable to be quashed.
27. So far as W.P. No. 5640 of 2008 is concerned, the temple has already tiled O.S. No. 418 of 1998 against the Petitioner for recovery of possession which was dismissed. As against the same, the Temple has filed A.S. No. 97 of 2005, which was also dismissed on 22.10.2007. Thereafter, the temple has preferred Second Appeal No. 855 of 2008 before this Court and the same is pending. At this stage, the notice issued u/s 78(2) of HR and CE Act, which deals with removal of encroachment, is unnecessary besides it is premature and the first Respondent in W.P. No. 5640 of 2008 ought not to have issued the said notice to the Petitioner. Though, a writ petition is not maintainable against a show cause notice, in view of the findings of the civil Court and in view of the patta transfer proceedings, which is the subject matter in W.P. No. 23436 of 2002, has been quashed by this Court, as mentioned above, this Court is of the view that the first Respondent has no right to send the impugned notice to the Petitioner invoking Section 78(2) of HR and CE Act inasmuch as the temple has failed in their attempt before the Civil Court and the First Appellate Court. Moreover, as per the judgment of the Honourable Supreme Court, the Civil Court is competent to decide the question of title in respect of inam lands. However, it is open to the first Respondent in W.P. No. 5640 of 2008 to invoke the provisions of HR and CE Act as and when this Court renders a decision in S.A. No. 855 of 2008 filed by the temple.
28. In the rulings cited by the learned senior Counsel for the Petitioner in Muthavalli of Sha Madhari Diwan Wakf S.J. Syed Zakrudeen and Anr. v. Syed Zindasha and Ors. (supra) and M.V. Janardhan Reddy v. Vijaya Bank and Ors. (supra) it was held that an order passed by an officer, having no authority of law, has no effect and it neither creates any right in favour of a party for whom such an order is made nor impose any obligation on the opposite party against whom it was passed. In this case, the order passed by the District Collector for resumption of the lands has been held to be valid as per the decision of the Division Bench of this Court in Ayya Nadar and Ors. v. Sri Vaidyanathaswami Koil Devasthanam, Madavar Villagam, Srivilliputhur, through its Executive Officer and Anr. (supra). It is also to be stated that this Court had time and again held that the validity of an order can be tested by a civil Court. However, fortunately or unfortunately the temple has invoked the civil Court jurisdiction to seek possession and the same is pending before this Court in Second Appeal, hence, it is sufficient to hold that all these matters will have to be decided only in the second appeal and therefore, no specific finding is necessary at this point of time.
29. Ultimately, as far as the first writ petition in W.P. No. 23436 of 2002 is concerned, as rightly pointed out and as per my discussion above, it is clear that the Tahsildar, while granting patta in favour of second Respondent temple, has not chosen to issue any notice to the Petitioner or any one concerned which is also admitted. This Court referred to the decision of the Supreme Court and held that even otherwise if the authority passes an order without following the procedure, naturally, there is no need to appeal and the aggrieved party can straight away approach this Court under Article 226. Under those circumstances, as per the latest decision in State of Rajasthan v. Padmavati Devi (Smt) (Dead) by LRs. and Ors. (supra) wherein, it is held that the order passed by the Tahsildar granting of patta in favour of the temple is set aside and subsequently the writ petition is allowed, the Tahsildar will issue fresh notice to the Petitioner and the temple and any other person interested in the property conduct de-nova enquiry afresh and then pass orders. In any view of the matter also taking into consideration the subsequent development wherein the temple has already filed a suit which is now pending before the High Court in S.A. No. 855 of 2008, as far as the second writ petition is concerned, in my finding in the first writ petition in respect of the very grant of patta is now set aside and as there is a bona fide dispute between the parties. As the Civil Suit filed by the temple has already been dismissed which is now pending before adjudication in S.A. No. 855 of 2008. The proposed action initiated by the Joint Commissioner, HR and CE, Sivaganga, u/s 78 notice will not arise. As per the earlier paragraph, Section 78 would not apply to encroachment and the Petitioner cannot be considered as an encroacher. Under those circumstances, the writ petition is allowed and the notice is set aside. The parties will also abide by findings of the second appeal which is now pending.
30. In the result, both the writ petitions are allowed to the extent indicated above. No costs.
