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2008 DIGILAW 1243 (MAD)

K. Gokul Murugesan v. State of Tamil Nadu

2008-04-10

A.P.SHAH, PRABHA SRIDEVAN

body2008
Judgment : Per A. P. SHAH, C. J. 1. Admit. Learned counsels appearing for the respondents waive service. By consent, both writ petitions are taken up for final hearing. 2. These petitions are preferred in public interest to protect the lands belonging to Arulmighu Thirusoolanathar Temple, situate in Thirusoolam, a suburb of Chennai, which are sought to be grabbed by anti-social elements with the connivance of Government officials, by forging the Government records and obtaining orders from this Court by misrepresenting the facts. The temple is dedicated to Lord Shiva and as per the stone inscriptions and other evidence available, the temple dates back to 9th century. The temple is holding various lands in and around the village of Thirusoolam, which has been gifted by various kings and the lands have been maintained by the temple. The income arising out pf the lands is being used by the temple for its upkeep and for conducting several rituals and expenses. The first settlement register of the year 1891 and the subsequent survey register of the year 1911 prepared by the revenue authorities show that the lands are owned by the temple. All the revenue records including ‘A‘ Register show that the lands have always been owned and possessed by the temple. 3. After the enactment of the Tamil Nadu Religious & Charitable Endowments Act, 1959, the temple has been brought under the control of Executive Officer, HR & CE and consequently these lands have come into the possession of the Executive Officer, the third respondent herein. As per the revenue records, the lands in Survey Nos. 29, 30, 31/3, 31/1, 32, 33, 34, 36, 37, 38, 39, 40, 42, 43, 44, 45/1, 45/2; 46, 47/1, 47/2, 49, 50, 51, 52, 53, 54, 55, 56, 57, 60, 61, 63/1, 63/2, 64, 65, 66, 67/1, 67/2, 68, 59, 73, 74, 75, 76, 77, 79, 80, 81, 82, 83, 88, 90, 91, 92, 94, 95, 97/1, 97/2 and 117 in Thirusoolam village, totally measuring about 83.33 acres are owned by the temple. 4. 4. The petitioners have alleged that the Assistant Settlement Officer, Department of Survey and Settlement, who is arrayed as the 4th respondent on the basis of an un-dated application of the 8th respondent (9th respondent in W.P. No. 3647 of 2008) passed an order directing mutation of revenue records in favour of the 8th respondent in respect of the lands owned by the temple. In his undated application, the 8th respondent had stated that the lands were purchased by one Mrs. Ida L. Chambers, whom he claimed to be his grandmother. It was stated that Mrs. Ida L. Chambers purchased the above mentioned properties from two persons, namely, Muthuswamy Gurukkal and Narasimahan Gurukkal. It may be mentioned at this stage that the revenue records of the year 1891 shows that Muthuswamy Gurukkal was the Gumastha (Manager) of the temple. Column No.14 of the Settlement Register pertaining to the name of Pattadhar or Inamdhar or the Manager of the Institution to which the land belongs shows Muthusami Gurukkal, as Gumastha of Tirusoolanathaswamiyar Temple. A perusal of the said order passed by the 4th respondent in No.Mu.Mu. 1187/2000. dated 3.7.2000 would reveal that no notice was sent to the temple nor any records have been perused to come to the conclusion about the genuineness of the claim of the 8 respondent. 5. Armed with the order passed by the 4th respondent, respondents 8 and 9 approached this Court in W.P. No. 32442 of 2007 inter alia seeking for the fallowing relief: “……..to issue a writ or order or any other direction and more particularly a writ in the nature of mandamus directing the respondents to grant patta in the name of my principal George Joseph Chambers in respect of the properties shown in the schedule of the petition in SurveyNo.45/2 and other survey numbers, property measuring about 83.33 acres, situated at Tirusoolam Village, Tambaram Taluk, Kancheepuram District.” The relief has been sought for solely on the basis of the order passed by the 4th respondent dated 3.7.2000. The writ petition was dismissed on 9.11.2004 with an observation that the relief sought for can be granted only in a common law remedy and not in writ petition. 6. Respondents No. 8 is stated to be the power agent of respondent No. 9. The writ petition was dismissed on 9.11.2004 with an observation that the relief sought for can be granted only in a common law remedy and not in writ petition. 6. Respondents No. 8 is stated to be the power agent of respondent No. 9. After dismissal of the aforesaid writ petition on 9.11.2004, respondents 8 and 9, by suppressing the dismissal of the writ petition, have filed another writ petition being W.P. No. 35192 of 2004. The second writ petition in a verbatim reproduction of the earlier writ petition, which was dismissed by this Court, except for the relief portion. In W.P. No. 35192 of 2004, the relief sought for was as follows: “…….issue a writ or order or any other direction more particularly a writ in the nature of mandamus directing the respondents to consider the representation of the petitioners dated 19.11.2002 and 16.10.2004 in respect of the properties in Survey No. 45/2 and other Survey Numbers, property measuring about 83.33 acres, situated at Thirusoolam Village, Tambaram Taluk, Kancheepuram District.” The very same order of the 4th respondent was relied upon in this writ petition. The writ petition was disposed of on 19.12.2004 with a direction to the 6th respondent, i. e. the Tahsildar, Tambaram Taluk, to dispose of the representation of the writ petitioners on merits and in accordance with law, within a period of six weeks from the date of receipt of copy of that order. 7. Learned counsel appearing for the 3rd respondent i. e., Executive Officer of the Temple submitted that he was not aware of the order passed by the Assistant Settlement Officer, directing mutation of the revenue records in favour of the 8th respondent. Learned counsel submitted that the temple continues to be the owner of the lands in question. Learned counsel further submitted that the management of the temple did not receive any notice in t e proceedings before the Assistant Settlement Officer, though the rights in respect of the lands of the temple were being questioned. 8. Further, it is pertinent to state that though the order reads that the 8tn respondent has produced the sale deeds of the aforesaid lands by Mutuswamy Gurukkal and Narasimha Gurukkal in favour of Mrs. 8. Further, it is pertinent to state that though the order reads that the 8tn respondent has produced the sale deeds of the aforesaid lands by Mutuswamy Gurukkal and Narasimha Gurukkal in favour of Mrs. Ida L. Chambers and it also refers to certain Adangal copy, chitta copy, document copy, kist, remittance receipts, etc., no such sale deeds or documents are available in the original records. The list of documents is also not set out in the order of the 4th respondent. 9. In the counter affidavit filed on behalf of the 8th respondent, it is stated that the sale deeds and other documents were kept-in the custody of one Robert Hibba, who was the Power of Attorney of the 8th respondent and the same are not available with him. It is further stated in para. 11 of the counter affidavit that the 8th respondent is not aware of the proceedings initiated by the Power Agent with regard to the properties in question. This is prima facie false inasmuch as the very heading under the reference in the order dated 3.7.2000 reveals that the order came to be passed on an application submitted by the 8th respondent, George Chambers. It is, in fact, stated in the order that the 8th respondent has given an undated application to the Assistant Settlement Officer for mutation of the revenue records and based on such representation, the order, which is impugned in the present writ petition, came to be passed. 10. In the counter affidavit, the 6th respondent is unable to show as to how he has acquired the title to the lands in question. There is no reference to any title deed or any other document to substantiate his claim to the lands. On the contrary, the counter affidavit proceeds on the assumption that the 8th respondents grandmother had purchased the property from Muthusamy Gurukkal based on the Ryotwari patta. The details of alienation and the sale deeds have not been disclosed in the counter affidavit. It is thus clear that the 8 respondent has managed to procure the order for mutating his name in the records without producing any documents in support of his claim. This is clearly a mala fide attempt to create title in respect of the properties of the temple. It is thus clear that the 8 respondent has managed to procure the order for mutating his name in the records without producing any documents in support of his claim. This is clearly a mala fide attempt to create title in respect of the properties of the temple. This is a blatant attempt to grab the properties of an ancient temple which is of great historical and religious significance. It is also clear that the orders have been obtained with the connivance of a Government Officer, the 4th respondent, who is the Assistant Settlement officer, to create evidence of the title of the 8th respondent in respect of the lands of the temple. 11. Learned counsel appearing for 8th and 9th respondents urged that the issue of title cannot be gone into or adjudicated upon in the writ petitions. It was submitted that the writ petitions are not maintainable and the petitioners even in respect of the temple lands must seek- remedy only before a civil Court. Heavy reliance was placed on the decision of the Supreme Court in State of Rajasthan v. Bhawani Singh AIR 1992 SC 1018 . We find absolutely no merit in the submissions. The issue in the writ petitions revolves around the Application made by the 8th respondent to the Assistant Settlement Officer for mutation of the revenue records in respect of the valuable piece of lands belonging to an ancient temple and procuring the order from the Assistant Settlement Officer without any notice to the temple. It is not the ownership of the temple, which is in dispute in the writ petitions, but the fact that the third parties, who are totally unconnected to the lands in question, are trying to grab the properties of the public temple in collusion with the revenue officials in a devious manner. 12. In a recent decision of a three-Judge Bench of the Supreme Court in the case of A. A. Gopalakrishnan v. Cochin Devaswom Board and Others A. A. Gopalakrishnan v. Cochin Devaswom Board and Others A. A. Gopalakrishnan v. Cochin Devaswom Board and Others (2007) 7 SCC 482 : (2007) 6 MLJ 751, Hon‘ble The Chief Justice observed at p. 753 of MLJ: “ 10. The properties of deities, temples and Devaswom Boards, require to be protected and safeguarded by their trustees/ archakas/ shehaits/employees. The properties of deities, temples and Devaswom Boards, require to be protected and safeguarded by their trustees/ archakas/ shehaits/employees. Instances are many where persons entrusted with the duty of managing and safeguarding the properties of temples, deities and Devaswom Boards have usurped and misappropriated such properties by setting up false claims of ownership or tenancy, or adverse possession. This is possible only with the passive or active collusion of the authorities concerned. Such acts of “fences eating the crops” should be dealt with sternly. The Government, members or trustees of boards/trusts, and devotees should be vigilant to prevent any such usurpation or encroachment. It is also the duty of Courts to protect and safeguard the properties of religious andchari-table institutions from wrongful claims or misappropriation.” (emphasissupplied) 13. In that case, the Supreme Court dismissed the plea of respondents 3 and 4 therein that the settlement was validly arrived at in that suit between them, i. e. the plaintiffs and the Devaswom Board (the defendant), that the Devaswom Board had considered the proposal after taking legal advice and had duly passed a resolution to settle the suit. The case of the respondents 3 & 4 was that a decree having been made in terms of the compromise and each decree having attained finality, it cannot be questioned, interfered or set aside at the instance of a third party in a writ proceeding. Reliance was also placed on Order 23Rule 3-A C.P.C., which provides that no suit shall lie to set aside a decree on the ground that the compromise on which the decree is based was not lawful. Rejecting the contention, the Supreme Court held that the bar contained in Rule 3-A will not come in the way of the High Court examining the validity of a compromise decree, when allegations of fraud/collusion are made against a statutory authority which entered into such compromise. It was further held that though it is true that decrees of civil Courts which have attained finality should not be interfered with lightly, challenge to such compromise decrees by an aggrieved devotee, who was not a party to the suit, cannot be rejected, where fraud/collusion on the part of officers of a statutory board is made out. Consequently, the compromise decree was set aside. 14. Consequently, the compromise decree was set aside. 14. The facts of the present case reveals a devious attempt on the part of respondents 8 and 9 to grab the lands of the temple by procuring orders of the 4th respondent on the basis of the nonexistent sale deeds and by misrepresenting the facts. The order passed by the Assistant Settlement Officer is wholly unsustainable and is liable to be set aside. We are also of the view that a thorough investigation is necessary in order to find out how the 8tt respondent could procure the order in respect of the vast extent of valuable land belonging to the temple. Accordingly, we issue the following directions: (i) The order passed by the 4th respondent in Mu.Mu.1187/2000 dated 3.7.2000 is quashed and set aside. (ii) The CB CID is directed to investigate into the conspiracy hatched by respondents 8 and 9 to grab the lands of the temple and the role of Era. Shanmugam, Assistant Settlement Officer in the whole matter and also the role of other persons, who are connected with this transaction including 8th and 9th respondents. (iii) The State Government is directed to initiate disciplinary enquiry against the 41 respondent, viz., Era. Shanmugam, Assistant Settlement Officer, and take appropriate action against him in accordance with law. Writ petitions stand disposed of as above. No costs. Consequently, connected miscellaneous petitions are closed.