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2014 DIGILAW 1163 (MAD)

J. Sundararajan @ Sundaram v. District Collector

2014-06-06

R.MAHADEVAN

body2014
Judgment : 1. The petitioner has come forward with the present Writ Petition challenging the order dated 20.02.2009, of the second respondent and also seeking a direction to the second respondent to transfer the patta in respect of the properties situated at Nilayoor II Bit, Thirupparankundram in Old Survey.No.293, Re-Survey.Nos.283/2A, 283/2B and 283/2C, of an extent of 3 acres 65½ cents in the name of Arulmighu Veyilukkugandha Amman Temple, Thirupparankundram, and 50 cents in Old Survey.No.293, Re-Survey.Nos.283/2A, 283/2B and 283/2C in the name of Poojaries. 2. The brief facts set out in the affidavit filed in support of the Writ Petition are as follows: (i) The petitioner is one of the trustees of Arulmighu Veyilukkugandha Amman Temple, Thirupparankundram, along with 11 others. The said temple is under the management of the petitioner and 11 others. The lands in Old Survey Nos.177, 199/4, 576/1 and 399/8 belonged to Arulmighu Veyilukkugandha Amman Temple. While so, in an extent of 78 cents in Survey No.177, a portion of the property was taken by the Railway line and the remaining extent of about 25 cents is available with the temple. (ii) In respect of Survey No.199/4, it has an extent of 38 cents and the same was the subject matter of the suit in O.S.No.95 of 1983 filed by Arulmighu Meenakshi Sundareswarar Devasthanam, represented by its Executive Officer, for the relief of recovery of possession, as against the person, who managed the temple viz., Arulmighu Veyilukkugandha Amman Temple. The defendants in the said suit questioned the right of Arulmighu Meenkashi Sundareswarar Devasthanam and also claimed the right of management and poojariship in the temple. The Sub Court, Madurai, dismissed the suit holding that the plaintiff, viz., Arulmighu Meenakshi Sundareswarar Devasthanam did not have any right over the temple and further, the defendants in the suit were all poojaries and were in management of the temple and, therefore, there cannot be a decree for recovery of possession, against which, no appeal was filed. (iii) The property in Survey No.576/1, having an extent of 2.2 acres, stands in the name of Arulmighu Veyilukkugandha Amman Temple, Thirupparankundram. The land in Survey No.660 was taken over by the Government for the purpose of running an Educational Institution. No amount was given towards compensation. (iii) The property in Survey No.576/1, having an extent of 2.2 acres, stands in the name of Arulmighu Veyilukkugandha Amman Temple, Thirupparankundram. The land in Survey No.660 was taken over by the Government for the purpose of running an Educational Institution. No amount was given towards compensation. (iv) The properties in Survey Nos.1271/1 and 110/7 were acquired by Madurai Co-operative Society, for construction of houses and the compensation given towards was utilized for purchasing the property in the name of the temple, by a sale deed executed by Vaduvammal and others, which comprised in Old Survey No.293, having an extent of 3 acres and 65 ½ cents, in a total extent of 5 acres 65 cents. An extent of 50 cents was also gifted in the name of poojaries, by gift deed dated 18.11.1950 and the Old Survey No.293 has been re-surveyed as Survey Nos.283/2A, 283/2B and 283/2C. (v) Though the property was purchased only in the name of Arulmighu Veyilukkugandha Amman Temple, Thirupparankundram, the respondents, during re-survey, has changed the name in the patta, by including Meenakshi Sundareswarar Devasthanam, without giving notice to the petitioner as well as the other trustees of Arulmighu Veyilukkungandha Amman Temple. Re-Survey Nos.283/2B and 283/2C stand in the name of Meenakshi Sundareswarar Devasthanam and Re-Survey No.283/2A stands in the name of Krishnan, S/o.Palaniyandi. (vi) On coming to know about the change of patta, the petitioner, as a trustee and hereditary poojari of Arulmighu Veyilukkugandha Amman Temple, filed a petition before the second respondent, on 17.01.2008, requesting to change patta in the name of Arulmighu Veyilukkungandha Amman Temple, with respect to an extent of 3 acres 65 ½ cents in Re-Survey Nos.283/2A, 283/2B and 283/2C. Since the second respondent has not considered the representation so far, the petitioner has approached this Court by way of Writ Petition and this Court, by order dated, 05.12.2008, directed the respondents to pass orders on the petition dated 17.01.2008. (vii) However, by oversight, in the prayer column of the earlier Writ Petition, it was wrongly stated that 50 cents has also to be transferred in the name of Arulmighu Veyilukkugandha Amman Temple and hence, an amendment petition was filed in M.P.(MD)No.1 of 2009 and the same was also ordered by this Court on 19.02.2009. (vii) However, by oversight, in the prayer column of the earlier Writ Petition, it was wrongly stated that 50 cents has also to be transferred in the name of Arulmighu Veyilukkugandha Amman Temple and hence, an amendment petition was filed in M.P.(MD)No.1 of 2009 and the same was also ordered by this Court on 19.02.2009. The amendment sought for by the petitioner was also brought to the notice of the respondents by a letter dated 05.02.2009 and a copy of the order of amendment was also given to the respondents on 05.03.2009. However, the second respondent passed the impugned order, rejecting the request of the petitioner to transfer patta. 3. The fourth respondent has filed a counter-affidavit stating that the petitioner has no locus standi to file the present Writ Petition, since he has not been recognized as per the provisions of Tamil Nadu Act 22 of 1959. It is further stated that the petitioner has filed W.P.No.18608 of 2008, challenging the order of the Commissioner, Hindu Religious and Charitable Endowments Department, Chennai, for transferring and grouping Arulmighu Veyilukkugandha Amman Temple with the third respondent temple and the fourth respondent has filed an application under Section 101 of Tamil Nadu Act 22 of 1959 for taking over possession of the temple and as against the said proceedings, the petitioner has filed Crl.O.P.No.4665 of 2008 on the file of this Court. 4. It is further stated in the counter-affidavit that the properties in Survey Nos.127/1 and 110/7 were acquired by the Thirunagar Co-operative Building Society, Madurai and from the compensation received towards, 4.15 acres of land was purchased in Survey No.293 in the name of the temple and the petitioner has nothing to do with the lands and he cannot seek transfer of patta in respect of 0.50 cents of land in his name and the patta can be mutated only in the name of the temple and not in the name of the individuals and thus, the fourth respondent prayed for dismissal of the Writ Petition. 5. I have considered the above submissions and perused the records carefully. 6. 5. I have considered the above submissions and perused the records carefully. 6. During the course of the argument, the learned counsel for the petitioner referred to the proceedings of the fourth respondent, viz, the Joint Commissioner/Executive Officer of Arulmighu Subramania Swamy Temple, Thirupparankundram, in Na.Ka.No.1324/95/E1, dated 11.02.2009, wherein the Joint Commissioner expressed no objection so as to keep those properties in the name of Arulmighu Veyilukkugandha Amman Temple. 7. Further, it is the case of the petitioner that 50 cents was donated by one Mr.Srinivasan, by way of a deed of settlement registered in the year 1950 in the name of the poojaries, which is enclosed at page No.1 of the typed-set of papers filed in support of the Writ Petition. So, related to these properties also, the fourth respondent cannot have any claim. 8. On the other hand, the Tahsildar, despite the communication dated 11.02.2009, in which, the fourth respondent himself has expressed no objection to change the patta in the name of Arulmighu Veyilukkugandha Amman Temple, without affording sufficient opportunity and without conducting any enquiry, passed the impugned order, refused to transfer the patta in the name of Arulmighu Veyilukkugandha Amman Temple. 9. For the sake of convenience, the proceedings dated 11.02.2009 is extracted hereunder: “LANGUAGE” 10. For better appreciation, itwould be worthwhile to extract the relevant provisions of the Tamil Nadu Patta Pass Book Act, 1983, which reads as follows:- “10. Modification of entries in the patta pass-book.- (1) Where any person claims that any modification is required in respect of any entry in the patta pass-book already issued under section 3 either by reason of the death of any person or by reason of the transfer of interest in the land or by reason of any other subsequent change in circumstances, he shall make an application to the Tahsildar for the modification of the relevant entries in the patta pass-book. (2) An application under sub-section (1) shall contain such particulars as may be prescribed and shall be accompanied by the documents, if any, relied on by the applicant as evidence in support of his claim. (3) (a) Before passing an order on an application under sub-section (1), the Tahsildar shall follow such procedure as may be prescribed and shall also give a reasonable opportunity to the parties concerned to make their representations either orally or in writing. (3) (a) Before passing an order on an application under sub-section (1), the Tahsildar shall follow such procedure as may be prescribed and shall also give a reasonable opportunity to the parties concerned to make their representations either orally or in writing. If the Tahsildar decides that any modification should be made in respect of entries in the patta pass-book, he shall pass an order accordingly and shall make such consequential changes in the patta passbook, as appear to him to be necessary, for giving effect to his order. (b) If the Tahsildar decides that there is no case for effecting any modification in the entries in the patta pass-book, he shall reject the application. (c) An order under clause (a) or clause (b) shall contain the reason for such order and shall be communicated to the parties concerned in such manner as may be prescribed. 12. Appeal.- Any person aggrieved by an order made by the Tahsildar under this Act may, within such period as may be prescribed, appeal to such authority as may be prescribed and the decision of such authority on such appeal shall subject to the provisions of section 13, be final. "13. Revision.-Any officer of the Revenue Department not below the rank of District Revenue Officer authorised by the Government, by notification in this behalf for such area as may be specified in the notification, may of his own motion or on the application of a party call for and examine the records of any Tahsildar or appellate authority within his jurisdiction in respect of any proceeding under this Act and pass such orders as he may think fit: Provided that no such order prejudicial to any person shall be made unless he has been given a reasonable opportunity of making his representation.” 11. Similarly, the relevant Rules under the Tamil Nadu Patta Pass Book Rules, 1987 is extracted below. “12. Application for modification of entries in Patta Pass-Book.-(1) Application for modification of entries in the Patta Pass-Book under Section 10 of the Act shall be in Form - VI and shall be made within ninety days from the date of acquisition of right:- Provided that the Tahsildar may for just and sufficient reasons allow a further period of not exceeding ninety days for making an application for this purpose. (2) The application under sub-rule (1) shall be affixed with court fee labels of Rs.3 towards fee for this purpose. 14. Appeal. - An appeal against any order of the Tahsildar passed under the Act shall be filed before the officer in charge of Revenue Division in whose jurisdiction the property lies within a period of thirty days from the date of the receipt of the order. 15. Revision on application.- (1) An application under section 13 to the District Revenue Officer or such officer as may be authorised by the Government in this behalf by Notification for revision of an order passed by the Tahsildar or the appellate authority shall be filed within ninety days from the date of receipt of the order. (2) The District Revenue Officer or such officer as may be authorised by the Government may admit an application for revision presented after expiry of the period mentioned in sub-rule (1), if he is satisfied that the party had just and sufficient cause for not presenting it within the said period." 12. In the decision in T.R.Dinakaran Vs. The Revenue Divisional Officer, reported in 2012 (3) CTC 823 , this Hon’ble Court has held as follows: "15. From the reading of the above said provisions under the Tamil Nadu Patta Pass Book Act, 1983 and the Rules made thereunder, it could be seen that the Tashildar is the competent authority under Section 10 for modifications of the relevant entries in the Patta Pass Book and such modifications are also possible only under the following circumstances, namely, (i) by reason of the death of any person; or (ii) by reason of the transfer of interest in the land; or (3) by reason of any other subsequent change in circumstances. Therefore, the Tashildar is empowered to make modification of entry in the Patta Pass Book only under those three circumstances as referred above. Even for making such modification based on application filed by the person, the Tashildar is bound to give reasonable opportunity to the parties concerned to make their representations either orally or in writing. Thereafter, the Tashildar shall pass an order accordingly, and also make such consequential changes in the Patta Pass Book as appears to be necessary for giving effect to his order. If the Tashildar decides that there is no necessity for effecting any modification, he shall reject the application seeking for modification." 13. Thereafter, the Tashildar shall pass an order accordingly, and also make such consequential changes in the Patta Pass Book as appears to be necessary for giving effect to his order. If the Tashildar decides that there is no necessity for effecting any modification, he shall reject the application seeking for modification." 13. Recently, this Court, in W.P.(MD)No.16294 of 2012, dated 04.04.2014 [Amsaveni vs. The District Revenue Officer, Madurai and two others], on a careful consideration of the Tamil Nadu Patta Pass Book Act, 1983, Tamil Nadu Patta Pass Book Rules, 1987 and also various judgments of the Hon'ble Supreme Court, held as follows: "15. The present Writ Petition is against the order of the first respondent restoring the patta in the name of the fourth respondent. Therefore, in this Writ Petition, under Article 226 of the Constitution of India, this court cannot go into the title of the parties. Any opinion by this Court on the validity of the settlement deed and cancellation deed would prejudice the interest of the parties. Already, the fourth respondent filed a Cvil Suit in O.S.No.107/2011 for permanent injunction. But no relief as to title is sought in the suit. On the date of filing the suit, the order of the second respondent was in force. The allowance or dismissal of the suit would also not confer any title over the parties as the appropriate relief would be to file a suit for declaration. 16. Patta is not a document conferring title, unless the same is issued by the Government by way of assignment. When there is a dispute regarding title based on documents and possession, it is only the civil court, which will have jurisdiction. In this case, both the Appellate Authority, the second respondent herein and the Revisional Authority, the first respondent herein have gone into the question of title, which they cannot to do so. If there is a cloud over the title, they must have relegated the parties to approach the Civil Court. In the order impugned, the first respondent has restored the patta in the name of the fourth respondent, which was issued by the third respondent, without hearing the petitioner. 17. In view of the above, the orders of the respondents 1 to 3 are set aside. In the order impugned, the first respondent has restored the patta in the name of the fourth respondent, which was issued by the third respondent, without hearing the petitioner. 17. In view of the above, the orders of the respondents 1 to 3 are set aside. The petitioner and the fourth respondent are at liberty to take appropriate steps to confirm their title before the competent Civil Court and patta shall be issued by the third respondent to the successful party before the civil court." 14. However, it is mutually argued by both parties that the matter may be remitted back to the authority concerned for proper verification and to pass appropriate orders. 15. In view of the above stated position, the impugned order dated 20.02.2009 is set aside and the matter is remitted back to the authority concerned, viz., the second respondent, the Tahsildar, Madurai, to pass orders afresh, on the basis of the documents registered in the year 1950 as well as the proceedings dated 11.02.2009, after affording sufficient opportunity to all the parties concerned and after conducting thorough enquiry. The said exercise shall be completed, within a period of six weeks from the date of receipt of a copy of this order. 16. The Writ Petition is allowed to the extent indicated above. No costs.