S NAGARAJ Vs. SUB COLLECTOR HOSUR

JUDGEMENT

(1.) (Prayer: Writ petition under Article 226 of the Constitution of India The cancellation order passed by the first respondent-Sub-Collector, Hosur, in the proceedings in ROC.1638/2008 (B2), dated 9.7.2008, under Section 19(5) of the Tamil Nadu Minor Inams (Abolition and Conversion into Ryotwari) Rules, 1965 (for short, 'the Rules') read with Rules 19(1), (2), (3) and (4) of the said Rules, wherein, the Ryotwari patta issued to the petitioner by the Settlement Tahsildar No.I, Salem, was cancelled and the lands were recorded in the name of (i) Sri Devaraja Swamy Temple at Nallur Village (Vide T.D.No.858) and (ii) Sri Someswara Swamy Temple at Hosur Village (Vide T.D.No.859) in patta Nos.232 and 2204, by deleting the name of S.Nagaraj (writ petitioner) in the above pattas and further cancelling the order of the Tahsildar, Hosur in fixing the fair rent and issuing patta in the name of the petitioner, is called in question, seeking to quash the same.

(2.) THE case of the petitioner goes thus: 2.1. THE lands comprised in Survey Nos.33, 425/3, 425/1, 426/1, 426/3 and 329, Nallur Village, Hosur Taluk, were minor Inam lands covered by T.D. No.858 and taken over by the Government under the Madras Inams Abolition Act. Similarly, the lands comprised in Survey Nos.6, 65, 72, 73 and 74, Nallur Village, Hosur Taluk were minor Inam lands covered by T.D.No.859 and taken over the Government under the Minor Inams Abolition Act. As a result of taking over, the Inam Tenure had been extinguished and the lands stood converted as Ryotwari. THE petitioner's father Thiru.Sudanatha Dikshithar, son of Senga Dikshithar appeared for an enquiry initiated suo-motu by the Settlement Tahsildar-1, Salem, and deposed in the enquiry, and stated that he is paying the land revenue to the Government for the said lands and produced Kist receipts and that he is the descendant of the original Grantee. THE petitioner's father who was performing Pooja to the Deity of Sri.Devaraja Swamy Temple, Nallur, and he is willing to render the service of performing Pooja and requested for grant of Ryotwari patta in his name. 2.2. In the enquiry conducted by the Settlement Tahsildar-1, Salem, the Karnam of Nallur Village was examined and corroborated the evidence given by the petitioner's father and that the family is in continuous possession and actual enjoyment of the lands and there is no objection for grant of Ryotwari patta to the petitioner's father in the capacity of service holder of the religious institution. Accordingly by proceedings dated 30.07.1968 in S.R.No.545/M.I. Act 30/63 and S.R.No.546/M.I. Act 30/63, the Settlement Tahsildar-1, Salem, granted Ryotwari patta to the petitioner's father under Section 11 read with Section 8(2)(ii) of the Tamil Nadu Minor Inams (Abolition and Conversion into Ryotwari) Act 30 of 1963 (hereinafter referred to as 'the Act'), subject to the condition that the petitioner's father performs the Pooja services to the temple as per the terms of the original grant. 2.3. Under Section 21(a)(i) of the Act, a service holder is entitled to a Ryotwari patta under Section 8 in respect of any land and he shall have the option either to pay to the religious intitution the amount specified under Section 21(4) and on such payment the land shall, not withstanding anything contained in Section 21(7), by discharged from the condition of the service or the service holder shall hold the land and continue service subject to the provisions contained in Section 21(1), (2), (6) and (7). Though such option is available to the petitioner's father, the same was not mentioned by the Settlement Tahsildar-I, Salem, in the order dated 30.07.1968. 2.4. THE petitioner's father was granted Ryotwari patta in respect of the land comrpised in S.No.690/1, Hosur Taluk, by order dated 11.05.1968 and the petitioner's father submitted a representation after nearly 10 years on 06.10.1977 stating that the option available to him under Section 21(3)(i) of the Act was omitted to be added and therefore requested the Assistant Settlement Officer, Salem, to add the condition regarding the payment to be made under Section 21(3)(i) and issue a modified order. THE Assistant Settlement Officer stated that the right to exercise the option under Section 21(3) of the Act goes without saying and he instructed the Tahsildar, Hosur, to take appropriate action if the petitioner's father exercises his option under Section 21(3) of the Act. Thus the petitioner's father was permitted by the Assistant Settlement Officer to exercise the option under Section 21(3). Accordingly a notice in Form XXIV under Rule 33(5) of the Rules was issued to the petitioner's father who appeared for enquiry and expressed his willingness to pay the fair rent as per rules and get discharged from the condition of rendering service to the religious institution. THE Tahsildar, Hosur, addressed the Assistant Settlement Officer, Salem, to clarify whether the option given by the petitioner's father beyond the period of 6 months can be entertained. THE Assistant Settlement Officer by order dated 23.11.1977 in ROC. 8376/77, mentioned that since such option was omitted in the order of the Settlement Tahsildar, the Tahsildar, Hosur, may take appropriate action if the petitioner's father exercises option under Section 21(3). Based on the said order the option given by the petitioner's father was taken into consideration, enquiry conducted and after following the procedure established by law, the fair rent was fixed for the property in S.No.690/1 in Hosur Tahsildar's Proceedings Rc.26461/77, dated 20.04.1979 and the condition to serve the religious institution stood discharged. 2.5. THE petitioner became entitled to the above referred properties after the demise of his father on 18.04.1995 by virtue of Section 21(7)(4)(i) of the Act and also by a Partition Deed. THE petitioner submitted a petition to the Tahsildar, Hosur, dated 2.1.1996 stating that as a legal heir of his father he is entitled to opt either to pay the fair rent to the religious institution to be fixed by the Tahsildar and get discharged from the condition imposed in the Ryotwari patta regarding rendering service to the Temple under Section 21(3) of the Act and that the Settlement Tahsildar in his order dated 30.07.1968 has omitted to add that provisions of the said order was subject to the liberty to exercise the option to get discharged from the condition by remitting the fair rent to be fixed by the Tahsildar. 2.6. THE Tahsildar, Hosur, after considering the matter and after taking note of the earlier orders dated 20.04.1979 and 5.7.1996 under similar circumstances in the case of the petitioner's father entertained in the application for fixing fair rent. THE petitioner was served with the notice in Form XXIV as required under Rule 33(5) on 1.2.1996. THE petitioner appeared for an enquiry on 16.02.1996 and a statement was recorded expressing his willingness to pay fair rent to get discharged of the condition imposed for rendering service for the temple. THE Tahsildar, Hosur, after following the procedure contemplated and after perusing the report of the Agricultural Officer (T & V), Hosur, and after perusing the records directed the petitioner to pay Rs.3,47,696/- under Section 8(2)(i)(b) of the Act and directed the first instalment to be paid on or before 31.07.1996. THE petitioner also remitted the said amount and thereafter, made an application on 5.8.1996 to the Tahsildar, Hosur for deletion of the condition imposed in the Ryotwari patta. Accordingly, the third respondent, by proceedings dated 5.8.1996, deleted the condition of performing the Pooja to Sri Devaraja Swamy Temple and similar order was also passed by the third respondent, by order dated 29.6.2007 in respect of the lands in S.Nos.65, 72, 73, 74 and 329, Nallur Village and by another order dated 15.9.2007 and upon remittance of the fair rent fixed, the third respondent by proceedings dated 13.7.2007, removed the condition for the Ryotwari patta regarding the service to be rendered and patta Nos.2204 and 2236 were issued in the name of the petitioner. 2.7. THEreafter, the petitioner, for himself and on behalf of his minor daughter, by sale deed dated 27.8.2007, registered as Document No.14708/07 on the file of the Sub-Registrar, Hosur, sold an extent of 8 hectare 1.94.0 in Survey No.65 to the fifth respondent. THE petitioner and his children, by another sale deed dated 27.8.2007, registered as Document No.12461/07 on the file of the Sub-Registrar, Hosur, sold the properties in S.Nos.72, 73 and 74, measuring a total extent of 6.81 acres to the fifth respondent. THE petitioner also sold an extent of 2.70 acres in S.No.329 to the fifth respondent by sale deed dated 25.10.2007, registered as Document No.15003, on the file of the Sub-Registrar, Hosur. THE petitioner, by sale deed dated 6.12.2007, sold the lands in S.No.33, an extent of 3.17 acres to the fifth respondent, registered as Document No.16767/07 on the file of the Sub-Registrar, Hosur. 2.8. While that being so, the first respondent, in his proceedings dated 9.7.2008 in ROC.1638 (B2), cancelled the proceedings of the Settlement Tahsildar, dated 30.7.1968 by wrongly mentioning the date as 30.7.1980. Aggrieved by the above order, the petitioner has challenged the said proceedings in this Writ Petition on the ground that the order is without jurisdiction, illegal, against law and liable to be set aside. THEre was settlement made in favour of the petitioner's father, and again on the petitioner and the impugned order is passed without affording an opportunity to the petitioner and therefore, it is in violation of the principles of natural justice and the petitioner was not issued with any show cause notice as laid down under Rule 19(1) of the Rules prior to the passing of the impugned order, and therefore, it is liable to be set aside.

(3.) MS.Rita Chandrasekaran, learned counsel for the petitioner in her submissions strenuously contended that the procedure and principles contemplated under Rule 19 of the Rules, have not been complied with by the competent authority before passing the impugned order. Therefore, the order is in violation of non-compliance of the relevant Rules and in violation of the principles of natural justice. She further contended that as a legal heir of the service holder, the petitioner is having right to claim the benefits under the Ryotwari patta and as per the provisions of law, he can ask for discharge of the condition contemplated under the provisions of the Act and therefore, the impugned order passed by the Tahsildar cannot be faulted with.