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S. Duraiswami Nadar Vs. Additional Special Deputy Collector (Land Acquisition) Railways, Nagarcoil and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai High Court
Decided On
Case NumberW.P. No. 3337 of 1976
Judge
Reported inAIR1978Mad313
ActsLand Acquisition Act, 1894 - Sections 30
AppellantS. Duraiswami Nadar
RespondentAdditional Special Deputy Collector (Land Acquisition) Railways, Nagarcoil and ors.
Appellant AdvocateS. Chellasami, Adv.
Respondent AdvocateN.R. Chandran, Adv. for Govt. Pleader and ;T.R. Mani, Adv.
DispositionPetition allowed
Excerpt:
.....of the writ petitioner who was arrayed as the first defendant that the property belonged to the specific endowment viz. that is precisely the reason why areference is made to the civil court for a proper adjudication thereof which alone is entrusted with the jurisdiction. 5. there is absolutely no doubt in this case, that by proceedings more than one, the title of the writ petitioner has come to be established very clearly. --in view of the fact that specific endowment is possessed of considerable extent of properties at tiruchendur and in nagarcoil and in view of the fact that the trustees and honorary trustees, it would be better to appoint an executive officer in the interest of efficiency in the administration of specific endowment. it would be better to appoint a whole-time..........are properties other than the properties mentioned in the plaint. it is not disputed that the suit properties mentioned in the plaint belong to this specific endowment.'added to this, there was no issue concerning the title relating to these properties. again, patta was issued under the provisions of the tamil nadu act 31 of 1964, as early as 17-7-1969. these proceedings are conclusive and binding as between the parties which will prove beyond every iota of doubt that the title to the properties had come to be vested with the petitioner. merely because an appeal has been preferred against the judgment in o. s. no. 138 of 1971, in a. s. no. 735 of 1974, to this court, that does not ipso facto render the position fluid. in other words, that does not mean that there is a dispute.....
Judgment:

Mohan, J.

1. The following lands were acquired under the provisions of the Land Acquisition Act, 1894:--

R. S. 1228/77 .. 20 acresR. S. 1231/4 .. 7 acresR. S. 1229/4 .. 17.5 acres

These lands belonged to Tiruchendur Subramaniaswami Koil. Sukharavara Kattalai Trust, represented by Managing Trustee (Doraisami Nadar) the petitioner herein. The acquisition was for railways. An award was passed on 26-4-1976 and the compensation fixed in the award was Rs. 13664-80. The Additional Special Deputy Collector, Land Acquisition (Railways) Nagarcoil passed an order to the effect that since there was a dispute relating to the ownership of the property, the matter should be referred to Civil Court under Section 30 of the Land Acquisition Act hereinafter referred to as the Act. It isthis award which is sought to be quashed in this writ petition by way of certiorari.

2. Mr. S. Challaswami, learned counsel appearing for the petitioner, submits as under:-- Section 30 of the Act contemplates a reference to a Civil Court only in the event of there being a dispute as to the apportionment of the amount or as to the entitlement to payment to the various persons. In the instant case, there were number of proceedings by which the title of the petitioner had come to be established. As a matter of fact, in O. S. 158 of 1971, on the file of the Sub Court Tuticorin which was a suit to modify the scheme framed by the Deputy Commissioner filed by the second respondent herein, it was clearly admitted in favour of the writ petitioner who was arrayed as the first defendant that the property belonged to the specific endowment viz., Sukkaravara Kattalai. In paragraph 17 of the judgment in O. S. No. 138 of 1971 what is stated is this:--

'In the plaint the plaintiff has not mentioned that there are properties other than the properties mentioned in the plaint. It is not disputed that the suit properties mentioned in the plaint belong to this specific endowment.'

Added to this, there was no issue concerning the title relating to these properties. Again, patta was issued under the provisions of the Tamil Nadu Act 31 of 1964, as early as 17-7-1969. These proceedings are conclusive and binding as between the parties which will prove beyond every iota of doubt that the title to the properties had come to be vested with the petitioner. Merely because an appeal has been preferred against the judgment in O. S. No. 138 of 1971, in A. S. No. 735 of 1974, to this court, that does not ipso facto render the position fluid. In other words, that does not mean that there is a dispute relating to the ownership since in the suit there was no dispute at all to the title which was admitted. Nor again any issue was framed to that effect in the suit. Therefore, the reasoning given by the Additional Special Depeuty Collector (L. A.) Railways, the first respondent herein for making a reference under Section 30 of the Act is totally erroneous.

8. Learned Government Pleader points out that since there is a dispute relating to the apportionment of compensation, a reference under Section 30 of the Act had to be made which is only a ministerial act and the Land Acquisition Officer has no power to decide the question of title especially when it is disputed. That is precisely the reason why areference is made to the Civil Court for a proper adjudication thereof which alone is entrusted with the jurisdiction.

4. Mr. T. R. Mani, learned counsel for the second respondent would, however, submit that there is no dispute that the properties belong to the Trust, but as an Executive Officer, the third respondent will be entitled to manage the trust and therefore he would be entitled to be paid the compensation under Section 30 of the Act. If that be so, there is a dispute relating to the ownership or title to the property. Looked at from this point of view, this order is unassailable. In any event, according to him, having regard to Sections 31 and 32 of the Act, if the compensation is payable only to the trust, then the proper remedy would be to deposit the sum into court and therefore, from that point of view, at least, the directions to deposit could be upheld.

5. There is absolutely no doubt in this case, that by proceedings more than one, the title of the writ petitioner has come to be established very clearly. First of all, I may refer to O. S. 138 of 1971. That was a suit filed by the present respondents 2 and 3 wherein the writ petitioner was arrayed as the first defendant for the relief of modification of the scheme framed by the Deputy Commissioner, and subsequently confirmed by the Commissioner, Hindu Relegious and Charitable Endowment department. The following issues were framed for trial:--

1. Whether this court has jurisdiction to entertain this suit?

2. Whether the suit is in time?

3. Whether the scheme framed in A. S. 442 of 1091 M. E. by the High Court, Travancore is not valid and binding on the plaintiff?

4. Whether the modifications by the plaintiff for the scheme in question are necessary to be made?

5. Whether the said scheme is opposed to the Hindu Religious and Charitable Endowments Act?

6. Whether the plaintiffs are entitled to sue in a representative capacity under Order 1, Rule 8 C.P.C,

7 Whether the election of the defendants 1 and 2 as trustees for life is invalid? 8. Whether the temple authorities have any right to manage the affairs of the trust which is an endowment for specific purpose of performing the Sukkaravara Kattalai which is only to be managed by the trustees duly elected?

9. To what relief, if any, are the plaintiffs entitled?

Relating to issue 1, the learned Subordinate Judge states in paragraph 7 thus:--

'This suit relates to a specific endowment attached to Sri Subramaniaswami temple, Tiruchendur, which temple is situate within the jurisdiction of this court. The suit is filed under Section 70 of the Tamil Nadu Act XXII of 1959 which is herein called as the Act for brevity's sake.'

Then again, the learned Subordinate Judge proceeds to state as follows:--

'The suit properties belong to the specific endowment which is now attached to Sri Subrarnaniaswami Temple, Tiruchendur, The Charity, viz., Sukkaravara Kattalai, for which the suit properties are endowed, has to be performed only at Sri Subramaniaswami temple, Tiruchendur, which is within the jurisdiction of the Sub Court, Tuticorin. As the claim relates to the administration of the trust i.e., the administration of the said specific endowment which relates to the performance of Sukkaravara Kattalai at Sri Subramaniaswami temple at Tiruchendur, a part of cause of action arises at Tiruchendur within the jurisdiction of this court.' In paragraph 17 of his judgment, in unmistakable terms, the learned Judge holds thus:--

'In the plaint the plaintiff has not mentioned that there are properties other than the properties mentioned in the plaint. It is not disputed that the suit properties mentioned in the plaint belong to this specific endowment.'

However, the learned Subordinate Judge proceeded to hold in paragraph 18 of his judgment thus:--

'In view of the fact that specific endowment is possessed of considerable extent of properties at Tiruchendur and in Nagarcoil and in view of the fact that the trustees and honorary trustees, it would be better to appoint an executive officer in the interest of efficiency in the administration of specific endowment. It would be better to appoint a whole-time officer as an Executive Officer for due collection of income, maintenance of accounts and other matters relating to day to day administration as it will not be possible for honorary trustees, to attend to such details.'

6. Ultimately, the scheme came to be modified. This judgment has been taken up in appeal to this court in A. S. No. 734 of 1974. The fact of preferring this appeal as well as the cross-appeal seems to have weighed with the first respondent herein very much. But, in my view that can have no bearing over a decision whether a re-ference under Section 30 of the Act has to be made or not. As found categorically by the learned Subordinate Judge that there was no dispute relating to the title or ownership, the fact that an appeal has been preferred with reeference to certain modifications of the scheme or again a cross-appeal has been filed will be totally immaterial. Therefore, that reasoning made under the impugned order will have to be ignored.

7. Not only this. Under the Tamil Nadu Act 31 of 1964, by proceedings of the Settlement Tahsildar, Sri Pandavaraka Unit II, Nagarcoil dated 17-7-1969, patta was issued in the name of the petitioner Doraiswami Nadar and one Ramanatba Nadar. What is stated in paragraph 4 of the proceedings of the Settlement Tahsildar, Sri Pandavaraka Unit II, Nagarcoil reads thus:--

'Enquiry reveals that the title to the lands has been established in the name of the claimant temple. Under the powers delegated to me in G. O. Ms. No. 1282, Revenue, dated 4-7-1967, I hereby order under Section 9 (2) read with Section 3 (1) of the Kanyakumari Sreepandavarka Lands (Abolition and Conversion into Ryotwari) Act 31 of 1984, that a Ryotwari Patta be issued for the R. S. No. 11990/5, 0.96 cents, 1195/7, 0.83 cents 1238/1 2 acres 27 cents, 1196/8 0.82 cents; 1196/10 1 ac 62 cents; 1176/1, 1 ac 23 cents; 1189/12 0.74 cents, 1228/7 0.50 cents; 1229/4 0.43 cents; 1226/2 0.69 cents; 1185/3 0.28 cents; 1199/4 lac 24cents; 1197/2 0.98 cents; 1231/40.17 cents; and 1188/10 1 ac 60 cents in the name of the Tiruchendur Subramaniaswami Sukkaravara Kattalaivagai' represented by the present trustees Duraiswami Nadar and Ramanatha Nadar.'

It requires to be noted here that the lands forming the subject-matter of the acquisition are covered by this patta. In fact, the Additional Special Deputy Collector (L. A) Railways, the first respondent herein, himself notes that when he says 'as per patta No. 7464 of Aloor village'. It may be that the Executive Officer has right to manage he properties, but the right of management does not mean that there is an entitlement o be paid so as to fall under the latter halt of Section 30 of the Act. If there is no dispute relating to ownership or title, the question of apportionment does not arise. It is not correct on the part of the learned Government Pleader to contend that it is purely a ministerial act. If that were so, just by putting forward an objection, it could be said that there is a dispute requiring a reference under Section 30 of the Act. After all beforea reference is made under Section 30 of the Act, it is necessary to find out whether there is a prima facie case made out for reference and not mechanically or in a wooden fashion. In the instant case, there is no dispute, as I said above, as to the title. The question of apportionment also cannot arise. Nor again, the money would be payable to the Executive Officer because the word 'payable' occurring in the section postulates an entitlement to such payment. As otherwise it would mean that the Land Acquisition Officer is a disbursing authority. Therefore, looked at from any point of view, reference under Section 30 of the Act is illegal and therefore will have to be quashed. It is entirely a different matter whether the procedure under Section 31 or 32 of the Act will have to be followed or not I am not called upon to decide the same since the reference here very dearly states that it had been made only under Section 30 of the Act, Accordingly, the writ petition will stand allowed. There will be no order as to costs.

8. Petition allowed.


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