Ayyankutty Gounder (Died) vs The Revenue Divisional Officer

COMMON ORDER All the four Writ Petitions are filed praying to issue a Writ of Certiorari, calling for records relating to the order passed by the Revenue Divisional Officer, Salem in R.Dis.No.8741/2002/B2 dated 30.3.2003 and quash the same.

2. All the above four writ petitions have been filed seeking same relief, and therefore, are taken together and disposed of by this common order.

3. W.P.Nos.44556 to 44558 of 2006:- These three writ petitions are filed by M/s.N.Premakumari, M.Balachandran and K.S.A.Mohammed Sheriff aggrieved by the order of the Revenue Divisional Officer, Salem, in R.Dis.No.8741/2002/B2 dated 30.3.2003 whereby the competent authority cancelled the Ryotwari Patta issued in favour of one Abdul Rasheed in respect of the land in Survey Nos.145, 159 and 222 measuring 6.19 acres situate in Kumarasamipatti Revenue village, Salem Taluk. He also ordered resumption of the land and vested it with the Wakf Board. The petitioner in each one of the cases claims that the legal heirs of Abdul Rasheed, who was rendering Khazi Service, have executed power of attorney in favour of one Viswanathan, who sold the property to third party and the property as indicated below is now in possession of the petitioners as follows:-

(1) Premakumari  by way of sale deed of the year 1997 (2) M.Balachandran- by way of gift deed of the year 2003 and (3) K.S.A.Mohammed Sheriff  by way of sale deed of the year 1997.

They also stated that they hold Revenue Patta in their favour and they continue to be in possession of the land. Therefore, before passing the impugned proceedings dated 30.3.2003, they should have been put on notice and heard by the competent authority. Stating that the impugned proceedings affecting their rights has been passed in violation of principles of natural justice and hence should be quashed.

4. W.P.No.15659 of 2003:- This writ petition is filed by Ayyankutty Gounder and Ponnusamy Gounder. It appears that Ayyankutty Gounder expired and on his death, M/s.Mahalakshmi and Saraswathi, the legal heirs were added as petitioners by order of the court. Now there are three petitioners. Petitioners 2 to 4 state that the land comprised in Survey Nos.145, 159 and 222 measuring 3.19 acres, 2 acres and 1.60 acres respectively situate in Kumarasamipatti Revenue village, were originally Inam lands, and granted to the ancestors of late Khazi Abdul Rasheed for performing the Khazi service. It is stated by the petitioners that Abdul Rasheed and his predecessors were holding and enjoying the land as khazi service providers. It is stated that S.R.Perumal Gounder, the paternal grandfather was a cultivating tenant under the Khazi and after his demise, the family members continue to hold a part of the property. It is stated that one Kalitha Gounder, the father of the petitioners 1 and 4, was in possession of 3.19 acres in Survey No.145. After his demise, the first petitioner is cultivating 1.59 acres out of 3.19 acres in Survey No.145.

5. All the petitioners are aggrieved by the impugned order of the Revenue Divisional Officer dated 30.3.2003 cancelling the Ryotwari Patta granted in favour of the deceased Abdul Rasheed in Survey Nos.145, 159 and 222 covered under T.D.No.572 Kumarasamipatti Revenue Village.

6. Mr.R.Thiagarajan, learned senior counsel appears for the petitioners 2 to 4 in W.P.No.15659 of 2003. According to the learned senior counsel, the petitioners, who are cultivating tenants and are in possession of the property are entitled to be noticed in the proceedings of the Revenue Divisional Officer and on failure to observe the principles of natural justice, the impugned order is vitiated and has to be quashed. He relied upon tax receipts and stated that petitioners are in possession. They are entitled to patta as cultivating tenants.

7. Mr.L.S.M.Hasan Fizal, learned Government Advocate appears for first respondent, the Revenue Divisional Officer in all the four writ petitions. Mr.R.Nalliyappan, learned counsel appears for respondents 2 and 3 in W.P.No.15659 of 2003. Mr.K.Ilias Ali, learned advocate appears for the Jamia Masjid, the fifth respondent in W.P.No.15659 of 2003 and Mr.A.S.Kaizer, learned counsel appears for Tamil Nadu Wakf Board, the sixth respondent in W.P.No.15659 of 2003. In the other three writ petitions, W.P.Nos.44556 to 44558 of 2006, Mr.R.Nalliyappan appears for the petitioners, the subsequent purchasers and Mr.V.Lakshminarayan, learned counsel for Tamil Nadu Wakf Board, the second respondent.

8 (a) The contention of Mr.K.Ilias Ali, counsel for the Jamia Masjid, Salem is that the proceedings of Revenue Divisional Officer, which is under challenge, is for cancellation of Ryotwari Patta issued in favour of Abdul Rahseed, who was rendering Khazi service. He failed to perform the Khazi service and the same is the case of the legal heirs also. The impugned proceedings has been taken in terms of Section 21 of the Tamil Nadu Minor Inams (Abolition and Conversion into Ryotwari) Act, 1963 (Tamil Nadu Act No.30 of 1963) (hereinafter referred to as "the Act 30 of 1963" or "the Act"). In particular, he referred to Section 21 clause 7(b) of the Act and stated that action was taken for violating the condition imposed under the Act. He stated that since the land in question is a service inam land, except the person who claims to be a khazi service provider, no other person is entitled to hold the ryotwari patta and no other person need be heard by the competent authority under the provisions of the Act for the above said purpose. The persons who claim to be cultivating tenants are not entitled to be heard in an action initiated by the competent authority to cancel the Ryotwari Patta issued to the Khazi service provider in term of section 8 of the Act 30 of 1963.

(b) He submitted that the Ryotwari Patta granted under section 8 of the Act excludes any claim under Section 9 of the Act. The cultivating tenants if at all can claim patta under Section 9 of the Act where section 8 of the Act does not apply. In the present case, the Ryotwari Patta was issued in favour of the Khazi service provider and that has been cancelled by the competent authority after notice to the legal heirs of late Khazi Abdul Rasheed. Such notice is in accordance with Section 21 of the Act. Except the legal heirs of the Ryotwari patta holder, no other person is entitled to be noticed. He submitted that the competent authority has strictly complied with the procedure prescribed.

(c) He relied upon the decision of the Supreme Court in Sayyed Ali and others  vs. - A.P.Wakf Board, Hyderabad and others reported in (1998)2 Supreme Court Cases 642 and stated that any dedication or grant by way of service inam for the purpose recognised by the Muslim law as pious, religious or charitable would clothe the property in the character of a "wakf". Paragraph 6, the relevant portion, is set out hereunder:-

"6. Ex.B-3 shows that an enquiry was conducted wherein it was found that the inam which was classified as Devadayam was granted for the support of Dargah of Visakhapatnam and was free of tax. The enquiry further revealed that the services were being performed by the legal representatives of three ancestors whose names were noted and appear under the words Dargah as Ansar Saheb, Madina Saheb and Mohammed Saheb. The inam was confirmed and Title Deed No.42 was issued. Further, column 8 of the Inam Fair Register indicates that the inam was granted for support of Dargah, Visakhapatnam. Column 10 shows that the grant was to continue so long as the service is performed. These entries in the Inam Fair Register establish the ingredients of wakfs as defined under <act id=5LGxPokB_szha0nWENAC section=3_1>Section 3(1) </act>of the Act. For the purposes of that definition, it is not necessary that dedication should be in favour of Dargah. It is sufficient if the dedication is made for the purpose recognized by the Muslim law as pious, religious or charitable. Thus, we are of the opinion that grants by way of service inams for the purposes recognized by the Muslim law as pious, religious or charitable would clothe the property with the character of "wakf". We, therefore, find that the view taken by the High Court that disputed property is wakf as defined in <act id=5LGxPokB_szha0nWENAC section=3_1>Section 3(1) </act>of the Wakf Act is correct in law and the same does not suffer from any legal infirmity."

(emphasis supplied) He pointed out that as in the above said case even if the Ryotwari Patta is granted as in the present case, the dedication of the property is for the pious, religious or charitable purpose makes it a Wakf property for ever. He referred to para 13 of the very same judgment for the above proposition:-

"13. Lastly, it was contended by the learned counsel for the appellant that once patta, under the Inams Act, having been granted in favour of Mokhasadars, it was not open to the High Court to hold that the property was a wakf property. In other words, the argument seems to proceed on the basis that once patta has been granted under the Inams Act to Mokhasadars, the land has ceased to be a wakf property. It may be stated that a wakf is a permanent dedication of property for purposes recognized by Muslim law as pious, religious or charitable and the property having been found as wakf would always retain its character as a wakf. In other words, once a wakf always a wakf and the grant of patta in favour of Mokhasadar under the Inams Act does not in any manner, nullify the earlier dedication made of the property constituting the same as wakf. After a wakf has been created, it continues to be so for all time to come and further continues to be governed by the provisions of the Wakf Act and a grant of patta in favour of Mokhasadar does not affect the original character of the wakf property. We accordingly find no substance in the last argument of the learned counsel for the appellant."

(emphasis supplied)

(d) Mr.Ilias Ali, learned counsel appearing for the Jamia Masjid, therefore, contended that the patta granted to Khazi service provider has been rightly set aside by the competent authority for violation of the condition of grant of the ryotwari patta and in view of the pious and religious obligation attached to the property (i.e.) to provide khazi service, the property is a wakf property and therefore, the patta was rightly granted in favour of the wakf board after coming into force of the Act 30 of 1963.

(e) He submitted that as against the impugned order, the legal heirs of Abdul Rasheed filed Writ Petition No.20579 of 2003 challenging the impugned proceedings dated 30.3.2003 and the said writ petition was dismissed as withdrawn on 20.11.2006. Therefore, the patta holders have abandoned their claim and subsequently, no other person is entitled to claim any relief either before the authority or before the court. The cultivating tenants, the petitioners cannot claim any right de horse the claim of the khazi service providers in view of the specific provision under the Act 30 of 1963, viz., Chapter III Section 8(2)(ii) of the Act. He pointed out that even in the order in STA No.41 of 1977 dated 20.7.1982, this court has stated that Abdul Rasheed is the person entitled to grant a patta for rendering khazi service and that is subject to conditions prescribed under the Act 30 of 1963. Therefore, the cultivating tenants cannot plead for grant of ryotwari patta under Section 8 of the Act.

(f) Even assuming that the petitioners are entitled to claim some patta as cultivating tenants, it is to be seen that their claim for patta was rejected by the District Revenue Officer on 12.11.1996 with a direction to approach the competent civil court. The petitioner is a recipient of such order. No further action has been taken by the said Ayyankutti Gounder in the manner known to law to establish his right. The cultivating tenants are not entitled to claim either through the khazi or independently as cultivating tenants in view of the bar for such claim under section 8 of the Act. Therefore, the plea that notice should be issued to them before cancelling the patta issued under section 8 of the Act is a plea without any substance or basis. The cultivating tenants have no legal right to plead that they are entitled to notice in the impugned proceedings taken under the Act 30 of 1963.

9. The learned counsel appearing for Wakf Board Mr.A.S.Kaizer states that on 20.10.1966, the Settlement Tahsildar rejected the claim for ryotwari patta to Abdul Rahseed on the ground that Abdul Rahseed was not doing khazi service and therefore, the Settlement Tahsildar granted patta in favour of the Jamia Masjid, Salem. Thereafter, the Tribunal set aside the order of Settlement Tahsildar and ordered denovo enquiry. In the denovo enquiry order dated 10.11.1972, patta was rejected to Jamia Masjid, Salem, the claimant, viz., the khazi service provider and therefore, an appeal was preferred to the Tribunal and the Tribunal by order dated 30.10.1975 granted the patta in favour of the Wakf Board and the claim of Abdul Rahseed was rejected. The ryotwari patta was directed to be issued in favour of Abdul Rasheed in the order of the High Court in STA No.41 of 1977 dated 20.7.1982. However, Abdul Rasheed, died on 20.5.1978. He stated that the patta was rightly cancelled by the competent authority by invoking the provisions of Section 21(7)(b) of the Act as the legal heirs of Abdul Rasheed did not perform the khazi service. He reiterated the arguments of Shri Ilias Ali.

10. Mr.V.Lakshminarayan appears for the Wakf Board in the three Writ Petitions 44556 to 44558 of 2006 filed by the subsequent purchasers. He referred to decision of the Andhra Pradesh High Court in Andhra Pradesh Wakf Board, Hyderabad  vs. - S.Syed Ali Mulla and others reported in AIR 1985 Andhra Pradesh 127 wherein another decision of the Andhra Pradesh High Court was cited, viz., R.Doraswamy Reddy  vs. - Board of Wakf reported in (1978)2 Andhra Pradesh Law Journal (HC) 399 which relates to service grant and its implication. He referred to the following portion of the decision to state that the legal heirs of the late khazi Abdul Rasheed do not have a right of alienation. The property is a wakf property. In that decision, it is held as follows:-

"12. In Zinyar Jung v. Director of Endowments AIR 1963 SC 985, the Supreme Court observed:

"Similarly the Muslim law relating to trusts differs fundamentally from the English law. According to Mr.Ameer AH.

"The Mohammadan law owes its origin to a rule laid down by the Prophet of Islam; and means 'the tying up of property in the ownership of God the Almighty and the devotion of the profits for the benefits of human beings'. As a result, of the creation of a wakf the right of Wakif is extinguished and the ownership is transferred to the Almighty. The manager of the Wakf is the Mutawalli, the Governor, superintendent or curator. But in that capacity he has no right in the property belonging to the wakf; the property is not vested in him and he is not a trustee in the legal sense."

Therefore, there is no doubt that the wakf to which the Act applies, in essential features is different from the trust-as known to English Law."

In R.Doraswamy Reddy v. Board of Wakfs (1978)2 APLJ (HC) 399 Gangadhara Rao.J., dealing with a service grant made for the purpose of celebrating Moharrum festival and for maintaining resting place for fakirs and in repelling the argument that the property does not vest in the Almighty but it vests in the person who is to render service, observed:

"It is true that the land was granted to an individual to perform service. But it does not mean that he acquires title to that property. Similarly, if the land can be resumed for non-performance of service and can be regranted to another person for rendering service, does not mean that the original grantee continues to be the owner of the property. When once the Wakf was created it continues to be Wakf. When the inam is resumed and regranted it does not mean that there is revocation of the service. It only means that the wakf property is entrusted to another individual to perform the service."

We are in respectful agreement with the aforesaid observations and hold that after 1964 amendment Act, all service grants made for any purpose recognised by the Muslim law as pious, religious or charitable have the effect of constituting the property, subject matter of the grant to be wakf, it is so because the wakf in its basic essential involves the permanent dedication of the property for such a performance."

Paragraph 12 of the said judgment deals with both the situation (i.e.) the nature of dedication of property under Muslim Law and the power to resume the land for the non-performance of service. He, therefore, justified the impugned proceedings. He further submitted that petitioners have no legal right to be heard and therefore, notice is not necessary. The notice, if any, issued previously will not clothe the petitioners with any right to claim patta or to be heard in the proceedings.

11. The Counsel for Wakf Board relied upon the decision of the First Bench of this Court in Marimuthu alias Daniel and others  vs. - Kalasanthi Kattalai to Sri Sankaranarayanaswami Temple by its Managers, Venkatachalam Iyer and others reported in 87 Law Weekly 652. The Division Bench had an occasion to deal with the claim of cultivating tenant for grant of patta in respect of inam lands which are meant for the purpose of religious or charitable nature. The First Bench negatived the plea for patta under Section 9(1) of the Act holding that "Where the lands are either religious or charitable inam lands, they will be covered by Section 8 and will not fall within the purview of Section 9."

(emphasis supplied) This decision was confirmed by the Apex Court in its decision in A.T.S.Chinnaswami Chettiar etc., - vs. - Shri Kari Varadaraja Perumal Temple and another reported in A.I.R. 1996 Supreme Court 234. He, therefore, pleaded that the property in this case is a wakf property and the wakf board after coming into force of the Wakf Act is entitled to absolute right over the said land to the exclusion of all others. Hence, he prays for dismissal of the writ petition stating that the cultivating tenants have no right whatsoever to be heard in the present proceedings of the competent authority which has been taken in terms of the Act 30 of 1963.

12. The brief outline of the fact of the dispute is as follows:-

(a) On 15.2.1965, the minor inam lands in Survey Nos.145, 159 and 222 admeasuring 6.19 acres in Kumaraswamipatti Revenue village, Salem Taluk, Devadayam Minor Inam Lands covered by Title Deed No.572 was taken over by the Government under Section 3(b) of the Act. Thereafter, one Abdul Rasheed and others filed an application before the Settlement Tahsildar claiming Ryotwari Patta stating that they are doing Khazi service. This was rejected by the Settlement Tahsildar on 20.10.1966 and the patta was granted in favour of Jamia Masjid, Salem, the respondent No.5 in W.P.No.15659 of 2003. The said Abdul Rasheed and others preferred an appeals MIA No.11 of 1967 and 86 of 1968 before the Sub Judge, Salem, the Tribunal constituted under the Act, challenging the order of Settlement Tahsildar dated 20.10.1966. The Tribunal set aside the order and remanded the matter to the Settlement Tahsildar for denovo adjudication. The Settlement Tahsildar by order dated 10.11.1972, in order SR.266/Act/3063/Salem Taluk/66 held that the claimant, the Khazi service provider and the respondent Salem Jamia Masjid did not prove that they were personally cultivating the suit lands for continuous period of 12 years immediately before 1.4.1960 and therefore, are not lawfully eligible for Ryotwari Patta under Section 9(1)(i) of the Act. The Settlement Tahsildar ordered that the land vests with the Government and treated as assessed waste wet. Aggrieved by that order, the claimants, legal heirs of the Khazi service provider and the Salem Jamia Masjid went on appeal to the Minor Inam Tribunal and the case was decided on 30.10.1975 in MIA Nos.10 of 1973, 27 of 1973 and 85 of 1974. The Tribunal rejected the plea for Ryotwari patta in respect of the Khazi service provider and granted the patta in favour of Wakf Board for the Khazi Service of Salem Town. Aggrieved thereby, Abdul Rasheed filed appeal STA No.41 of 1977 before this Court. Pending STA No.41 of 1977, Abdul Rasheed died on 20.5.1978. On 20.7.1982, this Court decided the STA No.41 of 1977 and held that the land being service inam directed that the patta should be granted in favour of Abdul Rasheed under Section 8 of the Act subject to conditions laid down in the Act. Thereafter, it appears, patta was issued in favour of Abdul Rasheed on condition that he should serve as Khazi.

(b) In this case, the said Abdul Rasheed died even before the judgment delivered in STA No.41 of 1977. Thereafter, it transpires that the Bouth vari patta was issued in the name of legal heirs of Abdul Rasheed and that was done in patta transfer proceedings in No.1940/85-86 dated 14.11.1985.

(c) According to the department, the legal heirs of Abdul Rasheed sub divided the land by partition sold it to various parties. The legal heirs did not perform Khazi service. The sale of the land by the legal heirs of Abdul Rasheed came to the notice of the respondent department. Thereafter, a show-cause notice dated 8.8.1994 was issued in proceedings Na.Ka.No.4992/93 gp1 by the Tahsildar, Salem. In the show-cause notice, it was specifically stated that the service inam lands were transferred to third parties violating the condition contained in the Act. The land in question is not a private land, but a service inam. Therefore, the patta holders were not entitled to sell and such a sale is opposed to the provisions of the Act. The patta holders were called upon to show-cause as to why patta issued should not be cancelled and the land should not be resumed by the Government. Such notice was issued to the patta holders, viz., the legal heirs of late Khazi Abdul Rasheed and also to some third parties. One such person is Mr.Viswanathan who is stated to be the power of attorney holder of the patta holders, the legal heirs of late Abdul Rasheed. This fact is evident from para 8 of the affidavit filed in support of the writ petition by the subsequent purchasers of the land.

(d) It also transpires from the typeset of the documents that notices have been issued to the cultivating tenants, the ancestors of the present writ petitioners in W.P.No.15659 of 2003. The hearing was adjourned from time to time and finally on 12.11.1996, the District Revenue Officer, Salem passed the following order:-

VERNACULAR (TAMIL) PORTION DELETED The order in effect is as follows:-

"The patta in respect of Survey No.145 measuring 1.50 acres has been issued based on the order of the High Court. Therefore, the parties are called upon to resolve the dispute before the Court."

(e) The above said order has been communicated to the cultivating tenant and Muthavalli of the Jamia Masjid, Salem, the fifth respondent in W.P.No.15659 of 2003. This order of the District Revenue Officer dated 12.11.1996 was challenged by the cultivating tenant Mr.Karuppa Gounder, Ayyankutti Gounder and Ponnusamy Gounder in W.P.No.18655 of 1986 for the following relief:-

"The petitioners have sought for issuance of writ of certiorarifed mandamus to quash the order of the first respondent made in Pa.Mu.No.20689/92/E-3, dated 12.11.1996 and to direct the first respondent to hold an enquiry and pass suitable orders in accordance with provisions of Section 21 read with section 8 of the Act 30 of 1963."

The said writ petition was disposed off as infructuous on 7.8.2003 in view of the impugned order passed on 30.3.2003.

(f) In the meanwhile, the file was moving from one department to other and ultimately the Special Commissioner and Commissioner for Land Administration in his proceedings dated 18.10.2002 called upon the competent authority, the Revenue Divisional Officer to enquire into the matter after affording opportunity to all persons interested. Thereafter, the Revenue Divisional Officer conducted an enquiry after sending notice to the patta holders and others. The impugned order was thereafter passed in R.Dis.No.8741/2002/B2 dated 30.3.2003. The order dated 30.3.2003 is now challenged by the subsequent purchasers of the land from the legal heirs of late Abdul Rasheed, the khazi and also by the cultivating tenants.

13. Before proceeding further on merits of the rival claim, it will be appropriate if certain provisions of the Tamil Nadu Minor Inams (Abolition and Conversion into Ryotwari) Act, 1963 (Tamil Nadu Act No.30 of 1963) are considered. Section 2(2)(ii), (v), (vi), Section 3(a), (b), (c) and (g), Section 8,Section 9,Section 21,Section 38(3) and Section 44 of the Act.

(i) Section 2(2)(ii) of the Act reads as follows:-

"2. Definition: - In this Act, unless the context otherwise requires, (1) x x x (2) "appointed day" means the date appointed by the Government under sub-section (4) of section 1:

Provided that -

(i) x x x

(ii) in the case of land governed by clause (b) of sub-section (1) and sub-section (2) of section 17 of the Abolition Act or by clause (b) of sub-section (1) and sub-section (2) of section 14 of the Inam Estates Abolition Act, if the order of the competent authority recognising such land to be a minor inam is passed on a date subsequent to the date appointed under sub-section (4) of section 1, "appointed day" means such subsequent date;"

(ii) Section 2(5) of the Act reads as follows:-

"(5) "inam" means:-

(i) a grant of the melvaram in any inam land; or

(ii) a grant of both the melvaram and the kudiwaram in any inam land which grant has been made, confirmed or recognised by the Government."

(iii) Section 2(6) of the Act reads as follows:-

"(6)"inamdar" in respect of any inam means the person who held the inam immediately before the appointed day;"

(iv) Section 3(a), (b), (c) and (g) of the Act reads as follows:-

"3. Vesting of minor inams, etc., in government: - With effect on and from the appointed ay and save as otherwise expressly provided in this Act -

(a) Clause (b) of sub-section (1) and sub-section (2) of section 17 of the Abolition Act and clause (b) of sub-section (1) and sub-section (2) of section 14 of the Inam Estates Abolition Act, sections 2 and 12 of the Madras City Land Revenue Act, 1851 (Central Act XII of 1851), the Pudukkottai (Settlement of Inams) Act, 1955 (Tamil Nadu Act XXIII of 1955), section 22 of the Tamil Nadu (Transferred Territory) Incorporated and Unincorporated Devaswoms Act, 1959 (Tamil Nadu Act 30 of 1959), clause (i) of section 3 of the Tamil Nadu (Transferred Territory) Ryotwari Settlement At, 1964, the Service Inams Proclamation, dated the 13th May 1893, and all other enactments applicable to minor inams as such shall be deemed to have been repealed in their application to minor inams;

(b) every minor inam including all communal lands and porambokes, waste lands, pasture lands, forests, mines and minerals, quarries, rivers and streams, tanks and ooranies (including private tanks and ooranies) and irrigation works, fisheries and ferries, situated within the boundaries thereof, shall stand transferred to the Government and vest in them free of all encumbrances, and the Madras City Land Revenue Act, 1851 (Central Act XII of 1851) except sections 2 and 12, the Madras City Land Revenue (Amendment) Act, 1867 (Madras Act VI of 1867), the Tamil Nadu Revenue Recovery Act, 1864 (Tamil Nadu Act II of 1864), the Tamil Nadu Irrigation Cess Act, 1865 (Tamil Nadu Act VII of 1865), the Tamiil Nadu (Transferred Territory) Ryotwari Settlement Act, 1964, and all other enactments applicable to ryotwari lands shall apply to the minor inam;

(c) all rights and interests created by the inamdar in or over his inam before the appointed day, shall, as against the Government, ceased and determine;"

(d) x x x

(e) x x x

(f) x x x "(g) any rights and privileges which may have accrued in the minor inam to any person before the appointed day against the inamdar shall cease and determine and shall not be enforceable against the Government or against the inamdar, and every such person shall be entitled only to such rights and privileges as are recognised or conferred on him, by or under this Act."

(v) Section 8 of the Act reads as follows:-

"8. Grant of ryotwari pattas: (1) Subject to the provisions of sub-section (2), every person who is lawfully entitled to the Kudiwaram in an inam land immediately before the appointed day whether such person is an inamdar or not shall, with effect on and from the appointed day, be entitled to ryotwari patta in respect of that land.

(2) Notwithstanding anything contained in sub-section (1) in the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 (Tamil Nadu Act 22 of 1959), and in the Tamil Nadu Transferred Territory) Incorporated and Unincorporated Devaswoms Act, 1959 (Tamil Nadu Act 30 of 1959), the following provisions shall apply in the case of lands in an iruvaram minor inam granted for the support or maintenance of a religious institution or for the performance of a charity or service connected therewith or of any other religious charity-

(i) where the land has been transferred by way of sale and the transferee or his heir, assignee, legal representative or person deriving rights through him had been in exclusive possession of such land -

(a) for a continuos period of sixty years immediately before the 1st day of April 1960, such person shall, with effect on and from the appointed day, be entitled to a ryotwari patta in respect of that land;

(b) for a continuos period of twelve years immediately before the 1st day of April 1960, such person shall, with effect on and from the appointed day, be entitled to a ryotwari patta if he pays as consideration to the Government in such manner and in such number of instalments as may be prescribed an amount equal to twenty times the difference between the fair rent in respect of such land determined in accordance with the provisions contained in the Schedule and the land revenue due on such land;

(ii) in the case of any other land, the institution or the individual rendering service shall, with effect on and from the appointed day, be entitled to a ryotwari patta in respect of that land.

Explanation:- For the purpose of this sub-section, "land revenue" means the ryotwari assessment including the additional assessment, water-cess and additional water-cess."

(vi) Section 9 of the Act reads as follows;-

9. Grant of ryotwari patta in cases not covered by section 8:-

(1) Subject to the provisions of the next succeeding section, where in respect of an inam land no person is entitled to a ryotwari patta under section 8, and the land vests in the Government, the persons specified below shall be entitled to a ryotwari patta in respect of that land in the following order of preference:-

(i) firstly, a person who had been personally cultivating such land for a continuos period of twelve years immediately before the 1st day of April 1960;

(ii) secondly, if there is no such person as is referred to in clause (i), then, a person who had been lawfully admitted into possession of such land on or after the 27th day of September 1955 and who had been personally cultivating such land ever since; and

(iii) thirdly, if there is no such person as is referred to in clauses (i) and (ii), then, a person who had been personally cultivating that land on the 26th day of September 1955 and for a period of twelve years immediately before that date:"

(vii) Section 21 of the Act Reads as follows:-

"21. Service inams  (1) The provisions of this section shall apply in respect of any minor inam which was held immediately before the appointed day by an individual (hereinafter referred to in this section as the service-holder) on condition of rendering service to a religious, educational or charitable institution.

(2) The service-holder shall, subject to the provisions of sub-section (3), be bound to continue to render the service after the appointed day.

(3)(i) Where a service-holder is entitled to a ryotwari patta under section 8 in respect of any land, he shall have the option-

(a) either to pay to the religious institution the amount specified in sub-section (4) and on such payment the land shall, notwithstanding anything contained in sub-section (7), be discharged from the condition of the service; or

(b) to hold the land and continue to render service subject to the provisions contained in sub-sections (1), (2), (6) and (7).

(ii) The option referred to in clause (i) shall be exercised within such time from the appointed day, and in such manner as may be prescribed.

(4) The amount referred to in sub-section (3) shall be twenty times the difference between the fair rent in respect of such land determination in accordance with the provisions contained in the Schedule and the land revenue due on such land.

(5) Where the service-holder has exercised his option to pay the amount specified in sub-section (4), the tasdik allowance referred to in sub-section (6) in respect of the period subsequent to the date of the exercise of such option shall be the absolute property of the institution and the institution shall be at liberty to make such arrangements as it thinks fit for the performance of the service.

(6)(a) For so long as the service-holder renders the service, the institution shall pay to the service-holder the tasdik allowance paid by the Government under section 20.

(b) If the service-holder fails to render the service, the prescribed officer shall, after such inquiry and after such notice to the service-holder as may be prescribed in this behalf, notify such failure in such manner as may be prescribed. He shall then declare that the tasdik allowance payable to the institution in respect of the period subsequent to the failure shall be the absolute property of the institution and the institution shall be at liberty to make such arrangement as it thinks fit for the performance of the service.

(7)(a) For so long as the service-holder renders the service, he shall be entitled to occupy permanently the lands in respect of which he is entitled to a patta under section 8, subject, however, to the payment of the assessment fixed under section 16 or under section 16-A, as the case may be in respect of such lands.

(b) If the service-holder fails to render the service, the prescribed officer shall, after such inquiry and after such notice to the service-holder as may be prescribed in this behalf, notify such failure in such manner as may be prescribed. He shall then declare that the service-holder's right to occupy permanently the land under clause (a) shall cease and determine, and the institution shall be at liberty to make such arrangement as it thinks fit for the performance of the service and shall be entitled to hold the land as its absolute property subject, however, to the payment of the assessment fixed therefor under section 16 or under section 16-A, as the case may be.

Explanation I:- For the purpose of this section:-

(i) service-holder includes his heirs;

(ii) non-performance of the service due to illness or other temporary disability shall not be deemed to be failure to render service, provided that the service-holder makes alternative arrangements for rendering the service during the period of such illness or of other temporary disability."

(viii) Section 38(3) of the Act reads as follows:-

"38. Stay of execution proceedings and prohibition of certain transfers:-

(1) x x x (2) x x x (3) Notwithstanding anything contained in any other law for the time being in force, no inamdar shall, on or after the appointed day and before the date on which the earliest deposit as aforesaid is made, sell, mortgage lease or otherwise assign, or alienate any of his immovable property, and any transaction of the nature hereby prohibited shall be void and inoperative and shall not confer or take away any right whatever on or from any party to the transaction."

(ix) Section 44 of the Act reads as follows:

"44. Presumption in the case of service inam:- In proceedings under this Act relating to any inam granted for the benefit of any religious, educational or charitable institution or granted to any individual for rendering service to a religious, educational or charitable institution or for the purpose of rendering any other service, it shall be presumed, unless the contrary is proved that the inam consists not merely of a grant of the melvaram in the land but also the kudivaram therein."

14. W.P.No.15659 of 2003:-

(a) In so far as the clam of the cultivating tenants, the petitioners in W.P.No.15659 of 2003 is concerned their claim is that they are continuously cultivating the land as cultivating tenants under the khazi service provider for a very long time. Therefore, they are entitled to grant of patta. The claim of the petitioners for grant of patta was rejected by the District Revenue Officer on 12.11.1996 stating that they should approach the civil court. Since the patta has been granted to the heirs of Abdul Rasheed pursuant to the order of the High Court in STA No.41 of 1977, the Writ Petition No.18655 of 1996 filed to quash the order of the District Revenue Officer dated 12.11.1996 was subsequently, withdrawn as infructuous. The specific relief sought for by the petitioner was to take action in terms of section 21 read with section 8 of the Act 30 of 1963. section 8 of the Act as has been extracted above relates to claim for ryotwari patta as provided under section 8(2)(ii) of the Act, (i.e.), the institution or the individual rendering service shall be entitled to ryotwari patta on and from the appointed day in respect of their land. In this case, the institution is the fifth respondent Jamia Masjid and the individual rendering service is the khazi. If at all patta can be granted it is only to the service provider or to the institution concerned. In this case, it is not in dispute that the khazi Abdul Rasheed died even before the order was passed in STA No.41 of 1977 and the legal heirs are not doing khazi service. On the contrary, they have sold the property to the third parties in violation of section 38(3) of the Act which prohibits the sale, mortgage, lease or alienation of the immovable property. The admitted case of the petitioner is that the ryotwari patta can be granted only under section 8 of the Act. Therefore, the khazi service provider alone is entitled to claim ryotwari patta. It does not give any right to the cultivating tenants. Only if the claim under section 8 of the Act is excluded, then the cultivating tenants will be entitled to make such claim in terms of Section 9 for grant of ryotwari patta. Section 9 of the Act is very specific that it deals with grant of ryotwari patta in cases not covered by section 8. This position of law cannot be disputed and is fortified by the decision of the First Bench reported in 87 Law Weekly 652 (cited supra) and confirmed by the Apex Court in the decision reported in AIR 1996 Supreme Court 234 (cited supra) which has been extracted above.

(b) Even if the Revenue Divisional Officer or the Revenue officials have issued notice to the cultivating tenants at some point of time, it does not clothe the petitioners with any right under the Act 30 of 1963 to be heard or to submit their objection. The proceedings of the Revenue Divisional Officer in this case is consequent to the sale of the property by the pattadhars, viz., the legal heirs of Abdul Rasheed violating the condition of grant of patta, in particular section 38(3) and for failure to provide the khazi service under section 21(7)(b) of the Act. In this proceedings, the cultivating tenants have no say whatsoever. A mere notice will not clothe the petitioners with a right to be heard. Such notice even if issued has to be ignored as the petitioners have no vested or legal right to be heard in a proceedings for cancellation of the patta issued under section 8 and for action taken for violation of section 38(3) (i.e.) sale and non-performance of khazi service, which is a violation of section 21(7)(b).

(c) There is a reference to the application submitted by Thiru Ayyankutti to the Chief Minister Cell dated 24.7.1998 in the impugned order. It can be treated as a memorandum submitted to the Government for its consideration. When the petitioners cannot claim a right for issuance of patta under section 8, they will not be entitled to as of right to be heard by the competent authority. It will be a different matter if such claim is made under section 9 of the Act.

(d) Admittedly, a claim was made by the cultivating tenants in the year 1996 and the petitioners was directed to go to civil court for appropriate relief. They filed a writ petition, and withdrew the same. The petitioners are not entitled to agitate the matter afresh.

(e) Petitioners' claim for patta if at all will arise on a separate cause of action if they are entitled to such patta as a cultivating tenants. If the claim is through the khazi service provider who have been granted the patta under section 8, then they cannot plead that they have a right to be heard by the competent authority in any proceedings under the Act 30 of 1963. The right to be heard will enure to the ryotwari patta holders under section 8, viz., khazi service providers and not to anybody else as could be seen from section 21(7)(b). Notice of inquiry is to the service holder and in the explanation it includes the heirs. In this case the patta holder has been noticed and it is not disputed.

In such view of the matter, I am unable to accept the plea of the learned senior counsel appearing for the petitioner in W.P.No.15659 of 2003 that in the impugned proceedings the petitioners were not noticed and that they should have been heard before cancellation of patta issued to the legal heirs of Abdul Rasheed. Accordingly, W.P.No.15659 of 2003 deserves to be dismissed.

15. W.P.Nos.44556 to 44558 of 2006:-

Insofar as the other three W.P.Nos.44556 to 44558 of 2006 field by the subsequent purchasers are concerned, the admitted fact is that the lands were sold, patta was issued to the legal heirs of Abdul Rasheed pursuant to the order dated 20.7.1982 passed in STA No.41 of 1977 and they have in turn sold the property in the year 1992. Thereafter, subjected to further transfer to the present petitioners claimed to be in possession of the property under sale deeds as bona fide purchasers of property without notice. The grievance of the petitioners in these three cases is that revenue patta has been issued to them and therefore, they should have been heard. In these three cases, the plea of the three petitioners that they should have been put to notice and heard by the competent authority cannot be accepted for the following reasons:-

(i) The land in question is a service inam land and absolutely vest with the Government as early as on 15.2.1965. The relevant portion of the impugned order reads thus:-

"A perusal of the records shows that before the updating registry, S.Nos.145 and 159 covered by TD.No.572 was registered in the name of Jamia Masjid, S.No.145 was sub divided as 145/4 and S.No.159 was sub divided as S.No.159/5. Patta has been transferred in the name of the legal heirs of the deceased Abdul Rasheed as per Salem Tahsildar's order No.1940/6/ii/85-86 dated 14.11.85. It is opined that the order transferring the patta in favour of the legal heirs of the deceased Abdul Rasheed on the basis of the "Bouthi Vaisu" is not at all satisfied the conditions as patta has been granted to the deceased Abdul Rasheed as a service grant. There is no documentary evidence to show that the legal heirs of the deceased did khazi services after getting proper orders. It is proved that neither Thiru Abdul Rasheed who has been granted patta for the suit lands under reference by the judgment of High Court, Chennai nor the legal heirs of the deceased in whose name the pattas transferred under Bouthi Varisu in the judgment of High Court, Chennai dated 21.7.1982 did Khazi service."

On a perusal of the impugned order, Abdul Rasheed, the service provider, the then khazi pleaded for grant of patta and it was rejected. But his plea was accepted by this court in STA No.41 of 1977 in the order dated 20.7.1982. This court directed that ryotwari patta should be granted under section 8(2) of the Act 30 of 1963 subject to condition applicable. The revenue authorities, however, by mistake have given the patta as "Bouthivarisu" patta to the legal heirs which has been corrected in the impugned order. In terms of the order in STA No.41 of 1977, ryotwari patta alone can be issued to the service provider.

(ii) The reason for cancellation of patta is that the service providers have violated the condition on which the patta was granted under section 8(2) of the Act. There is violation of condition in terms of section 38(3) in view of the sale of service inam lands. The khazi service provider or the legal heirs has been noticed as provided in section 21(7)(b) of the Act. In this case, the inam land is intended for the khazi service provider and it is not their absolute property. The dedication was for pious and religious obligation. After coming into force the Wakf Act and also in view of the decision of the Apex Court which is already extracted, the dedication is a wakf and the service providers have no right to alienate such property. In any event, there is a specific bar under section 38(3) of the Act which has been violated. The cancellation of the ryotwari patta for the above stated reason is justified. In this case also no notice is intended on any other person except the service-holder which includes the legal heirs. They have been noticed. The subsequent purchasers have no say in the impugned proceedings. They are not the holders of ryotwari patta.

(iii) The petitioners in each case if at all have to proceed against their vendors for appropriate remedy which has resulted in the sale of land that has already vested with the Government and no person has a right to transfer such a land.

(iv) Section 38(3) clearly states that there is a prohibition of sale, mortgage, lease of the property and such transaction is void and inoperative. The Act is very specific and clear. Petitioners have purchased the property at their own peril. In view of the specific bar under the Act 30 of 1963, the issuance of revenue patta to the lands is of no consequence and it has no relevance to the impugned proceedings taken by the competent authority for violation of section 38(3) of the Act by issuing notice to the service holder as per section 21(7)(b) of the Act.

16. In any event, in the impugned order, the competent authority has not dealt with the rights of the petitioners or the alleged revenue patta issued in their name. The competent authority has dealt with the patta issued in favour of legal heirs of Abdul Rasheed whose entitlement to ryotwari patta is based on the orders in STA No.41 of 1977 dated 20.7.1982 and the consequence of their act in sale of the property.

17. The revenue patta or any other patta granted contrary to the decision of this court in STA No.41 of 1977, cannot give a better right to the subsequent purchasers and they have no right to be noticed for cancellation of the patta issued under section 8 of the Act 30 of 1963.

18. The petitioners are third parties to the proceedings. Merely on the basis of the sale deed, they cannot claim that they should be heard as a matter of right. Therefore, the petitioners' plea that in the proceedings of the Revenue Divisional Officer, they should be heard cannot be accepted. When there is no legal right to hold the property, there is no necessity to put the petitioners on notice.

19. The legal heirs of the late khazi Abdul Rasheed have filed the writ petitions and abandoned the same. No other person can step into their shoes.

20. The cultivating tenants have no right to be heard in a proceedings taken by the competent authority for cancellation of the ryotwari patta issued under section 8 of the Act 30 of 1963 consequent to the order in STA No.41 of 1977 dated 20.7.1982. Insofar as the purchasers are concerned, they have purchased a service inam land intended for pious and charitable purpose to meet the needs of the khazi service provider. The sale of such property is a clear violation of section 38(3) of the Act 30 of 1963. For that reason, the impugned proceedings were initiated for cancellation of the ryotwari patta issued under section 8 of the Act 30 of 1963 consequent to the order in S.T.A.No.41 of 1977 dated 20.7.1982. The subsequent purchasers, therefore, do not have any legal right to plea that they should be noticed in the proceedings of the competent authority to cancel the ryotwari patta issued in favour of the khazi service provider.

21. This Court, therefore, finds no infirmity in the impugned proceedings of the Revenue Divisional Officer and there is no violation of principles of natural justice insofar as the petitioners are concerned as the court is of the view that they are not necessary parties to the impugned proceedings taken in terms of the Act 30 of 1963.

22. Learned counsel for the subsequent purchasers made a plea that the petitioners in W.P.Nos.44556 to 44558 of 2006 should be given liberty to approach the Government or the Wakf Board to make a request for appropriate relief as the petitioners have constructed building on the above land purchased from the legal heirs of the late Khazi. Without expressing anything on the merits of such plea, it is always open to the petitioners to approach the Government or any appropriate authority to consider such plea for any relief in accordance with law.

23. In the result, all the four writ petitions are dismissed. No order as to costs. Consequently, connected miscellaneous petitions are closed.

ts To

1.The Revenue Divisional Officer, Collector's Office, Salem