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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
K.KALYANASUNDARAM, S.THARANI, JJ.
Nawab Wallajah Sahib Pallivasal, represented by its Secretary - Appellant
Versus
The Commissioner of Land Administration/Board of Revenue, Chepauk - Respondent
W.A.(MD)No.7 of 2016 and C.M.P.(MD).Nos.3772, 5603 and 8687 of 2018
Decided on : 30-04-2019
Tamil Nadu Estates Act, 1948 - Section 32 - Seeking to quash the records - Appellant challenges issuance - Produce any affirmative evidence - Land by adverse possession - Case of petitioner is during century had dedicated the landed properties comprised in Village in District to petitioner which was a religious institution - Fair Register maintained by Commissioner in shows that Title Deed of Village was dedicated to the petitioner - While so, during entered into a deed of partition in respect of subject lands as if those lands belonged to their forefathers – Held, This Court in 2012 (4) L.W. 65 (supra), by referring Section 54 of the Act, confirmed the finding of Tribunal that of has no right to institute suit for removal of encroachment from Wake property and he has to approach Wake Board - In it has been held that in view of Section 32(2)(1) of Wake Act present suit filed by the representing the plaintiff’s Mosque is not maintainable as the power to institute and defend the suit pertaining to Wake lies with Wake Board - In case on hand appellant claims right over property on basis that property was dedicated to religious institution and it is a Wake property respondent would contend that property was not notified under Section 5(2) and no order was passed under Section 27 of the Act - It is case of appellant that provisions of Wake Act have no application and writ petition filed by is maintainable - But court are not able to accept the submission of learned counsel for reasons that they cannot blow hot and cold in same breath - In our considered opinion all provisions of Wake Act are applicable to case on hand and as per decisions referred above appellant has no locus stand to file writ petition and this writ appeal - In Hobble Apex Court set aside orders passed in exercise of judicial power after lapse respectively same view was taken by Supreme Court in latest decision reported High Court in has gone to extent of holding that even if the fraud is alleged, the power must not be exercised after unreasonable period, such as after several decades - In similar circumstances Division Bench of this Court in rejected prayer sought for grant of Patti after six decades - In matter on hand indisputably appellant challenges issuance of after a lapse – Petition dismissed
JUDGMENT :
K.KALYANASUNDARAM, J.
PRAYER: Writ Appeal is filed under Clause 15 of the Letters Patent against the order of this Court, dated 30.10.2015 made in W.P.(MD).No.10034 of 2015.
This appeal has been preferred assailing the order of the learned single Judge passed in W.P.(MD).No.10034 of 2015, dated 30.10.2015.
2. The writ petitioner is the appellant. One Mohamed Musthafa, S/o. Hassan Sahib filed the writ petition claiming to be the Secretary of Nawab Wallajah Sahib Pallivasal seeking to quash the records dated 21.09.1961, pertaining to the taking away of the landed properties belonging to the petitioner Pallivasal.
3. The case of the petitioner is that during the 16th century, Nawab of Carnatic had dedicated the landed properties comprised in the Village viz, Karuvelankulam in Tirunelveli District to the petitioner Pallivasal which was a religious institution. The Inam Fair Register maintained by Inam Commissioner in the year 1865 shows that the Title Deed No.276 of Karuvelankulam Village was dedicated to the petitioner Pallivasal. While so, during the year 1905, one Adhambava Rawather, Vavukkani Beevi and Mahamedukani Beevi entered into a deed of partition in respect of the subject lands as if those lands belonged to their forefathers. According to the petitioner, the said partition deed is a false document created by them in order to grab the properties of the petitioner Pallivasal. After the enactment of Tamil Nadu Estates (Abolition and Conversion into Ryotwari) Act, 1948, the legal heirs of the said three persons by playing fraud got Ryotwari Pattas in respect of the subject lands.
4. The petitioner further alleged that the second respondent without putting on notice on the petitioner, granted Pattas in their favour in the year 1961. After the present Secretary viz., Mohamed Musthafa took charge as the Secretary of the petitioner Pallivasal in the year 2009, the Committee has been taking steps to set right the property belonging to the petitioner Pallivasal. The sum and substance of the case of the petitioner was that the entire lands in Karuvelankulam was dedicated by Nawab of Carnatic in 16th century, however, the private respondents colluding with the second respondent had obtained Patta without notice to the petitioner.
5. The case of the private respondents before the writ Court was that the writ petition filed by Mr.Mohamed Musthafa is not maintainable as no document was produced to establish the fact that he was a Secretary at the time of filing of the writ petition. As per Section 32 (2)(i) of Tamil Nadu Wakf Act, the Tamil Nadu Wakf Board alone is empowered to institute the writ proceedings relating to Wakf properties. Therefore, the Pallivasal has no right to institute writ proceedings relating to Wakf property.
6. It is further stated in the counter that the Wakf Board also cannot initiate any proceedings in respect of a property in the absence of Notification under Section 5(2) of the Act, notifying the said property in the list of Wakf. The lands in Karuvelankulam are admittedly Inam lands and the Inam system was abolished by the Tamil Nadu Estates (Abolition and Conversion into Ryotwari) Act, 1948, and as per Section 3 of the Act, the Inam lands were taken away and vested with the Government free from all encumbrance. By a notification issued by the Government, the lands were taken away and not by the order of the second respondent as alleged in the writ petition. Now, there is no Assistant Settlement Officer in Tirunelveli District and hence, the prayer sought for against the second respondent, who is a Non Existing Officer is not maintainable.
7. It is their further case that the Then Ruler Nawab of Carnatic gave only the right to collect usufructs from the lands in support of and maintenance of the Pallivasal and the Government is now paying transit allowance to the Pallivasal and also paid compensation. Further, the recital in the Fair Inam Register would reveal that the lands in Karuvelankulam has not bee
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