Allowed

The Settlement Officer, v. M/S.Rahmathula Sha Mosque

Madras HC1 Jun 2017CMP(MD)/10861/2016

Case brief

AI extract

What is this about?

The State authorities challenged an Inam Tribunal decree directing grant of ryotwari patta over land claimed to be a waterbody, and sought condonation of 198 days' delay in filing the special tribunal appeal or, alternatively, conversion of the appeal into a revision. Reading down Section 46 of the 1963 Act on the strength of a Supreme Court decision under the same enactment, the court condoned th

What did the court decide?

Delay of 198 days in filing the appeal against the Judgment and Decree dated 25.06.2013 in Inam C.M.A.No.3 of 2011 condoned; Registry directed to number the appeal and list it for admission; C.M.P.(MD

The Settlement Officer, Vs M/S.Rahmathula Sha Mosque — Property and Title | Madras HC (2017)

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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT ( Civil Appellate Jurisdiction )

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Thursday, the First day of June Two Thousand Seventeen

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PRESENT

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The Hon`ble Mr.Justice T.S.SIVAGNANAM

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and

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The Hon`ble Mr.Justice P.VELMURUGAN

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CMP(MD) No.10861 of 2016

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IN STA(MD) No.SR30048 of 2014 AND CMP(MD) SR.NO.14527 of 2017 IN CMP(MD) NO.10861 of 2016 IN STA(MD) SR.NO.30048 of 2014

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1 THE SETTLEMENT OFFICER,

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OFFICE OF THE COMMISSIONER AND DIRECTOR OF SURVEY AND SETTLEMENT, CHEPAUK, CHENNAI.

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2 THE ASSISTANT SETTLEMENT OFFICE (NORTH), OFFICE OF THE SURVEY & SETTLEMENT, CHEPAUK, CHENNAI.

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3 THE STATE OF TAMILNADU, REPRESENTED BY ITS DISTRICT COLLECTOR, TRICHY.

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4 THE TAHSILDAR, MANACHANALLUR TALUK, TIRUCHIRAPPALLI DISTRICT. ... PETITIONERS / APPELLANTS IN BOTH THE PETITIONS

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Vs M/S.RAHMATHULA SHA MOSQUE DURGA, INAM SAMAYAPURAM MANACHANALLUR TALUK. TRUSTEE / MUTHAVALLI SYED JEELANI REPRESENTED THROUGH HIS P.A.HOLDER MR.SYED ASMATH BATCHA. NO.80 R.M.K.ILLAM MANNARKUDI CHIDAMBARAM ... RESPONDENT / RESPONDENT IN BOTH THE PETITIONS

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Petition praying that in the circumstances stated therein and in the affidavit filed therewith the High Court will be pleased https://hcservices.ecourts.gov.in/hcservices/ to Condone the delay of 198 days in filing the above appeal filed as against the Judgment and Decree dated 25.06.2013 in Inam C.M.A.No.3 of 2011 on the file of the Principal Subordinate Judge, Tiruchirappalli reversing the order dated 20.07.2011 in S.R.No.E1/9/2010 on the file of the Settlement Officer, Chennai

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PRAYER IN CMP(MD) SR.NO.14527 of 2017 IN STA(MD) SR.NO.30048 of 2017:

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To permit the petitioners / appellants to convert the above Special Tribunal Appeal vide S.T.A.Sr.NoL30048 of 2016 as a Civil Revision petition under Article 227 of Indian Constitution and direct the registry of this Hon'ble court to number the above appeal viz Special Tribunal Appeal as Civil Revision Petition viz CRP and pass such further or further orders as this Hon'ble Court.

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PRAYER IN STA(MD) SR.NO.30048 of 2017:

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Memorandum of Grounds of Special Tribunal Appeal as against the Judgment and Decree dated 25.06.2013 in Inam C.M.A.No.3 of 2011 on the file of the Principal Subordinate Judge, Tiruchirappalli reversing the order dated 20.07.2011 in S.R.No.E1/9/2010 on the ifle of Settlement Officer, Chennai.

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ORDER : This petition coming on for orders upon perusing the petition and the affidavit filed in support thereof and upon hearing the arguments of MR.B.PUGALENTHI, Additional Advocate General, for the petitioners and of MR.SINGARA VELAN, Senior Counsel for MR.M.VINOTH SINGH MISRA on behalf of the Respondent the court made the following order:-

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Heard Mr.B.Pugalenthi, learned Additional Advocate General appearing for the petitioners and Mr.R.Singaravelan, learned Senior Counsel appearing for Mr.M.Vinoth Singh Misra, learned counsel for the respondent and carefully perused the materials placed on record.

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C.M.P.(MD) No.10861 of 2016 has been filed to condone the delay of 198 days in filing the appeal as against the Judgment and Decree, dated 25.06.2013, in Inam C.M.A.No.3 of 2011, on the file of the learned Principal Subordinate Judge, Tiruchirappalli, reversing the order, dated 30.07.2011, passed by the Settlement Officer, Chennai.

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The petitioners have filed another civil miscellaneous petition (yet to be numbered) in C.M.P.(MD) No.SR14527 of 2017 to permit them to convert S.T.A.(MD) No.SR30048 of 2014 as a civil revision petition under Article 227 of Constitution of India and to direct the Registry of this Court to number the special tribunal appeal as a civil revision petition.

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The petitioners in these petitions are the Settlement Officer, Chennai, Assistant Settlement Officer (North), Chennai, District Collector, Trichy and Tahsildar, Manachanallur Taluk, Tiruchirappalli District.

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When C.M.P.(MD) No.10861 of 2016 came up for hearing, the learned Senior Counsel appearing for the respondent raised an objection with regard to the maintainability of the petition to https://hcservices.ecourts.gov.in/hcservices/ condone the delay. It is submitted that the impugned Judgment and Decree in C.M.A.No.3 of 2011 was passed on 25.06.2013, whereas the special tribunal appeal has been filed before this Court on 08.07.2014 and the same is not maintainable in terms of Section 46 of Tamil Nadu Minor Inams (Abolition and Conversion into Ryotwari) Act,

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1963 (Act 26 of 1963), which stipulates that appeal could be filed by the Government within a period of six months from the date of the Lower Court's Judgment. In case of any person aggrieved, appeal could be filed within three months from the date of decision. In terms of the proviso under Section 46(1) of the Act, the Special Appellate Tribunal (Division Bench) may in its discretion allow further time not exceeding three months for filing of such appeal. It is, therefore, submitted that this Court has no jurisdiction to condone the delay in filing the appeal beyond the period of six months. In support of such contentions, reliance was placed on the following decisions:

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i. Anwar Basavaraj Patil and others v. Siddaramaiah and others, reported in 1993 (1) SCC 636;

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ii. Birla Cement Works vs. G.M.Western Railway and others, reported in 1995 (2) SCC 493;

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iii. Gopal Sardar vs. Karuna Sardar, reported in 2004 (4) SCC 252;

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iv. The Commissioner of Sales Tax, UP, Lucknow vs. Parson Tools and Plants, Kanpur, reported in 1975 (4) SCC 22;

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v. Hukumdev Narain Yadev vs. L.N.Mishra, reported in 1974 (2) SCC 133;

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vi. M/s.Days Inn Deccan Plaza vs. the Commissioner of Service Tax (Appeals)-I, Chennai (W.A.No.589 of 2016, dated 13.06.2016;

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vii. Basawaraj v. Land Acquisition Officer, reported in 2013 (14) SCC 81;

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viii. Mohd. Ashfaq vs. S.T.A.T., U.P., reported in AIR 1976 SC 2161;

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ix. Mackkinnon Mackenzie & Co. Ltd. vs. Mackinnon Employees Union, reported in (2015) 4 SCC 544; and

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x. Union of India vs. M/s.Popular Construction Co., reported in 2001 (4) CTC 213.

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Apart from the above objection, the respondent would submit

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that the computation of days of delay is incorrect. To demonstrate the actual number of days of delay, the following tabulated statement was furnished:

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S.No.			Date	of Events
1.	25.06.2013 date	of	judgment	in Inam C.M.A.No.3 of 2011
2.	24.01.2014 copy	app	lication	made
3.	27.03.2014 date 2011	of	issuance	of judgment copy in C.M.A.No.3 of
4.	27.03.2014 date 2011	of	issuance	of Decree copy in C.M.A.No.3 of
5. https://hcservices.eco	08.07.2014 date urts.gov.in/hcservices/	of	filing of	S.T.A.before this Hon'ble Court

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With regard to the prayer sought for by the petitioners to convert the appeal into a Civil Revision Petition, it is submitted that the petitioners are not entitled to convert the special tribunal

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appeal presented beyond the period of limitation as a civil revision petition under Article 227 of the Constitution of India as the statute prescribes an appeal remedy before this Court and this Court will have no jurisdiction to convert the statutory appeal to that of a civil revision petition under Article 227 of the Constitution of India.

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In response to such a preliminary objection, the learned Additional Advocate General submitted that the petitioners should be permitted to prosecute the appeal by condoning the delay or in the alternative to convert it as a civil revision petition on account of the fact that the order passed by the Inam Tribunal is palpably illegal and the effect of the order would be against public interest as the land for which Ryotwari Patta has been directed to be granted is classified as "waterbody". Further, it is submitted that the land, measuring 42.51.5 Hectares (106 Acres) in Samayapuram Village, Lalgudi Taluk (presently Manachanallur Taluk), Tiruchirappalli District, which is an Inam Village, was a lake vested with the State as per the Title Deed No.877 and as per the Inam Fair Register, the said land was classified as “Samayapuram Eri” and it comes under the control of the Public Works Department and from the said waterbody, about 81.53.0 Hectares (201.38 Acres) of land is being irrigation. Further, in the Village Register and memoirs of irrigation sources in Trichy District and all revenue records, the said land is shown as “Samayapuram Eri”.

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It is further submitted that there was no application for grant of Ryotwari Patta in respect of the aforesaid land before the competent authority at any point of time either under Section 9 or 10 or 11 or 14 of the Act. During 2000, a representation was made requesting for grant of Patta, which was rejected by the Commissioner of Land Administration, by an order dated 08.03.2002. After which, during 2011, the respondent made a request to the Settlement Officer, who informed the respondent by proceedings, dated 20.07.2011, that the representation requesting grant of Patta cannot be considered at that stage as the enquiry under the Act had been completed long back and therefore, at that stage, no enquiry could be held. Such proceedings is not an order rejecting an application for grant of Ryotwari Patta and no such application would have been filed as on that date.

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Challenging the said proceedings of the Settlement Officer, the respondent filed an appeal, in Inam C.M.A.No.3 of 2011, before the Inam Tribunal / Principal Subordinate Judge, Trichy, which allowed the appeal by Judgment, dated 25.06.2013, directing issuance of ryotwari Patta. The appeal before the Inam Tribunal was not maintainable as appeal is maintainable only against the decision of the Settlement Officer under Section 9 or 10 or 11 or 14 of the Act and in the instant case, there was no such decision by the Settlement https://hcservices.ecourts.gov.in/hcservices/ Officer under these provisions of the Act. Further, the Tribunal failed to see that the Act was notified in 1963 and the claim for Patta must be made within six months or within a reasonable time, which was extended by the Government finally till 29.07.1987.

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The respondent did not file any application before the Assistant Settlement Officer either under Section 9 or 10 or 11 or 14 of the Act and approached the Settlement Officer after about fifty years. Thus, the Tribunal ought not to have entertained the appeal at the instance of the respondent. Further, the Tribunal miserably failed to take note of the vital fact that under Section 11(a) of the Act, no ryotwari Patta could be granted in respect of Tank or Oorani. The learned Additional Advocate General, in support of his contentions, placed reliance upon the decision of the Honourable Supreme Court in Sri Varadaraja Perumal Temple vs. K.Ramachandra (Dead) by Lrs. & Ors., reported in 1995 SCC Supl.(4) 87.

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Thus, we find that the challenge to the Judgment of the Inam Tribunal is essentially on the question of jurisdiction.

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Countering the contentions raised by the learned Additional Advocate General, written arguments have been submitted by the learned counsel appearing for the respondent contending that even in 1665 A.D., the land in question in S.F.No.208 of Samayapuram Village was gifted to the respondent – Mosque by Rani Meenakshi Ammal and the said inam is permanent. During 1998, i.e.after 330 years, without even any notice to the respondent – Mosque, the land was reclassified as Eri Poramboke as evidenced from the Government Record and Inspection Report, dated 31.08.2010. The said inam was given to the respondent – Mosque and entered in the Wakf Register and it has become a wakf and as per the law laid down by the Honourable Supreme Court in Sayyed Ali v. A.P.Wakf Board, Hyderabad, reported in 1998 (2) SCC 642, once a wakf is always a wakf and it cannot be taken back.

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The Inam Tribunal, after considering the said legal aspect held that the land, which was classified as “Dry Block” or “Punja” in 1665 A.D., as per the Government Records cannot be subjected to conversion into Ayakkattu land or Samayapuram Eri based on the Village Administrative Officer's Certificate, which was given in March, 1998 that too without even an enquiry and notice. The petitioners having not raised the question of jurisdiction before the Inam Tribunal are estopped from doing so before this Court for the first time.

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The legal position, which has been enunciated by the Honourable Supreme Court as to when and under what circumstances, the provisions of the Limitation Act can be read into a statute, which provides for time limit within which appeals / revisions could be preferred is no longer res integra. The legal principle that can be culled out from the decisions referred to by the learned Senior Counsel for the respondent are that:

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(i)If the Legislative in a Special Statute prescribes a certain period of limitation for https://hcservices.ecourts.gov.in/hcservices/ filing a particular application thereunder and provides in clear terms that such period sufficient cause being shown, may be extended in the maximum, only upto a specified time limit and no further, then the Tribunal concerned has no

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jurisdiction to treat within limitation, an application filed before it beyond such maximum time limit specified in the statute by excluding the time spent in prosecuting in good faith and due diligence any prior proceeding on the analogy of Section 14(2) of the Limitation Act.

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(ii)Discretion is granted to the authority to entertain an application for renewal, when it is made beyond the time limit specified, but not more than 15 days late, provided sufficient cause is shown for not making it in time and in such cases, the application of Section 5 of the Limitation Act stands expressly excluded by the provisions of the Special Statute and there is no power for the authority to condone the delay.

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(iii)There is no provision in the Representation of People Act, 1951 making all or any of the provisions of the Limitation Act applicable to the proceedings under the Act.

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(iv)When the provisions of the Limitation Act are necessarily excluded, then the benefits conferred by the Limitation Act cannot be called in aid to supplement the provisions of the Special Act.

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(v) The provisions of Section 5 of the Limitation Act do not govern the filing of election petitions or their trial.

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(vi)Period of limitation is prescribed under the Special Laws and the power to condone the delay limited to 30 days after expiry of original period of limitation amounts to express exclusion of the Limitation Act.

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(vii)It is a settled legal proposition that law of limitation may harshly affect a particular party, it has to be applied with all its rigour when the statute so prescribes. The Court has no power to extend the period of limitation on equitable grounds. A result flowing from a statutory provision is never an evil. A court has no power to ignore that provision to relieve what it considers a distress resulting from its operation. The statutory provision may cause hardship or inconvenience to a particular party but the court has no choice but to enforce it giving full effect to the same. The legal maxim dura lex sed lex which means “the law is hard but it is the law” stands attracted in such a situation. It has consistently been held that, “inconvenience is not” a decisive factor to be considered while interpreting a statute.

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https://hcservices.ecourts.gov.in/hcservices/ (viii)If manner of doing particular act is prescribed under a statute and same is not followed such action suffers from nullity in the eye of law.

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As mentioned above, the legal principle set out in the above decisions would not confer power on the Court to condone the delay beyond the time limit prescribed under the said Act.

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We note that all the above referred decisions are not cases, which have arisen under the Tamil Nadu Minor Inams (Abolition and Conversion into Ryotwari) Act, 1963 (Act 26 of 1963), but under various other special statutes. It is no doubt true that the decisions have laid down the proposition that when a special statute prescribes a certain period within which an appeal or revision could be entertained and when outer time limit is prescribed, the Court cannot step-in and condone the delay in filing the appeal by exercising its power under Section 5 of the Limitation Act.

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Interestingly, the learned Additional Advocate General has placed reliance upon a decision of the Honourable Supreme Court in Sri Varadaraja Perumal Temple (cited supra) arising out of the very same enactment. The appeal before the Honourable Supreme Court was against the Judgment of the Special Tribunal set up under the 1963 Act, which is a Division Bench of this Court. In the said case, the Temple put to challenge before the Special Appeal Tribunal an order was passed by the Minor Inams Tribunal, Coimbatore, on merits of the matter. The appeal was dismissed as time barred. Under Section 30 (1) of the Tamil Nadu Minor Inams (Abolition and Conversion into Royatwari) Act, 1963, the limitation for filing an appeal before the Special Appellate Tribunal is three months from the date of the order. But, under the proviso to sub-section (1) of Section 30, the Special Appellate Tribunal may, in its discretion, allow further time not exceeding three months for the filing of such appeal. The maximum time limit available to file an appeal before the Special Appellate Tribunal is six months. The appellant therein admittedly filed the appeal beyond the period of six months. Consequently, the appeal was rejected, which order was put to challenge before the Honourable Supreme Court.

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The Honourable Supreme Court took into consideration that the disputed temple property was a trust property and noticeably, there was a trustee, who was following it to safeguard the interest of the temple against another set and though the time limit for filing the appeal was six months (3 + 3), noting that the properties were trust properties, it was held that a way need had to be found to prevent manipulations and grabbing of temple / trust properties. After referring to Sections 5, 10 and 20 of the Limitation Act, it was held that no violation to the statute would be caused in pursuing that public policy in reading down the provisions of Section 30(1) of the Act to promote justice and permit of trust / temple properties, lest they get into the hands of property-grabbers and be subjected to manipulations. The operative portion of the Judgment reads as follows:

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https://hcservices.ecourts.gov.in/hcservices/ “Though the said provision cannot strictly apply to the facts of the case in hand, but the spirit and purpose behind Section 10 of the Limitation Act would as it is reflective of the public policy to protect trust properties.

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Notwithstanding the provisions of Sections 5 and 20 of the Limitation Act and the limitation of six months provided in the aforesaid Act, if, by interpretative process, such time is made extendable, no violation to the statute would be caused in pursuing that public policy in reading down the provisions of Section 30(1) of the aforesaid Act, to promote justice and permit of trust/temple-properties, lest they get into the hands of property-grabbers and be subjected to manipulations. With this object in view, we come to the opinion that for the recovery of trust property, the temple could approach the Special Appellate Tribunal beyond the period of six months, for the delay of which there was a reasonable explanation, initially accepted by the Special Appellate Tribunal. It should have, in the facts and circumstances, stuck to its original view and kept entertained the appeal so as to decide it on merit. We are therefore of the view that the delay in filing the appeal, it being for the purpose of protecting temple property from the hands of adversaries, should deserve condonation, as it did serve a public purpose, deserving reading down the provision, carving an exception in favour of temple / trust-properties. We hold accordingly.

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We thus set aside the impugned order of the Special Appellate Tribunal, dated 14.09.1978 and effect a remand to it for re-deciding the matter on its own merits. The appeal is thus allowed in these terms. No costs.”

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We have had a glimpse of the facts of the case. The petitioners have approached this Court to pursue the matter either as an appeal or as a revision contending that Ryotwari Patta has been directed to be granted in favour of the respondent in utter disregard to the provisions of the Act contrary to the entries found in the revenue records, which has classified the lands as a waterbody. Commenting upon the Judgment of the Sub Court Trichy, it is submitted that at the very outset, the Tribunal ought to have seen that it had no jurisdiction to entertain the appeal as the appeal was not against the order of rejection of an application filed under Section 9 or 10 or 11 or 14 of the Act. Further, the Tribunal by relying upon the decision in the case of Sayyed Ali (cited supra) held that once a wakf is always a wakf and since the lands have been gifted to the wakf, the same cannot be taken away and the Act does not provide for taking away any pre-existing right, which accrued in favour of the party prior into coming into force of the Act.

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https://hcservices.ecourts.gov.in/hcservices/

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The learned Additional Advocate General further submitted that though the respondent contended that the revenue entries were corrected during 1998, after 330 years without even notice to the respondent. Indisputably, till date the classification of the land

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as Samayapuram Eri has not been questioned by the respondent before the appropriate forum.

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Section 12 of the Act 26 of 1963 deals with determination of lands in which any person is entitled to ryotwari patta. Sub-section (1) of Section 12 states that the Settlement Officer shall examine the claims of any person for a ryotwari patta under section 9 or section 10 or section 11, as the case may be, and decide in respect of which lands the claim should be allowed. Against such a decision of the Settlement Officer under Section 12(1), an appeal is maintainable before the Tribunal and outer time limit has been fixed.

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In terms of the second proviso of Section 12(2) of the Act, the Tribunal, may, in its discretion, entertain an appeal by the Government at any time if it appears to the Tribunal that the decision of the Settlement Officer was vitiated by fraud or by mistake of fact.

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The Tribunal, which has to decide the matter, is constituted in terms of Section 8 of the Act and it has the same powers as are vested in a Civil Court under the Code of Civil Procedure, when trying a suit or when hearing an appeal.

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Section 46 of the Act deals with appeals and it states that against any decision of the Tribunal under sub-section (2) of Section 12 and Sections 38 to 45, the Government may within six months from the date of the decision and any person aggrieved by such decision may, within three months from the date of such decision appeal to a Special Appellate Tribunal consisting of two Judges of the High Court nominated from time to time by the Chief Justice on that behalf and the proviso states that the Special Appellate Tribunal may, in its discretion, allow further time not exceeding three months for the filing of such appeal.

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In terms of sub-section (3) of Section 46 of the Act, the Special Appellate Tribunal shall and subject to the provisions of section 72-A have the same powers as are vested in a Civil Court under the Code of Civil Procedure, when trying a suit or when hearing an appeal.

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We may point out that the appeal has been presented before the Tribunal (Sub Court) under Section 12(2) of the Act. Therefore, for the appeal to be maintainable, it should have been against a decision of the Settlement Officer under sub-section (1) of Section 12 of the Act.

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The submission of the petitioners is that the appeal presented before the Tribunal is not against the decision of the Settlement Officer under Section 9 or Section 10 or Section 11, but https://hcservices.ecourts.gov.in/hcservices/ against the proceedings, dated 20.07.2011, passed by the Settlement Officer, Chennai. At this stage, it would be useful to refer to the tenor of the said proceedings to appreciate the case better and it is quoted hereunder:

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“rP.k.vz;.n1/9/2010 epy msit kw;Wk; epythpj;jpl;l ehs; 20.7.2011 Mizah; mYtyfk;, Brg;ghf;fk;, brd;id-5

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Fwpg;ghiz

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bghUs; : epyk; - jkpH;ehL ndhk; v!;Bll; (xHpj;jYk; kw;Wk; uaj;Jthhpahf khw;wYk;) rl;lk; 26/63 – jpUr;rp khtl;lk; - kzr;rey;Yhh; tl;lk; - ndhk; rkag[uk; fpuhkk; - g[jpa g[y vz;.208 – gl;lh BfhhpaJ – bjhlh;ghf.

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ghh;it : 1. nt;tYtyf rP.k.n1/9/2010, ehs; 28.6.2010.

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jA;fsJ kD ehs; 18.7.2011

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jpUr;rp khtl;lk; kzr;rey;Yhh; tl;lk; ndhk; rkag[uk; fpuhkk; jkpH;ehL ndhk; v!;Bll; (xHpj;jYk; kw;Wk; uaj;Jthhpahf khw;wYk;) rl;lk; 26/63 rl;lj;jpd; fPH; Vw;fdBt epythpj;jpl;lk; gzpfs; Kot[ bgw;W rk;ge;jg;gl;l fpuhkf; fzf;Ffs; xg;gilf;fg;gl;Ltpl;ld. vdBt Bkw;go kDtpd; kPJ jw;BghJ tprhuiz Bkw;bfhs;s nayhj epiy Vw;gl;L cs;sJ.

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vdBt kDjhuh; jpUr;rp khtl;l ndhk; xHpg;g[ ePjpkd;wj;jpid mZfp jA;fsJ Bfhhpf;ifia epiwBtw;wpf;bfhs;SkhW kDjhuUf;F njd;Kyk; bjhptpf;fg;gLfpwJ.

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epythpj;jpl;l mYtyh;

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brd;id

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bgWeh; jpU.iraj; m!kj;gh&h, ou!;o / gth; Vb$z;l;, be.83, R.M.K . ny;yk;, kd;dhh;Fo bjU, rpjk;guk;-608 001.”

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The question would be whether the above proceedings is an order under Section 9 or Section 10 or Section 11 of the Act. Prima facie, it does not appear to be an order under any of these provisions. We do not propose to render any finding at this stage of the matter as we are concerned about whether the appeal could be entertained. However, this issue is a question touching upon the jurisdiction of the Tribunal to entertain the appeal. It is settled legal principle that the question of jurisdiction of an authority or a Tribunal to decide a matter can be raised at any stage of the proceedings being a question of law. Therefore, we are not inclined to agree with the stand taken by the respondent that the petitioners are estopped from raising the question of jurisdiction of the Tribunal.

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One more aspect to be noted is that power has been conferred https://hcservices.ecourts.gov.in/hcservices/ on the Tribunal under Section 12(2) of the Act to entertain an appeal by the Government at any time if it appears to the Tribunal that the decision of the Settlement Officer was vitiated by fraud or by mistake of fact. If such power has been conferred on the Tribunal, this Court exercising appellate powers over the decision of the

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Tribunal under Section 46 cannot be stated to be denuded of jurisdiction to examine the correctness of the decision of the Tribunal, when it is a case of mistake of fact as alleged by the petitioners before us. This peculiar feature finds place in Act 26 of 1963, which is one of the distinguishing features of this statute, which has convinced us to depart from the law laid down by the Honourable Supreme Court, while examining the other statutes, such as Motor Vehicles Act, Representation of People Act etc.

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Thus, for the above reasons and applying the decision of the Honourable Supreme Court, the provisions of the statute requires to be read down. There are hardly a handful of cases in the State of Tamil Nadu arising out of the provisions of the said Act as the period within which the period within which a Ryotwari Patta could be claimed came to an end on 29.07.1987. Thus, the litigation, which had commenced soon after the expiry of the six months period or after the extended time thereof as granted by the Government, substantial member of cases have attained finality. It is pointed out by the petitioners that the order as against which appeal was preferred, i.e., the order passed by the Settlement Officer, dated 20.07.2011, is not an order rejecting the application for grant of ryotwari patta and the Act provides that the application should have been filed within the time permitted before the Assistant Settlement Officer / second respondent. Thus, we are of the view that this is one of the rarest of rare cases, where the Court should not be scuttled down by rules of procedure bearing in mind that the intention should be to promote justice and to preserve Government properties more particularly, when it is stated by the petitioners that the land in question has been classified as waterbody – Samayapuram Eri. The extent appears to be very vast, namely, 42.51.5 Hectares (106 Acres) and the petitioners claim that as per the Title Deed No.877 and as per the Inam Fair Register, the said land is vested with the State and the land is classified as “Samayapuram Eri” catering to the irrigation needs of an extent of 81.53.0 Hectares (201.38 Acres) of lands in Trichirappalli District.

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We have perused the affidavit filed by the Tahsildar / fourth petitioner, wherein it is stated that when the respondent filed a writ petition to consider his representation and grant ryotwari Patta to him, the files were placed before him and on going through the files and noting the survey number, it came to his knowledge that the land in question was a waterbody and thereafter, steps were taken by him by contacting the Government Pleader and revision was filed against the order passed by the Inam Tribunal, in C.R.P.(MD) No.SR30048 of 2014, on 08.07.2014, which was returned by the Registry on 10.07.2014. It is stated by the Tahsildar that the papers were misplaced in the Government Pleader's Office between July, 2014 and September, 2016 and after the papers were traced, it was represented as STA, which was returned by the Registry stating https://hcservices.ecourts.gov.in/hcservices/ that there is a delay in filing the appeal, for which C.M.P.(MD) No.10861 of 2016 was filed to condone the delay.

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From the above facts placed in the affidavit filed in support of the petition to condone the delay, we note that the

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Judgement of the Inam Tribunal was delivered on 25.06.2013, copy application was made belatedly and after the certified copy was made ready, the revision was filed on 08.07.2014. The delay of about one year cannot be taken as an inordinate delay. Subsequently, when the papers got returned from the Registry on 10.07.2014, it is stated that it was misplaced in the Government Pleader's Office for nearly two years. We refrain from making any observations in this regard. However, considering the facts and circumstances of the case and in view of the above discussions, we are inclined to exercise our discretion taking note of the decision of the Honourable Supreme Court in Sri Varadaraja Perumal Temple (cited supra), which is a Judgment arising out of the very same enactment and to condone the delay in filing the appeal.

¶106

In the result,

¶107

(i) C.M.P.(MD) No.10861 of 2016 is allowed and the the delay of 198 days in filing the appeal as against the Judgment and Decree, dated 25.06.2013, in Inam C.M.A.No.3 of 2011, on the file of the learned Principal Subordinate Judge, Tiruchirappalli, is condoned. Registry is directed to number the appeal, if the papers are otherwise in order and list the matter for admission; and

¶108

(ii) Consequently, C.M.P.(MD) No.SR14527 of 2017 is closed.

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sd/01/06/2017 / TRUE COPY /

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Sub-Assistant Registrar (C.S.) Madurai Bench of Madras High Court, Madurai - 625 023. TO

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THE PRINCIPAL SUBORDINATE JUDGE, TIRUCHIRAPPALLI

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+1. C.C. to MR.M.VINOTH SINGH MISRA, Advocate SR.No:22984

¶113

IN CMP(MD) No.10861 of 2016 IN STA(MD) No.SR30048 of 2014 AND CMP(MD) SR.NO.14527 of 2017 IN https://hcservices.ecourts.gov.in/hcservices/ CMP(MD) NO.10861 of 2016 IN STA(MD) SR.NO.30048 of 2014 Date :01/06/2017

¶114

SVA/KK/05.06.2017/SAR4/12P/3C

The Settlement Officer, v. M/S.Rahmathula Sha Mosque

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The Settlement Officer, v. M/S.Rahmathula Sha Mosque

Case brief

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