IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 19.04.2010 CORAM: THE HON'BLE MRS.JUSTICE R.BANUMATHI AND THE HON'BLE MR.JUSTICE M.VENUGOPAL W.A.NO.2956 of 2002 K.Nawabjan .... Appellant Vs. 1.R.S.Ramalingam 2.The Tahsildar, Dindigul Taluk, Dindigul. 3.The Collector, Dindigul District, Dindigul Town. 4.The Commissioner, Dindigul Municipality, Dindigul Town. ... Respondents Writ Appeal filed under Clause 15 of the Letters Patent against the order of this Court dated 03.08.2001 passed by the learned single Judge in W.P.No.5137 of 1995. WP 5137/1995: Petition under Article 226 of the constitution of India, praying that in the circumstances stated thereon, and in the affidavit filed therewith the High Court will be pleased to issue writ of Mandamus directing the respondents 1 and 2 to cancel the patta granted to the 4th respondent in S.No.1890/4,Adiyanoothu, Dindigul Town. For Appellant : Mr.R.Kannan For Respondents : No Appearance for R1 and R4 Mr.A.Arumugham for R2 and R3 JUDGMENT M.VENUGOPAL,J. The Appellant/Fourth Respondent has projected this writ appeal as against the order of the learned single Judge dated https://hcservices.ecourts.gov.in/hcservices/ 03.08.2001 in W.P.No.5137 of 1995 in ordering the writ petition with a direction being issued to the Respondents 2 and 3/Respondents 1 and 2 to resume the land under dispute and treat the same as Government Poramboke land, classifying as a 'pathway' in accordance with the original records. 2. Dissatisfied with the order of the learned single Judge in ordering the writ petition filed by the First Respondent/Petitioner, the Appellant/Fourth Respondent has projected this writ appeal before this Court. 3. According to the learned counsel for the Appellant/Fourth Respondent, the learned single Judge while ordering the writ petition should have seen that patta in respect of the land in question was not granted in favour of the Appellant/Fourth Respondent for the first time and that the land was assigned originally to subramania Gurukkal by the then District Collector on 12.05.2003 and moreover, the Appellant's father purchased the land from the said Subramania Gurukkal by means of sale deed dated 10.06.1935 and subsequently, after the death of the Appellant's father, a partition was effected in respect of his share on 19.12.1947 and by means of partition only, the land was allotted to the Appellant/Fourth Respondent and that the patta bearing No.2813 stood in his name. It is the further contention on the side of the Appellant/Fourth Respondent that the First Respondent/Writ Petitioner was a tenant of the Appellant/Fourth Respondent and in between them, there was Rent Control Proceedings under the Tamil Nadu Act 18 of 1960 in respect of the shop measuring 9' X 15' square feet in the occupation of the First Respondent/Petitioner which formed part of the building standing on the piece of the land comprised in S.No.1890/4. But these vital aspects of the matter have not been appreciated by the learned single Judge while allowing the writ petition. 4. That apart, it is the specific contention of the learned counsel for the Appellant/Fourth Respondent that the First Respondent/Petitioner had no locus to challenge the issuance of patta in respect of the land comprised in S.No.1890/4 since he had admitted that he was the Tenant under the Appellant in the counter filed in R.C.O.P.No.17/1987. 5. Continuing further, the learned counsel for the Appellant/Fourth Respondent submits that a comprehensive suit O.S.No.252/1990 on the file of the Principal District Munsif Court, Dindigul is pending as on date and all the controversy/issues involved in the subject matter of the suit including the title of the land dispute will have to be determined completely and comprehensively only by means of a trial and admittedly all the respondents are party to the suit proceedings and in W.A.M.P.No.4975 of 2002, this Court on 28.08.2003 has ordered status quo as regards https://hcservices.ecourts.gov.in/hcservices/ the possession alone and as such the suit is pending for trial. Before the trial Court, certain issues have been framed on the basis of pleadings. 6. In the counter of the First Respondent/Tahsildar, Dindigul, it was stated that as per the Municipal Commissioner of the Third Respondent/Municipality in his proceedings D1/4371/89 dated 21.03.1989, the Government Poramboke land measuring an extent of 3485 sq.ft. in S.No.1890/4 of Adiyanuthu village was transferred to the Appellant/Fourth Respondent and neither the First Respondent/Tahsildar, Dindigul nor the Second Respondent/District Collector issued orders assigning the poramboke in favour of the Appellant/Fourth Respondent and it was not known how the Municipal Authorities had issued orders to change the classification of land from poramboke to patta land. Besides the above, when called for his remarks, the Fourth Respondent/Commissioner (Dindigul Municipality) had stated that the patta was transferred to the Appellant/Fourth Respondent as per order in Roc.4371/89 dated 21.03.1989 on the basis of the recommendation of the Town Surveyor and in fact, the change of classification of land from poramboke to patta land was not made by the Revenue Department and hence patta issued by the Municipal Commissioner in favour of the Appellant/Fourth Respondent was not in order. 7. It is the definite case of the First Respondent/Tahsildar that the Tamil Nadu Government had issued orders prohibiting assignment of land within the radius of 16 km as per G.O.Ms.No.376 dated 8.3.88 and in short, the Commissioner of the Fourth Respondent Municipality was not empowered to issue orders of patta transfer as well as assignment of land and therefore the said order was not a proper and valid one. 8. In the counter to W.M.P.No.8458 of 1995 filed by the third Respondent, it was inter alia stated that the land comprised in T.S.No.1890/4, Block No.38, Ward No.6, measuring 3485 sq. ft. is a poramboke land and during the year 1989, the concerned Town Surveyor made entries in the office records in Na.Ka.No.4371/89/T.1 dated 21.03.1989 and in pursuance of the same, the then Commissioner of the third respondent Municipality granted mutation of patta, which was made on the basis of the sale deed submitted by the Appellant/Fourth Respondent and on the basis of the office records dated 16.03.1989 pertaining to the entries made by the Town Surveyor. 9. Also, the third respondent/Commissioner, Dindigul Municipality had taken a categorical stand that in respect of Natham Private lands, he is the Authority to pass orders for mutation of patta and since the former Commissioner of the third respondent Municipality had passed the order of mutation of patta in favour of the Appellant/Fourth Respondent, the same was a valid one and https://hcservices.ecourts.gov.in/hcservices/ certainly it was bonafide exercise of power. 10. The Appellant/Fourth Respondent in his counter to W.M.P.No.8458 of 1995 had among other things mentioned that he had filed R.C.O.P.No.17 of 1987 against the First Respondent/Petitioner on the ground of wilful default in payment of rent and in the said proceedings, the First Respondent/Petitioner admitted the tenancy but took a plea that he had paid all the rent amount and added further, the Appellant/Fourth Respondent in the Rent Controller Original Proceedings Petition had wrongly mentioned S.No.1893 instead of 1890/4 and hence filed I.A.No.16/1989 for amending the description of property. 11. The First Respondent/Writ Petitioner (Tenant) projected I.A.No.28 of 1988 praying for amendment of his counter statement and I.A.Nos.16/1989 and 28/1988 were dismissed by the Rent Controller and as against the dismissal order in I.A.No.16/1989, the Appellant filed an appeal and the appeal in R.C.A.No.24/1990 was allowed by the learned Appellate Authority viz., the Sub Judge, Dindigul and the First Respondent/Writ Petitioner (Tenant) filed C.R.P.No.2325 of 1992 before this Court and the same was allowed on 20.11.1992, etc., As a matter of fact, only to avoid the eviction and delay the proceedings, the First Respondent/Writ Petitioner had filed the writ petition and in short, the writ petition is per se not maintainable in law and on facts of the case. 12. It is useful to refer to the averments of the affidavit filed by the First Respondent/Writ Petitioner in the writ petition No.5731 of 1995 wherein he had stated that as per G.O.Ms.No.376 dated 08.03.88, the Government had prohibited the lands within the radius of 19 K.Ms in Dindigul Town as house sites and in fact, the Advocate Commissioner who inspected the property during the Rent Control Proceedings found that Survey No.1890/4 was a pathway Government Poramboke and G.O.Ms.No.376 dated 08.03.1986 was still in force and indeed, a land cannot be poramboke as well as patta land and further, 'B' Memo charges were paid by him which indicates that the land was not patta land unless by way of assigning and that he is in possession and enjoyment of the land paying 'B' Memo and could be effected by the Government under the provisions of the Land Encroachment Act and further that he was running a Tailor shop in the property. 13. At this stage, this Court relevantly points out that the Hon'ble Supreme Court in JAI SINGH V. UNION OF INDIA AND OTHERS, AIR 1977 SUPREME COURT 898, has observed that '....A Court will not grant relief under Article 226 of the Constitution of India when the case involves determination of disputed questions of fact or when the petitioner has an alternative remedy.' https://hcservices.ecourts.gov.in/hcservices/ 14. On a careful consideration of respective contentions and in view of the divergent stand taken by the parties and moreso, when admittedly, a Civil Suit O.S.No.2532 of 1990 on the file of the Principal District Munsif Court, Dindigul is pending as on date between the parties wherein especially title of the land in T.S.No.1890/4 is in dispute and taking note of the fact that the said suit is ready for commencement of trial (issues were framed already) and this Court cannot also ignore an important vital fact that the Controversies/Disputes involved between the parties in the pending Civil Suit also centre around Mixed Disputed Questions of Fact and Law which require in-depth examination and letting in of oral and documentary evidence by the respective sides. 15. In view of the above, without expressing any opinion of the merits of the matter, we are therefore not inclined to exercise our discretionary jurisdiction under Article 226 of the Constitution of India and in that view of the matter, we opine that the learned single Judge was not correct in ordering the writ petition by 'issuing a direction to the Respondents 2 and 3/Respondents 1 and 2 to resume the land in dispute and treat the same as poramboke land classifying as pathway in accordance with the original records' and accordingly, we interfere with the said order of the learned single Judge passed in W.P.No.5137 of 1995 dated 03.08.2001, by setting aside the same and resultantly, allow the writ appeal to promote substantial cause of justice. 16. In the result, the writ appeal is allowed leaving the parties to bear their own costs. Since the Civil Suit O.S.No.2532 of 1990 is pending on the file of the Principal District Munsif Court, Dindigul for the last 20 years, in the interest of justice, we direct the trial Court viz., the Principal District Munsif Court, Dindigul to dispose of the suit O.S.No.2532 of 1990, pending on its file within a period of four months from the date of receipt of a copy of this order and the parties are directed to lend a help hand to the trial Court in regard to the completion of the trial of the main case. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar vri https://hcservices.ecourts.gov.in/hcservices/ Copy to: 1.The Tahsildar, Dindigul Taluk, Dindigul. 2.The Collector, Dindigul District, Dindigul Town. 3.The Commissioner, Dindigul Municipality, Dindigul Town. 4.The Principal District Munsif Court, Dindigul. +1cc to Govt. Pleader Sr 25686 +1cc to Mr.R.Kannan, Advocate Sr 25385 TRM(CO) km/27.4. W.A.No.2956 of 2002 https://hcservices.ecourts.gov.in/hcservices/