THE HON’BLE SRI JUSTICE D.S.R.VARMA AND THE HON’BLE SRI JUSTICE G.CHANDRAIAH W.A.NOS.1650 AND 1664 OF 2008 COMMON JUDGMENT (Per the Hon’ble Sri Justice D.S.R.Varma) Since both these appeals are filed challenging the common judgment dated 16.10.2008 rendered by a learned single Judge of this court in W.P.Nos.2604 and 1623 of 2005, along with two other writ petitions and as both the matters are inter related, they are being disposed of by this common judgment. 2. The relief sought for in both the writ petitions in W.P.Nos.2604 and 1623 of 2005 is for a writ of mandamus declaring the action of the respondents in passing the impugned resolution No.140 under agenda No.9 of the meeting of the 2nd respondent – Municipal Council, Jagtial, represented by its Commissioner, dated 30.11.2004, as illegal and arbitrary. 3. Writ Petition No.1623/2005 has been filed by the successors in interest of Daram Veeramallaiah, who was allegedly the original grantee by the erstwhile District Board, for an extent of 20 guntas, for the purpose of doing business of petrol and kerosene. 4. W.P.No.2604/2005 has been filed by another set of successors in interest of the original grantee - Daram Veeramallaiah. 5. For convenience, the parties will be referred to as per their array in the writ petitions. 6. It is the contention of the writ petitioners that the then District Board had assigned the land in an extent of 20 guntas, within the municipal limits of Jagtial, in the year 1952 to Daram Veeramallaiah. While so, the 2nd respondent – Municipal Council, passed resolution No.140 in the meeting conducted on 30.11.2004 with three conditions, firstly since the petrol pump business is not being undertaken in an extent of 16 guntas out of the total extent of 20 guntas, which was granted in favour of original grantee, the same was resolved to be resumed; secondly, ‘kibala’, which was available in the shape of photo stat copy, reveals that there are certain serious doubts as regards its genuineness, therefore, an enquiry was resolved to be conducted and; thirdly, it was resolved to request the Commissioner to act in accordance with the above said two resolutions. 7. From a perusal of the above two resolutions, it is obvious, particularly from the first part of the resolution No.140 that the original grantee - Daram Veeramallaiah, was granted an extent of 20 guntas for the purpose of doing business of petrol and kerosene. This happened in the year 1952 at the instance of the then District Board, which was the competent authority and the same is not in dispute. Now, it further appears from the said resolution that, out of the said total extent of 20 guntas, only 4 guntas is being utilized for the purpose intended and, therefore, it is necessary for the 2nd respondent – Municipal Council to resume the remaining extent of land, which is not put to use, inasmuch as, the said extent of land was not being utilized for the original purpose of the grant. 8. The first part of the impugned resolution would indicate that the writ petitioners have been in possession of the entire extent of 20 guntas, but however out of the said total extent, instead of putting the entire extent to use, only 4 guntas of land is being put to use. In other words, it is admitted that the writ petitioners have been in possession and enjoyment of the total extent of 20 guntas of land, since 1952. No investigation, in any connection, as regards the subject land, was ever undertaken by the municipal authorities, any time, in all these decades. 9. The later part of the resolution No.140 is concerned, it is to be seen that the 2nd respondent – Municipal Council had entertained a serious doubt as regards the genuineness of the grant, which is other wise called ‘Kibala’. The said document, in fact, is a photo stat copy. It is the doubt of the authorities that the said document was allegedly prepared somewhere in 1958. Consequently, an enquiry was directed to be conducted as regards the genuineness or otherwise of the document by name ‘Kibala’. 10. From a comprehensive reading of both the parts of the resolution No.140, it is obvious that they are incompatible to each other. In other words, in the first part, the 2nd respondent – Municipal Council had admitted the possession of entire extent of 20 guntas of land, but disputed the area of utilization of the said land. Therefore, it was resolved to resume the extent of land, which is not in use. Coming to the later part of the same resolution, doubts are being expressed as regards the genuineness of the grant, which is otherwise called ‘kibala’, which is in the shape of a xerox copy. It is the allegation that it was subsequently prepared, in such an event, the very grant allegedly made in the year 1952 was seriously doubted. Therefore, an enquiry was ordered. 11. This court cannot go into the aspect of the genuineness or otherwise, of ‘Kibala’ (the grant) for the simple reason that the said document is not in original for examination and secondly, this court cannot go into the questions of fact like genuineness of a particular document, while exercising the extraordinary jurisdiction under Article 226 of the Constitution of India, nor any view can be expressed. Even if any view is expressed, such view expressed by this court, while exercising its jurisdiction under Article 226, cannot be treated as conclusive and, of course, in rarest among rare cases, rather in exceptional cases, depending upon the facts and circumstances of the case, such a finding can be recorded. But, the present case is not such an exceptional case, for the reason that the possession and enjoyment of the property granted in favour of the original grantee, is not in dispute. 12. So long as the veracity or otherwise of the document giving grant in favour of the original grantee is decided, the resolution No.140 passed by the 2nd respondent – Municipal Council, cannot be sustained. 13. As already pointed out, both parts of the resolution No.140 are absolutely incompatible to each other. 14. The learned counsel for the 2nd respondent vehemently contended that the original grant (kibala) would show to a naked eye that it was created subsequently. But, we are not prepared to express any view, inasmuch as, it is not the original document that is on record and, on the contrary, it is the xerox copy. We are also not prepared to accept the views expressed by the learned single Judge as regards the genuineness of the document. 15. Even otherwise, the learned single Judge, having expressed all the opinions, eventually observed that the opinions are not conclusive and the same have to be decided in a competent civil court. The learned judge was absolutely careful in disposing of the writ petition by observing “the observations herein are only for the purpose of disposal of these cases on prima face considerations, as questions of title cannot be gone into in a writ petition.” 16. Having so observed, it may not be proper for the learned Judge to put on record the personal views as regards the genuineness of the document. It is to be further seen that, however, the learned judge had observed that the impugned resolution cannot be a subject matter of writ petition and question of title cannot be gone into in a writ petition. It was further held that, if so advised, the writ petitioners may approach the Government or file a suit for declaration of title. Having so observed, in our considered view, the learned Judge was not correct in dismissing the present writ petitions i.e., W.P.Nos.1623 and 2604 of 2005. 17. Therefore, for the aforementioned, we set aside the conclusions arrived at by the learned single Judge in dismissing the writ petition. 18. Accordingly, the common judgment of the learned single Judge in so far as W.P.Nos.1623 and 2604 of 2005, is set aside and consequently the resolution No.140 passed by the 2nd respondent – Municipal Council dated 30.11.2004, is liable to be set aside and accordingly set aside and the judgment rendered by the learned single Judge in so far as the above two writ petitions are concerned, shall not be given effect to. 19. In the result, pursuant to setting aside of the resolution No.140 dated 30.11.2004 passed by the 2nd respondent – Municipal Council, the writ petitioners shall continue in possession, until the above questions of fact are decided in an appropriate court of law or in any remedy available to the 2nd respondent. 20. In the circumstances of the case, there shall be no order as to costs. --------------------------------------- D.S.R.VARMA,J ------------------------------------ G.CHANDRAIAH,J AVS DATE:16.12.2008