Madras High Court
A.Kalimuthan vs The District Revenue Officer on 30 September, 2015
Author: R.Mahadevan
Bench: R.Mahadevan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 30.09.2015
CORAM
THE HONOURABLE MR.JUSTICE R.MAHADEVAN
W.P(MD).No.5509 of 2012
and
M.P.(MD)No.1 of 2012
A.Kalimuthan ... Petitioner
Vs
1.The District Revenue Officer,
Ramanathapuram,
Ramanathapuram District.
2.Ramajeyam ...Respondents
Prayer- The Writ Petition has been filed under Article 226 of the
Constitution of India praying for issuance of a Writ of Certiorari calling
for the records relating to the impugned order passed by the 1st respondent
in his proceedings Na.Ka.P5/C.R.315/2010 dated 16.3.2012 and quash the same
as illegal and arbitrary.
!For petitioner : Mr.R.Sevugaraja
^For respondent No.1 : Mr.S.Chandrasekar
Government Advocate
For Respondent No.2 : Mr.R.Sundar Srinivasan
:ORDER
Challenging the order passed by the 1st respondent in his proceedings Na.Ka.P5/C.R.315/2010 dated 16.3.2012, this writ petition has been filed.
2. Heard both sides.
3.The learned counsel for the petitioner has submitted that the property in S.No.102/2 to the extent of 1.85 acres situate at A.R.Mangalam, Thiruvadanai Taluk belongs to the petitioner. Previously the adangal extract was showing the land as ?Anathinam?. Hence, the Government had assigned the above said land to the petitioner's father on 28.08.1969. The standing order had also been issued to the petitioner's father with ?D? Namoona and his father had obtained patta pass book in respect of the above said land. After his demise, the property was inherited by the petitioner and his brother Chellaiah. Subsequently, his brother had also given his share to the petitioner through a sale deed. Hence, the petitioner is the sole and absolute owner of the entire property in S.No.102/2 measuring 1.85 acres.
4.Further the learned counsel has added that the second respondent, who is in no way connected with the said land, tried to get patta in her name by utilizing her political as well as economical influence. Accordingly, she succeeded in getting sub-divided the said land as S.No.102/2A and 102/2B and the sub-division 2A was recorded in the name of the second respondent for the extent of 0.28.0 hectare and the remaining land stands in the name of the petitioner. Immediately, the petitioner preferred an appeal before the Revenue Divisional Officer against the wrongful sub- division of his land. After through enquiry, the Revenue Divisional Officer had passed an order setting aside the wrongful sub-division and further directed that the revenue records can be maintained as S.No.102/2 and the same should be in the name of the petitioner alone. Thereafter, the Tashildar recorded the name of the petitioner and issued patta in the name of the petitioner.
5.The learned counsel has contended that challenging the same, the second respondent had filed a revision petition before the first respondent, who has passed the impugned order setting aside the order of the Revenue Divisional Order, without conducting proper enquiry and considering the original documents.
6. Under these circumstances, the learned counsel has urged this court to order the writ petition as prayed for.
7.On the other hand, the learned counsel for the second respondent has submitted that the property, which was classified as Anadheenam, does not belong to the Government and therefore, the very basis of the contention of the petitioner that the property which was classified as Anadheenam came to be assigned to the petitioner's father itself is untenable and suspicious.
8. Further, the learned counsel has added that the patta pass book filed along with the writ petition would go to show that the property was mentioned as ?Valimurai? and therefore, the very patta pass book as become a suspicious document. The ?D? namoona filed along with the Writ Petition would also go to show that more than 2-1/2 acres came to be assigned by the Tashildar who is not competent under the Board Standing Order. The reasoning of the first respondent that the appeal before the Revenue Divisional Officer was not maintainable is correct as the Patta Pass Book Act is applicable only in respect of Patta Pass Books issued under the Patta Pass Book Act, 1985.
9.The learned counsel has added that it is not the case of the petitioner that patta came to be issued under the Patta Pass Book Act. Issuance of patta under the Patta Pass Book Act is different from the issuing of patta pass book earlier to the passing of the said Act. Section 2(7) of the Patta Pass Book Act defines Patta Pass Book. Section 3 of the Act deals with elaborate procedures to be adopted by the Tashildar for issuance of patta pass book and Section 10 deals with modification of entries in the patta pass book issued under the Patta Pass Book Act. Therefore, the provisions of the Patta Pass Book Act 1983 are not applicable and the first respondent has clearly observed in his impugned order that the challenge made by the petitioner before the Revenue Divisional Officer was in respect of entries during UDR scheme which is governed by G.O.Ms.No.385 dated 17.08.2004 for which the District Revenue Officer was the competent authority and hence, the order of Revenue Divisional Officer has been set aside by the first respondent. The said order of the first respondent is in conformity with the judicial principles and Rules of the Board Standing Orders and also G.O.Ms.No.385 dated 17.08.2004 and therefore, he has urged this Court to dismiss the writ petition.
10.The learned counsel has contended that when the impugned order has been passed, after hearing both sides and after giving an adequate opportunity, the question of violation of principles of natural justice does not arise. The impugned order passed by the first respondent is a detailed and speaking order and the same does not suffer any infirmity both legally and factually.
11. He has also contended that the petitioner should have exhausted the alternative remedies available under the Act and without exhausting the alternative remedies, he has approached this Court by filing this writ petition, which ought not to have been entertained and therefore, the writ petition may be dismissed.
12.I have considered the aforesaid submissions made on either side and perused the available materials on record.
13.Before going into the merits of the case, this Court is of view that since the matter relates to a civil dispute that too relating to issuance of patta, it could not be decided without oral and documentary evidence, which, sitting in writ jurisdiction, is not possible. Further, the petitioner has approached this Court without exhausting the alternative remedies available under law or without approaching the civil court for proper relief.
14.At this juncture, it would be relevant to refer to the decisions of the Apex Court to make it clear that under what circumstances, a writ petition can be entertained.
15.In Commissioner of Income Tax and others vs. Chhabil Dass Agrawal, (2014)1 SCC 603, the Apex Court has observed as under:-
"15. Before discussing the fact proposition, we would notice the principle of law as laid down by this Court. It is settled law that non-entertainment of petitions under writ jurisdiction by the High Court when an efficacious alternative remedy is available is a rule of self-imposed limitation. It is essentially a rule of policy, convenience and discretion rather than a rule of law. Undoubtedly, it is within the discretion of the High Court to grant relief under Article 226 despite the existence of an alternative remedy. However, the High Court must not interfere if there is an adequate efficacious alternative remedy available to the petitioner and he has approached the High Court without availing the same unless he has made out an exceptional case warranting such interference or there exist sufficient grounds to invoke the extraordinary jurisdiction under Article
226. (See: State of U.P. vs. Mohammad Nooh, AIR 1958 SC 86; Titaghur Paper Mills Co. Ltd. vs. State of Orissa, (1983) 2 SCC 433; Harbanslal Sahnia vs. Indian Oil Corpn. Ltd., (2003) 2 SCC 107; State of H.P. vs. Gujarat Ambuja Cement Ltd., (2005) 6 SCC 499).
16. The Constitution Benches of this Court in K.S. Rashid and Sons vs. Income Tax Investigation Commission, AIR 1954 SC 207; Sangram Singh vs. Election Tribunal, Kotah, AIR 1955 SC 425; Union of India vs. T.R. Varma, AIR 1957 SC 882; State of U.P. vs. Mohd. Nooh, AIR 1958 SC 86 and K.S. Venkataraman and Co. (P) Ltd. vs. State of Madras, AIR 1966 SC 1089 have held that though Article 226 confers a very wide powers in the matter of issuing writs on the High Court, the remedy of writ absolutely discretionary in character. If the High Court is satisfied that the aggrieved party can have an adequate or suitable relief elsewhere, it can refuse to exercise its jurisdiction. The Court, in extraordinary circumstances, may exercise the power if it comes to the conclusion that there has been a breach of principles of natural justice or procedure required for decision has not been adopted. (See: N.T. Veluswami Thevar vs. G. Raja Nainar, AIR 1959 SC 422; Municipal Council, Khurai vs. Kamal Kumar, (1965) 2 SCR 653; Siliguri Municipality vs. Amalendu Das, (1984) 2 SCC 436; S.T. Muthusami vs. K. Natarajan, (1988) 1 SCC 572; Rajasthan SRTC vs. Krishna Kant, (1995) 5 SCC 75; Kerala SEB vs. Kurien E. Kalathil, (2000) 6 SCC 293; A. Venkatasubbiah Naidu vs. S. Chellappan, (2000) 7 SCC 695; L.L. Sudhakar Reddy vs. State of A.P., (2001) 6 SCC 634; Shri Sant Sadguru Janardan Swami (Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha vs. State of Maharashtra, (2001) 8 SCC 509; Pratap Singh vs. State of Haryana, (2002) 7 SCC 484 and GKN Driveshafts (India) Ltd. vs. ITO, (2003) 1 SCC 72)."
16. In the above said decision, the Apex Court has referred the decision in Thansingh Nathmal v. Supt. of Taxes (AIR p. 1423,para 7), wherein, while adverting to the rule of self-imposed restraint that the writ petition will not be entertained if an effective remedy is available to the aggrieved person and observed:
?7. ? The High Court does not therefore act as a court of appeal against the decision of a courtor tribunal, to correct errors of fact, and doesnot by assuming jurisdiction under Article 226 trench upon an alternative remedy provided by the statute for obtaining relief. Where it is open to the aggrieved petitioner to move another tribunal, or even itself in another jurisdiction for obtaining redress in the manner provided by astatute, the High Court normally will not permit by entertaining a petition under Article 226 of the Constitution the machinery created under thestatute to be bypassed, and will leave the party applying to it to seek resort to the machinery soset up.?
17.Further, in Titaghur Paper Mills Co. Ltd. v. State of Orissa (SCC pp. 440-41,para 11) the Apex Court has observed as under:-
?11. ? It is now well recognised that where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of. This rule was stated with great clarity by Willes, J. in Wolverhampton New Waterworks Co. v. Hawkesford in the following passage: (ER p. 495):-
18. In Mafatlal Industries Ltd. v. Union of India B.P. Jeevan Reddy, J. (speaking for the majority of the larger Bench) observed:
(SCC p.607, para 77):-
"77. ? So far as the jurisdiction of the High Court under Article 226?or for that matter, the jurisdiction of this Court under Article 32?is concerned, it is obvious that the provisions of the Act cannot bar and curtail these remedies. It is, however, equally obvious that while exercising the power under Article 226/Article 32, the Court would certainly take note of the legislative intent manifested in the provisions of the Act and would exercise their jurisdiction consistent with the provisions of the enactment.?(See G. Veerappa Pillai v. Raman & Raman Ltd., CCE v. Dunlop India Ltd., Ramendra Kishore Biswas v.State of Tripura, Shivgonda Anna Patil v. State of Maharashtra, C.A. Abraham v. ITO, Titaghur Paper Mills Co. Ltd. v. State of Orissa, Excise and Taxation Officer-cum-Assessing Authority v. GopiNath and Sons, Whirlpool Corpn. v. Registrar of Trade Marks, Tin Plate Co. of India Ltd. v. State of Bihar, Sheela Devi v. Jaspal Singh and Punjab National Bank v. O.C. Krishnan.) Thus, while it can be said that this Court has recognised some exceptions to the rule of alternative remedy i.e. where the statutory authority has not acted in accordance with the provisions of the enactment in question, or indefiance of the fundamental principles of judicial procedure, or has resorted to invoke the provisions which are repealed, or when an order has been passed in total violation of the principles of natural justice, the proposition laid down in Thansingh Nathmal case, Titaghur Paper Mills case and other similar judgments that the High Court will not entertain a petition under Article 226 of the Constitution if an effective alternative remedy is available to the aggrieved person or the statute under which the action complained of has been taken itself contains a mechanism for redressal of grievance still holds the field. Therefore, when a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation.?
19. It is settled law that non-entertainment of petitions under writ jurisdiction by the High Court when an efficacious alternative remedy is available is a rule of self-imposed limitation. It is essentially a rule of policy, convenience and discretion rather than a rule of law. Undoubtedly, it is within the discretion of the High Court to grant relief under Article 226 despite the existence of an alternative remedy. However, the High Court must not interfere if there is an adequate efficacious alternative remedy available to the petitioner and he has approached the High Court without availing the same unless he has made out an exceptional case warranting such interference or there exist sufficient grounds to invoke the extraordinary jurisdiction under Article 226.
20. In light of the above, though there is an efficacious alternative remedy is available under the Act and since the petitioner has not made out a case that it is an exceptional case warranting the interference of this Court or there exist sufficient grounds to invoke the extraordinary jurisdiction under Article 226, this writ petition is disposed of with liberty to the petitioner either to exhaust the alternative remedies available under law or to approach the civil court for appropriate relief. However, there will be no order as to costs. Connected M.P. is closed.
To The District Revenue Officer, Ramanathapuram, Ramanathapuram District.
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