Madras High Court
V.Damodharan vs The District Collector on 5 July, 2021
W.P.No.29701 of 2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 05.07.2021
CORAM:
THE HON'BLE MR. JUSTICE R.SURESH KUMAR
W.P.No.29701 of 2015
V.Damodharan ... Petitioner
Vs.
1.The District Collector
Kanchipuram, Kanchipuram District.
2.The Revenue Divisional Officer,
Kanchipuram, Kanchipuram District.
3.The Tahsildar,
Sriperumbudur Taluk,
Kanchipuram District.
4.The Deputy Tahsildar,
Sriperumbudur,
Kanchipuram District.
5.Vendamirathammal ... Respondents
Prayer: Petition filed under Article 226 of Constitution of India praying for
issuance of a Writ of Mandamus directing the respondents 1 to 4 to cancel
the Patta bearing Patta No.614 issued by the 4th respondent herein to
Mrs.Vendamirthammal, the 5th respondent herein with regard to the
property situated at Survey No.131/2, measuring to an extent of Hectare
(0.21.50) (Acre 0.53 cents), Kanthur Village, Sriperumbudur Taluk,
1/18
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Kanchipuram District and consequently to restore the original Patta bearing
Patta No.248 issued in the petitioner's name with regard to the said property
situated at Survey No.131/2, measuring to an extent of Hectare (0.21.50)
(Acre 0.53 cents), Kanthur Village, Sriperumbudur Taluk, Kanchipuram
District.
For Petitioner : Mr.P.Balamurugan
For Respondents 1 to 4 : Ms.Akila Rajendran
Counsel for Government
For 5th Respondent : Mr.G.Anabaya Chozhan
ORDER
The prayer sought for herein is for a writ of mandamus directing the
respondents 1 to 4 to cancel the Patta bearing Patta No.614 issued by the 4th
respondent herein to Mrs.Vendamirthammal, the 5th respondent herein with
regard to the property situated at Survey No.131/2, measuring to an extent
of Hectare (0.21.50) (Acre 0.53 cents), Kanthur Village, Sriperumbudur
Taluk, Kanchipuram District and consequently to restore the original Patta
bearing Patta No.248 issued in the petitioner's name with regard to the said
property situated at Survey No.131/2, measuring to an extent of Hectare
(0.21.50) (Acre 0.53 cents), Kanthur Village, Sriperumbudur Taluk,
Kanchipuram District.
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2.The petitioner is Lawing land at Survey No.131/2 measuring to an
extent of hectare 0.21.5 acre 0.53 cents at Kanthur Village, Sriperumbudur
Taluk, Kanchipuram District in respect of which, though original Patta
bearing Patta No.248 was issued in favour of the petitioner, subsequently
the patta has been cancelled or in that patta, some modification has been
made, whereby, the name of the 5th respondent, who is none other than the
sister of the petitioner, has been inserted. Aggrieved over the said issuance
of patta along with the name of the 5th respondent issued by the 4th
respondent Tahsildar dated 14.08.2015, the petitioner has filed this writ
petition with the aforesaid prayer.
3.Justifying the action on the part of the petitioner in filing the writ
petition directly without exhausting an appeal remedy provided under
Section 12 of the Tamil Nadu Patta Pass Book Act, 1983 (in short "the
Act"), Mr.P.Balamurugan, learned counsel appearing for the petitioner has
relied upon a Division Bench judgment of this Court in W.A.No.1275 of
2006 in the matter of Vishwas Footwear Company Limited Vs. The District
Collector, Kancheepuram and others and has relied upon the following
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passages of the said judgment.
12. The only provision available for modification of the entries
in the patta pass book is Section 10, which reads as under:-
"10. Modification of entries in the patta pass-book. (1) Where
any person claims that any modification is required in respect
of any entry in the patta pass-book already issued under
section 3 either by reason of the death of any person or by
reason of the transfer of interest in the land or by reason of any
other subsequent change in circumstances, he shall make an
application to the Tahsildar for the modification of the relevant
entries in the patta pass-book.
(2) An application under sub-section (1) shall contain such
particulars as may be prescribed and shall be accompanied by
the documents, if any, relied on by the applicant as evidence in
support of his claim.
(3)(a) Before passing an order on an application under sub-
section (1), the Tahsildar shall follow such procedure as may
be prescribed and shall also give a reasonable opportunity to
the parties concerned to make their representations either
orally or in writing. If the Tahsildar decides that any
modification should be made in respect of entries in the patta
pass-book, he shall pass an order accordingly and shall make
such consequential changes in the patta pass-book, as appear
to him to be necessary, for giving effect to his order.
(b) If the Tahsildar decides that there is no case for effecting
any modification in the entries in the patta pass-book, he shall
reject the application.
(c) An order under clause (a) or clause (b) shall contain the
reasons for such order and shall be communicated to the
parties concerned in such manner as may be prescribed. By
that provision, in the event any modification is required on an
application by any person, it can be made either by reason of
the death of any person or by reason of transfer of interest in
the land or by reason of any subsequent change in the
circumstances. This section also does not empower the
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Tahsildar to cancel the patta already granted, as the power of
the Tahsildar to modify the entries in the patta pass book is
limited only in case of death of the person who was holding the
patta pass book or by reason of the transfer of interest in the
land or by reason of any other subsequent change in the
circumstances. In the event an application is made that the
patta pass book has been wrongly issued in favour of any
person and consequently claiming title over the land entitling
such person to grant of patta, that person can only file a suit
for declaration that the entries made in the patta pass book
should be cancelled and consequently for a mandatory
injunction for grant of patta.
13. Section 12 contemplates that any person aggrieved
by an order made by the Tahsildar under the Act may within
such period as may be prescribed appeal to such authority as
may be prescribed. Rule 14 of the Rules empowers such an
appeal to be filed before the officer in charge of Revenue
Division in whose jurisdiction the property lies within a period
of thirty days from the date of receipt of the order. In order to
invoke the provisions of appeal, there must be an order passed
by the Tahsildar either under section 3 or under section 5 or
under section 10 of the Act and any person aggrieved by such
order made by the Tahsildar could prefer appeal within a
period of thirty days from the receipt of the order under Rule
14. If the above provisions of sections 3, 5 and 10 are read
together with the rule 14, the only conclusion which could be
arrived at by the Court is in the event an application is made
for issuance of patta and if it is denied or if it is granted in
favour of somebody, the person aggrieved, as the case may be,
can file an appeal under section 12 of the Act. Hence, the
provisions of section 12 must be read to empower the Revenue
Divisional Officer to entertain an appeal challenging the grant
of patta in favour of a person or persons and consequently seek
for cancellation of the same. Nevertheless, such request must
be made strictly in terms of the provisions of section 12 read
with rule 14 of the rules, which prescribe a mandatory period
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W.P.No.29701 of 2015
of thirty days from the date when the entry was made.
........
18. As far as the power of this Court to entertain a writ petition
on disputed questions, we may refer to the following decisions
of the Supreme Court in Arya Vysya Sabha and others v. The
Commissioner of Hindu Charitable and Religious Institutions
& Endowments , Hyderabad and others, (1976) 1 SCC 292,
Rourkela Shramik Sangh v. Steel Authority of India Ltd., and
another, (2003) 4 SCC 317 and Himmat Singh v. State of
Haryana and others, (2006) 9 SCC 256. Therefore, when
disputed questions are involved, this Court will not entertain
the writ petition and adjudicate upon such dispute, as it is for
the parties to approach the civil Court to decide the issue.
However, in the event the order challenged in the writ petition
is questioned on the ground of want of jurisdiction, certainly
this Court would entertain the writ petition and particularly
when such an order was passed when effective remedy is
available before a civil Court for a person or persons who seek
for cancellation of patta. As already pointed out, though the
fourth respondent has filed appeal to the Revenue Divisional
Officer seeking for cancellation of patta, in view of the fact that
the Revenue Divisional Officer cannot go into the civil dispute,
his order cancelling the patta by deciding the disputed question
of title is without jurisdiction. In this context, we may refer to
the proviso to section 14 of the Act which bars the suit. The
proviso reads that if any person is aggrieved as to any right of
which he is in possession by an entry made in the patta pass
book under this Act, he may institute a suit against any person
denying or interested to deny his title to such right of
declaration of his right under Chapter VI of the Specific Relief
Act and the entry in the patta pass book shall be amended in
accordance with any such declaration. By that proviso, in the
event any grievance is made by the fourth respondent over the
patta granted to the appellant, he should have approached the
civil Court for necessary orders. In the event the Revenue
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W.P.No.29701 of 2015
Divisional Officer had no jurisdiction to go into the disputed
question of title and in spite of that fact if he decides the same,
on the very same yardstick, the further remedy is only a
revision under section 13 of the Act which is limited to calling
for and examining the records of either the Tahsildar or the
appellate authority by the District Revenue Officer and such
revisional power cannot be equated to appellate power.
Hence, the contention of the fourth respondent that the
appellant has got an effective remedy of appeal and without
availing such remedy cannot file the writ petition, has no merit.
Accordingly, the said contention is rejected."
4.By relying upon the said judgment, the learned counsel would
contend that, without exhausting an appeal remedy, he can straight away
approach this Court, as against the order of patta issued by the Tahsildar
concerned, therefore, he seeks indulgence of this Court to issue a mandamus
as prayed herein.
5.Heard Mr.G.Anabaya Chozhan, learned counsel appearing for the
5th respondent, who would submit that, in fact, no separate patta had been
issued in the name of the 5th respondent and the earlier patta issued in
faovur of the petitioner has been obtained by suppressing the partition
effected between the parties. However, the said merits can be agitated by
both parties if any appeal is filed by the petitioner before the Appellate
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Authority i.e., Revenue Divisional Officer concerned and since no such
appeal has been filed, the petitioner cannot straight away approach this
Court by filing the present writ petition with the aforesaid prayer.
6.Heard Ms.Akila Rajendran, learned Government Counsel appearing
for the official respondents, who would submit that, under the provisions of
the Tamil Nadu Patta Pass Book Act, 1983, the hierarchy of authorities have
been provided, under which, the Tahsildar concerned will be the initial
authority to issue a patta pass book under Section 3 of the Act and in case of
any alienation or transfer, entries can be made in the patta pass book under
Section 5 of the Act by the Tahsildar concerned and if any modification is
required, in respect of any entry in the patta pass book already issued under
Section 3 either by reason of the death of any person or by reason of the
transfer of interest in the land or by reason of any other subsequent change
in circumstances, such person shall make an application to the Tahsildar for
the modification of the relevant entries in the patta pass book under Section
10 of the Act.
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W.P.No.29701 of 2015
7.She would also submit that, as against any such order passed by the
Tahsildar either under Section 3 or 5 or 10 of the Act, as stated above, if any
aggrieved party, he or she can prefer an appeal under Section 12 of the Act
to the Appellate Authority, who is the Revenue Divisional Officer
concerned and if such an appeal is filed, the Appellate Authority to look
into the same and after hearing the parties concerned, the appeal would be
decided by the Appellate Authority. Therefore, the learned Government
Counsel would submit that, without exhausting such an appellate remedy,
which is not only an alternative remedy but also a statutory, effective,
appellate remedy, the petitioner since seeks for a mandamus herein by
approaching this Court directly, this writ petition cannot be entertained and
therefore, on that ground, it has to be dismissed and the petitioner can be
relegated to approach the Appellate Authority under the aforesaid provision
of the said Act.
8.I have considered the rival submissions made by the learned
counsel appearing for the parties and have perused the materials placed
before this Court.
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W.P.No.29701 of 2015
9.Though the Division Bench judgment of this Court in Vishwas
Footwear Company Limited Vs. The District Collector, Kancheepuram has
heavily relied upon by the learned counsel appearing for the petitioner, one
important facet of the said judgment has been conveniently forgotten by the
petitioner side while citing the same for consideration before this Court. If
at all the petitioner has got any grievance over the patta issued in favour of
the 5th respondent on 14.08.2015 by the 4th respondent Tahsildar, appeal
should have been filed as rightly pointed out by the learned Government
Counsel in this regard, under Section 12 of the Act. If at all the petitioner
has got satisfactory reasons to convince this Court that, such an appeal
remedy need not be exhausted and for convincing reasons, the aggrieved
party i.e., the petitioner herein can approach this Court directly challenging
the impugned patta dated 14.08.2015, such a challenge could be made, even
for argument sake, by filing a writ of certiorari challenging the impugned
patta dated 14.08.2015.
10.However, in this case, the prayer sought for by the petitioner is a
mere mandamus seeking some direction to the respondents 1 to 4 to cancel
the patta.
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W.P.No.29701 of 2015
11.Thereby the petitioner is trying to convert this Court while
exercising the jurisdiction under Article 226 of the Constitution, as a mere
appellate authority within the meaning of Section 12 of the Tamil Nadu
Patta Pass Book Act. No doubt, law has been well settled that, when an
alternative, efficacious, statutory remedy provided in most of the situation,
such remedy has to be exhausted by the litigant, however, there are some
exceptions for the said general rule, where if some convincing reasons are
there, especially, by blatant violations of the provisions of the statute
concerned, under which, the authority acted, including violation of principle
of natural justice, that too in very rare cases, High Court can entertain such
direct writ petitions challenging the impugned action on the part of the
original authorities concerned under the very particular statute.
12.Even such an exceptional circumstances, cannot be made as a
routine rule by filing a simple mandamus.
13.Here in the case in hand, the prayer sought for is a simple
mandamus. It is also a well settled and celebrity principle that, there must be
a demand before seeks for a writ of mandamus.
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14.The writ of mandamus is a very powerful tool in the hands of the
High Courts under Article 226 of the Constitution and it is one of the
inherited principle from British legal system, under which, these kind of
prerogative writs are issued.
15.When such an extraordinary remedy is sought for by a litigant, he
must first convince the Court that, the litigant does not have any other
alternative, efficacious, statutory appellate remedy before him and therefore
he has been constrained to approach this Court by invoking the
extraordinary jurisdiction for getting a prerogative writ.
16.Moreover, in the case in hand, though a prayer of mandamus has
been sought for, absolutely there has been no demand on the part of the
petitioner by filing an appeal to set aside or cancel the patta issued in this
regard, which according to the petitioner, is not necessitated under various
provisions of the Act.
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17.If at all any simple mandamus is asked for, there must be a demand
preceded by, without which, in the normal course of exercising the writ
jurisdiction, it would not entertain such writ petitions.
18.Though this has been repeatedly pointed out by this Court from
the beginning of the hearing, the learned counsel appearing for the
petitioner was very adamant that, the non-exhaustion of the appellate
remedy and non-making of a demand by way of representation or appeal to
cancel the patta in question would not preclude the petitioner from
approaching this Court directly seeking for a writ of mandamus.
19.The said stand of the petitioner, in the considered opinion of this
Court, has not been dealt with in or supported by the said decision cited by
the learned counsel appearing for the petitioner in Vishwas Footwear
Company Limited.
20.In fact, in the said Division Bench judgment, it has been
exhaustively discussed the various provisions of the Patta Pass Book Act,
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especially, Sections 3, 5 and 10 of the Act, where, the Tahsildar concerned
is empowered to issue patta, make entries and modification of entries in the
patta pass book already issued.
21.In respect of those actions undertaken on the part of the Tahsildar,
Section 12 contemplates that, any person aggrieved by an order passed by
the Tahsildar under the Patta Pass Book Act, has to file such an appeal as
may be prescribed. It has also been discussed by the Division Bench that,
Rule 14 makes it clear that the appeal shall be filed before the officer in
charge of Revenue Division in whose jurisdiction the property lies within a
period of thirty days.
22.Therefore, within a period of 30 days, the petitioner should have
filed an appeal under Section 12 of the Act, as against the impugned patta,
however, no such attempt has been made and the petitioner has not
demonstrated any acceptable reason for not approaching the Appellate
Authority which is a statutory appellate remedy, equally efficacious also.
Therefore, that kind of circumstances if we confronted that too in a writ
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petition seeking for a mandamus, this Court feels that, the prayer sought for
herein is failed on two counts. One is that, since it is a mere writ of
mandamus before which, since there has been no demand, on that ground,
the prayer cannot be acceded to and therefore, on that ground itself, it is
liable to be rejected. Secondly, the writ petitioner, though there is a statutory
appellate remedy under Section 12 of the Tamil Nadu Patta Pass Book Act
available, has not chosen to exhaust the same and still he is stubborn to stick
on with his stand that he would not make such an attempt.
23.Therefore, for that reason also, the prayer sought for herein, in the
considered opinion of this Court, cannot be accepted.
24.However, since the right of the petitioner on the property, though
is not a fundamental right conferred under the constitution, is a statutory
right and therefore, in this context, if at all the petitioner has got any
grievance over the patta issued in favour of the 5th respondent, it is open to
him to make an appeal to the second respondent Revenue Divisional
Officer. Though such appeal should have been made within 30 days period
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as contemplated under Rule 14, in view of the pendency of this writ petition
for all these years, this Court feels that, a liberty can be given to the
petitioner to file an appeal under Section 12 of the Act against the impugned
patta dated 14.08.2015 to the second respondent Revenue Divisional Officer
and once such appeal is filed, within two weeks period from the date of
receipt of a copy of this order, by the petitioner, the same shall be decided
on merits and in accordance with law, of course after hearing the petitioner
as well as the 5th respondent, within a period of two months thereafter.
25.With this direction, this Writ Petition is disposed of. However,
there shall be no order as to costs.
05.07.2021
Index : Yes
Speaking Order : Yes
Sgl
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W.P.No.29701 of 2015
To
1.The District Collector
Kanchipuram, Kanchipuram District.
2.The Revenue Divisional Officer,
Kanchipuram, Kanchipuram District.
3.The Tahsildar,
Sriperumbudur Taluk,
Kanchipuram District.
4.The Deputy Tahsildar,
Sriperumbudur,
Kanchipuram District.
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W.P.No.29701 of 2015
R.SURESH KUMAR, J.
Sgl
W.P.No.29701 of 2015
05.07.2021
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