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2018 DIGILAW 2186 (MAD)

Palani Town Muslim Dharma Paripalana Sangam Waqf v. Principal Secretary to the Government, Municipal Administration and Water Supply Department

2018-07-20

P.D.AUDIKESAVALU, V.PARTHIBAN

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ORDER : P.D. AUDIKESAVALU, J. 1. The Petitioner, which is a Waqf, had made a representation to the Second Respondent seeking licence to have private vegetable market at its property situate at T.S. No. 50, Ward No.4, Subramaniyapuram Road, Palani and the Council of the Second Respondent by Resolution No. 257 dated 29.08.2002 rejected the same, which has been communicated by proceedings in Na.Ka.No. 6502/2002/A1 dated 02.09.2002. 2. An appeal under Section 36 of the Tamil Nadu District Municipalities Act, 1920, had been preferred by the Petitioner before the First Respondent against the aforesaid resolution of the Council of the Second Respondent. As the said appeal was not disposed for a long time, the Petitioner had approached the Madurai Bench of this Court by Writ Petition bearing W.P. (MD) No. 23999 of 2017 in which an Order dated 22.12.2017 was passed directing the First Respondent to dispose the said appeal on or before 31.03.2018. 3. However, before the aforesaid appeal was disposed, the Second Respondent had issued a Notice bearing Na.Ka.No. 3993/2017/A1 dated 07.02.2018 directing the Petitioner to vacate the private market run in the aforesaid property, which has been challenged in the Writ Petition bearing W.P. (MD) No. 3337 of 2018 before the Madurai Bench of this Court and an interim stay of the order impugned therein has been granted by order dated 16.02.2018 in W.M.P. (MD) No. 3497 of 2018. 4. In pursuance of the aforesaid direction issued by the Madurai Bench of this Court in W.P. (MD) No. 23999 of 2017, the First Respondent by proceedings bearing G.O. (D) No. 179 Municipal Administration and Water Supply (MA.IV) Department dated 19.04.2018, after considering the representation of the Petitioner and the report of the Second Respondent, rejected the appeal filed by the Petitioner. 5. During the vacation sitting of this Court, the Petitioner moved the Writ Petition bearing W.P. No. 11658 of 2018 challenging the aforesaid order of rejection of appeal passed by the First Respondent, which was dismissed by order dated 03.05.2018, holding as follows:- “ORDER This Writ Petition challenging the order passed by the State rejecting the appeal preferred by the Petitioner herein is in respect of unauthorised construction of shops and collecting toll from the vehicles entering the premises. A reasoned order has been passed by the Principal Secretary to the Government on 19.04.2018. A reasoned order has been passed by the Principal Secretary to the Government on 19.04.2018. This Order in appeal has been passed by the Government pursuant to the direction given by this Court in W.P.No.535 of 2004. From the impugned order, it could be seen that unauthorised market and shops nearly 100 in number had been constructed by the Petitioner and they are collecting rent and toll from the vehicles. 2. After considering the merits of the case and the locus standi of the Petitioner to collect rents and toll from the vehicles which enters the pilgrim city of Palani, the First Respondent has passed a reasoned order which need not be subjected to judicial review under Article 226 of the Constitution of India. Hence, this Writ Petition stands dismissed. No costs. Consequently, the connected miscellaneous petitions are closed.” 6. The Writ Appeal bearing W.A. No. 1146 of 2018 against the aforesaid order was moved before this Division Bench during the vacation sitting of this Court on 10.05.2018, which was also dismissed confirming the order passed by the learned Judge. 7. This Review Application has been preferred against the aforesaid order dated 10.05.2018 passed in W.A. No. 1146 of 2018. 8. Mrs. Hema Sampath, Learned Senior Counsel appearing for the Petitioner urged that the observation of the First Respondent in the order dated 19.04.2018 impugned in the Writ Petition to the effect that the Petitioner was running the market without paying the property tax to the Second Respondent from the year 2002 till that date, is factually incorrect inasmuch as the Second Respondent, who had earlier taken the aforesaid property on lease from the Petitioner, owed rental arrears to the Petitioner which ought to be adjusted towards property tax and as the First Respondent had rejected the request of the Petitioner for cancellation of the resolution passed by the Council of the Second Respondent on that mistaken impression, the matter may be reconsidered by this Court in the proper perspective so as to avoid any failure of justice. 9. 9. Be that as it may, this Court pointed out to the Learned Senior Counsel that when the cause of action for the Writ Petition has arisen on the basis of the resolution of the Council of the Second Respondent, whose seat of authority falls within the territorial limits of jurisdiction of the Madurai Bench of this Court and the Petitioner had on earlier occasions chosen the Madurai Bench of this Court to ventilate the grievances against the Respondents by Writ Petitions bearing W.P. (MD) No. 23999 of 2017 and W.P. (MD) No. 3337 of 2018 as noticed supra, the doctrine of forum conveniens would desist this Court at the Principal Seat from entertaining any subsequent Writ Petition by the Petitioner in respect of the same subject-matter. In response thereto, the Learned Senior Counsel submitted that the order dated 10.05.2018 passed in W.A. No. 1146 of 2018 and the order dated 03.05.2018 passed in W.P. No. 11658 of 2018 may be set aside so that the Petitioner may be permitted to withdraw W.P. No. 11658 of 2018 and granted liberty to approach the Madurai Bench of this Court by way of fresh Writ Petition for the same relief. The Counsel on record for the Petitioner has also made an endorsement to that effect. 10. In the light of the aforesaid submissions made and having due regard to the fact that the Court in the exercise of discretionary powers had declined to entertain the Writ Petition as well as the Writ Appeal at the admission stage itself without any determination of the factual correctness of the rival contentions of the parties, the order dated 10.05.2018 passed in W.A. No. 1146 of 2018 and the order dated 03.05.2018 passed in W.P. No. 11658 of 2018 are set aside and W.P. No. 11658 of 2018 is dismissed as withdrawn and liberty is granted to the Petitioner to file fresh Writ Petition for the same relief before the Madurai Bench of this Court. 11. Accordingly, the Review Application is ordered on the aforesaid terms. Consequently, connected Miscellaneous Petition is closed. No costs.