Andhra Pradesh High Court - Amravati
M Amarasimham vs The State Of Andhra Pradesh, on 5 July, 2019
4THE HON'BLE SRI JUSTICE M.SEETHARAMA MURTI
Writ Petition No.4627 of 2019
ORDER
This writ petition, under Article 226 of the Constitution of India, is filed by the petitioner seeking verbatim the following relief/s:
"..to issue a Writ of Mandamus, or any other appropriate writ, order or direction, the action of the 2nd & 3rd respondent in not taking any action for restoration of the well existing in Sy.No.828/3 in an extent of Ac.0.13 cents of Podili village & mandal, Prakasam district though the same is being reflected in the pahanies/adangals on the complaint/representation made dated 17.12.2018 and 19.3.2019 made by the petitioner as illegal and arbitrary and pass such other order or orders as may deem fit and proper in the circumstances of the case."
I have heard the submissions of Sri C. Raghu, learned counsel for the writ petitioner; and, of Sri B. Somasekhar, learned counsel for the 4th respondent. No counter has been filed by the official respondents 1 to 3 & 5. I have perused the material record.
The case of the writ petitioner is this: - 'He is the owner of Ac.2.91 cents in Sy.No.828/4, 828/6, 828/11 & 828/13. His mother executed an unregistered Will, dated 15.11.2015, bequeathing her property to him. She got the property by virtue of a gift settlement deed executed by his father in the year 2007. His family is utilizing the waters contained in the Well, which is existing in Sy.no.828/3. The total extent of the Well is Ac.0.13 cents. The neighboring landowners are also utilizing the waters of the said Well for the purpose of agricultural operations. Since the family of the petitioner is having a large extent of land, they have a 1/5th share in the waters and right to draw water to the said extent as per the document that was executed in the year 1945 between the grandfather of the petitioner and neighboring land owners. The grievance of the petitioner is that the 4th respondent is converting the Well into a structure. He already disturbed the Well completely. Hence, the petitioner is not able to get water for the purpose of agricultural operations.
2 MSRM, J WP_4627_2019 Pahanies and adangals clearly show that Sy.no.828/3 is a Well. When once the revenue records disclose that it is a Well, its nature cannot be changed. It is in existence since more than 60 years. The family of the petitioner and neighboring land owners/farmers have been utilizing the waters of the said Well, which is the only source of irrigation. It is the duty of the 2nd respondent
- District Collector to protect the Well. No permission has been granted to the 4th respondent for disturbing the Well. The petitioner made detailed representations, dated 17.12.2018 and 19.03.2019, to the respondents 2 & 3. The same are sent by RPAD. However, the respondents 2 & 3 did not take any action. Hence, the present writ petition is filed.
On 03.04.2019, while ordering notice before admission, this Court granted an interim direction as prayed for, for a period of four weeks, in IA.no.1 of 2019 wherein the petitioner sought a direction to the 2nd respondent
- District Collector to stop the construction activity being undertaken in an extent of Ac.0.13 cents, which is resulting in disturbance of the Well in Sy.no.828/3 of Podili village and Mandal, Prakasam District.
The said interim order was extended for some time from time to time. The 4th respondent filed IA.no.3 of 2019 requesting to vacate the afore-stated order. When the matter is placed before one of the learned Judges of this Court, since a vacate stay petition is filed and the matter is to be disposed of by this Court, a direction was given to list the matter before this Court. However, while giving the said direction, on 19.6.2019, the said learned Judge did not extend the interim order. Therefore, when the matter is taken up for hearing, there is no interim order in favour of the petitioner. Yet both the learned counsel requested to dispose of the writ petition. As desired, the writ petition is taken up for adjudication though no counters are yet filed by the official respondents and the counter of the 4th respondent is only on record.
3 MSRM, J WP_4627_2019 The case of the 4th respondent is this: 'He is the absolute owner of the property in an extent of Ac.0.02 cents in Survey No.828/3 (survey no.828/10) of Podili having acquired the same under a registered sale deed, dated 28.11.2012, from Shaik Sipaigari Khadar Basha of Podili. This respondent also purchased the following lands: 'An extent of Ac.0.03 cents in survey no.828/3 (survey no.828/10) of Podili for valuable consideration, under a registered sale deed, dated 03.11.2012, from Kondaveeti Suseela; an extent of Ac.0.02 cents in Survey No.828/3 from Shaik Rabiah Khatun and others vide registered sale deed, dated 16.03.2013; Ac.0.01 cents in Survey no.828/3 of Podili from Shaik Sirazuddian and others vide registered sale deed, dated 14.11.2012; Ac.0.01 cent in Survey No.828/3 of Podili village from Shaik Kharvali and others vide document, dated 05.11.2012; Ac.0.02 cents in the same survey number from Katuri Subhashini under an agreement of sale, dated 08.09.2010.' Thus, this 4th respondent purchased a total extent of Ac.0.11 cents out of Ac.0.13 cents in survey no.828/3, which includes the portion in which the Well is in existence. By the time of purchase of the afore-stated properties, the Well is not in usable condition and it was almost closed at the ground level. The properties purchased by this respondent are mutated in his name in the revenue records and Government records and he was issued 1B and no.3 adangals in his favour. He is in possession and enjoyment of the aforesaid properties purchased by him. On his application, permission was accorded for conversion of the agricultural land into non agricultural land vide proceedings in B.A.No.28/13- 14, dated 28.06.2013. When the petitioner herein and others were trying to interfere with the possession and enjoyment of the above mentioned land, this respondent filed OS.no.23 of 2014 on the file of Junior Civil Court, Podili, for permanent injunction. Learned Junior Civil Judge was pleased to grant temporary injunction orders, dated 21.03.2014, in IA.no.144/2014. The said injunction order is in force till date. The petitioner also filed OS.no.189 of 4 MSRM, J WP_4627_2019 2018 on the file of Senior Civil Court, Darsi, against this respondent for permanent injunction and obtained status quo orders, dated 17.12.2018, in IA.no.1251 of 2018 filed in the said suit. This respondent filed counter and written statement in the said suit and requested to vacate the said orders. After hearing both the sides, IA.no.1251/18 in OS.no.189/18 was dismissed, on 21.01.2019. The said suit is pending. Thus, the petitioner suppressed material facts. The Well is in the land of this 4th respondent. It is not in Government property. Therefore, if the petitioner has got any rights, he has to agitate for his rights by seeking a civil law remedy. He cannot file a writ petition. The present writ petition is filed after dismissal of the petitioner's IA.no.1251/18 in OS.no.189/18 on the file of Senior Civil Court, Darsi. There is no Well in existence by the time of purchase of the said property by this respondent. After obtaining necessary conversion permission and building permission, this respondent is proceeding to make constructions. The petitioner, having knowledge of the suits pending between the parties, suppressed the said fact and filed the writ petition with a fraudulent intention and to make a wrongful gain. The official respondents have no right or authority to interfere with the civil rights and decide the property disputes. The Gram Panchayat having considered the documents permitted this respondent to construct the building. The petitioner is having disputes with this respondent since a long time; and, to wreck vengeance the present writ petition is filed. Because of the interim direction granted by this Court, this respondent is unable to remove the centering provided to the construction and attend to the other works relating to construction. Because of the interim direction, this respondent is facing inconvenience and sustaining monetary loss. Hence, the interim order may be vacated and the writ petition may be dismissed.' The petitioner filed a reply affidavit contending as follows: - 'The 4th respondent has claimed that he purchased a total extent of Ac.0.11 cents out 5 MSRM, J WP_4627_2019 of Ac.0.13 cents in Sy.no.828/3 including the portion in which the Well was in existence under various sale deeds. His sale deeds show that the alleged vendors of the 4th respondent sold the property in Sy.no.859/5 to one B. Adilakshmi and in turn said Adilakshmi sold away the property to the 4th respondent and that afterwards the 4th respondent requested the vendors of the said Adilakshmi about the rights to water source to the property situate in Sy.no.859/5 and that under the guise of seeking water source rights, the 4th respondent got registered the Well in part in his name by the said alleged vendors of the alleged sale deeds. Nobody including the above said persons has a right to sell the Well to others. The 4th respondent is acting with mala fide intention to grab the Well and created & fabricated the alleged sale deeds. His alleged sale deeds clearly show that the vendors and the 4th respondent have no rights over the Well and that the vendors have sold away the property in Sy.no.859/5 and that the Well, which is being used for agricultural purpose, is in Sy.no.828/3. The allegations that the Well was not in existence as on the date of purchase of properties by the 4th respondent and that the Well was not in usable condition and it was closed at the ground level by the dates of his purchases are all not correct. If the Well is not in existence, the execution of alleged sale deeds with the recital in the preamble of the sale deeds of the 4th respondent requesting for providing water source to the land purchased by him in Sy.no.859/5 does not arise. Till now the family of the petitioner is receiving electricity bills in the name of Makineni Narasaiah vide service no.4122301000120 of the said Well. The Assistant Executive Engineer, APSPDCL, Podili, has issued a letter, dated 11.06.2019, showing the existence of service connection for agriculture purpose and use of the same since 1960 in Sy.no.828/3. The petitioner obtained conversion orders from the RDO in respect of Ac.0.05 cents only. He obtained building permission from the Panchayat is not correct. Revenue department and the Panchayat without 6 MSRM, J WP_4627_2019 examining actual status granted permissions for conversion and construction of building. It is true that the 4th respondent filed OS.no.23/2014 against the petitioner and others but in that suit no injunction order is in force.' I have given earnest consideration to the facts and submissions. On one hand, the petitioner claims the property of an extent of Ac.2.91 cents in Sy.nos.828/4, 828/6, 828/11 and 828/13 inter alia stating that his mother executed an unregistered Will, dated 15.11.2015, bequeathing the property to him and that his mother in turn got the property by virtue of a gift settlement deed executed by his father in the year 2007. On the other, the 4th respondent claims to have purchased Ac.0.11 cents out of Ac.0.13 cents in Survey no.828/3 under various registered sale deeds and one agreement of sale, the details of which are already referred to supra while extracting the pleading and contentions, of the 4th respondent. According to the 4th respondent, the portion of land in which the Well is in existence is also a part of the property purchased by him. Even the petitioner admits that the 4th respondent is in possession of the Well and that he is proceeding to make constructions by closing the Well and disturbing the Well by inter alia claiming that while under the guise of claiming rights to source of water, the 4th respondent is trying to grab the Well and that his sale deeds are fabricated and created. Admittedly, two suits are filed before the civil Court, one by the petitioner and the other by the 4th respondent. The copy of the plaint in OS.no.23/2014 on the file of the Junior Civil Court, Podili, filed by the 4th respondent discloses that the property involved in the said suit is Ac.0.03 cents in Sy.no.828/3 (old S.no.828/10) (as per RDO Order S.No.828/3B) and Ac.0.02 cents in Sy.no.828/3 (old S.No.828/10) (as per the RDO order S.No.828/A2) and that the said suit is filed for perpetual injunction restraining the petitioner herein and three others. It is also not in dispute that in the said suit, an interlocutory application in IA.no.144/2014 was filed by the 4th respondent and 7 MSRM, J WP_4627_2019 an interim injunction was granted in his favour. However, on one hand, 4th respondent contends that the said injunction order is in force till today; and, on the other hand, the petitioner contends that the said order is not in force. Neither of the parties filed a copy of the order to show the currency of the order. Be that as it may. The petitioner also filed OS.no.189 of 2018 against the 4th respondent on the file of Senior Civil Court, Darsi, for perpetual injunction in respect of Ac.0.09 cents out of Ac.0.13 cents and a Well locally called as 'kanne bavi' in Sy.no.828/3 of Podili and that in the said suit he also filed IA.no.1251 of 2018 for a temporary injunction and that by an order, dated 21.01.2019 learned Senior Civil Judge, Darsi, dismissed the said IA filed in the said suit by the petitioner, having referred to the documents, which are adverted to in the counter of the 4th respondent besides other documents, which are 31 in number. In the said order, learned Senior Civil Judge also considered the documents referred to in the petition of the petitioner, namely registered gift settlement deed, dated 04.01.2008, said to have been executed by M. Venkata Narasimha in favour of his wife Amrutha Valli, that is, the mother of the petitioner and unregistered Will, dated 15.11.2015, executed by Amrutha Valli, the mother of the petitioner, in favour of the petitioner and came to a conclusion that the petitioner herein has no prima facie case and that therefore, the temporary injunction petition is liable for dismissal. After the institution of the said suit and the dismissal of the said injunction application, the petitioner instituted the present writ petition against the 4th respondent and official respondents and deliberately suppressed the facts that two suits are filed and are pending. On this sole ground, the writ petition is liable for dismissal. Even in the reply affidavit, there is no explanation in regard to the said suppression of fact. In Prestige Lights Ltd. v. State Bank of India [(2007) 8 SCC 449], it was held that in exercising power under Article 226 of the Constitution of India, the High Court is not just a Court of law, but is 8 MSRM, J WP_4627_2019 also a court of equity and a person who invokes the High Court's jurisdiction under Article 226 of the Constitution is duty bound to place all the facts before the Court without any reservation. If there is suppression of material facts or twisted facts have been placed before the High Court then it will be fully justified in refusing to entertain petition filed under Article 226 of the Constitution. In the above decision, the Supreme Court referred to the judgment of Scrutton, LJ., in R v. Kensington Income Tax Commissioners [(1917) 1 K.B. 486], and observed: 'In exercising jurisdiction under Article 226 of the Constitution, the High Court will always keep in mind the conduct of the party who is invoking such jurisdiction. If the applicant does not disclose full facts or suppresses relevant materials or is otherwise guilty of misleading the Court, then the Court may dismiss the action without adjudicating the matter on merits. The rule has been evolved in larger public interest to deter unscrupulous litigants from abusing the process of Court by deceiving it. The very basis of the writ jurisdiction rests in disclosure of true, complete and correct facts. If the material facts are not candidly stated or are suppressed or are distorted, the very functioning of the writ Courts would become impossible.' In Sunil Poddar and Ors. v. Union Bank of India [(2008) 2 SCC 326], the Supreme Court held that while exercising discretionary and equitable jurisdiction under Article 136 of the Constitution, the facts and circumstances of the case should be seen in their entirety to find out if there is miscarriage of justice. If the appellant has not come forward with clean hands and has not candidly disclosed all the facts that he is aware of and he intends to delay the proceedings, then the Court will non-suit him on the ground of contumacious conduct. In K.D. Sharma v. Steel Authority of India Ltd. and Ors. [(2008) 12 SCC 481], the Supreme Court held that the jurisdiction of the Supreme Court under Article 32 and of the High Court under Article 226 of the Constitution is extraordinary, equitable and discretionary and it is imperative that the 9 MSRM, J WP_4627_2019 petitioner approaching the Writ Court must come with clean hands and put forward all the facts before the Court without concealing or suppressing anything and seek an appropriate relief. If there is no candid disclosure of relevant and material facts or the petitioner is guilty of misleading the Court, his petition may be dismissed at the threshold without considering the merits of the claim. The same rule was reiterated in G. Jayshree and Ors. v. Bhagwandas S. Patel and Ors., [(2009) 3 SCC 141]. Therefore, the ground of suppression of material fact with regard to the institution and pendency of the suits is by itself a ground to deny the relief to the petitioner. Thus, the instant writ petition is liable to be dismissed on the said ground without going into the merits of the claim.
Further, in view of the pleadings, which are adverted to supra, it is evident that complex questions of facts with regard to titles to the properties being claimed by the rival parties and with regard to the rights in respect of the Well in question have to be discerned and that such rights are yet to be adjudicated. Hence, this Court finds that since the claim of the writ petitioner in respect of the subject Well being a pure and complex question of fact, this Court need not resolve the said claim by resorting to adjudication of the complex issue of fact, as a question of this nature requires detailed examination and is to be determined by a civil Court in an appropriate proceeding, after full-fledged trial. The same principle also extends to matters involving mixed questions of fact and law. A petition under Article 226 of the Constitution cannot be converted into a revenue quasi judicial proceeding or a suit to resolve the instant factual controversies. And, in general, disputed question of fact is not investigated into in a writ petition of this nature. Hence, in the considered view of this Court, there is no need to resolve the complex factual controversies between the parties to the lis in this writ petition and it is for the civil Court to resolve the issues which are complex 10 MSRM, J WP_4627_2019 factual issues. Therefore, it is appropriate to leave the controversy to be resolved by a competent civil Court. In that view of the matter, as rightly contended by the 4th respondent, it is for the petitioner to seek common law remedy, which the law permits. Therefore, this Court is of the considered view that it is not proper to record any findings by deeply examining the complex facts as the issues being sought to be raised are to be decided by a competent civil Court, in the event the parties approach a civil Court for appropriate remedies, however, after taking into consideration oral and documentary evidence, which is required to be adduced for resolving the dispute.
On the above analysis, this Court finds that the writ petition is liable to be dismissed leaving open the questions raised to be resolved by a civil Court and reserving liberty to the petitioner to approach a civil Court, if so advised and if so desired, and seek an appropriate remedy, which the law permits.
In the result, the Writ Petition is dismissed with the above observations. It is needless to state that this Court did not express any opinion much less a final opinion on the issues in respect of the subject Well/property. It is also needless to state that in the event the petitioner files any civil suit for an appropriate remedy, the civil Court shall dispose of the said suit and also the pending suits on merits uninfluenced by observations/findings, if any, made in these orders. There shall be no order as to costs.
Miscellaneous petitions pending, if any, shall stand closed.
_____________________ M. SEETHARAMA MURTI, J 05.07.2019 Note: LR copy to be marked.
B/o Vjl