Andhra HC (Pre-Telangana)
Garla Sudhakar vs Government Of Andhra Pradesh And Others on 22 January, 1999
Equivalent citations: 1999(1)ALD761, 1999(1)ALT619, AIR 1999 ANDHRA PRADESH 246, (1999) 1 ANDHLD 761 (1999) 1 ANDH LT 619, (1999) 1 ANDH LT 619
Author: B.S. Raikote
Bench: B.S. Raikote
ORDER
1. This writ petition is filed challenging the proceedings No.16417 dated 11-9-1997, issued by the Executive Engineer, Nellore, Central Division. The writ petition also further seeks a declaration that the aclion of respondent Nos.1, 2 and 3 in trying to disturb the petitioner's lease regarding the land in S.No.259 of Old Mallappa Kalva, near Sunday Market, Nellore, measuring 50 x 20 = 1000 Ft., as illegal.
2. In the affidavit filed in support of the writ petition, it is stated that the petitioner has been given the land bearing S.No.259 of Old Mallappa Kalva, near Sunday Market, Nellore Town measuring 50 x 20 = 1000 ft., on the basis of the proceedings No.16417 dated 11-9-1997, by the Execulive Engineer, Central Division, Nellore, for a period of one year from the date of grant, for the purpose of a shop, for working as Mechanic. The petitioner is the person belonging to the scheduled caste and evert the Hon'ble Minister for Technical Education recommended the petitioner's case for allotment of the said land. The petitioner paid Rs.5,000/- and also paid Rs. 1,5007- as security deposit vide treasury challan No. 1755 and thereafter, the petitioner has been put in possession. Accordingly, the petitioner constructed sheds and shops by spending an amount of Rs.1,00,000/-. But on the influence of certain local politicians, respondent Nos.1, 2, 3 and 4 are intending to demolish his structures and abrogate the lease orders and are allotting the same to some other persons. In these circumstances, the petitioner submitted a complaint to the Police, but nothing has been done to protect the petitioner. The petitioner has approached this Court for violation of Articles 14, 15 and 21 of the Constitution of India. If the petitioner is dispossessed from this land, he would be put to great loss and hardship.
3. The learned Counsel appearing for the petitioner reiterated the same pleas and relying upon some of the judgments of the Supreme Court, submitted that the impugned action of the respondents in trying to dispossess the petitioner is illegal and arbitrary and contrary to the principles of natural justice and accordingly he prayed lhat writ petition may be allowed.
4. By filing a counter, the official respondents denied the allegations made by the petitioner. Even the respondent No.5, a private respondent, also denied the allegation made by the petitioner by filing a vacate petition/counter. The official respondents stated that the petitioner has filed this writ petition by misrepresenting the facts to this Court. They stated that on the basis of the proceedings No. 16417 dated 11-9-1997, the petitioner has no authority to enter into the Government land, without executing a valid agreement in terms of these proceedings, in favour of the Government. Under condition No.6 of the said proceedings, it is specifically provided that the petitioner should enter into an agreement in the proper form before entering into the land and such an agreement was not yet executed. But on the basis of the impugned proceedings, the petitioner has tried to encroach the private vacant lands adjacent to the present land and accordingly created law and order problem. The neighbouring inhabitants like Sri P.K. Doraswamy submitted a report to the authorities. In those circumstances, the lease order dated 11-9-1997 was cancelled, in order to avoid further complications in the matter. The said cancellation order was sent to the address furnished by the petitioner in his representation, but the same has been wantonly not taken by the petitioner. In the counter, the official respondents further denied that the petitioner has spent Rs.1,00,000/- for starting a mechanic shop as alleged by him, by stating that for opening a mechanic shop, one requires the approval of various other authorities. It is only to gain sympathy of this Court, the petitioner has falsely stated that he spent Rs.1,00,000/- for starting a mechanic shop and under the lease order, the official respondents have reserved the right to cancel the lease even before entering an agreement and during the lease agreement, vide condition No.1. Moreover, under condition No.6, the petitioner has no authority to enter into the land without executing an agreement in favour of the Government. At any rate, the lease order is cancelled subsequently. In these circumstances, it was not open to the petitioner to contend that he spent Rs.l,00,000/- for opening a mechanical shop. According to his own showing, he was a poor SC candidate and he could not continue his studies beyond 10th class due to poverty, and as such, he could not have invested Rs.1,00,000/.- for ground repairs etc., as pleaded by him. When it was found that the petitioner entered into the land without even concluding the agreement by creating law and order problem, the respondent got removed his unauthorised occupations and land was taken into possession by the Department on 21-9-1997 and there were no constructions in the site'. However, subsequently, by an order dated 23-9-1997, of this Court the respondents were directed not to demolish the existing structures, if any, and dispossess the petitioner from the land. But the petitioner by taking undue advantage of the said order, again re-erected sheds as against the conditions of the lease order, by misrepresenting the facts to this Court. He has not obtained permission from municipality even for re-erection of the sheds. in these circumstances, he could not have reerected the sheds contrary to the status quo condition ordered by this Hon'ble Court. It is further submitted that the petitioner has no locus standi to enter into the land, without their being a contract between the petitioner and the Government. The lease order itself provides for cancellation of the lease even before entering into the land. Therefore, the petitioner has no locus standi to maintain this writ petition.
5. Respondent No.5 by filing a separate counter, contended that he is the owner of the land bearing RS No.1576/448, the corresponding CA No.259/1, in patta No.82 of Bit-1, Nellore Town, vide registered sale-deed dated 22-11-1968 and ever since the date of his purchase, he has been in possession of the same. In addition to that, his family members purchased a land about 442 Sq.mts. The said land was purchased for the purpose of constructing a commercial complex, including a lodge and accordingly he obtained necessary clearance from the Municipality and Urban Development Department, Government of Andhra Pradesh for conversion of the nature of land into commercial land. He further stated that the Director of Town and Country Planning, has approved the building plan and he was about to start the construction of the building in the said patta land, but the petitioner started interfering with his possession under the garb of lease order dated 11-9-1997, issued by the respondent No.1. He further stated that the said proceedings dated 11-9-1997 have been issued in favour of the petitioner on the instructions of the Hon'ble Minister for Technical Education, for utilization of the land for self-employment purpose only for one year from the date of the grant. Unless, the lease document is executed, there would not be any question of petitioner getting into the possession of the land. The Official respondent did not handover the possession to him at any point of time. There were no shops, as pleaded by the petitioner. But after obtaining the interim order, the petitioner erected some sheds and as on the date of the writ petition, there were no sheds or shops at all. In these circumstances, this respondent brought to the notice of respondent No.1 about the nuisance caused by the petitioner, by trying to encroach upon the patta land belonging to the respondent No.5, on the basis of the proceedings dated 11-9-1997, by filing representations. This respondent also pointed out in his representations that without any final grant of lease by the Executive Engineer, and without demarking and without handing over the possession of the land under lease, the petitioner high-handedly, is trying to trespass into the neighbouring patta lands of this respondent and the same was impermissible under law. This respondent also requested the Executive Engineer to protect his possession by preventing the unauthorised trespass by the petitioner into the patta land. Thereafter, the 1 st respondent after verifying the necessary fads, cancelled the order in his proceedings dated 11-9-1997 and the Executive Engineer also returned the amount deposited by the petitioner towards annual lease amount. Though the said order was communicated to the petitioner by registered post dated 17-9-1997, but the petitioner did not take delivery of the same, as stated by the official respondents. He also stated that respondent No.1 also took possession of the land after removing the petitioner - encroacher from the land on 21-9-1997. However, the petitioner, suppressing all these facts, including the order of cancellation and removal of encroachments on 21-9-1997, filed this writ petition before this Court. This respondent No.5 also lodged a complaint before the Station House Officer on 19-9-1997 for necessary police protection to this respondent and his family members. It is further stated in the counter that the land in dispute belongs to the Irrigation Department in Sy. No.259/3, as seen from the Field Measurement Book. Therefore, the question of granting of lease in Sy. No.259/1 to the petitioner does not arise. The respondent Nos.1 to 3 never demarcated, nor delivered the land to the petitioner. He further submitted that, at any rate, the lease order dated 11-9-1997 has already been cancelled and the petitioner does not have any cause for filing this writ petition. He stated that the petitioner is harassing this respondent No.5 and in these circumstances, the petitioner is not entitled to any discretionary relief.
6. As against the counter filed by official respondents and respondent No.5, the petitioner filed a reply affidavit, denying those allegations, by further contending that the official respondents and respondent No.5 are colliding with each other and in fact, the respondent No. 1 bluntly refused to enter into an agreement with the petitioner and accordingly, the petitioner got issued a legal notice dated 20-10-1997 through his Counsel, demanding the execution of the lease agreement. But the respondent Nos.l to 3 neglected to execute the lease agreement, nor they issued any reply to the legal notice issued by the petitioner. The petitioner further contended that he has submitted plans with regular sheds, but the Municipality has not disposed of the matter for the best reasons known to them. The petitioner also denied the allegation of the respondent No.5 that he purchased the land vide registered sale-deed dated 22-1-1968 and he has been in possession of the land in Sy.No.1576/448, corresponding to CA No.259/1 in patta No.82 of Bit-I, Nellore town. Petitioner further stated that he has learnt that respondent No.5 created some forged documents in the form of alleged sale-deed etc.. He further stated that respondent No.5 should have approached the Civil Court for his alleged rights and as such he cannot resist this writ petition.
7. The learned Counsel appearing for the official respondents, as well as the Counsel appearing for respondent No.5 reiterated their respective stands set out in their counters.
8. The learned Counsel appearing for the respondent No.5 further contended that the writ petition has become infructuous, inasmuch as the proceedings dated 11-9-1997 was issued to the petitioner only for a period of one year and the said period of one year has come to an end on 11-9-1998 and in these circumstances, the writ petition has become infructuous. The petitioner is not entitled to any order, which would be futile in these circumstances. In support of his contentions, he relied upon some of the Judgments of the Supreme Court. He further contended that in the lease order dated 11-9-1997, no boundaries are given, as to which of the land that was given on lease in favour of the petitioner and from the material papers filed by the petitioner at page No.76 it is clear that the land in S. No.259/1 is a private land and it could not have been given as lease in favour of the petitioner. He contended that in fact Sy. No.259/3, in which there is a Government Channel, is a Government land, but the same has not been leased to the petitioner. At any rate, in pursuance of the proceedings dated 11-9-1997, the petitioner has not entered into an agreement with the Department, by executing a lease agreement and until that is done, no right could flow to the petitioner. He submitted that even if the order dated 11-9-1997 is taken into consideration, at the most it would be open to the petitioner to file a suit for specific performance of the agreement, but not a writ petition before this Court. The petitioner has neither equity nor law in his favour. Therefore, the writ petition is liable to be dismissed.
9. On the basis of the pleadings on the record and also on the arguments addressed by the Counsels appearing for the respective parties, I find that few facts are admitted in this case. It is admitted that on 11-9-1997, vide proceedings No.16417, the respondent No.1 ordered for leasing of the land for a period of one year. It was on the recommendation of the Hon'ble Minister for Technical Education. It is also an admitted fact that in terms of the said proceedings dated 11-9-1997, the petitioner was required to execute a lease-deed in proper form before entering into the land. But the said lease agreement has not been entered into between the petitioner and the official respondents. According to the petitioner, after paying an amount of Rs.5,000/- towards annual rent and Rs. 1,5007- towards security deposit, the petitioner was put in possession of the land. But this fact is denied by the official respondents and also by the respondent No.5. The allegation of the petitioner that he entered into the land and accordingly constructed the shed by investings Rs.1,00,000/- is denied by all the respondents. As against the assertion of the official respondents that the petitioner was not put in possession of the land in dispute, the petitioner has not filed any proceedings to show that he was put in possession under any proceedings. The petitioner could not have been put in possession by any of the authorities of the Department, unless the petitioner executed an agreement in terms of condition No.6 of the proceedings dated 11-9-1997, nor the petitioner could enter into the land without executing any such lease deed in the proper form. The official respondents stated that the said lease order dated 11-9-1997 proposing to lease the land in favour of the petitioner has been cancelled. But the petitioner contends that he has not received the same. However, he relies upon number of judgments of the Supreme Court contending that the said order could not have been passed without opportunity to him. From the counter of respondents, I find that such cancellation order was communicated to the petitioner by registered post to the address given by him in his representation for allotment of the land on lease basis, but the petitioner has not received. Having regard to these circumstances, the validity of the said order not being challenged in this writ petition would not arise for my consideration. In the writ petition also there is no prayer, challenging those proceedings of cancellation. But the writ petition is like a suit for injunction, directing the respondents not to interference with the possession of the petitioner on the basis of the proceedings dated 11-9-1997. When the petitioner specifically relies upon the proceedings dated 11-9-1997, it was for him to show that he has complied with all the conditions of the said order. As per condition No.6 of the proceedings dated 11-9-1997, the jural relationship of lessor and lessee would not come into existence between the petitioner and the official respondents, until the lease deed is executed in terms of that condition No.6. Having regard to these circumstances, it is not possible to acede to the contention of the petitioner that he is a lessee possession of the land. As contended by the learned Counsel for the respondents, the said order dated 11-9-1997 is only a proposal to lease the land in favour of the petitioner, subject to the conditions stipulated therein. It is relevant to note at this stage itself that the said order has been passed with the following conditions:
"(1) The annual rent is fixed at Rs.5,000/-.
(2) Rs.1,500/- should be paid as security deposit.
(3) One year rent should be paid as advance.
(4) The lessee should vacate the land as and when required by the Department without any protest or without claiming any compensation whatsoever. (5) The land should be utilised by the lessee for the purpose for which it has been requested for only. (6) The lessee should enter into an agreement in the proper form before entering into the land. (7) The lessee should strictly adhere to the terms and conditions stipulated in the agreement without any deviation. (8) The lessee should not erect any permanent structure in the land.
(9) The lessee should not obstruct the departmental people entering into the land for purpose of activities of the department. (10) The lessee should handover back the site in fit condition after completion of the period of lease without any pits or damages to the site. (11) The department reserves the rights to cancel the lease as per conditions in para 172 of A.P.P.W.D. Code even before entering into an agreement during the period of lease."
10. As I have already noted above, in terms of condition No.6, extracted above, no lease deed was executed between the petitioner and the official respondents. From the said order, I further find that there are no boundaries or any specifications, as to which portion of the land was proposed to be leased in favour of the petitioner, except stating that the permission is hereby accorded for the lease of vacant land of 50' x 20' = 1000 Sq.ft. in S. No.259 of Old Mallappu Kalva near Sunday Market, Nellore town for utilisation for self employment purposes. The period of lease is for one year only from the date of grant. The lease is subject to certain conditions. Having regard to these circumstances, from the said order, it cannot be ascertained as to which part of the land Sy. No.259 was to be leased in favour of the petitioner as per the agreement yet to be executed. Condition No.11 also further stated that the department reserves the right to cancel the lease even before entering into an agreement or during the period of lease, in these circumstances, when the petitioner himself is not a lessee, on the basis of any validly executed lease deed, he cannot maintain a writ petition, alleging that he has got lease hold rights in the land in dispute. The case of the respondents is that when the petitioner started encroaching private lands on the basis of the proceedings dated 11-9-1997, department was not willing to execute a lease deed in his favour. Whatever it may be, the petitioner is not entitled to any relief in this writ petition on the basis of the said order dated 11-9-1997, since the said order is only a proposal; to lease the land in favour of the petitioner on the basis of a lease deed yet to be executed. Even though the respondents have denied that the petitioner was given possession, from the said proceedings dated 11-9-1997, vide condition No.6, it is clear that one can enter into the land only after executing a lease deed in proper form. In these circumstances, it is not possible to accede to the contention of the petitioner that he entered into the land or he was given possession of the land by the official respondents. As I have already stated above, no proceedings of the Department are produced before me showing that the land was delivered to the petitioner at any point of time. In these circumstances, in substance, this writ petition would be in the form of suit for specific performance and I do not think that this Court can entertain the writ petition of this type.
11. From the proceedings dated 11-9-1997, it is clear that the period of lease would be one year from the date of the grant, subject to executing a lease deed in proper fonn. But the said lease period of one year from 11-9-1997 expired by 11-9-1998. In these circumstances, it would be futile to issue any writ in favour of the petitioner. In the decision reported in Nand Kishore v. State of Rajasthan, , the Hon'ble Supreme Court observed that when the contract was coming to an end shortly, it would not be desirable to accept the contention of the appellant before the Supreme Court for interfering with that contract. In the decision reported in Guruswamy v. State of Mysore, , the Hon'ble Supreme Court has observed that when the writ would be ineffective such a meaningless writs cannot be issued. Having regard to this position of law, in my humble opinion, no relief can be granted to the petitioner, since the period of one year contemplated in the proceedings dated 11-9-1997 is already over and it cannot be said that the petitioner is entitled to continue in possession of land, beyond that period, that too in the absence of any lease deed, duly executed between the petitioner and the official respondents. In these circumstances, the writ petition has become infructuous and the same is liable to be dismissed as such. However, the learned Counsel for the petitioner relied upon judgments of the Supreme Court reported in Ram Prasad v. State of Bihar, , Bishan Das v. Slate of Punjab, . State of U.P. v. Satya Narain, , R.D. Shetty v. International Airport Authority, , Swadeshi Cotton Mills v. Union of India, , M/s. Dwarkadas Marfotia v. Board of Trustees of the Fort of Bombay, , Sundardas Kanyalal Bhalija v. Collector, Thane, Maharashtra. , Kotaiah v. Property Association of the Baptist Churches (Pvt.) Ltd, , Kodavalli Veeraiah v. the Gram Panchayal of Angirchulapadu, Lingasamitdram Mandal, rep, by the Executive Aulhority/Sarpanch, , Nani Gopal Paul v. T. Prasad Singh, , and Fosie Chung Chemova v. Mama Bendra Chander Roy, . From going through these judgments, I find that the Supreme Court has consistently held that a person should be given an opportunity before any orders adverse to him are passed against him. The principle of law enunciated by the Supreme Court cannot be disputed. But these judgments would not arise for my consideration, since the petitioner has not challenged the alleged cancellation order said to have been passed against him without any notice and opportunity. At any rate the period of one year contemplated under proceedings dated 11-9-1997 is already over and no cause survives for the petitioner for maintaining this writ petition, as I have already stated above. As held by the Hon'ble Supreme Court in the decision reported in Kulchinder Singh and others v. Hardayal Singh Brar and others, , the contractual obligations, if any, without any statutory obligations, cannot be enforced in a writ petition and as such writ petition would not be maintainable.
12. For the above reasons, I do not find any merits in the writ petition and accordingly, the same is dismissed. But in the circumstances, without costs.