Andhra Pradesh High Court - Amravati
Vakacharla Veeraiah vs The State Of Andhra Pradesh, on 9 July, 2021
Author: M.Satyanarayana Murthy
Bench: M.Satyanarayana Murthy
HIGH COURT OF ANDHRA PRADESH :: AMARAVATI
****
WRIT PETITION No.17182 OF 2019
Between:
Vakacharla Veeraiah
... Petitioner
And
The State of Andhra Pradesh,
Represented by its Principal Secretary,
Revenue Department, Secretariat,
Velagapudi, Guntur District and 6 others.
... Respondents.
JUDGMENT PRONOUNCED ON 09.07.2021
THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY
1. Whether Reporters of Local newspapers
may be allowed to see the Judgments? - No -
2. Whether the copies of judgment may be
marked to Law Reporters/Journals - Yes -
3. Whether Their Ladyship/Lordship wish to
see the fair copy of the Judgment? - Yes -
MSM,J
wp_17182_2019
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* THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY
+ WRIT PETITION No.17182 of 2019
% 09.07.2021
# Vakacharla Veeraiah
....Petitioner
v.
$ The State of Andhra Pradesh,
Represented by its Principal Secretary,
Revenue Department, Secretariat,
Velagapudi, Guntur District and 6 others.
.... Respondents
! Counsel for the Petitioner : Sri B.Adinarayana Rao,
Senior Counsel
appearing on behalf of
Ms.Jyothi Anumolu
Counsel for Respondents: Government Pleader for
Revenue
<Gist:
>Head Note:
? Cases referred:
1. (2015)3 ALD 625
2. (1998) 2 SCC 642
3. 2005 (7) Scale164
4. (2017) 3 SCC 1
5. 1986 (4) SCC 632
6. 1995 All.L.J. 534
7. (1996) 9 SCC 309
8. (2004) 2 SCC 150
9. (2008) 2 SCC 280
10. AIR 1987 SC 537
11. 2017 (9) ADJ 251
12. AIR 1952 SC 12
MSM,J
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13. AIR 1951 SC 41
14. AIR 1977 SC 276
15. (2002) 1 SCC 33
16. AIR 1975 SC 460
17. AIR 1975 SC 538
18. AIR 1975 Cal. 14
19. (1962) Supp. (2) SCR 380
20. (1985) 3 SCC 198
MSM,J
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THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY
WRIT PETITION No.17182 of 2019
ORDER:
One Vakacharla Veeraiah filed this petition under Article 226 of the Constitution of India questioning the inaction of respondent Nos.1 and 2 in failing to de-notify the land admeasuring Ac.1.80 ¾ cents in Sy.No.149 situated in Vykunthapuram village, Amaravati Mandal, Guntur District, from the list of prohibited properties notified under Section 22-A (1) (c) of the Registration Act and to declare the same as illegal, arbitrary and in violation of Article 14, 21 and 300-A of the Constitution of India, consequently direct respondent Nos.1 and 2 to de-notify the said land from the prohibited list of properties and direct respondent No.5 to register the sale deed dated 30.04.2019 bearing P.No.98 of 2019 executed in favour of the petitioner.
The land admeasuring Ac.1.80 ¾ Cents in Sy No. 149 situated in Vykunthapuram village, Guntur District, Amaravati Mandal, (for short "subject property") was the ancestral property of one Mr. Bandhaviramam Narayana and his family members, and the subject property was allotted to them as inam, subsequently they obtained ryotwari patta in Form VIII on 15/04/1962 under the provisions of the Andhra Pradesh (Andhra Area) Inams (Abolition and Conversion into Ryotwari) Act, 1956 (for short "the Inams Act"). The ancestors of Bandhaviramam Narayana partitioned their property, executed registered a partition deed dated 07.08.1973 bearing Doc. No.700/1973. As per the partition deed the subject property was allotted to the share of Mr. Bandhaviramam Narayana who enjoyed the same with absolute rights during his lifetime and after his MSM,J wp_17182_2019 5 lifetime, it devolved upon his legal heirs viz. Bandhaviramam Venkata Kumari; Bandhaviramam Nagaraju and Bandhaviramam Manjusha (hereinafter will be referred to as "vendors'). The names of the vendors of the petitioner were entered in the revenue records, issued pattadar passbooks, Form 1B (ROR) and also a Ryotwari Patta under Section 7 of the Inams Act. Thus, the vendors of the petitioner are in possession of the property with absolute rights having inherited the same from their ancestors.
While the matter stood thus, the State amended Section 4 of the Inams Act vide Act 16 of 2013 ('Inams amendment act') with retrospective effect from 26.11.1956 by introducing a new sub- section (4) to Section 4 - which read as under:
(4) Notwithstanding anything contained in this Act, or any other law for the time being in force, where an Inam land is with a burden to render service, or for performance of a religious or public charity, or as a remuneration for performance of certain customary service to an institution or endowment, no person shall be entitled to Ryotwari patta, and the Institution or Endowment alone shall be entitled to Ryotwari patta for such Inam land without any restriction of extent and without the condition of personal cultivation.
Provided that, where any person other than concerned charitable or religious institution or endowment obtained a patta for such Inam Land after the commencement of the Andhra Pradesh (Andhra Area) Indam (Abolition and Conversion inot Ryotwari) Act, 1956, such patta shall and shall be deemed always to have been null and void and no effect shall be given to such patta granted:
Provided further that, no person, other than the person to whim the Inam Land was given to render service, or for performance of a religious or public charity or as a remuneration for performance of certain customary service, and who is in enjoyment of such Inam land, shall be entitled to continue in enjoyment of such land as long as the render such service for which that Inam land was originally given."
On 23.02.2019, the Governor for the State of Andhra Pradesh vide Andhra Pradesh Ordinance No.2 of 2019 dated 23.02.2019 MSM,J wp_17182_2019 6 ("Ordinance") further amended the Inams Act, inter alia, omitting the aforementioned first proviso to Sub Section (4) of Section 4 of the Inams Act. In view of the rights conferred by the Ordinance on the vendors in the subject property, the petitioner purchased the subject property from the vendors under a sale deed dated 30.04.2019 i.e. during the period of operation of the Ordinance. The sale deed was presented before respondent No.5 for registration, but respondent No.5 refused to register the sale deed which was given a pending registration document number viz. P.No.98/2019 on 01.05.2019. The reason for refusal of respondent No.5 is recorded in his "Intimation of Refusal No. 2 of 2019" dated 14.05.2019 which reads as under:
"The property of A 1.80 ¾ is sy.no.149 of Vykuntapuram village Any where registration of SRO. Amaravathi judriction in Endowment property as per the records by the Endowment Department under Section 22A (1) (c) of the Indian registration Act 1908."
It is specifically contended that the subject property is included in the list of prohibited properties under Section 22-A (1) (c) of the Registration Act, 1908 in view of the newly introduced Sub Section (4) of Section 4 of the Inams Act and more particularly the first proviso thereto. In view of the Ordinance the subject property ought to have been de-notified from the prohibited list of properties maintained under 22-A (1) (c) of the Registration Act.
In fact, the vendors of the petitioner had submitted representations to respondent Nos.1 and 2, for taking steps to de-notify the subject property from the prohibited list of properties notified under 22-A(1) (c) of the Registration Act, but no action was taken till date to de-notify the subject property from the list of MSM,J wp_17182_2019 7 prohibited properties, requested to issue a writ of Mandamus as claimed.
Respondent Nos.2 and 8 filed common counter denying material allegations inter alia contending that the subject property originally belongs to respondent No.7 - Sri Venkateswara Swamy Temple, Vykuntapuram Village, and the said temple was published under Section 6 (c) (ii) of the A.P. Act 30/1987. Initially the subject temple and its properties were registered under Section 38 of the old Act vide B.O.No.11/1939 dated 03.01.1939 and under Section 43 of the Act 30/1987. The temple is endowed with certain landed property including land to an extent of Ac. 15.80 Cts. in Sy.No.149 of Vykuntapuram Village, Amaravati Mandal, Guntur District apart from the land in other survey numbers. The land in Sy.No.149 is endowed for rendering "Bajantri Service" at the subject temple. Hence, it is an Inam land and given for the benefit of the temple, it is burdened with service; that the said temple is absolute owner of the said land and that the Bajantris of the subject temple can enjoy the same as long as they are rendering Bajantri service in the temple. The Bajantris have no salable right in land. Therefore, the purchase of the subject land by the writ petitioner is not tenable under law. Admittedly the writ petitioner or his vendors have not purchased the subject land from the temple by obtaining permission from the competent authority as per the provisions of Act 30/1987 either in public auction or by way of negotiations at any point of time. Hence, the sale deed obtained by the petitioner and executed by his vendors is non est in eye of law for the reason that alienation made by the vendors of the petitioner is not done with the prior approval of the Commissioner of the Endowments as required under Section 80 and MSM,J wp_17182_2019 8 81 of the Act 30/1987. Hence the purchaser from the Inamdars and their successors - in-interest are not entitled to retain the property. Therefore, either the petitioner or his vendors having no valid title over the subject land of this writ petition, hence, the petitioner is not entitled for the relief as claimed in the writ petition.
Undisputedly, the State of Andhra Pradesh has amended Section 4 of the Inams Abolition Amendment Act by Act 16/2013 with retrospective effect from 26.11.1956 and sub-section 4 to Section 4 is added stating that no person shall be entitled to Ryotwari Pattas and the institution alone shall be entitled to Ryotwari Pattas to the lands given for benefit of the Institution i.e., for rendering service in temple. Further it categorically states that the Ryotwari Pattas if any granted shall be deemed to have been null and void. Accordingly the Ryotwari Patta issued on 15.04.1962 to Bandhaviramam Narayana or in favor of his legal heirs itself become null and void, in view of the provisions of the Act 16/2013. Since the inam was granted for rendering Bajantri service to the subject temple, only the deity is entitled for Ryotwari Patta for the subject land.
It is further contended that the Government of Andhra Pradesh issued Ordinance No.2 of 2019 dated 23/02/2019 further amended the Inams Act by omitting the aforementioned first proviso to Sub section 4 of Section 4 of Inam Abolition Act, basing on which the petitioner has purchased the subject property i.e., Ac.1.80 3/4 cts in Sy. No.149 of Vvkuntapuram Village, Amaravati Mandal from the Vendors i.e the legal heirs of Bandhaviramam Narayana through sale deed dated 30.04.2019 and presented the documents for registration MSM,J wp_17182_2019 9 before respondent No.5 herein. But the said Ordinance is not laid before the Assembly in terms of Article 213 (2)(a) of the Constitution of India and thus, it stood lapsed. Further, this Court in its judgment delivered in "Vinjamuri Rajagopalachari v. State of Andhra Pradesh1" in W.P.No.31409/2014 which is also similar to the present case in which this Court ordered while answering the reference made to Full Bench in W.A.No.343/2015 and batch cases that once an entry is made in the Property Register, the same shall be presumed to be genuine unless the contrary is proved. In view of mandate of Section 43 and 46(2) of the Act 30/87, and Section 4(4) of Inam Abolition Act 1956, the property continued to be vested on the subject temple, irrespective of grant of Ryotwari Patta and pattadar Passbooks, since the pattas have no validity.
In Writ Petition (PIL) No.68/2019 filed to declare the Ordinance No.2 of 2019 as illegal, improper and void, this Court passed the following order "Having regard to the fact that six months period has elapsed from the date of the Ordinance and as the Ordinance has not fructified into an Act, no cause survives for adjudication in the present Writ Petition (PIL) and the same is accordingly closed". Thus the said Ordinance No.2 of 2019 was lapsed as infructuous."
The Division Bench of this Court in the common orders dated 29.11.2019 in W.P.No.27655 and 27572 of 2016 and W.P.No. 39704 and 42318 of 2017 upheld the provisions of Act 16/2013. In view of the above, the provisions of Amendment Act 16/2013 to AP (Andhra area) Inams Abolition and Conversion into Rytowari Act, 1956 holds good. Therefore, in view of amended provision under Section 4 (4) of the Inams Abolition Act the Rytowari patta issued by Tahsildar in 1 (2015)3 ALD 625 MSM,J wp_17182_2019 10 favour of legal heirs of Sri Bandhaviramam Narayana is null and void.
It is also contended that in view of the principle laid down by the Apex Court in "Sayyed Ali and Others vs AP Wakf Board, Hyderabad2" and contended that where a grant is made in favour of Inamdar for rendering service either in favour of charitable endowment or charitable institution or a religious endowment, such grant is deemed to be a grant in favour of institution, but not in favour of a grantee i.e. a service inamdar. Such Inamdar is entitled to enjoy the property only as long as he is rendering service to the institution. Therefore, such service Inam land cannot be alienated.
It is further contended that it is the duty of the state to protect the property of deity; as such State amended the Inam Abolition Act of 1956 with an avowed object to protect the deity's interest, such Amendment Act is Act 16 of 2013. Hence, it is enacted with retrospective effect from 26.11.1956 i.e., from the date of commencement of original enactment. Where an Inam land is burdened with service or for performance of a religious or public charity or to an institution or remuneration for performance of certain customary service, to an institution or endowment, no person shall be entitled to Ryotwari patta and the institution or endowment alone shall be entitled to Ryotwari patta for such Inam land. Therefore, the petitioner is not entitled to claim any right in the property, prayed to dismiss the writ petition.
Respondent No.5 also filed independent counter reiterating the principle laid down in "Vinjamuri Rajagopalachari v. State of 2 (1998) 2 SCC 642 MSM,J wp_17182_2019 11 Andhra Pradesh" (referred supra) and interalia contending that pursuant to the said judgment, the Commissioner, Endowments Department, A.P., vide letter Rc.No.M2/9577/2016 dt.8-6-2016 has furnished list of prohibitory properties U/s.22-A (1) (c) of the Registration Act to the Sub-Registrar, Amaravathi. As per the said list, an extent of Ac.15.8 cents of land in Sy.No.149 of Vykuntpuram Village is classified as Endowment land that belongs to Sri VekateswaraSwamy Temple, Vykuntapuram, when the Vendors of the petitioner executed a sale deed dated 30.04.2019 in favour of the petitioner and presented the same before respondent No.5 for registration under anywhere mode, this respondent kept the document pending by assigning P.No. 98/2019 and sent proposal to the Sub-Registrar, Amaravathi for approval and the Sub-Registrar, Amaravathi, rejected the said proposal on 30.04.2019 stating that the subject property is classified as Endowment land and thereafter, this respondent passed orders dated 14.05.2019 Under Section 71 of the Registration Act refusing registration of the said document.
Section 22-A of the Registration Act, 1908 in its application to the erstwhile State of A.P was first incorporated by Act No.4 of 1999 to empower the State Government to notify the registration of such documents or class of documents as opposed to public policy and to reject their registration. This Court of A.P in W.P.14099 of 2013 and batch cases following the judgment of the Supreme Court of India in the case of "State of Rajasthan v. BasantNahata3" passed orders declaring the provisions of Section 22-A added by the Registration (A.P.Amendment ) Act, 1999 as unconstitutional and struck down 3 2005 (7) Scale164 MSM,J wp_17182_2019 12 the said Section 22-A on the ground that public policy was not defined precisely.
It is further contended that in order to overcome the deficiencies as observed by this Court keeping in view the observations of the Hon'ble Supreme Court and to avoid illegal transactions of transfer of property relating to Government, Religious and Charitable Institutions etc., it was decided to amend the Registration Act, 1908 suitably by specifying the classes of documents prohibiting them from registration. Accordingly, the new Section 22-A was brought into existence by the Amendment Act No.19 of 2007 w.e.f 20.6.2007. Section 22-A reads as follows:
"22-A.Prohibition of Registration of Certain documents:
(1) The following classes of the documents shall be prohibited from the registration namely:-
a) Documents relating to the transfer of immovable property, the alienation or transfer of which is prohibited under any statute of the State or Central Government.
b) Documents relating to transfer of property by way of sale, agreement of sale, gift, exchange or lease in respect of immovable property owned by the State or Central Government executed by the persons other than those statutorily empowered to do so.
c) Documents relating to transfer of property by way of sale, agreement of sale, gift, exchange or lease exceeding ten years in respect of immovable property, owned by Religious and Charitable Endowments falling under the purview of the Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act, 1987 or by Wakfs falling under the Wakfs Act, 1995 executed by persons other than those statutorily empowered to do so."
d) Agricultural or urban lands declared as surplus under the A.P.Land Reforms (COAH) Act, 1973 or the Urban Land (Ceiling and Regulation) Act, 1976;
MSM,J wp_17182_2019 13
e) Any documents or class of documents pertaining to the properties State Government may, by notification prohibit the registration in which avowed or accrued interests of Central and State Government, local bodies, educational, cultural, Religious and Charitable Institutions, those attached by Civil, Criminal, Revenue Courts and Direct and Indirect Tax laws and others which are likely to adversely affect these interest. (2) For the purpose of Clause (e) of Sub-section (1), the State Government shall publish a notification after obtaining reasons for and full description of properties furnished by the District Collectors concerned in the manner as may be prescribed.
(3) Notwithstanding anything contained in this Act, the registering officer shall refuse to register any document to which a notification issued under Clause (e) of Sub-Section (1). (4) The State Government either suo motu or on an application by any person or for giving effect to the final orders of the High Court of A.P or Supreme Court of India may proceed to de-notify, either in full or in part, the notification issued under Sub-section (2)".
It is further contended that since the subject land is a endowment property, the vendors of the petitioner have no right to alienate the property by executing the sale deed and refusal to register the same by respondent No.5 is in accordance with law and respondent No.5 did commit no error in rejecting/refusing to register the document, as such the act to respondent No.5 cannot be declared as illegal, arbitrary and no direction need be issued to respondent No.5, prayed to dismiss the writ petition.
Respondent No.6 filed separate counter contending that the land in an extent of Ac.1.80 ¾ cents in Sy.No.149 is classified as MSM,J wp_17182_2019 14 "Inam Dry" as per revenue records and in the remarks column of Re- Settlement Register, it was mentioned as "Bajantri service". As per the Judgment of Full Bench of the High Court of Andhra Pradesh in W.P.No.343/2015, 232/2012 and 352/2013, the Government issued orders to notify the Government/Assignment/Endowments/Wakf lands etc in the prohibited properties list under Section 22-A (1) of the Registration Act. In pursuance of the same, the subject property was included in the list of prohibited properties and until it is de- notified from the list, it cannot be alienated and registration of the same is prohibited.
Respondent No.6 further contended that as long as the land continued as Inam, grant of patta in favour of the Bandhaviramam Narayana does not confer any title over the property, the Inamdar and his successors are entitled to continue in possession as long as they are continuing to render Bajantri service, thereby the petitioner is not entitled to claim any relief in the writ petition.
Petitioner filed reply affidavit specifically denying the contentions raised in the counters filed by respondent Nos.2, 8, 5 and 6.
During hearing, Sri B.Adinarayana Rao, learned senior counsel appearing for Ms.Jyothi Anumolu, learned counsel for the petitioner, would contend that in view of the ordinance No.02 of 2019 issued by the State, the first proviso to sub-Section (4) of Section 4 of the Inams Act is deemed to be not in operation, thereby the petitioner purchased the property from his vendors, obtained sale deed and presented the same for registration in accordance with the provisions of the Registration Act. When a transaction took place during the subsistence of ordinance i.e. before its lapse, refusal to register the MSM,J wp_17182_2019 15 document presented for registration by de-notifying the property from the list of prohibited properties notified under Section 22A (1)
(c) of the Indian Registration Act, is a grave illegality. He has drawn the distinction between 'temporary legislation' and 'ordinance' basing on the principle laid down by the Apex Court in "Krishna Kumar Singh v. State of Bihar4", wherein larger Bench of the Apex Court propounded 'enduring rights theory'. On the basis of the principle laid down therein, the learned senior counsel requested to issue a direction as claimed in the writ petition.
Learned Government Pleader for Endowments and learned Government Pleader for Stamps and Registration contended that in view of lapse of ordinance, the petitioner is not entitled to claim any relief, apart from that the petitioner has no subsisting right or interest in the property as on the date of presentation of instrument for registration, thereby infringement or invasion of legally enforceable right or interest in the property does not arise, consequently the petitioner is not entitled to claim writ of Mandamus. It is further contended that unless an application is filed through Meeseva (online) to de-notify subject property from the list of prohibited properties by paying requisite fee/charges, inaction of respondent No.5 cannot be held to be illegal and arbitrary. As long as the property is continuing in prohibited properties list, respondent No.5 is not under obligation to register the document presented for registration. Therefore, the alleged inaction of respondent No.5 cannot be held to be illegal and arbitrary. The subject land is classified as "Bajantri Inam" , though patta is granted in favour of ancestors of the vendors of the petitioner, it will not create any right 4 (2017) 3 SCC 1 MSM,J wp_17182_2019 16 or title to the property, at best, the Inamdar or his successors are entitled to enjoy the property as long as they are rendering "Bajantri service" in the temple since it is endowed property of temple. Hence, the petitioner is not entitled to claim any right or title to the property and insist the respondents to de-notify the property from the list of prohibited properties without making appropriate application. Consequently, the writ petition is liable to be dismissed, requested to dismiss the writ petition.
Considering rival contentions, perusing the material available on record, the points that need to be answered by this Court are as follows:
(1) Whether the petitioner being a purchaser of land in an extent of Ac.1.80 ¾ Cents in Sy No. 149 situated in Vykunthapuram village, Guntur District, Amaravati Mandal under un-registered sale deed is entitled to claim writ of Mandamus?
(2) Whether the petitioner being a purchaser under unregistered sale deed acquired any right, thereby respondent Nos.1 and 2 be directed to de-notify the property from the list of prohibited properties notified under Section 22A (1) of the Registration Act and register the document presented by the petitioner for registration executed by his vendors viz.
Bandhaviramam Venkata Kumari; Bandhaviramam Nagaraju and Bandhaviramam Manjusha, by respondent No.5?
P O I N T No.1:
The first and foremost contention of the petitioner is that as respondent No.5 denied registration of sale deed presented by the petitioner; respondent Nos.1 and 2 failed to de-notify the property from the list of prohibited properties notified under Section 22A (1) MSM,J wp_17182_2019 17 of the Registration Act, the petitioner being a purchaser under unregistered sale deed, sought writ of Mandamus. The facts are not in dispute. Before examining other issues regarding entitlement of the petitioner to claim writ of Mandamus, it is appropriate to advert to certain provisions of the Transfer of Property Act, which deals with sale of immovable property.
Chapter III of the Transfer of Property Act, 1882 deals with sales of immovable property. Section 54 of the Transfer of Immovable Property defined "sale". 'Sale' is a transfer of ownership in exchange for a price paid or promised or part-paid and part- promised. Thus, the transaction covered by unregistered sale deed dated 30.04.2019 presented for registration with respondent No.5 is a sale as defined under Section 54 of the Transfer of Property Act. To complete the sale, it must be registered, if the value of tangible immovable property of the value of Rs.100/- and upwards, or in the case of a reversion or other intangible thing, can be made only by a registered instrument. In the case of tangible immoveable property of a value, less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property. Delivery of tangible immoveable property takes place when the seller places the buyer, or such person as he directs, in possession of the property. Thus, the 'sale' of tangible immovable property of the value of Rs.100/- and upwards is deemed to have been completed only when registered deed of conveyance is executed transferring the tangible immovable property in favour of the petitioner by his vendors. Though it is an outright sale as defined under Section 54 of the Transfer of Property Act, it is incomplete transaction as the sale is not by registered instrument. Of course, rights and liabilities of MSM,J wp_17182_2019 18 buyer and seller are enumerated under Section 55 of the Transfer of Property Act, but they are mutual rights and obligations of both buyer and seller, not against the State. Hence, the petitioner, who is a purchaser under unregistered sale deed did not acquire any right or interest in the immovable property as on date of filing the writ petition. At best, on account of ordinance No.02 of 2019 promulgated by the State, the vendors of the petitioner would acquire a right to deal with immovable property in view of deletion of first proviso to sub-section (4) of Section (4) of the Inams Act. As such, the vendors are entitled to claim writ of Mandamus on the ground that their right to deal with the immovable property before lapse of ordinance is infringed or invaded on account of the inaction of respondent Nos.1, 2 and 5. However, the petitioner being a purchaser under unregistered sale deed will not acquire any right or interest in the immovable property, since, such document/instrument or conveyance of immovable property can be equated with contract of sale for all practical purposes, on the terms settled between the parties, but does not create any interest or charge on immovable property since the sale transaction is incomplete. Therefore, the petitioner did not acquire any right or interest in the immovable property. Hence, the question of infringement or invasion of petitioner's right by the respondent Nos.1, 2 and 5, in the present facts of the case, does not arise.
At the same time, Writ of Mandamus is discretionary in nature and such power of judicial review under Article 226 of the Constitution of India can be exercised only in certain circumstances. Yet, issuance of Writ of Mandamus is purely discretionary and the same cannot be issued as a matter of course.
MSM,J wp_17182_2019 19 In "State of Kerala v. A.Lakshmi Kutty5", the Hon'ble Supreme Court held that a Writ of Mandamus is not a writ of course or a writ of right but is, as a rule, discretionary. There must be a judicially enforceable right for the enforcement of which a mandamus will lie. The legal right to enforce the performance of a duty must be in the applicant himself. In general, therefore, the Court will only enforce the performance of statutory duties by public bodies on application of a person who can show that he has himself a legal right to insist on such performance. The existence of a right is the foundation of the jurisdiction of a Court to issue a writ of Mandamus.
In "Raisa Begum v. State of U.P.6", the Allahabad High Court has held that certain conditions have to be satisfied before a writ of mandamus is issued. The petitioner to claim writ of mandamus must show that he has a legal right to compel the respondent to do or abstain from doing something. There must be in the petitioner a right to compel the performance of some duty cast on the respondents. The duty sought to be enforced must have three qualities. It must be a duty of public nature created by the provisions of the Constitution or of a statute or some rule of common law.
Writ of mandamus cannot be issued merely because, a person is praying for. One must establish the right first and then he must seek for the prayer to enforce the said right. If there is failure of duty by the authorities or inaction, one can approach the Court for a mandamus. The said position is well settled in a series of decisions. 5 1986 (4) SCC 632 6 1995 All.L.J. 534 MSM,J wp_17182_2019 20 In "State of U.P. and Ors. v. Harish Chandra and Ors.7" the Supreme Court held as follows:
"10. ...Under the Constitution, a mandamus can be issued by the court when the applicant establishes that he has a legal right to the performance of legal duty by the party against whom the mandamus is sought and the said right was subsisting on the date of the petition."
(Emphasis supplied) In "Union of India v. S.B. Vohra8" the Supreme Court considered the similar issue, held that 'for issuing a writ of mandamus in favour of a person, the person claiming, must establish his legal right in himself. Then only a writ of mandamus could be issued against a person, who has a legal duty to perform, but has failed and/or neglected to do so.
In "Oriental Bank of Commerce v. Sunder Lal Jain9" the Supreme Court emphasized the necessity to establish existence of legal right and its infringement for grant of writ of mandamus referred the principles stated in the Law of Extraordinary Legal Remedies by F.G. Ferris and F.G. Ferris, Jr.:
"Note 187.-Mandamus, at common law, is a highly prerogative writ, usually issuing out of the highest court of general jurisdiction, in the name of the sovereignty, directed to any natural person, corporation or inferior court within the jurisdiction, requiring them to do some particular thing therein specified, and which appertains to their office or duty. Generally speaking, it may be said that mandamus is a summary writ, issuing from the proper court, commanding the official or board to which it is addressed to perform some specific legal duty to which the party applying for the writ is entitled of legal right to have performed.
Note 192.-Mandamus is, subject to the exercise of a sound judicial discretion, the appropriate remedy to enforce a plain, positive, specific and ministerial duty 7 (1996) 9 SCC 309 8 (2004) 2 SCC 150 9 (2008) 2 SCC 280 MSM,J wp_17182_2019 21 presently existing and imposed by law upon officers and others who refuse or neglect to perform such duty, when there is no other adequate and specific legal remedy and without which there would be a failure of justice. The chief function of the writ is to compel the performance of public duties prescribed by statute, and to keep subordinate and inferior bodies and tribunals exercising public functions within their jurisdictions. It is not necessary, however, that the duty be imposed by statute;
mandamus lies as well for the enforcement of a common law duty.
Note 196.-Mandamus is not a writ of right. Its issuance unquestionably lies in the sound judicial discretion of the court, subject always to the well settled principles which have been established by the courts. An action in mandamus is not governed by the principles of ordinary litigation where the matters alleged on one side and not denied on the other are taken as true, and judgment pronounced thereon as of course. While mandamus is classed as a legal remedy, its issuance is largely controlled by equitable principles. Before granting the writ the court may, and should, look to the larger public interest which may be concerned-an interest which private litigants are apt to overlook when striving for private ends. The court should act in view of all the existing facts, and with due regard to the consequences which will result. It is in every case a discretion dependent upon all the surrounding facts and circumstances."
(Emphasis supplied) Similarly, in Corpus Juris Secundum, summarized the pre-requisites for grant of writ of mandamus and the same is extracted hereunder:
"Mandamus may issue to compel the person or official in whom a discretionary duty is lodged to proceed to exercise such discretion, but unless there is peremptory statutory direction that the duty shall be performed mandamus will not lie to control or review the exercise of the discretion of any board, tribunal or officer, when the act complained of is either judicial or quasi-judicial unless it clearly appears that there has been an abuse of discretion on the part of such Court, board, tribunal or officer, and in accordance with this rule mandamus may not be invoked to compel the matter of discretion to be exercised in any particular way. This principle applies with full force and effect, however, clearly it may be made to appear what the decision ought to be, or even though its conclusion be disputable or, however, erroneous the conclusion reached may be, and although there may be no other method of review or correction provided by law. The discretion must be exercised according to the established rule where the action complained has been arbitrary or capricious, or based on personal, selfish or fraudulent motives, MSM,J wp_17182_2019 22 or on false information, or on total lack of authority to act, or where it amounts to an evasion of positive duty, or there has been a refusal to consider pertinent evidence, hear the parties where so required, or to entertain any proper question concerning the exercise of the discretion, or where the exercise of the discretion is in a manner entirely futile and known by the officer to be so and there are other methods which it adopted, would be effective."
(emphasis supplied) In "Comptroller and Auditor-general of India, Gian Prakash, New Delhi v. K.S. Jagannathan10" the Apex Court quoted Halsbury's Laws of England, Fourth Edition, Volume I, Paragraph 89, where it is stated that the purpose of an order of mandamus "is to remedy defects of justice; and accordingly it will issue, to the end that justice may be done, in all cases where there is a specific legal right and no specific legal remedy for enforcing that right; and it may issue in cases where, although there is an alternative legal remedy, yet that mode of redress is less convenient, beneficial and effectual."
The Division Bench of the Allahabad High Court in Ajit Singh v. Union of India11 while dealing with locus standi of a person who filed petition under Article 226 of the Constitution of India, referred the judgments of the Supreme Court to hold that existence of legal right and its infraction must necessarily be pleaded and proved to issue Writ of Mandamus.
In "State of Orissa v. Madan Gopal12" Hon'ble Apex Court has ruled that the existence of the right is the foundation of the exercise of jurisdiction of the Court under Article 226 of the 10 AIR 1987 SC 537 11 2017 (9) ADJ 251 12 AIR 1952 SC 12 MSM,J wp_17182_2019 23 Constitution. In "Charanjit Lal Chowdhuri v. Union of India13", it has been held by Hon'ble Apex Court that the legal right that can be enforced under Article 32 must ordinarily be the right of the petitioner himself who complains of infraction of such right and approaches the Court for relief. The Court did not find any reason why a different principle should apply in the case of a petitioner under Article 226 of the Constitution. The right that can be enforced under Article 226 also shall ordinarily be the personal or individual right of the petitioner himself though in the case of some of the writs like habeas corpus or quo warranto this rule may have to be relaxed or modified. Thus, Article 226 confers very wide power on the High Court to issue directions and writs of the nature mentioned therein for the enforcement of any of the rights conferred by Part III or for any other purpose. It is, therefore, clear that persons other than those claiming fundamental rights can also approach the Court seeking a relief thereunder. The Article in terms does not describe the classes of persons entitled to apply thereunder; but it is implicit in the exercise of the extraordinary jurisdiction that the relief asked for must be one to enforce a legal right.
Similarly, in "Mani Subrat Jain v. State of Haryana14", while considering Article 226 of the Constitution, the Hon'ble Supreme Court in paragraph 9, observed thus:
"...It is elementary though it is to be restated that no one can ask for a mandamus without a legal right There must be a judicially enforceable right as well as a legally protected right before one suffering a legal grievance can ask for a mandamus. A person can be said to be aggrieved only when a person is denied a legal right by someone who has a legal duty to do something or to abstain from doing something. (See 13 AIR 1951 SC 41 14 AIR 1977 SC 276 MSM,J wp_17182_2019 24 Halsbury's Laws of England 4th Ed. Vol I, paragraph
122); State of Haryana v. Subash Chander, (1974) 1 SCR 165 : (AIR 1973 SC 2216); Jasbhai Motibhai Desai v. Roshan Kumar Haji Bashir Ahmed, (1976) 3 SCR 58 : (AIR 1976 SC 578) and Ferris Extraordinary Legal Remedies paragraph 198."
(emphasis supplied) It is well-settled that existence of a legal right of a petitioner which is alleged to have been violated is the foundation for invoking the jurisdiction of the High Court under Article 226 of the Constitution. While reiterating this legal proposition, the Supreme Court in paragraph 38 of its judgment in "Ghulam Qadir v. Special Tribunal15", held thus:
"38. There is no dispute regarding the legal proposition that the rights under Article 226 of the Constitution of India can be enforced only by an aggrieved person except in the case where the writ prayed for is for habeas corpus or quo warranto. Another exception in the general rule is the filing of a writ petition in public interest. The existence of the legal right of the petitioner which is alleged to have been violated is the foundation for invoking the jurisdiction of the High Court under the aforesaid Article. The orthodox rule of interpretation regarding the locus standi of a person to reach the Court has undergone a sea change with the development of constitutional law in our country and the constitutional Courts have been adopting a liberal approach in dealing with the cases or dislodging the claim of a litigant merely on hypertechnical grounds. If a person approaching the Court can satisfy that the impugned action is likely to adversely affect his right which is shown to be having source in some statutory provisions the petition filed by such a person cannot be rejected on the ground of Ms having not the locus standi. In other words, if the person is found to be not merely a stranger having no right whatsoever to any post or property, he cannot be non-suited on the ground of his not having the locus standi."
(emphasis supplied) In view of catena of perspective pronouncements, the petitioner must plead and prove that legal right existed either statutory or constitutional right and it is infringed or invaded or threatened to infringe or invade by the respondents. But, the bald 15 (2002) 1 SCC 33 MSM,J wp_17182_2019 25 allegations made in the affidavit without demonstrating the existence of any right and its infringement or its invasion or threatened infringement or invasion by the respondents are not sufficient. In the absence of establishing the existence of right, its infringement or invasion or threatened infringement or invasion, the petitioner is not entitled to claim writ of mandamus. In view of the law declared by the Supreme Court and reiterated by the Division Bench of the Allahabad High Court in the judgment referred supra, the petitioner must plead and prove that a legal right possessed by him is violated or infringed or threatened to be infringed to obtain a relief of writ of mandamus.
Writ of Mandamus can be granted only against the State and its instrumentalities when a demand made by private individuals to do or not to do an act or thing by the State or its instrumentalities and denied the same by the authorities.
For the issue of mandamus against an administrative authority the affected individual must demand justice and only on refusal he has right to approach the Court. In "Saraswati Industrial Syndicate Limited v. Union of India16", the Supreme Court has adopted the following statement of law in this regard. :
"As a general rule the orders would not be granted unless the party complained of has known what it was he was required to do, so that he had the means of considering whether or not he should comply, and it must be shown by evidence that there was a distinct demand of that which the party seeking the mandamus desires to enforce, and that the demand was met by a refusal."
Thus, a party seeking mandamus must show that a demand is made for justice from the authority concerned by performing his duty 16 AIR 1975 SC 460 MSM,J wp_17182_2019 26 and that the demand was refused. In "Saraswati Industrial Syndicate Limited v. Union of India" (referred supra) the Court refused to grant mandamus as there was no such demand and refusal. Where a civil servant approached the court for mandamus against wrongful denial of promotion, he was denied the relief because of his failure to make representation to the government against injustice. The said principle was reiterated in "Amrit Lal v. Collector, C.E.C., Revenue17".
In "the Statesman v. Fact Finding Committee18" the Court opined that the demand for justice is not a matter of form but a matter of substance, and it is necessary that a "proper and sufficient demand has to be made". The demand must be made to the proper authority and not to an authority which is not in a position to perform its duty in the manner demanded. It is suggested that the Court should not fossilize this rule into something rigid and inflexible but keep it as flexible.
Thus, the law is well settled that there must be a demand from the citizen and denial by the State authorities. In the present facts of the case, the petitioner did not make any demand to de-notify the property from the list of prohibited properties notified under Section 22A (i) (c) of the Registration Act except making a representation to respondent Nos.1 and 2 by the vendors of the petitioner with a request to de-notify the property from the list of prohibited properties, but respondent Nos.1 and 2 are not competent to de-notify the subject property and the Commissioner of Endowments 17 AIR 1975 SC 538 18 AIR 1975 Cal. 14 MSM,J wp_17182_2019 27 alone is competent, as such the representation was not made to proper authority.
When the representation of the vendor is not considered by the concerned authorities, if competent, the vendors of the petitioner are entitled to seek writ of Mandamus since their demand was not considered and denied during six months from the date of issue of ordinance No.02 of 2019 by the Government.
Undisputedly, the petitioner and his vendors did not make any application for deletion of property from the list of prohibited properties through Meesava (online) by paying requisite fee. When the application was not made in appropriate mode authorised by the rules framed by the Government, respondent Nos.1 and 2 or any of the respondents including respondent No.7 are not bound to pass appropriate order on the representation since the representation submitted by the vendors of the petitioner is in unauthorised mode to de-notify the property from the list of prohibited properties notified under Section 22A (i) (c) of the Registration Act. Even otherwise, the petitioner did not submit any application through Meeseva or in any authorised mode and not even a representation to any of the respondents; therefore, the question of failure to discharge the public duty by the respondents does not arise. Hence, the petitioner failed to establish his existing legally enforceable right or interest and its infringement or invasion or threatened infringement or invasion by the respondents besides demand and denial as discussed above. In such circumstances, the petitioner being a purchaser of immovable property under unregistered sale deed is not entitled to seek a writ of Mandamus against the respondents. At best, the vendors in whose favour the Inam Patta was issued under Section 7 of the Inams Act MSM,J wp_17182_2019 28 for rendering Bajantri service in Sri Venkateswara Swamy Temple, Vykuntapuram Village, are entitled to seek writ of Mandamus, if the demand is made to competent authority in authorised mode.
It is an undisputed fact, Section 4 of the Inams Act was amended by incorporating sub-section (4) giving retrospective effect to the amendment to 1956 and this amendment was challenged before this Court, the Division Bench of this Court in the common orders dated 29.11.2019 in W.P.No.27655 and 27572 of 2016 and W.P.No. 39704 and 42318 of 2017 upheld the legality of the amendment to the A.P.Act 16 of 2013, as such the vendors are not entitled to deal with the property in the absence of ordinance, but on account of ordinance the vendors of the petitioner became entitled to deal with the property as the first proviso to sub-section (4) of Section 4 is deemed to be not in operation on account of promulgation of Ordinance No.02 of 2019. At best, during the period of ordinance in force, the vendors may deal with the property and when it is ceased to operate due to lapse, in terms of Article 213 (2) of the Constitution of India, as on date the vendors of the petitioner are also not entitled to exercise their absolute right to deal with the subject property.
In view of my foregoing discussion and the law laid down by the Courts, it is clear that the petitioner failed to establish his existing legally enforceable right either statutory or constitutional against the State and its instrumentalities, its infringement or invasion or threatened infringement or invasion of such legally enforceable right.
Apart from that the petitioner also did not make appropriate application to de-notify the subject property from the list of MSM,J wp_17182_2019 29 prohibited properties notified under Section 22A (1) (c) of the Registration Act. It is clear from the record that the representation dated 15.04.2019 was made to the Chief Secretary, Revenue Department by the vendors of the petitioner. In fact, notification was issued by the competent authority (respondent No.7) notifying the prohibited properties. Hence, respondent No.7 alone is competent to notify and de-notify the property from the list of prohibited properties under Section 22A (4) of the Registration Act. When no application is made to respondent No.7 through Meeseva paying requisite fee, respondent Nos.1 and 2 are not under obligation to de-notify the property from the list of prohibited properties. In the absence of appropriate application demanding respondent No.7 to de-notify the subject property from the list of prohibited properties, failure of the respondents does not amount to inaction on their part for the following reasons.
(1) No application was made by the petitioner in any authorised mode paying requisite fee/charges to de-notify the property from the list of prohibited properties notified under Section 22A (1) (c) of the Registration Act. (2) The representation made by the vendors of the petitioner is not in authorised mode. The petitioner never made any demand to the respondents to discharge the legal duty. In those circumstances, the petitioner is not entitled claim writ of Mandamus. Hence, the claim of the petitioner for grant of Writ of Mandamus would fail for the above reasons, consequently the petition is liable to be dismissed on this ground also. Accordingly, the point is answered against the petitioner and in favour of the respondents.
MSM,J wp_17182_2019 30 P O I N T No.2:
The main contention of the learned counsel for the petitioner is that the petitioner acquired right in the immovable property during subsistence of the Ordinance No.02 of 2019 promulgated by the Government omitting the first proviso to sub-section (4) of Section 4 the Inams Act. When the sale transaction was entered into during the period the first proviso to sub-section (4) of Section 4 of the Inams Act was not in operation, it is the duty of respondent No.5 to register the document, if any, presented before him, if the instrument satisfies the other formalities as per law. But respondent No.5 did not register the document presented by the petitioner, issued information of refusal No.02 of 2019 dated 14.05.2019, whereunder it is specifically stated as follows:
"It is hereby informed that the document executed on 30.04.2019 by
1.Bandhaviramam Venkata Kumari w/o (Late) Koteswara Rao, (2) Bandaviramam Nagaraju, s/o Koteswara Rao, (3) Bandaviramam Manjusha D/o Nagaraju, 1 to 3 address Dr.No.26-45-16/30, Sithamma Colony, 5th lane, Pattabhipuram, Guntur, Guntur District in favour of Vakacharla Veeraiah, s/o Sambasiva Rao, Mandadam Village, Thulluru Mandal, Guntur District and presented before the undersigned and admitted as P.No.98/2019 on 01.05.2019 has been refused registration for the following reason. The property of A 1.80 ¾ is sy.no.149 of Vykuntapuram village Any where registration of SRO. Amaravathi judriction in Endowment property as per the records by the Endowment Department under Section 22A (1) (c) of the Indian registration Act 1908."
Thus, the reason for refusal is that the subject property is notified in the list of prohibited properties under Section 22A (1) (c) of the Registration Act. When the property is notified in prohibited properties list, unless the same is de-notified during subsistence of ordinance No.02 of 2019, refusal to register the document by respondent No.5 is justifiable as respondent No.5 recorded reason for refusal as mandated under Section 71 of the Registration Act and an MSM,J wp_17182_2019 31 appeal lies under Section 72 of the Registration Act against the order of Sub-Registrar refusing to register on the ground other than the denial of execution.
As discussed above, no application was submitted in any authorised mode to de-notify the subject property from the list of prohibited properties. Hence, the question of registration of document does not arise as long as the property is in the prohibited list notified under Section 22A (1) (c) of the Registration Act. Therefore, the act of respondent No.5 cannot be held to be illegal, arbitrary and violative of Article 14, 21 and 300-A of the Constitution of India.
Sri B.Adinarayana Rao, learned senior counsel mainly relied on "theory of enduring right" propounded in "Krishna Kumar Singh v. State of Bihar" (referred supra), wherein the larger Bench drawn the distinction between the 'temporary legislation' and 'ordinance' with reference to Section 6 of the General Clauses Act.
At this stage, it is relevant to advert to the Article 213 (2) of the Constitution of India and it is extracted hereunder.
"Article 213(2):
(2) An Ordinance promulgated under this article shall have the same force and effect as an Act of Legislature of the State assented to by the Governor, but every such Ordinance -
(a) shall be laid before the legislative Assembly of the State, or where there is a Legislative Council in the State, before both the House, and shall cease to operate at the expiration of six weeks from the reassembly of the Legislature, or if before the expiration of that period a resolution disapproving it is passed by the Legislative Assembly and agreed to by the Legislative Council, if any, upon the passing of the resolution or, as the case may be, on the resolution being agreed to by the Council; and
(b) may be withdrawn at any time by the Governor.
Explanation Where the Houses of the Legislature of a State having a Legislative Council are summoned to reassemble on different dates, the period of six weeks shall be reckoned from the later of those dates for the purposes of this clause"
Ordinance No.02 of 2019 was ceased to operate on the expiry of time prescribed under Article 213 (2) (a) of the Constitution of MSM,J wp_17182_2019 32 India and it is not in dispute. But the contention of the petitioner is that in view of Section 6 of the General Clauses Act (Central Act), any Act or Regulation made after the commencement of the General Clauses Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not revive anything not in force or existing at the time at which the repeal takes effect; or affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder; or affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid, and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the repealing Act or Regulation had not been passed. Section 8 of the A.P.General Clauses Act is in pari materia to Section 6 of the (Central) General Clauses Act. Thus, it applies only to repeal of an enactment or regulation made. In the present case, due to lapse of ordinance in terms of Article 213 (2) of the Constitution of India, the first proviso to sub-section (4) of Section 4 of the Inams Act is not repealed. The same is made clear in "Krishna Kumar Singh v. State of Bihar"
(referred supra) and the Court candidly held that Section 6 in its terms applies only to a repeal. An ordinance ceases to have effect six weeks from the date on which the legislature reassembles (or upon the passing of a legislative resolution disapproving it). An ordinance MSM,J wp_17182_2019 33 which lapses upon the expiry of its tenure of six weeks from the reassembly of the legislature is not repealed as such. Repeal of a legislation results from a positive or affirmative act of the legislative body based on its determination that the law is no longer required. Repeal takes place through legislation. An ordinance lapses ('ceases to operate') when it has failed to obtain legislative approval by being converted into a duly enacted legislation. Section 6 of the General Clauses Act protects rights, privileges and obligations and continues liabilities in cases of repeal of an enactment. The issue as to whether rights, privileges, obligations and liabilities which have arisen under an ordinance which has ceased to operate would endure is not answered by Section 6 of the General Clauses Act. What then is the touch-stone on which this question should be resolved?
The Apex Court adverted to "State of Orissa v. Bhupendra Kumar Bose19" and held that the general Rule in regard to a temporary statute is that in the absence of a special provision to the contrary, proceedings taken against a person under it will terminate when the statute expires. That is why the legislature adopts a savings provision similar to Section 6 of the General Clauses Act. But in the view of the court, it would not to be open to the ordinance making authority to adopt such a course because of the limitation imposed by Article 213(2)(a). The Constitution Bench relied upon three English judgments: "Wicks v. Director of Public Prosecutions (1947) A.C. 362"; "Warren v. Windle (1803) 3 East 205, 211-212:102 E.R. (K.B.) 578"; and "Steavenson v. Oliver 151 E.R. 1024, 1026-1027."
19
(1962) Supp. (2) SCR 380 MSM,J wp_17182_2019 34 Having adverted to these English decisions, the Constitution Bench held thus:
"21. .....In our opinion, what the effect of the expiration of a temporary Act would be must depend upon the nature of the right or obligation resulting from the provisions of the temporary Act and upon their character whether the said right and liability are enduring or not."
The 'enduring rights' theory which had been applied in English decisions to temporary statutes-was thus brought in while construing the effect of an ordinance which has ceased to operate. The Apex Court, further, held as follows:
".......Therefore, in considering the effect of the expiration of a temporary statute, it would be unsafe to lay down any inflexible rule. If the right created by the statute is of an enduring character and has vested in the person that right cannot be taken away because the statute by which it was created has expired. If a penalty had been incurred under the statute and had been imposed upon a person, the imposition of the penalty would survive the expiration of the statute. That appears to be the true legal position in the matter."
The Apex Court further observed that the validation of the municipal elections was not intended to be temporary in character which would last only during the lifetime of the ordinance. The rights created by it were held to endure and last even after the expiry of the ordinance. Consequently, the lapsing of the ordinance would not result in the revival of the invalidity of the election which the ordinance had validated.
Thus, the Apex Court in "State of Orissa v. Bhupendra Kumar Bose" (referred supra) taking cue from the English judgments held that enduring effect will continue to remain even after lapse of ordinance.
The basic premise of the decision in "State of Orissa v. Bhupendra Kumar Bose" (referred supra) is that the effects of an ordinance can be assessed on the basis of the same yardstick that MSM,J wp_17182_2019 35 applies to a temporary enactment. There is a fundamental fallacy in equating an ordinance with a temporary enactment. A temporary Act is a law which is enacted by the legislature-Parliament or the state legislature-in exercise of its plenary powers. While enacting a law, the legislature is entitled to define the period during which the law is intended to operate. The legislature decides whether the law will be for a limited duration or is to be permanent. Hence, it lies perfectly within the realm and competence of the legislature which enacts a temporary law to provide that the rights or the liabilities which are created during the tenure of the law will subsist beyond the expiry of its term. The legislature which has the competence to enact a law unrestricted by tenure is equally competent to enact a temporary legislation in which it can convey a legislative intent that the rights or obligations which will be created will continue to subsist even upon its expiry. An ordinance is not in the nature of a temporary enactment. An ordinance is conditioned by specific requirements. The authority to promulgate an ordinance arises only when the legislature is not in session and when circumstances requiring emergent action exist. The Constitution prescribes that an ordinance shall remain valid for a period of not more than six weeks after the legislature reassembles and even within that period, it will cease to operate if it is disapproved. Hence, the considerations which govern law making by a competent legislature which has plenary powers to enact a law cannot be equated with a temporary enactment. The larger Bench in "Krishna Kumar Singh v. State of Bihar" (referred supra) found basic error in the judgment in "State of Orissa v. Bhupendra Kumar Bose" (referred supra) lies in its placing an ordinance on the same pedestal as a temporary enactment and held that the Apex MSM,J wp_17182_2019 36 Court in "State of Orissa v. Bhupendra Kumar Bose" (referred supra) analysed the words "shall cease to operate". It mean that all legal consequences that arose during the tenure of the ordinance would stand obliterated. According to the second construction, which is wider than the first, the consequence of an ordinance having ceased to operate would relate back to the validity of an ordinance.
The meaning of the word 'enduring' is 'permanent'. According to Merriam - Webster dictionary the meaning of word 'enduring' is 'lasting, durable'. The theory of enduring rights is nothing but long- lasting or permanent rights.
Even if any of the constructions adopted by the Larger Bench of the Supreme Court in "Krishna Kumar Singh v. State of Bihar"
(referred supra) by applying the meaning of the word 'cease to operate' is applied, in the present case, the question of enduring effect on account of lapse of ordinance does not arise. Even otherwise, the petitioner being a purchaser under incomplete sale transaction did not acquire any right or interest in the immovable property. Therefore, application of 'enduring rights theory' to the present facts of the case is doubtful.
The Apex Court clearly recorded reasons to disagree with the principle laid down in "State of Orissa v. Bhupendra Kumar Bose"
(referred supra) while observing that the enduring rights theory which was accepted in the said judgment was extrapolated from the consequences emanating from the expiry of a temporary Act.
However, the Apex Court discussed about the consequences upon an ordinance ceasing to operate, either as a result of its disapproval by the legislature or upon its expiry after the prescribed period of six months of the assembling of the legislature, all MSM,J wp_17182_2019 37 consequences that have ensued would necessarily stand effaced and obliterated, held as follows:
"The judgment of Justice Sujata Manohar in the referring order in the present case adverted to the ambiguity inherent in the expression "permanent effect" and "rights of an enduring character". The Bench consisting of Justice Sujata Manohar and Justice D.P. Wadhwa, being a bench of two learned judges, was confronted with the binding effect of the decisions of the two Constitution Benches in "State of Orissa v. Bhupendra Kumar Bose" (referred supra) and "T.Venkata Reddy v. State of Andhra Pradesh20". Within the framework provided by the two binding precedents, Justice Sujata Manohar held that the effect of an ordinance can be considered as permanent when it is irreversible or when it would be "highly impractical or against public interest to reverse it". A three-fold test has been laid down: the first is of the irreversibility of effect; the second, the impracticality of reversing a consequence which has ensued under the ordinance and the third, is the test of public interest. The principle which we will lay down is not constrained by the two Constitution Bench decisions which propounded the enduring rights theory, once we have held that the theory has been incorrectly lifted from the context of a temporary law and applied to the ordinance making power."
At the same time, the Apex Court observed that the relief can be moulded by the Court to determine whether undoing what has been done under the ordinance would manifestly be contrary to public interest. Impracticality and irreversibility in that sense are aspects which are subsumed in the considerations which weigh in the balance while deciding where public interest lies. Impracticality cannot by itself be raised to an independent status because it would then be simple enough for the executive to assert the supposed complexities in undoing the effects of an ordinance. Since the basic constitutional value which is at issue is of parliamentary supremacy and control, the moulding of relief can be justified in cases involving grave elements of public interest or constitutional necessity demonstrated by clear and cogent material.
20
(1985) 3 SCC 198 MSM,J wp_17182_2019 38 In view of the principle laid down in the above judgment, it is necessary to advert to the meaning of "public interest".
Pubic interest means anything affecting the rights, health, or finances of the public at large.
Public interest is a common concern among citizens in the management and affairs of local, state, and national government. It does not mean mere curiosity but is a broad term that refers to the body politic and the public weal. A public utility is regulated in the public interest because private individuals rely on such a company for vital services.
The meaning of "public interest" as per Collins Dictionary is as follows:
"The welfare or well-being of the general public."
Here in the present case, the consideration is 'private interest' not the 'public interest'. In any view of the matter, no public interest is involved in the present case, a sale deed, which is unregistered, was obtained by the petitioner, and he did not acquire any legally enforceable right against the State, but the petitioner can enforce his rights enumerated under Section 56 of the Transfer of Property Act against his vendors.
In "Sayyed Ali and Others vs AP Wakf Board, Hyderabad"
(referred supra) the Apex Court held as follows:
"Wakf is a permanent dedication property for purpose of recognized by Muslim law as pious, religious or charitable and the property having been found as Wakf would always retain its character as Wakf. Grant of patta in favour of Mokhasadar under the Inam Abolition Act does not, in any manner, nullify the earlier dedication made of the property constituting the same as Wakf."
In view of the law declared by the Apex Court in the said judgment, though patta is granted in favour of Inamdar, it is deemed MSM,J wp_17182_2019 39 to be a patta granted in favour of the temple. Consequently, the vendors of the petitioner are not entitled to alienate the property except to enjoy the same as long as they are rendering Bajantri Service.
By applying the principle laid down by the Apex Court in the said judgment to the present case, deity Sri Venkateswara Swamy varu is a perpetual minor and the State is under obligation to take care of the property of the temple as the patta is deemed to have been granted in favour of the temple. If such ordinance, which takes away the rights of the deity in the immovable property, is allowed to remain, it will have its serious consequences and it amounts to disowning the obligation of the State to protect the rights of the deity, which is perpetual minor. Thereafter, after expiry of Ordinance No.02 of 2019, the rights and obligations that accrued to any person stand effaced or obliterated since the ordinance itself is ceased to operate. The vendors of the petitioner can claim benefit of 'enduring rights theory', if they are rendering service in the temple, because they obtained patta under Inams Act. But the vendors are not the petitioners herein. Therefore, enduring rights theory propounded in the judgments referred above is not applicable to the case of the petitioner being a purchaser under unregistered sale deed. Hence, I find no substance in the contention raised before this Court to avail the benefit of the judgment in "Krishna Kumar Singh v. State of Bihar" (referred supra) based enduring rights theory and the same is rejected.
The petitioner sought a direction against respondent Nos.1 and 2 to de-notify the land from the prohibited list of properties notified under Section 22-A (1) (c) of the Registration Act. The subject MSM,J wp_17182_2019 40 property is notified by respondent No.7, and respondent No.7 alone is competent authority to de-notify the subject property on the application made through "Meeseva" by competent person. Hence, respondent Nos.1 and 2 are not competent to de-notify the subject property from the list of prohibited properties notified under Section 22-A (1) (c) of the Registration Act. Hence, the petitioner is not legally entitled to claim such relief against respondent Nos.1 and 2. On this ground also, the petition is liable to be dismissed.
In view of my foregoing discussion, the point No.2 is held against the petitioner and in favour of the respondents.
Before concluding the order, the findings recorded by me are summed-up, as follows:
(a) The petitioner being a purchaser under unregistered sale deed did not acquire any right or interest in the immovable property in view of Section 54 of the Transfer Property Act.
(b) The petitioner did not possess any existing right or interest, question of infringement or invasion, threatened infringement or invasion by the respondents does not arise, thereby the petitioner is not entitled to claim Writ of Mandamus.
(c) The petitioner did not make any demand by submitting appropriate application through Meeseva on payment of requisite fee/charges to de-notify the subject property from the list of prohibited properties notified under Section 22-A (1) (c) of the Registration Act.
MSM,J wp_17182_2019 41
(d) The petitioner is not entitled to take advantage of representation made by his vendors to respondent Nos.1 and 2 since the properties are notified under Section 22A (1) (c) of the Registration Act by the competent authority and no such application/representation is made to respondent No.7 strictly in compliance of the provisions of law.
(e) As the petitioner did not acquire any right being a purchaser under unregistered sale deed, the 'enduring rights theory' has no application and no grave public interest or constitutional necessity is involved in the present facts of the case. Consequently, the rights, if any, accrued on account of ordinance, which is ceased to subsist in terms of Article 213 (2) of the Constitution of India, such rights stand effaced and obliterated since no grave public interest or Constitutional necessity is involved in the present case.
In view of my aforesaid findings, I find no merit in the case of the petitioner. Consequently, the writ petition is liable to be dismissed.
In the result, the writ petition is dismissed. No costs. Consequently, miscellaneous applications pending if any, shall also stand dismissed.
_________________________________________ JUSTICE M. SATYANARAYANA MURTHY 09.07.2021 Ksp Note: L.R. Copy to be marked.
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