Andhra Pradesh High Court - Amravati
Smt. Velivela Sarojini vs The State Of Andhra Pradesh on 16 August, 2021
Author: M.Satyanarayana Murthy
Bench: M.Satyanarayana Murthy
THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY
WRIT PETITION No.8900 OF 2019
ORDER:
Smt. Velivela Sarojini w/o late Sri V. Purnachandra Rao, filed this writ petition under Article 226 of the Constitution of India questioning the action of Respondents 3 & 4 in altering the names in records of rights and mutating the names of Respondent Nos. 5 & 6 and issuing pattadar passbooks and title deeds in their favour with Khata Nos.906 and 918 in respect of land of following extent of land in Gudavalli Village, Vijayawada Rural Mandal, Krishna District.
S.No Sy.No Extent Village and Mandal
1 Ac.0-15 cents Sy.No.185-5A
2 Ac.1-17 cents Sy.No.185/4
3 Ac.0-22 cents Sy.No.191/4B Gudavalli Village,
Vijayawada Rural Mandal,
4 Ac.0-20 cents Sy.No.191/4A
Krishna District
5 Ac.0-86 cents Sy.No.191/3
6 Ac.0-85 cents Sy.No.191/2
7 Ac.0-09 cents Sy.No.191/1
The petitioner is the wife of Sri V. Purnachandra Rao. She is in possession and enjoyment of the land referred above situated in Gudavalli Village, Vijayawada Rural Mandal, Krishna District. The petitioner was blessed with only two daughters namely (1) Smt. Karlapudi Parvathi and (2) Kakarla Sivaleela. Husband of this petitioner V. Purnachandra Rao died intestate on 29.08.2017. The properties held by husband of the petitioner devolved upon the petitioner and her two daughters equally and thereby, 1/3rd share was prearranged to each person being Class-I heirs. Since then, the petitioner and her daughters are in possession and enjoyment MSM,J W.P.No.8900 of 2019 2 of the land held by late V. Purnachandra Rao, as on the date of his death.
As the matter stood thus, Respondent Nos. 3 & 4 mutated the name of Respondent No.5/Smt. Velivela Seshamamba in revenue record for the land in an extent of Ac.1-32 cents i.e. Ac.1- 17 cents in Sy.No.185/4 and Ac.0-15 cents in Sy.No.185/5A of Gudavalli Village. Similarly, Respondent Nos. 3 & 4 have mutated the name of Respondent No.6/Karlapudi Raja Ramamohana Rao in the revenue record for the land of an extent of Ac.2-22 cents i.e. Ac.0-22 cents in Sy.No.191/4B, Ac.0-20 cents in Sy.No.191/4A, Ac.0-86 cents in Sy.No.191/3, Ac.0-85 cents in Sy.No.191/2, Ac.0- 09 cents in Sy.No.191/1 of Gudavalli Village, Vijayawada Rural Mandal, Krishna District. It is contended by the petitioner that, Respondent No.5 is not related to her family; Respondent No.6 is the husband of elder daughter of the petitioner and he has no right to succeed the property of the petitioner‟s family.
It is contended that, Respondent Nos. 3 & 4 did not issue any notice to the petitioner and her daughters, while mutating the names of Respondent Nos. 5 & 6 in revenue records, though they are unrelated to the family. As per the provisions of Sub-section (3) of Section 5 of Andhra Pradesh Rights in Land and Pattadar Passbooks Act, 1971 (for short „the Act‟), the Mandal Revenue Officer shall before carrying out any amendments in the record of rights under Sub-section (1) has to issue a notice in writing to all persons whose names are entered in the record of rights and who are interested in or affected by the amendment. It is contended that, the Full Bench of High Court of Andhra Pradesh in Chinnam MSM,J W.P.No.8900 of 2019 3 Pandurangam v. Mandal Revenue Officer, Serilingampally Mandal1 held that, a duty is cast on the recording authority to issue notice in writing to all persons whose names are entered in the Record of Rights and who are interested in or affected by the proposed amendment. Therefore, amendment/altering the entries in Record of Rights and mutating the names of Respondent Nos. 5 & 6 in the revenue records and issuing pattadar passbooks in their favour is illegal, arbitrary and in violation of principles of natural justice and provisions of the Andhra Pradesh Rights in Land and Pattadar Pass Books Act, 1971.
It is contended that, aggrieved by the action of Respondent No.4, daughter of this petitioner - Smt. K. Siva Leela submitted an application to Respondent No.4, marking a copy to Respondent Nos. 2 & 3 on 05.02.2018 to cancel Patta Nos. 906 and 918 issued in favour of Respondent Nos. 5 & 6 and to restore the name of late V. Purnachandra Rao with Patta No.374 for the above lands. But, the respondents have not taken any action on the application dated 05.02.2018 and not even a reply was given.
It is further contended that, Smt. Kakarla Sivaleela filed a suit for partition of the Joint Family Property in O.S.No.304 of 2017 on the file of XIII Additional District Judge, Krishna at Vijayawada and the same is pending. In the said suit, Respondent No.5 filed a I.A.No.1058 of 2017 to implead her as defendant No.3 claiming that she is the wife of late V. Purnachandra Rao and late V. Purnachandra Rao executed a Will in her favour on 06.08.2015, bequeathing land in an extent of Ac.1-32 cents i.e. 1 AIR 2008 A.P. 15 MSM,J W.P.No.8900 of 2019 4 Ac.1-17 cents in Sy.No.185/4 and Ac.0-15 cents in Sy.No.185/5A. It is contended that, „Will‟ dated 06.08.2015 is rank forgery and fabricated document. The validity of the „Will‟ set-up by Respondent No.5 is questioned in O.S.No.304 of 2017. But, to the surprise, Respondent No.5 is claiming to be wife of late V. Purnachandra Rao, when the petitioner is alive, being the wife of late V. Purnachandra Rao.
It is contended that, Respondent No.4 ought to have issued notice before mutating entries in the revenue records, as mandated under Section 5(3) of the Act, read with Rules 16,18 and 19(1) of the Andhra Pradesh Rights in Land and Pattadar Pass Books Rules, 1989 (for short „the Rules‟). But, without following the procedure, the entries were changed mutating the names of Respondent Nos. 5 & 6, though the petitioner is the immediate effected party and interested in the property, being the wife of late V. Purnachandra Rao. Therefore, the action of Respondent Nos. 3 & 4 is illegal, arbitrary, violative of principles of natural justice and also provisions of the Andhra Pradesh Rights in Land and Pattadar Passbooks Act, 1971 and Rules framed therein, and also violative of Articles 14 & 300-A of the Constitution of India.
Respondent No.4/Tahsildar, Vijayawada Rural Mandal, Krishna District, filed counter affidavit, denying material allegations, inter alia, contending that, as per the village records, subject matter of the land is private patta land under different sale deeds. It is contended that, late V. Purnachandra Rao executed a „Registered Will‟ vide Document No.159/2015 dated 06.08.2015 MSM,J W.P.No.8900 of 2019 5 registered with Sub-Registrar, Kankipadu, bequeathing the properties to petitioner and Respondent Nos. 5 & 6.
It is contended that, land to an extent of Ac.2-22 cents consisting in Schedule-A‟ was bequeathed in favour of Respondent No.6. The petitioner - Smt. Sarojanamma, is the first wife of late V. Purnachandra Rao inherited Ac.0-30 cents in R.S.No.467/3, one building with first and second floors bearing D.Nos.12-51 and 12-52 with assessment Nos.1996 & 1997 of Poranki Gram Panchayat, creating life interest to petitioner and vested reminder to elder daughter.
Respondent No.5 - Smt. Velivela Seshamamba is the second wife of late V. Purnachandra Rao and her name was mutated in the revenue records for an extent of Ac.1-17 cents in R.S.No.185/4 and Ac.0-15 cents in R.S.No.185/5A, totalling to Ac.1-32 cents. After mutation of the names of Respondent Nos.5 & 6, no appeal was preferred against the order passed by Respondent Nos. 3 & 4 for issuing pattadar passbooks and title deeds to Respondent Nos. 5 & 6 within stipulated time. After demise of late V. Purnachandra Rao on 29.08.2017, Respondent Nos. 5 & 6 applied for issue of Pattadar Passbooks in Form-6A under Rule 18 of Rules and Section 4(1) of the Act, while enclosing „Registered Will‟ dated 06.08.2015 executed in their favour. Thereupon, Notice in Form-VIII was published in Gram Panchayat, Gudavalli on 02.11.2017 where the land is situated, calling objections, if any, from the interested persons. As, no objections have been received within fifteen (15) days and applicants i.e. Respondent Nos. 5 & 6 have succeeded the property under the testamentary dispossession MSM,J W.P.No.8900 of 2019 6 i.e. Will executed by late V. Purnachandra Rao, the names of Respondent Nos. 5 & 6 are mutated in the revenue records and Pattadar Passbooks and Title Deeds were issued in their favour vide Khata Nos. 906 & 918 respectively. It is pleaded that, the interested persons were given opportunity to file any objections before the Appellate Authority for cancellation of Pattadar Passbooks and Title Deeds and the petitioner without availing the opportunity has directly approached this Court by filing the present writ petition thereby not entitled to claim any relief.
Respondent Nos. 5 & 6 asserted that, Respondent No.4 mutated the names of Respondent Nos. 5 & 6 only after strict adherence of the procedure prescribed under the Act and Rules, issued Pattadar Passbooks and Title Deeds to Respondent Nos. 5 & 6 mutating their names in the revenue records, including Form-1B (ROR) Register.
Respondent Nos. 5 & 6 filed counter affidavit denying material allegations, inter alia, contending that, husband of the petitioner - late V. Purnachandra Rao own and possessed the land in different extents and executed „Registered Will‟ dated 06.08.2015 in favour of the petitioner and Respondent Nos. 5 & 6, the extent of land bequeathed, survey number, etc., of the property is tabulated hereunder:
S.No. Schedule in the Name of the Extent of land Survey No. Registered Will executee executed in Document his/her favour No.159/2015 dated 06.08.2015 1 A Karlapudi Raja Ac.2-22 cents 191/1 Rama Mohana Rao 191/2 191/3 191/4A 191/4B 2 B Velivela Ac.0-30 cents R.S.No.467/3 and one Sarojanamma building (two floors) in D.No.12-51 & 12-52 MSM,J W.P.No.8900 of 2019 7 3 C Velivela Ac.1-32 cents 185/4 Sehsamamba 185/5A 4 D Velivela Ac.1-34 cents 185/2 Sarojanamma 185/3 Respondent Nos. 5 & 6 admitted that, Smt. Karlapudi Parvathi and Smt. Kakarla Sivaleela are the daughters of the petitioner and late V. Purnachandra Rao. Respondent Nos. 5 & 6 specifically contended that, late V. Purnachandra Rao died making a testamentary dispossession i.e. Registered Will, bequeathing properties in favour of the Respondent Nos. 5 & 6, thereby, the question of succeeding the property by this petitioner and her daughters does not arise under intestate succession.
Respondent Nos. 5 & 6 contended that, this petitioner filed the present writ petition claiming right over the property, being the legal representative of late V. Purnachandra Rao. Respondent Nos. 5 & 6 specifically denied the allegation that, no notice was issued under Section 5(3) of the Act, to the petitioner being the interested person/ Class I Legal Heir of late V. Purnachandra Rao before altering the entries in Record of Rights, mutating the names of Respondent Nos. 5 & 6.
Respondent No. 5 specifically contended that, writ petitioner is her sister and first wife of late V. Purnachandra Rao. During his lifetime, late V. Purnachandra Rao married the petitioner in the year 1951 and with the consent of the petitioner and other family members, he married Respondent No.5. The relationship between Respondent No.5 and late V. Purnachandra Rao was never questioned by either the petitioner or other family members.
MSM,J W.P.No.8900 of 2019 8 Respondent No.5 narrated about the pending proceedings in O.S.No.304 of 2017 on the file of XIII Additional District Judge, Krishna at Vijayawada and filing of I.A.No.1058 of 2017 under Order XXXIX Rules 1 & 2 C.P.C, claiming temporary injunction. Respondent No.5 addressed a letter to the Director General of Police on 06.11.2016 apprehending danger to her life, but they are not relevant for deciding the real controversy in the writ petition.
The main contention of Respondent Nos. 5 & 6 is that, Respondent Nos. 5 & 6 succeeded the property under testamentary dispossession. According to Rule 4(1) of the Rules, Any person acquiring by succession, survivorship, inheritance, partition, Government patta, decree of a Court or otherwise any right as owner, pattadar, mortgagee, occupant or tenant of a land and any person acquiring any right as occupant of a land by any other method shall intimate in writing his acquisition of such right, to the Mandal Revenue Officer within ninety days from the date of such acquisition, and the said Mandal Revenue Officer shall give or send a written acknowledgement of the receipt of such intimation to the person making it, provided that, where the person acquiring the right is a minor or otherwise disqualified, his guardian or other persons having charge of his property shall intimate the fact of such acquisition to the Mandal Revenue Officer.
It is contended that, as the said provision imposes duty on the person who acquired title or ownership to intimate about acquisition of right or ownership to the Mandal Revenue Officer within ninety days from the date of acquisition, as such, Respondent Nos. 5 & 6 intimated the same, submitting an MSM,J W.P.No.8900 of 2019 9 application to the Mandal Revenue Officer and after following necessary procedure, issued notices and made entries in the revenue records, including Form-1B (ROR) Register and Pattadar Passbooks and Title Deeds were issued in favour of Respondent Nos.5 & 6. Thus, Respondent Nos. 3 & 4 strictly adhered to the Rules and in strict compliance of the procedure prescribed under the Act and Rules, mutated the names of Respondent Nos. 5 & 6 and issued Pattadar Passbooks and Title Deeds in their favour and requested to dismiss the writ petition.
Respondent Nos. 5 & 6 filed additional counter affidavit, with the permission of this Court, alleging that, Smt. Kakarla Sivaleela submitted a representation and no action was taken in W.P.No.36592 of 2017 on the file of High Court of Judicature at Hyderabad filed on 31.10.2017 and addressed a letter to Revenue Divisional Officer to the Principal Senior Civil Judge, Vijayawada dated 31.01.2018 and pendency of L.A.O.P.No.4 of 2018 before the Principal Senior Civil Judge, Vijayawada.
The petitioner filed rejoinder to the additional counter affidavit, reiterating the contentions, while denying the allegations made in the counter affidavit filed by Respondent Nos. 5 & 6.
During hearing, Sri D. Krishna Murthy, learned counsel for the petitioner mainly contended that, when the suit O.S.No.304 of 2017 is pending on the file XIII Additional District Judge, Krishna at Vijayawada, mutation of the names of Respondent Nos. 5 & 6 in the revenue records and issuing Pattadar Passbooks and Title Deeds in their favour, more particularly, when the „Will‟ itself is under challenge in the said suit pending before XIII Additional MSM,J W.P.No.8900 of 2019 10 District Judge, Krishna at Vijayawada, allegedly executed by late V. Purnachandra Rao during his lifetime, bequeathing part of the property in favour of Respondent Nos. 5 & 6 is a serious illegality in view of Section 8(2) of the Act.
The main grievance of this petitioner before this Court is that, the procedure contemplated under Section 5(1) & (3) thereto read with Rules 16, 17 & 18 are not followed by Respondent Nos. 3 & 4 while mutating the names of Respondent Nos. 5 & 6 in the revenue records and issued Pattadar Passbooks and Title Deeds in their favour. Failure to comply with the procedure contemplated under Section 5 (1) & (3) of the Act and provisos thereto amounts to violation of principles of natural justice. On this ground alone, the petitioner sought to set-aside the order impugned in this writ petition.
Whereas, learned counsel Sri G. Venkateswara Rao representing Sri Somu Krishna Murthy, learned counsel appearing for Respondent Nos. 5 & 6 vehemently contended that, Respondent Nos. 3 & 4 strictly adhered to the prescribed procedure for mutation of the names of Respondent Nos. 5 & 6 in the revenue records and issued Pattadar Passbooks and Title Deeds. Copies of the documents filed along with the counter affidavit of Respondent No.4 are suffice to establish the procedural compliance, as mandated under Section 5 of the Act and Rules 16, 17 & 19 of the Rules, thereby, there is absolutely no merit in the allegation that, Respondent Nos. 3 & 4 violated the procedure prescribed under the Act and Rules.
MSM,J W.P.No.8900 of 2019 11 In addition to that, in compliance of Rule 19(1) of the Rules, the proposed amendment in Form-VIII is published in Gudavalli Village, calling for objections within fifteen days. Since, no objections were received from anyone, pattadar passbooks and title deeds were issued in favour of Respondent Nos. 5 & 6, mutating their names in the revenue records and the petitioner also participated in the enquiry conducted by Respondent Nos. 3 & 4, thereby, the petitioner now cannot agitate the same before this Court.
Yet, another contention of the learned counsel appearing for Respondent Nos. 5 & 6 is that, a remedy by way of appeal is available against the order passed by Respondent No.4/Tahsildar under Section 5(5) of the Act, ordering mutation of Respondent Nos. 5 & 6. But, no appeal is preferred and without exhausting the statutory remedy, the petitioner approached this Court with unclean hands and suppressed several facts, thereby, the petitioner is not entitled to claim relief of writ of mandamus.
Learned counsel Sri G. Venkateswara Rao, representing learned counsel Sri Somu Krishna Murthy appearing for Respondent Nos. 5 & 6 vehemently contended that, to claim writ of mandamus, the petitioner must show the existing legally enforceable statutory or constitutional right and its infringement or invasion and in the absence of existing legally enforceable right, the petitioner is disentitled to claim writ of mandamus and requested to dismiss the writ petition filed by this writ petitioner.
Learned Assistant Government Pleader for Revenue supported the action of Respondent No.4 in toto and relied on the MSM,J W.P.No.8900 of 2019 12 notice published in Form-VIII in compliance of Rule 19(1) of the Rules. He submitted that the entire procedure prescribed under the provisions of the Act and Rules made thereunder, is strictly complied and only after procedural compliance, the entries were altered in the revenue records and issued Pattadar Passbooks and Title Deeds in favour of Respondent Nos. 5 & 6 and requested to dismiss the writ petition.
Considering rival contentions, perusing the material available on record, the points that arise for consideration are as follows:
1) Whether the petitioner is having any legally enforceable right under any statute or the constitution? Whether such right is infringed or invaded by the respondents. If so, whether the petitioner is entitled to claim writ of mandamus?
2) Whether Respondent No.4 followed the procedure prescribed under Section 5 of the Act, Rules 5(3) and 16, 17, 18 and 19(1) of the Rules framed under the Act. If so, whether the order of Respondent No.4 mutating the names of Respondent Nos. 5 & 6 being the legatees under the 'Will' and issue of Pattadar Passbooks and Title Deeds in their favour, be sustained?
P O I N T No.1 The petitioner is the wife of late V. Purnachandra Rao whose marriage was performed in the year 1951. This fact is not disputed by Respondent No.5 and on the other hand, Respondent No.5 admitted that the petitioner is her younger sister and Respondent No.5 married V. Purnachandra Rao in the year 1960 during subsistence of the marriage of V. Purnachandra Rao with the MSM,J W.P.No.8900 of 2019 13 petitioner. Therefore, this admission in the counter affidavit filed by Respondent No.5 is suffice to accept that the petitioner is the wife of V. Purnachandra Rao, whose marriage was performed in the year 1951. Whereas, Respondent No.5 is claiming to be the second wife of V. Purnachandra Rao, married V. Purnachandra Rao during the subsistence of marriage between V. Purnachandra Rao and petitioner. The validity and legality of the alleged marriage of Respondent No.5 with V. Purnachandra Rao cannot be decided in the present writ petition, as it is a subject matter of civil suit pending before the competent civil court in O.S.No.304 of 2017 pending on the file of XIII Additional District Judge, Krishna at Vijayawada.
In view of the clear admission made by Respondent Nos. 4,5 & 6 that this petitioner is the wife of deceased V. Purnachandra Rao, the petitioner and her daughters being the Class-I heirs of the deceased V. Purnachandra Rao are entitled to equal share in the estate of V. Purnachandra Rao by way of intestate succession. Therefore, the petitioner being the wife, allegedly succeeded the right in the estate of deceased V. Purnachandra Rao. Intestate death of V. Purnachandra Rao is in dispute, since Respondent Nos. 4,5 & 6 asserted that, V. Purnachandra Rao executed a Registered „Will‟ dated 06.08.2015 bequeathing part of the property in favour of Respondent Nos. 5 & 6. Again the validity and genuineness of the „Registered Will‟ is the subject matter of the suit and this Court cannot decide such a disputed question of fact while exercising jurisdiction under Article 226 of the Constitution of India.
MSM,J W.P.No.8900 of 2019 14 In any view of the matter, the petitioner being the wife of V. Purnachandra Rao is entitled to claim share in the property and she is the person interested in the property of V. Purnachandra Rao. Therefore, the petitioner is entitled to claim share in the estate of V. Purnachandra Rao, being the Class-I Legal Heir under the Hindu Succession Act, along with her daughters. Hence, the petitioner is having a legally enforceable and statutory right in the property of deceased V. Purnachandra Rao and also entitled to receive notice, being the person interested in the estate of late V. Purnachandra Rao, while amending or altering the entries in the revenue records relating to the subject property, which belonged to V. Purnachandra Rao. Therefore, a notice under Section (3) of the Act is to be issued mandatorily to the petitioner and her daughters being the persons interested, when an application under Section 4(1) of the Act was submitted by Respondent Nos. 5 & 6 to Respondent No.4 for mutating their names in the revenue records and to issue pattadar passbooks and title deeds in their favour.
The jurisdiction of Court under Article 226 of Constitution of India is limited and such power can be exercised only certain circumstances which are enumerated in "West Bengal Central School Service Commission v. Abdul Halim2" wherein the Apex Court reiterated the following principles of judicial review.
"It is well settled that the High Court in exercise of jurisdiction Under Article 226 of the Constitution of India does not sit in appeal over an administrative decision. The Court might only examine the decision making process to ascertain whether there was such infirmity in the decision making process, which vitiates the decision and calls for intervention Under Article 226 of the Constitution of India.2
2019 (9) SCALE 573 MSM,J W.P.No.8900 of 2019 15 In any case, the High Court exercises its extraordinary jurisdiction Under Article 226 of the Constitution of India to enforce a fundamental right or some other legal right or the performance of some legal duty. To pass orders in a writ petition, the High Court would necessarily have to address to itself the question of whether there has been breach of any fundamental or legal right of the Petitioner, or whether there has been lapse in performance by the Respondents of a legal duty.
The High Court in exercise of its power to issue writs, directions or orders to any person or authority to correct quasi-judicial or even administrative decisions for enforcement of a fundamental or legal right is obliged to prevent abuse of power and neglect of duty by public authorities.
In exercise of its power of judicial review, the Court is to see whether the decision impugned is vitiated by an apparent error of law. The test to determine whether a decision is vitiated by error apparent on the face of the record is whether the error is self-evident on the face of the record or whether the error requires examination or argument to establish it. If an error has to be established by a process of reasoning, on points where there may reasonably be two opinions, it cannot be said to be an error on the face of the record, as held by this Court in Satyanarayan v. Mallikarjuna reported in AIR 1960 SC 137. If the provision of a statutory Rule is reasonably capable of two or more constructions and one construction has been adopted, the decision would not be open to interference by the writ Court. It is only an obvious misinterpretation of a relevant statutory provision, or ignorance or disregard thereof, or a decision founded on reasons which are clearly wrong in law, which can be corrected by the writ Court by issuance of writ of Certiorari.
The sweep of power Under Article 226 may be wide enough to quash unreasonable orders. If a decision is so arbitrary and capricious that no reasonable person could have ever arrived at it, the same is liable to be struck down by a writ Court. If the decision cannot rationally be supported by the materials on record, the same may be regarded as perverse.
However, the power of the Court to examine the reasonableness of an order of the authorities does not enable the Court to look into the sufficiency of the grounds in support of a decision to examine the merits of the decision, sitting as if in appeal over the decision. The test is not what the Court considers reasonable or unreasonable but a decision which the Court thinks that no reasonable person could have taken, which has led to manifest injustice. The writ Court does not interfere, because a decision is not perfect."
MSM,J W.P.No.8900 of 2019 16 Yet issuance of Writ of Mandamus is purely discretionary and the same cannot be issued as a matter of course.
The petitioner also claimed consequential relief of Writ of Mandamus, but such relief cannot be granted as a matter of course as held in "State of Kerala v. A.Lakshmi Kutty3", 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.4", the Allahabad High Court has held that certain conditions have to be satisfied before a writ of mandamus is issued. The petitioner for a 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.
3 1986 (4) SCC 632 4 1995 All.L.J. 534 MSM,J W.P.No.8900 of 2019 17 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.
In "State of U.P. and Ors. v. Harish Chandra and Ors.5"
the Apex 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."
In "Union of India v. S.B. Vohra6" the Supreme Court considered the said issue and 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 Jain7" the Supreme Court held thus:
"The principles on which a writ of mandamus can be issued have been stated as under 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 5 (1996) 9 SCC 309 6 (2004) 2 SCC 150 7 (2008) 2 SCC 280 MSM,J W.P.No.8900 of 2019 18 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 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."
When a Writ of Mandamus can be issued, has been summarised in Corpus Juris Secundum, as follows:
"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 MSM,J W.P.No.8900 of 2019 19 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, 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 view of the law declared in the above judgments, Writ of Mandamus is purely discretionary in nature. Apart from that, there must be a legally subsisting right, either statutory or constitutional, infraction or infringement or invasion by any of the respondents. In the absence of legally enforceable statutory and constitutional, infraction or infringement or invasion of such right by any of the respondents, the petitioner is not entitled to claim writ of mandamus.
As discussed above, in the present facts of the case, the petitioner being the wife of V. Purnachandra Rao is entitled to succeed the estate of deceased V. Purnachandra Rao, in case of intestate death and entitled to receive a notice being the person interested, being the wife of V. Purnachandra Rao whenever an application under Section 4(1) of the Act, is submitted by any third party in terms of Section 5(1) and (3) of the Act. Thus, the petitioner established existence of legally enforceable right under the statute, as a notice under Section 5(3) is mandatory to her, being a person interested in the estate of deceased V. Purnachandra Rao. Therefore, the contention of the respondents MSM,J W.P.No.8900 of 2019 20 that the petitioner has no existing legally enforceable right under the statute or constitution, infraction or infringement or invasion by any of the respondents, is without any merit and the same is hereby rejected, while holding that the petitioner is entitled to claim writ of mandamus, as she is successful in establishing her existing legally enforceable statutory right and its infraction, infringement or invasion and its violation by any of the respondents, thereby she is entitled to claim mandamus.
Accordingly, the point is answered against Respondent Nos. 5 & 6 and in favour of this petitioner.
P O I N T No.2 The major contention of the petitioner before this Court is that, no notice under Section 5(3) of the Act and proviso thereto is issued to this petitioner before amending or altering the entries in the revenue records on the application made by Respondent Nos. 5 & 6 to mutate their names in compliance of Section 4(1) of the Act and to issue Pattadar Passbooks and Title Deeds in their favour.
Whereas, Respondent No.4/Tahsildar contended that, only after procedural compliance, as mandated under the provisions of the Act and Rules framed thereunder, entries were altered or amended in the revenue records, mutating the names of Respondent Nos. 5 & 6 and issued notice in Form-VIII on 02.11.2017 in compliance of Rule 19(1) of the Rules, calling for objections within 15 days and since no objections were received by 17.11.2017, Respondent No.4/Tahsildar altered the entries in the revenue records, mutating the names of Respondent Nos. 5 & 6 MSM,J W.P.No.8900 of 2019 21 and issued Pattadar Passbooks and Title Deeds in their favour for the land bequeathed in their favour by V. Purnachandra Rao during his lifetime under Registered Will dated 06.08.2015.
The Revenue Authorities who possessed limited jurisdiction, cannot record a fact finding as to the genuineness and validity of the Will executed by late V. Purnachandra Rao, more particularly, when it is a subject matter of civil suit pending before a competent civil court in O.S.No.304 of 2017 on the file of XIII Additional District Judge, Krishna at Vijayawada. Therefore, the findings if any, recorded by Respondent No.4 while mutating the names of Respondent Nos. 5 & 6 regarding validity or genuineness or Will allegedly executed by V. Purnachandra Rao during his lifetime is non est in the eye of law and without any jurisdiction and said findings is beyond the scope of enquiry under Section 5 of the Act and Rules framed thereunder. Therefore, the finding regarding validity and genuineness of the „Will‟ recorded by Respondent No.4/Tahsildar in the order, is hereby set-aside, leaving it open to the petitioner and Respondent Nos. 5 & 6 to agitate the same in pending civil suit.
The main grievance of the petitioner as stated above and assertion made by Respondent Nos. 4, 5 & 6 about compliance of the mandatory provisions of the Act and Rules, it is necessary for this Court to examine whether the procedure contemplated under Section 5(3) is strictly complied or not. If, the Court concludes that the procedure contemplated under Section 5(3) of the Act is not complied with, the order of Respondent No.4, ordering mutation of Respondent Nos. 5 & 6 is liable to be set-aside.
MSM,J W.P.No.8900 of 2019 22 Respondent Nos. 5 & 6, on the basis of the „Will‟ allegedly executed by late V. Purnachandra Rao in their favour invoking Section 4(1) of the Act, gave an intimation to the recording authorities i.e. Tahsildar/Respondent No.4 about acquiring right in the property as per Section 4 of the Act.
Section 5 deals with the procedure to be followed for amendment and updating of record of rights. According to it, on receipt of intimation of the fact of acquisition of any right referred to in Section 4, the Mandal Revenue Officer i.e. the recording authority shall determine as to whether, and if so in what manner, the record of rights may be amended in consequence therefor and shall carryout the amendment in the record of rights in accordance with such determination.
At the same time, statutory duty is imposed on the Tahsildar to issue notice and publication of notice along with proposed amendment to the record of right in Form VIII. Therefore, it is appropriate to extract Sub-section (3) of Section 5, and it reads as follows:
"The Mandal Revenue Officer shall, before carrying out any amendment in the record of rights under sub-section (1) or sub- section (2) issue a notice in writing to all persons whose names are entered in the record of rights and who are interested in or affected by the amendment and to any other persons whom he has reason to believe to be interested therein or affected thereby to show cause within the period specified therein as to why the amendment should not be carried out. A copy of the amendment and the notice aforesaid shall also be published in such manner as may be prescribed. The Mandal Revenue Officer shall consider every objection made in that behalf and after making such enquiry as may be prescribed pass such order in relation thereto as he deems fit."
MSM,J W.P.No.8900 of 2019 23 Sub-Section (3) of Section 5 consists of two limbs. The first limb mandates issue of notice in writing to all persons whose names are entered in the record of rights and who are interested, before carrying out the amendment and the second limb mandates publication of amendment and issue of notice in such manner as prescribed. Therefore, Tahsildar/Respondent No.4 before issuing Pattadar Passbooks and Title Deeds and mutating entries in the revenue records, shall comply with Sub-section (3) of Section 5 of the Act. The manner as to how the notice is to be issued and published is prescribed under Rule 19(1) & (2) of the Rules and it reads as follows:
(1) The notice referred to in sub-section (3) of Section 5 of the Act shall be in Form VIII generated electronically. A copy of the draft amendment to From I-B, generated electronically, as per the intimation received shall be enclosed to the notice. While preparing the draft amendment to From I-B, the Procedure for notation of new sub-divisions notionally given in Para 15 of BSO-34A, extracted along with illustration in the Annexure, shall be followed.
(2) Such notice together with a copy of the amendment shall also be published in the manner specified in Clauses (a) to (e) of sub-rule (2) of Rule 5.
Form-VIII is prescribed as model notification for issue of notice to all interested or affected persons, as prescribed under the second limb of Section 5(3) of the Act and Rule 19(1) of the Rules and it reads as follows:
Form VIII (See Rule 19(1)) Notice Whereas the undersigned has received an intimation of the fact of acquisition of a right as described in the schedule hereunder and it appears that an amendment has to be made in the Record of Rights in consequence thereof ...................
and/or Whereas the Recording Authority has reason to believe that an acquisition of a right has taken place as described in the schedule hereunder and it appears that amendment has to be made in the Record of Rights in consequence thereof.
Now, therefore, under sub-section (3) of Section 5 of Andhra Pradesh [Rights in Land] and Pattadar Pass Book Act, 1971.
All persons interested or affected are hereby required to show cause on or before .................. (date to be specified not being earlier than 30 days from the service/publication of the notice) as to why the amendment should not be carried out.
MSM,J W.P.No.8900 of 2019 24 You.................... ..................... ............................. All persons interested or affected are hereby required to appear on or before the undersigned on .................... (date not earlier than forty five days from the service/publication of the notice) as ....................... (Place) .......................... time in connection with the enquiry proposed to be held in respect of the above matter.
Recording Authority
Schedule
S.No. etc., of Brief purport
the entry of proposed
relating to amendment
which is
sought to be
amended
Based on the above, Respondent Nos.4,5 & 6 vehemently contended that, a Notice in Form VIII was published and a copy of the notice is placed on record by Respondent No.4 to establish about substantial compliance of Section 5(3) of the Act, Rule 19 (1) & (2) read with Rule 5(2) (a) to (e) of the Rules. The Settlement Adangal bearing Account No.64 discloses the original owner‟s name, in adangal copies pattadar and enjoyer‟s name was recorded in Column No.12 & 13 as late Velivela Purnachandra Rao s/o Kotaiah, relating to Gudavalli Village for an extent of Ac.1-17 cents in Sy.No.185-4 and for an extent of Ac.0-15 cents in Sy.No.185-5A. Similarly, the documents pertaining to Sy.Nos.191-1, 191-2, 191-3, 191-4A and 191-4B are also placed on record to show that name of the pattadar and enjoyer‟s name was recorded as late V. Purnachandra Rao s/o Kotaiah. Recording the name of late V. Purnachandra Rao, husband of the petitioner in the revenue records is not disputed by either of the parties. Along with the above documents, a copy of notice in Form VIII issued in compliance of Rule 19(1) of the Rules read with Section 5(3) of the Act is placed on record to substantiate that the notice was issued under Section 5(3) of the Act read with Rule 19(1) of the Rules.
MSM,J W.P.No.8900 of 2019 25 Publication of notice in Form VIII is sufficient compliance of second limb of Sub-section (3) of Section 5 of the Act, but no piece of evidence is placed on record to prove substantial compliance of first limb of Sub-section (3) of Section 5 i.e. issue of notice to interested and affected persons before carrying out amendment, in such manner prescribed. Thus, failure to issue notice to the persons interested or effected whose names are recorded in the record of rights, as mandated in Section 5(3) of the Act, is a clear violation of the mandatory procedure prescribed under Sub-section (3) of Section 5 of the Act.
Yet, regularity in issue of notice in Form VIII is also to be examined, as Form VIII is placed on record to establish substantial compliance of Rule 19(1) of the Rules and second limb of Sub- section (3) of Section 5 of the Act.
Sub-section (3) of Section 5 of the Act and Rule 19(1) & (2) of the Rules are extracted in earlier paragraphs. In view of Sub-rule (2) of Rule 19, it is for the recording authorities to publish the notice along with amendment in the manner specified in Clause (a) to (e) of Sub-Rule (2) of Rule 5 of the Rules. At this stage, it is apposite to extract Rule 5(2) (a) to (e) of the Rules and it reads as follows:
(2) The notice referred to in sub-rule (1) shall be Form II and shall be published in the District Gazette of the District in which the village is situate and also in the following manner namely-
(a) by affixture in the chavidi or if there is no chavidi, in any other conspicuous place in the village;
(b) by affixture on the notice boards of the Gram Panchayat Office, Primary Co-operative Agricultural Credit Society or School, if any, in the village;
(c) by beat of tom tom in the village;
MSM,J W.P.No.8900 of 2019 26
(d) by affixture on the notice board of the office of the Mandal Revenue Officer having jurisdiction over the village; and
(e) by affixture on the notice board of the office of the Mandal Praja Parishad in which the village is situated. Though, Sub-rule (2) of Rule 5 deals with mode of publication of notice, as required in Form II of Sub-rule (2) of Rule 5, read with Rule 19(1), when a notice referred to in sub- section (3) of Section 5 in Form VIII along with draft amendment to Form 1-B (ROR) is generated electronically, such notice is to be published in all modes specified in Rule 5(2) (a) to (e) of the Rules. In the present facts of the case, there is absolutely no material about compliance of Rule 19(2) read with Rule 5(2) (a) to (e), except issuing a Notice dated 02.11.2017 in Form VIII under Rule 19(1) of the Rules. Thus, Respondent No.4 failed to comply with the procedure prescribed under Rule 19(2) read with Rule 5(2) (a) to (e) of the Rules and Section 5(3) of the Act, on account of failure of substantial compliance of the provisions of the Act and Rules framed thereunder, the order of Respondent No.4 is liable to be set-aside.
Similar issue came up before High Court of Andhra Pradesh in Chinnam Pandurangam v. Mandal Revenue Officer, Serilingampally Mandal (referred supra), where the Court held as follows:
"The above analysis of the relevant statutory provisions shows that proviso to Section 5(1) and Section 5(3) represent statutory embodiment of the most important facet of the rules of natural justice i.e. audi alterem partem. These provisions contemplate issue of notice to the persons likely to be affected by the action/decision of the Mandal Revenue Officer to carry out or not to carry out amendment in the Record of Rights. Proviso to Section 5(1) lays down that if the Mandal Revenue Officer decides not to make an amendment in the Record of Rights, then he shall pass appropriate order only after giving an opportunity of making representation to the person, who gives intimation regarding acquisition of any right referred to in Section 4. Section 5(3) provides for issue of written MSM,J W.P.No.8900 of 2019 27 notice to all persons whose names are entered in the Record of Rights and who are interested in or affected by the amendment. Similarly, a notice is required to be issued to any other person whom the recording authority has reason to believe to be interested in or affected by the amendment. A copy of the amendment and the notice is also required to be published in the prescribed manner. The publication of notice in the prescribed manner is in addition to the notice, which is required to be given in writing to all persons whose names are entered in the Record of Rights and who are interested in or affected by the amendment and also to any other person whom the recording authority has reason to believe to be interested in or affected by the amendment. To put it differently, the publication of a copy of the amendment and the notice is only supplemental and not the alternative mode of giving notice to the persons whose names are entered in the Record of Rights and who are interested in or affected by the amendment and to any other person to whom the recording authority has reason to believe to be interested in or affected by the amendment. If the Legislature thought that publication of a general notice in Form-VIII will be sufficient compliance of the rules of natural justice, then there was no occasion to incorporate a specific requirement of issuing written notice to the persons whose names are entered in the Record of Rights and who are interested in or affected by the amendment and also to other person whom the recording authority has reason to believe to be interested in or affected by the amendment. In our considered view, the requirement of issuing written notice to the persons whose names are entered in the Record of Rights and who are interested in or affected by the amendment and also to any other person whom the recording authority thinks to be interested in or affected by the amendment clearly negates the argument that publication of notice in Form-VIII is sufficient."
In view of the law declared by the Full Bench of Andhra Pradesh High Court in the judgment referred supra, the order passed by Respondent No.4/Tahsildar to mutate the names of Respondent Nos. 5 & 6, based on the Will dated 06.08.2015, allegedly executed by late V. Purnachandra Rao during his lifetime is liable to be set-aside, for non-compliance of mandatory procedure and violation of principles of natural justice, as principles of natural justice is embedded in Section 5(3) of the Act read with Rule 19(1) and (2) of the Rules.
The law declared by the Courts in the judgments referred supra, interference of this Court with the act of Respondent No.4/Tahsildar to mutate the name of Respondent Nos. 5 & 6 and issue of Pattadar Passbooks and Title Deeds in their favour is warranted and accordingly, the act of Respondent No.4 in mutation MSM,J W.P.No.8900 of 2019 28 of the names of Respondent Nos. 5 & 6, issue of Pattadar Passbooks and Title Deeds in their favour is declared as illegal, arbitrary and violative of mandatory procedure prescribed under Section 5(3) of the Act read with Rule 19(1) & (2) and Rule 5(2) (a) to (e) of the Rules framed under the Act. On this ground alone, the order of Respondent No.4/Tahsildar is liable to be set-aside.
One of the contentions raised by learned counsel for the petitioner is that, when O.S.No.304 of 2017 on the file of XIII Additional District Judge, Krishna at Vijayawada is pending for partition and Respondent No.5 came on record on her own accord, set-up a „Will‟ claiming right under the „Will‟, allegedly executed by late V. Purnachandra Rao during his lifetime, bequeathing property in her favour, and such issue is sub judice, Respondent No.4/Tahsildar cannot mutate the names of Respondent Nos. 5 & 6 and issue Pattadar Passbooks and Title Deeds in their favour. Learned counsel for the petitioner drawn attention of this Court to Section 8(2) of the Act.
Section 8 of the Act, deals with Bar of Suits. According to Section 8(2) of the Act, if any person is aggrieved as to any rights of which he is in possession by an entry made in any record of rights he may institute a suit against any person denying or interested to deny his title to such right for declaration of his right under Chapter VI of the Specific Relief Act, 1963 (Central Act 47 of 1963) and the entry in the record of rights shall be amended in accordance with any such declaration.
Thus, Sub-section (2) of Section 8 of the Act recognises the rights of the person in possession of entries made in their favour in MSM,J W.P.No.8900 of 2019 29 record of rights and provides remedy wherever his title to such right is denied or infringed. Section 8(2) in no manner deals with acquisition of title by purchase of land through deeds on plain paper. But, here, the petitioner is claiming a right under the „Will‟ which falls within the meaning of acquisition of property under Section 4 of the Act, whereas, the petitioner is claiming right along with her two daughters exclusively in the property. In such case, more particularly, when the right of one party is denied by other party, who is aggrieved by amendment to the entries in the revenue record, shall file a suit for declaration. But, Section 8(2) is not applicable to the present facts of the case, since, no suit is filed for declaration, aggrieved by an order of mutation of the names of Respondent Nos. 5 & 6 by Respondent No.4, but it is a suit for partition filed by one of the daughter of the petitioner, pending for trial on the file of O.S.No.304 of 2017 on the file of XIII Additional District Judge, Krishna at Vijayawada. The remedy under Section 8(2) is available to person aggrieved by the amendment of entries in the revenue records. Therefore, there is absolutely no bar to exercise power by Respondent No.4/Tahsildar under Section 4 to mutate the names of Respondent Nos. 5 & 6 based on the „Will‟. Mere pendency of a suit for partition in O.S.No.304 of 2017 is not sufficient to deline exercise of power by Respondent No.4/Tahsildar. Initially Respondent Nos. 5 & 6 were not parties to the suit, but, Respondent No.5 herself came on record as party by filing I.A.No.1058 of 2017 and thus, by the date of mutation of the names and publication of notice in Form VIII dated 02.11.2017, the suit against Respondent Nos. 5 & 6 is deemed to be not pending, as Respondent Nos. 5 & 6 were not impleaded as parties.
MSM,J W.P.No.8900 of 2019 30 Hence, I find no substance in the contention of the learned counsel for the petitioner and the same is hereby rejected.
One of the contentions raised by learned counsel appearing for Respondent Nos. 5 & 6 is that, an appeal against an order of mutation is available under Section 5(5) of the Act. But, without availing the remedy of statutory appeal, the petitioner approached this Court, thereby the writ petition is not maintainable.
Undoubtedly, the Court normally will not entertain a writ petition under Article 226 of the Constitution of India when the petitioner did not avail an alternative statutory remedy of appeal. But, when the Court finds that the procedure is not followed or principles of natural justice is violated while passing an order, this Court can exercise power under Article 226 of the Constitution of India and failure to avail the remedy of statutory appeal is not a ground. Hence, the contention of learned counsel appearing for Respondent Nos. 5 & 6 is not sustainable and the same is hereby rejected.
In any view of the matter, in view of my foregoing discussion and in view of the law laid down by the Full Bench of High Court of Andhra Pradesh in the judgment referred supra, I find that the action of Respondent No.4/Tahsildar in mutating the names of Respondent Nos. 5 & 6 and issuing of Pattadar Passbooks and Title Deeds in their favour, without issuing notice to the person, being affected or interested person i.e. the petitioner herein and without complying the mandatory procedure prescribed under Section 5(3) of the Act and Rule 19(1) & (2) and Rule 5(2) (a) to (e) is illegal, arbitrary and violative of principles of natural justice.
MSM,J W.P.No.8900 of 2019 31 In the result, writ petition is allowed, directing Respondent No.4/Tahsildar to pass order afresh on the application of the Respondent Nos. 5 & 6 strictly following the mandatory procedure prescribed under the Act and Rules referred above,, affording an opportunity to the petitioner and all other persons who are interested in the property. No costs.
Consequently, miscellaneous applications pending if any, shall stand closed.
_________________________________________ JUSTICE M. SATYANARAYANA MURTHY Date:16.08.2021 SP