Andhra Pradesh High Court - Amravati
Smt.Cherukuri Sridevi vs The State Of Andhra Pradesh on 22 December, 2019
Author: M. Satyanarayana Murthy
Bench: M. Satyanarayana Murthy
THE HON'BLE SRI JUSTICE M. SATYANARAYANA MURTHY
Writ Petition No.18684 of 2019
ORDER:
1. This writ petition under Article 226 of Constitution of India is filed, challenging the inaction of 5th respondent in initiating any action to evict respondent Nos.6 to 10 by demolishing structures raised by respondent Nos.8 and 10, also pakka houses constructed by respondent Nos.7 and 9, by encroaching and occupying Chebrole to Devulapalli road, Nallampadu Gram Panchayat, Ungutur Mandal, West Godavari District, though proceedings issued by 4th respondent vide letter No.AE/Encroachments/2019 dated 16.10.2019, declare the same as illegal and arbitrary, consequently direct respondent Nos.3 to 5 to evict respondent Nos.6 to 10 by demolishing the structures constructed by respondent Nos.8 and 10 and also pakka houses constructed by respondent Nos.7 and 9.
2. The petitioner is residing in D.No.1-12 of Nallampadu village, Ungutur Mandal, West Godavari District, he is absolute owner and possessor of land of an extent of Ac.0.80 cents in Sy.No.337/1, Nallampadu village, Ungutur Mandal, West Godavari District. As respondent Nos.8 and 10 raised structures and respondent Nos.7 and 9 raised pakka houses on the road margin, encroaching the road, petitioner made a representation to the concerned Tahsildar/3rd respondent for demarcation of the property of an extent of Ac.0.80 cents situated in Sy.No.337/1. Thereupon, Mandal Revenue Inspector and Village Revenue Officer, Gollagudem, visited the property, conducted survey, came to know that the land is situated adjacent to Chebrole- Devulapalli, Ungutur Mandal (West Godavari District) road and they also came to know that an extent of Ac.0.11 cents on the eastern side of R&B 2 MSM, J wp_18684_ 2019 road has been encroached by respondent Nos.6 to 10. 3rd respondent herein addressed a letter vide proceedings in LDS No.475/2019 (c) dated 01.10.2019 to 4th respondent to take necessary action against the persons who raised constructions by encroaching the road margins, but no action has been taken. Therefore, the petitioner seeks the relief as stated above.
3. The learned Counsel for the petitioner reiterated the contention, while drawing the attention of the Court to several proceedings issued by 4th respondent and others and also drawn the attention of this Court to sale deed, to show that she is the owner and possessor of land of an extent of Ac.0.80 cents in Sy.No.337/1 of Nallamapadu village.
4. The petitioner is claiming that she is the owner of land of an extent of Ac.0.80 cents under registered sale deed dated 06.08.2004 executed by Vivekananda Gangadhara Rao in her favour for Rs.40,000/-, conveying the property described in the schedule. But the allegation made in the writ petition is clear that respondent Nos.8 and 10 encroached and occupied Chebrole-Devulapalli road, Nallampadu Gram Panchayat, Ungutur Mandal, West Godavari District, whereas respondent Nos.7 and 9 constructed houses on the road margin. The land of the petitioner is situated on the eastern side of the road, as per survey report of Mandal Revenue Inspector and Village Revenue Officer, Gollagudem. Thereupon, she made a representation to the authorities to take action against the encroachers by removing encroachments. Based on the representation of the petitioner, a survey was conducted and found that Adapa Seshaiah occupied Ac.0.02 cents, Padamata Nageswara Rao occupied Ac.0.03 cents, Koyya Nageswara Rao occupied Ac.0.02 cents, Padamata Subbamma occupied Ac.0.02 cents and 3 MSM, J wp_18684_ 2019 Sk.Baby occupied Ac.0.02 cents. Padamata Nageswara Rao and three others raised construction, but Adapa Seshaiah did not raise any construction in the land. As per the report dated 01.10.2019, the site belonging to R&B of an extent of Ac.0.11 cents was occupied by the persons referred above. Therefore, the concerned department has to take necessary action for removal of the constructions, since the petitioner has no personal interest in the R&B property or road, vested in Gram Panchayat. If really the property of the petitioner is occupied or obstructed passage into her land, the remedy open to the petitioner is elsewhere and not the present petition. The petitioner is complaining only occupation of public property by third parties. In the absence of litigational competence, she is not entitled to file writ petition against the public authorities, claiming such relief before this Court. The litigational competence means, locus standi i.e. right to sue against the respondents.
5. A person will have a standing if he or she is harmed by a legal wrong caused by administrative or State action or is adversely affected or aggrieved by such actions within the meaning of the relevant statute. (vide Director of Endowments, Hyderabad v. Akram Ali1 and D. Nagaraj v. State of Karnataka2). Locus standi in the context of statutory remedy is not to be determined by analogy of locus standi to file petitions under Articles 32 or 226 of the Constitution of India. But, when a dispute or a controversy, productive of an injury in fact or that the party has been wronged or adversely affected by the action which impaired that concern and the said right or interest is arguably within "the zone of interest" protected by a statute or other instruments of law, can also give 1 AIR 1956 SC 60 2 (1977) 2 SCC 148 4 MSM, J wp_18684_ 2019 standing to the person. There is fine distinction between litigational competence in ordinary litigation i.e. adversarial and public interest litigation as non- adversarial, which varies from one to the other. If, the Act of the State or administrative authority of the State causes public injury or affects the right of public at large, such act need not be questioned by a person having locus standi or litigational competence and such act can be questioned by invoking pro bono publico.
6. The tests that may be applied for determining standing in private or individual interest pursuits may not be strictly applied in all cases of litigation in public interest. However, the commonality of some factors for determination of standing in both cases may be restated. Thus, a real grievance or injury must exist; the impact of State action must be demonstrated, access to justice in substantive or procedural terms must be shown to be involved, the demand to do justice and the failure to rectify the wrong is a relevant factor, the inappropriateness, futility, inadequacy, onerous or burdensome nature of alternative administrative processes, may have to be established to redress a claim by an individual by filing an application under Article 226 of the Constitution of India. But the action of the State infringes either fundamental right or statutory right of general public and apprehending injury to the public at large to any person having no interest in the said matter in question or challenge the State act.
7. Litigational competence is not waived in private litigation. But in public interest litigation only the litigational competence is waived to some extent but not absolutely. Therefore, one must have locus to redress the claim approaching the Court in a private litigation and they must have a right or interest in the property and infringement of it or 5 MSM, J wp_18684_ 2019 invasion or infringement of such is sine qua non to obtain any relief from the competent court.
In Union of India v. W.N. Chadha3, the Apex Court held as follows:
"179. In Union Carbide Corporation, it has been said that any member of the society must have locus to initiate a prosecution as well as to resist withdrawal of such prosecution if initiated.
180. That proposition is also, in our opinion, cannot be availed of as the prosecution was initiated by the appellants herein and they are persecuting and pursing the matter upto this Court, The proposition that any one can initiate a criminal proceeding is not in dispute.
181. We have already considered the locus standi of a third party in a criminal case and rendered a considered finding in Janata Dal v. H.S. Chowdary [AIR 1993 SC 892] when this matter came before us in the first round of its litigation. Reference also may be made to Simranjit Singh Mann v. Union of India and Anr
182. Before the Supreme Court of United States, a similar question arose in Whitmore v. Arkansas ([1990] 495 US 149), whether a next friend can invoke the jurisdiction of the Court when a real party was not able to litigate his or her own cause. The Supreme Court dismissed the writ of certiorari for want of jurisdiction on the ground that Whitmore, an independent person lacked standing to proceed in the case. In said case of Whitmore, reliance has been placed on a decision, namely, Gusman v. Marrero 180 US 81, 87, 45 L. Ed. 436, 21, S.Ct. 293 (1901), in which it has been held thus:
However friendly he may be to the doomed man and sympathetic for his situation; however concerned he may be lest unconstitutional laws be enforced, and however laudable such sentiments are, the grievance they suffer and feel is not special enough to furnish a cause of action in a case like this.
183. In fact when this case on hand came up before this Court arising out of the public interest litigation of Shri H.S. Chowdhary, some other political parties approached this Court as public interest litigants to challenge the impugned judgment in that case, but this Court rejected all those appeals on the ground of locus standi."
Similarly, in Bangalore Medical Trust v. B.S. Muddappa And others4, the Apex Court discussed the scope of litigational competence i.e. locus standi and its relaxation in public interest litigation based on Janata Dal v. H.S. Chowdary5. The law declared by the Apex Court in the above judgments is that, only in public interest litigation the 3 AIR 1993 SC 1082 4 1991 SCR (3) 102 5 AIR 1993 SC 892 6 MSM, J wp_18684_ 2019 litigational competence is waived though not absolutely, but in private litigation, such litigational competence cannot be waived.
8. In the present facts of the case, it is evident that the petitioner has no personal interest in the property and it is not her claim that the access of the petitioner was obstructed by raising constructions. The remedy available to the petitioner is somewhere else, not before this Court by invoking extraordinary jurisdiction of judicial review under Article 226 of Constitution of India. Hence, I find it is not a fit case to issue any direction to respondent Nos.2 to 5, consequently the petition is liable to be dismissed.
9. In the result, the writ petition is dismissed. There shall be no order as to costs.
10. Consequently, miscellaneous petitions, pending if any, shall stand closed.
______________________________________ JUSTICE M. SATYANARAYANA MURTHY Dated 22.11.2019 Rvk