Andhra Pradesh High Court - Amravati
T.Ch.Bhupathi vs The State Of Andhra Pradesh, on 26 August, 2019
Author: M.Satyanarayana Murthy
Bench: C.Praveen Kumar, M.Satyanarayana Murthy
THE HON'BLE THE ACTING CHIEF JUSTICE C.PRAVEEN KUMAR
AND
THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY
WRIT APPEAL No.42 of 2018
JUDGMENT:(Per Hon'ble Sri Justice M.Satyanarayana Murthy) Aggrieved by the dismissal order in W.P.No.13453 of 2015 dated 09.12.2015, the petitioner herein preferred this appeal under Clause 15 of Letter Patent.
The appellant was the petitioner and respondents were the respondents before the learned Single Judge and they will hereinafter be referred as petitioner and respondents for sake of convenience.
The petitioner filed W.P.No.13453 of 2015 under Article 226 of the Constitution of India, claiming writ of mandamus questioning the inaction of the respondents in not considering the petitioner's representations dated 19.11.2012, 29.10.2014, 26.03.2015 and 30.03.2015, failure of respondents 2 and 3 to grant approval for alterations to Parvathi Kalyanamandapam, Subhalaxmi Nagar, Visakhapatnam, as illegal, arbitrary and contrary to the agreement and consequently, direct the respondent Nos. 2 and 3 to grant approval for alterations to Parvathi Kalyanamandapam, Subhalaxmi Nagar, Visakhapatnam by considering the representations referred supra.
It is alleged that, in pursuance of the notification issued by respondent Nos. 2 and 3 for auction of the lease hold rights of a property called Parvathi Kalyanamandapam and belonging to respondent Nos. 2/Municipal Corporation along with shed, the petitioner submitted his tender. As he became the highest bidder in the said auction, the bid was knocked down in his favour on 15.09.2004. On 02.04.2005, the HACJ & MSM, J 2 WA.No.42 of 2018 petitioner made certain modifications/alterations to the said shed. Initially, the lease was granted for a period of three years and in the year 2007, it was extended for a period of 25 years, on condition of the petitioner paying enhanced rent at 33.1/3% over the existing rent for every three years commencing from 11.11.2007. On 25.03.2010, a lease agreement was executed in favour of the petitioner on behalf of respondent No.2 upto 10.11.2029. One of the terms of the lease agreement is that the petitioner shall not make any alterations or additions to the lease hold premises without prior consent in writing by the lessor and that he is entitled to use the Kalyanamandapam only.
On 02.05.2014, respondent No.3 has issued a notice to the petitioner, stating that he has constructed an AC sheet cum G.1 sheet shed measuring 30.80 x 14.80 meters in the open place of the Kalyanamandapam and has also started another unauthorized construction of AC sheet shed with measurements of 23 meters x 15.70 meters without prior permission from respondent No.2-Corporation and that as the petitioner has committed breach of the lease condition that he shall not make any constructions under any circumstances or make any alterations or additions to the lease hold premises without prior consent in writing by the lessor, he was directed to submit explanation within three days from the date of receipt of the notice as to why action should not be taken against him for violation of the terms and conditions of the lease. On 08.05.2014, the petitioner addressed a letter to respondent No.3 requesting to grant 15 days time i.e. upto 23.5.2014 to submit his explanation to the said notice. It is also contended that the petitioner made several representations on 19.11.2012, 29.10.2014, 26.03.2015 and 30.03.2015, making an allegation that the Kalyanamandapam became old and it is in dilapidated condition and as HACJ & MSM, J 3 WA.No.42 of 2018 it was constructed in the year 1980, almost 90% of the existing structure was affected by Hudhud cyclone. It is also contended that Kalyanamandapam and other constructions are almost in dilapidated condition and requested to sanction proposed plan for construction to the second respondent, but, they were not approved till date. If the required facilities are not provided to the customers, it will be very difficult for the petitioner to meet the expenditure and rent payable to the second respondent, in view of the clause for enhancement of rent for every three years. The respondent Nos. 2 and 3 did not respondent to the request of the petitioner and they neither granted any approval for alterations or additional constructions nor gave ay reply to the said representations. In those circumstances, the petitioner filed the writ petition seeking relief stated supra.
The second respondent filed counter admitting execution of lease deed in favour of the petitioner by the second respondent on 25.03.2010 for the period of 25 years, which will expire on 10.11.2029 and the lease was subsisting. But, the second respondent issued notice dated 02.05.2014 calling upon the petitioner to explain as to why action should not be taken for the unauthrozied construction of two sheds i.e already constructed AC sheet shed cum G.I sheet shed measuring 30.80 x 14.80 meters in the open place of the Kalyanamandapam without prior permission from the Corporation and also started one unauthrozied construction of AC sheet shed with a measurement of 23.00 x 15.70 meters without prior permission from the corporation and thereby committed breach of the terms and conditions of the lease. The petitioner though sought 15 days time to submit his explanation to the notice dated 02.05.2014, he did not choose to submit the explanation even after 15 days and the Corporation has been requesting the petitioner to HACJ & MSM, J 4 WA.No.42 of 2018 remove unauthorized constructions, but the petitioner neither submitted an explanation nor removed the unauthorized constructions raised by the petitioner in the open place of Kalyanamandapam which is in violation of the terms and conditions of the lease. Further, on 29.03.2015, the second respondent has seized the unauthorized AC sheet shed constructed by the petitioner in the open place of the Kalyanamandapam under acknowledgment of the petitioner. It is further contended that the petitioner made a representation on 30.03.2015 alleging that during Hudhud cyclone, Kalyanamandapam was partially damaged and that an additional construction is required to be raised and accordingly, the petitioner requested the second respondent to approve the proposed plan for construction. It is further averred by the second respondent that originally Parvathi Kalyanamandapam is in good condition and it does not require any alterations or additions as alleged by the petitioner and that the requirement of further alterations is invented by the petitioner only for the purpose of filing the writ petition, circumventing the conditions contained in the lease agreement and requested o dismissed the writ petition.
Upon hearing argument of the learned counsel for the petitioner and respondents, the learned Single Judge dismissed the writ petition holding that the construction of two sheds i.e already constructed AC sheet shed cum G.I sheet shed measuring 30.80 x 14.80 meters in the open place of the Kalyanamandapam without prior permission from the Corporation and also started one unauthrozied construction of AC sheet shed with a measurement of 23.00 x 15.70 meters raised in utter deviation of the terms and conditions of the lease and the petitioners own representation dated 30.03.2015 itself disclosed that in lieu of providing a site admeasuring 92 feet x 62 feet to the second respondent for HACJ & MSM, J 5 WA.No.42 of 2018 construction of an overhead water tank, the petitioner was permitted to raise constructions in the Kalyanamandapam premises itself and accordingly, he has raised the construction without increasing the area of construction. This paragraph is sufficient to conclude that unauthroized construction was raised by the petitioner and declined to grant relief.
Aggrieved by the order of the learned Single Judge, the present appeal under Clause 15 of Letters Patent is filed raising several contentions. Most of the grounds are nothing but reiteration of the grounds raised in the writ petition. However, in ground No.3, it is specifically contended that respondents permitted the petitioner to alter the leased premises vide proceedings in R.c.No.2419/04/A4/CIR 111 (Rev) dated 02.04.2005 and therefore, making constructions in 2014 is totally baseless and the learned Single Judge did not appreciate the facts on record in proper perspective. It is also further contended that, construction of overhead tank took place on 2011 at the request of the second respondent for storage of water, some part of premises was handed over to construct a water storage tank for the public by removing the part of shed which was constructed as per the approval dated 02.04.2005 and there was mutual understanding between the petitioner and second respondent to shift the same shed to other place. But, the learned Single Judge did not accept this contention without any basis. It is further contended that various representations submitted by the petitioner were not disposed of by the respondents, though they were submitted long ago and keeping these representations pending for such long time disabled this petitioner to take further action, but the learned Single Judge did not consider the same in proper perspective and committed a serious error in dismissing the writ petition.
HACJ & MSM, J 6 WA.No.42 of 2018 The petitioner is admittedly a lessee under the second respondent
- lessor- Municipal Corporation and there is a lease agreement executed on 25.03.2010 in favour of the petitioner by the second respondent and the lease period would expire by 10.11.2029. The second respondent raised several contentions with regard to constructions of two sheds i.e already constructed AC sheet cum G.I sheet shed measuring 30.80 x 14.80 meters in the open place of the Kalyanamandapam and also started one unauthrozied construction of AC sheet shed with a measurement of 23.00 x 15.70 meters, without prior permission from the Corporation and contrary to the terms and conditions of the lease that the petitioner shall not raise any construction without prior consent of the second respondent in writing and thereby, the petitioner is disentitled to use area beyond Kalyanamandapam. Incorporation of this condition in the lease agreement was not disputed by filing any reply to the counter. Copy of the lease deed is placed on record by the petitioner and relevant clause in terms and conditions of lease agreement of Kalyanamandapam i.e. Condition No.4 is extracted hereunder for better appreciation:
"The Lessee shall not make under any circumstances any alterations or additions to the lease hold premises without the prior consent in writing by the Lessor. He shall use only the area of Kalyanamandapam on which the rent is fixed and shall not have any exclusive right over any premises meant for common usage."
Admittedly the petitioner raised constructions without obtaining written consent from the second respondent and the petitioner's own representation dated 30.03.2015, it is specifically alleged as follows:
"As per approval of above reference R.C.No.2419/04/A4/CIR III (Rev) dated 02.04.2005, we have submitted a detailed estimate and drawing before executing modification and construction on 13.04.2005 and we have modified and constructed accordingly.
HACJ & MSM, J 7 WA.No.42 of 2018 During the year 2011 May municipal authorities asked me to provide place approximately 92' x 62' for construction of overhead water tank. I have handed over the place after dismantling the existing constructed shed part of size 90' x 60'. At the time of handing over the premises, we were informed to shift the construction wherever it needed for users in the Mandapam premises. Accordingly we have shifted the construction to the existing position as shown in the drawing enclosed size of 70' x 50'. There is no increase in the constructed area other than approved request.
Though it is stated in the representation dated 30.03.2015 that a permission was granted in the reference R.C.No.2419/04/A4/CIR III (Rev) dated 02.04.2005, it is not available to record atleast for perusal of this Court to find out whether any such permission was granted to this petitioner. In the absence of any such permission to raise construction, is a violation of the terms and conditions of lease. Even otherwise, the lease deed was executed on 25.03.2010 incorporating such condition, extracted above. Assuming for a moment that the petitioner removed construction to enable the second respondent to construct the overhead tank approximately in an extent of 92' x 62', unless the written consent was obtained from the second respondent, construction of any shed of size of 90' x 60' is a clear violation of the lease agreement. Therefore, raising construction by the petitioner as admitted in representation dated 30.03.2015 without obtaining written consent of the lessor/second respondent herein is unauthorized and therefore, the petitioner cannot be granted approval to raise any construction within Kalyanamandapam to make alterations to Kalyanamandapam. When the petitioner violated the terms and conditions of lease, the Court cannot exercise its discretionary power under Article 226 of the Constitution of India in favour of this petitioner to issue writ of mandamus.
A writ of mandamus is purely discretionary in nature and such discretion has to be exercised sparingly in extraordinary circumstances. To claim such writ of mandamus, the petitioner must show the existing HACJ & MSM, J 8 WA.No.42 of 2018 right over statutory/fundamental right and violation of such right. In the present case, the alleged right claimed by the petitioner is based on a lease agreement which is purely contractual in nature. Even as per the terms of lease agreement, the petitioner is disentitled to raise such construction without obtaining consent of the second respondent in writing. As such, the petitioner violated the terms and conditions of the lease and thereby, the petitioner did not approach the Court with clean hands, which disentitled the petitioner to claim such discretionary relief.
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 Halim1" 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.
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 1 Civil Appeal No.5824 of 2019 dated 24.07.2019 HACJ & MSM, J 9 WA.No.42 of 2018 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."
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 Kutty2", the Hon'ble Supreme Court is of the view 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.3", 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 2 1986 (4) SCC 632 3 1995 All.L.J. 534 HACJ & MSM, J 10 WA.No.42 of 2018 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.
In "State of U.P. and Ors. v. Harish Chandra and Ors.4" 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. Vohra5" 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 Jain6" the Supreme Court held thus:
4
(1996) 9 SCC 309 5 (2004) 2 SCC 150 6 (2008) 2 SCC 280 HACJ & MSM, J 11 WA.No.42 of 2018 "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 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 HACJ & MSM, J 12 WA.No.42 of 2018 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, 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) Applying the law declared by the Apex Court to the present facts, it can be safely held that the petitioner has no statutory or fundamental right to claim approval of plan, consequently question of directing respondent Nos. 2 and 3 to enforce the same does not arise.
The jurisdiction of this Court under Clause 15 of Letters Patent is limited and this Court cannot interfere with the order of the learned Single Judge as a matter of course and such power can be exercised only when the learned Single Judge recorded a perverse finding. Clause 15 of the Letters Patent provides for an appeal from the Courts of original jurisdiction to the High Court in its appellate jurisdiction. An appeal does not lie to the Division bench of the same High Court against every order passed by a Single Judge of the High Court. It is only against a "judgment" would an intra-Court Appeal lie.
HACJ & MSM, J 13 WA.No.42 of 2018 The Apex Court in Roma Sonkar v. Madhya Pradesh State Public Service Commission7 considered the scope of jurisdiction of Appellate Court in Intra Court Appeal, held in paragraph No.3, as follows:
"Only to avoid inconvenience to the litigants, another tier of screening by the Division Bench is provided in terms of the power of the High Court but that does not mean that the Single Judge is subordinate to the Division Bench. Being a writ proceeding, the Division Bench was called upon, in the intra court appeal, primarily and mostly to consider the correctness or otherwise of the view taken by the learned Single Judge. Hence, in our view, the Division Bench needs to consider the appeal(s) on merits by deciding on the correctness of the judgment of the learned Single Judge, instead or remitting the matter to the learned Single Judge"
In its writ jurisdiction, the Court exercises discretion, taking into consideration a wide variety of circumstances, inter alia, the facts of the case, the exigency that warrants such exercise of discretion, the consequences of the grant or refusal of the writ, and the nature and extent of injury that is likely to ensue by such grant or refusal.
(Rajasthan State Industrial Development & Investment Corpn. V. Diamond & Gem Development Corpn. Ltd8). In view of our foregoing discussion and law referred in above paragraphs, the petitioner is disentitled to claim reliefs also for the following reasons:
1) The petitioner failed to establish the subsisting right to claim permission to raise additional constructions or alterations to the Kalyanamandapam, thereby he is disentitled to claim writ of mandamus, which is purely discretionary in nature.
2) The petitioner in utter violation of the terms and conditions of the lease admittedly raised constructions i.e. part of shed measuring 90' x 60' meters vide representation dated 30.05.2015.
7 Civil Appeal Nos.7400-7401/2018 dated 31.07.2018 8 (2013) 5 SCC 470 HACJ & MSM, J 14 WA.No.42 of 2018
3) As the petitioner failed to place on record proceedings R.C.No.2419/04/A4/CIR III (Rev) dated 02.04.2005 for perusal of the learned Single Judge or atleast before this Court, as to find out whether any permission was granted to this petitioner or not and non-production amounts to suppression of such proceedings for reasons best known to the petitioner, which disentitled him to claim discretionary relief of mandamus.
4) In view of the limited jurisdiction of the Division Bench of this Court in Intra Court Appeal, the order of the learned Single Judge does not warrant interference of this Court, as we find no perversity In view of our foregoing discussion, we find no merit in the appeal and the writ appeal deserves to be dismissed.
In the result, writ appeal is dismissed.
Consequently, miscellaneous applications pending if any, shall stand dismissed.
________________________________________________ ACTING CHIEF JUSTICE C. PRAVEEN KUMAR _________________________________________ JUSTICE M. SATYANARAYANA MURTHY Date: 26.08.2019 Sp