Andhra Pradesh High Court - Amravati
B.Sridevi vs The State Of Andhra Pradesh on 9 November, 2021
THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY
W.P.Nos.5464, 12282, 13020, 12256, 12044, 12444, 12250,
12279, 13026 of 2019 and W.P.Nos.19832, 18345, 12448,
18338, 21508, 18352, 19180, 19837, 19844, 19916, 21430,
21434, 21501, 18347, 21452, and 21494 of 2021
COMMON ORDER:
All these petitions are filed claiming same relief by different petitioners having land in different survey numbers, but the issue involved in these petitions is one and the same. Therefore, I find that it is expedient to decide all the petitions by common order treating Writ Petition No.5464 of 2019 as leading petition.
Writ Petition No.5464 of 2019 is filed under Article 226 of Constitution of India to issue a writ of Mandamus to declare the action of the respondents particularly respondent No 4 in not issuing prior notice of demolition and threatening the petitioner to demolish his dwelling house again constructed in Plot No.28 situated in Sy.No.173/3 to an extent of 0-04 cents in Konka Chennaiah Gunta, Puthur Village, Tirupathi Urban Mandal, Chittoor District is illegal highhanded, in violation of Article 14 and 21 of the Constitution of India, besides being opposed to the principles of Natural Justice and consequently direct respondent No 4 not to interfere with the peaceful possession and enjoyment of the of the petitioner in her dwelling house constructed in Plot No.28 situated in Sy.No.173/3 to an extent of Ac.0.04 cents in Konka Chennaiah Gunta, Puthur Village, Tirupathi Urban Mandal, Chittoor District.
The case of the petitioner, in brief, is that one A.Subba Ramaiah, S/o Jaya Ramaiah, was a freedom fighter. On 10.04.1992 P.Venu Gopal, Secretary, Chittoor District Freedom Fighters Association, made an application to the then Mandal Revenue MSM,J wp_5464_2019 and batch 2 Officer, Tirupathi Revenue Mandal (Urban), Tirupathi, with a request to allot house sites to all Freedom Fighters numbering 32 persons including the vendor of the petitioner A.Subba Ramaiah. All 32 Freedom Fighters were given plots at Konka Chennaiah Gunta, Puthur Village and the vendor of the petitioner Sri A. Subba Ramaiah was allotted Plot No.28 in Sy.No.173/3 to an extent of Ac0- 04 cents (25 X 80) vide patta bearing THS No. 595/1992 dated 25.05.1992. The petitioner purchased the above said land from his vendor Sri A.Subba Ramaiah on 29.01.2004, he sold the said land to the petitioner because of his old age ailments and for his livelihood. From the date of purchase, the petitioner has been in possession and enjoyment of the same. He constructed pucca house by obtaining "No Objection Certificate" from the then Mandal Revenue Officer in Plot No.28 in Sy.No.173/3 in Konka Chennaiah Gunta, Puthur Village, Tirupathi Urban Mandal , Chittoor District. The petitioner is paying electricity bills regularly. While so, the Village Revenue Officer on the instructions of respondent No.4 highhandedly demolished the house of the petitioner with JCB on 29.03.2019 without issuing any prior notice of demolition and thrown him on the street with his family, again he constructed a house for dwelling purpose and living therein. But, the Tahsildar (Mandal Revenue Officer) is threatening the petitioner to demolish his house without any reason and without issuing any prior notice. The petitioner questioned the Village Revenue Officer when he was demolishing his house, he simply replied that he was directed by the Mandal Revenue Officer to demolish the same, but he did not show any demolition order. The petitioner constructed the house with his hard earned money. In the event of demolition of house, the petitioner will be put to serious loss. However, when the petitioner is in possession and enjoyment of MSM,J wp_5464_2019 and batch 3 the property, respondent No.4 or his subordinates are not entitled to demolish the house without any notice and without following due process of law.
The petitioner specifically raised the following grounds in the writ petition.
(a) The highhanded action of the respondents is against the principles of natural justice, since no prior opportunity was given to the petitioner before proposed demolition of the house.
(b) The act of the respondents in threatening to demolish the house of the petitioner on any day without following the procedure is violative of Article 14, 21 and 300A of the Constitution of India.
(c) The respondents did not consider the purchase of property from freedom fighter after completion of 10 years, following condition No.8 of the patta granted in favour of the vendor of the petitioner incurring huge amount both for purchase of the site and construction of the house. Therefore, the highhanded act of the respondents is illegal and arbitrary, requested to issue a writ of Mandamus.
Respondent No.4 filed counter denying the material allegations inter alia contending that the land in Sy.No.173/3 admeasuring an extent of Ac.2.50 cents is classified as "Konka Chennaiahgunta Cheruvu Poramboke" as per the revenue records, it is a water body for the benefit of community at large. However, the said land is vested with the Government alone. Because of the nomenclature of MSM,J wp_5464_2019 and batch 4 the land is water body, the observation of the Supreme Court on water bodies are applicable to the subject land.
It is further contended that according to BSO 15 Para 4 (ii) (h) the assignment of the water course porambokes and water bodies is prohibited, it only permits lease of such lands with a condition for resumption when required for any public purpose. On credible information that the petitioner in the present writ petition along with others are attempting frequently to raise temporary structures in Sy.No.173/3 of KonkaChennaiahgunta Revenue Village, since the subject land is classified as "CheruvuPoramboke", the said attempts of unauthorized encroachments by way of temporary structures were prevented at the initial stage by the respondent authorities to protect the communal interest over the land and also keeping in view of the observations of the Supreme Court regarding protection of water bodies. As per G.O. Ms. No.157 dated. 13.02.1987, the Government of Andhra Pradesh issued instructions to all the District Collectors and the Special C.S. and Chief Commissioner of Land Administration, that the alienation of land covered by water bodies and tank beds, Tank porambokes, etc., is prohibited.
It is further contended that in CCLA's ref No. B2/2225/2003, dated 20.09.2003, it is directed as follows:
"all collectors in the state are informed that, though the Government in their Memo. No.30307/Assn.1/2000-1, dated 23.05.2000 have issued instructions to all collectors in the state to remove the encroachments if any, in the tanks etc., and to protect water bodies on war footing under "NEERU- MEERU" Programme, certain proposals are being received from the Collectors for relaxation of ban in respect of lands covered by water bodies, which causes the Administration in embarrassing situation in rejecting such proposals oftenly.
Therefore, all Collectors in the state are again requested to adhere with above circular instructions to take necessary steps to identify and to include MSM,J wp_5464_2019 and batch 5 all lands covered by water bodies in the "PROHIBITORY ORDER BOOK"
(Such as lands covered by Tanks; Kuntas; Ponds; Lakes; Vagu; Vankas; River; Projects & Reservoir Porambokes) and to follow those instructions scrupulously."
It is further contended that the subject and to an extent of Acs.2.50 cents in Sy.No.173/3 classified as "CheruvuPoramboke" of Konkachennaiahgunta village, therefore, the land was included in the prohibitory properties list u/s 22(A) of the A.P.Registration Act, 1908. House site pattas were not granted to any of the freedom fighters in Sy.No.173/3 of KonkaChennaiahGunta Village. Unless the classification of the land is changed into Ayan, the land is not available for grant of house site pattas. In the instant case, the District Administration is not competent to issue house site pattas in water course porambokes as per G.O. Ms. No.157 dated 13.02.1987 and that patta, if any, granted and the purchase, if any, taken place are in valid. Hence, the documents produced by the petitioner are null and void. The petitioner was never in possession and enjoyment of the subject land, therefore, the question of interfering with the possession and enjoyment of the petitioner by respondent No.4 and his subordinates does not arise.
It is further contended that the land is within the limits of Municipal Corporation, Tirupati which is highly valuable land. If any attempt to encroach upon the land, such attempt will be prevented at the initial stage. Therefore, the respondents are only trying to prevent such encroachment and not dispossessing the petitioner. When similar question came up before the Madras High Court in W.P.No.31894 of 2005, it is held as follows:
"Encroachment is a social evil. Encroachment in water body and water resources are affecting the Constitutional Rights of all other citizens. Whenever the rights of the citizens in general are infringed on account of MSM,J wp_5464_2019 and batch 6 certain illegal acts by few greedy men, then the State is bound to act swiftly and evict all such encroachments.
People are frustrated on account of large scale encroachments in water bodies and water resources. On account of such encroachments in water bodies and water resources, people at large are facing disaster, which are all man made. Even the experts are rightly emphasizing that the disasters are occurring on account of the illegal activities of such persons by encroachments. This being the opinion of the experts on many occasions, the State is bound to evict all such encroachments in the water bodies, water resources and Government Eriporomboke lands. In the present case on hand, the land in question is classified as Eriporomboke land, which is a water body. Thus, there cannot be any leniency or sympathy in respect of evicting the encroachers"
The Hon'ble Supreme Court in Civil Appeal No.1251 of 2006 held hereunder "The natural resources of earth including the air, water, land, flora and fauna and especially representative sa mples of natural ecosystem must be safeguarded for the benefits of present and future generations through careful planning or management."
Thus, there is no doubt the fact that there is a responsibility bestowed upon the Government to protect and preserve the tanks and its supply channels which are important part of the environment of the area,"
The Supreme Court has time and again emphasized the need to retain and restore water bodies and held that water bodies are inalienable. Land comprised in water bodies cannot be alienated to any person even if it is dry. Respondent No.4 relied on the judgment of the Apex Court in "M.C. Mehta (Badkhal and Surajkund Lakes Matter) vs. Union of India1", requested to dismiss the writ petition.
The petitioner filed reply affidavit reiterating the contentions about the grant of patta in favour of freedom fighters in Sy.No.173/3 of Konkachennayagunta Cheruvu, Poramoboke while denying the contentions raised by respondent No.4 in his counter affidavit. The petitioner filed certain documents to establish the patta granted to 1 (1997) 3 SCC 715 MSM,J wp_5464_2019 and batch 7 the vendor of the petitioner and also proceedings vide Memo No.13612/M1/2012 dated 02.11.2012 issued by the Municipal Administration and Urban Development Department. Positive photographs also filed to establish that the several buildings were raised in the subject property. On the strength of the said documents, the petitioner intended to establish his title and possession of the property and that any amount of interference with the possession and enjoyment of the petitioner without following due process of law is illegal and arbitrary.
Ms. K.N.Vijayalakshmi, learned counsel for the petitioner, contended that when pattas were granted in favour of the freedom fighters in Konkachennayagunta, imposing certain conditions, sale of the property by the original beneficiaries in favour of the petitioner for valuable consideration after expiry of 10 years is valid and legal and the petitioner cannot be deprived of his right to enjoy the property. In case, the petitioner is dispossessed by respondent or his subordinates, it would amount to infringement of fundamental right guaranteed under Article 14, 21 and 300A of the Constitution of India. Even otherwise, the petitioner cannot be dispossessed except by due process of law. Therefore, the highhanded act of respondent No.4 is sought to be declared as illegal and arbitrary, requested to issue a direction as claimed in the writ petition.
Learned Assistant Government Pleader for Revenue would contend that no pattas were granted in favour of the vendor of the petitioner, even if any patta is granted, the petitioner is not entitled to purchase the same and to construct the house as the land is classified as "Tank" and assignment of the same is prohibited by BSO 15 para 4 (ii) (h). In addition to that, the petitioner has no MSM,J wp_5464_2019 and batch 8 legally enforceable right in the property and the question of infringement or invasion of legal right does not arise since the petitioner allegedly purchased the property under unregistered sale deed. He further contended that the land is originally classified as "Tank Poramboke" and the name of the village i.e. KonkaChennaiahgunta itself indicates that it is "gunta", which means a „water body‟ and no construction shall be permitted in such water bodies in view of the law laid down by the Apex Court in "Sarvepalli Ramaiah v. District Collector, Chittoor2" and "Intellectuals Forum, Tirupathi v. State of A.P.3", requested to dismiss the writ petition.
Considering rival contentions, perusing the material available on record, the points need to be answered by this Court are as follows:
(1) Whether the petitioner being a purchaser under unregistered sale deed from the alleged owner/beneficiary is having any existing legally enforceable right? If so, whether there is any infraction or invasion or infringement of such legally enforceable right by respondent No.4? If so, whether the petitioner is entitled to claim writ of Mandamus? (2) Whether grant of patta allegedly in favour of vendor of the petitioner allotting Ac.0.04 cents in Sy.No.173/3 in Konka Chennaiah Gunta, Puthur Village, Tirupathi Urban Mandal, Chittoor District is in violation of BSO 15 para 4 (ii) (h) and contrary to the directions issued by the Apex Court in "Sarvepalli Ramaiah v. District Collector, Chittoor" and "Intellectuals Forum, Tirupathi v. State of A.P." (referred supra)? If not, whether the petitioner is in lawful possession and enjoyment of the property? If so, whether the petitioner 2 (2019) 4 SCC 500 3 (2006) 3 SCC 549 MSM,J wp_5464_2019 and batch 9 is entitled to claim Writ of Mandamus directing respondent No.4 not to interfere with the possession and enjoyment of the petitioner without following due process of law?
P O I N T No.1:
The first and foremost contention of the respondents is that the petitioner being purchaser of immovable property for more than Rs.100/- value under registered sale deed will not get title, interest or right in immovable property. Consequently, the question of infraction or infringement of legally enforceable right does not arise.
The petitioner being a purchaser under unregistered sale deed sought writ of Mandamus. The facts are not in dispute. Before examining other issues regarding entitlement of the petitioner to claim writ of Mandamus, it is appropriate to advert to certain provisions of the Transfer of Property Act, which deals with sale of immovable property.
Chapter III of the Transfer of Property Act, 1882 deals with sale of immovable property. Section 54 of the Transfer of Property Act defined "sale". „Sale‟ is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised. To complete the sale, it must be registered, if the value of tangible immovable property is Rs.100/- and upwards, or in the case of a reversion or other intangible thing, can be made only by a registered instrument.
In the case of tangible immoveable property of a value, less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property. Delivery of tangible immoveable property takes place when the seller places the buyer, or such person as he directs, in possession of the property. Thus, the „sale‟ of tangible immovable property is Rs.100/- and upwards is MSM,J wp_5464_2019 and batch 10 deemed to have been completed only when registered deed of conveyance is executed transferring the tangible immovable property in favour of the petitioner by his vendors. Though it is an outright sale as defined under Section 54 of the Transfer of Property Act, it is incomplete transaction as the sale is not by registered instrument.
Of course, rights and liabilities of buyer and seller are enumerated under Section 55 of the Transfer of Property Act, but they are mutual rights and obligations of both buyer and seller, not against the State. Hence, the petitioner, who is a purchaser under unregistered sale deed did not acquire any right or interest in the immovable property as on the date of filing the writ petition.
However, the petitioner being a purchaser under unregistered sale deed will not acquire any right or interest in the immovable property, since, such document/instrument or conveyance of immovable property can be equated with contract of sale for all practical purposes, on the terms settled between the parties, but does not create any interest or charge on immovable property since the sale transaction is incomplete. Therefore, the petitioner did not acquire any right or interest in the immovable property. Hence, the question of infringement or invasion of petitioner‟s right by the respondents, in the present facts of the case, does not arise.
At the same time, Writ of Mandamus is discretionary in nature and such power of judicial review under Article 226 of the Constitution of India can be exercised only in certain circumstances.
Yet, issuance of Writ of Mandamus is purely discretionary and the same cannot be issued as a matter of course.
MSM,J wp_5464_2019 and batch 11 In "State of Kerala v. A.Lakshmi Kutty4", 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.5", the Allahabad High Court has held that certain conditions have to be satisfied before a writ of mandamus is issued. The petitioner to claim writ of mandamus must show that he has a legal right to compel the respondents 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.4
1986 (4) SCC 632 5 1995 All.L.J. 534 MSM,J wp_5464_2019 and batch 12 In "State of U.P. and Ors. v. Harish Chandra and Ors.6" 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."
(Emphasis supplied) In "Union of India v. S.B. Vohra7" 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 Jain8" the Supreme Court emphasized the necessity to establish existence of legal right and its infringement for grant of writ of mandamus referred the principles stated in the Law of Extraordinary Legal Remedies by F.G. Ferris and F.G. Ferris, Jr.:
"Note 187.-Mandamus, at common law, is a highly prerogative writ, usually issuing out of the highest court of general jurisdiction, in the name of the sovereignty, directed to any natural person, corporation or inferior court within the jurisdiction, requiring them to do some particular thing therein specified, and which appertains to their office or duty. Generally speaking, it may be said that mandamus is a summary writ, issuing from the proper court, commanding the official or board to which it is addressed to perform some specific legal duty to which the party applying for the writ is entitled of legal right to have performed.
Note 192.-Mandamus is, subject to the exercise of a sound judicial discretion, the appropriate remedy to enforce a plain, positive, specific and ministerial duty 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 6 (1996) 9 SCC 309 7 (2004) 2 SCC 150 8 (2008) 2 SCC 280 MSM,J wp_5464_2019 and batch 13 bodies and tribunals exercising public functions within their jurisdictions. It is not necessary, however, that the duty be imposed by statute; mandamus lies as well for the enforcement of a common law duty.
Note 196.-Mandamus is not a writ of right. Its issuance unquestionably lies in the sound judicial discretion of the court, subject always to the well settled principles which have been established by the courts. An action in mandamus is not governed by the principles of ordinary litigation where the matters alleged on one side and not denied on the other are taken as true, and judgment pronounced thereon as of course. While mandamus is classed as a legal remedy, its issuance is largely controlled by equitable principles. Before granting the writ the court may, and should, look to the larger public interest which may be concerned-an interest which private litigants are apt to overlook when striving for private ends. The court should act in view of all the existing facts, and with due regard to the consequences which will result. It is in every case a discretion dependent upon all the surrounding facts and circumstances."
(Emphasis supplied) Similarly, in Corpus Juris Secundum, summarized the pre-requisites for grant of writ of mandamus and the same is extracted hereunder:
"Mandamus may issue to compel the person or official in whom a discretionary duty is lodged to proceed to exercise such discretion, but unless there is peremptory statutory direction that the duty shall be performed mandamus will not lie to control or review the exercise of the discretion of any board, tribunal or officer, when the act complained of is either judicial or quasi-judicial unless it clearly appears that there has been an abuse of discretion on the part of such Court, board, tribunal or officer, and in accordance with this rule mandamus may not be invoked to compel the matter of discretion to be exercised in any particular way. This principle applies with full force and effect, however, clearly it may be made to appear what the decision ought to be, or even though its conclusion be disputable or, however, erroneous the conclusion reached may be, and although there may be no other method of review or correction provided by law. The discretion must be exercised according to the established rule where the action complained has been arbitrary or capricious, or based on personal, selfish or fraudulent motives, 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) MSM,J wp_5464_2019 and batch 14 In "Comptroller and Auditor-general of India, Gian Prakash, New Delhi v. K.S. Jagannathan9" the Apex Court quoted Halsbury‟s Laws of England, Fourth Edition, Volume I, Paragraph 89, where it is stated that the purpose of an order of mandamus "is to remedy defects of justice; and accordingly it will issue, to the end that justice may be done, in all cases where there is a specific legal right and no specific legal remedy for enforcing that right; and it may issue in cases where, although there is an alternative legal remedy, yet that mode of redress is less convenient, beneficial and effectual."
The Division Bench of the Allahabad High Court in "Ajit Singh v. Union of India10" while dealing with locus standi of a person who filed petition under Article 226 of the Constitution of India, referred the judgments of the Supreme Court to hold that existence of legal right and its infraction must necessarily be pleaded and proved to issue Writ of Mandamus.
In "State of Orissa v. Madan Gopal11" Hon‟ble Apex Court has ruled that the existence of the right is the foundation of the exercise of jurisdiction of the Court under Article 226 of the Constitution. In "Charanjit Lal Chowdhuri v. Union of India12", it has been held by Hon‟ble Apex Court that the legal right that can be enforced under Article 32 must ordinarily be the right of the petitioner himself who complains of infraction of such right and approaches the Court for relief. The Court did not find any reason why a different principle should apply in the case of a petitioner 9 AIR 1987 SC 537 10 2017 (9) ADJ 251 11 AIR 1952 SC 12 12 AIR 1951 SC 41 MSM,J wp_5464_2019 and batch 15 under Article 226 of the Constitution. The right that can be enforced under Article 226 also shall ordinarily be the personal or individual right of the petitioner himself though in the case of some of the writs like habeas corpus or quo warranto this rule may have to be relaxed or modified. Thus, Article 226 confers very wide power on the High Court to issue directions and writs of the nature mentioned therein for the enforcement of any of the rights conferred by Part III or for any other purpose. It is, therefore, clear that persons other than those claiming fundamental rights can also approach the Court seeking a relief thereunder. The Article in terms does not describe the classes of persons entitled to apply thereunder; but it is implicit in the exercise of the extraordinary jurisdiction that the relief asked for must be one to enforce a legal right.
Similarly, in "Mani Subrat Jain v. State of Haryana13", while considering Article 226 of the Constitution, the Hon‟ble Supreme Court in paragraph 9, observed thus:
"...It is elementary though it is to be restated that no one can ask for a mandamus without a legal right There must be a judicially enforceable right as well as a legally protected right before one suffering a legal grievance can ask for a mandamus. A person can be said to be aggrieved only when a person is denied a legal right by someone who has a legal duty to do something or to abstain from doing something. (See Halsbury's Laws of England 4th Ed. Vol I, paragraph
122); State of Haryana v. Subash Chander, (1974) 1 SCR 165 : (AIR 1973 SC 2216); Jasbhai Motibhai Desai v. Roshan Kumar Haji Bashir Ahmed, (1976) 3 SCR 58 : (AIR 1976 SC 578) and Ferris Extraordinary Legal Remedies paragraph 198."
(emphasis supplied) It is well-settled that existence of a legal right of a petitioner which is alleged to have been violated is the foundation for invoking the jurisdiction of the High Court under Article 226 of the 13 AIR 1977 SC 276 MSM,J wp_5464_2019 and batch 16 Constitution. While reiterating this legal proposition, the Supreme Court in paragraph 38 of its judgment in "Ghulam Qadir v. Special Tribunal14", held thus:
"38. There is no dispute regarding the legal proposition that the rights under Article 226 of the Constitution of India can be enforced only by an aggrieved person except in the case where the writ prayed for is for habeas corpus or quo warranto. Another exception in the general rule is the filing of a writ petition in public interest. The existence of the legal right of the petitioner which is alleged to have been violated is the foundation for invoking the jurisdiction of the High Court under the aforesaid Article. The orthodox rule of interpretation regarding the locus standi of a person to reach the Court has undergone a sea change with the development of constitutional law in our country and the constitutional Courts have been adopting a liberal approach in dealing with the cases or dislodging the claim of a litigant merely on hypertechnical grounds. If a person approaching the Court can satisfy that the impugned action is likely to adversely affect his right which is shown to be having source in some statutory provisions the petition filed by such a person cannot be rejected on the ground of Ms having not the locus standi. In other words, if the person is found to be not merely a stranger having no right whatsoever to any post or property, he cannot be non-suited on the ground of his not having the locus standi."
(emphasis supplied) In view of catena of perspective pronouncements, the petitioner must plead and prove that legally enforceable right existed either statutory or constitutional right and it is infringed or invaded or threatened to infringe or invade by the respondents. But, the bald allegations made in the affidavit without demonstrating the existence of any right and its infringement or its invasion or threatened infringement or invasion by the respondents are not sufficient. In the absence of establishing the existence of right, its infringement or invasion or threatened infringement or invasion, the petitioner is not entitled to claim writ of mandamus. In view of the law declared by the Supreme Court and reiterated by the Division Bench of the Allahabad High Court in the judgment referred supra, the petitioner 14 (2002) 1 SCC 33 MSM,J wp_5464_2019 and batch 17 must plead and prove that a legal right possessed by him is violated or infringed or threatened to be infringed to obtain a relief of writ of mandamus.
In the present facts of the case, the petitioner failed to establish his existing legally enforceable right or interest and its infringement or invasion or threatened infringement or invasion by the respondents besides demand and denial as discussed above. In such circumstances, the petitioner being a purchaser of immovable property under unregistered sale deed is not entitled to seek a writ of Mandamus against the respondents. At best, the vendor in whose favour the Patta was issued is entitled to seek writ of Mandamus.
In view of my foregoing discussion and the law laid down by the Courts, it is clear that the petitioner failed to establish his existing legally enforceable right either statutory or constitutional, its infringement or invasion or threatened infringement or invasion of such legally enforceable right.
In those circumstances, the petitioner is not entitled to claim writ of Mandamus. Hence, the claim of the petitioner for grant of Writ of Mandamus would fail for the above reasons, consequently the petition is liable to be dismissed on this ground also. Accordingly, the point is answered against the petitioner and in favour of the respondents.
P O I N T No.2:
The core contention of respondent No.4 is that the land in Sy.No.173/3 in Konka Chennaiah Gunta is a water body, assignment of it is prohibited by BSO 15 para (4) (ii) (h) of the Andhra Pradesh Board Standing Order. Even the Hon‟ble Apex Court MSM,J wp_5464_2019 and batch 18 did not permit assignment of such water body. To substantiate this contention, the respondent No.4 filed certain documents.
It is specifically mentioned in the Adangal filed along with the counter that the land admeasuring an extent of Ac.0.04 cents in Sy.No.173/3 in Konka Chennaiah Gunta, Puthur Village, Tirupathi Urban Mandal, Chittoor District is "cheruvu‟.
The State is under obligation to protect the ecology and improve environment and safeguard forests and wild life. The State shall endeavor to protect and improve the environment and to safeguard the forests and wild life of the country -- Vide Article 48-A of the Constitution of India.
Article 51A deals with fundamental duties. According to Article 51A(g), it shall be the duty of every citizen of India to protect and improve the natural environment, including forests, lakes, rivers and wild life, and to have compassion for living creatures. Thus, Article 48A and Article 51A(g) obligates the State to protect environment and make every endeavor to protect lakes, rivers etc., to maintain the ecology balances. Since the ownership and control over material resources of the community are lies with the State, such resources are to be distributed as best to sub-serve the common good - Vide Article 39(b) of the Constitution of India.
The vacant lands, lakes, rivers etc., are under the direct control of the State and the State has to maintain those rivers, lakes, tanks as stated above by applying the doctrine of public trust and right to life. It is for the State to allot such lands in various circumstances being the custodian of the property of the public. The MSM,J wp_5464_2019 and batch 19 Apex Court in "Subhash Kumar vs. State of Bihar and ors.15"
held that right to life is a fundamental right which includes the right of enjoyment of pollution free water and air for full enjoyment of life. At the same time, in the guise of sustainable development, the State cannot allot the properties to whomsoever the State likes.
While allowing the public property to the 3rd parties, the State has to keep in mind its consequences on the environment and the obligation of the State under the Constitution of India to keep up the heritage and culture. The 42nd amendment to the constitution of India added Article 48A and 51A(g) which comes under the directive principle of State policy and the fundamental duties respectively. The Supreme Court of India in "Sachidanand Pandey v. State of West Bengal16" stated that the Court is bound to bear in mind the above said articles whenever a case related to environmental problem is brought to the court. In "Damodar Rao v. S.O. Municipal Corporation17" the Apex Court held that the environmental pollution and spoliation which is slowly poisoning and polluting the atmosphere should also be regarded as amounting to violation of Article 21 of the Constitution of India.
Similar question came up for consideration before the Apex court in "Intellectuals Forum, Tirupathi v. State of A.P. & Ors."
(referred supra) wherein the Division Bench of the Apex Court has considered the allotment of tanks known as „Avilala Tank‟ and „Peruru Tank‟, which are situated in the suburbs of Tirupathi Town, which is a world renowned popular pilgrim centre to housing board for construction of residential houses to the public, but a social 15 1991 AIR 420 16 1987 AIR 1109 17 AIR 1987 AP 171 MSM,J wp_5464_2019 and batch 20 spirited person approached the court for judicial remedy before this Court challenging the allotment of land by G.O.Ms. No.181 Rev. dated 15.3.1991 alienating an extent of 150 acres of land which belongs to the tank bed area of Peruru tank to Tirumala Tirupathi Devasthanam (in short, TTD) and to Housing Board etc., were challenged. The Writ Petition No.7955 of 1994 was filed assailing G.O.Ms.No.181, dated 15.3.1991 in respect of alienation of Peruru tank bed land to TTD and Writ Petition No.8650 of 1994 was filed assailing G.O.Ms.No.84-Revenue Department, dated 28.1.1994 in respect of alienation of Avilala tank bed area land to A.P. Housing Board. The High Court dismissed the writ petitions on various grounds and aggrieved by the order of this Court, the public spirited person approached the Supreme Court. The Apex Court, after considering the facts and circumstances of the case, concluded that alienation of tank bund land vide G.O. Ms.No.84, dated 28.1.1994 is in violation of Articles 48A and 51A(g) of the Constitution of India, after considering the doctrine of „sustainable development‟ and observed as follows :
"On realizing the importance of restoration of tank basins towards conservation of water and recharging of ground water, increase the storage capacity of tanks, renovating the tank bunds as well as feeder channels, TUDA has taken over 30 tanks in its operational area for taking up the improvements. Proposals include removal or eviction of encroachments, desilting of tank basins, clearing of jungle, strengthening of tank bunds, excavation of boundary trenches, widening and excavation of feeder channels, construction of boundary pillars and compound walls along the tank boundary. Block plantation, programmes for development as landscaped parks and water based entertainment units for the benefit of the public in off shore areas of the tanks have been proposed wherever feasible and viable. Towards protection of environment, provision for treatment system is also made in the project to take care of entry of drainage/sullage into the tank storages. Block plantation on all on- shore areas of tank have been taken up as a part of Neeru Meeru MSM,J wp_5464_2019 and batch 21 programme to prevent erosion of soils and entry of encroachments which will have long term positive environment results."
The Apex Court also referred the declaration of environment and development passed during the Earth Summit at 1992 to which India is also a party, adopted the notion of sustainable development principle i.e., in order to achieve sustainable development, environmental protection shall constitute an integral part of the development process and cannot be considered in isolation from it.
The Apex Court in the case of "Essar Oil v. Halar Utkarsh Samiti18" was pleased to expound on this, and held that "this, therefore, is the sole aim, namely, to balance economic and social needs on the one hand with environmental considerations on the other. But in a sense all development is an environmental threat. Indeed, the very existence of humanity and the rapid increase in population together with the consequential demands to sustain the population has resulted in the concreting of open lands, cutting down of forests, filling up of lakes and the pollution of water resources and the very air that we breathe. However there need not necessarily be a deadlock between development on the one hand and the environment on the other. The objective of all laws on environment should be to create harmony between the two since neither one can be sacrificed at the altar of the other." . A similar view was taken by the Apex Court in "Indian Council for Enviro-Legal Action v. Union of India19", wherein it is held that "while economic development should not be allowed to take place at the cost of ecology or by causing widespread environmental destruction and violation; at the same time the necessity to preserve 18 2004(2)SCC 392 19 1996 (5) SCC 281 MSM,J wp_5464_2019 and batch 22 ecology and environment should not hamper economic and other developments. Both development and environment should go hand in hand, in other words, there should not be development at the cost of environment and vice versa, but there should be development while taking due care and ensuring the protection of the environment."
Article 48-A of the Constitution of India mandates that the State shall endeavor to protect and improve the environment to safeguard the forests and wild life of the country. Article 51A of the Constitution of India, enjoins that it shall be the duty of every citizen of India, inter alia, to protect and improve national environment including forests, lakes, rivers, wild life and to have compassion for living creatures.
Taking into consideration of various factors and the law laid down by the Apex court as referred to supra, the Supreme Court succinctly issued following guidelines :
"With regard to Peruru tank :
(i) No further constructions to be made.
(ii) The supply channel of Bodeddula Vanka needs to be cleared and
revitalized. A small check dam at Malapali to be removed to ensure the free flow and supply to the tank.
(iii) Percolation tank to be constructed and artificial recharge to be done to ensure the revival of the tank, keeping in mind its advantage at being situated at the foot hills.
(iv) The area allotted by Mandal Revenue Office for construction of the tank to be increased to a minimum of 50 acres. Percolation tank with sufficient number of recharge shafts to be developed to recharge the unsaturated horizons up to 20 m. The design of the shafts etc. to be prepared in consultation with the CGWB. The proposed percolation tank to be suitably located along the bund keeping in view the inlets, irrigation sluices and surplus water.
MSM,J wp_5464_2019 and batch 23
(v) Feasibility and cost estimation for the revival of the old feeder channel for Swarnamukhi River should be carried and a report to be submitted to the Court.
(vi) Each house already constructed by the TTD must provide for roof top rain water harvesting. Abstraction from ground water to be completely banned. No borewell/tubewell for any purpose to be allowed in the area.
(vii) Piezometers to be set up at selected locations, in consultation with the CGWB to observe the impact of rain water harvesting in the area on ground water regime.
With regard to Avilala tank :
(i) No further construction to be allowed in the area.
(ii) Each house already constructed by the APHB/TUDA must provide structure for roof top rain water harvesting. All the storm water in the already built colonies to be recharged to ground water.
Structures for such purposes to be designed in consultation with the CGWB.
(iii) No borewell/tubewell for any purpose to be allowed in the area.
(iv) An area of 40 acres presently reserved for the Government should not be developed in any way that may lead to concretization of the ground surface. Recharge structures to be constructed for rainwater harvesting.
(v) Piezometers to be set up at selected locations, in consultation with the CGWB to observe the impact of rain water harvesting in the area on ground water regime."
The Constitution obligates the State to protect river water, lakes etc., with a view to enhance environment and to avoid environmental degradation. While the Constitution does not specifically recognize a fundamental right to water, but court decisions deem such a right to be implied in Article 21. Also Article 39(b) mandates that the State shall, in particular, direct its policy towards securing that the ownership and control of the material resources of the community are so distributed as best to sub-serve the common good. In "Subhash Kumar v. State of Bihar (referred MSM,J wp_5464_2019 and batch 24 supra)" the Apex Court recognized that the right to life „includes the right of enjoyment of pollution free water and air for full enjoyment of life.‟ Viewed from any angle, it is the obligation of the State to protect the water pollution and protect lakes, rivers, tank beds etc., in terms of Article 48A and 51A(g) of the Constitution of India.
According to the petitioner, an extent of Ac.0.04 cents in Konka Chennaiah Gunta, Puthur Village, Tirupathi Urban Mandal, Chittoor District was assigned to the vendor of the petitioner in freedom fighters quota, imposing certain restrictions therein. But the respondents denied very issue of patta in view of the probation in G.O.Ms.No.157 dated 13.02.1987 and CCLA‟s ref. No.B2/2225/2003 dated 20.09.2003 and that the land assigned is classified as „water body‟ is illegal and contrary to law.
The petitioner did not dispute classification of land, but asserted that no water body is in existence and it is occupied by several residents raising pucca constructions in Sy.No.173/3 of Konka Chennaiah Gunta, Puthur Village, Tirupathi Urban Mandal, Chittoor District. Therefore, in the non-existing of water body, assignment of land is not prohibited. This contention cannot be accepted in view of the principle laid down by the Apex Court in "Hinch Lal Tiwari v. Kamala Devi20".
The Apex Court in "Sarvepalli Ramaiah v. District Collector, Chittoor" (referred supra) held that, water bodies cannot be alienated even if they are dry, and cultivation carried on dried bed of water bodies does not denude land of its character as water bodies.
20
2001 Supp (1) SCR 23 MSM,J wp_5464_2019 and batch 25 The petitioner based his claim on the patta granted in favour of his vendor and it is placed on record letter addressed by P.Venu Gopal, Secretary, Chittoor District Freedom Fighters‟ Association, Tirupathi to the Mandal Revenue Officer, Tirupati Revenue Mandal, Tirupati, who in turn forwarded the applications of 34 freedom fighters for assignment of house sites in their favour, but no proceedings were issued assigning the land to various freedom fighters. However, „no objection certificate‟ dated 29.04.2014 was issued by Mandal Revenue Officer, Tirupathi (Urban), Mandal would show that „no objection‟ was reported for obtaining electricity connection to the house of P.Ramachandran, s/o P.Palakshi, the petitioner herein. Mere issue of „no objection certificate‟ by Mandal Revenue Officer to obtain electricity service connection would not create or confer any right in the immovable property though, he allegedly purchased the property. Therefore, the documents produced before this Court except patta allegedly issued in favour of the vendor of the petitioner, there is nothing to establish that the vendor of the petitioner was granted patta for an extent of Ac.0.04 cents, which is classified as "tank poramboke". When the respondents denied very issue of patta, assigning Ac.0.04 cents in Konka Chennaiah Gunta, Puthur Village, Tirupathi Urban Mandal, in favour of the vendor of the petitioner, it is for the petitioner to establish that the patta was granted in favour of the vendor of the petitioner by the competent authority and that he is in possession and enjoyment of the property. Adangal copy produced along with the counter filed by respondent No.4 clinchinly established that the land in Sy.No.173-3 in an extent of Ac.2.50 cents is classified in as "Konka Chennaiah Gunta cheruvu"(column No.12).
MSM,J wp_5464_2019 and batch 26 Apart from that in G.O.Ms.No.157 Revenue (M) Department dated 13.02.1987 specific directions were issued to the District Collectors, which are as follows:
(1) No cultivation should be allowed in the tank bed area under any circumstances.
(2) No lease of the tank bed lands including the lands lying beyond the full tank level (FTL) either on „Eksal‟ basis or for a longer period after the expiry of the subsisting leases should be allowed, and (3) No fresh leases of tank bed lands should be granted in future even during the drought year.
All the above documents would clinchingly establish that the land in Sy.No.173/3 of Konka Chennaiah Gunta is classified as "Cheruvu" i.e. water body, assignment of it is prohibited under BSO 15 para 4 (ii) (h). The petitioner failed to establish the assignment of land in favour of his vendor by producing any other material, more particularly when the land is classified as „water body‟. The genuineness of patta produced by the petitioner along with the writ petition cannot be decided at this stage. However, the, petitioner is not entitled to claim any right in the property based on such unregistered sale deed.
The petitioner claiming to be in possession and enjoyment of the property and the same was denied by respondent No.4 while contending that when the petitioner made an attempt to encroach the land to raise temporary construction in the land, respondent No.4 prevented the same, and again the petitioner is making attempt to encroach the land without any right or title to the property and any amount of interference is only to prevent such encroachment. In MSM,J wp_5464_2019 and batch 27 such case, it is for the petitioner to establish that the petitioner is in possession and enjoyment of the property by producing substantive material, but here the petitioner did not produce any material except producing tax receipts evidencing payment of tax to the Municipality or electricity bills evidencing payment of electricity consumption charges to the concerned authorities, but no other documents are produced to establish that the petitioner is in possession of the property. Moreover, it is difficult to identify the land based on the positive photographs produced by the petitioner along with reply affidavit, more particularly, possession of the petitioner. Therefore, the petitioner miserably failed to establish his possession and enjoyment of the property, which is classified as „water body‟ and the assignment of the same is prohibited BSO 15 para 4 (ii) (h). Hence, the writ petition is liable to be dismissed.
In view of my foregoing discussion, I find no merit in the petitions. Consequently, the writ petitions are liable to be dismissed.
In the result, the writ petitions are dismissed. No costs. Consequently, miscellaneous petitions pending if any, shall also stand dismissed.
_________________________________________ JUSTICE M. SATYANARAYANA MURTHY 09.11.2021 Ksp