Andhra Pradesh High Court - Amravati
Karuturi Vara Prasad, vs The State Of Andhra Pradesh on 9 August, 2019
Author: M.Satyanarayana Murthy
Bench: M.Satyanarayana Murthy
THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY
WRIT PETITION Nos.1605, 2382, 2401, 2428, 2430, 2433, 2434,
2470, 2728 and 2904 of 2015
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 am of the view that it is appropriate to decide all the petitions by common order taking Writ Petition No.1605 of 2015 as leading petition.
All these petitions are filed questioning the action of the temple proposing to conduct auction of the property in various survey numbers.
Writ Petition No.1605 of 2015 is filed under Article 226 of Constitution of India seeking a writ of Mandamus to declare the action of the respondents, specially, respondent No.3 who proposed to conduct public auction on 06.02.2015, in respect of agricultural land in S.No.18/4 of an extent of Ac.2.03 cents in Lolla Village, Atreyapuram Mandal, East Godavari District, along with other properties, though the lands do not belongs to the respondent No.3 temple, as illegal, arbitrary and violative of principles of natural justice, contrary to the provisions of A.P.Charitable and Hindu Religious Institutions and Endowments Act 1987 (for short "the Act"), Rules framed thereunder, Article 300-A of the Constitution of India and consequently desist the respondent No.3 to proceed with the auction of leasehold rights of land in dispute.
The contention of the petitioners is that the petitioner No.2 and petitioner No.1 are mother and son. The petitioner No.2 and her father Karuturi Suryanarayana @ Surya Rao, purchased land in S.No.18/4 of an extent Ac.1.01 ½ cents each totalling Ac.2.03 cents MSM,J wp_1605_2015 and batch 2 in Lolla Village, Atreyapuram Mandal, East Godavari District, by way of two registered sale deeds, dated 27.09.1968, for valuable consideration from Akula Suryanarayana and his sons and Baddiraju Kameswara Rao and others. The petitioner No.2 and Karuturi Suryanarayana @ Surya Rao have been in possession and enjoyment of the agricultural lands referred supra since the date of purchase and paying taxes. Karuturi Suryanarayana @ Surya Rao, who is the grandfather of the petitioner No.1 died on 26.10.2003. During his life time, he had executed a registered Will dated 15.12.1999 whereunder an extent of Ac.1.01 ½ cents purchased by him, way back in the year 1968 was bequeathed to the petitioner No.1. After the death of Karuturi Suryanarayana @ Surya Rao, petitioner No.1 came into possession of the land and personally cultivating the land. Petitioner No.1 also cultivating the land of petitioner No.2 herein and obtained Pattadar passbooks and title deeds from the concerned revenue authorities for the land referred supra. Their names were also mutated in revenue records. Even during agricultural year 2014- 2015, the petitioners raised paddy crop in the land which was ripe for harvesting.
It is the contention of the petitioners that the agricultural land referred supra originally belong to the family of Patta Padmavathi and others. The ancestors of Patta Padmavathi, as can be seen from the proceedings of Board of Commissioner for Hindu Religious and Endowments, Madras, vide proceedings dated 13.05.1940, constructed a small Lord Anjaneyaswamy temple in their house premises; that the same temple was declared as private temple; that one Akula Veeranna made an application in the year 1933, vide B.O.No.508, dated 28.02.1933, to the Board of Commissioner for MSM,J wp_1605_2015 and batch 3 Hindu Religious and Endowments, Madras, claiming that the lands purchased by them along with other lands belong to the respondent No.3 - temple etc. The same was registered as O.A.No.499 of 1939 and it was held by order dated 13.05.1940 that under Section 84 of the Madras, Hindu Religious and Endowments Act, 1926, already a finding was recorded that the temple is a private temple and eventually dismissed the said O.A. A perusal of the said proceedings also manifests that, in fact, the O.A. was revival of B.O.No.508 dated 28.02.1933. Suits O.S.Nos.224 of 1934 and 226 of 1934 were filed to declare the temple as private temple. The said suits were allowed, decreed and the decision in both the suits was confirmed in appeal and attained finality. Thus, the temple is a private temple as declared in the suits and other proceedings referred above.
It is the specific case of the petitioners that mother and grandfather of petitioner No.1 purchased the property in the year 1968 from Akula Suryanarayana and his sons and Baddiraju Kameswara Rao, who in turn purchased the same in the year 1952 from the original owners, against whom O.A. was dismissed way back in the year 1940.
While matters stood thus, Village Servant of Lolla village served notice requesting to attend Revenue Sadassu on 24.07.2000 before the respondent No.4 herein. The petitioners submitted a detailed explanation/reply dated 24.07.2000 and copy of the same was marked to the Joint Collector, East Godavari District, pursuant to the said reply, no communication was received from the revenue officials. But at the behest of some persons of Kattunga Village, who have vested interest, the Executive Officer of Atreyapuram obtained legal opinion with regard to nature of the lands and the advocate MSM,J wp_1605_2015 and batch 4 narrated the previous history of the lands and finally opined that no action can be taken for recovery of possession of the property of the temple as the public or the department are no way concerned, and the respondent No.2 vide R.C.No.A/16010/74-1/A, E.N, dated 16.12.1974 took up enquiry after issuing notices to petitioner No.2 and grandfather of petitioner No.1 and others directing them to appear on 28.12.1974 along with documentary evidence; and after perusing the documentary evidence, respondent No.2 concluded that the lands are private lands and dropped further proceedings. While the petitioners are continuing in possession and enjoyment of the property, the Executive Officer of the respondent No.3 temple got published a pamphlet that the temple is proposing to conduct auction of leasehold rights on 06.02.2015 for a period of three year commencing from 2015-2016 to 2017-2018, immediately the petitioner No.1 approached the authorities and enquired as to the reason for proposed auction of leasehold rights, but they did not respond properly. Thus, the alleged proposed auction of leasehold rights for a period of three (3) years is illegal and that the temple is no way concerned with the lands. Therefore, the impugned notices are liable to be set aside as they are contrary to the provisions of A.P.Charitable and Hindu Religious Institutions and Endowments Act.
The Executive Officer of respondent No.3 - Temple filed counter denying the material allegations inter alia contending that Sri Anjaneya Swamy Temple, Kattunga Village, Atreyapuram Mandal, East Godavari District is a public charitable temple published U/Sec.6(c) of the Endowments Act, 30/1987 and under the administrative control of the Assistant Commissioner, Endowments Department, Rajahmundry.
MSM,J wp_1605_2015 and batch 5 It is further contended that the properties in "B" Schedule originally belongs to one Sri Venkata Jogayya Panthulu inherited by his wife Smt. Venkata Ramanamma. She executed a will in favour of Sri Anjaneya Swamy Temple bequeathing schedule "B" properties to temple, as such, the temple has became the absolute owner of the property by virtue of the surrender deed executed by her. These properties are registered under Section 43 of the Act, 30/87 vide registration No.685, dated 13.09.2000. As per Sec.43 register of the temple it is having landed properties as mentioned below. Smt. Venkata Ramanamma, W/O Late Venkata Jogayya Panthulu of Mummidivaram Village has bequeathed her properties acquired by her through will deed of her husband Sri Venkata Jogayya Panthulu vide will deed document No.14/1909, dated 25.05.1909. The said properties were given to the respondent No.3 temple i.e., Lord Sri Anjaneya Swamy Temple, Kattunga Village vide her surrender document No.757/1945, dated 08.04.1945. In the same deed the donor has bequeathed Schedule "A" properties to her daughter's adopted son Krishna Rao and bequeathed Schedule "B" properties for the daily rituals, prayers, Dhoopa, Dheepa, Naivedyam of Lord Sri Anjaneya Swamy. Further she has seized the rights of earlier trustees and appointed Sri Krishna Rao (daughter's adopted son) as a trustee. Hence the below mentioned properties stands in the name of the respondent No.3 temple.
Sl.No. Name of the village R.S.No. Extent
1 Lolla Village 32/1 2.76
2 Lolla Village 86/2 0.32
3 Lolla Village 86/3 0.31
4 Lolla Village 164/9 0.33
5 Lolla Village 164/10A 4.18
6 Lolla Village 18/4 2.03
MSM,J
wp_1605_2015 and batch
6
7 Kattunga Village 177/1 3.59
8 Kattunga Village 170/9 0.24
9 Vasanthawada 71/4 2.13
10 Vasanthawada 131/3 2.29
--------------
Total 18.18
--------------
It is further contended that the following lands were also shown in Section 43 register without proper details. As per 'A' Schedule property in surrender deed No.757 of 1945 executed by Smt. Venkata Ramanamma W/o Late Venkata Jogayya Panthulu of Mummidivaram Village the following lands are not pertaining to Sri Anjaneyaswamivari Devasthanam, Kattunga village, Atreyapuram Mandal, East Godavari District.
Sl.No. Name of the village Extent
1 Tanuku Village, 1.20
W.G.District
2 Chitakalapadu, 3.70
W.G.District
3 Mummidivaram, 2.00
E.G.District
4 Pasalapudi, 1.50
W.G.District
------------
Total 8.40
------------
It is further alleged that the temple has issued auction notification for conducting auction on 06.02.2015 for the leasehold rights of the lands belonging to it for a period of three years as per the rules framed under G.O.Ms.No.379, dt:23.03.2003. As per the MSM,J wp_1605_2015 and batch 7 schedule the auction is held and the following are the details of the auction.
Sl. Name of the Village R.S.No. Extent Name of the Bid details Remarks
No Highest
Bidder
1 Lolla 32/1 2.76 Sri Rs.71,000/- Interim
D.Sivarama per annum orders in
Raju, W.P.M.P.No.
3242, 3661
S/o
of 2015 in
Krishnam
W.P.No.1605
Raju
of 2015.
Interim
Orders in
W.P.M.P.No.
3883, 3884
of 2015 in
W.P.No.2904
of 2015
2 Lolla 86/2 0.32 Sri Gajula Rs.20,000/-
Lollayya, per annum
86/3 0.31
S/o
Venkanna
3 Lolla 164/9 0.33 Sri Rs.2,53,000
K.Suryanar
164/10A 4.18 Per annum
ayana
S/o
Govindham
4 Lolla 18/4 2.03 Sri Rs.61,000/- Interim
A.Hanuman orders in
tha Rao W.P.M.P.No.
2130 and
S/O
2131 of 2015
Brammayya
inW.P.No.16
05 of 2015.
5 Kattunga 177/1 3.59 Sri Rs.1,25,000 Interim
P.Srinivasa orders in
170/9 0.24 Rao W.P.No.2218
of 2015
S/o
Venkatrao
6 Vasanthawada 71/4 2.13 Sri Rs.74,000/- Interim
K.Nageswar Orders in
Per annum
a Rao W.P.No.1605
, 2434, 2382
S/o
and 2470 of
Pedanagann
2015
a
7 Vasanthawada 131/3 2.29 Sri Rs.86,000/- Interim
M.Srinivasa orders in
Raju, W.P.No.2401
, 2425 and
S/o
2906 of
Satyanaraya
2015.
na
W.P.No.2425
of 2015
pending
before
Hon'ble High
court of A.P.
Total 18.18
It is further contended that all the properties stands in the name of the respondent No.3 temple as per the entries in the Section 43 Register, the Resurvey and Settlement Register (RSR) and as per the surrender deed No.757/1945, dated 08.04.1945. The MSM,J wp_1605_2015 and batch 8 contention of the petitioner that the lands are private lands purchased and enjoyed through proper registered sale deeds cannot be accepted, as the lands mentioned above stands in the name of the temple as per the entries in Section 43 Register prepared under Act 30/87. As per Section 46 (3) of the Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act, 1987 the entries made in the property register shall be presumed to be genuine, unless the contrary is proved and nobody has questioned the entry at any point of time before any Court of law or authority concerned. The remedy available to the petitioners is to approach the Andhra Pradesh Endowments Tribunal, but not before this Court under Article 226 of the Constitution of India and this Court cannot issue any direction more particularly one in the nature of Writ of Mandamus and prayed for dismissal of the petitions.
During hearing, Sri S.Subba Reddy on behalf of Sri T.V.Jaggi Reddy, learned counsel for the petitioners, contended that the documentary evidence produced along with the writ petitions would clinches the issue and that the property belongs to the petitioners as the petitioner No.2 and Karuturi Suryanarayana @ Surya Rao purchased the same from two different persons i.e. Akula Suryanarayana and Baddiraju Kameswara Rao under two different sale deeds in the year 1968 and continuing in possession and enjoyment of the property. Their predecessors purchased the same from Patta Padmavathi under different registered sale deeds and that the temple is no way with the property since it is a private temple as declared by the Board of Commissioner for Hindu Religious, Endowments, Madras and he placed on record the judgment in O.A.No.499 of 1939, and the decree and judgment in O.S.No.224 of MSM,J wp_1605_2015 and batch 9 1934 and 226 of 1934 and other documents to substantiate his contention that the property is exclusive property of the petitioners and that the respondent No.3 has nothing to do with the same. Therefore, sale of leasehold rights by conducting public auction is illegal. It is also contended that when the petitioners are claiming title to the property bonafidely and substantiated such contention by producing satisfactory material, it is for the respondent No.3- temple to initiate proceedings under Section 83 of the A.P. Charitable and Hindu Religious Institutions and Endowments Act 1987, but they cannot conduct auction of leasehold rights to defeat the rights of the petitioners. In support of his contentions, he placed reliance on the judgment of Apex Court in "Government of Andhra Pradesh v. Thummala Krishna Rao1" and "Kakinada Annadana Samajam:
I.V.Gopal Rao: Yadalla Pitchaiah Chetty Charities Association v.
Commissioner of Hindu Religious and Charitable Endowments, Hyderabad2". On the strength of the principles laid down in the above judgments, learned counsel for the petitioners contended that the respondent No.3 - temple is incompetent to conduct auction of the leasehold rights of the property and prayed to allow the petitions.
Smt.K.Lalitha, learned Standing Counsel for Endowments, contended that when the petitioners are disputing the title of the respondent No.3 since respondent No.3 created cloud on the title, it is for the petitioners to approach competent civil Court to get their rights declared by filing appropriate proceedings, but cannot insist the respondent No.3 to approach Commissioner of Endowments under Section 83 of the Act to remove trespassers from possession of the property. In support of her contentions, she placed reliance on 1 (1982) 2 SCC 134 2 (1970) 3 SCC 359 MSM,J wp_1605_2015 and batch 10 the judgment of learned Single Judge of this Court rendered in "Executive Officer, Sri Bramaramba Mallikarjuna Swamy Temple v. Sai Krupa Homes, Karimnagar3" and prayed to dismiss the petitions.
Considering rival contentions, perusing the material available on record, the point that arises for consideration is:
Whether the auction notice dated 15.01.2015 be declared as arbitrary, illegal and violative of provisions of A.P.Charitable and Hindu Religious Institutions and Endowments Act 1987, if so, consequential direction be issued to the respondent No.3 not to conduct auction of leasehold rights of the lands?
P O I N T:
According to the petitioners, originally the property belongs to Patta Padmavathi and her ancestors, the petitioners' predecessor-in- title i.e. A.Suryanarayana and Baddiraju Kameswara Rao purchased the property from Patta Padmavathi under registered sale deed. Later, several proceedings have taken place in different Courts and authorities. In all these proceedings, temple was declared as private temple, but the petitioners for the reasons best known to them did not furnish the copies of title deeds of their ancestors through whom the petitioners acquired title. In the absence of title deed of Akula Suryanarayana and Baddiraju Kameswara Rao, it is difficult to conclude that the petitioners' predecessors-in-title i.e. Akula Suryanarayana and Baddiraju Kameswara Rao became owners of the property, in turn they sold the same to the grandfather of the petitioner No.1 and petitioner No.2, who allegedly became the owners of the property by sale deed dated 27.09.1968.
3 2010 (6) ALD 207 MSM,J wp_1605_2015 and batch 11 In any view of the matter, petitioners obtained pattadar passbooks and title deeds and paying land revenue to the Revenue Department. At the same time, the respondent No.3 - temple also produced material before this Court to show prima facie that the original owner Venkata Jogayya Panthulu executed Will deed document No.14/1909, dated 25.05.1909 in favour of his wife Smt. Venkata Ramanamma. The said property was given to the respondent No.3 temple i.e., Lord Sri Anjaneya Swamy Temple, Kattunga Village vide her surrender document No.757/1945, dated 08.04.1945. Copies of documents also placed on record for perusal of the Court. Apart from the register maintained under Section 43 of the Act, registration certificate of the temple and copy of surrender deed document No.757 of 1945 are also placed on record before the Court to establish prima facie that the temple is owner of the property. On consideration of documentary evidence produced by both parties, it is clear that the both parties set up rival claim to one another and created cloud on the title of each other. The respondent No.3 cannot approach the Civil Court in view of ouster of jurisdiction on account constitution of Tribunal under Section 87 of the Act. It is the contention of the learned counsel for the petitioners that the temple has to take appropriate steps to remove encroachments in the land and the petitioners cannot approach the Tribunal in view of the bar under Section 162 of the Act. No doubt, the petitioners cannot approach the Tribunal for declaration of their title and it is not a substitute to the Civil Court and not competent to grant declaration of title of third parties, when a third party wanted to get his title declared, the course open to the third party is to approach the Civil Court and seek appropriate relief of declaration of title as there is a clear cloud on the title on account of various proceedings produced MSM,J wp_1605_2015 and batch 12 before the Court. Since there is an interdict on the jurisdiction of Civil Court by virtue of Section 155 of the Act, the petitioner cannot approach the Civil Court. The jurisdiction of the Civil Court is ousted in view of bar under Section 155 of the Act when the Commissioenr or Department wants to get the title declared or to claim any relief prescribed under the Act, but the third party claiming title and intend to get the title declared, the bar under Section 155 of the Act will not come in the way and the third party can approach the Civil Court for appropriate remedy since Section 9 of C.P.C. permits all Civil Courts to take cognizance of suits of Civil nature unless jurisdiction of Civil Court is ousted by express bar or by implication.
In "M/s. Kamala Mills Ltd., v. State of Bombay4" the Apex Court held as follows:
"Exclusion of jurisdiction of civil court expressly or impliedly, words of statutory provision on which plea of bar is rested, the scheme of relevant provision, their object and purpose to be seen. Court will consider whether remedy in special statue is sufficient or adequate. Such determination is relevant but not decisive in case of expressed bar. In case of plea of implied bar such determination may be decisive. Special right and liability created by special statue determinable by special tribunal. Even then court will enquire whether remedies normally available in civil court are prescribed by such statute."
In "Dhulabai v. State of Madhya Pradesh5", the Supreme Court laid down the following seven guidelines:
"(1) Whether the statute gives finality to the orders of the special tribunals the Civil Court's jurisdiction must be held to be excluded if there is adequate remedy to do what the civil courts would normally do in a suit. Such provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure.
(2) Where there is an express bar of the jurisdiction of the Court, 4 AIR 1965 SC 1942 5 AIR 1969 Supreme Court 78 MSM,J wp_1605_2015 and batch 13 an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decision to sustain the jurisdiction of the Civil Court.
Where there is no express exclusion the examination of the remedies and scheme of particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive. In the latter case, it is necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability and further lays down that all the questions about the said right and liability shall be determined by the tribunals so constituted, and whether remedies normally associated with actions in Civil Courts are prescribed by the said statute or not. (3) Challenge to the provisions of the particular Act is ultra vires cannot be brought before Tribunals constitutes under that Act. Even the High Court cannot go into that question on a revision or reference from the decision of the Tribunals. (4) When a provision is already declared unconstitutional or the constitutionality of any provision is to be challenged, a suit is open. A writ of certiorari may include a direction for refund if the claim is clearly within the time prescribed by the Limitation Act but it is not a compulsory remedy to replace a suit.
(5) Where the particular Act contains no machinery for refund of tax collected in excess of constitutional limits or illegally collected, a suit lies.
(6) Questions of the correctness or the assessment apart from its constitutionality are for the decision of the authorities and a civil suit does not lie if the order of the authorities are declared to be final or there is an express prohibition in the particular Act. In either case, the scheme of the particular Act must be examined, because it is a relevant enquiry. (7) An exclusion of the jurisdiction of the Civil Court is not readily to be inferred unless the conditions above set down apply."
MSM,J wp_1605_2015 and batch 14 The judgment of the Apex Court in Dhulabai's case is a classic judgment on the issue of jurisdiction of a civil court, still it is good law.
Therefore, it is clear from the principles laid down in the judgments (referred above) when a separate machinery is created by the Statute, which can grant relief to the party aggrieved, the Court infer that the jurisdiction of the Civil Court is ousted. When Tribunal is constituted for deciding the claims of the Endowments department and not competent to decide disputes of the third parties with the temple, the Court cannot infer that the jurisdiction of Civil Court is ousted.
Learned counsel for the petitioners relied on the judgment of Apex Court in "Kakinada Annadana Samajam: I.V.Gopal Rao:
Yadalla Pitchaiah Chetty Charities Association v. Commissioner of Hindu Religious and Charitable Endowments, Hyderabad"
(referred supra), wherein the Court considered the scope of Section 97 of the Act and held that "so far as the validity of the impugned provisions is concerned the same must be sustained in these cases on the same reasoning as in the case relating to the hereditary trustee. The High Court has rightly left open the question whether the Turner's Choultry is a private or a public charitable institution. Thus the Municipal Council is entitled to agitate before the Deputy Commissioner under Section 77 of the Act."
Even as per the direction of the Apex Court, the Municipal Corporation is directed to agitate before Deputy Commissioner under Section 77 of the Act to decide whether the Turner's Choultry is a private or public charitable institution. This judgment is of no assistance to the petitioners to contend that the petitioners cannot approach the Civil Court.
MSM,J wp_1605_2015 and batch 15 The same issue came up before the Single Judge of High Court of Andhra Pradesh in "Executive Officer, Sri Bramaramba Mallikarjuna Swamy Temple v. Sai Krupa Homes, Karimnagar"
(referred supra), wherein it is held as follows:
"Similar issue was considered by this Court in a Division Bench judgment in "Jaggayya v. Deity of Seetharamaswamy Varu 1987 (1) ALT 18"
which is based upon the decision of the Supreme Court, which considered similar contention with respect to Andhra Pradesh Charitable and Hindu Religious Institutions and Endowment Act, 1966 wherein similar question with reference to Section 77 of the 1966 Act was considered and the suit was held to be maintainable. The present Section 87 being similar to Section 77 of the 1966 Act, it has to be held that since it is a suit for declaration, the same would not fall within the purview of the authorities under the Act 30 of 1987 under Section 87. Similarly, Section 151 contains a bar of jurisdiction that no suit or legal proceeding in respect of administration or management of an institution or endowment or any other matters of dispute for determining or deciding, for which the provision is made in this Act 30 of 1987 shall instituted in any Court. As a suit for declaration of title is not falling within the parameters of Section 151 of the Act 30 of 1987 the said contention of the Appellants is liable to be rejected and it is accordingly rejected." In the said judgment, learned single Judge followed the earlier judgment of Division Bench of this Court rendered in "Jaggayya v. Deity of Seetharamaswamy Varu 1987 (1) ALT 18", therefore, the judgment of learned Single Judge is binding on this Court. Consequently, it is difficult for me differ with the judgment of learned Single Judge of this Court and this Court is bound by the principle laid down therein as it is a binding precedent.
Thus, in view of the law declared by the learned Single Judge of this Court, the jurisdiction of Civil Court is not completely ousted, when the third party approached the Civil Court claiming declaration of title to the property. Accordingly, the contention raised by the learned counsel for the respondents is upheld while disagreeing with the contention of the learned counsel for the petitioners.
MSM,J wp_1605_2015 and batch 16 Learned counsel for the petitioners also contended that unless respondent No.3 approached the Commissioner of Endowments for removal of encroachments by invoking Section 83 of the Act conducting auction is illegal and drawn the attention of this Court to the judgment of Apex Court in "Government of Andhra Pradesh v. Thummala Krishna Rao" (referred supra). The dispute in the facts of the above judgment is removal of encroachment by following procedure under Section 6 (1) and 7 of Andhra Pradesh Land Encroachment Act, 1905. The Apex Court held that a bona fide dispute of title between the Government and the occupant must be adjudicated upon by the ordinary courts of law. But the principle laid down in the above judgment has no application to the facts of the present case.
One of the contentions raised by the learned counsel for the respondent No.3 - temple is that the proposed auction is only three years and the three years period was expired long ago, consequently no order need be passed. But this contention is not tenable since there is a dispute with regard to title to the property in view of setting up rival claims by both parties i.e. petitioners and the respondent No.3 claiming right over the same property. In those circumstances, the petitioners are entitled to approach the civil Court to claim appropriate relief against the respondent No.3, but their rights cannot be decided while exercising jurisdiction under Section 226 of Constitution of India.
The jurisdiction of this 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 Halim (Civil Appeal No.5824 of 2019 dated 24.07.2019)" wherein the Apex Court reiterated the following MSM,J wp_1605_2015 and batch 17 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 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, MSM,J wp_1605_2015 and batch 18 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.
In "State of Kerala v. A.Lakshmi Kutty6", 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.7", 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.
6 1986 (4) SCC 632 7 1995 All.L.J. 534 MSM,J wp_1605_2015 and batch 19 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.8" 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. Vohra9" 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 Jain10" 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 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.
8 (1996) 9 SCC 309 9 (2004) 2 SCC 150 10 (2008) 2 SCC 280 MSM,J wp_1605_2015 and batch 20 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 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 MSM,J wp_1605_2015 and batch 21 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 judgments (referred supra), I am not inclined to issue Writ of Mandamus.
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, Writ Petition Nos. 1605, 2382, 2401, 2428, 2430, 2433, 2434, 2470, 2728 and 2904 of 2015 are dismissed giving liberty to the petitioners to approach competent Court. No costs.
Consequently, miscellaneous applications pending if any shall stand closed.
__________________________________________ JUSTICE M. SATYANARAYANA MURTHY 09.08.2019 Ksp