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2021 DIGILAW 411 (AP)

B. Vimala Adilakshmi v. State of Andhra Pradesh

2021-07-09

M.SATYANARAYANA MURTHY

body2021
JUDGMENT 1. This writ petition is filed under Article 226 of the Constitution of India, to issue writ of mandamus declaring the action of the respondents Nos.4 and 5 in not registering the sale deed with respect to 18.66 sq yards site and RCC roof building bearing No.53-33-9/B Assessment No. 41368/B 1st floor, (30x15.5) 465 Sq.ft property only, as illegal and arbitrary and consequently direct the respondents to receive and registered the document. 2. Brief facts of the case are that, originally house site admeasuring 56 sq.yds belong to one V. Maraiah. The said land was zeroythi land in Patta No.240, Sy.No.6. The said land was purchased by K. Rami Naidu, his brothers and sons in the year 1971. K. Rami Naidu and his brothers sold the property to one Gujju Papamma under registered sale deed bearing Document No.647/1975 dated 22.01.1975 registered in the office of Joint SubRegistrar, Visakhapatnam. Gujju Papamma partitioned the land between her sons Gujju Nageswara Reddy and Gujju Ramana Murthy under registered partition deed bearing Document No.4558 of 2004 dated 19.10.2004. 3. Since then, sons of Gujju Papamma are enjoying their respective shares in the land. Subsequently, Gujju Ramana Murthy sold his share of house under registered sale deed bearing Document No.4334/2011 dated 11.08.2011 to one Philips Amantha Venkata Satya Surya Bhavani (for brevity ‘Amantha Bhavani’). Since the date of purchase, Amantha Bhavani was in peaceful possession and enjoyment of the property by paying property tax to the Municipal Corporation and electricity consumption charges to APEPDCL. 4. Amantha Bhavani intended to sell the said property to the petitioner/Vimala Adilakshmi and entered into agreement of sale on 21.12.2020. The Sub/Joint Registrar, Visakhapatnam raised an objection for registering the sale deed in favour of the petitioner stating that land in Sy.No.6/2A Part situated at K.R.M. Colony, 5. Maddilapalem, Visakhapatnam, is a land surrendered in the Urban Land Ceiling proceedings vested on the Government, thereby it is a Government land notified under Section 22-A(1)(a) of the Registration Act, as such it is not possible to register the sale deed. Maddilapalem, Visakhapatnam, is a land surrendered in the Urban Land Ceiling proceedings vested on the Government, thereby it is a Government land notified under Section 22-A(1)(a) of the Registration Act, as such it is not possible to register the sale deed. It is the contention that the said property is not a government land and since 1975, from generations to generations, the property was in possession and enjoyment of different persons; partition deed and sale deeds were registered by the Sub-Registrar, Visakhapatnam, now the Sub/Joint Registrar, Visakhapatnam raised an objection to register the sale deed on the ground that, the said Sy.No.6/2A part situated at K.R.M. Colony, Maddilapalem, Visakhaptnam, is a land surrendered in the Urban Land Ceiling proceedings, vested on the Government, thereby it is a Government land notified under Section 22-A(1)(a) of the Registration Act, as such it is not possible to registered the sale deed. 6. Further, it is contended that, the provisions of Urban Land Ceiling Act, 1976, do not attract the case of the petitioner. The land along with house has undergone several transactions since 1971 before commencement of Urban Land Ceiling Act, 1976. The land is purely private land and there are number of registered sale deeds. 7. Originally the house was constructed prior to 1971; and the petitioner paid amount under agreement of sale to Mrs. Amantha Bhavani and the Sub-Registrar/fifth respondent is refusing to register the property, on the ground that the land falls within the urban land ceiling surplus land and the action of the respondents in treating the land admeasuring 18-66 sq.yds covered by building D.No.53-33-9/B, Assessment No.41368/B, 1st floor (30x15.5) 465 sq.ft property, as illegal, arbitrary and requested to issue writ of mandamus, as claimed by the petitioner. 8. Respondent No.3/Tahsildar, Seetammadhara Mandal, Visakhapatnam, denied material allegations, inter alia, contending that, the land is situated in Sy.No.6/3 part of Maddilapalem Village of Seethammadhara Mandal of Visakhapatnam District. As per the copy of Maddilapalem Revenue Records, Sy.No.6 is classified as “Inam Dry” to an extent of Ac.10-10 cts whereas, the land is notified by District Collector under prohibited properties list as per Section 22-A(1)(d) and Sy.No.6/3, as surplus land covered by an extent of 0-6954 sq.mts vide C.C.No.6724/76 was surrendered under Urban Land Ceiling Act as per the list of Government lands. 9. 9. Respondent No.3 further contended that, the subject land is in Sy.No.6/2 part of Maddilapalem Village, whereas, on ground verification by the office of Mandal Surveyor, the subject land is covered by RCC building (G+2) in Sy.No.6/3 part of Maddilapalem Village of Seethammadhara Mandal of Visakhapatnam District, which is covered in Urban Land Ceiling List of prohibited properties under Section 22(A)(1)(d) of Registration Act, which is Government land, hence, the land is included in the list of prohibited properties under Section 22(A)(1)(d) of Registration Act and document presented cannot be registered. 10. Respondent No.5/ Sub-Registrar, Maddilapalem, Visakhapatnam District, filed separate counter affidavit, reiterating litigation about the land and contended that, the land is notified under Section 22-A of the Registration Act. The specific contention of the fifth respondent is that, land in Sy.Nos.4, 5 and 6/P in an extent of Ac.0-23 cents related to subject matter in C.C.No.6436/1976, Sy.No.6/P is an extent of Ac.2-63 cents was related to C.C.No.5518, Sy.No.6/P, an extent of Ac.7-77 cents related to C.C.No.6202/75, Sy.No.6P, an extent of Ac.2-63 cents related to C.C.No.5518, Sy.No.6, 7/P, an extent of Ac.1-62 was related to C.C.No.6274. In all entries, it was noted that the Sub-Division record was not received from the Urban Land Ceiling office. As such the subject survey number 6/2A cannot be presumed as not affected by the notification as no sub division statements are received from the Revenue Department. 11. Respondent No.5 submitted that the property covered by Sy.No.6/2A Part, is included in the prohibited property list notified under Section 22-A of the Registration Act, 1908, as Sy.No.6 Part was notified under Section 22-A(1)(d) as surplus land belongs to the Government. The Government of Andhra Pradesh constituted a Committee to resolve the pending individual grievance petitions relating to land records in their G.O.Ms.No.346 Revenue (EA&SR) Department dated 26.07.2016, wherein the District Revenue Officer is the Convener, concerned Revenue Divisional Officers, Judicial Officer in the rank of retired Sub-Judge and Assistant Director (Survey and Land Records) are the members. The petitioner instead of approaching the grievances committee, approached the Court seeking directions against the respondent to accept the registration of property covered by Sy.No.6/2A Part of Maddilapalem, thereby, the petitioner is not entitled to claim relief in the writ petition and requested to dismiss the writ petition. 12. The petitioner instead of approaching the grievances committee, approached the Court seeking directions against the respondent to accept the registration of property covered by Sy.No.6/2A Part of Maddilapalem, thereby, the petitioner is not entitled to claim relief in the writ petition and requested to dismiss the writ petition. 12. During hearing, learned counsel for the petitioner mainly contended that, the petitioner’s property is not part of Urban Land Ceiling surplus holding and it is only part of Sy.No.6/2A part situated at K.R.M. Colony, Maddilapalem, Visakhaptnam and suplus holding of the declarant. But, inclusion of entire survey number in the prohibitory properties list is an illegality, as such, inclusion of the property of this petitioner in the prohibitory properties list under Section 22-A of Registration Act, is a grave illegality and requested to grant relief as stated supra. 13. Whereas, learned Assistant Government Pleader for Revenue fairly conceded that, part of survey number is subject matter of Urban Land Ceiling proceedings. But, entire survey number is notified under Section 22-A of the Registration Act, since there was no sub-division after completion of Urban Land Ceiling proceedings by the revenue authorities. Unless the land in specific survey number is sub-divided, in case the property is not covered by the proceedings under Urban Land Ceiling Act, the petitioner is entitled to claim such relief in the writ petition and till sub-division is taken place, the question of deleting the subject land does not arise and requested to dismiss the writ petition. 14. As seen from the material on record, Writ petitioner is one B. Vimala Adilakshmi and the writ affidavit is sworn by her. The contents in Paragraph No.5 of the affidavit discloses that, as if the affidavit is sworn by Philiphs Amantha Venkata Satya Surya Bhavani. Therefore, based on such an affidavit drafted irregularly and filed along with the writ petition, it is difficult to issue writ of mandamus, since the petition was ill-drafted. It is also strange that Vimala Adilakshmi made representation dated 08.01.2021 to the District Collector, Visakhapatnam, and marked copy to the Tahsildar, with a request to conduct an enquiry and to survey the land, issue an endorsement for Urban Land Ceiling Clearance to the land covered in Sy.No.6/2A Part situated at K.R.M. Colony, Maddilapalem, Visakhapatnam, as the said land is not a government land and it is purely a private land. 15. 15. B. Vimala Adilakshmi is not the owner of the property as on date. She is only a proposed purchaser and writ petitioner. As on date, the petitioner has no existing interest in the subject matter of the property in Sy.No.6/2A Part situated at K.R.M. Colony, Maddilapalem, Visakhapatnam, as the agreement of sale will not create any interest in the immovable property or confer any right or title, in view of Section 54 of Transfer of Property Act. Thus, the petitioner - B. Vimala Adilakshmi has no subsisting interest or right in the subject property to make representations for deletion of the property and to claim writ of mandamus. 16. Writ of mandamus is purely discretion in nature and such writ of mandamus can be issued only when the petitioner is able to prove her subsisting right or interest in the property and in the absence of infringement or invasion or threatened action to infringe or invade the legal rights of the petitioner; writ of mandamus is not maintainable. In view of the specific plea, it is appropriate to examine the scope of writ of mandamus. 17. Writ of mandamus is purely discretionary in nature and such power of judicial review under Article 226 of the Constitution of India can be exercised only in certain circumstances. At best, this Court cannot decide the legality of the order. Yet, issuance of Writ of Mandamus is purely discretionary and the same cannot be issued as a matter of course. 18. In “State of Kerala v. A.Lakshmi Kutty, 1986 (4) SCC 632 ”, 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. 19. 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. 19. In “Raisa Begum v. State of U.P., 1995 All.L.J. 534”, 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. 20. 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. 21. In “State of U.P. and Ors. v. Harish Chandra and Ors., (1996) 9 SCC 309 ” the Supreme Court held as follows: “…… 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. Vohra, (2004) 2 SCC 150 ” 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. 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 Jain, (2008) 2 SCC 280 ” 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. 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. 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) 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. 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) 22. In view of the law laid down by the Supreme Court in the judgments referred supra, unless the legal right of the petitioner is infringed or invaded or threatened to infringe or invade, a writ of mandamus cannot be granted. 23. Here, the petitioner failed to prove that she got existing interest or right in the property and its invasion or infringement or threatened invasion or infringement, so as to claim writ of mandamus. As such, she is disentitled to claim writ of mandamus. 24. On this ground alone, writ petition is liable to be dismissed. 25. As seen from the entire pleadings, it is evident that the petitioner is claiming that, it is a private property, whereas, learned Assistant Government Pleader for Revenue claims that it is a subject matter of property in C.C.No.6724/76 as per the list of Government lands and it is a surplus holding of the declarant in Sy.Nos.4,5 and 6/P, an extent of Ac.0-23 cents related to subject matter in C.C.No.6436/1976, Sy.No.6/P, an extent of Ac.2-63 cents was related to C.C.No.5518, Sy.No.6/P, an extent of Ac.7-77 cents related to C.C.No.6202/75, Sy.No.6P, an extent of Ac.2-63 cents related to C.C.No.5518, Sy.No.6, 7/P, an extent of Ac.1-62 was related to C.C.No.6274. Therefore, it is deemed to be a government land. Therefore, it is deemed to be a government land. When it is surplus holding of the declarant and vested on the government, they notified the subject land under Section 22-A of the Registration Act. 26. More curiously, Respondent No.5, in the counter affidavit admitted that, part of the property in Sy.No.6/2A Part situated in K.R.M. Colony, Maddilapalem, Visakhapatnam, is subject matter of the Urban Land Ceiling proceedings and declared as surplus, because the land is not sub-divided after completion of enquiry and surrendered the excess holding of urban land. The entire land is included in the list of prohibitory properties under Section 22-A of the Registration Act. In such case, the remedy open to the owner of the land i.e. Amantha Bhavani is to submit appropriate application for sub-division and demarcation of the land with respect to Sy.No.6/2A Part situated in K.R.M. Colony, Maddilapalem, Visakhapatnam in terms of B.S.O 58 through online/Meeseva, to which the land proposed to be sold by her is a part. Amantha Bhavani did not take any steps in accordance with law and the proposed purchaser or the agreement holder i..e B. Vimala Adilakshmi/writ petitioner approached this Court seeking a writ of mandamus, though she had no subsisting or existing right in the property as on date, being an agreement holder. Thereby, the petitioner is disentitled to claim writ of mandamus, in view of my foregoing discussion. However, it is left open to the original owner Amantha Bhavani who purchased the property under registered sale deed Document No.4334/2011 dated 11.08.2011 to make appropriate application for sub-division and demarcation of the property under B.S.O.58 through Mee-Seva/Online on payment of requisite fee, if advised. However, the petitioner being a purchaser under agreement of sale is not entitled to claim any relief in the petition, in view of my discussion. 27. In view of my foregoing discussion, I find no ground to issue writ of mandamus and the writ petition is liable to be dismissed. 28. In the result, writ petition is dismissed. No costs. 29. Consequently, miscellaneous petitions pending, if any, shall also stand dismissed.