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2021 DIGILAW 686 (AP)

Social Unit for Health and Improvement SUCHI v. State of Andhra Pradesh

2021-10-25

M.SATYANARAYANA MURTHY

body2021
ORDER : 1. M/s. Social Unit for Health and Improvement filed this petition under Article 226 of the Constitution of India to issue of Writ of Mandamus: (i) declaring the action of respondent No. 1 in issuing G.O.Ms. No. 581, Revenue (Assn.V) Department, dated 19.11.2018 for allotment of land on lease basis for a period of 33 years relating to petitioner's Plot Nos. 2 to 4, 7, 14, 20, 23 to 30, 31, 32 and 40 in Sy. No. 280/2 to an extent of total 55674 Sq. Ft. or 6186 Sq. Yds. equivalent to Ac. 1.27 1/3 cents out of total extent of Ac. 2.00 cents situated at Kattamanchi Village, Muraganipalle, Chittoor Municipal Corporation, Chittoor Mandal, Chittoor District, is illegal, arbitrary and unconstitutional and consequently set aside the same. (ii) to direct respondent Nos.1 to 6 to withdraw the prohibitory list submitted to respondent No. 7 under Section 22-A of the Registration Act relating to Plot Nos. 2 to 4, 7, 14, 20, 23 to 30, 31, 32 and 40 in Sy. No. 280/2 to an extent of total 55674 Sq. Ft. or 6186 Sq. Yds. equivalent to Ac. 1.27 1/3 cents out of total extent of Ac. 2.00 cents situated at Kattamanchi Village, Muraganipalle, Chittoor Municipal Corporation, Chittoor Mandal, Chittoor District. (iii) to direct respondent Nos. 1 to 6 to delete the name of respondent No. 8 in all revenue records including web-land/aponline relating to Sy. No. 280/2 to an extent of total 55674 Sq. Ft. or 6186 Sq. Yds. equalent to Ac. 1.27 1/3 cents out of total extent of Ac. 2.00 gts situated at Kattamanchi Village, Muraganipalle, Chittoor Municipal Corporation, Chittoor Mandal, Chittoor District, by restoring the petitioners society name in all revenue records. (iv) to declare the action of respondent No. 1 is illegal, arbitrary and unconstitutional and against the principles of natural justice and in violation of Article 14,16 and 300-A of the Constitution of India. 2. The petitioner is claiming to be the owner of plot Nos. 2 to 4, 7, 14, 20, 23 to 30, 31, 32 and 40 in Sy. No. 280/2 to an extent of total 55674 Sq. Ft. or 6186 Sq. Yds. equivalent to Ac. 1.27 1/3 cents out of total extent of Ac. 2.00 cents situated at Kattamanchi Village, Muraganipalle, Chittoor Municipal Corporation, Chittoor Mandal, Chittoor District. 2 to 4, 7, 14, 20, 23 to 30, 31, 32 and 40 in Sy. No. 280/2 to an extent of total 55674 Sq. Ft. or 6186 Sq. Yds. equivalent to Ac. 1.27 1/3 cents out of total extent of Ac. 2.00 cents situated at Kattamanchi Village, Muraganipalle, Chittoor Municipal Corporation, Chittoor Mandal, Chittoor District. Unfortunately, the said property was included in the list of prohibited properties notified under Section 22-A of the Registration Act. 3. It is contended that the subject land is exclusive private land, registered with the 7th respondent vide document No. 4127 of 1997 on 31.07.1997 in favour of the petitioner's society, document No. 779 of 1943 dated 12.02.1943, document No. 1700 of 1979 dated 16.04.1979, document No. 1701 of 1979, dated 16.04.1979, document No. 1702 of 1979 dated 16.04.1979, document No. 1704 of 1979 dated 16.04.1979, document No. 4874 of 1979, dated 29.08.1979, document No. 4875 of 1979, dated 29.08.1979, document No. 5339 of 1979, dated 12.09.1979. The petitioner is in peaceful possession and enjoyment of the property. When respondent Nos.2 to 6 tried to dispossess the petitioner from the above said society land, the petitioner approached the High Court by filing W.P. No. 4454 of 2019 challenging the inaction of the respondent Nos.2 to 6, wherein this Court directed to maintain status quo as on date i.e. 01.04.2019 and it is pending for adjudication. At the time of filing the above writ petition, the petitioner the petitioner's society was not aware of issuance of G.O.Ms. No. 581 Revenue (Assn.V) Department dated 19.11.2018 as the copy was not served on the petitioner. 4. The further contention of the petitioner is that with great difficulty, obtained copy of G.O.Ms. No. 581, Revenue (Assn.V) Department dated 19.11.2018, filed the present writ petition against the official and unofficial respondents herein. The land was originally agricultural land, it was converted into plots by obtaining necessary permission from the Moriganipalle Gram Panchayat vide PR No. 9 (3) 27-3-81. In the year 2011, when some private persons tried to occupy the petitioner's society land, he filed O.S. No. 329 of 2010 on the file of the Principal Senior Civil Judge, Chittoor, obtained decreed vide judgment and decree on 15.07.2011 in favour of the society. 5. Respondent Nos. 2 to 6 recommended for lease of petitioners society land in favour of respondent No. 8 herein without knowledge of the petitioner. 5. Respondent Nos. 2 to 6 recommended for lease of petitioners society land in favour of respondent No. 8 herein without knowledge of the petitioner. Basing on the recommendation of respondent Nos. 2 to 6, respondent No. 1 issued impugned G.O.Ms. No. 581 Revenue (Assn.V) Department dated 19.11.2018 in favour of respondent No. 8. Respondent No. 3 implemented the said G.O. issued proceedings vide Roc.E2/Computer No. 3705/2017, dated 01.02.2019 in favour of respondent No. 8 behind the petitioner. As the subject property is purely private property, the respondents have no authority to lease out the same treating the said property as “government land” and that inclusion of property in the list of prohibited properties notified under Section 22-A of the Registration Act is illegal and arbitrary, requested to issue a direction as claimed in the writ petition. 6. Respondent No. 6-Tahsildar filed counter admitting the inclusion of property in the list of prohibited properties notified under Section 22-A of the Registration Act, so also issue of G.O.Ms. No. 581 Revenue (Assn.V) Department dated 19.11.2018, proposing to allot the land in an extent of 55674 Sq. Ft. or 6186 Sq. yards equivalent to Ac. 1.27 1/3 cents situated at Kattamanchi Village, Muraganipalle, Chittoor Municipal Corporation, Chittoor Mandal on lease basis in favour of respondent No. 8. 7. The specific claim of respondent No. 6 is that the land in dispute is “Government Land” and the petitioner is not the owner of the property, thereby the petitioner - society is not entitled to challenge the action of the respondents in leasing out the property for a period of 33 years in favour of respondent No. 8. Apart from that, the communication of list of prohibited properties notified under Section 22-A of the Registration Act to the Registrar by the District Collector is only in discharge of public duty and that in the absence of any request made by the petitioner to delete the subject property from the list of prohibited properties notified under Section 22-A of the Registration Act, this Court cannot issue a writ of Mandamus as claimed by the petitioner, requested to dismiss the writ petition. 8. The petitioner filed re-joinder denying the allegations made in the counter filed by respondent No. 6 while reiterating that the petitioner is the owner of the subject land, having purchased the same under registered sale deed (referred supra). 8. The petitioner filed re-joinder denying the allegations made in the counter filed by respondent No. 6 while reiterating that the petitioner is the owner of the subject land, having purchased the same under registered sale deed (referred supra). Along with the rejoinder, the petitioner placed on record copy of “A” register relating to 76 Kattamanchi village and other documents including record of holding, settlement register No. 123 of Kattamanchi Village to substantiate the case of the petitioner. 9. Sri. Bussa Rajendra, learned counsel for the petitioner, submitted that the land is purely private land belonging to the petitioner and the Government is no way concerned with the property, but suddenly when the land records are updated in the web portal, the classification of the property is changed and recorded as “Government Land.” Therefore, the Government has no right to alienate the property in favour of respondent No. 8 by issuing impugned G.O.Ms. No. 581 Revenue (Assn.V) Department dated 19.11.2018 and proceedings vide Roc.E2/Computer No. 3705/2017, dated 01.02.2019. At the same time, inclusion of subject property in the prohibited properties list notified under Section 22-A of the Registration Act without any notice to the petitioner and without following any procedure is illegal, thereby the said property is to be deleted from the prohibited properties list notified under Section 22-A of the Registration Act, requested to grant relief as claimed in the writ petition. 10. Learned Assistant Government Pleader for Stamps and Registration opposed the petitioner on the ground that the petitioner did not produce any document to prove that the subject property is belonging to the petitioner except “A” register and settlement register, but those documents are helpful to show presumptive title, but not absolute title. Therefore, the action of the respondents cannot be questioned in leasing out the subject property to respondent No. 8 by issuing impugned G.O.Ms. No. 581 Revenue (Assn.V) Department dated 19.11.2018. Apart from that to grant writ of Mandamus, there must be demand and denial to discharge public duty by the respondents. In the instant case, the petitioners did not make any demand for deletion of subject property from the list of prohibited properties notified under Section 22-A of the Registration Act, requested to dismiss the writ petition. 11. Apart from that to grant writ of Mandamus, there must be demand and denial to discharge public duty by the respondents. In the instant case, the petitioners did not make any demand for deletion of subject property from the list of prohibited properties notified under Section 22-A of the Registration Act, requested to dismiss the writ petition. 11. 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 is prima-facie owner of the land in an extent of 55674 square feet or 6186 Sq. yards equivalent to Ac. 1.27 1/3 cents out of total extent of Ac. 2.00 cents situated at Kattamachi Village, Muraganipalle, Chittoor Municipal Corporation, Chittoor Mandal, Chittoor District? If so, whether G.O.Ms. No. 581 Revenue (Assn.V) Department dated 19.11.2018 and consequential proceedings vide Roc.E2/Computer No. 3705/2017, dated 01.02.2019 are legal and valid, if not, liable to be set aside? (2) Whether the petitioner made any demand for deletion of land in an extent of 55674 square feet or 6186 Sq. yards equivalent to Ac. 1.27 1/3 cents out of total extent of Ac. 2.00 cents situated at Kattamachi Village, Muraganipalle, Chittoor Municipal Corporation, Chittoor Mandal, Chittoor District from the list of prohibited properties notified or included in the list of prohibitory properties under Section 22-A of the Registration Act and respondents denied such demand? If not, whether the petitioner is entitled to claim writ of Mandamus for deletion of subject property from the list of prohibited properties notified under Section 22-A of the Registration Act? POINT No. 1: 12. Indisputably, respondents issued G.O.Ms. No. 581 Revenue (Assn.V) Department dated 19.11.2018 allotting land on lease basis for a period of 33 years to an extent of Ac. 2.00 cts. in Sy. No. 280/2 of Kattamanchi Village of Chittoor Mandal and District in favour of Podar International School for establishment of International School on payment of 10% of lease amount or rent on recommended Market value @ Rs. 1,08,90,000/- per acre and the lease amount or rent shall be enhanced in every block of 5 years by increasing up to 10% on the rental of the previous block of (5) years period, subject to certain conditions stipulated therein. Consequent upon the said G.O.Ms. 1,08,90,000/- per acre and the lease amount or rent shall be enhanced in every block of 5 years by increasing up to 10% on the rental of the previous block of (5) years period, subject to certain conditions stipulated therein. Consequent upon the said G.O.Ms. No. 581 dated 19.11.2018, the proceedings in Roc.E2/Computer No. 3705/2017, dated 01.02.2019 were issued by the Joint Collector directing the Tahsildar, Chittoor to alienate the land in an extent of Ac. 1.97 cents in Sy. No. 280 of Kattamanchi Village (land in Sy. No. 280 measuring a total extent of Ac. 2.30 excluding the extent of Ac. 0.33 cents covered in W.P. No. 41594 of 2018), on lease basis in favour of the General Manager, Podar International School (respondent No. 8 herein). Therefore, it is an undisputed fact that respondent Nos.1 to 6 decided to lease out the property. The petitioner is claiming right in Sy. No. 280/2 of Kattamanchi Village, whereas the respondents proposing to lease out the land in the same survey number by issuing G.O.Ms. No. 581 dated 19.11.2018, and the proceedings in Roc.E2/Computer No. 3705/2017, dated 01.02.2019. There is no dispute with regard to identity of property on ground with reference to Survey Number mentioned in G.O.Ms. No. 581 dated 19.11.2018, and the proceedings in Roc.E2/Computer No. 3705/2017, dated 01.02.2019. 13. The real controversy between the petitioner and the respondents is with regard to ownership. The petitioner is claiming to be owner of the subject land through various registered sale deeds. The Photostat copies of those documents are filed along with the petition. 14. Registered partition deed document No. 779 of 1943 dated 12.02.1943 is the basis for claim of the petitioner herein, by which partition had taken place among Ramaswamy Reddy and Prabhakara Reddy, sons of Narasimha Reddy. According to the said document, the land in an extent of Ac. 2.30 cents in Sy. No. 280 was allotted to Prabhakara Reddy, which is shown as “B” schedule. Thereafter, a sale deed vide document No. 1700 of 1979 was executed on 16.04.1979 by Dr. Varalskshmi Reddy W/o P.S. Reddy in favour of (1) C. Damodara Reddy and (2) Ch. Harinatha Reddy sons of C. Doraswamy Reddy conveying an extent of Ac. 2.30 cents in Sy. No. 280 along with other land in different survey numbers for Rs. 9,000/-. Thus, C. Damodara Reddy and Ch. Varalskshmi Reddy W/o P.S. Reddy in favour of (1) C. Damodara Reddy and (2) Ch. Harinatha Reddy sons of C. Doraswamy Reddy conveying an extent of Ac. 2.30 cents in Sy. No. 280 along with other land in different survey numbers for Rs. 9,000/-. Thus, C. Damodara Reddy and Ch. Harinatha Reddy became owners of the land in Sy. No. 280 of Kattamanchi village. 15. The said C. Damodara Reddy and Ch. Harinatha Reddy executed Gift deed No. 4127 of 1997 dated 31.07.1997 in favour of the petitioner herein transferred the land in Sy. No. 280, 402, 403, 423 and 404/12 of No. 76 Kattamanchi Village to improve the literacy, livelihood, health and development of poor people irrespective of caste, community or creed etc. 16. The said documents clearly establish that the land in an extent of Ac. 2.30 cents in Sy. No. 280 of Kattamanci village was sold to different persons on different dates, ultimately the petitioner became the owner of the subject land. The same was allegedly converted into plots after compliance of necessary statutory formalities. Therefore, the petitioner became the absolute owner of the subject property, but the Government claiming to be owner of the said land based on the entries in revenue records. Such issue cannot be decided by this Court effectively while exercising limited jurisdiction under Article 226 of the Constitution of India as proof of title is a mixed question of fact and law. Therefore, this Court cannot decide ownership of the property except recording a prima-facie finding. 17. The main contention of the petitioner is that the land was registered in “A” register of Kattamanchi village. 2nd page of the “A” register is placed on record by the petitioner to prove the classification of the land. The land in Sy. No. 280 is appearing in the 2nd page of the “A” register, but classification is not appearing in the record. However, record of holding of Kattamanchi village would show that an extent of Ac. 2.30 cents in Sy. No. 280 was assigned to Prabhakara Reddy. The proceedings in D. Dis. (c) No. 2316/91 dated 28.11.1991 would show that the land in Sy. No. 280 of Kattamanchi village is classified as dry land as per 10 (1) Adangal of Kattamanchi village. 10.1 Adangal disclosed that the land in an extent of Ac. 2.30 cents in Sy. No. 280 was assigned to Prabhakara Reddy. The proceedings in D. Dis. (c) No. 2316/91 dated 28.11.1991 would show that the land in Sy. No. 280 of Kattamanchi village is classified as dry land as per 10 (1) Adangal of Kattamanchi village. 10.1 Adangal disclosed that the land in an extent of Ac. 2.30 cents in Sy. No. 280 is recorded in the name of Sanjantham Ramalingam. At best, these documents prima-facie prove that the petitioner became owner of the property having acquired the same under registered gift deed and the petitioner is able to establish various transactions of transfer of property of Ac. 2.30 cents from one person to the other, finally to the petitioner. When the petitioner is prima-facie owner of the subject property, passing of G.O.Ms. No. 581 Revenue (Assn.V) Department dated 19.11.2018 proposing to allot the subject property in favour of respondent No. 8 is an illegality, but both the petitioner and the Government claiming title to the property. Except the entries in revenue records, no other material is produced by the Government to contend that the Government is the owner of the property. It is settled proposition of law that the entries in revenue records would not create or confer any title to the immovable property as held by the Apex Court in Jitendra Singh vs. State of M.P. 2021 SCC Online SC 802. Hence, the claim of the Government based on entries in revenue records cannot be sustained. Therefore, issue of G.O.Ms. No. 581 Revenue (Assn.V) Department dated 19.11.2018 granting lease for 33 years is illegal, arbitrary. Hence, on this ground alone, the G.O.Ms. No. 581 Revenue (Assn.V) Department dated 19.11.2018 is liable to be set aside since the person who had no title to the property cannot transfer better title than what he possessed. On the other hand, the petitioner is able to establish that the land is recorded in the name of the petitioner, as such the G.O.Ms. No. 581 Revenue (Assn.V) Department dated 19.11.2018 impugned in the writ petition is without any authority and it is nothing but arbitrary exercise of power by the State. Consequently, the said G.O.Ms. No. 581 Revenue (Assn.V) Department dated 19.11.2018 is liable to be set aside. Accordingly, the point is answered in favour of the petitioner and against the respondents. POINT No. 2: 18. The petitioner while claiming declaration that the G.O.Ms. Consequently, the said G.O.Ms. No. 581 Revenue (Assn.V) Department dated 19.11.2018 is liable to be set aside. Accordingly, the point is answered in favour of the petitioner and against the respondents. POINT No. 2: 18. The petitioner while claiming declaration that the G.O.Ms. No. 581 Revenue (Assn.V) Department dated 19.11.2018 is illegal, arbitrary and without any authority of law, sought a direction to delete the property from the list of prohibited properties notified under Section 22-A of the Registration Act. Whereas, learned Assistant Government Pleader for Stamps and Registration would contend that the writ of Mandamus cannot be issued since the petitioner did not make any application as per the procedure prescribed under law for deletion of the property from the prohibited properties list notified under Section 22-A of the Registration Act and in the absence of demand and denial, writ of Mandamus cannot be issued. 19. Affidavit and reply affidavit filed by the petitioner are totally silent with regard to the demand made by the petitioner for deletion of the property from the prohibited properties list notified under Section 22-A of the Registration Act to claim writ of Mandamus. 20. Writ of Mandamus can be issued only against the State and its instrumentalities when a demand made by private individuals to do or not to do an act or thing by the State or its instrumentalities and denied the same by the authorities. 21. For issue of mandamus against an administrative authority the affected individual must demand justice and only on refusal he has right to approach the Court. In Saraswati Industrial Syndicate Limited vs. Union of India, AIR 1975 SC 460 the Supreme Court has adopted the following statement of law in this regard: “As a general rule the orders would not be granted unless the party complained of has known what it was he was required to do, so that he had the means of considering whether or not he should comply and it must be shown by evidence that there was a distinct demand of that which the party seeking the mandamus desires to enforce and that the demand was met by a refusal.” 22. Thus, a party seeking mandamus must show that a demand is made for justice from the authority concerned by performing his duty and that the demand was refused. Thus, a party seeking mandamus must show that a demand is made for justice from the authority concerned by performing his duty and that the demand was refused. In Saraswati Industrial Syndicate Limited vs. Union of India (referred supra) the Court refused to grant mandamus as there was no such demand and refusal. Where a civil servant approached the court for mandamus against wrongful denial of promotion, he was denied the relief because of his failure to make representation to the government against injustice. The said principle was reiterated in Amrit Lal vs. Collector, C.E.C. Revenue, AIR 1975 SC 538 . 23. In the Statesman vs. Fact Finding Committee, AIR 1975 Cal. 14 the Court opined that the demand for justice is not a matter of form but a matter of substance and it is necessary that a “proper and sufficient demand has to be made.” The demand must be made to the proper authority and not to an authority which is not in a position to perform its duty in the manner demanded. It is suggested that the Court should not fossilize this rule into something rigid and inflexible but keep it as flexible. 24. Thus, the law is well settled that there must be a demand from the citizen and denial by the State authorities. In the present facts of the case, the petitioner did not make any demand to de-notify or delete the property from the list of prohibited properties notified or included in the prohibitory properties list under Section 22-A (i) (c) of the Registration Act. 25. Undisputedly, the petitioner did not make any application for deletion of property from the list of prohibited properties through Meesava (online) or in any authorised mode by paying requisite fee. Therefore, the question of failure to discharge the public duty by the respondents does not arise. Hence, 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 is not entitled to seek a writ of Mandamus against the respondents. Accordingly, the point is answered in favour of the respondents and against the petitioner. 26. In view of my aforesaid findings, I find no merit in the case of the petitioner. Consequently, the writ petition is liable to be dismissed. 27. In such circumstances, the petitioner is not entitled to seek a writ of Mandamus against the respondents. Accordingly, the point is answered in favour of the respondents and against the petitioner. 26. In view of my aforesaid findings, I find no merit in the case of the petitioner. Consequently, the writ petition is liable to be dismissed. 27. In the result, the writ petition is allowed in part declaring the G.O.Ms. No. 581 Revenue (Assn.V) Department dated 19.11.2018 and consequential proceedings in Roc.E2/ Computer No. 3705/2017, dated 01.02.2019 are illegal and arbitrary, and they are hereby quashed, while declining to issue writ of Mandamus for de-notification or deletion of subject property from the list of Prohibited properties notified under Section 22-A of the Registration Act. However, the petitioner is at liberty to make appropriate application to delete/denotify the subject property from the list of Prohibited properties notified under Section 22-A of the Registration Act. No costs. 28. It is made clear that the findings recorded above are limited for the purpose of deciding prima-facie title of the petitioner and the Collector is at liberty to conduct necessary enquiry before taking appropriate action on the application made by the petitioner for de-notifying or deleting the subject property from the list of Prohibited properties notified or included in the prohibitory properties list under Section 22-A of the Registration Act and pass appropriate orders. 29. Consequently, miscellaneous applications pending if any, shall also stand dismissed.