Tugu Prabhakar Reddy, S/o Tugu Rama v. State of Andhra Pradesh
2023-12-07
SUBBA REDDY SATTI
body2023
DigiLaw.ai
ORDER : This writ petition is filed under Article 226 of the Constitution of India seeking the following relief: “… to issue writ, order or direction more particularly one in the nature of writ of mandamus declaring the action of respondents 1 to 6 in not initiating action for removing the illegal and unauthorized selling of agricultural lands for removing the illegal and unauthorized selling of agricultural lands into house sites by the 7the Respondent and some others high handedly by laying unauthorized layout, event without having any valid title and ownership on the property and even without there being any land conversions situated in survey No.360-B/1A2A3A, 1A2A3 & 1A2A3B of Thamballapalli Village and Mandal, Chittoor District as illegal, arbitrary and unconstitutional and contrary to the procedure contemplated under Andhra Pradesh Gram Panchayat Land Development (Layout and Building) Rules, 2002 and consequential direction to respondents 1 to 6 to forthwith initiate necessary action restraining the 7th Respondent and others from laying illegal and unauthorized layouts in survey No.360-B/1A2A3A, 1A2A3 & 1A2A3B of Thamballapalli Village and Mandal, Chittoor District and pass such other orders or order ...” 2. Separate counter affidavits are filed by respondent Nos.4, 6 and 7. 3. Heard Sri P. Narahari, learned counsel for the petitioner; learned Assistant Government Pleader for Revenue for respondent Nos.2 to 5, Sri G. Venkat Reddy, learned standing counsel for respondent No.6; Sri Kata Sambasiva Rao, learned counsel for respondent No.7 and Sri P. Aditya Harsha Vardhan, learned counsel for respondent No.8. 4. The grievance of the petitioner, as seen from the averments in the representation dated 30.09.2020 is that some individuals by occupying government lands, abutting the office of Tahsildar, Tambalapalli Mandal, are dividing the lands into plots and alienating the same; that a petrol bunk was constructed in the ceiling land, opposite to ZP High school; that some individuals encroached upon the Temple land and that buildings and shop rooms are being constructed near the Tahsildar’s office, M.D.O. office and other government offices, due to which the government offices are not visible. 5. Before delving into the facts of the case, in view of the relief sought in the writ petition, this court deems it appropriate to adjudicate as to whether the writ petition under Article 226 of the Constitution of India is maintainable and whether the petitioner got locus standi to maintain writ petition qua the relief. 6.
5. Before delving into the facts of the case, in view of the relief sought in the writ petition, this court deems it appropriate to adjudicate as to whether the writ petition under Article 226 of the Constitution of India is maintainable and whether the petitioner got locus standi to maintain writ petition qua the relief. 6. For issuance of Writ of Mandamus, petitioner should satisfy the Court qua the infringement of his legal right and corresponding legal obligation on the part of the State or its instrumentality. 7. In State of U.P. and others Vs. Harish Chandra and others, (1996) 9 SCC 309 , the Hon’ble 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." 8. In Union of India Vs. S.B. Vohra, (2004) 2 SCC 150 , the Hon’ble Apex Court considered the similar 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. 9. In Oriental Bank of Commerce Vs. Sunder Lal Jain, (2008) 2 SCC 280 , 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.
Generally speaking, it may be said that mandamus is a summary writ, issuing from the proper court, commanding the official or board to which it is addressed to perform some specific legal duty to which the party applying for the writ is entitled of legal right to have performed. Note 192.-Mandamus is, subject to the exercise of a sound judicial discretion, the appropriate remedy to enforce a plain, positive, specific and ministerial duty presently existing and imposed by law upon officers and others who refuse or neglect to perform such duty, when there is no other adequate and specific legal remedy and without which there would be a failure of justice. The chief function of the writ is to compel the performance of public duties prescribed by statute, and to keep subordinate and inferior bodies and tribunals exercising public functions within their jurisdictions. It is not necessary, however, that the duty be imposed by statute; mandamus lies as well for the enforcement of a common law duty. Note 196.-Mandamus is not a writ of right. Its issuance unquestionably lies in the sound judicial discretion of the court, subject always to the well settled principles which have been established by the courts. An action in mandamus is not governed by the principles of ordinary litigation where the matters alleged on one side and not denied on the other are taken as true, and judgment pronounced thereon as of course. While mandamus is classed as a legal remedy, its issuance is largely controlled by equitable principles. Before granting the writ the court may, and should, look to the larger public interest which may be concerned-an interest which private litigants are apt to overlook when striving for private ends. The court should act in view of all the existing facts, and with due regard to the consequences which will result. It is in every case a discretion dependent upon all the surrounding facts and circumstances." 10. In Mani Subrat Jain Vs. State of Haryana, AIR 1977 SC 276 , while considering scope of Article 226 of the Constitution, the Hon'ble Apex Court observed as follows: “9. ...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.
...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, para 122; State of Haryana Vs. Subash Chander, AIR 1973 SC 2216 ; Jasbhai Motibhai Desai Vs. Roshan, Kumar Haji Bashir Ahmed, AIR 1976 SC 578 and Ferris Extraordinary Legal Remedies para 198)." 11. In Raisa Begum v. State of U.P., 1995 All. L.J. 534, the Allahabad High Court 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. 12. A conspectus of the authorities referred to supra, the petitioner must plead and prove that legal right existed, either statutory or constitutional and infringement of the same by the act of the State or its instrumentalities. In the absence of establishing the existence of right, it's infringement or invasion or threatened infringement or invasion, the petitioner cannot maintain writ of Mandamus. 13. This Court, while exercising jurisdiction under Article 226 of the Constitution of India, is entrusted with the duty of judicial review as sentinel qui vive. 14. In the case at hand, as seen from the contents of the representation, petitioner has no personal or individual right in the subject-matter. In fact, the right of petitioner, if any, is neither infringed nor threatened. 15. Mere making representation to the authorities and non consideration of the representation, in the fact satiation, will not create a cause of action to maintain writ petition.
In fact, the right of petitioner, if any, is neither infringed nor threatened. 15. Mere making representation to the authorities and non consideration of the representation, in the fact satiation, will not create a cause of action to maintain writ petition. Infringement, invasion or threatening by the State or its instrumentalities is sine qua non to maintain writ petition. 16. In the case at hand, petitioner is espousing public cause. Hence, in the opinion of this Court, no Mandamus can be granted by this court. 17. Hence, this writ petition is dismissed. No costs. As a sequel, pending miscellaneous petitions, if any, shall stand closed.