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2023 DIGILAW 998 (AP)

Seelam Rajashree v. State of Andhra Pradesh

2023-07-06

SUBBA REDDY SATTI

body2023
ORDER : 1. This writ petition is filed under Article 226 of the Constitution of India seeking the following relief: “.....to issue a writ of Mandamus declaring the activity of the petitioner in distribution of LPG gas cylinders to the public from the scheduled area of 679.26 sq.mts situated in S.No. 77/10A of Ravi Nagar, Naidu Thota, Pendurthi, Visakhapatnam (as is being carried for decades since 1997 with all the necessary permissions), as legal and constitutionally accepted under Art.19 and consequently direct the respondent authorities not to interfere in any manner and pass such other orders.....” Initially, the writ petition was filed against three respondents. Later respondent No. 4 got impleaded himself as party respondent as per order, dated 06.01.2023 in I.A.No. 2 of 2022. 2. The averments, in brief, in the affidavit are that since 1997, petitioner and her husband are engaged in carrying on business of LPG gas distribution in the name of M/s. Subbaiah Gas Agency with its registered office at VUDA Complex, Visakhapatnam. ‘No objection certificate’ was obtained from Commissioner of Police and Additional District Magistrate, Visakhapatnam for construction of godown in an extent of 679.26 square meters in survey No. 77/10A in Ravi Nagar, Naidu Thota, Pendurthi, Visakhapatnam. After obtaining approved plan from Municipal authorities, godown was constructed and business is being carried on. The license was renewed by Bharat Petroleum Corporation till 04.05.2027: (a) During hud-hud cyclone in the year, 2014, godown got destroyed. Due to personal reasons including health problems, the petitioner could not reconstruct the godown. When petitioner started construction work in 2015, local revenue authorities interfered, as such petitioner filed O.S.No. 149 of 2015 on the file of learned I Additional District Judge, Visakahaptanm for permanent injunction. The said suit was decreed. Prior to filing O.S.No. 149 of 2015, private party filed W.P.No. 24890 of 2010 claiming right over large extent of land to an extent of Ac.29-00 cents in the same area, against respondent No. 2 and the same was dismissed. Respondent No. 2 and the authorities of respondents have put up lands possessed by R2 for auction. Respondent No. 2 would certainly promote public utility activity beneficial to the public. The business carried on by the petitioner is beneficial activity for the public at large. If petitioner’s activity is prevented public will suffer. Respondents-authorities have a duty to continue petitioner to utilize the premises. Respondent No. 2 would certainly promote public utility activity beneficial to the public. The business carried on by the petitioner is beneficial activity for the public at large. If petitioner’s activity is prevented public will suffer. Respondents-authorities have a duty to continue petitioner to utilize the premises. If respondent No. 2 is interested in imposing any conditions including monetary conditions, petitioner is willing to comply with the same. With these averments, writ petition was filed seeking the relief extracted supra. 3. Counter affidavit was filed on behalf of respondent No. 2. It was contended, inter alia, that respondent No. 2-Devasthanam is a public religious institution published under Section 6(a)(ii) of Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act 30 of 1987. Vepagunta village was one of the endowed villages to respondent No. 2-Devasthanam by Maharajahs, Vijayanagaram. After completion of enquiry under Section 3(3) of Inam Abolition Act (for short ‘IA Act’), Mandal Revenue Officer, Pendurthi granted Ryotwari patta under Section 7(1) for an extent of Ac.145-00 cents in survey No. 77 along with other survey numbers in AIA 52/77 with HA dated 29.05.1996, to respondent No. 2. As per patta, issued by Mandal Revenue Officer, Pendurthi, respondent No. 2-Devasthanam is absolute owner of land covered in survey No. 77 of Vepagunta village. The decree in O.S.No. 149 of 2015 does not bind respondent No. 2 as R2 is not party to the suit. Petitioner filed O.S.No. 1191 of 2015 on the file of VII Additional Senior Civil Judge, Visakhapatnam seeking perpetual injunction and the same was dismissed for default on 02.03.2022. The petitioner suppressed filing of suit O.S.No. 1191 of 2015 and filed the above writ petition and prayed to dismiss the writ petition. 4. Respondent No. 4 (impleaded respondent) filed counter. It was contended inter alia that respondent No. 4 is absolute owner of the land. Originally, the mother of respondent No. 4 purchased Ac.29-30 cents in survey No. 77/10A of Vepagunta village under registered sale deed, dated 07.09.1970. She also purchased Ac.13-50 cents in the same village under another registered sale deed dated 27.09.1970. The mother of respondent No. 4 executed GPA in favour of his father. Originally, the mother of respondent No. 4 purchased Ac.29-30 cents in survey No. 77/10A of Vepagunta village under registered sale deed, dated 07.09.1970. She also purchased Ac.13-50 cents in the same village under another registered sale deed dated 27.09.1970. The mother of respondent No. 4 executed GPA in favour of his father. Petitioner and her husband entered into lease agreement with father of respondent No. 4 vide document No. 276 of 1997, dated 05.02.1997 admeasuring 777.78 square yards i.e. subject land for a period of ten years i.e. from 05.02.1997 to 04.02.2007. Since rent was not paid mother of respondent No. 4 filed suit O.S.No. 227 of 2001 on the file of learned Junior Civil Judge, Bheemnipatnam, for recovery of arrears of rent and the same was decreed on 25.10.2004. Thereafter, the lease was extended up to 2010. However, the petitioner remained in possession till 2014. Father of respondent No. 4 filed W.P.No. 24890 of 2010 against Revenue and Endowments Department, but said writ petition was dismissed. Respondent No. 4 succeeded the property and later filed W.P.No. 28998 of 2018. In I.A.No. 1 of 2018, interim direction was passed in favour of the petitioner: (a) The godown was destroyed in the year, 2014 in hudhud cyclone. Thereafter it was not restored. To the knowledge of respondent No. 4, Bharat Gas Authority has not renewed the license to store or distribute gas cylinders, in premises of respondent No. 4. The authority might have renewed license for carrying on the business. (b) Suit O.S.No. 1191 of 2015 was dismissed for default on 02.03.2022. After dismissal of the suit the above writ petition was filed. Property leased out is 650.327 square meters, however, petitioner claimed the extent as 679.29 square meters. Since petitioner tried to interfere with possession of respondent No. 4, respondent No. 4, inturn, filed suit O.S.No. 405 of 2022 for perpetual injunction and the same is pending. Mother of respondent No. 4 died on 12.12.2022. (c) The petitioner suppressed all these facts and approached this Court and hence, writ petition is liable to be dismissed on the ground of suppression of facts. 5. Petitioner filed reply affidavit and denied the ownership of respondent No. 4. The petitioner contended that she entered into lease agreement with the father of respondent No. 4. However, it was due to ignorance. 5. Petitioner filed reply affidavit and denied the ownership of respondent No. 4. The petitioner contended that she entered into lease agreement with the father of respondent No. 4. However, it was due to ignorance. Father of respondent No. 4 and his predecessors are not owners of the property and petitioner was cheated by the predecessors of respondent No. 4 by extracting huge amounts claiming illegal ownership of the property. 6. Suit O.S.No. 227 of 2001 filed by mother of respondent No. 4 against petitioner is fraud and she is not legitimate, legal and lawful owner of the property. The father of respondent No. 4 filed W.P.No. 24890 of 2010 against respondent No. 2-Devasthanam claiming right over the property. However, the said writ petition was dismissed. Lease period elapsed long back. Respondent No. 4 cannot claim any right over the property. In the reply affidavit, averments were made regarding W.P.No. 10928 of 2018, 25693 of 2018, etc. The petitioner pleaded that she would approach respondent No. 2-Devasthanam for grant of lease. 7. Heard Sri S. Srirama Chandra Murthy, learned counsel for the petitioner, learned standing counsel for respondent No. 2 and Sri V. Sai Kumar, learned counsel for respondent No. 4. 8. Learned counsel for the petitioner contends that petitioner has been doing business of distributing LPG gas cylinders. Neither respondent No. 4 nor his predecessors are owners of the subject property. Lease said to have been entered into with the predecessors of respondent No. 4 is an act of fraud and in fact, the predecessors of respondent No. 4 cheated the petitioner and extracted huge amounts. Petitioner is ready and willing to approach respondent No. 2. 9. Learned standing counsel appearing for respondent No. 2 would contend that petitioner approached the Court by suppressing material facts i.e. dismissal of the suit O.S.No. 1191 of 2015 on 02.03.2022 filed against respondent No. 2. He would also contend that writ petition itself is not maintainable. 10. Learned counsel for respondent No. 4 would contend that petitioner approached this Court by suppressing material facts and hence, this writ petition is liable to be dismissed. He would also submit that W.P.Nos.10928, 10967 and 10980 of 2018 filed by respondent No. 4 and others were allowed by this Court on 05.05.2023. 10. Learned counsel for respondent No. 4 would contend that petitioner approached this Court by suppressing material facts and hence, this writ petition is liable to be dismissed. He would also submit that W.P.Nos.10928, 10967 and 10980 of 2018 filed by respondent No. 4 and others were allowed by this Court on 05.05.2023. He would contend that learned Single Judge, while disposing of the writ petitions, granted liberty to Temple to approach Endowments Tribunal for redressal of their grievance with regard to title over subject land. He would also submit that petitioner got the license to establish godown in the schedule premises pursuant to the lease deed of 1997. He would also submit that area mentioned in the prayer is large in extent when compared to the property leased out to the petitioner and eventually prayed to dismiss the writ petition. 11. The points that arise for consideration are: 1. Whether petitioner is entitled to the relief sought for in the writ petition? 2. Whether petitioner approached the Court by suppressing material facts? 12. From the pleadings, it appears that ‘a quarrel between two, makes a piece for an opportunist’. 13. For issuance of writ of Mandamus, petitioner must establish existence of legal right and corresponding duty on the part of the State. 14. In State of Kerala vs. 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. 15. In State of U.P. and Others vs. Harish Chandra and Others, (1996) 9 SCC 309 the Apex Court held as follows: “10. The existence of a right is the foundation of the jurisdiction of a Court to issue a writ of mandamus. 15. In State of U.P. and Others vs. Harish Chandra and Others, (1996) 9 SCC 309 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.” 16. In Union of India vs. S.B. Vohra, (2004) 2 SCC 150 the Hon’ble 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. 17. In Karnataka State Forest Industries Corporation vs. India Rocks, 2009 (1) SCC 150 the Hon’ble Apex Court, at Para No. 39, held as under: “There cannot be any doubt whatsoever that a writ of mandamus can be issued only when there exists a legal right in the writ petition and a corresponding legal duty on the part of the State, but then if any action on the part of the State is wholly unfair or arbitrary, the superior courts are not powerless.” 18. The affidavit filed in support of the writ petition does not disclose any instances of interference by official respondents. In reply affidavit also petitioner tried to expose the pleadings of Devasthanam against respondent No. 4 and his predecessors. Unless, petitioner pleads interference by the State or its instrumentalities and such interference resulted in infringement of fundamental right etc., normally Writ of Mandamus will not be issued. According to the petitioner she has been carrying on business in land admeasuring 679.26 square meters in survey No. 77/10A of Vetupalem village, Visakhapatnam. In the absence of a pleading qua violation or infringement, petitioner is not entitled to the relief of Mandamus. This court perused the pleadings carefully and do not find any such averment in the affidavit or reply affidavit. During the arguments also counsel for the petitioner could not satisfy the court regarding the interference by official respondents. In the absence of a pleading qua violation or infringement, petitioner is not entitled to the relief of Mandamus. This court perused the pleadings carefully and do not find any such averment in the affidavit or reply affidavit. During the arguments also counsel for the petitioner could not satisfy the court regarding the interference by official respondents. Thus, this court is of the considered opinion that petitioner is not entitled to the relief sought for. POINT No. 2: 19. The above writ petition was filed on 22.07.2022. By the date of filing the above writ petition, petitioner fled O.S.No. 1191 of 2015 against respondent No. 2-Devasthanam and respondent No. 4 seeking perpetual injunction. The said suit was dismissed for default on 02.03.2022. Petitioner did not disclose the factum of dismissal of the suit, however, approached the Court seeking equitable relief under Article 226 of the Constitution of India. 20. Along with the writ petition, petitioner filed judgment and decree in O.S.No. 149 of 2015 on the file of I Additional District Judge, Visakhapatnam, filed against Tahsildar, Pendurthi Mandal and District Collector, Visakhapatnam. The extent of property shown in the schedule of property annexed to said suit is 2500 square yards together with sheds constructed to some extent bearing door No. 7-386a covered by survey No. 77/10A, Ravi Nagar, Naidu Thota, Pendurthi Mandal, Visakhapatnam. It is pertinent to mention here that in the plaint, in O.S.No. 149 of 2015, (as seen from the judgment), it was pleaded that plaintiff occupied land and has been in possession and enjoyment of the same since 1978 by raising casurina tope. Plaintiff and her husband constructed sheds in part of the schedule property for storing LPG gas cylinders, after obtaining necessary permission from the authorities. It seems that along with the plaint, sanction plan regarding construction of godown and renewal of Bharat Gas LPG distribution agreement were filed. Defendants in the suit as stated supra, are Tahsildar and District Collector and they did not contest the suit. Eventually the suit was decreed on 19.06.2015. 21. Thus, the extent of land shown in the aforementioned suit is 2500 square yards and the extent of land shown in the writ affidavit is 679.26 square meters in survey No. 77/10A. In the reply affidavit, petitioner in fact pleads to approach respondent No. 2 for getting lease deed or license. 22. Eventually the suit was decreed on 19.06.2015. 21. Thus, the extent of land shown in the aforementioned suit is 2500 square yards and the extent of land shown in the writ affidavit is 679.26 square meters in survey No. 77/10A. In the reply affidavit, petitioner in fact pleads to approach respondent No. 2 for getting lease deed or license. 22. As seen from the pleadings of respondent No. 4 and registered lease deed, dated 05.02.1997, petitioner and her husband entered into lease qua the property admeasuring 650.327 square meters or 777.78 square yards of vacant site in survey No. 77/10A, plot No. 451 of Vepagunta village, Pendurthi Mandal, Visakhapatnam District with his father/mother. Basing on the said registered lease deed, it seems, petitioner got license of distribution of LPG cylinders. Now petitioner turns around and denies the title of her lessor. Petitioner even went to the extent of pleading fraud in respect of decree in O.S.No. 227 of 2001 suffered by the petitioner regarding payment of rents. 23. During the course of hearing, learned counsel for respondent No. 4 filed common order passed by this Court on 05.05.2023 in W.P.Nos.10928, 10962 and 10980 of 2018. Petitioners, in the above writ petitions pleaded possession of Ac.119.04 cents in survey No. 77/10A of Vepagunta village, Pendurthi Mandal, Visakhapatnam by virtue of different sale deeds executed in the year, 1970. Petitioners also pleaded about layout named as Ravinagar. Eventually learned Single Judge disposed of the writ petitions giving liberty to respondent No. 2-Devasthanam to approach Endowments Tribunal for redressal of their grievance, in view of the dispute between the petitioners on one hand and Devasthanam on the other hand, regarding title dispute. Learned Single Judge further restrained respondents therein from interfering with petitioners’ possession till a decision is taken by Endowments Tribunal. 24. Thus, the discussion made supra discerns that petitioner approached this Court by suppressing material facts and without any cause of action. Doctrine of suppresio veri suggestio falsi and suppresio veri expressio falsi would apply to the facts of the case. 25. In Prestige Lights Limited vs. State Bank of India, 2007 (8) SCC 449 the Hon’ble Apex Court held as under: “33. It is thus, clear that though the appellant Company had approached the High Court under Article 226 of the Constitution, it had not candidly stated all the facts to the Court. 25. In Prestige Lights Limited vs. State Bank of India, 2007 (8) SCC 449 the Hon’ble Apex Court held as under: “33. It is thus, clear that though the appellant Company had approached the High Court under Article 226 of the Constitution, it had not candidly stated all the facts to the Court. The High Court is exercising discretionary and extraordinary jurisdiction under Article 226 of the Constitution. Over and above a court of law is also a court of equity. It is, therefore, of utmost necessity that when a party approaches a High Court, he must place all the facts before the Court without any reservation. If there is suppression of material facts on the part of the applicant or twisted facts have been placed before the Court, the writ court may refuse to entertain the petition and dismiss it without entering into merits of the matter.” 26. In S.J.S. Business Enterprise (P) Ltd. vs. State of Bihar, 2004 (7) SCC 166 the Hon’ble Apex Court held as under: “As a general rule, suppression of a material fact by a litigant disqualifies such litigant from obtaining any relief. This rule has been evolved out of the need of the courts to deter a litigant from abusing the process of court by deceiving it. But the suppressed fact must be a material one in the sense that had it not been suppressed it would have had an effect on the merits of the case. It must be a matter which was material for the consideration of the court, whatever view the court may have taken [R. vs. General Commrs. for the Purposes of the Income Tax Act for the District of Kensington, (1917) 1 KB 486]. Thus, when the liability to income tax was questioned by an applicant on the ground of her non-residence, the fact that she had purchased and was maintaining a house in the country was held to be a material fact, the suppression of which disentitled her to the relief claimed [Ibid]. Thus, when the liability to income tax was questioned by an applicant on the ground of her non-residence, the fact that she had purchased and was maintaining a house in the country was held to be a material fact, the suppression of which disentitled her to the relief claimed [Ibid]. Again when in earlier proceedings before this Court, the appellant had undertaken that it would not carry on the manufacture of liquor as its distillery and the proceedings before this Court were concluded on that basis, a subsequent writ petition for renewal of the licence to manufacture liquor at the same distillery before the High Court was held to have been initiated for oblique and ulterior purposes and the interim order passed by the High Court in such subsequent application was set aside by this Court [State of Haryana vs. Karnal Distillery Co. Ltd. (1997) 2 SCC 431 : AIR 1977 SC 781 ]. Similarly, a challenge to an order fixing the price was rejected because the petitioners had suppressed the fact that an agreement had been entered into between the petitioners and the Government relating to the fixation of price and that the impugned order had been replaced by another order [Welcom Hotel vs. State of A.P. (1983) 4 SCC 575 : 1983 SCC (Cri) 872 : AIR 1983 SC 1015 ].” 27. A conspectus of above authorities discloses that person approaching the Court under Article 226 of the Constitution of India should not suppress the material facts. If there is suppression of facts, the Court may refuse to entertain the petition and dismiss it without going into merits of the matter. 28. The instances referred to supra would make the things more than discernable that petitioner, taking advantage of dispute between temple and 4th respondent or his predecessors, by suppressing material facts approached this court. 29. Further, along with the writ petition, petitioner filed renewal of Bharat Gas LPG Distributorship Agreement dated 04.05.2022 and annexed sketch to it, as if, LPG godown is in existence. Page 10 shows agreement and page 11 is sketch showing existence of LPG godown. However, as seen from the material, no godown is in existence and it was destroyed in the year, 2014 due to hud-hud cyclone. Page 10 shows agreement and page 11 is sketch showing existence of LPG godown. However, as seen from the material, no godown is in existence and it was destroyed in the year, 2014 due to hud-hud cyclone. During the arguments when the Court posed a question to learned counsel for the petitioner as to whether petitioner submitted any lease agreement at the time of seeking for renewal of license to store and distribute cylinder in the schedule property, learned counsel pleaded ignorance. 30. In view of the discussion supra, in the absence of any interference by the State or its instrumentalities the prayer sought for in the writ petition will not be granted. Apart from that petitioner approached this Court by suppressing material facts and with unclean hands. Since the petitioner consumed precious judicial time without any cause of action and by suppressing material facts, the writ petition is liable to be dismissed with exemplary costs. 31. In the result, this writ petition is dismissed with costs of Rs.1,00,000/- payable by the petitioner to State Legal Services Authority, High Court of Andhra Pradesh, Amaravathi, within four weeks from today. If the amount is not paid, the State Legal Services Authority can recover the amount from the writ petitioner, treating the same as decree. 32. Registry shall communicate copy of order to State Legal Services Authority, High Court of Andhra Pradesh, Amaravathi as well as writ petitioner to the address shown in the writ affidavit. 33. Miscellaneous Petitions, if any pending, in this case, shall stand closed.