Andhra Pradesh High Court - Amravati

M Obuleswara Rao vs The State Of Andhra Pradesh, on 16 June, 2021

   THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY


                 WRIT PETITION NO.10909 OF 2021

ORDER:

This writ petition is filed under Article 226 of the Constitution

of India seeking the following relief:

"Writ of Mandamus or any other appropriate Writ of Mandamus or any other appropriate writ declaring the action of the Respondents in attempting to evict the Petitioner from an extent of 34 cents in Sy.No.18 of Masapeta revenue village in Rayachoty mandal YSR Kadapa district wherein there is Yadala Ramaiah Chetty and Yadala Rachaiah Chetty Dharamsatram without following the due process of law on extraneous considerations as illegal unjust arbitrary highhanded and against the principles of natural justice and also against the statutory provisions and consequently direct the Respondents not to evict the Petitioner from an extent of 34 cents in Sy No 18 of Masapeta revenue village in Rayachoty mandal YSR Kadapa district wherein there is Yadala Ramaiah Chetty and Yadala Rachaiah Chetty Dharamsatram without acquiring the same"

The case of the petitioner in nut-shell is that, the petitioner's

great grandfather Makam Guravaiah had developed a Dharmasatram

in the land of his father-in-law by name Mr. Yadala Ramaiah Chetty

and named the same as Dharmasatram of Yadala Ramaiah Chetty

and Yadala Rachaiah Chetty in the year 1933 in an extent of 34

cents in Sy.No.18 of Masapeta revenue village in erstwhile Rayachoty

taluq now in Rayachoty Mandal, YSR Kadapa District.

As per Register of Holdings issued by Sub-Register, Rayachoty,

on 24.03.2011, there is Satram in Sy.No.18 of Masapeta Revenue

Village in Rayachoty Mandal, YSR Kadapa District apart from temple.

Respondent Nos. 3 & 4 had demolished two rooms of Dharmasatram

on 02.06.2021 without issuing any notice and without any order and

without petitioner's consent.

MSM,J WP_10909_2021

On 03.06.2021, the respondents laid foundation stone through

the Chief Whip Sri Gadikota Srikanth Reddy for construction of

Urban Primary Health Centre in petitioner's land, wherein,

Dharmasatram is in existence in an extent of 34 cents in Sy.No.18 of

Masapeta Revenue Village in Rayachoty Mandal, YSR Kadapa

District. Thus the action of the respondents in evicting the petitioner

without following due process of law and without issuing any notice

and laying foundation stone for construction of Urban Primary

Health Centre near Rayachoty is illegal and arbitrary and that the

petitioner is being deprived of his right to enjoy the property and

requested to issue a direction as stated above.

In support of the claim, the petitioner produced Letter of

the property, besides photographs of plaque etc.

The respondents did not file any counter affidavit.

Sri L.J. Veera Reddy, learned counsel for the petitioner,

reiterated the contentions urged in the writ petition, while drawing

attention of this Court to the documents filed along with this writ

petition to establish that the petitioner and his predecessors are in

occupation of the property for the last 100 years and that, part of the

building is removed, laid foundation for construction of Urban

Primary Health Centre and that a Choultry is in existence with

plaque in the name of "Yadlla Ramaiah Dharma Choultry" with year

1933 and requested to issue a direction as stated supra.

MSM,J WP_10909_2021

Whereas, Sri N. Ranga Reddy, learned Standing Counsel for

third respondent/Rayachoty Municipality would contend that the

petitioner had no existing right in the property and the question of

its infringement or invasion by the respondents does not arise,

thereby, disentitled to claim the relief of mandamus.

Though the petitioner contended that, it was constructed in

the year 1933, no material is produced except a photograph of the

plaque which shows that it bears the name of "Yadlla Ramaiah

Dharma Choultry" with year inscribed on it as 1933. But, that is not

suffice to establish that this petitioner is in possession and

enjoyment of the property. Even the letter of Register of Holdings

would show that there is Dharmasatram in an extent of 34 cents and

22 cents. But, the petitioner or his predecessors name is not shown

anywhere in the letter or Register of Holdings. Therefore, the

petitioner failed to establish the existing right in the property and

thereby, the question of it's infringement or invasion does not arise.

Writ of mandamus is discretionary in nature and power of

judicial review under Article 226 of the Constitution of India can be

exercised only in certain circumstances. At best, this Court can

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.

In "State of Kerala v. A.Lakshmi Kutty1", 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

1 1986 (4) SCC 632 MSM,J WP_10909_2021

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.2", 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.

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.

2 1995 All.L.J. 534 MSM,J WP_10909_2021

In "State of U.P. and Ors. v. Harish Chandra and Ors.3" 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. Vohra4" 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 Jain5" 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

3 (1996) 9 SCC 309 4 (2004) 2 SCC 150 5 (2008) 2 SCC 280 MSM,J WP_10909_2021

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."

(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. 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) MSM,J WP_10909_2021

In view of the law laid down by the Supreme Court in the

judgments referred supra, unless the legal right of the petitioner or

it's members is infringed or invaded or threatened to infringe or

invade, a writ of mandamus cannot be granted.

By applying the law laid down by the Apex Court in the

judgments referred supra to the present facts of the case, I find that

the petitioner failed to establish his existing right and its

infringement or invasion or the alleged threat to infringe or invade

the existing legally enforceable right of this petitioner in the property,

thereby, disentitled to claim writ of mandamus. Consequently, writ

petition is liable to be dismissed.