B.Sridevi vs The State Of Andhra Pradesh
2021 Latest Caselaw 4551 AP

   THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY

  W.P.Nos.5464, 12282, 13020, 12256, 12044, 12444, 12250,
   12279, 13026 of 2019 and W.P.Nos.19832, 18345, 12448,
  18338, 21508, 18352, 19180, 19837, 19844, 19916, 21430,
         21434, 21501, 18347, 21452, and 21494 of 2021
COMMON ORDER:


      All these petitions are filed claiming same relief by different

petitioners having land in different survey numbers, but the issue

involved in these petitions is one and the same. Therefore, I find that

it is expedient to decide all the petitions by common order treating

Writ Petition No.5464 of 2019 as leading petition.

      Writ Petition No.5464 of 2019 is filed under Article 226 of

Constitution of India to issue a writ of Mandamus to declare the

action of the respondents particularly respondent No 4 in not issuing

prior notice of demolition and threatening the petitioner to demolish

his dwelling house again constructed in Plot No.28 situated in

Sy.No.173/3 to an extent of 0-04 cents in Konka Chennaiah Gunta,

Puthur Village, Tirupathi Urban Mandal, Chittoor District is illegal

highhanded, in violation of Article 14 and 21 of the Constitution of

India, besides being opposed to the principles of Natural Justice and

consequently direct respondent No 4 not to interfere with the

peaceful possession and enjoyment of the of the petitioner in her

dwelling house constructed in Plot No.28 situated in Sy.No.173/3 to

an extent of Ac.0.04 cents in Konka Chennaiah Gunta, Puthur

Village, Tirupathi Urban Mandal, Chittoor District.

The case of the petitioner, in brief, is that one A.Subba

Ramaiah, S/o Jaya Ramaiah, was a freedom fighter. On 10.04.1992

P.Venu Gopal, Secretary, Chittoor District Freedom Fighters

Association, made an application to the then Mandal Revenue MSM,J wp_5464_2019 and batch

Officer, Tirupathi Revenue Mandal (Urban), Tirupathi, with a request

to allot house sites to all Freedom Fighters numbering 32 persons

including the vendor of the petitioner A.Subba Ramaiah. All 32

Freedom Fighters were given plots at Konka Chennaiah Gunta,

Puthur Village and the vendor of the petitioner Sri A. Subba

Ramaiah was allotted Plot No.28 in Sy.No.173/3 to an extent of Ac0-

04 cents (25 X 80) vide patta bearing THS No. 595/1992 dated

25.05.1992. The petitioner purchased the above said land from his

vendor Sri A.Subba Ramaiah on 29.01.2004, he sold the said land to

the petitioner because of his old age ailments and for his livelihood.

From the date of purchase, the petitioner has been in possession and

enjoyment of the same. He constructed pucca house by obtaining

"No Objection Certificate" from the then Mandal Revenue Officer in

Plot No.28 in Sy.No.173/3 in Konka Chennaiah Gunta, Puthur

Village, Tirupathi Urban Mandal , Chittoor District. The petitioner is

paying electricity bills regularly. While so, the Village Revenue Officer

on the instructions of respondent No.4 highhandedly demolished the

house of the petitioner with JCB on 29.03.2019 without issuing any

prior notice of demolition and thrown him on the street with his

family, again he constructed a house for dwelling purpose and living

therein. But, the Tahsildar (Mandal Revenue Officer) is threatening

the petitioner to demolish his house without any reason and without

issuing any prior notice. The petitioner questioned the Village

Revenue Officer when he was demolishing his house, he simply

replied that he was directed by the Mandal Revenue Officer to

demolish the same, but he did not show any demolition order. The

petitioner constructed the house with his hard earned money. In the

event of demolition of house, the petitioner will be put to serious

loss. However, when the petitioner is in possession and enjoyment of MSM,J wp_5464_2019 and batch

the property, respondent No.4 or his subordinates are not entitled to

demolish the house without any notice and without following due

process of law.

The petitioner specifically raised the following grounds in the

writ petition.

(a) The highhanded action of the respondents is against the

principles of natural justice, since no prior opportunity was

given to the petitioner before proposed demolition of the

house.

(b) The act of the respondents in threatening to demolish the

house of the petitioner on any day without following the

procedure is violative of Article 14, 21 and 300A of the

Constitution of India.

(c) The respondents did not consider the purchase of property

from freedom fighter after completion of 10 years, following

condition No.8 of the patta granted in favour of the vendor

of the petitioner incurring huge amount both for purchase

of the site and construction of the house. Therefore, the

highhanded act of the respondents is illegal and arbitrary,

requested to issue a writ of Mandamus.

Respondent No.4 filed counter denying the material allegations

inter alia contending that the land in Sy.No.173/3 admeasuring an

extent of Ac.2.50 cents is classified as "Konka Chennaiahgunta

Cheruvu Poramboke" as per the revenue records, it is a water body

for the benefit of community at large. However, the said land is

vested with the Government alone. Because of the nomenclature of MSM,J wp_5464_2019 and batch

the land is water body, the observation of the Supreme Court on

water bodies are applicable to the subject land.

It is further contended that according to BSO 15 Para 4 (ii) (h)

the assignment of the water course porambokes and water bodies is

prohibited, it only permits lease of such lands with a condition for

resumption when required for any public purpose. On credible

information that the petitioner in the present writ petition along with

others are attempting frequently to raise temporary structures in

Sy.No.173/3 of KonkaChennaiahgunta Revenue Village, since the

subject land is classified as "CheruvuPoramboke", the said attempts

of unauthorized encroachments by way of temporary structures were

prevented at the initial stage by the respondent authorities to protect

the communal interest over the land and also keeping in view of the

observations of the Supreme Court regarding protection of water

bodies. As per G.O. Ms. No.157 dated. 13.02.1987, the Government

of Andhra Pradesh issued instructions to all the District Collectors

and the Special C.S. and Chief Commissioner of Land

Administration, that the alienation of land covered by water bodies

and tank beds, Tank porambokes, etc., is prohibited.

It is further contended that in CCLA's ref No. B2/2225/2003,

dated 20.09.2003, it is directed as follows:

"all collectors in the state are informed that, though the Government in their Memo. No.30307/Assn.1/2000-1, dated 23.05.2000 have issued instructions to all collectors in the state to remove the encroachments if any, in the tanks etc., and to protect water bodies on war footing under "NEERU- MEERU" Programme, certain proposals are being received from the Collectors for relaxation of ban in respect of lands covered by water bodies, which causes the Administration in embarrassing situation in rejecting such proposals oftenly.

Therefore, all Collectors in the state are again requested to adhere with above circular instructions to take necessary steps to identify and to include MSM,J wp_5464_2019 and batch

all lands covered by water bodies in the "PROHIBITORY ORDER BOOK" (Such as lands covered by Tanks; Kuntas; Ponds; Lakes; Vagu; Vankas; River; Projects & Reservoir Porambokes) and to follow those instructions scrupulously."

It is further contended that the subject and to an extent of

Acs.2.50 cents in Sy.No.173/3 classified as "CheruvuPoramboke" of

Konkachennaiahgunta village, therefore, the land was included in

the prohibitory properties list u/s 22(A) of the A.P.Registration Act,

1908. House site pattas were not granted to any of the freedom

fighters in Sy.No.173/3 of KonkaChennaiahGunta Village. Unless

the classification of the land is changed into Ayan, the land is not

available for grant of house site pattas. In the instant case, the

District Administration is not competent to issue house site pattas in

water course porambokes as per G.O. Ms. No.157 dated 13.02.1987

and that patta, if any, granted and the purchase, if any, taken place

are in valid. Hence, the documents produced by the petitioner are

null and void. The petitioner was never in possession and enjoyment

of the subject land, therefore, the question of interfering with the

possession and enjoyment of the petitioner by respondent No.4 and

his subordinates does not arise.

It is further contended that the land is within the limits of

Municipal Corporation, Tirupati which is highly valuable land. If any

attempt to encroach upon the land, such attempt will be prevented

at the initial stage. Therefore, the respondents are only trying to

prevent such encroachment and not dispossessing the petitioner.

When similar question came up before the Madras High Court in

W.P.No.31894 of 2005, it is held as follows:

"Encroachment is a social evil. Encroachment in water body and water resources are affecting the Constitutional Rights of all other citizens. Whenever the rights of the citizens in general are infringed on account of MSM,J wp_5464_2019 and batch

certain illegal acts by few greedy men, then the State is bound to act swiftly and evict all such encroachments.

People are frustrated on account of large scale encroachments in water bodies and water resources. On account of such encroachments in water bodies and water resources, people at large are facing disaster, which are all man made. Even the experts are rightly emphasizing that the disasters are occurring on account of the illegal activities of such persons by encroachments. This being the opinion of the experts on many occasions, the State is bound to evict all such encroachments in the water bodies, water resources and Government Eriporomboke lands. In the present case on hand, the land in question is classified as Eriporomboke land, which is a water body. Thus, there cannot be any leniency or sympathy in respect of evicting the encroachers"

The Hon'ble Supreme Court in Civil Appeal No.1251 of 2006

held hereunder

"The natural resources of earth including the air, water, land, flora and fauna and especially representative sa mples of natural ecosystem must be safeguarded for the benefits of present and future generations through careful planning or management."

Thus, there is no doubt the fact that there is a responsibility bestowed upon the Government to protect and preserve the tanks and its supply channels which are important part of the environment of the area,"

The Supreme Court has time and again emphasized the need

to retain and restore water bodies and held that water bodies are

inalienable. Land comprised in water bodies cannot be alienated to

any person even if it is dry. Respondent No.4 relied on the judgment

of the Apex Court in "M.C. Mehta (Badkhal and Surajkund Lakes

Matter) vs. Union of India1", requested to dismiss the writ petition.

The petitioner filed reply affidavit reiterating the contentions

about the grant of patta in favour of freedom fighters in Sy.No.173/3

of Konkachennayagunta Cheruvu, Poramoboke while denying the

contentions raised by respondent No.4 in his counter affidavit. The

petitioner filed certain documents to establish the patta granted to

(1997) 3 SCC 715 MSM,J wp_5464_2019 and batch

the vendor of the petitioner and also proceedings vide Memo

No.13612/M1/2012 dated 02.11.2012 issued by the Municipal

Administration and Urban Development Department. Positive

photographs also filed to establish that the several buildings were

raised in the subject property. On the strength of the said

documents, the petitioner intended to establish his title and

possession of the property and that any amount of interference with

the possession and enjoyment of the petitioner without following due

process of law is illegal and arbitrary.

Ms. K.N.Vijayalakshmi, learned counsel for the petitioner,

contended that when pattas were granted in favour of the freedom

fighters in Konkachennayagunta, imposing certain conditions, sale of

the property by the original beneficiaries in favour of the petitioner

for valuable consideration after expiry of 10 years is valid and legal

and the petitioner cannot be deprived of his right to enjoy the

property. In case, the petitioner is dispossessed by respondent or his

subordinates, it would amount to infringement of fundamental right

guaranteed under Article 14, 21 and 300A of the Constitution of

India. Even otherwise, the petitioner cannot be dispossessed except

by due process of law. Therefore, the highhanded act of respondent

No.4 is sought to be declared as illegal and arbitrary, requested to

issue a direction as claimed in the writ petition.

Learned Assistant Government Pleader for Revenue would

contend that no pattas were granted in favour of the vendor of the

petitioner, even if any patta is granted, the petitioner is not entitled

to purchase the same and to construct the house as the land is

classified as "Tank" and assignment of the same is prohibited by

BSO 15 para 4 (ii) (h). In addition to that, the petitioner has no MSM,J wp_5464_2019 and batch

legally enforceable right in the property and the question of

infringement or invasion of legal right does not arise since the

petitioner allegedly purchased the property under unregistered sale

deed. He further contended that the land is originally classified as

"Tank Poramboke" and the name of the village i.e.

KonkaChennaiahgunta itself indicates that it is "gunta", which

means a „water body‟ and no construction shall be permitted in such

water bodies in view of the law laid down by the Apex Court in

"Sarvepalli Ramaiah v. District Collector, Chittoor2" and

"Intellectuals Forum, Tirupathi v. State of A.P.3", requested to

dismiss the writ petition.

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 being a purchaser under unregistered sale deed from the alleged owner/beneficiary is having any existing legally enforceable right? If so, whether there is any infraction or invasion or infringement of such legally enforceable right by respondent No.4? If so, whether the petitioner is entitled to claim writ of Mandamus? (2) Whether grant of patta allegedly in favour of vendor of the petitioner allotting Ac.0.04 cents in Sy.No.173/3 in Konka Chennaiah Gunta, Puthur Village, Tirupathi Urban Mandal, Chittoor District is in violation of BSO 15 para 4 (ii) (h) and contrary to the directions issued by the Apex Court in "Sarvepalli Ramaiah v. District Collector, Chittoor" and "Intellectuals Forum, Tirupathi v. State of A.P." (referred supra)? If not, whether the petitioner is in lawful possession and enjoyment of the property? If so, whether the petitioner

(2019) 4 SCC 500

(2006) 3 SCC 549 MSM,J wp_5464_2019 and batch

is entitled to claim Writ of Mandamus directing respondent No.4 not to interfere with the possession and enjoyment of the petitioner without following due process of law?

P O I N T No.1:

The first and foremost contention of the respondents is that

the petitioner being purchaser of immovable property for more than

Rs.100/- value under registered sale deed will not get title, interest

or right in immovable property. Consequently, the question of

infraction or infringement of legally enforceable right does not arise.

The petitioner being a purchaser under unregistered sale deed

sought writ of Mandamus. The facts are not in dispute. Before

examining other issues regarding entitlement of the petitioner to

claim writ of Mandamus, it is appropriate to advert to certain

provisions of the Transfer of Property Act, which deals with sale of

immovable property.

Chapter III of the Transfer of Property Act, 1882 deals with

sale of immovable property. Section 54 of the Transfer of Property

Act defined "sale". „Sale‟ is a transfer of ownership in exchange for a

price paid or promised or part-paid and part-promised. To complete

the sale, it must be registered, if the value of tangible immovable

property is Rs.100/- and upwards, or in the case of a reversion or

other intangible thing, can be made only by a registered instrument.

In the case of tangible immoveable property of a value, less than one

hundred rupees, such transfer may be made either by a registered

instrument or by delivery of the property. Delivery of tangible

immoveable property takes place when the seller places the buyer,

or such person as he directs, in possession of the property. Thus,

the „sale‟ of tangible immovable property is Rs.100/- and upwards is MSM,J wp_5464_2019 and batch

deemed to have been completed only when registered deed of

conveyance is executed transferring the tangible immovable property

in favour of the petitioner by his vendors. Though it is an outright

sale as defined under Section 54 of the Transfer of Property Act, it is

incomplete transaction as the sale is not by registered instrument.

Of course, rights and liabilities of buyer and seller are enumerated

under Section 55 of the Transfer of Property Act, but they are

mutual rights and obligations of both buyer and seller, not against

the State. Hence, the petitioner, who is a purchaser under

unregistered sale deed did not acquire any right or interest in the

immovable property as on the date of filing the writ petition.

However, the petitioner being a purchaser under unregistered sale

deed will not acquire any right or interest in the immovable property,

since, such document/instrument or conveyance of immovable

property can be equated with contract of sale for all practical

purposes, on the terms settled between the parties, but does not

create any interest or charge on immovable property since the sale

transaction is incomplete. Therefore, the petitioner did not acquire

any right or interest in the immovable property. Hence, the question

of infringement or invasion of petitioner‟s right by the respondents,

in the present facts of the case, does not arise.

At the same time, Writ of Mandamus is discretionary in nature

and such power of judicial review under Article 226 of the

Constitution of India can be exercised only in certain circumstances.

Yet, issuance of Writ of Mandamus is purely discretionary and the

same cannot be issued as a matter of course.

MSM,J wp_5464_2019 and batch

In "State of Kerala v. A.Lakshmi Kutty4", 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.

In "Raisa Begum v. State of U.P.5", the Allahabad High Court

has held that certain conditions have to be satisfied before a writ of

mandamus is issued. The petitioner to claim writ of mandamus must

show that he has a legal right to compel the respondents 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.

1986 (4) SCC 632

1995 All.L.J. 534 MSM,J wp_5464_2019 and batch

In "State of U.P. and Ors. v. Harish Chandra and Ors.6" 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."

(Emphasis supplied)

In "Union of India v. S.B. Vohra7" 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 Jain8" 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.

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

(1996) 9 SCC 309

(2004) 2 SCC 150

(2008) 2 SCC 280 MSM,J wp_5464_2019 and batch

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)

Similarly, in Corpus Juris Secundum, summarized the

pre-requisites for grant of writ of mandamus and the same is

extracted hereunder:

"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_5464_2019 and batch

In "Comptroller and Auditor-general of India, Gian

Prakash, New Delhi v. K.S. Jagannathan9" the Apex Court quoted

Halsbury‟s Laws of England, Fourth Edition,

Volume I, Paragraph 89, where it is stated that the purpose of an

order of mandamus "is to remedy defects of justice; and accordingly

it will issue, to the end that justice may be done, in all cases where

there is a specific legal right and no specific legal remedy for

enforcing that right; and it may issue in cases where, although there

is an alternative legal remedy, yet that mode of redress is less

convenient, beneficial and effectual."

The Division Bench of the Allahabad High Court in

"Ajit Singh v. Union of India10" while dealing with locus standi of a

person who filed petition under Article 226 of the Constitution of

India, referred the judgments of the Supreme Court to hold that

existence of legal right and its infraction must necessarily be pleaded

and proved to issue Writ of Mandamus.

In "State of Orissa v. Madan Gopal11" Hon‟ble Apex Court

has ruled that the existence of the right is the foundation of the

exercise of jurisdiction of the Court under Article 226 of the

Constitution. In "Charanjit Lal Chowdhuri v. Union of India12", it

has been held by Hon‟ble Apex Court that the legal right that can be

enforced under Article 32 must ordinarily be the right of the

petitioner himself who complains of infraction of such right and

approaches the Court for relief. The Court did not find any reason

why a different principle should apply in the case of a petitioner

AIR 1987 SC 537 10 2017 (9) ADJ 251 11 AIR 1952 SC 12

AIR 1951 SC 41 MSM,J wp_5464_2019 and batch

under Article 226 of the Constitution. The right that can be enforced

under Article 226 also shall ordinarily be the personal or individual

right of the petitioner himself though in the case of some of the writs

like habeas corpus or quo warranto this rule may have to be relaxed

or modified. Thus, Article 226 confers very wide power on the High

Court to issue directions and writs of the nature mentioned therein

for the enforcement of any of the rights conferred by Part III or for

any other purpose. It is, therefore, clear that persons other than

those claiming fundamental rights can also approach the Court

seeking a relief thereunder. The Article in terms does not describe

the classes of persons entitled to apply thereunder; but it is implicit

in the exercise of the extraordinary jurisdiction that the relief asked

for must be one to enforce a legal right.

Similarly, in "Mani Subrat Jain v. State of Haryana13",

while considering Article 226 of the Constitution, the Hon‟ble

Supreme Court in paragraph 9, observed thus:

"...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, paragraph

122); State of Haryana v. Subash Chander, (1974) 1 SCR 165 : (AIR 1973 SC 2216); Jasbhai Motibhai Desai v. Roshan Kumar Haji Bashir Ahmed, (1976) 3 SCR 58 : (AIR 1976 SC 578) and Ferris Extraordinary Legal Remedies paragraph 198."

(emphasis supplied)

It is well-settled that existence of a legal right of a petitioner

which is alleged to have been violated is the foundation for invoking

the jurisdiction of the High Court under Article 226 of the

AIR 1977 SC 276 MSM,J wp_5464_2019 and batch

Constitution. While reiterating this legal proposition, the Supreme

Court in paragraph 38 of its judgment in "Ghulam Qadir v. Special

Tribunal14", held thus:

"38. There is no dispute regarding the legal proposition that the rights under Article 226 of the Constitution of India can be enforced only by an aggrieved person except in the case where the writ prayed for is for habeas corpus or quo warranto. Another exception in the general rule is the filing of a writ petition in public interest. The existence of the legal right of the petitioner which is alleged to have been violated is the foundation for invoking the jurisdiction of the High Court under the aforesaid Article. The orthodox rule of interpretation regarding the locus standi of a person to reach the Court has undergone a sea change with the development of constitutional law in our country and the constitutional Courts have been adopting a liberal approach in dealing with the cases or dislodging the claim of a litigant merely on hypertechnical grounds. If a person approaching the Court can satisfy that the impugned action is likely to adversely affect his right which is shown to be having source in some statutory provisions the petition filed by such a person cannot be rejected on the ground of Ms having not the locus standi. In other words, if the person is found to be not merely a stranger having no right whatsoever to any post or property, he cannot be non-suited on the ground of his not having the locus standi."

(emphasis supplied)

In view of catena of perspective pronouncements, the

petitioner must plead and prove that legally enforceable right existed

either statutory or constitutional right and it is infringed or invaded

or threatened to infringe or invade by the respondents. But, the bald

allegations made in the affidavit without demonstrating the existence

of any right and its infringement or its invasion or threatened

infringement or invasion by the respondents are not sufficient. In the

absence of establishing the existence of right, its infringement or

invasion or threatened infringement or invasion, the petitioner is not

entitled to claim writ of mandamus. In view of the law declared by

the Supreme Court and reiterated by the Division Bench of the

Allahabad High Court in the judgment referred supra, the petitioner

(2002) 1 SCC 33 MSM,J wp_5464_2019 and batch

must plead and prove that a legal right possessed by him is violated

or infringed or threatened to be infringed to obtain a relief of writ of

mandamus.

In the present facts of the case, 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 being a purchaser of immovable

property under unregistered sale deed is not entitled to seek a writ of

Mandamus against the respondents. At best, the vendor in whose

favour the Patta was issued is entitled to seek writ of Mandamus.

In view of my foregoing discussion and the law laid down by

the Courts, it is clear that the petitioner failed to establish his

existing legally enforceable right either statutory or constitutional, its

infringement or invasion or threatened infringement or invasion of

such legally enforceable right.

In those circumstances, the petitioner is not entitled to claim

writ of Mandamus. Hence, the claim of the petitioner for grant of Writ

of Mandamus would fail for the above reasons, consequently the

petition is liable to be dismissed on this ground also. Accordingly,

the point is answered against the petitioner and in favour of the

respondents.

P O I N T No.2:

The core contention of respondent No.4 is that the land in

Sy.No.173/3 in Konka Chennaiah Gunta is a water body,

assignment of it is prohibited by BSO 15 para (4) (ii) (h) of the

Andhra Pradesh Board Standing Order. Even the Hon‟ble Apex Court MSM,J wp_5464_2019 and batch

did not permit assignment of such water body. To substantiate this

contention, the respondent No.4 filed certain documents.

It is specifically mentioned in the Adangal filed along with the

counter that the land admeasuring an extent of Ac.0.04 cents in

Sy.No.173/3 in Konka Chennaiah Gunta, Puthur Village, Tirupathi

Urban Mandal, Chittoor District is "cheruvu‟.

The State is under obligation to protect the ecology and

improve environment and safeguard forests and wild life. The State

shall endeavor to protect and improve the environment and to

safeguard the forests and wild life of the country -- Vide Article 48-A

of the Constitution of India.

Article 51A deals with fundamental duties. According to

Article 51A(g), it shall be the duty of every citizen of India to protect

and improve the natural environment, including forests, lakes, rivers

and wild life, and to have compassion for living creatures. Thus,

Article 48A and Article 51A(g) obligates the State to protect

environment and make every endeavor to protect lakes, rivers etc., to

maintain the ecology balances. Since the ownership and control over

material resources of the community are lies with the State, such

resources are to be distributed as best to sub-serve the common

good - Vide Article 39(b) of the Constitution of India.

The vacant lands, lakes, rivers etc., are under the direct

control of the State and the State has to maintain those rivers, lakes,

tanks as stated above by applying the doctrine of public trust and

right to life. It is for the State to allot such lands in various

circumstances being the custodian of the property of the public. The MSM,J wp_5464_2019 and batch

Apex Court in "Subhash Kumar vs. State of Bihar and ors.15"

held that right to life is a fundamental right which includes the right

of enjoyment of pollution free water and air for full enjoyment of life.

At the same time, in the guise of sustainable development, the State

cannot allot the properties to whomsoever the State likes.

While allowing the public property to the 3rd parties, the State

has to keep in mind its consequences on the environment and the

obligation of the State under the Constitution of India to keep up the

heritage and culture. The 42nd amendment to the constitution of

India added Article 48A and 51A(g) which comes under the directive

principle of State policy and the fundamental duties respectively.

The Supreme Court of India in "Sachidanand Pandey v. State of

West Bengal16" stated that the Court is bound to bear in mind the

above said articles whenever a case related to environmental problem

is brought to the court. In "Damodar Rao v. S.O. Municipal

Corporation17" the Apex Court held that the environmental

pollution and spoliation which is slowly poisoning and polluting the

atmosphere should also be regarded as amounting to violation of

Article 21 of the Constitution of India.

Similar question came up for consideration before the Apex

court in "Intellectuals Forum, Tirupathi v. State of A.P. & Ors."

(referred supra) wherein the Division Bench of the Apex Court has

considered the allotment of tanks known as „Avilala Tank‟ and

„Peruru Tank‟, which are situated in the suburbs of Tirupathi Town,

which is a world renowned popular pilgrim centre to housing board

for construction of residential houses to the public, but a social

1991 AIR 420

1987 AIR 1109

AIR 1987 AP 171 MSM,J wp_5464_2019 and batch

spirited person approached the court for judicial remedy before this

Court challenging the allotment of land by G.O.Ms. No.181 Rev.

dated 15.3.1991 alienating an extent of 150 acres of land which

belongs to the tank bed area of Peruru tank to Tirumala Tirupathi

Devasthanam (in short, TTD) and to Housing Board etc., were

challenged. The Writ Petition No.7955 of 1994 was filed assailing

G.O.Ms.No.181, dated 15.3.1991 in respect of alienation of Peruru

tank bed land to TTD and Writ Petition No.8650 of 1994 was filed

assailing G.O.Ms.No.84-Revenue Department, dated 28.1.1994 in

respect of alienation of Avilala tank bed area land to A.P. Housing

Board. The High Court dismissed the writ petitions on various

grounds and aggrieved by the order of this Court, the public spirited

person approached the Supreme Court. The Apex Court, after

considering the facts and circumstances of the case, concluded that

alienation of tank bund land vide G.O. Ms.No.84, dated 28.1.1994 is

in violation of Articles 48A and 51A(g) of the Constitution of India,

after considering the doctrine of „sustainable development‟ and

observed as follows :

"On realizing the importance of restoration of tank basins towards conservation of water and recharging of ground water, increase the storage capacity of tanks, renovating the tank bunds as well as feeder channels, TUDA has taken over 30 tanks in its operational area for taking up the improvements. Proposals include removal or eviction of encroachments, desilting of tank basins, clearing of jungle, strengthening of tank bunds, excavation of boundary trenches, widening and excavation of feeder channels, construction of boundary pillars and compound walls along the tank boundary. Block plantation, programmes for development as landscaped parks and water based entertainment units for the benefit of the public in off shore areas of the tanks have been proposed wherever feasible and viable. Towards protection of environment, provision for treatment system is also made in the project to take care of entry of drainage/sullage into the tank storages. Block plantation on all on- shore areas of tank have been taken up as a part of Neeru Meeru MSM,J wp_5464_2019 and batch

programme to prevent erosion of soils and entry of encroachments which will have long term positive environment results."

The Apex Court also referred the declaration of environment

and development passed during the Earth Summit at 1992 to which

India is also a party, adopted the notion of sustainable development

principle i.e., in order to achieve sustainable development,

environmental protection shall constitute an integral part of the

development process and cannot be considered in isolation from it.

The Apex Court in the case of "Essar Oil v. Halar Utkarsh

Samiti18" was pleased to expound on this, and held that "this,

therefore, is the sole aim, namely, to balance economic and social

needs on the one hand with environmental considerations on the

other. But in a sense all development is an environmental threat.

Indeed, the very existence of humanity and the rapid increase in

population together with the consequential demands to sustain the

population has resulted in the concreting of open lands, cutting

down of forests, filling up of lakes and the pollution of water

resources and the very air that we breathe. However there need not

necessarily be a deadlock between development on the one hand and

the environment on the other. The objective of all laws on

environment should be to create harmony between the two since

neither one can be sacrificed at the altar of the other."

. A similar view was taken by the Apex Court in "Indian

Council for Enviro-Legal Action v. Union of India19", wherein it is

held that "while economic development should not be allowed to take

place at the cost of ecology or by causing widespread environmental

destruction and violation; at the same time the necessity to preserve

2004(2)SCC 392

1996 (5) SCC 281 MSM,J wp_5464_2019 and batch

ecology and environment should not hamper economic and other

developments. Both development and environment should go hand

in hand, in other words, there should not be development at the cost

of environment and vice versa, but there should be development

while taking due care and ensuring the protection of the

environment."

Article 48-A of the Constitution of India mandates that the

State shall endeavor to protect and improve the environment to

safeguard the forests and wild life of the country. Article 51A of the

Constitution of India, enjoins that it shall be the duty of every citizen

of India, inter alia, to protect and improve national environment

including forests, lakes, rivers, wild life and to have compassion for

living creatures.

Taking into consideration of various factors and the law laid

down by the Apex court as referred to supra, the Supreme Court

succinctly issued following guidelines :

"With regard to Peruru tank :

        (i)     No further constructions to be made.

        (ii)    The supply channel of Bodeddula Vanka needs to be cleared and

revitalized. A small check dam at Malapali to be removed to ensure the free flow and supply to the tank.

(iii) Percolation tank to be constructed and artificial recharge to be done to ensure the revival of the tank, keeping in mind its advantage at being situated at the foot hills.

(iv) The area allotted by Mandal Revenue Office for construction of the tank to be increased to a minimum of 50 acres. Percolation tank with sufficient number of recharge shafts to be developed to recharge the unsaturated horizons up to 20 m. The design of the shafts etc. to be prepared in consultation with the CGWB. The proposed percolation tank to be suitably located along the bund keeping in view the inlets, irrigation sluices and surplus water.

MSM,J wp_5464_2019 and batch

(v) Feasibility and cost estimation for the revival of the old feeder channel for Swarnamukhi River should be carried and a report to be submitted to the Court.

(vi) Each house already constructed by the TTD must provide for roof top rain water harvesting. Abstraction from ground water to be completely banned. No borewell/tubewell for any purpose to be allowed in the area.

(vii) Piezometers to be set up at selected locations, in consultation with the CGWB to observe the impact of rain water harvesting in the area on ground water regime.

With regard to Avilala tank :

(i) No further construction to be allowed in the area.

(ii) Each house already constructed by the APHB/TUDA must provide structure for roof top rain water harvesting. All the storm water in the already built colonies to be recharged to ground water. Structures for such purposes to be designed in consultation with the CGWB.

(iii) No borewell/tubewell for any purpose to be allowed in the area.

(iv) An area of 40 acres presently reserved for the Government should not be developed in any way that may lead to concretization of the ground surface. Recharge structures to be constructed for rainwater harvesting.

(v) Piezometers to be set up at selected locations, in consultation with the CGWB to observe the impact of rain water harvesting in the area on ground water regime."

The Constitution obligates the State to protect river water,

lakes etc., with a view to enhance environment and to avoid

environmental degradation. While the Constitution does not

specifically recognize a fundamental right to water, but court

decisions deem such a right to be implied in Article 21. Also Article

39(b) mandates that the State shall, in particular, direct its policy

towards securing that the ownership and control of the material

resources of the community are so distributed as best to sub-serve

the common good. In "Subhash Kumar v. State of Bihar (referred MSM,J wp_5464_2019 and batch

supra)" the Apex Court recognized that the right to life „includes the

right of enjoyment of pollution free water and air for full enjoyment of

life.‟

Viewed from any angle, it is the obligation of the State to

protect the water pollution and protect lakes, rivers, tank beds etc.,

in terms of Article 48A and 51A(g) of the Constitution of India.

According to the petitioner, an extent of Ac.0.04 cents in

Konka Chennaiah Gunta, Puthur Village, Tirupathi Urban Mandal,

Chittoor District was assigned to the vendor of the petitioner in

freedom fighters quota, imposing certain restrictions therein. But the

respondents denied very issue of patta in view of the probation in

G.O.Ms.No.157 dated 13.02.1987 and CCLA‟s ref. No.B2/2225/2003

dated 20.09.2003 and that the land assigned is classified as „water

body‟ is illegal and contrary to law.

The petitioner did not dispute classification of land, but

asserted that no water body is in existence and it is occupied by

several residents raising pucca constructions in Sy.No.173/3 of

Konka Chennaiah Gunta, Puthur Village, Tirupathi Urban Mandal,

Chittoor District. Therefore, in the non-existing of water body,

assignment of land is not prohibited. This contention cannot be

accepted in view of the principle laid down by the Apex Court in

"Hinch Lal Tiwari v. Kamala Devi20".

The Apex Court in "Sarvepalli Ramaiah v. District

Collector, Chittoor" (referred supra) held that, water bodies cannot

be alienated even if they are dry, and cultivation carried on dried bed

of water bodies does not denude land of its character as water

bodies.

2001 Supp (1) SCR 23 MSM,J wp_5464_2019 and batch

The petitioner based his claim on the patta granted in favour of

his vendor and it is placed on record letter addressed by P.Venu

Gopal, Secretary, Chittoor District Freedom Fighters‟ Association,

Tirupathi to the Mandal Revenue Officer, Tirupati Revenue Mandal,

Tirupati, who in turn forwarded the applications of 34 freedom

fighters for assignment of house sites in their favour, but no

proceedings were issued assigning the land to various freedom

fighters. However, „no objection certificate‟ dated 29.04.2014 was

issued by Mandal Revenue Officer, Tirupathi (Urban), Mandal would

show that „no objection‟ was reported for obtaining electricity

connection to the house of P.Ramachandran, s/o P.Palakshi, the

petitioner herein. Mere issue of „no objection certificate‟ by Mandal

Revenue Officer to obtain electricity service connection would not

create or confer any right in the immovable property though, he

allegedly purchased the property. Therefore, the documents

produced before this Court except patta allegedly issued in favour of

the vendor of the petitioner, there is nothing to establish that the

vendor of the petitioner was granted patta for an extent of Ac.0.04

cents, which is classified as "tank poramboke". When the

respondents denied very issue of patta, assigning Ac.0.04 cents in

Konka Chennaiah Gunta, Puthur Village, Tirupathi Urban Mandal,

in favour of the vendor of the petitioner, it is for the petitioner to

establish that the patta was granted in favour of the vendor of the

petitioner by the competent authority and that he is in possession

and enjoyment of the property. Adangal copy produced along with

the counter filed by respondent No.4 clinchinly established that the

land in Sy.No.173-3 in an extent of Ac.2.50 cents is classified in as

"Konka Chennaiah Gunta cheruvu"(column No.12).

MSM,J wp_5464_2019 and batch

Apart from that in G.O.Ms.No.157 Revenue (M) Department

dated 13.02.1987 specific directions were issued to the District

Collectors, which are as follows:

(1) No cultivation should be allowed in the tank bed area under

any circumstances.

(2) No lease of the tank bed lands including the lands lying

beyond the full tank level (FTL) either on „Eksal‟ basis or for a

longer period after the expiry of the subsisting leases should be

allowed, and

(3) No fresh leases of tank bed lands should be granted in future

even during the drought year.

All the above documents would clinchingly establish that the

land in Sy.No.173/3 of Konka Chennaiah Gunta is classified as

"Cheruvu" i.e. water body, assignment of it is prohibited under BSO

15 para 4 (ii) (h). The petitioner failed to establish the assignment of

land in favour of his vendor by producing any other material, more

particularly when the land is classified as „water body‟. The

genuineness of patta produced by the petitioner along with the writ

petition cannot be decided at this stage. However, the, petitioner is

not entitled to claim any right in the property based on such

unregistered sale deed.

The petitioner claiming to be in possession and enjoyment of

the property and the same was denied by respondent No.4 while

contending that when the petitioner made an attempt to encroach

the land to raise temporary construction in the land, respondent

No.4 prevented the same, and again the petitioner is making attempt

to encroach the land without any right or title to the property and

any amount of interference is only to prevent such encroachment. In MSM,J wp_5464_2019 and batch

such case, it is for the petitioner to establish that the petitioner is in

possession and enjoyment of the property by producing substantive

material, but here the petitioner did not produce any material except

producing tax receipts evidencing payment of tax to the Municipality

or electricity bills evidencing payment of electricity consumption

charges to the concerned authorities, but no other documents are

produced to establish that the petitioner is in possession of the

property. Moreover, it is difficult to identify the land based on the

positive photographs produced by the petitioner along with reply

affidavit, more particularly, possession of the petitioner. Therefore,

the petitioner miserably failed to establish his possession and

enjoyment of the property, which is classified as „water body‟ and the

assignment of the same is prohibited BSO 15 para 4 (ii) (h). Hence,

the writ petition is liable to be dismissed.

In view of my foregoing discussion, I find no merit in the

petitions. Consequently, the writ petitions are liable to be dismissed.

In the result, the writ petitions are dismissed. No costs.

Consequently, miscellaneous petitions pending if any, shall

also stand dismissed.

_________________________________________ JUSTICE M. SATYANARAYANA MURTHY 09.11.2021 Ksp