M/S. Social Unit For Health And ... vs The State Of Andhra Pradesh
2021 Latest Caselaw 4240 AP

   THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY

                         WRIT PETITION No.20545 of 2020
ORDER:

M/s. Social Unit for Health and Improvement filed this petition

under rticle 226 of the Constitution of India to issue of Writ of

Mandamus -:

i) declaring the action of respondent No.1 in issuing G.O.Ms.No.581, Revenue (Assn.V) Department, dated 19.11.2018 for allotment of land on lease basis for a period of 33 years relating to petitioner's Plot Nos.2 to 4, 7, 14,20, 23 to 30, 31, 32 and 40 in Sy.No.280/2 to an extent of total 55674 Sq.Feets or 6186 Sq.Yds equivalent to Ac.1.27 1/3 cents out of total extent of Ac.2.00 cents situated at Kattamanchi Village, Muraganipalle, Chittoor Municipal Corporation, Chittoor Mandal, Chittoor District, is illegal, arbitrary and unconstitutional and consequently set aside the same

ii) to direct respondent Nos.1 to 6 to withdraw the prohibitory list submitted to respondent No.7 under Section 22-A of the Registration Act relating to Plot Nos.2 to 4, 7, 14,20, 23 to 30, 31, 32 and 40 in Sy.No.280/2 to an extent of total 55674 Sq.Feets or 6186 Sq.Yds equivalent to Ac.1.27 1/3 cents out of total extent of Ac.2.00 cents situated at Kattamanchi Village, Muraganipalle, Chittoor Municipal Corporation, Chittoor Mandal, Chittoor District,

iii) to direct respondent Nos.1 to 6 to delete the name of respondent No.8 in all revenue records including webland/aponline relating to Sy.No.280/2 to an extent of total 55674 Sq.Feets or 6186 Sq.Yds equalent to Ac.1.27 1/3 cents out of total extent of Ac.2.00 gts situated at Kattamanchi Village, Muraganipalle, Chittoor Municipal Corporation, Chittoor Mandal, Chittoor District, by restoring the petitioner‟s society name in all revenue records;

iv) to declare the action of respondent No.1 is illegal, arbitrary and unconstitutional and against the principles of natural justice and in violation of Article 14,16 and 300-A of the Constitution of India.

The petitioner is claiming to be the owner of plot Nos.2 to 4, 7,

14, 20, 23 to 30, 31, 32 and 40 in Sy.No.280/2 to an extent of total

55674 Sq.Feet or 6186 Sq.Yds equivalent to Ac.1.27 1/3 cents

out of total extent of Ac.2.00 cents situated at Kattamanchi

Village, Muraganipalle, Chittoor Municipal Corporation, Chittoor MSM,J wp_20545_2020

Mandal, Chittoor District. Unfortunately, the said property was

included in the list of prohibited properties notified under Section

22-A of the Registration Act.

It is contended that the subject land is exclusive private land,

registered with the 7th respondent vide document No.4127 of 1997

on 31.07.1997 in favour of the petitioner's society, document No.779

of 1943 dated 12.02.1943, document No.1700 of 1979 dated

16.04.1979, document No.1701 of 1979, dated 16.04.1979,

document No.1702 of 1979 dated 16.04.1979, document No.1704

of 1979 dated 16.04.1979, document No.4874 of 1979, dated

29.08.1979, document No.4875 of 1979, dated 29.08.1979,

document No.5339 of 1979, dated 12.09.1979. The petitioner is in

peaceful possession and enjoyment of the property. When

respondent Nos.2 to 6 tried to dispossess the petitioner from the

above said society land, the petitioner approached the High Court

by filing W.P.No.4454 of 2019 challenging the inaction of the

respondent Nos.2 to 6, wherein this Court directed to maintain

status quo as on date i.e. 01.04.2019 and it is pending for

adjudication. At the time of filing the above writ petition, the

petitioner the petitioner's society was not aware of issuance of

G.O.Ms.No.581 Revenue (Assn.V) Department dated 19.11.2018 as

the copy was not served on the petitioner.

The further contention of the petitioner is that with great

difficulty, obtained copy of G.O.Ms.No.581, Revenue (Assn.V)

Department dated 19.11.2018, filed the present writ petition against

the official and unofficial respondents herein. The land was originally

agricultural land, it was converted into plots by obtaining necessary

permission from the Moriganipalle Gram Panchayat vide PR No.9 MSM,J wp_20545_2020

(3)27-3-81. In the year 2011, when some private persons tried to

occupy the petitioner's society land, he filed O.S.No.329 of 2010 on

the file of the Principal Senior Civil Judge, Chittoor,obtained

decreed vide judgment and decree on 15.07.2011 in favour of the

society.

Respondent Nos.2 to 6 recommended for lease of petitioner‟s

society land in favour of respondent No.8 herein without knowledge

of the petitioner. Basing on the recommendation of respondent Nos.2

to 6, respondent No.1 issued impugned G.O.Ms.No.581 Revenue

(Assn.V) Department dated 19.11.2018 in favour of respondent No.8.

Respondent No.3 implemented the said G.O., issued proceedings

vide Roc.E2/Computer No.3705/2017, dated 01.02.2019 in favour

of respondent No.8 behind the petitioner. As the subject property is

purely private property, the respondents have no authority to lease

out the same treating the said property as „government land‟ and

that inclusion of property in the list of prohibited properties notified

under Section 22-A of the Registration Act is illegal and arbitrary,

requested to issue a direction as claimed in the writ petition.

Respondent No.6 - Tahsildar filed counter admitting the

inclusion of property in the list of prohibited properties notified

under Section 22-A of the Registration Act, so also issue of

G.O.Ms.No.581 Revenue (Assn.V) Department dated 19.11.2018,

proposing to allot the land in an extent of 55674 Sq.feet or 6186

Sq.yards equivalent to Ac.1.27 1/3 cents situated at Kattamanchi

Village, Muraganipalle, Chittoor Municipal Corporation, Chittoor

Mandal on lease basis in favour of respondent No.8.

MSM,J wp_20545_2020

The specific claim of respondent No.6 is that the land in

dispute is „Government land‟ and the petitioner is not the owner of

the property, thereby the petitioner - society is not entitled to

challenge the action of the respondents in leasing out the property

for a period of 33 years in favour of respondent No.8. Apart from

that, the communication of list of prohibited properties notified

under Section 22-A of the Registration Act to the Registrar by the

District Collector is only in discharge of public duty and that in the

absence of any request made by the petitioner to delete the subject

property from the list of prohibited properties notified under Section

22-A of the Registration Act, this Court cannot issue a writ of

Mandamus as claimed by the petitioner, requested to dismiss the

writ petition.

The petitioner filed re-joinder denying the allegations made in

the counter filed by respondent No.6 while reiterating that the

petitioner is the owner of the subject land, having purchased the

same under registered sale deed (referred supra). Along with the re-

joinder, the petitioner placed on record copy of „A‟ register relating to

76 Kattamanchi village and other documents including record of

holding, settlement register No.123 of Kattamanchi Village to

substantiate the case of the petitioner.

Sri Bussa Rajendra, learned counsel for the petitioner,

submitted that the land is purely private land belonging to the

petitioner and the Government is no way concerned with the

property, but suddenly when the land records are updated in the

web portal, the classification of the property is changed and recorded

as „Government land‟. Therefore, the Government has no right to

alienate the property in favour of respondent No.8 by issuing MSM,J wp_20545_2020

impugned G.O.Ms.No.581 Revenue (Assn.V) Department dated

19.11.2018 and proceedings vide Roc.E2/Computer No.3705/2017,

dated 01.02.2019. At the same time, inclusion of subject property in

the prohibited properties list notified under Section 22-A of the

Registration Act without any notice to the petitioner and without

following any procedure is illegal, thereby the said property is to be

deleted from the prohibited properties list notified under Section 22-

A of the Registration Act, requested to grant relief as claimed in the

writ petition.

Learned Assistant Government Pleader for Stamps and

Registration opposed the petitioner on the ground that the petitioner

did not produce any document to prove that the subject property is

belonging to the petitioner except „A‟ register and settlement register,

but those documents are helpful to show presumptive title, but not

absolute title. Therefore, the action of the respondents cannot be

questioned in leasing out the subject property to respondent No.8 by

issuing impugned G.O.Ms.No.581 Revenue (Assn.V) Department

dated 19.11.2018. Apart from that to grant writ of Mandamus, there

must be demand and denial to discharge public duty by the

respondents. In the instant case, the petitioners did not make any

demand for deletion of subject property from the list of prohibited

properties notified under Section 22-A of the Registration Act,

requested to dismiss the writ petition.

Considering rival contentions, perusing the material available

on record, the points need to be answered by this Court are as

follows:

(1) Whether the petitioner is prima facie owner of the land in an extent of 55674 square feet or 6186 MSM,J wp_20545_2020

Sq.yards equivalent to Ac.1.27 1/3 cents out of total extent of Ac.2.00 cents situated at Kattamachi Village, Muraganipalle, Chittoor Municipal Corporation, Chittoor Mandal, Chittoor District? If so, whether G.O.Ms.No.581 Revenue (Assn.V) Department dated 19.11.2018 and consequential proceedings vide Roc.E2/Computer No.3705/2017, dated 01.02.2019 are legal and valid, if not, liable to be set aside?

(2) Whether the petitioner made any demand for deletion of land in an extent of 55674 square feet or 6186 Sq.yards equivalent to Ac.1.27 1/3 cents out of total extent of Ac.2.00 cents situated at Kattamachi Village, Muraganipalle, Chittoor Municipal Corporation, Chittoor Mandal, Chittoor District from the list of prohibited properties notified or included in the list of prohibitory properties under Section 22-A of the Registration Act and respondents denied such demand? If not, whether the petitioner is entitled to claim writ of Mandamus for deletion of subject property from the list of prohibited properties notified under Section 22-A of the Registration Act?

P O I N T No.1:

Indisputably, respondents issued G.O.Ms.No.581 Revenue

(Assn.V) Department dated 19.11.2018 allotting land on lease basis

for a period of 33 years to an extent of Ac.2.00 cts. in Sy. No.280/2

of Kattamanchi Village of Chittoor Mandal and District in favour of

Podar International School for establishment of International School

on payment of 10% of lease amount or rent on recommended Market

value @ Rs.1,08,90,000/- per acre and the lease amount or rent

shall be enhanced in every block of 5 years by increasing up to 10%

on the rental of the previous block of (5) years period, subject to

certain conditions stipulated therein. Consequent upon the said

G.O.Ms.No.581 dated 19.11.2018, the proceedings in MSM,J wp_20545_2020

Roc.E2/Computer No.3705/2017, dated 01.02.2019 were issued by

the Joint Collector directing the Tahsildar, Chittoor to alienate the

land in an extent of Ac.1.97 cents in Sy.No.280 of Kattamanchi

Village (land in Sy.No.280 measuring a total extent of Ac.2.30

excluding the extent of Ac.0.33 cents covered in W.P.No.41594 of

2018), on lease basis in favour of the General Manager, Podar

International School (respondent No.8 herein). Therefore, it is an

undisputed fact that respondent Nos.1 to 6 decided to lease out the

property. The petitioner is claiming right in Sy.No.280/2 of

Kattamanchi Village, whereas the respondents proposing to lease out

the land in the same survey number by issuing G.O.Ms.No.581 dated

19.11.2018, and the proceedings in Roc.E2/Computer

No.3705/2017, dated 01.02.2019. There is no dispute with regard to

identity of property on ground with reference to Survey Number

mentioned in G.O.Ms.No.581 dated 19.11.2018, and the proceedings

in Roc.E2/Computer No.3705/2017, dated 01.02.2019.

The real controversy between the petitioner and the

respondents is with regard to ownership. The petitioner is claiming

to be owner of the subject land through various registered sale

deeds. The Photostat copies of those documents are filed along with

the petition.

Registered partition deed document No.779 of 1943 dated

12.02.1943 is the basis for claim of the petitioner herein, by which

partition had taken place among Ramaswamy Reddy and

Prabhakara Reddy, sons of Narasimha Reddy. According to the said

document, the land in an extent of Ac.2.30 cents in Sy.No.280 was

allotted to Prabhakara Reddy, which is shown as „B‟ schedule.

Thereafter, a sale deed vide document No.1700 of 1979 was executed MSM,J wp_20545_2020

on 16.04.1979 by Dr. (Mrs.) Varalskshmi reddy W/o. P.S.Reddy in

favour of (1) C.Damodara Reddy and (2) Ch.Harinatha Reddy sons of

C.Doraswamy Reddy conveying an extent of Ac.2.30 cents in

Sy.No.280 along with other land in different survey numbers for

Rs.9,000/-. Thus, C.Damodara Reddy and Ch.Harinatha Reddy

became owners of the land in Sy.No.280 of Kattamanchi village.

The said C.Damodara Reddy and Ch.Harinatha Reddy

executed Gift deed No.4127 of 1997 dated 31.07.1997 in favour of

the petitioner herein transferred the land in Sy.No.280, 402, 403,

423 and 404/12 of No.76 Kattamanchi Village to improve the

literacy, livelihood, health and development of poor people

irrespective of caste, community or creed etc.

The said documents clearly establish that the land in an extent

of Ac.2.30 cents in Sy.No.280 of Kattamanci village was sold to

different persons on different dates, ultimately the petitioner became

the owner of the subject land. The same was allegedly converted into

plots after compliance of necessary statutory formalities. Therefore,

the petitioner became the absolute owner of the subject property, but

the Government claiming to be owner of the said land based on the

entries in revenue records. Such issue cannot be decided by this

Court effectively while exercising limited jurisdiction under Article

226 of the Constitution of India as proof of title is a mixed question

of fact and law. Therefore, this Court cannot decide ownership of the

property except recording a prima facie finding.

The main contention of the petitioner is that the land was

registered in „A‟ register of Kattamanchi village. 2nd page of the „A‟

register is placed on record by the petitioner to prove the MSM,J wp_20545_2020

classification of the land. The land in Sy.No.280 is appearing in the

2nd page of the „A‟ register, but classification is not appearing in the

record. However, record of holding of Kattamanchi village would

show that an extent of Ac.2.30 cents in Sy.No.280 was assigned to

Prabhakara Reddy. The proceedings in D.Dis (c) No.2316/91 dated

28.11.1991 would show that the land in Sy.No.280 of Kattamanchi

village is classified as dry land as per 10 (1) Adangal of Kattamanchi

village. 10.1 Adangal disclosed that the land in an extent of Ac.2.30

cents in Sy.No.280 is recorded in the name of Sanjantham

Ramalingam. At best, these documents prima facie prove that the

petitioner became owner of the property having acquired the same

under registered gift deed and the petitioner is able to establish

various transactions of transfer of property of Ac.2.30 cents from one

person to the other, finally to the petitioner. When the petitioner is

prima facie owner of the subject property, passing of G.O.Ms.No.581

Revenue (Assn.V) Department dated 19.11.2018 proposing to allot

the subject property in favour of respondent No.8 is an illegality, but

both the petitioner and the Government claiming title to the

property. Except the entries in revenue records, no other material is

produced by the Government to contend that the Government is the

owner of the property. It is settled proposition of law that the entries

in revenue records would not create or confer any title to the

immovable property as held by the Apex Court in "Jitendra Singh v.

State of M.P.1" Hence, the claim of the Government based on entries

in revenue records cannot be sustained. Therefore, issue of

G.O.Ms.No.581 Revenue (Assn.V) Department dated 19.11.2018

granting lease for 33 years is illegal, arbitrary. Hence, on this ground

2021 SCC OnLine SC 802 MSM,J wp_20545_2020

alone, the G.O.Ms.No.581 Revenue (Assn.V) Department dated

19.11.2018 is liable to be set aside since the person who had no title

to the property cannot transfer better title than what he possessed.

On the other hand, the petitioner is able to establish that the land is

recorded in the name of the petitioner, as such the G.O.Ms.No.581

Revenue (Assn.V) Department dated 19.11.2018 impugned in the

writ petition is without any authority and it is nothing but arbitrary

exercise of power by the State. Consequently, the said

G.O.Ms.No.581 Revenue (Assn.V) Department dated 19.11.2018 is

liable to be set aside. Accordingly, the point is answered in favour of

the petitioner and against the respondents.

P O I N T No.2:

The petitioner while claiming declaration that the

G.O.Ms.No.581 Revenue (Assn.V) Department dated 19.11.2018 is

illegal, arbitrary and without any authority of law, sought a direction

to delete the property from the list of prohibited properties notified

under Section 22-A of the Registration Act. Whereas, learned

Assistant Government Pleader for Stamps and Registration would

contend that the writ of Mandamus cannot be issued since the

petitioner did not make any application as per the procedure

prescribed under law for deletion of the property from the prohibited

properties list notified under Section 22 A of the Registration Act and

in the absence of demand and denial, writ of Mandamus cannot be

issued.

Affidavit and reply affidavit filed by the petitioner are totally

silent with regard to the demand made by the petitioner for deletion MSM,J wp_20545_2020

of the property from the prohibited properties list notified under

Section 22A of the Registration Act to claim writ of Mandamus.

Writ of Mandamus can be issued only against the State and its

instrumentalities when a demand made by private individuals to do

or not to do an act or thing by the State or its instrumentalities and

denied the same by the authorities.

For issue of mandamus against an administrative authority

the affected individual must demand justice and only on refusal he

has right to approach the Court. In "Saraswati Industrial

Syndicate Limited v. Union of India2", the Supreme Court has

adopted the following statement of law in this regard. :

"As a general rule the orders would not be granted unless the party complained of has known what it was he was required to do, so that he had the means of considering whether or not he should comply, and it must be shown by evidence that there was a distinct demand of that which the party seeking the mandamus desires to enforce, and that the demand was met by a refusal."

Thus, a party seeking mandamus must show that a demand is

made for justice from the authority concerned by performing his duty

and that the demand was refused. In "Saraswati Industrial

Syndicate Limited v. Union of India" (referred supra) the Court

refused to grant mandamus as there was no such demand and

refusal. Where a civil servant approached the court for mandamus

against wrongful denial of promotion, he was denied the relief

because of his failure to make representation to the government

against injustice. The said principle was reiterated in "Amrit Lal v.

Collector, C.E.C., Revenue3".

AIR 1975 SC 460

AIR 1975 SC 538 MSM,J wp_20545_2020

In "the Statesman v. Fact Finding Committee4" the Court

opined that the demand for justice is not a matter of form but a

matter of substance, and it is necessary that a "proper and sufficient

demand has to be made". The demand must be made to the proper

authority and not to an authority which is not in a position to

perform its duty in the manner demanded. It is suggested that the

Court should not fossilize this rule into something rigid and

inflexible but keep it as flexible.

Thus, the law is well settled that there must be a demand from

the citizen and denial by the State authorities. In the present facts of

the case, the petitioner did not make any demand to de-notify or

delete the property from the list of prohibited properties notified or

included in the prohibitory properties list under Section 22A (i) (c) of

the Registration Act.

Undisputedly, the petitioner did not make any application for

deletion of property from the list of prohibited properties through

Meesava (online) or in any authorised mode by paying requisite fee.

Therefore, the question of failure to discharge the public duty by the

respondents does not arise. Hence, the petitioner failed to establish

his existing legally enforceable right or interest and its infringement

or invasion or threatened infringement or invasion by the

respondents, besides demand and denial as discussed above. In

such circumstances, the petitioner is not entitled to seek a writ of

Mandamus against the respondents. Accordingly, the point is

answered in favour of the respondents and against the petitioner.

AIR 1975 Cal. 14 MSM,J wp_20545_2020

In view of my aforesaid findings, I find no merit in the case of

the petitioner. Consequently, the writ petition is liable to be

dismissed.

In the result, the writ petition is allowed in part declaring the

G.O.Ms.No.581 Revenue (Assn.V) Department dated 19.11.2018

and consequential proceedings in Roc.E2/Computer No.3705/2017,

dated 01.02.2019 are illegal and arbitrary, and they are hereby

quashed, while declining to issue writ of Mandamus for

de-notification or deletion of subject property from the list of

Prohibited properties notified under Section 22-A of the Registration

Act. However, the petitioner is at liberty to make appropriate

application to delete/denotify the subject property from the list of

Prohibited properties notified under Section 22-A of the Registration

Act. No costs.

It is made clear that the findings recorded above are limited for

the purpose of deciding prima facie title of the petitioner and the

Collector is at liberty to conduct necessary enquiry before taking

appropriate action on the application made by the petitioner for

de-notifying or deleting the subject property from the list of

Prohibited properties notified or included in the prohibitory

properties list under Section 22 A of the Registration Act and pass

appropriate orders.

Consequently, miscellaneous applications pending if any, shall

also stand dismissed.

_________________________________________ JUSTICE M. SATYANARAYANA MURTHY 25.10.2021 Ksp