Gali Sudarshan Naidu vs State Of Andhra Pradesh
2021 Latest Caselaw 3551 AP

    THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY

                   WRIT PETITION NO.46203 OF 2018

ORDER:

The dispute between two natural brothers claiming right over

the property of his father lead to filing of this writ petition under

Article 226 of the Constitution of India, questioning the order passed

by the second respondent/Tahsildar in Roc.No.01/2018 dated

07.12.2018 to issue writ of mandamus, declaring the same as illegal,

arbitrary, without jurisdiction and violative of Articles 14 and 19 of

the Constitution of India, consequently, quash and/or set-aside the

order passed by the second respondent, which is impugned in the

writ petition.

The petitioner and the third respondent are the natural sons of

late Ramanadham Naidu, who purchased an extent of Ac.1-30 cents

in Sy.No.5/1 from Manchu Nagoor Naidu under registered sale deed

dated 25.05.1977 for a valid consideration and the petitioner‟s father

also purchased land of an extent of Ac.0-30 cents in Sy.No.7/3 of

Moduglapalem Village from one Gali Venkataswamy Naidu of

Korlagunta, Tirupati vide registered sale deed dated 12.05.1980 for

valid consideration and the same is in the exclusive possession and

enjoyment of the petitioner during his lifetime. The petitioner and the

third respondent succeeded the ancestral property in Kobaka and

Amandur Villages, apart from the above land.

Partition took place among the petitioner, the third

respondent and his father. In the said partition, the petitioner was

allotted an extent of Ac.12-53 cents in Kobaka, Amandur and

Modugulapalem Villages, which are situated in Yerpedu Mandal, MSM,J WP_46203_2018

Chittoor District. The petitioner is claiming to be in peaceful

possession and enjoyment of land and his name is also mutated in

the revenue records. As the third respondent is interfering with the

peaceful possession and enjoyment of the petitioner‟s land, he filed

O.S.No.135 of 2016 and O.S.No.134 of 2016 on the file of Principal

Junior Civil Judge, Srikalahasti for perpetual injunction, initially

obtained ad-interim injunction in I.A.Nos.799 & 797 of 2016 in both

the suits. Subsequently, the said interim orders were vacated.

Aggrieved by the same, the petitioner preferred appeals in

C.M.A.Nos.3 & 4 of 2017 on the file of Senior Civil Judge,

Srikalahasthi, who in-turn upon hearing, confirmed the order passed

by the Trial Court and now C.R.P.Nos.6189 & 6267 of 2018 are

pending on the file of this Court for adjudication.

While the matter stood thus, based on an unregistered „Will‟

dated 01.11.2013, claimed to have been executed by the petitioner‟s

father, the third respondent made an application to the second

respondent for grant of pattadar pass book and title deeds for the

land, which the petitioner own and possessed. On receipt of the

information about the said application, the petitioner raised

objections regarding mutation and issue of pattadar passbook and

title deed in favour of the third respondent. Thereupon, the third

respondent filed W.P.No.9055 of 2017 against Respondent Nos. 1 to

3 therein before the High Court challenging the inaction of the

Tahsildar and this petitioner got impleaded in the said writ petition.

However, the High Court issued a direction to dispose of the

application in accordance with law. Again, the third respondent

approached this Court and filed W.P.No.706 of 2018 and the same

was disposed of with the following direction:

MSM,J WP_46203_2018

"Since there were two directions to the third respondent to consider the application of the petitioner for mutation of his name, after considering the objections of the fourth respondent, this writ petition need not be entertained. However, the third respondent is directed to comply with the orders passed in W.P.No.33891 of 2015 dated 13.10.2015 and W.P.No.905 of 2017 dated 03.04.2017 and pass appropriate order, if not already passed, within a period of four weeks from the date of receipt of copy of this order"

The High Court categorically and specifically directed the

second respondent to issue notices and consider the objections of

this petitioner who was impleaded as fourth respondent in the said

writ petition. The petitioner filed his objections from time to time and

made representations dated 05.12.2015 (legal notice), 23.12.2017,

17.09.2018 and 14.12.2018 (legal notice) to the second respondent

with a request to reject the application of the third respondent while

disputing the „Will‟. But, basing on the application of the third

respondent and without considering the objections of this petitioner,

the second respondent passed the impugned order based on the

report from V.R.O., Kobaka and other officials.

It is contended that, the order impugned in the writ petition is

illegal, arbitrary, malafide, capricious, violative of principles of

natural justice and fundamental rights guaranteed under the

Constitution of India on the following grounds:

(a) The order of the second respondent is wholly illegal, perverse and violative of principles of natural justice apart from being ultravires of his powers.

(b) The second respondent committed a manifest error in not considering the response/objections of the petitioner.

(c) The second respondent‟s order, though acknowledges issuance of notice to the petitioner, does not refer the objections of the petitioner.

(d) That the second respondent committed a patent error in not considering the objections of the petitioner despite the peremptory directions of this High Court passed in W.P.No.706 of 2018 dated 22.01.2018 directing the second respondent to MSM,J WP_46203_2018

comply with the Orders passed in W.P.No.33891 of 2015 and W.P.No.9055 of 2017, in which writ petitions, the High Court directed the second respondent issue notice to the parties and to consider the objections of the petitioner.

(e) That the second respondent passed the order under the threat of initiation of contempt proceedings by the third respondent. Third respondent filed C.C.No.3069 of 2018 complaining violation of the Order dated 22.01.2018 of the High Court in W.P.No.706 of 2018. As such, there was no application of mind by the second respondent but has mechanically passed the impugned order to appease the third respondent and to show compliance of the Order dated 22.01.2018 passed by this High Court.

(f) That the second respondent has violated the Order dated 03.04.2017 in W.P.No.9055 of 2017 and also the Order dated 22.01.2018 passed by this High Court by not considering the objections of the Petitioner.

(g) That the second respondent passed the impugned Order primarily basing on the will pleaded by the third respondent, which in fact, has been seriously disputed by the Petitioner. In view of such disputed questions of fact, the second respondent ought to have relegated the parties to the Civil Court instead of holding the will in favour of the third respondent

(h) That the second respondent placing reliance on the will amounts to accepting the genuineness of the same despite the same being disputed by the Petitioner.

(i) That the second respondent committed a patent error in unilaterally holding the lands situated in Modugulapalem as Government Poramboke lands. It is an admitted fact by the second respondent that the petitioner is in possession of the said land.

On the basis of the above contentions, the petitioner sought to

set-aside the proceedings impugned in the present writ petition

ordering mutation of the name of third respondent.

MSM,J WP_46203_2018

The second respondent/Tahsildar filed counter affidavit,

denying material allegations, while admitting passing of the

impugned order, inter alia, referring the orders of this Court in

W.P.No.33891 of 2015, W.P.No.9055 of 2017 and W.P.No.706 of

2018 in support of the order passed by the second

respondent/Tahsildar.

It is contended that, land of Ac.1-30 cents in Sy.No.5/3 and

Ac.0-30 cents in Sy.No.7/3 is classified as Government Poramboke

Land and registered as "Thopu" in the revenue records of

Modugulapalem village, Yerpedu Mandal, Chittoor District. thus, the

land is vested with the Government and either the petitioner or the

third respondent are not entitled to claim right over the property in

Sy.No.5/3 and Sy.No.7/3 of Modugulapalem Village.

The second respondent processed the application of the third

respondent only on the direction of the High Court in various writ

petitions referred above, while ordering issue of pattadar passbook

and title deed in favour of the third respondent for the land in

Yerpedu (Amandur), and Kobaka Villages, except Modugulapalem

Village, as it is a Government land. The second respondent also

contended that the petitioner is not in possession and enjoyment of

the property, in view of the orders passed by Senior Civil Judge,

Srikalahasthi in C.M.A.Nos.3 & 4 of 2017 on 03.08.2018 and that

the petitioner did not dispute the „Will‟ executed by his father, except

the land allotted in an extent of Ac.9-00 cents in Sy.No.5/1 of

Modugulapalem Village. Therefore, the petitioner is not entitled to

claim any order in the writ petition.

MSM,J WP_46203_2018

In any view of the matter, it is contended that the second

respondent has followed the procedure prescribed under the Act and

passed the impugned order which does not suffer from any

irregularity or illegality and thereby, the order impugned in the writ

petition is in accordance with law and passed the order in pursuance

of the directions issued by this Court in various writ petitions.

The third respondent filed a separate counter affidavit,

admitting about the relationship between the petitioner and third

respondent and filing of O.S.No.135 of 2016 and O.S.No.134 of 2016

on the file of Principal Junior Civil Judge, Srikalahasti, obtaining

interim injunction in I.A.Nos.799 & 797 of 2016 and later vacation of

interim order, dismissal of both interlocutory applications and

C.M.A.Nos.3 & 4 of 2017, so also pendency of C.R.P.Nos.6189 &

6267 of 2018 before this Court. The third respondent further

admitted about filing of various writ petitions and setting up of

unregistered „Will‟ executed by his father to claim mutation of the

property in the revenue records and obtaining pattadar passbook

and title deeds for the subject property. The respondent narrated the

circumstances which lead to filing of the writ petitions, but they are

not necessary, since passing of orders are not in dispute by this

Court.

The main contention of the third respondent is that, the third

respondent submitted applications dated 25-03-2017 and 20-12-

2018 to the Tahsildar, Yerpedu Mandal for issue of pattadar

passbook and title deed for the land covered under `Will‟ dated

01-11-2013 i.e., extent of Ac. 0-75 cents in Yerpedu Village, Ac.9-07

cents in Kobaka Village and Ac.1-60 cents in Modugulapalem Village MSM,J WP_46203_2018

of Yerpedu Mandal. Since the applications were not disposed of in

accordance with law by the second respondent, the third respondent

was constrained to file W.P.No.33891 of 2015, W.P.No.9055 of 2017

and W.P.No.706 of 2018, obtained order from the High Court, as

narrated by the second respondent in the counter affidavit. However,

in view of the order passed by the High Court in various writ

petitions referred above, the second respondent called for report from

V.R.Os of Kobaka, Yerpedu (Amandur) and Modugulapalem Villages

of Yerpedu Mandal and in obedience of the directions issued by the

second respondent, the V.R.Os submitted their report, inter alia,

stating that the third respondent is in possession and enjoyment of

the land as shown in the claim petition. However, V.R.O.,

Modugulapalem Village has reported to Tahsildar that the land in

Sy.No.5/3 to an extent of Ac.1-30 cents and Ac.0-30 cents in

Sy.No.7/3 is not in the list of prohibited properties as the land is

Government land. Therefore, the third respondent is not entitled to

claim pattadar passbook and title deed for the land in Sy.No.5/3 to

an extent of Ac.1-30 cents and Ac.0-30 cents in Sy.No.7/3 of

Modugulapalem Village.

The Mandal Revenue Inspector, Yerpedu Mandal has enquired

into the matter and submitted a detailed report to the second

respondent recommending for grant of pattadar passbook in favour

of the third respondent for the land claimed by him in Yerpedu

(Amandur) and Kobaka Villages and reported that the land in

Sy.No.5/3 to an extent of Ac.1-30 and Ac.0-30 in Sy.No.7/3 situated

in Modugulapalem village accounts is government land as per

revenue records and the third respondent‟s name cannot be mutated

for the said land also. Thereupon, the Tahsildar issued proceedings MSM,J WP_46203_2018

dated 07.12.2018 denying mutation and issue of pattadar passbook

to the land in Sy.No.5/3 to an extent of Ac.1-30 and Ac.0-30 in

Sy.No.7/3 in Modugulapalem Village. The third respondent

submitted an application dated 14.12.2018 to the Tahsildar, Yerpedu

under Right to Information Act, 2005, for supply of copy of proof of

service of notice dated 10.11.2018 on the petitioner and objections/

representations, if any, submitted by the petitioner in respect of the

third respondent‟s Claim Petition dated 02.09.2015 together with

copy of notice dated 11.10.2018 served on the petitioner and also

reports of V.R.Os, and Mandal Revenue Inspector, submitted to

Tahsildar, which is the basis for issuing the impugned proceedings

dated 07-12-2018 issued by the second respondent. The Deputy

Tahsildar, Yerpedu Taluk office vide Endorsement RTI No.192 of

2018 dated 22.12.2018 informed the third respondent under RTI Act

2005, that the objections submitted by Gali Sudarsana Naidu

(petitioner herein) are not available in the office and supplied a copy

of each of notice dated 10.11.2018 served on the petitioner, calling

for his objections and reports of Village Revenue Officers of Kobaka,

Yerpedu and Modugulapalem Villages and as well as report of

Mandal Revenue Inspector, Yerpedu Mandal.

From the above documents, it is clear that, there is no dispute

or objection in respect of the land situated in Kobaka and Yerpedu

villages by the petitioner at any point of time or Will dated

01.11.2013. However, the petitioner has been disputing the

possession of the third respondent in respect of the land situated in

Modugulapalem Village only and not in respect of the land situated

in Kobaka and Yerpedu Villages. However, petitioner has fabricated

certain representations and legal notice anti dated, only for the MSM,J WP_46203_2018

purpose of filing this writ petition and not even one representation or

legal notice was ever submitted by the petitioner to the second

respondent before passing the impugned proceedings dated

07.12.2018. Thus the petitioner did not approach this Court with

clean hands and filed this writ petition, misleading this Court with

an intention to harass the third respondent. On this ground alone,

writ petition is liable to be dismissed.

The third respondent again narrated the details of legal

proceedings pending before the Courts, which is not in dispute.

Repetition of those allegations would not serve any purpose.

Therefore, they are not reiterated herein.

As the petitioner submitted applications dated 25-03-2017 and

14-12-2018 to the second respondent for mutation, issue of pattadar

passbook and title deed, enquiry notices dated 17.03.2017 and

10.11.2018 were served on the petitioner in pursuance of the

directions issued by this Court calling upon him to submit his

objections, if any, in writing, together with Xerox copies of the

documents, in support of his objections. But, neither the petitioner

submitted any representation/objection nor any documentary

evidence nor appeared before the second respondent at any point of

time, but filed suits in respect of land in Sy.Nos.5/3 & 7/3 situated

in Modugulapalem Village and not in respect of lands in Yerpedu and

Kobaka Villages, which were referred in the earlier paragraphs of the

counter affidavit and admitted in the writ petition itself. Hence, the

second respondent passed the order impugned in the writ petition

basing on the material by following necessary procedure.

MSM,J WP_46203_2018

The third respondent further contended that, even though

notices were served to the petitioner on 17.03.2017 in

Roc.No.A/48/2017, as well as Notice dated 10.11.2018 in

Roc.No.1/2018 which were received by the petitioner from the

Tahsildar, yet the petitioner did not submit any

representation/objection/documentary evidence as per the

information furnished to the third respondent under Endorsement

RTI No.192/2018 dated 22.12.2018 of the Deputy Tahsildar,

Yerpedu. Moreover, this fact was not disputed by the petitioner even

in the affidavit filed in support of the writ petition. However, the

petitioner vaguely stated that he filed objections from time to time. It

is contended that the averments made by the petitioner in his

representations dated 05.12.2015 (legal notice), 23.12.2017,

23.12.2017, 17.09.2017, 14.12.2018 (legal notice) to the second

respondent with a request to reject the application of the third

respondent by disputing the „Will‟ are false and fabricated documents

and no proof of service of notice/representation is filed. Therefore, no

evidentiary value can be attached to these documents.

After considering entire material on record, the second

respondent issued the impugned proceedings dated 07-12-2018 for

mutation of name of third respondent and issue of pattadar

passbook and title deed for the land in Yerpedu and Kobaka villages;

while denying the claim of the third respondent for the land in

Sy.No.5/3 to an extent of Ac.1-30 cents and Ac.0-30 cents in

Sy.No.7/3 in Modugulapalem Village, as it is a government land and

that there are no merits in the writ petition and requested to dismiss

the writ petition.

MSM,J WP_46203_2018

The third respondent filed an additional counter affidavit dated

15.09.2019 contending that the petitioner has canvassed the writ

petition and he made several representations including the Legal

Notice dated 14.12.2018 to the second respondent for rejection of

claim of the third respondent. But, the Tahsildar-second respondent

failed to act on the representations and that the petitioner completely

suppressed the receipt of enquiry notice dated 11-10-2018 and in

response to that notice the petitioner appeared and gave a statement

before the Tahsildar, therefore the Writ Petitioner purposefully,

wantonly and deliberately suppressed about the receipt of the

enquiry notice and the statement given by him before the Tahsildar

in the Writ Affidavit, hence relief claimed under Article 226 of the

Constitution of India is not available.

It is further contended that, the Tahsildar after affording

reasonable opportunity to the writ petitioner issued the impugned

proceedings dated 07.12.2018 and if any person is aggrieved against

the said proceedings, it is open to them to file an appeal before the

Appellate Authority under ROR Act 1971. But, the writ petitioner

without availing the alternative remedy approached this Court

raising several contentions, more particularly, violating principles of

natural justice. The Endorsement dated 16.05.2019 issued to the

third respondent and Notice dated 11.10.2018 issued to the

petitioner by the Tahsildar, Yerpedu Mandal and Statement of the

petitioner recorded by the Tahsildar during enquiry are filed along

with the additional counter affidavit of the third respondent.

It is contended that, the name of third respondent was

mutated in the revenue records; pattadar passbooks and title deeds MSM,J WP_46203_2018

were issued, while rejecting the objections of the petitioner, passed

the impugned order, thereby the order cannot be set-aside, while

exercising power under Article 226 of the Constitution of India and

requested to dismiss the writ petition.

The main endeavour of Sri Prasanth, learned counsel for the

petitioner is that, provisions of Andhra Pradesh Rights in Land and

Pattadar Pass Books Act, 1971, is not complied with and recording

any finding regarding genuineness of the „Will‟ by the second

respondent is without jurisdiction and incompetent to decide the title

to the property is sufficient to set-aside the order both for non-

compliance of mandatory procedure prescribed under the Act, in

violation of principles of natural justice and exercise of power in

excess and requested to set-aside the impugned order as illegal,

arbitrary and consequently set-aside the same.

Whereas, learned counsel for the respondent Sri Jagapati

mainly contended that the petitioner surpassed various facts, more

particularly his appearance before the Tahsildar/second respondent

herein and the statement given by him before the Tahsildar and

those facts were suppressed conveniently to obtain appropriate order

on various grounds. It is also further contended that, the procedure

prescribed under the Act and Rules framed therein are strictly

adhered to by the Tahsildar and thereby, question of setting-aside

the impugned order does not arise, declaring the same as illegal and

arbitrary. Sri Jagapati, learned counsel also contended that, when

an additional counter is filed, the petitioner did not file any rejoinder

denying the factum of his appearance before the Tahsildar in

pursuance of the notice received by him during ROR Enquiry and his MSM,J WP_46203_2018

statement recorded by the Tahsildar. In the absence of rejoinder,

denying the same, the Court can conclude that the petitioner

suppressed certain facts and thereby disentitled to claim the relief in

the writ petition, as he did not approach the Court with clean hands

and requested to dismiss the writ petition.

Learned Assistant Government Pleader for Revenue supported

the contention of the third respondent regarding conduct of enquiry.

Considering rival contentions, perusing the material available

on record, the points that need be answered are as follows:

1. Whether the petitioner suppressed any material facts while seeking discretionary relief under Article 226 of the Constitution of India. If so, whether the writ petition is liable to be dismissed on the ground of suppression of material facts?

2. Whether Respondent No.2 followed the procedure prescribed under the provisions of Andhra Pradesh Rights in Land and Pattadar Pass Books Act, 1971, while passing the impugned proceedings for issue of pattadar passbook and title deed in favour of the third respondent for the land situated in Yerpedu (Amandur) and Kobaka villages, except Modugulapalem village, while ordering mutation of the name, based on unregistered 'Will' dated 01.11.2013"

P O I N T No.1:

One of the major contentions urged by the third respondent is

that the petitioner having received notice, appeared before the

Tahsildar and gave statement to the Tahsildar under R.O.R. enquiry,

he made serious allegation that no notice was served and no

opportunity was afforded to him. In fact, he received notice and

appeared before the Tahsildar in R.O.R. enquiry, copies of the notice

and statement recorded by the Tahsildar are placed on record to MSM,J WP_46203_2018

substantiate the contention of the third respondent to establish that

this petitioner was afforded reasonable opportunity by the recording

authority i.e., Tahsildar. The said fact was intentionally suppressed

by the petitioner so as to mislead the court to obtain an order of writ

of mandamus, which is purely discretionary in nature and therefore

such suppression of material fact before the court in proceedings

under Article 226 of the Constitution of India, claiming writ of

mandamus, itself is sufficient to debar this petitioner from claiming

any relief and on this ground alone the writ petition is liable to be

dismissed. The said plea was raised by an additional affidavit filed

by the third respondent, but, the petitioner did not file rejoinder

refuting those contentions. In the absence of denial, such silence on

the part of the petitioner be treated as an admission.

The respondent though contended that, it is not a material fact

and it is only a material particular and that the petitioner did not

suppress intentionally any such material fact which disentitled him

to claim writ of mandamus under Article 226 of the

Constitution of India.

Undoubtedly, writ of mandamus is purely discretion in nature

and such writ of mandamus can be issued only when the petitioner

is able to prove her subsisting right or interest in the property and in

the absence of infringement or invasion or threatened action to

infringe or invade the legal rights of the petitioner; writ of mandamus

is not maintainable. In view of the specific plea, it is appropriate to

examine the scope of writ of mandamus.

Writ of mandamus is purely discretionary in nature and such

power of judicial review under Article 226 of the Constitution of India MSM,J WP_46203_2018

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

cannot 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

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 1 1986 (4) SCC 632 2 1995 All.L.J. 534 MSM,J WP_46203_2018

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.

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.

3 (1996) 9 SCC 309 4 (2004) 2 SCC 150 5 (2008) 2 SCC 280 MSM,J WP_46203_2018

Note 192.-Mandamus is, subject to the exercise of a sound judicial discretion, the appropriate remedy to enforce a plain, positive, specific and ministerial duty presently existing and imposed by law upon officers and others who refuse or neglect to perform such duty, when there is no other adequate and specific legal remedy and without which there would be a failure of justice. The chief function of the writ is to compel the performance of public duties prescribed by statute, and to keep subordinate and inferior bodies and tribunals exercising public functions within their jurisdictions. It is not necessary, however, that the duty be imposed by statute; mandamus lies as well for the enforcement of a common law duty.

Note 196.-Mandamus is not a writ of right. Its issuance unquestionably lies in the sound judicial discretion of the court, subject always to the well settled principles which have been established by the courts. An action in mandamus is not governed by the principles of ordinary litigation where the matters alleged on one side and not denied on the other are taken as true, and judgment pronounced thereon as of course. While mandamus is classed as a legal remedy, its issuance is largely controlled by equitable principles. Before granting the writ the court may, and should, look to the larger public interest which may be concerned-an interest which private litigants are apt to overlook when striving for private ends. The court should act in view of all the existing facts, and with due regard to the consequences which will result. It is in every case a discretion dependent upon all the surrounding facts and circumstances."

(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 MSM,J WP_46203_2018

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)

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

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

infringed or invaded or threatened to infringe or invade, a writ of

mandamus cannot be granted.

No doubt, this court has to examine whether the alleged non-

disclosure of petitioner‟s appearance before the second respondent-

Tahsildar on receipt of notice under section 5 of Act 30 of 2013

amounts to suppression of material fact or material particular.

There is a distinction between material fact and material

particular. A material fact is a fact which is the basis for claiming

the relief. But, material particular is a subsidiary fact which is

required to be pleaded necessarily to complete the cause of action.

When the petitioner contended that the second

respondent/Tahsildar failed to follow the procedure under the

provisions of the Act, non-disclosure of his appearance on receipt of

notice before the recording authority i.e., second

respondent/Tahsildar and recording of his statement by the

Tahsildar is a material fact, because the petitioner is claiming a relief

on one of the grounds that the second respondent failed to follow the

procedure prescribed under the statute and rules framed therein.

Therefore, the factum of appearance before the Tahsildar in

obedience of the notice received by him in R.O.R. enquiry initiated on

the application of the third respondent and directions of the High MSM,J WP_46203_2018

Court in various writ petitions referred above, recording of his

statement by the Tahsildar is a material fact. Hence, it can safely be

held without any hesitation that, receipt of notice and appearance

before the Tahsildar in R.O.R enquiry is a material fact and not a

material particular.

The next question that arises for consideration is, what are the

consequences of suppression of such material fact. Here, the

respondents placed on record the notices received by the petitioner

in R.O.R. enquiry along with the memo in Roc.No.1/2018, dated

11-10-2018 calling upon this petitioner to file his objections, if any,

on 18-10-2018 by 2-00 P.M. before the Tahsildar on the application

filed by the third respondent for mutation of his name and for issue

of pattadar passbooks and title deeds with regard to the land.

In pursuance of the notice, the petitioner appeared before the

Tahsildar on the specified date and the statement of the petitioner is

recorded by the Tahsildar/second respondent. These documents are

obtained under Right to Information Act vide R.T.I. application

No.62/2019 dated 16.05.2019. This fact is not disclosed in the entire

affidavit, which is material fact.

In any view of the matter, in the notice, the Tahsildar called for

objections only for mutation and issue of pattadar passbooks and

title deeds in Sy.No.5/3 to an extent of Ac.1-30 cents and Ac.0-30

cents in Sy.No.7/3 of Modugulapalem Village. But, no objections

were called for by the second respondent for mutation of the name of

this petitioner for the land in Yerpedu and Kobaka villages. However,

his appearance before the Tahsildar and recording of statement by

the Tahsildar is suffice to conclude that the petitioner suppressed MSM,J WP_46203_2018

this material fact in the clam petition and made an attempt to obtain

an order invoking jurisdiction under Article 226 of the Constitution

of India, which is purely discretionary in nature.

The factum of said suppression is a matter of serious concern.

An application under Article 226 would be refuted without a hearing

on the merits or a rule nisi discharged, if it appears that the

applicant has made a deliberate concealment of material facts, with a

view to mislead the Court.

A prerogative remedy is not available as a matter of course. In

exercising extraordinary power, a writ court will bear in mind the

conduct of the party who is invoking the jurisdiction. If the applicant

does not disclose full facts or suppresses relevant materials or in

otherwise misleading the court, the court may dismiss the action

without adjudicating the matter. The rule has been evolved in larger

public interest to deter unscrupulous litigants from abusing the

process of the court by deceiving it. The very basis of writ jurisdiction

rests in disclosure of true, complete and correct facts. If, material

facts are not correctly stated or are suppressed or are distorted, the

very functioning of writ court would become impossible. It is a

fundamental principle of law that a person invoking the extra-

ordinary jurisdiction of the High Court under Article 226, must come

with clean hands and must make a full and complete disclosure of

facts to the court. Parties are not entitled to choose their own facts to

put forwards before court. A person invoking the discretionary

jurisdiction of the court cannot be allowed to approach it with a pair

of dirty hands. But even if the dirt is removed, and the hands MSM,J WP_46203_2018

become clean, still the court will have to consider whether he should

be granted the relief.

Prerogative writs are issued for doing substantial justice. It is,

therefore, of utmost necessity that the petitioner approaching the

writ court must come with clean hands, put forward all the facts

before the court without concealing or suppressing anything and

seek an appropriate relief. If there is no candid disclosure of relevant

and material facts and the petitioner is guilty of misleading the court

his petition may be dismissed at the threshold without considering

the merits of the claim. A prerogative remedy is not a matter of

course. While exercising extra ordinary power, a writ court would

certainly bear in mind the conduct of the party who invokes the

jurisdiction of the court. If the applicant makes a false statement or

suppresses a material fact or attempts to mislead the court, the

court may dismiss the action on that ground alone.

A claimant is under a duty to disclose all material facts. These

include all material facts known to the applicant and those that he

would have known had he made the proper and necessary inquiries

before applying for leave. Non-disclosure is sufficient ground for

refusing the remedy sought or for setting aside the grant of

permission or refusing permission and the claimant may be

penalised in courts. Even in an advertent misstatement of fact will be

a ground for refusal of relief.

In Welcome Hotel v. State of A.P6, an interim order was

obtained from court alleging the price fixed by government for

foodstuffs was too low and uneconomical. But the real fact was that

AIR 1983 SC 1015 MSM,J WP_46203_2018

the price was fixed on agreement, which was suppressed. The Court

dismissed the writ petition as also vacated the interim orders. In

Union of India v. Muneesh Suneja7, the petitioners filed successive

writ petition before different High Courts without disclosing the filing

of earlier petition.

In All India State Bank 'Officer's Federation v. Union of

India8, the court strongly disapproved the conduct of the petitioners

infilling writ petition in a different High Court after filing a false

declaration that no writ petition was filed earlier.

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

judgments referred supra, it is clear that, when the petitioner

approached the Court claiming writ of mandamus, suppressing

material fact or giving a misstatement of fact in the affidavit filed

along with the writ petition, he is debarred to claim relief of writ of

mandamus, which is purely discretionary in nature under

Article 226 of the Constitution of India.

As discussed in the earlier paragraphs, the petitioner clearly

made a misstatement and suppressed the material factum of his

appearance before the second respondent on receipt of notice in ROR

Enquiry and recording statement by the second respondent. This

itself is suffice to reject the claim of this petitioner as held by the

Apex Court in various judgments referred supra.

In view of my foregoing discussion, I hold that this petitioner

suppressed material fact and gave misstatement, which disentitled

AIR 2001 SC 854

1990 (Supp) SCC 336 MSM,J WP_46203_2018

this petitioner to claim discretionary relief under Article 226 of the

Constitution of India.

Accordingly, the point is answered against the petitioner and

in favour of the respondents.

P O I N T No.2:

The major contention of the petitioner before this Court is that,

the order was passed without following the procedure under Act and

that, the order was passed in violation of principles of natural

justice. Whereas, Respondent Nos.2 & 3 would contend that the

impugned order was passed strictly adhering to the procedure

prescribed under law.

In view of the rival contentions, before going to decide the

procedural complaints, it is appropriate to advert to the scope of this

Court under Article 226 of the Constitution of India. The jurisdiction

of Court under Article 226 of Constitution of India is limited and

such power can be exercised only certain circumstances which are

enumerated in "West Bengal Central School Service Commission

v. Abdul Halim9" wherein the Apex Court reiterated the following

principles of judicial review.

"It is well settled that the High Court in exercise of jurisdiction Under Article 226 of the Constitution of India does not sit in appeal over an administrative decision. The Court might only examine the decision making process to ascertain whether there was such infirmity in the decision making process, which vitiates the decision and calls for intervention Under Article 226 of the Constitution of India.

In any case, the High Court exercises its extraordinary jurisdiction Under Article 226 of the Constitution of India to enforce a fundamental right or some other legal right or the performance of some legal duty. To

2019 (9) Scale 573 MSM,J WP_46203_2018

pass orders in a writ petition, the High Court would necessarily have to address to itself the question of whether there has been breach of any fundamental or legal right of the Petitioner, or whether there has been lapse in performance by the Respondents of a legal duty.

The High Court in exercise of its power to issue writs, directions or orders to any person or authority to correct quasi-judicial or even administrative decisions for enforcement of a fundamental or legal right is obliged to prevent abuse of power and neglect of duty by public authorities.

In exercise of its power of judicial review, the Court is to see whether the decision impugned is vitiated by an apparent error of law. The test to determine whether a decision is vitiated by error apparent on the face of the record is whether the error is self-evident on the face of the record or whether the error requires examination or argument to establish it. If an error has to be established by a process of reasoning, on points where there may reasonably be two opinions, it cannot be said to be an error on the face of the record, as held by this Court in Satyanarayan v. Mallikarjuna reported in AIR 1960 SC 137. If the provision of a statutory Rule is reasonably capable of two or more constructions and one construction has been adopted, the decision would not be open to interference by the writ Court. It is only an obvious misinterpretation of a relevant statutory provision, or ignorance or disregard thereof, or a decision founded on reasons which are clearly wrong in law, which can be corrected by the writ Court by issuance of writ of Certiorari.

The sweep of power Under Article 226 may be wide enough to quash unreasonable orders. If a decision is so arbitrary and capricious that no reasonable person could have ever arrived at it, the same is liable to be struck down by a writ Court. If the decision cannot rationally be supported by the materials on record, the same may be regarded as perverse.

However, the power of the Court to examine the reasonableness of an order of the authorities does not enable the Court to look into the sufficiency of the grounds in support of a decision to examine the merits of the decision, sitting as if in appeal over the decision. The test is not what the Court considers reasonable or unreasonable but a decision which the Court thinks that no reasonable person could have taken, which has led to manifest injustice. The writ Court does not interfere, because a decision is not perfect."

In view of the law laid down by the Apex Court in the judgment

referred supra, the jurisdiction of this Court to interfere with the

quasi judicial orders is limited. Keeping in view of the law declared MSM,J WP_46203_2018

by the Apex Court, I would like to advert to the mandatory procedure

prescribed under the statute.

The main grievance of the petitioner is about compliance of the

mandatory provisions of the Andhra Pradesh Rights in Land and

Pattadar Pass Books Act, 1971 and the Andhra Pradesh Rights in

Land and Pattadar Pass Books Rules, 1989, it is necessary for this

Court to examine whether the procedure contemplated under

Section 5(3) is strictly complied or not. If, the Court concludes that

the procedure contemplated under Section 5(3) of the Act is not

complied with, the order of Respondent No.2, ordering mutation of

Respondent No.3 is liable to be set-aside.

Respondent No.3, on the basis of the „Will‟ allegedly executed

by late Ramanatham Naidu in his favour invoking Section 4(1) of the

Act, gave an intimation to the recording authorities i.e.

Tahsildar/Respondent No.2 about acquiring right in the property as

per Section 4 of the Act.

Section 5 deals with the procedure to be followed for

amendment and updating of record of rights. According to it, on

receipt of intimation of the fact of acquisition of any right referred to

in Section 4, the Mandal Revenue Officer i.e. the recording authority

shall determine as to whether, and if so in what manner, the record

of rights may be amended in consequence therefor and shall

carryout the amendment in the record of rights in accordance with

such determination.

At the same time, statutory duty is imposed on the Tahsildar

to issue notice and publication of notice along with proposed

amendment to the record of right in Form VIII. Therefore, it is MSM,J WP_46203_2018

appropriate to extract Sub-section (3) of Section 5, and it reads as

follows:

"The Mandal Revenue Officer shall, before carrying out any amendment in the record of rights under sub-section (1) or sub- section (2) issue a notice in writing to all persons whose names are entered in the record of rights and who are interested in or affected by the amendment and to any other persons whom he has reason to believe to be interested therein or affected thereby to show cause within the period specified therein as to why the amendment should not be carried out. A copy of the amendment and the notice aforesaid shall also be published in such manner as may be prescribed. The Mandal Revenue Officer shall consider every objection made in that behalf and after making such enquiry as may be prescribed pass such order in relation thereto as he deems fit."

Sub-Section (3) of Section 5 consists of two limbs. The first

limb mandates issue of notice in writing to all persons whose names

are entered in the record of rights and who are interested, before

carrying out the amendment and the second limb mandates

publication of amendment and issue of notice in such manner as

prescribed. Therefore, Tahsildar/Respondent No.4 before issuing

Pattadar Passbooks and Title Deeds and mutating entries in the

revenue records, shall comply with Sub-section (3) of Section 5 of the

Act. The manner as to how the notice is to be issued and published

is prescribed under Rule 19(1) & (2) of the Rules and it reads as

follows:

(1) The notice referred to in sub-section (3) of Section 5 of the Act shall be in Form VIII generated electronically. A copy of the draft amendment to From I-B, generated electronically, as per the intimation received shall be enclosed to the notice. While preparing the draft amendment to From I-B, the Procedure for notation of new sub-divisions notionally given in Para 15 of BSO-34A, extracted along with illustration in the Annexure, shall be followed.

(2) Such notice together with a copy of the amendment shall also be published in the manner specified in Clauses (a) to (e) of sub-rule (2) of Rule 5.

Form-VIII is prescribed as model notification for issue of notice

to all interested or affected persons, as prescribed under the second MSM,J WP_46203_2018

limb of Section 5(3) of the Act and Rule 19(1) of the Rules and it

reads as follows:

Form VIII (See Rule 19(1)) Notice Whereas the undersigned has received an intimation of the fact of acquisition of a right as described in the schedule hereunder and it appears that an amendment has to be made in the Record of Rights in consequence thereof ...................

and/or Whereas the Recording Authority has reason to believe that an acquisition of a right has taken place as described in the schedule hereunder and it appears that amendment has to be made in the Record of Rights in consequence thereof.

Now, therefore, under sub-section (3) of Section 5 of Andhra Pradesh [Rights in Land] and Pattadar Pass Book Act, 1971.

All persons interested or affected are hereby required to show cause on or before .................. (date to be specified not being earlier than 30 days from the service/publication of the notice) as to why the amendment should not be carried out.

You.................... ..................... ............................. All persons interested or affected are hereby required to appear on or before the undersigned on .................... (date not earlier than forty five days from the service/publication of the notice) as ....................... (Place) .......................... time in connection with the enquiry proposed to be held in respect of the above matter.

      Recording Authority

                                            Schedule
                 S.No. etc., of                                   Brief purport
                 the entry                                        of proposed
                 relating to                                      amendment
                 which is
                 sought to be
                 amended

Based on the above, Respondent Nos.2 & 3 contended to

establish about substantial compliance of Section 5(3) of the Act,

Rule 19 (1) & (2) read with Rule 5(2) (a) to (e) of the Rules.

Publication of notice in Form VIII is sufficient compliance of

second limb of Sub-section (3) of Section 5 of the Act, but no piece of

evidence is placed on record to prove substantial compliance of first

limb of Sub-section (3) of Section 5 i.e. issue of notice to interested

and affected persons before carrying out amendment, in such

manner prescribed. Thus, failure to issue notice to the persons

interested or effected whose names are recorded in the record of

rights, as mandated in Section 5(3) of the Act, is a clear violation of MSM,J WP_46203_2018

the mandatory procedure prescribed under Sub-section (3) of Section

5 of the Act.

Sub-section (3) of Section 5 of the Act and Rule 19(1) & (2) of

the Rules are extracted in earlier paragraphs. In view of Sub-rule (2)

of Rule 19, it is for the recording authorities to publish the notice

along with amendment in the manner specified in Clause (a) to (e) of

Sub-Rule (2) of Rule 5 of the Rules. At this stage, it is apposite to

extract Rule 5(2) (a) to (e) of the Rules and it reads as follows:

(2) The notice referred to in sub-rule (1) shall be Form II and shall be published in the District Gazette of the District in which the village is situate and also in the following manner namely-

(a) by affixture in the chavidi or if there is no chavidi, in any other conspicuous place in the village;

(b) by affixture on the notice boards of the Gram Panchayat Office, Primary Co-operative Agricultural Credit Society or School, if any, in the village;

(c) by beat of tom tom in the village;

(d) by affixture on the notice board of the office of the Mandal Revenue Officer having jurisdiction over the village; and

(e) by affixture on the notice board of the office of the Mandal Praja Parishad in which the village is situated.

Though, Sub-rule (2) of Rule 5 deals with mode of publication

of notice, as required in Form II of Sub-rule (2) of Rule 5, read with

Rule 19(1), when a notice referred to in sub-section (3) of Section 5 in

Form VIII along with draft amendment to Form 1-B (ROR) is

generated electronically, such notice is to be published in all modes

specified in Rule 5(2) (a) to (e) of the Rules. In the present facts of

the case, there is absolutely no material about compliance of Rule

19(2) read with Rule 5(2) (a) to (e). Thus, Respondent No.4 failed to

comply with the procedure prescribed under Rule 19(2) read with

Rule 5(2) (a) to (e) of the Rules and Section 5(3) of the Act, on

account of failure of substantial compliance of the provisions of the MSM,J WP_46203_2018

Act and Rules framed thereunder, the order of Respondent No.2 is

liable to be set-aside.

Similar issue came up before High Court of Andhra Pradesh in

Chinnam Pandurangam v. Mandal Revenue Officer,

Serilingampally Mandal (referred supra), where the Court held as

follows:

"The above analysis of the relevant statutory provisions shows that proviso to Section 5(1) and Section 5(3) represent statutory embodiment of the most important facet of the rules of natural justice i.e. audi alterem partem. These provisions contemplate issue of notice to the persons likely to be affected by the action/decision of the Mandal Revenue Officer to carry out or not to carry out amendment in the Record of Rights. Proviso to Section 5(1) lays down that if the Mandal Revenue Officer decides not to make an amendment in the Record of Rights, then he shall pass appropriate order only after giving an opportunity of making representation to the person, who gives intimation regarding acquisition of any right referred to in Section 4. Section 5(3) provides for issue of written notice to all persons whose names are entered in the Record of Rights and who are interested in or affected by the amendment. Similarly, a notice is required to be issued to any other person whom the recording authority has reason to believe to be interested in or affected by the amendment. A copy of the amendment and the notice is also required to be published in the prescribed manner. The publication of notice in the prescribed manner is in addition to the notice, which is required to be given in writing to all persons whose names are entered in the Record of Rights and who are interested in or affected by the amendment and also to any other person whom the recording authority has reason to believe to be interested in or affected by the amendment. To put it differently, the publication of a copy of the amendment and the notice is only supplemental and not the alternative mode of giving notice to the persons whose names are entered in the Record of Rights and who are interested in or affected by the amendment and to any other person to whom the recording authority has reason to believe to be interested in or affected by the amendment. If the Legislature thought that publication of a general notice in Form-VIII will be sufficient compliance of the rules of natural justice, then there was no occasion to incorporate a specific requirement of issuing written notice to the persons whose names are entered in the Record of Rights and who are interested in or affected by the amendment and also to other person whom the recording authority has reason to believe to be interested in or affected by the amendment. In our considered view, the requirement of issuing written notice to the persons whose names are entered in the Record of Rights and who are interested in or affected by the amendment and also to any other person whom the recording authority thinks to be interested in or affected by the amendment clearly negates the argument that publication of notice in Form-VIII is sufficient."

In view of the law declared by the Full Bench of Andhra

Pradesh High Court in the judgment referred supra, the order passed

by Respondent No.2/Tahsildar to mutate the names of Respondent

No. 3, based on the Will, allegedly executed by late Ramanatham MSM,J WP_46203_2018

Naidu during his lifetime is liable to be set-aside, for non-compliance

of mandatory procedure and violation of principles of natural justice,

as principles of natural justice is embedded in Section 5(3) of the Act

read with Rule 19(1) and (2) of the Rules.

In the present facts of the case, as per the material on record,

more particularly, the additional material placed on record along

with the additional counter affidavit, the second respondent did not

issue notice(s) calling this petitioner for mutation of the land in

Yerpedu and Kobaka villages. But, a notice was issued only for

mutation of name of this petitioner for the land in Modugulapalem

village, while ignoring the land in Yerpedu and Kobaka Villages and

no objections were called from this petitioner. More so, the procedure

referred above, more particularly, notice in Form-VIII in compliance

of Section 5(3) of the Act read with Rule 19(1) & (2) and Rule 5(2) (a)

to (e) of the Rules was not issued and on this ground, it can safely be

held that the second respondent failed to comply with the statutory

procedure, as mandated under the Act and Rules framed thereunder

and violated the principles of natural justice embedded in Section

5(3) of the Act read with Rule 19(1) & (2) and Rule 5(2) (a) to (e) of the

Rules and violated principles of natural justice, as such, the

impugned order is liable to be set-aside. However, he is disentitled to

claim relief of writ of mandamus, which is purely discretionary in

nature, as discussed in Point No.1. Hence, the point is held against

the respondents and in favour of the petitioner.

In view of my foregoing discussion, I hold that the petitioner is

disentitled to claim relief, in view of finding is recorded by this Court

on Point No.1 that this petitioner is disentitled to claim writ of MSM,J WP_46203_2018

mandamus, which is discretionary, as the petitioner suppressed the

material fact by applying the law referred above. Though the order is

passed in violation of mandatory procedure and principles of natural

justice, because of suppression, I am unable to accede to the request

of the petitioner to set-aside the impugned order. Consequently, the

writ petition is liable to be dismissed. Further, the finding recorded

by the second respondent regarding genuineness of the „Will‟ is only

limited for the purpose of mutation and issue of pattadar passbook

under the Act and the legality and genuineness of the „Will‟ is always

subject to the proceedings, if any initiated before the competent civil

court, since the second respondent/recording authority is

incompetent to decide such an issue regarding genuineness and

validity of the „Will‟ and the civil court is competent to decide such an

issue.

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

contention of the petitioner and the petition is liable to be dismissed.

In the result, writ petition is dismissed. No costs.

Consequently, miscellaneous applications, pending if any,

shall also stand dismissed.

__________________________________________ JUSTICE M. SATYANARAYANA MURTHY Date:16.09.2021

SP