Andhra Pradesh High Court - Amravati

Seelam Kavitha vs The State Of Andhra Pradesh, on 12 October, 2023

Bench: Subba Reddy Satti

   IN THE HIGH COURT OF ANDHRA PRADESH: AMARAVATI

        HONOURABLE SRI JUSTICE SUBBA REDDY SATTI

                     WRIT PETITION No.3976 of 2023

   Seelam Kavitha, S/o C.Srinivasu, aged 32
   years,   R/o   3-6-107,      Kothapeta,    VTC,
   Srisailam, Kurnool District and five others.
                                                         ... Petitioners.
                   Versus

   The State of Andhra Pradesh, Rep. by its
   Principal Secretary, Revenue (Endowments)
   Department,      Secretariat,    Velagapudi,
   Amaravathi, Guntur District and 26 others.
                                              ... Respondents.

Counsel for the petitioners             : Sri Ponnada Sree Vyas

Counsel for respondents 1 & 2           : GP for Endowments

Counsel for respondent No.3             : Smt.Kota Kalpana

Counsel for respondents 4 to 24         : Sri M.Vidyasagar



                                   ORDER

The above writ petition is filed seeking the following

relief:

"... to issue an appropriate Writ, Order or direction, more particularly one in the nature of Writ of Mandamus declaring the action of the 3rd respondent in taking up construction of shops or allotment of empty space for construction of shops in between the J,K,L blocks of Lalitambika Shopping Complex in violation to the master

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plan of the temple as illegal and arbitrary and violative of Articles 14 & 21 of the Constitution of India and consequently direct the 3rd respondent not to allot the land for establishment of temporary or permanent shops and/or establish any shops in between the J,K,L blocks of Lalitambika Shopping Complex by directing the 3rd respondent to identify and other suitable place for construction of proposed shops by making it clear that the establishment of the proposed shops in between the J,K,L blocks of Lalitambika Shopping Complex will lead to congestion of the path thereby create havoc ... ..."

2. (a) Averments in the affidavit, in brief, are that, 3rd

respondent-Temple is a famous shrine dedicated to Lord

Shiva and Devi Bhramarambika. Due to over congestion of

streets because of shops existed around the temple, the

temple authorities had come up with a proposal to widen the

main street by removing the existing structures and shops.

The temple thus came up with the proposal to construct

Lalitambika Shopping Complex and allot shops to the

existing tenants. Accordingly, Lalitambika Shopping Complex

was constructed in the year 2018 consisting of 203 shops.

There was a proposal to construct additional 36 shops. At

the time of allocation of shops, the existing tenants filed

W.P.No.1727 of 2019 and other writ petitions challenging the

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irregularities in allotting the shops. The said writ petitions

were disposed of with certain conditions.

b) Out of 203 shops, 30 shops were allocated to local

tribes, 40 shops were allocated to writ petitioners in

W.P.No.1727 of 2019 and batch, 24 shops were allocated by

adopting the procedure of lucky dip and rest of 109 shops

were proposed to allocate by conducting public auction.

Some of the existing shop tenants approached this Court by

filing W.P.No.23993 of 2022 and batch and an interim order

was passed stipulating certain conditions for allotments of

shops by conducting lucky dip and to conduct auction among

the writ petitioners and also to conduct public auction

enabling the tenants to participate along with others.

Accordingly, lucky dip was conducted and 101 existing

shopkeepers participated and got their shops allotted.

c) About 29 people refused to participate in lucky dip

and filed W.P.No.40919 of 2022 challenging the action of

temple in trying to take possession of shops without following

the procedure and the Court passed interim order directing

them to approach the authorities seeking allotment of shops

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in suitable place. As the matter stood thus, in the name of

giving space to 29 persons, 3rd respondent initiated steps to

construct shops in Lalitambika Shopping Complex in

between Block J, K, L. The 3rd respondent started

construction new shops between the existing shops. The

proposal to construct shops is against the master plan. If

any changes are to be made, it has to be after the master

plan is modified as per rules. The construction of proposed

shops will cause great hurdle to the devotees and there shall

be at least 10 feet gap before the blocks. Due to proposed

construction, there will be huge congestion and no free way

for emergency vehicles. Petitioners submitted a

representation dated 11.02.2023 not to construct shops

between J, K, L blocks of Lalitambika Shopping Complex and

3rd respondent acknowledged the same. However, no steps

are initiated and hence, this writ petition is filed.

3. Initially, the prayer sought for in the writ petition is to

declare the action of the 3rd respondent in taking up

construction of shops. After counter affidavit was filed by the

2nd respondent, I.A.No.6 of 2023 is filed seeking amendment

of prayer by adding the words "or allotment of empty space

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for construction of shops" after the work 'taking up

construction of shops' and add the words "allot the land

for establishment of temporary or permanent shops and

/or" after the word 'consequently direct the 3rd respondent

not to'.

4. I.A.No.2 of 2023 was filed by the proposed respondents

4 to 27 seeking impleadment. The said petition was ordered

on 10.07.2023.

5. a) Counter affidavit was filed on behalf of 3rd

respondent. It was contended interalia that on 10.11.2022

this Court passed interim order basing on the proposal

submitted by the Executive Officer on allotment of shops to

the sitting tenants as rehabilitation. Devasthanam has

negotiated with the sitting tenants and conducted lucky dip

for all the tenants, in which about 101 sitting tenants

participated and got allotment of shops in lucky dip

conducted on 03.12.2022. About 39 tenants did not

participate in the lucky dip. On 19.12.2022 Devasthanam

took up demolition of the shops after proper and prior notice

to the all the concerned. Some of the shopkeepers, who did

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not participate in the lucky dip lost their right of

rehabilitation. However, they handed over the shops

voluntarily without any force.

b) W.P.No.40919 of 2022 was filed and this Court

directed the petitioners to approach the Devasthanam by way

of representation to allot suitable space for their livelihood.

Accordingly, petitioners therein gave representation and the

Devasthanam considered it appropriate to accommodate

them in Lalitambika Shopping Complex by allotting the

empty space at Q & R Blocks and issued allotment letter to

the said 24 sitting tenants who had not participated in any

options provided under order dated 10.11.2022. When the

allottees started securing open space, the shopkeepers in J, K

& L blocks of Lalitambika Shopping Complex, filed

W.P.Nos.3956 and 3976 of 2023. There is sufficient space

available in between shops of J, K & L blocks and there is no

impediment to the allotted neighbouring shopkeepers, if

newly allotted space is proposed to be occupied by 24 tenants

and thus, prayed to dismiss the writ petition.

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6. a) The 2nd respondent-Commissioner filed counter

affidavit. It was contended interalia that there is no master

plan to the subject temple on the date of proposal of

construction of shops in Lalitambika Shopping Complex,

Srisailam. The procedure for construction of any structure in

the Religious Institutions is that the Commissioner has to

approve administrative sanction, whereas the Chief Engineer

in the office of the Commissioner of Endowments Department

has to grant technical sanction. Thereafter the Executive

Authority of the instruction has to commence the execution

of work in the institution by calling tenders as per approved

estimates.

b) The administrative sanction for construction of J, K

& L blocks shops in Lalitambika Shopping Complex was

approved by the then Executive Officer of 3rd respondent vide

Rc.No.E1/3213/2017 dated 08.04.2017 since the

Government as per G.O.Rt.No.815, Revenue Endowments

Department, dated 01.08.2016 has delegated the powers of

the Commissioner to the Executive Officer of the subject

temple. The delegation of powers was in force from

01.08.2016 to 30.11.2017. During that period, the then

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Executive Officer of the temple approved the administrative

sanction on 08.04.2017.

c) To comply with the interim order in W.P.No.40919 of

2022, the 3rd respondent identified the place in between J, K

& L Blocks of Lalitambika Shopping Complex and

nomenclature as Q & R Blocks and allotted 24 plots to the

petitioners in W.P.Nos.40167 & 40919 of 2022 at

Rs.27,000/- per month. The allottees would put up

temporary shops for running their respective business. the

3rd respondent has not taken up construction of shop rooms

in Q & R blocks in between J,K & L Blocks in Lalitambika

Shopping Complex, Srisailam. The 3rd respondent allotted

vacant sites as plots in Q & R blocks pursuant to the orders

in W.P.Nos.40167 & 40919 of 2022. There is no plan either

for administrative sanction or for technical sanction in

respect of Q & R blocks before 2nd respondent. The master

plan to 3rd respondent is still in the proposed stage and the

3rd respondent is yet to submit the master plan of the

Devasthanam to 2nd respondent or consideration and

approval and eventually, prayed to dismiss the writ petition.

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7. The respondents 4 to 27 filed counter affidavit. The 5th

respondent deposed to the affidavit. It was contended

interalia that the writ petitioners who were allotted shops in

Lalitambika Shopping Complex in public auction, cannot

come in the way of vested right given in favour of these

respondents who are displaced persons and who shops were

demolished for beautification of Devasthanam and for

widening of roads. There is a direction in W.P.No.1727 of

2019 and batch that any person who bids in public auction

has to be allotted shop only after the allotment of shops to

the displaced persons. The space allotted is neither in any of

shops of the existing tenants nor length of the road will be

reduced and eventually prayed to dismiss the writ petition.

8. Heard Sri K.S.Murthy, learned senior counsel

representing Sri Ponnada Sree Vyas, learned counsel for

petitioners, learned Government Pleader for Endowments for

respondents 1 and 2, Sri V.S.K.Rama Rao, learned counsel

representing Smt.Kota Kalpana, learned counsel for 3rd

respondent and Sri P.Veera Reddy, learned senior counsel

representing Sri M.Vidyasagar, learned counsel for

respondents 4 to 27.

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9. Sri K.S.Murthy, learned senior counsel representing the

petitioners would submit that construction of shops in

between J, K & L blocks will cause congestion and it is

against the master plan. He would also submit that there

will be at least 10 feet gap between the blocks and allotment

of space to respondents 4 to 27 in between J, K & L blocks

will block free access to the shops of petitioners, as a result,

it will affect their business.

10. Learned Government Pleader for Endowments for

respondents 1 and 2 would submit that proposal for

construction should be accorded by the 2nd respondent-

Commissioner and as of now, no proposal was submitted to

the 2nd respondent. She would submit that allotment of

space for erection of temporary shops is pursuant to the

order in W.P.No.40919 of 2022 and thus, prayed to dismiss

the writ petition.

11. Learned standing counsel for 3rd respondent adopted

the arguments of learned Government Pleader.

12. Learned senior counsel for respondents 4 to 27 would

submit that since there is no proposal to construct shops in

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between J, K & L blocks, writ petition itself is not

maintainable. He would also submit that the amendment

sought for not to allow open space for temporary construction

at later point of time, would show that the petitioners

intended to dictate terms to the temple and the same is

impermissible.

13. Now, the points for consideration are:

1) Whether the petitioners can seek the relief against the respondents not to take up construction of shops in between J, K & L Block of Lalitambika Shopping Complex or allotment of empty space for construction of shops?

2) Whether the petitioners established infringement of legal or constitutional right to maintain the writ petition?

14. As seen from the pleadings, the petitioners, six in

number, approached the Court not to construct shops in

Lalitambika Shopping Complex between J, K & L Blocks.

Petitioners were allotted shops in public auction conducted

on 22.1.2022 and they have been carrying on their business.

Whether new construction has to be taken place or not is

subject to the approval of the Commissioner and based upon

the need. If the new shops are constructed, it will narrow

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down the existing area and no devotee will visit the shops is

only a mere apprehension of the petitioners. It is not the

case of the petitioners that the authorities at the time of

conducting of auction assured the petitioners that no

construction will be taken up in the space available. In the

affidavit, it was contended that there shall be at least 10 feet

gap before the blocks. However, as seen from the rough

sketch filed along with writ petition at Page No.61, there is 14

feet and 17 feet width in between J, K & L blocks to the

proposed construction. Apart from that the counter affidavit

filed by 2nd respondent makes the things clear that unless

and until, the 2nd respondent approved the plan, no

construction shall be taken place. Case at hand, no proposal

was received by the authority and the allotment made in

favour of respondents 4 to 27 is only to construct temporary

shops in the light of interim order in W.P.No.40919 of 2022.

The Executive Officer of 3rd respondent allotted shops to the

petitioners strictly in accordance with the order in

W.P.No.40919 of 2022.

15. Petitioners cannot claim any monopoly in the business.

as seen from the amendment sought for by the petitioners

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after filing of counter affidavit by the Commissioner, the

petitioners, in the opinion of this Court, are dictating terms to

the institution as to allotment of shops either on temporary

basis or on permanent basis. Such a course adopted by the

petitioners, in the opinion of this Court is impermissible. The

proposed allotment of shops in favour of respondents 4 to 27

may not affect the business of petitioners. Increase in

number of devotees visiting the temple needs to be considered

by the authorities. In the absence of any malice or malafides

on the part of authorities in intending to allot open space for

temporary erection of shops, this Court does not see any

reason to interdict such an attempt. As observed supra, the

right of petitioners to conduct business is not infringed by

allotting the open space for construction of shops.

16. For issuance of Writ of Mandamus, petitioner should

satisfy the Court qua the infringement of his legal right and

corresponding legal obligation on the part of the State or its

instrumentality.

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17. In State of U.P. and others Vs. Harish Chandra and

others1, the Hon'ble 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."

18. In Union of India Vs. S.B. Vohra2, the Hon'ble Apex

Court considered the similar 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.

19. In Oriental Bank of Commerce Vs. Sunder Lal Jain3,

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.:

(1996) 9 SCC 309

(2004) 2 SCC 150

(2008) 2 SCC 280

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"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 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."

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20. In Mani Subrat Jain Vs. State of Haryana4, while

considering scope of Article 226 of the Constitution, the

Hon'ble Apex Court observed as follows:

9"...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 Vs. Subash Chander, AIR 1973 SC 2216; Jasbhai Motibhai Desai Vs. Roshan, Kumar Haji Bashir Ahmed, AIR 1976 SC 578) and Ferris Extraordinary Legal Remedies paragraph 198."

21. A conspectus of the expressions of Hon'ble Apex Court

would discern that a writ of Mandamus can be issued if the

petitioners satisfy or establish existence of legal right in

themselves and a corresponding legal duty in the

respondents. In the case on hand, the petitioners failed to

establish that their right to conduct business is infringed due

to allotting of the open space for construction of shops.

AIR 1977 SC 276

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22. In view of the discussion made supra, this Court does

not find any merit in the writ petition. The Writ petition is

liable to be dismissed.