Dismissed

Rudra Venkata Ramachandra Rao v. the State of Andhra Pradesh

Andhra Pradesh HC19 Aug 2021WP/13322/2021

Case brief

AI extract

What is this about?

In this writ petition, the petitioner, being an agreement holder of land, sought a Writ of Mandamus against the State to restrain payment of acquisition compensation to the seller. The court held that an agreement of sale under Section 54 of the Transfer of Property Act does not create any title or enforceable right. Consequently, the petitioner lacks standing to claim a Writ of Mandamus and the p

What did the court decide?

Writ of Mandamus dismissed at the stage of admission as the petitioner failed to establish a legal enforceable right.

Rudra Venkata Ramachandra Rao Vs the State of Andhra… — Land Acquisition | Andhra Pradesh HC (2021)

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THE HON’BLE SRI JUSTICE M.SATYANARAYANA MURTHY

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WRIT PETITION NO.13322 OF 2021

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ORDER :

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This petition is filed under Article 226 of the Constitution of

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India seeking the following relief:-

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“……to issue a writ of Mandamus, declaring the action of respondents in taking further steps for paying party respondents for acquisition of Ac.135.83 cents in Nemam Village, Kakinada Mandal, East Godavari District, which is inclusive of petitioner’s land in an extent of Ac.9.93 cents in Sy.No.38/1, Sy.No.38/2, Sy.No.38/3, Sy.No.38/4, Sy.No.39/2 and Sy.No.40 in Nemam Village, Kakinada Mandal, East Godavari District, vide Sale Agreement, dated 22.12.2018, which are already set aside by orders dated 13.05.2020 in W.P.No.8390 of 2020 and despite pendency of W.P.No.20061 of 2020 is concerned, as arbitrary, illegal, discriminatory, violative of Articles 14, 19(1)(g) and 21 of the Constitution of India and to issue consequential direction directing the respondents not to release any amount to the party respondents so far as it relates to Ac.135.83 cents situated in Nemam Village, Kakinada Mandal, East Godavari District taking into account interim direction issued by this Court in WP No 8390 of 2020, dated 13.05.2020 and till disposal of the same including W.P.No.20061 of 2020.”

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It is the case of petitioner in brief is that he purchased the land admeasuring Ac.9.93 cents in Sy.No.38/1 for Ac.2.50 cents; Sy.No.38/2 for Ac.2.17 cents; Sy.No.38/3 for Ac.0.29 cents; Sy.No.38/4 for Ac.1.73 cents; Sy.No.39/2 for Ac.0.81 cents and Sy.No.40 for Ac.2.54 cents situated in Nemam Village, Kakinada Rural Mandal, East Godavari District through Sale Agreement from the party respondents for valid consideration of Rs.50,00,000/-. While so, respondents 2 and 3 issued a notification on 03.03.2020 for acquisition of land in total extent of Ac.135.83 cents in Sy.Nos.34/1, 47/1, 51 and 61/1 etc., of Nemam Village, Kakinada Rural Mandal, East Godavari District. 3^rd respondent passed an Award on 22.04.2020 proposing to acquire the land, which is in

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possession of party respondent in said survey numbers, without issuing any notice and opportunity to the land owners including the petitioner. Suppressing said fact, party respondents executed a sale agreement on 22.12.2018 for the land in an extent of Ac.9.93 cents in Sy.No.38/1; Sy.No.38/2; Sy.No.38/3; Sy.No.38/4; Sy.No.39/2 and Sy.No.40 of Nemam Village, Kakinada Rural Mandal, East Godavari District. One Smt.B.Jagan Mohini and Smt.B.Surekha filed W.P.No.8390 of 2020 challenging the Notification, dated 03.03.2020 issued by the 2^nd respondent, wherein an interim direction was issued to the respondents not to dispossess the petitioners therein from the subject land contrary to the provisions of Act 30 of 2013, which includes petitioner’s land herein. Surprisingly, one smt.Amaram Mydam @ Shashikala, who is the sister of party respondents filed W.P.No.20061 of 2020 challenging the Notification G4/497/2020 issued by the 2^nd respondent, in which this Court issued notice before admission. It is contended that the Government acquired Ac.135.83 cents of land, determined compensation at the rate of Rs.49,00,000/- per acre and respondents 3 and 4 have deposited an amount of Rs.40,06,03,500/- with M/s City Union Bank on 11.05.2020 and Rs.21,25,53,000 on 19.12.2020 at M/s Federal Bank, Secunderabad Brach respectively. The petitioner got issued a legal notice to the respondents including City Union Bank authorities not to release award amount to party respondents. But, so far no action has been taken by the respondent authorities. Hence, the petitioner requested to issue a direction as claimed supra. 3. At the stage of admission, this Court raised a query about existence of legal right enforceable under law when the petitioner approached this Court seeking relief of Writ of Mandamus, which is discretionary in nature with reference to 54 of the Transfer of

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Property Act, 1882. Sri Smt.S.V.Indira, learned counsel for the petitioner vehemently contended that the petitioner being agreement holder is entitled to claim the relief of Writ of Mandamus as the agreement created interest in the immovable property and that the un-official respondents with whom the sale agreement was entered are trying to knock away the amount payable to the petitioner for an extent of Ac.9.93 cents.

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Chapter III of the Transfer of Property Act deals with sale of immovable property. Section 54 of the Act defined the sale. “Sale” is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised. Thus, the transaction covered by the agreement of sale under Section 52 of the Act. According to Para 2 of Section 54 of the Act the agreement of sale will not create any right or confer any title to immovable property. Therefore, the petitioner will not get any right or title to the property being an agreement holder under agreement of sale, dated 22.12.2018 for Rs.50,00,000/obtained from Mydam Venkata Rao and Mydam Rajasekhar, who agreed to execute registered sale deed at the expenses of the petitioner and received entire sale consideration under the agreement of sale while agreeing to register the sale deed whenever the petitioner is ready to obtain registered document for the property.

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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

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1 1986 (4) SCC 632

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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.

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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 to claim 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.

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Writ of mandamus cannot be issued merely because, a person is praying for. One must establish the right first and then he must seek for the prayer to enforce the said right. If there is failure of duty by the authorities or inaction, one can approach the Court for a mandamus. The said position is well settled in a series of decisions.

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In “ State of U.P. and Ors. v. Harish Chandra and Ors .³ ” the Supreme Court held as follows:

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“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.”

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(Emphasis supplied)

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3 (1996) 9 SCC 309

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2 1995 All.L.J. 534

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In “ Union of India v. S.B. Vohra⁴ ” the Supreme Court considered the similar issue, 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.

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In “ Oriental Bank of Commerce v. Sunder Lal Jain⁵ ” 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.:

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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.

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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.

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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

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4 (2004) 2 SCC 150

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5 (2008) 2 SCC 280

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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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(Emphasis supplied)

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Similarly, in Corpus Juris Secundum, summarized the pre-requisites for grant of writ of mandamus and the same is extracted hereunder:

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“Mandamus may issue to compel the person or official in whom a discretionary duty is lodged to proceed to exercise such discretion, but unless there is peremptory statutory direction that the duty shall be performed mandamus will not lie to control or review the exercise of the discretion of any board, tribunal or officer, when the act complained of is either judicial or quasi-judicial unless it clearly appears that there has been an abuse of discretion on the part of such Court, board, tribunal or officer, and in accordance with this rule mandamus may not be invoked to compel the matter of discretion to be exercised in any particular way. This principle applies with full force and effect, however, clearly it may be made to appear what the decision ought to be, or even though its conclusion be disputable or, however, erroneous the conclusion reached may be, and although there may be no other method of review or correction provided by law. The discretion must be exercised according to the established rule where the action complained has been arbitrary or capricious, or based on personal, selfish or fraudulent motives, or on false information, or on total lack of authority to act, or where it amounts to an evasion of positive duty, or there has been a refusal to consider pertinent evidence, hear the parties where so required, or to entertain any proper question concerning the exercise of the discretion, or where the exercise of the discretion is in a manner entirely futile and known by the officer to be so and there are other methods which it adopted, would be effective."

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(emphasis supplied)

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In “ Comptroller and Auditor-general of India, Gian

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Prakash, New Delhi v. K.S. Jagannathan⁶ ” the Apex Court quoted

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Halsbury’s Laws of England, Fourth Edition,

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6 AIR 1987 SC 537

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Volume I, Paragraph 89, where it is stated that the purpose of an order of mandamus "is to remedy defects of justice; and accordingly it will issue, to the end that justice may be done, in all cases where there is a specific legal right and no specific legal remedy for enforcing that right; and it may issue in cases where, although there is an alternative legal remedy, yet that mode of redress is less convenient, beneficial and effectual."

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The Division Bench of the Allahabad High Court in Ajit Singh v. Union of India⁷ while dealing with locus standi of a person who filed petition under Article 226 of the Constitution of India, referred the judgments of the Supreme Court to hold that existence of legal right and its infraction must necessarily be pleaded and proved to issue Writ of Mandamus.

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In “ State of Orissa v. Madan Gopal⁸ ” Hon’ble Apex Court has ruled that the existence of the right is the foundation of the exercise of jurisdiction of the Court under Article 226 of the Constitution. In “ Charanjit Lal Chowdhuri v. Union of India⁹ ” , it has been held by Hon’ble Apex Court that the legal right that can be enforced under Article 32 must ordinarily be the right of the petitioner himself who complains of infraction of such right and approaches the Court for relief. The Court did not find any reason why a different principle should apply in the case of a petitioner under Article 226 of the Constitution. The right that can be enforced under Article 226 also shall ordinarily be the personal or individual right of the petitioner himself though in the case of some of the writs like habeas corpus or quo warranto this rule may have to be relaxed

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7 2017 (9) ADJ 251

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8 AIR 1952 SC 12

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9 AIR 1951 SC 41

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or modified. Thus, Article 226 confers very wide power on the High Court to issue directions and writs of the nature mentioned therein for the enforcement of any of the rights conferred by Part III or for any other purpose. It is, therefore, clear that persons other than those claiming fundamental rights can also approach the Court seeking a relief thereunder. The Article in terms does not describe the classes of persons entitled to apply thereunder; but it is implicit in the exercise of the extraordinary jurisdiction that the relief asked for must be one to enforce a legal right.

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Similarly, in “ Mani Subrat Jain v. State of Haryana¹⁰ ” while considering Article 226 of the Constitution, the Hon’ble Supreme Court in paragraph 9, observed thus:

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"...It is elementary though it is to be restated that no one can ask for a mandamus without a legal right There must be a judicially enforceable right as well as a legally protected right before one suffering a legal grievance can ask for a mandamus. A person can be said to be aggrieved only when a person is denied a legal right by someone who has a legal duty to do something or to abstain from doing something. (See Halsbury's Laws of England 4th Ed. Vol I, paragraph 122); State of Haryana v. Subash Chander, (1974) 1 SCR 165 : (AIR 1973 SC 2216); Jasbhai Motibhai Desai v. Roshan Kumar Haji Bashir Ahmed, (1976) 3 SCR 58 : (AIR 1976 SC 578) and Ferris Extraordinary Legal Remedies paragraph 198."

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(emphasis supplied)

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It is well-settled that existence of a legal right of a petitioner which is alleged to have been violated is the foundation for invoking the jurisdiction of the High Court under Article 226 of the Constitution. While reiterating this legal proposition, the Supreme Court in paragraph 38 of its judgment in “ Ghulam Qadir v. Special Tribunal¹¹ ”, held thus:

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10 AIR 1977 SC 276

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11 (2002) 1 SCC 33

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

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(emphasis supplied)

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In view of catena of perspective pronouncements, the petitioner must plead and prove that legal right existed either statutory or constitutional right and it is infringed or invaded or threatened to infringe or invade by the respondents. But, the bald allegations made in the affidavit without demonstrating the existence of any right and its infringement or its invasion or threatened infringement or invasion by the respondents are not sufficient. In the absence of establishing the existence of right, its infringement or invasion or threatened infringement or invasion, the petitioner is not entitled to claim writ of mandamus. In view of the law declared by the Supreme Court and reiterated by the Division Bench of the

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Allahabad High Court in the judgment referred supra, the petitioner must plead and prove that a legal right possessed by him is violated or infringed or threatened to be infringed to obtain a relief of writ of mandamus.

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Writ of Mandamus can be granted 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.

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For the 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 India¹² ”, the Supreme

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Court has adopted the following statement of law in this regard. :

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"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."

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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.

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Collector, C.E.C., Revenue¹³ ”.

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12 AIR 1975 SC 460

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13 AIR 1975 SC 538

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In “ the Statesman v. Fact Finding Committee¹⁴ ” 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.

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In view of the law declared by the Supreme Court in various judgments to issue Writ of Mandamus, the petitioner cannot show that existing and legal enforceable right against the officialrespondents, and it is an infringement or invasion or probe infringing enforceable legal right of the petitioner. As discussed above, the agreement of sale will not create any right or confer any title enforceable right in immovable property. Therefore, the petitioner did not possess any legal enforceable right as on date being agreement holder to purchase Ac.9.93 cents of land. Therefore, the petitioner is not entitled to claim Writ of Mandamus, as the petitioner failed to establish that he is having existing legal enforceable right in or it is an infringement or invasion by the respondents. On this ground also, Writ of Mandamus cannot be granted. Hence, the writ petition is liable to be dismissed, at the stage of admission itself. However, it is left open to the petitioner to redress his remedy before appropriate forum. Execution of agreement of sale in favour of private party as the petitioner being agreement holder makes no difference regarding right or title of the petitioner to the property in dispute and at best she may enforce the terms of agreement against his vendors Mydam

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14 AIR 1975 Cal. 14

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Venkata Rao and Mydam Rajasekhar and that is not sufficient to grant relief of Writ of Mandamus in the present writ petition and it is left open to the petitioner to obtain appropriate order in the suit allegedly filed by him in O.S.No.33 of 2020 on the file of VI Additional District Judge, Kakinada, East Godavari District, if advised. There shall be no order as to costs.

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As a sequel miscellaneous application, pending, if any, shall

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also stand closed.

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_________________________________________ JUSTICE M. SATYANARAYANA MURTHY

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Date: 19.08.2021 IS

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THE HON’BLE SRI JUSTICE M.SATYANARAYANA MURTHY

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