Dismissed

Vangala Seetharami Reddy v. The State of Andhra Pradesh

Andhra Pradesh HC9 Aug 2021WP/6313/2020

Case brief

AI extract

What is this about?

Court dismissed a writ petition under Article 226 challenging inaction regarding illegal government land encroachment. Held that mandamus requires the applicant to prove an existing legally enforceable right and its infringement. Since the petitioner admitted the land belonged to the Government, no such right existed, rendering the writ unentitled.

What did the court decide?

Writ petition dismissed at the stage of admission; petitioner advised to file an appropriate application before the competent authority.

Vangala Seetharami Reddy Vs The… — Constitutional and Fundamental Rights | Andhra Pradesh HC (2021)

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THE HON’BLE SRI JUSTICE M.SATYANARAYANA MURTHY

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WRIT PETITION NO.6313 OF 2020

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ORDER :

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This writ petition is filed under Article 226 of the Constitution of India seeking the following relief:

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“ to issue a Writ or order or direction more particularly one in the nature of Writ of Mandamus, declaring the inaction of the respondents 1 to 4 in considering the petitioner’s representation dated 25.11.2019, to initiate the action against the 5^th respondent for encroachment of the Government land illegally to an extent of Ac.02.82 cents in Sy.No.312-1, situated at Kalvabugga Village, Orvakal Mandal, Kurnool District as illegal, arbitrary, contrary to law and violation of principles of natural justice and consequently direct the respondents 1 to 4 to initiate the action against the 5^th respondent for encroachment of the Government land illegally and to pass such other order or orders.”

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The case of the petitioner in nutshell is that the petitioner is the native of Talamudipi Village, Midthur Mandal, Kurnool District. He own properties in the village and eking out his livelihood by agriculture. The land to an extent of Ac.02.82 cents in Sy.No.312-1 situated at Kalvabugga Village, Orvakal Mandal belongs to the Government, now is in the illegal occupation of the 5^th respondent. The brother-in-law of the 5^th respondent by name K.Srinivasulu worked as Tahsildar. While he was working as Tahsildar in the Pagidyala Mandal, misused his official position by mutating the name of the 5^th respondent in the ROR, Adangal and obtained e- pass book for the Government land to an extent of Ac.02.82 cents in Sy.No.312-1, situated at Kalvabugga Village, Orvakal Mandal, Kurnool District.

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The petitioner approached the 3^rd respondent and brought to the notice about the illegal occupation of the 5^th respondent and obtains ROR, Adangal and e-pass book in her name for the land to

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an extent of Ac.02.82 cents in Sy.No.312-1, situated at Kalvabugga Village, Orvakal Mandal, Kurnool District. But, the 3^rd respondent did not take any action on the illegal occupation of the Government property by the 5^th respondent. On coming to know about the same, petitioner submitted a representation dated 25.11.2019 to the 2^nd respondent in Spandana Programme with all relevant material, so far, the official respondents did not take any action till date and requested to issue a direction as claimed.

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During hearing, learned counsel for the petitioner has drawn the attention of this Court to the representation dated 25.11.2019 and requested to direct the 2^nd respondent to take appropriate action on the representation, as the 5^th respondent is illegally occupied the land belonging to the Government and he has also drawn the attention of this Court to Adangal for Fasli 1429 in support of his contention and requested to issue a direction as prayed for.

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Whereas, the learned Assistant Government Pleader for Revenue submitted that the petitioner has no right in view of the admission that the land belongs to the Government and therefore the petitioner is not entitled to claim writ of mandamus as the petitioner did not possess any existing legally enforceable right and its infringement or invasion, to claim writ of mandamus.

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Admittedly, the land in an extent of Ac.02.82 cents in Sy.No.312-1, Kalvabugga Village, Orvakal Mandal, Kurnool District belongs to the Government which is by the side of highway. But, the 5^th respondent allegedly occupied the land illegally and created entries in the revenue records and obtained e-pattadar pass books for the said Government land and running school in the name and style of Kakatiya school and its name is changed now as Parameswara Educational Society and got registered vide

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registration No.84 of 1991. Sri K.Srinivas introduced himself as Assistant Secretary and his brother Mr.K.V.Ramana as the correspondence of the school, the occupation is illegal and arbitrary and requested to take appropriate action on the respondents.

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The petitioner claimed writ of mandamus and to claim writ of mandamus the petitioner must prove the subsisting legal right either under the statute or the constitution, its infraction. In the absence of proof of existing legal right either under the statute or the constitution, its infringement or invasion, the petitioner is not entitled to claim writ of mandamus in “ State of Kerala v. A.Lakshmi Kutty¹ ”, 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.

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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

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1 1986 (4) SCC 632

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2 1995 All.L.J. 534

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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 ”

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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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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

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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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3 (1996) 9 SCC 309

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4 (2004) 2 SCC 150

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5 (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.

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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 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

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case a discretion dependent upon all the surrounding facts and circumstances.”

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The Hon’ble Apex Court held that unless the petitioner has

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existing legal right and its infringement or invasion, the Court cannot issue writ of mandamus, while exercising jurisdiction under Article 226 of the Constitution of India.

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Here petitioner admitted that the land belongs to the Government and the respondent No.5 occupied the land illegally and created entries in the revenue records and obtained Pattadar Passbooks due to misuse of official position by brother-in-law of the petitioner i.e., Mandal Revenue Officer, Pagidyal Mandal, Kurnool District. But that is not sufficient to establish his existing legally enforceable right under statute or constitution and thereby the question of infringement or invasion of right of the petitioner doesn’t arise. Therefore, the petitioner is not entitled to claim of mandamus in the present facts of the case. However, the petitioner may approach appropriate firm by filing appropriate application.

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Consequently, the writ petition is liable to be dismissed at the stage of admission, while granting the petitioner to redress his grievance by filing appropriate application or by approaching the Competent Authority. No costs.

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As a sequel, Interlocutory Applications pending, if any, shall stand closed.

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__________________________________________ JUSTICE M. SATYANARAYANA MURTHY

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Date: 09-08-2021 VSL

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THE HON’BLE SRI JUSTICE M. SATYANARAYANA MURTHY

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WRIT PETITION NO.6313 OF 2020

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