High Court · 2012

Order

In this Writ Petition, the petitioner seeks a direction to the respondents to consider her representations dated 01.02.2011 and

23.07.2012 to have the land, admeasuring Ac.7.26 guntas in Sy.Nos.33 and 35 situated at Bairamalguda Village, Saroornagar Mandal, Ranga Reddy District, surveyed. The A.P. Survey and Boundaries Act, 1923, and the A.P. Record of Rights in Land and Pattadar Pass Books Act, 1971, provide for an official survey/measurement of lands in certain circumstances. The law relating to survey of lands and settlement of boundary disputes has been consolidated under the Andhra Pradesh Survey and Boundaries Act, 1923 (Act 8 of 1923). Section 3(ii) thereof defines ‘Government Land’ to mean any land not forming an estate, or any portion thereof. It is evident from Section 3(ii) that lands, other than those forming part of an estate or a part thereof, are “government lands” including private lands belonging to persons other than the Government. Chapter II relates to the survey of government lands. Under Section 5 the State Government or, subject to the control of the State Government, any officer, or authority to whom the power is delegated, may by notification order a survey of any government land, or of any boundary of such land, or of the boundary forming the common limit of government land, and the land that is not government land. Under Section 6(1), where any survey is ordered under Section 5, the survey officer shall publish a notification in the prescribed manner inviting all persons having any interest in the land, or in the boundaries of which the survey has been ordered, to attend either in person or by an agent at a specified place and time, and from time to time thereafter, when called upon for the purpose of pointing out boundaries and supplying information in connection therewith. Section 7 relates to the survey to be carried out by the survey officer. It is evident from Section 5 that it is only on a notification being issued, either by the State Government, or by an officer authorised by the State Government, can lands, which fall within the ambit of ‘Government land’ under Section 3(ii), be surveyed. No such notification has been placed before this Court by the petitioner herein. The A.P. Record of Rights in Land & Pattadar Pass Books Act (hereinafter called the “Act”) and the Rules made there- under, also provide for inspection/measurement/survey of lands. The said “Act” is an Act to consolidate and amend the Law relating to the Rights in Land and Pattadar Books in the State of Andhra Pradesh. In exercise of the powers, conferred under Section 11 of the Act, the Government made the A.P. Rights in Land and Pattadar Pass Books Rules, 1989 (hereinafter called the “Rules”) which was

notified in G.O.Ms. No.570 dated 08.06.1989. Rule 3 requires a record of rights to be prepared and maintained in Form-I for every separate revenue village. The note to Rule 3 stipulates that a pahani/Adangal does not constitute the record of rights for the village; and it reflects the ground position including (i) the name of the cultivator who actually cultivates the land; and (ii) whether the person in occupation of the land has violated any law and, if so, details of the same. Rule 4 prescribes the procedure for preparation of the Record of Rights and updating of the Record of Rights. Power is conferred on the recording authority/Mandal Revenue Officer (M.R.O), under Rules 8(c), 11(2) and 17(1)(c) of the Rules, to enter, inspect and measure or cause to be measured land. The power conferred under Rules 8(c) and 11(2) can only be exercised if the recording authority considers it expedient, during the course of an enquiry under Rules 6 or 11(1), to do so. Rule 6 requires an enquiry to be caused for preparation of the record of rights in any area soon after the commencement of the Act, and when such a record is to be brought upto date from time to time. The enquiry to be made under Rule 11(1) is after the recording authority receives a statement submitted in respect of any claim of rectification or error or omission in the draft record of rights, or approved record of rights made upto date, and after arranging for immediate sub- division work, wherever he feels it necessary. It is only thereafter is the recording authority required to proceed to the village, on the dates specified in the notice, and hold an enquiry into all the claims received in respect of all the matters referred to in Rule 11(1). The power conferred on the M.R.O. under Rule 17(1), to inspect, measure or cause to be measured any land, is to be exercised only during the course of an enquiry under Section 3(3) of the Act read with Rule 16(1) of the Rules. Section 3(3) enables any person, affected by an entry in the record of rights, within one year from the date of the notification referred to in Section 3(2), to apply for rectification of the entry to the officer prescribed who may, after such enquiry, give his decision on such application and direct rectification in the record of rights in accordance with such decision. The power conferred on the M.R.O. under Rule 17(1) is to be exercised during the course of an enquiry under Rule 16(1) whereunder an enquiry is to be caused on an application made, for rectification of any entry in the record of rights, under Section 3(3) of the Act read with Rule 15(1) of the Rules, within one year from the date of the notification of the record of rights prepared for the first time or the record of rights made upto date in the village. Under Section 3(2) where, in respect of any village, preparation of the record of rights, referred to in Section 3(1), is completed, the fact of such completion is required to be notified in the A.P. Gazette or the District Gazette and in such other manner as may be prescribed. It is in the course of an enquiry to be caused, while initially preparing the record of rights or while bringing it upto date from time to time, is the authority holding the enquiry empowered to inspect and measure or cause to be measured any land. The power under Rules 8(c) and 11(2) to inspect, measure or cause to be measured any land in the area, is only if the recording authority considers it expedient to do so. Rule 14(4) stipulates that the new sub-divisions, as shown in the confirmed record of rights, shall be measured and mapped in the concerned records as per the procedure laid down, and the fee is recoverable from the concerned ryots as arrears of land revenue; and the extent noted in respect of each part of the survey number, of each sub-division on the record of rights, shall be subject to correction, wherever necessary, after the completion of measurement of the new sub-division. This exercise of measuring and mapping the new sub-divisions is to be undertaken after confirmation of the record of rights prepared for the first time, or the record of rights are made upto date. The M.R.O is also empowered under Rule 20(1), if he considers it necessary to do so, to enter upon, inspect and measure or cause to be measured land during the enquiry under Section 5(3) of the Act. The enquiry to be caused under Section 5(3) of the Act is before carrying out any amendment in the record of rights under Section 5(1) or 5(2) of the Act. Under Section 5(1), on receipt of intimation of the fact of acquisition of any right referred to in Section 4, the M.R.O. is required to determine whether, and if so in what manner, the record of rights may be amended in consequence therefore, and to carry out amendment in the record of rights in accordance with such determination. Under Section 5(2) where the M.R.O has reason to believe that acquisition of any right, of a description to which Section 4 applies, has taken place, and of which an intimation has not been made to him under that Section, and where he considers that an amendment has to be effected in the record of rights, he shall carry out the said amendment in the record of rights. The rights specified in Section 4(1) are the rights acquired by any person by succession, survivorship, inheritance, partition, government patta, decree of a Court or otherwise, and the right as an owner, pattedar, mortgagee, occupant or tenant of a land, and acquisition of any right, as an occupant of land, by any other method. Section 4 requires such acquisition of rights to be intimated, by the person who acquires the right, in writing to the M.R.O. within 90 days from the date of such acquisition. None of the aforesaid statutory provisions confer any right on any person to claim that the recording authority/M.R.O should, merely on an application being made to him, measure or cause to be measured any land. No one can seek 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 he is denied a legal right by someone who has a legal duty to do something or to abstain from doing something. (Halsbury's Laws o f England, 4th Edn., Vol. I, para 122; State of Haryana v. Subash Chander Marwah [1] ; Jasbhai Motibhai Desai v. Roshan Kumar Haji Bashir Ahmed [2] ; Fer r is: Extraordinary Legal Remedies, para 198; and Mani Subrat Jain v. State of [3] Haryana ). In order that mandamus may issue to compel an authority to do something, it must be shown that the statute imposes a legal duty on that authority, and the aggrieved party has a legal right under the statute to enforce its performance. (Subash Chander Marwaha16; Dr Rai Shivendra Bahadur v. Governing Body of the Nalanda College [4] ). A writ of mandamus can be granted only in a case where there is a statutory duty imposed upon the officer concerned, and there is a failure on the part of that officer to discharge the statutory obligation. The chief function of such a writ is to compel performance of the public duties prescribed by a statute and to keep subordinate tribunals and officers exercising public functions within the limits of their jurisdiction. It follows, therefore, that in order that mandamus may issue to compel the authorities to do something, it must be shown that there is a statute which imposes a legal duty and the aggrieved party has a legal right under the statute to enforce its performance. (Lekhraj Satramdas Lalvani v. Deputy Custodian-cum-Managing Officer [5] ; Rai Shivendra Bahadur19 and Umakant Saran Dr v. State of Bihar [6] ; Bihar Eastern Gangetic Fishermen Coop. Society Ltd. v. Sipahi [7] Singh ). If there is no statutory basis for the claim, and there is no provision in the statute imposing an obligation, it would not furnish a ground for issuance of a writ of mandamus. (Union of India v. E. Merck (India) [8] ). In the absence of any statutory obligation cast on the respondents to conduct a survey, the petitioner cannot claim, as of right, that a mandamus should be issued to them to survey the subject lands. Proceedings under the “Act” are summary in nature. Section 8(2) of the “Act” provides that, if any person is aggrieved as to any rights of which he is in possession by an entry made in any record of rights, he may institute a suit against any person denying or interested to deny his title to such right for declaration of his right under Chapter VI of the Specific Relief Act, 1963, and the entry in the record of rights shall be amended in accordance with any such declaration. Chapter VI of the Specific Relief Act, 1963 relates to declaratory decrees. Under Section 34 thereof, any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the court may in its discretion make therein a declaration that he is so entitled. Under Section 35, a declaration made under Chapter VI is binding only on the parties to the suit, and persons claiming through them respectively. Suffice it to hold that the remedy of an individual seeking survey of lands, except in the limited circumstances aforementioned, is to invoke the jurisdiction of the competent Civil Court and seek declaration of title and, in case there is any dispute regarding boundaries, to file an application seeking to have the subject lands surveyed and demarcated. As the petitioner has no statutory right to claim the relief sought for, the Writ Petition fails and is, accordingly, dismissed. However, in the circumstances, without costs. Date: 26 .12.2012 RAMESH RANGANATHAN,J MRKR [1] (1974) 3 SCC 220 [2] (1976)1 SCC 671 [3] (1977) 1 SCC 486 [4] AIR 1962 SC 1210 [5] AIR 1966 SC 334 [6] AIR 1973 SC 964 [7] (1977) 4 SCC 145 [8] (1998) 9 SCC 412