Judgment:
THE HON'BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION No.38104 o”
26. 12.2012 Rachakonda Nagaiah The Govt.
of A.P.
rep., by the District Collector, Nalgonda, Nalgonda District and three others.
Counsel for the petitioners: Sri Palivela Satyarajababu Counsel for respondents: G.P.
for Revenue HEAD NOTE: ?Citations:
1. Judgment in W.P.
No.13350 of 2005 dated 10.03.2006 2) 2009(1) ALD (NOC”
3. (1996) 6 SCC 4.4) (2006) 1 SCC 27.5) (2005) 6 SCC 40.6) AIR 196.SC 64.7) (1901) AC 49.8) (2002) 4 SCC 63.9) (1941) 2 All ER 1.10) AIR 196.SC 8.11) (1989)1 SCC 10.12) AIR 196.SC 148.13) (1991) 4 SCC 13.14) (2009) 6 SCC 37.15) (2004) 13 SCC 21.16) (1974) 3 SCC 22.17) (1976)1 SCC 67.18) (1977) 1 SCC 48.19) AIR 196.SC 121.20) AIR 196.SC 33.21) AIR 197.SC 96.22) (1977) 4 SCC 14.23 (1998) 9 SCC 41.ORDER: The petitioner seeks a writ of mandamus to declare the action of the respondents, in not conducting a survey of his land admeasuring Ac.0.20 guntas in Sy.No.179 of Gudivada Village, Kethepally Mandal, Nalgonda District, and in not fixing boundary stones thereat, as illegal, arbitrary and in violation of principles of natural justice.
He seeks a consequential direction to the respondents to conduct a survey of the subject land, and fix boundary stones thereat.
The petitioner claims to be the owner, and to be in possession, of the subject land having purchased it under registered sale deed dated 28.12.2005.
It is his case that pattadar pass books and title deeds were issued to him, and his name was mutated in the revenue records; as on date he is in possession and enjoyment of the subject land, and has been raising paddy crops; subsequent to purchase of the subject land, he dug a bore-well thereat; the subject lands, and the lands adjacent thereto, are private patta lands; he filed O.S.
No.103 of 2008 before the Junior Civil Judge, Nakrekal, Nalgonda District seeking perpetual injunction to restrain Sri Podicheti Lingaiah, (who the petitioner claims was interfering with his possession over the subject lands), and his men; the Learned Junior Civil Judge, in his judgment dated 05.10.2012, held that the petitioner had proved his exclusive possession and enjoyment over the suit schedule property (Ac.0.20 guntas of land in Sy.
No.179), and it should be protected from the unnecessary interference of Sri Podicheti Lingaiah and his men who had no right to interfere with the subject land; with a view to resolve the disputes with the adjacent land owners, he had submitted an application on 17.10.2012 to the Tahsildar, Kethepally Mandal, Nalgonda District (third respondent) remitting the required fees for conducting a survey of the subject land; the third respondent, by letter dated 07.10.2012, had sent a letter to the second respondent directing him to conduct a survey and fix boundary stones; and, while a notice dated 31.10.2012 was issued by the Deputy Inspector of Survey, Nalgonda District (fourth respondent) fixing the date of survey as 08.11.2012, no survey was conducted.
Sri Palivela Satyarajababu, Learned Counsel for the petitioner, would submit that a duty/obligation is cast on the respondents to conduct a survey, and fix boundary stones on the subject lands, in accordance with law; respondent Nos.2 to 4 had failed to comply with their obligatoins of conducting the survey; since the petitioner had submitted an application, paying the requisite fees, respondent Nos.3 and 4 ought to have surveyed the subject lands; their failure to do so was arbitrary and illegal; the petitioner was entitled to question their failure, to survey the subject lands, in writ proceedings under Article 226 of the Constitution of India; and it is unnecessary for him to approach the competent Civil Court for the relief sought for herein.
Learned Counsel would place reliance on the circular, issued by the Commissioner of Survey, Settlements and Land Records, Hyderabad dated 10.6.1989; and the Judgments of this Court in B.
Ram Das v.
The Assistant Director, Survey & Land Records, Ranga Reddy District1 and A.
Krishna Reddy V.
Tahsildar, Shamshabad Mandal R.R.
District2.
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.
In B.
Ram Das1, the challenge was to the memo issued by the respondent rejecting the petitioner's request for demarcation on the ground that the property, which was sought to be demarcated, was not surveyed separately in the survey records.
This Court referred to the Circular dated 1.6.1989 which showed that, even where the land was not initially surveyed, if it was found to be in the possession of a number of persons, and their possession was entered in the record of rights, a survey could be taken up by allotting sub-division numbers.
This Court remanded the matter back to the respondent to act in accordance with the Circular dated 1.6.1989.
In A.
Krishna Reddy2 this Court, after referring to the very same circular dated 1.6.1989, held that the authorities were bound to consider the request of persons, who were in possession and enjoyment of the land and their names were entered in the Record of Rights, for survey and sub-division of the land; the impugned order, refusing to conduct survey on the ground that a survey was requested for a part of the total survey number, and the field measurements were not available, could not be accepted; and the impugned proceedings was liable to be set aside.
The matter was remanded to the Tahsildar directing him to conduct the survey, and complete the demarcation and sub-division of the subject lands, in accordance with law.
The circular dated 01.06.1989, referred to in the aforesaid judgments, was issued by the Commissioner of Survey Settlements & Land Records as certain clarifications were sought for by the Collector.
The said circular was issued by the Commissioner in the exercise of his powers under Rule 33 of the A.P.
Record of Rights in Land & Pattadar Pass Books Rules, 1989.
Rule 33 empowers the Commissioner, Survey Settlements and Land Records, from time to time, to issue such orders and instructions as may be necessary for the purpose of explaining these rules, and to implement the provisions of the Act and the Rules made thereunder properly.
As the power of the Commissioner to issue orders and instructions is only to explain the rules, and to properly impement the provisons of the Act and the Rules, such a power cannot travel beyond what the Act and the Rules stipulate for survey of lands.
It is therefore necessary to refer to the provisions of the A.P.
Record of Rights in Land & Pattadar Pass Books Act (hereinafter called the "Act") and the Rules made thereunder, which 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 cultivate 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, the 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 the 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.
The petitioner's case is that he purchased the subject lands by registered sale deed dated 28.12.2005, and has been in possession ever since.
The suit filed by him, in O.S.No.103 of 2008, was for perpetual injunction, and not declaration of title.
The decree of the Civil Court, granting perpetual injunction, presupposes the petitioner being in possession of the subject land, and cannot be construed as acquisition of any right by him, including as an occupant of the land, under Section 4 of the Act.
It is not even the petitioner's case that he intimated the fact of acquisition of any right, referred to in Section 4, to the M.R.O which necessitated an enquiry being caused under Section 5(3) of the Act read with Rule 20(1)(c) of the Rules.
As noted hereinabove exercise of power, to enter upon, inspect and measure or cause to be measured land, under Rule 20(1)(c) is only if the M.R.O.
considers it necessary.
Neither is any statutory right conferred on the petitioner to claim, nor is any statutory obligation cast under the Act and Rules on the respondents to conduct a survey or to measure lands, for the mere asking.
Do the judgments in B.
Ram Das1 and A.
Krishna Reddy2 constitute precedents of a binding nature? It is not everything said by a Judge, while giving judgment, that constitutes a precedent.
The only thing in a Judge's decision which is binding is the principle upon which the case is decided.
A decision is only an authority for what it actually decides.
What is of the essence in a decision is its ratio, and not every observation found therein nor what logically follows from the various observations made in the judgment.
The enunciation of the reason or principle on which a question before a court has been decided is alone binding as a precedent.
A deliberate judicial decision arrived at after hearing an argument on a question which arises in the case, or is put in issue, would constitute a precedent.
It is the rule deductible from the application of law to the facts and circumstances of the case which constitutes its ratio decidendi.
(Union of India v.
Dhanwanti Devi3; State of Orissa v.
Mohd.
Illiyas4; ICICI Bank v.
Municipal Corpn.
of Greater Bombay5; State of Orissa v.
Sudhansu Sekhar Misra6; Quinn v.
Leathem7).
What is binding is the ratio of the decision, and not any finding of fact.
It is the principle found out upon a reading of a judgment as a whole, in the light of the questions before the Court, that forms the ratio and not any particular word or sentence.
(Director of Settlements, A.P.
v.
M.R.
Apparao8).
Neither in B.
Ram Das1 nor in A.
Krishna Reddy2 were the statutory provisions of the Andhra Pradesh Survey and Boundaries Act, 1923, or the Andhra Pradesh Record of Rights in Land and Pattadar Pass Books Act and the Rules, noticed.
The aforesaid judgments of this Court are also not preceded by any reasons, and do not amount to a declaration of law or authority of a general nature constituting a binding precedent.
The opinion expressed in the said judgments is without analyzing the statutory provisions, and is a mere direction of the Court.
A decision is binding not because of its conclusions, but in regard to its ratio and the principles laid down therein.
Any declaration or conclusion, arrived at without being preceded by any reason, cannot be deemed to be the declaration of law or authority of a general nature binding as a precedent.
A decision rendered 'without any argument, without reference to the crucial words of the rule and without any citation of the authority' is not a binding precedent.
(Lancaster Motor Company (London) Ltd.
v.
Bremith Ltd9).
'Precedents sub-silentio and without argument are of no moment'.
A decision, which is neither founded on reasons nor it proceeds on a consideration of an issue, cannot be deemed to be a law declared to have a binding effect.
That which escapes in the judgment without any occasion is not the ratio decidendi.
A decision is binding not because of its conclusions but in regard to its ratio, and the principles laid down therein'.
Any declaration or conclusion arrived without application of mind or preceded without any reason cannot be deemed to be the declaration of law or authority of a general nature binding as a precedent.
(Jaisri Sahu v.
Rajdewan Dubey10; Municipal Corporation of Delhi v.
Gurnam Kaur11; B.
Shama Rao v.
Union Territory of Pondicherry12; State of Uttar Pradesh v.
Synthetics and Chemicals Ltd.13).
A mere direction of the Court without considering the legal position is not a precedent.
(Vishnu Dutt Sharma v.
Manju Sharma14).
The view, if any, expressed without analysing the statutory provision cannot be treated as a binding precedent.
(N.
Bhargavan Pillai v.
State of Kerala15).
There is always peril in treating the words of a judgment as though they were words in a legislative enactment.
Uniformity and consistency are undoubtedly the core of judicial discipline.
But that which escapes in the judgment without any occasion is not the ratio decidendi.
(Synthetics and Chemicals Ltd.,13; Gurnam Kaur11).
Restraint in dissenting or overruling is for the sake of stability and uniformity but rigidity beyond reasonable limits is inimical to the growth of law.
(Synthetics and Chemicals Ltd.,13; B.
Shama Rao12).
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 of England, 4th Edn., Vol.
I, para 122; State of Haryana v.
Subash Chander Marwah16; Jasbhai Motibhai Desai v.
Roshan Kumar Haji Bashir Ahmed17; Ferris: Extraordinary Legal Remedies, para 198; and Mani Subrat Jain v.
State of Haryana18).
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 College19).
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 Officer20; Rai Shivendra Bahadur19 and Umakant Saran Dr v.
State of Bihar21; Bihar Eastern Gangetic Fishermen Coop.
Society Ltd.
v.
Sipahi Singh22).
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)23).
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 summaryin 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.
While the petitioner herein filed a suit seeking perpetual injunction, he does not appear to have sought for the lands to be surveyed and demarcated.
Even in this Writ Petition, the petitoner has not even chosen to array Sri P.
Lingaiah, against whom he obtained a decree, as a respondent.
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.
RAMESH RANGANATHAN,J Date:
26. 12.2012