WP/18196/2011 of Devalla Venkata Rao Vs The State of Andhra Pradesh on 30 December 2015

ORDER:

This Writ Petition, under Article 226 of the Constitution of India, is filed by the writ petitioner seeking the following relief/s:

“….to issue a writ, order or direction more particularly one in the nature ofWRIT OF MANDAMUS declaring the action of respondents 3 and 4 innotifying auction of leasehold rights in respect of landed propertyadmeasuring Ac.4.38 cents in Survey Nos.45/2 and 49/2 of GowripalliVillage, scheduled to be held on 02.07.2011 in spite of subsistence of thepetitioner's lease for the period from 2010-11 to 2012-13 and insisting thepetitioner to vacate from the said land as illegal, irregular, arbitrary, withoutjurisdiction, violative of principles of natural justice and provisions ofAndhra Pradesh Charitable and Hindu Religious Institutions andEndowments Act, 1987 and rules framed thereunder and offends Articles14 and 21 of Constitution of India and consequently direct the respondentsto continue as tenant during the period of lease granted in ProceedingsD.Dis.No.4/7193/2010, dt.12.07.2010 issued by the 2[nd] respondent and topass such other order or orders as this Hon’ble Court may deem fit andproper in the circumstances of the case.”

(Reproduced verbatim)

I have heard the submissions of the learned counsel for the writpetitioner and the learned standing counsel appearing for the thirdrespondent. I have perused the writ petition as well as the counter affidavitof the third respondent.

The learned counsel for the writ petitioner while making submissionsin line with the writ petition requested for issuance of a writ order as prayedfor. A perusal of the material record would show that the term of lease of thewrit petitioner had expired long time back. The said fact is fairly conceded. It is undisputed that the lease was neither renewed on fresh terms nor wasfresh lease granted in favour of the writ petitioner. The learned counsel for3[rd] respondent would submit that the writ petitioner’s term of lease is notonly over but he is also a defaulter and that he is not entitled to any reliefeither under the statute or under equity. A perusal of the counter affidavit ofthe 3[rd] respondent would also show that the petitioner had failed to depositthe security deposit and also to pay the maktha for the first year andtherefore, the 3[rd] respondent was constrained to issue a fresh auction notice for auctioning the lease-hold rights of the subject property. The petitionerdid not fairly state in his petition that he did not make the security depositedand that he had failed to pay the makta for the 1[st] year though the said factsare not disputed at the hearing. Thus, it is not in dispute that the petitionerhad not complied with the requirements, which he is supposed to complywith, as a lessee. Though the petitioner is a defaulter and his term of leasehad expired, he however now seeks indulgence of the court and seeksprotection from this court in this writ petition. The law is well settled that hewho seeks equity must do equity. The law is also well settled that a litigantwho comes to Court and invokes its writ jurisdiction must come with cleanhands and that he cannot prevaricate and take inconsistent positions. [videthe decision of the Supreme Court in Amar Singh v. Union of India, (2011)7 SCC 69, paragraph 50]. In the facts and circumstances, the question iswhether this Court would be justified in showing indulgence to thepetitioner. The exercise of jurisdiction under Article 226 of the Constitutionof India is discretionary and a writ is not issued as of right or as a matter ofcourse. (Vide C.R.Reddy Law College Employees’ Association, Eluru,

Facts

West Godavari District v. Bar Council of India, New Delhi)[[1]].The HighCourt having regard to the facts of the case has discretion to entertain or notto entertain a writ petition. The powers of the High Courts under Article 226though are discretionary and no limits can be placed upon their discretion,the same must be exercised along recognised lines and subject to certainself-imposed limitations. The expression 'for any other purpose' in Article226, makes the jurisdiction of the High Courts more extensive but yet theCourt must exercise the same with certain restraints and within someparameters. [vide Director of Settlements, A.P. v. M.R. Apparao (2002) 4SCC 638)]. Under Article 226 of the Constitution, the High Court, havingregard to the facts of the case, has discretion to entertain or not to entertaina writ petition. But the High Court has imposed upon itself certainrestrictions in the exercise of this power. [See: Whirlpool Corporation v.Registrar of Trade Marks, Mumbai and Ors. (AIR1999SC22)]. “The HighCourts do not, and should not, act as Courts of appeal under article 226.Their powers are purely discretionary and though no limits can be placed upon that discretion it must be exercised along recognised lines and notarbitrarily; and one of the limitations imposed by the Courts on themselvesis that they will not exercise jurisdiction in this class of cases unlesssubstantial injustice has ensued, or is likely to ensue. They will not allowthemselves to be turned into Courts of appeal or revision to set right mereerrors of law which do not occasion injustice in a broad and general sense,for, though no legislature can impose limitations on these constitutionalpowers it is a sound exercise of discretion to bear in mind the policy of thelegislature to have disputes about these special rights decided as speedily as may be.” (Vide Samgram Singh v. Election Tribunal, Kotah)[[2]].Having regard to the facts of the instant case, this Court finds no reason toexercise the discretion under Article 226 of the Constitution of India infavour of the petitioner.

Viewed thus, this Court finds that the petitioner, who has come toCourt seeking an equitable relief, is not entitled to the relief or indulgence ofthis Court, as the facts of the case disclose that the term of the lease of thepetitioner had expired long time back and that he is a defaulter on accountof non-payment of makta due for the 1[st] year; as a sequel, it must be heldthat the 3[rd] respondent is entitled under facts and law to auction the lease-hold rights of the subject property afresh and that such an action of the 3[rd]respondent cannot be found faulted.

Having regard to the reasons, this Court finds that there is no meritin the writ petition and that the impugned auction notice, therefore, brooksno interference. Accordingly, the writ petition is dismissed. It is made clearthat the 3[rd] respondent may proceed in strict accordance with the procedureestablished by law with the auction of the leasehold rights in respect of thesubject land, afresh, if necessary. No costs.

Miscellaneous petitions pending, if any, in this writ petition shallstand closed.

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30[th] December, 2015Bvv

[1]2004(5) ALD 180 (D.B)

[2]AIR 1995 SC 425

M.Seetharama Murti, J