* HON’BLE SRI JUSTICE CHEEKATI MANAVENDRANATH ROY

+ Writ Petition No.9443 of 2021

% Dated 04-05-2021.

# Garugubelli Raveendra.

….. Petitioner

Versus

$ 1. The State of Andhra Pradesh, Municipal Administration

Department, rep. by its Principal Secretary, Secretariat,

Amaravati & Others.

..Respondents

! Counsel for the petitioner : Sri Taddi Nageswara Rao

^ Counsel for respondent No.1: Learned Govt. Pleader for MA&UD

^ Counsel for respondent No.2: Sri M. Manohar Reddy,

Learned Standing Counsel

for Nagarpanchayats.

^ Counsel for respondent No.3: Learned Govt. Pleader for Stamps

and Registration.

<GIST:

> HEAD NOTE:

? Cases referred:

1

(1998) 8 SCC 1

2

2005 (2) ALT 786

3

AIR 2003 SC 2120

4

(2003) 3 SCR 75

2

IN THE HIGH COURT OF THE STATE OF ANDHRA PRADESH

Writ Petition No.9443 of 2021

Garugubelli Raveendra.

….. Petitioner

Versus

1. The State of Andhra Pradesh, Municipal Administration

Department, rep. by its Principal Secretary, Secretariat,

Amaravati, & Others.

..Respondents

JUDGMENT PRONOUNCED ON: 04-05-2021

HON’BLE SRI JUSTICE CHEEKATI MANAVENDRANATH ROY

1. Whether Reporters of Local newspapers

may be allowed to see the Judgments?

---

2. Whether the copies of judgment may be

marked to Law Reporters/Journals

-Yes-

3. Whether His Lordship wish to see the fair

copy of the Judgment?

-Yes-

JUSTICE CHEEKATI MANAVENDRANATH ROY

3

THE HON’BLE SRI JUSTICE CHEEKATI MANAVENDRANATH ROY

WRIT PETITION No.9443 of 2021

ORDER:-

This Writ Petition has been filed for writ of mandamus

declaring action of the 2

nd respondent in issuing the

proceedings dated 25.03.2021 in MC/1134012660 and

MC/1134012661 for mutation of the name relating to the

houses bearing D.Nos.1697 and 1646 of Palakonda

Nagarpanchayat, Srikakulam District, in favour of the 4

th

respondent without considering the objections of the

petitioner as illegal, arbitrary and violative of principles of

natural justice and contrary to the rules framed under the

A.P. Municipalities Act, 1965. The petitioner also challenges

the notice dated 19.04.2021 issued under Section 231 of the

A.P. Municipalities Act to the 4

th respondent directing to

remove the ground floor tiled house and prayed to set aside

the proceedings dated 25.03.2021 in MC/1134012660 and

MC/1134012661 and also the notice dated 19.04.2021.

2. Heard learned counsel for the petitioner and learned

Assistant Government Pleader for Municipal Administration

and Sri M. Manohar Reddy, learned Standing Counsel for the

2

nd respondent – Nagarpanchayat.

3. As per the case pleaded by the petitioner, the petitioner

is the owner of the houses bearing D.Nos.1646 and 1697

which is in Palakonda Nagarpanchayat of Srikakulam

4

District. He states that he has inherited the said property

through his father as originally the said two houses are in the

name of his father G. Sanyasi Rao and registered in his name

in the records of the Nagarpanchayat. His father died in the

month of November, 2015 and after his demise, he has been

in possession and enjoyment of the said two houses. The

petitioner has been now paying taxes relating to the said two

houses.

4. According to the petitioner, his paternal grandfather G.

Raja Rao originally purchased the said two houses in the year

1975 in the name of the 4

th respondent. After the death of his

grandfather G. Raja Rao, all his sons and wife got the family

property orally partitioned. However, the two houses in

question, which was not subject matter of the said partition,

was settled in favour of the father of the petitioner as per the

advice of his grandmother and an unregistered settlement

deed was executed to that effect by his grandmother and her

three sons and as such his father got the said property by

way of the said settlement. Thereafter the petitioner became

owner of the house after the demise of his father.

5. While so, the 2

nd respondent - Commissioner issued

notice dated 19.03.2021 stating that the 4

th respondent filed

objections on 18.03.2021 for change of name in respect of the

said two houses and directed the petitioner to appear before

him within three days. Accordingly, the petitioner appeared

5

before him and submitted his documents in proof of his

ownership over the said property. However, the 2

nd

respondent passed the impugned orders dated 25.03.2021

effecting transfer of the said property in the name of the 4

th

respondent on the basis of a registered document dated

01.03.2021, which do not relate to the said two houses. The

petitioner states that thereafter, the 2

nd respondent, by

invoking Section 93 of the A.P. Municipalities Act, 1965 read

with Rule 8(2) of the Taxation and Finance Rules, on the

request of the 4

th respondent, effected transfer of title in

respect of the said property instead of directing the 4

th

respondent to approach civil Court for establishing his right.

It is stated that the 2

nd respondent also issued notice dated

19.04.2021 to 4

th respondent to demolish the two houses

stating that they are in dilapidated condition. Thus, two

proceedings dated 25.03.2021 relating mutation of name and

the proceedings dated 19.04.2021 issued to demolish the

house are questioned in this Writ Petition.

6. The petitioner questions the impugned proceedings

dated 25.03.2021 relating mutation of name mainly on the

ground that Rule 3 of the Andhra Pradesh Municipalities

(Alteration of ownership of property in Assessment Book)

Rules, 1966 and G.O.Ms.No.1059, Municipal Administration,

dated 15.12.1966, as amended by G.O.Ms.No.517, dated

04.10.1974, contemplates that one month time has to be

6

given for filing objections and contrary to it, only three days

time has been given in the impugned notice for filing

objections and even though the petitioner has submitted his

documents within the said three days time that the same are

not considered in the final orders that were passed in this

regard and as such the impugned orders are bad in law for

not considering the documents produced by the petitioner.

Therefore, he has filed the present Writ Petition seeking the

aforesaid reliefs.

7. Sri M. Manohar Reddy, learned Standing Counsel for

Nagarpanchayat would submit that even though only three

days time has been given for filing objections, as the

petitioner availed the said opportunity and filed his

documents as stated by him in Para No.6 of the affidavit, it is

no more open to the petitioner to question the impugned

orders on the ground that 30 days time for filing objections is

not given, as he himself, according to his admission in the

affidavit, has appeared before the concerned authority and

filed his documents. He would then contend that as appeal

lies under Section 345 of the Municipalities Act against the

order passed for demolition under Section 231 of the

Municipalities Act that the present Writ Petition is not

maintainable and the petitioner has to exhaust the remedy of

appeal provided under the Act. He would also submit that the

Writ Petition is not maintainable for mis-joinder of various

7

causes of action relating to mutation of name in respect of his

house property and relating to demolition of the house

ordered under Section 231 of the Municipalities Act.

8. The controversy involved in the Writ Petition pertains to

mutation of the name of the 4

th respondent in respect of the

said two houses which are referred supra. Therefore, the

rights and liabilities of the parties are squarely governed by

“Alteration of ownership of property in Assessment Book

Rules, 1966 and G.O.Ms.No.1059, Municipal Administration,

dated 15.12.1966, as amended by G.O.Ms.No.517, dated

04.10.1974”. Rule 3 thereof prescribes the procedure to be

followed regarding mutation of names in respect of immovable

property. Therefore, presumably, the impugned order,

mutating the name of the 4

th respondent in respect of the said

two houses is concerned, is passed under the aforesaid rules.

The petitioner also questioned the validity of the impugned

order on the ground that the procedure contemplated under

Section 3 of the aforesaid rules, is not followed and complied

with. Now, it is relevant to note here that Rule 7 of the

aforesaid Rules provide a remedy of appeal to the aggrieved

person. It reads thus:-

“ Rule 7:

An appeal shall lie to the council against the order of the

Commissioner making or refusing to make alterations in the

entries in the assessment books. Such appeal shall be presented

within thirty days after the note of receipt of the order appealed

against.”

8

9. Therefore, when an efficacious alternative remedy by

way of an appeal is provided to the petitioner, who is

aggrieved by the said mutation of name of the 4

th respondent

in respect of the said two houses, the petitioner has to

exhaust the said remedy of appeal. He cannot invoke the

extraordinary jurisdiction of this Court under Article 226 of

the Constitution of India without exhausting the said remedy.

10. Learned counsel for the petitioner would submit that

even though alternative remedy is available that in all cases,

it is not a bar to entertain the Writ Petition. He would contend

that even though the petitioner got right of appeal that this

Court still got unfettered power to entertain the Writ Petition.

11. No doubt, the power to issue prerogative writs under

Article 226 of the Constitution of India is plenary in nature

vested with the High Court and the said power is not limited

by any provisions of the Constitution. The said power of High

Court can be exercised not only for enforcing the fundamental

rights of the parties as contained in Part III of the

Constitution of India but also for any other purpose i.e., for

enforcement of legal right of a citizen of the country etc. The

High Court, having regard to facts of the case has discretion

to entertain or not to entertain a Writ Petition. Mandamus is

an important public law remedy and does not generally

supersede legal remedies. Therefore, when statutory right of

appeal is provided, High Court normally will not entertain the

9

Writ Petition. Alternative remedy is considered as a bar to

entertain the Writ Petition in view of the self-restraint

imposed by the High Courts to prevent heavy inflow of Writ

Petitions without exhausting the other efficacious alternative

remedies. However, Writ Petition can be entertained despite

the fact that petitioner got alternative remedy only on limited

grounds in exceptional cases. The Apex Court in the case of

Whirlpool Corporation Vs. Registrar of Trade Marks,

Mumbai

1, held that the alternative remedy will not operate as

a bar at least in three contingencies and the Writ Petition is

maintainable despite the fact that there is an alternative

remedy provided to the parties. They are –

1) For enforcement of any of the fundamental rights of

the citizen.

2) Where there has been violation of principles of

natural justice

3) Where the order or proceedings are wholly without

jurisdiction or the vires of an Act is challenged.

12. The said judgment of Whirlpool Corporation (1 supra)

was relied on by the five Judges Bench of this Court in the

case of Bhamidipati Annapoorna Bhavani vs Land

Acquisition Officer, Yeleru

2. In Harbanslal Sahnia Vs

1

(1998) 8 SCC 1

2

2005 (2) ALT 786

10

Indian Oil Corpn. Ltd

3, the Supreme Court held that in

appropriate cases, in spite of availability of alternative

remedy, the High Court may still exercise its writ jurisdiction

at least in three contingencies as noticed above in Whirlpool

Corporation’s case (1 supra). Therefore, the legal position is

now very clear that only in the aforesaid three contingencies,

despite the fact that an alternative remedy is available either

by way of statutory appeal or in any other mode that the

Courts can entertain the Writ Petitions filed under Article 226

of the Constitution of India. As can be seen from the facts of

the present case, the case of the petitioner is not coming

within the purview of any of the aforesaid three grounds. It is

not a case of enforcement of any fundamental right of the

petitioner as enshrined in Part III of the Constitution of India.

It is not a case of violation of principles of natural justice, as

notice has been given to the petitioner and it is not a case

that the authority, who passed the order, has no jurisdiction

to pass the same and it is not a case of challenging the vires

of the Act. Therefore, when a statutory appeal is provided

against the impugned order which is an effective efficacious

remedy available to the petitioner, the petitioner, without

exhausting the same, cannot invoke the writ jurisdiction of

this Court.

3

AIR 2003 SC 2120

11

13. In this context, it is apt to consider the judgment of the

Apex Court rendered in the case of Seth Chand Ratan Vs

Pandit Durga Prasad

4, wherein it is held as follows: -

“ When right or liability is created by a statute, which itself

prescribes the remedy or procedure for enforcing the right or

liability, resort must be had to that particular statutory remedy.

This rule of exhaustion of statutory remedies is no doubt a rule of

policy, convenience and discretion and the Court may in

exceptional cases issue a discretionary writ of certiorari.”

14. Therefore, if the case on hand is considered in the light

of the above legal position, the same is not found to be an

exceptional case to entertain this Writ Petition.

15. As regards the notice issued under Section 231 of the

A.P. Municipalities Act for demolition of the said two houses

on the ground that they are in dilapidated condition is

concerned also, this Court finds considerable force in the

contention of Sri M. Manohar Reddy, learned Standing

Counsel appearing for Nagarpanchayat that as appeal lies

against the said order passed under Section 231 of the A.P.

Municipalities Act that the Writ Petition is not maintainable.

A reading of Section 345 of the Municipality Act, which deals

with the appeals, makes it manifest that under Section

345(1)(a)(i), an appeal against an order passed under Section

231 lies to the council. Therefore, without exhausting the said

remedy of appeal provided under Section 345 of the A.P.

Municipalities Act, the present Writ Petition is not

4

(2003) 3 SCR 75

12

maintainable. Learned counsel for the petitioner would

submit that as the said notices were issued to the 4

th

respondent under Section 231 of the Act that the petitioner

could not prefer any appeal. As the petitioner claims to be the

owner of the two houses and also claims to be in possession

of the houses in his own right, as the impugned notice affects

his right in respect of the said property, he can prefer an

appeal under Section 345 of the Act, being aggrieved by the

same. It is settled law that even a person, who is not a party

to the impugned proceedings, if feels aggrieved by the said

proceedings, can question the same in an appeal with the

leave of the appellate authority as a person affected by the

said order. Therefore, as the petitioner now feels aggrieved by

the said order passed under Section 231 of the Act, as he

claims to be in possession of the said property, as it affects

his right in respect of the said houses in question, he can

prefer an appeal with the leave of the appellate authority. If

the appeal is rejected on any such technical ground, he can

invoke writ jurisdiction.

16. Therefore, the Writ Petition is disposed of with a

direction to the petitioner to exhaust the remedy of appeals

provided under Rule 7 of the above referred Rules and Section

345 of the A.P. Municipalities Act against both the impugned

orders, within a period of 30 days from the date of this order.

As the time that is spent during the pendency of this Writ

13

Petition shall be excluded from consideration while computing

the period of limitation in preferring the appeals, the appellate

authority shall entertain the said two appeals that may be

preferred by the petitioner. Till the said appeals are filed and

the same are disposed of according to law, there shall be a

direction to the respondents not to take any steps to demolish

the houses in question pursuant to the notice given under

Section 231 of the A.P. Municipalities Act. There shall be no

order as to costs.

Miscellaneous petitions, if any pending, in the Writ

Petition, shall stand closed.

______________________________________________

JUSTICE CHEEKATI MANAVENDRANATH ROY

Date: 04.05.2021

Note:

1) Issue CC by 06.05.2021.

2) LR Copy to be marked.

B/o

AKN

14

THE HON’BLE SRI JUSTICE CHEEKATI MANAVENDRANATH ROY

WRIT PETITION No.9443 of 2021

Date: 04-05-2021

AKN