IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH AT HYDERABAD THE HON’BLE SRI JUSTICE A.V.SESHA SAI W.P.Nos.3129 of 2009 & 18555 of 2010 Date: 11.8.2014 W.P.No.3129 of 2009 Between B.L.Guruva Reddy Petitioner And The Secretary to Government, Endowments Department, Govt of A.P., Secretariat Buildings, Hyderabad & others.
Respondents W.P.No.18555 of 2010 Between Dhanunjaya Reddy and others.
Petitioners And Government of A.P., rep. by the Secretary to Government, Endowments Department, Hyderabad and others.
Respondents HON’BLE SRI JUSTICE A.V.SESHA SAI WRIT PETITION Nos.3129/2009 and 18555/2010 COMMON ORDER:
Since the causes of action in these two writ petitions are inter- related and as the fate of W.P.No.18555/2010 depends on the outcome of W.P.No.3129/2009, these writ petitions are heard together and are being disposed of by this common order.
2. W.P.No.3129/2009 is filed, assailing the Memo No.71007/Endts.II/A1/2007 dated 30.10.2008, issued by the Government of Andhra Pradesh/the first respondent herein, confirming the orders of the Commissioner of Endowments/second respondent herein, in R.P.2/2007 dated 27.10.2007 and the orders of the Deputy Commissioner of Endowments/third respondent herein, in O.A.No.25/1998 dated 23.10.2006.
3. W.P.No.18555/2010, filed by the respondents 6 to 8 in W.P.No.3129/2009, challenges the action of the respondents herein in not implementing the orders issued vide G.O.Rt.No.296 Revenue (Endts-III) Department dated 07.03.2000 as illegal and unconstitutional.
4. Heard Sri K.Sarva Bhouma Rao, learned counsel for the petitioner in W.P.No.3129/2009, learned Government Pleader for Endowments for the respondents 1 to 4 and Sri V.T.M.Prasad, learned counsel for the fifth respondent and Sri K.S.Murthy, learned counsel for the respondents 6 to 8 in W.P.No.3129/2009 and Sri K.S.Murthy, learned counsel for the petitioners in W.P.No.18555/2010, learned Government Pleader for Endowments for the respondents 1 to 4, V.T.M.Prasad, learned counsel for the fifth respondent and Sri Shivaraj Srinivas, learned Standing Counsel for the sixth respondent Institution apart from perusing the material available on record.
5. Since the outcome of W.P.No.3129/2009 decides the fate of W.P.No.18555/2010, this Court proposes to deal with W.P.No.3129/2009 first.
6. The pleaded case of the petitioner in W.P.No.3129/2009 is as under:-
6.1 Since the times immemorial petitioner’s ancestors are the tenants of Ac.4.24 cents of dry land situated in Sy.No.707 of Chandragiri Revenue Village belonging to the fifth respondent temple. In the public auction held by the endowment department on 12.10.1970, petitioner herein emerged as the highest bidder for Rs.625/- per year for a period of six years and the second respondent/Commissioner of Endowments accordingly issued orders vide letter D.Dis.No.71659/D1/70 dated 19.11.1970. Despite communication of the same by the second respondent/Commissioner of Endowments, the Executive Officer of the fifth respondent temple did not execute any lease deed in favour of the petitioner, but none the less petitioner had been paying the lease @ Rs.625/- per year from the year 1970 regularly to the Executive Officer which was being accepted by him.
6.2. Public auction sale was held by the third respondent/Deputy Commissioner of Endowments, Kurnool on 22.09.1979 and the Deputy Registrar, Chittoor fixed the land value at Rs.21,400/- as per Section 47-A of the Stamp Act but due to competition and village politics in the village the sale was knocked down for Rs.66,100/- in favour of the petitioner and the petitioner paid Rs.8,300/- towards 1/3rd bid amount and a receipt was also issued, but no orders of confirmation were received from the second respondent/Commissioner.
6.3. Earlier, when the third respondent/Deputy Commissioner attempted to conduct auction on 08.04.1980, petitioner approached the Government and on 07.04.1980 the State Government granted stay while calling for report from the third respondent/Deputy Commissioner and thereafter nothing transpired and the petitioner did not receive any communication and despite the same petitioner was paying lease amounts regularly to the Executive Officer of the fifth respondent temple.
6.4. The Executive Officer of the fifth respondent temple filed a suit in O.S.No.1033/1998 on 24.06.1998 on the file of the Court of the Principal Junior Civil Judge, Tirupathi, against the petitioner, showing him as an encroacher while praying for a direction to pay the lease amount at the enhanced rate of Rs.5,000/- per year instead of original amount of Rs.625/- per year. By virtue of Judgment dated 18.10.2000, the learned Principal Junior Civil Judge, Tirupathi held the petitioner as a tenant, but not an encroacher while holding the lease amount as Rs.625/- only per year. The appeal filed by the Executive Officer of the fifth respondent temple in A.S.No.32/2001 on the file of the Court of the IV Additional District Judge, Tirupathi also ended in dismissal on 07.01.2004 and the same became final as no appeal was filed against the said judgment. Since the petitioner did not receive any communication from the respondent authorities with regard to payment of balance bid amount of Rs.57,800/-, petitioner himself took interest in the matter and deposited the said amount in the State Bank of India, Chandragiri Branch on 05.10.2002 as a term deposit in the name of Executive Officer of the fifth respondent temple while informing the same to the respondents 2 and 5. When the Executive Officer of the fifth respondent temple refused to accept the lease of Rs.625/- per year for the years 2001-2002, which were sent by the petitioner by way of demand drafts, petitioner took another term deposit in favour of the Executive Officer of the fifth respondent temple for Rs.1,250/ and sent the receipt to the third respondent Deputy Commissioner.
6.5. The third respondent initiated proceedings in O.A.No.25/1998 suo motu and assailing the said action of initiation of proceedings vide O.A.No.25/1998, petitioner filed W.P.No.7029/2003 before this Court and the said writ petition was disposed of on 25.04.2003, leaving it open to the petitioner to raise all pleas. Pending O.A.No.25/1998 before the third respondent, the fourth respondent Assistant Commissioner of Endowments, Chittoor vide proceedings Rc.No.B1/1976/2004 dated 28.05.2004 recommended the petitioner’s entitlement to the land while requesting to stop further litigation in view of the judgment of the Civil Court in A.S.No.34/2001 to the Commissioner of Endowments through the Deputy Commissioner who recommended vide letter in Rc.No.B4/4715/2004/Admn dated 02.08.2004. The third respondent passed orders in O.A.No.25/1998 dated 23.10.2006, directing eviction of the petitioner herein. Questioning the said order, petitioner filed W.P.No.24130/2006 and pending the same petitioner was advised to file appeal before the second respondent/Commissioner against the orders of the Deputy Commissioner and accordingly petitioner filed revision before the second respondent Commissioner vide R.P.No.2/2007 and had withdrawn W.P.No.24130/2006. The second respondent/ Commissioner vide orders dated 27.10.2007 dismissed the said revision. Assailing the said order of the second respondent, petitioner herein filed a revision before the Government under Section 93 of the Act which was numbered as Memo No.71007/Endts II/A1/2007 and by virtue of an order dated 30.10.2008, the State Government also dismissed the said revision.
6.6. Assailing the validity of the order passed by the State Government vide Memo No.71007/Endts II/A1/2007 dated 30.10.2008 confirming the orders of the second respondent Commissioner of Endowments in R.P.No.2/1997 dated 27.10.2007 and the orders of the Deputy Commissioner/third respondent in O.A.25/1998 dated 23.10.2006, the present writ petition has been filed.
6.7. This Court while issuing rule nisi on 17.02.2009 in WPMP.4054/2009 granted interim stay. By virtue of an order dated 24.10.2012, this Court in WPMP.No.22529/2010 permitted the respondents 6 to 8 (Petitioners in W.P.No.18555/2010) to come on record. The order of stay granted by this court on 17.02.2009 was subsequently made absolute on 18.02.2013. Counter affidavit has been filed by the Executive Officer of the fifth respondent temple and an affidavit has been filed by the respondents 6 to 8 in support of the implead petition vide WPMP.No.22529/2010.
7. Contentions/submissions of Sri K.Sarvabouma Rao, learned counsel for the petitioner:
7.1 The order of the first respondent confirming the orders passed by the Commissioner of Endowments and the Deputy Commissioner of Endowments is erroneous and contrary to law besides being violative of the principles of natural justice. The Government did not properly consider various points put-forth by the petitioner in his written arguments and the grounds of revision. The first respondent Government grossly erred in not taking into consideration the recommendations made by the Assistant Commissioner of Endowments, Chittoor vide proceedings R.C.No.B1/1976/2004 dated 28.05.2004 and the recommendations of the Deputy Commissioner, Endowments Department, Kurnool vide letter in Rc.No.B4/4715/2004/Admn dated 16.06.2004.
7.2. The first respondent grossly erred in ordering collection of amount from the petitioner with effect from 1976 towards lease amount of the temple and also erred in ordering forfeiture of the amounts deposited by the petitioner. The Government failed to notice that neither the Deputy Commissioner nor the Commissioner of Endowments disputed the deposits made by the petitioner. The respondent authorities ought to have seen that the petitioner is not an encroacher. The judgments of the civil Courts, holding the petitioner as not an encroacher were not taken into consideration. In view of the provisions of Section 15 of the A.P (Andhra Area) Tenancy Act, 1974 the orders of eviction passed by the respondent authorities are neither sustainable nor tenable.
8. Contentions/submissions of Sri V.T.M.Prasad, learned counsel for Respondent No.5-Temple:
8.1. The fifth respondent temple is the owner of the subject land and the petitioner was the lessee for a period of six years commencing from 24.10.1970 to 23.10.1976 and after the expiry of the said lease period, the petitioner continued as encroacher in the subject land.
8.2. On 22.9.1979, when the subject land was put to sale by way of auction, petitioner stood as highest bidder for an amount of Rs.66,100/- and as per the terms and conditions of the auction, the highest bidder had to pay 1/3rd of the bid amount at the time of auction and instead the petitioner paid only Rs.8,300/- and the petitioner did not pay the rest of the amount within the stipulated period.
8.3. In view of non-payment of the sale amount, the second respondent herein cancelled the sale based on the report of the Executive Officer and Rs.8,300/- paid by the petitioner was forfeited to the temple.
8.4. Second sale auction was conducted and against which, the petitioner submitted a representation to the Endowments Minister, but the Minister did not stay the auction, but due to certain reason, the second sale was cancelled.
8.5. After expiry of the lease period i.e. 24.10.1970 to 23.10.1976, petitioner is enjoying the land illegally without paying the lease properly and the fifth respondent instituted suit O.S.No.1033 of 1998 on the file of the Court of the Principal Junior Civil Judge for recovery of Rs.10,000/- towards arrears by way of judgment dated 18.10.2000 and the said suit was partly allowed for a sum of Rs.1250/- and aggrieved by the same, the fifth respondent preferred A.S.No.32 of 2001 before the Court of VI Additional District Judge and the same also ended in dismissal on 7.1.2004 and in a money suit, declaration that the petitioner was not an encroacher would not arise.
8.6. Since the authorities below concurrently found fault with the petitioner herein, the said findings of fact are not amenable to judicial review under Article 226 of the Constitution of India.
8.7. The respondent took possession of the subject land on 17.2.2009 under a cover of panchanama.
8.8. The Executive Officer of the 5th respondent temple issued auction notice dated 18.2.2009 for leasing out the leasehold rights for a period of three years and this Court passed interim orders in W.P.M.P.No.4054 of 2009.
9. Contentions/submissions of Sri K.S.Murthy, learned counsel for Respondent Nos. 6 to 8
9.1. The respondents 6 to 8 are the devotees of Sri Kodanda Rama Swamy Temple and are the persons interested in the activities of the temple.
9.2. The person-incharges of the temple are not evincing any interest in protecting the temple properties.
9.3. Due to the action of the writ petitioner in prolonging the matter, the temple is not being maintained properly and no daily poojas are conducted in the temple.
9.4. The 1st respondent issued G.O.Rt.No.296 Revenue (Endts- III) Department 7.3.2000, transferring the management of the fifth respondent temple to Tirumala Tirupati Devasthanam and then the Executive Officer issued proceedings dated 20.9.2000 directing his subordinates to take over the temple management and also issued proceedings appointing the staff and the TTD requested the respondent herein to handover the management of the temple after duly evicting the unauthorized occupants and in view of lack of response from the endowment authorities, the TTD could not take over the temple management.
9.5. Unless the present litigation regarding temple lands attains finality, TTD will not be in a position to come forward to take up the temple management.
10. Submissions/contentions of Sri Srinivas Shivaraj, learned counsel for Tirumala Tirupati Devasthanams
10.1. Despite several communications, the Endowments Department had not been able to handover the temple and the properties.
10.2. The TTD passed a resolution bearing No.373 dated 22.8.2006. The said resolution was also intimated to the Government, but no fresh orders/revised orders have been issued so far.
10.3. The learned counsel relies on the judgments in Tankala Mouliswara Rao and others v. The Assistant Commissioner, Endowments Department, Visakhapatnam and Sri Varaha Lakshmi Narasimha Swamy Vari Devasthanam, Simhachalam, Visakhapatnam
[1]
District, rep. by its Executive Officer a n d Jaladi Seetharamamma and another v. Sri Ramalingeswara [2] Swami Temple .
11. In the light of the pleadings, submissions and contentions in this case, now the points which emerge for consideration and determination by this Court are;
1. Whether the orders impugned in the Writ Petition are in conformity with the provisions of A.P. Charitable and Hindu Religious Institutions and Endowments Act, 1987 and whether the same warrant any interference of this Court by way of judicial review under Article 226 of the Constitution of India?
2. Whether the judgment rendered by the Court of Principal Senior Civil Judge, Tirupati in O.S.No.1033 of 1998 dated 24.6.1998 as confirmed by the Court of IV Additional District Judge, Tirupati in judgment in A.S.No.32 of 2001 debars or prohibits the respondent from adjudicating the issue under Section 83 of the Act?
3. Whether the petitioner is entitled for the benefit under Section 15 of the Andhra Pradesh (Andhra Area) Tenancy Act, 1974?
Point No.1
12. There is absolutely no dispute with regard to the fact that the fifth respondent temple is the owner of the subject land, admeasuring Ac.4- 24 cents situated in Survey No.707 of Chandragiri Revenue village, Chittoor district. The leasehold rights in respect of the said land were put to public auction on 12.10.1970 wherein the petitioner herein emerged as a highest bidder for a period of six years subject to payment of Rs.625/- per year towards lease amount. The said period admittedly came to end in the year 1976 and the authorities did not extend the said lease period thereafter nor there is any evidence placed on record by the petitioner to show that the period of lease was extended subsequently. On the other hand, it is the case of the petitioner that despite the expiry of the initial period of lease, he continued in the said land.
13. In the public auction conducted by the 3rd respondent on 22.9.1979 for sale of the subject property, the petitioner herein became the highest bidder for Rs.66,100/- and according to the petitioner, initially he paid immediately after the auction a sum of Rs.8,300/- towards 1/3rd of the bid amount and he made a representation dated 1.11.1979 to the Executive Officer of the fifth respondent temple for grant of instalments. The fact remains that the Commissioner of Endowments vide proceedings Rc.No.3/M.A.5/79 dated 10.10.1979 confirmed the sale in favour of the petitioner in exercise of the powers conferred under Section 74 of the Endowments Act, 1966 with a direction to the Manager of the fifth respondent temple to get the sale deed executed after collecting the entire bid amount. It is relevant to note that as per condition No.4 of the conditions of auction, the petitioner herein had to deposit 1/3rd of the bid amount immediately after the auction, which the petitioner admittedly failed to do and on the other hand, as mentioned above, the petitioner made a representation to the Executive Officer of the fifth respondent temple, requesting to grant instalments for payment of the bid amount on 1.11.1979. As per condition No.5 of the auction conditions, balance of the bid amount had to be paid by the petitioner within a period of 15 days from the date of confirmation and the same in fact was confirmed by the second respondent Commissioner on 10.10.1979. Eventually, in the month of February 1980, the second respondent Commissioner cancelled the auction and the petitioner had knowledge of the cancellation of the auction which would be evident from the counter filed by the petitioner in O.A.No.25 of 1998 before the Deputy Commissioner of Endowments.
14. Coming to the orders impugned in the present Writ Petition, it requires to be noted that the Deputy Commissioner of Endowments
suo-motu pressed into service the provisions of Section 83 of the Act and questioning the very initiation of the said proceedings, the petitioner filed W.P.No.7029 of 2003 before this Court and by way of order dated 25.4.2003, the said Writ Petition was dismissed by this Court and the operative portion of the said order reads as under:
“The term encroacher has its own significance and meaning under the Act. Explanation to Section 83 describes and defines ‘encroacher’ as to include, inter alia, the persons who continue to remain in the possession even after expiry, cancellation or lapse of the lease or licence. In a way, the term encroacher takes in its fold the persons who can be otherwise treated as tenants holding over. It is not in dispute that as on today, there does not exist any subsisting lease granted by the institution in favour of the petitioner. Whether under the facts and circumstances of the case, he can be treated as a permanent tenant or otherwise needs to be considered by the 3rd respondent with reference to the provisions of the Act in the proceedings pending before him, no exception can be taken to the initiation or continuation of the proceedings against the petitioner”.
15. The Deputy Commissioner of Endowments, by way of an order dated 23.10.1976 in O.A.No.25 of 1998, held the petitioner as encroacher and aggrieved by the said order, the petitioner filed a revision before the second respondent/Commissioner under Section 92 of the Act and the Commissioner also dismissed the same by way of order dated 27.10.1997 in R.P.No.2 of 2007, which was subsequently confirmed by the Government in further revision at the instance of the petitioner herein vide impugned memo dated 30.10.2008. From a reading of the impugned orders, it would be very much evident that the authorities, on a careful analysis of all the factual and legal aspects and in an elaborate, meticulous and detailed manner and after considering thoroughly the impact of the provisions of the Endowments Act held the petitioner as encroacher. The respondent authorities took into consideration the failure on the part of the petitioner herein in depositing the bid amount and cancellation thereafter by the Commissioner of Endowments on 18.2.1980. As noticed above, the petitioner herein had the knowledge of cancellation of sale by the Commissioner of Endowments even in the year 1998 when O.A.No.25 of 1998 was pending consideration before the Deputy Commissioner of Endowments, but the petitioner did not make any attempt to assail the orders of cancellation and allowed it to become final. This aspect, in the considered opinion of this Court, is fatal to the case of the petitioner herein. This Court is also of the view that the recommendations of the Assistant Commissioner of Endowments vide proceedings Rc.No.B1/1976/2004 dated 28.05.2004 pale into insignificance in view of the quasi-judicial orders passed by the Deputy Commissioner of Endowments under Section 83 of the Act as confirmed by the Commissioner and further confirmed by the Government in the revision. In view of the above reasons and keeping in view the cogent and convincing reasons assigned by the respondent authorities while passing the impugned orders, point No.1 is answered against the petitioner.
Point No.2
16. The contention of the learned counsel for petitioners that in view of the findings of the trial Court in O.S.No.1033 of 1998, declaring the petitioner as tenant, the impugned orders passed by the respondent authorities holding the petitioner as encroacher under Section 83 of the Act are neither sustainable nor tenable in the eye of law. It is relevant to note at this juncture that the said suit in O.S.No.1033 of 1998 was instituted by the fifth respondent temple for recovery of the lease amount and the present issue did not fall for consideration before the said Court for adjudication. It is also significant to note at this juncture that Section 82 of the Act expressly cancels all the leases and as per Section 83 of the Act whenever there is no existing lease, the person in possession of the property of the temple shall be construed as encroacher for the purpose of adjudication under Section 83 of the Act.
17. At this juncture, it is relevant to refer to the judgment of this Court i n Jaladi Seetharamamma and another v. Sri Ramalingeswara Swami Temple (2 supra) and paragraphs 6 and 7 of the said judgment read as under:
“6. A Full Bench of this Court in S. Narayana v. State of Andhra Pradesh 1990 (1) ALT 237, declared that Section 82 of the Endowments Act as violative of Article 14 of the Constitution of India. In view of uncertainty of the validity of Section 82 of the Endowments Act in the interregnum, various proceedings before the authorities created under the Tenancy Act were continued. The said judgment of this Court has been set aside by the judgment of the Supreme Court in an appeal by the State in State of Andhra Pradesh v. Nallamilli Kami Reddy : AIR 2001 SC 3616 , upholding the legality and validity of Section 82 of the Endowments Act. By virtue of the aforesaid ordinance and the judgment of the Supreme Court referred to above, all the leases between parties in these petitions came to an end on the date of commencement of the Endowments Act and thereafter there is no landlord and tenancy relationship between the institution and the cultivator. A Division Bench of this Court in WP No. 28714 of 1998 dated 19.2.2002 also held that the provisions of A.P. (Andhra Area) Tenancy Act, 1956 have no application to the Endowments Act in view of the judgment of the Supreme Court referred supra. Therefore, the proceedings before the authorities under the Tenancy Act are not maintainable and the proceedings initiated either by the institution or by the cultivator are non-est in law.
7. For the aforesaid reasons I am of the opinion that all the proceedings initiated and orders passed under the Tenancy Act have become non-est in law and the parties are not entitled to enforce the orders passed under the Tenancy Act. Thus all the matters have become infructuous.”
18. I n Tankala Mouliswara Rao and others v. The Assistant Commissioner, Endowments Department, Visakhapatnam and Sri Varaha Lakshmi Narasimha Swamy Vari Devasthanam, Simhachalam, Visakhapatnam District, rep. by its Executive Officer (1 supra), this Court at paragraph 18 held as under:
“17. So far as the contention of the respondents that the O.A. filed before the Endowments Tribunal is not maintainable since the competent civil Court observed that it is open to the applicants to file a petition before the tenancy Court to evict the respondents, is concerned, it is relevant to refer the decision of this Court in Jaladi Seetharamamma v. Sri Ramalingeswara Swamy Temple: 2004 (6) ALD 739 wherein it was held that the provisions of A.P. (Andhra Area) Tenancy Act, 1956 are non-est in law and parties have to work out their remedies under the Endowments Act”.
Therefore this point is also answered against the petitioner.
19. Coming to point No.3, it is to be noted that by virtue of Section 82 of the Act, all the leases in respect of the charitable institutions in our State stood abolished. The amendments made to Endowments Act had also taken away the applicability of Andhra Pradesh (Andhra Area) Tenancy Act to the Endowments Act. In the instant case, the initial period of lease admittedly had come to end in the year 1976 and thereafter the petitioner herein continued in possession without being supported by any valid lease. Having participated in the auction and having emerged as highest bidder in the said auction and having failed to comply with the terms and conditions of the auction and having failed to remit the amount as stipulated in the conditions of auction notification and having allowed the cancellation order passed by the Commissioner to become final, it is absolutely not open for the petitioner to claim any relief from this Court. It is also relevant to note at this juncture that as per the provisions of Section 10 of A.P. (Andhra Area) Tenancy Act, every lease shall be in writing. In the instant case, subsequent to 1976, there was no written lease in favour of the petitioner herein. In view of the above reasons, the petitioner herein is not entitled for protection under Section 15 of the A.P. (Andhra Area) Tenancy Act. Therefore, point No.3 is also answered against the petitioner.
20. Coming to W.P.No.18555 of 2010, the Government of A.P. issued orders vide G.O.Rt.No.296 Revenue (Endts.III) Department dated 7.3.2000 according permission to the Executive Officer, TTD to take over administrative management of the subject temple i.e. Sri Kodanda Rama Swamy Temple, Chandragiri, Chittoor district. It is stated in the affidavit filed on behalf of TTD that despite several communications, the Endowments Department had not been able to handover possession of the temple and the properties. The resolution bearing No.373 dated 22.8.2008 is placed on record by the learned Standing Counsel for TTD, which clearly shows that the TTD passed the said resolution, reiterating the earlier request made to handover subject temple along with properties free of litigation.
21. For the aforesaid reasons, W.P.No.3129 of 2009 is dismissed and W.P.No.18555 of 2010 is allowed directing the Respondents herein to implement the orders passed vide G.O.Rt.No.296 Revenue (Endts-III) Department 7.3.2000. As a sequel, the miscellaneous petitions, if any, shall stand closed. There shall be no order as to costs.
A.V.SESHA SAI, J Date: 11.8.2014
DA/GRK
HON’BLE SRI JUSTICE A.V.SESHA SAI WRIT PETITION Nos.3129/2009 and 18555/2010 11-08-2014 Grk/DA
[1] 2013(2) ALT 41
[2] 2004(6) ALD 739