THE HON'BLE SRI JUSTICE A.V. SESHA SAI WRIT PETITION No.24662 of 2009 Between:
Mohd. Siddiq PETITIONER AND
1. Government of A.P., rep. by Principal Secretary Endowment Department, Secretariat, Hyderabad, and others.
RESPONDENTS ORDER:
This writ petition, filed under Article 226 of the Constitution of India, challenges the action of the Deputy Commissioner, Endowments Department, Kakinada, East Godavari District-2nd respondent herein, in invoking the provisions of A.P. Charitable and Hindu Religious Institutions and Endowments Act, 1987 (hereinafter called ‘the Act’) and passing the order dated 27.09.2007 in O.A.No.169 of 2005 and consequentially, trying to evict the petitioner from the property bearing D.No.21/616 of Paraspet, Machilipatnam, Krishna District as being illegal, arbitrary and without jurisdiction and contrary to G.O.Rt.No.2047, Revenue (Endowments IV) Department, dated 18.10.2001.
2. Heard Sri C. Raghu, learned counsel for the petitioner, learned Government Pleader for Endowments for respondents 1 and 2 and Sri V.T.M. Prasad, learned Standing Counsel for the 3rd respondent, apart from perusing the material available on record.
3. According to the petitioner, he along with 83 others have been in possession of the land admeasuring Ac.6.20 cents in R.S.No.238 of Paraspet, Machilipatnam, Krishna District belonging to the 3rd respondent-institution and the petitioner claims to be in possession and enjoyment of the property for the last 40 years. It is further stated that his father constructed a house in an extent of 344 sq. yds., and the property is assigned municipal No.21/616 and assessed for collection of municipal tax. It is further averred in the writ affidavit that initially, the name of the father of the petitioner was entered in the municipal records, and subsequently, the petitioner’s name has been entered in the said records, and property tax receipts are being issued in his name. The Government of A.P. issued an order in G.O.Rt.No.2047, Revenue (Endowments IV) Department, dated 18.10.2001 in exercise of the powers conferred under first proviso to Clause (c) of Sub-section (1) of Section 80 of the Act, according permission to the 3rd respondent-institution to sell away the land admeasuring Ac.6.20 cents in Rs.No.238, Ward No.21 (old Ward No.15) situated at Frenchpet, belonging to the 3rd respondent – institution, in favour of the encroachers at the rate of Rs.500/- per sq. yard, and Rs.400/- sq. yard for the remaining site as shown in the annexure appended to the said order otherwise than by public auction. In the Annexure attached to the said Governmental Order, the name of the petitioner finds place at Sl.No.15. Since the petitioner did not pay the said amount as fixed by the Government in G.O.Rt.No.2047, dated 18.10.2001, proceedings under Section 83 of the Act were initiated vide O.A.No.169 of 2005 and the Deputy Commissioner of Endowments Department, Kakinada vide order dated 27.09.2007 directed the respondent/petitioner herein to remove the encroachment made by him over the petition schedule property and to handover the vacant possession to the institution. While pleading ignorance of the order of the Government in G.O.Rt.No.2047, dated 18.10.2001 and the illness of his mother and his penury, and questioning the jurisdiction of the Deputy Commissioner to pass orders dated 27.09.2007 in O.A.No.169 of 2005, the present writ petition has been filed.
3. This Court initially on 13.11.2009 granted order of status quo. Subsequently, the interim order was extended on 16.12.2009. Thereafter, the 3rd respondent-institution filed an application in W.V.M.P.No.3959 of 2009 and this Court while making the interim order absolute on 22.01.2010 passed the following order.
“In the writ petition, the petitioner has questioned the orders passed by the Deputy Commissioner of Endowments Department, Kakinada, dated 27.09.2007, passed in O.A.No.169 of 2005, under Section 83 of the A.P. Charitable and Hindu Religious Institutions and Endowments Act, 1987, for eviction of petitioner from the petition schedule property occupied by him.
There were about 84 encroachments in the land belonging to the 3rd respondent-Temple in R.S.No.238 in Ward No.21, situated at Paraspet of Machilipatnam town. In view of the representations made by the occupants in total extent of Ac.6.22 cents, Government issued orders vide G.O.Rt.No.2047, dated 18.10.2001, for sale of the entire land in favour of encroachers by fixing the rate at Rs.400/- per sq. yard, on the plots, which are not abutting the main road, and Rs.500/- per sq. yard for the plots on the main road. It is not in dispute that out of the 84 encroachers, majority, numbering about 83, have already availed the benefit of G.O.Rt.No.2047, dated 18.10.2001. On the ground that the petitioner has not paid the said amount, proceedings were initiated for his eviction, on the application filed by the Assistant Commissioner of Endowments, Vijayawada.
Though several contentions are advanced by the learned counsel appearing for the parties, it is to be noticed that except the encroachment made by the petitioner, respondents have already regularized all other encroachments, on payment of certain amounts. It is submitted by the learned counsel for petitioner that due to great financial stringency, he could not make payment at that point of time. Calculating at the rate of land at Rs.400/- per square yard in terms of G.O.Rt.No.2047, dated 18.10.2001, the amount payable by the petitioner as on the said date will come to Rs.1,37,600/-. As much as the petitioner is continued to be in possession without payment of said amount, I deem it appropriate to continue the interim orders, dated 13.11.2009, on depositing the said amount of Rs.1,37,600/- along with simple interest at the rate of 9% per annum from the date of orders of the Government i.e., 18th October 2001 till today. The said amount shall be deposited before the 2nd respondent within a period of six weeks from today. The amount so deposited shall be kept in a separate interest bearing account in a Nationalised bank by the 2nd respondent and the same will be subject to the outcome of the writ petition.
The interim order, dated 13.11.2009 is made absolute, subject to the aforesaid condition. It is also made clear that if the amount is not deposited by the petitioner as directed above, it is open for the respondents to implement the orders of eviction.
W.V.M.P. and W.P.M.P. are disposed of accordingly.”
4. During the course of arguments, the learned counsel for the petitioner has placed on record a Demand Draft bearing DD.No.416985, dated 03.03.2010 drawn on Andhra Bank, Kakinada Branch, in favour of the Deputy Commissioner, Endowments, Kakinada and a memo dated 3.03.2010 filed before the Deputy Commissioner of Endowments, Kakinada enclosing the said Demand Draft and a receipt in Rc.No.B2/13027/09, dated 6.05.2010 issued by the Deputy Commissioner of Endowments, Kakinada acknowledging the Demand Draft. The said documents are not disputed by the learned counsel for the respondent-institution nor the learned Government Pleader.
5. In the instant case, there is absolutely no dispute with regard to the factum of regularising the encroachments in favour as many as 84 individuals. It is also the case of the petitioner that pursuant to the said Governmental Order all the persons covered by the said G.O paid the amount except the petitioner, which resulted in initiation of proceedings under Section 83 of the Act. It is also the case of the petitioner that the subject land in the writ petition is situated in the midst of the area covered by the Government land. It is also the case of the petitioner that he is not aware of the impugned G.O as his mother suffered illness during the said period.
6. The only reason obviously for initiating the proceedings under Section 83 of the Act against the petitioner was non-payment of amount as per the Governmental Order. Since the rest of the individuals covered by the said Governmental Order have already been given the benefit, this court is of the considered opinion that the petitioner cannot be discriminated in view of the facts and circumstances of the case. It is also to be noted at this juncture that the petitioner herein paid the entire amount as directed by this Court while making the interim order absolute. Therefore, the 3rd respondent- institution also would not put to any prejudice or loss.
7. For the aforesaid reasons, the writ petition is allowed and the order dated 27.09.2007 passed by the 2nd respondent in O.A.No.169 of 2005 is hereby quashed, and consequently it is declared that the petitioner is entitled for the benefit under G.O.Rt.No.2047, dated 18.10.2001. No order as to costs. As a sequel, miscellaneous petitions, if any, shall stand closed.
JUSTICE A.V. SESHA SAI.
4th July, 2014 Js.