1 APHC010369342024 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3310] THURSDAY ,THE TENTH DAY OF APRIL TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE DR JUSTICE K MANMADHA RAO WRIT PETITION NO: 18742/2024 Between: BellamkondaPenchalaiah and Others ...PETITIONER(S) AND The State Of AP and Others ...RESPONDENT(S) Counsel for the Petitioner(S): 1. RAM BABU DEVAVARAPU Counsel for the Respondent(S): 1. MEKAPOTHULA SRINIVASA RAO SC FOR ENDOWMENTS PALNADU PRAKASAM AND SPSR NELLORE 2. GP FOR ENDOWMENTS The Court made the following: ORDER : This writ petition is filed under Article 226 of the Constitution of India for the following relief: “…..to issue writ or order or direction more so in the nature of Writ of Certiorari a Calling in for the records pertaining to the Order passed by Respondent No 2 dated 27.07.2023 in O.A.No.1455 of 2010 (Old O A No 35 of 2010) in allowing the Application preferred by the Respondent No 3 and 4 and directing the Petitioners to vacate and surrender vacant possession of the property admeasuring Ac 3.32 Cts out of AC 4.81 Cts in Sy No 1004 situated at VariKandrika near Narayana Medical College Nellore Rural Mandal SPSR Nellore District to the Respondent No 4 and quash the same as per se illegal whimsical dehors jurisdiction nonest in the eye of law preposterous manifestly arbitrary disproportionate exfacie erroneous defective and irrational unreasonable capricious null and void dehors and in excess of jurisdiction fundamentally ultra vires the powers vested in Respondent No 2 and suffers from patent lack 2 of jurisdiction besides being opposed to the doctrine of Forum NonConveniensNemoDebetEsseJudex in PropriaCausaActus Curiae NeminemGravabit and in flagrant contravention of Fundamental Rights enshrined in the Constitution of India and the provisions of the Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act 1987 and Rules made thereunder and to pass…” 2. Brief facts of the case are that the Petitioners are in absolute ownership and peaceful possession of the property admeasuring Ac.3.32 Cts out of AC.4.81 Cts in Sy.No.1004 situated at VariKandrika, near Narayana Medical College, Nellore Rural Mandal, SPSR Nellore District, jointly and separately. Initially, more than 100 years ago, the entire village concerning the property aforesaid was born with two families, namely, Alakunta family and Bellamkonda family; on invitation and permission from Sri IndupuriPattabhiRamireddy's family, who were the landlords, to cultivate their lands, on maktha/koru basus and they alone permitted these two families to reside by laying huts in the said dry lands, which were not useful for any agricultural purpose. In fact, there was no such village, called as KoriviVariKandrika, as alleged to have been existed other than 44 houses in possession of the Petitioners and recently new houses have come up as government colony. As far as the subject temple is concerned, it was established at Kondlapudi village by Sri IndupuriPattabhirami Reddy and also donated the lands to the temple for its maintenance situated in various places Including the land of an extent of Ac. 33.02 cents situated at KorivivarlKandrika and the saidtemple and its properties are in the possession and management of the founders alone. It is further stated that said Pattabhi Rami Reddy, who alone constructed the Temple and donated the lands, permitted the forefathers of the two families around 100 years back i.e., Alakunta family and Bellamkonda family to reside in the said property as it 3 was not useful for agricultural purpose and as they were cultivating the said lands since long back and as such those two families came to that area and constructed the thatched houses and residing therein. Till it was given to those Ryots, the legal heirs and son-in-laws of those two families alone used to reside therein, even at present and at no point of time, the same were objected by either by such two families or by Pattabhi Rami Reddy. All the Petitioners are residing in the respective extents of lands as owners, but not as encroachers, because it had been in possession and enjoyment of their ancestors since around 100 years and right from regime of their ancestors, the petition schedule property has been in Petitioners' possession and enjoyment i.e., including their predecessors/ancestors since more than 100 years and the government also laid the cement roads in their village and school was also a constructed more than 70 years ago and the government implemented all the schemes including water schemes by digging bore Wels and water tanks etc. As such, the Petitioners are in absolute ownership and uninterrupted peaceful possession over the property since time immemorial without any interference whatsoever. from any quarter. As such, said action warrants the interference/ indulgence from this Hon'bleCourt.Being aggrieved by the action of Respondents, the present writ petition came to be filed. 3. The counter affidavit has been filed by the respondent no.4. While denying all the allegations made in the petition, inter alia, contended that, the Revenue Records like Village Account No.3 i.e..Adangal / Pahani shows that the temple is the pattadar and the Village Settlement Register i.e., 10(1) 4 Adangal also shows that the title of the temple.. It is stated that the Tahsildar of Nellore Rural Mandal, issued pattadar passbook in the name of this respondent temple and the Revenue Divisional Officer, Nellore, issued Title deed for the subject land in the name of the temple with patta No.655 and with Unique No. 090225090655 dated 04-04-2012, along with other lands owned by the temple.07. It is further stated that out of the said extent of Ac.4-81 cents, there occurred encroachments in an extent of Ac.3-32 cents and the temple is getting the Income for the remaining land by way of makthas regularly which land is being leased out from time to time in public auction. It is stated that the petitioners are the absolute owners of the subject mentioned property of Ac.3-32 cents is utter false and it is specifically denied by this respondent. It is false to mention that the subject land had been under the possession and enjoyment of the petitioners and their ancestors for about 100 years is specifically denied.It is stated that this respondent temple filed Eviction petition U/s.85 of the Endowments Act 30/87 prior to the constitution of the Endowments Tribunal before the then jurisdictional Authority i.e., the Deputy Commissioner, Endowments department, Guntur, seeking to pass eviction orders for removal of group encroachments and the same was numbered as O.A.No.35/2010. Soon after the constitution of the A.P., Endowments Tribunal at Hyderabad on 25-05-2010, the said eviction O.A. was made over to the Tribunal and which was re-numbered as O.A.No.1455/2010.It is stated that, as per the un-amended Sec.85 of the Endowments Act 30/87, the jurisdictional Authority to pass eviction orders is 5 the Deputy Commissioner, Endowments department, Guntur, and hence there is no chance or legal obligation on the part of the temple to show the Deputy Commissioner as a party to the said eviction petition, since the Deputy Commissioner himself is the presiding officer to continue the judicial proceedings till the constitution of A.P., Endowments Tribunal physically as mentioned above, even though the act was amended conferring the said jurisdiction to the Endowments Tribunal as per Amended Act 33/2007 with effect from 03-01-2008. As per the said Amended Act 33/2007, the jurisdiction was conferred on the Endowments Tribunal in the place of Deputy Commissioner, Endowments. As per Rule-2(2)(ii) of the A.P., Endowments Tribunal Rules 2010, issued through G.O.Ms.No.180, Revenue (Endowments- 1)department, dated 28-02-2011, the applicant means the Deputy Commissioner, in respect of application filed U/s.85 along with the concerned institution, Represented by its Executive Authority shall be the 2nd applicant. It is further stated in the counter that, on coming into force of the said rules, the A.P., Endowments Tribunal, returned the said O.A., for due compliance of the same in accordance with the Amended Sec.85 and also the rules. After due compliance of the same, the said O.A., was represented before the A.P., Endowments Tribunal, and hence it is false to mention in para No.3.3 that the respondent No.3 without visiting the property, filed a false and incorrect report to the effect that the petitioners have encroached the property. It is further stated that, the petitioners did not filed any evidence to show that they are the absolute owners of the subject mentioned property except the 6 Electricity bills, house hold card, Property tax demand notice, which will not confirm the title of the petitioners herein. It is pertinent to note that the petitioners herein even made representation dated 14-03-2013 during the pendency of the eviction petition which were marked as Ex-P12 in the eviction orders, admitting the title of the temple and requesting to issue patta in their favour for the land in their respective occupation, since they have got no other properties etc. As per the un-amended Sec.85 of the Endowments Act 30/87, the jurisdictional Authority to pass eviction orders is the Deputy Commissioner, Endowments department. 4. Heard Sri A.Sri Krishna SaiBhargav, learned counsel representing Sri RamBabuDevavarpu, learned counsel appearing for the petitioners and learned Government Pleader for Endowments appearing for the respondents. 5. On hearing, learned counsel for the petitioners while reiterating the averments made in the petition, argued that, the order passed by the 2nd respondent is erroneous, contrary to law. The 2nd respondent erred in allowing the petition directing the petitioners herein to vacate and surrender vacant possession of the petition schedule property along with payment of Rs.5,000/- per month to permanent structures and Rs.2,000/- per month to temporary constructions for use and occupation without any acceptable evidence on record. He further submits that the Hon’ble Tribunal erred in holding that the petitioners did not come up with any right or title to stay in the property through they primarily denied the disputed the title of the respondents over the petition schedule property. He further submits that the 2ndrespondent 7 miserably erred in ignoring the absence of cause of action in preferring application by the 4th respondent. The 2nd respondent ought to have considered that the petitioners were put to prejudice and suffer irreparable loss and hardship. He further submits that the Hon'ble Tribunal ought to have held that the Petitioners do no fall within the ambit of A.P. Endowment Act as encroachers. He further submits that theHon'ble Tribunal blatantly erred in shifting the onus probandi on the Petitioners by relying upon S.43, 46 and 85 of the A.P. Hindu Charitable and Religious Institutions and Endowments Act, 1987 without any prima facie material on record and despite absence of specific denial of the fact raised by the Petitioners that they were put into possession in the Petition Schedule Property prior to the cut-off date prescribed by the Act. He further submits that the Hon'ble Tribunal ought not to have relied upon the provisions of Act.30 of 1987 rather than A.P. Endowment Act, 1966 due to the sole reason that the Petitioners have taken a specific stand that they were in possession of the Petition Schedule Property since more than 100 years ago. In any event, due to non-framing of proper issues, the Order and Decree of the Hon'ble Tribunal is liable to be remanded for consideration afresh. 6. Per contra, learned Government Pleader appearing for the respondents while denying the contents made by the petitioners, contended that, the petitioners herein have not produced any evidence to prove their contention that they have been in possession and enjoyment from their ancestors time, except the above mentioned Electricity bills, House hold card, 8 etc of recent times. He has relied upon a judgment of this Court in TuttaChinnaiah and others V/s. the Executive Officer of Sri Varaha Lakshmi Narasimhaswamyvaridevastanam1, wherein it was clearly held that to perfect title by adverse possession of the temple land as per Madras HRC Act 2/1927 as Amended Act 11/1934, the person claiming adverse possession for such temple land, must show that he had been in possession of the temple land prior to 60 years of Act 2/1927 i.e., before 1874. As such the petitioners cannot and shall not contend that they have perfected their title by adverse possession.In view of the same, if the petitioners have got any grievance regarding the said entry, they have to produce necessary evidence to rebut the same, but the petitioners themselves mentioned in their counter in the O.A., and also in the grounds mentioned in this writ petition, that the entire land previously belongs to Sri IndupuriPattabhirami Reddy's family, who are the landlords and who invited the ancestors of the petitioners to reside in the land and to do cultivation in the lands held by the said family. Hence even according to them, the land does not belong to the petitioners and further they have admitted that the said family constructed the 4th respondent temple and donated the lands in favour of the temple. In view of the aforementioned facts there are no merits in the writ petition and the Eviction order passed in the O.Α.Νο.1455/2010, dated 27-07-2023 is perfect in all respects. Therefore, learned Government Pleader opposed for grant of any relief in this petition and prayed to dismiss the writ petition. 12016 (3)ALT 120 (DB) 9 7. Perused the material on record. 8. On a perusal of the material on record, it is observed that, the petitioners raised the structures in the subject land i.e., sheet roofed houses and also thatched houses and the rest of the land left for their use and occupation and thereby, the temple authorities are suffering very huge financial loss, because of such unauthorized occupation of the respondents and that too without paying any amount towards damages for use and occupation. In view of the factthat the 2nd respondent temple deprived of such valuable land, which would fetch a good income, the very performance of NityaNivedyaDhoopaDeeparadhana has become onerous for the temple. It is further observed that, in spite of oral demands made by and on behalf of the 2nd respondent’s temple, the petitioners failed to remove their encroachments and on coming to know about the said encroachments, the 3rd respondent i.e., the Deputy Commissioner of Endowments, Guntur visited the petition schedule land, but the encroachers didn't remove the encroachments and the exercise that were made them became futile. 9. This Court further observed that, the O.A filed by the 4th respondent temple, as sole petitioner U/s 85 on 25-05-2010 before the Deputy Commissioner of Endowments, Guntur and after Formation of the Tribunal, when the Hon'ble Tribunal found about the defect in filing the said OA U/S 85, because there was no report from the Deputy Commissioner concerned, the same was returned on 19-03-2011 directing the Deputy Commissioner concerned, to peruse the record and so also to inspect the petition schedule 10 land personally, to have the reason to believe and to know about the common object of the respondents. Thereupon, the Deputy Commissioner concerned, visited the petition schedule land and submitted his report dated 16-04-2011 stating that he had inspected the site and encroachments along with Inspector of Endowments, Nellore and also the Executive Officer of the subject temple and there are 36 houses in the said encroachment and most of them raised permanent buildings. In the said report, he also certified about the illegal and highhanded encroachment by all the petitioners herein without having any right or authority and thereby prayed for handing over of the possession. 10. Considering the submissions of both the learned counsels and on perusing the material on record, it appears that the Tribunal has decided the matter without having proper material documents on record and the Tribunal is mainly relying on the Deputy Commissioner report which is not available on record, which is crucial document and at the same time the same was not marked as Exhibit while disposing the matter. 11. In view of the facts and circumstances, this this Court deems fit to dispose of the present writ petition while setting aside the impugned order, and also inclined to remand back the matter to the Tribunal for fresh consideration. 12. Accordingly, the Writ Petition is disposed of setting aside the impugned order dated 27.07.2023 passed in O.A.No.1455 of 2010 (Old O.A No.35 of 2010) by the A.P. Endowments Tribunal, Pedakakani, Amaravati. 11 Further, the Tribunal is directed to examine afresh with report of the Deputy Commissioner giving opportunity to the petitioners and the proper documents and dispose of the matter in accordance with law, as expeditiously, as possible, within a period of three (03) months from the date of receipt of a copy of this order. There shall be no order as to costs. 13. As a sequel, all the pending miscellaneous applications shall stand closed. _________________________ DR. K. MANMADHA RAO, J. Date :10-04-2025 Gvl HON’BLE DR. JUSTICE K. MANMADHA RAO 12 WRIT PETITON No.18742 of 2024 Date : 10. 04.2025 Gvl