APHC010988222017 IN THE HIGH COURT OF ANDHRA PRADESH (Special Original Jurisdiction) FRIDAY ,THE TENTH DAY OF JANUARY TWO THOUSAND AND TWENTY FIVE THE HONOURABLE DR JUSTICE K MANMADHA RAO WRIT PETITION NO: 42037/2017 Between: D.rudra Kumar Reddy The State Of Andhra Pradesh and Others Counsel for the Petitioner: 1. T V S PRABHAKARA RAO Counsel for the Respondent(S): 1. GP FOR ENDOWMENTS (AP) 2. MEKAPOTHULA SRINIVASA RAO SC FOR PRAKASAM AND SPSR NELLORE The Court made the following: COMMON ORDER:- W.P.No. 42037 of 2017 India, seeking the following relief: “…..to issue a Writ, Order or direction more particularly one in the nature of Writ of Mandamus declaring the action of the respondents in taking steps to disposes the petitioner from the property of an extent of Ac. 0.48 Ankanams IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) FRIDAY ,THE TENTH DAY OF JANUARY TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE DR JUSTICE K MANMADHA RAO WRIT PETITION NO: 42037/2017 and 33475/2016 ...PETITIONER AND The State Of Andhra Pradesh and Others ...RESPONDENT(S) Counsel for the Petitioner: T V S PRABHAKARA RAO Counsel for the Respondent(S): GP FOR ENDOWMENTS (AP) MEKAPOTHULA SRINIVASA RAO SC FOR ENDOWMENTS PALNADU PRAKASAM AND SPSR NELLORE The Court made the following: W.P.No. 42037 of 2017 is filed under Article 226 of the Constitution of India, seeking the following relief: “…..to issue a Writ, Order or direction more particularly one in the nature of Mandamus declaring the action of the respondents in taking steps to disposes the petitioner from the property of an extent of Ac. 0.48 Ankanams IN THE HIGH COURT OF ANDHRA PRADESH [3310] THE HONOURABLE DR JUSTICE K MANMADHA RAO ...PETITIONER ...RESPONDENT(S) ENDOWMENTS PALNADU is filed under Article 226 of the Constitution of “…..to issue a Writ, Order or direction more particularly one in the nature of Mandamus declaring the action of the respondents in taking steps to disposes the petitioner from the property of an extent of Ac. 0.48 Ankanams of vacant site in Block No. 15 with Municipal House No. 15/214 of Nellore Town as illegal, arbitrary and violative of principles of natural justice, consequently directing the respondents not to create any third party rights pending disposal of the writ petition and pass such other orders....” W.P.No. 33475 of 2016 is filed under Article 226 of the Constitution of India, seeking the following relief: “…..to issue a Writ, Order or direction more particularly one in the nature of Writ of Mandamus declaring the action of the respondents in issuing the notices in STRST/0103/2016-18 to 23 dated 09.09.2016 purportedly under amended Rule 15 of G.O.Ms.No.426 dated 09.11.2015 of The Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments immovable properties and other right other than Agricultural leases and Licenses Rules 2003 calling upon the petitioner to vacant and hand over possession of shop Nos 18, 20 to 23 and upstairs of 20 to 23 bearing door no.15/5/332A, 332B, 15/333, 334, 335 total extent of 34 ankanams situated at Nellore, SPSR Nellore District as illegal and in contravention of the 1987 Act, without authority of law and without jurisdiction and consequently direct the respondents to desist from taking any action against the petitioners in respect of the aforesaid property and pass such other orders....” 2. Heard Mr. T.V.S. Prabhakara Rao and V. Siva Prasad Reddy, learned counsel for the petitioners; Mr. P. Srinivas, learned Assistant Government Pleader, Endowments and Mr. M. Srinivasa Rao, learned Standing Counsel for the respondents. 3. Since the facts and issue involved in all the Writ Petitions, I find it expedient to decide these matters by a Common Order. 4. Learned counsel for the petitioner in 42037 of 2017 would contend that the petitioner and his wife have been in possession and enjoyment of Ac. 0.48 Ankanams of vacant site in Block No.15 with Municipal House No. 15/214 of Nellore Town having purchased under the same under a Registered Sale Deed dated 22.05.1996 and 24.05.1996 from the legal representatives of one Mr. Bandi Chinnappa. The respondents all of a sudden erected a board in the subject land that the land belongs to the 4th respondent without issuing any notice, which is highly illegal and arbitrary. Hence, the present writ petition came to be filed. 5. Learned counsel for the petitioners in W.P.No.33475 of 2016 would contend that the petitioners are the possessor of the shop Nos. 18, 20 to 23 and upstairs of 20 to 23 bearing D.No.15/5/332A, 332B, 15/333, 334, 335 and doing business therein on lease. At present one Mr. G. Gopal Krishna was absolute owner and possessor of 191 ankanams out of which he granted a lease of 34 ankanams to the petitioners. While the matter stood thus, the issue with regard to validity of the original lease deed dated 25.09.1917 was decided in O.P.No.53 of 1922 by the District Judge, Nellore, after the 1920 came into force. The 1987 Act does not apply to petitioners lease. Under the provisions of Section 76, 82(1), 82(2), 82(3) and 82(4) of the 1987 Act, there is no mandate to annul the existing lease. By virtue of section 82(4) of the 1987 Act, the petitioners are entitled to continue as sub-lessees. The perpetual lease of the petitioners are not granted and there are no proceedings adjudicating the validity of the said lease after 1987 Act came into force, without there being any adjudication regarding the validity of the perpetual lease under 221/1918 dated 25.09.2018, the respondents cannot brand them as encroachers. The lease is recognized under Section 105 of the Transfer of Property Act, 1882. Therefore, the impugned notice dated 09.09.2016 issued by the 2nd respondent is illegal and further the respondents are taking steps to dispossess the petitioners from the subject property. Hence, the present writ petition came to be filed. 6. The 4th respondent filed counter-affidavit in W.P.No.42037 of 2017 denying all material averments made in the writ affidavit and mainly contended that the temple is admitted into Endowment Department under Section 6(A) of the A.P.Charitable and Hindu Religious Institution and Endowments Act 30/1987 (in short ‘the Endowments Act’). The petitioners have not purchased the subject land from the legal heirs of Mr. Bandi Chinnappa, the alleged sale deed is not valid as the said vendors have not acquired any ownership rights over the land. So far as possession of the subject land is concerned, the 4th respondent has followed the due procedure by issuing notice as per rule 15 of the amended rules framed under G.O.Ms.No.426, against which the petitioners have preferred W.P.No.33475 of 2016 and this Court passed interim order not to evict the petitioners without following due procedure. Basing on the interim order, a fresh notice was issued dated 19.12.2016 to the petitioners. The petitioners have also submitted explanation, which was not satisfactory and the 4th respondent has taken possession by following due procedure under Panchanama on 28.12.2016. The petitioners have not raised any objection so far. The petitioners have kept quite all the while and after lapse of one year the petitioners filed these writ petitions. Hence, requested to dismiss the same. 7. Perused the record. 8. Section 87 of The Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act, 1987 (in short ‘the Endowments Act”), which reproduced hereunder: 87. [ Power of Endowments Tribunal to decide certain disputes and matters. [Substituted by Act No. 33 of 2007, dated 11.12.2007.] (1)The Endowments Tribunal having jurisdiction shall have the power, after giving notice in the prescribed manner to the person concerned, to enquire into and decide any dispute as to the question. (a)whether an institution or endowment is a charitable institution or endowment; (b)whether an institution or endowment is a religious institution or endowment; (c)whether any property is an endowment, if so whether it is a charitable endowment or a religious endowment; (d)whether any property is a specific endowment; (e)whether any person is entitled by custom or otherwise to any honor, 'emoluments or perquisites in any charitable or religious institution or endowment and what the established usage of such institution or endowment is in regard to any other matter; (f)whether any institution or endowment is wholly or partly of a secular or religious character and whether any property is given wholly or partly for secular or religious uses; or (g)where any property or money has been given for the support of an institution or endowment which is partly of a secular character and partly of a religious character or the performance of any service or charity connected with such institution or endowment or the performance of a charity which is partly of a secular character and partly of a religious character or where any property or money given is appropriated partly to secular uses and partly to religious uses, as to what portion of such property or money shall be allocated to secular or religious uses; (h)whether a person is a founder or a member from the family of the founder of an Institution or Endowment. (2)The Endowments Tribunal may, pending its decision under subsection (1), pass such order as it deems fit for the administration of the property or custody of the money belonging to the institution or endowment. (3)The Endowments Tribunal may while recording its decision under subsection (1) and pending implementation of such decision, pass such interim order as it may deem fit for safeguarding the interest of the institution or endowment and for preventing damage to or loss or misappropriation or criminal breach of trust in respect of the properties or moneys belonging to or in the possession of the institution or endowment. (4)The presumption in respect of matters covered by Clauses (a), (b), (c), (d) and (e) in sub-section (1) is that the institution or the endowment is a public one and that the burden of proof in all such cases shall lie on the person claiming the institution or the endowment to be private or the property or money to be other than that of a religious endowment or specific endowment, as the case may be. (5)Notwithstanding anything contained in the above sub sections the Deputy Commissioner having jurisdiction shall continue to enquire into and decide the disputes referred to in sub-section (1) until the constitution of the Endowments Tribunal.] 9. Section 88 of The Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act, 1987 the Right of appeal against the decision of the Endowments Tribunal under Section 87. [Substituted by Act No. 33 of 2007, dated 11.12.2007.] “Any person aggrieved by the decision of the Endowments Tribunal under Section 87 and Section 119 may, within ninety days from the date of receipt of the decision prefer an appeal to the High Court.” 10. As per Section 87 and 88 of the ‘Endowments Act’, it is very clear that the Endowments Tribunal having jurisdiction shall have the power, after giving notice in the prescribed manner to the person concerned, to enquire into and decide any dispute as to the question. Such exercise could not be done in the instant case. The learned Government Pleader for the respondents vehemently argued that the petitioner is an encroacher over the subject property. Therefore, it is contended that the writ petition is not maintainable under Article 226 of the Constitution. 11. The scope of Article 226 of the Constitution of India is reproduced hereunder: (1) Notwithstanding anything in article 32, every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose. (2) The power conferred by clause (1) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories. (3) Where any party against whom an interim order, whether by way of injunction or stay or in any other manner, is made on, or in any proceedings relating to, a petition under clause (1), without- (a) furnishing to such party copies of such petition and all documents in support of the plea for such interim order; and (b) giving such party an opportunity of being heard, makes an application to the High Court for the vacation of such order and furnishes a copy of such application to the party in whose favour such order has been made or the counsel of such party, the High Court shall dispose of the application within a period of two weeks from the date on which it is received or from the date on which the copy of such application is so furnished, whichever is later, or where the High Court is closed on the last day of that period, before the expiry of the next day afterwards on which the High Court is open; and if the application is not so disposed of, the interim order shall, on the expiry of that period, or, as the case may be, the expiry of the said next day, stand vacated. (4) The power conferred on a High Court by this article shall not be in derogation of the power conferred on the Supreme Court by clause (2) of article 32.” 12. Section 83 of the Endowments Act deals with eviction of encroachment, which reproduced hereunder: “83. Encroachment of land, building, or any property belonging to a charitable or religious institution or endowment and the eviction of encroacher:- (1) Notwithstanding anything to the contrary contained in this Act or any other law for the time being in force, the encroachment of land, building, or any property of a charitable or religious institution or endowment is prohibited. (2) The Executive Officer of the Charitable or Religious Institution or Endowment or the Assistant Commissioner or any authority higher in rank thereof, shall, by notice, require the encroacher to remove the encroachment as hereinafter provided: Provided that the encroacher shall be entitled to submit reply/ explanation to such notice within one week from the date of receipt of such notice, which shall be duly considered and appropriate orders thereon shall be passed:- (a) Either withdrawing the notice issued and dropping further proceedings; or (b) Affirming the notice and duly stipulating the time within which such encroachment shall be removed. (3) If the encroacher fails to remove the encroachment within such stipulated period, the authority who issued the notice shall remove the encroachment with police assistance, if necessary and recover the cost of removal from the encroacher. (4) For the purpose of securing police assistance, the authority concerned shall approach the jurisdictional Superintendent of Police/ Commissioner of Police who shall thereupon provide such police assistance as is deemed necessary for the removal of encroachment. (5) Any act of encroachment including the attempt to encroach shall be a cognizable offence, non-bailable and triable as a warrant case, in accordance with the provisions of Code of Criminal Procedure, 1973, punishable with imprisonment for a term which shall not be less than three years but which may extend to eight years and with fine which may extend to Rupees one lakh. ...............” 13. And also 84 of the Endowments Act provides mode of eviction on failure of removal of the encroachments as directed by the Endowments Tribunal. [Substituted by Act No. 33 of 2007, dated 11.12.2007.] (1)Where within the period specified in the order under sub-section (4) of Section 83, the encroacher has not removed the encroachment and has not vacated the land, building or space, the Assistant Commissioner having jurisdiction over the sub-division may remove the encroachment and obtain possession of the land, building or space, encroached upon, taking such police assistance as may be necessary. Any Police Officer whose help is required for this purpose shall be required to render the necessary help to the Assistant Commissioner. (2)Nothing in sub-section (1) shall prevent any person aggrieved by any order of the Endowments Tribunal under sub-section (4) of Section 83 from preferring an appeal before the High Court to establish that the Charitable and religious Institution or Endowment has no title to the land, building or space: Provided that no appeal shall be preferred after expiry of ninety days from the date of receipt of the order under sub-section (4) of Section 83: Provided further that no such appeal shall be preferred by a person who is let in to the possession of land, building or space, or who is a lessee, licensee or mortgagee of Institution or Endowment.] 14. As could be seen from the material available on record and also considering the submissions of both the counsel, it appears that there is a serious dispute involved in between the petitioner and 4th respondent with regard to title over the subject land. The petitioner has not chosen to approach Endowments Tribunal for redressal of his grievance. Since the 4th respondent is claiming the subject land as their land, the issue falls within the jurisdiction of the Endowments Tribunal as per the ‘Endowments Act’. An appeal lies against the Award passed by the ‘Endowments Tribunal’ under Article 226 of the Constitution of India. Therefore, the relief sought by the petitioner in the instant case is not comes under purview of under Article 226 of the Constitution of India, therefore, this writ petition is not maintainable. 15. Therefore, it is suffice it, to issue a direction to the petitioner to approach learned Endowments Tribunal for redressal of his grievance in accordance with law, within four (04) weeks from the date of receipt of a copy of this order. On such submission, the learned Endowments Tribunal is directed to protect the interest of the petitioner till disposal of Interlocutory Application filed by the petitioners in O.A. The respondents are directed not to take any coercive steps against the petitioner in respect of the subject land till then. 16. With the above direction, this Writ Petitions are disposed of. There shall be no order as to costs. 17. The miscellaneous applications pending, if any, shall also stand closed. ______________________________ DR. JUSTICE K. MANMADHA RAO Date: 10.01.2025 KK/Gvl