Andhra Pradesh High Court - Amravati
G.Appa Rao, vs The State Of Andhra Pradesh on 12 February, 2021
Bench: R Raghunandan Rao
HON'BLE SRI JUSTICE R. RAGHUNANDAN RAO
W.P.No.22437 of 2020
ORDER:
The petitioner is in possession of 109.30 sq. Yards of land in
Mangalavarapu peta, Rajahmundry, East Godavari District. He constructed
a thatched house and is presently staying in the said house. The 3rd
respondent filed O.A.No.105 of 1992 before the Deputy Commissioner,
Endowment Department, Kakinada, under Section 83 of the Andhra
Pradesh Charitable and Hindu Religious Institutions and Endowments Act,
1987, to evict the petitioner. This O.A. was disposed of by an ex parte
decree on 29.06.2004 directing the petitioner to vacate the property. The
respondents did not take any action on this decree and finally on
19.10.2020, the 3rd respondent issued the impugned notice, demanding
the petitioner to vacate the property failing which action would be taken
for evicting him.
2. The petitioner has now approached this Court against the
said impugned notice on the ground that the said notice is barred by
limitation, inasmuch as, Schedule to Article 136 of the Limitation Act
prescribes limitation of 12 years for execution of any decree from the date
of the said decree. In the alternative, even if schedule to Article 137 of
the Limitation Act, which is residuary entry, would be applied the period
available would only be three years. In such circumstances, the impugned
notice is barred by limitation.
3. The respondents have filed counter affidavit submitting that
the Limitation Act would not apply to the present case as the Endowments
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Act itself is a self contained code which has to be taken to have excluded
the provisions of the Limitation Act.
4. Sri D.V. Sasidhar, learned counsel for the petitioner submits
that a reading of Sections 83 (4) and 83 (5) of the Endowments Act would
make it clear that the order passed under this provision would be a
decree. He further relies on Rule 34 of the Appeal Rules and Rule 26 (iii)
of the Endowments Tribunal Rules to submit that the provisions of the
Code of Civil Procedure would apply and in that view of the matter the
provisions of the Limitation Act are also applicable. In the alternative, he
submits that Section 29(2) of the Limitation Act provides that unless there
is an explicit exclusion of the provisions of the Limitation Act, it would
have to be held that the provisions of the Limitation Act would be
applicable to the Endowments Act also.
5. Sri D.V. Sasidhar, relied upon Rule 26 of Tribunal Rules read
with Section 195 CPC., and on the judgments in Ravi Venkatravamma
v. Sri Venugopal Swamy Temple, Thotlavalluru & Anr.,1;
Penumatsa Narasimha Raju & Ors., v. Andhra Jatiya Vidya
Parishad, Machilipatnam & Ors.2; Fairgrowth Investments Ltd., v.
Custodian3; and P. Radha Bai & Ors., v. P. Ashok Kumar & Ors.,4.
6. Sri K. Madhava Reddy, learned Standing Counsel for the
respondent No.3 submits that the order passed under Section 83 is to be
executed or enforced under Section 84 of the Endowments Act, which
does not provide for any limitation. Sri Madhava Reddy would also
2006 (5) ALT 829
2010 (2) ALD 462
(2004) 11 SCC 472
(2019) 13 SCC 445
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contend that the Endowments Act is a special Act, which is a self
contained code. In such circumstances, the provisions of the Limitation
Act would not be applicable.
7. Sri Madhava Reddy relied upon the judgments of the Hon'ble
Supreme Court in Hukumdev Narain Yadav v. Lalit Narain Mishra5;
Commissioner of Customs and Central Excise v. Hongo India
Private Limited and Anr.,6; and M/s. Patel Brothers v. State of
Assam & Ors.,7.
Consideration Of The Court:
8. Section 29 (2) of the Limitation Act reads as follows:-
"(1) Nothing in this Act, shall affect section 25 of the
Indian Contract Act,1872.
(2) Where any special or local law prescribes for any suit,
appeal or application a period of limitation different from
the period prescribed by the Schedule, the provisions of
section 3 shall apply as if such period were the period
prescribed by the Schedule and for the purpose of
determining any period of limitation prescribed for any sit,
appeal or application by any special or local law, the
provisions contained in section 4 to 24 (inclusive shall
apply only in so far, as and to the extent to which, they
are not expressly excluded by such special or local law."
9. Except for the judgement of a learned Single Judge of this
Court in Ravi Venkataravamma, all the other judgments cited by either
side relate to the question of applicability of Section 4 to Section 24 of the
Limitation Act. None of the aforesaid judgments are on the question of the
period of limitation. They are all on the question of application of either
Section 5 or Section 14 or Section 17 of the Limitation Act.
1974) 2 SCC 133
(2009) 5 SCC 791
(2017) 2 SCC 350
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10. The contention of the Learned standing counsel that the
provisions of the Limitation Act can be excluded not only on the basis of
an explicit exclusion but also on the basis of an implicit exclusion cannot
be disputed, in view of the ratio in the above judgements. However, the
exclusion has to be made out.
11. A learned single judge of this court, while considering the
applicability of the A.P. (Andhra Area) Tenancy Act and the rules made
thereunder in Ravi Venkataravamma (1 supra), had held as follows:
"6. In view of section 29 of the Limitation Act, 1963,
the provisions contained in that Act apply to Special Acts
also, with the exception that in case the Special Act
prescribes a different period of limitation, that period of
limitation, but not the period of limitation prescribed in the
Schedule to the limitation Act, would be the period of
limitation. Since no period of limitation is prescribed by the
Act or Rules, period of limitation for execution of the order
passed under the Act would be governed by Article 136,
because it specifically is made applicable to execution of
decrees or orders (other than a decree granting Mandatory
injunction) passed by a civil Court. The order of eviction
passed by the Special Officer under the provisions of the
Act can be, or should be, treated as an order akin to the
order of the civil Court for the following reasons"
12. There is no period of limitation prescribed for implementing
or executing an order under Section 84 of the Endowments Act, 1987.
Further, Section 143 of the Endowments reads as follows:
"143. Property of charitable or religious
institution or endowment not to vest under the law
of limitation after commencement of this Act. -
Nothing in any law of limitation for the time being in force
shall be deemed to vest in any person the property or
funds of any charitable or religious institution or
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endowment which had not vested in such person or his
predecessor in title before the 30th September, 1951, in
the Andhra Area of the State and the 26th January, 1967 in
the remaining area of the State."
13. This provision does not create a complete bar to the
provisions of the Limitation Act. It only proscribes a limited part of the
effect of the Limitation Act. This clearly implies that the provisions of the
Limitation Act would apply otherwise to the Endowments Act, 1987.
14. In the circumstances, the writ petition is allowed holding
that the provisions of the Limitation Act would be applicable to the
Endowments Act as far as execution of orders under Section 83 of the Act
are concerned, and consequently the impugned notice dated 19.10.2020,
issued by the 3rd respondent demanding the petitioner to vacate the
property in his possession is set aside, leaving it open to the respondents
to initiate such action as may be permissible under law against the
Petitioner. This decision of the Court is restricted to the provisions of
Section 83 and Section 84 of the Endowments Act only. There shall be no
order as to costs.
As a sequel, pending miscellaneous petitions, if any, shall stand
closed.
_________________________
R. RAGHUNANDAN RAO, J.
12th February, 2021
Js.
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W.P.No.22437 of 2020
HON'BLE SRI JUSTICE R. RAGHUNANDAN RAO
W.P.No.22437 of 2020
12th February, 2021
Js.
