M Venkatapathi Naidu, Chittoor ... vs The A.P.Endowments Tribunal, ...
2022 Latest Caselaw 5154 AP

  IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

                                 ***

W.P.No.25176 of 2017 Between:

M. Venkatapathi Naidu, S/o. late Narappa Naidu, Aged about 70 years, Occupation: Business, R/o. D.No.22-690, Chittoor-Puttoor Road, Kattamanchi M.N.N. Nursery Gardens, Chittoor, Chittoor District.

... Petitioner

And

$ 1. The Andhra Pradesh Endowments Tribunal, Pedakakani village and Mandal, Amaravati, Guntur District-522 509, Rep: by its Chairman.

2. Sri Swamy Hathiramjee Mutt, Tirupati, Rep. by its Mahanti Sri H.H. Arjundossjivaru, Holding office at No.122, Gandhi Road, Tirupati, Chittoor District.

... Respondents

Date of Judgment pronounced on : 16-08-2022

HON'BLE SRI JUSTICE R. RAGHUNANDAN RAO

1. Whether Reporters of Local newspapers : Yes/No May be allowed to see the judgments?

2. Whether the copies of judgment may be marked : Yes/No

to Law Reporters/Journals:

3. Whether the Lordship wishes to see the fair copy : Yes/No Of the Judgment?

RRR,J W.P.No.25176 of 2017

*IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

* HON'BLE SRI JUSTICE R. RAGHUNANDAN RAO

+ W.P.No.25176 of 2017

% Dated: 16-08-2022

M. Venkatapathi Naidu, S/o. late Narappa Naidu, Aged about 70 years, Occupation: Business, R/o. D.No.22-690, Chittoor-Puttoor Road, Kattamanchi M.N.N. Nursery Gardens, Chittoor, Chittoor District.

... Petitioner

And

$ 1. The Andhra Pradesh Endowments Tribunal, Pedakakani village and Mandal, Amaravati, Guntur District-522 509, Rep: by its Chairman.

2. Sri Swamy Hathiramjee Mutt, Tirupati, Rep. by its Mahanti Sri H.H. Arjundossjivaru, Holding office at No.122, Gandhi Road, Tirupati, Chittoor District.

... Respondents

! Counsel for petitioner : Dr. M. Suri Babu

^Counsel for Respondent No. 1: G.P. for Endowments

^Counsel for Respondent No.2 : V. Venu Gopala Rao, Sr.Counsel.

<GIST :

>HEAD NOTE:

? Cases referred:

RRR,J W.P.No.25176 of 2017

THE HON'BLE SRI JUSTICE R.RAGHUNANDAN RAO

WRIT PETITION No.25176 of 2017

ORDER:-

The petitioner herein claims ownership and possession

of Ac.3.80 cents of land in Sy.No.396 and Ac.4.62 cents of

land in Sy.No.435 of Kattamanchi Revenue Village, Chittoor

District. This land is said to have been purchased from the

2nd respondent, by way of a deed of sale dated 29.10.1982,

registered as document No.7208 of 1982, registered with the

Sub-Registrar, Chittoor.

2. The petitioner traces the title of this land in the

following manner.

3. The 2nd respondent, who was the owner of the

aforesaid land admeasuring Ac.8.42 cents had leased out this

land to one M. Pachiappa Mudaliar, by way of a public auction

held on 10.09.1971, on an annual rent of Rs.1700/-, for a

period of six years. This lease also obtained the approval of the

Commissioner, Endowments Department. As M. Pachiappa

Mudaliar had defaulted in payment of the lease amounts,

O.S.No.344 of 1975 was filed by the 2nd respondent, before the

District Munsiff Court, Chittoor for recovery of the lease

amount and for possession of the property. While, the said

suit was pending, M. Pachiappa Mudaliar inducted the

petitioner into possession of the said property. Thereafter, the

petitioner entered into a fresh lease with the 2nd respondent,

for a period of six years, from 19.12.1979 to 18.12.1985 on an

RRR,J W.P.No.25176 of 2017

annual lease of Rs.4,525/-. This was approved by the

Commissioner, Endowments vide proceedings in

L.Dis.No.A2.A2/18920/80-2 dated 22.04.1980. Thereafter, the

petitioner had also paid an amount of Rs.17,427/- to the 2nd

respondent towards the arrears of lease payable by M.

Pachiappa Mudaliar. Thereafter, this payment was ratified by

the Commissioner, Endowments in proceedings vide

ROC.No.A2/18920/80-1, dated 29.04.1980. Permission was

also accorded to withdraw O.S.No.344 of 1975 and the same

was also withdrawn.

4. The petitioner expressed his willingness to the 2nd

respondent to purchase the property at the prevailing market

rate. Thereupon, the Assistant Commissioner, who was the

then person in charge of the Mutt, had addressed a letter to

the Commissioner, Endowments Department vide

ROC.No.226/1982-A, dated 25.03.1982 recommending the

sale of the property under Section 74(1) of the Andhra Pradesh

Charitable and Hindu Religious and Endowments Act, 1966 at

the rate of Rs.15,000/- per acre. This proposal was approved

by the Commissioner, Endowments Department vide

proceedings in ROC.No.M2-24149/82, dated 04.05.1982 and

the said approval was also published in the Andhra Pradesh

Gazette and also in Andhra Prabha daily newspaper on

08.06.1982. On the basis of this approval, the 2nd respondent-

Mutt sold the land to the petitioner following directions given

in G.O.Rt.No.1427 Revenue (Endowments III) Department

RRR,J W.P.No.25176 of 2017

dated 24.08.1982. It also appears that there were further

proceedings of the Commissioner, Endowments in

ROC.No.M2/24149/82 dated 09.09.1982 and orders of the

erstwhile High Court of A. P. dated 14.10.1982 in

W.P.M.P.No.10901 of 1982 in W.P.No.3621 of 1982.

5. As these lands had been kept in the prohibitory

list under Section 22(a)(i)(c) to the Registration Act, the

petitioner along with two other persons had filed W.P.No.9903

of 2015 for deleting the said lands from the prohibitory list.

This writ petition came to be disposed of along with a batch of

cases with certain directions. The petitioner then approached

the Commissioner, Endowments for No objection Certificate

for alienation of the said land. As no orders were being passed

on this representation, the petitioner filed Contempt Case

No.2337 of 2016 after which, the Commissioner, Endowments

issued proceedings in Memo No.M1/26631/2016 dated

03.04.2017 which had been filed by the 2nd respondent.

6. At this stage, the 2nd respondent had filed

O.A.NO.394 of 2017 before the Andhra Pradesh Endowments

Tribunal for a declaration that the land, purchased by the

petitioner, belongs to the 2nd respondent and for a

consequential direction of delivery of vacant possession of the

property, to the 2nd respondent along with payment of

damages.

RRR,J W.P.No.25176 of 2017

7. The contentions raised by the 2nd respondent in

the above O.A.No.394 of 2017 was that the sale of land to the

petitioner was done in collusion with the Assistant

Commissioner, Endowments Department, who had sold away

the property to the petitioner against the interest of the 2nd

respondent-Mutt and consequently, the said sale requires to

be disregarded on the ground of fraud and collusion.

8. The petitioner has approached this Court for a

Writ of Prohibition requiring this Court to declare that the

Endowments Tribunal, Pedda Kakani has no jurisdiction to

entertain O.A.No.394 of 2017.

9. The petitioner had also filed W.P.No.25177 of 2017

which had been allowed by this Court.

10. Dr. M. Suri Babu learned counsel appearing for

the petitioner would submit that the sale of the property had

been done after complying with all the requirements of the

provisions of the Act, 1966 and as such, there cannot be any

claim for disregarding the deed of sale executed in favour of

the petitioner. He would submit that while challenging the sale

of the property to the petitioner, the 2nd respondent has not

taken any steps for impleading the party who executed the

deed and as such, the application is bad for non-joinder. He

would also submit that the 2nd respondent cannot move an

application at this belated stage and after such delay as the

deed of sale was executed in the year 1982 while the present

RRR,J W.P.No.25176 of 2017

O.A has been filed in the year 2017 which is about 35 years

after the execution of the deed of sale. He would further

submit that the prayer in the application itself is misconceived

as no relief has been sought for setting aside the deed of sale,

without which, the question of declaring the property to be

Charitable and Religious Endowments or for delivery of

possession would not arise. He would further submit that

such a prayer could not have been made before the

Endowment tribunal as the relief of setting aside a sale deed

would available only in a properly constituted suit, before a

civil court, under section 34 of the Specific Relief Act.

11. Dr. Majji Suri Babu, relying upon the Judgment of

a learned Single Judge of this Court dated 24.12.2019 in

W.P.No.17713 of 2017 in the case of Anam Charitable Trust

vs Assistant Commissioner would contend that once

endowment property has been conveyed, by way of a deed of

sale, the same would cease to be endowment property and

consequently, the Endowments Tribunal would have no

jurisdiction in relation to the said land.

12. Sri V. Venu Gopala Rao learned Senior Counsel,

appearing for the 2nd respondent submitted that the sale of the

property by the person in charge is not permissible in view of

the various provisions of the Endowments Act. He submits

that only the Matadhipathi of the Mutt can execute a deed of

sale or alienation of Mutt property. He relied upon the

provisions of Section 2(17), Section 6(d) and Section 47 of the

RRR,J W.P.No.25176 of 2017

Endowments Act, 1988 to contend that a sale by any person,

except the Matadhipathi, is not binding on the Mutt. It is

further contended that as the sale was not done with proper

authority, the provisions of Section 80 of the Endowments Act

would apply, nullifying and invalidating the said unauthorized

sale. He would submit that Section 87 of the Endowments Act

empowers the tribunal to look into the question of whether the

property in question continues to be Endowment property or

not.

13. Sri V.Venu Gopal Rao, learned Senior Counsel for

the 2nd respondent answering the contention of the petitioner

that there was no prayer for setting aside the deed of sale,

contends that no such prayer is required as the deed of sale

itself is void and nonest in law and consequently, does not

require to be challenged. He relied upon the Judgment of the

erstwhile High Court of Judicature at Hyderabad for the State

of Telangana and the State of Andhra Pradesh reported in

2017 (3) ALD 260.

CONSIDERATION OF THE COURT:

14. The petitioner seeks the issuance of a Writ of

Prohibition in the present writ petition. The scope of such a

writ has been set out by the Hon'ble Supreme Court in

S. Govinda Menon v. Union of India., in the following terms:

5. The jurisdiction for grant of a writ of prohibition is primarily

supervisory and the object of that writ is to restrain courts or inferior

tribunals from exercising a jurisdiction which they do not possess at all or

RRR,J W.P.No.25176 of 2017

else to prevent them from exceeding the limits of their jurisdiction. In other

words, the object is to confine courts or tribunals of inferior or limited

jurisdiction within their bounds. It is well settled that the writ of prohibition

lies not only for excess of jurisdiction or for absence of jurisdiction but the

writ also lies in a case of departure from the rules of natural justice

(See Halsbury's Laws of England, 3rd Edn., Vol. 11, p. 114). It was held for

instance by the Court of Appeal in King v. North [1927 (1) KB 491] that as

the order of the Judge of the Consistory Court of July 24, 1925 was made

without giving the vicar an opportunity of being heard in his defence, the

order was made in violation of the principles of natural justice and was

therefore an order made without jurisdiction and the writ of prohibition ought

to issue. But the writ does not lie to correct the course, practice or

procedure of an inferior tribunal, or a wrong decision on the merits of the

proceedings. It is also well established that a writ of prohibition cannot be

issued to a court or an inferior tribunal for an error of law unless the error

makes it go outside its jurisdiction (See Regina v. Comptroller General of

Patents and Design [1953 (2) WLR 760, 765] ) and Parisienne Basket

Shoes Proprietary Ltd. v. Whyte [59 CLR 369] . A clear distinction must

therefore be maintained between want of jurisdiction and the manner in

which it is exercised. If there is want of jurisdiction then the matter is coram

non judice and a writ of prohibition will lie to the court or interior tribunal

forbidding it to continue proceedings therein in excess of its jurisdiction.

15. The Hon'ble Supreme Court had taken the view

that a Writ of Prohibition would be available only where there

is excess of jurisdiction/absence of jurisdiction and where

there is a departure from rule of natural justice. However, the

Hon'ble Supreme Court expanded the scope of Writ of

RRR,J W.P.No.25176 of 2017

Prohibition in Thirumala Tirupati Devasthanams v.

Thallapaka Ananthacharyulu., in the following manner:

14. On the basis of the authorities it is clear that the Supreme Court

and the High Courts have power to issue writs, including a writ of

prohibition. A writ of prohibition is normally issued only when the inferior

court or tribunal (a) proceeds to act without or in excess of jurisdiction, (b)

proceeds to act in violation of the rules of natural justice, (c) proceeds to act

under law which is itself ultra vires or unconstitutional, or (d) proceeds to

act in contravention of fundamental rights. The principles, which govern the

exercise of such power, must be strictly observed. A writ of prohibition must

be issued only in rarest of rare cases. Judicial discipline of the highest

order has to be exercised whilst issuing such writs. It must be remembered

that the writ jurisdiction is original jurisdiction distinct from appellate

jurisdiction. An appeal cannot be allowed to be disguised in the form of a

writ. In other words, this power cannot be allowed to be used "as a cloak of

an appeal in disguise". Lax use of such a power would impair the dignity

and integrity of the subordinate court and could also lead to chaotic

consequences. It would undermine the confidence of the subordinate court.

It was not even argued that there was total lack of jurisdiction in the civil

court. It could not be denied that the civil court, before which the suit was

pending, had powers to decide on the maintainability of the suit and to

decide on questions of its jurisdiction. The civil court had jurisdiction to

decide whether the suit was barred by Section 14 of the said Act or on the

principles of res judicata/estoppel. Thus unless there was some very

cogent or strong reason the High Court should not have prevented the

court of competent jurisdiction from deciding these questions. In other

words, the High Court should not usurp the jurisdiction of the civil court to

decide these questions. In the impugned judgment no reason, much less a

cogent or strong reason, has been given as to why the civil court could not

RRR,J W.P.No.25176 of 2017

be allowed to decide these questions. The impugned judgment does not

state that the civil court had either proceeded to act without or in excess of

jurisdiction or that it had acted in violation of the rules of natural justice or

that it had proceeded to act under law which was ultra vires or

unconstitutional or proceeded to act in contravention of the fundamental

rights. The impugned judgment does not indicate as to why the High Court

did not consider it expedient to allow the civil court to decide on questions

of maintainability of the suit or its own jurisdiction. The impugned judgment

does not indicate why the civil court be not allowed to decide whether the

suit was barred by virtue of Section 14 of the said Act or on the principles of

res judicata/estoppel. To be remembered that no fundamental right is being

violated when a court of competent jurisdiction is deciding, rightly or

wrongly, matters before it.

16. The Hon'ble Supreme Court, in the above

judgement, had added two more grounds, for issuance of a

Writ of Prohibition, namely, where the Inferior Court or

Tribunal proceeds to act under a law which is itself ultra vires

or unconstitutional or where the Inferior Court or Tribunal

proceeds to act in contravention of fundamental rights. It

must also be noted that the Hon'ble Supreme Court after

expanding the scope of a Writ of Prohibition had cautioned

that a Writ of Prohibition can be issued only in the rarest of

the rare cases. A petition filed for issuance of a Writ of

Prohibition, has to be construed strictly. The consideration of

the Court would be restricted to the extent of verifying whether

all or any of the four grounds mentioned above arise in the

case and nothing more. The question of whether the

proceeding before the lower Tribunal or Court would succeed

RRR,J W.P.No.25176 of 2017

or not is alien to a proceeding for issuance of a Writ of

Prohibition. A Writ of Prohibition cannot be considered as if it

is an application under Order VII Rule 11 of the Code of Civil

Procedure.

17. The first three grounds of the Endowments

Tribunal acting under a law which is ultra vires or

unconstitutional or acting in contravention of fundamental

rights or violation of principles of natural justice do not arise

in the present case.

18. In the present case, the petitioner seeks the

issuance of a Writ of Prohibition on the grounds of limitation,

non joinder of parties, non-inclusion of necessary relief and

lack of jurisdiction.

19. The question of limitation and laches is an issue

which can be dealt with by the Endowments Tribunal and the

said issue does not relate to the jurisdiction of the Tribunal.

The second question of non-joinder of parties is also a matter

which can be looked into by the Tribunal and does not raise

any issue of lack of jurisdiction.

20. The question of non-inclusion of the relief of

setting aside the date of sale and the question of whether the

said deed of sale takes the land out of the purview of the

Andhra Pradesh Charitable and Hindu Religious Institutions

and Endowments Act, 1966 (for short 'The Act, 1966') and the

RRR,J W.P.No.25176 of 2017

Endowments Tribunal would have to be considered in the

present case.

21. Section 87 of the Act, 1966 is grants jurisdiction to

the Endowments tribunal to decide the following disputes and

matters.

87. Power of Endowments Tribunal to decide certain

disputes and matters:-

(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

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) Whether 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 of endowment or the

RRR,J W.P.No.25176 of 2017

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)        ..................

      (3)        ...................

      (4)        ...................

      (5)        ....................

22. Dr.Majji Suri Babu, learned counsel for the

petitioner, contends that in view of the deed of sale executed

in favour of the petitioner dated 20.10.1982, the land had

ceased to be Endowment land and consequently, the

Endowments Tribunal would not have jurisdiction over the

said land. It is also contended that the Endowments Tribunal

does not have the power to set aside the deed of sale as, such

a power is vested only with the Civil Court of competent

jurisdiction under Section 34 of the Specific Relief Act. He

relies upon the Judgment of the learned Single Judge of this

Court in W.P.No.17713 of 2017. Countering this proposition,

Sri V. Venu Gopala Rao the learned Senior Counsel, appearing

for the Mutt would contend that the deed of sale is null and

void as it violates Section 80 and other provisions of the Act.

He contends that once a document is null and void, there is

no necessity for seeking a declaration that the said deed of

sale is null and void or for setting aside the said deed of sale.

RRR,J W.P.No.25176 of 2017

He would submit that the Judgment of the learned Single

Judge relied upon by the petitioner, would not be applicable to

the present case and as the said Judgment arose in the

peculiar circumstances of the case in which the Judgment had

been rendered.

23. The question whether the relief of setting aside a

null and void document is required or whether a party can

merely seek a declaration of right and title over a property,

without seeking to set aside a null and void document,

executed in relation to such a property has been considered by

the Courts. The erstwhile High Court of Judicature at

Hyderabad for the State of Telangana and the State of Andhra

Pradesh in the case reported in 2017 (3) ALD 260 had held

that where a document is null and void, there is no need for

obtaining a declaration against the said document or for

seeking the relief of setting aside the said document.

24. The Judgment of the learned Single Judge, relied

upon by the petitioner, is a case where endowment property

had been alienated, by way of a deed of sale, to a Charitable

Trust, after obtaining all necessary clearances under the

provisions of the Act. Thereafter, the said alienation was

challenged on the ground that the endowment property had

been alienated to the Charitable Trust, for setting up an

Educational Institution and since the Charitable Trust was not

setting up an Educational Institution and intends to use the

said land for other purposes, the same was not permissible

RRR,J W.P.No.25176 of 2017

and that the deed of sale should be set aside. This contention

was negatived by the learned Single Judge on the ground that

the deed of sale was an absolute deed of sale and any

condition of future use of the land, sought to be relied upon by

the authorities, would not be permissible as the provisions of

the Transfer of Property Act clearly stipulate that any

conditions attached to an alienation of property are not

enforceable and the said conditions would fail. In the said

circumstances, the learned Single Judge had taken the view

that subsequent non compliance of any alleged conditions

would not render the deed of sale invalid or null and void. In

that view of the matter, the learned Judge had taken the view

that the land had ceased to be endowment land and

consequently, the Tribunal would not have jurisdiction over

the property. This judgement does not lay down a general

proposition of law that every transaction of alienation of

Endowment property would move the said property out of the

purview of the Endowment Act. Such a generalization of the

judgement would run contrary to the provisions of Section 80

of the Endowments Act, 1987.

25. In the present case, the contention is that the very

sale of the land under the deed of sale dated 29.10.1982 is

violative of the provisions of the Act, 1966 rendering the said

document null and void. This is a question which would have

to be answered by the Tribunal. If the Tribunal were to hold

that the said deed of sale is null and void, the contention of Sri

RRR,J W.P.No.25176 of 2017

V. Venu Gopala Rao, the learned Senior Counsel appearing for

the Mutt that there is no requirement for cancellation of the

deed of sale would have to be upheld. However, if the Tribunal

were to come to the conclusion that the application for

declaration filed by the Mutt is hit by limitation or by any

lacuna in the framing of the application or joinder of parties or

on the ground that all the necessary permissions had been

obtained and there is no violation of the provisions of the Act,

1966, the application would have to fail.

26. In such circumstances, this court cannot hold that

the Endowment tribunal is devoid of jurisdiction and

consequently this petition has to fail and is accordingly

dismissed.

27. This court has not gone into the merits of the case or

the objections raised by the petitioner. All these issues and all

such other issues that may be raised by the parties are left

open for a decision by the Endowment Tribunal , which shall

dispose of O.A. No. 394 of 2017 before it within a period of 4

months from the date of receipt of this order.

Miscellaneous petitions, pending if any, shall stand

closed.

_____________________________ R. RAGHUNANDAN RAO, J.

Date : 16-08-2022 RJS

RRR,J W.P.No.25176 of 2017

THE HON'BLE SRI JUSTICE R.RAGHUNANDAN RAO

WRIT PETITION No.25176 of 2017

Date : 16.08.2022

RJS