Andhra Pradesh High Court - Amravati
Smt.C.Sarala vs The Assistant Commissioner on 15 March, 2023
1
DEV, J
CMA No.67 of 2023
THE HON'BLE SRI JUSTICE BATTU DEVANAND
Civil Miscellaneous Appeal No.67 of 2023
JUDGMENT:
This appeal has been filed under Section 84 of the Andhra Pradesh
Charitable and Hindu Religious Institutions and Endowments Act 30 of
1987 (for short 'Act 30 of 1987'), against the decree and order dated
28.11.2022 passed by the Andhra Pradesh Endowments Tribunal,
Amaravati at Pedakakani, Guntur District (for short 'the Tribunal') in OA
No.636 of 2016.
2. The appellant herein is the respondent and the respondents
herein are the petitioners before the Tribunal. For the sake of
convenience, the parties to this appeal hereinafter referred to as
petitioners and respondent as they arrayed before the Tribunal.
3. Brief facts of the case are that the 2nd petitioner i.e., Sri Kota
Anjaneya Swamy Temple, Fort Road, Kurnool Town & District, is a temple
governed under Section 1 of the Act 30 of 1987. The 2nd petitioner-temple
is the absolute owner of residential vacant land situated around the
temple in Sy.No.35/5/C1A1, in which some small extent of 'kutcha
houses' were constructed as detailed in the schedule for maintenance of
the temple i.e., through the income derived there from. Public auction
was conducted by the temple on 15.11.2012 for a period of three years
DEV, J
CMA No.67 of 2023
and the respondent also participated in the auction and became the
highest bidder. In pursuance of the bid, the respondent took possession of
the property and paid the rents. The said lease was expired by 31.10.2015
and the said lease is not extended further. In spite of lapse of lease
period, the respondent has been continuing in the schedule premises and
she is not vacating the same even after repeated requests and demand
made by the 2nd petitioner. Hence, the 2nd petitioner constrained to file
application for eviction of the respondent.
4. The respondent filed counter-affidavit contending that, initially
the schedule premises is a vacant site and it was allotted to her in the
year 1993. She raised constructions by spending huge amounts and she has
been continuing till today with her family by paying the rents regularly.
The respondent has no other source of income for her livelihood. The 2 nd
petitioner, under the guise of development, requesting the respondent to
vacate the premises, having allowed her to enjoy the property for more
than seven decades and as such, she contends that requirement of the
schedule property itself is illegal. It is further stated that without issuing
any notice, straightaway filed the application before the Tribunal by the
2nd petitioner, which is illegal and prays to dismiss the petition.
5. To substantiate their contentions, on behalf of the petitioners,
the single trustee of the temple, was examined as PW.1 and got marked
DEV, J
CMA No.67 of 2023
Exs.P.1 to P.14. On behalf of the respondent, she herself examined as
RW.1, but no documents were marked on her behalf.
6. The Tribunal after hearing both parties in detail and on careful
perusal of oral and documentary evidence available on record, allowed
the application on 28.11.2022, directing the respondent to vacate and
deliver the vacant possession of the petition schedule property to the 2 nd
petitioner-temple within one month and further directed to pay an
amount of Rs.500/- per month towards damages for use and occupation of
the temple property from the date of decree, till the date of delivery of
the property, to the 2nd petitioner-temple. The Tribunal also directed the
Station House Officer concern, to provide necessary police assistance to
implement the order, on request of the petitioners, in the event of failure
of respondent in complying with the order and decree.
7. Aggrieved by the said order and decree of the Tribunal, the
respondent filed the present appeal.
8. Heard Sri T. Ramakoteswara Rao, learned counsel for the
appellant, who is the respondent before the Tribunal, and Sri G. Ramana
Rao, learned standing counsel for Endowments representing the
respondents, who are the petitioners before the Tribunal and perused the
material available on record.
DEV, J
CMA No.67 of 2023
9. Learned counsel for the appellant-respondent contends that the
Tribunal erred in determining the respondent as an encroacher, as she has
not vacated the schedule premises and there was no dispute with regard
to possession and enjoyment by the respondent since 1993. He further
submits that the Tribunal ought to have seen that the respondent's family
raised constructions by spending huge amounts and having been enjoying
the same by paying the lease amounts and the same was suppressed by
the petitioners. He further contends that the respondent specifically
denied the claim of the Temple over the schedule property as an
encroacher in the schedule property and not liable to pay any damages,
as she has been paying the rents regularly to the Temple. He further
contends that the Tribunal erred in ordering eviction without giving any
preferential rights over the shop's possession and enjoyment, for their
plea of development by simply following the decisions, which are not
applicable to the facts of the case. He further contends that the Tribunal
erred in allowing the OA without consideration of the possession and
enjoyment, which is the main issue and unimpeachable record for more
than three decades over the property. He further contends that the
petitioners, without issuing any notice for eviction immediately after the
lease period, filed the OA and the Tribunal failed to consider the same.
The sum and substance of the contention of the respondent is that right
from the year 1993, she has been residing in the schedule premises by
DEV, J
CMA No.67 of 2023
constructing the houses by themselves in the site belongs to the Temple
and she has been paying the rents without any default and that they are
poor persons and they have no other source of livelihood and hence, the
petition filed for their eviction is not maintainable.
10. Learned standing counsel for the Temple contends that the 2nd
petitioner-temple is the absolute owner of the petition schedule
property, which is part of residential vacant land around the temple
premises and the temple had constructed independent kutcha houses in
small extents as detailed in the schedule of corresponding batch matters
for the sake of getting maintenance of the Temple. He further contends
that public auction was conducted by the Temple on 15.11.2012 for lease
of the schedule houses for a period of three years and the respondent
became the highest bidder and she paid rent till 31.10.2015. He further
contends that even after expiry of the lease period, in spite of several
requests and demands, the respondent did not vacate the premises and as
such, she has to be constructed as an encroacher as defined under Section
83 of the Act 30 of 1987 and accordingly, seeking eviction of the
respondent. He further contends that the Tribunal has rightly allowed the
application filed by the Temple, after considering the contentions of both
the parties and on perusal of the material available on record and as
such, the decree and order of the Tribunal is in accordance with law,
needs no interference by this Court.
DEV, J
CMA No.67 of 2023
11. Having heard the submissions of the respective counsel and on
perusal of the material available on record, it appears, the petition
schedule property is a small kutcha house situated in Sy.No.35/5C1A1 to
an extent of 11 x 29 in total 319 sq. ft. situated at Sri Anjaneya Swamy
temple premises, Chidambara Rao Street, Fort Road, Kurnool Town &
District. The 2nd petitioner-temple is governed under Section 1 of the Act
30 of 1987 and the temple is the absolute owner of the residential vacant
land situated around the temple in which some small extent of kutcha
houses were constructed for maintenance of the temple. The temple
conducted public auction for a period of three years and the respondent
who participated in the auction, became highest bidder and in pursuance
of the same, she took possession of the property and paid rents during
lease period. The lease was expired by 31.10.2015. It is also appears that
after the expiry of the lease period, the respondent is continuing in the
premises without vacating the same in spite of several requests and
demands made by the Temple.
12. Admittedly, the ownership of the Temple over the schedule
land was never denied and disputed by the respondent. The respondent,
who was examined as RW.1, categorically admitted during the course of
cross examination that she had participated in the auction conducted by
the Temple and became the highest bidder and also continued to pay
DEV, J
CMA No.67 of 2023
rents even after expiry of the lease. RW.1 also admitted during cross-
examination that even after expiry of the lease under Ex.P.1, she has
been continuing as a tenant and paying the rents. Ex.P.6, which is
undertaking letter given by RW.1 along with other lease holders of the
temple, proves that she along with others are continuing in their
respective schedule premises, which is a part and parcel in the total
extent of land in Sy.No.35/5C1A1, belongs to the Temple.
13. The another contention raised by the respondent is that no
notice was issued by the Temple before filing of the application before
the Tribunal. But during the cross-examination, RW.1 admitted about the
issuance of notice under Ex.P.13 prior to filing of OA before the Tribunal.
14. In view of the above facts, now it has to be considered,
whether the findings of the Tribunal that the respondent is an encroacher
in the schedule land or not?
15. The Tribunal below relying on the judgment of this Court in
'Joint Commissioner of Endowments Department, A.P., Hyderabad vs. Shaik
Meera Saheb' [AIR 1977 AP 100 (DB)] and the decision of the Hon'ble
Supreme Court in 'Hindustan Petroleum Corporation Ltd., vs Khwaja
Asadullah Baig' [1996(2) ALD (SC) 2589], held that the respondent comes
under the ambit of tenant at sufferance alone and thereby an encroacher
as contemplated under Section 83 of the Act 30 of 1987. This Court could
DEV, J
CMA No.67 of 2023
find any infirmity or illegality in the findings of the Tribunal on this
aspect. As and when the respondent entered into an agreement of lease
for a period of three years and after completion of the lease period, when
the lease was not extended, it is their obligation to vacate the schedule
property, but without vacating the same, the respondent continued there
without any authority.
16. Though, the petitioners filed OA in the year 2016 before the
Tribunal, the same was disposed of only in the year 2022 and as on date,
the respondent is continuing in the schedule property. Mere payment of
rent as fixed in the year 2012 at the rate of Rs.500/- per month, it would
not confer any right to continue further in the schedule property.
Moreover, the petitioners by marking Exs.P.7 and P.8 to substantiate their
contention that to renovate the temple and to make new constructions
for the development of the temple, they got approved the plan from the
municipal authorities and the Committee of C.G.F. have granted funds
from the C.G.F. to make construction of the temple. Though the
respondent is paying the rents even after expiry of the lease period and
the 2nd petitioner is receiving the same, the respondent shall be
construed as an encroacher as contemplated under Section 83 of the Act
30 of 1987.
DEV, J
CMA No.67 of 2023
17. Further, as the petitioners are no more interested to continue
the respondent in the schedule premises in view of the fact of proposed
development for which approved plan was already obtained and C.G.F.
funds are granted for that purpose, in the considered opinion of this
Court, the decree and order passed by the Tribunal is in accordance with
law. As the respondent continued even after expiry of the lease period,
the Tribunal awarded a sum of Rs.500/- per month towards damages for
use and occupation of the schedule property and directed the respondent
to pay the same from the date of decree till the date of delivery of the
property to the 2nd petitioner and the said finding is also needs no
interference by this Court, in view of the fact that the respondent is
continuing in the schedule premises even after expiry of the lease period.
18. In view of the above, in the considered opinion of this Court,
the Tribunal has considered all the factual and legal aspects and passed
the reasoned order and interference of this Court in the said decree and
order is not warranted and the civil miscellaneous appeal is liable to be
dismissed.
19. Accordingly, the civil miscellaneous appeal is dismissed
confirming the decree and order of the Tribunal passed in OA No.636 of
2016 dated 28.11.2022. However, it is made it clear that the
appellant/respondent shall vacate and deliver the petition schedule
DEV, J
CMA No.67 of 2023
property to the 2nd petitioner-temple, within one month from the date of
receipt of a copy of this judgment.
20. There shall be no order as to costs.
As a sequel, miscellaneous petitions, if any pending in this appeal,
shall stand closed.
_____________________
JUSTICE BATTU DEVANAND
Date: .03.2023.
Note: Furnish CC in two days.
(BO)
bss
DEV, J
CMA No.67 of 2023
THE HON'BLE SRI JUSTICE BATTU DEVANAND
CMA No.67 of 2023
Date: .03.2023
bss
