K. Ramesh vs The Assistant Commissioner
2023 Latest Caselaw 1426 AP

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                                                                        DEV, J
                                                              CMA No.66 of 2023



             THE HON'BLE SRI JUSTICE BATTU DEVANAND

                  Civil Miscellaneous Appeal No.66 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.236 of 2014.

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 02.01.2011 for a period of two years and

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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 31.12.2013

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

he 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 their

ancestors in the year 1950 and subsequently, he succeeded to the same.

They raised constructions by spending huge amounts and he has been

continuing till today with his family by paying the rents regularly. The

respondent has no other source of income for his livelihood. The 2nd

petitioner, under the guise of development, requesting the respondent to

vacate the premises, having allowed his to enjoy the property for more

than seven decades and as such, he 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.

DEV, J CMA No.66 of 2023

5. To substantiate their contentions, on behalf of the petitioners,

the single trustee of the temple, was examined as PW.1 and got marked

Exs.P.1 to P.14. On behalf of the respondent, he himself examined as

RW.1, but no documents were marked on his 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 2nd

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

DEV, J CMA No.66 of 2023

respondents, who are the petitioners before the Tribunal and perused the

material available on record.

9. Learned counsel for the appellant-respondent contends that the

Tribunal erred in determining the respondent as an encroacher, as he has

not vacated the schedule premises and there was no dispute with regard

to possession and enjoyment by the respondent from the time of his

ancestors i.e., from the year 1950. 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 he 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 two 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

DEV, J CMA No.66 of 2023

failed to consider the same. The sum and substance of the contention of

the respondent is that right from the ancestors of the respondent, having

been residing in the schedule premises by constructing the houses by

themselves in the site belongs to the Temple and he 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 02.01.2011 for lease

of the schedule houses for a period of two years and the respondent

became the highest bidder and he paid rent till 31.12.2013. 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, he 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

DEV, J CMA No.66 of 2023

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.

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 10.10 x 7.6 in total 77 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 two years and the respondent

who participated in the auction, became highest bidder and in pursuance

of the same, he took possession of the property and paid rents during

lease period. The lease was expired by 31.12.2013. 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,

DEV, J CMA No.66 of 2023

who was examined as RW.1, categorically admitted during the course of

cross examination that he had participated in the auction conducted by

the Temple and became the highest bidder and also continued to pay

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, he 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 he 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

DEV, J CMA No.66 of 2023

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

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 two 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 2014 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 2011 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

DEV, J CMA No.66 of 2023

construed as an encroacher as contemplated under Section 83 of the Act

30 of 1987.

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

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.236 of

2014 dated 28.11.2022. However, it is made it clear that the

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appellant/respondent shall vacate and deliver the petition schedule

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:15.03.2023.

Note: Furnish CC in two days.

(BO) bss

DEV, J CMA No.66 of 2023

THE HON'BLE SRI JUSTICE BATTU DEVANAND

CMA No.66 of 2023

Date:15.03.2023 bss