Sri Venugopala Swamy Vari Temple. ... vs The Director, Appeals, O/O Chief ...
2023 Latest Caselaw 2900 AP

                                      1




      HON'BLE SRI JUSTICE D.V.S.S.SOMAYAJULU
               WRIT PETITION No.27747 of 2007

ORDER:

This Writ Petition is filed for the following relief:

"....to issue rule nisi calling for the records of the impugned order by issuing any appropriate writ order or direction more especially in the nature of writ of Certiorari for quashing the impugned order issued by the 1st respondent herein CCLA's Pro.No.VI/336/07, dt.31.08.2007 and to suspend the operation of the impugned order issued by the 1st respondent herein CCLA's Pro.No.VI/336/07, dt.31.08.2007, pending disposal of the writ petition and pass such other and further order or orders as this Hon'ble Court may deem fit and proper in the circumstances of the case."

2) This Court has heard Sri K.A.Narasimham,

learned counsel for the petitioner and Sri N. Subba Rao,

learned senior counsel appearing for the respondents.

3) This is a case with a long and chequered history.

The challenge in the present writ petition is to an order dated

31.08.2007 passed by the 1st respondent. The dispute

pertains to land an extent of Ac.5-29 cents in Repalle and

Peteru villages.

4) As per Sri Narasimham, learned counsel for the

petitioner, the petitioner-temple is the owner of the land and

pattas were granted in 1959 and 1961 for the said land in

favour of the temple. The same was surprisingly cancelled

by orders dated 18.10.1972 based upon an appeal filed in

1972. It is pointed out that it is the Inam Deputy Tahsildar,

who granted pattas and therefore the cancellation of the

same after more than a decade is incorrect and contrary to

law. He also submits that in the order dated 18.10.1972

fresh enquiry was directed to be conducted and this was

ultimately disposed by the order dated 05.12.2006. It is

argued that this order, dated 05.12.2006, is a "review" of the

patta granted earlier without a power of review being

available under the statute. It is also submitted that the

order was passed without considering the evidence -

documentary and otherwise. He also points out that the

record shows the names of Attaluri Veeresu, Gummalapudi

Maya Brahmam along with some entries pertaining to

Niraghatam family. Therefore, it is submitted that it is the

only service inam of land belonging to the temple for singing

in the pagoda and that it is not a grant in favour of

Niraghatam family. He also relies upon the registers filed

and other documents to argue that the petitioner before the

primary authority (the current 4th respondent) did not have

title to the property and that on the basis of some scattered

documents, which are not cogent evidence, the order was

passed on 05.12.2006. He also submits that the subsequent

orders passed on a challenge against this order, dated

30.05.2007, by the Revenue Divisional Officer, Tenali, in an

Inam Appeal and by the impugned order vide CCLA's

procegs.No.V1/336/2007, dated 31.08.2007 contained the

very same mistake of both law and fact. The same errors

continued as per the learned counsel. He contends that the

orders suffered from inherent defects and also there is a

clear failure to appreciate the evidence and the documents in

the proper perspective. He also states that once the Inam

Deputy Tahsildar has granted patta the same should have

been cancelled before further orders are passed. He relies

upon the following case law for an order:

i) Boppudi Punnaiah and others v Sri Lakshmi Narasimhaswamy varu and others1;

    1963 (2) ALT 365





          ii)      Sri       Malleswara                 Swami    Vari     Temple,
                   Dharmavaram v Juttiga and Others2;
          iii)     Paleru Venkateswarlu and Others v Pothina
                   Chenchaiah and others3;
          iv)      Sri     Kodandaramaswamy                     Vari    Temple   v

Commissioner of Survey, Settlements & Land Records, Hyderabad and Others4;

          v)       Narayan Bhagwantrao Gosavi Balajiwale v
                   Gopal Vinayak Gosavi and Ors.,5
          vi)      P.V. Bheemsena Rao v Sirigiri Pedda Yella
                   Reddi and Ors.6
          vii)     Kalabharati                Advertising          v      Hemant
                   Vimalanth Narichania7

          5)     In reply, learned Senior Counsel Sri N. Subba Rao

appearing for the 4th respondent argues the matter at length.

He submits that the petitioner has sought a writ of certiorari.

According to the learned counsel in a certiorari the petitioner

has argued the matter like it is regular appeal. It is his

contention that in certiorari jurisdiction the Court exercises

a limited supervisory jurisdiction only and not an appellate

jurisdiction. He also points out that there is no error

W.A.No.132 of 1968 (06.02.1970), High Court of A.P.

1992 (3) ALT 25

2007 (1) ALT 761

AIR 1960 SC 100

AIR 1961 SC 1350

(2010) 9 SCC 437

apparent from the record for this Court to issue a certiorari.

At every stage the writ petitioner was represented by a

counsel and all the three orders, starting from the order

dated 05.12.2006, are reasoned orders containing a

discussion on the merits of the matter before coming to the

conclusion. He points out that all the orders are passed after

discussing the evidence available. He also relies upon the

fact that the Inam Fair Register, which is considered to be a

document of primary importance, has been considered before

the authority came to the conclusion that the names of the

individual were recorded therein. He also points out that the

existence of the Niraghatam family's name from 1918

onwards is already noticed. Lastly, he submits that in the

primary order passed framed three questions and came to a

conclusion in each of the three questions separately.

Therefore, learned Senior Counsel submits that the order in

question, which is passed after reconsidering the

submissions in appeal and in revision, is a reasoned order.

He points out that many issues that are now raised have not

been raised during the course of the submission and

therefore they cannot be agitated now. He relies upon the

following case law:

         i)      Kakkera Peda Audeyya and Ors v Revenue

                 Divisional Officer and Ors.,8;

         ii)     Surya Dev Rai v Ram Chander Rai and Ors9;

         iii)    Shewpujanrai            Indrasanrai      Ltd   v   The

                 Collector of Customs and Ors.10

COURT:

         6)     This Court after considering all the submissions

made notices that ryotwari pattas were granted in favour of

Venugopala Swamy temple in 1959 to 1961. The extents are

as follows:

         T.D.No. Sy.No.           Extent       Place        Proc. Date
           344    1-1B             0-54      Peteru (V)     19.11.1960
           344    11-1             1-35       Repalle       29.04.1961
                  38-1             0-92
                  38-2             2-48

         7)     It is seen that the pattas pertaining to the four

extents of land were issued on 19.11.1960 and 29.04.1961.

These were cancelled by an order dated 18.10.1972. A copy

of the order dated 18.10.1972 was filed along with additional

AIR 1972 AP 329

AIR 2003 SC 3044=Manu/SC/0559/2003.

AIR 1958 SC 845 = Manu/SC/0056/1958

documents on 06.03.2023. This is not strictly in dispute. A

reading of the order reveals that both the parties were heard

before the order dated 18.10.1972 was passed by the Sub-

Collector, Tenali. The delay in filing the said appeal was

condoned by the Sub-Collector relying upon a Division

Bench judgment in Kakkera Peda Audeyya case (8 supra).

Relying upon section 7 (1) of the Inam Abolition Act 1956,

the Division Bench held that the notices should be issued to

interested persons and then there should be a determination

of the persons entitled to the patta and then the grant of

patta should be there. These steps or stages are noticed in

the order of 1972. The Division Bench came to a conclusion

that since the Tahsildar did not issue notice to the parties,

who are interested viz., the parties in possession, the appeal

was allowed and the patta granted in that case was quashed.

Relying upon this decision of the Division Bench, the Sub-

Collector passed the order. He held that the appellant was

not put on notice before the order was passed granting a

patta. It is also noticed by the Sub-Collector that a speaking

order had to be passed which is not there in the present

case. Therefore, he condoned the delay and allowed the

appeal and remanded the matter to the Tahsildar, Repalle to

conduct a regular enquiry. In the opinion of this Court this

is an order passed upon a judgment of a Division Bench and

in the opinion of this Court the Sub-Collector rightly followed

the said order and directed a de novo enquiry into the

matter.

8) It is important to note that the writ petitioner did

not file any documentary evidence to show that the

procedure contemplated under section 7 and set out by the

Division Bench has been actually followed justifying the

grant of the initial pattas in temple's favour.

9) Apart from this, this Court is exercising

jurisdiction under certiorari. The judgment reported in

Surya Dev Rai case (9 supra) is relied upon by the learned

senior counsel. The following paragraphs of this judgment

are as follows:

"10. Article 226 of the Constitution of India preserves to the High Court the power to issue writ of certiorari amongst others. The principles on which the writ of certiorari is issued are well settled. It would suffice for our purpose to quote from the seven-Judge Bench decision of this Court in Hari Vishnu Kamath v. Ahmad Ishaque [AIR 1955 SC 233 : (1955) 1 SCR 1104] . The four propositions laid down therein were summarized by

the Constitution Bench in Custodian of Evacuee Property v. Khan Saheb Abdul Shukoor [AIR 1961 SC 1087 : (1961) 3 SCR 855] as under: (AIR p. 1094, para 15) "[T]he High Court was not justified in looking into the order of 2-12-1952, as an appellate court, though it would be justified in scrutinizing that order as if it was brought before it under Article 226 of the Constitution for issue of a writ of certiorari. The limit of the jurisdiction of the High Court in issuing writs of certiorari was considered by this Court in Hari Vishnu Kamath v.

Ahmad Ishaque [AIR 1955 SC 233 : (1955) 1 SCR 1104] and the following four propositions were laid down -- (1) Certiorari will be issued for correcting errors of jurisdiction;

(2) Certiorari will also be issued when the court or tribunal acts illegally in the exercise of its undoubted jurisdiction, as when it decides without giving an opportunity to the parties to be heard, or violates the principles of natural justice;

(3) The court issuing a writ of certiorari acts in exercise of a supervisory and not appellate jurisdiction. One consequence of this is that the court will not review findings of fact reached by the inferior court or tribunal, even if they be erroneous;

(4) An error in the decision or determination itself may also be amenable to a writ of certiorari if it is a manifest error apparent on the face of the proceedings, e.g., when it is based on clear ignorance or disregard of the provisions of law. In other words, it is a patent error which can be corrected by certiorari but not a mere wrong decision."

11. In the initial years the Supreme Court was not inclined to depart from the traditional role of certiorari

jurisdiction and consistent with the historical background felt itself bound by such procedural technicalities as were well known to the English Judges. In later years the Supreme Court has relaxed the procedural and technical rigours, yet the broad and fundamental principles governing the exercise of jurisdiction have not been given a go-by.

xxx xxx xxx

19. Thus, there is no manner of doubt that the orders and proceedings of a judicial court subordinate to the High Court are amenable to writ jurisdiction of the High Court under Article 226 of the Constitution.

20. Authority in abundance is available for the proposition that an error apparent on the face of record can be corrected by certiorari. The broad working rule for determining what is a patent error or an error apparent on the face of the record was well set out in Satyanarayan Laxminarayan Hegde v. Mallikarjun Bhavanappa Tirumale [AIR 1960 SC 137 : (1960) 1 SCR 890] . It was held that the alleged error should be self- evident. An error which needs to be established by lengthy and complicated arguments or an error in a long- drawn process of reasoning on points where there may conceivably be two opinions cannot be called a patent error. In a writ of certiorari the High Court may quash the proceedings of the tribunal, authority or court but may not substitute its own findings or directions in lieu of the one given in the proceedings forming the subject- matter of certiorari."

Against this legal backdrop this Writ is being

analysed.

10) Coming to the order dated 05.12.2006, this Court

notices that the 4th respondent is the petitioner. Her father-

in-law has filed an appeal. It is clearly mentioned in the said

order that the issue raised was about the patta given to the

temple without holding an enquiry and without a notice

under section 7. Therefore, the delay was condoned. It is

seen that both the petitioner and the respondent-temple

appeared before the authority and the respondent was also

represented by a learned counsel. The documents filed by

both the parties were considered. Taxation receipts,

adangals, revenue records, house tax receipts and the inam

fair register were considered on behalf of the 4th respondent

herein and appellant therein. The documents filed by the

respondent-temple were also considered before the

conclusions were arrived. Three questions were framed for

decision were as follows:

i) Whether the land is the Inam Land or not?

ii) Whether it is situated in the a ryotwari village,

Inam village or Zamindari village?

iii) Whether the land is held by an institution or

not?

11) After considering the evidence, conclusions were

given that the lands are inam lands, situated in ryotwari

village and are not held by an institution. It was decided

that an analysis of the evidence that the petitioner therein-

present 4th respondent and her ancestors were in possession

of the land for more than 100 years. It is also noted that

there are no documents or instruments to support the grant,

but the lands were held to be in possession and enjoyment of

the personal service inamdars since 1860. It is also noted

that the entries in the Inam Fair Register were attested by

the Deputy Collector on 27.06.1860 and for confirmation fo

the inam grant infavour of Attaluri Veeresam and Inam grant

was confirmed and certified by the Inam Commissioner on

20.07.1860 with TD No.344. The objection with regard to the

records of the respondent were also noted before the order

was passed.

12) An appeal was preferred against this order and it

was disposed of on 30.05.2007. The grounds raised by the

present petitioner were numbered in seriatim and

reproduced. Written arguments were also filed on behalf of

the appellant. In fact, even the present 4th respondent

entered appearance and submitted her version of the same.

A written statement was also filed and the same was also

reproduced in extenso. Further evidence was also filed in the

form of a Court order passed in O.S.No.35 of 1928 on the file

of District Judge, Guntur, in which the temple was a party.

The lands owned by the temple were disclosed in the

schedule to the suit and the said schedule did not mention

the current lands. Ultimately, after perusing the grounds,

conclusions were reached. This Court notices that in the

order the description of the properties in the suit O.S.No.35

of 1928 were considered and the lands owned by the temple

were measuring Ac.45-01 cents. The present inam lands

were not included in the schedule of lands held by the

temple. The RDO also notices that Sri N. Sree Ramakrishna

Sastry, the father-in-law of the 4th respondent filed a suit in

O.S.No.59 of 1977 against the management of the temple

and another and got permanent injunction order dated

13.06.1980, restraining the respondents therein from

interfering with his possession. The temple filed an affidavit

stating that it is not a necessary party to the suit. The

contentions raised by the parties were all considered in

various paragraphs, which contained the conclusion, before

the final conclusions were reached. In the conclusions, it

was noticed that the grant was on a permanent tenure with

hereditary rights. The British Government acquired part of

the inam lands and paid cash compensation to the inamdars

and the Government also granted land-to-land award to the

inamdars, in addition to cash compensation. This shows the

ownership of the lands by the inamdars as per the RDO. In

addition, the inamdars produced tax receipts, which showed

continuous possession and enjoyment of the property. The

judgment of the Court in O.S.No.35 of 1928 was also

considered in the final conclusion. Therefore, the RDO came

to the conclusion that there is no irregularity in the order.

13) Even the impugned order dated 31.08.2007 is an

order that is passed after considering the submissions of

both the parties. The grounds of revision are setout, the

dates of hearings are given and the submissions of the 3 rd

respondent therein (present 4th respondent) are also set out,

before the conclusions were reached. After considering the

documents considered by the RDO, the Director of Appeals

came to the conclusion that the tenure is permanent and is

granted to individuals. The government also recognized the

Niraghatam Yanadi @ Seshayya and his son

N.Venkatappaiah as personal inamdars and title deeds under

TD No.344. The Inam fair registers 1860 reveal that the

ancestors of the 3rd respondent have been in possession

since more than 100 years. Therefore, the director of appeals

came to the conclusion that he finds no reason to interfere

with the orders passed earlier. All the three orders are

passed on appreciation of the contentions / evidence and

reach the same conclusion.

14) Although in the strict sense of the word this

exercise is not necessary. Since this Court is essentially in

certiorari jurisdiction; still the facts have been set out to

conclude that all the orders that are passed are reasoned

orders which have considered the available evidence and the

fact before coming to a decision. There is no error, much

less an "error apparent on the face of the record". As held by

the Hon'ble Supreme Court of India it is only a patent error

which can be corrected by a certiorari and not merely a

wrong decision. Reappreciation and reevaluating the

evidence is not really permissible. If two opinions are

possible, it cannot be called a patent error. Last but not the

least, Hon'ble Supreme Court of India clearly stated that the

certiorari jurisdiction cannot be exercised, if no failure of

justice is occasioned. There is no proof of any irregular

exercise of jurisdiction either. Concurrently the same

conclusions are reached.

15) The entire dispute emanates out of the order in

1972, by which pattas were cancelled. No documents are

filed to show that the pattas were actually issued after a due

enquiry and following the procedure stipulated under the

Act. As far as the judgment in W.A.No.132 of 1968 is

concerned it deals with the rules of natural justice. It also

held that it is not incumbent on a Tahsildar to issue notice

on the persons interested if he does not actually know who

are the persons interested. The same is not the situation

here, because the 4th respondent's predecessors have proved

before the Sub-Collector that they are the persons interested

and the fact now remains that they have filed documentary

proof to show that they have been in possession and

enjoyment for more than 100 years and this is recognized by

the various officers in the course of the orders. In addition,

in case of any order having civil consequences, rules of

natural justice have to be followed. This is settled law. Para

40 of the judgment in Boppidi Punnaiah case (1 supra)

also supports the respondent in the opinion of this Court.

This Court has also to agree with some of the grounds that

are now urged have not been raised earlier. Therefore,

allowing them to be raised as a ground to challenge the

award is not correct or legally permissible.

16) Considering all the submissions and the record

available, this Court is of the opinion that the impugned

orders do not suffer from any glaring and apparent error of

law etc., warranting interference in certiorari. The writ

petition is therefore dismissed. No order as to costs.

17) I.A.No.1 of 2022 is filed to implead the proposed

party respondents as respondents 5 and 6. This court finds

that presence of the proposed respondent is not really

necessary to decide the issue raised, as the temple itself has

been agitating this matter since long and has also now

represented the case. Since the prayer is for a certiorari the

presence of the proposed parties is not really relevant.

Accordingly this Interlocutory Application is dismissed.

18) Consequently, the Miscellaneous Applications

pending, if any, shall also stand dismissed.

__________________________ D.V.S.S.SOMAYAJULU, J

Date:05.05.2023.

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