Andhra Pradesh High Court - Amravati

M Rajamma vs The Assistant Commissioner Another on 12 January, 2024

       THE HON'BLE DR.JUSTICE K. MANMADHA RAO

  C.M.A.Nos. 1087, 1086, 1088, 1089, 1124, 1127 of 2017

COMMON JUDGMENT:

The batch of Civil Miscellaneous Appeals have been filed

aggrieved by the Order dated 11.04.2017 passed in various O.As

by the A.P. Endowments Tribunal, Amaravati at Pedakakani (in

short "the tribunal'), whereby the learned Tribunal has directed

the appellants herein to vacate and handover vacant possession

of the petition schedule property within one month to the

respondent/ temple, removing structures therein and further

directed the Station House Officer, Anantapur Mandal Police

Station to provide necessary police-aid in implementation of the

said orders, on requisition, in the event of failure of the

appellant to comply with the orders and costs.

2. Since the facts and issue involved in all the Civil

Miscellaneous Appeals, I find it expedient to decide these

matters by a Common Judgment.

3. For the sake of convenience, C.M.A.No.1087 of 2017 is

taken into consideration as a leading case. The appellants

herein are the respondents and respondents herein are the

petitioners before the tribunal.

4. The claim of the respondents/ petitioners before the

tribunal is that appellants herein each occupied the land in 2 Dr.KMR, J CMA.No.1087 of 2017 and batch

Sy.No.85 of Kukkalapalli Revenue Village in the year 2006 and

they were erected sheds therein. The respondents herein with

the help of police, they were removed. The encroachers are

belonging political parties and they are not vacating the subject

property, inspite of several notices. Therefore 1st respondent

submitted reports in each case to the Deputy Commissioner of

Endowments, Kurnool for initiating proceedings under Section

83 of Act, 30 of 1987. Therefore the batch of O.As came to be

filed by the appellants individually.

5. The respondents herein, who are petitioners before the

tribunal has filed counter and contended that the appellants are

in physical possession and enjoyment of an extent of Ac. 0.02

cents in each case in Sy.No. 85 of Kakkalapalli Panchayat,

Rudrampet Village, Ananthapur Mandal and they are landless

poor and working as coolies and they do not have any other

land or house and the same was allotted by the Revenue

Authorities and issued residential certificates by the Tahsildar,

Anantapur Mandal. The appellants have obtained loan from

A.P.State Housing Corporation Limited and the District

Collector, Ananthapur also allotted houses to them under

INDIRAMMA Housing Scheme in the year 2009. The appellants

have also constructed pucca houses by obtaining loans and 3 Dr.KMR, J CMA.No.1087 of 2017 and batch

living therein along with their families. Therefore requested to

dismiss the O.As.

6. During the course of enquiry, on behalf of

respondents/ petitioners examined PW-1 and PW-2 and got

marked Ex.P1 to P3 and on behalf of appellants/petitioners

RWs 1 to 10 were examined and Ex.R1 to 60 documents were

marked.

7. Learned tribunal has framed the following point for

determination viz.,

"1. Whether the 2nd petitioner temple is owner of the schedule property and the respondent is an encroacher of the same U/s 83 of Act, 30/1987, and if so, liable to be evicted?

2. To what result?

8. After hearing on both the sides, the learned tribunal

directed the appellants herein to vacate and handover vacant

possession of the petition schedule property within one month

to the respondent herein by removing superstructures therein

and also granted police aid to the respondent herein for

compliance of the impugned order of the learned tribunal.

Aggrieved by the same, the present batch of C.M.As came to be

filed.

4 Dr.KMR, J CMA.No.1087 of 2017 and batch

9. Heard Mr. V. Venugopal Rao, learned Senior Counsel

representing Mr.E. Sambasiva Pratap, learned counsel for the

appellants and Mr.G. Ramana Rao, learned Standing Counsel

for Endowments for the respondents.

10. During hearing learned counsel for the appellants

would contend that the learned tribunal without appreciating

the counter and material on record has simply directed the

appellants herein to vacate and handover the possession of the

petition schedule property to the respondent herein, ignoring

the well settled principles of law. It is contended that the

tribunal ought not to have brushed aside the residential

certificate issued by the Tahsildar, who is the competent

authority to issue such certificate merely on surmiseso and

conjunctures. The tribunal without examining the Tahsildar

ought not to have held that with contents of such certificates

are false. The tribunal ignored the fact that the Government

facilitated the construction of the house by providing funds. The

appellants have spent amount with hard labour and toil, but

the learned tribunal ignoring the same and simply thrown the

appellants on streets, which is highly illegal and arbitrary.

Hence the impugned common order passed by the tribunal is 5 Dr.KMR, J CMA.No.1087 of 2017 and batch

based on mere surmises and not in accordance with law. Hence

the present batch of C.M.As came to be filed.

11. Whereas, learned Standing Counsel for the

respondents vehemently opposed to allow the batch C.M.As and

contended that the tribunal on observation held that the

certificates issued by the Tahsildar would show that they wee in

occupation of the property for more than 12 years, but the

appellants themselves, in their evidence categorically stated that

in the year 2004 -06 they occupied the properties, which is false

and such certificates were obtained for the purpose of obtaining

housing loans. At the instance of Communist Parties leaders,

the appellants occupied the land of the 2nd respondent and

raised huts in the subject land subsequently they were obtained

loans and benefited. It is further contended the appellants may

be poor, but they cannot encroach upon others land and claim

any rights therein. The revenue authorities issued false

certificates in favour of the appellants for getting housing loans.

The appellants are encroachers, but not true owners in view of

the explanation given as per Section 83(1) of A.P.Charitable and

Hindu Religious Institutions and Endowments Act 30 of 1987

(in short 'the Act'). Therefore the learned tribunal rightly allowed

the batch O.As and directed the appellants to hand over the 6 Dr.KMR, J CMA.No.1087 of 2017 and batch

vacant possession of the subject land to the respondents herein.

Therefore the batch C.M.As are liable to be dismissed.

12. Both the counsel have painstakingly taken this Court

through records of the case and presented their respective

points of view very ably.

13. As could be seen from the impugned order would

show that the tribunal came to a conclusion that the appellants

are encroachers as per definition of the Act under Section 83,

which reproduced hereunder:

"For the purpose of this Chapter the expression 'encroacher' shall mean any person who unauthorizedly occupy and land or building or space and deemed to include any person who is in occupation of the land or building or space without the approval of the competent authority sanctioning lease or mortgage, or license and also a person who continues to remain in the land or building or space after the expiry of termination or cancellation of the lease, mortgage or license in respect thereof granted to him or it"

14. In the instant case, the subject land is disputed by

the respondents/ temple and contended that the appellants are

encroachers.

15. It is the contention of the respondents that the

Tahsildar issued false certificates in favour of the appellants for

the purpose of obtaining housing loans and further the revenue 7 Dr.KMR, J CMA.No.1087 of 2017 and batch

records does not confer any title. Initially the schedule property

was given to C.P.M.Party leaders and they put up huts in the

year 2006 as per admissions of some of the appellants. But the

appellants might have poor or landless poor people, but they

cannot encroach upon others land. Therefore the respondents

contended that the appellants are encroachers and not true

owner having valid title in respect of the subject land.

16. It is further contended that there is title dispute

between the appellants and respondents with regard to subject

land and that the tribunal has no jurisdiction to entertain the

O.As, except trial by the civil courts having original jurisdiction.

In support of their contention, learned counsel for the

respondents placed on record the decision of this Court in "Sri

Santhi Nikethan, a Partnership Firm rep., by its Managing

Partner R.K.Jayaraman v. State of Andhra Pradesh, rep.,

by its Principal Secretary, Revenue (Assignment)

Department1", wherein the Hon'ble Division Bench held as

follows:

"11. In the present case, it is not denied that the properties in question, which the petitioners claimed as owners, have since been brought on the register maintained in terms of Section 43 of the Endowments Act. The entire case of the petitioners is that they have been enjoying the

W.A.No.888 and 899 of 2022, dated 23.09.2023 8 Dr.KMR, J CMA.No.1087 of 2017 and batch

property in question as owners with effect from 1990 onwards and the ownership was being asserted on the basis of registered sale deeds executed in their favour by their erstwhile vendors. However, we are of the opinion that once the property has been registered and brought on the register maintained under Section 43 of the Endowments Act, the writ Court could not have directed the registration of the property in the name of the petitioners in the light of the existence of Section 22-A of the Registration Act. It is in that context that the writ Court proceeded to hold that disputed questions of fact arise in the writ petitions, which could only be gone into before the civil Court".

17. It is pertinent to mention here that the documents

relied by the appellants as well as respondents have been

examined by the tribunal, would show that the appellants have

certificates issued by the Tahsildar to show the possession of

the subject land, which is disputed by the respondents as it is a

fake document, it might be obtained for the purpose of

obtaining housing loan by the appellants. Further the

concerned authority i.e Revenue is not a party to the

proceedings.

18. In the light of facts and circumstance at this juncture,

the point arises for determination would be:

a) Whether learned tribunal have jurisdiction to entertain or decide the rights of parties, so also decide the genuineness of the documents relied by the appellants, purportedly issued by the Revenue Authorities, in the absence of Revenue Authorities?

9 Dr.KMR, J CMA.No.1087 of 2017 and batch

19. In "Kommineni Narendra v. Ravela Rama Mohana

Rao @ Ramalingaiah and others"2, wherein this Court has

discussed the case decided by the Hon'ble Apex Court in

"Khatri Hotels Private Limited and Another v. Union of

India and Another"3, wherein it was held as follows:

"It was pertinently added that this exclusion of the jurisdiction of the civil court would be subject to two limitations. First, 'the Civil Courts have jurisdiction to examine into cases where the provisions of the Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure. The second is as regards the exact extent to which the powers of statutory tribunals are exclusive'. The question as to whether any particular case falls under the first or the second of the above categories would depend on the purpose of the statute and its general scheme, taken in conjunction with the scope of the enquiry entrusted to the tribunal set up and other relevant factors."

20. Further in Kommineni Narendra's case this Court

relied on a decision of the Hon'ble Supreme Court "Executive

Officer, Sri Bramaramba Mallikarjuna Swamy Temple,

Beeranguda, Patancheru Mandal, Medak District v. Sai

Krupa Homes, Karimnagar and Others"4 and opined that the

civil suit is maintainable to decide the issue as to whether the

property belongs to Endowment Department or others.

MANU/AP/0122/2023 = C.R.P.No. 2200 of 2022

2011(9) SCC 126

2010 SCC Online AP 352 10 Dr.KMR, J CMA.No.1087 of 2017 and batch

21. Further in "Anam Educational Charitable v. The

Assistant Commissioner"5, wherein the learned Single Judge

of this Court categorically discussed the power of endowments

tribunal to decide certain disputes as per Section 87 of the Act

30 of 1987, which reproduced hereunder:

"Section 87(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-

(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 religious endowment;

(d) Whether any property is a specific endowment;

(e) Whether any person is entitled by custom or otherwise to any honour, 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 partly of a secular or religious character and whether any property is given wholly or partly for secular or religious uses; or

(g) Where 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 or endowment or the 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 of money shall be allocated to secular or religious uses;