Andhra Pradesh High Court - Amravati
Kottalanka Srinivasa Rao, vs Government Of Andhra Pradesh ... on 3 October, 2024
APHC010479872014
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3233]
(Special Original Jurisdiction)
FRIDAY ,THE THIRD DAY OF OCTOBER
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE DR JUSTICE K MANMADHA RAO
WRIT PETITION NO: 393 OF 2014
Between:
Kottalanka Srinivasa Rao, and Others ...PETITIONER(S)
AND
Government Of Andhra Pradesh Represented By and ...RESPONDENT(S)
Others
Counsel for the Petitioner(S):
1. V V L N SARMA
Counsel for the Respondent(S):
1. KANDA SRINIVASU SC for Endowments for Konaseema and West
Godavari Districts
2. GP FOR ENDOWMENTS
The Court made the following:
ORDER:
This Writ Petition is filed under Article 226 of the Constitution of India,
seeking the following relief:
".....to issue a Writ, Order or direction more particularly one in the nature of Writ of Mandamus
directing the respondents to stop the construction of any structure or Kalyana Mandapam on
the vacant land of 13 cents situated on the North
North-Eastern side of the temple premises which is
held by the petitioners since time immemorial as part and parcel of their Sambhavana, in
th
collusion with the 5 respondent as the same amounts to direct derogation of the vested right
enjoyed by the petitioner apart from usurping of the said land which is in violation of right to
property and pass such other orders...."
2. The precise case of the petitioners is that their ancestors were
Archakas of the temple called Sri Bhimeswara and Mahishasura Masrdhani
Temple over nine generations, after them, the petitioners are working as
Archakas of the said temple. Originally an extent of Ac. 0.30 cents of the land
belongs to the temple and on the northern side, there existed a small house
built on brick walls and is covered with palm leaves in an extent of about 0.13
cents was held and enjoyed since times immemorial by ancestors as part and
parcel of Sambhavana and emoluments of Archakatvam also by their grand
father late Kottlanka Brahmanandam. There was a compound wall separating
the temple premises from the land an extent of Ac. 0.30 cents. All the
Archakas of the temple were living with families. The temple authorities have
purchased about Ac. 0.03 cents of open space located on the North-West side
of the temple, which is adjoining the said old house along with Ac. 0.13 cents
of land. The temple authorities in collusion with the 5th respondent had
hatched a plan to usurp the vacant land an extent of Ac. 0.13 cents, which is
under their possession and occupation. While the matter stood thus, the
respondents making attempts to construct a Kalyana Mandapam in the vacant
space of Ac. 0.13 cents belong to the members of the family of the petitioner,
which is highly illegal and arbitrary. Hence the present writ petition came to be
filed.
3. Heard Mr.V.V.L.N.Sarama, learned counsel for the petitioner and Mr.
Kanda Srinivasu, learned Standing Counsel for the respondents.
4. During hearing learned counsel for the petitioners would contend that
the grand father of the petitioner has executed a Will dated 11.07.1946,
wherein it was stated that an extent of Ac. 0.13 cents and the brick wall house
shall be inherited by his grandmother for life and subsequently by his father
and their children. The grand father of the petitioner has paid house tax for the
property during 1935. The official respondents are acting in collusion with the
5th respondent for a commercial purpose in an illegal manner is highly
untenable. The proposed commercial activity to be undertaken at the disputed
site in direct derogation to the petitioners right under the Statute Act 30 of
1987, in as much as the petitioners being the hereditary Archakas fully entitled
to continue with the Archakatvam in the said temple along with emoluments to
which the petitioners are entitled since times immemorial, which included their
residence in the said dwelling house that was subsisting till recently, which
was accepted and acted upon since times immemorial. Therefore, the
construction of Kalyana Mandapam without following due process of law and
enabling third parties to occupy a vacant land in the name of temple
development is wholly illegal, arbitrary and hence requested to allow the writ
petition.
5. Per contra, 4th respondent has filed a counter-affidavit denying all
material allegations made in the writ affidavit and mainly contended that the
petitioners have wrongly claiming that even Archaka quarters premises as
their own property as well the subject vacant site of this case. The petitioners
are working as Archakas on rotation basis in the temple and the quarter is
belongs to the temple and they are allowed to reside in the archaka quarter so
long they are rendering Archakatvam in the 4th respondent temple. They have
no saleable right even in respect of Archaka Quarters. The Commissioner of
Endowments approved the plan for construction of Kalayanamandapam under
donor scheme basis. It is further contended that the petitioners hatched a plan
to knock away the subject land, which belongs to the temple has filed a suit in
O.S.No.45 of 2015 on the file of the Court of III Additional District Judge,
Bhimavaram by the petitioners 1 and 3 and two others against the
respondents 2 to 4, which is dismissed. Assailing the same, an appeal has
been preferred which is pending, which fact is suppressed in the writ affidavit.
It is further contended that the petitioners have not produced any
authenticated document to show that they are the rightful owner of the subject
land. The trial court also observed the said fact and rightly dismissed the suit.
The petitioners are not entitled to claim any relief in this writ petition and
requested to dismiss the same.
6. Perused the record.
7. As could be seen from the record, earlier the petitioners 1 and 3
herein have filed a suit for partition of the subject land for permanent injunction
against the respondents 2 to 4 herein, who are defendants 1 to 3 therein. A
perusal of the judgment in O.S.No.45 of 2015, it is noted that the contentions
raised in the suit and this writ petition are one and same and similar in nature,
which each other. The petitioners claiming that the subject property is a
private property and they are in possession of the same. Therefore, they
questioning the action of the respondents for construction of proposed
Kalayanamandapam in the subject land, claiming that the property is derived
from their ancestors under a Will said to have been executed by their
grandfather. The very same contentions have been raised before the trial
court in the suit. The trial court made an observation that the executant of the
Will has not mention the source of his title to the property. Further, an extent
of Ac. 23.71 cents in R.S.No.408/1A1 of Bhivaram is a Gramakantam land as
per resettlement register issued by the Tahsildar, Bhimavaram under Right to
Information Act. It is further as per Registered Sale Deed dated 21.10.1965
the respondent/ temple purchased an extent of Ac. 0.03 cents out of Ac. 0.46
cents, which was filed by the petitioners to show that the subject land is not
belonging to the temple, because the subject property was not shown on any
direction of said Ac. 0.03 cents covered by a sale deed dated 21.10.1965 and
finally opined that there is no valid document on record to show the title of said
Brahmanandam in respect of subject land. Admittedly, temple is in physical
possession of the subject property. Therefore, as per Section 110 of Evidence
Act, 1872, the petitioners shall prove that the temple is not owner of the
subject property, but the petitioner did not prove the same in the suit and
accordingly the said suit was dismissed.
8. As per reply affidavit filed by the petitioners would show that they
have preferred an appeal in A.S.No.187 of 2023 against the judgment and
decree in O.S.No.45 of 2015, which is pending before the appellate court,
which is not disputed. Therefore, the subject dispute is the subject matter of
the appeal and also this writ petition is one and the same, further the said
appeal is being pending disposal as per pleadings.
9. Under these circumstances, this Court opined that the petitioners
have filed A.S.No.187 of 2023 before this Court against the decree and
judgment of the trial court in O.S.No.45 of 2015, which is pending. In the
midst, the petitioners have filed this writ petition seeking direction to the
respondents to stop the construction of Kalyanamandapam in the subject
land, which cannot be granted, while pending appeal by invoking under Article
226 of the Constitution of India. It is further noted that both sides produced
material papers along with memos, which already answered by the trial court
in the suit itself. Therefore, this court needs no interference to answer once
again. However, it is left open for the petitioners to raise their objections in
A.S.No. 187 of 2023 on the file of this Court for redressal of their grievance, if
any, with regard to subject land.
10. In view of the foregoing discussion, the petitioners are not entitled to
claim any relief in this writ petition. Accordingly, this Writ Petition is dismissed.
There shall be no order as to costs.
11. The miscellaneous applications pending, if any, shall also stand
closed.
______________________________
DR. JUSTICE K. MANMADHA RAO
Date: 03.10.2024.
KK
THE HON'BLE DR.JUSTICE K. MANMADHA RAO
WRIT PETITION No.393 OF 2014
Date: 03.10.2024
KK
