Andhra Pradesh High Court – Amravati
M/S Royal Line Ice Creams Limited … vs The State Of Andhra Pradesh on 29 November, 2024
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APHC010530652024
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3310]
(Special Original Jurisdiction)
FRIDAY ,THE TWENTY NINETH DAY OF NOVEMBER
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE DR JUSTICE K MANMADHA RAO
WRIT PETITION NO: 27720 OF 2024
Between:
M/s Royal Line Ice Creams Limited Liabillity Partners ...PETITIONER
AND
The State Of Andhra Pradesh and Others ...RESPONDENT(S)
Counsel for the Petitioner:
1. D V SASIDHAR
Counsel for the Respondent(S):
1. 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 declaring the action of the respondents in keeping the
petitioners property admeasuring Ac. 1.01 cents in Sy.No. 189/2 situated at
Lankelapalem Village, Parawada Mandal, Visakhapatnam District in the
prohibitory list as per Section 22(A)(1)(c) of Registration Act, 1908 as bad,
illegal, arbitrary, without jurisdiction, contrary to the principles of natural
justice, violative of Fundamental Rights guaranteed under Article 14, 21 and
2300-A of the Constitution of India and consequently direct the respondents to
forthwith release the subject property from the prohibitory list as per Section
22(A)(1)(c) of Registration Act, 1908 and pass such other orders….”
2. Heard Mr. D.V.Sasidhar, learned counsel for the petitioner and
learned Assistant Government Pleader, Endowments for the respondents 1 to
3.
3. Learned counsel for the petitioner would contend that the petitioner
company is the absolute owner and possessor of the land measuring Ac. 1.01
cents in Sy.No.189/2 of Lankelapalem Village, Parawada Mandal,
Visakhapatnam District, having purchased the same under a Registered Sale
Deed dated 06.07.2010 from its respective owner, since then he has been in
possession and enjoyment of the same and obtained approved plan from the
VUDA vide proceedings dated 18.09.2010. The Tahsildar, Parawada has
given certificate vide proceedings dated 14.08.2008 certifying that the subject
land is Zeroythi land. The petitioner has entered into a lease agreement with
the Visakha Milk Producers Company dated 27.11.2018 for leasing out the Ice
Cream manufacturing plant and missionary for a period of 90 months or 7 and
half years. Surprisingly the then Assistant Commissioner, Endowments
Department, Visakhapatnam has issued an eviction notice dated 27.10.2021
through the 4th respondent/ Executive Officer. Thereafter the petitioner was
called to the office of the 3rd respondent and threatened with dire
consequences, unless he agree with the title of the temple and give an
undertaking agreeing the title and requesting for lease for a period of 11 years
the petitioner company will be closed. Since the petitioner had no option, he
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was constrained to sign on the undated undertaking prepared by the then
Assistant Commissioner, Endowments Department, Visakhapatnam by name
Ms. Santhi, requesting to grant lease of his own land and issued order dated
04.01.2022. While the matter stood thus, the petitioner submitted a
representation dated 20.08.2024 to the 2nd respondent requesting to get back
his property after enquire into the matter pursuing all the documents and to
delete the property from the prohibited property list maintained under Section
22-A(1)(c) of Registration Act, 1908. Therefore, the present writ petition came
to be filed, questioning the action of the respondents in this writ petition.
4. During hearing learned Assistant Government Pleader for the
respondents 1 to 3 placed on record the written instructions dated 28.11.2024
submitted by the 3rd respondent that after enquiry and verification of revenue
Records it is entered in Section 43 Register that the temple owns an extent of
Ac. 10.13 cents in S.No.189 and Ac. 6.20 cents in Sy.No.190/1 situated at
Lankelapalem Village, Parawada Mandal, Anakapalli District. As per the
Settlement Register of Lankelapalem Village, Sri Paradesamma Ammavaru is
the absolute owner of landed property to an extent of Ac. 10.13 cents in
Sy.No. 189 and Ac. 6.20 cents in Sy.No.190/1. The said land was already
notified under Section 22(A) (1)(c) of Registration Act, prohibiting any
transactions whatsoever. The said land squarely belongs to the temple. It is
further contended that the petitioner has informed that the land belongs to the
Endowments Department and asked to pay Rs. 20,000/- per month towards
damages for his use and occupation and also requested to lease out the land
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in favour of him, he has submitted a letter to express his willing to pay the said
amount. The petitioner is a lease holder in Sy.No.189 in an extent of Ac. 1.00
cents to an extent as a part he is an encroacher earlier also before his willing
to pay damages and Lease permission request, other remaining extent in
Sy.No.189 was under encroachments and filed O.As before A.P.Endowments
Tribunal with O.A.Nos. 121 of 2022, 13 of 2022, 123 of 2022 and 122 of 2023
pending. Hence, requested to dismiss the writ petition.
5. Perused the record.
6. Section 87 of The Andhra Pradesh Charitable and Hindu Religious
Institutions and Endowments Act, 1987 (in short ‘the Endowments Act”), which
reproduced hereunder:
87. [ Power of Endowments Tribunal to decide certain disputes and
matters. [Substituted by Act No. 33 of 2007, dated 11.12.2007.](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 a religious endowment;
(d)whether any property is a specific endowment;
(e)whether any person is entitled by custom or otherwise to any honor,
’emoluments or perquisites in any charitable or religious institution or
5endowment 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 or 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 or money shall be allocated
to secular or religious uses;
(h)whether a person is a founder or a member from the family of the founder
of an Institution or Endowment.
(2)The Endowments Tribunal may, pending its decision under subsection (1),
pass such order as it deems fit for the administration of the property or
custody of the money belonging to the institution or endowment.
(3)The Endowments Tribunal may while recording its decision under
subsection (1) and pending implementation of such decision, pass such
interim order as it may deem fit for safeguarding the interest of the institution
or endowment and for preventing damage to or loss or misappropriation or
criminal breach of trust in respect of the properties or moneys belonging to or
in the possession of the institution or endowment.
(4)The presumption in respect of matters covered by Clauses (a), (b), (c), (d)
and (e) in sub-section (1) is that the institution or the endowment is a public
one and that the burden of proof in all such cases shall lie on the person
claiming the institution or the endowment to be private or the property or
money to be other than that of a religious endowment or specific endowment,
as the case may be.
(5)Notwithstanding anything contained in the above sub sections the Deputy
Commissioner having jurisdiction shall continue to enquire into and decide the
6disputes referred to in sub-section (1) until the constitution of the Endowments
Tribunal.]
7. Section 88 of The Andhra Pradesh Charitable and Hindu Religious
Institutions and Endowments Act, 1987 the Right of appeal against the
decision of the Endowments Tribunal under Section 87. [Substituted by Act
No. 33 of 2007, dated 11.12.2007.]
“Any person aggrieved by the decision of the Endowments Tribunal
under Section 87 and Section 119 may, within ninety days from the date of
receipt of the decision prefer an appeal to the High Court.”
8. As per Section 87 and 88 of the ‘Endowments Act’, it is very clear
that 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. Such exercise could not be
done in the instant case. The learned Government Pleader for the
respondents vehemently argued that the petitioner is an encroacher earlier in
respect of the land in Sy.No.189 to an extent of Ac. 1.00 cents and he himself
willing to pay damages and lease permission request, other remaining extent
in Sy.No.189 was under encroachments and filed O.As before the Tribunal,
which are pending. Therefore, it is contended that the writ petition is not
maintainable under Article 226 of the Constitution.
9. The scope of Article 226 of the Constitution of India is reproduced
hereunder:
(1) Notwithstanding anything in article 32, every High Court
shall have power, throughout the territories in relation to which it
7exercises jurisdiction, to issue to any person or authority, including in
appropriate cases, any Government, within those territories
directions, orders or writs, including writs in the nature of habeas
corpus, mandamus, prohibition, quo warranto and certiorari, or any of
them, for the enforcement of any of the rights conferred by Part III
and for any other purpose.
(2) The power conferred by clause (1) to issue directions,
orders or writs to any Government, authority or person may also be
exercised by any High Court exercising jurisdiction in relation to the
territories within which the cause of action, wholly or in part, arises
for the exercise of such power, notwithstanding that the seat of such
Government or authority or the residence of such person is not within
those territories.
(3) Where any party against whom an interim order, whether
by way of injunction or stay or in any other manner, is made on, or in
any proceedings relating to, a petition under clause (1), without-
(a) furnishing to such party copies of such petition and all
documents in support of the plea for such interim order; and
(b) giving such party an opportunity of being heard, makes an
application to the High Court for the vacation of such order and
furnishes a copy of such application to the party in whose favour
such order has been made or the counsel of such party, the High
Court shall dispose of the application within a period of two weeks
from the date on which it is received or from the date on which the
copy of such application is so furnished, whichever is later, or where
the High Court is closed on the last day of that period, before the
expiry of the next day afterwards on which the High Court is open;
and if the application is not so disposed of, the interim order shall, on
the expiry of that period, or, as the case may be, the expiry of the
said next day, stand vacated.
(4) The power conferred on a High Court by this article shall
not be in derogation of the power conferred on the Supreme Court by
clause (2) of article 32.”
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10. In the instant case, the petitioner has not preferred any Appeal
before the learned Tribunal in respect of subject land, so far and further the
petitioner is now questioning the action of the respondents in placing the
subject land in prohibited property list maintained under Section 22(A)(1)(c) of
the Registration Act, 1908, which is not maintainable by invoking under Article
226 of the Constitution of India as contended by learned Government Pleader
for the respondents.
11. Section 83 of the Endowments Act deals with eviction of
encroachment, which reproduced hereunder:
“83. Encroachment of land, building, or any property belonging to
a charitable or religious institution or endowment and the eviction of
encroacher:- (1) Notwithstanding anything to the contrary contained in this
Act or any other law for the time being in force, the encroachment of land,
building, or any property of a charitable or religious institution or endowment
is prohibited.
(2) The Executive Officer of the Charitable or Religious Institution or
Endowment or the Assistant Commissioner or any authority higher in rank
thereof, shall, by notice, require the encroacher to remove the encroachment
as hereinafter provided:
Provided that the encroacher shall be entitled to submit reply/ explanation to
such notice within one week from the date of receipt of such notice, which
shall be duly considered and appropriate orders thereon shall be passed:-
(a) Either withdrawing the notice issued and dropping further proceedings; or
(b) Affirming the notice and duly stipulating the time within which such
encroachment shall be removed.
(3) If the encroacher fails to remove the encroachment within such stipulated
period, the authority who issued the notice shall remove the encroachment
9with police assistance, if necessary and recover the cost of removal from the
encroacher.
(4) For the purpose of securing police assistance, the authority concerned
shall approach the jurisdictional Superintendent of Police/ Commissioner of
Police who shall thereupon provide such police assistance as is deemed
necessary for the removal of encroachment.
(5) Any act of encroachment including the attempt to encroach shall be a
cognizable offence, non-bailable and triable as a warrant case, in accordance
with the provisions of Code of Criminal Procedure, 1973, punishable with
imprisonment for a term which shall not be less than three years but which
may extend to eight years and with fine which may extend to Rupees one
lakh.
……………”
12. And also 84 of the Endowments Act provides mode of eviction on
failure of removal of the encroachments as directed by the Endowments
Tribunal. [Substituted by Act No. 33 of 2007, dated 11.12.2007.]
(1)Where within the period specified in the order under sub-section (4) of
Section 83, the encroacher has not removed the encroachment and has not
vacated the land, building or space, the Assistant Commissioner having
jurisdiction over the sub-division may remove the encroachment and obtain
possession of the land, building or space, encroached upon, taking such
police assistance as may be necessary. Any Police Officer whose help is
required for this purpose shall be required to render the necessary help to the
Assistant Commissioner.
(2)Nothing in sub-section (1) shall prevent any person aggrieved by any order
of the Endowments Tribunal under sub-section (4) of Section 83 from
preferring an appeal before the High Court to establish that the Charitable and
religious Institution or Endowment has no title to the land, building or space:
Provided that no appeal shall be preferred after expiry of ninety days from the
date of receipt of the order under sub-section (4) of Section 83:
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Provided further that no such appeal shall be preferred by a person who is let
in to the possession of land, building or space, or who is a lessee, licensee or
mortgagee of Institution or Endowment.]
13. As could be seen from the material available on record and also
considering the submissions of both the counsel, it appears that there is a
serious dispute involved in between the petitioner and 4th respondent with
regard to title over the subject land. The petitioner has not chosen to approach
Endowments Tribunal for redressal of his grievance, where similar matters are
being pending therein. Since the 4th respondent is claiming the subject land as
their land, the issue falls within the jurisdiction of the Endowments Tribunal as
per the ‘Endowments Act’. An appeal lies against the Award passed by the
‘Endowments Tribunal’ under Article 226 of the Constitution of India.
Therefore, the relief sought by the petitioner in the instant case is not comes
under purview of under Article 226 of the Constitution of India, therefore, this
writ petition is not maintainable.
14. In view of the procedure as contemplated under ‘Endowments Act’
cited supra, question of directing the respondents to direct the respondents to
release the subject property from the prohibited property list maintained under
Section 22(A)(1)(c) of the Registration Act, 1908 does not arise at this
juncture.
15. Therefore, it is suffice it, to issue a direction to the petitioner to
approach learned Endowments Tribunal for redressal of his grievance in
accordance with law, within four (04) weeks from the date of receipt of a copy
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of this order. On such submission, the learned Endowments Tribunal is
directed to protect the interest of the petitioner till disposal of Interlocutory
Application filed by the petitioners in O.A. The respondents are directed not to
take any coercive steps against the petitioner in respect of the subject land till
then.
16. With the above direction, this Writ Petition is disposed of. There
shall be no order as to costs.
17. The miscellaneous applications pending, if any, shall also stand
closed.
______________________________
DR. JUSTICE K. MANMADHA RAO
Date: 29.11.2024.
Note : L.R copy marked.
B/o
KK
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IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
+ WRIT PETITION NO: 27720 OF 2024
% 29.11.2024
# M/s. Royal Line Ice Creams Limited Liability Partners,
Visakhapatnam, rep., by its Managing Director … Petitioner.
Vs.
$ The State of Andhra Pradesh, rep., by its Principal Secretary,
Revenue (Endowments) Department, Secretariat, Velagapudi,
Amaravati and Others
… Respondents.
! Counsel for the Petitioner : Mr. D.V. Sasidhar
! Counsel for the Respondents: Learned Assistant Government Pleader for
Endowments.
< Gist:
> Head Note:
? Cases referred:
DATE OF ORDER PRONOUNCED: 29.11.2024
* THE HON’BLE DR. JUSTICE K. MANMADHA RAO
1. Whether Reporters of Local newspapers Yes
may be allowed to see the Judgments?
2. Whether the copies of judgment may be Yes
Marked to Law Reporters/Journals.
3. Whether Their Ladyship/Lordship wish Yes
to see the fair copy of the Judgment?
_______________________
DR.K. MANMADHA RAO, J
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