Andhra Vidyabhi Vardhini Sangham v. Deputy Commissioner of Endowments, Warangal Zone, Warangal & Ors.

JUDGMENT: (Per Hon’ble Sri Justice Goda Raghuram) The unsuccessful writ petitioner in W.P.No. 12215 of 2006 is before us in appeal against the judgment dated 2-11-2007 dismissing the writ petition. The petitioner is a society, which had established a School and thereafter a Junior and Degree College, after obtaining lease from the widow of the then Archaka of Sri Bhogeshwara Swamy Temple, Matwada town, Warangal District. Treating the petitioner/appellant as an encroacher, a notice was issued under Section 83 of the A.P. Charitable and Hindu Religious Institutions and Endowments Act, 1987 (for short ‘the 1987 Act’) for its eviction. Challenging the notice proposing its eviction, the appellant filed W.P.No. 22591 of 2002 contending inter alia that the appellant’s right to the building is protected by Section 9 of the A.P. (Telangana Area) Abolition of Inams Act, 1955 (for short ‘the 1955 Act’).

The petitioner withdrew the said writ petition without obtaining leave for instituting a fresh writ petition or other proceedings. W.P.No.22591 of 2002 was dismissed by the order of this Court dated 13-11-2002. Thereafter, the 1st respondent, by the order dated 18-3-2006 declared the petitioner an encroacher in the property to an extent of Ac.2-30 gts. in Sy.No.6 of Matwada, Warangal Town belonging to the 3rd respondent-Devasthanam; directed the appellant to pay Rs.20,000/- per month from the date of initiation of O.A.No. 150 of 1999 (eviction proceedings) till the removal of encroachment after deducting any payments made in between, for causing financial loss to the Devasthanam. The appellant was also directed to vacate the land belonging to the Devasthanam and hand over physical possession to the trustee of the Devasthanam, within 30 days from the date of receipt of the order and on failure of the appellant to do so, the Asst.

Commissioner, Endowments, Warangal was instructed to remove the encroachments under Section 84 of the 1987 Act. By the judgment under appeal, the learned single Judge held that there was no patent lack of jurisdiction in the 1st respondent nor was the jurisdiction of the 1st respondent under Section 83 of the 1987 Act excluded by the provisions of Section 9 of the 1955 Act and in view of the fact that the appellant has an alternative remedy by way of an appeal under the provisions of the 1987 Act, accorded liberty to pursue the said remedy. Sri K.V.Bhanu Prasad, the learned counsel for the appellant strenuously contends that the order of the learned single Judge is erroneous as the 1st respondent suffers a patent lack of jurisdiction in having proceeded to exercise power, authority and jurisdiction under Section 83 of the 1987 Act. According to the learned counsel, the Revenue Divisional Officer alone has jurisdiction either suo motu or on an application (of the trustee of a Charitable or Hindu Religious Institution or Endowment or of Commissioner or of any other person having interest in the institution of endowment authorized by the Commissioner), to resume the whole or any part of such inam land, vide Section 77 of the 1987 Act.

Since the petitioner has constructed the building which vests in him under the precincts of Section 9 of the 1955 Act, the appropriate provision for resumption of inam land i.e., Section 77 of the 1987 Act would apply and the 1st respondent was in error in treating the petitioner as an encroacher and proceeding to exercise jurisdiction under Section 83 of the 1987 Act, is the contention. There are competing factual assumptions and claims as to the very entitlement of the appellant to the building in question. It is the substantive case of the Devasthanam that the lease said to have been granted in favour of the appellant in 1945 by the widow of the Archaka Sri Bhikshapathy is ab initio incompetent and void as no prior permission from the competent authority under the appropriate regulations was obtained. Since the appellant had no right to the property in question even as a lessee, it is an encroacher is the contention of the Devasthanam.

All such intrinsically disputed questions of fact are more appropriately determined before an authority having jurisdiction under the 1987 Act, rather than in a public law proceedings under Article 226 of the Constitution of India. Since an appellate remedy is available under Section 92 of the 1987 Act, the petitioner was rightly relegated to pursue the appellate remedy, by the learned single Judge. This Court discerns no error either in the application of law or in the exercise of discretion, warranting appellate interference. The appeal is accordingly dismissed. But in the circumstances, without costs. 25th October, 2010 GRR _______________________ GODA RAGHURAM, J ___________________________________ SAMUDRALA GOVINDARAJULU, J