HON’BLE SRI JUSTICE P.S. NARAYANA WRIT PETITION No.20542 of 2007 Date:17-01-2008 Between: Kuchipudi Hanumantha Rao and others. ………Petitioners And The Regional Joint Commissioner of Endowments, Endowments Department, E.G.District, Kakinada and others. ………Respondents HON’BLE SRI JUSTICE P.S. NARAYANA WRIT PETITION No.20542 of 2007 ORDER: 1. Heard Sri J. Srinivasa Rao, learned counsel representing the writ petitioners, the learned Government Pleader for Endowments and Sri V.T.M. Prasad representing the 3rd respondent. 2. The writ petition is filed praying for issuing an appropriate Writ, order or direction more particularly one in the nature of Writ of Certiorari calling for the records relating to the orders passed by the 2nd respondent vide Proceeding in R.C.A1/3993/2003, Adm dated 19-10-2006 as confirmed by the 1st respondent in Appeal No.103/2007 dated 25.7.2007 and quash the same by declaring the orders as illegal, arbitrary, un-Constitutional, without jurisdiction and contrary to the provisions of A.P.Charitable & Hindu Religious Institutions & Endowments Act 1987 & the Rules made there under, and consequently direct the respondents not to evict the petitioners from the lands of an extent of Ac.7.76 cents covered by R.S.No.175/2 of Suryarao Palem Village, Undrajavarm Mandal, W.G.District and pass such other suitable orders. 3. Sri J.Srinivasa Rao, learned counsel representing the writ petitioners, had taken this Court through the contents of the affidavit in support of the writ petition and also the contents of the counter affidavit respondent No.3, would maintain that inasmuch as the order was made when the party was dead the very order is nullity and again re-enquiry is to be made. Further, the counsel pointed out that there are other legalities which had been specified in Para Nos.5 and 6 of the affidavit filed in support of the writ petition and hence the writ petition to be allowed. 4. On the contrary, the learned Government Pleader for Endowments and Sri V.T.M.Prasad had taken this Court through the contents of the counter affidavit filed by the Respondent No.3 and would maintain that in the light of the facts and circumstances, the writ petitioners are not entitled any of the reliefs as prayed for. 5. The petitioners are residents of Suryarao Palem village, Undrajavaram Mandal in West Godavari District, and they are landless poor persons and not having any properties and eking out their lively hood by doing agriculture, and there is no other source of income. It is also averred that the third respondent-temple is having dry lands of an extent of Ac.7-76 cents covered by R.S.No.175/2 of Suryarao Palem Village, Undrajavaram Mandal, W.G.District. It is further submitted that in the year 1960 the respondent authorities have granted lease hold-rights in favour of the petitioner’s father namely Kuchipudi Subba Rao and fixed the maktha. Since then, the petitioner’s father cultivated the above lands as a cultivating tenant and paid maktha to the 3rd respondent-temple without any default. It is further submitted that the above land is Dry land and there is no Irrigation source. The petitioner‘s father after entering the above lands, developed them with his hard labour, invested huge amounts, converted the lands into a cultivable one, and started cultivation by raising sugar cane and paddy crops by digging bore well and drawing the water through oil engines. The petitioner’s father paid maktha to the 3rd respondent temple regularly without any default and died on 26-3-1993. Since then, the petitioners and their mother Smt.K.Bullamma, who are the legal heirs, have been in possession and enjoyment of the above lands as cultivating tenants and they are doing agriculture and paying maktha to the 3rd respondent-temple regularly without any default. It is further submitted that the petitioners’ mother Smt.Bullamma died on 27-1-2005. After the death of the petitioners’ father and mother, the petitioners portioned the above property between them and they are doing agriculture and paying the maktha to the 3rd respondent-temple as fixed by them without any default. It is submitted that the 1st petitioner is in possession of Ac.2-00 cents in R.S.No.175/2, 2nd petitioner is in possession of Ac.3-76 cents in R.S.No.175/2 as he is Physically handicapped suffering from polio, and 3rd petitioner is in possession of Ac.2-00 cents in R.S.No.175/2 and they are continuing as cultivating tenants of the above lands of the 3rd respondent-temple and they are paying maktha as fixed by the authorities regularly without any default. The 3rd respondent-temple is also receiving the maktha from the petitioners. It is also averred that while things stood thus the 2nd respondent/Assistant Commissioner, without giving any notice and opportunity to the petitioners, passed orders vide proceedings in Rc.No.A1/3993/2003 Adm dated 19-10-2006 against the dead person i.e., Smt.K.Bullamma, who is the mother of the petitioners and who died on 27-1-2005 alleging that the petitioners’ mother is not landless poor person and she is an encroacher and he further alleged that she is not entitled to the benefit of Section 82 of A.P.Charitable & Hindu Religious Institutions & Endowments Act 1987 (Act 30/1987). Immediately after receipt of the said order, the petitioners have filed appeal before the 1st respondent as per the provisions of Rule 4 of A.P.Charitable and Hindu Religious Institutions and Endowments Lease of Agricultural Lands Rules 2003 within time. In the said appeal, the petitioners specifically stated that they are landless poor persons and after death of the their father and mother they are cultivating the above lands separately to different extent and they are paying maktha to the 3rd respondent-Temple independently to their respective shares without any default and the 3rd respondent temple is receiving the maktha from the petitioners. Except the above land, the petitioners do not have any other lands of their own or they are not cultivating any other lands as tenants and the petitioners’ entire family is depending on the income derived from the above lands, and they further stated that they are entitled to the benefits as per the provisions of Section 82 of the Act as they come under the definition of land less poor persons. Further, it is averred that the Mandal Revenue Officer, Undrajavaram have issued certificates vide Rc.No.463.2005(B) dated 28-12-2005 and also Panchyat Secretary of Suryarao Palem Gramapanchyat issued certificates that the petitioners are cultivating the lands individually. The 1st petitioner is cultivating an extent of Ac.2-00 cents, 2nd petitioner is cultivating an extent of Ac.3-76 cents and 3rd petitioner cultivating the lands an extent of Ac.2-00 cents separately and the nature of the above lands was recorded in the revenue records as Dry lands, and further certified that the petitioners are not having any other lands on their own, and also issued income certificates that the petitioners income is below Rs.10,000/- per year. It is also averred that when the above appeal is pending before the 1st respondent, the 3rd respondent is trying to conduct public auction to the above lands. At that stage the petitioners approached this Hon’ble Court and filed W.P.No.11409 of 2007 and this Court initially granted interim directions on 5-6-2007 that if any auction is conducted pursuant to the auction notice dated 24-5-2007, shall be subject to the result of the appeal pending before the 1st respondent and further directed the 1st respondent to dispose of the appeal within 2 weeks from the date of receipt of a copy of the order. Subsequently, the same was disposed on 3-9-2007 with a direction to the 1st respondent to dispose of the appeal within a period of four weeks from the date of receipt of a copy of the order and further observed that pendency of the appeal will not come in the way in further proceedings with the auction. 6. While things stood thus, the petitioners’ counsel before the trial Court received the copy of the order from the 1st respondent’s office on 19-9-2007. In the said order, the 1st respondent dismissed the Appeal No.103/2007 filed by the petitioners on 25-7-2007 on the alleged ground that the petitioners’ mother was original the cultivating tenant and after her death the petitioners unauthorisedly occupied the above lands without lease, and further alleged that the subject land is wet land and the petitioners does not come under the purview of landless poor persons. It is also stated that the 1st respondent, without considering the contentions raised by the petitioners and without considering the documents filed by them in support of their appeal, simply confirmed the order of the 2nd respondent without giving any reasons much less valid reasons. So the order passed by the 1st respondent is liable to set aside as the same is non-est in the eye of law. 7. Further, it is stated that the 1st and 2nd respondents-authorities alleged in the impugned orders that Smt. K. Bullamma, who is the mother of the petitioners, was original the cultivating tenant. This fact is absolutely not true and correct. It is submitted that in the year 1960, the respondents authorities granted lease to the petitioners’ father namely Sri Kuchipudi Subba Rao, who cultivated the above lands and paid maktha to the 3rd respondent temple till his death in the year 1993. Thereafter, the petitioners and their mother namely Smt. K. Bullamma cultivated the above lands and paid maktha to the 3rd respondent temple without any default. After the death of Smt. K. Bullamma, the petitioners herein have been cultivating the above lands individually and paying maktha to the 3rd respondent- temple regularly as the petitioners are legal heirs of Subba Rao, who is the original tenant of the 3rd respondent-temple. It is further submitted that the petitioners have paid maktha for the year 2007 also to the 3rd respondent-temple individually and obtained receipts to that effect. 8. It is also further averred that the land of an extent of Ac.7-76 cents is dry land and not wetland. The said fact was recorded in the entire revenue records and the concerned revenue authorities issued Certificates to that effect. The petitioners also obtained the certified copy of the F.M.B. from the office of M.R.O., Undrajavaram, as well as certificates to show that the above documents issued by the concerned revenue authorities as well as Panchayat Secretary of Suryaraopalem Grampanchayat passed the impugned order dismissing the appeal filed by the petitioners, and the same is not permissible under law. 9. It is also stated that the petitioners are landless poor persons and they are not having any lands of their own and they are not cultivating any other lands as tenants except the lands of the 3rd respondent-Temple, and they come under the definition of “Land Less Poor Persons” as per the provisions of Sec 82 of the Act. It is further submitted that the petitioners filed several documents before the 1st respondent including the certificates issued by the Mandal Revenue Officer, Undrajavaram that the petitioners are not having any other lands or properties except the above lands, and their income also below 10,000/- per year and they come under the definition of landless poor persons. The 1st respondent, without considering the contentions raised by the petitioners dismissed the appeal on erroneous view of law and facts. 10. Further it is stated that the 2nd respondent, in his order 19-10-2006, alleged that Smt. K. Bullamma, who is the mother of the petitioners, is an encroacher. Similarly the 1st respondent also observed in the impugned order dated 25-7-2007 that after the death of the petitioners’ mother, namely K. Bullamma, the petitioners have unauthorisedly occupied the above lands. It is submitted that the said findings of the 1st and 2nd respondents- authorities are not true and correct. As per the provisions of the Act 30/1987, the tenancy rights are heritable. It is submitted that the petitioners, being the legal heirs of late K. Subba Rao, they are continuing as cultivating tenants and the 1st petitioner is cultivating Ac.2-00 cents, 2nd petitioner is cultivating Ac.3-76 cents, similarly the 3rd petitioner is cultivating Ac.2-00 cents and they are all paying maktha to the 3rd respondent- temple regularly without any default. Hence, the order passed by the 1st and 2nd respondents are liable to be declared as illegal, arbitrary, without jurisdiction and contrary to the provisions of Act 30/1987 & rules made there under. 11. It is also stated that the petitioners have been in possession and enjoyment of the above lands by paying the maktha regularly without any default and also they made a representations on 13-6-2002 & on 6-2-2006 to the 3rd respondent that they are ready and willing for enhancement of the maktha. The said representations are pending consideration before the authorities. It is already submitted above that the petitioners are landless poor persons and they are not having any lands except the above lands and their entire families are eking out their livelihood from the income derived on the above lands, and now, there is a standing crop of Sugar Cane in the above land and the petitioners invested huge amounts to the above crop. If this Court does not direct the respondents not to dispossess the petitioners from the lands of an extent of Ac.7-76 cents in R.S. No.175/2 of Surayrao Palem Village, Undrajavaram Mandal, West Godavari District, the petitioners will be put to great irreparable loss and hardship. 12. In such circumstances, the writ petitioners approached this Court praying for appropriate reliefs. This Court ordered notice before admission on 28.9.2007, granted an order of status-quo for a limited period. On 15- 11-2007, Rule Nisi was ordered. The interim order already granted is being extended from time to time. 13. Counter affidavit is filed by R-3, which was sworn in by the Manager of Sri Kesava Swamy Temple, Duvva, Tanjuku Mandal, West Godavari District. Specific stand had been taken i.e., it is not correct to say that as the petitioners are only depending on agriculture and they do not any other properties of their own and they are landless poor persons. It is also averred that it is incorrect to allege that the land of the 3rd respondent of an extent of Ac.7-76 cents is a dry land. It is a wet-land yielding two crops a year or commercial crops. The land has irrigation facility. It is true that the father of the petitioners was the tenant during his life time. The further allegation that the petitioners and their mother are the legal heirs is not correct. Under the provisions of Andhra Pradesh Tenancy Act, after the death of the tenant, his lineal descendants became the successors in interest, but however, they did not want to cultivate the land and did not evince any interest. Thereupon, their mother Smt.Bullamma, requested the authorities that since their sons were not interested, she may be granted the lease. Then, a fresh lease was granted in her favour during 1993-1994 and since then she has been cultivating the land in her own right. It is also stated that the petitioners partitioned the property after the death of their parents is in correct and untenable. Admittedly, the mother of the petitioners was the cultivating tenant of the total extent of Ac.7-76 cents till her death in the year 2005. By the date of the Act came into force, she was the tenant and she only filed a petition before the 2nd respondent challenging the notice given by the 3rd respondent. As such, the status said Bullemma, alone is the criteria for determination of the aspects under Section 82 of the Act. Since she was holding and cultivating Ac.7-76 cents, the 2nd respondent rightly held that she is not a landless poor person and rejected her application. The theory of partition is incorrect and is introduced to get the benefits of the Act. There is no record to prove the said partition. Even assuming for a moment that without admitting that the three petitioners became entitled to the rights of the tenancy after the death of their mother, the said inheritance is not relevant as she died in the year 2005, long after the Act. Moreover, on a notional partition, each gets nearly Ac.2-59 cents and the land being wet land, it far exceeds the limit prescribed. Further, specific stand had been taken that the contentions of the writ petitioners that an order was made against the dead person and the same is valid also cannot be sustained. The order of the 2nd respondent is very clear on that aspect. In spite of several notices, none attended and hence being left with no other option, the order was made on the material available on record. An appeal was filed by the petitioners 1 and 2 only before the 1st respondent. The 1st respondent relying upon a decision of this Court in W.A.No.1302 2003 dt.4-8-2003 rightly dismissed the appeal holding that the status of the original tenant alone is relevant for consideration,. Petitioners 1 and 2 filed an appeal Nol103 of 2005 before the Regional Joint Commissioner, Multi Zone No.I, Endowments Department at Kakinada under Section 82 of the Act against the orders of the Assistant Commissioner Endowments, Eluru. After hearing both the parties, the Hon’ble Joint Commissioner was pleased to dismiss the said appeal on 25-7-2007. As can be seen from the respective stands taken by the parties, it is clear that these are factual controversies relating to the aspect that an order was made as against the dead party and the same is nullity. Specific stand had been taken that several opportunities had been given and none turned up and hence on the material available on record an order was made. It is not as though the writ petitioners had not further preferred an appeal. In fact, an appeal had been preferred and being unsuccessful in it now the present writ petition had been thought of. Hence, at this distant point of time the petitioners cannot be permitted to raise this ground to the effect that the order is nullity since the same was made as against the dead person. 14. Hence viewed from any angle, absolutely there are no merits in the writ petition and accordingly the same shall stand dismissed. No costs. __________________ (P.S. NARAYANA, J) Date: -01-2008 mrb