THE HONOURABLE SRI JUSTICE P.S.NARAYANA WRIT PETITION No.12215 of 2006 DATED:02.11.2007 Between: Andhra Vidyabhi Vardhini Sangham, represented by it’s Secretary and Correspondent, Warangal, Warangal District ….Petitioner AND Deputy Commissioner of Endowments, Warangal Zone, Warangal and others ….Respondents THE HONOURABLE SRI JUSTICE P.S.NARAYANA WRIT PETITION No.12215 of 2006 ORDER: Andhra Vidyabhi Vardhini Sangham, represented by it’s Secretary and Correspondent, Warangal, Warangal District filed the present writ petition praying for the issuance of a Writ of Mandamus declaring the action of the first respondent in passing the impugned eviction orders in Order No.37/2006 dated 18.03.2006 in O.A.No.150 of 1999 ignoring the vested rights of the petitioner over the land and buildings and also assuming powers under Section 83 of the Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act, 1987 (hereinafter in short referred to as “Act” for the purpose of convenience) in respect of Inam lands as illegal, arbitrary, malafide and without the jurisdiction of the authority, set aside the same as illegal and pass such other suitable orders. 2. The first respondent is the Deputy Commissioner of Endowments, Warangal Zone, Warangal. The second respondent is the Assistant Commissioner of Endowments Department, Warangal. The third respondent is Sri Bhogeshwara Swamy Temple, Matwada Town, represented by Single Trustee. 3. The Secretary and Correspondent of the petitioner’s Sangham had sworn to the affidavit filed in support of the writ petition. The final order made by the first respondent in O.A.No.150 of 1999 under Section 83 of the Act treating the petitioner as encroacher and directing the petitioner to pay Rs.20,000/- per month from October, 1999 had been challenged in the present writ petition. 4. Sri K.V. Bhanu Prasad, the learned Counsel representing the writ petitioner had taken this Court through certain provisions of the Act and also the Rules framed thereunder. The learned counsel had also drawn the attention of this Court to Sections 9 and 11 of the A.P. (Telangana Area) Abolition of Inams Act, 1955 and would maintain that in the light of the specific provisions of the Andhra Pradesh (Telangana Area) Abolition of Inams Act, 1955, the first respondent has no authority or jurisdiction to make the impugned order totally ignoring the vested rights and even otherwise the learned counsel would contend that the Revenue Divisional Officer alone would be competent to decide this question not only in the light of the provisions of Sections 9 and 11 of the Andhra Pradesh (Telangana Area) Abolition of Inams Act, 1955, but also in the light of Section 77 of the Act. The learned Counsel while making elaborate submissions had taken this Court through the historical background of the litigation and also made elaborate submissions in relation to the vested rights of the writ petitioner, which are to be recognized by the competent authority under the provisions of the Andhra Pradesh (Telangana Area) Abolition of Inams Act, 1955. The learned Counsel also pointed out to the relevant portions of the prior orders and would maintain that the first respondent had totally ignored the prior orders in making the present impugned order. The learned counsel also placed reliance on certain decisions to substantiate his submissions. 5. The learned Government Pleader for Endowments had taken this Court through Sections 83, 84, 87, 89 and also 14 of the Act and would maintain that in the facts and circumstances, the first respondent alone would be competent to make the impugned order. Incidentally, the learned Government Pleader for Endowments had also drawn the attention of this Court to Sections 4 and 9 of the Andhra Pradesh (Telangana Area) Abolition of Inams Act, 1955. While elaborating his submission, the learned Government Pleader for Endowments would contend that the Archaka rights, if any, had been abolished by the Act and hence, would contend that by virtue of the transactions said to have been entered into, the petitioner would be entitled to certain legal rights, cannot be sustainable. The learned Government Pleader for Endowments also would contend that when the original inamdhar himself had no ownership and when the Archaka himself had no right at all to execute any document and especially in the light of the fact that the heirs had entered into a compromise, it would be futile on the part of the writ petitioner to contend that the first respondent is not competent to decide the said question. Further, while elaborating his submissions, the learned Government Pleader for Endowments also would maintain that at no point of time this lease relating to the endowment land had been approved by the competent authority and hence, the same is invalid and the status of the petitioner to be taken as that of an encroacher only. Further, the learned Government Pleader for Endowments also pointed out the alternative remedies available to the writ petitioner and would maintain that even on this ground the petitioner is bound to fail and the writ petition is liable to be dismissed. 6. Sri N. Guru Gopal, the learned Counsel representing the third respondent-institution had taken this Court through the relevant provisions of the Act and the Rules framed thereunder and also the nizams Regulations of 1355 fasli and further had drawn the attention of this Court to Sections 84 and 92 of the Act apart from Section 14 of the Act and would maintain that in the light of the different provisions of the Act, the contention advanced by the writ petitioner that the first respondent has no jurisdiction or authority to make the impugned order, cannot be sustained. The learned Counsel also placed reliance on certain decisions. 7. Heard the learned Counsel and perused the records. 8. It is averred in para 3 of the affidavit filed in support of the petition that the petitioner already had filed an application before the Inams Tribunal to recognize their vested rights under Section 9 of the Andhra Pradesh (Telangana Area) Abolition of Inams Act, 1955 and the Revenue Divisional Officer had granted stay on 07.12.2002 directing the first respondent not to proceed with the enquiry initiated by him in O.A.No.150 of 1999. It is also stated that however the first respondent ignoring the orders made by the Revenue Divisional Officer, who is the competent authority to deal with the matter to recognize the vested rights of the petitioner, passed an interim order in I.A.No.72 of 2000, dated 16.01.2003 directing the petitioner to pay a sum of Rs.20,000/- per month from 01.01.1997. It is stated that aggrieved by the said decision, the petitioner filed Writ Petition No. 6975 of 2003 questioning the order of the first respondent and this Court while admitting the writ petition passed an interim order directing the petitioner to pay a sum of Rs.5,000/- only pending the writ petition and ultimately, this Court allowed the writ petition on 22.06.2004 with the following directions:- “It is stated that the petitioner made a claim under Section 9 of the Act to grant Occupancy Certificate in its favour where every private building, situated within an Inam shall, with effect from the date of vesting, vest in the person who owned it immediately before the said date. Admittedly, 1st proviso to Section 4 of the Act do not prohibit granting of Occupancy Certificate over the building covered under Section 9 of the Act. In view of the same, Deputy Commissioner of Endowments, Warangal-1st respondent is hereby directed to pass final orders in O.A.No.150 of 1999 keeping in view of the above provisions. Pending passing final orders in O.A. the interim order granted by this Court that petitioner shall deposit an amount of Rs.5,000/- per month and on such deposit the 3rd respondent shall be entitled to withdraw the same without furnishing security shall continue.” It is also stated that though the first respondent was specifically directed to keep in mind the provisions of Section 9 of the Andhra Pradesh (Telangana Area) Abolition of Inams Act, 1955, the first respondent conveniently omitted to pay any attention relating to the same. It is stated that the petitioner-institution obtained registered lease deed in the year 1945 for a period of 99 years in Survey No. 6 for an extent of Ac.2.30 guntas from one Nagavarapu Bikshapathi and immediately after obtaining lease, the petitioner-institution constructed a school building with the permission of the then Warangal Municipality on 18.02.1955. Even before that the petitioner-institution was being running the school was in thatched sheds. Section 9 of the A.P. (Telangana Area) Abolition of Inams Act, 1955 dealing vesting of certain buildings and inam lands used for non-agricultural purpose reads as hereunder:- (1) Every private building, situated within an inam shall, within effect from the date of vesting, vest in the person who owned it immediately before that date. (2) Where an inam land has been converted for any purpose, unconnected with agriculture, the holder of such land shall be entitled to keep the land, provided that such conversion was not void or illegal under any law in force, (3) The vesting of private buildings or lands under sub-section (1) or (2) shall be subject to the payment of non-agricultural assessment that may be imposed by Government from time to time. 9. Section 11 of the Andhra Pradesh (Telangana Area) Abolition of Inams Act, 1955 dealing with saving of rights in certain cases reads as hereunder:- (1) Where before the date of vesting, an inamdar has created, either by way of lease or otherwise, any right in any inam land which vests in the State other than the lands specified in clauses (a) and (c) of sub- section (1) of Section 4, including rights in any forest, mines or minerals, quarries, fisheries, or ferries the transaction shall be deemed to be valid and all rights and obligations arising thereunder, on or after the date of vesting, shall, be enforceable by or against the Government. Provided that the transaction was not void or illegal under any law in force: Provided further that where such right was created in any lands, other than the lands specified in clauses (a) to (c) of sub-section (1) of Section 4 the government may, if in their opinion, it is in the public interest to do so, by notice given to the person concerned, terminate the right with effect from such date as may be specified in the notice, not being earlier than three months from the date thereof. (2) The person whose right has been terminated by the Government under foregoing proviso shall be entitled to compensation from the Government equal to the estimated net income which would have accrued to such person from the land, for the unexpired portion of the period for which the right was created, having regard to all the circumstances of the case. 10. Section 4 of the Andhra Pradesh (Telangana Area ) Abolition of Inams Act, 1955 dealing with Registration of inamdars as occupants reads as hereunder:- (1) Every inamdar shall, with effect from the date of vesting, be entitled to be registered as an occupant of all inam lands other than- (a) lands set apart for the village community, grazing lands, mines and quarries, tanks, tank beds and irrigation works, streams and rivers; (b) lands in respect of which any person is entitled to be registered under Section 5, 6, 7 and 8 of the Act; (c) Lands upon which have been erected buildings owned by any person other than the inamdar; Which immediately before the date of vesting, were under his personal cultivation and which, together with any lands he separately owns and cultivates personally are equal to four and half times the ‘family holding’ Provided that where imams are held by or for the benefit of charitable and religious institutions no person shall be entitled to be registered as an occupant under Section 5, 6, 7 and 8 and the institution alone shall be entitled to be registered as an occupant of all inam lands other than those specified in clauses (a) and (c) above without restriction of extent to four and half times the family holding and without the conditions of personal cultivation; Provided further that where any person other than the concerned charitable or religious institution has been registered as an occupant under Section 5, 6, 7 and 8 after the commencement of the Andhra Pradesh (Telanga Area) Abolition of Inams (Amendment) Act, 1985 such registration shall and shall be deemed always to have been null and void and no effect shall be given to such registration? (2) No Inamdar shall be registered as an occupant of any land under sub-section (I) unless he pays to the Government as premium an amount equal to twenty five times the difference between the jodi or quitrent, if any, paid by him and the land revenue payable in respect of such land. The amount of premium shall be payable in not more than ten annual installments along with the annual land revenue and in default of such payment, shall be recoverable as arrears of land revenue due on the land in respect of which it is payable. (3) The inamdar shall be entitled to compensation from the Government as provided for, under this Act in respect of inam lands in his possession in excess of the time limit specified in sub-Section (1) whether cultivated or not. *[ (4) Omitted Objects and reasons for omitting the Sub-Section 4 Sub-Section (4) of the Section 4 of the Andhra Pradesh (Telangana Area) Abolition of Inams Act, 1955. Provides that, if the lands for the purpose of registration of inamdar as occupant are required to be resumed to make up the deficiency to the extent of 3 family holdings, the same shall be resumed under the provision of Andhra Pradesh (Telangana Area) Tenancy and Agricultural Lands Act, 1950 in the order provided thereunder. The rights of an inamdar to resume land to make up deficiency to the extent of 3 family holdings under the above said provision works out to be disadvantage of permanent tenants, protected tenants and non-protected tenants in the case of inam lands. The Government have therefore decided to suitably amend the Andhra Pradesh (Telangana Area) Abolition of Inams Act, 1955. 11. It is stated that under Section 9 of the Andhra Pradesh (Telangana Area ) Abolition of Inams Act, 1955 since the petitioner- institution had constructed a school building even before the commencement of the Act with the prior permission of the then Municipality of Warangal, the petitioner-institution had acquired vested rights long ago. Even though, there was an amendment of the Act in the year 1994 and it was amended as hereunder:- “Provided that where Inams are held by or for the benefit of charitable and religious institutions, no person shall be entitled to be registered as an occupant under Section 5, 6, 7 and 8 and the institution alone shall be entitled to be registered as an occupant of all inam lands other than those specified in clauses (a) and (c) above without restriction of extent to four and half times the family holding and without the condition of personal cultivation.” 12. It is also stated that even after the Amendment, the vested rights of the petitioner have been recognized and the Endowments Department cannot claim any right over the property and cannot treat the petitioner as encroacher of an endowments land. Even if amounts had been paid to the endowments department in ignoring such vested rights, such rights of the petitioner conferred by operation of law cannot be said to have been lost. Further, it is stated that the first respondent while discussing the provisions of Section 4 and the proviso thereunder, conveniently did not deal with the exceptions contained therein. Further, the 1st respondent went on saying since the lease is not approved by the Commissioner of Endowments, the lease is not valid and therefore, they have no right to continue in the premises. It is further stated that the stand taken by the 1st respondent is that when the Archaka was given land for their services as Inam, they cannot have the right to lease out the lands. Further, the 1st respondent took a stand that, as the petitioner did not apply for any occupancy certificate, the District Collector, Warangal never granted any occupancy right to the petitioner and therefore, the petitioner is not entitled to the relief. It is submitted that, when by operation of Law, petitioner-institution had acquired the vested rights over the property, there is no question of making an application for grant of occupancy rights. Further, it is stated that he had acquired right automatically by virtue of operation of Law and Law doesn’t envisage making any such application for a case of this nature. It is stated that all the other stands taken by the 1st respondent in his impugned order with regard to Service Inam, Burdened with Archakatvam Service and the Rights of the Inamdar are purely in ignorance of the Law of Abolition of Inams Act. Once the inam is given recognizing the services of the Archaka, it becomes his absolute property and he can deal with the property as he likes. Therefore, Nagavaram Bikshapati who is admittedly the inamdar has got every right to deal with the property and therefore, the lease deed entered into with the said Bikshapati is valid. It is further stated that the first respondent has no right or authority to resume the Inam lands under Section 77 of Endowments Act. It is the R.D.O. that is empowered to resume the Inam land. It is stated that the proceedings before the R.D.O. initiated by the petitioner are still pending because of the non-cooperation of the 1st respondent. It is also stated that they filed counter only on 12.05.2006 without referring to the relevant provisions of Law. Therefore, the order of the 1st respondent is illegal and is liable to be set aside. Further it is stated that now, there is a threat of dispossession and recovery of the amount falsely fixed by the 1st respondent. Unless the impugned order is stayed, petitioner- institution will be put to serious and irreparable loss. In such circumstances, the petitioner approached this Court praying for the reliefs specified above. 13. In the counter-affidavit filed by respondents No.1 and 2 which was sworn by respondent No.2-Assistant Commissioner of Endowments Department, Warangal it is stated that the writ petition itself is not maintainable in view of the fact that the petitioner ought to have approached the statutory authority provided under Act 30/87 by filing the appeal under Section 92 of the Act, instead he had approached this Court taking untenable grounds. It is also stated that under the provisions of the Act 30/87, since the property belongs to third respondent-temple the provisions of Andhra Pradesh (Telangana Area) Abolition of Inams Act, 1955, is not applicable to the subject property. Further it is stated that in terms of G.O.Ms.No.866 dated 08.08.2003, all leases and licenses pertaining to immovable properties other than Agricultural Lands of the Endowments Institutions are to be given as per the rules made therein and in view of the provisions of the Act 30/87, all leases granted with respect to the Endowments properties stood cancelled. As per Section 82 of the Act with respect of the agricultural property and for other immovable property, the same are governed by the Rules made under Section 82 i.e., G.O.Ms.No.866 dated 08.08.2003. Further, specific stand has been taken that under Section 144 of the Act, the hereditary rights are abolished. Therefore, by operation of law, the subject property which was admittedly, a service inam given to the Archaka automatically vested in the third respondent temple-institution. Section 144 of the Act dealing with abolition of shares in Hundi and other rusums reads as hereunder:- “Notwithstanding any judgment, decree or order of any Court, Tribunal or other authority or in any scheme, custom, usage or agreement, or in any manual prepared by any institution or in any Farmana or Sanad or any deed or order of the Government to the contrary governing any charitable or religious institution or endowment, all shares which are payable or being paid or given or allowed at the commencement of this Act to any Trustee, Dharmakartha, Mutawalli, any office holder or servant including an Archaka or Mirasidar and share or shares, in the Kanukas offered either in kind or in cash or both by the devotees either in Hundi, Plate or otherwise, or any resums in the Archana or Seva tickets and tickets for tonsuring or any resums collected from the person for the performance of marriage or Upanayanam and the like, all offerings made in the premises of the Temple or at such places as may be specified by the Trustee, all Prasadams and Panyarams offered either by the Temple or devotee, and such other kinds of offerings, all shares in the lands of the institution or endowment allotted or allowed to be in possession and enjoyment of any archaka, office holder or servant towards remuneration or otherwise for rendering service and for defraying the “Paditharam’ and other expenses connected with the service or management of the temple, shall stand abolished with effect on and from the commencement of this Act. Further it is stated that under the provisions of the Act, the first respondent is the competent authority to entertain O.A.No.150 of 1999 and passed the impugned order dated 18.03.2006. It is further stated that the petitioner claims to be lessee of the land which lease was executed by Archaka and Hereditary Trustee Late Sri N. Bikshapathi. When once the Archaka himself ceases to have any right over the property under provisions of the Act 30/87, the petitioner cannot have a better right. Therefore, the contention of the petitioner that under Section 9 of the A.P. (Telangana Area), Abolition of Inams Act, 1955, they have vested rights is untenable. It is further stated that the said deceased Archaka/Trustee obtained an occupancy rights certificate from the R.D.O. Warangal with respect land in Sy.No.421 an extent of Act.1.33 guntas wet land and Sy.No.6 an extent of Ac.2.30 guntas dry which Kidmath/Service Inam land is situated at Mattwada, Warangal in 1989, that too after commencement of the Act, 30/87. The Asst. Commissioner, Endowment, Warangal addressed a letter dt.27.04.89 to the Collector, Warangal informing about the order of the R.D.O. dt.03.02.1989 and sought for its cancellation. The Collector suspended the orders of the R.D.O., on 31.07.1989. The Archaka carried the matter in appeal. Subsequently, the said Archaka/Trustee sold an extent 5,239 square yards to various people in Sy.No.421 of Mattwada, Warangal. Further it is stated that the said Archaka/Trustee died on 07.09.1990. The legal heirs of the deceased Archaka approached the Assistant Commissioner, Warangal for a compromise. A report was submitted by the Assistant Commissioner, Warangal to the Commissioner, Endowments Department, Hyderabad. After taking into consideration the litigation pertaining to the land and taking into consideration the report of the Assistant Commissioner, Warangal dated 05.05.1992, the Commissioner, Endowments Department in his proceeding Rc.No.D1/43701/89, dt.26.03.1993 approved the compromise proposals in the following terms:- “In view of the position and better interest of the temple permission is hereby accorded to the Executive Officer of the temple to enter into compromise with the legal representatives of Late N. Bikshapathi/Trustee/PoojariSriBhogeshwara Swamy Temple, Warangal Town and District, if they agree to the following conditions:- 1. That the L.Rs should deposit the entire sale consideration received by Late N. Bikshapathi/ Trustee/Poojari in the name of the temple @ Rs.40/- per sq.yard in respect of 5,239 sq.yards. 2. That the L.Rs shall surrender the remaining land out of Sy.No.421 and 6 in favour of the deity and the Assistant Commissioner is requested to ensure that the compromise with the above conditions is affected and report compliance early. The entire amount received by way of the compromise shall be deposited in the schedule bank as per rules and compliance be reported.” Further, it is stated that the legal representatives of the Archaka had complied with the above conditions and surrendered the land in Sy.No.421 and Sy.No.6.