IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) MONDAY, THE FIRST DAY OF DECEMBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE RAMESH RANGANATHAN WRIT PETITION NO : 21591 of 2008 Between: 1 B. Gowri Sankara Raju S/o. Late Jogi Jagannadha Raju R/o. D.No.29-10-8, Lalitha Colony, Daba Gardens, Visakhapatnam. 2 B. Butchi Venkata Padmanabha Raju S/o. B.G.S. Raju R/o. D.No.29-10-8, Lalitha Colony, Daba Gardens, Visakhapatnam. 3 B. Jogi Jagannadha Raju S/o. B.G.S. Raju R/o. D.No.29-10-8, Lalitha Colony, Daba Gardens, Visakhapatnam. 4 B. Sita Rama Raju S/o. B.G.S. Raju R/o. D.No.29-10-8, Lalitha Colony, Daba Gardens, Visakhapatnam. 5 B. Varma Babu S/o. B.G.S. Raju R/o. D.No.29-10-8, Lalitha Colony, Daba Gardens, Visakhapatnam. ..... PETITIONER(S) AND 1 The Executive Officer Sri Kasi Visweswara @ Viswanadha Swamy Temple Simhachalam Uphill, Visakhapatnam Dist. 2 The Commissioner A.P. Charitable & Hindu Religious Institutions & Endowments Hyderabad. 3 The Deputy Commissioner A.P. Charitable & Hindu Religious Institutions & Endowments Visakhapatnam. 4 State of A.P. Rep. by its Principal Secretary to Govt. Endowments Dept. Secretariat, Saifabad, Hyderabad. .....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to to issue an appropriate writ or order or direction more particularly one in the nature of Writ of Mandamus declaring as illegal and arbitrary and in contravention of the order of this Honourable Court in W.A.No.549 of 2008 the notice of the 1st Respondent issued in Rs.No.C1/1946/2007 dated 09-09-2008 and issue a consequential direction that the Respondents are bound to act in terms of the directions issued by this Honourable Court in W.A.No.549 of 2008. Counsel for the Petitioner:MR.D.V.SITARAMAMURTHY Counsel for the Respondent No.: GP FOR ENDOWMENTS THE HON'BLE MR JUSTICE RAMESH RANGANATHAN WRIT PETITION No. 21591 of 2008 ORDER: Earlier, a notice in Form No.1 was issued by the first respondent, under Rule 5(1) of the Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Lease of Agricultural Land Rules, 2003, whereby the petitioners were called upon to handover possession of the lands leased to them within thirty days of receipt of the notice, failing which, they would be evicted invoking the provisions under Sections 84, 85 and 86 of the Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act, 1987 (for short ‘the Act’) treating them as encroachers in the order passed under Section 83(4) of the Act. Aggrieved thereby, the petitioners filed W.P.No.11202 of 2008. This Court, by order dated 28-05-2008, observed that even assuming that the petitioners were making any independent claims of ownership over the lands, they could put forward the same plea in response to the notice, that they would have a grievance only if a final order adverse to their interest was passed, and even against such orders, the remedy of appeal was available and their apprehension that they may be evicted even while such proceedings were pending, was without basis. This Court further held that the impugned notice disclosed that the respondents had decided to pursue a particular course of action, strictly in accordance with the provisions of the Act and dismissed the writ petition as premature leaving it open to the petitioners to put forward all their contentions before the concerned authority. This Court further observed that the petitioners could not be forcibly dispossessed till final orders were passed and communicated to them. Aggrieved thereby, the petitioners preferred W.A.No.549 of 2008 and a Division Bench of this Court, by order dated 04-09-2008, dismissed the writ appeal with liberty to the petitioners to file their objections, in detail, within a period of two months from the date of receipt of a copy of the order. The Division Bench further held that the objections would be given attention and considered, by holding an appropriate enquiry, after giving opportunity and notice and till final orders were passed, the appellants shall not be disturbed. The petitioners’ grievance, in this writ petition, is that though they had submitted their objections, and despite an order of the Division Bench of this Court, another notice dated 09-09-2008 was issued directing them to hand over possession. The impugned notice dated 09-09-2008 reads as under: “Therefore, you are hereby informed that by virtue of sub-section (1) of Section 82 of the Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act, 1987 (A.P. Act No.30 of 1987) that the subsisting lease in respect of the agricultural land specified under the Schedule herein stood cancelled with immediate effect and the said lands are proposed to be leased out as per Rules. You are further informed that under sub-section (2) of Section 82, in respect of leases of agricultural lands situated in Municipalities and Municipal Corporations held by persons other than landless poor persons are not entitled to get the benefit under this section. Hence, you should handover possession of lands which you claim to have been leased to you within thirty days of the receipt of this notice, failing which you shall be evicted invoking the provisions under Section 84, 85 and 86 of the said Act treating you as an encroacher in the order passed under Section 83(4) of the Act.” Sri D.V.Sitarama Murthy, learned counsel for the petitioners, would contend that, since the petitioners were denied an opportunity of submitting their objections, the impugned notice is liable to be quashed. Both the learned Government Pleader for Endowments and Sri V.Venugopal, learned standing counsel appearing for the first respondent, would submit that, Section 82 relates to agricultural lands and, since the petitioners themselves have claimed, in their affidavit, that they were tenants, Section 82 of the Act is applicable. Both the counsel would point out that Section 83 of the Act, which dealt with encroachments, would not, strictly, apply to the present case since the petitioners are admittedly tenants of agricultural lands belonging to the temple. Sri D.V.Sitarama Murthy, learned counsel for the petitioners, would, however, dispute this contention and draw attention of this Court to the order of the Division Bench and to the order passed by this Court in W.P.No.11202 of 2008, wherein this Court had specifically held that the action sought to be taken by the respondents was under Section 83 of the Act as if the petitioners were encroachers. Whatever may be the nature of the notice issued, whether under Section 83 as claimed by the petitioners, or Section 82 as contended by the respondents, the fact remains that this Court, in its order in W.P.No.11202 of 2008, and the Division Bench, in W.A.No.549 of 2008, had treated the same as proceedings under Section 83 of the Act. It is not, therefore, open to the respondents to contend contrary to the orders passed earlier, which orders have since attained finality. The action, which the respondents are required to take, in the case on hand, has necessarily to be under Section 83 of the Act. Section 83(4) of the Act reads thus: Whereafter considering the objections, if any, of the encroacher received during the period specified in the notice referred to in sub-section (2) and after conducting such enquiry as may be prescribed, the Deputy Commissioner is satisfied that there has been an encroachment, he may, by order, require the encroacher to remove the encroachment and deliver possession of the land or, building or space encroached upon to the trustee before the date specified in such order. The said provision contemplates not only objections being invited but also an enquiry to be held and satisfaction of the authority being recorded that the petitioners are encroachers. It is only after such a satisfaction being reached, can the petitioners be evicted from the lands in question. The notice dated 09-09-2008 merely informs the petitioners of the consequences of their failure to vacate the lands in question voluntarily. It is made clear that till an enquiry is held under Section 83(4) of the Act and till the competent authority records its satisfaction that the petitioners are encroachers, the petitioners shall not be evicted from the lands in question. Needless to state that, in case, such a satisfaction is recorded by the competent authority, it is always open to the respondents to proceed to take action against the petitioners, to have them evicted from the lands in question, in accordance with law. With these observations, the writ petition stands disposed of. However, in the circumstances, without costs. RAMESH RANGANATHAN,J Dt:01-12-2008 usd