IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE TWENTY FOURTH DAY OF NOVEMBER TWO THOUSAND AND NINE PRESENT: THE HON'BLE SRI JUSTICE P.S. NARAYANA WRIT PETITION No.18620 of 2009 Between: Daya Hrudaya Seva Samastha, (A society Regd.No.32/1992), H.No.4-13-69, Annadana Satram, Amaravathi Road, Guntur, rep. by its President Kota Satyam. ..... PETITIONER AND Government of Andhra Pradesh, Department of Endowments, rep. by its Principal Secretary, Secretariat Buildings, Hyderabad and three other ..... RESPONDENTS ORDER: This court ordered notice before admission on 10-09-2009 and directed the status-quo to be maintained for a limited period. However, it was made clear that the proceedings in O.A.No.19 of 2005 may go on. The said order of status-quo is being extended from time to time. 2. The written instructions of respondent Nos.1 to 3 are placed before this court. The fourth respondent filed W.V.M.P.No.3374 of 2009 to vacate the interim order. At this stage the counsel on record Sri Posani Venkateswarlu representing the writ petitioner, the learned AGP for Endowments representing respondent Nos.1 to 3 and Sri VTM. Prasad representing respondent No.4 made a request for final disposal of the writ petition and hence, the writ petition itself was heard finally and the same is being disposed of. 3. Sri Posani Venkateswarlu, the learned counsel representing the writ petitioner had taken this court through the contents of the affidavit filed in support of the writ petition and also the stand taken in the counter-affidavit and would maintain that in fact the fourth respondent Sri Gunturu Annadana Samajam filed a memo for withdrawal of the O.A. no doubt, on enhanced rent. 4. The learned counsel also pointed out to the proceedings Rc.No.NIL/2005, dated -12-2005 addressed by the office of the Manager, Sri Guntur Annadana Samajam to the Deputy Commissioner of Endowments Department, Guntur and specifically pointed out to the relevant portion of the same and would maintain that in fact the Manager prayed for permission to withdraw the O.A.No.19/2005 filed before the Deputy Commissioner, Endowments Department, Guntur. The learned counsel also further pointed out the proceedings Lr.in.Rc.No.A4/9984/05 dated 12-01-2006 addressed by the office of the Deputy Commissioner, Endowment Department, Guntur to the Commissioner, Endowments Department and would maintain that in the light of these proceedings appropriate directions are to be given in the present writ petition. The learned counsel also further pointed out to the resolution of the Board of Trustees of the fourth respondent wherein the Manager was authorized to get the extension of lease by virtue of unanimous resolution. While further elaborating his submissions learned counsel would maintain that the petitioner is carrying on with certain of the functions which are beneficial to the society and in the light of the same it would be just and proper to dispose of the writ petition with appropriate directions. 5. The learned AGP for Endowments had placed before this court the written instructions of respondent Nos.1 to 3 and would maintain that the Commissioner of Endowments Department, Andhra Pradesh – the second respondent would be competent to take appropriate decision in this regard and hence, in the light of the peculiar facts and circumstances let this issue be left open to the discretion of the second respondent. 6. Sri VTM. Prasad, the learned counsel representing the fourth respondent had taken this court through the counter-affidavit of respondent No.4 and would maintain that the petitioner un- authorizedly had removed certain constructions and raised certain constructions and since such un-authorized acts had been purported by the petitioner the petitioner should be suitably penalized. The learned Standing Counsel also would maintain that in the facts and circumstances of the case till appropriate decision is taken in this regard the petitioner be permitted to continue on the enhanced rent of Rs.9,900/- per year to be paid in the month of January of the commencing year. 7. Heard the counsel. Perused the respective pleadings of the parties and also the material papers placed before this court. 8. The writ petition is filed praying for the relief of writ of Mandamus declaring the action of the respondents 2 and 3 in not allowing the 4th respondent to enter into lease with the petitioner society in respect of the premises bearing No.4-13-69, Amaravathi Road, Guntur to run home for street orphan children and in not closing the O.A.No.19 of 2005 pending on the file of the third respondent as illegal and contrary to law and pass such other suitable orders. 9. The President of the petitioner samastha, filed affidavit in support of the writ petition. It is stated that the petitioner society was registered under the provisions of the Societies Registration Act, 1960 vide Registration No.32/1992 dated 07-11-1992 with an object to render service to the street orphan children. The petitioner society is not taking funds either from the Government or from any foreign country and it had been functioning with the funds provided by the members of the society and other philontherists. Sri Gunturu Annadana Samajam which was a private charitable registered society was owning a premises bearing No.4-13-69 (Annadana Satram), Amaravathi Road, Guntur. The said premises consists of an old building situated in 191 Sq. yards of land. Both the societies were established with similar object. At request, the said society leased out the said premises to the petitioner society for funning its home for street orphan children for a period of 30 years commencing from 1st January 1996 vide registered lease deed No.6059/1996 dated 05-02-1996. The agreed lease amount is Rs.5,000/- per year and with an enhancement of 10% for every three years. 10. Further it is averred that the petitioner society after obtaining lease, started a home for street orphan children in the said premises and had been paying lease amount regularly. The street orphan children and the neglected children of railway stations are brought and they are provided accommodation in the said home. The petitioner society is providing accommodation, clothing, food and education to them. The petitioner society is taking care of the children education by admitting them into Schools, ITI and Polytechnic Colleges and their empowerment. As explained in earlier paras, the petitioner society so far had not taken any financial assistance either from the Government. In spite of it, the petitioner society had been running the home and also importing the Hindu culture and traditions without giving any scope for caste barriers. 11. Further it is averred that while the matter stood thus, the lessor Sri Guntur Annadana Samajam – respondent No.4 was taken over by the Endowments Department under the provisions of the A.P. Charitable and Hindu Religious Institutions and Endowments Act, 1987 (hereinafter in short referred as ‘the Act’ for the purpose of convenience) When the premises was in dilapidated condition and it required drastic repairs, the petitioner society, on 14-06-2004, sought permission from the Manager of the fourth respondent institution to permit them to undertake repairs. The Manager of the fourth respondent in turn sought permission from the third respondent Deputy Commissioner of Endowments, through their letter dated 15-06-2004, who in turn granted permission through endorsement dated 26-06-2004. Thereafter, the petitioner society undertook repairs. Virtually, the petitioner society constructed a new building in the place of old building by spending lakhs of rupees, which had been contributed by the philontherists. At this stage, the fourth respondent institution started demanding the petitioner society to increase the rent from Rs.5,000/- per year to Rs.4,000/- per month (Rs.48,000/- per year) and to enter into a fresh lease. The petitioner society expressed its difficulty for abnormal increase of lease amount as it is running a home for street orphan children with a charitable object. At this stage, the fourth respondent filed an application being O.A.No.19 of 2005 before the third respondent Deputy Commissioner under Section 83 of the Act treating the petitioner society as an encroacher and to evict from the said premises. The petitioner society filed counter opposing the said application. 12. It is also stated that while the matter stood thus, the Manager of the fourth respondent institution submitted a representation to the third respondent intimating that it was amicably agreed to enhance the lease amount from Rs.5,000/- to Rs.9,000/- per year w.e.f. 01-01-2006 and seeking permission to enter into a fresh lease agreement and to withdraw the O.A.No.19 of 2005 pending before the third respondent. In the said representation, it is specifically stated that the petitioner society with laudable object is running a home for street orphan children in the said premises and the objects of the fourth respondent institution and the objects of the petitioner society are similar and as such the petitioner society is to be allowed to continue to the home in the leased premises. It is further stated that in the event of eviction the street children will be put to hardship and they may be an up-roar from public. 13. It is also stated that the third respondent in turn addressed a letter dated 12-01-2006 to the second respondent Commissioner appraising the situation and seeking permission to enter into a fresh lease with the petitioner society and to withdraw the case pending as requested by the fourth respondent institution. The second respondent in turn through his order dated 14-08-2006 directed the third respondent to submit a report regarding the status of the case pending and also submit a report placing the matter before the Trust Board of the fourth respondent institution. Accordingly, the Trust Board of the fourth respondent institution passed resolution on 11-09-2007 agreeing to enhance the lease amount from Rs.5,000/- to Rs.9,900/- per year and further authorizing the Manager to take further steps and intimated the same to the second respondent through third respondent. The Manager in turn filed a Memo before the third respondent seeking permission to enter into fresh lease agreement with the petitioner society for the enhanced lease amount of Rs.9,900/- per year and to dismiss the O.A. as not pressed. 14. Further it is averred that thereafter the third respondent through his letter dated 28-03-2008 sought information to the effect that whether the petitioner society is Hindu Organization or not. The petitioner society in turn submitted a letter dated 02-04-2008 to the third respondent explaining that the petitioner society is a Hindu Organization doing service to the street orphan children and it is regularly performing prayers and celebrating festivals as per Hindu Rites and Customs. So far, either the second respondent or the third respondent has not passed any orders permitting the fourth respondent institution to enter into a fresh lease agreement and to close the O.A. as sought for by the fourth respondent. Whereas, the third respondent (Endowments Tribunal) instead of closing the O.A., had been pressurizing the petitioner society to get appropriate orders from the second respondent or otherwise, they shall proceed further to dispose of the O.A. 15. It is also stated that the action of the second respondent in not permitting the fourth respondent to enter into a fresh lease with the petitioner society and in not closing the O.A. and in proceeding with the O.A. is contrary to law and arbitrary. The second and third respondents ought to have seen that admittedly, a registered lease was granted in favour of the petitioner society for a period of 30 years to run a home for street orphan children in the year 1996 itself. In any event, the fourth respondent institution after notified under the provisions of the Act, agreed to enter into fresh lease on enhancement of lease amount to enable the petitioner society to continue the home at the said premises. It is also admitted that the object of the fourth respondent institution and the object of the petitioner society are one and the same. In the said circumstances, there shall not be any prohibition to permit the petitioner society to continue to run the home. Otherwise, the street orphan children will be put to irreparable loss and hardship and their ongoing education shall be disturbed and they would become drop outs. 16. This court had carefully gone through the written instructions of respondent Nos.1 to 3 placed before this court by the learned AGP for Endowments. The stand taken in the written instructions almost are on similar lines as taken in the counter-affidavit of respondent No.4. In the counter-affidavit of respondent No.4 it is stated that the Assistant Commissioner, Endowments Department, Guntur under Section 83(1) of the Act, 30/87, upon a complaint made by the fourth respondent herein i.e., Sri Guntur Annadana Samajam, Amaravathi Road, Guntur District to the effect that one Daya Hrudaya Seva Samstha represented by its President, Kota Satyam i.e., the petitioner herein, first unauthorisedly demolished the building existing on the land belonging to the institution and illegally constructed a building with ground and first floor. 17. It is also stated that on perusal of the report received from the Assistant Commissioner, Endowments Department, Guntur, and finding that there is a prima facie case of encroachment, notice was issued to the petitioner herein specifying the particulars of encroachment and calling upon them to show cause as to why an order requiring him to remove the said encroachment should not be made. 18. Further it is stated the institution filed O.A.No.19 of 2005 on 27-02-2005 and the same is still pending disposal. At the outset it is submitted that the petitioner institution through a Hindu institution is not entitled to the relief claimed in the W.P. as it is blatant encroacher on the property that admittedly belongs to the fourth respondent Sri Guntur Annadana Samajam. It demolished the single storied tiled building belonging to the institution and constructed in its place a building consisting of ground and first floor without any permission and in a totally illegal manner. The petitioner herein who is respondent in the eviction case got filed vakalat through their counsel and filed their counter and have been contesting the case. 19. It is also averred that it is evident from the notice issued to the petitioner herein that the onus of proof in the eviction proceedings un-doubtedly lies on the respondents therein to prove that they are not encroachers within the meaning of the Act, by clearly mentioning the explanation under Sub-Section (1) of Section 83 of the Act.30/87. 20. Further it is stated that this respondent was examined as PW-1 and the case was now coming for the evidence of the respondent therein i.e., petitioner herein. When the same is pending the present petition is filed before the Hon’ble Court. 21. It is also averred in para 8 that this respondent choultry is a private charitable institution. Further it is stated that any lease of property of endowments should be governed by the provisions of Endowments Act 30/87 and accordingly, there respondent must be a valid lease approval by the competent authority. Any lease granted in contravention of the said rules is null and void. As the petitioner is claiming that the lease was granted for a period of 30 years by the then Secretary of this choultry, without taking prior approval of the Competent Authority it is not valid and binding. 22. It is also stated that it may be true that the petitioner institution is providing accommodation to the street orphan children, clothing, food and education. But, since the petitioner institution is in occupation of this respondent’s property, it has to get the lease approval orders as per rules. 23. It is also averred that this respondent institution was published as a public charitable institution long ago by the Commissioner, Endowments Department, A.P. Hyderabad, but the management was continued with previous board of trustees. As the previous board of trustees neglected the management of the choultry, and left the valuable choultry properties for it’s fate, and allowed the same to be occupied by encroachers, the Assistant Commissioner, Endowments Department, Guntur, appointed Sri K. Mohan Rao, Executive Officer, Sri Agastheswara Swamy Temple, Old Guntur, as single trustee, vide Rc.No.A5/7888/99, dated 07- 08-2001. Accordingly, the Single Trustee assumed the office as the previous management failed to handover the charge. The Previous Management got filed a W.P.No.20472/2001, before the Hon’ble Court questioning about the appointment of the Single Trustee. But, the same was dismissed as per orders dated 22-11- 2001. 24. It is further stated that it may be true that the petitioner herein sought for permission for getting repairs of the building. The petitioner herein mentioned in their affidavit that they have virtually constructed a new building in the place of the old building. But there is no specific permission for the same from the departmental authorities and even the repairs have to be done in the supervision of the Engineering section of the Endowments Department. As the petitioner herein is in occupation and enjoyment of the property belongs to this respondent choultry, the petitioner herein is liable to pay damages for use and occupation and to get lease approval orders from the competent authority. 25. It is also averred that it is a fact that the then Deputy Commissioner, submitted a repot letter in Rc.No.A4/ 9984/05, dated 12-01-2006 to the Commissioner, Endowments Department, A.P. Hyderabad, mentioning that the petitioner organization sought for the lease for a period of 3 years i.e., from 01-01-2006 to 31-12- 2008 on enhanced rent of Rs.9,900/- per year and that the petitioner organization is doing good job since a long time to the street children, in the interest of the institution, and it is better to consider the proposal positively subject to payment of annual rent in advance i.e., on first of every year by obtaining proper receipt from the manager and vacating the building as and when required by the department. 26. Further it is stated that the Commissioner, Endowments Department, A.P. Hyderabad, in his Rc.No.L3/6327/2003, dated 14-08-2006, instructed this respondent to furnish the action taken report on O.A.No.19/ 2005 filed by this respondent choultry, and also submit report after placing the matter before the Trust Board of the subject institution. It is also a fact that the Trust Board of this respondent institution passed a resolution dated 11-09-2007 agreeing to enhance the lease amount from Rs.5,000/- to Rs.9,900/- per year and further authorizing the Manager to obtain necessary lease approval orders from the departmental authorities for a period of three years from 01-01-2006 to 31-12-2008. Accordingly, this respondent submitted a detailed report dated 17- 09-2007 to third respondent requesting to sent proposals for granting lease in favour of the petitioner for a period of three years from 01-01-2006 to 31-12-2008 and if the lease is favourably considered permit him to withdraw the O.A.No.19/05. In turn, third respondent submitted a report vide Rc.No.A4/9984/05, dated 17- 12-2007 to the second respondent herein requesting to approve the lease in favour of the petitioner institution for a period of three years and to permit the Manager to withdraw the O.A.No.19/05 and pass necessary orders. 27. It is also averred that thereafter, the second respondent i.e., the Commissioner, Endowments Department, A.P. Hyderabad, sought for clarification vide Rc.No.H1/6327/03, dated 15-03-2008, whether the petitioner institution is a Hindu Organization or not. Accordingly, third respondent sought for the information vide Rc.No.A4/9984/05, dated 28-03-2008 from this respondent. This respondent submitted his report dated 08-04-2008, stating that the petitioner institution through their letter dated 02-04-2008 informed that their organization is Hindu Organization. 28. It is also averred in para 15 of the counter-affidavit of respondent No.4 that third respondent submitted report in Rc.No.A4/9984/05, dated 09-04-2008 to the Commissioner, Endowments Department, A.P. Hyderabad, mentioning that the petitioner institution is a Hindu Organization, while enclosing the report of this respondent and requested the second respondent to approve the lease infavour of the petitioner on enhanced rent of Rs.9,900/- per year for a period of three years from 01-01-2006 to 31-12-2008 with permission to the Manager to withdraw the O.A.No.19/05 filed before third respondent under Section 83 of the Endowments Act 30/87. The same is pending with the second respondent. 29. Further certain averments also had been made in para Nos.16, 17 and 18 and dismissal of the writ petition had been prayed for. 30. Along with the copy of the lease deed the copies of the representations and also the copies of the letters and the correspondents had been placed before this court. The unanimous resolution made by the Board of Trustees authorizing the Manager of the fourth respondent institution to have the extension of further lease also had been placed before this court. The memo filed by the fourth respondent in O.A.19/05 before the Deputy Commissioner, Endowments Department, Guntur reads as hereunder: “Before the Deputy Commissioner of Endowments :: Guntur O.A.No.19/05 Between: Sri Guntur Annadana Samajam, Amaravati Road, Guntur, rep. by its Manager. .. Petitioner and Daya Hrudaya Seva Samstha, Guntur, Rep. by its Chairman V. Ravi .. Respondent Memo filed on behalf of the petitioner:- It is respectfully submitted to the Hon’ble Court, that in pursuance of lease deed, the yearly rent enhanced and a sum of Rs.9900/- (Rupees Nine thousand Nine hundred only) per year was being paid towards rent. In view of the same the petitioner is not pressing the said O.A. against the respondent. Hence, the O.A. may be dismissed, without costs. Sd/- PETITIONER” 31. Apart from the unanimous resolution of the Board of Trustees, the proceedings in Rc.No.NIL/2005, dated -12-2005 addressed by the Office of the Manager, Sri Guntur Annadana Samajam, Amaravathi Road, Guntur had been specifically referred to. If the contents of those letter to be carefully examined ultimately the Manager made the request as hereunder: “I, therefore, request that the Deputy Commissioner, Endowments Department, Guntur may be pleased to consider the above facts and requests that the lease period of Daya Hrudaya Seva Samstha, Sri Guntur Annadana Samajam Compound, Amaravathi Road, Guntur in respect of the extent of site of 191 Sq. yard of site with the terraced building having plinth area of 986 Sq. feet baring Municipal Door No.4-18-69 may be approved on an annual rental at Rs.9,000/- for a period of three years from 01-01-2006 to 31-12-2008. I may also be permitted to withdraw the O.A.No.19/2005 filed before the Deputy Commissioner, Endowment Department, Guntur. Copies of the references cited are herewith submitted for favour of kind perusal and ready reference. Yours faithfully. Sd/- Manager.” 32. The request made by the petitioner praying for renewal of the lease agreement dated 02-04-2008 also had been placed before this court and the same reads as hereunder: “Days Hrudaya Seva Samstha Regd.No.328/92 Street Orphan Children Home Amaravathi Road, Guntur Date: 02-04-2008. To The Deputy Commissioner, Endowments Department, GUNTUR. Dear Sir, Sub: Lease of Site in favour of DAYA HRUDAYA SEVA SAMSTHA, GUNTUR, towards Street Children Home – Reg. Ref: Your letter No.A4/9984/05, dated 28-03-2008. - - - In response to the letter cited, we submit that our Organization is a Hindu Organization doing YOMEN SERVICE to the Street Orphan Children since 1992. Children are regularly performing Prayers and celebrating Festivals as per Hindu Religion in their day-to-day activities. This is for your information and necessary action at your end. In view of the above, we request your good-selves to kindly renew the Lease Agreement in favour of our Organization situated at Guntur Annadana Samajam, Amaravathi Road, Guntur and help the needy Children. Thanking you, Yours faithfully, (KOTA SATYAM) President.” 33. The proceedings Lr.in.Rc.No.A4/9984/05 dated 12-01-2006 by the Office of the Deputy Commissioner, Endowment Department, Guntur, addressed to the Commissioner, Endowments Department, Andhra Pradesh, Hyderabad had been placed before this court and the said proceedings reads as hereunder: “Office of the Deputy Commissioner, Endowment Department, Guntur. Lr.in.Rc.No.A4/9984/05 dated 12-01-2006. To The Commissionr, Endowments Department, Andhra Pradesh, HYDERABAD. Sir, Sub: Endowment Department – Guntur Town & District – Amaravathi Road – Sri Guntur Annadana Samajam – Lease of site and building in favour of Daya Hrudaya Seva Samstha, Guntur towards Street Children Home – Report submitted. Ref: 1. Rc.No.M2/6327/03, dt:18-02-03 from the Commissioner, Endowments Department, A.P., Hyderabad. 2. This office Rc.No.A4/2655/03 dated 19-04-2003. 3.Rc.No.L2/6327/03 dt:03-11-05 from the Commissioner, Endowments Department, A.P., Hyderabad. 4. This