IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE EIGHTEENTH DAY OF JUNE TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MS JUSTICE G.ROHINI WRIT PETITION NO : 12159 of 2008 Between: N. Haranath S/o. Venkata Subbaiah R/o. Mypadu Village, Indukurupet Mandal, Nellore District. ..... PETITIONER AND 1 Sri Prasanna Anjaneya Swamy Vari Devastanam, Mypadu Village, Indukurupet Mandal, Nellore District. rep. by its Executive Officer. 2 The Assistant Commissioner of Endowments, Nellore. .....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 issue a writ, order or direction more particularly a writ in the nature of Writ of Certiorari calling for the records relating to the impugned notice issued by the 1st respondent i.e., Sri Prasanna Anjaneya Swamy Vari Devastanam, represented by its Executive Officer to auction the lease-hold rights of the temple land in Sy.No.566/A admeasuring an extent of Acs.1-14 cents and in Sy.No.566/B admeasuring an extent of Acs.0-24 cents situated in Mypadu Village on 19.06.2008, as illegal, arbitrary, opposed to law, contrary to the judgment of the Hon'ble Supreme Court and the petitioner herein prays that the same may be quashed. Counsel for the Petitioner : MR. M.VIDYASAGAR Counsel for the Respondents : V.T.M.PRASAD,SC FOR ENDOWNMENTS The Court made the following : THE HON’BLE Ms. JUSTICE G. ROHINI WRIT PETITION NO.12159 OF 2008 ORDER : This writ petition is filed aggrieved by the action of the 1st respondent temple in proposing to conduct public auction on 19.06.2008 for grant of leasehold rights in respect of the lands of the temple situated in Gangapatnam and Mypadu Villages for three years i.e., 2008-09 to 2010-2011. I have heard the learned counsel for the petitioner as well as the learned Counsel appearing for the 1st respondent temple and the learned Government Pleader appearing for the 2nd respondent. The fact that the writ petitioner was granted a lease in respect of Ac.1.14 cents of land situated in Sy.No.566-E and another extent of Ac.0.24 cents of land situated in Sy.No.566-B of Mypadu Village belonging to the 1st respondent temple is not in dispute. In the counter-affidavit filed on behalf of the 1st respondent temple, it is stated that the petitioner was granted a lease in the year 1965 and that he committed default in payment of maktha for the years 1990-91 to 1996-97 and therefore the temple filed A.T.C.No.12/1997 before the Special Officer-cum-Principal Junior Civil Judge, Nellore for eviction of the petitioner. By order, dated 5.7.2000, A.T.C.No.12/1997 was allowed directing the petitioner to deliver the vacant possession of the land within one month. Though the petitioner preferred C.M.A.No.32 of 2000 in the Court of the IV-Addl. District Judge, Nellore, the same was dismissed by Judgment dated 20.04.2004. According to the 1st respondent temple, a sum of Rs.74,662/- is due as on today from the petitioner towards rents payable by him. Since he is a chronic defaulter and failed to pay the arrears, the leasehold rights in respect of the lands in question are put to auction under the impugned notice. Though in the counter-affidavit, it is vaguely pleaded that the lands put to auction are in possession of the temple, nothing has been mentioned how and when the possession has been delivered to the 1st respondent temple. On the other hand, the specific case of the petitioner is that for the last 60 years, since the time of his forefathers the land in question has been in their possession and enjoyment. Though it is not disputed by the petitioner that the land belongs to the 1st respondent temple it is contended that he is in possession as a cultivating tenant and that he has been paying the rents payable to the 1st respondent regularly without any default. It is also pleaded that except the small extents of land belonging to the temple, he has no other land and thus being a small farmer and landless poor person he is entitled to the benefits under Section 82 of the A.P. Charitable and Hindu Religious Institutions and Endowments Act, 1987 (for short, ‘the Act’). It is contended by the petitioner that he made an application before the Assistant Commissioner of Endowments on 3.3.2008 seeking a declaration that he is a landless poor person and the same is still pending consideration. It is also specifically pleaded by the petitioner that he is continuing in possession of the land in question as on today and that the rents paid by him from time to time are being received by the 1st respondent without raising any protest. The receipts passed on by the Executive Officer of the 1st respondent temple acknowledging the payment of rent for the year 2006-07 has been placed before this Court in support of the said plea. The learned counsel for the petitioner vehemently contended that the action of the 1st respondent in proposing to conduct public auction for grant of leasehold rights in respect of the land in his possession is ex facie illegal. It is also contended that since the claim of the petitioner that he is a landless poor person is pending adjudication before the 2nd respondent and admittedly the petitioner is in possession of less than 2 ½ acres of land, his legitimate claim for the benefit of Section 82 of the Act cannot be defeated. On the other hand, the learned counsel for the 1st respondent temple as well as the learned Government Pleader for Endowments contended that in view of the order of eviction passed by the Special Officer in A.T.C.No.12 of 1997 as confirmed on Appeal, the petitioner’s possession shall be construed as illegal and unauthorized and therefore it is open to the 1st respondent to proceed with the auction of the leasehold rights as proposed under the impugned notice. On the basis of the facts narrated above, it is clear that the petitioner is continuing in possession as on today since admittedly in spite of the order of eviction passed in A.T.C.No.12 of 1997 the 1st respondent failed to take any steps for recovery of possession following due process of law. Similarly, nothing has been placed before this Court to show that any steps have been initiated by the 1st respondent for recovery of the arrears of rents allegedly due from the petitioner. Even assuming that the contention of the respondents that the petitioner never made any application before the Assistant Commissioner of Endowments to declare him as a landless poor person is correct, I am of the opinion that the claim of the petitioner for statutory benefit under Section 82 of the Act cannot be rejected only on that ground. It is for the 2nd respondent who is the competent authority under the statute to conduct necessary enquiry and determine whether the petitioner is a landless poor person within the meaning of the explanation to sub-section (2) of Section 82 of the Act. Even where it is declared that the tenant is a landless poor person, it is always open to the respondents not to accept the option exercised by the cultivating tenant if the other requirements under Section 82 of the Act are not satisfied. Hence, it is not necessary for this Court to express any opinion at this stage as to the rival claims made by the parties. However, since admittedly the enquiry into the petitioner’s claim that he is a landless poor person has not yet been conducted and the petitioner is still continuing in possession of the land which is less than the limits specified under the explanation to Section 82 (2) of the Act, the action of the 1st respondent in proposing to auction the leasehold rights in respect of the lands in possession of the petitioner is impermissible and illegal. Accordingly, the auction under the impugned notice to the extent of the lands in possession of the petitioner (Item No.3 of the impugned notice) is hereby declared as illegal. In view of the dispute with regard to the pendency of enquiry before the 2nd respondent, it is made clear that the petitioner shall appear before the 2nd respondent within two weeks from today with all the relevant material to substantiate his claim. In such an event, the 2nd respondent, after due notice to both the parties, shall conduct the necessary enquiry and pass appropriate orders in accordance with law within four weeks thereafter. Till such orders are passed, the 1st respondent shall not put the leasehold rights of the land in possession of the petitioner. It is further made clear that this Court has not expressed any opinion as to the rights acquired by the 1st respondent by virtue of the Order in ATC.No.12 of 1997 on the file of the Special Officer-cum- Principal Junior Civil Judge, Nellore and this order shall not preclude the respondents to take further steps if any on the basis of the said order following due process of law if they so choose. Writ Petition is accordingly disposed of. No costs. _____________ G. ROHINI,J. Dt.18.06.2008 gbs Note:_ Issue operative portion by wire at party’s costs. (B/O) gbs