IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE EIGHTEENTH DAY OF DECEMBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE RAMESH RANGANATHAN WRIT PETITION NO : 23853 of 2008 Between: 1 Avuluri Pushpavathi W/o. Srinivasa Reddy R/o. H.No. 1-228, Purushothampatnam Village, Bhadrachalam Mandal, Khammam District. 2 Kumbham Radha W/o. Venkanna R/o. H.No. 1-218, Purushothampatnam Village, Bhadrachalam Mandal, Khammam District. 3 Morthala Rami Reddy S/o. Subba Reddy R/o. H.No. 1-170, Purushothampatnam Village, Bhadrachalam Mandal, Khammam District. 4 Bogala Veera Reddy S/o. Seeta Rami Reddy R/o. H.No. 1-96, Purushothampatnam Village, Bhadrachalam Mandal, Khammam District. 5 Putti Anjaneyulu W/o. Rosaiah R/o. H.No. 1-199, Purushothampatnam Village, Bhadrachalam Mandal, Khammam District. 6 Koppula Venkata Reddy S/o. Veera Reddy R/o. H.No. 1-13, Purushothampatnam Village, Bhadrachalam Mandal, Khammam District. 7 Bogala Ranga Reddy S/o. Sita Rami Reddy R/o. H.No. 1-231, Purushothampatnam Village, Bhadrachalam Mandal, Khammam District. 8 Garlapati Srinivasulu S/o. Rama Chander Rao R/o. H.No. 3-19, Purushothampatnam Village, Bhadrachalam Mandal, Khammam District. 9 Chekuri Radha Krishna S/o. Gopaiah R/o. H.No. 1-84/A, Purushothampatnam Village, Bhadrachalam Mandal, Khammam District. ..... PETITIONER(S) AND 1 The Sub Collector Bhadrachalam Khammam District. 2 The Tahsildar Bhadrachalam Khammam District. 3 The Station House Officer P.S. Town Bhadrachalam Khammam District. 4 The Executive Officer Sri Seeta Rama Chandra Swamivari Devasthanam Bhadrachalam, Khammam District. .....RESPONDENT(S) 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 a writ, order or direction more particularly one in the nature of Writ of Mandamus declaring the action of the respondents in trying to demolish the petitioners from their houses i.e. H.No. 1-228, H.No.1- 218, H.No.1-170, H.No.1-196, H.No.1-199, H.No.1-13, H.No.1-231, H.No.3-19, and H.No.1- 84/A, respectively, situated at Purushothampatnam Village, Bhadrachalam Mandal, Khammam District, without issuing any notice and proceedings is illegal, void and opposed to Articles 14, 19, 21 and 300-A of Constitution of India and consequently to direct the respondents not to demolish the petitioners houses without due process of law. Counsel for the Petitioner:MR.MUMMANENI.SRINIVASA RAO Counsel for the Respondent No.: GP FOR REVENUE The Court made the following : THE HON'BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION No.23853 OF 2008 ORDER: Petitioners, nine in number, question the action of the respondents in trying to evict them from their houses situated at Purushothampatnam village, Bhadrachalam Mandal, Khammam District, without notice, as illegal, void and in violation of Articles 14, 21 and 300-A of the Constitution of India. They seek a consequential direction to the respondent not to demolish their houses without due process of law. Petitioners claim that their forefathers purchased the property in different Survey numbers in Purushothampatnam village and thereafter constructed houses in the said land to which the Gram Panchayat had given house numbers and collected house tax. On a dispute being raised by the 4th respondent –temple authorities with regards grant of ryotwari pattas under Regulation 2 of 1970 to the petitioners’ forefathers, the 4th respondent succeeded in the year 1998. According to the petitioners, from 1998 till date the respondents did not take any steps to recover possession from the petitioners, and they never issued any notice either under the Land Encroachment Act or under any other law to dispossess them from the land in question. Petitioners would contend that some tribals had encroached on the land of the 4th respondent, had raised huts claiming rights over these plots and, in connection therewith, the respondents had initiated proceedings to dismantle the houses raised by the tribals. According to the petitioners, the 4th respondent had also canvassed in their locality on 30-10- 2008 that they would also dismantle the petitioners’ houses. Sri Mummaneni Srinivasa Rao, Learned Counsel for the petitioners, would submit that, even if the plots in which the petitioners raised buildings are held to belong to the 4th respondent temple, the petitioners can be evicted only in accordance with the provisions of Section 83 of the A.P. Charitable and Hindu Religious Institutions and Endowments Act, 1987, and that, without adhering to the procedure prescribed thereunder, it was not open to the respondents to high handedly evict the petitioners from the buildings in question. Petitioners would rely on an order of this Court in W.P.Nos.25154 of 2006 and batch dated 20.12.2006. A counter affidavit is filed on behalf of the 4th respondent wherein it is stated that the predecessors of the petitioners had constructed houses on lands belonging to the 4th respondent – Devasthanam, that these properties were gifted in favour of the temple by Late Sri S.Purushothamdas vide registered gift deed dated 12.10.1878, that the Settlement Officer, Bhadrachalam, in his order dated 4.6.1985, had granted ryotwari patta under Section 9 of Regulation 2 of 1970 in favour of the 4th respondent, that the petitioners’ survey numbers was also included in the said order, that, aggrieved by the orders of the Settlement Officer, the predecessors of the petitioners had preferred an appeal before the Director of Settlements in Appeal No.145/85 and batch, that the Director of Settlements had dismissed the appeals, confirming the order of the Settlement Officer, by his order dated 17.7.1992, that aggrieved thereby the predecessors of the petitioners had approached this Court by way of W.P.No.20649 of 1993 and batch which was also dismissed on 5.8.1998 confirming the order of the Director of Settlements and the Settlement Officer, Bhadrachalam, that the writ appeals preferred by the predecessors of the petitioners in W.A.No.1741 of 1998 and batch were also dismissed by order dated 2.11.1998 wherein it was held that the lands, on which the petitioners had claimed to have constructed houses, were patta lands of the Devasthanam and that no other person, including the petitioners, had any right title or possession over the property. The 4th respondent would point out that from out of 9 petitioners, petitioners 3 and 9 were parties in W.P.Nos.739 and 796 of 1994 and W.A.Nos.1762 and 1743 of 1998 respectively, that similarly the predecessors of petitioners 1,2,4,5,6 7 and 8 were parties in W.P.Nos.790, 4742, 19957 of 1994, W.P.Nos. 24775 and 35096 of 1996, W.P.Nos.19957 and 2006 of 1994 and W.A.Nos.1756, 1758, 1753 and 1757 of 1998 wherein orders were passed confirming the ryotwari pattas granted in favour of the Devasthanam over the lands in Purushothampatnam village, Bhadrachalam Mandal wherein the houses, which are the subject matter of the present writ petition, were built. It is also stated that the Deputy Commissioner of endowments had passed orders on 2.2.1998, under Section 85 of Act 30 of 1987 directing eviction of 106 encroachers including the petitioners and their predecessors in the present writ petition, that the petitioners had no right to continue in possession of the subject matter of the property as their claims were rejected by the High Court and that it was not open to them to commence another round of litigation. According to the 4th respondent the petitioners had no right to continue in endowment lands owned by the 4th respondent and that they had not come to the Court with clean hands. The 4th respondent would refer to the orders passed by this Court in W.P.No.27476 of 2007 dated 17.9.2008 wherein it was held that the 4th respondent had the right to evict the petitioners without institution of any further proceedings. The Settlement Officer, in his order dated 4.6.1985, held that the 4th respondent temple had proved its title and possession for more than 8 years before 1971 as required under the Second proviso to Section 7(i) read with Section (9) of Andhra Pradesh Ryotwari Settlement Regulation 2 of 1970 and that they were entitled for a ryotwari patta. Despite a patta being granted in favour of the 4th respondent, as early as in 1985, and though the appeal preferred by the petitioners herein, and their predecessors, against the order of the Settlement Officer had been dismissed by the Director of Settlements, the writ petition preferred thereagainst was dismissed by a Single Judge and the said order was confirmed in appeal by a Division Bench of this Court, the petitioners continue to retain possession of the buildings, built over lands belonging to the 4th respondent. This Court, in its order in W.P.20649 of 1993 and batch dated 5.8.1998, had observed: “In view of the finding of the Court that the petitioners are not the tenants of the subject land and they were not in lawful occupation and possession of the subject land as on 1.7.1970 and consequently they are not entitled to ryotwari pattas under the second proviso to sub-section (1) of Section 7 of the Regulation, there is no need to consider the contention of the learned counsel for the first respondent temple that only the owners are entitled to seek grant of ryotwari pattas under the Regulation.” Reliance placed by the petitioners on the judgment of this Court in W.P.No.25154 of 2006 dated 20.12.2006 is misplaced. The said order was a consent order wherein this Court noted that the petitioner was under the apprehension that he may be dispossessed forcibly and that the Learned G.P. and A.G.P. had agreed that until and unless appropriate action was taken under Section 83 of A.P. Charitable and Hindu Religious Institutions and Endowments Act, 1987, the petitioner could not be evicted. I n Bandari Harnath v. The Sri Seetharamachandra Swamyvari Devasthanam, Bhadrachalam[1], this Court observed: “…….Even otherwise, the stand taken by the petitioner in this writ petition is almost challenging in nature. He feels that even if his possession is illegal, he can be dispossessed, only by taking recourse to Section 8 of the A.P.Charitable and Hindu Religious Institutions and Endowments Act. It only exhibits his unshaken confidence that he would be able to thwart the attempts of the Temple for few more decades. The conduct of the petitioner cannot be countenanced. Further, mere pendency of an appeal or revision before the 4th respondent cannot be the basis for the petitioner to be in possession of the land…….” (emphasis supplied) Hence, the writ petition is dismissed and it is directed that if the petitioner continues in possession of the land beyond 30.9.2008, he shall be liable to pay the lease amount for the land at the rate of Rs.5,000/- (Rupees Five Thousand only) per acre , for the past five years and the recovery of the said amount shall be in addition to the right of the Temple to evict the petitioner, without the need of institution of any further proceedings. There shall be not order as to costs. Despite the fact that the land belonged to the 4th respondent on its being gifted to it as early as in 1878, and though it was held by the Director of Settlements, as early as in June 1985, that there was a patta in their favour, the petitioners continue to remain in illegal possession of the lands in question for the past 23 years, (from the order of the Settlement Officer dated 4.6.1985). The challenge by them to the order of the Settlement Officer was rejected in appeal by the Director of Settlements, thereafter by a Learned Single Judge and Division Bench of this Court. Despite the order of the Division Bench having attained finality as early as on 2.11.1998, more than a decade ago, the petitioners did not take any steps to vacate the building and hand over peaceful possession to the 4th respondent. Not only did they continue to retain possession of the land, (which has been held by several authorities to belong to the 4th respondent), for the past several years, they did so without payment of even a rupee to the 4th respondent for occupation of their land. When the matter came up on 1.12.2008, this Court inquired whether the petitioners were willing to deposit arrears of rent at Rs.2000/- per month from 1.8.1998, the date of order of this Court, till date to show their bona fides. The matter was adjourned by a week to enable Sri M.Srinivas Rao, Learned Counsel for the petitioners, to obtain instructions. When the matter came up for hearing on 8.12.2008, Learned Counsel for the petitioners would state that the buildings, in the vicinity, would not even fetch rent of Rs.200/- per month and there was no justification in calling upon the petitioners to pay arrears of rent at Rs.2000/- per month. It is evident, that the petitioners, despite admitting to continue being in illegal and unauthorized occupation of the land belonging to the 4th respondent, have not only failed to vacate the premises, but have continued to retain possession free of cost. They now claim protection from this Court. Would this Court be justified in showing indulgence to those who have, admittedly, violated the law? It is well to remember that exercise of jurisdiction under Article 226 of the Constitution of India is discretionary and a Writ is not issued as of right or as a matter of course. (C.R.Reddy Law College Employees’ Association, Eluru W.G.District vs. Bar Council of India, New Delhi[2]). As the power exercised by this Court, under Article 226 of the Constitution of India, is discretionary it need not be exercised in every case where there is an error of law. One of the limitations imposed by this Court, on itself, is that it would not exercise jurisdiction unless substantial injustice has ensued or is likely to ensue. It would not allow itself to be turned into a court of appeal to set right mere errors of law which do not occasion injustice. (Sangram Singh v. Election Tribunal, Kotah[3]). Even when some defect is found in the decision making process, this Court will exercise its discretionary power, under Article 226 of the Constitution of India, with great caution and only in furtherance of public interest and not merely on the making out of a legal point. This Court is required to keep larger public interest in mind in order to decide whether its intervention is called for or not. Only when it comes to the conclusion that overwhelming public interest requires interference, would it intervene in the matter. (Air India limited v. Cochin International Airport Limited[4]). I see no reason to exercise discretion under Article 226 in favour of the petitioners who, having admittedly voilated the law, now insist that they should not be dispossessed without adhering to the provisions of A.P. Act 30/87 and, in effect, be permitted to retain illegal possession of the lands, belonging to the 4th respondent, free of cost. The writ petition fails and is, accordingly, dismissed. No order as to costs. _____________ 18-12-2008 asp [1] Judgment in W.P.No.27476 of 2007 dated 17.9.2008 [2] 2004(5) ALD 180 (DB) [3] AIR 1955 SC 425 [4] 2000(2)SCC 617