THE HON'BLE SRI JUSTICE P.S.NARAYANA W.P.No.7639 of 2009 Date : 20-11-2009 Between : V.Prabhakar Reddy s/o. V.Rama Raghava Reddy .. Petitioner and The Government of A.P. represented by its Secretary, Revenue, Endowments, Secretariat, Hyderabad and others .. Respondents THE HON'BLE SRI JUSTICE P.S.NARAYANA W.P.No.7639 of 2009 ORDER: 1. This Court issued rule nisi on 9-4-2009 and in W.P.M.P.No.10020/2009 made the following order : “The auction as notified may go on. However, the same shall not be finalized until further orders.” 2. The 5th respondent/Executive Officer/Single Trustee of Sri Vigneswara Swamy Temple, Chinacherukuru and the 6th respondent who filed an application to implead himself as party and who was brought on record by virtue of the order made in W.P.M.P.No.28789/2009 filed vacate applications to vacate the interim order. When the vacate application came up for hearing, the Counsel on record made a request for final disposal of the Writ Petition and hence the Writ Petition itself is being disposed of finally. 3. Heard Sri V.Hanumantha Rao, the learned Counsel representing the writ petitioner, the learned Assistant Government Pleader for Endowments representing respondents 1 to 4 and Sri V.T.M. Prasad, Counsel representing the 5th respondent and Sri M.Vidya Sagar, Counsel representing the 6th respondent. 4. Sri V.Hanumantha Rao, 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 would maintain that for the first time the possession of the writ petitioner relating to the lands in question is being disturbed and it is utter surprise that his client received a letter vide proceedings L.Dis.A1/719/2009 dated 27-2-2009 from the 4th respondent to the effect that the publication list is not available in the office records as the said publication pertains to the year 1990. The learned Counsel also would maintain that when the very publication said to have been issued under Section 6(c) of A.P. Charitable and Hindu Religious Institutions Endowments Act 1987 (hereinafter in short referred to as “Act” for the purpose of convenience) is not available, the question of putting the lands in question to auction would not arise. The learned Counsel also would maintain that certain crops had been raised and in the event of the Writ Petition being dismissed at this stage, the writ petitioner may not be able to harvest the crops raised by him and even in this view of the matter the Writ Petition to be allowed. 5. On the contrary, the learned Assistant Government Pleader for Endowments would submit that in the light of the clear and categorical averments made in the counter affidavit of the 5th respondent, if the interim order is not vacated and the Writ Petition is not dismissed, the Temple as such would be put to heavy loss. 6. Sri V.T.M. Prasad, the learned Counsel representing the 5th respondent had taken this Court through the contents of the counter affidavit and would maintain that the remedy by way of Writ Petition being a misconceived remedy, the Writ Petition to be dismissed. 7. Sri M.Vidya Sagar, the learned Counsel representing the 6th respondent would maintain that the writ petitioner is none other than the brother of the 6th respondent and the learned Counsel also had explained the historical background of this Institution and would maintain that this is the only income available the Institution and when the Institution is deprived of such income, the pious wish of the founder, the grand father of the writ petitioner and the 6th respondent, in a way would be defeated. The learned Counsel also would maintain that unfortunately the writ petitioner is acting detriment to the interest of the Institution, contrary to the wishes of the founder and ultimately the learned Counsel would conclude that the Writ Petition being devoid of merit, the same to be dismissed. 8. Heard the Counsel and perused the respective stands taken in the counter affidavits as well. 9. The Writ Petition is filed for a writ of mandamus dealing the action of the 2nd respondent in issuing the proceedings Rc.No.12108/90 dated 11-4-1990 published in the Gazette stating that the Endowments Department took over Sri Vigneswara Swamy Temple, Chinnacherukuru village, Thotapalli Village, Nellore District published in Gazette at Sl.No.800 of the list, without issuing notice to the petitioner as illegal and arbitrary and pass such other suitable orders. 10. It is the case of the petitioner that his forefathers had established Sri Vigneswara Swamy Temple at Chinnacherukur village, T.P. Guduru Mandal, Nellore District and donated lands to conduct and perform poojas from time to time and the temple had maintained by his family. The petitioner also donated lands to the temple in the year 1980 to an extent of Ac.2-50 cents and till date the affairs of the temple including the management of the petitions had been done by the petitioner only. It is further stated that by the proceedings Rc.No.A3/10373/2008 dated 24-1-2009, the 3rd respondent issued proceedings appointing the 5th respondent as Single Trustee and it was only after the said proceedings the petitioner came to know about the appointment of the Single Trustee and he said appointment does not speak about any notification or proceedings purported to had been issued by publishing in the list as contemplated under the Act. 11. It is also further stated that no sooner the proceedings dated 24-1-2009 were issued, the petitioner made an application the 4th respondent to furnish the information as to when the publication was issued under Section 6(c)(ii) of the Act and to the utter surprise of the petitioner, he received a letter in proceedings L.Dis.No.A1/719/09 dated 27-2-2009 from the 4th respondent stating that the publication list is not available in the office records as it pertains to 1990 and the same goes to show the high handedness of the respondents- authorities. It is further stated that when the civil rights of a citizen are affected by the proposed action under the provisions of the Act, compliance with the principles of natural justice is implicit unless such a requirement is specifically taken away. In the instant case, no notice whatsoever had been issued the predecessors of the petitioner or to the petitioner. It is further stated that without any proper notification under Section 6(c)(ii) of the Act, the respondents-authorities have no right to appoint anybody as Trustee. In view of the fact that no notice had been given either to the petitioner or his predecessors, the impugned proceedings cannot be sustained and the same is opposed to principles of natural justice. 12. Further it is stated that the 5th respondent had issued notification to lease out the lands for a period of three years and without any right the respondents- authorities are acting high handedly and the auction is scheduled to be conducted on11-4-2009 in the premises of Sri Vigneswara Swamy Temple, Chinnacherukuru, T.P. Gudur Mandal, Nellore District. The petitioner had been in continuous possession and enjoyment of the land proposed to be leased out in the auction as on date and even during the year 1990. In such circumstances, the writ petitioner approached this Court praying for the reliefs aforesaid. 13. In the counter affidavit filed by the 5th respondent it is stated that Sri Vigneswara Swamy Temple, Chinnacherukuru village, T.P. Guduru Mandal was published under Section 6(c)(ii) of the Act and is under the administrative control of the Assistant Commissioner, Endowments Department, Nellore. The said Institution was being managed by V.Prabhakar Reddy, Trustee of the said temple. As the Trustee is not administering the Institution properly under the provisions of the Act the Assistant Commissioner, Endowments Department, Nellore submitted a report to the 3rd respondent/Deputy Commissioner, Endowments Department, Guntur in Rc.No.A1/4272/2008 dated 28-11- 2008 requesting to appoint the 5th respondent/B.Mallikarjuna Reddy, E.O. of Sri R.K. Charities, North Mopuru, as Single Trustee of Sri Vigneswara Swamy Temple, Chinnacherukuru village, T.P. Gudur Mandal, Nellore District. Basing on the said report of the 4th respondent, the 3rd respondent had issued proceedings in Rc.No.A3/10373/08 dated 24-1- 2009 appointing the abovesaid person as a Single Trustee with a direction to work as a Single Trustee in the office until further orders. The Inspector, Endowments Department, Nellore had been authorized to administer the oath of office and secrecy to the person appointed as the Single Trustee and to take charge of accounts and records of the temple from the Executive Authority and submitted the charge list to the Assistant Commissioner, Endowments Department, Nellore duly signed by both within 30 days. Accordingly, the Inspector, Nellore had administered oath of office and secrecy on 8-2-2009 to the 5th respondent. After administering the oath of office and secrecy a letter had been addressed to the Executive Authority of the temple with a request to handover the accounts within three days from the date of receipt of the letter. The Executive Authority of the temple had not received the copy of the order issued by the Deputy Commissioner, Endowments Department, Guntur and on repeated requests and personal representation made by the Single Trustee finally the Executive Authority received the copy of the orders issued by the Deputy Commissioner, Endowments Department, Guntur along with a letter addressed by the Single Trustee on 16-2- 2009. The Executive Authority in his letter dated 16-2- 2009 addressed to the Single Trustee said that he will handover the temple records in due course. 14. It is also further stated that the Deputy Commissioner, Endowments Department, Guntur in his proceedings Rc.No.A3/9271/08 dated 3-2-2009 had issued instructions to the 4th respondent marking a copy to the Single Trustee of the temple to take immediate action in leasing out the lands of Ac.2-39 cents in S.No.980 in public auction and to submit report to the Hon’ble Minister for Endowments Department as called for in Rc.No.343/H1/Endts., on 3-2-2009. The Single Trustee had requested the Executive Authority of the temple to hand over the said land to the temple with records and he informed orally that crop had been raised in the temple land and he will handover the temple land after cutting the crop raised in the temple land. However, the Executive Authority of the temple had failed to handover the records of the temple and to handover possession of the land to the temple. 15. It is also further stated that after observing the tactics played by the Executive Authority with the Single Trustee who is managing the temple, the Single Trustee had taken steps to lease out the lands in public auction on 11-4-2009 as per the instructions issued by the Deputy Commissioner, Endowments Department, Guntur in Rc.No.A3/9271/08 dated 3-2-2009. The Executive Authority with a vindictive motive had approached this Court by way of the present Writ Petition against the respondents 1 to 5 with untenable grounds and this Court made the interim orders dated 9-4-2009 in W.P.M.P.No. 10020/2009. After receiving the said interim orders of this Court, the Single Trustee had taken steps to lease out the lands of S.No.980 to an extent of Ac.2-39 cents wet land for a period of three years from 2009-10 to 2011-12 in public auction on 11-4-2009 after giving wide publicity in the village and other surrounding villages on distributing printed pamphlets mentioning ten conditions and through “dandora” in the village and the surrounding villages by way of tom-tom. After making wide publicity, only nine persons had signed on the lease conditions read out in the presence of the villagers and Inspector, Endowments Department, Nellore on 11-4-2009 at 11 A.M. Five persons had paid initial deposit of Rs.5000/- each and participated in the auction. There was keen competition among the bidders and Sri Goganapalli Subbaiah s/o. Subbaramaiah of Chinnacherukuru had offered the highest bid i.e., 2 putties of paddy per year for the entire land of Ac.2-39 cents from 2009-10 to 2011-12. 16. It is also further stated that previously the entire maktha on the lands was being appropriated by the petitioner for his personal benefits and spending lesser amounts towards expenditure to the temple. The petitioner was not maintaining the accounts properly and misappropriated the income for himself. The directions by the Government and the Deputy Commissioner, Endowments Department, Guntur dated 3-2-2009 to the Assistant Commissioner to take action in leasing out the lands in public auction is totally legal. 17. Further it is stated that if the forefathers of the petitioner had established the temple and donated the lands to conduct and perform poojas in the temple, the petitioner has to seek remedy either as private or public temple as per the provisions of the Act but he had kept silent in questioning the publication of the institution under Section 6(c)(ii) of the Act and also on the appointment of the Single Trustee. The petitioner had put the temple in dark as he is styling as Trustee privately and enjoying the either income on the lands for his personal benefits. When the Endowments Department had taken action appointing the Single Trustee to the temple, the petitioner rushed to this Court to seek relief for his personal benefit. 18. Further it is stated that the appointment of the Single Trustee had been made by the Deputy Commissioner, Endowments Department, Guntur in Rc.No.A3/10373/2008 dated 24-1-2009 under the provisions laid down under Section 15(2) of the Amending Act 33 of 2007. Further, the question of issuing the proceedings dated 24-1-2009 and furnishing the information on the publication of the institution under Section 6(c)(ii) of the Act does not arise. The publication of the Institution is final as it had been made by the Gazette notification by the Government and it was never questioned by the petitioner which shows how the petitioner is maintaining the temple and kept quiet these long years till the Department instituted action to set-right the management to secure the income to the Institution. 19. It is also further stated that after appointing the E.O. of Sri R.K. Charities, North Mopuru as a Single Trustee, the petitioner himself had acknowledged the receipt of letter No.Nil/2009 dated 8-2-2009 on 16-2-2009 and had also given consent to the Single Trustee that he will hand over the temple records in due course. The Single Trustee had acted as per the directions of the Deputy Commissioner, Endowments Department, Guntur in Rc.No.A3/9271/08 dated 3-2-2009 and he public auction in leasing out the temple lands had been made as per lease rules and the villagers had never questioned the procedure in conducting the public auction as per the rules. The petitioner, with a vindictive motive to have the temple lands in his clutches and to enjoy the income on the lands for his personal benefits had concocted a story which is not reliable in the eyes of the public nor is it believed by the people of the village. Further it is stated that the petitioner had been in possession of the land since 1990 and it is his legitimate duty to render the income and expenditure on the temple lands to the Endowments Department and since he kept silent in the matter since 1990, the petitioner has to pay damages to the institution as he failed to render accounts to Endowments Department causing irreparable loss and hardship to the temple. 20. In the counter affidavit filed by the 6th respondent, several further details also had been narrated. It is averred in para-3 that at the outset the Writ Petition deserves to be dismissed in limine for the sole reason that the proceedings that are assailed in the present Writ Petition is the publication made under Section 6(c) of the Act by the Commissioner of Endowments wherein the subject temple is classified under Section 6(c) of the Act. The assailing of the classification made under Section 6(c) of the Act is a disputed question of fact which cannot be agitated under Article 226 of the Constitution of India before this Court. The only remedy left over to the petitioner if at all he is aggrieved by the publication is to approach the Endowments Tribunal under Section 87 of the Act to delete the classification and seek any such declaration under the Act. Any such declaration as to the nature and character of the institution has to be agitated only before the Endowments Tribunal and not before this Court seeking a writ of mandamus against the said classification made by the Commissioner of Endowments. 21. It is averred in para-4 that the Writ Petition deserves to be dismissed even on the ground that a perusal of the interim prayer and final prayer would go to prove that the petitioner is unclear as to what exactly he is urging this Court and as to what relief he is seeking whether it is assailing the classification or assailing the public auction conducted by the Executive Officer of the subject institution. By any means both the issues cannot be clubbed in a single Writ Petition and even on the said ground the Writ Petition has to be dismissed as not maintainable. Further, in reply to para-2 of the affidavit filed in support of the Writ Petition it is stated that it is true that the petitioner’s grand father Sri Vema Reddy Venku Reddy had constructed the subject temple about 150 years back and the temple had been endowed with an extent of land admeasuring an extent of Acs.2-39 cents in Sy.No.980 in Varigondu village of T.P. Gudur Mandal which was exclusively meant for the benefit of the temple. The land endowed in favour of the temple is a wet land and two crops of paddy is raised every year and the said land is covered with Penna Delta. The 6th respondent and the petitioner are own brothers and the factual aspects as to the endowing of the land and building of the temple is not denied. 22. In reply to para-3 of the affidavit filed in support of the Writ Petition it is denied that the petitioner is managing the subject temple and its petitions but more the less it can be said that the petitioner is misusing the property belonging to the temple and enjoying the schedule mentioned land as if it is his own land without there being any right, title and interest. Being a founder trustee the writ petitioner till date was illegally squatting on the said land which was endowed by his father for the benefit of the temple without paying a rupee to the temple and deriving the benefits from the land belonging to the temple. In reply to para-4 it is stated that the 5th respondent was appointed as a Single Trustee. In reply to para-5 the averments made had been denied since the subject institution is classified under Section 6(c) of the Act by the Commissioner of Endowments in the year 1980 and the classification still holds good. 23. In reply to para-6 of the averments made in the affidavit filed in support of the Writ Petition it is stated that the same are totally untrue since the institution in question is already classified under Section 6 of the Act and that was the reason as to why the Endowments authorities are exercising their jurisdiction on the said temple and it is also not in dispute that the budget is being sanctioned every year by the Department. For the first time auction was conducted for which stay was obtained by the petitioner illegally only to legalise his illegal actions by continuing in possession of the land in spite of being a trustee of the subject institution. In reply to the averments made in para-7 of the affidavit it is stated that it is not known under what provision of law the petitioner is entitled for a notice for the reason that neither he is continuing in possession of the lands as per law nor he is managing the temple as a vested right. Without his declaration either as a member of the founder’s family or his possession of the land as a tenant he is exercising his rights illegally on the temple and its petitions. 24. In reply to the averments made in para-8 of the affidavit it is stated that once when the subject institution had been classified under Section 6(c) of the Act the respondent authorities get jurisdiction to exercise their rights and only option left over to the petitioner is to approach the Endowments Tribunal to ventilate his grievance and not filing a Writ Petition and agitating a disputed question of fact as to the nature and character of the institution. In reply to the averments made in para-9 of the affidavit filed in support of the Writ Petition it is stated that the leasing out the lands belonging to the 5th respondent temple is an absolute right given to the Endowments Department since the subject temple is classified under Section 6(c) of the Act and registered under Section 43 of the Act and as such there can be no prohibition as to the exercising of the rights of the Endowment authorities on the lands in question. 25. Further it is stated that the petitioner who is working as a Medical officer in Acharya N.G. Ranga Agricultural University cannot deprive the temple of its right for deriving the usufruct which can be used for the upliftment of the temple and also or celebrating the periodical festivals. The filing of the Writ Petition and seeking stay of auction itself shows his deliberate and mischievous intentions of prohibiting the temple from further development since he had been squatting all these years on the lands belonging to the temple without any right and depriving the temple of its right on the schedule mentioned lands. Viewed from any angle, the action of the petitioner in squatting on the property belonging to the temple is absolutely impermissible and not an action legally sustainable. 26. These are the respective stands taken by the parties. No doubt certain submissions were made that since from the year 1990 for sufficiently a long time no little finger had been raised in this regard, for the first time when the possession is being disturbed the petitioner to be put on notice and inasmuch as there is violation of principles of natural justice the further proceedings cannot be further proceeded with. This Court is not inclined to accept the said submission. Merely because the petitioner had been enjoying the property without any authority whatsoever, especially in the light of the clear stand taken in the counter affidavit of the 5th respondent, such stand taken by the writ petitioner being untenable, the said contention cannot be accepted. Even otherwise, certain factual issues which had been raised cannot be gone into in a Writ Petition under Article 226 of the Constitution of India by this Court. Hence, liberty is given to the petitioner to pursue his lawful remedies as ma be advised in this regard. Except making this observation, nothing further can be done in the present Writ Petition. 27. Accordingly, subject to the above observation, the Writ Petition shall stand dismissed. No costs. _________________ Justice P.S. Narayana Date : 20-11-2009 AM