*THE HONOURABLE SRI JUSTICE P.S.NARAYANA +WRIT PETITIONS No. 18339 OF 2007 % DATED: 12.12.2007 # M.S.Ramayya Constructions Pvt.Ltd., Registered office at 2-77/A, Pendurthi road, Vepagunta, Visakhapatnam, Rep., by its Managing Director, Mogga Sitaramayya. ..... PETITIONER AND The Simhachalam Devasthanam, Rep., by its Executive Officer, Visakhapatnam District. .....RESPONDENT ! COUNSEL FOR THE PETITIONER: SRI P.ROY REDDY ^ COUNSEL FOR THE RESPONDENTS: SRI V.T.M.PRASAD < Gist: >Head Note ? Cases referred 1. AIR 1982 ANDHRA PRADESH 300 2. AIR 1928 MADRAS 786 3. 1991 Supp (2) Supreme Court Cases 228 4. 1995 Supp (3) Supreme Court Cases 249 5. 1925 Patna 241 6. AIR 1929 Patna 41 THE HON’BLE SRI JUSTICE P.S.NARAYANA WRIT PETITION No :18339 of 2007 DATED: 12-12-2007 BETWEEN: M.S.Ramayya Constructions Pvt.Ltd., Registered office at 2-77/A, Pendurthi road, Vepagunta, Visakhapatnam, Rep., by its Managing Director, Mogga Sitaramayya. ..... PETITIONER AND The Simhachalam Devasthanam, Rep., by its Executive Officer, Visakhapatnam District. .....RESPONDENT ORDER: Heard Sri Ugra Narasimha, learned counsel representing Sri Roy Reddy, learned counsel for the Writ Petitioner, and Sri V.T.M.Prasad, learned counsel representing the respondent. 2. Writ Petition is filed for a writ of mandamus declaring the action of the respondent in interfering with the peaceful possession and enjoyment of the petitioner’s plots, an extent of 3645 sq.yards in Sy.No.49 and Sy.No.50/1 of Purushothapuram village, Pendurthi mandal, Visakhapatnam District, as illegal, and arbitrary. 3. Sri Ugranarasimha, learned counsel representing the writ petitioner, had taken this Court through the contents of the affidavit filed in support of the Writ Petition, counter affidavit, and also the reply affidavit, and specifically pointed out to the Survey Settlement Register of the period concerned and would maintain that in the light of the facts and circumstances and also the nature of the zirayathi land, the stand taken by the respondent cannot be accepted. 4. Learned counsel also would submit that though the title itself is being put into controversy by the respondent it is not a fit case whether the writ petitioner to be driven to a competent civil Court and in the light of the respective stands taken by the parties, the Writ Petition to be allowed. 5. Per contra, Sri V.T.M.Prasad, learned counsel representing the respondent, had taken this Court through the contents of the counter affidavit and would maintain that the Writ Petition is not a bona fide one at all and the same is liable to be dismissed. 6. Heard the counsel and perused the respective pleadings of the parties and also the material placed before this Court. In the affidavit filed in support of the Writ Petition it is averred that the petitioner is the absolute owner and possessor of a total extent of 3645 sq.yds. The details of the plots belonging to the petitioner had been furnished in paragraph 4 of the affidavit filed in support of the Writ Petition which reads as hereunder: i) plot Nos.193, 194 and 195, admeasuring 1200 sq.yds and site admeasuring 445 sq.yds in Sy.No.49 & 50/1, purchased vide sale deed ( document No.1132/07), dated 03-02-2007, executed by Pathiwada Sitamahalakshmi. ii) Plot No.201, admeasuring 400 sq.yds, in Sy.No.49, purchased vide sale deed (document No.1133/2007), dated 03-02-2007, executed by P.B.Jyotsna Rani. iii) Plot No.200, admeasuring 400 sq.yds, in Sy.No.49, purchased vide sale deed ( document No.1134/07), dated 03-02-2007, executed by Atluri Bhavani Devi. iv) Plot No.197, admeasuring 400 sq.yds, in Sy.No.49, purchased vide sale deed (document No.1135/07) dated 03-02-2007, executed by Bobba Swatantra Kumari. v) Plot No.196, admeasuring 400 sq.yds, in Sy.No.49, purchased vide sale deed (document No.1136/07), dated 03-02-2007, executed by Koneru Viplava Kumari. vi) Plot No.199, admeasuring 400 sq.yds, in Sy.No.49, purchased vide sale deed (document No.1137/07), dated 03-02-2007, executed by Bobba Jawaharlal. 7. Further it is stated that the petitioner is in possession of the plots belonging to it. The respondent-Simhachalam Devasthanam has absolutely no manner of right, title or interest in respect of the land over which plots belonging to the petitioner are situated. Yet, the respondent’s officials have been frequently visiting the plots belonging to the petitioner and are trying to prevent the petitioner from developing the same and are interfering with the petitioner’s peaceful enjoyment and occupation of the plots. On 26-08-2007, the officials again tried to enter the land belonging to the petitioner for making markings and the same was resisted by them. The action of the respondent in frequently interfering with the plots belonging to the petitioner is illegal and arbitrary. No proceedings known to law have been initiated against the petitioner, or no notices of any nature have been issued by the respondent. Hence, the petitioner is left with no such option except to invoke the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India. 8. W.P.M.P.No.2265 of 2007 is filed to vacate the interim order made in W.P.M.P.No.23541 of 2007 in W.P.No.18339 of 2007, dated 29-08-2007. This Court issued Rule Nisi on 29-08-2007 and pending further orders in W.P.M.P.No.23541 of 2007, interim direction as prayed for had been granted. 9. In the counter affidavit filed by the respondent-Sri Varaha Lakshmi Narasimha Swamy Devasthanam, Simhachalam, represented by its Executive Officer, specific stand had been taken that the said Devasthanam is the absolute owner of the said property and as such, the petitioner cannot make any construction, whatsoever, over the said land. Further, it is stated that the respondent-Devasthanam is endowed with vast extent of landed property situated in five villages namely 1)Advivaram, 2)Vepagunta, 3)Venkatapuram, 4)Purushothapuram, and 5)Cheemalapalli by the erstwhile Maharaja of Vizianagaram Estate. After Estate abolition, these villages are declared to be “NOT INAM ESTATES’ under the provisions of the Estates Land Act of 1908 and Estates Abolition Act of 1948. Subsequently the provisions of the Andhra Inams Abolition and Conversion into Ryotwari Act 37/1956 ( hereinafter referred to as ‘Act’ for the purpose of convenience) are made applicable to these five Inam villages and enquiries under the provisions of Sections 3 and 7 read with Section 4 were made by the Special Deputy Tahsildar (Inams), Visakhapatnam and Mandal Revenue Officer, Pendurthi, Visakhapatnam, and declared that these villages are Inam villages and the lands situated in these villages are Inam lands belonging to respondent Simhachalam Devasthanam. After the said Enquiry as per order, dated 05-09-1996, in A.I.A.No.53/77 of Mandal Revenue Officer, Pendurthi the ryotwari pattas were granted in favour of the respondent Devasthanam under Section 7 of the Act, for the lands covered by T.D.No.1273 of Purushothapuram village including the entire land situated in S.No.49 and S.No.50/1 of Purushothapuram village. Therefore, the petitioner cannot say that he is the absolute owner of the said land. 10. Further it is averred that as per the provisions of the Inam Abolition Act, 1956, the pre-existing right, title, and interest of the Inamdar and the occupier of the land stood extinguished with effect from 14-12-1956, on which date the Act came into force and new rights are sought to be declared. Accordingly, the competent authorities made enquiries as per the provisions of the said Act and under Section 7 of the Act issued ryotwari pattas to the respondent Devasthanam. The grant of ryotwari patta in favour of the respondent Devasthanam is conclusive proof that Devasthanam is the absolute owner of the land. The orders of the Mandal Revenue Officer have become final. Therefore the petitioner cannot question the right, title, and ownership of Devasthanam over the land in question. The alleged position of the petitioner in the land, even assuming to be true, is illegal and unauthorized and he will be an encroacher only. 11. With reference to the averments made in this paragraph that the land in question is a jeroyati dry, it is submitted that it is cultivable land in an Inam village and not a poramboke land. Therefore, the competent authorities granted ryotwari patta to the temple. Otherwise they would have been declared as vested under Section 2A of the said Act in favour of the Government. The question of third party getting any right over the land does not arise. 12. Further, it is averred in paragraph 4 of the counter affidavit that the registered sale deeds said to have been obtained by the petitioner or others for the lands for which ryotwari pattas are granted to Devasthanam are not binding on Devasthanam. The so-called executants have no manner of right to sell the said endowed lands of the Devasthanam and the petitioner cannot claim any right over the Endowments land of the temple basing on the alleged sale deeds. It is also averred that the Government issued G.O.Ms.No.578, dated 19-08-2000, authorizing to issue Land Regularization Certificates in respect of lands of the Devasthanam unatthorizedly/illegally occupied by the individuals as per the scheme noted in the said G.O. after collecting the amounts as per the rates mentioned area-wise in the Annexure appended to the said G.O. It is further stated that the individuals noted in paragraph 4 of the affidavit of the petitioner have filed applications seeking regularization of plots illegally occupied by them noted in the affidavit as per G.O.Ms.No.578, dated 19-08- 2000. (i) Pathiwada Seethamahalakshmi filed application in S.R.No.2999. (ii) P.B.Joshna Rani filed application in S.R.No.3003. (iii) Atluri Bhavani Devi filed application in S.R.No.3004. (iv) Bobba Swatantra Kumari filed application in S.R.No.3002. (v) Koneru Viplava Kumari filed application in S.R.No.3001 & (vi) Bobba Jawaharlal filed application in S.R.No.3000. As Vallabhaneni Ramesh and five others also have filed applications in S.R.No.2551 to 2559 of 2003 and 2336 of 2003 seeking regularization of the same plots claimed by the writ petitioner and as there is rival claim between the writ petitioner and others for the same sites, regularization certificates could not be issued by the Devasthanam to them. 13. It is further averred that the fact that the writ petitioner approached Devasthanam by filing applications seeking regularization of the sites in question under G.O.Ms.No.578, dated 19-08-2000, clearly goes to show that the writ petitioner is in illegal/unauthorized occupation of the temple land and got prepared layout, the petitioner cannot claim any ownership right over the sites. The land belongs to the respondent and under Section 7(1) of the Act, ryotwari patta was also granted in favour of Devasthanam and it is conclusive proof that Devasthanam is the absolute owner of the land. The petitioner is only in illegal and unauthorized occupation of the land. As G.O.Ms.No.578, dated 19- 08-2000, stood cancelled and as there is no possibility of regularization of plots claimed by the petitioner, he approached this Court. The petitioner cannot prevent the Devasthanam from protecting its lands. 14. Further, it is averred that the petitioner herein is not the absolute owner of the schedule property. The allegation that respondent Devasthanam officials have been threatening the petitioner is not correct. It is submitted that the respondent Devasthanam has got more than Ac.9000 of land situated within the limits of Visakhapatnam Greater Municipal Corporation. The value of the land in Visakhapatnam has been increased abnormally in recent years. Several land grabbers, Real Estate people, unscrupulous people, and societies have already encroached temple lands and still are attempting to encroach the lands and make constructions. Therefore, for the last five years the Devasthanam has been maintaining Land Protection Cell headed by Special Grade Deputy Collector by engaging Retired Army personnel and Home Guards. The squads are patrolling the lands day and night and protecting the encroachments, fresh constructions, and improvements over the existing constructions. While patrolling the land, Protection Cell officials noticed the petitioner trying to make small structures on the temple land. They informed the petitioner and his workers that the land belonged to the respondent Devasthanam and advised them not to make any constructions therein. Instead of heeding the advice of the squad, the petitioner approached the Hon’ble Court making untrue allegations and obtained temporary injunction orders and is trying to make constructions in the land by suppressing the facts. 15. The further averments made in paragraphs 6 and 7 also had been denied and the dismissal of the Writ Petition had been prayed for. 16. A reply affidavit was filed reiterating the stand taken in the affidavit filed in support of the Writ Petition. It is averred in paragraph 3 of the reply affidavit that the contention of the respondent in the land in question has been endowed to it and that the said land belongs to it by virtue of the ryotwari pattas issued under the provisions of the Act is baseless and untenable. In this connection, it would not be out of place to mention that the Survey & Settlement Register ( “Gilman Register”) of the year, 1903, which is an authentic official record prepared under the provisions of the Madras Survey & Boundaries Act, 1897, shows the classification of the land in Sy.Nos.49 and 50.1 of Purushothapuram village as “zeroyati Dry” and not as “Inam” or “Poramboke.” The Survey & Settlement authorities who conducted the survey and settlement operations and prepared the said record in the year, 1903, took great pains to clearly indicate the classification of the land so as to clearly show which land had been endowed in favour of the temple and thereby classified only the endowed land as “Inam”. The respondent in the counter affidavit, has not denied the fact that the land in question is classified as “Zeroyati dry”. This expression clearly shows that the land in question is not Inam land and that it was not endowed in favour of the temple, by the land holder. “Zeroyati” means the proprietor’s private lands, which are cultivable and such land does not form part of the grant of Inam in favour of the temple. The presence of private lands in Inam villages in the Andhra Area is not an uncommon phenomena and the land in question is one such example. The said private land cannot be claimed by the temple, to be a grant in its favour when the Survey & Settlement Register prepared in 1903 shows that the land is “Zeroyati” and not “Inam”. The concept and existence of private lands in Inam Estates and in Inam villages is recognized under the provisions of the A.P. (AA) Estates Land Act, 1908 and the same is distinguishable from ryoti land, as defined in the said statute. The Survey & Settlement Register( Gilman Register) is of greatest significance and importance for the purpose of testing and establishing whether or not a particular extent of land was covered by the grant of Inam in favour of the temple. When the said record does not show the land in question as Inam, the temple cannot claim ryotwari patta in respect of the same. The names of the predecessors-in-title of the petitioner, namely viz Seera Apaiah, Sanyasi and Paidamma are shown in column No.8 of the Gilman Register, including that they were in possession of the said land in the year, 1903 itself. 17. It is also averred in paragraph 4 that the ryotwari pattas now being relied upon by the temple have been issued without jurisdiction by the Mandal Revenue Officer, Pendurthy. The proceedings of the Mandal Revenue Officer, Pendurthy would clearly indicate that the entire exercise was done in a post-haste and illegal manner, without there being any resurvey and resettlement operations. The proceedings indicate that though a notification was published under the provisions of the A.P.Survey & Boundaries Act, 1923 no resurvey and resettlement was conducted and that the ryotwari patta was issued, pending resurvey of the lands in Purushothapuram village. This is totally illegal and was done only with an intention to help the respondent temple and it is also evident that the said proceedings were issued in keeping with the directions of the High Level Official Committee and the Collector, Visakhapatnam for issuance of ryotwari pattas. This would only show that the statutory proceedings emanated without any enquiry or application of mind, pursuant to the directions of the higher authorities, and having taken a one-sided view in favour of the respondent temple, the ryotwari pattas were issued without conducting resurvey and resettlement operations and without notices to the vendors of the petitioner. Further, the ryotwari pattas in favour of the respondent temple, had been issued by an incompetent authority i.e., the Mandal Revenue Officer, Pendurthy, even though the functions of the original authority under the provisions of the Act, at that point of time were being discharged by the Special Deputy Tahsildar, Inams, Visakhapatnam, a post which is even now in existence. The petitioner has filed an appeal before the Revenue Court (RDO, Visakhapatnam) on 05-10-2007, challenging the grant of ryotwari pattas to the respondent temple and the same is pending before the appellate authority, under the provisions of the Act. Petitioner was not aware of the fact of grant of ryotwari pattas till the counter affidavit was filed in this writ petition and upon verification with the petitioner’s vendors, petitioner was informed that no notices were served on the occupants of the land either under the provisions of the Act, and that they were unaware of the fact of grant of ryotwari pattas to the respondent temple till now. The mere fact that the vendors of the petitioner had applied for regularization of occupation, neither takes away the title of private individuals, nor does it grant any right whatsoever to the respondent temple. This was done only to avoid litigation with the State and its instrumentality. 18. Further it is averred that all the documents under which the petitioner is claiming title (the documents have been filed along with the writ petition) are all registered sale deeds, which were received and registered by the registering authority, pursuant to the directions of this Court in proceedings under Article 226 of the Constitution of India, which arose because of a notification that had been issued by the Government under section 22-A of the Registration Act, 1908 and it is not open to the respondent to urge either that the petitioner has no title or that the petitioner is in illegal occupation of the plots in question. 19. Further, it is averred that the allegation of the respondent that the petitioner is only in illegal and unauthorized occupation of the land is baseless. The occupation of the petitioner is legal and there is nothing unauthorized about such occupation. The respondent temple, being an instrumentality of the State, cannot resort to strong arm tactics and try to dispossess the petitioner from the plots belonging to it, as was being attempted prior to filing of the present writ petition. It cannot even resort to summary proceedings for eviction, but would have to establish its title over the land in question, by filing a regular civil suit. 20. Further, it is stated that the very basis for the claim of the respondent temple, over the land in question is the ryotwari patta granted under the provisions of the Act and the same has not attained finality and is subject matter of an appeal filed by the petitioner under Section 7 (2) of the said statute and is pending before the appellate authority i.e., Revenue Court (R.D.O.) Visakhapatnam. 21. These are the respective stands taken by the parties. Reliance was placed on the decision of the Division Bench in SRI ANJANEYA SWAMI TEMPLE, NANDIKOTKUR v. BADDULA LAKSHMAIAH AND OTHERS [1] wherein the Division Bench at paragraphs 8, 11 and 12 observed as follows: 8. “The following extract is the settled law regarding the importance to be given to the Inam Fair Register ever since the Privy Council rendered its decision in Arunachalam Chetty v. Venkatachapathi (37 Mad. LJ 460) (AIR 1919 PC 62): “ It is true that the making of this Register was for the ultimate purpose of determining whether or not the lands were tax free. But it must not be forgotten that the preparation of this Register was a great act of State, and its preparation and contents were the subject of much consideration under elaborately detailed reports and minutes. It is to be remembered that the Inam Commissioner through their officials made enquiry on the spot, heard evidence and examined documents, and with regard to each individual property the Government was put in possession not only of the conclusion come to as to whether the land was tax free, but of a statement of the history and tenure of the property itself. While their Lordships do not doubt that such a report would not displace actual and authentic evidence in individual cases; yet the Board, when such is not available cannot fail to attach the utmost importance, as part of the history of the property, to the information set forth in the Inam Register”. In the same decision is also extracted Rule III, Clause I, Tax Free being part of Order 116 printed at page 211 of the Standing Orders of the Board of Revenue. If the Inam was given for the religious or charitable objects, such as for the support of temples, mosques and other public buildings or institutions; or for services therein, whether held in the names of the institutions or of the persons rendering the services, it will be continued to the present holders and their successors, and will not be subject to further interference so long as the buildings or institutions are maintained in an efficient state and the services continue to be performed according to the conditions of the grant”. With the aforesaid preface, we now proceed to examine the various entries made in Exs.A1 and A.12 to determine the intention of the grantor and the nature of the grant; whether the grant was made to the Pagoda of Anjaneya Swami; whether the grant was made for the support of the Pagoda by way of remunerating the worshipper of the temple with the income arising therefrom or whether the grant was made to the Archaka attaching to the grant the burden of service to be rendered by the deity. 11.Our learned brother considered the circumstances viz., the grant of the title deed to the Manager for the time being of the Pagoda of Anjaneyaswami; the recital made therein acknowledging the title of the aforesaid Manager to a Devadayam or Pagoda Inam as being held for the support of the above Pagoda in that village as indicating the title of the temple to the land in question. He, however, considered para 2 of the title deed as supporting the aarchaka’s title to the property. Para 2 of the title deed consists of two parts, the first being that the Inam is confirmed “to you and your successors” and the second being “to be held without interference so long as the conditions of the grant are duly fulfilled”. We fail to see how the first part of para 2 of the Inam title deed supports the carchaka’s claim of title. When the Inam title deed is issued in favour of the Manager for the time being of the temple, the reference made “to successors” in the context only indicates that the Inam is confirmed permanently. The first part of para 2 of the title deed cannot therefore, be treated as a circumstance militating in any manner against the temple’s title to the property. The second part of para 2 of the title deed has to be read in conjunction with “confirmed” appearing in Co.22 of the Inam Fair Register. In Koteswara Rao’s case (AIR 1937 Mad 852) (supra) the Madras High Court had occasion to consider a number of inam fair register extracts and title deeds in a batch of appeals. It was held: “It may here be observed that having regard to the scheme of the register, the most decisive entries are those appearing in Cols.13 to 16, for, it is here that provision is made for the entering of the name of the grantee, as shown in the relevant ancient records at different stages from the date of the grant to the date of the preparation of the register this period covering in some case more than a century. Again a distinction has been sought to