THE HON'BLE SRI JUSTICE P.S.NARAYANA Writ Petition No.21319 of 2007 Date: 24th January, 2008 Between :- Puvvala Mohana Rao .. Petitioner And The Regional Joint Commissioner, Multi Zone-I, Endowments Department, Kakinada, East Godavari District And 2 others .. Respondents THE HON'BLE SRI JUSTICE P.S.NARAYANA Writ Petition No.21319 of 2007 ORDER:- Heard the Counsel. 2. This Court issued rule nisi on 8-10-2007 and granted interim order for a limited period which is being extended from time to time. 3. R.3 filed counter affidavit. 4. The Writ Petition is filed for a Writ of Certiorari calling for the records relating to the orders of 1st respondent passed in Appeal No.142/2006 dated 25-4-2007 confirming the orders of the 2nd respondent in M.A.No.957/2006 dated 9-5-2006 and to quash the same by declaring the same as bad, illegal, arbitrary and contrary to Section 82 of the A.P.Charitable and Hindu Religious Institutions and Endowments Act, 1987 (hereinafter in short referred to as ‘the Act’ for the purpose of convenience) and pass consequential orders and pass such other suitable orders. 5. Heard Sri Venugopal Rao, the learned Counsel representing the writ petitioner, had taken this Court through the order made in M.A.No.957/2006 and would maintain that the respondents 1 and 2 had not considered the aspect whether the petitioner is a landless poor or not in proper perspective and the computation of the land had not been appreciated at all. The learned Counsel also would submit that the petitioner alone had carried the matter by way of appeal and the other findings if any had been left unchallenged by the 3rd respondent and in that view of the matter, now it cannot be permitted to contend otherwise. 6. On the contrary, the learned A.G.P. for Endowments and the standing Counsel representing R.3 had taken this Court through the counter affidavit filed by R.3 and would contend that on facts also the petitioner is not entitled to any of the reliefs prayed for in the light of the findings recorded by R.1 and R.2 in this regard. 7. It is stated in the affidavit filed in support of the Writ Petition that the petitioner is cultivating small extent of dry land admeasuring Ac.1.35 cents and Ac.1.69 cents in R.S.No.9/2 of Ryali village, Atreyapuram Mandal, East Godavari District belonging to Sri JaganmohiniKesava Swamy Temple situated in the said village and that he also cultivates another extent of dry land admeasuring Ac.1.28 cents in R.S.No.113/1A and thus, he is a cultivating tenant for a total extent of Ac.4.32 cents of dry land belonging to the said temples. Further it is averred that the petitioner was paying lease amounts regularly as demanded by the authorities and cultivating the subject lands, since long time without any interruption and that on issuance of lease Rules G.O.Ms.No.379, dated 11-3- 2003, made application to the 2nd respondent to determine his status as landless poor under Rule 3 of Lease Rules enabling him to enjoy the protection and facilities available under Section 82 of the Act and the said application was adjudicated by the 2nd respondent in M.A.No.957 of 2006 and has rejected by the order dated 9-5-2006. It is also stated that the 2nd respondent in his order observed that the petitioner is cultivating the lands belonging to Sri Jagan Mohini Kesava Swamy Temple admeasuring Ac.1.35 cents and 1.69 cents totaling Ac.3.04 cents and it is also observed that he is also cultivating another extent of Ac.1.28 cents belonging to another temple, which are also dry lands but erroneously it is observed that the petitioner got Ac.1.38 cents being his own land and that the total extent under his cultivation exceeds more than Ac.5.00 and that he does not fall within the definition of landless poor, as it is incorrect to say that the petitioner got Ac.1.38 cents being his own land and that aggrieved by the Order dt.9-5-2006 passed by the 2nd respondent, the petitioner had preferred appeal under Rule 4 of the Lease Rules before the 1st respondent. The petitioner further stated that the 1st respondent had adjudicated his appeal in Appeal No.142/2006 and on erroneous consideration, dismissed the same by order dt.25-4-2007. Aggrieved by the same, the present Writ Petition had been filed. It is also stated that the 1st respondent failed to consider the real question involved and made observations ignoring the scope of the appeal before him. The petitioner had preferred appeal on limited question, whether he is cultivating more than Ac.5.00 and also stated that the appeal is to be confined to that extent since there is no appeal preferred by the 3rd respondent against the order of the 2nd respondent. The 1st respondent made observations as if, it is an original application and made irrelevant exercise and several observations against the petitioner, which is beyond the scope of appeal. Further it is stated that it is contended by the petitioner before the 1st respondent that he shall be treated as landless poor, since he has been cultivating the land admeasuring Ac.4.32 cents of dry land and the petitioner also contended that regarding the observation that he got an extent of Ac.1.39 cents being his own is concerned, he stated that stated that it is the property owner by his father and after the death of his father on 4- 7-98, all the other family members, his brother and himself succeeded the said extent of Ac.1.39 cents and he is not exclusive owner of the said extent. The petitioner also categorically contended that present it is divided among the family members, he could get only Ac.0.46 cents, total comes Ac.4.78 cents of dry land, which is below Ac.5.00 cents. It is also stated that the 1st respondent having noted the petitioner’s contention in his order, did not appreciate the same in proper perspective and that there is no adjudication on this crucial issue and erroneously held against his confirming the order of 2nd respondent. The petitioner further stated that he is holding and cultivating the land to a total extent of Ac.4.78 cents, which is below specified extent as defined under Section 82 of the Act and that he is entitled for the protection as envisaged under Section 82 and that he cannot be thrown out from the subject lands. Further it is stated that in pursuance of the order of the appellate authority, the 3rd respondent is taking steps to proceed with public auction to lease out the subject lands by dispossessing the petitioner from the subject lands and that in fact, on 5-7- 2007 itself, the 3rd respondent had issued notification to conduct public auction scheduled to be held on 19-7- 2007, but it could not be held, since the petitioner is still continuing in possession and enjoyment of the subject lands. It is also stated that the 3rd respondent is again initiating steps to proceed with the public auction without following due process of law. It is also stated that in such a case, the petitioner will be put to irreparable loss and it is just and necessary to direct the respondents not to dispossess him from the subject lands pending disposal of the Writ Petition. 8. In the counter affidavit filed by R.3, it is averred that the father of the petitioner namely Puvvala Naganna was a successful bidder in a public auction conducted for six years i.e., from 1980-1981 to 1985-1986 for leasehold rights of lands for an extent of Ac.1-35 cents and Ac.1-69 cents for a total of Ac.3-04 cents and that after 1986 he was not a valid lessee and that he is an encroacher of the said land and also stated that the land of Ac.3-04 cents belongs to the 3rd respondent temple and that he was expired on 28-2-1999 and after the death of the father of the petitioner, the petitioner is in possession and enjoyment of the said land illegally for the total extent of Ac.3-04cents and that the petitioner was not having any valid lease and so the petitioner is also an encroacher. Further it is stated that while cultivating the 2nd respondent’s land for an extent of Ac.3-04cents, the petitioner is also cultivating the dry land for an extent of Ac.1-28 cents belongs to Vagdevi Nagara Mahalakshmi Ammavari Temple, Ryali village and the petitioner is also having Ac.1-39 cents of dry land and thus the petitioner is cultivating the dry land for a total extent of Ac.5-71 cents. It is further stated that the petitioner is not having any valid lease and that he is an encroacher. It is also stated that Form-I Notice bearing No.7/2003-58-59 was issued to the petitioner to evict him from the temple’s land for a total extent of Ac.3-04 cents. Against that notice, the petitioner filed W.P.No.9170/2003 to declare him as landless poor and this Court dismissed the same with a liberty to the petitioner to approach the Assistant Commissioner. It is also stated that the petitioner filed M.A.No.957/2006 before the Assistant Commissioner to declare him as landless poor and the same was rejected by an order dt.9- 5-2006. It is also stated that against that order, the petitioner filed Appeal No.142/2006 before the Regional Joint Commissioner and the same was dismissed by an order dt.25-4-207. It is further stated that after dismissal of the Appeal of the petitioner by the Regional Joint Commissioner, the 3rd respondent issued notification dated 5-7-2007 to conduct public auction on 19-7-2007. Then the petitioner filed this Writ Petition against the order of the Regional Joint Commissioner. Further it is stated that the averment in para 7 of the affidavit filed in support of the Writ Petition that his own land Ac.1-39 cents originally belongs to his father and after his death it devolves on his brother and him, is not correct. Before the Regional Joint Commissioner, in Appeal No.142/2006, the petitioner pleaded that his own land Ac.1-39 cents originally belongs to his father and after his death it devolves on him, his sister and his mother. The petitioner did not file any document to show that his yearly income is less than Rs.12,000/-. 9. In the light of the respective stands taken by the parties, the order impugned in appeal No.142/2006 dt.25- 4-2007 is hereby set aside and the matter is remitted to the 1st respondent to give opportunity to the parties to place additional material, if any, on the question in controversy before the 1st respondent and let the 1st respondent decide the matter afresh in accordance with law. Till such time status quo to be maintained. 10. The Writ Petition is disposed of accordingly. No costs. __________________ Justice P.S.Narayana 24th January, 2008 smr