IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE TWENTY FIRST DAY OF OCTOBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE C.V.NAGARJUNA REDDY WRIT PETITION NO : 11159 of 2003 Between: 1 Adithyuni Sheshaiah s/o.Vishwanatham R/o.Chintapally Village and Mandal, Nalgonda Dist. 2 Adithyuni Venkatnarayana s/o.Buchi Ramaiah 3 Adithyuni Laxmaiah s/o.Buchi Ramaiah 4 Adithyuni Adyodhya s/o.Buchi Ramaiah ..... PETITIONERS AND 1 The Joint Collector & Additional Magistrate Nalgonda. 2 The Revenue Divisional officer, Nalgonda Dist. 3 The Chairman, Gattupati Venkateshwara Swamy Temple,Nalgonda Dist. 4 The Asst.Commissioner, Endowments Dept.Nalgonda Dist. .....RESPONDENTS Counsel for the Petitioners:MR.K.SRINIVAS Counsel for the Respondents: AGP FOR REVENUE FOR R1 & R2, AGP FOR ENDOWMENTS FOR R4, SRI E.MADAN MOHAN RAO FOR R3. The Court made the following : THE HON’BLE SRI JUSTICE C.V.NAGARJUNA REDDY WRIT PETITION No.11159 of 2003 ORDER: This writ petition is ﬁled for a Writ of Mandamus to set aside order, dated 29.05.2003, passed by respondent No.1 whereby he dismissed the appeal filed by the petitioners against order, dated 03.04.1999, passed by respondent No.2 granting Occupancy Right Certiﬁcate (ORC) in favour of the 3rd respondent Temple, namely Gattupathi Venkateshwara Swamy Temple, Chintapally village, Nalgonda District. 2. Heard Sri K.Srinivas, learned counsel for the petitioners, the learned Assistant Government Pleader for Revenue for respondent Nos.1 and 2 and Sri. E. Madan Mohan Rao, learned counsel for respondent No.3. 3. The petitioners claim that the father of petitioner Nos.2 to 4 i.e., late Buchi Ramaiah and the father of petitioner No.1, namely Vishwanatham, who are brothers, were original Inamdars of various lands in Sy.Nos.5,6,152, 155, 157, 158, 268 and 413, apart from lands in other survey numbers of Chintapally village. They further claimed that they have partitioned the said lands among themselves and obtained ORCs in respect of Sy.Nos.5 and 6 vide ﬁle Nos.N1/348/76, N1/349/76 and N1/350/76. They further averred that respondent No.2 issued ORC on 03.04.1999 in favour of 3rd respondent Temple, without conducting any enquiry as envisaged under Section 10 of the Andhra Pradesh (Telangana Area) Abolition of Inams Act, 1955 (for short ‘the Act’), without issuing any notice and opportunity to the petitioners. The petitioners ﬁled appeal before respondent No.1 questioning the said order of respondent No.2. The said appeal was dismissed by respondent No.1 by relegating the petitioners to the jurisdiction of the Deputy Commissioner of Endowments, under the provisions of A.P.Charitable and Hindu Religious Institutions & Endowments Act, 1987 (for short ‘1987 Act’). This order is questioned in this writ petition. 4. At the hearing, Sri K.Srinivas, learned counsel for the petitioners, submitted that respondent No.1 is the appellate authority under Section 24 of the Act to decide on the illegality and correctness of the order passed by respondent No.2. Therefore, when the petitioners availed the said remedy of appeal, it is incumbent upon respondent No.1 to decide the same on merits. He further argued that the issue before respondent No.1 was whether grant of ORC in favour of the 3rd respondent Temple was in accordance with the provisions of the Act and, therefore, respondent No.1 committed a patent illegality in rejecting the appeal without deciding the said issue and relegating the petitioners to avail a remedy under the provisions of 1987 Act. 5. Sri E.Madan Mohan Rao, learned counsel for respondent No.3, however, submitted that though respondent No.1 is the competent authority to decide the correctness or otherwise of the order passed by respondent No.2 granting ORCs, in the light of the ground raised by the petitioners before him that they are the owners of the property and not the Inamdars, respondent No.1 declined to adjudicate the issues on merits and gave liberty to the petitioners to approach the Deputy Commissioner of Endowments, who is the competent authority under 1987 Act to decide whether the property in question is an endowment property or private property of the petitioners. 6. Under Section 10 of the Act, the Collector (which deﬁnition includes respondent No.2) is competent to examine the nature and history of all lands in respect of which an Inamdar, Kabiz-e-kadim, permanent tenant, protected tenant or non-protected tenant, claims to be registered as an occupant under Section 4,5,6,7 and 8 as the case may be, and decide in whose favour and in respect of which Inam lands, the claims should be allowed, and the land revenue and the premium payable in respect of such lands. Under Section 24 of the Act, any person aggrieved by a decision of the Collector under Section 10 is entitled to ﬁle an appeal within 30 days from the date of the decision to the appellate authority (respondent No.1). 7. In the instant case, the petitioners’ plea is that as far back as the year 1976 itself ORCs were granted in their favour by respondent No.2 in respect of Sy.Nos. 5 and 6 and their applications for grant of ORCs in respect of other survey numbers are pending, and that while the said applications were pending, respondent No.2 granted ORCs in respect of the lands in all the survey numbers including Sy.Nos.5 and 6 in favour of the 3rd respondent Temple. As respondent No.1 is the appellate authority, it is incumbent upon him to examine whether the order passed by respondent No.2 in favour of the 3rd respondent Temple is legal and valid, instead he dismissed the appeal by observing that under Section 45 of 1987 Act, the Deputy Commissioner of Endowments is the competent authority to decide whether the property is endowment land or not. I have considered Section 45 of 1987 Act, which envisages an application to be ﬁled by a person aggrieved by an entry or omission to make an entry in the register maintained under Section 43 of the said Act and apply to the Deputy Commissioner (Endowment Tribunal under Act 33 of 2007) for modiﬁcation and annulment of such entry, or for directing the making of such entry, as the case may be. Section 43 of 1987 Act pertains to registration of Charitable and Religious Institutions and Endowments. The dispute relating to registration under Section 43 of 1987 Act has no relevance in the instant case, and as already noted above, the dispute is only with respect the question as to who among the petitioners and respondent No.3 are entitled to the grant of ORCs. Therefore, respondent No.1 committed a serious error in relegating the petitioners to avail the purported remedy under Section 45 of 1987 Act, instead of himself adjudicating the appeal ﬁled by the petitioners against the order of respondent No.2 granting ORCs in favour of the 3rd respondent Temple. All that respondent No.1 is required to do is to give a ﬁnding as to which of the parties satisﬁed the provisions of Section 10 of the Act in order to grant ORC. Respondent No.1, thus, abdicated his power and jurisdiction in relegating the petitioners to avail a remedy outside the provisions of the Act. 8. For the aforementioned reasons, the writ petition is allowed. Order, dated 29.05.2003, passed by respondent No.1 is set aside. The matter is remitted to respondent No.1 for deciding the appeal afresh, on merits, within the parameters and in the light of the provisions of the Act, after hearing the petitioners and the 3rd respondent Temple. He shall dispose of the appeal, within a period of three months from the date of receipt of a copy of this order. _______________________ C.V.NAGARJUNA REDDY,J 21.10.2008 v v