Boddapu Satyanarayana V. The Deputy Commissioner of Endowments,

WP/25636/2010

AI Insights

The case involves multiple writ petitions filed by different petitioners, all challenging similar eviction orders issued by the Deputy Commissioner of Endowments, Visakhapatnam. The petitioners claimed ownership and possession of various plots of land, which they had developed, and contested the eviction orders on grounds including lack of opportunity to cross-examine witnesses and absence of jurisdiction post-constitution of the Endowments Tribunal. The court examined the jurisdictional authority of the Deputy Commissioner post-establishment of the Endowments Tribunal and found that the Tribunal had exclusive jurisdiction over such matters, leading to the setting aside of the eviction orders and remanding the cases to the Tribunal.

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 727494 (HC-ANDHRA_PRADESH)
• Appeal Type: Others
• Pronouncement Date: 21-08-2012
• Assessment Year: misc
• Other Referred Cases: Commissioner of Income Tax v. Dhadi Sahu (1994 (TLS) SCC 10653)
• Laws Referred To: A.P. Act 30 of 1987
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: P C REDDY; D V SASHIDHAR
• Assessee Lawyers: K MURTHY
• Keywords: Deputy Commissioner; Encroachment; Endowments; Endowments Tribunal; Jurisdiction
• Section: 43; 87; 87; 83; 162; 84(2)

Judgement Text

"IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD TUESDAY, THE TWENTYFIRST DAY OF AUGUST TWO THOUSAND AND TWELVE HON’BLE SRI JUSTICE G. BHAVANI PRASAD Writ Petition Nos.25634, 25635, 25636, 25637, 25681, 25686 and 25687 of 2010 W.P.No.25634 of 2010 Between: Sri Katuru Satya Rao .. Petitioner AND The Deputy Commissioner of Endowments, Visakhapatnam and 2 others .. Respondents W.P.No.25635 of 2010 Between: Varri Nookunaidu .. Petitioner AND The Deputy Commissioner of Endowments, Visakhapatnam and 2 others .. Respondents W.P.No.25636 of 2010 Between: Boddapu Satyanarayana .. Petitioner AND The Deputy Commissioner of Endowments, Visakhapatnam and 2 others .. Respondents W.P.No.25637 of 2010 Between: Kantham Reddy Nageswara Rao .. Petitioner AND The Deputy Commissioner of Endowments, Visakhapatnam and 3 others .. Respondents W.P.No.25681 of 2010 Between: Yarada Triveni .. Petitioner AND The Deputy Commissioner of Endowments, Visakhapatnam and 2 others .. Respondents W.P.No.25686 of 2010 Between: Pitta Ramana .. Petitioner AND The Deputy Commissioner of Endowments, Visakhapatnam and 2 others .. Respondents W.P.No.25687 of 2010 Between: Sana Thata Rao .. Petitioner AND The Deputy Commissioner of Endowments, Visakhapatnam and 2 others .. Respondents COMMON ORDER: As the persons and the controversy in all the writ petitions are common, they are being disposed of by this common order with the consent and at the request of the learned counsel for both parties. Heard Sri K. Sairama Murthy, learned counsel for the petitioners in all the cases, Sri P.C. Reddy, learned Assistant Government Pleader for Endowments for the official respondents and Sri D.V. Sashidhar, learned counsel representing Sri V.T.M. Prasad, learned Standing Counsel for Endowments for Sri Veerabhadra Swamy Vari Devasthanam, Yellamanchili, Visakhapatnam District. The petitioner in W.P.No.25634 of 2010 claims to be the owner and possessor of 967 square yards in T.S.No.164 of Yerravaram-25 village, Yellamanchili Mandal, Visakhapatnam District being the purchaser under a registered sale deed and to have got his application for permission for construction of a building in the site approved by the Gram Panchayat. On receiving a notice dated 15-10-2008 in O.A.No.87 of 2008 from the Deputy Commissioner of Endowments, Visakhapatnam without receiving any copy of the petition, he contested the same in spite of which an order of eviction was passed on 24-05-2010, which was received on 18-08-2010. The said order is under challenge in the writ petition claiming that the petitioner had no opportunity of cross-examining the witness for the temple and as a copy of the report of the Assistant Commissioner, Endowments to the Endowments Tribunal about his encroachment has not been furnished to him and as after the constitution of the Endowments Tribunal, the 1st respondent had no jurisdiction to pass the impugned order. The Tribunal was constituted under G.O.Ms.No.837 Revenue (Endts.I) Department dated 13-08-2009 and by the date of the impugned order, the Tribunal started functioning. The petitioner in W.P.No.25635 of 2010 claims to be owner and possessor of 498 square yards with a tiled house in T.S.No.164 of the same village being a purchaser under a registered sale deed of 1990 and to have constructed a RCC slabbed house in the place of the earlier tiled house in the said site. He received a notice on 15-10-2008 in O.A.No.89 of 2008 before the 1st respondent, which he contested and failed and for the same reasons as the petitioner in W.P.No.25634 of 2010, he questioned the impugned order in O.A.No.89 of 2008 dated 24-05-2010. The petitioner in W.P.No.25636 of 2010 claims to be owner and possessor of 212 square yards with a tiled house in T.S.No.164 of the same village being a purchaser under a registered sale deed of 1987 and to have constructed a RCC slabbed house in the place of the earlier tiled house in the property. He received a notice on 15-10-2008 in O.A.No.85 of 2010 from the 1st respondent in which he defended himself and he also questioned the impugned order dated 24-05-2010 in O.A.No.85 of 2008 for the same reasons as the other two petitioners. The petitioner in W.P.No.25637 of 2010 similarly claims to be the owner and possessor of 206 square yards with a tiled house therein in T.S.No.164 of the same village having purchased the same under a registered sale deed in 1987. He claims to have replaced the same with RCC slabbed house and to have received a notice dated 15-10-2008 in O.A.No.86 of 2008 in which he defended himself. He questioned the ultimate order passed on 24- 05-2010 for the same reasons as the other petitioners. The petitioner in W.P.No.25681 of 2010 similarly claims to be the owner and possessor of 166 square yards in T.S.No.164 of the same village having purchased the same under a registered sale deed in 2003. The petitioner claimed to have replaced the tiled house with RCC slabbed house and to have received a notice on 15-10-2008 in O.A.No.82 of 2008 from the 1st respondent. He claims to have defended himself and to have failed by virtue of the orders passed in O.A.No.82 of 2008, which he challenged on the same grounds as the other petitioners. The petitioner in W.P.No.25686 of 2010 similarly claims to be the owner and possessor of 444 square yards in T.S.No.164 of the same village being the purchaser under a registered sale deed of 1971. He claims to have replaced the tiled house with RCC slabbed house and to have received a notice in O.A.No.96 of 2008 from the 1st respondent against which he defended himself. He also questioned the final order passed on 24-05-2010 on the same grounds as the other petitioners. The petitioner in W.P.No.25687 of 2010 also claims to be owning and possessing 716 square yards with a tiled house thereon in T.S.No.164 of the same village having purchased the same under a registered sale deed of 1998. He also claims to have replaced the tiled house with RCC slabbed house and to have received a notice dated 15-10-2008 in O.A.No.90 of 2008 which he contested. The final order dated 24-05-2010 by the 1st respondent was challenged by him on the same grounds as the other petitioners. The counter affidavit of the 2nd respondent in all the cases is about the subject lands being those of the 2nd respondent as per Section 43 of the A.P. Act 30 of 1987 register due to which all the petitioners were encroachers of the properties. The petitioners have to file an appeal under Section 84 (2) of the A.P. Act 30 of 1987 and not writ petitions. The Deputy Commissioner, Endowments, Visakhapatnam, has sent notices to the petitioners in various writ petitions after following due procedure under Section 83 of the A.P. Act 30 of 1987 and after considering the documents, evidence and the pleadings on record of the parties, the Deputy Commissioner reserved the matters for orders and delivered the orders on 24-05-2010 declaring the petitioners as encroachers. The 2nd respondent contended in all the counter affidavits that the Deputy Commissioner has the jurisdiction to decide the matter even after G.O.Ms.No.837 Revenue (Endowments-I) Department, dated 13-08-2009 as decided by this Court in W.P.No.9681 of 2008 dated 11-11-2008 as till the agency contemplated is constituted and becomes functional, the existing arrangement must continue. The Endowments Tribunal started functioning from the date of the Chairman taking oath and assuming the charge. The Chairman was appointed vide G.O.Rt.No.75, dated 21-05-2010, took oath on 24-05-2010 on which the office of the Commissioner, Endowments informed the Deputy Commissioner of Endowments not to take up any O.As relating to Sections 83 and 87 through the D.O. letter No.E2/28419/2008, dated 01-06-2010. As the O.As were reserved for orders earlier and were disposed of by the common order on 24-05-2010, the same are within the jurisdiction of the Deputy Commissioner and hence, the 2nd respondent desired that the writ petitions be dismissed. In all the writ petitions, interim directions were given to maintain status quo obtaining on the date of passing of the interim directions for a period of four weeks from the date of the orders. Section 162 of A.P. Act 30 of 1987 provided for the constitution of the Endowments Tribunal and the A.P. Endowments Tribunal being constituted under G.O.Ms.No.837 Revenue (Endowments-1) Department, dated 13-08-2009 is admitted and by virtue of the Amendment Act 33 of 2007, which came into force with effect from 03-01-2008, all questions relating to encroachment covered by Section 83 of A.P. Act 30 of 1987 fall within the exclusive jurisdiction of the Endowments Tribunal in the place of the Deputy Commissioner of Endowments, who was exercising this jurisdiction earlier. The counter affidavits of the 2nd respondent themselves show that a Chairman of Endowments Tribunal was appointed by G.O.Rt.No.75 dated 21-05-2010 and that the said Chairman had taken oath on 24-05-2010. The fact that the Chairman of the Endowments Tribunal had taken charge and the Deputy Commissioner, Endowments should not take up any matters relating to Sections 82 and 83 of A.P. Act 30 of 1987 was admittedly communicated by the Commissioner, Endowments through a D.O. letter No.E2/28419/2008, dated 01-06-2010. Though it may be true that by the time the said communication reached the Deputy Commissioner, Visakhapatnam, the impugned orders were already pronounced, the fact does not detract from the consequences of the effect of the constitution of the Tribunal earlier and the Tribunal started physical functioning with effect from 24-05-2010. In W.P.No.9681 of 2008, a learned Judge of this Court by the order dated 11-11-2008 observed that wherever the adjudicatory procedure or process is amended, the known principle is that till the agency contemplated under the law becomes functional, the existing arrangement must continue, which is the purport of the relevant provisions of the General Clauses Act. The learned Judge illustratively referred to the view taken by the Apex Court in Commissioner of Income Tax v. Dhadi Sahu (1994 (TLS) SCC 10653) reflecting the uniform view taken in all such precedents. The learned Judge also referred to sub-section 5 of Section 87 which provided that notwithstanding anything contained in other sub-sections of Section 87, the Deputy Commissioner having jurisdiction shall continue to enquire into and decide the disputes referred to in sub-section (1) till the constitution of the Endowments Tribunal, whose power to decide certain disputes and matters is the subject of Section 87. While the learned Judge noted that a provision akin to sub-section 5 of Section 87 was not enacted in respect of all matters arising under Section 83 of the Act. The inadvertent omission was considered not to stand in the way of the Court adopting a reasonable approach in interpreting Section 83 in such a manner as to keep intact the regime that existed under Section 83 before it was amended till the Tribunal is constituted under Section 162. The learned Judge, therefore, concluded that the jurisdiction of the authorities concerned under Section 83 of the Act as it stood before the amendment through Section 33 of 2007 shall remain intact and it shall be competent for them to adjudicate the matter as usual till the Tribunal provided for under Section 162 of A.P. Act 30 of 1987 is constituted. Apart from such Tribunal being constituted by virtue of G.O.Ms.No.837 dated 13-08-2009 itself, as a Chairman was appointed admittedly on 21-05-2010 and he took oath on 24-05- 2010 and started functioning on 24-05-2010, the jurisdiction of the Deputy Commissioner of Endowments under Section 83 of the Act 30 of 1987 ceased to exist since then forthwith, whether de facto, the Deputy Commissioner was aware of the Chairman of the Tribunal assuming charge, taking oath and starting functioning on 24-05-2010 itself. Consequently, the orders in question in all these writ petitions on 24-05-2010 were passed by the Deputy Commissioner without any jurisdiction, which ceased to vest in him on that date and the matters, therefore, need to be remanded to the Endowments Tribunal for consideration and decision in accordance with law. Accordingly, the impugned orders of the Deputy Commissioner of Endowments, Visakhapatnam involved in all these writ petitions are set aside and O.A.Nos.87 of 2008, 89 of 2008, 85 of 2008, 86 of 2008, 82 of 2008, 96 of 2008 and 90 of 2008 are remanded to the Andhra Pradesh Endowments Tribunal for enquiry, adjudication and decision in accordance with law. The writ petitions are ordered accordingly without costs. _____________________ G. BHAVANI PRASAD, J Date: 21-08-2012 Ksn "