WP/31568/2010 of T.Sudhakar Vs The Andhra Pradesh Endowments Tribunal on 31 December 2010

ORDER:

The petitioners challenge the action of the 2[nd] respondent,viz., Sri Chedellavari Choulty, Nawabpet, Nellore Town, inapproaching the 1[st] respondent-The Andhra Pradesh EndowmentsTribunal, Hyderabad, (Tribunal) by filing Original Applications (O.As)seeking for removal of encroachment of the 2[nd] respondent property bythe petitioners, as illegal and to interdict the Tribunal from proceedingto consider the said O.As.

2. The petitioners claim to be residing in the house bearingD.Nos.4/170 and 4/171, Nawabpet, Nellore. The said house propertyadmittedly belongs to the 2[nd] respondent-Choultry. The 2[nd]respondent leased the said property to the petitioners for a period ofthree years commencing from 1.10.1999 to 30.09.2002. After expiry ofthe said period the lease was not extended. Alleging that thepetitioners defaulted in payment of rents for over six months resultingin huge loss of income, and that as the lease was not extended, thestatus of the petitioners is that of an encroacher, the 2[nd] respondentapproached the Tribunal by way of filing O.A.Nos.29 & 30 of 2010 forremoval of the petitioners.

3. This writ petition is filed to interdict the proceedings in thesaid O.As. basically on the premise that the suits O.S.Nos.871 and 872of 2009 have been filed in the Court of the III Additional Junior CivilJudge, Nellore for the relief of permanent injunction against thepetitioners not to raise any pucca or RCC constructions on the land,and W.P.No.26993 of 2009 filed in this Court are pending adjudicationof the disputes raised therein. Another premise is that the writpetitioners have approached the 3[rd] and 4[th] respondents, viz., the Commissioner of Endowments, Boggulakunta, Hyderabad and theState of A.P. represented by its Principal Secretary (Revenue)(Endowments), for a long lease for 25 years with necessary permissionto reconstruct the building at a cost of Rs.12 lakhs and the applicationdated 18.01.2010 filed in this regard has been endorsed by theMinister for Endowments and the Commissioner of Endowments, andthey have called for a report from the Assistant Commissioner ofEndowments, Nellore for further steps. The petitioners contend that inview of the said representation being under consideration, the 2[nd]respondent is unjustified in pursuing the O.As.

4. Heard Smt. Usha Kiran, learned counsel representing SriW.B. Srinivas, learned counsel for the petitioner and Sri V.T.M. Prasadlearned Standing Counsel for respondent No.2.

5. The learned counsel for the petitioner while reiterating thefacts pleaded in this writ petition would contend that the 2[nd]respondent has invoked plurality of remedies in O.S.Nos.871 & 872 of2009 in the III Additional Junior Civil Judge, Nellore andW.P.No.26993 of 2009 in this Court. She would also contend that thepetitioners are pursuing the Government and endowment authoritiesfor a long lease. The subject matter of the property and the issuesinvolved in the suits are substantially similar. It is contended that theO.As have been filed sans bona fides with a view to harass thepetitioners. She would further contend that in the event of thepetitioners succeeding in their efforts to secure a long lease from theGovernment and the endowment authorities, the petitioners wouldsuffer prejudice if O.As. are ordered against them.

6. The learned Standing Counsel would oppose thecontentions and submit that the O.As have been validly instituted asper the provisions of the statute and the 1[st] respondent being acompetent forum, it is entitled to entertain and adjudicate the claims inthe O.As. He would further contend that the petitioners are defaulters inpayment of rents besides being encroachers of the premises squatting on the property without valid lease. He would further contend that theissues involved in the suits and the writ petition are not similar as theissues in the O.As and the alleged efforts of the petitioner before theGovernment and the Endowment authorities cannot be a ground tointerdict the proceedings before the 1[st] respondent. He would furthercontend that as per the rules issued in G.O.Ms.No.866, dated8.08.2003 grant of lease or licence should be only by way of publicauction.

7. It is an undisputed fact that the subject premises is theproperty of the 2[nd] respondent and the petitioners are tenants.Indisputably the subject property was leased to the petitioners for aperiod of three years from 1.10.1999 to 30.09.2002 and the same hasnot been extended. Section 83 of the A.P. Charitable and HinduReligious Institutions and Endowments Act, 1987 (for short ‘the Act’)provides for eviction of encroachers, removal of encroachments anddelivery of property encroached upon. The Tribunal on receipt of anapplication, on reaching a prima facie case of encroachment, maycause a notice to be served upon the encroacher and after conductingenquiry, by order require the encroacher to remove the encroachmentand deliver possession before a date specified in such order. It istherefore evident that the Tribunal is the creature of statute andauthorized to deal with the matters for removal of encroachments.There is no embargo placed on the power of the Tribunal to defer theexercise of its power on any pretext including those that are invoked bythe petitioners. The alleged efforts being pursued either before theGovernment or the endowments authority cannot defeat the rights ofthe owner of the endowed property to seek remedy from the Tribunal orby such reason the Tribunal could be interdicted from exercising thepowers vested in it by law.

8. It does not appear that the reliefs sought for in the suits andthe writ petition are the same as the reliefs sought in the O.As. Fromthe pleadings of the petitioners it is evident that the relief sought for in O.S.Nos.871 & 872 of 2009 is for permanent injunction not to raise anypucca or RCC constructions over the suit schedule land andW.P.No.26993 of 2009 is for a direction to declare the action of theAssistant Commissioner Endowments and Sub-Inspector of Police innot directing or aiding the 2[nd] respondent in stopping the illegalconstructions undertaken by the petitioners and for a direction to theCommissioner of Municipal Corporation, Nellore, to demolish theillegal constructions made by them. It therefore cannot becountenanced that the issues are common in both the suits and theO.As. This apart, the Act being a special enactment, interalia dealingwith removal of encroachments, the pendency of proceedings in otherfora cannot be a ground to interdict the proceedings before theTribunal.

9. The learned counsel for the petitioners however wouldurge that the leases of the petitioners were extended orally andtherefore they could not be considered as encroachers. Theexplanation to sub-section (1) of Section 83 of the Act would specifically provide thata person who remains in the land or building or space after the expiryof termination or cancellation of lease or mortgage or licence in respectthereof would be an encroacher. It is the specific case of the 2[nd]respondent that the lease had expired and the same had not beenextended. In the light of this specific denial it is for the petitioners toestablish the oral lease before the Tribunal.

10. There being no legal infirmity or lack of jurisdiction of theTribunal to deal with the O.As. urged, this writ petition is without meritsand the same is accordingly dismissed. There shall be no order as tocosts.

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Note : Issue C.C. in one week. B/O LVL