Andhra Pradesh High Court - Amravati
Mamuduru Penchalaiah, Nellore ... vs Commissioner Of Endowments, Hyderabad ... on 12 November, 2021
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HON'BLE SRI JUSTICE D.V.S.S.SOMAYAJULU
WRIT PETITION Nos.17670 of 2013; 16796 of 2020;
21185 of 2020 and 2587 of 2021
COMMON ORDER:
W.P.No.17670 of 2013 is filed for a mandamus for declaring the action of the 2nd respondent in paying 50% of the ticket amount to the petitioners for tonsuring services as illegal, incorrect etc. W.P.No.16796 of 2020 is filed by the petitioners questioning the action of the 3rd respondent in not releasing the share remuneration of tonsuring tickets for July and August, 2020.
W.P.No.21185 of 2020 is filed questioning the action of the 3rd respondent in distributing the remuneration of Rs.8,01,950/- for the months of July and August, 2020.
W.P.No.2587 of 2021 is filed by the petitioners seeking regularization of their services as Junior Assistants.
Thus, it is seen that three out of four writ petitions are filed with regard to the services being rendered by barbers and the related issues in the Sri Penusila Lakshmi Narasimha Swamy Devasthanam, Penchalakona. Mr. M.Penchala Swamy is the main protagonist in these Writ Petitions. He is claiming to be a hereditary barber in this temple and asserting certain rights, which are strongly disputed by the others. 2
It is clear that from 2013 onwards the dispute is pending. As can be seen from the Writs filed these claims are resisted by the other set of barbers, who claim to be actually rendering the services. The temple, as represented by Sri G. Ramana Rao, learned standing counsel is stuck between these two rival claimants and in view of the orders passed is paying huge amounts to both. Therefore, the Writ Petitions were taken up for hearing at the request of the standing counsel.
Sri D.V.Sasidhar, appearing for Mr. Penchala Swamy and another states that Mr.Penchala Swamy belongs to hereditary family of barbers, who have been traditionally rendering services in this temple for generations together. He relies upon the proceedings dated 20.04.1996, issued by the then Executive Officer, wherein the name of Mr.Penchala Swamy was shown in the proceedings, as a person rendering hereditary tonsuring services. He also relies upon the order dated 28.03.2005 passed by the Assistant Commissioner, wherein the services of Mr.Penchala Swamy were directed to be utilized and the entire payment was to be paid to him. Learned counsel for the petitioners argues that from 1996 onwards the petitioners had been rendering services and this is recognized by the respondents. He, therefore, submits that the subsequent order issued on 03.07.2018 to pay 100% of the amount collected directly to the barbers is not correct. This is the sum and substance of his claim as regards the payments and services rendered.
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Sri G. Ramana Rao, learned standing counsel for the Endowments submits that the department by virtue of the orders being passed by the Courts is paying money both to Mr. M. Penchala Swamy and also to these barbers, who claimed to be rendering services. He also submits that the hereditary rights existing in the temples have been abolished by Act 30 of 1987 and that neither Mr. M. Penchala Swamy nor others can claim vested hereditary rights in the tonsuring activity and also to claim payments. It is his contention that the issue has to be finally resolved by this Court and points out that in view of the very divergent stands taken at various points of time the respondent temple is facing very serious problems. He points out that neither the petitioners have any vested rights nor constitutional rights to claim the mandamus.
Sri C. Subodh appearing for the group of barbers, who are claiming to be rendering services, states that they are the people who are actually rendering services in the temple and carrying out tonsuring activity. Therefore, he submits that they alone are eligible to receive all the remuneration that would have been generated by this activity. It is reiterated that Mr.Penchala Swamy does not have any vested hereditary rights in the temple.
COURT:-
As mentioned earlier Sri D.V.Sasidhar, is relying upon the order dated 28.03.2005 by which his clients' services were 4 directed to be utilized and 100% payment was to be made to him. The unofficial respondents relied upon the subsequent orders, which had been passed on 03.07.2018 and 05.07.2018, by which 100% payment was directed to be made to the barbers. The interim orders that were passed in the cases referred to above also led to a certain amount of difficulty as directions were issued to effect payments. The Government orders issued also added to the trouble.
This Court after examining the matter and after hearing the parties at length notices that in W.P.No.16796 of 2020 the temple has gone on record by stating that the 1st petitioner- Penchala Swamy did not actually attend the tonsuring work. He used to attend the temple twice or thrice in a month. It is also stated that prior to 1997 the father of the 1st petitioner and some other barbers used to attend the tonsuring work but it is asserted that the father of the 1st petitioner was not recognized as a hereditary barber. It is also mentioned that the remuneration for tonsuring of hair was paid through the bajanthries, who engaged the services of the barbers. It is asserted that the bajanthries might have engaged the services of the father of the 1st petitioner or even the petitioner but the subject temple never recognized their services. In the rejoinder however it is asserted that on 20.04.1996 the Assistant Commissioner-cum-Executive Officer in his proceedings has recognized that Mr.Penchala Swamy is a hereditary barber. 5 According to the learned counsel for the petitioners this is also reiterated in the proceedings dated 15.07.2016.
In W.P.No.21185 of 2020, among the other documents, learned counsel for the petitioners points out that the letter of the Executive Officer refers to the services of the 1st petitioner, but does not recognize the services of the 2nd petitioner in that Writ. He also points out that proceedings dated 25.09.2020 issued by the temple also referred to services being rendered and the proceedings dated 15.07.2016. Learned counsel also points out that the learned single Judge in W.P.No.11309 of 2005 disallowed the claim of the petitioners therein holding that they could not file any document to show that the petitioners were actually working as barbers in the temple. Since a rejoinder was not filed rights of the payments to the barbers was negated vis-a-vis Mr.M.Penchala Swamy who is the petitioner before this Court.
However, a reading of the counter, which is again filed by the Executive Officer of the temple, shows that the 2nd petitioner is the son of the 1st petitioner. A large number of Writ Petitions filed earlier are also referred. It is asserted that the 2nd petitioner is the resident of Nellore and has never attended tonsuring work in the Devasthanam. It is reiterated that petitioners 1 and 2 are not hereditary barbers. It is also reiterated that prior to 1996 the bajanthries used to engage local barbers and in that process the father of petitioner No.1 6 and may be the petitioner were engaged intermittently. But it is reiterated that petitioners 1 and 2 were never engaged by the temple per se.
In W.P.No.2587 of 2021, the prayer is for regularization of the services. Same documents are relied upon by the petitioners and the petitioners claim for regularization of service or a direction to frame scheme for the same. In the counter affidavit it is asserted that the petitioners are not hereditary barbers and were not even working as barbers as on date of commencement of the Act 30 of 1987. It is also stated that there is no channel for promotion or appointment as Junior Assistant or Record Assistant from the barber service.
In addition, this Court notices that in W.P.No.17670 of 2013 also a counter affidavit is filed by the then Assistant Commissioner. This Writ Petition is filed by 29 petitioners. A large majority of them have given notarized affidavits stating that they have not signed the vakalath and that they are being paid the remuneration towards tonsure work by the 3rd respondent-M. Penchala Swamy. This stand is reiterated by the Executive Officer. (Mr. Penchala Swamy, is the 3rd respondent in this Writ Petition). The Executive Officer acknowledges that he was engaging the services of the barbers. The proceedings dated 28.03.2005 are referred to in this counter to state that the services of Mr.Penchala Swamy should be engaged and that he should be paid the 7 remuneration completely. Right of the petitioners therein to claim money is denied in the counter.
After all the pleadings are examined it is very clear that there are seriously disputed issues in this matter. The stand taken by the respondent temple itself has been varying from time to time. Other than the proceedings of 1996, in which Penchala Swamy name is referred to, no other document is filed to establish that Mr. Penchala Swamy has a hereditary right or that he is continuously rendering services to the temple and the pilgrims. Activities of this nature which are carried out in a temple would have supporting documents/evidence but the same is not forthcoming. Mr. Penchala Swamy is claiming rights from his ancestors. Despite the clear and categorical assertions made by the respondent temple that he never rendered services, the petitioner viz., Mr.Penchala Swamy was not able to file clear or categorical proof that he was hereditary barber. The document of 1996 which he relies upon is not by itself enough to establish a hereditary pre-existing right which will enable him to agitate his claims before this Court.
The stand taken by the respondent temple also varies. As pointed out in one counter it is stated that he never rendered any services. In another counter it is stated that the services of petitioners were engaged by Mr.M.Penchala Swamy as barbers. Same is the case with the barbers/respondents who are opposing the claim of Mr. Swamy. No clear documents 8 or evidence is produced to support their case before this Court. Officers have also issued orders with serious financial implications without examining the issues fully.
This Court does not have any clear or categorical material to hold that the petitioner Mr.M. Penchala Swamy has hereditary rights, which have been recognized, nor does it have any material to conclude that the other barbers, who joined as respondents, have also been rendered services either directly or through Mr.Penchala Swamy. This is an unfortunate state of affairs.
A mandamus can only be issued when a right is established. Neither of the parties was able to establish their rights conclusively. There are seriously disputed facts and in the opinion of this Court the parties have to go to a competent civil court to establish their rights by proper pleadings and evidence and a writ is not a proper remedy. This Court thus has no other option except to dismiss Writ Petition Nos.17670 of 2013; 21185 of 2020 and 16796 of 2020 for the above reasons.
To prevent a further recurrence of this sort of episodes further directions are issued. The A.P. Charitable and Hindu Religious Institutions Lease and License Rules, 2003 issued under G.O.Ms.No.866 provided for licenses being granted through a public tender. Even otherwise the respondents can only dispose or grant rights through a public auction. 9 Therefore, there shall be a direction to the respondents to conduct public auction for auctioning the license rights of tonsuring of the pilgrims and for collection of remuneration in the respondent temple within 4 weeks from the date of receipt of this order by following G.O.Ms.No.866. The respondent temple is directed to keep in mind the circular number 14/77 dt.16-05-1977 and fix the rates/license fee etc., keeping the interest of the pilgrims as the highest priority.
An interim arrangement also has to be made to ensure that the pilgrims do not suffer in this period. Before this auction is finalized and in the interim period the respondents are directed to select about 10 barbers, from the array of parties including Mr.M. Penchala Swamy and M. Prem Sai and 8/9 others for rendering service of tonsuring to the pilgrims in this interim period. If only 8/9 people give their consent they should be given the work but if more than 8/9 people give their consent the names should be chosen by lots for this interim period. The proceeds received from the tonsuring which shall be at the existing rates shall be shared 50-50 between the temple and the barbers for the services rendered. This interim measure shall only be in place till the rights are auctioned and license is granted.
As far as W.P.No.2587 of 2021 is concerned, this Court is of the opinion that the petitioners do not have a right to seek a mandamus of the nature sought. This Court cannot give a 10 direction to the respondents to frame a scheme for regularization. This is a matter of policy. In addition, no documentary evidence is filed to show that the petitioners were servants of the institution which would enable them or give them a "right" to demand a mandamus. As stated earlier the rights of the petitioners to claim a relief are matters of evidence and proof. They have to be established in a competent Civil Court only. Therefore, this Writ Petition is also dismissed. There shall be no order as to costs.
Consequently, the Miscellaneous Applications pending, if any, pending shall also stand dismissed.
__________________________ D.V.S.S.SOMAYAJULU, J Date:12.11.2021.
Ssv 11 HON'BLE SRI JUSTICE D.V.S.S.SOMAYAJULU WRIT PETITION Nos.17670 of 2013; 16796 of 2020;
21185 of 2020 and 2587 of 2021 DATE:12.11.2021 SSV