Andhra Pradesh High Court - Amravati
Mopuri Hemavathi, vs The State Of Andhra Pradesh on 23 September, 2021
Author: M.Satyanarayana Murthy
Bench: M.Satyanarayana Murthy
THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY
WRIT PETITION NO.23856 OF 2020
ORDER:
This writ petition is filed under Article 226 of the Constitution of India, claiming the following relief:
"Writ of Mandamus declaring the List of Endowment properties communicated by the respondent No.2 including the land in an extent of Ac.0-05 cents out of Ac.1-73 in Sy.No.687/2 in ward No.32 Srinivasa Nagar interior, Chinna Chowk Village Fields, Kadapa Mandal, Y.S.R District as an endowment land eventhough it is not registered under Section 43 Register as is required under the provisions of the Andhra Pradesh Charitable Hindu Religious and Endowment Act, 1987 as arbitrary illegal and contrary to the procedure envisaged under the Section 22-A(1)c of the Indian Registration Act, 1908 and well established legal principles apart from being violative of the fundamental and Constitutional rights guaranteed to the petitioner under Articles 14, 19, 21 and 300-A of the Constitution of India and consequently direct the respondent No.7 to entertain the sale deed for registration for the land in an extent of Ac.0-05 cents out of Ac.1-73 in Sy.No.687/2 in ward No.32 Srinivasa Nagar interior, Chinna Chowk Village Fields, Kadapa Mandal, Y.S.R District by setting aside the endowment land list communicated by the respondent No.2 in so for as the same is concerned."
The petitioner purchased house plot in an extent of Ac.0-05 cents out of Ac.1-73 cents in Sy.No.687/2 in Ward No.32, Srinivasa Nagar, Chinna Chowk Village Fields, Kadapa Mandal, Y.S.R Kadapa District (hereinafter referred as „subject property‟) through a Sale Deed dated 16.04.1999 vide Document No.1397/2020 from one Smt. Gajjala Lakshmi Devi and others, who in-turn purchased the same through the registered Sale Deeds dated 22.01.1994 registered Document Nos.241 and 242/1994 from Sanjeevi - vendor‟s vendor, who in turn purchased the same through Sale Deed dated 23.02.1984 registered Document No.857/1984. Since the date of purchase, the petitioner‟s vendor‟s vendor was in possession and enjoyment of the property and after purchase of the property, under registered sale deed by the petitioner dated 16.04.1999, the MSM,J WP_23856_2020 2 petitioner is continuing in possession and enjoyment of the property and availed loan from State Bank of Hyderabad, mortgaging the property.
As the petitioner is in financial crisis, she could not repay the loan secured from the bank. Under these circumstances, State Bank of India initiated proceedings under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short „SARFAESI Act‟) for recovery of loan account from this petitioner.
While so, the petitioner was constrained to sell the subject plot to third parties to clear the loan amount with sale proceeds and approached Respondent No.7 for presentation of document for registration. Whereas, Respondent No.7 refused to received the sale deed for registration stating that, as per the list communicated by Respondent No.2 on 02.12.2016, the subject land is included as „Endowment Land‟ belonging to Sri Mutharasupalli Rama Swamy Temple in the list of endowment properties communicated in compliance of Section 22-A(1)(c) of the Indian Registration Act, 1908, as per RSR, hereinafter referred in the Act, 1908.
The petitioner contended that, already there are sale transactions from the year 1984 and the property was exchanged from three or four hands and they were in possession and enjoyment of the same in their own title. Hence, the question of inclusion of the subject property in the list of endowment property under Section 22-A(1)(c) of the Registration Act does not arise and it is a serious illegality.
MSM,J WP_23856_2020 3 There is an elaborate procedure envisaged under Sections 43, 45 and 46 of Act 30 of 1987 to enter a particular piece of land in the Register maintained under Section 43 of Act 30 of 1987. Further, unless and until a particular piece of land is entered in the register required to be maintained under Section 43 of Act 30 of 1987, the same cannot be treated as an endowment land and the same belongs to charitable (endowment) institution. In the facts of the present case, the subject land was never entered in the Register maintained under Section 43 of Act 30 of 1987 after following the procedure prescribed under Sections 43, 45 & 46 of Act 30 of 1987. The basis for claim of Respondent Nos. 2 to 6 is that, the subject land is the only entry made in adangal in the pattadar and possessor columns.
The petitioner further contended that, when a similar issue fell for consideration in W.P.No.31851 of 2012 as to whether the endowment authorities can make a claim basing on the entry at the pattadar column in RSR, this Court held that the endowment authorities cannot make any such claim basing on such entry. Relying on the same, learned single Judge of this Court allowed W.P.No.29506 of 2013 after contest by the temple and endowment authorities. Aggrieved by the order in the above writ petition, respondents therein filed W.A.S.R.No.152651 of 2014, the Division Bench of this Court dismissed the same at the interlocutory stage itself.
In the instant case also, the only basis for Respondent Nos. 2 to 5 to make claim that the subject land belong to the trustees of Sri Mutharasupalli Rama Swamy Temple is an entry in pattadar column in adangal. Therefore, the facts and circumstances of the case is MSM,J WP_23856_2020 4 squarely covered by the law laid down by this Court in W.P.No.31581 of 2012 and W.P.No.29506 of 2013. Hence, the list impugned in the writ petition communicated by Respondent No.2, including the subject land as an endowment land is contrary to the procedure envisaged under the provisions of Sections 43, 45 and 46 of the Act and also well established legal principles, on account of inclusion of the property in the list of prohibited properties list, the petitioner is in the unable to deal with the property to discharge the debt due to the bank. Therefore, the petitioner is considered to approach this Court invoking jurisdiction of this Court under Article 226 of the Constitution of India and requested to issue writ of mandamus, as claimed for.
Respondent No.5 - Assistant Commissioner of Endowments Department, Kadapa District filed separate counter affidavit, denying material allegations, inter alia, contending that the land in dispute belongs to the temple and it is entered into the list of prohibited properties under Section 22A(1)(c) of the Registration Act. The transactions mentioned by the petitioner in the writ affidavit are prior to 2005 and at present, the land in Sy.No.687/2 is the land under list of prohibited properties. The land in above survey number belongs to Endowment Department as per revenue records and also as per Register maintained under Section 43 vide Rc.No.B2/3379/2020 dated 20.10.2020. The High Court in T. Kalpana and another v. The Joint Sub-Registrar-I, Kadapa and others (W.A.No.500 of 2012 dated 09.10.2012) directed the petitioner to file a petition before Andhra Pradesh Endowments MSM,J WP_23856_2020 5 Tribunal at Amaravathi under Section 87 of the Act, which is the proper forum to decide the property is private or public.
It is further contended that, land of an extent of Ac.0-05 cents in Sy.No.687/2 belong to Endowments Department and the sale is null and void, as it is property of Sri Rama Swamy Temple of Mutharasupalli Village, Chinnachowk Panchayat, Kadapa District. The action of Kadapa Municipal Corporation approving the plan submitted by the petitioner is erroneous and they have not examine the title to the land before approval of the plan. It is further contended that, Religious and Charitable Institutions lands cannot be alienated, thereby, the list is communicated by the second respondent under Section 22-A(1)(c) of the Registration Act, requesting to refuse registration pertaining to land of the temple of the subject land, thereby, the Sub-Registrar, Kadapa in not entertaining any document presented for registration as per the directions of Endowments Department is just and proper.
The orders passed in W.P.No.31851 of 2012 dated 20.12.2012 and 31.12.2012 have attained finality and the writ petitioner has to prove title over the land for which the Court directed the writ petitioner to approach the Andhra Pradesh Endowments Tribunal to file an application under Section 87 of Act 30 of 1987. The writ petitioner has not filed the same before the Tribunal.
It is submitted that, the land in Sy.No.687/2 of Ac.1-73 cents of Chinnachowk Village Fields, Kadapa Town belongs to the presiding deity Sri Rama Swamy Temple having absolute rights and ownership. The said property is included in the property register maintained under Section 43 in Rc.No.B2/3379/2020 dated MSM,J WP_23856_2020 6 20.10.2020 and unless permission of Commissioner, Endowments Department is obtained as per the provisions of Section 80 of Act 30 of 1987, such transaction is null and void, thereby, inclusion of the property in the list of prohibited properties is in compliance with the provisions of Act 30 of 1987 and Registration Act and the same cannot be set-aside.
Learned Assistant Government Pleader for Revenue placed on record, order in T. Kalpana and another v. The Joint Sub- Registrar-I, Kadapa and others (referred supra) along with site plan of the temple for perusal of this Court, whereas, the petitioner filed rejoinder briefly contending that, though the respondent alleged that the property is included in the list of prohibited properties maintained in the Register under Section 43 of Act 30 of 1987, copy of the Register is not filed for perusal of this Court. The petitioner is neither party to W.A.No.500 of 2012 nor there is a direction directing the petitioner to approach the Endowments Tribunal, as provided under Section 87 of Act 30 of 1987. Therefore, inclusion of the land of this petitioner on the ground that the property Register maintained under Section 43 of Act 30 of 1987 is illegal and the said Register has not seen the light of the day till date.
Even to include the property in the Register maintained under Section 43, procedure envisaged under Sections 43, 45 and 46 of Act 30 of 1987 has to be adhered strictly to enter a particular piece of land. But, no such procedure is followed, thereby, the property does not belong to the temple and the alleged inclusion of the property in the list of prohibited properties is illegal and arbitrary and requested to issue a direction as stated above.
MSM,J WP_23856_2020 7 During hearing, Sri V.R. Reddy Kovvuri, learned counsel for the petitioner reiterated the contentions urged in the affidavit, while placing reliance on the order of the learned single Judge of this Court in W.P.No.31851 of 2012 dated 20.12.2012 to contend that the property involved in the above writ petition and the present writ petition is one and the same, therefore, the principle laid down in the W.P.No.31851 of 2012 dated 20.12.2012 is applicable and on the basis of the same, the petitioner sought a direction as claimed in the writ petition.
Learned Government Pleader for Endowments contended that, when a petition is to be filed under Section 87 of Act 30 of 1987 before the Endowments Tribunal, when the property is included in the Register maintained under Section 43 of Act 30 of 1987, based on the principle laid down by the Division Bench of this Court in T. Kalpana and another v. The Joint Sub-Registrar-I, Kadapa and others (referred supra) and requested to dismiss the writ petition.
The core contention of the petitioner before this Court is that, inclusion of property in the list of prohibited properties under Section 22-A of the Registration Act by the second respondent is without any basis and this property is not part of the property as per the Register maintained under Section 43 to include in the list of property maintained under Section 43 of Act 30 of 1987. At the same time, inclusion of the property in the property Register maintained under Section 43 of Act 30 of 1987 based on ROR entry or adangal is a grave illegality.
MSM,J WP_23856_2020 8 Though, Respondent No.5 filed counter affidavit and contended that it is a property belonging to the temple and included in the list maintained under Section 43 of Act 30 of 1987, did not place on record a copy of the Register maintained under Section 43 by Sri Mutharasupalli Rama Swamy Temple. Undoubtedly, copy of the Register maintained under Section 43 of Act 30 of 1987 is not placed on record to verify whether the property is included in the Register maintained under Section 43 or not. Similarly, the RSR is also not placed on record, which is the basic document to decide whether this property belongs to Sri Mutharasupalli Rama Swamy Temple or not, except bare allegation that this property belongs to Sri Mutharasupalli Rama Swamy Temple, Chinnachowk Panchayat, Kadapa District. No piece of evidence is brought on record by the respondents to substantiate the said contention. On the other hand, learned counsel for the petitioner relied on the judgment of this Court in W.P.No.31851 of 2012 dated 20.12.2012. The property in dispute in W.P.No.31851 of 2012 is land admeasuring Ac.0-02 ½ cents out of Ac.0-05 cents forming part of Ac.1-73 cents in Sy.No.687/2, Srinivas Nagar, Nehru Nagar, Chinna Chowk Village, Kadapa City and it is included in the list of prohibited properties under Section 22-A(1)(c) of the Registration Act, on the ground that, the land belongs to charitable institutions i.e. Sri Mutharasupalli Rama Swamy Temple. But, the learned single Judge concluded that the sole basis of it is, Respondent No.2 addressed the above letter to Respondent No.4 is the entry in RSR. On perusal, the said document would show that, against Sy.Nos.686 and 687 in Column No.16 pertaining to name of pattadar or inamdar or manager of the institution, it is mentioned as "Kadasani Seshaiah, Narasayya, MSM,J WP_23856_2020 9 Naroddi Gangayya and Trustees of Muttarajupalle Ramaswami Deity". The law is well settled that a mere entry in the R.S.R does not constitute evidence of title to the property. Even otherwise, the said R.S.R. does not show that the Temple is the pattdar or inamdar. The three individual names referred to above have been mentioned along with their designation as „Trustees of the temple‟. Finally, the learned single Judge opined that, on the basis of such a cryptic description of the entry in the R.S.R, it cannot be concluded that the subject property is an Endowment property. There is nothing on record to show that the subject property was registered as an Endowment property in the register maintained under the A.P. Charitable and Hindu Religious Institutions and Endowments Act, 1987. The evidence produced by the petitioner, as discussed above, would show that registered transactions have been taking place in respect of the subject property from 01.01.1974. Finally, the learned single Judge allowed the writ petition with following direction:
"..... that the property changed three hands; and that the same was allowed to be enjoyed by private persons, including the petitioner with absolute rights. If the subject property is an Endowment property, there is no reason why Respondent Nos. 2 & 3 have not recovered possession thereof all these years. Therefore, I do not find any justification in Respondent No.4 not receiving the document sought to be presented by the petitioner in respect of the subject property and register the same.
Respondent No.4 is directed to receive the sale deed that may be presented by the petitioner in respect of the subject property and register the same, subject to the latter complying with the provisions of the Registration Act, 1908 and the Indian Stamp Act, 1899. This order shall not be understood as this Court declaring title of the petitioner in respect of the subject property."
Learned counsel for the petitioner also relied on another judgment of the Division Bench of this Court in W.A.M.P.No.2971 of 2014 and W.A (SR) No.152651 of 2014 dated 07.11.2014, preferred against the order of the learned single Judge in W.P.No.31851 of MSM,J WP_23856_2020 10 2012 dated 20.12.2012, wherein, WAMP No.2971 of 2014 was dismissed for non-prosecution.
In any view of the matter, when subject property of the present writ petition and the subject property of W.P.No.31851 of 2012 dated 20.12.2012 is one and the same, this Court cannot take a different view than the view expressed by the learned single Judge in W.P.No.31851 of 2012 dated 20.12.2012.
One of the major contentions of the learned Government Pleader for Endowments is that, when once the property is entered in the Register maintained under Section 43 of Act 30 of 1987, the petitioner has to approach the Endowments Tribunal and placed reliance on the judgment of the Division Bench of this Court in Smt. T. Kalpana and another v. The Joint Sub-Registrar-I, Kadapa and others (referred supra), wherein the Division Bench of this Court held as follows:
"However, we have considered the facts and circumstances of the case and also examined the material placed before us. After considering Section 87 of the Act, in our opinion, the reedy is before the said authority as specifically stated by His Lordship. Accordingly, we do not intend to interfere with the said order, since the said order does not suffer from any illegality or irregularity and, on the contrary, we affirm the said order passed by His Lordship, since we do not find any merit in this writ appeal."
There is no dispute with regard to the law declared by the Division Bench of this Court in T. Kalpana and another v. The Joint Sub-Registrar-I, Kadapa and others (referred supra), but, to issue such direction, the respondent has to establish that the property is entered into the property register maintained under Section 43 of Act 30 of 1987. But, here, Respondent No.2 or 5 did not produce any such Register maintained under Section 43 of Act MSM,J WP_23856_2020 11 30 of 1987 pertaining to Sri Mutharasupalli Rama Swamy Temple. In the absence of any evidence that the subject property is part of immovable property of the temple, entry in the Register maintained under Section 43 of Act 30 of 1987, such direction as issued by the Division Bench cannot be issued by this Court, since the respondent failed to establish that this property is included in the property Register maintained under Section 43 of Act 30 of 1987, thereby, this Court is unable to accept the contention of the respondents to issue a direction similar to the direction issued in T. Kalpana and another v. The Joint Sub-Registrar-I, Kadapa and others (referred supra). Hence, the principle laid down by the Division Bench of this Court in T. Kalpana and another v. The Joint Sub-Registrar-I, Kadapa and others (referred supra) cannot be applied for the simple reason that, Respondent Nos. 2 & 5 did not produce the property Register maintained under Section 43 of Act 30 of 1987 of Sri Mutharasupalli Rama Swamy Temple. Hence, the contention of learned Government Pleader for Endowments is hereby rejected.
When the principle laid down by the Division Bench of this Court in T. Kalpana and another v. The Joint Sub-Registrar-I, Kadapa and others (referred supra) is not applied to the present facts of the case, this Court is bound to follow the judgment of coordinate Bench i.e. judgment of learned single Judge in W.P.No.31851 of 2012 dated 20.12.2012. Therefore, by applying the principle laid down by the learned single Judge in W.P.No.31851 of 2012 dated 20.12.2012 to the present facts of the case, a similar direction shall be issued holding that, inclusion of property in the list maintained under Section 22-A(1)(c) of the Registration Act by the MSM,J WP_23856_2020 12 Commissioner of Endowments Department and communicating the same to the Sub-Registrar is declared as illegal, arbitrary and without any basis, consequently, set-aside the same.
In the result, writ petition is allowed, directing the Sub- Registrar/Respondent No.7, Kadapa (Urban), Y.S.R. District, to receive the sale deed that may be presented by the petitioner in respect of the subject property and register the same, subject to the latter complying with the provisions of the Registration Act, 1908 and the Indian Stamp Act, 1899. However, this order does not declare title to the petitioner in respect of the subject property. no costs.
Consequently, miscellaneous applications, pending if any, shall also stand dismissed.
__________________________________________ JUSTICE M. SATYANARAYANA MURTHY Date:23.09.2021 SP