Sri Bhimeswara Swami Temple vs M. Chalapathi Rao and Another

M.S. Liberhan, C.J.—The appeal is filed by the Executive Officer, Sri Bhimeswara Swami Temple, Bhimavaram, W.G. District, the 2nd respondent in W.P. No. l0119 of 1998, aggrieved by the judgment dated 22-4-1998 allowing the said writ petition invalidating the show-cause notice dated 16-12-1997 issued by the 2nd respondent herein (1st respondent in the W.P.).

The factual scenario leading to the appeal on hand:-

The parties are referred to as arrayed in the Writ Appeal.

(a) The 1st respondent herein was declared as the highest bidder in the auction conducted for lease of the lands belonging to the Appellant-Temple, for the years 1970-80 to 1984-85. Thereafter, the 1st respondent made an application to the Temple that he would enhance the maktha (lease amount) and requested that the lease be extended for a further period of three years from 1995-96 upto 1997-98, consequent upon which and pursuant to the recommendations of the appellant, the Commissioner of Endowments, extended the lease for a period of 3 years ending 1997-98, on the enhanced lease amount and subject to the terms and conditions stipulated in the original auction. According to the appellant, as per those terms and conditions, the 1st respondent was obligated to execute a registered lease deed with adequate security, was prohibited from sub-letting the lands and from committing any act injurious to the land or use the land for any other purpose and also subject to the condition that no crop other than paddy should be raised nor shall he violate the other conditions stipulated in the auction conditions; violation of any of the conditions would result in his eviction.

(b) While so, allegedly the 1st respondent in the second week of April, 1997 raised a thatched house and Zinc sheets shed in the Ac. 0-41 cts., of land, which is part of the land leased to him.

(c) By an Advocate''s notice on behalf of the Temple dated 16-4-1997, the 1st respondent was informed that he had not executed the registered lease deed incorporating the terms and conditions of the auction and that he has also resorted to unauthorised constructions. The said notice demanded the 1st respondent to remove the said unauthorised constructions and to execute a written undertaking to the effect that he would not raise any such structures hereinafter, failing which appropriate action would be taken.

(d) The 1st respondent got issued reply notice through his Counsel dated 14-5-1997. Thereupon on 19-8-1997, A.T.C. No. 19 of 1997 was instituted by the appellant against the 1st respondent in the Court of the Tenancy Special Officer-cum-District Munsif, Bhimavaram, seeking relief of eviction of the 1st respondent from the lands of the Temple leased out to him and for a direction to the said respondent to remove the unauthorised structures.

(e) Consequent on a petition made by the appellant to the 2nd respondent u/s 83(2) of A. P. Act 30 of 1987 (A. P. Charitable and Hindu Religious Institutions and Endowments Act), registered as O. A. 373/97, the 2nd respondent issued a notice dated 16-12-1997 to the 1st respondent calling upon him to remove the encroachment. The alleged action of the 1st respondent in constructing thatched house and zinc sheet house in Rev. Sy. No. 448/1 in an extent of 0.41 cts., of dry land belonging to the appellant-Temple, was treated as an encroachment and the 1st respondent an encroacher, thus falling within the scope of action available u/s 83(2) of the Act.

(f) Assailing the same, the 1st respondent filed W.P. 10119/98 seeking invalidation of the notice dated 16-12-1997. In the hearing of the said writ petition the short ground urged by the 1st respondent was that since the appellant has already taken recourse to the action by initiating ATC No. 19/97 seeking the relief, inter alia, of removing the encroachments, the action u/s 83(2) for the same relief is not permissible, particularly since the 1st respondent cannot be deemed to be an encroacher which fact alone would entitle recourse to action u/s 83 of the Act. This submission having commended itself to the learned single Judge, the writ petition was allowed by the judgment under appeal.

(g) The learned single Judge held that since the 1st respondent was admittedly a tenant of the land in question, resort to Section 83 was impermissible since the said provision is available only when the person is in occupation as an encroacher or trespasser and not otherwise. It was further held that a person who was inducted as a tenant even if he continues to be in possession after expiry of lease, cannot be considered as trespasser as such in view of the decision in Nalli Sanyasi Naidu and Another Vs. Maharaja Alka Narayana Society of Arts and Sciences (MANSAS) and Others, . The other reason for allowing the writ petition was that in view of the pending proceedings (ATC 19/97) simultaneous resort to two forums (fora) is impermissible and that the show- cause notice is thus unjustified.

Learned senior Counsel for the appellant contends that the 1st respondent not having executed a registered lease deed, cannot be considered as a lessee and thus falls within the ambit of Section 83 and that the action impugned in the writ petition is distinct from the proceedings initiated in ATC No. 19/97. It is further contended that the order impugned in the writ petition is a mere show-cause notice and the 1st respondent being entitled to raise all his objections in response to the said notice, the writ petition is not maintainable to interdict a mere show-cause notice.

The writ petition is filed in the nature of Writ of Prohibition. The jurisdictional facts relating to the determination of the availability or otherwise of a jurisdiction in the 2nd respondent to initiate proceedings u/s 83 of the Act, are in serious dispute, the reliefs claimed in ATC 19/97 and in O.A. 373/97 are neither in pari materia nor ipssisima verba. The first of the proceedings is before the Spl. Officer-District Munsif, Bhimvaram, while the one impugned in the writ petition is before another authority, viz., the 2nd respondent. Having regard to the disputed questions of fact and law and the status of the 1st respondent, it is neither possible nor productive to determine conclusively these disputed questions in a proceedings under Article 226 of the Constitution solely to interdict a show-cause notice issued by the 2nd respondent in appropriate exercise of proceedings initiated u/s 83 of the Act. The 1st respondent suffers no prejudice by merely responding to the said notice. It would be in the fitness of things that the 1st respondent set out all his objections factual, legal and jurisdictional in the response he may choose to make to the impugned show-cause notice dated 16-12-1997. In this view of the matter the law warrants a restraint in exercising the discretionary jurisdiction under Article 226 of the Constitution and ordains rejection of the writ petition challenging a mere show-cause notice. We are of the considered view that in the circumstances of the case, the 1st respondent was not entitled to the relief sought for in the writ petition and that the allowing of the writ petition was a clearly erroneous exercise of jurisdiction.

The appeal is accordingly allowed. The judgment under appeal dated 22-4-1998 is set aside and the writ petition is dismissed. No order as to costs.