Allowed

Kandimalla Sai Ram v. The State of Andhra Pradesh

Andhra Pradesh HC25 Aug 2021WP/6370/2021

Case brief

AI extract

What is this about?

The court held that the Endowments Department's exclusion of purchased choultry land from the registration prohibitory list was illegal. The earlier judgment declaring the choultry private and granting ownership rights to legal heirs remained binding, despite the choultry's re-registration under the new Act.

What did the court decide?

Memo dated 25.02.2021 set aside; direction to delete the petitioner's property from the prohibitory list under Section 22(A)(1)(c) of the Registration Act.

Kandimalla Sai Ram Vs The State of Andhra Pradesh — Property and Title | Andhra Pradesh HC (2021)

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THE HON’BLE SRI JUSTICE M.SATYANARAYANA MURTHY

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WRIT PETITION NO.6370 OF 2021

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ORDER :

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This writ petition under Article 226 of the Constitution of India is filed seeking the following prayer:

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“…to issue an appropriate writ order or direction more particularly, one in the nature of Writ of Mandamus, declaring the action of the 2^nd respondent in rejecting the application dated 17.08.2019 of the petitioner vide memo No.M2/19021(35)/30/2019 dated 25.02.2021 for issuing No Objection Certificate by deleting the land measuring Ac.3.00 cents in Survey No.14 of Vatticherukkuru Village and Mandal Guntur District from the prohibited list U/Sec.22(1)(A)(c) of the Registration Act as contrary to the judgment of this Hon’ble Court in A.S.No.1718/1989 dated 17.11.1995 as bad, illegal, arbitrary, absurd, non-application of mind and violative of Articles 14, 21 and 300-A of the Constitution of India and consequently set aside the memo, dated 25.02.2021 and direct the respondents to forthwith delete the subject property from the prohibitory list...”

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It is the case of the petitioner that Pulladigunta Satram, Pulladigunta Village, Vatticherukuru Mandal, Guntur District was a private choultry in Sy.No.445 of Pulladigunta Village, Vatticherukuru Mandal, Guntur District and own property in Sy.No.14 and in other survey numbers of Vatticherukuru Village and Mandal, Guntur District. It was constructed by one Katrapati Seshachalam, ancestors of the Katrapati Anasuyamma, Katrapati Rama Rao and Katrapati Balakrishnamohan in the year 1820.

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In the year 1840, Sri Raja Jaqganna Manikya Rao, the Zamindar of Raichur was made a rent free personal grant about

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Ac.40.00 cents of dry land as a reward to Sri Katrapati Seshachalam, the founder of the choultry in Pulladigunta Village, Vatticherukuru Mandal, Guntur District to service and run the choultry from his personal funds. Since the time of grant, he is in possession and enjoyment of the same, during his life time and the same was personal Inam, which is not charitable and alienable.

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During the life time of Katrapati Vasudeva Parabrahmam, he maintained the choultry and thereafter Katrapati Sesha Chalapathi Rao maintained the same and subsequently, legal heirs are maintaining the choultry, who are appellants in A.S.No.1718 of 1989.

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When the Endowment Department proposed to interfere with the possession of the land of the choultry of the Katrapati family, the legal heirs of the original founder Katrapati Seshachalam filed O.A.No.56 of 1977 under Section 77 (present Section 87 as per the Endowments Act, 1987) of the Endowments Act, 1966 before the Deputy Commissioner, Endowments Department for declaration that the choultry is a private choultry and the land measuring Ac.14.14 cents in Sy.No.14 and 445 of Pulladigunta Village, Vatticherukuru Mandal, Guntur District is not a charitable endowment. The O.A. was dismissed on 20.08.1979 holding that the choultry is a charitable institution and not a private one. Aggrieved by the same, the legal heirs of the founder filed O.S.No.60 of 1979 before the District Judge’s Court, Guntur and the same was also dismissed on 19.08.1983.

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An appeal in A.S.No.1718 of 1989 in the High Court of Judicature, Andhra Pradesh at Hyderabad was filed by the legal heirs of the founder of the choultry. The said appeal was allowed on 17.11.1995 by setting aside the judgment, dated 19.08.1983, in O.S.No.60 of 1979 on the file of the District Judge, Guntur. After disposal of the said appeal, no SLP is preferred, the judgment attained finality.

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The petitioner purchased an extent of Ac.3.00 cents out of the subject property of A.S.No.1718 of 1989, in survey No. 14 of Vatticherukuru Village and Mandal, Guntur District from Katrapati Lakshmi Narasimha Rao, who is the legal heir of the founder K.Seshachalam, through registered sale deed No.2981 of 2015, dated 17.08.2015. When the petitioner proposed to sell the same for his family expenses, it was informed that the said property was kept under prohibitory property list invoking under Section 22-A (1)(c) of the Registration Act, as per the communication made by the respondent authorities.

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The petitioner purchased the property from the legal heirs of the founder of the choultry and inclusion of the land in the list of prohibitory properties under Section 22-A(1)(c) of the Registration Act, is illegal and contrary to the law.

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It is specifically contended that the petitioner made a representation, dated 17.08.2019 to delete the subject property, which is the subject matter of A.S.No.1718 of 1989 from the list of prohibitory properties under Section 22-A(1)(c) of the Registration Act, to the Assistant Commissioner, Endowment Department,

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Guntur District, explaining the entire facts and requested to issue proper directions. Thereafter, basing on the representation, the 2^nd respondent has sought legal opinion from the Advocate General, High Court of Andhra Pradesh, who opined by his opinion, dated 11.06.2020 that the orders, dated 17.11.1995, in A.S.No.1718 of 1989, passed by this Court has attained finality and the department is at liberty to approach the Hon’ble Supreme Court by way of Special Leave Petition. After obtaining opinion of the Advocate on record in the Supreme Court sought by Endowments Department, as such opinion was given stating that the Supreme Court will not entertain the SLP and to file review before the Court, whose order is challenged.

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While the matter stood thus, without application of mind, the 2^nd respondent has issued memo No.M2/19021(35)/30/2019, dated 25.02.2021 rejecting the application of the petitioner on the ground that the choultry was published under Section 6(c), as such the choultry is a public choultry along with its properties and the publication, dated 12.11.1987, was done as per Act 30/1987, as such, the same has to be challenged before the Endowment Tribunal.

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The petitioner raised several contentions and the main ground is that when once proceedings attained finality in A.S.No.1718 of 1989, question of action invoking under Section 6A of the Act 30 of 1987 is not sufficient in view of Section 160 of Act 30 of 1987 and requested to set aside the same on the ground alone. Consequently, the inclusion of the property in the list under

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Section 22-A of the Registration Act is illegal and requested to issue a direction.

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The 2^nd respondent/Endowments Department has filed counter admitting about inclusion of the property in the prohibitory property list under Section 22 (A)(1)(c) of the Registration Act. While acceding the earlier orders including the appeal while contending that the property is notified under Section 6 (a) of the Act 30 of 1987 and at best the petitioner is entitled to invoke jurisdiction of Tribunal under Section 87 of the Act and the writ petition is not maintainable.

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It is further contended that this Court in W.A.No.343 of 2015 passed an order, dated 23.12.2015 where the Full Bench of this Court summarized their conclusions and issued directions as many as 15 in number. Aggrieved by the common order, some of the petitioners therein preferred separate SLPs before the Hon’ble Supreme Court and the same are disposed of by common order, dated 19.04.2018 in Civil Appeal No.4019 of 2018 (SLP (c) No.15009 of 2016) and batch by holding that

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“After issuing the above directions (15 directions issued in the common order of Hon’ble High Court), the mattes have been remitted to the Bench concerned for considering other issues including the validity of Section 22A of the Registration Act. After remain the Batch cases, they are pending before this Hon’ble Court”.

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“In so far as paragraphs (3) (4) in the guidelines, covering properties under clause (c) (d) (of sub-section (1) of Section 22A) are concerned, the authorities contemplated therein shall also

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forward to the Registering authorities, along with lists, the extract of Registers/Gazette if the property is covered by either Endowments are wakf and declarations/orders made under the provisions of Ceiling Acts if the properties covered under clause(d).”

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“The registering authorities would be justified in refusing registration of documents in respect of the properties covered by clauses (a) to (d) of Sub-Section (1) of Section 22 A provided the authorities contemplated under the guidelines, as afore mentioned, have communicated the lists of properties prohibited under these clauses.”

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“It is open to the parties to a document, if the relevant property/land finds place in the list of properties covered by clauses (a) to (d) of subSection (1) of Section 22A, to apply for its deletion from the list or modification thereof, to the concerned authorities as provided from in the guidelines. The concerned authorities are obliged to concerned the request in proper perspective and passed appropriate order within six weeks from the date of receipt of the application and make its copy available to the concerned party.”

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The other contention of the 2^nd respondent is that choultry is registered under Section 6(c) of the Act 30 of 1987 and the remedy open to this petitioner is to approach the Tribunal under Section 87 to settle his claim for the subject land but without invoking the jurisdiction of the Tribunal straight away approached this Court under Article 226 of the Constitution of India thereby the petitioner is not entitled to claim the relief in the writ petition.

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Finally, the Endowments Department requested to dismiss the writ petition.

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During hearing learned counsel for the petitioner reiterated the contentions whereas the learned Government Pleader for Endowments would contended that in view of the judgment of this Court in W.P.No.27655 of 2016 and batch, as the property is a Inam land, it is in favour of the choultry not in favour of the individual. Therefore, the alienation is impermissible and thereby inclusion of the property in the prohibitory property list under Section 22 (A)(1)(c) of the Registration Act is in accordance with law and requested to dismiss the writ petition.

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Considering the rival contentions and perusing the material available on record, the sole point that arose for consideration is:

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“whether re-registration of the choultry under Section 6(c) as per the provisions of the Act 30 of 1987 takes away the right of this petitioner to claim right in the property being the purchaser,

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if not,

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whether a direction be issued to the 2^nd respondent to delete the property from the prohibitory property list under Section 22 (A)(1)(c) of the Registration Act.”

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POINT:

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It is undisputed fact that Sri Raja Jaqganna Manikya Rao, the Zamindar of Raichur donated Ac.40.00 cents of dry land to Katrapati Seshachalam, the founder of the choultry in Pulladigunta Village, Vatticherukuru Mandal, Guntur District, but the contention

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of the respondents is that it is a grant in favour of the choultry not in favour of individual in view of Section 4 of the Inam Abolition Act as amended by A.P. Act No.16 of 2013 giving retrospect effect to the provisions of Inam Abolition Act, 1956. Even otherwise according to the provisions of Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act, 1987, more particularly, Section 2(3) which reads as follows:

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Section 2(3) "charitable endowment" means all property given or endowed for any charitable purpose; Explanation I - Any property which belonged to or was given or endowed for the support or maintenance of a charitable institution or which was given, endowed or used as of a right for any charitable purpose shall be deemed to be a charitable endowment within the meaning of this definition, notwithstanding that before or after the commencement of this Act, the charitable institution has ceased to exist or ceased to be used for any charitable purpose or the charity has ceased to be performed.

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Explanation II. - Any Inam granted to a service holder or to an employee of a Charitable Institution for the performance of any charity or service in connection with a charitable institution shall not be deemed to be a personal gift to the service holder or to the employees notwithstanding the grant of ryotwari patta to such service holder or employee under the Andhra Pradesh (Andhra Area) Inams (Abolition and Conversion into Ryotwari) Act, 1956, but shall be deemed to be a charitable endowment;

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Denying the facts and circumstances of the case and based on Section 2(3), the learned Government Pleader for Endowments contended that even the grant in favour of Katrapati Seshachalam,

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being the founder of the choultry, is deemed to be a grant in favour of the institutions though regarded as personal grant in the name of an individual. No doubt such interpretation is permissible but in view of the judgment of this Court in A.S.No.1718 of 1989, the contention of the learned Government Pleader for Endowments is unsustainable. Hence, based on the judgment in A.S.No.1718 of 1989, the contention of the 2^nd respondent with regard to grant made in favour of Katrapati Seshachalam deemed to be grant in favour of the institution is hereby rejected.

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The major contention raised before the Court is that when new A.P.Act 30 of 2017 came into force, again the choultry was registered under Section 6(1) of the Act and the property of the choultry is under the control of Endowments Department, thereby the petitioner is not entitled to claim any independent right over the property purchased under the registered sale deed, on this ground alone, the learned Government Pleader for Endowments sought to dismiss the writ petition. But whereas Sri D.V.Sasidhar, learned counsel for the petitioner, took advantage of Section 160 of the A.P.Act 30 of 1987 to contend that all suits or proceedings or decrees or judgments passed under the Act are deemed to be binding and thereby re-registration of the choultry under Section 6(c) would not serve any purpose. Section 6 of the Act 30 of 1987 deals with publication of list of charitable and religious institutions, it reads as follows:

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Section 6. Preparation and publication of list of charitable and religious institutions and endowments on the basis of income. - The

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Commissioner shall prepare separately and publish in the prescribed manner, a list of-

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(a) (i) the charitable institutions and endowments ; or

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(ii) the religious institutions and endowments other than maths; whose annual income as calculated for the purpose of levy of contribution under Section 65 [exceed rupees twenty-five lakhs];

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(b) (i) the charitable institutions and endowments;

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(ii) the religious institutions and endowments, other than maths; whose annual income calculated as aforesaid [exceeds rupees two lakhs but does not exceed rupees twenty-five lakhs];

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(c) (i) the charitable institutions and endowments ; or

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(ii) the religious institutions and endowments other than maths not falling under clause (a) or clause (b);

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(d) the maths irrespective of the income :

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(e) the Dharmadayam irrespective of the income;

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Provided that the Commissioner may alter the classification assigned to an institution or endowment in the list and enter the same in the appropriate list in case the annual income of such institution or endowment calculated as aforesaid exceeds or falls below the limits specified in clause (a) or clause (b) or clause (c) for three consecutive years.

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[Provided further that the Government shall be competent to fix-up parameters for the purpose of publication of new Institutions, from time to time.]

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Section 160. Overriding effect of the Act. -

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(1) Notwithstanding any compromise, agreement, scheme, judgment, decree or order of aCourt, Tribunal or other authority or any custom or usage governingany charitable or religious institution or endowment of TirumalaTirupathi Devasthanams, the provisions of this Act shall with effecton and from the date of the commencement of this Act, prevail insofaras they relate to the matters governed by the corresponding provisionsin any such compromise, agreement, scheme, judgment, decree or orderor any custom or usage and such corresponding provisions shall thereafterhave no effect.

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(2) Notwithstanding anything in the agreements entered intoby the Tirumala Tirupathi Devasthanams represented by the ExecutiveOfficer and Archakam Mirasidars of Tirumala Tirupathi Devasthanamson the 30th May, 1979 or any other agreements of the like nature,the provisions of this Act shall with effect on and from the dateof commencement of this Act, prevail insofar as they relate to thematters governed by the corresponding provisions in any such agreementsand such corresponding provisions in such agreements shall thereafterhave no effect.

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Thus, Section 160 clearly says that the provisions of this Act will prevail notwithstanding any judgment and decree of the Court or Tribunal but it does not mean that the right to claim the petitioner shall be taken away by the provisions of the new Act. In view of the judgment and decree passed by the High Court of Andhra Pradesh in A.S.No.1718 of 1989 conferred right on the petitioner to deal with the property. Therefore, mere reregistration of the choultry under Section 6(c) subsequent to the passing of A.P.Act 30 of 1987 would not take away the right of this

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petitioner to deal with the property purchased by the petitioner and therefore, the re-registration under new Act will not enure any benefit to the choultry to claim any right in the property independently, notwithstanding the judgment in A.S.No.1718 of 1989 passed by this Court. Therefore, on account of reregistration under Section 6(c) under Act 30 of 1987, rights of this petitioner cannot be taken away and inclusion of the property in the prohibitory properties list by 2^nd respondent is illegal and arbitrary and without any basis. Therefore, the memo No.M2/19021(35)/30/2019, dated 25.02.2021, is illegal, arbitrary and consequently liable to be set aside as it is violative of Articles 14, 21 and 300-A of the Constitution of India.

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In the result, the Writ Petition is allowed declaring the memo No.M2/19021(35)/30/2019, dated 25.02.2021, as illegal and violative of Articles 14, 21 and 300-A of the Constitution of India. Consequently, set aside the same while directing the 2^nd respondent to delete the property purchased by this petitioner from the prohibitory property list under Section 22 (A)(1) (c) of the Act. There shall be no order as to costs.

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As a sequel, Interlocutory Applications pending, if any, in this Writ Petition, shall stand closed.

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_______________________________ JUSTICE M. SATYANARAYANA MURTHY

Date: 25.08.2021

SPP

THE HON’BLE SRI JUSTICE M.SATYANARAYANA MURTHY

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