Allowed

K.S.N.V. Kameswara Rao, v. The State of Andhra Pradesh

Andhra Pradesh HC11 Feb 2024WA/123/2024

Case brief

AI extract

What is this about?

This writ appeal challenged the single Judge's order dismissing a petition questioning the jurisdiction of a 'Single Trustee' in issuing encroachment notices. The High Court held that the jurisdiction issue required fresh examination and allowed the writ appeal, remanding the matter to the single Judge.

What did the court decide?

The impugned judgment and order of the single Judge were set aside and the matter was remanded for consideration afresh.

K.S.N.V. Kameswara Rao, Vs The… — Constitutional and Fundamental Rights | Andhra Pradesh HC (2024)

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[ 3446 ]

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IN THE HIGH COURT OF ANDHRA PRADESH :: AMARAVATI (Special Original Jurisdiction)

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MONDAY ,THE TWELFTH DAY OF FEBRUARY TWO THOUSAND AND TWENTY FOUR

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PRESENT

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HONOURABLE THE CHIEF JUSTICE DHIRAJ SINGH THAKUR

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THE HONOURABLE SRI JUSTICE R RAGHUNANDAN RAO

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WRIT APPEAL NO: 123 OF 2024

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Writ Appeal under clause 15 of the Letters Patent to set aside the orders passed in W.P.No.30430 of 2023 dated 23.11.2023 by the learned single Judge and allow the writ petition by setting aside the impugned orders of the 4th respondent in issuing (18) notices to the petitioners in Rc. No.A2/2194/2023 dated 04-11-2023 (received on 10-11-2023) and pass on the file of the High Court.

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Between:

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K.S.N.V. Kameswara Rao,, S/o. Late K.A.G.K.Murty, Aged 45 Years, Occ Agriculture.

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K. Venkata Subba Rao,, S/o. Late Koteswara Rao, Aged 62 Years, Occ Agriculture.

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Kota Venkata Subbaiah, S/o. Laic Venkateswarulu Aged 75 Years, Occ Agriculture

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Kota Prasad,, S/o. Venkata Subba Rao, Aged 67 Years, Occ Agriculture

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Kota Venkateswara Rao,, S/o. Venkata Subba Rao, Aged 64 Years, Occ Agriculture

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K. Chittibabu,, S/o. Venkata Subba Rao, Aged 58 Years, Occ Agricultui c.

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K. Butchi Ramaiah, S/o. K.Singaiah, Aged 40 Years, Occ Agriculture.

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K. Satyanarayana,, S/o.Chimpaiah, Aged 82 Years, Occ Agriculture.

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K. Butchi Babu, S/o. Champaiah, Aged 80 Years, Occ Agriculture.

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Pavuluri Sailaja,, W/o. Late Samba Siva Rao, Aged about 50 Years, Occ Agriculture.

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K. Ranga Rao,, S/o. Shivaiah, Aged 72 Years, Occ Agriculture.

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K. Bramanandham,, S/o. Verikateswarulu, Aged 67 Years, Occ Agriculture.

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K.Nageswara Rao,, S/o. Venkata Rao, Aged about 60 Years, Occ Agricult ure.

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K.Sitaramaiah,, S/o. Hanumantha Rao, Aged about 55 Years, Occ Agriculture.

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K. Usha Rani,, W/o. Satyanarayana, Aged 64 Years, Occ Agriculture.

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K.Dasaradharamayya, S/o. Sitaramayya Aged 74 Years, Occ Agriculture.

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Kota Janardhana Rao,, S/o. Gopala Rao, Aged 70 Years, Occ Agriculture

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K. Surendra Babu,, S/o. Gopala Rao, Aged 63 Years, Occ Agriculture. all the petitioners are R/o. Bodavada Mandagunta village, Pachuru Mandal Bapatla District

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...APPELLANT(S)

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AND

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The State of Andhra Pradesh, Rep. by its Principal Secretary', Revenue Endowment Department, Secretariat Buildings, Velagapudi, Guntur District, A.P

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The Commissioner of Endowments, Government of Andhra Pradesh, Gollapudi, Vijayawada, NTR District

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The Deputy Commissioner of Endowments, Guntur, Guntur District

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The District Endowment Offieer, Bapatla Distriet, Bapatla

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The Vajjalakunta Cheruvu, Bodavada Mandagunta Village, Parehuru Mandal, Bapatla District Rep. by its Executive Authority

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...RESPONDENTS

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IA NO: 1 OF 2024

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Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased pleased to suspend the operation of impugned notices (18) issued by the 4th respondent

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in Rc. No. A2/2194/2023 dated 04.11.2023 (received on 10-112023) and pass

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Counsel for the Appellant(s) : SRI. D V SASIDHAR

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Counsel for the Respondents : GP FOR ENDOWMENTS

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The Court made the following:

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PER DHIRAJ SINGH THAKUR, CJ:

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The present writ appeal under Clause 15 of the Letters Patent has been preferred against the judgment and order dated 23.11.2023, passed in W.P.No.30430 of 2023, whereby the writ petition has been disposed of and the petitioner was directed to avail the alternate remedy as prescribed under Section 83(6) of the Andhra Pradesh Charitable And Hindu Religious Institutions And Endowments Act, 1987 (Act 30 of 1987), by approaching the Endowments Tribunal.

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Heard learned counsel for the parties.

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The writ petition was filed by the petitioners/appellants herein questioning the notices issued by the “Single Trustee” purportedly in terms of Section 83 (2) of the Andhra Pradesh Charitable And Hindu Religious Institutions And Endowments Act, 1987 (hereinafter referred to as “the Act, 1987”), whereby the appellants/petitioners were asked to show cause as to why they should not be treated as encroachers of Sri Vajjalakunta Cheruvu,

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situate in Bodawada Mandagunta Village in Prakasam District. According to the notice, the appellants were encroaching upon the said water body even when the said property was entered in the property register of the subject institution under Section 43 of the Act, 1987.

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Replies were filed to the aforementioned show cause notices based upon which a final order came to be passed on 04.11.2023 by the District Endowments Officer which was impugned in the writ petition.

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The case of the petitioner before the learned single Judge was that the order impugned dated 04.11.2023, based on the notice impugned issued by the “Single Trustee” who had no jurisdiction to issue any such notice in terms of the Section 83 (2) of the Act, 1987 was unsustainable in law. According to the petitioner, the power under Section 83 (2) was vested with the Executive Officer/Assistant Commissioner or any authority higher in rank in the Endowments Department and certainly was not vested in the “Single Trustee” and therefore, it was urged that the order impugned dated 04.11.2023 was unsustainable.

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Learned single Judge, it appears, disposed of the writ petition

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by relegating the petitioners to the remedy of appeal as envisaged under Section 83 (6) of the Act, 1987.

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Learned counsel for the appellants would urge that the view expressed by the learned single Judge was unsustainable inasmuch as availability of an alternate remedy would not prevent the exercise of extraordinary jurisdiction under Article 226 of the Constitution, in a case where the petitioners had questioned the very jurisdiction of the “Single Trustee” in issuing the notices impugned.

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It is no longer res integra that an alternate remedy does not operate as a bar, according to the ratio of the judgment rendered in Whirlpool Corpn. vs. Registrar of Trade Marks¹ , in at least the following contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principles of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged.

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The aforementioned position was reiterated, subsequently, in Radha Krishan Industries vs. State of Himachal Pradesh² , the Apex Court on conspectus of various judgments on the issue, crystallised the following principles:

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1 (1998) 8 SCC 1

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2 (2021) 6 SCC 771

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“27. The principles of law which emerge are that:

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27.1. The power under Article 226 of the Constitution to issue writs can be exercised not only for the enforcement of fundamental rights, but for any other purpose as well.

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27.2. The High Court has the discretion not to entertain a writ petition. One of the restrictions placed on the power of the High Court is where an effective alternate remedy is available to the aggrieved person.

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27.3. Exceptions to the rule of alternate remedy arise where : (a) the writ petition has been filed for the enforcement of a fundamental right protected by Part III of the Constitution;

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(b) there has been a violation of the principles of natural justice; (c) the order or proceedings are wholly without jurisdiction; or (d) the vires of a legislation is challenged.

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27.4. An alternate remedy by itself does not divest the High Court of its powers under Article 226 of the Constitution in an appropriate case though ordinarily, a writ petition should not be entertained when an efficacious alternate remedy is provided by law.

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27.5. When a right is created by a statute, which itself prescribes the remedy or procedure for enforcing the right or liability, resort must be had to that particular statutory remedy before invoking the discretionary remedy under Article 226 of the Constitution. This rule of exhaustion of statutory remedies is a rule of policy, convenience and discretion.

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27.6. In cases where there are disputed questions of fact, the High Court may decide to decline jurisdiction in a writ petition. However, if the High Court is objectively of the

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view that the nature of the controversy requires the exercise of its writ jurisdiction, such a view would not readily be interfered with.”

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Considering the ratio of the aforementioned judgments, in our

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view, the issue of jurisdiction ought to have been gone into by the learned single Judge.

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Be that as it may, we set aside the judgment and order impugned and direct the Registry to list the matter before the learned single Judge for consideration afresh.

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The writ appeal is, accordingly, allowed. No order as to costs.

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Pending miscellaneous applications, if any, shall stand closed.

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DHIRAJ SINGH THAKUR, CJ R. RAGHUNANDAN RAO, J

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SSN

K.S.N.V. Kameswara Rao, v. The State of Andhra Pradesh

Case brief

What is this about?

What did the court decide?

K.S.N.V. Kameswara Rao, v. The State of Andhra Pradesh

Case brief

What is this about?

What did the court decide?

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