Andhra Pradesh High Court
Judges : BILAL NAZKI, M.S.LIBERHAN
PRESIDENT, TRUST BOARD, AMBA BHAVANI TEMPLE and HANUMAN TEMPLE - Appellant
Versus
ANANTHA PADMANABHA CHARY - Respondent
Decided On : 02-26-99
A. P. Charitable and Hindu Religious Institutions and endowments Act,1966 - Sections 71 and 72 - Madras Hindu Religious and Charitable endowments Act 1951 - Section 35 - Sections 77 and 78 - Resumption of lands owned by Endowment - Genesis of provisions lies in Section 35 of Madras Hindu Religious and Charitable endowments Act, 1951 - Object of which was to authorize revenue authorities to recover lands from encroachers or defaulters of terms of grants being in better position to do needful - Proceedings under Act are by way of execution - Proceedings are not principle proceedings for cancellation or resumption - Revenue authorities have no jurisdiction to resume and then take possession - Contentions were raised at time of hearing of appeal - Reference to ground in grounds of appeal is made - It would be expedient to reproduce ground in verbatim: " Judge ought to have that Collector has no jurisdiction to adjudicate title of land in a proceeding under section 71 of Act" it was prayed that "it is necessary that petitioners be permitted to urge above said grounds and exhibits in support of appeal and matter be re-considered and order of resumption be set aside -" Question whether it is a patta land was question of fact disputed before authorities and even before single Judge - Held, Court considered view firstly contentions urged now do not find mention even in grounds of appeal much less being urged at any point of time since when proceedings commenced - Submission being made is not supported either by any affidavit or even by appearance put in by Counsel who argued appeal or writ petition to aver that contentions were raised which applicant intends to raise in form of review by re-arguing appeal on merits - Court are of view that question of jurisdiction having never been raised by applicant from in spite of chequered history of proceedings resumption order was passed in appeal was filed by religious institution applicant did not raise any little finger even after remand order having been passed and even after which orders of Revenue authorities were affirmed and possession delivered in - No objection was raised with respect to jurisdiction by applicant - It is only in year applicant who claims to be a pattadar raised only objection by filing a writ petition that no hearing was granted when case was remanded for re-trial - Evidence came to conclusion that plot was neither a patta land nor an In am land being granted for a service - Court may hasten to add that Counsel for applicant was not Counsel in appeal cannot even assert what was argued before single judge or Division Bench or authorities below - There being no error on face of record question of elaboration of arguments on points raised in review application cannot be permitted as review petition cannot be converted into re-hearing of appeal - Applicant suffered no substantial injustice especially when claim of applicant s interest is through charitable institution who has not raised any objection either to findings or judgment - Application Dismissed
( 1 ) CAUSE shown is sufficient. Delay is condoned.
( 2 ) THE applicant has sought the review of the order dated 11-08-1998 inwrit Appealno. 1193 of 1998 inter alia contending:the scope of proceedings under Section 71 of the A. P. Charitable and Hindu Religious Institutions and endowments Act (A. P. Act XVII of 1966) (for short the Act ) were not properly placed before the learned Judge and authorities below. The proceedings under section 71 of the Act were instituted with the Revenue Divisional Officer (R. D. O) at the instance of the Assistant Commissioaer, Endowments, for resumption of lands owned by the Endowment. Sections 71 and 72 of the Act are paramateria with Sections 77 and 78 of A. P. Act XXX of 1987. The genesis of the provisions lies in Section 35 of the Madras Hindu Religious and Charitable endowments Act, 1951. The object of which was to authorize revenue authorities to recover the lands, from encroachers or defaulters of the terms of grants, being in better position to do the needful. The proceedings under the Act are by way of execution. Proceedings are not principle proceedings for cancellation or resumption. The revenue authorities have no jurisdiction to resume and then take possession. The contentions were raised at the time of hearing of the appeal. Reference to ground No. 8 in the grounds of appeal is made. It would be expedient to reproduce the ground in verbatim: "the learned Judge ought to have held that the Collector has no jurisdiction to adjudicate the title of land in a proceeding under section 71 of the Act" it was prayed that "it is necessary that the petitioners be permitted to urge the above said grounds and exhibits in support of the appeal and the matter be re-considered and the order of resumption be set aside. "
( 3 ) WE have heard the learned Counsel for the applicant, gone through thejudgments, records and grounds of appeal, writ petition before High Court and grounds and pleas before authorities raised from time to time.
( 4 ) IT is well established that review is not the re-hearing of the appeal. Itis only on the discovery of some new and important matter or evidence which was not in the knowledge of the applicant, which in spite of the exercise of due diligence, or could not be produced at that time when the order was made or there is some mistake apparent on the face of the record that one can seek a review. It has been specifically provided that change of view even by a judgment of the Court on which the judgment is based, even the reversal of the same would not provide for a ground of review.
( 5 ) THE petitioner has sought the review contending that the scope of theproceedings under Section 71 of the Act was not placed before this Honourable court. Consequently the matter requires review in the same appeal. The applicant contends that all aspects were brought to the notice of the honourable Court and it was the Court which ought to have seen that the r. D. O. had no jurisdiction to adjudicate upon the validity of the order of the endowments authority and the proceedings under Sections 71 and 72 of the act are of executing in nature only. The question of the nature of the property cannot be determined nor the property can be resumed, solely because the institution is likely to suffer as against the private person. Consequently the appeal requires a re-consideration.
( 6 ) IN our considered view, firstly the contentions urged now do not findmention even in the grounds of appeal, muchless being urged at any point of time since 1972 when the proceedings commenced. The fact of the submission being made is not supported either by any affidavit or even by appearance put in by the Counsel, who argued the appeal or writ petition, to aver that the contentions were raised, which the applicant intends to raise in the form of review, by re-arguing the appeal on merits. We are of the view that the question of jurisdiction having never been raised by the applicant from 1972 t
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