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Judgment
A.V. Sesha Sai, J.—Since these two writ petitions, filed under Article 226 of the Constitution of India, challenge the same order and as the cause of action for instituting these two writ petitions is one and the same, they are heard together and are being disposed of by this common order.
Respondent No. 4 in W.P. No. 27923/2009 is the petitioner in W.P. No. 3563/2010 and the petitioners in W.P. No. 27923/2009 are the unofficial respondents in W.P. No. 3563/2010.
These two writ petitions arise under the Andhra Pradesh Charitable and Hindu Religious Institutions & Endowments Act, 1987 (for short hereinafter called ''the Act''). According to the petitioners in W.P. No. 27923/2009, who are the unofficial respondents in W.P. No. 3563/2010, they are the tenants of the fourth respondent institution in respect of dry land admeasuring Ac. 7-36 cents in R.S. Nos. 31 and 39 situated at Sarpavaram village, Kakinada Rural Mandal, East Godavari District, for more than 35 years and are in possession of the extents, ranging from Ac. 0-12 1/2 cents to Ac. 1-53 cents and earlier the fourth respondent filed ATC. No. 337/1981, on the file of the Court of the Principal District Massif Court, Kakinada, alleging that the said lands were leased out to one Mr. B. Narayana Murthy and that he committed default in payment of lease and illegally sublet the lands to the petitioners. The said ATC. 337/1981 was allowed ordering eviction of the petitioners and in ATA. Nos. 54 and 59 of 1988, the said orders of eviction were set aside by the Court of the III Additional District Judge, Kakinada on 25.08.1993 and the said orders were confirmed in W.P. No. 16268/1994, dated 20.01.2006, by this Court and the orders in ATA. Nos. 54 and 59/1988 became final. The third respondent/Assistant Commissioner of Endowments, Rajahmundry Mandal, passed an order in M.A. No. 1206/2007, dated 08.06.2007, rejecting the claim of the petitioners for the landless poor status as per the provisions of Section 82 of the Act and Appeal Nos. 280/2007 to 296/2007 filed by the petitioners were allowed by the second respondent/Regional Joint Commissioner of Endowments, Kakinada, on 27.06.2008, holding the petitioners as landless poor while imposing certain conditions. Challenging the said conditions as illegal, arbitrary and without jurisdiction and contrary to the Act and the Andhra Pradesh Charitable and Hindu Religious Institutions & Endowments Lease of Agricultural Rules, 2003 (hereinafter called ''the Rules''), W.P. No. 24923/2009 has been filed.
Contending that the petitioners in W.P. No. 27923/2009, who are the unofficial respondents in W.P. No. 3563/2010 are the encroachers, the fourth respondent in W.P. No. 27923/2009 has filed W.P. No. 3563/2010, assailing the entire orders passed by the Regional joint Commissioner, Kakinada, the first respondent in appeal Nos. 280 to 296 of 2007, dated 28.06.2008, whereby and whereunder the Regional Joint Commissioner declared the petitioners in W.P. No. 27923/2009 as landless poor persons.
Heard Sri Hari Sreedhar, learned counsel for the writ petitioners in W.P. No. 27923/2009 and the unofficial respondents in W.P. No. 3563/2010 and Sri V.T.M. Prasad, learned Standing Counsel for the fourth respondent/Institution in W.P. No. 27923/2009 and the petitioner in W.P. No. 3563/2010.
Contentions of Sri Hari Sreedhar, learned counsel for the petitioners in W.P. No. 27923/2009 and unofficial respondents in W.P. No. 3563/2010:
i. The order of the Regional Joint commissioner, to the extent of imposing conditions for payment of 2/3rd prevailing market rent and the renewal of lease for three years restricting the status of the landless only for leasehold rights is arbitrary, illegal and opposed to Section 82 of the Act and the Rules published vide G.O.Ms. No. 379, Revenue (Endo. I), dated 11.03.2003.
ii. The orders of the Assistant Commissioner of Endowments, Rajahmundry and the orders of the Regional Joint Commissioner in not giving the option to purchase the subject land are contrary to Rule 5 of the Rules which gives option to the tenant either to purchase or to continue as tenants.
iii. The provisions of Rules 7 and 9(C) of the Rules can be pressed into service only after resumption of the land from a person who is not a landless poor, but not in a case where the tenant is declared as landless.
iv. The authorities did not issue Form II as stipulated under Rule 5 of the Rules.
v. As per Section 82 of the Act read with Rule 5 of the Rules, it is obligatory on the part of the Assistant Commissioner to issue Form-II giving option to the tenant either to purchase or to continue as tenant and the authorities in the instant case failed to issue the same.
vi. The orders of the Tenancy Appellate Tribunal as confirmed in the writ petition by this Court became final and Section 82 of the Act would not invalidate the said orders in the absence of any provision, which gives retrospective operation for the same. Section 91 and 155 of the Act and the provisions of the Act and General Causes Act would save the said orders.
vii. Small roofs raised by the petitioners for their shelter in small portions of the subject land would not attract the provisions of Rule 9(C) of the Rules and the same can never be contrary to the intention and object of the legislature in framing the rules.
Learned counsel to bolster his contentions, places reliance on the judgments of the Hon''ble apex Court in the case of Kolhapur Canesugar Works Ltd. and Another Vs. Union of India and Others, , State of Orissa Vs. M.A. Tulloch and Co., and Sada and Vs. The Tahsildar, Utnoor, Adilabad District and Another,, .
Contentions of Sri V.T.M. Prasad, learned counsel for the Institution:
i. The orders of the Regional Joint Commissioner are based simply on the orders of the Tenancy Courts.
ii. The orders of the Tenancy Court are non est in the eye of law in view of the provisions of Section 82 of the Act, which is upheld by the Hon''ble apex Court in the judgment in the case of State of Andhra Pradesh and Others Vs. Nallamilli Rami Reddi and Others, and in view of the amendments made to the Andhra Pradesh (Andhra Area) Tenancy Act, 1956, the orders of the Regional Joint Commissioner are unsustainable and untenable.
iii. Since the tenancy cases are not maintainable, the findings recorded therein are also of no consequence.
iv. Since the petitioners in W.P. No. 27923/2009 have raised residential constructions in deviation of Rule 9(C) of the Rules, they are not entitled for any relief from this Court.
In support of his contentions, the learned counsel relies on the judgments of the Hon''ble apex Court in the case of State of Andhra Pradesh and Others Vs. Nallamilli Rami Reddi and Others, and the judgments of this Court in the case of Gopisetti Venkaiah Vs. Chavali Brahmabhotlu and Others, and Jaladi Seetharamamma and Another Vs. Sri Ramalingeswara Swami Temple, .
In the light of the pleadings, submissions and contentions, now the points which this Court is called upon to answer are, whether the common orders passed by the Regional Joint Commissioner, Kakinada, in Appeal Nos. 280/2007 to 296/2008, dated 27.06.2008, are sustainable and tenable and whether the same warrant any interference under Article 226 of the Constitution of India?
The provision of law which is germane and relevant for adjudication of the issue in the present writ petition is Section 82 of the Act and the same reads as under:-
Lease of Agricultural Lands:- (1) Any lease of agricultural land belonging to or given or endowed for the purpose of any institution or endowment subsisting on the date of commencement of this Act shall, notwithstanding anything in any other law for the time being in force, held by a person who is not a landless poor person stands cancelled.
(2) In respect of leases of agricultural lands held by landless poor persons for not less than six years continuously, such personal shall have the right to purchase such lands for a consideration of seventy five per centum of the prevailing market value of similarly situated lands at the time of purchase and such consideration shall be paid in four equal installments in the manner prescribed. Such sale may be effected otherwise than by tender-cum-public auction:
[Provided that if such small and marginal farmers who are not able to purchase the land will continue as tenants provided, if they agree to pay at least two third of the market rent for similarly placed lands as lease amount.
Explanation:-For the purpose of this Sub-section ''landless poor person'' means a person whose total extent of land held by him either as owner or as cultivating tenant or as both does not exceed 1.011715 hectares (two and half acres) of wet land or 2.023430 hectares (five acres) of dry land and whose monthly income other than from such lands does not exceed two hundred and fifty rupees per mensum or twelve thousand rupees per annum. However, those of the tenants who own residential property exceeding two hundred square yards in Urban Area shall not be considered as landless poor for the purpose of purchase of endowments property.]
Explanation II:-For the purpose of this Sub-section, small and marginal farmer means a person who being a lessee is holding lands in excess of acres 0.25 cents of wet land or acres 0.50 cents of dry land over and above the ceiling limits of acres 2.50 wet or acres 5.00 dry land respectively they may be allowed to continue in lease subject to payment of 2/3rd of prevailing market rent and excess land held if any more than the above limits shall be put in public auction.]
(3) The authority to sanction the lease or license in respect of any property or any right or interest thereon belonging to or given or endowed for the purpose of any charitable or religious institution or endowment, the manner which and the period for which such lease or license shall be such as may be prescribed.
(4) Every lease or license of any immovable property, other than the Agricultural land belonging to or given or endowed for the purpose of any charitable or religious institution or endowment subsisting on the date of the commencement of this Act, shall continue to be in force subject to the rules as may be prescribed under Sub-section (3).
As per the Section 82(2) of the Act, leases held by a person who is not a landless person, stands abolished, and the landless poor persons are given right to purchase the lands under lease for a consideration of seventy five percent of the prevailing market value payable in four equal installments. The term ''landless poor person'' is defined under explanation to Section 82(2) of the Act and by virtue of Act 27/2002 which came into being from 26.08.2002, the Government of Andhra Pradesh exempted the endowment lands from the operation of Andhra Pradesh (Andhra Area) Tenancy Act, 1956 and the Andhra Pradesh (Telangana Area) Tenancy and Agricultural Lands Act, 1950. It is to be noted at this juncture that in the judgment in the case of State of Andhra Pradesh and Others Vs. Nallamilli Rami Reddi and Others, , the Hon''ble apex Court upheld Section 82 of the Act. Subsequently, by virtue of Amendment Act 28/2002, the Government of Andhra Pradesh brought in corresponding amendments in Section 18 of the Tenancy Act by exempting the endowments lands from the operation of the Tenancy Act. It significant to note at this juncture that neither Section 82(5) of the Act, which came into effect with effect from 26.08.2002 by virtue of Act 27/2002 nor Section 18 of the Andhra Pradesh (Andhra Area) Tenancy Act, 1956, indicate that they are retrospective in operation.
Respondent No. 4 in W.P. No. 27923/2009 i.e., the petitioner in W.P. No. 3563/2010 filed ATC. No. 337/1981 against the petitioners in W.P. No. 27923/2009 on the file of the Court of the Special Officer-cum-Principal District Munsif, Kakinada, under Sections 13 and 16(i) of the Andhra Pradesh (Andhra Area) Tenancy Act, 1956 for eviction and the Special Officer, by virtue of an order dated 28.06.1988 ordered eviction and as against which ATA. Nos. 54 and 59 of 1988 were filed and the Court of the III Additional District Judge, by an order dated 25.08.1993, allowed the appeals and paragraphs 22 to 25 of the said order read as under:-
Even if the evidence of P.Ws. 1 and 2 is taken into consideration, it does not helpful the petitioner. P.W. 1 is the clerk, he simply deposed that the schedule land was given on lease to the 1st respondent on an yearly cist of Rs. 400/-. He did not say from which date the lese was commenced. He deposed that the 1st respondent failed to pay the cist from 1974-75 to 1976-77. The 1st respondent who is examined as P.W. 2 deposed that he took the land on lese in 1971-72 on a yearly maktha of Rs. 400/o. So, the contention of the petitioner that the land was leased out to the 1st respondent in 1970-71 is false. The petitioner did not issue at least any notice to the 1st respondent when 1st respondent is alleged to have committed default in payment of the cist. No documentary evidence is produced by the petitioner-choultry to show that the 1st respondent is the tenant. Hence, adverse inference can be drawn for non-filing the accounts of the petitioner that if files, they would reveal that 1st respondent is the tenant and respondents 2 to 13 are the tenants. PW. 2 did not say that R.W. 1, the respondents 2 to 13 together took the land on lease. In such a case, respondents 3 to 13 should pay their share of the cist separately. PW. 2 deposed that he knows respondents 2 to 13 and that he gave that land to them through 2nd respondent for raising vegetables. The evidence of P.Ws., 1, 2 and R.W. 1 is inconsistent with each other. Their evidence did not establish that 1st respondent is tenant from 1970-71 in respect of the petition schedule land.
There is no evidence to show the date of the month or the year in which the 1st respondent sub-leased the land to the respondents 2 to 13 the simply stated that he gave the land to the respondents 2 to 13 through 2nd respondent. P.W. 1 also did not say that 1st respondent sub-leased the land to the respondents 2 to 13. Hence the sub-lease is also snot established. The petitioner has also failed to establish that 1st respondent fell in arrears of cist. The petitioner choultry has got vast extent of land and other properties. In such a case, it is unbelievable and unacceptable that there are no documents for the lease and the registers showing the collection and arrears of rent. No rent receipts books, D.C.B. registers or any other registers are filed to show that the 1st respondent is a tenant and he fell in arrears of cist. If the 1st respondent is the tenant and respondents 2 to 13 are subtenants, the petitioner would have issued notice to the sub-tenant. No such notice was also issued.
The Special Officer commented that the respondents did not choose to file the petition to recall P.Ws. 1 and 2 for the purpose of cross-examination and observed that the evidence of P.Ws. 1 and 2 remained unchallenged and that it cannot be said that their evidence has to be excluded from the material on record and that the evidence of P.Ws. 1 and 2 has to be accepted in support of the case of the petitioner-choultry. As I have already observed that the question of respondents 3 to 13 did not choose to recall P.Ws. 2 and 2 for the purpose of cross-examination does not arise as by that time, the exparte order against the respondents 3 to 13 is not arises. P.Ws. 1 and 2 died. The Special Officer also observed that R.Ws. 2 and 3 have not stated that they are the tenants. They have stated that they are cultivating the land since 17 18 years on a maktha of Rs. 400/- per year. In the absence of an written lease, in favour of the 1st respondent or in favour of the respondents 2 to 13 when they deposed that they are cultivating the land since 77 or 18 years on a cist of Rs. 400/- even though they have not stated that they took the land on lease., their evidence shows that they are asserting that they are the tenants and paying maktha of Rs. 400/- per year. The evidence of R.Ws. 2 to 8 shows that the respondents 2 to 13 have been cultivating the land. If the respondents 2 to 13 are sub-tenants and 1st respondent is the tenant, the respondents 14 to 18 could not given up tenant right which is a valuable particularly when the land is in Sarpavaram near Kakinada and becoming valuable day by day and when the rent is only Rs. 400/- per year. Nobody would get nice across and odd of land for such a low cists. In their counter, and also in the evidence, they stated that 1st respondent is not the tenant and he never cultivated the land. If probablises that the 1st respondent is not the tenant.
The contention of the learned counsel for the petitioner is that the respondents committed acts of waste as they unauthorisedly constructed sheds, that it is found by the commissioner appointed by the Special Officer when the respondents are cultivating the land as tenants, of nine acres of and odd., for purpose of convenience, they have to construct sheds either for entitle and for them to stay to seet the crops. It cannot be said that they have committed acts of waste. Hence, the finding of the Special Officer that 1st respondent is the tenant and respondents 2 to 13 are the sub-tenants and that there is default in payment of the rent and hence, they are liable to be evidence is erroneous.
The above said order was confirmed by this Court in the order in W.P. No. 16268/1994, dated 20.01.2005. The observations made in the said order in the penultimate paragraph of the order, by any stretch of imagination, cannot be said to be with reference to the petitioners herein on one hand and the fourth respondent on the other hand as contended by the counsel for the institution and the same would obviously be referable to the first respondent in the said writ petition.
Learned counsel for the petitioners in W.P. No. 27923/2009 has invited the attention of this Court to the provisions of Section 155 of the Act and Andhra Pradesh General Clauses Act, 1891, to substantiate his contention that the orders of the Tenancy Courts are binding on the fourth respondent institution and the provisions of Section 82 of the Act would not nullify the same. At this juncture, it is appropriate to refer to the said provisions of law. Section 155 of the Act, reads as under:
Repeals and Savings:- (1) The Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act, 1966 and the Tirumala tirupathi Devasthanams Act, 1979 are hereby repealed.
(2) Notwithstanding such repeal--
(a) all Rules made, notifications or certificates issued, orders passed, decisions made proceedings taken and other things done by any authority or officer under the repealed Acts shall insofar as they are not inconsistent with this Act be deemed to have been made, issued, passed, taken or done by the appropriate authority or officer under the corresponding provisions of this Act and shall have effect accordingly until they are modified, cancelled or suspended under the provisions of this Act;
(b) All powers conferred and all duties imposed by any scheme in force before the commencement of this Act on any Court or Judge or any other person or body of persons not being a trustee, an honorary officer or servant of the charitable or religious institution or endowment shall be exercised and discharged by the Commissioner, as the case may be, in accordance with the provisions of this Act;
(c) All proceedings pending before the Government, any officer, or authority or a trustee under the provisions of the repealed Acts and the commencement of this Act may, in so far as they are not inconsistent with the provisions of this Act, be continued by the appropriate authority under this Act;
(d) any remedy by way of right of application, suit or appeal which is provided by this Act, shall be available in respect of proceedings under the repealed Acts pending at the commencement of this Act, as if the proceedings in respect of which the remedy is sought had been instituted under this Act;
(e) Every member of the Board of Trustee other than a hereditary trustee, Chairman and members of the Tirumala Tirupathi Devasthanams Board lawfully holding office on the date of commencement of this Act shall be deemed to have been duly appointed or as the case may be duly nominated under this Act and shall continue to act as such for the residue of the terms of his office and every Board of Trustees or the Board lawfully constituted on the date of commencement of this Act, shall be deemed to have been duly constituted as a Board of Trustees under this Act, and thereupon exercise all the powers and discharge all the duties entrusted to them under this Act;
(f) Every trustee whose term of office had expired prior to the date of commencement of this Act, but who continues in office beyond such date with the concurrence of the competent authority, shall continue as such until a new trustee is appointed under this Act unless in the meanwhile he is removed, dismissed or has resigned or otherwise ceases to be a trustee.
(3) The mention of particular matters in this Section shall not be held to prejudice or affect the general application of Sections 8 and 18 of the Andhra Pradesh General Clauses Act, 1891, with regard to the effect of repeals.
Section 8 of the Andhra Pradesh General Clauses Act, 1891 reads as under:-
Effect of Repealing an Act Where any Act to which this Chapter applies, repeals any other enactment, then the repeal shall not:
(a) affect anything done or any offence committed, or any fine or penalty incurred or any proceedings begun before the commencement of the repealing act; or
(b) revive anything not in force or existing at the time at which the repeal takes effect; or
(c) affect the previous operation of any enactment so repealed or anything duly done or suffered under any enactment so repealed; or
(d) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or
(e) affect any fine, penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or
(f) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, fine, penalty, forfeiture or punishment as aforesaid; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, any such fine, penalty, forfeiture or punishment may be imposed, as if the repealing Act had not been passed.
While referring to the above provisions of law and while contending that the orders of the Tenancy Court as confirmed in W.P. No. 16268/1984 cannot be brushed aside despite the provisions of Section 82 of the Act, the learned counsel for the petitioners in W.P. No. 27923/2009 places reliance on the judgments of the Hon''ble apex Court in the case of Kolhapur Canesugar Works Ltd. and Another Vs. Union of India and Others, , State of Orissa Vs. M.A. Tulloch and Co., and Sada and Vs. The Tahsildar, Utnoor, Adilabad District and Another,, .
In the case of Kolhapur Canesugar Works Ltd. and Another Vs. Union of India and Others, , the Hon''ble apex Court, at paragraph 35, held as follows:-
For the reasons set forth above we do not accept the view taken in Saurashtra Cement and Chemical Industries Ltd.: 1993(42) ECC 126 (Guj) (FB) (supra), in Falcon Tyres Ltd. Vs. Union of India, and the other decisions taking similar view. It is not correct to say that in considering the question of maintainability of pending proceedings initiated under a particular provision of the rule after the said provision was omitted the Court is not to look for a provision in the newly added rule for continuing the pending proceedings. It is also not correct to say that the test is whether there is any provision in the rules to the effect that pending proceedings will lapse on omission of the rule under which the notice was issued. It is our considered view that in such a case the Court is to look to the provisions in the rule which has been introduced after omission of the previous rule to determine whether a pending proceeding will continue or lapse. If there is a provision therein that pending proceeding shall continue and be disposed of under the old rule as if the rule has not been deleted or omitted then such a proceeding will continue. If the case is covered by Section 6 of the General Clauses Act or there is a pari materia provision in the statute under which the rule has been framed in that case also the pending proceeding will not be affected by omission of the rule. In the absence of any such provision in the statute or in the rule the pending proceedings would lapse on the rule under which the notice was issued or proceeding was initiated being deleted/omitted. It is relevant to note here that in the present case the question of divesting the Revenue of a vested right does not arise since no order directing refund of the amount had been passed on the date when Rule 10 was omitted.
In the case of State of Orissa Vs. M.A. Tulloch and Co., , the Hon''ble apex Court, at paragraph 21, held as follows:-
We must at the outset point that there is a difference in principle between the effect of an expiry of a temporary statue and a repeal by a later enactment and the discussion now is confined to cases of the repeal of a statute which until the date of the repeal continues in force. The first question to be considered is the meaning of the expression ''repeal'' in s. 6 of the General Clauses Act-whether it is confined to cases of express repeal or whether the expression is of sufficient amplitude to cover cases of implied repeals. In this connection there is a passage in Craies on Statute Law, Fifth Edition at Page 323 and 324 which appears to suggest that the provisions of the corresponding s. 38 of the English Interpretation Act were confined to express repeals. On page 323 occurs the following:
In Acts passed in or since 1890 certain saving are implied by statute in all cases of express repeal, unless a contrary intention appears in the repealing Act", and on the next page:
It had been usual before 1889 to insert provisions to the effect above stated in all by which express repeals were effected. The result of this enactment is to make into a general rule what had been common statutory form, and to substitute a general statutory presumption as to the effect of an express repeal for the canons of construction hitherto adopted.
There is, however, no express decision either in England or, so far as we have been able to ascertain, in the United States on this point. Untrammelled, as we are, by authority, we have to inquire the principle on which the saving clause in s. 6 is based. It is manifest that the principle underlying it is that every later enactment which supersedes an earlier one or parts and end to an earlier state of the law is presumed to intend the continuance of rights accrued an liabilities incurred under the superseded enactment unless there were sufficient indications-express or implied-in the later enactment designed to completely obliterate the earlier state of the law. The next question is whether the application of that principle could or ought to be limited to cases where a particular form of words is used to indicate that the earlier law has been repealed. The entire theory underlying implied repeals is that there is no need for the later enactment to state in express terms that an earlier enactment has been repealed by using any particular set of words or form of drawing but that if the legislative intent to supersede the earlier law is manifested by the enactment of provisions as to effect such supersession, then there is in law a repeal notwithstanding the absence of the word ''repeal'' in the later statute. Now, if the legislative intent to supersede the earlier law is the basis upon which the doctrine of implied repeal is founded could there be any incongruity in attributing to the later legislation the same intent which s. 6 presumes where the word ''repeal'' is expressly used. So far as statutory construction is concerned, it is one of the cardinal principles of the law that there is no distinction or difference between an express provision and a provision which is necessarily implied, for it is only the form the differs in the two cases and there is no difference in intention or in substance. A repeal may be brought about by repugnant legislation, without even any reference to the Act intended to be repealed, for once legislative competence to effect a repeal is posited, it matters little whether this is done expressly or inferentially or by the enactment of repugnant legislation. If such is the basis upon which repeals and implied repeals are brought about it appears to us to be both logical as well as in accordance with the principles upon which the rule as to implied repeal rests to attribute to that legislature which effects a repeal by necessary implication the same intention as that which would attend the case of an express repeal. Where an intention to effect a repeal is attributed to legislature then the same would, in our opinion, attract the incident of the saving found in s. 6 for the rules of construction embodied in the General Clauses Act are, so to speak, the basic assumptions on which statutes are drafted. If this were the true position about the effect of the Central Act 67 of 1957 as the liability to pay the fee which was the subject of the notice of the demand had accrued prior to June 1, 1958 it would follow that these notices were valid and the amounts due thereunder could be recovered notwithstanding the disappearance of the Orissa Act by virtue of the superior legislation by the Union Parliament.
In the case of Sada and Vs. The Tahsildar, Utnoor, Adilabad District and Another,, , the Hon''ble apex Court, at paragraph 51, held as follows:-
In the inquiry u/s 38E(2) read with Rule 4 of the Rules of 1973, the Tribunal considers the matter on the above basis. This it does by considering the tenancy records or other record of rights or revenue accounts and after determining the extent of holding of the protected tenant and the landholder and provided these extents are within the limits mentioned in Sec. 38(7). If under S. 19, 32 and 44, the protected tenants have ceased to be such, by the date of notification, there is no question of declaring them to be owners. If the proceedings under Ss. 19, 32 and 44 are pending, the inquiry u/s 38-E (2) is not to be commenced till they are finally concluded in favour of the protected tenants. The Tribunal decides the extent which the protected tenant is entitled to purchase and prepares a provisional list in Form I, then objections are invited as per the procedure prescribed. Under Rule 4(3) the objections of the landholder are heard. Objections if any other interested persons, if filed, are also heard and then, the certificate is issued, in Form II to the protected tenant and under Form III to the landholder. Once the ownership certificate is issued, it is from that date ''conclusive evidence'' as against the landholder and all other persons having any interest therein. It clearly takes effect, retrospectively, from the date of notification issued u/s 38-E (1). As stated under Point No. 2, the transfer of ownership is not kept in abeyance during the inquiry under Sec. 38-E(2), and once it is issued it binds the landholder and all persons claiming through him, whether they are agreement-holders or vendees and it also binds all other persons having any interest therein, provided the principles of natural justice mentioned in the next paragraphs are satisfied.
On the other hand, the learned counsel for the Institution relies on the contentions reported in State of Andhra Pradesh and Others Vs. Nallamilli Rami Reddi and Others, and the judgments of this Court in the case of Gopisetti Venkaiah Vs. Chavali Brahmabhotlu and Others, and Jaladi Seetharamamma and Another Vs. Sri Ramalingeswara Swami Temple, .
In the case of State of Andhra Pradesh and Others Vs. Nallamilli Rami Reddi and Others, , the Hon''ble Supreme Court, at paragraphs 7, 13 and 21, held as follows:
Section 82 has the effect of cancelling all leases of agricultural lands belonging to the institutions subsisting on the date of commencement of the Act notwithstanding any other law in force. However, such cancellation will not affect leases held by landless poor persons. ''Landless poor person'' is identified by the Act as a person whose total land by him, either as owner or as cultivating tenant or as both does not exceed two and a half acre of wet land or five acres of dry land. In respect of leases held by landless poor persons for not less than six years continuously such persons are given the right to purchase such land on payment of 75% of prevailing market value being payable in four equal installments as may be prescribed. If, however, such landless poor persons fail to purchase the land as aforesaid or is unwilling to purchase the land, the lease shall be deemed to have been terminated. Rules have to be made providing for the authority competent to sanction the lease or licence in respect of properties belonging to charitable and religious institutions/endowments and also provide for other terms and conditions. This provision has no effect upon lease or licences of unmovable properties other than agricultural lands.
So far as the validity of Section 82(1) is classifying the ''landless poor persons'' is concerned, the High Court felt that the provisions themselves are inconsistent and that the illustration given by them, to which reference has already been made earlier, will show how discrimination will result. It is settled law that it is open to the legislature to state as to who should be exempt from the application of the law and, in the present case, there is definition of "landless poor person" whose total extent of land held by him either as owner or as cultivating tenant or as both does not exceed two and half acres of wet land or five acres of dry land having been identified as ''landless poor person'' and he is enabled to purchase the land at 75% of the prevailing market value by paying in four equal installments as may be provided under the Rules. Therefore, that aspect of saving the small land holders cannot be objected to nor can the meaning of ''landless poor person'' be enlarged, as has been sought to be done by the learned Single Judge. If, however, the said landless poor persons are not willing to purchase the land or fail to purchase such land, the lease would lapse. This latter provision cannot be held to be inconsistent with the earlier provisions as has been held by the High Court because that is a consequence flowing from the fact that such landless poor person is either not anxious to purchase the land or fails to do so. The validity of an enactment cannot be judged by fortuitous circumstance arising out of peculiar circumstances. Therefore, that reasoning of the Division Bench is also faulty.
The arguments relating to livelihood also have no legs to stand. The object of the Act is to resume lands in the hands of existing tenants for better management. After resumption some tenants may be dependent on the land leased to them by the charitable or religious institution or endowment but it cannot be said that was the only land held by them and that was the only avocation carried on by them, the objectives of the cancellation of the land is not to deprive anyone of his livelihood but, on the other hand, it is the better management of the properties belonging to the charitable or religious institution or endowment. The incident that the same may result in hardship to some of the tenants will not be a ground to say that it deprives them of their livelihood.
In the case of Gopisetti Venkaiah Vs. Chavali Brahmabhotlu and Others, , this Court, at paragraphs 16 and 17, held as follows:
It is to be stated that the A.P. Charitable and Hindu Religious Institutions and Endowments Act, 1987 (Act 37 of 1987) which came into fore with effect from 28-5-1987 has been upheld by the Hon''ble Supreme Court. By virtue of Section 82(5) of the said Act and particularly by insertion of Sub-section to Section 82, all the provisions of A.P. (Andhra Area) Tenancy Act shall not apply to any leases of the lands belonging or given or endowed for purpose of charitable or religious institutions or endowments as defined under the Act.
It is also further submitted that by virtue of A.P. Ordinance 7 and 8 of 2002 amending the Endowments Act as well as A.P. (Andhra Area) Tenancy Act, the Tenancy Act has no application to decide any dispute by the authorities under the Act and, therefore, the proceedings initiated before the Tenancy Act are not maintainable and non est in law and it is for the respective parties to take recourse under the Endowments Act alone.
In the case of Jaladi Seetharamamma and Another Vs. Sri Ramalingeswara Swami Temple, , this Court at paragraphs 4 to 6, held as follows:-
The substance of the above section is that any lease of the agricultural land belonging to or given or endowed for the purpose of any institution or endowment prior to the date of commencement of the Endowments Act shall stand cancelled unless such a lease is made in favour of a landless poor person. By virtue of insertion of Sub-section (5) to Section 82 of the Endowments Act, the provisions of the A.P. (Andhra Area) Tenancy Act, 1956 shall not apply to any lease of land belonging to or given or endowed for the purpose of any charitable or religious institutions or endowment as defined in the Endowments Act.
The State of Andhra Pradesh by Ordinance 8 of 2002 amended the Tenancy Act. u/s 16 of the Tenancy Act, any dispute arising under the Tenancy Act between the landlord and the cultivating tenant in respect of the matter not otherwise decided by the Special Officer shall be decided by the Special Officer. As per the proviso to Section 16(1), the Tenancy Act has no application in relation to fixation of reasonable rent under Sub-clause (e) to Sub-section (1) of Section 74 of the Endowments Act. The said proviso has been omitted by the said Ordinance No. 8 of 2002. By the said Ordinance, Sub-clause (f) has been added after Clause (e) to Section 18(1) of the Tenancy Act, which reads as under:
(f) to any agricultural land belonging to or given or endowed for the purpose of any charitable or Hindu Religious Institutions or endowments as defined by the provisions of the Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act.
Sub-section (2) of Section 18 is also omitted. By virtue of addition of Clause (f) to Section 18(1) of the Tenancy Act, the Tenancy Act shall not apply to any agricultural land belonging to or given or endowed for the purpose of any charitable or Hindu Religious Institutions or endowments as defined by the provisions of the Endowments Act. Thus, it is clear that no proceeding in respect of the leases of agricultural land either for the termination or continuance or for settlement of dispute relating to the institutions cannot be decided by the authorities under the Tenancy Act. Clause (f) to Section 18(1) of Tenancy Act is always deemed to have been and therefore the question of deciding any dispute in respect of agricultural lands of the institutions by the authorities under the Tenancy Act does not arise.
A Full Bench of this Court in S. Narayana v. State of Andhra Pradesh 1990(1) ALT 237 , declared that Section 82 of the Endowments Act as violative of Article 14 of the Constitution of India. In view of uncertainty of the validity of Section 82 of the Endowments Act in the interregnum, various proceedings before the authorities created under the Tenancy Act were continued. The said judgment of this Court has been set aside by the judgment of the Supreme Court in an appeal by the State in State of Andhra Pradesh and Others Vs. Nallamilli Rami Reddi and Others, , upholding the legality and validity of Section 82 of the Endowments Act. By virtue of the aforesaid ordinance and the judgment of the Supreme Court referred to above, all the leases between parties in these petitions came to an end on the date of commencement of the Endowments Act and thereafter there is no landlord and tenancy relationship between the institution and the cultivator. A Division Bench of this Court in WP No. 28714 of 1998 dated 19.2.2002 also held that the provisions of A.P. (Andhra Area) Tenancy Act, 1956 have no application to the Endowments Act in view of the judgment of the Supreme Court referred supra. Therefore, the proceedings before the authorities under the Tenancy Act are not maintainable and the proceedings initiated either by the institution or by the cultivator are non-est in law.
In the instant case, the Assistant Commissioner of Endowments, Rajahmundry initiated the action under the Rules. The rules which are relevant for the present dispute are Rules 3, 5 and 9 of the Rules and the same read as under:-
Determination of Landless poor person:-(1) Immediately after coming into force of these rules, if any cultivating tenant claims to be a landless poor person, the Assistant Commissioner having territorial Jurisdiction shall enquire into and decide whether the cultivating tenant is a landless poor person as defined in Section 82 after giving a reasonable opportunity to the cultivating tenant and to the Executive Authority of the concerned institution or Endowment.
Issue of Note:- (1) A notice in Form No. 1 annexed to these rules shall be issued to the cultivating tenant (other than a landless poor person) duly informing him that the lease held by him stood cancelled by virtue of the provisions in sub-section (1) of Section 82 of the Act, and that the lease hold rights in respect of the said lands are proposed to be leased out as per rules and calling upon him to forthwith handover possession of the lands failing which he shall be evicted invoking the provisions under sections 84, 85 and 86 of the Act, treating him as an encroacher in the order passed u/s 83(4) of the Act.
(2) In the case of the land held by the landless poor person as tenant as per sub-section (2) of Section 82, a Notice shall be issued in the Form No. II annexed to these rules. He shall be given an option either to purchase the leased land or such portion thereof as he desires in accordance with the conditions set out in rule 6 or to continue as tenant paying at least 2/3rd of the market rent for the similarly placed lands as lease amount. If he fails to exercise his option within (3) days of the receipt of the Notice in Form II, his lease shall automatically stand cancelled on the expiry of (3) days in which event he shall handover possession and pay all rents due up to that date failing which he shall be evicted invoking the provisions u/s 84, 85 and 86 of the Act treating him as an encroacher in the order passed u/s 83(4) of the Act.
Terms and Conditions of the Lease:-
(a) The Executive Authority of the Institution may, subject to the provisions of these rules and the instructions issued by the Commissioner, from time to time, in this behalf, decide the terms and conditions of the lease.
(b) The conditions of lease shall specify the following;
(i) The security to be furnished by the lessee;
(ii) The mode of payment of the rent;
(iii) The surcharge or compensation, if any, to be imposed for default in payment of rent or for violation of any conditions of lease.
(c) The lessee shall utilize the land for agricultural purpose only and that he shall not utilize the said land for any non agricultural or other purposes like residential or industrial or commercial purpose;
(d) The lessee shall not raise the crop other than the crop for which the land has been leased out and that the lease to be fixed in terms of bags for wet lands and for sugarcane in terms of tons.
(e) the lessee shall not undertake the digging of Bore Wells or ponds or wells in the land without obtaining the permission of the Executive Authority of the Institution or Endowment and such other authority as the law may prescribe;
(f) The lease is not transferable. However, in the event of the death of the lessee, with the prior permission of the Executive Authority; his legal heirs may enjoy the lease for the balance period on the same terms. The lessee cannot grant a sublease and if granted, it shall be regarded as void;
(g) The lease is liable to be cancelled by the Executive Authority of the institutions of endowments, if the terms and conditions of the lease deed or the conditions prescribed under these rules are violated.
A reading of the orders of the Assistant Commissioner of Endowments, Rajahmundry in M.A. No. 1206/2007 (in Rc. No. A/3/18736/2003), dated 08.06.2007 and the orders of the Regional Joint Commissioner, Kakinada, in Appeal Nos. 280/2007 to 296/2007, dated 27.06.2008, clearly go to show that neither the primary authority/Assistant Commissioner nor the appellate authority/Regional joint Commissioner, thoroughly considered the effect of the provisions of Section 82 and 155 of the Act and the provisions of Andhra Pradesh General Clauses Act, 1891 nor the Rules 3, 5 and 9 of the Rules. The primary and appellate authorities did not consider as to whether the provisions of Section 82 of the Act and whether Section 18 of the Andhra Pradesh (Andhra Area) Tenancy Act, 1956 are prospective or retrospective in operation nor the authorities considered the validity of the orders of the Tenancy Courts as confirmed in W.P. No. 16268/1994.
This Court, in the above background, is of the considered opinion that a thorough analysis of the facts and circumstances and the legal position and the applicability of Rule 9 of the Rules are required to be undertaken by the primary authority and specific findings are required to be recorded since the substantial statutory and property rights are involved in the matter. It is also the case of the petitioners in W.P. No. 27923/2009 that the provisions of Section 9(C) of the Rules cannot be pressed into service as the petitioners in W.P. No. 27923/2009 have raised only small constructions for their residential purposes in small extents of the subject land and the same would not amount to conversion of the nature of land and this aspect also requires through enquiry in the ground level.
Therefore, this court is of the considered opinion that the matter requires reconsideration by the primary authority.
For the aforesaid reasons and having regard to the legal position and the judgments referred to above, the writ petitions are allowed, setting aside the orders of the Assistant commissioner of Endowments, Rajahmundry in M.A. No. 1206/2007 (in Rc. No. A/3/18736/2003), dated 08.06.2007 and the orders of the Regional Joint Commissioner, Kakinada, in Appeal Nos. 280/2007 to 296/2007, dated 27.06.2008 and the matter is remitted back for fresh consideration by the Assistant Commissioner of Endowments. The stake holders to the present litigation are given liberty to adduce further evidence and to place on record the further material in support of their respective contentions and pleadings and the Assistant commissioner of Endowments, is directed to enquire into the matter afresh, in accordance with law, after giving notice and opportunity of being heard to all the stake holders to the litigation. This entire exercise shall be completed within a period of six months from the date of receipt of this order and till such exercise is completed, status quo with regard to possession shall be maintained by the parties to the present litigation. Consequently, pending miscellaneous petition, if any, shall stand dismissed. No order as to costs.
That Rule Nisi has been made absolute as above Witness the Hon''ble Sri Kalyan Jyoti Sengupta, The Chief Justice on this Monday, The Twenty First day of April, Two Thousand and Fourteen.