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Judgment
Raghuvir, J.—This writ appeal is filed by the Joint Commissioner in Endowments Department the 1st Respondent in W.P. No. 965 of 1972. The Writ petition came to be filed in the following circumstances; The writ petitioner carries on business of selling coconuts, fruits, flowers, betel leaves to the pilgrims, in the premises No. 7/144 on the pial covering an area of 96 sq. feet on the northern side of Rajagopuram of Sri Ksheera Ramalingeswaraswamivari Temple. The petitioners father originally was inducted into this premises on a monthly rental of Rs. 2/- but, from 1-5-69 the rent was enhanced to Rs. 28/- per month. The temple authorities initiated proceedings, H.R.C. No. 28/52, to evict the petitioner u/s 7 of the Madras Buildings (Lease, Rent and Eviction) Control Act. That petition however, was dismissed. The petitioner continued to occupy the premises. Nothing transpired till 1969 and in that year the petitioner executed a lease for one year, which expired on 1-6-1970. It is urged, on behalf of the appellant that after the expiry of the lease period, no further lease was granted in favour of the petitioner by the temple authorities and they have also not received any rents from the petitioner from September, 1970. The petitioner, however instituted A.B.O. No. 56/70 and deposited the rent.
The Deputy Commissioner endowments, on 21-5-1970 issued notice in O.A. No. 102 of 1970 A4/Judl. under Sec. 75(2) of the Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act (No. 17 of 1966) in which it was alleged, that the petitioner was an ''encroacher'' and was asked to show cause why he should not be evicted. The petitioner submitted his explanation on 15-6-1970. In that, he raised the objection that the Deputy Commissioner had no authority to evict the Writ petitioner from the premises and without waiting for the orders of the Deputy Commissioner the approached this Court in W.P. No. 252/70 and challenged the jurisdiction of the authorities. The writ petition was dismissed and it was observed that the petitioner had effective remedies under Act 17 of 1966 and he did not exhaust them. That order was confirmed in writ appeal.
The petitioner thereafter appeared before the Deputy Commissioner and led evidence in the proceedings. The Deputy Commissioner, on a consideration of the circumstances, by his order on 19-12-1970 held that the writ petitioner was an ''encroacher'' and directed him to vacate the premises. The order was assailed unsuccessfully by the petitioner in revision in R.P. No. 6/71 u/s 82 of the Act, before the Joint Commissioner. That order of the Joint Commissioner was quashed by the learned Single Judge on the ground,
........the (writ) petitioner is a tenant holding over in the premises in which case, the Deputy Commissioner has no jurisdiction to invoke the provisions of Section 75 of the Act and the notice given by him u/s 75(2) of the Act is clearly without jurisdiction.
It was further held,
........it cannot be said that Section 75 is a complete code in itself and its provisions exclude the operation of the provisions of the Transfer of Property Act.
The learned Government Pleader for the appellant submits the provisions in Chapter XI of Act 17 of 1966 are special provisions of the Transfer of Property Act. The provisions in that Chapter are a local law as contemplated by the Transfer of Property Act. (No notice) is required to be given, as that Section does not apply to leases of the Hindu Religious Institutions and Endowments.
Chapter XI consists of Sections 75 and 76. They deal with removal of encroachments.
Section 75 reads as follows:
Encroachments by persons on land or building belonging to charitable or religious institution or endowment and the eviction of encroachments (1) Where the Assistant Commissioner having jurisdiction either suo motu or upon a complaint made by the trustee, has reason to believe that any person has encroached upon (hereafter in this Chapter referred to as encroacher) any land, building, tank, well spring or water course, or any space belonging to the institution or endowment wherever situated, the Assistant Commissioner shall report the fact together with relevant particulars to the Deputy Commissioner having jurisdiction over the division in which the institution or endowment is situated.
EXPLANATION: For the purpose of this Chapter:
(i) The Expression ''person'' shall include an institution, and
(ii) the expression ''encroacher'' shall be deemed to include any person or institution who continues to remain in the land or building after the expiry or the termination or cancellation of the lease, mortgage or licence in respect thereof granted to him or it.
(2) Where, on perusal of the report received by him under sub-section (1), the Deputy Commissioner finds that there is a prima facie case of encroachment, he shall cause to be served upon the encroacher a notice specifying the particulars of the encroachment and calling on him to show cause before a certain date why an order requiring him to remove the encroachment before the date specified in the notice should not be made. A copy of the notice shall also be sent to the trustee of the institution or endowment concerned.
(3) The notice referred to in sub-section (2) shall be served in such manner as may be prescribed.
(4) Where after considering the objections, if any, of the encroacher received during the period specified in the notice referred to in sub-section (2) and alter conducting such enquiry as may be prescribed, the Deputy Commissioner is satisfied that there has been an encroachment, he may, by order, require the encroacher to remove the encroachment and deliver possession of the land or building or space encroached upon to the trustee before the date specified in such order.
(5) The order of Deputy Commissioner under Sub-section (4) shall be in writing and shall contain the grounds on which he has passed the order.
The explanation to the section contemplates persons who continue to occupy the land or building after the expiry or termination or cancellation of the lease as encroacher.
From a reading of the above provisions, the tenants of Religious or Charitable Institutions who continue to be in possession, after the expiry of lease, or after the cancellation of lease are termed as " encroachers ". The Commissioner before the order of eviction is passed in the prescribed manner u/s 75 is required to give notice to them as to why the lease be not terminated or cancelled as the case may be. The above section contemplates the three sets of persons as encroachers viz. (1) a lessee whose term of the lease has expired; or (2) a lessee who even after notice continues in possession and (3) a lessee whose lease is cancelled by the Commissioner. Under Cl. (2) of Section 75, the affected persons may file objections before the appropriate authority and under sub-section (4) the authorities are to pass the appropriate orders. A revision u/s 82 is provided against the orders of eviction. In the event of an encroacher not delivering possession, the mode of eviction is prescribed in Section 76 of the Act.
These provisions together lead us to the conclusion that provisions under the Act are a self-contained Code. They provide mode and the manner the leases are to be terminated or cancelled. Further, if the encroachers have not delivered the property, the Commissioner to approach the First Class Magistrate of the area and other incidental matters are set out in sub-clause (2) of that Section. The provisions of Transfer of Property Act, therefore, do not apply and no (notice for) termination of the tenancy is required to be issued.
Having regard to these special provisions, in Act 17 of 1966, we are of the view that the provisions of the Act, especially the Chapter XI of the Act are ''local law'' as contemplated u/s 106 of the Act and a Code for the purpose of determination or for "cancellation" of tenancies. In view of these special provisions, the requirement of notice u/s 106 of the Transfer of Property Act is not applicable.
We may also note the provisions as to termination of the tenancy or cancellation. The persons affected in contradiction of the provisions of the T.P. Act, are provided with an opportunity of placing material before the authorities under the Act as to why the orders of cancellation or the termination of the lease should not be ordered. Such a salutary provision is not conceived of and provided in the general law of Transfer of Property Act.
The learned counsel for the respondent, in this regard, placed reliance upon two bench decisions of this Court. Uligappa v. S. Mohan Rao, ( 1969 ) 1 APLJ 351 is a case where the provisions of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act XV of 1960 were considered and held that for the termination of tenancies no notice is contemplated to be given u/s 106 of the Transfer of Property Act. We fail to see as to how this decision helps the respondent.
Another decision in Avula Hanuma Reddy v. The Pushpagiri Mutt, 1970 APHC 30 is relied on by the respondent, where the Andhra Pradesh (Andhra Area) Tenancy Act and the provisions of Chapter X of Act XVII of 1966 were considered. In that, it was observed:
Where there is a conflict between the provisions of an earlier Act and a later enactment, the provisions of the later Act would prevail over the earlier Act, Where there is a general enactment and also a special enactment, the special law would prevail over the general law irrespective of the fact whether it is earlier or later in point of time. If there is an apparent conflict between two special enactments, the earlier enactment must by implication be deemed to have been overruled by the later one. Where there is a special provision, it should be given effect to the extent of its scope, leaving the other general provisions applicable to cases where such special provision is not applicable.
Having regard to our conclusion, the provisions of Act 17 of 1966 are special provisions and the provisions of Transfer of Property Act are inapplicable and no notice is required for the termination of the leases under Act 17 of 1966.
In that view, the writ appeal is allowed. The writ petition No. 965/72 is dismissed, In the circumstances of the case, no order as to costs. Advocate''s fee Rs. 150/-.
The learned counsel for the respondent submits in view of the long standing occupation of the premises by the petitioner, the authorities may be directed to give the petitioner sufficient time to vacate the premises. We have no reason to believe if the writ petitioner should approach the authorities, the authorities will not consider his request.