Sec.82 of A.P.H.R.I&En. Act , Andhra Pradesh Charitable and Hindu Religious Institutions & Endowments Lease of Agricultural Lands Rules, 2003 - Public auction sale of temple lands - Claim by lease - Under sec. 82 (2) every landless poor person has to make an application before commissioner else from 28th May 1987 , all leases deemed to be cancelled - ever after the framing of rule in 2003 no application was made - the writ petitioners can not be considered as landless poor for claiming exemption either under sec.82(2) or under the rule 3(1) - Writ petitions are dismissed = Duvvur Niranjan Reddy, S/o Late Duvvur Adinarayana Reddy, Nellore...... Petitioner The Executive Officer, Sri Kailaslanatha Swamy Temple, Brahmadevam Village, Muthukur Mandal, Nellore District and another....RESPONDENTS = published in judis.nic.in/judis_andhra/filename=10482

  Sec.82 of A.P.H.R.I&En. Act , Andhra Pradesh Charitable and Hindu Religious Institutions & Endowments Lease of Agricultural Lands Rules, 2003 - Public auction sale of temple lands - Claim by lease - Under sec. 82 (2) every landless poor person has to make an application before commissioner else from 28th May 1987 , all leases deemed to be cancelled - ever after the framing of rule in 2003 no application was made - the writ petitioners can not be considered as landless poor for claiming exemption either under sec.82(2) or under the rule 3(1) - Writ petitions are dismissed = 

In the instant case, the petitioners in both the cases have been granted
leasehold rights over land of an extent of Ac.7-75 cents and Ac.6-38 cents
respectively.  Even if these lands are construed to be dry lands, since, their
extent has exceeded five acres limit, both the petitioners cannot be construed
as landless poor persons.  When once the respective petitioners in both the
cases cannot be construed as landless poor persons, the lease said to have been
held by them stood terminated by virtue of the provisions contained under sub-
section (1) of Section 82 of the Act.  Thus, there is no subsisting lease in
favour of the petitioners.=
Sub-section (1) of Section 82 of the Act, which
reads as under:
"        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."

So long as they are not held by a landless poor person, the purpose and intent
of this Provision is to cancel all leases, which are subsisting as on the date
when the provision has been brought into force, excepting such leases, which are
held by the landless poor persons.  Sub-section (2) confers certain advantages
upon landless poor persons. 
 It provided a landless poor person, who held lands
for not less than six years continuously, to have the right of first purchase
and also for a consideration of 75% of the prevailing market value of similarly-
situated lands at the time of purchase and further the said consideration of 75%
shall be paid in four equal installments in the manner prescribed.  Further,
such a sale can be affected by the Institution other than by public auction.
"       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 thousand 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 properties."
Andhra Pradesh framed the Andhra Pradesh 
Charitable and Hindu Religious Institutions & Endowments Lease of Agricultural
Lands Rules, 2003, exercising the power available to him under sub-section (1)
of Section 82 read with Section 153 of the Act and got these Rules notified
through G.O.Ms.No.379, Revenue (Endowments) Department, dated     
11-03-2003.  Rule 3(1) thereof makes it clear that immediately after the Rules
came into force, if any cultivating tenant claims to be a landless poor person,
the Assistant Commissioner, having territorial jurisdiction, shall inquire into
and decide whether the cultivating tenant is a landless poor person or not, as
defined under Section 82 of the Act, after giving reasonable opportunity to the
cultivating tenant as well as to the executive authority of the Institution
concerned.  
Sub-rule (2) thereof makes it abundantly clear that if the
cultivating tenant does not claim to be a landless poor person or if the
Assistant Commissioner concerned determined that the cultivating tenant is not a
landless poor person, the tenancy will be deemed to have been cancelled with
effect from 28th May 1987 and the cultivating tenant shall be regarded as a
tenant holding over thereafter.  
Thus, since, these Rules have been first
published in Andhra Pradesh Gazette dated 13-03-2003, the petitioners are
required to make applications for recognition as landless poor persons
immediately thereafter.  Since, the petitioners have not filed any applications
seeking determination of their status as landless poor persons, the question of
application of the Rules itself in their case would not arise.  Even otherwise,
as already noticed supra, the petitioners, by virtue of the sweep of Section 82
of the Act, cannot even be declared as landless poor persons.  Hence, there is
no way that the petitioners can insist that they shall be permitted to continue
to carry on the agricultural operations of the lands belonging to the temple.  A
right of seeking permission for any grant cannot lie contrary to the
requirements of the Statute itself.
        I do not find any merit in both these writ petitions and therefore, they
are dismissed at the stage of admission, but however, without costs.

THE HON'BLE SRI JUSTICE NOOTY RAMAMOHANA RAO            

W.P.Nos.11424 of 2010 and batch
       
Dated 01-11-2013

W.P.No.11424 of 2010

Duvvur Niranjan Reddy, S/o Late Duvvur Adinarayana Reddy, Nellore......
Petitioner

The Executive Officer, Sri Kailaslanatha Swamy Temple, Brahmadevam Village,
Muthukur Mandal, Nellore District and another....RESPONDENTS  

Counsel for the petitioner :  Sri T. Balaji

Counsel for the Respondents :  Sri V.T.M. Prasad, SC for Endowments
                                                          Department for R-1
<GIST:

>HEAD NOTE:  

?Cases referred:

 1.  ALD-2011-6-582

THE HON'BLE SRI JUSTICE NOOTY RAMAMOHANA RAO            
W.P.Nos.11424 of 2010 and 30936 of 2013

C O M M O N  O R D E R:  

Writ Petition No. 11424 of 2010 is filed by one Duvvur Niranjan Reddy seeking a
writ of mandamus for declaring the action of the 1st respondent, namely the
Executive Officer, Sri Kailasanatha Swamy Temple, Brahmadevam Village, Muthukur  
Mandal, Nellore District, in auctioning the petitioner's land to an extent of
Ac.7-75 cents in Survey Nos. 203, 204 and 205 situate at Brahmadevam Village,
Muthukur Mandal, Nellore District, scheduled to be held on 19-05-2010 at 10-00
am or thereafter, as per the notice dated 05-05-2010, as illegal.
Writ Petition No. 30936 of 2013 has been filed by one Sri             B.
Seenaiah, seeking a writ of mandamus for declaring the action of the 2nd
respondent, namely, Sri Kailasanatha Swamy Temple, represented by its Executive 
Officer, Brahmadevam Village, Muthukur Mandal, Nellore District, in auctioning
the petitioner's land to an extent of Ac.6-38 cents in Survey No.207 situate at
Brahmadevam Village, Muthukur Mandal, Nellore District, pursuant to the notice
dated 24-10-2013, by auctions to be held on
06-11-2013 at 10-00 am or subsequently, as illegal.
The petitioner in the first writ petition has claimed that land of an extent of
Ac.7-75 cents situate in Survey Nos. 203, 204 and 205 situate at Brahmadevam 
Village belonging to Sri Kailasanatha Swamy Temple in the village was leased out
to him as early as in the year 1995 and he has been cultivating the said land as
a lessee by paying the Maktha to the 1st respondent temple every year.  It was
claimed by him that the lease has been extended from time to time, but however,
the 1st respondent has issued notice on
05-05-2010 proposing to grant the licence to cultivate the land in question by
way of a public auction to be held on 19-05-2010.  Hence, he instituted the said
writ petition challenging the validity of the notice.
So far as the petitioner
in the second writ petition is concerned, it is his case that land of an extent
of Ac.6-38 cents in Survey No. 207 situate at Brahmadevam Village belonging to
Sri Kailasanatha Swamy Temple has been leased out to his fore-fathers long back.
They have been cultivating the said land from a very very long time and that he
has been paying the annual Maktha at Rs.59,000/- to the said Devasthanam and in 
spite of his prompt payment of Maktha, the Devasthanam has taken out a 
notification on 24-10-2013, proposing to grant licence for cultivating this very
land, by public auction, for a period of three years, commencing from 2013-2014
and hence, this writ petition has been instituted.
In both the cases, the respective petitioner set out that as per Section 82 of
the Andhra Pradesh Charitable and Hindu Religious Institutions & Endowments Act, 
1987 (henceforth referred to as 'the Act'), the leases held by landless poor
persons are saved from cancellation and that the State Government has formulated
a scheme through their G.O.Ms.No.379, Revenue (Endowments) Department, dated 11-    
03-2003, indicating the procedure to be followed for the purpose of determining
the status of a landless poor person.  
The case of the petitioners is that
without following the procedure, the respondents are proceeding further in the
matter by proposing to conduct the necessary auctions.
It will be relevant to notice Sub-section (1) of Section 82 of the Act, which
reads as under:
"        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."

So long as they are not held by a landless poor person, the purpose and intent
of this Provision is to cancel all leases, which are subsisting as on the date
when the provision has been brought into force, excepting such leases, which are
held by the landless poor persons.  Sub-section (2) confers certain advantages
upon landless poor persons. 
 It provided a landless poor person, who held lands
for not less than six years continuously, to have the right of first purchase
and also for a consideration of 75% of the prevailing market value of similarly-
situated lands at the time of purchase and further the said consideration of 75%
shall be paid in four equal installments in the manner prescribed.  Further,
such a sale can be affected by the Institution other than by public auction.
        Therefore, for availing benefits prescribed under Sub-section (2), the
basic requirement is that the lease of the land must be held by a landless poor
person, at least, for a continuous period of six years.  The Proviso added to
Sub-section (2) also conferred a benefit on the landless poor person - lessee to
continue as a tenant in the land if he agrees to pay at least two-third of the
market rent, which was paid for similarly-placed lands, as lease amount.  The
Explanation reads as under:
"       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 thousand 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 properties."

Thus, a 'landless poor person' is defined as a person, whose total extent of
land held by him either as owner or as cultivating tenant or as both does not
exceed an extent of two and half acres of wet land or five acres of dry land and
whose monthly income, other than from such land, does not exceed Rs.1,000/- per
mensum or Rs.12,000/- per annum.  In other words, if the lease itself is granted
for wet land of two and half acres or dry land of five acres of extent, he
cannot be construed or considered as a landless poor person, even if he does not
own any land at all.
        In the instant case, the petitioners in both the cases have been granted
leasehold rights over land of an extent of Ac.7-75 cents and Ac.6-38 cents
respectively.  Even if these lands are construed to be dry lands, since, their
extent has exceeded five acres limit, both the petitioners cannot be construed
as landless poor persons.  When once the respective petitioners in both the
cases cannot be construed as landless poor persons, the lease said to have been
held by them stood terminated by virtue of the provisions contained under sub-
section (1) of Section 82 of the Act.  Thus, there is no subsisting lease in
favour of the petitioners.
        There is no denial or dispute with regard to the fact that the lands in
question belong to the temple.  When once a public auction is conducted and the
best bidder thereat has been granted the necessary permission to cultivate the
land, what, in effect and substance, is granted to such an individual is the
right to cultivate the said land, subject to the stipulations or conditions
contained in such a grant by the temple.  In effect and in substance, it is a
licence to cultivate the land in question.  The distinction, in principle,
between a 'licence' and a 'lease' lies in the fact that in case of licence, the
true owner or the member is always construed as holding possession of the land
and the grantee will not be construed as a trespasser so long as the conditions
and stipulations are honoured and complied with by him.  Thus, the right of the
grantee to enter upon the land and put it to agricultural operations is beyond
any question.  When once the grant expired by virtue of efflux of time as
stipulated in the grant itself or by its termination brought about in accordance
with the terms of the grant, in such cases also, the grantee ceases to have any
possession over the land in question.  He cannot, thereafter, enter upon the
land and deal with it for any purpose including agricultural operations (since,
I had an occasion to deal with a similar issue in JASTI VENKATESWARA RAO v.  
SOUTH CENTRAL RAILWAY, VIJAYAWADA [ALD-2011-6-582]).  Hence, all such grantees        
of right to cultivate agricultural lands belonging to a temple or endowment or
any institution, cease to have any right to enter upon said lands after the
period of grant expires or the grant gets terminated and any such activity of
theirs will fall foul of law and is liable to be frowned upon.  Hence, the
temple authorities are at liberty to grant the necessary right for the further
period in accordance with law.  However, it shall be open to them to permit the
previous grantee also to participate in an auction, provided he satisfies the
stipulations or conditions contained therein.
        In the instant case, the leases granted earlier in favour of the
petitioners have been terminated by virtue of the operation of the Provisions
contained under sub-section (1) of Section 82 of the Act. The petitioners now
have no manner of any right.  They are bound not to carry on any agricultural
operations therein.
        Further, the Governor of the Andhra Pradesh framed the Andhra Pradesh 
Charitable and Hindu Religious Institutions & Endowments Lease of Agricultural
Lands Rules, 2003, exercising the power available to him under sub-section (1)
of Section 82 read with Section 153 of the Act and got these Rules notified
through G.O.Ms.No.379, Revenue (Endowments) Department, dated     
11-03-2003.  Rule 3(1) thereof makes it clear that immediately after the Rules
came into force, if any cultivating tenant claims to be a landless poor person,
the Assistant Commissioner, having territorial jurisdiction, shall inquire into
and decide whether the cultivating tenant is a landless poor person or not, as
defined under Section 82 of the Act, after giving reasonable opportunity to the
cultivating tenant as well as to the executive authority of the Institution
concerned.  Sub-rule (2) thereof makes it abundantly clear that if the
cultivating tenant does not claim to be a landless poor person or if the
Assistant Commissioner concerned determined that the cultivating tenant is not a
landless poor person, the tenancy will be deemed to have been cancelled with
effect from 28th May 1987 and the cultivating tenant shall be regarded as a
tenant holding over thereafter.  Thus, since, these Rules have been first
published in Andhra Pradesh Gazette dated 13-03-2003, the petitioners are
required to make applications for recognition as landless poor persons
immediately thereafter.  Since, the petitioners have not filed any applications
seeking determination of their status as landless poor persons, the question of
application of the Rules itself in their case would not arise.  Even otherwise,
as already noticed supra, the petitioners, by virtue of the sweep of Section 82
of the Act, cannot even be declared as landless poor persons.  Hence, there is
no way that the petitioners can insist that they shall be permitted to continue
to carry on the agricultural operations of the lands belonging to the temple.  A
right of seeking permission for any grant cannot lie contrary to the
requirements of the Statute itself.
        I do not find any merit in both these writ petitions and therefore, they
are dismissed at the stage of admission, but however, without costs.
        Consequently, the miscellaneous applications, if any in both the writ
petitions, shall also stand dismissed.
        Registry is directed to issue a copy of this order to the learned Standing
Counsel for Endowments Department on usual terms.  
___________________________    
NOOTY RAMAMOHANA RAO, J.      
Date.01.11.2013.

Comments

Popular posts from this blog

Article 54 of the Limitation Act, 1963 (36 of 1963) reads as follows: “For Specific performance of a contract: Three years The date fixed for the performance, or, if no such date is fixed, when the plaintiff has notice that performance is refused.”= the apex Court in Ahmmadsahb Abdul Mila vs. Bibijan[1], wherein it was held that the date fixed for the performance of the contract should be a specified date in the calendar, and submitted that since no specified date in the calendar for performance of the contract is mentioned in the agreement of sale, the second limb of Article 54 of the Limitation Act is applicable. ; whether the suit is barred by limitation or not becomes a tribal issue and when there is a tribal issue, the lower Court ought not to have rejected the plaint at the threshold. In view of the same, order, dated 27-01-2012, in CFR.No.90 of 2012, passed by the Additional Senior Civil Judge, Ongole, (FAC) Senior Civil Judge, Darsi, is, hereby, set aside. The Appeal is allowed accordingly.

Order 39 Rules 1 and 2 CPC. plaintiff has to prove his title and possession how he came into possession prima faice , in the absence of the same, not entitled for interim injunction = The questions as to whether the lease deed was properly stamped and whether the stamp paper on which it was typed can be said to have been procured through proper source, need to be dealt with at the stage of trial.; The suit filed by the 1st respondent, is the one for injunction simplicitor in respect of an item of immovable property. He has also filed an application under Order 39 Rules 1 and 2 CPC. Basically, it was for the 1st respondent to establish that he is in possession and enjoyment of the property and that he derived the same through lawful means, particularly when he did not contend that he encroached upon the property.= assumptions of facts against to the contents of crucial third party by misreading the same- it is just un-understandable as to how the trial Court gathered the impression that Anuradha stated that there was a meeting of Board of Directors, where it was decided to lease the property to the appellants. - the trial Court itself was not clear as to whether the appellant is the lessee or a Manager or is working under any other arrangement. - The important findings that have a bearing upon the valuable rights of the parties cannot be based upon such uncertain and unverified facts. One of the cardinal principles in the matter of examining the applications filed under Order 39 Rules 1 and 2 CPC is that a party claiming that relief must come to the Court with clean hands. Prima facie, we find that there are no bona fides, much less consistency on the part of the 1st respondent, in his effort to get the order of temporary injunction. The trial Court has misread the evidence and misinterpreted the facts borne out by the record.

cancellation of the sale deeds = Under the Registration Act, 1908 and the Rules framed thereunder, which provide that registration/cancellation of document is only with reference to the executant and the claimant under a document, which is already registered. Petitioner, being a third party, is, therefore, not entitled to approach the registering authority and seek cancellation of the documents executed by third party in favour of any other party. Petitioner’s reliance upon Rule 26 of the Rules framed under the Registration Act is also misconceived inasmuch as Rule 26(k)(i) of the Rules specifically refer to the duty of the registering authority to ensure that the deed of cancellation is executed by all the executants and the claimants, who are parties to previously registered document and only on mutual consent a deed of cancellation can be registered. Since petitioner is not a party to the impugned sale transactions between two different individuals, he is not entitled to seek cancellation thereof and in any case, the petitioner does not satisfy even the requirement of Rule 26, referred to above.