WP/22851/2005 of Kesana Kotaiah Vs The Government of Andhra Pradesh, on 28 December 2006

ORAL ORDER:

An ex-Trustee of Sri Brahmarambha Chennamalleswara SwamyTemple, Esukapalli village, Repalle Mandal, Guntur district (for short‘the Temple’) assails the order of the first respondent in G.O.Ms.No. 64Revenue (Endowments-IV) Department dated 10-01-2005 (for shortG.O. 64’) whereby in purported exercise of power under Section 80(1)(c) of the Andhra Pradesh Charitable and Hindu Religious Institutionsand Endowments Act, 1987 (Act No. 30 of 1987) (for short ‘the Act’),permission is accorded to the second respondent to register two plots(belonging to the fourth respondent-Temple) in favour of the legal heirsof original encroachers at the prevailing market rate in terms of earlierorders issued in G.O.Ms.Nos. 1016 and 508 of Revenue (E.IV)Department dated 10-12-1996 and 26-06-1999 respectively, bycollecting the balance amount with 12% interest. By this order, thesecond respondent is also directed to regularize the land encroachedby the respondent Nos. 5 and 6 herein by collecting the prevailingmarket value with 12% interest including legal expenses incurred bythe Temple in connection with O.A.Nos. 56 and 51 of 2001.

Though writ petitioner has challenged the orders of theGovernment in G.O.Ms.No. 1016 and 508 dated 10-12-1996 and 26-06-1999 as well, at the hearing of the writ petition, learned counsel for the petitioner at the oral hearing has confined the challenge to theorders in G.O.No. 64 and has relinquished the challenge in respect ofthe other two Government orders. The validity of G.O. 64 alone is thusconsidered for adjudication in this writ petition.

The learned counsel for the petitioner contends that the severalorders of the State Government purporting to exercise power underSection 80 of the Act is a colorable, irrelevant and subversive exerciseof power, in abdication of statutory responsibility and in transgressionof the legislative mandate under the provisions of the Act.

The first respondent has filed a counter affidavit dated 02-12-2006 which sets out a comprehensive narrative of relevantfacts. The facts, to the extent relevant and material for the purpose ofthis writ petition, as gathered from the first respondent’s counter are setout in brief as under:

(i) The fourth respondent-Temple has Ac.05-19 cents insurvey Nos. 58/1 and 58/2 at Isukapalli village, RepalleMandal, Guntur district. An extent of Ac.04-22 cents wasoccupied by seventy nine (79) persons in 1956unauthorisedly. These encroachers constructed hutsand buildings in the area and are living with their familieswithout paying any amount to the Temple. survey Nos. 58/1 and 58/2 at Isukapalli village, RepalleMandal, Guntur district. An extent of Ac.04-22 cents wasoccupied by seventy nine (79) persons in 1956unauthorisedly. These encroachers constructed hutsand buildings in the area and are living with their familieswithout paying any amount to the Temple.

(ii) Initially, the non-hereditary trustees tried to evict these encroachers by filing applications under the Act. Afterorders of eviction were passed, some of the occupiersincluding one B. Ramalingaiah represented to the StateGovernment. On 04-09-1991, the State Governmentrejected the representation. B. Ramalingaiah then filed areview petition for re-consideration of the order dated 04-09-1991. The State Government having heard orders of eviction were passed, some of the occupiersincluding one B. Ramalingaiah represented to the StateGovernment. On 04-09-1991, the State Governmentrejected the representation. B. Ramalingaiah then filed areview petition for re-consideration of the order dated 04-09-1991. The State Government having heard

B. Ramalingaiah as well as the representative of theChairman of the Trust Board of the temple, decided thatapproximately Ac.01-00 of land adjacent to the road mustbe sold in public auction and the remaining land sold tothe encroachers giving preference to the originalencroachers, who were evicted through court orders, at aconcessional rates and for extents of not more than Ac.0-03 cents per family.

(iii) The State Government issued a memo dated 06-05-1982 calling upon the second respondent to suggest theconcessional rate at which land could be sold to theencroachers and to propose the names of theencroachers to whom the lands are to be sold. Apparently, by the memo dated 06-05-1982, the Statewas dictating to the Commissioner of Endowments toalienate endowment lands at concessional rates to theencroachers.

(iv) Pursuant to the Government Memo dated 06-05-1982and (apparently) after an acquiescing endorsement bythe Commissioner of Endowments to the irrationalproposal of the State, an extent of Ac.01-00encroachment was removed and public auction wasconducted on 07-07-1982. Rs.3,50,000-00 was the price obtained. The sale was confirmed and registered. The Trust Boardthen passed a resolution on 15-05-1985 to sell land atRs.3,500-00 per ‘cent’. Encroachers, however were notwilling to pay Rs.3,500-00 on account of claimedpenury. Thereafter negotiations were conducted for re-computing the rate. These negotiations continued till1985 and the encroachers continued on the lands inquestion and the Temple derived nothing except ahyperactive state of negotiations with encroachers withthe active participation of the Commissioner,Endowments.

(v) The Deputy Commissioner, Endowments, Gunturvisited Repalle on 05-11-1995 and 10-12-1995, calledthe representatives of the political parties, encroachersand the Executive Officer of the Temple and discussedthe matter. Representatives of political parties passed aresolution on 10-12-1995 that encroachers should payRs.4,500-00 per ‘cent’ to settle the issue ‘amicably in thebest interest of the temple’ taking into consideration thatRs. 3,50,000-00 was secured at the public auction heldin 1982. According to the first respondent, the value ofRs.4,50,000-00 per acre in 1995 was beneficial (towhom?), as there was no income from the lands since1956. {In all this exuberance, neither the State nor the Commissioner, Endowments asked a single relevantquestion as to what deficiency handicapped orimpediment the State and Commissioner, Endowmentssuffered from that disability the sovereign might of StateGovernment and the statutory might of the EndowmentsDepartment to evict the encroachers notwithstanding thestringent and summary provisions of Sections 83 to 86 ofthe Act which set out a special non obstente procedurefor dealing with encroachments and ensuring theireviction from endowment lands.}

(vi)

After the all party resolution, it would appear that theDeputy Commissioner of Endowments requested theCommissioner of Endowments to address theGovernment to sell the land to the encroachers by privatenegotiations under Section 80(1) of the Act (otherwisethan by public auction) (paragraph No.7 of the firstrespondent’s counter). On the basis of this astuterecommendation of the Deputy Commissioner ofEndowments, the Commissioner of Endowments in hisletter dated 13-03-1996 requested the State to issueorders for sale of land in an extent of Ac.04.22 cents tothe seventy nine (79) encroachers by privatenegotiations at Rs.4,500-00 per ‘cent’. (paragraph No.8of the counter affidavit of the first respondent). Inparagraph No.9 of the counter affidavit, the firstrespondent states that “after careful consideration of thematter taking into consideration that the encroacherswould be put to an end and in the interest of theinstitution, Government in exercise of the powersconferred by the first proviso to clause (c) of sub-section(1) of Section 80 of the A.P. Charitable and HinduReligious Institutions and Endowments Act, 1987 (Act30/87,) issued orders in G.O.Ms.No. 1016, Revenue(Endts.IV) Department dated 10-12-1996 duly accordingpermission to the Commissioner of EndowmentsDepartment, Hyderabad, for sale of the land Ac.4.22 Cts.,in D.No. 58/1 & 58/2 belonging to Sri BramarambaChenna Malleswara Swamy Temple, Isukapally village,Repalle Mandal, Guntur district in favour of 79encroachers by private negotiations at the rate ofRs.4,500-00 per cent” subject to the conditions.

(vii) In G.O.Ms.No. 1016, a ceiling of the extent of land forregularization was incorporated viz., not more than Ac.0-03 cents of site each and certain other conditionalities.Apparently, the careful consideration of the matter by theState led to an administrative conclusion that yielding tothe encroachers was the only option available to theState and there was available no statutory or executivepower to safeguard encroachments of endowmentproperties. Such are the meandering and idiosyncraticways of the State and such is the commitment and fidelityof the executive to the legislative mandate.03 cents of site each and certain other conditionalities.Apparently, the careful consideration of the matter by theState led to an administrative conclusion that yielding tothe encroachers was the only option available to theState and there was available no statutory or executivepower to safeguard encroachments of endowmentproperties. Such are the meandering and idiosyncraticways of the State and such is the commitment and fidelityof the executive to the legislative mandate.

(viii) Pursuant to the policy decision to liquidate endowmentproperties of the fourth respondent-Temple, taken inG.O.Ms.No. 1016, the Commissioner of Endowmentsperformed the ritual of a notification calling for objectionsand suggestions. It is not clear from the counter whetherland was sold to all or some of the encroachers andwhether the land was registered in favour of saidencroachers and in what extent and in respect of howmany encroachers.

(ix)

However it would appear that Syed Sattar son ofIbraheem, Smt. Y. Nagamalleswari wife of Y.E. VaraPrasad and Shaik Habib had not paid the amount asstipulated in G.O.Ms.No. 1016. Therefore, forty five (45)years after the encroachment, in 2001 the ExecutiveOfficer of the Temple sought eviction of the encroachersand filed appropriate applications before the DeputyCommissioner of Endowments under Section 83 of theAct. The Deputy Commissioner passed orders ofeviction in O.A.Nos. 56 and 57 of 2001 on 20-04-2002directing eviction of Syed Sattar, Smt. Y. Nagamalleswariand Shaik Habib (paragraph No.11 of the counteraffidavit of the first respondent).

(x) The Assistant Commissioner of Endowments alsoappears to have reported to the State Government thathe had executed the orders under Section 84 of the Actin respect of the occupation of Smt. Y. Nagamalleswari,Syed Sattar and Shaik Habib on 01-09-2006 and 29-09-2006 respectively. The first respondent states that theorders of eviction dated 20-04-2002 were executed inSeptember, 2006 on account of “administrative reasons”.

Whether such reasons were germane or on account ofnegligence of the first respondent, the counter does notclarify.

(xi) The first respondent counter also admits that thelitigative campaigns by other encroaches or theirsuccessors in interest such as Vuyyur Mahalakshmi andKesana Parvathamma, yielded no benefit to theseencroachers.

(xii) Thereafter the second respondent by his letter dated 23-09-2004 requested the first respondent to accordpermission to register two plots in favour of the legalheirs of original encroachers after collecting the balanceamount, with 12% interest. The second respondent isstated to have made these recommendations in respectof the encroachers against whom the eviction orderswere passed viz., Syed Sattar, Smt. Y. Naga Malleswariwho had not paid any amount whatsoever.

Why the Commissioner of Endowments, an authority,obligated to execute the provisions of the Act relentlesslyand with the singular legitimate agenda viz.,safeguarding the interests of the endowment institution,was solicitous to encroachers and why such abdicationof statutory responsibility by the Commissioner ofEndowments did not elicit the disapproval and rejectionof such irrational proposals by the State Secretariat, isnot apparent. Apparently, the State and theCommissioner of Endowments are more concerned forthe encroachers of endowment properties than mindful oftheir statutory obligations.

(xiii) An eager State took up the Commissioner’srecommendations (dated 23-09-2004) eagerly andissued the impugned G.O.64, permitting the secondrespondent to register two plots in favour of two originalencroachers, collecting the “prevailing market rate”,under Section 80 of the Act in furtherance of the earlieracts of benevolence in G.O.Ms.Nos. 1016 and 508(liquidating endowment property to benefit encroachers).

(xiv) In paragraph 18 of the counter affidavit, the firstrespondent asserts that under the provisions of the Act, the Government is competent to grant permission to sellimmoveable properties of the endowments otherwisethan public auction, in the interest of institution orendowment and for reasons to be recorded therefore inwriting. A mere recantation of the statutory languagedoes not legitimize the non-conformity of the executiveaction with the enactment.

Neither in G.O.Ms.No. 1016 or G.O.Ms.No. 508 nor evenin G.O.64 is a single reason vouchsafed as to how thealienation is in the interest of institution. Overbroad, vague andrhetorical assertions are made in the counter affidavit statingthat efforts made to evict the encroachers did not fructify. Whatefforts were made, what were the handicaps faced by the State;was it administrative inadequacy, manpower insufficiency; non-existent commitment or inadequate empowerment of thesovereign State to move against the encroachers or whether theencroachers had overpowered the State apparatus, is not clear. Mere irrelevant, unsubstantiated averments and assertions thatencroachers could not be removed, compels an inference ofgross and persistent abdication of statutory responsibility by theendowment officials. The assertions in the counter do not justifyan inference that for fifty (50) years (since 1956), the State waspowerless to evict seventy nine (79) encroachers squatting overAc.04-22 cents of the fourth respondent-temple lands.

The counter of the first respondent, in the consideredview of this court, is misleading and does not come out with fullfacts, relevant to the consideration of the case. It is not clearwhat impediments existed to the employment of full sovereignpowers of the State legislative fortified by Sections 83 to 86 ofthe Act. It is also not clear what compulsions prevented theState from exercising the conferred statutory power. Thesecompulsions and handicaps are safely ensconced in the breast of the first respondent. The first respondent has not choses toshare the deficiencies in the State’s power, with this court.

The counter affidavit of the first respondent concludes withan assertion that the impugned G.O. 64 was issued in theinterests of equity and equality. What the first respondentappears to suggest is that since the fourth respondent-templelands were sold to serve the interests of some encroachers,principles of equity require that remnant land should also besold to the other encroachers, who did not even chose to availthe extraordinary benefits conferred in G.O.Ms.No. 1016.

On 21-12-2006 this Court directed the learned GovernmentPleader to produce the note file leading to the issuance ofG.O.Ms.No.1016, 508 and 64 dated.10-12-1996, 26-06-1999 and 01-01-2005 respectively, for the perusal of this Court. This Court hascarefully perused the 16 pages of the note-file. From the perusal of thenote file it appears that from the level of the Deputy Commissioner ofEndowments right up to the level of the Secretary to the Governmentthere is no evidence of any sensivity or concern for the text andpurposes of the provisions of the Act.

The learned Government Pleader for Endowments and thelearned Special Government Pleader appearing for the learnedAdvocate-General submit that the foundation and jurisdiction of theState underlying G.O.Ms.Nos.1016,508 and 64 are the provisions ofSec.80 of the Act. Sec.80(a) of the Act enjoins that a gift, shareexchange or mortgage of any immovable property belonging to orgiven or endowed for the purpose of any charitable or religiousinstitution or endowment shall be invalid unless such transaction notbeing a gift is effected with the prior sanction of the Commissioner.Even the Commissioner in the exercise of discretion under Sec.81 isrequired to accord sanction only where the sale exchange or mortgage

is (i) prudent, necessary or beneficial to the institution orendowment; (ii) is in respect of immovable property which isuneconomical for the institution or endowment to own and maintainand; (iii) the consideration is adequate and proper [Sec.80(b)].Sec.80(c) of the Act enjoins that every sale of any such immovableproperty sanctioned by the Commissioner under Clause (b) shall beaffected by tender-cum-public auction subject to confirmation by theCommissioner within a period prescribed.

The proviso to Sec.80(c) which is the mainstay of the defenceon behalf of the official respondents, enables the Government to permitsale of immovable property otherwise than by public auction but only ifit is in the interest of the institution or endowment and for reasons to berecorded therefor in writing (that the sale otherwise than by publicauction is appropriate).

None of the orders of the Government (in G.O.Ms.No.1016, 508or 64) record the satisfaction of the State that the alienation in favour ofthe encroachers was a prudent necessary or beneficial course ofaction for the institution or that it is in the interest of the institution thatthe sale should be otherwise than by public auction. In the context ofthe provision of Section 80 of the Act which consecrates a conditionalpower to the Government, the executive agencies of the State whetherthey be at the Secretariat level or in the Commissionerate ofEndowments do not exercise an uncanalised or uncharted jurisdictionand power. The power is a conditioned power and is conferred to beemployed strictly in the interest of the Hindu religious institution orendowment. The Commissioner of Endowments and the Governmentas well, before exercising power under the provisions of the Act woulddo well to at least read the provisions so as to understand thepurposes for which power is conferred. Had adequate care beenbestowed, it would have been apparent, even on a casual reading of the provisions of Sec.80, that Government may exercise power underthe proviso to Sec.80(c) only if the exercise is in the interest of theinstitution or endowment. The satisfaction (as to the existence of theinterest of the institution) will have to be recorded by giving reasons.

No reasons whatsoever are recorded in G.O.Ms.No.1016, 808or 64. The inference is perhaps compelling that none of the authors ofthe orders passed had even cared to read the provisions of Sec.80.

The Commissioner while granting sanction under Sec.80 (b) forgift, sale, and exchange or otherwise of immovable propriety ofEndowment is also required to ensure that the consideration for suchgift, sale or exchange is adequate and proper.

It is submitted by the learned Special Government Pleader that theorder of the 1[st] respondent in G.O.Ms.No.1016 was issued on thebasis of the proposals from the 2[nd] respondent dated.13-03-1996. Asis apparent from the letter of the 2[nd] respondent dated.13-03-1996which is admitted to be foundation for the Government order inG.O.Ms.No.1016, it would appear that one B.Ramalingiah petitionedthe Honourable Minister for Endowments. That petition was forwardedto the 2[nd] respondent and the 2[nd] respondent was directedto discuss the matter. The 2[nd] respondent apparently discussed thematter with the Honourable Minister for Endowments and then set inmotion a series of orchestrated administrative measures to generate arecommendation. He called for a report from the AssistantCommissioner and Deputy Commissioner of Endowments, Guntur.These officials submitted a report. The Deputy Commissioner, Gunturreported that the Devastanam owns an extent of Ac.4.22 cents of land,which was occupied by about 79 villagers since 1956 unauthorizedlyand the encroachers had raised constructions and were not payinganything to the temple. The 2[nd] respondent’s letter also states that non-hereditary trustees tried to evict the encroachers by initiatingproceedings under the Act and Ramalingiah was evicted. After theireviction the encroachers represented to the Honourable Minister forEndowments. The Honourable Minister for Endowments called forcomments from the Commissioner. The 2[nd] respondent instead ofassiduously protecting the interest of Endowments, according to hisstatutory obligations under the Act appears to have orchestratedreports and proposals to justify issuance of G.O.Ms.No.1016. Neitherthe 1[st] respondent nor the 2[nd] respondent during the entireextraneous exercise of power appear to have bothered to look up theprovisions of the Sec.80 of the Act. Had they done so, they would havefound no authority to liquidate the assets of the Devasthanam. Suchare the inscrutable foundations of executive conduct by which the clearpurposes of the Act are subverted in the hallways of the Secretariat; byexecutive insensitivity and absence of fidelity to the legislativepurposes and lack of concern for the rigor of the provisions of the Act.

As earlier stated, G.O.Ms.No.1016 restricted the executivemunificience to encroachers, to an extent of Ac.0.03 cents each. ByG.O.Ms.No.508, the extent restriction was eschewed andCommissioner of Endowments was permitted to sell the sites underthe physical occupation of each of the encroachers, 73 in number,without restricting the extent to Ac.0.03 cents. Why the ceiling wasremoved, there is no discussion in the note file! Encroachers appearto have an overpowering influence on the executive.

In the impugned G.O.Ms.No.64, dated.10-01-2005 the 1[st]respondent decided to continue the policy of disregarding endowmentinterests and overstepping the limits of the legislative mandate. Thus,even though the 5[th] and 6[th] respondents were evicted exercisingpower under Sec. 83 to 86 of the Act in O.A.No.56 and 51 of 2001 andeven though the encroachers failed to avail the benefits under

G.O.Ms.No.1016, the 1[st] respondent was satisfied that the interests ofthe encroachers must prevail over the interests of the religiousinstitution; and granted permission for sale of the encroached landseven in favour of the persons who were already evicted by process oflaw.

The petitioner, a former trustee of the 4[th] respondent-Devastanam,had filed writ petition.

In the considered view of this Court the order of the 1[st]respondent in G.O.Ms.No.64, Revenue Department dated.10-01-2005is perverse and suffers from the vice of malice in law, total non-application of mind and subversion of the provisions of Sec.80 of theAct. This Court rejects the equivocal implication of the 1[st] respondentin the counter-affidavit that the respondent Nos.1 and 2 had to cave into the encroachers since there was no alternative. As the Act providesspeedy and summary procedures for eviction of encroachers there wasno justifiable reason why the encroachers could not have been evictedfor over 50 years. The counter-affidavit is designedly silent as to thesteps taken for evicting the encroachers; why the steps if any takenwere unproductive. It is therefore not possible to conclude thatalienation of the land in favour of the encroachers was the onlypragmatic alternative left to the State. The State does not assert thatthe encroachers overpowered the State or debilitated the vast powersavailable under Sec.80 to 86 of the Act. The inference is thereforecompelling that the unlawful concern of the decision makingauthorities for the encroachers blinkered their discretion and disabledenforcement of the provisions of the Act. While exercisingadministrative powers in relation to administration of the materialassets of religious institutions, the State should ever be conscious thatit operated in a very delicate constitutional arena.

It may not under the garb of administrative oversight intervene to promote or liquidate the material assets of religious denominations. Itshould with commitment and concern lend the vast expertise gained inthe running the Government, to monitor and mentor the propermanagement of the assets of endowment institutions.

The provisions of the Act are carefully constructed to ensurethat neither the Commissioner of Endowment nor the StateGovernment have any uncharted discretion in dealing with endowmentproperties. The provisions of the Act, in particular the provisions ofSec.80 reinforce the legislative concern that while acting as aGovernment or as the Commissioner of Endowments, it is the interestof the institution and adequate return to the endowment institution onits capital which are the exclusive consideration.

If a particular officer of the State felt solicitous towards theencroachers he should have recused from performing functions underthe Act and made over the function to an officer who had the necessarydiscipline, commitment and sensitivity to the provisions of the Act aswould enable proper implementation of the legislative mandate.Alternatively if the Government felt sympathetic towards encroachers itcould have rehabilitated the encroachers by relocating them inproperty belonging to the State or under its control. In any event, theState appears to have no power to liquidate endowment assets toaccommodate same vague general policy. Such a course of conduct isinconsistent with the limited governmental power available underSec.80 of the Act. It is this fundamental discipline that was eschewedin issuing G.O.Ms.No.64. G.O.Ms.No.64 must therefore perish and isaccordingly quashed.

Conclusion

Since the 1[st] respondent has exercised his limited executivepowers under Sec.80 of the Act, ignoring the limits, this Courtconsiders it appropriate to allow the writ petition with costs ofRs.10,000/-(Rupees ten thousand only) payable by the 1[st] respondent, of which Rs.5000/- shall be paid to the petitioner who has performed apublic duty in pointing out the irrelevant and perverse conduct of the1[st] respondent and challenged the same in the interest of the 4[th]respondent-Endowment, the balance Rs.5000/- shall be paid to theSecretary, Andhra Pradesh State Legal Service Authority, Hyderabad.

28[th] DECEMBER 2006PVKS/*TSNR

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GODA RAGHURAM,J