WP/22581/2004 of Moparthi Koteswara Rao, Vs The District Collector-Guntur, on 27 December 2004

O r d e r:

The petitioners, by this writ petition, seek writ of Mandamus to declare theNotification issued by the first respondent-District Collector, Guntur under Section4(1) of the Land Acquisition Act, 1894 (for short ‘the Act’) vide proceedingsNo.2252/2004-G1, dated 18-10-2004, proposing to acquire the land of Sri SeethaRama Swamy vari Temple, Takkellapadu village, Peddakakani Mandal, GunturDistrict (for short ‘the Temple’) in an extent of Ac.10-77 cents comprising Ac. 5-47

cents in Sy. No. 22-2 cents and Ac. 5-30 cents in Sy. No. 27-1 of Takkellapaduvillage, as illegal and arbitrary, and violative of Appendix-IV of the Act, and alsoSection 82 of the Andhra Pradesh Charitable and Hindu Religious Institutions &Endowments Act, 1987 (for short ‘the Endowments Act’).

The petitioners claim to be landless poor and statutory tenants of the Temple inrespect of the property under acquisition since the time of their forefathers.According to them, the impugned notification proposing to acquire the land inquestion for allotting house sites to the weaker sections has taken away the benefitsaccrued to them by virtue of Section 82 of the Act. They state that they beingstatutory tenants, have exercised option to purchase the said land as contemplatedunder Sub-section (2) of Section 82 of the Endowments Act, and in pursuancethereof the Assistant Commissioner of Endowments, Guntur conducted enquiry andby his proceedings Rc.No.A5/6112/2003, dated 22-06-2003 and 22-08-2003,declared some of them as landless poor and the cases of others are underconsideration, and in fact they were all declared as landless poor by the MandalRevenue Officer, Peddakakani Mandal and Village Secretary of Takkellapaduvillage. They state that the impugned notification is illegal, inasmuch as the DistrictWelfare Officer has not decided any congestion in Takkellapadu village to acquirethe land, as required by the provisions of Appendix-IV of the Act, and in fact nopersons in the village require house sites. They also state that inasmuch as the apexCourt in State of A.P. and others v. Nallamilli Rami Reddy and others held thatthe tenants under the Endowments Act form a different class, and they as statutorytenants, are entitled to be extended the benefits of Section 82 of the EndowmentsAct. It is stated that the impugned notification has been issued at the instance oflocal rival political group without there being any necessity of acquisition, to deprivethe petitioners of their livelihood, which is illegal.

Heard the learned counsel for the petitioners and the learned Government Pleaderfor Land Acquisition.

The learned counsel for the petitioners submitted that the petitioners who aretenants of Sri Seetha Rama Swamy vari Temple were declared as landless poorpersons, and while the representations made by them to the authorities in theEndowments Department, exercising their option to purchase the land, which isunder their tenancy, are pending consideration, the first respondent issued the

impugned Notification under Section 4(1) of the Act, seeking to acquire the landsbelonging to the Temple, for the purpose of providing house sites to weakersections, which is illegal and arbitrary. He submits that Section 82 of theEndowments Act being a beneficial provision, intended to benefit the statutorytenants, and the petitioners being tenants of the Temple, the land which is in theirpossession under the Tenancy, cannot be acquired under the provisions of the Act,and at any rate, the lands cannot be acquired without ascertaining the genuinenessof congestion existing in the village where harijan colony is situated, by the DistrictWelfare Officer. Therefore, the impugned notification, seeking to acquire the landbelonging to the Temple, which is under their tenancy, at the instance of rivalpolitical party, cannot be sustained and is required to be quashed and set aside. Insupport of his contention that a land belonging to a weaker section cannot beacquired for the purpose of providing house sites to weaker sections of the society,the learned counsel placed reliance on the judgment of this Court in DanavathBichya v. District Collector, Nalgonda.

The learned Government Pleader for Land Acquisition submitted that theissue involved in this writ petition is squarely covered by the judgement of this Courtin Kona Venkanna v. District Collector, Kakinada. He, submitted that except thelands belonging to the Temple, there are no other lands available, which aresuitable for providing house sites to weaker sections, and therefore, the landbelonging to the Temple, which is in the possession of the petitioners as tenantsthereof, was sought to be acquired, and accordingly Notification under Section 4(1)of the Act was issued for its acquisition, and no exception can be taken thereto. Thepetitioners being tenants of the Temple would be eligible for their share ofcompensation that may be paid to the Temple for acquisition of their lands.

The petitioners, admittedly, are not the owners of the land in question. Theland in question admittedly belongs to the Temple. The petitioners are merelycultivating tenants of the land in question, having taken the same on lease from theTemple. The right of the petitioners over the land in question, if any, is to the extentof their tenancy rights, which they got under the tenancy agreement. The tenancy inrespect of the land, if any, subsists only between the petitioners and the Temple. It isnot known whether the Temple, which is the owner of the land, which is undercultivation of the petitioners, has any objection to the acquisition. The tenancybetween the petitioners and the Temple, in respect of the land, admittedly has no

statutory force, and tenancy having no statutory force, cannot come in the way of theland acquisition proceedings, which are initiated under the Act, which is a specialenactment, enacted for acquisition of land needed for public purposes. Though thepetitioners contend that they being tenants of the Temple, are entitled to beextended the benefits of Section 82 of the Endowments Act, it is required to noticethat the apex Court in State of A.P. and Others vs. Nallamilli Rami Reddy andOthers had held that the tenancy laws would not be applicable in relation to landsbelonging to a Charitable or an Endowment Institution. Therefore, the petitionersbeing merely tenants of the Temple, cannot seek to enforce their tenancy over theland, which is under their cultivation, and which admittedly belongs to the Temple,which is a Charitable Institution, and more so when it is sought to be acquired by thefirst respondent, for a public purpose, namely providing house sites to weakersections of the society.

Even assuming the petitioners were declared to be landless poor persons,the fact that remains is they are not the owners of the land, and they are inpossession of the land in terms of a tenancy agreement, entered into by them withthe Temple. The petitioners, admittedly, are persons, not belonging to weakersections of the society. The public policy demands individual interest should paveway for majority interest. It is not the case of the petitioners that even though theybelong to weaker sections of the society, and despite availability of land belongingto non-weaker sections of the society, the respondents in order to provide houses toweaker sections of the society, have chosen to acquire the land belonging to theTemple, which is in their possession by virtue of a tenancy agreement. Further, it isnot their case that they are the owners of the land. Admittedly, they are tenants of theTemple, and except tenancy rights over the land in question under the tenancyagreement, they cannot seek to exercise more rights than what the owner of the landhas. In that view of the matter, reliance placed by the learned counsel for thepetitioners on the judgement of this Court in Danavath Bichya v. District Collector,Nalgonda, has no application to the facts of the present case, for in the said case,the land of a tribal was sought to be acquired for providing houses to weakersections of the society. This Court considering the fact that tribals are more weakeramong the weaker sections of the society, held that public purpose cannot beinferred when the land of weaker section is subjected to acquisition.

Though the learned counsel for the petitioners contends that acquisition ofland cannot be undertaken unless the District Welfare Officer, looks into thecongestion, if any, existing in the village where harijan colony is situated asprovided for in the Rules and Instructions appended to the Act as Appendix-IV, it isrequired to notice that they are merely procedural instructions, and they cannotprevail over the provisions of the Act, and there can be no doubt that therespondents would follow the procedures contemplated under the Act foracquisition. Be that as it may, it is submitted by the learned Government Pleader forRevenue and admitted to by the learned counsel for the petitioners that therespondents have not dispensed with the enquiry under Section 5-A of the Act, andthey are conducting the enquiry. When such is the case, the petitioners being inpossession of the land and persons interested therein, may well put forth theirgrievance before the authorities concerned in the enquiry that may be conducted bythe respondents under Section 5-A of the Act, bringing to their notice that they arelandless poor persons, and that the land in their possession and cultivation, whichbelongs to the Temple, may be exempted from acquisition, but certainly, they notbeing the owners of the land in question, and being merely tenants of the Temple,cannot seek to question the acquisition proceedings on technicalities.

The petitioners admittedly are tenants of Sri Seetha Rama Swamy Temple ofTakkellapadu village, and even if they are treated to be a different class, namely“tenants of the Temple lands” they cannot claim to have better rights than what theTemple, which is the owner of the land in question has. At best, the petitioners beingin possession of the land in question belonging to the Temple as tenants, andpersons interested in the land, can claim their share of compensation, which may beawarded by the Land Acquisition Officer for acquisition thereof. This aspect of thematter was considered by a learned single Judge of this Court in

B. Jagannayakulu vs. District Collector, wherein he held thus:

“A tenant cannot have more rights than the owner. When the question of acquisition of land comes, ifthe owner cannot defeat the provisions of Land Acquisition Act can a tenant defeat such provisions?Under Section 11 of the Tenancy Act change of ownership in lands which are under tenants ispossible. So, by issuing a notification under Section 4 of the Land Acquisition Act, the State hasexpressed its intention to take the lands into their own ownership. Under the Land Acquisition Act,State can become the owner of any property provided the property is taken for a public purpose andafter following the procedure laid down by the Land Acquisition Act. Change of ownership is not barredunder the A.P. Tenancy Act, therefore, State can become owner of the lands which are owned bylandlords whether they are temples or private individuals. Once the land is taken in the ownership ofthe State, the A.P. Tenancy Act, 1956 becomes inoperative by virtue of Section 18 of the same Act.Section 18 of the Tenancy Act lays down that, nothing in the Tenancy Act shall apply to the landsowned by the State Government or the Central Government. Acquisition, per se, is not barred underthe Tenancy Act. Change of ownership, is also not barred under the Tenancy Act. There cannot be any bar to the State Government to take the lands into its possession under the provisions of LandAcquisition Act which are in the possession of tenants at a particular point of time.”

The petitioners being tenants of the Temple and persons interested in theland belonging to the Temple by reason of their cultivation of the said land, can aswell seek their share of compensation that may be awarded by the Land AcquisitionOfficer in lieu of acquisition thereof, but they certainly cannot question theacquisition proceedings on mere technicalities, as stated above.

Conclusion

Since enquiry under Section 5-A of the Act is yet to be conducted by therespondents, as and when it is conducted by the respondents, it is always open tothe petitioners, to participate in the enquiry and put forth their grievance, if any.

With the observation as above, the writ petition is disposed of. No costs.

Date: 27th December, 2004.

KSR

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N.V. RAMANA, J.

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SECTION OFFICER

To

1 The District Collector-Guntur, Office at Guntur-Town and District.

2 The Revenue Divisional Officer-Guntur, Office at Guntur-Town and District.

3Two CCS to GP for Revenue, High Court of AP, Hyderabad (OUT)

4 Two CD copies.