WP/23076/2003 of Gangula Narasimha Vs Govt. of A.P. rep by its Principal Secretary, on 31 December 2007

IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD(Special Original Jurisdiction)

MONDAY THE THIRTY FIRST DAY OF DECEMBERTWO THOUSAND AND SEVEN

PRESENTHON’BLE THE ACTING CHIEF JUSTICE BILAL NAZKIANDHON’BLE MR JUSTICE NOOTY RAMAMOHANA RAO

WRIT PETITION No.23076 of 2003

Between:

Gangula Narasimha and 31 others

..... PETITIONER

AND

Govt. of Andhra Pradesh rep. By itsPrincipal Secretary, Revenue Department,Secretariat, Hyderabad and three others

....RESPONDENTS

&

CRP Nos.5616 of 2003, 5397 of 2003, 5938 of 2003,5939 of 2003, 6297 of 2003, 6312 of 2003, 2952 of 2004,2953 of 2004, 2954 of 2004, 2955 of 2004, 2956 of 2004,2957 of 2004, 2958 of 2004, 2977 of 2004

HON’BLE THE ACTING CHIEF JUSTICE BILAL NAZKIANDHON’BLE MR JUSTICE NOOTY RAMAMOHANA RAOWRIT PETITION No.23076 of 2003

&CRP Nos.5616 of 2003, 5397 of 2003, 5938 of 2003,5939 of 2003, 6297 of 2003, 6312 of 2003, 2952 of 2004,2953 of 2004, 2954 of 2004, 2955 of 2004, 2956 of 2004,2957 of 2004, 2958 of 2004, 2977 of 2004

COMMON JUDGMENT:(per the Hon’ble Sri Justice Nooty RamamohanaRao)

In this writ petition challenge is mounted to the constitutionalvalidity of Andhra Pradesh Tenancy Laws (Amendment) Act, 2002, ActNo. 28 of 2002 (henceforth referred to as `Act No.28 of 2002’). Act No.28 of 2002 has purported to amend the Andhra Pradesh (TelanganaArea) Tenancy and Agricultural Lands Act, 1950 by introducing Clause(g) in Section102 thereof (henceforth referred to as Telangana AreaTenancy Act). Act No. 28 of 2002 has also purported simultaneouslyto amend Andhra Pradesh (Andhra Area) Tenancy Act, 1956 byintroducing clause (f) in sub-section 1 of Section 16 after deleting theproviso incorporated under sub-section (1) of Section 16 (henceforthreferred to as `Andhra Tenancy Act’). Since the petitioners haveconfined their attack to the amendment brought about to the TelanganaTenancy Act in this writ petition, we are not required to deal with theamendment brought about by the impugned Act to the Andhra Tenancy Act. In fact, a Division Bench of this Court has upheld theamendment carried out to the Andhra Tenancy Act.

The facts which are so essentially relevant for determining thecontroversy at issue are :

One Sri Bhagawan Das is said to have purchased some timeduring 1941 in an open auction land of an extent of 767 acresincluding the lands with which the petitioners herein are concerned. On 10.6.1990, the Telangana Tenancy Act has been ushered in toregulate the relations of the land holders and the tenants of theagricultural land and the alienation of such land. On 2.5.1951, the saidBhagawand Das after obtaining the necessary permission is said tohave transferred the lands in favour of Gurukul, Ghatkesar Trust, the2[nd] respondent herein, by way of a registered document. Thepetitioners have asserted that the names of their predecessors ininterest/title have been entered in the Khasra – Pahani as tenants. Byan Amending Act III of 1956, Section 37-A had been incorporated inthe Telangana Tenancy Act providing for conferring on certain tenantsnotionally the status of a protected tenant and for recording his statusas such in the record of rights/village records. The petitioners haveasserted that that the names of their predecessors in interest/title haveaccordingly been recorded as protected tenants with reference to thesubject lands with which they are concerned. Section 38A has alsobeen added to the Telangana Tenancy Act providing for the landholder to accord consent to sell his interest in the land in favour of theprotected tenant. The petitioners have asserted, though controvertedby the respondents, that the 2[nd] respondent Trust had entered into anagreement for transferring its interest in favour of the petitioners interms of the aforementioned Section 38A. The 4[th] respondent, aHousing Society, has made a parallel claim that it was sold certain

Conclusion

extent of land by the 2[nd] respondent Trust and hence 2[nd] respondentTrust could not have accorded any consent in favour of any other 3[rd]party for sale or alienation of it’s interests in the land and without theirknowledge no third party, like the writ petitioners can seek or stake anyclaim of title over the lands in question. Similarly some of therespondents have also raised similar pleas that the writ petitionershave no interest or title over the lands in question. In fact, the 7[th]respondent has also pointed out that there was a ‘mosque’ constructedduring Qutub Sahi dynasty over a small extent of the land in questionand hence they also dispute the claims of interest and title of the writpetitioners over the lands in question. Mercifully, We are not requiredto go into or consider all such questions in this case. Be that as it may,at the instance of the 4[th] respondent, who had disputed the right, titleand interest of the 2[nd] respondent in entering into an agreement fortransfer of its interests in favour of the petitioners had ultimatelyresulted in the entire matter being directed to be enquired into afterproviding the necessary opportunity to all parties concerned. Thepetitioners further assert that in pursuance thereof, Revenue DivisionalOfficer, Chevalla, Ranga Reddy District had conducted the enquiryand passed orders in their favour on 19.4.2001 in his proceedingsNo.G/266/98. Since an appeal is provided under Section 90 of theTelangana Tenancy Act, the orders passed by the Revenue DivisionalOfficer on 19.4.2001 were carried in appeal before the Joint Collector,Ranga Reddy District who passed orders on 7.10.2003 allowing theappeal preferred against the orders of the Revenue Divisional Officer,Chevalla dated 19.4.2001 and consequently he set aside the saidorders of the Revenue Divisional Officer. Since a revision is providedunder Section 91 of the Telangana Tenancy Act to this Court against any final orders passed in appeal, the accompanying batch ofrevisions have been preferred against the orders of the Joint Collectordated 07.10.2003.

It will be relevant at this stage to notice Section 2 of Act 28 of2002, which is the principal bone of contention and whoseconstitutional validity is challenged in the writ petition.

“2. In the Andhra Pradesh (Telangana Area) Tenancy andAgricultural Lands Act, 1950, in Section 102, after clause (f),the following shall be deemed always to have been added,namely :- “(g) to any agricultural land belonging to or given orendowed for the purpose of any charitable of Hindu religiousinstitution or endowment as defined by the provisions of theAndhra Pradesh Charitable and Hindu Religious Institutionsand Endowments Act.”

We have heard Sri K.Pratap Reddy, learned Senior Counselwho led the arguments and Sri S.Niranjan Reddy, on behalf of thepetitioners and the learned Advocate General for the State and SriA.Pulla Reddy and others for the contesting respondents.

The learned senior counsel would principally contend that theimpugned Act is violative of the fundamental rights guaranteed to thepetitioners under Articles-14 and 21 of the Constitution of India as it isex pacie arbitrary and unjust. He would also contend that crystallizedand vested rights of the petitioners are sought to be taken away by thefictional retrospectivity ascribed to the newly added Clause-(g) underSec.102 of the Telengana Tenancy Act. The learned senior counselalso contended that instead of seeking to promote the interests of thepeasants and tenants in compliance with the obligations arising underPart-IV of the Constitution, the amendment is seeking to stamp themout.

Per contra, the learned Advocate General would contend that thestatements of objects behind the impugned Act 28/2002 would

underscore the anxiety of the State to give full thrust to the provisioncontained in Sec.82(1) of the Andhra Pradesh Charitable & HinduReligious Institutions & Endowments Act, 1987 (henceforth referred toas “the Endowments Act”). The learned Advocate General wouldfurther contend that the impugned piece of legislation has neverattempted to stamp out vested rights of any individual and far therefromwhat is attempted is to retrieve the lands belonging to or endowed forpurpose of any charitable or Hindu religious institution or endowmentsfrom the stranglehold of the rich and influential segments of thesociety. The learned Advocate General had further tried to justify thefiction sought to be created by the clause which deemed as if Clause-(g) which has always been incorporated to Sec.102 of the TelanganaTenancy Act only with a view to protect such lands, the ownership ofwhich has not fructified in favour of the tenants in terms of Sec.38-E ofTelangana Tenancy Act and restore their tenure in favour of religiousor charitable endowments or institution is concerned.

Prior to enacting the present Endowments Act, the Governmentof Andhra Pradesh, through their G.O.Ms.No.729, Revenue(Endowments-III) Department, dated 30[th] April, 1984, have constituteda Committee, headed by a former Chief Justice of this Court, theprincipal term of reference of which is given as under: “A review of the present system of management of propertiesof Hindu Religious and Charitable Institutions, the need toprotect them from tenancy and other laws; and measures to betaken to ensure that the interests of the institutions areprotected.”

Accepting the report submitted by this Committee, severalmeasures have been taken and one of them has exclusively dealt withthe management of the agricultural lands belonging to Hindu religiouscharitable endowments and institutions. Thus, the Endowments Act of 1987 has been enacted and one of the principal objects and reasonsbehind the same is the State’s intention to secure termination of leasesheld by persons other than landless poor persons. Sub-Sec.(1) ofSec.82 of the Endowments Act is, therefore, declares that any lease ofagricultural lands belonging to or given or endowed for purpose of aninstitution or endowment subsisting as on the date of thecommencement of the Endowments Act, held by a person, who is nota landless poor person, stands cancelled, notwithstanding anything inany other law for the time being in force. The Endowments Act hasbeen brought into force with effect from 28.05.1987. As a result, allsuch leases of agricultural lands belonging to or endowed in favour ofthe Hindu religious charitable institutions and endowments stoodcancelled with effect from the said date. Several writ petitions came tobe instituted in this Court, challenging the validity of the Sec.82. Alearned single Judge as well as a Division Bench of this Court hadconsidered the above provision as unconstitutional. However, whenthe matter was carried in appeal, the Supreme Court had decided theissue in the case of State of A.P. v. Nallamilli Rami Reddi[[1]]andupheld the said provision. It is important, therefore, for us to noticehow the questions have been answered by the Supreme Court, asunder:

“Insofar as the Telangana Act is concerned, it exemptedfrom its operation imams held by charitable or religiousinstitution or endowment as well as service inam lands. Inamswere abolished in the Telangana area of the State in 1955 andthat process was completed in 1973. By the amendment Act of1985, all such inams have also been brought within thepurview of the Act and abolished and that resultant position isthat none of the charitable or religious institutions orendowments in the Telangana area are exempt from theoperation of Hyderabad Act 21 of 1950.

The Division Bench in reaching the conclusion that Section 82 is unconstitutional held that the two tenancy Acts in force inthe State of Andhra Pradesh are still applicable to theinstitutions covered by the Act and, therefore, the object of theenactment of Section 82 will not be fulfilled. The DivisionBench also noticed that there is no overriding effect given tothe Act. In effecting the agrarian reforms, the major programmeof the Government has been to protect the tenants by securingthem a permanent tenure of the land and freezing the rent orconferring a right upon them to purchase the land at a certainsum which is far below the market rate and the right of thelandlord to evict them would be severely restricted and that tooby initiating proceedings before Special Tribunal. Under theTelangana Act, the rent does not exceed five times the landrevenue and in case of wetlands irrigated by wells it is onlythree times the land revenue, while in case of dry lands it isfour times the land revenue. Though a maximum rent hadbeen prescribed undr the Andhra Pradesh Act, the same willnot be applicable in view of Section 18(2) of the Act to whichwe have already adverted. The Andhra Pradesh Tenancy Acthad granted perpetuity insofar as leases were concerned. TheDivision Bench was impressed by the fact that Section 82 isthe first attempt to undo the right of tenants in respect ofagricultural lands held by institutions or endowments governedby the Act. The learned Judges stated that protecting the rightof tenants is equally important just as protecting the interest ofthe institutions or the endowments. Cancellation of thetenancy, by itself, will not achieve the ends. First, the HighCourt considered whether augmentation of income is possiblein view of the rents having been frozen which were obtainedon the date of the commencement of theAndhra PradeshTenancy Act, 1974. They felt tht it is not possible to augmentthe income of the institutions at all. Except referring to theenactments arising under the Tenancy Acts, there is nomaterial before the High Court to support the view as to whatare the rents payable at present and what would be the rentthat becomes payable after the leases are put to an end interms of Section 82 of the Act and fresh tenancies commence ifthe lands are leased to others as provided under theprovisions of the Act. When the material is not clear before theCourt, the Court cannot hazard a guess as to the manner inwhich the enactment would operate. How the Tenancy Actswill have effect upon the new tenancies would be a matter tobe worked out appropriately. Therefore, at the stage ofenacting Section 82 or examining its constitutional validity, the

High Court could not have proceeded to hold that unless theoperation of the Tenancy Acts are excluded the objectives ofthe enactment cannot be achieved. It is possible under thenew Rules to be framed that the Government may proceed togrant leases or licences only to small or marginal holders oflands as may be found by them suitable to cultivate the landthereby freeing the lands from the grip of rich and powerfulpersons. Therefore, at this stage, again to state that thepurpose of the enactment of freeing the lands from the grip ofrich and powerful persons cannot be achieved, is not correct. The learned Judges have felt that it is possible for the oldtenants themselves to get back the possession of the lands inquestion. But, that is as good a guess as against otherpossibilities, which we have suggested. Therefore, that willnot be a permissible ground to strike down the law. Whereverpossible, some of these lands which are not within themanageable limits of the religious institutions concerned maybe sold in the manner prescribed in Section 80 of the Act ormay be leased out by them, as the case may be, like a prudentowner or manager of the property. The High Court proceededto consider further that cultivation of these lands by theseinstitutions would not be feasible. We fail to understand as tohow it can be stated so. It is certainly possible, if theinstitutions hold large holdings of land, to have a department inthe institutions to get the lands cultivated and to expect that thevery same incidence and consequences will follow as wereapplicable earlier prior to coming into force of Section 82 of theAct does not, therefore, appeal to us. Whether a Tenancy Actshould be applicable to a religious institution or should be keptout of it is not a matter for the court to decide. How far aTenancy Act is applicable to a religious institution and to whatextent it should be limited is a matter for the legislature todecide. But such a policy should not be irrational. We do notthink on that basis, we can interfere with the validity of the Act.

It is plain that religious institutions fall into a separate classand lands held by them have a special character in respect ofwhich tenancies had been created and these tenancies aresought to be put to an end to for resumption of lands for bettermanagement thereof. It is clear that the tenants under thereligious institutions form a special class by themselves andsuch classification is made, so far as tenants are concerned, toachieve the object of protecting the interests of the religiousinstitutions. Therefore, we do not think, any of the principleswhich result in hostile discrimination would be applicable to the present case.”

In unmistakable terms, it has been held by the Supreme Court inthe above case that charitable or religious institutions or endowmentsform a separate class by themselves and that the tenants ofagricultural lands also form consequently a separate class, therefore,such tenants can be treated differently from the others.

It is also important for us at this stage to notice some othercontentions canvassed before the Supreme Court in the above case.

In paragraph-19 of the said judgment, they are noted as under:

“The learned counsel also contended that cancellation ofleases of all tenancies is arbitrary inasmuch as the protectiongiven under the Andhra Act and the Telangana Act beingdifferent, the tenants could not have been classed into onecategory. He next contended that tenancies are inheritableand in such a situation, without paying compensation, couldnot have deprived them the rights to the same. He alsosubmitted that Section 38-E of the Telangana Act provides forconferment of ownership rights to tenants in question and thisaspect has not been considered by the High Court. He furthercontended that the livelihood of the tenants being deprived, theprovision is violative of Article 21 of the Constitution.”

These contentions have been dealt with by the Supreme Court in thefollowing manner in paragraphs-20 and 21 of the aforementionedjudgment:

”We need not delve deep into the operation of Section 80 ofthe Act and whether it is applicable to the lands in question ornot and as to the manner in which the lands would be dealtwith by the charitable or religious institution or endowment onresumption thereof after cancellation of the leases. It ispossible to read that Section 80 of the Act is an independentprovision though falling under Chapter X with the heading“Alienation of any immovable property and resumption of inamlands” and contention advanced on behalf of the petitioners isthat there is a discernible difference between the applicabilityof the Act which is for agricultural lands and other propertiesand Section 80 of the Act which is applicable to only other properties. Prima facie, Section 80 of the Act does not appearto put such a restriction. The tenants covered either by theAndhra Act or the Telangana Act may fall into two differentcategories but insofar as their holdings with reference to theinstitutions are concerned, they fall into the same category. Therefore, the aspect that they had different kinds of rightsarising under different enactments and make them a distinctclass in the present circumstances will not be of muchrelevance. Therefore, this contention also does not holdwater. The question of tenancy being inheritable or not wouldarise if the leses are maintained but if the leases arethemselves cancelled, such a question will not arise at all.Conferment of ownership under Section 38-E of the TelanganaAct has no relevance to the present case at all inasmuch as ifthe proper procedure has been adopted and the proceedingshave reached the logical end, the tenant would become theowner of the land. Therefore, Section 82 would not beattracted to such a situation but if the proceedings have notbeen terminated and a tenancy continues to be in force,Section 82 of the Act would be attracted to such a case. Thiscontention based on Section 38-E of the Telangana Act isuntenable.

The arguments relating to livelihood also have no legs tostand. The object of the Act is to resume lands in the hands ofexisting tenants for better management. After resumption,some tenants may be dependent on the land leased to them bythe charitable or religious institution or endowment but itcannot be said that that was the only land held by them andthat that was the only avocation carried on by them, theobjectives of the cancellation of the land is not to depriveanyone of his livelihood but, on the other hand, it is for thebetter management of the properties belonging to thecharitable or religious institution or endowment. The incidentthat the same may result in hardship to some of the tenants willnot be a ground to say that it deprives them of their livelihood.”

In view of the above judgment of the Supreme Court in State ofA.P. v. Nallamilli Rami Reddi(1 supra), it emerges that even withoutthe introduction of Clause-(g) to Sec.102 of Telangana Tenancy Act,the leasehold rights of agricultural lands belonging to and endowed toHindu religious charitable institutions and endowments stood

cancelled by operation of law from the date the Endowments Act hasbeen brought into force i.e. on 28.05.1987. Therefore, the contentionof the learned Advocate General that the introduction of Clause-(g) toSec.102 of the Telangana Tenancy Act is only to ensure that the fullimpact of Sec.82 of the Endowments Act is realized is well merited. The learned Advocate General is right in pointing out that prior to theimpugned enactment, if any rights of a tenant have undergone aclassical metamorphosis in his status from that of a ‘tenant’ to that of a‘landholder’, the present Act or for that matter, even Sec.82 of theEndowments Act will have no applicability to such a situation. Thepresent Act as well as Sec.82 of the Endowments Act only deal withthe rights of such tenants which have not been crystallized, vestingthem with the ownership right of the land. When once such atransformation takes place, the tenant gets obliterated. The originallandholder, namely the religious institution or charitable endowmentno longer be liable to be treated as a landholder, and correspondingly,the former tenant of such institution can no longer be treated as asubsisting tenant, as he has become the landholder himself.

The learned senior counsel has pressed into service the oftquoted judgments of the Supreme Court in Royappa vs. Union ofIndia[[2]],Menaka Gandhi v. Union of India[[3]], Ajay Hasia vs. KhalidMujib Sehravadi and others[[4]],M/s.Shanistar Builders vs.Narayana and others[[5]]and Delhi Transportation…………[[6]]forpurposes of demonstrating that the classification and inbuiltarbitrariness attempted by the impugned legislation falls foul of Article-14. We are afraid that such a contention is no longer available afterthe Supreme Court considered the same and repealed it in State ofA.P. v. Nallamilli Rami Reddi (1 supra).

But, however, one of the contentions canvassed deals with the nature of dichotomy brought about even amongst the same class oftenants of agricultural lands. One set of the Tenants are those whoserights are crystallized and decided and the other set are those whoserights have not been so crystallized. We are afraid that such acontention need not detail us any further in view of what has beenstated by a Constitution Bench in the case of Anant Mills Co.Ltd. v.

State of Gujarat[[7]]as under:

“Apart from the above, we are of the opinion thatclassification by treating decided cases as belonging to onecategory and pending cases as belonging to another categoryis reasonable and not per se offensive to Article 14.

It is well-established that Article 14 forbids class legislationbut does not forbid classification. Permissible classificationmust be founded on an intelligible differentia whichdistinguishes persons or things that are grouped together fromothers left out of the group, and the differentia must have arational relation to the object sought to be achieved by thestatute in question. In permissible classification mathematicalnicety and perfect equality are not required. Similarity, notidentity of treatment, is enough. If there is equality anduniformity within each group, the law will not be condemned asdiscriminative, though due to some fortuitous circumstancesarising out of a peculiar situation some included in a class getan advantage over others, so long as they are not singled outfor special treatment. Taxation law is not an exception to thisdoctrine. But, in the application of the principles, the courts, inview of the inherent complexity of fiscal adjustment of diverseelements, permit a larger discretion to the Legislature in thematter of classification so long as it adheres to the fundamentalprinciples underlying the said doctrine. The power of theLegislature to classify is of wide range and flexibility so tht itcan adjust its system of taxation in all proper and reasonableways (see Ram Krishna Dalmia v. Justice S.R.Tendolkar(1959 SCR 279) a n d Khandige Sham Bhat v.AgriculturalIncome-tax Officer, Kasaragod( (1963) 3 SCR 809). Keepingthe above principles in view, we find no violation of Article 14in treating pending cases as a class different from decidedcases. It cannot be disputed that so far as the pending casescovered by clause (i) are concerned, they have been all treated alike. In the case of Rao Shiv Bahadur Singh v. Stateof V.P. (1953 SCR 1188, 1197) this Court observed:

“But there is no reason why pending proceedings cannot betreated by the Legislature as a class by themselves having regardto the exigencies of the situation which such pendency itself callsfor. There can arise no question as to such a saving provisioninfringing Article 14 so long as no scope is left for any furtherdiscrimination inter se as between persons affected by suchpending matters.”

In Hathising Manufacturing Co.Ltd. v. Union of India ((1960) 3SCR 528) the constitutional validity of Section 25FFF of theIndustrial Disputes Act, 1947 was assailed. That section madea distinction between employers who had closed theirundertakings on or before November 28, 1956 and those whoclosed their undertakings after that date. It was urged that theabove provision was violative of Article 14 of the Constitution. The above contention was rejected and it was observed:

“When Parliament enacts a law imposing a liability as flowingfrom certain transactions prospectively, it evidently makes adistinction between those transactions which are covered by the Actand those which are not covered by the Act, because they werecompleted before the date on which the Act was enacted. Thisdifferentiation, however, does not amount to discrimination which isliable to be struck down under Article 14. The power of theLegislature to impose civil liability in respect of transactionscompleted even before the date on which the Act is enacted doesnot appear to be restricted. If, as is conceded—and in our judgmentrightly—by a statute imposing civil liability in respect of post-enactment transactions, no discrimination is practiced, by a statutewhich imposes liability in respect of transactions which have takenplace after a date fixed by the statute, but before its enactment, itcannot be said that discrimination is practiced.”

In the case of Jain Bros. V. Union of India ((1970) 3 SCR 253)it was urged on behalf of the appellants that clause (g) ofSection 297(2) of the Income-tax Act, 1961 was violative ofArticle 14 inasmuch as in the matter of imposition of penalty, itdiscriminated between two sets of asessees with reference toa particular date, namely, those whose assessment had beencompleted before first day of April, 1962 and others whoseassessment was completed on or after that date. Whileupholding the validity of the above provision, this Courtobserved:

“Now the Act of 1961 came into force on first April, 1962. Itrepealed the prior Act of 1922. Whenever a prior enactment isrepealed and new provisions are enacted the Legislature invariablylays down under which enactment pending proceedings shall becontinued and concluded. Section 6 of the General Clauses Act,1897, deals with the effect of repeal of an enactment and itsprovisions apply unless a different intention appears in the statute. Itis for the Legislature to decide from which date a particular lawshould come into operation. It is not disputed that no reason hasbeen suggested why pending proceedings cannot be treated by theLegislature as a class for the purpose of Article 14. The date firstApril, 1962 which has been selected by the Legislature for thepurpose of clauses (f) and (g) of Section 297(2) cannot becharacterized as arbitrary or fanciful.

We would, therefore, hold that clause (i) of Section 2(1A) isconstitutionally valid and not violative of Article 14 in respect ofall the years to which it has been made applicable.”

Learned Senior Counsel has placed strong reliance upon thejudgment of the Constitution Bench rendered in Acharya MaharajshriNarendra Prasadji Anandprasadji Maha aj v. The State ofGujarat[[8]]and contended that the impugned legislation is seeking tostamp out the interests of the tenants and peasants and therefore it iscontrary to the agrarian reforms, which required the State to promotethem and the impugned enactment is therefore liable to be struck downon that score. The learned counsel has pointed out the following fromthe above judgment :

“….The question, therefore, ariseswhether the right under Article 26©is an absolute and unqualified rightto the extent that no agrarian reformcan tough upon the lands owned bythe religious denominations. Norights is an organized society can beabsolute. Enjoyment of one’s rightsmust be consistent with theenjoyment of rights also by others. Where in a free play of social forcesit is not possible to bring about a

voluntary harmony, the State has tostep in to set right the imbalancebetween competing interests andthere the Directive Principles ofState Policy, although notenforceable in courts, have adefinite and positive role introducingan obligation upon the State underArticle 37 in making laws to regulatethe conduct of men and their affairs. In doing so a distinction will have tobe made between those laws whichdirectly infringe the freedom ofreligion and others, althoughindirectly, affecting some secularactivities or religious institutions orbodies. For example if a religiousinstitution owns large areas of landfar exceeding the ceiling underrelevant laws and indulges inactivities detrimental to the interestsof the agricultural tenants, who areat their mercy, freedom of religion orfreedom to manage religious affairscannot be pleaded as a shieldagainst regulatory remedialmeasures adopted by the State toput a stop to exploitation and unrestin other quarters in the interest ofgeneral social welfare. The core ofreligion is not interfered with inproviding for amenities for suffers ofany kind….”

It is well to remember that the Endowment Act and in particularSection 82 thereof attempted to carve out a special place with regardto the agricultural land held by Hindu Religious and CharitableEndowments or Institutions. It is with reference to those institutions,the rights of tenancy of agricultural lands are sought to be cancelled. When once the said scheme has received the seal of approval for itsvalidity at the hands of the Supreme Court, it is no longer available for one to construe the same as stamping out the rights of the whole classof agricultural tenants or peasants. It is appropriate for us to notice thatthe Hindu Religious Charitable Endowment Institutions are said toown approximately 3.2 lakhs of acres of agricultural land in our State. The present impugned legislation is therefore confined in its operationin dealing with that extent of the agricultural lands as a whole, inwhichever parts of the State they lie. The rights of tenants of the rest ofthe agricultural lands, which are in vast extents, are not touched orhindered. They are all liable to receive the protection intended by theAndhra Tenancy Act, and the Telangana Tenancy Act holding the fieldin respective regions.

However, one of the important contentions canvassed is withregard to the retrospectivity of the impugned enactment, which createda fiction by deeming the newly added clause (g) to have been inexistence in Section 102 of the Telangana Tenacy Act from its veryinception. Section 102 of the Telangana Tenancy Act lists out thelands to which the said Act shall not apply. It is worthy to notice thejurisprudential principles with regard to retrospective operation ofenactments.

Francis Bennion in his “Statutory Interpretation, Second Editionat page 214 discussed retrospective operation of an Act as follows :

“The essential idea of legal system is that current law shouldgovern current activities. Elsewhere in this work a particularAct is likened to a floodlight switched on or off, and the generalbody of law to the circumambient air. Clumsy though theseimages are, they show the inappropriateness of theretrospective laws. If we do something today, we feel that thelaw applying to it should be the law in force today, nottomorrow’s backward adjustment of it. Such, we believe is thenature of law. Dislike of ex post facto law is inshrined in theUnited States Constitution and in the Constitution of manyAmerican States, which forbid it. The true principle is that lexprospicit non respicit (law books forward not back). As Justice

Willes said, retrospective legislation is `contrary to the generalprinciple that legislation by which the conduct of mankind is tobe regulated ought, when introduced for the first time, to dealwith future acts, and ought not to change the character of pasttransactions carried on upon the faith of the then existing law.”

Maxwell in his Interpretation of Statutes stated the following:

“It is the fundamental rule of English Law that no statute shallbe construed to have retrospective operation unless such aconstruction appears very clearly in terms of the Act, or arisesby necessary and distinct implication.”

Where, on a weighing of factors, it seems that someretrospective effect was intended the general presumptionagainst retrospectivity indicates that this should be kept to asnarrow a compass as will accord with the legislative.

It is now well settled that where a statutory provision whichis not expressly retrospective by the legislature seeks to effectvested rights, such provisions cannot be said to haveretrospective effect by necessary implication. The Court notedwith approval the observation of Maxwell on the Interpretationof Statute “If the enactment is expressed in a language whichis fairly capable of either interpretation, it ought to be construedprospective only.”

The golden rule of interpretation evolved by the Supreme Courtin Garikapati Veeraya’s case[[9]]is that, in the absence of anything inthe enactment to show that it is to have retrospective operation, itcannot be so construed as to have the effect of altering the lawapplicable to a claim in litigation at the time when the Act was passed.

The Parliament and the State Legislatures have plenarypowers of legislation within the fields assigned to them under the VIISchedule of our Constitution. Subject to certain constitutionalrestrictions, with particular reference to those contained in Part III of ourConstitution and the judicially recognized constraints, the Legislatureis as much entitled to legislate prospectively as well as retrospectively. Hence, it will be inaccurate to deduce that theimpugned legislation could not have been made having retrospectiveapplicability. If it had attempted to take away any of the vested rightsor crystallized rights of the petitioners, different considerations wouldarise. Learned Advocate General has specifically drawn our attentionto the counter affidavit filed on behalf of the 1[st] respondent – State bythe Principal Secretary to the Government in paragraph 11, it has beenstated thus:

“11. I further submit that it is clearfrom the narration of variousproceedings in the affidavit underreply, the petitioners have notacquired any ownership rights underSection 38-E of Telangana Act andthey have only been litigating for thesame. Hence, no vested rights ofthe petitioners are taken away. Whatever rights they assumed,under the Act, that they possess areonly inchoate rights. The petitionerscontinued to be the tenants of thetrust as on the date of Act 30 of1987. They have not becomeowners of the lands. Hence, theircontention that by virtue of deemingprovision in Section 2 of Act 28 of2002, their vested rights are takenaway is incorrect and untenable inlaw. The amendments introducedthrough Acts 27 and 28 of 2002 willnot apply to a person who hasbecome a owner by virtue ofoperation of Tenancy laws. What issought to be put an end to is theexisting tenancy, which under theTenancy Laws of Telangana Areawould have fructified into ownership,which event has not taken place inthe present case. Hence, theprovisions are prospective in effect and apply to all existing leases onlyincluding that of the petitioners.”

Thus the apprehensions entertained that crystallized and vested rightsare being stamped out by the impugned piece of legislation are put torest. As is noticed from the pleadings, the rights of the petitioners havenot fructified by way of alteration of their status from “tenant” to that of“land holders. If such a right had already accrued to them, they nolonger get attracted by the sweep of Section 82 of the Endowments Actand consequently the question of cancellation of a non-existenttenancy right insofar as they are concerned does not arise. The rightsof the petitioners have not yet been crystallized. They are still litigatingin the process. Therefore, the contention by the learned AdvocateGeneral that they have only inchoate rights deserves acceptance.

The learned Senior Counsel Sri Pratap Reddy, has alsocontended that if the impugned piece of legislation is to be held valid,the petitioners will still have their right and title over the land inquestion by virtue of their prescriptive right due to their open andhostile adverse possession vis-à-vis the true owner of the land. It isnot necessary for us to deal with what consequences can follow if thepresent piece of legislation is held to be valid. The petitioners wouldbe entitled to the protection of law, if any, independent of the impugnedpiece of legislation. We need not speculate in that regard. We areonly concerned to examine as to whether the impugned legislation isconstitutionally valid or not. The consequences that are likely to followtherefrom, as pointed out by the learned Senior Counsel will have nobearing on the constitutional validity of Act No.28 of 2002.

It is since stated at the Bar that the accompanying revisions willabide by the result in the writ petition, as, if the tenancy rights of HinduReligious and Charitable Endowments or Institutions once stand cancelled by operation of law, there would not be any necessity toexamine the rights flowing from any such past tenancy. Hence, wehave not taken up for examination of merits of the accompanyingrevisions preferred under Section 91 of the Telangana Tenancy Actagainst the orders passed by the Joint Collector.

In fact, when the validity of Section-3 of this impugned Act 28 of2002 has been challenged, which incorporated a similar provision inthe Andhra Tenancy Act, the issue was examined in detail by aDivision Bench of this Court in Saithana Nageswara Rao v. State ofA.P.[[10]](to which one of us Bilal Nazki,J as he then was, is amember) and the Division Bench has concluded the issue holding asunder :

“24…… Since the petitioners haveno legal right to continue as tenants,by virtue of operation of Section 82of the Endowments Act, 1987, therecannot be any direction either totreat them as tenants or to allowthem to continue as such. In thelight of the validation of Section 82of the Endowments Act, 1987, theframers, with a view to rule out anypossibility of inconsistency with theprovisions of the Tenancy Act,brought Act No. 28 of 2002 i.e., A.P.Tenancy Laws (Amendment) Act,2002. It is in consonance with thespirit of Section 82. Even if theamendment to Tenancy Act is notgiven any retrospective effect, it isnot going to affect the validity ofSection 82. We therefore hold thatthe provisions of the amended Actsare not arbitrary and unreasonable. Therefore, they are not liable to bestruck down…..”

For all the aforementioned reasons, we do not find any merit inthe writ petition and consequently the writ petition and theaccompanying revisions stand dismissed. No costs.

_______________________

BILAL NAZKI, ACJ

Dated:31.12.2007Knk/Dsr

___________________________________

NOOTY RAMAMOHANA RAO, J

HON’BLE THE ACTING CHIEF JUSTICE BILAL NAZKI

AND

HON’BLE MR JUSTICE NOOTY RAMAMOHANA RAO

WRIT PETITION No.23076 of 2003

&

CRP Nos.5616 of 2003, 5397 of 2003, 5938 of 2003,5939 of 2003, 6297 of 2003, 6312 of 2003, 2952 of 2004,2953 of 2004, 2954 of 2004, 2955 of 2004, 2956 of 2004,2957 of 2004, 2958 of 2004, 2977 of 2004COMMON JUDGMENT

(per the Hon’ble Sri Justice Nooty Ramamohana Rao)

Knk/Dsr

Dated December, 2007

[1] (2001) 7 Supreme Court Cases 708 (2001) 7 Supreme Court Cases 708

[2] AIR 1974 SC 555

[3] AIR 1978 SC 597

[4] AIR 1981 SC 487

[5] AIR 1990 SC 630

[6] AIR 1991 SC 101

[7](1975) 2 Supreme Court Cases 175(1975) 2 Supreme Court Cases 175

[8]AIR 1974 SC 2098

[9]AIR 1957 SC 540

[10]2003(5) ALT 24 (DB)2003(5) ALT 24 (DB)