Andhra Pradesh High Court - Amravati
M. Murali Krishna Goud vs The State Of Andhra Pradesh on 16 April, 2020
Author: U. Durga Prasad Rao
Bench: U. Durga Prasad Rao
HON'BLE SRI JUSTICE U. DURGA PRASAD RAO
Writ Petition No.14825 of 2019
ORDER:
The petitioners pray for a writ of mandamus declaring the action of respondents in not shifting the office of Sub-Registrar, Dhone, Kurnool District from the old and dilapidated building to new building constructed in the plots gifted by the petitioners in S.No.321 and on the other hand proposing to use the new building for another purpose other than the one for which the plots were gifted by the petitioners, as illegal, arbitrary, contrary to law and violative of Article 300A of the Constitution of India and for a consequential direction to respondents to shift the Office of Sub-Registrar to the new building immediately without using the same for any other purpose.
2. The case of petitioners succinctly is thus:
(a) The petitioners are the brothers and absolute owners of the land in an extent of Ac.2.20 cents out of total extent of Ac.3.89 cents in S.No.321 situated in Ward No.9 of Dhone Municipality in Kurnool District having purchased the same under a registered document No.3431/2010 dated 28.07.2010. The Office of Sub-Registrar, Dhone is presently situated in a dilapidated building which is more than 110 years old and causing much inconvenience to general public. In fact, the adjoining building in which Sub-treasury office is situated is also in a dilapidated condition and a part of the building was already collapsed.2
(b) The petitioners are in active public life and followers of Telugu Desam Party. The general public who used to attend Sub-
Registrar Office were often representing the petitioners and other leaders of Dhone about the dilapidated condition of Sub-Registrar office building and the inconvenience caused to the public. Hence, the petitioners intended to gift a plot from out of their property in S.No.321 for construction and location of Sub-Registrar office in memory of their late father M.Narayana Goud and in the larger interest of public. Accordingly, at first they executed registered Gift Deed dated 24.03.2017 in favour of his Excellency the Governor of State of Andhra Pradesh represented by 4th respondent in respect of 486.66 square yards in S.No.321 worth Rs.14,60,000/- for construction of a new building for the office of Sub-Registrar, Dhone. The 4th respondent took possession of the plot. In addition to above, the petitioners also gifted another extent of 313.33 square yards of plot worth Rs.9,40,000/- situated to the East of the plot which was already gifted to the Registration Department and the petitioners executed another registered Gift Deed dated 05.05.2017. The said plot was also taken possession by the Registration Department. Thereafter, the Government of Andhra Pradesh sanctioned and released necessary funds for construction of new building and accordingly, new building was constructed in the plots gifted by the petitioners. The new building was inaugurated by the then Deputy Chief Minister and Revenue Minister on 23.02.2019. Further, the District Registrar, Stamps & Registration, Kurnool addressed a letter 3 dated 06.05.2019 to the Commissioner and Inspector General of Registration & Stamps informing that the authorities of A.P.M.S.I.D.C. Kurnool Division have given work completion certificate and in the said letter permission was sought for to shift the office of Sub-Registrar from old building to the new building. However, there could be no progress in view of general elections. Thereafter, in the elections held to Legislative Assembly of A.P., YSR CP Party was voted to power and no further progress could be made in the matter and authorities have also not taken any steps to shift the office from the old building to the new building on the ground that they did not want that the petitioners who belong to Telugu Desam Party should get any credit for the work done during the tenure of earlier Government. Of late, the petitioners through the news published in the daily newspaper came to know that the newly constructed building is going to be used for the purpose of establishing a skill development centre. The petitioners have voluntarily gifted the plots for the specific purpose of construction of building to locate the office of the Sub-Registrar on the assurance given by the respondents. Therefore, the respondents are now stopped from deviating from the assurance and using the building for another purpose.
Hence, the writ petition.
3. The 6th respondent filed counter inter alia contending that the petitioners made a representation to Sub-Registrar, Dhone on 4 23.11.2015 that they wish to gift their valuable land of Ac.0.10 cents in S.No.321 of Dhone for the purpose of constructing suitable building for Sub-Registrar's office for the benefit of public and to pay homage to their late father. They opined that since the said site is nearer to rural police station and also that a new municipal office building was going to be constructed nearer to the proposed site, it would be convenient and also secure for the office records.
(b) The Sub-Registrar submitted his remarks to the District Registrar, Kurnool on 24.10.2015 and on 11.11.2015, as per which the petitioners have purchased an immovable property in an extent of Ac.1.19 cents in S.No.321 of Dhone municipality from Sri M.Maddiraju vide document No.3431/2010. The said site is nearer to the newly laid road running from Dhone to Venkatnayanapalle within the municipal limits and it is exactly opposite to Government ITI building. So far as the existing building of Sub-Registrar office is concerned, it is a Government building in an extent of Ac.0.03 cents i.e., 1350 square feet which was constructed during 1915 and it is in a dilapidated condition. It is not sufficient to hold the existing records and it requires additional space to sustain. The Sub-Registrar opined that it would be better to shift from the present building to another suitable building to meet the public requirements. Then the District Registrar, Kurnool vide letter No.G3/986/2015 dated 21.12.2015 and 05.02.2016 submitted factual report to the Director and Inspector 5 General of Registration & Stamps, Andhra Pradesh and appraised the matter and sought for further instructions.
4. Thereafter, the Government vide G.O.Ms.No.518, Revenue (Regn.I) Dept. dated 29.12.2016 have accorded administrative sanction for construction of certain Sub-Registrars and District Registrar office building in the State for the financial year 2016-2017 with a financial implication of Rs.14.12 lakhs in which Sub-Registrar Office, Dhone was also included. The Government entrusted the work of construction of biddings to Chief Engineer, A.P. Health Medical, Housing and Infrastructure Development Corporation, Koti, Hyderabad. The Director & Inspector General of Registration & Stamps vide Lr.No.G1/2380/2016 dated 20.01.2017 had accorded administrative sanction to Chief Engineer, APMSIDC to construct Type-III Ground plus one building for Sub-Registrar Office, Dhone among other certain works. The fund required was Rs.168.00 lakhs. Accordingly, the District Registrar, Kurnool vide his proceedings No.G3/986/2015 dated 17.03.2017 issued orders to the Sub-Registrar and permitted to handover the land of Ac.0.10 cents through Gift Deed from the parties in favour of the Government of Andhra Pradesh. Two Gift Deeds were executed by the petitioners. The total extent donated was 799.99 square yards (486.66 + 313.33).
5. The District Registrar, Kurnool vide Lr.No.G3/986/2015 dated 21.03.2017 requested Executive Engineer, APMSIDC to take up 6 construction and accordingly, construction was started and completed and communicated vide work completion certificate Lr.No.EE/ APMSIDC/ANL to Sub-Registrar Office dated 20.04.2019. The said fact was in turn communicated to Commissioner and Inspector General of Registration & Stamps, Vijayawada and permission was sought to shift from old building to new building. The further orders from the Director & Inspector General of Registration & Stamps are being awaited in this regard to take possession of the new building from Executive Engineer.
6. While the matter stood thus, the District Collector has approved the note orders on 24.08.2019 and permitted the Assistant Director, National Academy of Constructions, Kurnool to request the District Registrar, Kurnool to handover possession or grant permission to run the skill development centre in the new building constructed for Sub- Registrar Office in upstairs for a period of one year temporarily. Accordingly, the Assistant Director, NAC, vide his letter No.10/2019- 2 dated 05.09.2019 has requested the District Registrar, Kurnool to handover possession of 1st floor of Sub-Registrar Office building temporarily for a period of one year to run the skill development centre by NAC on rent free basis. The District Registrar, Kurnool vide Memo No.G3/986/2015 dated 09.09.2019 instructed the Sub- Registrar, Dhone to handover 1st floor of new building temporarily to NAC.
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7. It is further submitted that the act of petitioners in donating their self-acquired land for the Government purpose to run an office for wider public use is well appreciated and the department is grateful to them. The Government has incurred huge expenditure of Rs.168.00 lakhs and constructed a suitable building with ground and first floor for office use. Therefore the said piece of land which was donated has become the sole property of the Government and the building constructed on it also belongs to the Government. Hence, as per the Registration Act and Transfer of Property Act when the individual donates his immoveable property to the Government for public use and got registered in favour of the State Government, the right, possession and enjoyment over the said piece of property would transfer to the State Government and the donor has no right or capacity to any manner to insist upon the State Government to act in furtherance of his whims and fancies. Therefore, the Collector, Kurnool on behalf of the Government and its policy has directed the District Registrar, Kurnool to allow the first floor in the newly constructed Sub-Registrar Office building for running skill development centre by NAC for a period of one year on rent free basis. There is no violation of any governing rules. The building was initially constructed for the purpose of functioning of Sub-Registrar's Office, Dhone, District Registrar's Office, Kurnool and District Registrar's market value and audit, Kurnool as a Type-III building and hence, ground and first floor were constructed. However, as of now the first floor model like Type-I building would be sufficient for 8 Sub-Registrar's Office. Since the move to the new premises was not taken up by the Department till now, hence, on temporary basis the first floor can be allotted to the skill development centre. It is to submit that the ground floor of building is sufficient to run the Sub- Registrar's Office. It is to submit that as of now permission is not still accorded by the Commissioner & Inspector General of Registration & Stamps to occupy the new building for Sub-Registrar, Dhone. The municipality office, Dhone which was proposed to be shifted nearer to the building was not constructed and only rural police station is constructed and it is nearer to the new building. Thus it is prayed to dismiss the writ petition.
8. Heard Sri Virupaksha Dattatreya Gouda, learned counsel for petitioners, and learned Government Pleader for Stamps & Registration representing the respondents.
9. Learned counsel for the petitioners would argue that the charity of the petitioners was not an unconditional or unbounded, but it was a conditional gift made in commemoration of their late father for the benefit, exclusively of travailing public, treading into the century old weary and dilapidated Sub-Registrar's office for their transactions and therefore, the respondents have no right or power to profligate the avowed object of the endowment. Taking the Court through the two Gift Deeds dated 24.03.2017 and 05.05.2017, learned counsel would strenuously argue that the gifts were made for a specific object of construction of Sub-Registrar Office but not for any other purpose and 9 in the second gift dated 05.05.2017 it was specifically mentioned that the Registration Department shall construct Type-III Ground + 1 Registration Office in the schedule site, failing which the petitioners can annul the Gift Deeds. Learned counsel would further submit that though a building was constructed as proposed, however, the respondents have not so far shifted the Sub-Registrar's office from the old building to newly constructed building on the flimsy ground that the Commissioner and Inspector General of Registration & Stamps, A.P., Vijayawada has not so far accorded permission to shift the office and in the meanwhile, as per the instructions of the District Collector, Kurnool, the first floor of the building is proposed to be given to NAC for conducting Skill Development Centre for one year. He would argue that such an attempt on the part of the respondents is nothing but repudiation of their earlier promise to establish Sub-Registrar's office. He would further argue that a conditional gift is in the nature of trust and the donee will be a mere custodian or a trustee to fulfil the object of the trust and he can accept the endowment only upon satisfying the condition otherwise the gift shall fail. On this legal aspect, he proponed State of U.P. v. Bansi Dhar1. He would fairly submit that he is not seeking for annulment of the gifts, but only prays for a direction to the respondents to shift the Sub-Registrar's Office, Dhone from the old building to the newly constructed building. Refuting the allegation in the counter that the benevolence of the petitioners is only in the nature of a general charity or gift and as soon 1 AIR 1974 SC 1084 = MANU/SC/0429/1973 10 as the Gift Deeds were executed the property vested in the Government and therefore, it can put in use for any public purpose as it considers apposite, learned counsel would vehemently argue that the gift was never intended to be a general charity, but a conditional one and therefore, the respondent authorities cannot use the building for any purpose other than the one for which gifts were made.
10. Rebutting the above arguments, learned Government Pleader while admitting that the gifts were benevolently made by the petitioners and respondent authorities were commending their charity, however, would submit that the gifts were made predominantly for public purpose and construction of Sub-Registrar's office is a secondary one and therefore, the gifts shall be treated as unshackled with condition and the Government having constructed the building, fulfilled the object of the gift to the extent possible and now because, the ground floor is sufficient for establishing the Sub-Registrar's Office and as no permission has been accorded by the Commissioner and Inspector General of Registration & Stamps so far for shifting of the office, a Skill Development Centre is proposed to be established in the first floor of the building to be conducted by the NAC. Learned Government Pleader would vehemently argue that since the general purpose of the gift is for public use and the same is going to be fulfilled if a Skill Development Centre is established in a part of the subject building, the petitioners cannot harp of any violation. He thus prayed to dismiss the writ petition.
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11. The point for consideration is whether the gifts executed by the petitioners in this case depict a general charitable intention or a specific and conditional endowment?"
12. POINT: There is, an easily discernable distinction between a general charitable gift and a conditional gift. In the former, the charity is for the general purpose without therebeing any conditions or sanctions. The prime object of the donor is to show benevolence towards public in general. Whereas in the latter, the gift will be wrapped with condition precedent or subsequent. In such a case, the gift can be enjoyed only after fulfilment of such condition.
13. In the realm of gifts for general charitable purpose, we will come across an important legal doctrine called cy pres. Its meaning is, "as near as possible". This doctrine applies in the cases when a testator showed a general charitable intention, but the object of charity turned out to be impracticable or when there was surplus money after the trust had been performed. In such situations the Court may direct to apply whole fund or the surplus as the case may be to another charity as nearly as the testator's intention. For instance, a person makes a will that after his death the assets left over by him shall be used by creating a trust for eradication of a particular disease which was prevailing by the time of execution of will. However, on the date of his death and when the will comes into operation if that disease became already extinct, the trustees may apply to the Court seeking direction that the legacy may be used for any other purpose which is 12 nearer to the original intention of the testator and the Court, having regard to the fact that the object of the trust was already fulfilled in its natural course, may apply the doctrine of cy pres and treat the general intention of the testator as to safeguard the health of the public, direct the trustees to use the funds for any other benevolent purpose, say, for eradication of any other deadly diseases.
14. Another instance where this doctrine could be applied is that after eradicating the concerned disease by spending legacy, if surplus is left over, the trustees can apply to the Court for suitable directions and the Court can press into service this doctrine and direct them to utilise the balance for any other benevolent act. It should be noted that this doctrine is generally applicable to wills and not deeds. This doctrine has been pellucidly dealt with by Division Bench of the then High Court of A.P. in Potti Swami and brothers v. Rao Saheb D. Govindarajulu2. It observed thus:
"14. The next contention is whether the object of the association having failed the amounts collected can be applied "cypres" for the fulfilment of any other object similar to that which was in the contemplation of the donors, The appellants contend * that it cannot be so applied. The respondents on the other hand, contend that the amounts paid were out and out gift and consequently it should not be returned. The doctrine of "cypres" connotes that if the wishes of the testator cannot be carried out literally they will be carried out as nearly as possible to what he desired.
That is, where a testator shows a general charitable intention, but the object of his charity turns out to be impracticable or when there is surplus money after the trust has been performed the "cypres" doctrine will operate to enable the Court to apply the whole 2 AIR 1960 AP 605 = MANU/AP/0277/1960 13 fund or the surplus as the case may be to another charity as merely as the testator's intention. But where the prescribed mode of doing the charitable act is the only one the testator has at all contemplated, the Court cannot apply the doctrine of "cypres", but there will be a resulting trust for the testator's estate. The Privy Council in Mayor of Lyons v. Advocate General of Bengal ILR 1 Cal 303 observed at page 309 as' follows:
The principle on which the doctrine rests appears to be, that the court creates charity in the abstract as the substance of the gift, and the particular disposition as the mode, so that in the eye of the Court, the gift, notwithstanding the particular disposition may not be capable of execution, subsists as a legacy which never fails, and can not lapse.
15. It was held in that case that in applying the cy-pres doctrine regard may be had to the other objects of the testator's bounty, but primary consideration is to be given to the gift which has failed and to a search for objects akin to it. It is therefore clear that the application for the doctrine is dependent upon the intention of the donor and in the case of bequest by a will for a charitable purposes courts which are generally anxious to favour is charities have been inclined to apply the 'cy-pres doctrine if there was the slightest indication 'of the general charitable intention. In Santhan Ray v. Advocate General of Bengal ILR 48 Cal 124 : AIR 1921 Cal 389 it was held with reference to the decision of the English Courts that "there is a weighty authority for the proposition that the doctrine of 'cypres' is applied only in wills and not in deeds. These observations were approved of in Audesh Singh v. Commissioner, Lucknow AIR 1934 Oudb 329 Lewis in his treatise on Perpetuity (1843) says at page 440 that "the -doctrine of "cypres" is in fact an off shoot that general system of indulgence and laxity of construction as respects wills, which has long obtained in our court both of law and equity, but which has not been suffered to have place, in regard to the Interpretation of and giving effect to instruments inter vivos"
Lord Keynon C.J. in Brudenell and Brooks v. Elews, (1801) I East 442 at P. 451, says:-
"The doctrine of cy-pres goes to the utmost verge of the law even in the construction of wills; and we must take care that it does 14 not run wild. But it has never been applied to the construction of deeds. The cases cited were questions upon wills".
16. This dictum was approved by Lord Eldon in the same case when it went before him. In our view also, the preponderance of authority is in favour of the application of the doctrine of cy-pres to wills and not to deeds or gifts inter vivos."
15. However, in the case of State of U.P. v. Bansi Dhar3 the Hon'ble Apex Court speaking through Justice V.R.Krishna Iyer opined that the above doctrine can be made applicable to both testamentary and non-testamentary gifts for serving the public interest. It was observed:
"19. Accepting that Dubey intended a charitable gift the first question that falls for decision, as preliminary to the application of the cy-pres doctrine, in as to the nature of the charitable object- whether general or specific. If the former, the doctrine is attracted but if the later it is repelled. We will revert to this aspect later.
20. Sri Garg objected to the application of the cy-pres principle to cases of gifts as, in his view, only wills attract this jurisdiction. There is much in the precedents tending this way but the opposite is not bereft of authority. Nori Venkata Rama Dikshitulu v. Ravi Venkatappayya MANU/AP/0093/1960 : AIR1960AP35 and Potti Swami v. Rao Saheb D. Govindarajulu MANU/AP/0277/1960 :
AIR1960AP605 , for instance, are two authorities in the same volume supporting the rival positions. We have come across other cases, Indian and English, where even gifts inter vivos have been enforced cy-pres by courts although the general run of trusts where failure has been saved relates to testamentary dispositions. There is perhaps a reason. Why courts should, in the case of wills, step in to supply a near intent and apply the funds cy-pres where otherwise the charity will fail on sticking to the literal object, the author being dead and unable to speak. For gifts inter vivos the donor is ordinarily available to suggest the mutation in the event of impossibility or 3 MANU/SC/0429/1973 15 impracticability of the original object. Even so, we are inclined to the view that, both testamentary and non-testamentary gifts for public charitable purposes must be saved by a wider intervention of court, for public interest is served that way. Neither principle nor precedent burs this broader invocation of the court's beneficent jurisdiction. But there are two other limitations on the cy-pres doctrine which come into play here. Where the donor has determined with specificity a special object or mode for the course of his benefaction the Court cannot innovate and undo, but where a general charitable goal is projected and particular objects and modes are indicated the Court, acting to fulfil the broader benevolence of the donor and to avert the frustration of the good to the community, reconstructs, as nearly as may be, the charitable intent and makes viable what otherwise may die."
16. In that case, by facts, the Apex Court observed that the transaction was not a gift simplicitor, but was subject to the sanctioning of matching grant by Government, building having to be made with such augmented amount etc. and as the conditions failed the charity proved abortive and the legal consequence was of a reverting trust in favour of the donor.
17. Relying upon Bansi Dhar's case (supra 3) the Apex Court in the case of Thakur Raghunath Ji Maharaj v. Ramesh Chandra4, considering the facts that the plaintiff gifted the land to defendants for construction of building for degree college and along with gift deed an agreement was also executed on the same day mentioning therein that if the college was not built within six months gift deed would be deemed to come to an end, held that gift was not an absolute/unconditional and on the other hand, the Gift Deed and the 4 MANU/SC/0352/2001 = AIR 2001 SC 2340 16 agreement forming one transaction and they were to be read together and given effect to accordingly. The Apex Court further held, the defendant had to take both benefit and burden, but they cannot reap the benefit and avoid to unload the burden and since the defendants did not construct a college building on the suit land, the gift did not come into effect.
18. The above jurisprudence expounds that in general charitable gifts for public purpose, the doctrine of cy pres is, applicable. However, its applicability appears to be limited in conditional gifts made for specific purpose, in such cases, the doctrine applies where surplus is left over after fulfilling the condition. However, this doctrine has no application when the condition precedent or subsequent has been violated by the donee. In the light of the above law, the facts have to be scrutinized.
19. Admittedly, the petitioners have executed two Gift Deeds dated 24.03.2017 and 05.05.2017. The first Gift Deed was executed by both the petitioners in favour of his Excellency the Governor of Andhra Pradesh represented by 4th respondent, who is the Deputy Inspector General for Stamps & Registration, Kurnool Division. The gift is made in respect of 486.66 square yards of site. It was clearly recited therein that the gift was made for construction of Sub-Registrar office and for preserving the documents and records and more particularly to facilitate the public to attend to registration activities. It was also mentioned that henceforth the Registration Department alone shall 17 have absolute rights over the schedule mentioned property and the donors will not have any rights therein.
20. On close scrutiny, the above munificent recitals manifest that the intention of the petitioners was predominantly to donate the land exclusively for the purpose of construction of Sub-Registrar's office to facilitate the public who attend the said office and to preserve the concerned records. Further, the gift was made in favour of Registration Department of the Government and recited that the said Department will become the owner from the date of gift. Therefore, there can be no demur that gift was a conditional gift, but not a general charity.
21. Then the Gift Deed dated 05.05.2017 shows that the donee and donors are the same persons as in the previous one. It was recited that after the site was donated under the Gift Deed dated 24.03.2017, since additional site was required for construction of Type-III Ground + 1 Registration Office, the second Gift Deed was executed to construct the aforesaid Type-III Ground + 1 Registrar office with all facilities. It was specifically mentioned that, the Registration Department shall alone have all the rights over the said site and since after registration the petitioners will have no right. Most importantly it is mentioned that if the Registration Department failed to construct Type-III Ground + 1 Registrar office building as instructed in the I.G. Circular G1/2389/2016 dated 20.01.2017, the petitioners will cancel the Gift Deed dated 05.05.2017. The Registration Department can construct 18 Sub-Registrar's office in the property which was previously gifted by the petitioners.
22. Thus the above Gift Deed recites that in the event the donee failed to construct Type-III Ground + 1 Registrar Office building, the petitioners can cancel the Gift Deed dated 05.05.2017, however, in such an event the donee can construct Sub-Registrar's office in the site earlier gifted to them. So when both the Gift Deeds are cumulatively studied, they would depict that both the sites were given only for construction of Type-III Ground + 1 Registrar Office building. In the event of failure to make such construction, the second Gift Deed will be cancelled by the donors. Thus, in essence, the gifts are in the nature of conditional gifts. The further facts would show that the respondents no doubt have constructed the office building as proposed and also inaugurated the same on 23.02.2019. However, the shifting was not done from the old building on the lame pretext that permission was so far not accorded by the Commissioner & Inspector General for Registration & Stamps. A perusal of the photographs filed by the petitioners along with material papers would show that the existing Sub-Registrar's office is in a dilapidated condition and the safety to the public and staff who attend the said office is highly questionable one. In that view, the respondents cannot postpone the shifting of the Sub-Registrar's office. It should also be noted that since the subject gifts are conditional gifts, the doctrine of cy pres has no application to them. Any deviation of using the building for any 19 purpose other than for housing the Sub-Registrar office and its related establishments, is not permissible. The counter averments that the Sub-Registrar Office was not shifted because the permission is not so far accorded is only truancy on the part of the respondents. When a public are suffering for want of a decent and secured building for conducting registration transactions, the authorities cannot act in a lackadaisical manner to deprive the public of their legitimate right.
23. In the result, this writ petition is allowed and the respondents are directed to shift the Sub-Registrar's Office, Dhone from the existing old building to the newly constructed building and commence the operations within one month from the date of this order. The newly constructed building shall not be used for any other purpose except for conducting Sub-Registrar's Office and its other related departments. No costs.
As a sequel, interlocutory applications, if any pending, shall stand closed.
__________________________ U. DURGA PRASAD RAO, J 16.04.2020 SS/MVA