S.V.K.Durga Rao, vs The State Of Andhra Pradesh on 4 June, 2020

[Cites 26, Cited by 1]

Andhra Pradesh High Court - Amravati

S.V.K.Durga Rao, vs The State Of Andhra Pradesh on 4 June, 2020

Bench: C. Praveen Kumar

     THE HON'BLE THE ACTING CHIEF JUSTICE C. PRAVEEN KUMAR
                                     AND
       THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY

  WRIT PETITION NOs.5220, 5244, 8741,9250, 9274, 9275, 9285,
  9707, 9713, 9796, 9835, 10481, 10503, 10787, 10892, 10983,
 10989, 11589, 12622, 12644, 12645, 12654, 12668, 12673,17969
                      AND 18414 OF 2015

COMMON ORDER:

(per Hon'ble Sri Justice M. Satyanarayana Murthy) All these Writ Petitions are filed by various licensees/lessees in occupation of different premises belonging to different endowment institutions or temples, under Article 226 of the Constitution of India, claiming writ of mandamus to declare the action of the respondents in publishing notifications on various dates contemplating to conduct auction of confirmation of right of license or lease even before or after expiry of the lease period of the petitioners in respect of their shops or premises in their occupation and also trying to dispossess them from the said shops or premises without following the due process of law, as illegal, arbitrary and violative of Article 300-A of the Constitution of India and also the provisions of Andhra Pradesh Charitable and Hindu Religious Institutions & Endowments Act, 1987 (for short 'Endowments Act') and A.P. Charitable & Hindu Religious Institutions & Endowments Immovable Properties and Other Rights (other than Agricultural Lands) Leases and Licenses Rules, 2003 (for short "the 2003 Rules") and consequently direct the respondents to follow the procedure laid down under the Endowments Act and the 2003 Rules therein, and consequently, set aside the Circular Memo No.A3/24/2015, dated 11.03.2015 issued by the Regional Joint Commissioner, Endowments Department, Kakinada, and direct the respondents to follow the procedure prescribed under the Endowments Act and the 2 HACJ &MSM,J WP No.5220 of 2015 & batch 2003 Rules for evicting the petitioners and also for conducting public auction.

All the petitioners in this batch of writ petitions were inducted as licensees/lessees in various shops on various dates on different rates of rent/license fee. While the petitioners are continuing as licensees or lessees in their respective premises on lease or as license, the original term of lease or license was expired and the petitioners agreed to pay rent at enhanced rate @ 50% of the existing rent. The lease or license was initially for a period for three years and subsequently, the lease or license was extended for different periods for the premises in their occupation on payment of enhanced rate of @ 50%, which is reasonable.

The petitioners made certain representations to the authorities agreeing to pay enhanced rate of rent, but pending consideration of the representations of the petitioners, the respondents issued Circular Memo No.A3/24/2015 dated 11.03.2015.

These writ petitions came up for hearing before a learned Single Judge of the High Court of Judicature at Hyderabad for the State of Telangana and the State of Andhra Pradesh. By his order dated 04.06.2015, the learned Single Judge made a reference to the Larger Bench for authoritative pronouncement in view of the conflicting decisions of Single Judges and a Division Bench.

The main grievance of the petitioners in all these Writ Petitions is that they participated in the auction conducted for confirmation of right of license or lease in their respective premises on payment of prescribed license fee or rent for respective periods. While they are continuing in possession and enjoyment of their 3 HACJ &MSM,J WP No.5220 of 2015 & batch premises as licensees/lessees in the premises (in some petitions before expiry of the license/lease period and in some petitions after expiry of lease period), the Executive Officers of the respective endowment institutions or temples issued notifications inviting tenders for conducting auction of the premises in the occupation of the petitioners, in view of the Circulars issued by the Regional Joint Commissioner, Endowments Department, Kakinada. The main contention of the petitioners in all these writ petitions is specific that the petitioners, who are in occupation of the premises even after expiry of license/lease period cannot be thrown out or dispossessed except by due process of law. Till they are evicted by due process of law, they are entitled to continue in possession and enjoyment of the said premises. Therefore, the proposed auction of the right of license/lease of the premises in their respective occupations is illegal.

The 2003 Rules were framed by G.O.Ms.No.866 Revenue (Endowments.I) Department, dated 08.08.2003, which are having statutory force. Some of the petitioners filed writ petitions before the High Court of the Judicature at Hyderabad for the State of Telangana and the State of Andhra Pradesh, challenging the proposed auction after expiry of license/lease period contending that they are deemed to be encroachers and till they are evicted by due process of law, their license/lease hold rights cannot be auctioned, but those writ petitions in W.P.No.12674 of 2010 & batch were disposed of holding that the administrative instructions cannot supplant the statutory rules and hence, they need not be followed with regard to the extensions, renewals of the shops when there are statutory rules and relevant provisions governing the field 4 HACJ &MSM,J WP No.5220 of 2015 & batch and thereby the circular instructions issued by the Regional Joint Commissioner proposing to conduct auction of the license/lease of the premises is illegal and contrary to law. The petitioners claimed the relief to declare the action of the respondents in issuing notifications on various dates contemplating to conduct auction even after expiry of the license/lease period of the petitioners in respect of the shops/premises in their occupation and trying to dispossess them from the said premises without following the due process of law as illegal, arbitrary, violative of Article 300-A of the Constitution of India and contrary to the provisions of the Endowments Act and the 2003 Rules and also sought a direction to the respondents to follow the procedure laid down under the Endowments Act and the Rules framed therein.

The Executive Officers of the concerned endowment institutions or temples filed their respective counter-affidavits. Since the stand taken by the respondents is similar, it is suffice to refer the contentions in the counter-affidavit filed in W.P.No.12668 of 2015. The executive officer of the endowment institution or temple, in his counter-affidavit, denying material allegations, inter- alia, contended that the endowment institutions or temples are notified under Section 6-A of the Endowments Act registered under Section 43. They are under the direct administrative control of the Regional Joint Commissioner, Endowments Department. The petitioners in all these writ petitions became highest bidders in the auction held on various dates by various endowment institutions or temples on payment of license fee/rent fixed by the authorities from the date of handing over of the premises to them. The specific contention of the concerned Executive Officers of the endowment 5 HACJ &MSM,J WP No.5220 of 2015 & batch institutions or temples is that the Commissioner, Endowments Department, in his proceedings in Rc.No.A4/30298/2006, dated 25.05.2012 examined the matter and approved the license for running the shops in favour of sitting tenants in the Coconada Annadana Samajam (4th respondent in W.P.No.12668 of 2015) on 10% enhancement from 01.09.2009 to 31.08.2010 and 33 1/3 enhancement from 01.09.2010 to 31.08.2012 for total 57 shops. Similarly, the other licensees/tenants for different periods and the period extended on payment of 10% was also expired by 31.08.2012. Thereafter, no order was passed approving the license/lease in favour of sitting tenants including the petitioners herein. Therefore, the persons in occupation either licensees/lessees are bound to vacate the premises after expiry of the period and as they have not vacated the shops, the temple has filed petition under Section 83 of the Endowments Act for eviction of the petitioners in the year 2010, but the same was closed as the license in favour of the sitting tenants were renewed by the Commissioner, Endowments Department, Government of A.P., Hyderabad, vide proceedings dated 25.05.2012. Thereafter, the licenses were sought to be extended for a further period of three years from 01.09.2012 to 31.08.2015 by the letter of the Executive Officer, dated 27.09.2015. While the matters stood thus, the Regional Joint Commissioner, under whose administrative control the Executive Officer (4th respondent in W.P.No.12668 of 2015) is functioning, issued a Circular No.A3/24/15, dated 11.03.2015, directing all the Executive Officers to conduct public auction as per Rules framed under G.O.Ms.No.866 dated 08.08.2003 and all the proposals which are pending before the Commissioner are deemed 6 HACJ &MSM,J WP No.5220 of 2015 & batch to be rejected. Thereafter, the choultry of Cocanada Annadana Samajam has issued the auction notification dated 14.04.2015. Challenging the same, W.P.No.12668 of 2015 was filed.

Even in the earlier round of litigation in W.P.No.12674 of 2010, the High Court of Andhra Pradesh held that after expiry of the lease period, the tenant will not have any right to continue in the shop and has to vacate the same and the tenant cannot take protection under Section 83 of the Endowment Act, and hence the contention of the petitioners was rejected and they shall be evicted by following the procedure after expiry of the lease period, while making the observations that the administrative instructions cannot supplant the statutory rules and hence, they need not be followed with regard to the extensions, renewal of license or lease period of the shops when there are statutory rules and relevant provisions governing the field, the contention of the petitioner that the circular memo of the 3rd respondent is contrary to the rules cannot be accepted as the same was issued in conformity with the provisions of the Endowments Act and the Rules framed thereunder and directed to conduct fresh auction for confirmation of right of license or lease as per the Rules. The administrative instructions issued by the 3rd respondent is not contrary to rules and the same is supplemental to the license rules and Section 82 of the Endowments Act, hence, the same are within the jurisdiction and the petitioner does not have any right to continue in the shop belonging to the 4th respondent institution. Therefore, the petitioners after expiry of the lease are only encroachers and they are liable to deliver vacant possession of the premises immediately 7 HACJ &MSM,J WP No.5220 of 2015 & batch in terms of the Rules governing such license/lease and prayed for dismissal of the Writ Petitions.

During hearing, learned counsel for the petitioners Sri E.V. V.S. Ravi Kumar and other counsel, raised a similar contention. Therefore, we find it appropriate to decide all these Writ Petitions by this common order to avoid repetition or multiplicity of proceedings.

The main contentions urged before us during hearing are that, the petitioners are in occupation of the premises as tenants/licenses/lessees and till date they were not evicted by following due process of Court from the premises. As long as they are not evicted by due process of law, they cannot be dispossessed from the premises in their occupation except by due process of law i.e. under Section 83 of the Endowments Act. Issuance of notification for conducting auction of leasehold rights by the Executive Officers of the endowment institutions or temples before expiry or after expiry of license/lease period, creating license/lease in favour of the highest bidders in the auction, without evicting the petitioners from the premises in their occupation is a grave illegality and making an attempt to dispossess them without following due process of law is not permissible under law and the learned counsel relied on a judgment of the Apex Court in State of U.P. v. Maharaja Dharmander Prasad Singh1and a judgment of the Division Bench of this Court in I. Chandra Rao v. Executive Officer, Sree Seetharamachandra Swamivari Devasthanam, Bhadrachalam2. They also contended that the learned Single Judges of High Court of Andhra Pradesh took different views, but they strangely relied on 1 AIR 1989 SC 997 2 1999 (3) ALT 267 (D.B) 8 HACJ &MSM,J WP No.5220 of 2015 & batch judgment of the Apex Court and the Division Bench judgment of the High Court of A.P. Sri E.V.V.S. Ravi Kumar, learned counsel for the petitioners, also drew our attention to an unreported judgment of the Division Bench in W.P.Nos.34361, 39013 and 39151 of 2016, dated 04.07.2018, wherein a Division Bench of the High Court of Judicature at Hyderabad for the State of Telangana and the State of Andhra Pradesh considered the scope of pre-amended and post- amended 2003 Rules with special reference to G.O.Ms.No.426 Revenue (Endowments.I) Department, dated 09.11.2015 and struck-down Rule 15(1) & (2) which conferred power on the Executive Authority or any other endowment authority to simultaneously file a police report or a complaint to the Judicial Magistrate of First Class or Metropolitan Magistrate having jurisdiction over the institution or property and prosecute the encroacher for criminal trespass as the encroachment of endowment institution property is an offence against the Society.

The main contention of the learned counsel for the petitioners before us is that in the absence of any other procedure for evicting the persons in occupation of the premises belonging to the endowment institutions or temples governed by the provisions of the Endowments Act, the license/lease rights cannot be created in favour of third parties by conducting auction and at the same time, the persons in occupation cannot be dispossessed by force except by due process of law.

Sri N.Guru Gopal, learned counsel for some of the petitioners, contended that issuance of notification for conducting auction in pursuance of Circular Memo issued by the Regional Joint 9 HACJ &MSM,J WP No.5220 of 2015 & batch Commissioner, Endowments Department, is illegal since Memo. will not over-ride statutory provisions in the enactment, while adopting the arguments on other aspects.

Sri A.Tulsi Raj Gokul, Sri T.Surya Satish, Sri V.Sivaprasad Reddy and Sri Ch.Dhanamjaya, learned counsel for some of the petitioners, also adopted the arguments of Sri E.V.V.S. Ravi Kumar, learned counsel.

Per contra, Smt.K.Lalitha, learned standing counsel for Endowments, Andhra Pradesh, contended that though the judgments of the learned Single Judges are conflicting to one another, it is the duty of the Government to protect the property of the endowment institutions or temples for the benefit of the Deity who is a perpetual minor being represented by the Executive Officer and entering into the premises as a licensee/lessee, claim for such a relief, invoking the jurisdiction under Article 226 of the Constitution of India, by the petitioners is impermissible under law as the relief under Article 226 of the Constitution of India is purely discretionary in nature and limited and such relief cannot be granted to a person who is in unlawful possession after expiry of the lease/license period, as, such persons are deemed to be encroachers and apart from that learned Standing Counsel relied on few judgments, which will be referred at appropriate stage while deciding the points.

Considering rival contentions and perusing the material available on record, the points that arise for consideration in this batch of writ petitions are as follows:

(1) Whether the petitioners, who are in occupation of their respective premises after expiry of license/lease

10 HACJ &MSM,J WP No.5220 of 2015 & batch period be deemed to be encroachers? If so, whether issuance of notification for conducting auction for license/lease hold rights of various premises in their occupation is illegal?

(2) Whether the petitioners are entitled to claim any protection directing the endowment institutions or temples not to dispossess the petitioners except by due process of law and to declare the auction notifications as illegal, arbitrary and violative of Article 300-A of the Constitution of India?

POINT NO.1:

It is an undisputed fact that the petitioners are in occupation of their respective premises. The petitioners participated in the auction and became highest bidders for their respective premises on payment of initial rent/license fee and later at the enhanced rate due to approval by the Regional Joint Commissioner, Endowments Department. But, the period of extension was expired. However, a circular was issued by the Regional Joint Commissioner, Endowments Department, Kakinada, being the administrative authority of the Executive Officers of the endowment institutions or temples governed by the Endowments Act. In view of the circular issued by the Regional Joint Commissioner, Endowments, Kakinada, the endowment institutions or temples proposed to conduct auction and issued notifications on various dates and questioning the same, the present batch of writ petitions are filed by the petitioners.

The scope and jurisdiction of this Court under Article 226 of the Constitution of India is limited and this Court at best examine the procedure followed by the administrative authorities while issuing impugned proceedings or orders and the legality of the

11 HACJ &MSM,J WP No.5220 of 2015 & batch orders cannot be examined while exercising power under Article 226 of the Constitution of India. Para 28 of the judgment in State of U.P. v. Maharaja Dharmander Prasad Singh (referred supra) reads as follows:

"28. It not unoften happens that what appears to be a judicial review for breach of natural justice is, in reality, a review for abuse of discretion. It is true that amongst the many grounds' put forward in the show cause notice dated 19.1.1986, quite a few overlap each other and are distinguishable from those urged for the cancellation of the lease itself. Some of the grounds might, perhaps, be somewhat premature. Some of them even if true are so trivial that no authority could reasonably be expected to cancel the permission on that basis. For instance, the ground that the permission was applied for and granted in the name of one only of the two lessees would be one such. However, Judicial review under Article 226 cannot be converted into an appeal. Judicial review is directed, not against the decision, but is confined to the examination of the decision making-process. In Chief Constable of the North Wales Police v. Evans, [1982] 1 WLR 1155 refers to the merits-legality distinction in judicial review. Lord Hail- sham said:

"The purpose of judicial review is to ensure that the individual receives fair treatment, and not to ensure that the authority, after according fair treatment, reaches on a matter which it is authorised by law to decide for itself a conclusion which is correct in the eyes of the court."

Lord Brightman observed:

"..Judicial review, as the words imply, is not an appeal from a decision, but a review of the manner in which the decision was made.."

And held that it would be an error to think:

" ..... that the court sits in judgment not only on the correctness of the decision-making process but also on the correctness of the decision itself."

When the issue raised in judicial review is whether a decision is vitiated by taking into account irrelevant, or neglecting to take into account of relevant, factors or is so manifestly unreasonable that no 12 HACJ &MSM,J WP No.5220 of 2015 & batch reasonable authority, entrusted with the power in question could reasonably have made such a decision, the judicial review of the decision making process includes examination, as a matter of law, of the relevance of the factors. In the present case, it is, however, not necessary to go into the merits and relevance of the grounds having regard to the view we propose to take on the point on natural justice. It would, however, be appropriate for the statutory authority, if it proposes to initiate action afresh, to classify the grounds pointing out which grounds, in its opinion, support the allegation of fraud or misrepresentation and which, in its view constitute subsequent violations of the terms and conditions of the grant. The grounds must be specific so as to afford the Lessees an effective opportunity of showing cause."

In view of the above judgment of the Apex Court, the Court has to examine the regularity of the procedure adopted by the authorities while passing the impugned order and not the legality of the orders or proceedings issued by the concerned. Therefore, keeping in mind the scope of judicial review, under Article 226 of the Constitution, we would like to examine the issue before us.

Continuation of the petitioners in occupation of various premises either as lessee/licensee after expiry of lease/license period is not in quarrel. But, the period of lease/license was expired in some of the cases before issuance of notification and in some of the cases during the pendency of these writ petitions. The petitioners, who are continuing in possession after expiry of license/lease period are deemed to be encroachers as per Explanation to Section 83 of the Endowments Act. The Explanation to Section 83(1) is extracted hereunder for better appreciation and it reads as follows:

"Explanation:- For the purpose of this Chapter the expression 'encroacher' shall mean any person who unauthorisedly occupy any land or building or space and deemed to include any person who is in occupation of the land or building or space without the approval of the competent authority sanctioning lease or mortgage, or license and

13 HACJ &MSM,J WP No.5220 of 2015 & batch also a person who continues to remain in the land or building or space after the expiry or termination or cancellation of the lease, mortgage or license in respect thereof granted to him or it." The petitioners, who are in occupation of the premises after expiry of period of license/lease would fall within the definition of encroacher as per Explanation to Section 83(1) of the Endowments Act. Chapter-XI deals with the procedure for eviction of encroachers. Section 83(1) is the relevant provision which enables the Assistant Commissioner having jurisdiction, either suo-motu or upon a complaint made by the trustee has reason to believe that any person has encroached upon any land, building, tank, well, spring or water-course or any space belonging to the institution or endowment, wherever situated or deemed as an encroachers under any of the provisions of the Endowments Act, the Assistant Commissioner shall report the fact together with relevant particulars to the Endowments Tribunal having jurisdiction over the division in which the institution or endowment is situated. Therefore, when the petitioners are deemed to be encroachers within the meaning of 'encroachers' under Explanation to Section 83(1), the endowment institutions or temples if intended to evict them from the premises have to follow the procedure prescribed under Section 83(2) to (4) of the Endowments Act and pass order under Section 83(5). Taking advantage of the Explanation to Section 83(1), the learned counsel for the petitioners in all the writ petitions contended that when the petitioners are encroachers, the license/leasehold rights cannot be auctioned, till they are evicted by due process of law.

No doubt the petitioners are encroachers and they were inducted into possession of the premises as per the Rules known as 14 HACJ &MSM,J WP No.5220 of 2015 & batch the 2003 Rules (vide G.O.Ms.No.866 Revenue (Endowments.I) Department, dated 08.08.2003). These Rules were framed by the State by exercising power under Section 153 of the Endowments Act and it received the consent of the Governor and they came into force with effect from 03.06.2003 and later the Rules were amended by G.O.Ms.No.426, Revenue (Endowments-I) Department, dated 09.11.2015). Rules 3 to 12 deal with the procedure for mode of confirmation of lease or license rights. Clause (2) of Rule 3 specifies the procedure for conducting public auction of confirmation of lease/license rights. There is absolutely no dispute with regard to the procedure followed while inducting these petitioners into possession of the premises in their occupation. Rule 4 draws distinction in confirmation of lease/license rights in respect of vacant sites and shops and buildings. According to Rule 4(1), in the case of immovable properties such as building and sites to be given or used for residential purposes only; lease shall be granted. In the case of other immovable properties such as shops, buildings, sites, etc., to be given or used for the purpose of running business and such other rights of usufruct, fishery, collection of coconut pieces, human hair etc., licenses shall be granted. Thus, it is explicit from sub-rule (1) of Rule 4, that in the case of immovable property of the temple if given for residential purpose, it shall be by way of lease and if it is for commercial or any other purpose, it shall be by way of license. In the present facts of the case, the petitioners contended that they are lessees in occupation of the premises and unfortunately the respondents in their counter-affidavits also contended that lease was granted in favour of the petitioners. Neither the petitioners nor the respondents produce any such lease 15 HACJ &MSM,J WP No.5220 of 2015 & batch deed, as contemplated under Rules 13 and 14 of the 2003 Rules, before this Court for perusal and verification as to whether the immovable property was given on lease or on license. In the absence of production of document, taking the aid of Rule 4(1), the petitioners are deemed to be licensees in occupation of their respective premises. Therefore, when the license or lease period is expired, they are deemed to be encroachers.

Specific procedure is contemplated for eviction of such licensees/lessees in occupation of the premises belonging to the endowment institutions or temples governed by the Endowments Act.

Power of judicial review is limited as discussed in earlier paragraphs. However, such power can be exercised only to test the legality of the procedure followed by the authorities while taking any decision. It means the Court can examine the procedure followed while passing an order and not the order. Therefore, such power is limited to review of a legislative action, administrative action and judicial decisions. The power to judicially review any decision is an extra-ordinary power vested in a superior court for checking the exercise of power of public authorities, whether they are constitutional, quasi-judicial or governmental. It is only available for exercise when a person, who is aggrieved by such a decision, brings it before the Court. It is common knowledge that while discharging executive functions, public authorities take various decisions for which they should be allowed sufficient space for a proper exercise of discretion. It is keeping this in mind that by and large it is only the decision making process that is actually subjected to judicial review, but not the decision. Government or its 16 HACJ &MSM,J WP No.5220 of 2015 & batch instrumentalities under the Constitution are to exercise powers with checks and balances, but not in water-tight rigid mould. In India, Articles 32 and 136 of the Constitution of Indian empower the Supreme Court to exercise such power and Article 226 of the Constitution of India empowers the High Court to exercise such power of judicial review.

The Apex Court had an occasion to consider the power of judicial review of the Courts under Article 226 of the Constitution of India and of the view that Article 226 cannot be converted into an appeal. Judicial review is directed, not against the decision, but is confined to the examination of the decision making process. In Chief Constable of the North Wales Police v. Evans3 refers to the merits-legality distinction in judicial review. Lord Hailsham said:

"the purpose of judicial review is to ensure that the individual receives fair treatment, and not to ensure that the authority, after according fair treatment, reaches on a matter which it is authorised by law to decide for itself a conclusion which is correct in the eyes of the Court." Lord Brightman observed: "..Judicial review, as the words imply, is not an appeal from a decision, but a review of the manner in which the decision was made and held that it would be an error to think: "..that the Court sits in judgment not only on the correctness of the decision making process, but also on the correctness of the decision itself." When the issue raised in judicial review is whether a decision is vitiated by taking into account irrelevant, or neglecting to take into account of relevant, factors or is so manifestly unreasonable that no reasonable authority, entrusted with the power in question could reasonably have made 3 (1982) 1 WLR 1155

17 HACJ &MSM,J WP No.5220 of 2015 & batch such a decision, the judicial review of the decision making process includes examination, as a matter of law, of the relevance of the factors. (vide State of U.P. v. Maharaja Dharmander Prasad Singh (referred supra)).

Keeping in view the law declared by the Apex Court in State of U.P. v. Maharaja Dharmander Prasad Singh (referred supra), we would like to examine the issue before us as to the violation of any principles of natural justice while taking decision or violation of any fundamental rights of the petitioners or illegality, if any, in the process of decision making.

It is an undisputed fact that right of lease/license conferred in favour of the petitioners long back was governed by the provisions of the Endowments Act and the Rules framed thereunder.

The 2003 Rules are governing the lease/license granted in favour of these petitioners. Rule 4 of the 2003 Rules is the relevant Rule which deals with grant of lease/license as discussed supra. But there is a direct fetter on grant of lease exceeding eleven years under Rule 4(2)(B) which reads as follows:

"No lease or license of immovable property shall be granted for a period exceeding eleven years. The lease rental/license fee shall be enhanced by thirty percent once every three years over the existing lease rent or license fee."

Thus, the lease/license is limited to eleven years at the maximum. But, in the present batch of cases, almost all the leases or licenses were expired long ago either before filing the Writ Petitions or during the pendency of the Writ Petitions. But, there are certain exceptions to allow them to continue subject to payment of rent at enhanced rate prescribed under Rule 4(2)(D), (E), (F) and (G).

18 HACJ &MSM,J WP No.5220 of 2015 & batch In the present facts of the case, some of the petitioners made applications for permitting them to continue in the premises on payment of enhanced rate of rent and they are pending with the Regional Joint Commissioner, Endowments, Kakinada. But, pendency of representations of the petitioners with the Regional Joint Commissioner, Endowments, is not a ground to quash or set aside the notifications issued by the respondents for conducting auction of right of lease/license of the premises. Though the petitioners raised several contentions with regard to power of the executing authority to issue notification in pursuance of the circular memo issued by the Regional Joint Commissioner, Endowments, Kakinada, while contending that the executive authority has no right to issue such memo and the memo issued by the Government has no statutory force and placed reliance on the judgment of a Division Bench of High Court of A.P. in T.S.Rajeswari v. Commissioner of Endowments4.

In the said batch of writ petitions, this Court held that the memo issued by the Government has no statutory force. Therefore, issuance of notification based on the circular memo issued by the Regional Joint Commissioner, Endowments, Kakinada, is an error. But, Rule 4(2)(H) of the 2003 Rules made it clear that after completion of license/lease period, no further extension would be granted under any circumstances. The Executive Authority shall conduct tender-cum-public auction straight away in the interest of temple or endowment institution without taking cover under the pretext of seeking permission of higher authorities to conduct fresh auction. Those who are desirous to retain their existing holding 4 Common Order in W.P.No.20222 of 2011 and batch, dated 19.07.2011.

19 HACJ &MSM,J WP No.5220 of 2015 & batch may participate in tender-cum-public auction and retain their holding if they are successful in the bid. Thus, a fair opportunity is given to the existing license/lease holder while the temple or endowment institution is allowed to pursue their objects. It means the auction notice though allegedly issued in pursuance of the circular memo, but still the executive authority is competent to take such a decision under Rule 4(2)(H) of the 2003 Rules. Therefore, the issuance of auction notice strictly adhering to Rule 4 of the 2003 Rules mentioning all details as required under Rules 5 and 6 is in accordance with law. Therefore, the executive authority did commit no error or illegality in the decision making process and issued auction notifications for confirming right of lease/license on the highest bidders, who participate in the bid. Hence, issuance of notification cannot be faulted on the ground that without evicting the petitioners by due process of law, the license/lease hold rights cannot be auctioned and this contention is meritless. On this ground, the auction notification issued by the executive authorities cannot be set aside. Accordingly, this point is answered. POINT No.2:

The main contention raised before this Court by all the learned counsel for the petitioners in this batch of writ petitions is that when the petitioners are continuing in possession and enjoyment of the premises as lessees/licensees, till they are evicted by due process of law, they cannot be dispossessed. This contention is in consonance with the general principles of law as laid down by the Apex Court in State of U.P. v. Maharaja Dharmander Prasad Singh (referred supra), wherein the Apex Court held that a lessor, with the best of title, has no right to

20 HACJ &MSM,J WP No.5220 of 2015 & batch resume possession extra-judicially by use of force, from a lessee, even after the expiry of earlier termination of the lease by forfeiture or otherwise. The use of the expression 're-entry' in the lease-deed does not authorise extrajudicial methods to resume possession. Under law the possession of a lessee, even after the expiry or its earlier termination is judicial possession and forcible dispossession is prohibited. He cannot, therefore, be dispossessed otherwise than in due course of law.

Similarly, the Division Bench in I. Chandra Rao v. Executive Officer, Sree Seetharamachandra Swamivari Devasthanam, Bhadrachalam (referred supra), relied upon by the learned counsel for the petitioners, took a view that, the encroacher of temple land cannot be evicted, except by due process of law, since the encroacher is also entitled for protection of law. The due procedure is contemplated under Section 83 of the Endowments Act and the 2003 Rules, as amended in the year 2015. Therefore, this Court is bound by the judgment rendered by a co-ordinate Bench, in the absence of any judgment of the Apex Court or a Larger Bench, contrary to the law declared by the Division Bench. But, unfortunately by the date of deciding the case in I. Chandra Rao v. Executive Officer, Sree Seetharamachandra Swamivari Devasthanam, Bhadrachalam (referred supra), no Rules of 2003 were in existence and thereby the question of considering these Rules framed by the Government in the year 2003 does not arise. Moreover, when the special rules are framed for taking action for eviction of the tenant, these Rules are binding on the persons in occupation of the property, who are inducted as lessees/licensees by the executive authority of the endowment institution or temple.

21 HACJ &MSM,J WP No.5220 of 2015 & batch Rule 15 of the 2003 Rules is the relevant Rule which deals with validity of lease or license or occupation, as stated supra. But, the High Court of Judicature at Hyderabad for the State of Telangana and the State of Andhra Pradesh struck down only Rule 15(1)&(2), which permit the executive authority or endowment authority to file a police report or a complaint to the Judicial Magistrate of First Class or Metropolitan Magistrate having jurisdiction over the institution or property and prosecute the encroacher for criminal trespass as the encroachment of endowment institution property is an offence against the society. On bringing to the knowledge of the Police or Court about the encroachment of any temple or endowment institution property, the same shall be taken cognisance of as a warrant case. The offence of encroachment of temple or any endowment institution property is cognizable, non- bailable and non-compoundable. When Clauses (1) & (2) of Rule 15 of the 2003 Rules are struck down by a Division Bench of the High Court of Judicature at Hyderabad for the State of Telangana and the State of Andhra Pradesh, the procedure contemplated under Rule 15(3) to (5) become redundant. In the absence of such procedure, the executive authorities have to fall back on Section 83 of the Endowments Act to evict the persons in occupation, though their initial induction was as licensees/lessees, but after expiry of lease/license period, they became encroachers as per Explanation under Section 83 of the Endowments Act.

But, the above judgments are based on general principles of law and not in quarrel, when the leases or licenses are governed by the special enactment, general principles of law cannot be applied. According to the provisions of the Endowment Act, after expiry of 22 HACJ &MSM,J WP No.5220 of 2015 & batch lease period, the tenant in occupation is deemed to be an encroacher and for eviction of an encroacher, there is specific procedure prescribed under Section 83. Moreover, certain Rules were framed under the Endowments Act known as the 2003 Rules as amended by G.O.Ms.No.426 Revenue (Endowments-I) Department dated 09.11.2015. These Rules govern the leases/licenses of immovable property belonging to charitable institutions and endowments and temples. The person in occupation of the immovable property other than agricultural land after expiry of lease or license is deemed to be an encroacher and he shall be removed from possession of the property, as per Section 83 of the Endowment Act).Rule 15 is the relevant provision which deals with validity of lease or occupation. According to Clause (1) of Rule 15 any judgment, compromise, scheme, any lease or license granted, continued or allowed to be continued otherwise than by these Rules and all unauthorised occupations with whatever nomenclature they may be, shall be null and void. The Executive Authority shall automatically issue notice in Form-A, appended to these Rules, to the occupier in all such cases with a demand to vacate and hand over possession of the property. If the person in occupation fails to hand over the same, the Executive Authority shall evict the such person with the assistance of Police invoking the provisions under Sections 84 and 86 of the Act treating him as an encroacher in the order passed under Section 83(4) or 85(1) of the Act. The Executive Authority shall not take cover under the pretext of seeking permission of higher authorities to carry out the eviction process. Protection of the interest of the temple or endowments institutions shall be the paramount for the Executive 23 HACJ &MSM,J WP No.5220 of 2015 & batch Authority under all the circumstances. Clause (2) conferred power on the Executive Authority or any other endowment authority to simultaneously file a police report or a complaint to the Judicial Magistrate of First Class or Metropolitan Magistrate having jurisdiction over the institution or property and prosecute the encroacher for criminal trespass as the encroachment of endowment institution property is an offence against the Society and this Clause was introduced by G.O.Ms.No.426 Revenue (Endowments.I) Department, dated 09.11.2015. However, clauses (1) & (2) of Rule 15 were struck down by a Division Bench of the High Court of Judicature at Hyderabad for the State of Telangana and the State of Andhra Pradesh vide a common order dated 04.07.2018 passed in W.P.Nos.34361, 39013 and 39151 of 2016. Therefore, Clauses (1) and (2) of Rule 15 are not in existence and such procedure cannot be resorted to by the Executive Authority to evict the encroachers in occupation of the property.

Clause (3) of Rule 15 permits the Executive Authority to recover arrears or loss caused by the encroacher or defaulter to the institution etc. Whenever there is a threat or attempt of encroachment by any unauthorised person, the same shall be stopped or prevented by the Executive Authorities by taking such measures under the Right of Private Defence as described in Indian Penal Code. In all such cases, all the material, vehicles, etc., used for such encroachment shall be seized by the Executive Authorities in favour of the temple or endowment institution without any notice, apart from initiating actions simultaneously under sub-rule (2) and (3) above without fail. The offence of threat or attempt of encroachment of any temple or endowment institution property is 24 HACJ &MSM,J WP No.5220 of 2015 & batch cognizable, non-bailable and non-compoundable. (vide Clause 4 of Rule 15). If for any reason, the Executive Authority after exhausting the remedy mentioned in sub-rule (1) fails to remove the encroachment despite best efforts for any convincing reason, then the Executive Officer or Trustee or the Chairman or the Assistant Commissioner of the district shall report the fact together with relevant particulars to the Judicial Magistrate of First Class or Metropolitan Magistrate having jurisdiction over the institution or property. Such Magistrate shall dispose off the complaint or petition within a period of thirty days, with a direction to the Station House Officer having jurisdiction over the property, after notice and summary enquiry, to evict and cause deliver the property or record etc., to the temple or endowment institution concerned. (vide Rule 5(a)).

The contention of the learned counsel for the petitioners in all these writ petitions is that in view of the judgments in State of U.P. v. Maharaja Dharmander Prasad Singh (referred supra), and I. Chandra Rao v. Executive Officer, Sree Seetharamachandra Swamivari Devasthanam, Bhadrachalam (referred supra), the petitioners cannot be dispossessed except by following due procedure contemplated under Section 83 of the Endowments Act. This view is supported by judgments in Yashwant Singh v. Jagdish Singh5, Krishna Ram Mohate v. Mrs. Shobha Venkata Rao6, Ram Rattan v. State of U.P7andjudgment of Bombay High Court in K.K. Verma v. Union of India8. But, in the later judgments, the Apex Court took different view in MahadeoSavlaram Sheike v. 5 AIR 1968 SC 620 6 1989 (4) SCC 131 7 1977 (1) SCC 188 8 AIR 1954 Bom 358, (1954) 56 BOMLR 308, ILR 1954 Bom 950 25 HACJ &MSM,J WP No.5220 of 2015 & batch Pune Municipal Corporation9. In Mahadeo Savlaram Sheike (referred supra)the Apex Court after referring to Woodrofe on 'Law relating to Injunction; L.C. Goyal 'Law of injunctions'; David Bean 'Injunction'; Jayce on Injunctions and other leading articles on the subject held that the person who was a trespasser in possession cannot seek injunction against the true owner. In that context, the Apex Court in Shiv Kumar Chadha v. MCD10 observed that injunction is discretionary and that judicial proceedings cannot be used to protect or to perpetuate a wrong committed by a person who approaches the Court, while making reference to Dalpat Kumar v. Prahlad Singh11, the Supreme Court was of the view that it is a settled law that no injunction could be granted against the owner at the instance of a person who is in unlawful possession. All the above judgments were taken note by the Apex Court in Sopan Sukhdeo Sable v. Assistant Charity Commissioner12, wherein the Apex Court held that such issue can be considered by the Trial Court itself and directed to follow the principles referred above and pass appropriate orders. Thus, the judgments of Apex Court are in conflict with one another, since the injunctive relief is purely discretionary in nature and such discretion cannot be exercised in favour of a wrong doer i.e an encroacher of the property in terms of Section 83 of Act No.30 of 1987 prima facie. As such, in view of the conflicting decisions, it is highly difficult to follow general principles laid down in any of the judgments, more particularly, when the special law i.e. the Endowments Act and the 2003 Rules prescribe certain procedure.

9 1995 (3) SCC 33 10 1993 (3) SCC 161 11 1992 (1) SCC 719 12 (2004) 3 SCC 137 26 HACJ &MSM,J WP No.5220 of 2015 & batch According to the provisions of the Endowments Act, after expiry of lease period, the tenant in occupation is deemed to be an encroacher and for eviction of an encroacher, specific procedure is prescribed under Section 83 of the Endowments Act. But, the procedure contemplated for taking possession under Rule 15 of the 2003 Rules as amended by G.O.Ms.No.426 Revenue (Endowments.I) Department, dated 09.11.2015, the Division Bench of the High Court of Judicature at Hyderabad struck down the rule in W.P.Nos.34361, 39013 and 39151 of 2016 dated 04.07.2018, and no other procedure is available to evict the persons in wrongful possession except the procedure prescribed under Section 83 of the Endowments Act. The Deity, in all the temples, is a perpetual minor and the interest of Deity is being protected by the persons who are representing the temple or endowment institution.

In Chenchu Rami Reddy v. Govt. of A.P13the Supreme Court considered Section 80 of the Endowments Act, relevant Rules and held that property of such institutions or endowments must be jealously protected. It must be protected, for a large segment of the community has beneficial interest in it. The authorities exercising the powers under the Act must not only be most alert and vigilant in such matters but also show awareness of the ways of the present day world as also the ugly realities of the world of today. They cannot afford to take things at their face value or make less than the closest-and-best-attention approach to guard against all pitfalls. The approving authority must be aware that in such matters the trustees, or persons authorised to sell by private negotiations, can, in a given case, enter into a secret or invisible underhand deal or 13 [1986] 1 SCR 989 27 HACJ &MSM,J WP No.5220 of 2015 & batch understanding with the purchasers at the cost of the concerned institution. Those who are willing to purchase by private negotiations can also bid at a public auction. Therefore, whenever if it is proposed to sell the property belonging to a religious institution it shall have to be sold by tender-cum-public auction. One exception to this rule is contained in the first proviso to Section 80(1)(b) of the Endowments Act. As per this, it is competent for the Government to permit the sale of immovable property otherwise than by public auction in the interest of the institution by recording reasons therefor. Same principle is reiterated in Cyrus Rustam Patel v. Charity Commissioner, Maharashtra State14.

Though the law declared by the Supreme Court in the above judgment has no direct application, as Apex Court dealt with Section 80 of Endowments Act i.e. alienation of immovable property belonging to or given or endowed for any charitable or religious purpose, prescribed procedure for alienation of such immovable property under the Act and Rules shall be followed scrupulously. But, this Court's concern in the present batch of petitions is with regard to the lease or license of immovableproperty belonging to temples or endowment institutions which are governed bythe 2003 Rules. However, the principle laid down in the judgments alone relevant i.e. the property of endowment institutions or temples must be jealously protected. Hence, it is the duty of the executive authority of the endowment institution or temple to protect the property. But, in all these writ petitions, the executive authority did not follow the procedure immediately after expiry of lease/license period. But, simply slept over the representations made by the 14(2018)14SCC761 28 HACJ &MSM,J WP No.5220 of 2015 & batch petitioners for years together and though these writ petitions are pending for the last four years, no steps have been taken for one reason or the other.

The relief under Article 226 of the Constitution of India is purely discretionary in nature and such discretion cannot be exercised in favour of persons who are in wrongful possession. The same view was expressed by a learned Single Judge of this Court in the order dated 19.12.2008 passed in W.P.No.27448 of 2008,while dealing with an identical issue and observed that exercise of jurisdiction under Article 226 of the Constitution of India is discretionary and a Writ is not issued as of right or as a matter of course. (C.R. Reddy Law College Employees' Association, Eluru, West Godavari District v. Bar Council of India, New Delhi15). As the power exercised by this Court under Article 226 of the Constitution of India, is discretionary it need not be exercised in every case where there is an error of law. One of the limitations imposed by this Court, on itself, is that it would not exercise jurisdiction unless substantial injustice has ensued or is likely to ensue. It would not allow itself to be turned into a court of appeal to set right mere errors of law which do not occasion injustice. (Sangram Singh v. Election Tribunal, Kotah16). Even when some defect is found in the decision making process, this Court will exercise its discretionary power, under Article 226 of the Constitution of India, with great caution and only in furtherance of public interest and not merely on the making out of a legal point. This Court is required to keep larger public interest in mind in order to decide whether intervention is called for or not. Only when it 15 2004 (5) ALD 180 (DB) 16 AIR 1955 SC 425 29 HACJ &MSM,J WP No.5220 of 2015 & batch comes to the conclusion that overwhelming public interest requires interference, would it intervene in the matter. (Air India Ltd. v. Cochin International Airport Ltd.17). Persons, who continue to remain in illegal occupation of shops belonging to a Charitable Trust, cannot be heard to contend that, though they continue to remain in illegal occupation, the respondents can only have them evicted in accordance with the summary procedure prescribed under Section 83 of the Endowments Act.

The question of dispossessionof these petitioners in pursuance of the auction does not arise, since the lease/license period will commence from thedate of handing over the premises to the highest bidder. If the petitioners participate in the auction and bid is knocked down in their favour, they can retain possession. Therefore, the apprehension of the petitioners in all these writ petitions that they will be dispossessed by the executive authorities of the endowment institutions/temples is misplaced as the administrative authorities could not resort to such extra-judicial procedures to evict the persons in occupation, in normal course.

In any view of the matter, since the scope of judicial review, under Article 226 of the Constitution of India, is limited, as discussed above in the earlier paragraphs, and such discretion cannot be exercised in favour of a wrong doer i.e. the persons in wrongful possession. It is difficult to issue a direction to the respondents not to evict the petitioners except by due process of law while exercising power under Article 226 of the Constitution of India and the remedy available to those persons who are apprehending their dispossession otherwise than under due process of law, is 17 (2000) 2 SCC 617 30 HACJ &MSM,J WP No.5220 of 2015 & batch elsewhere and not under Article 226 of the Constitution of India, this view is fortified by various judgments.

When a person approaches a Court of Equity in exercise of its extraordinary jurisdiction under Article 226 of the Constitution, he should approach the Court not only with clean hands but also with clean mind, clean heart and clean objective. (vide The Ramjas Foundation v. Union of India18; K.R. Srinivas v. R.M. Premchand19). Thus, who seeks equity must do equity. The legal maxim "Jure Naturae Aequum Est Neminem cum Alterius Detrimento Et Injuria Fieri Locupletiorem", means that it is a law of nature that one should not be enriched by the loss or injury to another.

In Nooruddin v. (Dr.) K.L. Anand20, the Apex Court observed as under:

"..............Equally, the judicial process should never become an instrument of appreciation or abuse or a means in the process of the Court to subvert justice."

Similarly, in Ramniklal N. Bhutta v. State of Maharashtra21, the Apex Court observed as under:-

"The power under Article 226 is discretionary. It will be exercised only in furtherance of justice and not merely on the making out of a legal point....... the interest of justice and public interest coalesce. The Courts have to weigh the public interest vis-a-vis the private interest while exercising the power under Article 226...... indeed any of their discretionary powers."

In Dr. Buddhi Kota Subbarao v. K Parasaran22, the Supreme Court has observed as under:-

AIR 1993 SC 852 19 (1994) 6 SCC 620 20 (1995) 1 SCC 242 21 AIR 1997 SC 1236 22 AIR 1996 SC 2687

31 HACJ &MSM,J WP No.5220 of 2015 & batch "No litigant has a right to unlimited drought on the Court time and public money in order to get his affairs settled in the manner he wishes. Easy, access to justice should not be misused as a licence to file misconceived and frivolous petitions." Similar view has been reiterated by the Supreme Court in K.K. Modi Vs. K.N. Modi & Ors23.

In view of the law declared by this Court and the Apex Court in the judgments referred above, when the person approaches the Court with clean hands, the Court can exercise its discretionary power under Article 226 of the Constitution of India, not the petitioners herein, who approached the Court with unclean hands being the encroachers as contended by them. Whereas it is the duty of the Court to strike the balance between public rights and private rights as held by the Apex Court in Ramniklal N. Bhutta v. State of Maharashtra(referred supra). At the same time, in Chenchu Rami Reddy v. Govt. of A.P (referred supra) and Cyrus Rustam Patel v. Charity Commissioner, Maharashtra State (referred supra), the Apex Court made it clear that the property of endowments institutions or temples must be jealously protected as large segment of the community has beneficial interest in it. If the principle in Ramniklal N. Bhutta v. State of Maharashtra (referred supra) is applied to the present facts, in view of the judgments in Chenchu Rami Reddy v. Govt. of A.P (referred supra) and Cyrus Rustam Patelv. Charity Commissioner, Maharashtra State (referred supra), the Court must lean towards protecting the public interest and not the private interest i.e. in the interest of the petitioners while exercising power under Article 226 of the Constitution of India. Therefore, we find no merit in the 23 (1998) 3 SCC 573 32 HACJ &MSM,J WP No.5220 of 2015 & batch contention raised by the learned counsel for the petitioners. Accordingly, this point is answered.

In view of our findings on point Nos.1 and 2, we find no error in the procedure followed by the executive authorities in issuing notifications for sale of license/lease hold rights of various premises of the endowment institutions or temples and that the petitioners are disentitled to claim a direction against the respondents not to dispossess them except by due process of law since this Court cannot exercise discretionary power in favour of wrong doer i.e. petitioners, who are continuing in possession wrongfully being encroachers as described in the Explanation to Section 83 of the Endowments Act. If any representations are pending consideration, the executive authorities are directed to dispose of those representations immediately and follow the procedure to take possession of the property. But, the proceedings, if any initiated or pending for eviction of the encroachers in occupation of the premises will not preclude the executive authorities and proceed with the auction of lease hold rights or confirmation of right of license, since the period of lease/license commences from the date of handing over the premises to the highest bidder in terms of notifications referred supra.

With the above directions, all these writ petitions are disposed of. No costs. The Miscellaneous Petitions, if any pending, shall also stand disposed of.

_______________________________________________ ACTING CHIEF JUSTICE C. PRAVEEN KUMAR __________________________________________ JUSTICE M. SATYANARAYANA MURTHY Date:04-06-2019.

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