Mallikarjunapalli Obulesh vs The Revenue Divisional Officer, Dharmavaram, Anantapur District and others

Hon''ble Justice Mr. S.H. Sheth

The Petitioner is the tenant in respect of the lands in question which belong to the 3rd respondent Sri Anjaneya Swamy Temple, Kalyandurg. He was inducted into the possession of the lands under a lease deed on 1st April, 1969. It was a lease period of one year, It is his case that he has located the engine. The lease was granted by the Trustee of the Temple However, the Commissioner, Hindu Religious and Charitable Endowments (hereinafter referred to as "the commissioner)" vetoed that lease. Therefore the 3rd respondent notified the land for reauction. In order to protect his rights, the petitioner made an application to the Tahsildar in which he prayed for an injunction restraining respondent No. 3 from holding the reauction and disturbing his possession. In these proceedings interim injunction was granted by the Tahsildar. However, the Tahsildar dismissed the application on merits. During the pendancy of those proceedings, respondent No. 3 made an application against the petitioner for evicting him on the allegation that he had been in default of payment of rent. While dismissing the application made by the petitioner on merit, the Tahsildar also made on order evicting the petitioner from the land in question. The petitioner appealed to the Revenue Divisional Officer against that order. The appeal failed and was dismissed.

It is that order which is challenged by the petitioner in this writ petition. The first contention which has been raised by Mr. E Subrahmanyam is that the Commissioner had no authority to veto the lease. Now the lease deed was executed in 1969 and by virtue of the agreement between the parties incorporated therein it was to remain in force from 1st April, 1969 to 31st March, 1970.

In order to examine the question whether the Commissioner had the authority to veto the lease, it is necessary to refer to the Anhdra Pradesh Charitable and Hindu Religious Institutions and Endowments Act, 1966, (hereinafter referred to as "The Religious Institutions Act") Section 70 to which my attention has been invited, inter alia, provides as follows :

(1) Any tease for a term exceeding six years and any gift, sale, exchange or mortgage of an inam land granted for the supporter maintenance of a charitable or religious institution endowment or for the performance of a religious or public charity or service, shall be null and void unless any such transaction, not being a gift, is executed with the prior sanction of the Government.

The provision makes it clear that if a charitable or religious institution or endowment grants a lease for a period exceeding six years, it is null and void unless has been granted with the prior sanction of the Government. Another section to which my attention has been invited is section 74. Section 74 deals with alienation of immovable property religious or charitable institution or endowment. It specifies gifts, sales, exchanges and mortgages of immovable property belonging to such institutions. It does not specify leases. Therefore, when I compare the provisions of section 70 with the provisions of section 71 of the Religious Institution Act, it becomes clear, as the applicability to the instant case in concerned, that whereas section 70 embraces within its sweep leases, section 74, therefore, has no application to the transaction of a lease.

Now, though the lease in question was granted for one year, since it was governed by the Andhra Pradesh (Andhra Area) Tenancy Act, 1955 (hereinafter referred to as "The Tenancy Act") the minimum period for which it would continue in force under sub-section (1) of section 10 would be six years. By virtue of the statutory provision enacted in sub-section (1) of section 10 of the Tenancy Act, the lease in question had the effect of containing in force for six years. Now, section 70 requires the prior sanction of the Government in case of lease for a term which exceeds six years. Since in the instant case, the lease had the effect of continuing in force for a period of six years and not more, section 70, sub-section (1) was not attracted to it. Sub-section (3) of section 10 of the Tenancy Act, gives the landlord the right to resume the land after the expiration of the term of the lease which in this case would be six years. I am referring to sub-section (2) of section 10 shortly. However, there is no other provision in the Act which would enable the tenant in possession of the land under lease for a period of more than six years. It is therefore clear that the lease which was executed by respondent No. 3 in favour of the petitioner-tenant without the prior sanction of the Government was not his by the provisions of section 70 (1) of the Religious Institutions Act.

Now, section 107 of the Religious Act confers upon the Government rule-making power, I am told that no rules on this subject have been made u/s 107. Section 109 provides for repeals and savings. By sub-section (1), the Andhra Pradesh (Andhra Area) Hindu Religious and Charitable Endowments Act, 1951, has been repealed Subsection (2) provides for section 109, notwithstanding the repeal of Andhra Pradesh (Andhra Area) Hindu Religious Endowments Act of 1961, all rules made under the repealed act shall, in so far as they are not inconsistent with the present Act, shall be deemed to have been made under the corresponding provisions of the present Act. It is further provided that such Rules shall have effect accordingly until they are modified, cancelled or superseded under the provisions of this Act. By virtue of the provisions of sub-section (2) of Section 109 the Rules made under the repealed Act, continue to remain in force. Under the repealed Act, several sets of Rules were made. Rule 10 of the Rules made u/s 100 (2) (m) of the repealed Act provides as follows)

All leases stipulating an annual rental of Rs. 500/- or more or its equivalent in paddy or other produce, shall be reported to the Commissioner who shall have power to veto such lease. If within one month from the date of receipt by the Commissioner no order vetoing or cancelling the lease is received the lease shall be deemed to have been approved.

In the instant case, the Commissioner has vetoed the lease under this Rule. The rent reserved under the present lease is Rs. 1200/- per annum. Therefore, the first condition specified in Rule 10 was satisfied. However, the question which has been raised, is whether Rule 10 continues to be in force by virtue of the provisions of sub-section (2) of section 109 of the Religious Institutions Act. Under sub-section (2) of section 109 Rule 10 would continue to be in force if it is "not inconsistent with this Act". Therefore, the question which I am required to answer is whether Rule 10 is inconsistent with any of the provisions of the Religious Institutions Act. Rule 10 confers upon the Commissioner power to veto any lease whether it is for a period or one year or mere. The only condition precedent dent is that annual rental reserved under it must be Rs. 500/- or more or its equivalent in paddy or other produce. Now section 70 of the Religious Institutions Act, 1966, does not require the sanction of the Government for a lease which is for a period of six years or less. Indeed section 70 provides for prior sanction of the Government and not of the Commissioner. Section 74, which provides for the prior sanction of the Commissioner in respect of certain transactions, excludes leases altogether. Therefore, when sections 70 and 71 are read together, it is clear that so far as lease for a period of six years or less is concerned, neither the prior sanction of the Government nor the prior sanction of the Commissioner is required. As against this position which emerges from a comparative reading of sections 70 and 74 of the Religious Institutions Act, I find that rule 10 made u/s 100 (2) (m) of the repealed Act confers upon the Commissioner power to veto any lease. Sections 70 and 74 indeed, provide for prior sanction to the transactions specified therein. They do not confer upon the Commissioner power to veto a lease. However, if sections 70 and 74 which provide for the voidness of certain transactions including leases under certain circumstances are not attracted to the instant case, it is difficult to think that the Commissioner power of veto under Rule 10 still continues to be in force. In my opinion, Rule 10 which provides for veto is inconsistent with sections 70 and 74 of the Religious Institutions Act. Therefore, by virtue of the provisions of sub-section (2) of Section 109 of the Religious Institution Act, Rule 10 made u/s 100 (2) (m) of the repealed Act did not continue to be in force after the old Act was repealed. In my opinion, the Commissioner had therefore no power to veto the present lease.

Assuming that I am in error in holding that Rule 10 did not continue in force after repeal of the old Act and that it was applicable to the present transaction when it was entered into, even then the Commissioner had no power to veto the lease. He could exercise his power of vetoing the lease within one month from the date of receipt of the report by him. In the instant case, the lease in question was executed on 1st July 1969 even though it came into effect retrospectively from 1st April 1969. There is nothing on record to show when the report in respect of this lease was made by respondent No. 3 to the Commissioner. In normal course therefore, I assume that it must have been reported to him immediately. The Commissioner vetoed the lease on 21st October, 1969 that is to say after a period of one month specified in Rule 10. He had no authority to veto it after the expiry of the period of one month On the contrary since he did not veto it within a period of one month specified in Rule 10, the lease was deemed to have been approved by him. Therefore, in any view of the matter, the Commissioner in the instant case exercised his power of veto without authority.

I have referred to the minimum period of lease provided in sub-section (2) of section 10 of the Tenancy Act. Sub-section (2) which has been amended from time to time, provides for a exception. In 1969 when the lease was executed sub-section (2) of section 10 provided as follows:--

Notwithstanding anything in sub-section (1) ail tenancies, subsisting at the commencement of this Act and all leases entered info after such commencement shall continue to be in force till the expiration the periods of the said tenancies and leases or until the legislature of the State by law otherwise, provides whichever is later, on the same terms and conditions as before, but subject to the determination of fair rent in case of disputes in respect of any tenancy subsisting at the commencement of this Act.

This sub-section as it was in 1969, not only governed leases or tenancies subsisting at the commencement of the Act but also all lenses entered into after such commencement. The lease in question was entered into in 1969 after the commencement, of the Tenancy Act. 1956 Therefore, by virtue of the provisions of Sub-section (2), it would continue in force until the expiration of the period of the said lease or until the Legislature of the State by law otherwise provided. The lease in question was for a period of one year but that period has got to be construed in light of the provisions of sub-section (1). It was therefore for a period of six years. Unless the Legislature of the State by law otherwise provided extending the period of the lease, it would have expired on 31st March, 1975 I am told that in 1971, sub-section (2) of section 10 was further amended and that it was provided that such leases would expire on the expiry of six years from the date of the commencement of the said Amendment Act. However, this amending Act has not been shown to me. I am therefore unable to apply it to the instant case. Now, it is clear from the reason stated above that the Commissioner firstly had no power or authority to veto the lease and that therefore its validity could not be set naught by the Commissioner vetoing it later. Secondly, when the petitioner filed the petition (Tenancy petition No. 1 of 1970), for injunction and respondent No. 3 filed the tenancy petition for eviction (Tenancy petition No. 1 of 1974) the petitioner had the right to continue in possession of the land till 31st March, 1975. In the ordinary course, therefore, the petitioner could not have been evicted from the land in question in these proceedings. Similarly the land could not have been put to re-auction nor could his possession have been disturbed.

The next question which has been raised before me is whether u/s 13 of the Tenancy Act, the petitioner could be evicted from the land in question. It was allowed by respondent No 3 that the petitioner had failed to pay the rent within time and that therefore he was liable to be evicted. The contention raised by respondent No 3 appealed to the Tahsildar and the Revenue Divisional Officer. Therefore, an order of eviction was made against the petitioner. The first contention which has been raised by Mr. E Subrahmanyam on behalf of the petitioner is that in the petition filed by the tenant to obtain an injunction to protect his rights he could not have been evicted. He has also stated to me that the petition filed by Respondent No. 3 against the petitioner has not been decided and that unless it was decided no order of eviction could have been made against the petitioner. It has been stated in the counter-affidavit filed on behalf of respondents Nos. 1 and 2 that the Tahsildar, had heard the petitioner''s petition for injunction and respondent No. 3''s petition for eviction together, and made a common order. This averment made on behalf of respondents 1 and 2 has not been controverted by the petitioner in a reply. Having perused the impugned orders of the Tahsildar, the Collector it appears to me that before the Tahsildar evidence was led not only in respect of the petitioner''s petition for injunction but also in respect of respondent No. 3''s petition for eviction. The parties were the same. The controversies which arise in both the petitions were such as could be decided by a common order. Whereas his petition, the petitioner-tenant had been claiming protection of his possession by seeking an injunction against respondent No. 3. Respondent No. 3 in his petition was seeking to evict him on the ground of default in payment of rent. These two petitions could have been decided together. Since the parties had led evidence in respect of both these petitions, the Tahsildar and the Revenue Divisional Officer, could make a common order. There was nothing wrong in it, However Mr. B. Subramanyam has argued that, the Tahsildar had in his final order made reference to the tenancy petition alone and had not referred to the eviction petition filed by respondent No. 3 at all. If in substance a common order could be made, nothing would turn upon whether the impugned order of the Tahsildar mentioned the number of one petition or the numbers of two petitions. Therefore, first contention which he has raised cannot be accepted. The second contention which he has raised is that the Tahsildar and the Collector were in ordering the eviction of the petitioner on the oral evidence led by respondent No. 3. This argument raised by Mr. E. Subramanyam is wall founded. Sub-section (1) of section 10 contemplates a written lease between the parties after the commencement of the Tenancy Act. Therefore in the instant case there must have been a written lease between the parties. u/s 13, the liability of a tenant to be evicted arises if he fails to pay the rent due from him within a period of one month from the date stipulated in the lease deed. Respondent No. 3 did not produce the lease deed. Therefore it could not be determined which date was stipulated for payment of rent. The learned Government Pleader who appears for respondents 1 and 2 has pointed out after going through the record that there is on record a lease executed in 1967. I am not concerned with that lease because, in the instant case, the parties are governed by the lease executed in 1960. Therefore, the second Part of clause (a) of section 13 does not come into play because it provides for the alternative situation where the date of payment has not been stipulated in the lease deed. Unless therefore respondent No. 3 produced the lease deed, it could not be determined whether any date for payment was stipulated or not and if it was stipulated what was that date. It is needless for me to say that if the date is stipulated in the lease deed, he must pay within one month from that date failing which he incurs the liability for eviction, Therefore, in the instant case, the material evidence which respondent No. 3 was required to produce for obtaining an order of eviction against the tenant was not produced by him. In these circumstances, both the Tahsildar, and the Collector were in error in passing the impugned order of eviction against the petitioner on the basis of oral evidence led by respondent No. 3. In the aforesaid circumstances, the order of eviction cannot stand. Therefore the writ petition is allowed with costs. The impugned order of eviction made against the petitioner is quashed. It is further directed that during the currency of the lease in question, respondent No. 3 shall not disturb the petitioner''s possession of the land except in accordance with law. The costs which I have ordered will be paid to the petitioner by respondent No. 3. There shall he no order as to cause to costs of respondents 1 and 2.