IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD Wednesday, the 15th DAY OF SEPTEMBER, TWO THOUSAND AND TEN PRESENT HON'BLE SRI JUSTICE A.GOPAL REDDY AND HON'BLE SRI JUSTICE RAJA ELANGO WRIT PETITION No.5399 of 2009 Between: M.R.Choudary and another … Petitioners And The Government of A.P., Rep. By its Principal Secretary and others … Respondents This Court made the following: HON’BLE SRI JUSTICE A.GOPAL REDDY AND HON’BLE SRI JUSTICE RAJA ELANGO WRIT PETITION No.5399 OF 2009 ORDER: - (Per Hon’ble Sri Justice A.GOPAL REDDY) Petitioners, claiming to be the devotees of Sri Lakshmi Narasimha Swamy Temple Devasthanam situated at Road No.12, Banjara Hills, Hyderabad, filed this writ petition in the form of Public Interest Litigation, questioning the G.O.Ms.No.359, dated 28.02.2009, issued by respondent No.1 deciding to allot the land admeasuring Acs.5-09 guntas in survey Nos.4/1 and 4/2 of Shaikpet village, belonging to respondent No.4-Sri Laxminarasimha Swamy Temple Devasthanam, represented by the Executive Officer to respondent No.3- Hare Krishna Movement, represented by its Vice Chairman, on long lease basis, as proposed by the Commissioner, Endowments Department-respondent No.2, dated 10.09.2008. According to the petitioners, respondent No.3 sought the land on a long lease basis of 99 years on a token rent for carrying out the activities of its renovation, restoration, up-gradation, maintenance of the existing and ancient temple, reviving the rituals and festivals connected with the deity as well as construction of religious cum cultural complex to promote religious activities, which will be designed as a major tourist destination, in addition to a monumental complex which contains meditation halls, classrooms, library, yoga and ayurvedic clinics etc., by an application, dated 17.07.2008, to respondent No.2, who gave a report, dated 10.09.2008, to the Government, stating that only Acs.5-09 guntas of land is still in the possession of the temple and that the temple itself be handed over to respondent No.3. If the same is handed over to respondent No.3, it is nothing but violation of Section 83 of the A.P.Charitable, Hindu, Religious Institutions and Endowments Act, 1987 (hereinafter referred to as “the Act”). Under sections 80 to 82 of the Act, every transfer of the land on lease under the Act, shall be only by way of public auction but not by allotment and the present allotment of the land by way of a long lease without any public auction is clearly violative of Sections 80 to 82 of the Act. This Court in W.P.No.24445 of 2005 passed an interim order directing that no endowment property can be leased, except by way of public auction and the G.O. issued by the Government runs contrary to the directions as referred to above. Respondent No.1 under the guise of considering the adoption of respondent No.4 by respondent No.3 is actually leasing out the land to respondent No.3 in violation of the Act and directions issued by the Court. The handing over of respondent No.4, which follow the Pancharatra agama system of worship, to respondent No.3 to propagate its mission is clearly not for the benefit of respondent No.4 and any such action of leasing out the property and its entrustment by respondent Nos.1 and 2 to respondent No.3, is contrary to the religious practice followed by respondent No.4. Respondent No.2 filed a counter affidavit on behalf of respondent Nos.1 and 2, opposing the claim of the petitioners contending that respondent No.4-Temple is published under Section 6 (C) (ii) of the Act 30/1987 and registered under Section 43 of the Act 30/1987. As respondent No.4 temple has no sufficient funds for conducting daily rituals and payment of salaries to the Archakas and others, the temple was given in adoption to respondent No.5 temple. The Poojas and the rituals are conducted in accordance with Panchratra Agama, one of the Agama Worship in a Vaishnavate Temple. Respondent No.4 is an ancient temple. A sale deed was executed by Aaval Beharilal, Poojari of the temple on 26.12.1949, which shows that an extent of Ac.47-19 guntas in survey No.129, Shaikpet Village was given to respondent No.4 temple by Sri Maharaja Sri Krishna Prasad, Jagirdar in the year 1907. A register under Section 43 of the Act was prepared on 14.12.1993 showing the above land and a survey was conducted by surveyors deputed by the Deputy Director, Survey and Land records of Hyderabad. Survey No.129, corresponding to T.S.Nos.4/1, 4/2, 7/1, 7/2, and 7/3 comprised of Acs.26-36 guntas were traced. Out of Acs.26-36 guntas in the survey only Ac.4-38 guntas is found to be under the possession of the temple in T.S.Nos.4/1 and 4/2 measuring Acs.5-09 guntas. The remaining land is under encroachment and pucca buildings are constructed. There are civil litigations pending against the encroachers with regard to the encroachment of the remaining land before X Junior Civil Judge, Hyderabad and II Additional Chief Judge, City Civil Courts, Hyderabad under various suits. The Lokayuktha took up the investigation on the complaint numbers 282/09/B1, 24/04/B1 and 363/07/B1 and the same are pending. A petition was also filed in L.G.C.No.29 of 2008 for eviction of one encroacher before the Land Grabbing Court and the same is pending. Respondent No.5-Sri Lakshmi Narasimha Swamy Devasthanam, Yadagirigutta engaged an Archaka and paying Rs.1,500/- per month and also a watchman with a salary of Rs.1,000/- per month and also engaged three security guards to prevent further encroachments. They have been constructing a compound wall at a cost of Rs.29.00 lakhs and 90% of the work is already completed. The encroachers are not allowing the staff of the temple to enquire about the names of the encroachers to initiate eviction proceedings and the persons residing in the near by slum are making efforts every day to further encroach into the site of the temple and to put up constructions in the houses etc. Respondent No.3 came forward to take up some devotional activities in the temple and its surrounding lands, such as renovation, restoration, up gradation, maintenance of the existing ancient temple, reviving the rituals and festivals connected with the deity as well as construction of religious cum cultural complex to promote religious activities, which will be designed as a major tourist destination in addition to a monumental complex, which contains meditation hall, class rooms, library, yoga and ayurvedic clinics etc. by investing substantial amounts to turn the above said mansions into a magnificent and iconic destinations in Hyderabad city charged with spiritual, cultural and social beneficial activities for the betterment of the society like that of ISCKON, Bangalore temple and therefore, requested to allot the above said land in question on a long lease basis for 99 years at a token rent. The Executive Officer of respondent No.5 in his letter Rc.No.B3/1229/2008, dated 02.09.2008, addressed to the Commissioner, Endowments Department, has recommended to consider the request of respondent No.3 for all round development of the temple. The Government and the Commissioner of Endowments took the following circumstances namely i) requirement of funds for conducting daily rituals of the temple, ii) protecting the remaining small extent of the land to the temple, iii) the officer of respondent No.3 to develop the temple and the remaining land for spiritual purposes, and granted the lease of the land to respondent No.3 with conditions. It has to be noted that lease was granted after calling for objections by a notification in daily newspaper by name Andhra Bhoomi on 13.02.2009. The Government ordered in G.O.Ms.No.359, Revenue (Endowments – II) Department, Government of A.P., dated 28.02.2009, that the land in question shall be allotted to respondent No.3 on long lease basis. Taking such decision, the Commissioner of Endowments issued a memo, dated 02.03.2009, to the Executive Officer of respondent No.5 with the following instructions: - ‘A copy of the G.O. in reference 3rd cited is herewith communicated to the Executive Officer, Sri Lakshmi Narasimha Swamy Devasthanam, Yadagirigutta, Nalgonda District. He is requested to handover possession of the land immediately. He should enter into a lease agreement for 33 years with a rent of Rs.20,000/- per acre per annum with the lessee with an enhancement of lease amount @ 10% for every five years over the then existing rent. He should ensure that the lessee undertakes to renovate and develop the existing temple of Sri Lakshmi Narasimha Swamy Devasthanam in such a way it would be a primary temple in the locality and create interest in the devotees to visit the temple regularly.’ The Government issued G.O.Ms.No.866, Revenue (Endowments-II), Department, dated 08.08.2003, with regard to lease of non-agricultural lands, where Rule 4 permits granting of lease for more than three years after calling for objections by notification in the locality. Hence the said procedure has been followed in granting the lease. Respondent No.3 also filed a counter and also vacate stay petition detailing its various activities undertaken through out the country and it is proposing to develop the temple and surrounding as detailed below: 1. Renovation, restoration and up-gradation of the existing and ancient Sri Lakshmi Narasimha Temple located in the premises. A small temple that is said to be worshipped since the seventh century AD is in the premises. Respondent No.3 to improve the upkeep of the temple and the surrounding areas. In addition, respondent No.3 shall revive the rituals and festivals connected with the Deity in the temple. 2. Religious-cum-cultural complex also set up a complex of monumental size and iconic architecture combining elements of traditional and modern architecture. This complex will become a major tourist destination and pride of the city of Hyderabad. In Bangalore, their organization has set up such a Religious and Cultural Complex that has become one of the most visited places in the city. In Bangalore, their complex is visited by about 8000 people everyday and about 15,000 people on weekends. They have also planned similar monuments in Jaipur, Rajasthan and Mysore, Karnataka, in the lands allotted by the respective State Governments. The monumental Complex that is planned in Hyderabad will have a meditation hall, classrooms, library of the source books of Indian culture and heritage, yoga and ayurvedic clinic. These will be used to impart value-based education for the younger generation and adults with the objective of moral rearmament of the society. They are ready to instruct lesson modules developed in Bangalore for these workshops and courses. 3. Centre for performing Arts to create an opportunity for the youth of the city to learn various kinds of dance forms of India, and particularly dance forms and styles from Andhra Pradesh. There will also be opportunities for training and production of dance-dramas. This center shall also include a 1000 seater auditorium for staging these productions. This center will also have class rooms for conducting workshop for students in arts, handcrafts, puppet shows, plays, etc., during summer holidays an vacations. The proposes development pictures are filed along with the counter as Annexure-9. A reply affidavit has been filed by the petitioners to the vacate stay petition filed by respondent Nos.2 and 3, reiterating the very same averments, which need not be detailed. Learned counsel for the petitioners contends that the impugned G.O., does not indicate how the interest of the institution is protected by granting long lease in favour of respondent No.3. Under Section 82(4) of the Act 30/1987, a lease of immovable property other than the agricultural land shall be only by way of public auction but not by negotiation. The lease was granted to respondent No.3 to construct meditation halls etc., for the purpose of carrying out its objectives, which are detriment to respondent No.4 temple, where respondent No.4 will follow Pancharatra agam system of worship, which will not be followed by respondent No.3. Therefore, the grant of lease in favour of respondent No.3 without public auction, is liable to be quashed. Per contra, learned Government Pleader would contend that the grant of lease of the land for 33 years in favour of respondent No.3 is with a condition to renovate the temple and perform the poojas of the temple in accordance with the system which could have been followed namely Pancharatra Agama System of worship and provide amenities to the devotees and worshippers of the devotees. Out of Acs.47-19 guntas, which was registered in the name of respondent No.4, only Acs.5-09 gutnas of land is available now and if the same is not protected by making necessary constructions, namely meditation halls, library etc., and compound work encircling the available land, the same will be encroached in the near future and no land will be available. Learned counsel for respondent No.3 also contends that the temple has not been handed over to respondent No.3 for commercial purpose and the condition of the lease also discloses that the temple has been handed over to respondent No.3 only to renovate the temple and restore its past glory to attract more devotees and provide facilities to the worshippers by making necessary constructions. Respondent No.3 is not constructing any commercial complex to get an income out of the said commercial complex, but it is only propagating religious sentiments of the people, particularly the devotees of the temple. Section 82 (1) and (2) of the Act governs the case of agricultural lands only. Sub section (4) only provides any lease or licence of any immovable property, other than the agricultural land belongs to the temple or given or endowed for the purpose of any charitable or religious institution or endowment subsisting on the date of the Act, will be continued to be in force subject to the rules as may be prescribed under sub-Section (3). The Rules known as the Andhra Pradesh Charitable and Hindu Religious Institutions & Endowments Immovable properties and other rights (other than Agricultural Lands) Lease and Licences Rules, 2003, were framed, through G.O.Ms.No.866, dated 08.08.2003. Under Rule 3 (1), all leases or licences shall be made by way of public auction. The Commissioner may, on a request made in writing by the executive authority permit the lease of any property or right otherwise than by way of public auction, if he is satisfied, for reasons to be recorded in writing, that the interest of the institution or endowments will not suffer thereby. He may grant permission to such executive authority to grant a lease otherwise than by way of public auction. Sub-rule (2) of Rule 3, specifies conduction of the public auction at the places where the properties are situated for grant of lease or licences. Under Rule 4(1) lease of immovable properties such as building and sites to be given or used for residential purposes only, leases shall be granted. Under Rule 4, sub-Rule (3) (b) (iii) the Government shall be the competent authority to grant permission for any lease or licence for a period exceeding five years by duly following the procedure. No construction was made as admitted by the petitioners and it is only a vacant land. When respondent No.4-temple is starving for want of funds, which was adopted by respondent No.5, to perform day- to-day pojas, it necessitated to generate income on its own by renovating the temple and when the voluntary organization of respondent No.5 comes forward for its renovation, restoration and upgradation for the beneficial enjoyment of the worshippers of the deity and to improve the upkeep of the temple, there is nothing wrong in permitting to such renovation by leasing out the property. Respondent No.3 society was not deriving any income out of the constructions so made nor it was permitted to sub-lease the property, except to renovate the temple and make such constructions for beneficial enjoyment of the devotees of the temple. In the absence of any mala fides attributed to the Commissioner in approving the lease otherwise than by public auction, this Court cannot find fault with the discretion exercised by the Commissioner in recommending to the Government for leasing of the property for better utility. The Government after considering the interest of the institution, namely to protect the remaining extent of the land by making such construction for beneficial enjoyment and providing facilities to the worshippers of temple, issued the impugned G.O. permitting to lease out the property. We do not see any impairment of public interest by leasing out such properties to respondent No.3, warranting judicial intervention. Writ Petition fails and is accordingly dismissed. There shall be no order as to costs. ________________ A.GOPAL REDDY, J ______________ RAJA ELANGO, J 15th September 2010 lmv