HON’BLE SRI JUSTICE NOUSHAD ALI Writ Petition Nos.5874 & 12504 of 1998 COMMON ORDER: These two writ petitions, relating to the same subject, are being disposed of by this common judgment. W.P.No.5874 of 1998 has been filed seeking a Writ of Mandamus directing respondents 1 to 3 not to alienate the lands in Sy.No.349/2 of Darsi Village and Mandal belonging to Sri Seetharamaswamy Vari Temple, either by way of lease or on rent in favour of the fourth respondent-association by declaring the proceedings in Rc.No.B5/7427/97, dated 21.01.1998 of 3rd respondent herein, namely, the District Collector, Prakasam District, as illegal and without jurisdiction. W.P.No.12504 of 1998 has been filed by the 4th Respondent- Association in W.P.No.5874 of 1998 seeking a Writ of Mandamus directing the respondents therein to fix the market value of the land admeasuring an extent of Ac.5.00 cents situated in S.No.349/2 of Darsi Village and collect the same from the members of the petitioner-association without resorting to tender-cum-public auction. Land admeasuring an extent of Ac.34.05 cents situated in S.No.349/2 of Darsi Village belongs to Sri Seetharamaswamy Vari Temple, Darsi. It appears that the State Government took a policy decision in the year 1997 to remove encroachments and widen R & B and Panchayat roads through out the State. In implementation of the said policy, the District Collector, Prakasam, directed to remove 99 Auto Mechanic Sheds from the road margins in Darsi Village. The Government issued orders in G.O.Ms.No.560, General Administration (Genl.) Department, dated 22.02.1997, authorizing the District Collectors to take over the lands of other departments for the purpose of rehabilitation of the displaced persons, without formal approval of the concerned departments. Purportedly acting under the said orders, the District Collector issued orders in Rc.B5/7427/97 dated 21.01.1998, earmarking Ac.0.05 cents of vacant land for each automobile unit in S.No.349/2 on payment of nominal rent, to enable the displaced persons temporarily to locate their units subject to condition that the land would remain with the Endowment Department and after five years, the concerned department would collect market-related rents from the rehabilitated persons. After identifying 99 mechanics as eligible for rehabilitation, the Assistant Commissioner, Endowments was directed to earmark vacant land and hand over the possession to the displaced persons in consultation with the Mandal Revenue Officer, Darsi. As the land belongs to the temple and the same does not belong to the Government, 2nd respondent herein viz., the Commissioner of Endowments, Hyderabad requested the District Collector not to proceed with the allotments. As the 3rd respondent still pursued his order dated 21.01.1998, the petitioner in W.P.No.5874 of 1998 filed the writ petition seeking a direction to the respondents not to alienate the said land. The displaced persons formed an association, viz., The Darsi Motor Field and Handicrafts Association. Case of the Association is that in pursuance of the order of the District Collector dated 21.01.1998, the Executive Officer, Mandal Surveyor and V.A.O. divided the land and allotted one plot to each of its members. The members occupied their respective plots and erected sheds. Some of them have constructed pucca buildings and are eking out their livelihood by pursuing their respective avocations. To protect the interest of the members, the 4th Respondent- Association filed W.P.No.12504 of 1998 seeking to direct the respondents to fix the market value of the land and allot the same in their favour without resorting to tender or public auction and not to interfere with the possession and enjoyment of the said land. The 4th Respondent-Association admits that the land belongs to the temple but pleads that the Commissioner of Endowments in his proceedings Rc.No.M2/3130/1992, dated 28.07.1993 directed to sell the land in tender-cum-public auction and the Government also issued Memo No.54384/EIV-1/96-3 dated 29.10.1996 directing to dispose of the said land in tender-cum-public auction. The Association, therefore pleads that the land be sold to its members directly without any tender or public auction. In the counter affidavit filed in W.P.No.12504 of 1998 on behalf of the Commissioner of Endowments and the Assistant Commissioner of Endowments, Ongole, admitted the fact that the Commissioner by order dated 28.07.1993 granted permission to sell the land in public auction and after approval of the same by the State Government by Order dated 29.10.1996, the Executive Officer initiated follow up action. It has also been stated in the counter affidavit that the order issued by the State Government in G.O.Ms.No.560 dated 22.02.1997 is not applicable to the temple lands. The land allotted by the said order of the District Collector dated 21.01.1998 is the patta land of the temple and hence the District Collector was requested to cancel the order dated 21.01.1998. Since the land was proposed to be leased out on nominal lease amounts, the Commissioner of Endowments refused to accord permission for alienation in favour of the Association and as per the order of the State Government dated 29.10.1996 to dispose of the land in public auction only, requested the District Collector to advise the members of the association to participate in the auction and purchase the land, if they so desired. It was stated therein that the Executive Officer, Darsi Group of Temples placed the land measuring Ac.10.09 cents in public auction on 11.06.1998 and the average rate of rent came to Rs.12 lakhs per acre. The highest rate secured in the public auction was Rs.17,500/- per cent. It is admitted in the counter affidavit that the land has been occupied by the members of the association and the land cannot be sold except in the public auction. The average rate of land in S.No.349/2 secured in the public auction on 11.06.1998 was Rs.12 lakhs per acre and the value of the land occupied by the Association is more valuable than the said land sold in the publication. The Principal Secretary Revenue Department (Endowments) filed affidavit in W.P.No.5874 of 1998. Adverting to the order issued in G.O.Ms.No.560 dated 22.12.1997 the Principal Secretary admitted that in spite of the clarification issued by the Commissioner, Endowments Department vide letter Rc.M2/2259/1996, dated 6.02.1998 that the land belongs to the Temple (vide patta No.1408), the District collector did not take remedial measures to rectify the situation arising out of his order dated 21.01.1998. It has been admitted therein that the motor workers are poor and are eking out their livelihood by undertaking motor repairs and as the said petty motor workers have been in possession ever since 1998, it has been proposed to collect market value and accordingly decided to compensate the temple with a view to safeguard the interests of the Temple. The Government through G.O.Ms.No.467, dated 01.04.2009 constituted a three Member Committee under Section 89 of the A.P. Charitable and Hindu Religious Institutions and Endowments Act 1987 on permanent basis consisting of Joint Secretary to Government, Revenue (Endowments) Department, A.P. Secretariat, Hyderabad; Joint Commissioner, (Estates) Endowments Department O/o. the Commissioner of Endowments, A.P. Hyderabad; and Deputy Secretary to Government, Law Department, A.P. Secretariat, Hyderabad. The government issued directions to the said Committee to inspect the land for the purpose of fixing the market value after holding discussions/negotiations with the motor workers and submit a report. The Committee accordingly submitted a report with certain recommendations and the same was forwarded to the Government for consideration. The Report of the Committee dated 26-05-2010 submitted to the Government for consideration to the extent relevant is as follows : “1. The facts relating to location, encroachments etc. as revealed from physical verification of the site and verification of records : c. The ‘autonagar’ formed by the occupation of certain auto mechanics based on the proceedings issued by the then District Collector, Prakasam, as part of rehabilitation of those whose shops have been removed to widen road margins is located in 349/2 adjacent to the Erukula colony in survey No.349/1. The extent of this land is Ac.5.60 cents. Out of this approximately an extent of ac.1.85 cents is utilized for roads. The land excluding the roads is divided into 100 plots for allotment to the members as part of rehabilitation and thus the extent of each plot is approximately 3.75 cents. d. Of the 100 plots allotted, 46 are vacant as on this day and the rest 54 are occupied. The vacant plots are distributed in the entire site and some of them are due to uneven sizes of the plot. Of those who occupied, one is for residential purpose, six are for residence cum shop, one is for office of the Association, and one is for shopping complex by the association. e. Some of the occupants have constructed pucca sheds and buildings while some sheds are temporary in nature. f. The so called lay-out has been provided with civic facilities and importantly electrical and water facility. B. Regarding Collector’s proceedings relating to Autonagar : a) As per the proceedings of the District Collector, the rehabilitation of some members in land belonging to the temple was because they are “persons below poverty line and now they have been carrying out their activities/business under the shade of trees”. The recommendation to allot five cents of land uniformly to all those who have been evicted for extending the road margins though appear to be more than the requirement, it is not so because there is no provision made in that order for roads and for other public utilities. As such the occupants had to earmark some part of the land given to them for these purposes and develop the land for their business establishments. b ) The land has been allotted with the condition that the land (property) in question remains with the Endowment Department and after 5 years the concerned department would collect market related rents from persons so rehabilitated. However, as the orders of the Collector are not tenable to the endowments Department and in view of W.P. in Hon’ble High Court the occupants have continued to benefit without even payment of this rent for so many years. C. Regarding market value of lands occupied : a) The present basic value of the lands in the vicinity of land in survey no.349/2 as certified by the Sub-Registrar is Rs.3,96,000/-. However, the then District Collector of Prakasam in his letter to the Chief Secretary in June, 2009 (Rc.E3/7427/97, dated 15-6-2009) stated that the market value of the land is Rs.35.0 lakhs per acre. But subsequently in the letter addressed to the Principal Secretary, Endowments, the present Collector of Prakasam District (Rc.E3/7427/97, dated 20-4-2010) states that the present market value of the lands may be around Rs.15 lakhs to 20 lakhs. b) The views on the market value are varied for the reason that there is no way to correctly fix the market value as there are no sale transactions in and around this land in the recent past. The land other than the temple land here is agricultural land and not suitable for residential purpose and there are no approach roads and other civic facilities and hence the market value of those lands is low. This fact is evident from the basis value certificate issued by the Sub- Registrar. The rate of such lands is not comparable. The land on the other side of the road (just by the side of the road) has location advantage and the higher rates which may be offered to such lands also cannot be taken into consideration for fixing the market value of these lands.” On the facts as extracted above, to resolve the issue the committee made the following recommendations : “A. The District Collector can be requested to send proposals for exchange of land after identifying government land of equal value (market value @ 20 lakhs per acre as stated by the District Collector) anywhere in Prakasam District. Institutions need not have property in the same village where the temple is located. Such proposals can be considered by the Commissioner, Endowments as he is competent to approve the exchange of temple lands if it is in the interest of institution. There may not be any legal hurdles in such exchange. In case of such proposal, it is also necessary to consider demanding suitable lease amount from the occupants of the plots in the temple lands from the year 1998 as the temple suffered from loss of income it might have derived from such lands. B. The Hon’ble High Court has issued orders to sell any land belonging to temples of charitable institutions only through public auction. Sale or lease of land through negotiations/compromise is not permitted. However, if the Hon’ble High Court considers the present case as a special case and accords permission for compromise, the following can be considered. In view of the difficulties in ascertaining the present market value for the land and considering that the present market value of the land is because of the developments that have occurred subsequent to unauthorized occupation of the lands for so many years, the occupants of the plots can be demanded a basic price of Rs.5,500/- per cent which is the minimum/lowest bid amount, and hence acceptable for any plot irrespective of facing, shape and size of the plot in the public auction of plots conducted by the E.O. of temple in the year 1996 and a compound interest of 10% (as the average rate of interest earned for the deposits made for the amount derived from public auction of plots in the year 1996 is only 8.76%) since then for regularization and registration of plot in their favour. This comes to Rs.20,886/- and this is close to the higher end of the market value indicated by the District Collector, Prakasam. Further, the rate per square yard works out to Rs.288/- for the entire land of Ac.5.60 cents under the occupation of Autonagar residents. (It works out to Rs.430/- per square yard for the land actually occupied by them excluding roads and public spaces). [Thus it also approximates the average value per square yard certified by the Sub- Registrar for the first ward of Darsi village (certificate enclosed)]. The occupants of the shops/garages etc., shall pay the amount for the land actually occupied by them. This will be determined by a joint survey by Asst. Commissioner, Endowments, Prakasam District and Revenue Authorities represented by Tahsildar concerned and Executive Officer concerned. The above proposal is made keeping in view the circumstances under which the Collector has allotted the land to the occupants of the temple and land in view of the socio-economic conditions of the occupants. The rehabilitation of the persons who have lost their livelihood due to eviction for road widening is kept in mind. At the same time, the value of compensation for the temple property is reasonable.” The A.P. Charitable and Hindu Religious Institutions and Endowments Act, 1987 (for short ‘the Act’) has been enacted, inter alia, to protect the charitable institutions and endowments. Section 75 of the Act provides that any lease, gift, sale, exchange or mortgage of an inam land granted for support or maintenance of charitable or religious institution or endowment or for the maintenance of religious or public charity or service shall be null and void, unless such transaction not being a gift, is effected with the prior sanction of the Government. The Government may accord such sanction, if the transaction is necessary or beneficial to the institutions or endowment or in regard to the land when it is uneconomical to own and maintain and if the consideration is adequate and proper. Section 76 of the Act prohibits transfer of ryotwari patta of an inam land given to a service holder or other employee of a charitable or religious institution or endowment for rendering service, and provides that any such transfer does not vest any right or title in the transferee. Section 80 of the Act prohibits gift, exchange or mortgage of any immovable property unless any such transaction not being a gift is affected with the prior sanction of the Commissioner. It provides for the obligation of the Commissioner to invite objections and suggestions before any such sanction is accorded, through Gazette notification and if such transaction is beneficial to the institution or if holding such an immovable property is uneconomical to own or maintain and the consideration therefor is adequate and proper, sale shall be effected by tender-cum-public auction in the prescribed manner. It also provides that the Government may, in the interest of the institution or endowment and for reasons to be recorded therefor in writing, permit the sale of such immovable property, otherwise than by public auction. It is thus evident that neither lese nor sale of endowment property is permissible except for the purposes and in the manner provided under the aforesaid provisions of the Act. In the scheme of the Act, the District Collector is no way competent to deal with the endowment properties. The Act does not take cognizance of a District collector in relation to any of the efforts relating to religious or charitable institutions. The District Collector, Prakasam District therefore could not have assumed jurisdiction, which is not vested in him by law, and allot the temple land purportedly under G.O.Ms.No.560, dated 22.12.1997. As discussed supra, the State Government fairly admits the above position and the lapses on the part of the District Collector. The Government, however, pleads that consequent upon the order of the District Collector, dated 21.01.1998 certain developments on ground have taken place which have become irreversible. The Three Member Committee referred to supra, conducted a detailed enquiry and made recommendations based on the ground realities. It is therefore urged that the report may be accepted in the interests of the institution. It is true that the Three Member Committee inspected the land and submitted a report about the position on ground. It is reported that the extent of land allotted is Ac.5.60 cents, out of the said extent, approximately an extent of Ac.1.85 cents has been utilized for roads and rest of the land has been divided into 100 plots. The extent of each plot is approximately Ac.3.75 cents. Out of the 100 plots allotted, 46 are vacant and the rest are occupied. The vacant plots are distributed in the entire site and some of them are due to uneven size of the plot. Out of the plots occupied by the association one is residential, six are residential-cum- shops, one is office accommodation and one is for shopping complex. Some of the occupants have constructed pucca sheds and buildings while some sheds are temporary in nature. The layout has been provided civic facilities. Keeping in view the aforesaid circumstances and the circumstances under which the Collector allotted land to the occupants, and in view of the socio economic conditions of the occupants and the necessity to rehabilitate them, the Committee recommended for allotment of land on market value. The Committee having considered this aspect recommended the market Value @ Rs.20,886/- per cent, which works out to Rs.20,88,600/- per acre. The first respondent, therefore, has come up with the proposal to resolve the issue. The said terms are agreeable and consented to by all the parties. All the counsel for the respective parties, viz., Sri M.N. Narasimha Reddy on behalf of the petitioner in W.P.No.5874 of 1998 and Sri G. Pedda Babu on behalf of 4th respondent and for the petitioner in W.P.No.12504 of 1998 and Sri N.Sridhar Reddy, the learned Special Government Pleader appearing on behalf of the official respondents, are present in the Court and expressed their consent and approval to the said proposal, which is as follows. 1. The temple will be compensated in respect of the entire extent of Ac.5.60 cents of land @ Rs.20,886/- per cent. 2. The entire amount will be paid within 90 days from today. 3. The said amount will be deposited in a nationalized bank to the credit of Sri Seetha Rama Swamivari Temple, Darsi. 4. The interest accrued thereon alone will be utilized for the temple subject to a maximum of 1/3rd, only if necessary, as a supplement from other sources of income. 5. The leftover vacant plots, which are unoccupied due to stay orders of this Court, since scattered and are not useful to yield any income to the temple, the compensation will include the said plots also, which are within the total extent of Ac.5.60 cents. 6. In addition to the compensation mentioned above, the additional compensation for the use and occupation of the land by the allottees will be paid @ Rs.1000 per cent for the entire period. (* this clause is added with the consent of all the parties and in the presence of all the learned counsel on listing the matter for being mentioned on 8.10.2010.). In view of the peculiar circumstances leading to the allotment of the land by the District Collector and the proposal to compensate the temple as presented by the State Government as above and the same being agreeable and accepted by all the concerned parties, the above proposal is made as the order of the Court. This being a consensus order in the peculiar facts and circumstances of the case, the order should not be considered as a precedent. Both the writ petitions are disposed of as above. There shall be no order as to costs. ________________ NOUSHAD ALI, J. 01st October, 2010. Note : Despatch immediately. B/O Skmr/Js.