zTHE HON’BLE SRI JUSTICE NOUSHAD ALI WRIT PETITION No.24440 of 2010 BETWEEN: Gulf Oil Corporation Limited, (formerly Indian Detonators Ltd.,) (formerly IDL Chemicals Ltd.,) Formerly IDL Industries Ltd.,) Kukatpally, Hyderabad, rep. by its Managing Director, Mr. S. Pramanik, R/o. Plot No.14, Naturoville, Yapra, Secunderabad – 500 087. …. PETITIONER And 1. The State of Andhra Pradesh rep. by its Principal Secretary, Revenue (Endowments) Department, Secretariat Buildings, Hyderabad, and others. …. RESPONDENTS Counsel for petitioners: Sri P. Laxma Reddy Counsel for respondent Nos.1 to 4: G.P. for Endowments Counsel for respondent No.5: Sri M.V.S. Suresh Kumar The Court made the following order: ORDER: The petitioner, a company incorporated under the Companies Act 1956, has filed this writ petition seeking a ruling on the threshold jurisdiction of the A.P. Endowments Tribunal, Hyderabad in entertaining Original Application (O.A.) No.21 of 2008 filed by the 5th respondent, viz., Sri Udasin Mutt, seeking removal of the petitioner from encroachment of subject land under the provisions of Section 83 of the A.P. Charitable and Hindu Religious Institutions and Endowments Act, 1987 (Act 33/2007) and to quash the proceedings in the said Original Application declaring the same as without jurisdiction. In substance and in effect, the petitioner is seeking a writ in the nature of Writ of Prohibition. 2. The petitioner with the present name “Gulf Oil Corporation Limited” claims to be a company incorporated under the provisions of the Companies Act 1956. According to the petitioner originally the company was incorporated as “Indian Detonators Limited on 20.04.1961 and the said name was changed w.e.f. 14.05.1974 as “IDL Chemicals Limited”, which was again changed as “IDL Industries Limited w.e.f. 31.10.1995. The name was again changed as “Gulf Oil Corporation Limited” w.e.f. 22.08.2002 and the said name has been certified in accordance with the provisions of the Companies Act 1956. 3. The 5th respondent being the owner of large extent of land situated at Kukatpally village of Balanagar Mandal, Ranga Reddy District, leased out an extent of Ac.540.30 gts., of land under registered lease deeds executed through the then Mutawalli in favour of M/s. Indian Detonators Limited / M/s. IDL Chemicals Limited. The lease deeds are as follows:- Sl.No. Lease Deed No. date Extent of land (Acs - Gts.) 1. 366/1964 23.07.1964 143-00 2. 166/1966 14.09.1966 257-19 3. 905/1969 21.03.1969 2-32 4. 1817/1978 20.04.1978 137-19 Total 540-30 The lease is for a period of 99 years from the respective dates of the lease deeds. 4. The 5th respondent through its present Mahant namely Arundas Udasin, made a complaint dated 24.12.2007 to the 4th respondent- Assistant Commissioner of Endowments, Government of A.P., alleging breach of conditions of lease and seeking eviction of the petitioner under the provisions of Section 83 of Act 33/2007. 5. The breach of conditions alleged in the said complaint, are as follows. 1. No lease has been granted to the petitioner “Gulf Oil Corporation Limited., therefore the petitioner not being a lessee, is an encroacher, and even the change of name from “IDL/IDL Chemicals Limited to Gulf Oil Corporation Limited assuming to be correct, the lease deed having been entered into with IDL/IDL Chemicals Limited, the lease in the hands of the petitioner is invalid as the same is without prior approval and consent of the Commissioner, Endowments Department, Government of A.P; 2. On account of lack of care on the part of the lessees an extent of Ac.20.00 gts., of land has been converted as graveyard and the said conversion of land as graveyard is a serious breach of conditions of lease. 3. The petitioner, though sought to justify its occupation of land in the guise of assuming a new name, is not recognized as a tenant by approval/sanction accorded by the Commissioner, Endowments Department, and therefore, the petitioner is an encroacher within the scope and definition of encroacher under the provisions of Act 33/2007. 4. The petitioner obtained a commercial loan from the State Bank of India by mortgaging the leasehold rights, thus creating encumbrance over the leased property. 5. The subject lease deeds dated 23.07.1964, 14.09.1966 and 21.03.1969 for a term exceeding six years are null and void unless such transaction is conducted with the prior sanction of the Government. No such prior sanction was obtained in respect of the subject lease deeds, and as such the said lease deeds do not confer any rights on the petitioner. In so far as subject lease d e e d dated 20.04.1978 despite prior sanction by the Government, the same was determined due to breach of conditions of lease and also by virtue of the petitioner being an illegal and unlawful occupant of the land. 6. All the subject lease deeds have become null and void by virtue of the rules issued in G.O.Ms.No.866, dated 8.08.2003, which govern the leases and licences of endowment lands. 7. The subject lease deeds were in fact cancelled vide letter dated 11.07.2007. 6. On the above allegations, the 5th respondent laid a complaint before the 4th respondent seeking eviction of the petitioner by invoking the powers under Section 83 of Act 33/2007. Thereupon, the 4th Respondent in exercise of powers under Section 83 (1) laid a report before the Endowments Tribunal, (constituted in the place of Deputy Commissioner) which in turn initiated proceedings in O.A.No.21 of 2008 for removal of encroachment. Assailing the said proceedings, this Writ Petition has been filed. 7. Heard the learned Senior Counsel E. Manohar, instructed by Sri P. Laxma Reddy on behalf of the petitioner, the learned Government Pleader for Endowments for Respondents 1 to 4 and Sri M.V.S. Suresh Kumar on behalf of Respondent No.5. 8. The learned Senior Counsel would submit that the petitioner is the same legal entity as the original company viz., Indian Detonators Limited/IDL Chemicals Limited with change of name as Gulf Oil Corporation Limited. The change of the name has been effected in accordance with Section 23 of the Companies Act, 1956 without any effect of the rights or obligations of the company as per sub-section (3) of Section 23 of the Companies Act. Mere change of name as Gulf Oil Company would not take away the subsisting rights that have accrued during the former name of the company. The leasehold rights granted in favour of the company with its former name would automatically enure to the petitioner. Therefore the petitioner cannot be treated as encroacher in respect of the subject land. The counsel would further submit that there was an existing grave yard even prior to 1964 and no further land was allowed to be converted as grave yard after the lease has been granted in the year 1964. The counsel would refer to a Memo of the Home (Endowments.III) Department, dated 24.02.1964 and the orders of the State Government issued in G.O.Ms.No.529, Revenue (Endowments) Department, dated 10-05-1976 to show that the lease was for a period of 99 years and the same was approved by the Government. Reliance is placed on Rule 15 of the A.P. Charitable and Hindu Religious Institutions and Endowments Immovable properties and other lands (other than agricultural lands) Leases and Licences Rules, 2003 issued in G.O.Ms.No.866, dated 08-08-2003 urging that a subsisting lease as on the date of notification of the Rules might be continued on such terms and conditions till expiry of the lease period as might be decided upon by the Additional Commissioner on a proposal from the Executive Officer or Chairman or the person in management, as the case ma be. The counsel would therefore submit that the petitioner cannot be treated as an encroacher. The counsel would submit that the Assistant Commissioner, who is an authority under Section 83 of the Act, vested with power to report encroachments to the Endowments Tribunal, is bound to take into consideration the aforesaid facts. The counsel would submit that the Assistant Commissioner in the instant case did not examine the aforesaid facts. The Assistant Commissioner should have reason to believe that there has been an encroachment and without such reasonable belief, no report can be laid before the Endowments Tribunal for further action. The counsel would further submit that the lease has not been validly terminated, therefore, in the circumstances, the Endowments Tribunal could not have taken cognizance of the report and continue the proceedings in O.A. The notice dated 20.12.2008 issued under Section 83(2) of the Act is bereft of details and suffers from the vice of non-application of mind as to the applicability of Section 83. 9. On the other hand, Sri M.V.S. Suresh Kumar, learned counsel appearing for the 5th Respondent, would submit that no lease has been granted to the petitioner and the petitioner is not a statutory tenant of the 5th Respondent. The petitioner never informed the alleged change of name nor the 5th Respondent was made aware why the name has been changed and to what effect. In any event, irrespective of the change of name, the petitioner cannot claim to be a tenant in respect of the subject land. The counsel would place reliance on Section 82 and contend that in any event the lease stood cancelled by virtue of sub-section (1) thereof, which provides that a lease of agricultural land held by other than a landless poor person on the date of commencement of the Act shall notwithstanding any other law for the time being in force stands cancelled. Besides such statutory cancellation of lease the 5th Respondent had in fact cancelled the lease and informed the same to the petitioner by letter dated 11.10.2007. The counsel would further contend that even otherwise the lease stood terminated by virtue of the operation of the Rules issued in G.O.Ms.No.866, dated 08.08.2003. The counsel would further submit that the petitioner has approached this Court with unclean hands by suppressing material facts. The Assistant Commissioner examined the complaint of the petitioner on the basis of the record and called for the report from the Inspector of Endowments, Hyderabad-3. The Assistant Commissioner further examined in the matter after receiving the said report and forwarded the same to the Endowments Tribunal for further action. The Tribunal rightly issued the Notice, dated 20.12.2008 to the 5th Respondent. The petitioner responded to the said notice and filed counter in its defence with almost the same contentions. Thereupon the Tribunal has proceeded with enquiry. The 5th Respondent has closed its evidence and the petitioner has already filed its affidavit as examination-in-chief along with documentary evidence and the matter is awaiting cross-examination. The counsel would also submit that earlier the 5th Respondent filed W.P.No.9681 of 2008 seeking directions to the Deputy Commissioner of Endowments to initiate steps under Section 83 of the Act until the Endowments Tribunal was constituted and this Court by orders dated 11.11.2008 allowed the Writ Petition holding that jurisdiction of the authorities under Section 83 of the Act, would remain intact and it would be competent for them to adjudicate the matter as usual till the Endowments Tribunal was constituted. The counsel would submit that the petitioner did not raise any objection on the alleged formation of opinion either in the said writ petition or before the Endowments Tribunal. The petitioner having participated in the proceedings before the Tribunal has waived its right to raise the so called objections as to the formation of opinion. There are serious laches on the part of the petitioner to file this Writ Petition ever since the Tribunal has issued the notice dated 20.12.2008. 10. The learned Senior Counsel for the petitioner in reply would submit that the previous W.P.No.9681 of 2008 was not concerned with the issue relating to formation of opinion and if it is accepted that the subject land is agricultural land, then the Rules issued in G.O.Ms.No.866 upon which earlier reference was placed have no application to the subject lands. The counsel would rely on P.Ramachadra Chetty Vs. Govt. of India[1] and Dasari Narayana Rao Vs. Deputy Collector and MRO, Serilingampalli [2]. 11. To appreciate the respective contentions, a traverse of Section 83 is necessary. Encroachment by persons on land or building belonging to charitable or religious institution or endowment and the eviction of encroachers: - (1) Where 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 (hereinafter in this Chapter referred to as ‘encroacher’) any land, building, tank, well, spring or water-course or any space belonging to the institution or endowment, wherever situated or deemed as an encroacher under any of the provisions of this ct 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. 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 licence and also a person who continues to remain in the land or building or space after the expiry of termination or cancellation of the lease, mortgage or licence in respect thereof granted to him or it. (2) Where, on a perusal of the report received by him under sub-section (1), the [Endowments Tribunal] finds that there is a prima facie case of encroachment, [it] shall cause to be served upon the encroacher a notice specifying the particulars of the encroachment and calling on him to show cause before a certain date why an order requiring him to remove the encroachment before the date specified in the notice should not be made. A copy of the notice shall also be sent to the trustee of the institution or endowment concerned. (3) The notice referred to in sub-section (2) shall be served in such manner as may be prescribed. (4) Where after considering the objects, if any, of the encroacher received during the period specified in the notice referred to in sub-section (2) and after conducting such enquiry as may be prescribed, the [Endowments Tribunal] is satisfied that there has been an encroachment, [it] may, by order, require, the encroacher to remove the encroachment and deliver possession of the land or building or space encroached upon to the trustee before the date specified in such order. (5) The order of the [Endowments Tribunal] under sub- section (4) shall be in writing and shall contain the grounds on which he has passed the order. (6) During the pendency of the proceedings, the [Endowments Tribunal] shall order the encroacher to deposit such amount as may be specified by [it] in consideration of the use and occupation of the properties in question in the manner prescribed. 12. By virtue of sub-section (1) of Section 83 of the Act, it is competent to the Assistant Commissioner when he has reason to believe that any person has encroached upon an endowment property, to report to the Endowments Tribunal and such power is exercisable suo motu or upon an application made by a Trustee. The expression encroacher is explained to mean an unauthorized occupant and also a person, who has continued to remain in occupation after the expiry or cancellation of lease, mortgage or licence granted in respect thereof. 13. Therefore the power of the Assistant Commissioner to lay a report before the Endowments Tribunal is indisputable. However, laying emphasis that “reason to believe” is a condition precedent, it is contended that before laying report it is incumbent on the Assistant Commissioner to examine the issue dispassionately and refer the matter to the Tribunal only on being satisfied that the encroachment has taken place, which he failed. Reliance is placed on P.Ramachadra Chetty Vs. Govt. of India (1 supra). 14. The principle stated in the aforesaid judgment is not in controversy. It is true that Section 83 (1) provides that the Assistant Commissioner should have reason to believe that an act of (either actual or deemed) encroachment has taken place. In other words, the Assistant Commissioner shall have prima facie satisfaction of an act of encroachment. Such satisfaction is subjective in nature. At the same time, the said provision cannot be understood to have conferred any power on him to adjudicate or record the correctness of the fact of encroachment. No such power is invested in him and he cannot be elevated to the status of an adjudicatory body. It is sufficient if he has reached a reasonable belief based on some relevant material. When such belief is reached, the same is not amenable to challenge on the grounds of propriety, reasonableness or sufficiency. While exercising powers under sub-section (1), the Assistant Commissioner is under no obligation to put on notice nor seek any explanation from the alleged encroacher. 15. In the instant case, in order to verify whether the 4th respondent acted on reasonable belief, the record has been called for and perused. 16. As adverted to in the above paragraphs, the Assistant Commissioner acted on the complaint of the 5th Respondent dated 24.12.2007. Upon receipt of the said complaint, the Assistant Commissioner referred the matter to the Inspector, Endowments Department, Hyderabad-III and also the Assistant Director, Survey and Land Records, Ranga Reddy District for survey and report. The Inspector submitted a detailed report in Rc.No.INSP/HYD-III/U/S 83/2008, dated 29.01.2008 inter alia stating that the subject land was leased out to IDL/IDL Chemicals Limited under four lease deeds, out of which lease deeds dated 23.07.1964, 14.09.1966 and 21.03.1969 were without approval of the Government and other competent authorities under the Endowments Act 1966, 1987 and the lease deed dated 20.04.1978 was with prior approval of the Government, but the same is contrary to the Rules framed under G.O.Ms.No.886, dated 8.08.2003; that the petitioner – “Gulf Oil Corporation” has no lease in its favour and its claim as change of name was not accorded any consent or approval of the competent authorities; and that the petitioner has not protected the interests of the 5th respondent by allowing conversion of some land into graveyard. The Inspector has also filed photographs to show that graves have come up even in the years 2000, 2002, 2005 and 2007. The Assistant Director, Survey and Land Records has also submitted a report in Rc.No.A1/9/2008 dated 24.01.2008 stating that out of an extent of Ac.18.15 gts., there is a burial ground on an extent of Ac.7.10 gts. 17. The 4th respondent-Assistant Commissioner on examining the complaint dated 24.12.2007 and the aforesaid reports dated 29.01.2008 and 24.01.2008 of the Endowments Inspector and the Assistant Director, submitted proposals under Section 83 of the Act inter alia observing thus, - “The Mahanth of the subject institution has submitted proposals in the reference 1st cited for initiating action under Section 83 to evict the IDL, IDL Chemical Ltd., and Gulf Oil Corporation stating that: 1. The lessee changed the name as Gulf Oil Corporation without knowledge of neither the Institution authorities nor the Endowments Department. 2. The lessee has not protected the interest of the Udasin Mutt and noticed that an extent of land admeasuring Ac.18-15 gts in Sy.No.1010/13, 1010/14 are left un-fenced and not protected the said extent of land and as result of the said negligence by the lessees, the said extent of land has been converted into grave yard and there are tombs (samadis) in the said land. 3. The lessee company has mortgaged by lease hold rights of the land and obtained bank loans from the State Bank of India. The matter has been referred to the Inspector, Endowments Department, Hyderabad-III for detailed enquiry report and also Assistant Director of Survey and Land Records, Ranga Reddy District for survey the lands how much land covered by mass grave yard. The Inspector has enquired and submitted a detailed report requesting to recommend for initiating action under Section 83 of the Act and the Assistant Director of Survey and Land Records, Ranga Reddy District has sent the report stating that an extent of Ac.18-15 gts., in Survey No.1010/13, 1010/14 left un-fenced and not protected for the said negligence the land is utilizing for mass grave yard and there are tombs (Samadis) in the said land. The proposals have been verified with reference to the Inspector report and it may be true that the IDL, IDL Chemical Ltd., have violated the substantial conditions of lease deeds. Therefore the mahanth appears to have cancelled their leases. It seems they have not put efforts to protect the precious land of the Religious institution and as such some part of land about 18 acres has turned into grave yard. The lease deed dated 20.04.1978 was granted with the prior approval of the Government. The lands and in question are agriculture lands. As per Section 82(1) any lease of the Agriculture land belong into any institution are held by a person who is not a landless poor person stands cancelled. This section is upheld by the Honourable Supreme Court. Further I submit that during the scrutiny of the proposals submitted under Section 83 the Amended Act 33/2007 has come into force and the powers vested in the Deputy Commissioner under Section 83 of the Act 30/87 are conferred to the Endowments Tribunal. Since it has not been constituted, the proposals have not been submitted to the Deputy Commissioner, Endowments Department, Hyderabad for initiating action under Section 83. In the meanwhile the Mahant of the subject Institution has filed writ petition No.9681/2008 against the amendment Section 83 of the Act 33/2007 before the Honourable High Court and the Honourable High Court has issued judgment vide reference 5th cited, allowing the petition are directed that (a) The jurisdiction of the authorities concerned under Section 83 of the Act, as it stood before the amendment through Section 33 of 2007, shall remain in tact and it shall be competent for them to adjudicate the matter as usual till the tribunal provided for under Section 162 of the Act 30/1987 is constituted. (b) The State Government shall endeavour to constitute the Tribunal, as early as possible. The Commissioner has also requested vide reference 6th cited to all the Deputy Commissioners of Endowments Department to take up the trial of O.A.’s and give final disposal on merits. In view of the above I am submitting herewith the proposals under Section 83 of the Act filed by the Mahant vide reference 1st cited to evict the IDL, IDL Chemical Ltd., and Gulf Oil Corporation from the Institution lands. The proforma particulars under Section 83 in quart duplicate along with the enquiry report of the Inspector, Endowments Department, Hyderabad – III and enquiry report of Assistant Director of Survey and Land Records, Ranga Reddy District 3rd cited are enclosed herewith for taking further action in the matter.” 18. From a perusal of the aforesaid material it is evident that the Assistant Commissioner did not straight away rely on the complaint, but got the allegation verified and took a decision only after considering the reports. It can therefore be safely concluded that the Assistant Commissioner has acted in accordance with the requirements of sub-section (1) of Section 83 and rightly reached the reasonable belief as to the alleged encroachment on the subject land. The said exercise indisputably shows application of mind and formation of reasonable belief before the report was actually laid before the Tribunal. 19. The Apex Court while dealing with a case in the Bar Council of Maharashtra v. M.V. Dabholkar etc.,[3] relating to misconduct of advocates, considering Section 35 (1) of the Advocates Act, 1961 which says that “where on receipt of a complaint or otherwise a State Bar Council has reason to believe that any advocate on its roll has been guilty of professional or other misconduct, it shall refer the case for disposal to its disciplinary committee”, observed thus, - “The Bar Council of Maharashtra, by its resolution No.29, dated August 8, 1964 considered the complaint received from the High Court against one Kelawala and 15