IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH:: AT HYDERABAD FRIDAY, THE TWENTY SIXTH DAY OF MARCH TWO THOUSAND AND TEN PRESENT HON'BLE MR. JUSTICE D.S.R.VARMA AND HON'BLE MR. JUSTICE G.V.SEETHAPATHY W.A.No.463 OF 2005 & W.P.NO.7408 OF 2005 W.A.No.463 OF 2005 Between: Siddeshuni Ravi Kumar and others …Appellants AND The Government of Andhra Pradesh Rep. by its Principal Secretary, Endowments Department, Hyderabad and others … Respondents A N D W.P.No.7408 OF 2005 Siddeshuni Ravi Kumar and others …Petitioners AND The Government of Andhra Pradesh Rep. by its Principal Secretary, Endowments Department, Hyderabad and others … Respondents HON’BLE SRI JUSTICE D.S.R.VARMA AND HON’BLE SRI JUSTICE G.V.SEETHAPATHY W.A.No.463 OF 2005 & W.P.No.7408 OF 2005 COMMON JUDGMENT: (Per GVS, J) W.A.No.463 of 2005 is directed against the order dated 21.02.2005 in W.P.No.2036 of 2001, wherein, the said writ petition filed by the appellants herein seeking Writ of Mandamus declaring the action of the respondents to alienate the land to the 3rd parties in public auction as illegal, arbitrary and violative of Article 300-A of the Constitution of India and also the petitioners rights under the A.P. (Telangana Area) Inams Abolition Act 1955 and for a consequential direction to the respondents not to evict the petitioners from the subject lands, was dismissed. 2. W.P.No.7408 of 2005 is filed by the same petitioners seeking Writ of Mandamus declaring the action of the respondents in cancelling G.O.Ms.No.657, Revenue Endowments-II Department dated 24.08.1999, whereby the Government took a decision to sell the lands to the petitioners under Section 80(1) (b) of the Endowments Act 1987, through G.O.Ms.No.771 dated 01.11.2001, as illegal, arbitrary and violative of Article 14 of the Constitution of India and also the provisions of the Inams Abolition Act 1967 and for consequential direction to the respondents to set aside G.O.Ms.No.771 dated 01.11.2000. 3. As both the matters relate to the same subject matter between the parties and involve similar questions of fact and law that arise for consideration, they are heard together and are being disposed of this common judgment. 4. Heard the learned counsel for the appellants/petitioners and the learned Government Pleader for the respondents in both the matters. Perused the record. 5. The case of the petitioners is that an extent of Ac.23.02 guntas in Sy.Nos.877, 882,883, 884,885,888,889 and 922 situated in Hanamkonda revenue village of Warangal district, was granted to their ancestors as personal inam for the services of worship and other services in Siddeswara Swamy temple, Hanamkonda and they have been working as pujaris and having been in occupation of the lands as cultivators are entitled to Kabize-e-Khadim within the meaning of provisions of the Andhra Pradesh (Telangana Area) Abolition of Inams Act, 1955 (for short ‘the Act of 1955’) and, therefore, they are entitled to register the documents under Section 5 of the Act. It is further pleaded by the petitioners that ryotwari patta was granted to them by the Tahsildar, Warangal on 01.04.1970 under the provisions of the A.P. (Telangana Area) Inams Abolition Act, 1967 (for short ‘the Act of 1967’). However, the said Act was struck down by the Court and, therefore, the provisions of the earlier Act of 1955 would prevail. The petitioners continued to be in occupation of the lands as cultivators and their rights are well protected. Meanwhile, the Government initiated proceedings for sale of the above lands under Section 80(1)[c] of the Andhra Pradesh Charitable & Hindu Religious Institutions and Endowments Act 1987 (for short ‘the Act of 1987’) and accordingly orders were issued in G.O.Ms.No.657 dated 24.08.1999 selling the lands in favour of the petitioners and they have deposited the sale amount in part. Subsequently, the said sale was sought to be withdrawn and the petitioners filed W.P.No.773 of 2000 seeking implementation of G.O.Ms.No.657 dated 24.08.1999. By order dated 28.04.2000, W.P.No.773 of 2000 was allowed by this Court. Subsequently, at the instance of 4th respondent, the writ petition was reopened and at this stage, the Government issued orders in G.O.Ms.No.771 dated 01.11.2000 cancelling G.O.Ms.No.657 dated 24.08.1999. In view of the same, W.P.No.773 of 2000 was dismissed as infructuous by order dated 28.04.2000. While the said writ petition was pending, the respondents issued proceedings dated 17.11.2000 directing the Executive Officer to take steps to put the lands for sale by public auction. Challenging the same, W.P.No.2036 of 2001 was filed. Subsequently, the petitioners filed W.P.No.7408 of 2005 challenging the cancellation of G.O.Ms.No.657 by issuing G.O.Ms.No.771. According to the petitioners, their ancestors and subsequently, the petitioners have been in possession and enjoyment of the land even prior to 1928 and as such, they became land-holders, within the meaning of Section 2(e) of the Act of 1955 and they made an application for grant of occupancy certificate under Section 5 of the Act of 1955 and the said application was kept pending. The Act of 1955 was repealed and new Act of 1967 was brought into existence and a fresh application was made for grant of occupancy certificate under the new Act and after conducting due enquiry, by order dated 01.04.1970, the Special Deputy Tahsildar, under the Inams Abolition Act stated that the lands in question are inam lands and basing upon the same, ryotwari patta was granted to the petitioners. Subsequently, the Act of 1967 was struck down vide judgment reported in 1972(1) ALT 270 and the Government issued notification in G.O.Ms.No.947 dated 20.10.1973 reviving the old Act of 1955. But, however, ryotwari patta granted under the provisions of the Act of 1967 remained intact. When the Government proposed to sell the lands to the petitioners, who are occupants, they agreed to purchase the same under Section 80(1)(b) of the Endowments Act 1987, in order to avoid further litigation and settle the dispute, objections were called for by issuing a gazette notification dated 11.05.1999 and also by publication in newspaper on 30.05.1999. But, no objections were received from the public. Hence, the government issued orders vide G.O.Ms.No.657 dated 24.08.1999 and the first petitioner paid the amount specified thereunder. The authorities, however, did not receive the amounts from the other petitioners as per letter dated 07.01.2000. Questioning the same, they filed W.P.No.773 of 2000 which was allowed on 24.05.2000 and subsequently, at the instance of the respondents, the writ petition was reopened and in view of issuing G.O.Ms.No.771 dated on 01.11.2000 cancelling G.O.Ms.No.657, W.P.No.773 of 2000 was dismissed as infractuous on 27.12.2000. Meanwhile, the respondents issued proceedings dated 17.11.2000 directing the authorities to take necessary steps for selling the lands in public auction. By order dated 16.11.2001, the said proceedings were suspended and subsequently, by order dated 04.07.2001, the interim direction was made absolute. The impugned G.O.Ms.No.771, cancelling the earlier G.O.Ms.No.657 by a single line order, is vitiated and is liable to be struck down on the ground of irrationality, non-application of mind and arbitrary exercise of power and also on the ground of promissory estoppel and legitimate expectation. The authorities, having accepted the amount paid by the first petitioner in full, but refused to accept the sale price offered by other petitioners and issued G.O.Ms.No.771 cancelling the earlier G.O.Ms.No.657, even while W.P.No.773 of 2000 filed by the petitioners was still pending consideration of the Court after it was allowed initially and subsequently reopened. The action of the respondents is illegal and is not bona fide, as the same was intended to prevent the petitioners from deriving the benefits under the Endowments Act, though the authorities have earlier decided to sell the land in favour of the petitioners. 6. The 3rd respondent filed counter in W.P.No.2036 of 2001 contending inter alia that the lands were not granted to the petitioners, but they belonged to the temple and the petitioners’ family was only permitted to cultivate the same, subject to performance of services and as such, they cannot claim any occupancy rights over the lands, as the grant is to the temple but not to the persons. The respondents, however, admitted that the petitioners are cultivating the lands being pujaris of the temple. Though the Government sought to sell the lands to the petitioners and the petitioners made part payment of Rs.7,81,820/-, the same was returned after cancelling the earlier orders. 7. The learned single Judge dismissed W.P.No.2036 of 2001 mainly on the ground that the petitioners were not able to show that there was any grant as such either in their favour or in favour of their ancestors and unless and until, the grant is in their favour, the petitioners cannot claim any occupancy rights nor the provisions of the Act would apply. The learned single Judge held that the grant apparently is in favour of the temple and the petitioners are burdened with service of performing pooja and they can, under no circumstances, claim any occupancy rights. 8. Sri S.Ramachandra Rao, learned senior counsel appearing for the appellants/petitioners, would contend that the learned single Judge erred in assuming that the property is vested in the temple, though, in fact, ryotwari pattas were granted in favour of the petitioners’ ancestors in 1970 in recognition of their occupancy rights under the Act of 1967 and notwithstanding the striking down of the said Act subsequently, the ryotwari pattas granted earlier after due enquiry, would remain intact. He would further contend that the impugned proceedings have the effect of nullifying the statutory enquiry and grant of ryotwari pattas under the Inams Act cannot be taken away by issuing G.O. under the Endowments Act. He would further contend that the impugned proceedings would deprive the petitioners of their property, which can be done only by due process, failing which it would be violative of Article 300-A of the Constitution of India. The learned senior counsel would further contend that the authorities, having agreed to sell the lands to the petitioners at the rate of Rs.1,80,000/- per acre for some lands and Rs.1,04,000/- per acre for other lands and having received the specified sale price from the first petitioner, cannot be permitted to go back on their promise and the petitioners are entitled to see that the transaction meets the logical conclusion by virtue of operation of doctrine of legitimate expectation and promissory estoppel. The petitioners would, therefore, contend that the respondents have no right to put the lands to public auction and to alienate the same to third parties by taking away the petitioners’ rights under executive fiat. 9. Learned Government Pleader appearing for the respondents would, on the other hand, contend that the lands belong to the temple and the petitioners are only entitled to enjoy the lands so long as they render service. The grant being one burdened with service and not a personal grant in favour of the petitioners and therefore, the authorities under the Endowments Act are empowered and, in fact, duty bound under the provisions of the said Act, to sell the lands only by public auction for realization of maximum market value and the petitioners cannot complain about the same and they can as well participate in the public auction. He would further contend that the fact that the lands were earlier offered for sale in favour of the petitioners and the sale price insofar as the first petitioner was concerned, was also received from him, does not create any right in favour of the petitioners and in fact, the said amount was already returned to the first petitioner and no amounts were received from other petitioners. He would, therefore, contend that as the lands belong to the temple land and there being no personal grant in favour of the petitioners, they cannot question the proposed public auction of the lands, which is contemplated under the provisions of the Endowments Act. 10. In view of the rival contentions of the parties, the first and foremost question which arises for consideration is whether the subject lands belong to the petitioners by virtue of the certificate of occupancy rights granted in their favour after due enquiry under the Act of 1967, as claimed by them or that they belong to the temple because the grant was in favour of the deity and that the petitioners who are pujaris in the temple were entitled to be in possession and enjoy the usufruct so long as they render the service as it is inam burdened with service and not a personal grant in favour of the petitioners, as contended by the respondents. 11. In support of their claim, the petitioners filed certain documents to show that their purchasers have been cultivating the lands from generations and they are kabize-e-khadim within the meaning of Section 2(e) of the Act of 1955 and they have been in personal cultivation of the lands even prior to 1928 and they are entitled to the rights of kabize-e-khadim and registered as such under section 5 of the Act of 1955. The proceedings of the Collector in the said enquiry under the Act of 1955 would show that succession of the deceased pujari viz., Siddesuni Siddaiah was granted in favour of his wife Siddesuni Gouramma, as the deceased had no male issues. It is not disputed that after the death of Gouramma, her son-in-law Siddesuni Rajaiah had been cultivating the land and rendering the service and subsequently they devolved on his son Samba Siddaiah, who is the father of the petitioners. Samba Siddaiah died in 1994 and after his death, the petitioners had been in possession and enjoyment of the land and cultivating the same and rendering the service. Gouramma is said to have adopted Samba Siddaiah, s/o Rajaiah, who is her son-in-law. Gouramma and Samba Siddaiah have made an application to the Tahasildhar seeking grant of patta in the name of Samba Siddaiah in respect of the inam lands under the provisions of the Act of 1967. The Tahasildhar, Warangal held an enquiry under Section 4 of the Act, after issuing public notice and calling for objections. The said Deputy Tahasildhar, Abolition of Inams, Warangal by order dated 01.04.1970, after enquiry, determined that the subject lands are inam lands and that they are held by the inamdar/kabize-e- khadim viz., Siddesuni Gouramma and Samba Siddaiah. Accordingly, ryotwari patta was granted in favour of Siddesuni Gouramma and Samba Siddaiah recognizing their permanent rights of occupancy. The learned Government Pleader would point out that in the preamble of the ryotwari patta, the name of temple Siddeshwara Swamy Temple is noted, but not the names of any individuals. But, in the schedule, against the remarks column No.4, the names of Siddesuni Gouramma and Samba Siddaiah are noted as the persons having permanent rights of occupancy. In fact, in the proceedings of the Special Deputy Tahasildar, Abolition of Inams, pursuant to which the patta was granted, it is nowhere stated that the lands were held by the institution. On the other hand, the Inams Tahasildhar determined that the lands were inam lands held by inamdar/kabize-e-khadim and in column No.6 against the names of the inamdar, the names of Siddesuni Gouramma and Samba Siddaiah are noted. From the above, it is clear the petitioners and their forefathers have been in possession and enjoyment of the subject lands since even prior to 1928 and they became entitled to the rights of kabize-e-khadim under the Act of 1955 and were holding the lands as such and that they became entitled to grant of ryotwari patta under the Act of 1967 and ryotwari patta was also granted in their favour under the Act of 1967 after due enquiry by the competent authority and the same became final. Though subsequently the Act of 1967 was struck down by this Court, it is not disputed that the Act of 1955 was revived and the ryotwari patta granted in favour of petitioners’ forefathers, remained unaffected. The learned Single Judge held that unless and until the grant is in their favour, the petitioners cannot claim occupancy rights nor the provisions of the Act would apply and apparently the grant is in favour of the temple and the petitioners are only rendering the service of performing puja which they are doing and hence they cannot claim any occupancy rights. The proceedings of the Tahasildar and the consequential ryotwari patta granted, after enquiry, under the provisions of the Act of 1967 shows that permanent occupancy rights of the petitioners’ forefathers were recognized and it was specifically determined by the Inams Tahasildar that the lands are inam lands and they were held by the inamdars viz., Siddesuni Gouramma and Samba Siddaiah. The proceedings of the Inams Tahasildar do not show that the lands were held by the institution, and in fact, the word ‘institution’ was struck off. The material on record does not establish that the grant was in favour of the institution and on the other hand shows that the lands were held to be inam lands and Siddesuni Gouramma and Samba Siddaiah were held to be the inamdars and their rights of permanent occupancy were recognized and ryotwari patta was also granted as such. 12. It is not disputed that the Government initiated proceedings for sale of the lands by private negotiation under Section 80(1)(c) of the Endowments Act, 1987 and accorded permission to the executive authority of the temple to dispose of an extent of Ac.6-04 gts in Sy.No.882, Ac.2-10 gts in Sy.No.833, Ac.1-20 gts in Sy.No.884, Ac.5-26 gts in Sy.No.885 and Ac.4-13 gts in Sy.No.877 @ of Rs.1,80,000/- per acre and Ac.2-10 gts in Sy.No.888, Ac.0-07 gts in Sy.No.889 and Ac.0-32 gts in Sy.No.922 @ Rs.1,04,000/- per acre, otherwise than in public auction in favour of the petitioners by G.O.Ms.No.657 dated 24.08.1999. It is also not disputed that the first petitioner deposited the amount of sale price at the above said rate and the same was received by the department on 03.01.2001 and before petitioners 2 to 5 could deposit the amounts payable by them, the Government issued instructions to the Assistant Commissioner not to receive the amounts. Thereafter, petitioners 2 to 5 filed W.P.No.773 of 2000 for implementation of G.O.Ms.No.657 dated 24.08.1999. By order dated 28.05.2000, the said writ petition was allowed. Subsequently, the 4th respondent filed W.P.M.P.No.14012 of 2000 for recall of the said order on the ground that he was not heard. While the same was pending, the Government issued G.O.Ms.No.771 dated 01.11.2000 whereby earlier G.O.Ms.657 was cancelled. Therefore, W.P.No.773 of 2000 was dismissed as having become infructuous giving liberty to the petitioners to question their rights, if so advised. Meanwhile, the respondents issued proceedings dated 17.11.2000 directing the Executive Officer to take steps for sale of the lands by public auction. Challenging the same, W.P.No.2036 of 2000 was filed and subsequently W.P.No.7408 of 2005 was filed challenging the cancellation of G.O.Ms.No.657 by issuing G.O.Ms.No.771. The above facts are not in dispute. 13. According to the petitioners, though they were having right to kabize-e-khadim and acquired permanent heritable and alienable occupancy rights over the lands under the Act of 1955 and though ryotwari patta was granted under the Act of 1967, they accepted the proposal of the Government and agreed to purchase the lands at the rate fixed by the Government only to avoid litigation with the Government and as the temple is connected with their family ever since the origin of the temple. The copy of the gazette notification dated 17.05.1999 shows that a public notice was issued calling for objections against the proposed sale of the lands, some at the rate of Rs.1,80,000/- per acre and the other lands at Rs.1,04,000/- per acre by private negotiation. Public notice was also issued by way of publication in the newspapers. G.O.Ms.No.657 dated 24.08.1999 shows that permission was accorded to the Executive Officer to sell the lands at the above rates in favour of the petitioners otherwise than by public auction. The Commissioner of Endowments issued consequential proceedings on 08.09.1999 wherein it is stated that no objections were received in response to the public notice issued. In pursuance of the same, the first respondent paid Rs.7,81,820/- pertaining to his share on 03.01.2000 and the same was also received by the temple authorities. When the payments offered by the other petitioners were not accepted, W.P.No.773 of 2000 was filed seeking implementation of G.O.Ms.No.657. The 4th respondent therein i.e., the Executive Authority of the temple filed a counter on 02.02.2000. Subsequently, on 28.04.2000 W.P.No.773 of 2000 was, in fact, allowed directing the respondents to implement G.O.Ms.No.657. Subsequently, the Government issued G.O.Ms.No.771 dated 01.11.2000 cancelling G.O.Ms.No.657 without disclosing any reasons justifying the said cancellation nor the circumstances, which necessitated such cancellation. G.O.Ms.No.771 is totally bereft of any details and merely states that earlier G.O.Ms.No.657 was cancelled in the circumstances reported by the Commissioner of Endowments. W.P.No.773 of 2000, which appears to have been reopened at the instance of the 4th respondent was subsequently dismissed as infructuous on 27.12.2000 in view of cancellation of G.O.Ms.No.657 by issuing subsequent G.O.Ms.No.771. The learned counsel for the petitioners would contend that cancellation of G.O.Ms.No.657 by issuing G.O.Ms.No.771 during the pendency of W.P.No.773 of 2000 after getting the same reopened is mala fide, as it was resorted only to defeat the claim of petitioners and avoid completion of the sale transaction entered into with the petitioners in respect of subject lands. He would further contend that the Government, having decided to sell the land in favour of the petitioners, otherwise than by public auction and having received part of the sale price, cannot be permitted to resile and go back on their promise by simply cancelling the earlier G.O.Ms.657 by issuing another G.O.Ms.No.771, as the same amounts to mala fide and arbitrary exercise of authority. 14. Section 80(1)(b) of the Act of 1987 dealing with alienation of immoveable property contemplates that the Commissioner, may, after publishing in the A.P. Gazette and inviting objections and after considering the objections received, if any, accord sanction inter alia for sale of the immoveable property belonging to a religious institution, when he considers that the transaction is,: (i) prudent and necessary or beneficial to the institution or endowment; (ii) When the immoveable property is uneconomical for the institution to own and maintain; and (iii) the consideration therefor is adequate and proper. Clause (c) stipulates that every sale of such immoveable property shall be effected by tender-cum-public auction in the prescribed manner subject to the confirmation by the Commissioner. Proviso to clause (c) would, however, state that the Government may, in the interest of the institution and for reasons to be recorded therefor in writing, permit the sale of such immoveable property, otherwise than by public auction. Thus, the sale of immoveable property belonging to the temple, otherwise than by public auction, is contemplated under the proviso to Section 80(1) (c), provided that such sale is in the interest of the institution and is supported by reasons recorded in writing. The alienation shall, however, conform to the requirements stipulated in clause (b) before sanction for the same can be accorded by the Commissioner. In the present case, it is not disputed that the Commissioner accorded sanction for sale of the subject lands in favour of the petitioners, otherwise than by public auction on being satisfied about the conformity with the statutory requirements and compliance with the procedural safeguards as stipulated in Section 80 of the Act of 1987. It is also not disputed that the rate was fixed at Rs.10,000/- per acre more than the prevailing market price. The petitioners have placed material to show that the public notice calling for objections was issued on 07.05.1999, publication in newspapers was also effected on 13.05.1999 and gazette publication regarding the proposed alienation by private negotiation was made on 17.05.1999 and that no objections were received from any quarter and as such G.O.Ms.No.657 dated 24.08.1999 was issued by the Government and under the proviso to 80(1)(c) of the Act of 1987, accorded permission to the executive authority of the temple to sell the lands in favour of the petitioners. Pursuant thereto, the Commissioner, Endowments issued proceedings dated 08.09.1999 according permission to sell the lands in favour of the temple, otherwise than by public auction at the rate