THE HONBLE Ms. JUSTICE G. ROHINI WRIT PETITION No.11681 of 2008 ORDER: The petitioner herein is the cultivating tenant of Ac.5.00 cents of dry land belonging to the 4th respondent-temple, situated in Sy.No.211 of Chilukuri Village, Madhira Mandal, Khammam District. It is claimed that he has been in possession of the said land continuously, as a tenant for the last 34 years. It is not in dispute that the Assistant Commissioner of Endowments, Khammam, vide proceedings dated 13.5.2005, having accepted the recommendations made by the Temple Inspector to continue the petitioner as a lessee, since he is a sitting tenant, passed orders approving grant of lease in favour of the petitioner for a period of three years i.e., from 2005 to 2008 on payment of lease amount at the rate of Rs.2,000/- per acre, per year. Since the period of lease granted as per the proceedings dated 13.5.2005 was coming to an end, the petitioner made a representation dated 1.5.2008 requesting the 4th respondent-temple to renew the lease in his favour for another three years by enhancing the lease amount. The petitioner also made a similar representation dated 22.5.2008 before the 3rd respondent-Assistant Commissioner of Endowments for extension of lease expressing his willingness to pay 45% enhanced lease amount over the amount paid for the years 2005 to 2008. While the said representations are pending, the 4th respondent-temple proposed to hold public auction for grant of leasehold rights over the land in possession of the petitioner. Aggrieved by the same, the petitioner filed the present writ petition seeking a declaration that the action of the respondents is arbitrary and illegal. This Court by order dated 10.6.2008, while issuing notice, directed that, if any auction is conducted, the same shall not be confirmed. While so, on 10.6.2008, a notice dated 6.6.2008 issued by the 4th respondent proposing to conduct public auction on 12.6.2008 for grant of leasehold rights in respect of the land in possession of the petitioner, was affixed on the notice board of the Mandal Revenue Office, Madhira. Pursuant thereto, public auction was conducted on 12.6.2008; however, the same was not confirmed. Having regard to the subsequent events, the petitioner got the prayer in the writ petition amended seeking a declaration that the auction notice dated 6.6.2008 is illegal and liable to be set aside. I have heard the learned counsel for both the parties and perused the material on record. It is contended by the learned counsel for the petitioner that since no notice was issued by the 4th respondent under Rule 5(1) of the A.P. Charitable and Hindu Religious Institutions & Endowments Lease of Agricultural Lands Rules, 2003 (for short, “the Rules”) terminating the lease in favour of the petitioner and no enquiry was conducted for determination of the status of the petitioner as a landless poor person as provided under Rule 3 of the Rules, it is not open to the 4th respondent-temple to issue the impugned auction notice proposing to put the leasehold rights in respect of the land in possession of the petitioner to public auction. It is also contended that the auction notice dated 6.6.2008 is ex facie illegal, since it did not contain the particulars as specified under Rule 10 of the Rules and, moreover, it was not issued 10 days prior to the date fixed for auction as mandated under Rule 11 of the Rules. Though the fact that the auction notice dated 6.6.2008 was not in compliance with the requirements of Rules 10 and 11 of the Rules could not be disputed by the 4th respondent, in the counter affidavit filed by the Manager of the 4th respondent-temple, it is stated that since the lease granted in favour of the petitioner for the years 2005 to 2008 vide proceedings dated 13.5.2005 came to an end, the 4th respondent is entitled to put the leasehold rights to public auction for grant of fresh lease. It is also contended that the extension as sought by the petitioner is not permissible under law, since Rule 7 of the Rules mandates that all leases shall be by public auction only. It is also contended that since meagre lease amount being paid by the petitioner is not at all sufficient to perform the daily rituals in the temple, the Assistant Commissioner of Endowments directed the 4th respondent-temple to conduct public auction for grant of a fresh lease and, accordingly, the impugned auction notice was issued on 6.6.2008, and the auction was also held on 12.6.2008 following due process of law. The learned Government Pleader for Endowments appearing for respondent Nos.1 to 3 as well as the learned Standing Counsel appearing for the 4th respondent while reiterating the above contentions, sought to justify the impugned auction notice. At the outset, it is to be noticed that as per Rule 10(6) of the Rules, it is obligatory to include in the auction notice that the decision of the Executive Authority awarding lease shall be subject to the approval of the competent authority. However, admittedly, the impugned notice did not contain any such recital. That apart, Rule 11 of the Rules, which provides for publication of auction notice, mandates that a copy of the auction notice shall be published in the language of the locality at least 10 days prior to the date fixed for auction, by affixture. It is the case of the petitioner that the impugned auction notice dated 6.6.2008 was affixed on the notice board of the Mandal Revenue Office only on 10.6.2008, in which the auction was proposed to be conducted on 12.6.2008. Even if the date of auction notice (6.6.2008), is taken into consideration, it is apparent that the requirement of minimum 10 days time stipulated under Rule 11 of the Rules was not complied with since the auction was proposed to be conducted on 12.6.2008. For the aforesaid two reasons, the impugned auction notice dated 6.6.2008 cannot be sustained and the same is hereby set aside being contrary to the provisions of the statutory rules. So far as the other contentions raised by the petitioner are concerned, though it is true that the petitioner was granted lease by the 4th respondent-temple for the years 2005 to 2008 since, admittedly, the period of lease came to an end, the mere fact that the request of the petitioner for extension of lease is pending before respondent Nos.3 and 4 will not preclude the 4th respondent from putting the leasehold rights to public auction for the subsequent period. However, the petitioner pleads that except Ac.5.00 cents of dry land belonging to the 4th respondent-temple in respect of which he was granted a lease, he is not in possession of any other land and thus he is a landless poor person. It is also his case that he has been the cultivating tenant for the last 34 years and that the lease in his favour was subsisting as on the date of commencement of the Andhra Pradesh Charitable and Hindu Religious & Endowments Act, 1987 (for short, “Act 30 of 1987”). Thus, it is contended that he is entitled to the benefit of Section 82 of Act 30 of 1987 and, therefore, without terminating the lease by issuing a notice under Rule 5(1) of the Rules or in the alternative without giving him an opportunity to exercise his option as provided under sub- section (2) of Section 82 read with Rule 5(2) of the Rules, the 4th respondent cannot take any steps to put the leasehold rights to public auction. As per Rule 3 of the Rules, immediately after coming into force of the said Rules on 11.3.2003, issued under G.O.Ms.No.379 dated 11.3.2003, the Assistant Commissioner of Endowments, having territorial jurisdiction, shall enquire into and decide whether the cultivating tenant is a landless poor person as defined under Section 82 of Act 30 of 1987. However, such enquiry has to be conducted only when the cultivating tenant claims to be a landless poor person, and as per sub-rule (2) of Rule 3, if the cultivating tenant does not claim to be a landless poor person, the tenancy will be deemed to have been cancelled with effect from 28.5.1987 and the cultivating tenant shall be regarded as a tenant holdingover thereafter. It is also relevant to note that Rule 7 of the Rules specifically provided that all leases shall be by public auction. In spite of the above mandatory provisions, the 3rd respondent- Assistant Commissioner of Endowments approved the lease in favour of the petitioner herein, for three years from 2005 to 2008 on the ground that he was a sitting tenant and that he had offered to pay enhanced amount of 30% over the existing lease amount. Similarly, the petitioner also failed to make a claim before the Assistant Commissioner of Endowments for determination of his status as a landless poor person. However, the fact remains that the petitioner continued in possession of the land in question under a valid lease granted for the years 2005 to 2008. In the circumstances, the steps for grant of fresh lease by conducting public auction can be taken up only by following the procedure prescribed under the Rules, including issuance of notice of eviction under Rule 5(1) of the Rules. Similarly, in case the petitioner intends to claim the statutory benefit under Section 82 of Act 30 of 1987, he is required to seek determination of his status as a landless poor person by making appropriate application before the Assistant Commissioner of Endowments having territorial jurisdiction. For the aforesaid reasons, the impugned auction notice dated 6.6.2008 is set aside and having regard to the facts and circumstances of the case, the writ petition is disposed of with the following directions: (1) the petitioner shall make an application before the Assistant Commissioner of Endowments having territorial jurisdiction for determination of his status as a landless poor person within a period of one week from the date of receipt of a copy of this order. On receipt of such application, the Assistant Commissioner of Endowments after making necessary enquiry in accordance with law shall pass appropriate orders within a period of three weeks thereafter; 2) basing on such determination made by the Assistant Commissioner of Endowments, the 4th respondent-temple shall take necessary steps either under sub-rule (1) of Rule 5 or under sub-rule (2) of Rule 5, as the case may be. Till such time, the leasehold rights of the land in question shall not be put to public auction and the petitioner shall be continued in possession of the said land, subject to payment of 45% enhanced lease amount over and above the lease amount fixed for the years 2005 to 2008. Such payment, if not already made, shall be made within a period of two weeks from the date of receipt of a copy of this order. The writ petition is accordingly disposed of. No costs. 30.06.2008. Kgr vIN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) MONDAY, THE THIRTIETH DAY OF JUNE TWO THOUSAND AND EIGHT PRESENT THE HON'BLE Ms. JUSTICE G.ROHINI WRIT PETITION No.11681 of 2008 Between: Nidamanuru Jagandha Rao, S/o. Rajaiah, aged 62 years, Cultivating Tenant, R/o. Chilukuru Village, Madira Mandal, Khammam District. .... PETITIONER AND 1 The Government of Andhra Pradesh, represented by its Principal Secretary, Endowment Department, Secretariat, Hyderabad. 2 The Commissioner of Endowments, Government of Andhra Pradesh, Boggulugunta, Hyderabad. 3 The Assistant Commissioner of Endowments Dept., Khammam, Khammam District. 4 Sri Malleshwara Swamy Temple, Chilukur Village, Madira Mandal, Khammam District, represented by its Manager. .....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue a writ or order or direction more particularly one in the nature of Writ of Mandamus declaring the action of the Respondents going to be conducting the public auction of the lease hold rights in respect of the land in Sy.No.211 to an extent of 5 Acres dry land situated in Chilukur Village, Madira Mandal, Khammam District of the 4th respondent herein which is under exclusive possession and enjoyment of the Petitioner herein for the past 34 years without disposing of the Petitioner's representation dated 01.05.2008 without following the procedure prescribed under Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Lease of Agriculture Lands Rules 2003 is illegal and void and opposed to Article 14, 19, 21 & 300-A of Constitution of India and consequently to direct the Respondents to continue the Petitioner as a cultivating tenant since the Petitioner's case is covered under Section 82 of the A.P. Charitable and Hindu Religious Institutions and Endowments Act, 1987 in accordance with law and to pass Counsel for the Petitioner: Mr. MUMMANENI.SRINIVASA RAO Counsel for the Respondents: GP FOR ENDOWMENTS The Court made the following: