THE HON’BLE SRI JUSTICE B.CHANDRA KUMAR SECOND APPEAL No.126 of 1999 Dated:- 03rd September, 2010 Between:- Yellisetty Ramachandraiah and others …Appellants AND Sri Veerabhadra Swamy Temple and others …Respondents THE HON’BLE SRI JUSTICE B.CHANDRA KUMAR SECOND APPEAL No.126 of 1999 JUDGMENT:- This appeal is directed against the judgment and decree dated 03.08.1998 passed in A.S.No.89 of 1989 by II Additional District Judge, Kurnool, (‘lower appellate Court’, for brevity) whereby, the judgment and decree dated 21.08.1989 passed in O.S.No.116 of 1980 by the Principal District Munisif, Kurnool (‘trial Court’, for brevity), was set aside. 2. Appellants 1 to 4 herein are the plaintiffs in Original Suit. Since appellants 1 to 3 died, fourth appellant is the only surviving and contesting appellant in this case. Respondent No.2 herein, who was the second defendant in the Original Suit, also died and the appeal was dismissed for default against respondents 3 and 4. Therefore, the present appeal is surviving against the first and the fifth respondents only. The main point involved in this case is whether alienation of temple land made by the Trustees of the temple after seeking permission from the Government, without conducting public auction is valid or not. 3. The parties will be arrayed as they were arrayed in the Original Suit, for the sake of convenience. 4. The brief facts of the case are as follows:- The first defendant is Sri Veerabhadraswamy Temple situated in Peta, Kurnool district. The second defendant was the Managing Trustee representing the Board of Trustees of the temple. Defendants 3 and 4 are the members of the Board of Trustees. The temple land admeasuring Acs.3.23 cents in Survey No.559/2 in Kallur Village, Kurnool Taluk, Kurnool District (‘suit land’, for brevity) is situated in the outskirts of Kurnool Town within Kurnool Municipality limits, though it is in Kallur Village. The plaintiffs’, claiming to be devotees of the first defendant temple, alleged that the second defendant had tried to sell the suit land to employees of Endowments Department while he was working as Executive Officer of the temple, but however, since his acts were resisted the then Managing Trustee of the temple, he could not be successful in his attempts. Plaintiffs further alleged that the second defendant, trying to derive benefits out of the suit properties with the help of other Trustees, seems to have recommended the sale of the suit land by private negotiations at nominal price though the suit land is a very valuable one useful for house sites. It is also their case that though they had sent petitions about the said illegal private negotiations to the Endowment authorities, there was no response from the higher authorities. Suspecting that defendants 2 to 4 may execute sale seeds in favour of private parties without holding public auction which amounts to breach of trust, the plaintiffs filed the suit. 5. The defendants filed a detailed written statement inter alia contenting that the suit is neither just nor maintainable and that the suit land had been mostly encroached upon by hut dwellers numbering over 60 and that none of the previous managements had taken any steps to take back possession of land which resulted in loss of income to the temple from suit land. The defendants however admitted that the suit land is situated within Kallur Village limits, immediately behind Tungabhadra Industries and has become valuable with the advent of housing colonies nearby. However, it is also their case that the suit land has got one disadvantage of it being nearby the Kurnool and Dronachalam Railway line causing vibrations to the proposed constructions therein. The specific allegations made against the second defendant and Board of Trustees have been denied. The specific case of the defendants is that as the temple has no income to maintain itself and that the Board of Trustees had resolved to apply to the Commissioner, Endowments Department, Government of Andhra Pradesh seeking necessary permission to sell the temple land by private negotiations at a rate of Rs.40,000/- per acre in favour of a society called ‘Kurnool District Hindu Devadaya Dharmadaya Sakah Udyogula Sangham’ which was formed by the Endowment employees and that the Government of Andhra Pradesh, by its order vide G.O.Ms.No.1281 dated 05.11.1979, permitted the Board of Trustees to alienate the suit land in favour of the said society. 6. It is also their case that the lands in the vicinity were never sold at the rate of more than Rs.15,000/- per acre even as house sites and, therefore, the Board of Trustees had taken a decision to sell the land at Rs.40,000/- per acre which rate is nearly three times higher than the prevailing market value by then. It is also their case that though objections were called for from the public for the proposed sale by publishing the same in the A.P.Gazette dated 11.10.1979, the plaintiffs did not file their objections and no objections were received from any person. It is also their case that valid order issued under Proviso to Clause C of sub-section 1 of Section 74 of the A.P. Charitable & Hindu Religious Institutions & Endowments Act, 1966, (‘the Old Act’, for brevity) (Subsequently, this Act is amended as the Andhra Pradesh Charitable and Hindu Religious Institutions & Endowments Act, 1987, which will hereinafter referred to as ‘New Act’) cannot be questioned in a civil Court as per Section 105 of the Old Act and, therefore, the suit is not maintainable. It is also the case of the defendants that the plaintiffs know all these facts and that action of Board of Trustees is bonafide and that sale is not in favour of a private person, but in favour of a society formed by the staff members of the Endowment Department. 7. Based on the above pleadings, the trial Court framed the following issues:- 1. Whether the plaint schedule property is wrongly described; 2. Whether the plaintiffs are entitled for the injunction as prayed for; 3. Whether the suit is maintainable against the orders of the government made in G.O.Ms.No.1291 dated 05.11.1979 under Section 74 (1) (c) of the Act (Act XVII of 1966); 4. Whether the sale of the suit land by private negotiations without open auction amounts to breach of trust; 5. to what reief. 8. On behalf of the plaintiff, P.Ws.1 to 8 were examined and Exs.A.1 to A.11 were marked. On behalf of the defendants, D.W.1 and D.W.2 were examined and Exs.B.1 to B.10 were marked. 9. The trial Court decreed the suit mainly holding that the permission granted by the Government is void and that the sale of suit land is not in the interest of the temple. The lower appellate Court held that the land was under the occupation of hut dwellers and that as no one came forward to purchase the suit land, the Government permitted the sale of the land by private negotiations at Rs.40,000/- per acre and that the evidence of P.W.1 shows that the said sale was in the interest of the temple and that the suit is not maintainable under Section 74 of the Old Act since the Government auction cannot be challenged in the Civil Court. 10. Sri Vijay Kumar Heroor, learned counsel for the appellant mainly submitted that the plaintiffs, who are the devotees of the temple, filed the suit only with a view to protect the property of the temple and that the evidence led by the plaintiffs clinchingly establishes the fact that the proposed sale of suit land by private negotiations is not in the interest of the society and that the suit land was sold at a throw away price and that the land was within the limits of the Kurnool Municipality. It is also argued that the evidence on record shows that the prevailing market value was about Rs.90/- per square yard. Relying on the Full Bench judgment of this Court in case between Employees Association, rep. by its President K.Venkateswara Rao Vs.: Sri Chenna Keshava Swamy Temple, rep. by its Manager M. Kapotheswara Rao and others[1], it is submitted that the facts of that case are similar with the facts of this case and the Full Bench of this Court had categorically held that the safeguards contained in Section 74 of the Old Act are intended to be mandatory and not directory and, therefore, sale of immovable property belonging to any religious or charitable institution shall be null and void unless such sale is effected with the prior sanction of the Commissioner and in the interest of the temple. It is also argued that where the Government fails to apply its mind to the essential requirements and when there is non-compliance of relevant mandatory provisions, the permission accorded by the Government should be declared as void and in the facts and circumstances of the present case, the sale of temple property is null and void. It is also submitted that in the above referred decision, it is held that Civil Court is competent to entertain the suit and the provisions of Section 105 of the Old Act do not operate as a bar. It is further submitted that the lower Court, in its judgment, has rightly referred to the judgment in case between Chenchu Rami Reddy Vs. Govt. of A.P[2]. 11. Per contra, Sri B.Narasimha Sharma, learned counsel representing fourth respondent submitted that the plaintiffs have not specifically averred what was the prevailing market value in that area and what was the amount recommended by the Board of Trustees and how the price mentioned by the Board of Trustees is nominal price and in the absence of specific pleadings, the suit is liable to be dismissed. His main submission is that the suit land was occupied by more than 60 hut dwellers and it was not fetching any income and there was no income for maintaining the temple and in the above circumstances, the Board of Trustees, considering the ground realities and the prevailing market value, had taken a decision to sell the suit land and that the price quoted by them was more than the prevailing market value and that the Government, having taken into consideration the facts and circumstances narrated by the Assistant Commissioner, Endowments Department, accorded permission to sell the suit land without conducting public auction in the interest and for the benefit of the temple. It is also submitted by the learned counsel for respondents that as per the prescribed procedure, notification was published in the official Gazette, thereby giving notice to one and all and admittedly, the plaintiffs herein did not raise their little finger and nobody filed any objections to the said notification and, therefore, in the above circumstances, the Government accorded permission to sell the land as per the prescribed procedure. It is also his submission that the property was not sold to any individual or to any businessman and that it was sold to a society formed by the employees of the Endowment Department among whom there are Group D employees also and, therefore, it cannot be said that there was any clandestine transaction or any under-dealing in the transaction. It is also submitted that it is for the plaintiffs to prove what was the prevailing market value and since the plaintiffs have failed to discharge their burden, the suit is liable to be dismissed. It is also submitted that subsequent to the sale, the employees have already constructed their houses and they have been residing in those houses since last thirty years and that Ex.B.5 to B.8 and the evidence of D.W.2 proves the prevailing market value which is much less than the price for which the suit land was sold to the society. It is also submitted that no suit is maintainable challenging the proceedings of any action taken by the Trustees or by the Government with regard to the management of the Temple under Section 105 of the Old Act and, therefore, the appellate Court is justified in reversing the judgment of the trial Court. It is also argued that the plaintiffs did not specifically plead that there is violation of Section 74 of the Old Act. 12. In reply, learned counsel for the appellant submitted that normal rule is that the temple land has to be sold for the benefit of the temple, only by way of public auction and unless and until valid reasons have been shown for not holding the public auction, the Government ought not to have permitted the sale by private negotiations without holding public auction. It is also his contention that the plaintiffs have specifically pleaded that the suit land was being sold without conducting public auction and the same is illegal and, therefore, it is not correct to say that the plaintiffs have not taken any plea that there is violation of Section 74 of the Old Act but the meaning and purport of the pleadings is a violation of Section 74 of the Old Act (Section 80 of the New Act). 13. I have considered the above rival contentions. The points that arise for consideration in this appeal are as follows:- 1. Whether the proposal of the defendants to sell the suit land to the society at the rate of Rs.40,000/- per acre was just and reasonable in the facts and circumstances of the case; and 2. Whether the permission accorded by the Government to sell the suit land by private negotiations is valid and binding on the parties. 3. Whether the suit is maintainable in view of Section 105 of the Old Act (Section 115 of the New Act) and in view of the facts and circumstances of the case; POINT No.1 14. It is a well known proverb that ‘men may lie but circumstances will not’. As seen from the evidence let in by the defendants itself, it is clear that the suit land is in B- Camp in the outskirts of Kurnool town. There are two survey numbers, adjoining the suit land and adjoining these two survey numbers, there is national highway. To the west of it, there is Ramachandra nagar and to the north of it is Postal colony. Thus, it is clear that the area was a fast developing area by 1979-80. The second defendant, who was examined as D.W.1, deposed that the adjoining the suit land, on its South, there is a site of Petrol Bunk of one Viswanatham and on its North, there is Birla Guest House and Ananthapur – Kurnool Road is running on its East and there is a railway track to the west of it. To the West of the railway track, there is national highway at a distance of 3 or 4 furlongs. Thus, one suit land is admittedly situated in potential area. 15. According to D.W.2 – N.Hanumantha Reddy, the President of Government Press Employees House Building Cooperative Society, in the year 1978, he purchased lands for house sites in several survey numbers adjoining the suit land. Thus, the evidence of D.W.2, adduced on behalf of the defendants, proves that housing colonies adjoining the suit land came into existence even by 1978-1979 and that the suit land is very near to the national highway and within the limits of Kurnool Municipality. 16. Now it has to be seen whether the offer of the Board of Trustees to sell the suit land at the rate of Rs.40,000/- per acre by private negotiations, without conducting public auction is justified and is for the benefit of the temple. Ex.A.1 is the endorsement issued by the Commissioner of Kurnool Municipality to Y.Ramachandraiah (the plaintiff herein) showing that Survey No.559/2 of Kallur Village (suit land) is within municipal limits of Kurnool from the very inception of Kurnool Municipality and it is in Ward No.50 of B-Camp. Ex.A.2 issued by the Tahsildar, Kurnool is also to the same effect. We are not very much concerned with Ex.A.5 which deals with the irregularities committed by the then Chairman Mr.K.Subramanyam. Ex.A.6 is the letter from said K.Subramanyam to the Assistant Commissioner, Endowmens Department, Kurnool, which reveals that he, while working as the Trustee of the Temple, opposed alienation of suit land particularly by private negotiations. Ex.A.7 is the representation made by the members of the society for allotment of the suit land for the purpose of house sites. 17. P.W.1 – M.Prakasha Rao was working as Junior Assistant in Town Planning Section, Kurnool Municipaltiy. He was examined to prove that the suit land is within the limits of Kurnool Municipality. P.W.2 – B.Madhava Swamy was working as Assistant in Taluk Office, Kurnool. His evidence is also to the same effect. P.W.3 – D.Albert Victor was working as U.D.C. in Kurnool Registration Office. He produced the Valuation Register of the suit land showing the value of the suit land at Rs.90/- per square yard with effect from 16.08.1992. P.W.5 – N.V.Satyanarayana was working as Senior Assistant in the Registrar’s Office, Kurnool who produced the Valuation Register of Ward No.50 which shows that the basic value of the suit land was Rs.15/- per square yard in the year 1979 and Rs.20/- in the year 1980. According to him, if the rate per square yard is taken at Rs.20/-, the value of the suit land per acre comes to Rs.96,800/-. P.W.6 – K.Subrahmanyam is the erstwhile Managing Trustee of the first defendant temple and according to him, when there was a proposal to sell the suit land to their staff, he insisted for the sale of land through public auction. According to the first plaintiff – Y.Ramachandraiah (P.W.7), the market value of the suit land is about one lakh rupees per acre during 1979-80. He had also deposed about the representation sent to the Government vide Ex.A.11, wherein, a request was made to set aside the sale of suit land by private negotiations and to sell the same through public auction. It has to be seen that P.W.6 and P.W.7 were not cross-examined and the evidence of P.W.8 – B.G.Rudrappa also shows that the market value of the suit land is one lakh rupees per acre. 18. Now we have to see whether the findings of the lower appellate Court are reasonable and based on evidence or whether they are perverse. If there is non- consideration of evidence resulting in perverse finding, the High Court can interfere in Second appeal. The lower appellate Court discarded the evidence of P.W.1 mainly on the ground that it is not mentioned in the plaint that the suit land is situated within he limits of Kurnool Municipality. It has to be seen that even in the written statement, it is an admitted case that the suit land is situated in Kurnool Municipality. Ignoring the admissions made by the defendants that the suit land is situated within the limits of Kurnool Municipality, the evidence adduced by the plaintiff has been disbelieved. Referring to the evidence of P.W.3, the lower appellate Court held that the value of the suit land on 16.08.1992, though may be Rs.90/- per square yard, but on that ground itself, it cannot be said that the suit land sold at Rs.40,000/- per acre in the year 1979 was very low. The evidence of P.W.5 was disbelieved simply on the ground that the plaintiffs did not come forward to purchase the suit land at the rate of Rs.90,000 per acre. Thus, the finding of the lower appellate Court is perverse and totally unreasonable. It has to be seen that P.W.5 was working as Senior Assistant in the office of the Registrar. He produced the Valuation Register showing the value of the land in Ward No.50 of Kurnool Municipality. He has categorically deposed that the rate of the suit land was Rs.15/- per square yard in the year 1979 and Rs.20/- per square yard in the year 1980. Thus, there is nothing to disbelieve the evidence of P.W.5 who is an independent official witness. He has deposed basing on the official Valuation Register produced by him from the Registrar’s office. Thus it appears that the lower appellate Court has rather misread his evidence and committed a mistake in not accepting his evidence. It has to be seen that P.W.5 was neither interested in the defendants nor interested in the plaintiffs, rather he was an official witness. Even if the evidence of other witnesses are disbelieved, there is nothing to disbelieve the evidence of P.W.3 and P.W.5 who are official witnesses. Their evidence clinchingly establish the fact that the suit land is situated was within the limits of Kurnool Municipality and all the adjacent lands in Ward No.50 were sold as per the Valuation Register at the rate of Rs.15/- per square yard in the year 1979 and at the rate of Rs.20/- per square yard in the year 1980. Thus, it is clear that even if a rough calculation is made estimating at the rate of Rs.20/- per square yard, the value per acre may approximately come to one lakh rupees. 19. Now it has to be seen whether the second defendant and the other Board of Trustees were fair and justified in proposing to sell the suit land at the rate of Rs.40,000/- per acre. The second defendant was the Managing Trustee. Admittedly, he had previously worked as Executive Officer of the Temple during the year 1964. After retirement from the service, he became a Trustee and subsequently became Chairman of the Board of Trustees. He had categorically admitted that the society, to whom the suit land was sold, had allotted a plot to him. This admission by D.W.2 shows his oblique motive. Now it is contended that the land is sold for the benefit of the employees. Unfortunately, the second defendant, who was examined as D.W.1, himself admitted that the suit land is sold not only to the members of the society but also to others. 20. A reading of the evidence of D.W.1 himself shows that there is nothing on record to show that the land was encroached by hut dwellers. He deposed that there was a complaint from the local public that hut dwellers had encroached into the temple land. In the cross-examination, he admitted that no such complaint is available with him. He has also admitted that though such complaint was sent to the Commissioner of Endowments Department through the Assistant Commissioner, Endowments Department, Kurnool, admittedly he did not initiate any action against the hut dwellers who allegedly encroached the suit land, while he was working as Managing Trustee or previously as Executive Officer of the temple. There is no iota of evidence or scratch of paper to show that the land was encroached by the hut dwellers and was not fetching any income. The land appears to be in prime locality adjacent to the national highway and surrounded by housing colonies within the limits of Kurnool Municipality. Even according to the rate mentioned in the Valuation Register obtained from the Sub- Registrar, it was being sold at the rate of Rs.20/- per square yard during the relevant period and if all these facts and circumstances are taken into consideration, it is crystal clear that the proposal to sell the suit land to the housing society at Rs.40,000/- per acre appears to be with an ulterior motive and not in the interest of the temple. Of course, the defendants have examined D.W.2 who had also accepted certain sale deeds showing that the suit land admeasuring Acs.1.96 cents was sold on 06.04.1978 for Rs.56,840/- and Acs.1.30 cents for Rs.37,400/- and Acs.0.43 cents of land at Rs.12,470/- during the same period, but admittedly these rates have been mentioned in the sale deeds i.e. the rate on which stamp duty and registration fees was collected. It is common knowledge that normally people show lesser value in the documents presented for registration for the purpose of avoiding payment of more stamp duty and registration fee. Therefore, if a pragmatic view is taken, the market value of the suit land would be much more than the rate or the price quoted in the