THE HON’BLE SRI JUSTICE N.V. RAMANA W.P. No. 9932 of 2009 Oral order: The petitioners, who are four in number, claim to be cultivating tenants of land in an extent of Acs. 8.33 cents in Sy. Nos. 1767 to 1971, Bit-II village, Nellore District, belonging to Byragi Mutta, Fathekhanpet, Nellore. They state that initially the land was leased to their forefathers, and after them, they are now separately cultivating land in an extent of Acs. 2.50 cents, Acs. 2.33 cents, Acs. 2.00 and Acs. 2.00 respectively, in terms of the lease deeds executed in their favour, by the Managing Trustee of Byragi Trust and, paying maktha regularly. That they paid the maktha to Byragi Trust, and after its taking over, to the Endowments Department. While so, they made representations dated 01.06.2003 in terms of G.O. Ms. No. 379, dated 11.03.2003 to respondent No.2, namely the Assistant Commissioner, Endowments Department, Nellore, requesting him to declare them as landless poor persons and grant them permission to purchased the lands which are under their respective cultivation. The petitioners state that as no action was taken by respondent No.2 on their representations, the filed writ petition being W.P. No. 12102 of 2003, and this Court by order dated 25.06.2003 disposed of the said writ petition directing respondent No.2 to consider their claim as per the provisions of Section 82 of the A.P. Charitable and Hindu Religious Institutions and Endowment Act, 1982 (hereinafter referred to a ‘the Endowments Act’). Pursuant thereto, the petitioners state that they again made representations dated 20.07.2003 to respondent No.2. However, it is the case of the petitioners that respondent No.2 without providing any opportunity of hearing, relying on the Circular in Rc. No. M1/20956/2006 dated 18.09.2006, rejected the claim of the petitioners to declare them as landless poor person. Questioning the said order, the petitioners state that they preferred appeal in Appeal No. 17 of 2008, and respondent No.1 without considering their claim, mechanically and without applying his mind, by the impugned orders dated 27.11.2008 dismissed the appeal and confirmed the order of respondent No.2. As in spite of granting sufficient time, the respondents did not file counter, this Court by order dated 15.07.2009 directed the appearance of the respondents. It is only then the respondents appeared and filed counter. Respondent No.2 filed counter stating that Byragi Mutt, situated in Fathakhanpet, Nellore, has been notified under Section 6(d) of the Endowments Act, on 13.08.1987, and it falls under the administrative control of the Deputy Commissioner, Endowment Department, Guntur. It is stated that the mutt was taken over by the Endowments Department in the year 1985, and prior to taking over the Mutt, its Managing Trustee in the year 1975, had granted the land in an extent of Acs. 12.83 cents to petitioner No.1 on lease by executing lease agreement. After taking over the mutt, out of Acs. 12.83 cents of land, belonging to the mutt, an extent of Acs. 8.33 cents was leased out in public auction for a period of six years from 01.07.1985 to 30.06.1991 on annual maktha of 6-0-0 of paddy per annum and the same was approved by the Commissioner in his proceedings dated 28.07.1985. After expiry of the said lease period, petitioner No.1 is not a cultivating tenant, but is continuing in the temple land as encroacher without paying any maktha. Petitioner No.1 with a view to grab the land, inducted petitioner Nos. 2 to 4 and divided the land in a manner, entitling each of them to make a claim for declaration as landless poor person. It is further stated that on receiving representation dated 20.07.2003 from the petitioners, respondent No.2 conducted an enquiry and issued orders dated 27.05.2008 rejecting the claim of the petitioners to be declared as landless poor persons observing that as per the orders issued by the Government in Memo dated 22.05.2006 and the consequential instructions issued in Circular dated 18.09.2006, the provisions of the Endowments Act are not applicable to lands that are situated in TUDA areas/urban agglomeration area as they are valuable and costly land. Questioning the said order, the petitioners filed appeal in Appeal No. 17 of 2008, and the Regional Joint Commissioner, Endowments Department, Multi Zone-II, Tirupati, dismissed the appeal by order dated 27.12.2008 stating that the partition of land among the L.Rs. of the original lessee is not permissible and as the land in question is situated in urban area, the petitioners cannot be treated as cultivating tenants. Respondent No.2 filed another counter stating that the Assistant Commissioner, Endowments Department, Rajamundry, and not the respondents herein were party to the writ petition in W.P. No. 12102 of 2003. The respondents are not aware of the orders dated 25.06.2009 passed by this Court for fixing the rate o lease by collecting necessary information or by inviting bid. In the said order, this Court noted the fact that the petitioners have themselves admitted that their forefather was the original lessee and after them, they have partitioned the land. Therefore, the petitioners cannot contend that they are cultivating small extents of land separately in terms of the leases granted to them by the respondents, and as such, are entitled to be declared as landless poor persons. At any rate, he submitted that on 14.05.2009, the leasehold rights of the land in question was auctioned, and in the said auction, one Sri. Gangula Janardhana Rao, who quoted Rs. 7,000/- per putty, became the highest bidder, and he paid an amount of Rs.3,08,350/- for 44-1-0 putties, and the said auction was also confirmed by the Commissioner. However, the petitioners filed reply-affidavit stating that the Circular, relied upon by the respondents, to refuse to declare the petitioners as landless poor persons, has no statutory force, and in fact, is contrary to the provisions of Section 82 of the Endowments Act and Rule 5 of the Rules made thereunder, which relate to leasing of agricultural lands situated in both rural and urban areas. They therefore contend that the said Circular cannot be applied to the petitioners, and more so when the said Circular came into force, long after the petitioners filed applications to declare them as landless poor persons. Heard the learned counsel for the petitioners and the learned Government Pleader for Endowments for the respondent. Though the lease granted by the respondents in respect of agricultural land in an extent of Acs. 8.33 cents, belonging to Byragi Mutt, in favour of petitioner No.1 for a period of six years, expired as far back as on 30.06.1991, the fact remains, the respondents did not take any steps either to put the leasehold rights of the land to auction or evict petitioner No.1 from the land. In the absence of any steps taken by the respondents to put the lease hold rights to auction or evict petitioner No.1 continued in the land. Emboldened by his uninterrupted continuance, it appears petitioner No.1 divided the land into four parts, retained one part for himself and allotted rest of the three parts to petitioner Nos. 2 to 4. Based on such division and possession of respective extents, the petitioners, claiming themselves to be landless poor persons and entitled to remain in possession of the land as lessees and also purchase the same in terms of the Rules framed by the Government in G.O. Ms. No. 379, dated 11.03.2003, filed writ petition in W.P. No.12102 of 2003. This Court, by order dated 25.06.2003, having regard to the fact that this Court earlier in W.P. No. 7837 of 2003, having considered the question as to whether a lessee, who is declared a landless poor, is entitled to purchase the land, of which he is a lessee, by order dated 02.05.2003, held that a lessee, even if, held to be a landless poor, is not per se entitled to purchase the land belonging to the temple and the right of priority accorded to such landless poor persons is only in the event of temple proposing to sell it, and having regard to the contentions raised in the writ petition and the Rules framed by the Government in G.O. Ms. No. 379, dated 11.03.2003, disposed of the said writ petition, with the following directions: (a) If the petitioners claim the status of landless poor, it shall be open to them to approach the concerned Assistant Commissioner of Endowments, with an appropriate application, within two weeks from the date on which the copy of the order is furnished to them by the court. On such application being made, the concerned Assistant Commissioner shall decide the matter in accordance with the guidelines and condition laid down in the explanation to Section 82 of the Act 30/87, duly putting the tenants as well as the temple on notice; and pass appropriate order within one month from the date of presentation of the application. This exercise shall not be necessary, if the status of such tenants was already decided or where no such application is made. For the purpose of deciding this question, the status of the actual lessee of the land shall be taken into account. The fact that the family of such lessee went through partition or other such factor shall not have any bearing on the question. (b) If the tenants are declared as landless poor as defined in the explanation to Section 82, though an order by the Assistant Commissioner of Endowment, such tenants shall be entitled to be continued as lessees at the rates fixed by verification or by holding auction; for an extent of land, not exceeding the limits stipulated in the explanation. Except where such persons emerge as the highest bidders, they shall be liable to surrender the remaining lands. (c) The question of sale of any land belonging to temple would arise, if only, a decision in that regard is taken by the concerned Trust Board for the genuine needs of the temple and subject to approval by the authorities prescribed under the Act. If the decision to sell any land is taken in the manner stipulated above in the interests of the concerned temple, the right of the tenants declared as landless poor to purchase such land, as contemplated in the Rules issued in G.O. Ms. No. 379, dated 11.03.2003 would arise, for an extent not exceeding the limits stipulated under the explanation to Section 82. Pending determination of the status of the tenants by the Assistant Commissioner, no steps shall be taken to dispossess the tenants. The concerned authority shall fix the rate of lease for the land by collecting the necessary information or by inviting bids. The figure so arrived at shall hold good for the current agricultural season, in case the existing tenants are not agreeable to pay such amount, it shall be open to the authorities of the temple as well as the Endowments Department to resume the land and put it to auction. Even if any auctions are held, by the time the orders are communicated, the same shall not be confirmed till the exercise indicated above is completed. No costs. In the above writ petition filed by the petitioners, this Court pending determination of the status of the petitioners as landless poor, directed their continuance for the said current agricultural season, subject to payment of the lease rent to be determined, and in case the petitioners are not agreeable to pay such amount, to resume the land and put it to auction. However, the respondents neither fixed the lease amount nor collected any lease amount from the petitioners, and instead continued them in the land without resuming. This apart, though this Court, in determining the status of the petitioners as landless poor persons, directed that the status of the actual lessee of the land shall alone be taken into account and not whether the family of such lessee went through partition or other such factor, and that the determination should be made as per the Rules framed by the Government in G.O. Ms. No. 379, dated 11.03.2003 and the explanation appended to Section 82 of the Endowments Act, the fact remains, the respondents though refused to declare the petitioners as landless poor persons holding that original lease of Acs. 8.33 stands in the name of the forefathers of the petitioner and that partition of lease among L.Rs. is not permissible, they did not determine the status of the petitioners as landless poor persons, as directed by this Court in the above said order. The justification sought to be given by the respondents for non- consideration of the case of the petitioners in light of the directions dated 25.06.2003 granted by this Court in W.P. No. 12012 of 2003, on the ground that they are not party-respondents to the said writ petition, that it is the Assistant Commissioner, Endowments Department, Rajamundry, who is a party-respondent to the said writ petition, and that they are not aware of the direction granted therein, cannot be accepted. No doubt, the respondents are not party-respondents to the writ petition, but the fact remains, Byragi Mutt is a party-respondent. This apart, in the applications submitted by the petitioners to respondent No.2, to declare them as landless poor persons, they have specifically made a mention that they are making the applications as directed by this Court in W.P. No.12102 of 2003. In such circumstances, it was the fundamental duty of the respondents to call for a copy of the order in the writ petition, either from the petitioners or from the persons in management of Byragi Trust, which was taken over by Endowments Department, and verify as to what directions were given therein, but unfortunately, the respondents did not do, and proceeded to determine the status of the petitioners as landless poor person, based on some Circular. As no stay of the impugned orders was granted by this Court, it is stated by the respondents that on 14.05.2009 they have auctioned the leasehold rights of the land in question, that in the said auction, one Sri. Gangula Janardhana Rao, who quoted Rs. 7,000/- per putty, became the highest bidder, and that he paid an amount of Rs. 3,08,350/- for 44-1-0 putties, and the said auction was also confirmed by the Commissioner. Though the respondents claim, and the record produced by them also discloses that the leasehold rights of the land in question was auctioned, the fact remains, it is the specific case of the petitioners that they are still in possession of the land. The fact that the petitioners are still in possession of the land is not disputed by the respondents. When the petitioners are not the leaseholders of the temple land, I fail to understand how the respondents have permitted them to continue without taking any steps for their eviction. The fact that the respondents have allowed the petitioners to continue in possession of valuable land of Byragi Trust after expiry of the lease and without there being any further lease in their favour and without collecting any maktha from them, since 1991, is a matter of grave concern. This reflects the sad state of affairs in the administration of the Endowment Department, particularly in the matter of protecting temple lands and their properties. The manner in which the respondents have slept over the matter for all these years and allowed encroachers to squat on the property with impunity, clearly suggests that they are not least bothered to protect the properties of the temple, obviously to benefit private persons. Had the respondents conducted auction of the leasehold rights of the land periodically and immediately after the expiry of the relevant lease periods, the present situation would not have arisen, but unfortunately they did not do so, and as a result thereof, the petitioners continued to be in unlawful possession and they continue to do so even today even after the property is said to have been auctioned in 2009. Be that as it may, since the respondents did not determine the status of the petitioners as directed by this Court by its order dated 25.06.2003 passed in W.P. No. 12012 of 2003, I deem it appropriate to dispose of the writ petition with the following directions: The impugned orders are set aide. Respondent No.2 is directed to re-examine the whole issue in the light of the orders dated 25.06.2003 passed by this Court in W.P. No. 12012 of 2003, as extracted in the body of this order, and pass appropriate orders thereon, within a period of eight weeks from the date of receipt of a copy of this order. _________________ N.V. RAMANA, J. Dated: 28th June, 2010 KSR