THE HON’BLE SRI JUSTICE V. ESWARAIAH AND THE HON’BLE SRI JUSTICE B.CHANDRA KUMAR W.P.No.20222, W.P (SR) Nos. 105905 and 106397 of 2011 COMMON ORDER: (per the Hon’ble Sri Justice V. Eswaraiah) Since the issue raised in these three writ petitions is similar, they are being disposed of by this common order. The petitioners submit that they are lessees in respect of small extents of vacant sites belonging to Srikalahastheeswara Swamy Vari Devasthanam, Srikalahasthi-2nd respondent herein. They were allotted vacate sites in Enugula Mandapam and Vasantha Mandapam respectively. Pursuant to the lease of the sites granted in their favour, they have erected shop rooms for selling pooja articles, photos of deities, cool drinks etc. The lease granted in their favour was expired by the end of June, 2010. It is further stated that the Government issued Memo No.20175/Endt.- I(2)/2010-I, dated 18-05-2010, wherein it is stated as follows:- “Government hereby decide to extend the existing lease period of small and marginal farmers of Endowments Agricultural lands for a further period of three years on payment of 2/3rd of prevailing market rentals/makta subject to the conditions that such leaseholders are not in arrears of lease rentals/makta. As regards, Shops/Establishments in Small Temples / Institutions having an assessable income of Rs.25 lakhs and below, Government further order that the existing leases of shops be extended for a further period of three years on payment of 33 1/3% of prevailing market rentals and in respect of other Temples/Institutions, where annual assessable income is more than Rs.25 lakhs, such extension of leases of Shops shall be permitted on payment of 50% enhancement of existing rentals for a period of three years”. Learned counsel appearing for the petitioners fairly submits that the subject matter of the writ petition is not an agricultural land belonging to the Temple and, therefore, the question of the petitioners being small farmers does not arise. It is further submitted that the income of Srikalahasthi Temple is more than Rs.25,00,000/- and the existing lessees are entitled for renewal of the lease for a period of three years on payment of 50% of enhancement of the rent over and above the existing rent. It is further stated that pursuant to the said Government Memo, the petitioners made a representation, dated 09-07-2010, and pursuant to the said representation, the Executive Officer and Special Grade Deputy Collector of Srikalahasthi Devasthanam sent proposals contending that the lease of the petitioners was expired by 30-06-2010 and that the petitioners have offered to pay 50% over and above the existing rent and accordingly, recommended to accept the proposal for renewal of lease for a period of three years on payment of 50% over and above the existing rent. It is stated that the proposals are pending before the Commissioner of Endowments Department and thus, it is stated that the petitioners are entitled for renewal of lease as per the policy of the Government. On the other hand, the learned Government Pleader for Endowments appearing on behalf of the 1st respondent placed reliance on Section 82 of the A.P.Charitable and Hindu Religious Institutions and Endowments Act, 1987 (for short “the Act”), which deals with Lease of Agricultural Lands and submitted that Section 82 of the Act has no application in case extending lease period as far as shops or vacant sites are concerned. The only point that arises for consideration is whether Section 82 of the Act can be made applicable to the vacant sites and shops and particularly to the lands situated in Municipalities and Municipal Corporations. Section 82 (2) of the Act reads as follows:- “In respect of leases of agricultural lands (other than those lands situated in Municipalities and Municipal Corporations) held by landless poor person for not less than six years continuously, such person shall have the right to purchase such lands for a consideration of seventy five per centum of the prevailing market value of similarly situated lands at the time of purchase and such consideration shall be paid in four equal instalments in the manner prescribed. Such sale may be effected otherwise than by tender- cum-public auction.” Provided that if such small and marginal farmers who are not able to purchase the land will continue as tenants provided, if they agree to pay at least two third of the market rent for similarly placed lands as lease amount.” Section 82 (3) of the Act reads as follows:- “The authority to sanction the lease or licence in respect of any property or any right or interest thereon belonging to or given or endowed for the purpose of any charitable or religious institution or endowment, the manner in which and the period for which such lease or licence shall be such as may be prescribed. Section 82 (4) of the Act reads as follows:- “Every lease or licence of any immovable property, other than the agricultural land belonging to, or given or endowed for the purpose of any charitable or religious institution or endowment subsisting on the date of the commencement of this Act, shall continue to be in force subject to the rules as may be prescribed under sub-section (3). Both the counsel submits that no Rules have been prescribed insofar as the manner and method of granting leases of the vacant sites/shops and the existing procedure is only by way of conducting public auction. Learned counsel for the petitioners contended that the Memo issued by the Government is admittedly in nexus with the power under Sub-Section 2 of Section 82 of the Act. Under Sub-Section (2) of Section 82 of the Act, landless poor persons are entitled to purchase agricultural lands belonging to the Temple/Institution on payment of 75% of the prevailing market value and if such landless poor people are unable to purchase even at the rate of 75%, they are entitled to continue the lease on payment of 2/3rd of the prevailing market rent for similarly situated shops. A perusal of the said Government Memo indicates that where annual assessable income of the Temple/Institution is more than Rs.25 lakhs, the lessee is entitled for extension of lease on payment of 50% of enhancement of the rent over and above the existing rent for a period of three years. A perusal of Sub-Section (2) of Section 82 of the Act indicates that even the landless poor are not entitled to purchase the land even at the rate of 75% of the market value or at the 2/3rd of the market rent, if such land is situated in the Municipality or Municipal Corporation. Admittedly, the lands in question are situated in the Srikalahasthi Municipality. Hence, we are of the opinion that even the agricultural landless poor is not entitled to have lease of the land on concessional rate or entitled to purchase the said land of Temple/Institution for the concessional rate of 75% of the prevailing market value and, therefore, the question of giving any benefit to the existing lessees does not arise. No doubt, in the absence of Statutory Rules, the Government has got power to issue the executive instructions under Article 154 of the Constitution, but the executive instructions issued vide memo No. 20175/Endt.I(2)/2010-1 dated 18.5.2010 are in violation of 82 (2) of the A.P. Charitable and Hindu Religious Institutions and Endowments Act, 1987, (for short the Act, 1987). Therefore, it cannot be said that the said memo was issued by the Government while exercising its powers under Article 154 of the Constitution read with Section 153 of the Act, 1987 whereby the Government is empowered to issue such instructions, even in the absence of any statutory rules made relating to disposal of the vacant sites/shops etc of the endowments and charitable institutions by way of lease. Section 153 of the Act, 1987 confers the Government to make rules and the impugned order is not an order of the Government exempting any provisions of the Act by way of a notification. Therefore, we are of the opinion that the memo issued by the Government has no statutory force. We do not see any reason or justification in issuing such a Memo by the Government contrary to Section 82(2) of the Act, insofar as grant of leases of sites of the Temples/Institutions situated in the Municipalities and Municipal Corporations where the annual assessable income of the Institution is more than Rs.25,00,000/-. In the instant case, the annual income of Srikalahasthi is more than Rs.25,00,000/-. Therefore, we are of the opinion that the petitioners are not entitled to avail the benefit of the said Memo. For the foregoing reasons, We do not see any reason to interfere with the public notification issued for conducting auction of lease hold rights of the Shops in question, which are schedule to be held on 20-07-2011. Accordingly, the writ petitions are dismissed. There shall be no order as to costs. ______________ V.ESWARAIAH, J __________________ B.CHANDRA KUMAR, J Date: 19-07-2011 Prv/tvk