THE HON’BLE SRI JUSTICE GODA RAGHURAM AND THE HON’BLE SRI JUSTICE P. DURGA PRASAD W.A.Nos. 1404; 1570; 1697 and 1747 of 2004 Dated: 23-06-2011 W.A.No. 1404 of 2004 Between: The Govt. of Andhra Pradesh, Department of Revenue (Endowments), Rep by its Secretary, Hyderabad and others. ….Appellants And Kavuru Nageswara Rao and another. ….Respondents. W.A.No. 1570 of 2004 Between: The Govt. of Andhra Pradesh, Department of Revenue (Endowments), Rep by its Secretary, Hyderabad and another. ….Appellant And Ch. Ramaiah and another ….Respondents. W.A.No. 1697 of 2004 Between: The Assistant Commissioner of Endowments, Rajahmundry, East Godavari District. ….Appellant And Mattaathi Dharma Rao and another. ….Respondents. W.A.No. 1747 of 2004 Between: The Commissioner of Endowments, Government of A.P., Tilak Road, Abids, Hyderabad and another. ….Appellant And Bolineny Sri Hari and others. ….Respondents. THE HON’BLE SRI JUSTICE GODA RAGHURAM AND THE HON’BLE SRI JUSTICE P. DURGA PRASAD W.A.Nos. 1404; 1570; 1697 and 1747 of 2004 Dated: 23-06-2011 Oral common order: (Per GR, J): W.A.Nos. 1404; 1570; 1697 and 1747 of 2004 are directed against the common judgment dated 12-08-2003 insofar as they pertain to W.P.Nos. 15637; 15885; 12649 and 15676 of 2003 respectively. The appellants are the respective respondents including the concerned Devasthanams, in the respective writ petitions. The respondents-writ petitioners claiming to be lessees of agricultural lands belonging to different Hindu religious institutions and endowments, filed writ petitions aggrieved by the cancellation of leases held by them and the proposal to auction the leasehold rights of lands, earlier leased to them. The grievance in these appeals is on the finding in the judgments under appeal that the expression ‘small and marginal farmer’ occurring in the second proviso to Section 82 of the Andhra Pradesh Charitable and Hindu Religious Institutions & Endowments Act, 1987 (for short ‘the Act’), cannot be understood as meaning ‘landless poor person’ in the Explanation to Section 82 (2) of the Act and the consequent direction granting liberty to the writ petitioners to make an application to the Assistant Commissioner of Endowments concerned with all relevant material to support their plea that they are either ‘landless poor persons’ or ‘small or marginal farmers,’ within the time specified; and further directing that on such applications being made, the concerned Assistant Commissioner of Endowments, shall make necessary inquiry after affording a reasonable opportunity to the cultivating tenant and the executive authority of the concerned institution/endowment and pass appropriate orders within the time stipulated. The learned single Judge further directed that wherever cultivating tenants are determined to be ‘landless poor persons, small or marginal farmers’, they shall be continued as tenants provided they agree to pay at least 2/3rd of the market rent for similarly placed lands as lease amount; and clarified that whenever the institution/endowment proposes to sell the said land following the procedure prescribed under the Act, an option shall be given to the cultivating tenant, who is determined to be ‘landless poor, small or marginal farmer’ to purchase the land, in accordance with the procedure prescribed under Rule 6 of the Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Lease of Agricultural Lands Rules, 2003, (for short ‘the Rules’), issued in G.O.Ms.No. 379, Revenue (Endo.I) dated 11-03-2003. Heard the learned Government Pleader for Endowments and Sri V.T.M. Prasad, learned counsel for the appellants. No representation on behalf of the non- official respondents. The Act was brought about to consolidate and amend the law relating to the administration and governance of Charitable and Hindu Religious Institutions and Endowments in the State. The Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act, 1966 and the Tirumala Tirupathi Devasthanams Act, 1979, are repealed by the Act. Section 82 of the Act deals with ‘lease of agricultural lands’ belonging to Hindu Religious Institutions and Endowments and ordains that any lease of agricultural land belonging to or given or endowed for the purpose of any institution or endowment subsisting on the date of commencement of this Act shall, notwithstanding anything in any other law for the time being in force, held by a person who is not a landless poor person, stands cancelled (emphasis is supplied). The constitutional validity of Section 82 of the Act was challenged and the provision was struck down by a learned single Judge of this Court in P. Ramaiah v. State of A.P.[1]. This judgment was affirmed in an intra Court appeal and in the appeal judgment both Sub-section (1) and (2) of Section 82 of the Act were declared void being violative of Article 14 of the Constitution. In a further appeal, the Supreme Court in State of Andhra Pradesh v. Nallamilli Rami Reddy[2] reversed the view of this Court and upheld the constitutional validity of Section 82 of the Act. It requires to be noted that Sub-section (2) of Section 82 of the Act was originally enacted in respect of ‘lease of agricultural lands’ held by landless poor persons (other than those lands situated in Municipalities and Municipal Corporations) for not less than six years continuously and enjoined that such person shall have the right to purchase such lands for a consideration of seventy five per cent of the prevailing market value of similarly situated lands at the time of purchase and such consideration shall be paid in four equal instilments in the manner prescribed; and such sale may be effected otherwise than by tender-cum-public auction. After the judgment in Nallamilli Rami Reddy (2 supra), by Act 27 of 2002 the State Legislature amended the Act and introduced a proviso and an Explanation to Sub-section (2) of Section 82 of the Act. A new Sub- section (5) to Section 82 of the Act was also introduced by the 2002 Amendment Act which is of no relevance to the present case. The Explanation to Sub-section (2) of Section 82 of the Act is relevant and reads: Explanation:-- For the purpose of this sub-section ‘landless poor person’ means a person whose total extent of land held by him either as owner or as cultivating tenant or as both does not exceed 1.011715 hectares (two and half acres) of wet land or 2.023430 hectares (five acres) of dry land and whose monthly income other than from such lands does not exceed thousand rupees per mensum or twelve thousand rupees per annum. However, those of the tenants who own residential property exceeding two hundred square yards in Urban Area shall not be considered as landless poor for the purpose of purchase of endowments property. The Rules were made applicable to all leases of agricultural lands belonging to Charitable and Hindu Religious Institutions and Endowments, governed by the provisions of the Act. In exercise of the powers under the Rules and as per the amendment to Section 82 of the Act, the institutions or endowments are concerned are enjoined to and issued notices under Rule 5 (1) of the Rules intimating the lessees including the respondents herein (writ petitioners) that the leases stood cancelled by operation of law with immediate effect; that they should handover possession of the lands within the time stipulated failing which they would be evicted by invoking the provisions of Sections 84 to 86 of the Act treating them as encroachers. These orders were assailed in the writ petitions. In the writ petitions several contentions were urged and among the contentions specifically recorded in the judgments under appeal (and relevant for the purposes of these appeals), is the contention that for the purposes of determining ‘landless poor person’ as defined in the Explanation to Section 82 (2) of the Act, the leased lands belonging to the institution or endowment should not be taken into consideration. This contention was clearly rejected and it was held that there was no ambiguity in the provision and the definition ‘landless poor person’ qua the Explanation to Section 82 (2) of the Act clearly defines ‘landless poor person’ as a person whose total extent of land either as owner or cultivating tenant or both, does not exceed two and half acres of wet and five acres of dry land. Though not specifically pleaded a contention appears to have been urged on behalf of the writ petitioners in the oral argument before the learned single Judge that since the proviso to Sub-section (2) of Section 82 of the Act enjoins 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, not only ‘landless poor person’ but ‘small and marginal farmers’ as well are entitled to continue as lessees and the earlier leases in their favour do not stand cancelled due to operation of Sub-section (1) of Section 82 of the Act. The learned single Judge responding to this aspect of the writ petitioners’ argument/contention, referred to the ‘statement of objects and reasons’ accompanying the Bill that subsequently came to be enacted as A.P. Act 27 of 2002 by which the proviso was added to Sub-section (2) of Section 82 of the Act and thereby inferred the legislative intent that not only ‘landless poor person’ but ‘small and marginal farmers’ as well are excluded from the purview of Sub-section (1) of Section 82 of the Act, whereby leases of agricultural lands subsisting on the date of commencement of the Act held by a person, stand cancelled. In the judgments under appeal it was held that exclusion from the purview of cancellation of leases provided in Section 82 (1) of the Act is applicable to ‘landless poor person’ and ‘small and marginal farmers’ as well and accordingly issued the directions adverted to herein before. In these appeals, it is contended on behalf of the appellants that the conclusion by the learned single Judge, that ‘small and marginal farmers’ are a distinct entity apart from ‘landless poor person’ and that all these three categories viz., landless poor person and small and marginal farmers are entitled to exclusion from the operation of the provisions of Sub-section (1) of Section 82, is erroneous and proceeds on a misconstruction of the interactive provisions of Section 82 (1) and (2) of the Act, considered together with the proviso and the Explanation, to Sub-section (2) of Section 82 of the Act. We see considerable force in the contention presented on behalf of the appellants. To the extent relevant and material for the purposes of these appeals, Section 82 of the Act at the relevant time read: 82. Lease of Agricultural Lands:-- (1) Any lease of agricultural land belonging to or given or endowed for the purpose of any institution or endowment subsisting on the date of commencement of this Act shall, notwithstanding anything in any other law for the time being in force, held by a person who is not a landless poor person stands cancelled. (2) In respect of leases of agricultural lands (other than those lands situated in Municipalities and Municipal Corporation) 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 installments 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. Explanation:-- For the purpose of this sub-section ‘landless poor person’ means a person whose total extent of land held by him either as owner or as cultivating tenant or as both does not exceed 1.011715 hectares (two and half acres) of wet land or 2.023430 hectares (five acres) of dry land and whose monthly income other than from such lands does not exceed thousand rupees per mensum or twelve thousand rupees per annum. However, those of the tenants who own residential property exceeding two hundred square yards in Urban Area shall not be considered as landless poor for the purpose of purchase of endowments property. Explanation II:-- For the purpose of this sub-section, small and marginal farmer means a person who being a lessee is holding lands in excess of acres 0.25 cents of wet land or acres 0.50 cents of dry land over and above the ceiling limits of acres 2.50 wet or acres 5.00 dry land respectively they may be allowed to continue in lease subject to payment of 2/3rd of prevailing market rent and excess land held if any more than the above limits shall be put in public auction. The Explanation following Sub-section (2) of Section 82 defined the expression ‘landless poor person’ to mean a person whose total extent of land held by him either as owner or cultivating tenant or both does not exceed two and half acres of wet land or five acres of dry land and whose monthly income other than from such lands does not exceed thousand rupees per mensum or twelve thousand rupees per annum; and enjoined further that those of the tenants who own residential property exceeding two hundred square yards in Urban Area shall not be considered as landless poor for the purposes of purchase of endowment property. On a true and grammatical construction of the legislative phraseology of the Explanation, it is clear that the expression ‘landless poor person’ has been specifically and unambiguously defined; and this definition delineates the expression ‘landless poor person’ whenever found in Sub-section (2) of Section 82 of the Act. The Explanation extends to a ‘landless poor person’ the benefits conferred under Section 82 (2) of the Act. It requires to be noticed that the proviso and Explanation to Sub-section (2) of Section 82 of the Act were simultaneous legislative interventions brought in by Act 27 of 2002, with effect from 26-08-2002. The phraseology of the proviso is also of critical importance in comprehending the trajectory of this provision. It is therefore extracted again and reads: 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. The above mentioned proviso uses a different expression ‘small and marginal farmer’; distinct from the earlier expression ‘landless poor person.’ The legislative intent though clear, the drafting is ambiguous and inelegant. The expression ‘small and marginal farmer’ occurring in the proviso is prefaced by the expression ‘such’. The expression ‘small and marginal farmer’ does not appear earlier, either in point of time or occurrence. The expression ‘small and marginal farmer’ is a new introduction into the substantive legislation by Act 27 of 2002. But since the expression ‘such’ prefaces ‘small and marginal farmer’ in the proviso to Section 82 (2) of the Act, it must be inferred that this expression is intended to refer to ‘landless poor person’; an expression defined in the Explanation occurring after Sub-section (2) of Section 82 of the Act, a legislative prescription made contemporaneously with the aforementioned proviso under the same legislative dispensation viz., Act 27 of 2002. If the ambiguous and inelegant drafting of proviso to Section 82 (2) of the Act is not so reconciled the provision becomes difficult to execute or comprehend since the expression ‘small and marginal farmer’ was not defined anywhere in the Act, till 03-01-2008. By Act No. 33 of 2007 and with effect from 03-01-2008 Explanation-II was added after Explanation-I to Sub-section (2) of Section 82 of the Act. This provision reads: Explanation II:-- For the purpose of this sub-section, small and marginal farmer means a person who being a lessee is holding lands in excess of acres 0.25 cents of wet land or acres 0.50 cents of dry land over and above the ceiling limits of acres 2.50 wet or acres 5.00 dry land respectively they may be allowed to continue in lease subject to payment of 2/3rd of prevailing market rent and excess land held if any more than the above limits shall be put in public auction. It is therefore only after 03-01-2008 with the enforcement of Explanation-II (added by Act No. 33 of 2007) that the expression ‘small and marginal farmer’ has comprehensively been defined. There are other reasons to discountenance the interpretation adopted by the learned single Judge. Sub-section (1) of Section 82 of the Act legislatively enjoins ‘cancellation’ of all leases of agricultural lands belonging to or given or endowed for the purpose of any institution or endowment subsisting on the date of commencement of this Act, except leases held by a person who is not a ‘landless poor person’. Therefore, on a true and fair construction of the provisions of Section 82 (1) of the Act even considered in conjunction with or in the context of the proviso and Explanations I and II to Sub-section (2) of Section 82 of the Act, leases held by ‘small and marginal framers’ are not excluded from the legislative mandate of ‘cancellation’ of leases. Only leases held by ‘landless poor persons’ are so excluded. Sub- section (2) of Section 82 of the Act enjoins that where leases of agricultural lands held by ‘landless poor person’ for not less than six yeas continuously, such person (meaning ‘landless poor person’) is entitled to purchase such lands for a consideration of seventy five per cent of the prevailing market value of similarly situated lands at the time of purchase and with a further benefit enabling payment of such consideration in installments, as prescribed. The proviso following Sub-section (2) also engrafts a right to continue as tenant when a person entitled to the benefits of Sub-section (2) of Section 82 of the Act is unable to purchase the lands, provided he agrees to pay at least two thirds of the market rent for similarly placed lands as lease amount. The definition of ‘small and marginal farmer’ spelt out in Explanation-II which was introduced by Act No. 33 of 2007 (subsequent to the judgments under appeal) defines the expression ‘small and marginal farmer’ for the purposes only of Sub- section (2) of Section 82 of the Act, which only deals with the further benefit conferred to cultivating tenants to continue as tenants on account of the inability to purchase lands under the beneficent scheme under the said Sub- section. Be that as it may. Explanation-II was introduced as already stated by Act No.33 of 2007. Neither expressly nor by compelling implication was this provision intended to have retrospective operation. Therefore and in the context of legislative dynamics noticed, the expression ‘small and marginal farmer’ occurring in proviso to Sub- section (2) of Section 82 of the Act prior to 03-01-2008 (the date of operation of Act No. 33 of 2007) must necessarily be construed as signifying ‘landless poor person’ in particular having regard to the prefix ‘such’ proceeding the expression ‘small and marginal farmer’; and since the expression ‘small and marginal farmer’ has not been employed or defined anywhere else in Section 82 (prior to Act 33 of 2007). Only by Explanation-II engrafted by Act No. 33 of 2007, the expression ‘small and marginal farmer’ was defined. Thus, only thereafter can this expression be construed as defined in Explanation-II. On the aforesaid analysis, the conclusion in the judgment under appeal, insofar as it pertains to the writ petitions concerned, cannot be sustained to the extent that the judgment records and concludes that ‘small and marginal farmer’ cannot be understood as meaning ‘landless poor person’. We are, on the aforesaid analyses inclined and persuaded to hold that prior to the introduction of Explanation-II to Sub-section (2) of Section 82 of the Act (by Act No. 33 of 2007 with effect from 03-01-2008) the expression ‘small and marginal farmer’ means the same as the expression ‘landless poor person’. With the above observations and interpretation of the provisions of Section 82 (2) of the Act, the writ appeals are allowed in part and to the extent indicated above. There shall however be no order as to costs. __________________________ JUSTICE GODA RAGHURAM __________________________ JUSTICE P. DURGA PRASAD Dated: 23-06-2011 Pvks/* [1] 1989 (1) APLJ 138 [2] AIR 2001 SC 3616