Allowed

Smt.M.Jaya Satyavathi Devi v. The State of Andhra Pradesh

Andhra Pradesh HC2 Nov 2022WP/12275/2018

Case brief

AI extract

What is this about?

A proposed cancellation of sanctioned ownership rights over temple inam land was challenged. The court held the show-cause memo predetermined and without jurisdiction, found the amended permanent-occupancy provision inapplicable to the land, and allowed the writ petition, setting aside the memo.

What did the court decide?

Memo dated 12.03.2018 proposing cancellation of G.O.Ms.No.275 dated 29.03.1993 set aside as unsustainable.

Smt.M.Jaya Satyavathi Devi Vs The State of Andhra… — Property and Title | Andhra Pradesh HC (2022)

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W.P. No.12275 of 2018 BKM, J

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HON’BLE SRI JUSTICE B. KRISHNA MOHAN WRIT PETITION No.12275 OF 2018

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ORDER:

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Heard the learned counsel for the petitioner; the Government Pleader for Endowments for the respondent Nos.1 and 2; and the standing counsel for the respondent No.3.

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This writ petition is filed questioning the Memo

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No.17032/ENDTS.II (1)/2015 dated 12.03.2018 of the respondent No.1 issuing show cause notice for cancellation of the order in G.O.Ms.No.275 Revenue II (Department) dated 29.03.1993 and direction to submit an explanation/representation of the petitioner within a period of 15 days from the date of receipt of the said proceedings.

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The counsel for the petitioner submits that the land in Survey No.275/F in an extent of Ac.7-04 cents of Adavivaram Village, Visakhapatnam Rural Mandal, Visakhapatnam District was once part of the Vizianagaram Samstan (Estate) and had been notified under the provisions of the Andhra Pradesh (Andhra Area) Inams (Abolition and

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Conversion into Ryotwari) Act, 1956 and the Inamdar in relation thereto was the respondent No.3-S.V.L.N.S.V.Devasthanam in whose favour a ryotwari patta has been granted by the then Mandal Revenue Officer, Visakhapatnam, dated 14.08.1996. The said order dated 14.08.1996 reads as under:

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“On Smt.Maridu Jaya Satyavathi filed a petition for grant of ryotwari patta in S.No.275/F for an extent of Ac.7-04 before the Mandal Revneue Officer, Visakhapatnam (Rural) stating that her late husband was granted patta by the Estate Collector for Vizianagaram vide patta No.243. The then Mandal Revenue Officer in his 3(3) Order AIAC 8/77 dated 25.5.1987 held over this extent. She has claimed for a ryotwari under Section 7A of the I.A.Act for the above extent.”

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In the statutory enquiry under Section 3(3) of the Inams Abolition Act, the Mandal Revenue Officer, Visakhapatnam recognised the right of the petitioner over the land in question inasmuch as the petitioner’s husband Venkanna Dora had been lawfully inducted with permanent occupancy rights vide patta No.243, dated 10.07.1942 by the then Collector, Vizianagaram District. The same was reflected in the order dated 10.07.1989 passed under Section 3(3) of the above said statute. It had been taken note of therein that the Collector of the

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Vizianagaram District had issued Patta No.243 in D.Dis.No.1895 dated 10.07.1942. Section 8(1) of the Andhra Pradesh (Andhra Area) Inams (Abolition and Conversion into Ryotwari) Act, 1956 reads as under:

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“8. Right of Permanent Occupancy to tenants in imams lands held by Institutions in Inam Villages:

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(1) In the case of an inam land held by an institution in an inam village the tenant who is declared to be in occupation of the inam land on the 7^th January, 1948, under Section 5, or if there is no such tenant, the tenant in occupation of the land on the date of commencement of this Act, shall have a right of permanent occupancy in that land and the said right shall be heritable and shall be transferable by sale, gift or otherwise.”

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This statutory provision was amended by Act No.16 of 2013 (published in the State Gazette on 26.09.2013) by inserting the following proviso:

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“Provided that in case of inam land held by a charitable or religious institution or endowment, no tenant shall have a right of permanent occupancy of the land.”

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He further contended that after issuance of ryotwari patta in favour

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of the respondent No.3 on 14.08.1996, the original name stood

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extinguished. The Melvaram rights (ownership rights) of the land were transferred by the Government in favour of the petitioner by issuing G.O.Ms.No.275 dated 29.03.1993, under Section 75 of the Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act, 1987. By virtue of such a grant, the petitioner became the absolute owner of the property and the respondent No.3 no longer has any right therein, having collected the amount as fixed, towards the value of the land on 09.08.1984. Further the respondent No.3 also issued a no objection certificate dated 15.06.1995 in the matter of conveying the ownership rights of the land in question to the petitioner. Then the Government issued a Memo No.3587/E.IV(2)/2003-4, dated 05.02.2004, rejecting the requests dated 08.12.2002 and 29.09.2003 of the Commissioner of Endowments seeking withdrawl of G.O.Ms.No.275, dated 29.03.1993. In the said memo dated 05.02.2004, the Government observed that withdrawal of G.O.Ms.No.275 dated 29.03.1993 would lead to unsettling the things already settled.

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The petitioner earlier filed W.P.No.15513 of 2010 against (1)

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S.V.L.N.S.V.Devastanam and (2) Sub-Registrar, Gopalapatnam, seeking the relief as under:

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“… The High Court will be pleased to issue an appropriate order, direction or a writ more particularly one in the nature of Writ of Mandamus declaring that the petitioner is having lawful possession with absolute rights and title to the land admeasuring Acs.7.04 cents in Survey No.275/F of Advivaram Village of Visakhapatnam Rural Mandal, Visakhapatnam District fully described in the schedule and clearly delineated in the plan annexed and that the 1^st respondent or anybody acting on their behalf have no ownership of the petitioner and her successors in interest including the rights of alienations and registration of any documents in respect of any part of the said land through registered documents or constructions on the said land and that the action of the respondents infringes our right to property guaranteed under the constitution apart from being arbitrary, violative of Article 14 and infringes rights under Article 300A of the Constitution of India.”

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The said writ petition was disposed of on 06.10.2010 observing as follows:

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“It is evident form the above noticed rival contentions that the absolute rights of ownership claimed by the petitioner are very much in dispute. Such disputed question relating to title cannot be enquired into and adjudicated upon by this court in a writ petition under Article 226 of the Constitution of India. As the title disputes in respect of any immovable property, cannot be resolved in the summary proceedings under Article 226 of the constitution of India. I am not inclined to express any opinion on the rival claims made by the writ petitioner and the 1^st respondent and therefore, the declaration as sought by the petitioner with regard to her title/absolute rights of ownership to the land in question cannot be granted.”

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Further, in the said writ petition it was directed as follows:

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“(1) The 1^st respondent shall not interfere with the possession and enjoyment of the petitioner in respect of the land in question in any manner whatsoever without following the due process of law.

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(2) The 2^nd respondent shall receive the documents relating to the land in question as and when presented by the petitioner/her successorsin-title and register the same in accordance with law.”

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Against which the Devastanam preferred W.A.No.776 of 2010 and

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the same was disposed of on 16.10.2014 holding as under:

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“Now the situation has changed as the right of permanent occupancy is de-recognized by law in relating to inam lands of religious and charitable institutions, this amendment has been given retrospective effect. So the learned counsel for the appellant says that taking notice of the subsequent development this Court should pass appropriate orders de-recognizing the right of permanent occupancy of the 1^st respondent. We are informed by the learned counsel for the 1^st respondent that registration has taken place in terms of the order of the learned Single Judge and the transferee is in possession and occupation.

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we go by the right, as determined by the learned single Judge, this right of occupancy is not an absolute one and rather, it is vulnerable to eviction in certain situations as mentioned in Section 8(2) of the Act. Therefore, it is always open for the appellant to take recourse to law as may be advised and for this purpose, it would be open for the appellant to enforce the amended provisions of law, if such action is taken. It will also be open for the appellant to take steps for cancellation of the registered document, which is said to have been effected pursuant to the decision of the learned Single Judge.

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We accordingly clarify the order and judgment of the learned Single Judge. The writ petitioner’s permanent occupancy right will not stand in the way, if fresh action is lodged before the appropriate forum. For the ends of justice and in order to avoid multiplicity of judicial proceedings, we allow the interim order of status quo to be continued for a period of one month from the date of receipt of a copy of this order. All question including the question of applicability of the amendment are kept open.”

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Thus, the Hon’ble Division Bench while disposing of the W.A.No.776 of 2010 left open all questions including the question of applicability of the amendment to Section 8 of the Inams Abolition Act. But the transfer of ownership rights in favour of the petitioner was made by virtue of G.O.Ms.No.275 dated 29.03.1993 conferred under Section 75 of the A.P.Charitable and Hindu Religious Institutions and Endowments Act,

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1987 and in pursuance of the same the petitioner became the absolute owner of the land in question and the respondent No.3 lost its title over the said land. Hence, there is no need to fall back of Section 8 of the Inams Abolition Act, which relates to the permanent occupancy rights. By virtue of the grant made under Section 75 of the A.P.Charitable and Hindu Religious Institutions and Endowments Act, 1987 in favour of the petitioner the subject land became the private land. After such transfer of rights, neither the petitioner nor the respondent No.3-Devasthanam can invoke the provisions of the Inams Abolition Act. But curiously, the respondents now want to take advantage of the amendment to the said provision by Act No.16of 2013, which states as follows:

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“Provided that in case of inam land held by a charitable institution or endowment, no tenant shall have a right of permanent occupancy of the land.”

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By virtue of the proceedings dated 14.08.1996 granting ryotwari patta in favour of the Devastanam, the tenure got converted from Inam to Rotwari and thus the land ceased to be an Inam land and thereby the provisions of the Inams Abolition Act will not continue to apply to the land in question which is described as Ryowari. The larger bench (Five Hon’ble

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Judges) of the erstwhile High Court in Nellore Bujjamma vs. The Tahsildar, Rapur , held that the Inam tenure gets extinguished and gets converted to ryotwari tenure, upon the grant of ryotwari patta. Section 3 of the Government Grants Act reads as under:

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“3.Government grants to take effect according to their tenor – All provisions, restrictions, conditions and limitations over contained in any such grant or transfer as aforesaid shall be valid and the effect according to their tenor, any rule of law, statute or eneactment of the legislature to the contrary notwithstanding.”

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Hence, the grant made in favour of the petitioner during the year 1993 is protected by Section 3 of the Government Grants Act, 1895 and the provisions of the Inams Abolition Act and proviso to Section 8 thereof will not take away the benefit conferred on the petitioner under G.O.Ms.No.275, dated 29.03.1993.

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While so, the respondent suddenly issued G.O.Ms.No.224, Revenue (Endts.III) Department, dated 25.06.2015 cancelling the earlier G.O.Ms.No.275, dated 29.03.1993 which was issued in favour of the petitioner transferring the ownership rights of the land in question to him. No notice was issued and no opportunity was afforded to the

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petitioner before issuing the said G.O. Ms.No.224 dated 25.06.2015. Aggrieved by the same, he filed a writ petition No.19502 of 2015 before the erstwhile High Court of Andhra Pradesh challenging the G.O.Ms.No.224, Revenue (Endts.III) Department, dated 25.06.2015 and the same was allowed on 01.11.2016. Instead of implementing the said orders of the court, the respondent No.1 now issued the impugned Memo No.17032/Endts.II(1), dated 12.03.2018 which is under challenge in this writ petition. Though it is in the form of a notice, the content of the same discloses that the respondent No.1 pre determined the issue and decided to cancel the earlier G.O. dated 29.03.1993 which was given in favour of the petitioner.

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On the other hand, the respondent Nos.1 and 3 filed counter affidavits and basing upon the same the learned government pleader for endowments submits that the respondent No.3 is a public religious Institution published under Section 6(a)(ii) of the Act 30 of 1987. The temple and its properties were already registered under Section 43 of the Act 30 of 1987. The management and administration of the temple and its properties are governed by the provisions of the AP Charitable and Hindu Religious and Endowments Act, 1987 and the Rules made

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thereunder. The respondent No.3 is the owner of the land in an extent of Ac.5279.57 cents covered by the survey No.275 of Adivivaram Village including the subject matter of the land.

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It is true that the petitioner filed W.P.No.15513 of 2010 against the respondent No.3 and the Sub-Registrar, Gopalapatnam for a direction to the sub-registrar, Gopalapatnam to receive the documents presented by her and the same was disposed of with a direction as follows:

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“1. The 1^st respondent shall not interfere with the possession and enjoyment of the petitioner in respect of the land in question in any manner whatsoever without following due process of law.

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The 2^nd respondent shall receive the documents relating to the land in question as and when presented by the petitioner/her successors in title and register the same in accordance with law.”

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Against which the respondent-Devastanam filed W.A.No.776 of

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2010 and the same was disposed of by the erstwhile High Court of Andhra Pradesh on 16.10.2014 with the following direction:

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“Now the situation has changed as the right of permanent occupancy is de recognized by law in relation to Inam lands of religious and charitable institutions. This amendment has been given retrospective effect. So the learned counsel for the appellant says that taking note of the subsequent development this Court should pass appropriate order derecognizing the right of permanent occupancy of the 1^st respondent. We are informed by the learned counsel for the 1^st respondent that registration has taken place in terms of the order of the learned single judge and the transferee is in possession and occupation.

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In our considered view, the appeal is a continuation of the writ proceedings so the Court will grant relief as prayed for in the writ petition by the petitioner and not by the respondents unless a counter claim is filed in the writ petition separately. This is not the case here. We are of the view that the impugned judgment is quite justified on the basis of the provisions of law then applicable and prevailing. However, even if we go by the right, as determined by the learned single judge, this right of occupancy is not an absolute one and rather, it is vulnerable to eviction in certain situations as mentioned in Section 8(2) of the Act. Therefore, it is always open for the appellant to take recourse to law as may be advised and for this purpose, it would be open for the appellant to enforce the amended provisions of law, if such action is taken. It will also be open for the

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appellant to take steps for cancellation of the registered document, which is said to have been effected pursuant to the decision of the learned single Judge.

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We accordingly clarify the order and judgment of the learned single Judge. The writ petitioner’s permanent occupancy right will not stand in the way, if fresh action is lodged before the appropriate forum. For the ends of justice and in order to avoid multiplicity of judicial proceedings, we allow the interim order of status quo to be continued for a period of one month from the date of receipt of a copy of this order. All questions including the question of applicability of the amendment are kept open.”

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18. The petitioner contended that her husband Sri Venkanna Dora

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was granted a patta No.243, by the Estate Collector on behalf of Rajah of Vizianagaram dated 10.07.1942. The then Estate Collector was competent enough to grant patta in respect of an endowed property. Even if the land is under the management of the Estate Collector, in pursuance of the Court of Wards Act, the Estate Collector is competent enough to grant patta in respect of an endowed land held by the Devastanam. The original patta dated 10.07.1942 said to have been granted by the then Estate Collector was not produced before any

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statutory authority so as to prove the title over the schedule land. Hence, it is not a valid piece of document at this belated time as it was not shown to any competent authority at any point of time so as to consider the same. But the petitioner made an application in support of the said patta to the respondent Devastanam for conveyance of Melivaram rights in respect of the scheduled land. The matter was referred by the then Executive Officer without following the provisions of Sections 3 and 4 of Andhra Pradesh (Andhra Area) Inams Abolition Act, 1956 to the Commissioner, Endowments Department, Hyderabad for consideration vide his office letter in C1/6763/89, dated 25.03.1991. In turn, on the recommendations of the Commissioner, Endowments Department, Government has issued G.O.Ms.No.275 Revenue (EndtsIV) Dept., dated 29.03.1993 with a direction to take necessary action for conveyance of Melivaram rights in respect of the lands in question in favour of M.Jaya Satyavathi Devi on receipt of the 1/3^rd sale value or basic register value whichever is higher.

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In view of the above said orders of the Government and the Commissioner of Endowments Department, Hyderabad, the petitioner paid an amount ofRs.17,03,681/- to the respondent No.3-Devastanam

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which has issued no objection certificate in favour of the petitioner on 15.06.1985. But the M.R.O., Visakhapatnam (Rural) conducted due enquiry under the Inams Abolition Act, granted ryotwari pattas in favour of the respondent No.3 Devastanam in A.I.A.C.No.1/96-A dated 18.05.1996. While doing so, the claims made by several individuals on par with similar claims of the writ petitioner was specifically disallowed in respect of the scheduled land in S.No.275 of Adavivaram in A.I.A.C.No.2/96 a, dated 14.08.1996 of the M.R.O. (Rural) Visakhapatnam. These orders have become final and were confirmed by the erstwhile High Court in W.P.No.32800 of 1997 dated 28.09.2000 consequent upon the orders of the Government in G.O.Ms.No.406, dated 20.06.2000. Hence, the deity of the respondent No.3-temple is the absolute owner of the entire land in S.No.275 of Adavivaram Village (Ac.5,279.27 cents) including the subject matter of the land. Both the said G.O.Ms.No.275, dated 29.03.1993 and no objection certificate dated 15.06.1995 are contrary to the provisions of the Sections 3 and 4 of the Andhra Pradesh (Andhra Area) Inams Abolition Act, 1956. Hence, they are void. It does not convey any legal right to the petitioner. The institution of the respondent No.3 alone is

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entitled for the ryotwari patta under Section 7(1) read with Section 4(2)(a) of Inams Abolition Act 37 of 1956 for the entire land and the rights of the tenants are governed by sub-section (1) of Section 8 subject to the limitations of sub-section 2 of Section 8 of the Act 37/1956.

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Therefore, the question of conveying the land of the Devastanam

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by collecting only 1/3^rd value of the land is against to the provisions of the Act 37 of 1956 as well as contrary to the provisions of the A.P.Endowments Act (Act 30 of 1987). Further, only NOC was given to the petitioner after receiving the deposited amount of Rs.17,03,681/as per the basic register value maintained by the Sub-Registrar during 1994 without giving any permission for conversion of the land for its developments other than agriculture. No sale deed was executed by the Devastanam in favour of the writ petitioner for transferring its ownership rights over the subject matter of the land. Melivram is the right of share of the produce due to the landlord or by estate and in the instant case, the Devastanam even by conveyance of 1/3^rd Melivaram right the individual cannot get full ownership right over the land. Even such individuals who purchased 2/3 kudivaram right of the permanent occupancy holder (tenant) no ownership right over the land devolves on

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the said individuals right over the land. Even such individuals who purchased 2/3^rd Kudivaram right of the permanent occupancy holder (tenant) no ownership right over the land devolves on the said individuals. As per the provisions of Section 4 of the Andhra Pradesh (Andhra Area) (Inams Abolition Act no individual would be entitled to melivram or Kudivaram rights when the institution is the Inamdar only

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the institution will be entitled for ryotwari patta for the entire extent. The section 4(2) of the Andhra Pradesh (Andhra Area) Inams Abolition and Conversion into Ryotwari patta Act 1956 reads as follows;

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“Sec.4(2) “In the case of Inam land in an Inam village.

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If such a land is held by any institution on the date of commencement of this Act, such institution shall be entitled to a ryotwari patta in respect of that land.

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Sub – section (2) of that section within the period specified therein, the Inamdar shall be entitled to a Ryotwari patta in respect of that land.”

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21. As such, it is clear that as per the provisions of the Inams

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Abolition Act, when the institution is the Inamdar only the institution will be entitled for ryotwari patta. The question of Kudivaram and Melivaram rights in favour of anybody does not

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arise. Hence G.O.Ms.No.275 dated 29.03.1993 was issued without following the above said provisions of law. Hence, the respondent No.3 requested the respondent No.1 to cancel the said GO and the same was cancelled by the Government. The amendment Act 16 of 2013 to the Inams Abolition Act, 1956 came into force with retrospective effect. As per the amendment made to section 8 of the Principal Act to sub-section (1) the following proviso shall be added namely.

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“Provided that in case of Inam land held by a charitable or religious institution or endowment no tenant shall have a right of permanent occupancy of the land.”

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As per the above said provision made in the amended act, the

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tenants or their predecessors have no right on the lands covered by Inam villages held by an institution. If any orders passed by the competent authorities earlier are null and void.

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In view of the NOC issued by the respondent No.3 on payment of 1/3^rd value of amount i.e., Rs.17,03,681/-, the petitioner

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converted the land into non agricultural purposes. It is true that the respondent NO.1 issued G.O.Ms.No.224 Revenue (Endts.II) dated 25.06.2015 cancelling the earlier GO issued by the Government. Aggrieved by the same, the petitioner filed W.P.No.19502 of 2015 and the same was allowed vide order dated 01.11.2016 with the following direction:

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“Since the impugned GO came to be issued violating the principles of natural justice and as the petitioner would be put to great hardship by virtue of the subsequent GO the writ petition is allowed setting aside G.O.Ms.No.224 Revenue (Endts.II) Department, dated 25.06.2015. However, the respondent authorities are always at liberty to initiate fresh proceedings in accordance with law.”

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For implementation of the said orders the respondent No.1 issued the impugned Memo dated 12.03.2018 to the petitioner for submission of her explanation within 17 days. Questioning the same, this writ petition is filed which is not tenable and liable to be dismissed.

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The learned counsel for the petitioner relied upon the following decisions:

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Nellore Bujjanna and another vs. The Tahsildar, Rapur

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Taluk, and another reported in 1979 SCC Online AP 40: (1980) 1 ALT 107 (FB) in W.P.No.1269 of 1976 dated 11.08.1979 wherein it was held as follows:

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“13. The main question that arises for reconsideration is, whether the Inam tenure of Inam lands stood abolished and got converted into ryotwari tenure on the date of coming into force of the Inams Abolition Act or on the date of a grant of a ryotwari patta?

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Before dealing with the rival contentions of the learned counsel, it is necessary to notice the distinction between an inam tenure and a ryot-wary tenure. In Maclean's Manual of Madras Administration the meaning of inam is given as follows

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“An ‘inam’ means ordinarily a gift by a superior to an inferior. In the South of India it is applied to the grant by the State.

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In Sundararaja Iyengar's Land Tenures in the Madras Presidency, inam is explained as follows

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“The existence of beneficial grants, known originally by the Sanskrit name manyams, and latterly by the Arabic term, inams, after the Mohammedan conquest can be traced to a very remote antiquity in India. It was the custom of the Hindu Government to grant assignments of lands, revenue free or at low quit-rents, for the payment of troops and Civil Officers, for the support of temples and their servants, and

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charitable institutions, for the maintenance of holy and learned men, or rewards for public service.”

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This practice was continued by the Mohammadan Rulers and was also adopted by the British Government for some time, but it was later discontinued. Subsequently in 1859, rules were framed for enfranchising the inam grants by surrendering the reversionary interests of the Government for an equivalent quit-rent, and placing enfrachised inams on the footing of private property and an Inam Commissioner was appointed who was authorised to sell the reversionary rights of the Government and to issue a title deed to the inamdar in proof of such enfranchisement. Thus, inams may be classified as;

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(1) Unenfranchised inams;

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(2) Enfranchised inams but liable to jody or quit rent, as

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the case may be;

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(3) Enfranchised inams, the rent being commuted or redeemed.”

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Jagannath Temple Managing Committee vs. Siddha Math

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and others reported in 1979 SCC Online AP 40: (1980) 1 ALT 107 (FB) in W.P.No.1269 of 1976 dated 11.08.1979 wherein it was held as follows:

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“52. In the instant case, there is a clear conflict between

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the proviso of Section 2(oo) of the OEA Act, 1951 and Sections 5 and 33 of the Temple Act, 1955. It is also clear

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that both the above statutory provisions of the Acts cannot survive together. While the rule of harmonious construction must be given effect to as far as possible, when the provision of two statues are irreconcilable, it needs to be decided as to which provision must be given effect to. In the instant case, Section 2(oo) proviso in its entirety is not violative of the provisions of the Temple Act. At the cost of repetition, we reproduce the relevant part of Section 2(oo) of the OEA Act, 1951 as under:

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“Provided that all estates belonging to the Temple of Lord Jagannath at Puri within the meaning of the Shri Jagannath Temple Act, 1955 (2 of 1955) and all estates declared to be trust estates by a competent authority under this Act prior to the date of coming into force of the Orissa Estates Abolition (Amednemnt) Act, 1970 (33 of 1970) shall be deemed to be trust estates.”

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It is only the first part of the proviso which is in contravention of the Temple Act, 1955. If that part of the proviso continues to be given effect, Sections 5 and 30 of the Temple Act, 1955, by which the estates of Lord Jagannath Temple at Puri are vested in the Temple Committee will lose their meaning. By striking down Section 2(oo) proviso to that extent, both the provisions will be able to operate.

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In CTO v. Binani Cements Ltd. {(2014) 8 SCC 319 this Court held as under:

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It is well established that when a general law and a special law dealing with some aspect delat with by the general law are in question, the rule adopted and applied is one of harmonious construction whereby the general law, to the sdtent dealt with by the special law, is impliedly

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repealed. This principle finds it s origins in the Latin maxim of generalia specialibus non derogant i.e., general law yields to special law should they operate int eh same field on same subject…”

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In J.K.Cotton Spg. And Wvg. Mills Co. Ltd., vs. State of U.P. {AIR 1961 SC 1170}, a three judge bench of this court held as under:

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“9. … We reach the same result by applying another well-known rule of construction that general provisions yield to special provisions. The learned Attorney General seemed to suggest that while this rule of construction is applicable to resolve the conflict between the general provisions in one Act and the special provision in another Act, the rule cannot apply in resolving a conflict between general and special provision in the same legislative instrument. This suggestion does not find support in either principle or authority. The rule that general provisions should yield to specific provisions is not an arbitrary principle made by lawyers and judges but springs from the common understanding of mend and women that when the same person gives tow directions, one covering a large number of matter sin general and another to only some of them, his intention is that these latter directions should prevail as regards these while as regards all the rest, the earlier direction should have effect. In Pretty v. Solly {(1859) 26 Beav 606: 53 ER 1032

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“… The rule is, that whenever there is a particular enactment and a general enactment in the same statute and the latter, taken in its most comprehensive sense, would overrule the former, the particular enactment must be oepratie, and the general enactment must be taken to affect

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only the other parts of the statute to which it may properly apply.”

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The rule has been applied as between different provisions of the same statute in numerous cases some of which only need be mentioned: De Winton v. BRecon Corpn. {(1859) 26 Beav 533: 53 ER 1004} Churchill vs. Crease {(1828) 5 Bing 177; United States v. Chase {1890 SCC Online US SC 153; and Carroll v. Greenwich Insurance Co. {1905 SCC Online US SC 177: 50L Ed 246 : 199 US 401 (1905)}

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Applying this rule of construction that in cases of conflict between a specific provision and a general provision the specific provision prevails over the general provisions and the general provision applies only to such cases which are not covered by the special provision, we must hold that Clause 5(a) has no application in a case where the special provisions of Clause 23 are applicable.”

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It becomes clear from a perusal of the abovementioned two judgments of this Court in CTO v. Binani Cements Ltd., {(2014) 8 SCC 319} and J.K.Cotton Spg. And Wvg. Mills Co. Ltd. V. State of UP {AIR 1961 SC 1170} cases that while provisions of different statutes must be harmoniously constructed as far as possible, in cases where it is not possible, the Court needs to examine as to which provision must be given effect to.

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Further, it is a settled principle of law that once a property is vested by an Act of legislature, to achieve the laudable object, the same cannot be divested by the enactment of any subsequent general law and vest such property under such law. Similarly, if in the instant case, we were to accept the contentions advanced by the learned

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Senior Counsel appearing on behalf of the respondent Math, then Sections 5 and 33 of the Temple Act, 1955 will be rendered useless and nugatory and thereby the laudable object and intendment of the Temple Act will be defeated and the interest of the public at large will be affected. Thus, the Notification dated 18.03.1974 issued by the State Government under Section 3-A fo the OEA Act, 1951, whereby the estate of Lord Jagannath Mahaprabhu Bije, Puri vested in the State Government (in terms of Point (ii) of the notification), is liable to be quashed to that extent. As a consequence, the order dated 30.09.1981 passed by the OEA Tahsidlar, who falls within the inclusive definition of “Collector” in terms of Section 2(d) of the OEA Act, 1951, settling the land in favour of the Mahantas of various Maths as Marfatdars of Shri Jagannath Mahaprabhu Bije, Puri is in violation of the provisions of the Temple Act, 1955 and is thus, liable to be set aside.

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In Siemens Ltd., vs. State of Maharashtra and others (2006)

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12 SCC 33, it was observed and held as follows:

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“9. Although ordinarily a writ court may not exercise its discretionary jurisdiction in entertaining a writ petition questioning a notice to show cause unless the same inter alia appears to have been without jurisdiction as has been held by this Court in some decisions including State o U.P. v. Brahm Datt Sharma {(1987) 2 SCC 179, Special Director vs. Mohd. Ghulam Ghouse and union of India v. Kunisetty SAtyanarayana, but the question herein has to be considered

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from a different angle viz., when a notice is issued with premeditation, a writ petition would be maintainable. In such an event, even if the court directs the statutory authority to hear the matter afresh, ordinarily such hearing would not yield any fruitful purpose. {See K.J.Shephard v. Union Of India {(1987) 4 SCC 431}. It is evident in the instant case that the respondent has clearly made up its mind. it explicitly said so both in the counter affidavit as also in its purported show cause notice.

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The said principle has been followed by this court in V.C.Banaras Hindu Univeristy v. Shrikant (2006) 11 SCC 42, stating:

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“48. The Vice-Chancellor appears to have made up his mind to impose the punishment of dismissal on the respondent herein. A post decisional hearing given by the High Court was illusory in this case.

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In K.I.Shephard v. Union of India {(1987) 4 SCC 431} this court held:

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“It is common experience that once a decision has been taken, there is a tendency to uphold it and a representation may not really yield any fruitful purpose.

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A bare perusal of the order impugned before the High Court as also the statements made before us in the counter affidavit filed by the respondents, we are satisfied that the statutory authority has already applied its mind and has formed an opinion as regards the liability or otherwise of the appellant. If in passing the order the respondent ahs already determined the liability of the appellant and the only question which remains for its consideration is quantification thereof, the same does not remain in the

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realm of a show cause notice. The writ petition, in our opinion was maintainable.”

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4. In Abdul Latif Sahib and Ors. V. Shaik Dastagir Sahib

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andors {1993(3) ALT 56} it was observed and held as follows:

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“15. The term “inam” is an Arabic word which literally means a “gift”; it is a beneficial grant. The sovereigns in India did not claim anything more than a share in the produce of the cultivated lands and their right only consisted in their power to collect a share of the produce…………. “ When the State makes a grant in favour of individuals or religious or charitable institutions, the presumption is that it intends to convey only its right to the grantee, which is the right to receive the royal share of the produce” and the rights of other persons in the soil, like permanent tenants and persons holding previous grants remain unaffected although those rights are not expressly reserved. (1) See Land Tenures in Madras by Sundararaja Iyengar pp. 95 to 97 Even in the last century, it was recognised by the courts that inams are “alienations of the royal share in the produce of land i.e., of land revenue, than grants of land although in popular parlance, occasionally so called”. Therefore, the grantee of an inam is prima facie entitled only to land revenue i.e., ‘melwaram’. But in respect of unoccupied waste lands, sometimes both varam and kudiwaram rights also were granted as inam. In the absence of express words in the grant conferring ownership, no presumption can be drawn that the grant comprised ownership also. There are various

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kinds of inams personal grants made in favour of individuals for their personal benefit, grants made in favour of a community (like Agraharams in favour of Brahmins), grants made in favour of particular Brahmin families (Shrotrium), grants made for particular purposes or for service rendered by the grantee, grants in favour of village officers and village artisans, grants in favour of institutions and grants for religious services. In the case of grants for performance of religious services, the rights of resumption for nonperformance of the duties vests in the Government but not in the religious institution. In the case of service grants, they can be resumed when the necessity for their continuance no longer exists and in the case of grants for religious or charitable purposes or for the purpose of public utility, the resumption can only be when the conditions of the grant are not fulfilled. When inams were granted, the Crown reserved its reversionary rights and enacted Regulation IV of 1831. That reversionary right, the Crown wanted to give up by levying annual quit rent and accordingly rules were framed in 1859 for enfranchising the inam grants. An Inam Commissioner was appointed to sell the reversionary rights of the Crown and issue title deeds to the inamdars in proof of such enfranchisement. The holder of an engranchised inam holds his lands only subject to payment of the quit rent. The enfranchisement did not operate “as a resumption and regrant nor altered the nature of the property in the hands of the grantee”. (2) Se Sundararaja Iyengar Op., Cit. pp 172 and 173 A grant is different from a patta’. The land covered by a patta is liable to revision at each annual settlement called ‘Jamabandi’.

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A holder of a patta enjoys both melwaram and kudiwaram rights. A registered pattedar can alienate, sell, sublet or mortgage, bequeath or otherwise dispose of the whole or any portion of his holding. (3) See Sundararaja Iyengar Op., Cit. p.60. But, an inamdar has no such power of disposition.”

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On the other hand, the learned Government pleader cited the following decisions:

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In the Executive Engineer, Bihar State Housing Board vs.

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Ramesh Kumar Singh another reported in 1996 SCC (1) 327, at paragraphs 10 and 11 it was held as follows:

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“10. We are concerned in this case, with the entertainment of the writ petition against a show cause notice issued by a competent statutory authority. It should be borne in mind that there is not attack against the vires of the statutory provisions governing the matter. No question of infringement of any fundamental right guaranteed by the Constitution is alleged or proved. It cannot be said that Ext. P.4 notice is ex facie a nullity or totally “without jurisdiction” in the traditional sense of that expression—that is to say even the commencement or initiation of the proceedings, on the face of it and without anything more, is totally unauthorized. In such a case, for entertaining a writ petition under Article 226 of the Constitution of India

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against a show cause notice, at power or jurisdiction, to enter upon the enquiry in question. In all other cases, it is only appropriate that the party should avail of the alternate remedy and show cause against the same before the authority concerned and taken up the objection regarding jurisdiction also, then. In the event of an adverse decision, it will certainly be open to him, to assail the same either in appeal or revision, as the case may be, or in appropriate cases, by invoking the jurisdiction under Article 226 of the Constitution of India.

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On the facts of this case, we hold that the 1st respondent was unjustified in invoking the extraordinary jurisdiction of the High Court under Article 226 of the Constitution of India, without first showing cause against Annexure Ext. P4 before the 3rd respondent. The appropriate procedure for the 1st respondent would have been to file his objections and place necessary materials before the 3rd respondent and invite a decision as to whether the proceedings initiated by the 3rd respondent under Section 59 of the Bihar State Housing Board Act, 1982, are justified and appropriate. The adjudication in that behalf necessarily involves disputed questions of fact which require investigation. In such a case, proceedings under Article 226 of the Constitution can hardly be an appropriate remedy. The High Court committed a grave error in entertaining the Writ Petition and in allowing the same by quashing Annexure Ext.P4 and also the Eviction proceedings No.6/92, without proper and fair investigation of the basic facts. We are, therefore, constrained to set aside the judgment of the High Court of Patna in CWJC No.82/93

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dated 10.02.1993. We hereby do so. The appeal is allowed with costs.

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In the matter of Union of India and another vs. Kunisetty SAtyanarayana reported in (2006) 12 SCC 28 it was observed and held as follows:

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“Instead of replying to the aforesaid Charge Memo, the respondent filed an OA before the Central Administrative Tribunal, Hyderabad which was disposed fo vide order 15.3.2004 with a direction to the applicant to submit his reply to the Charge Memo dated 23.12.2003 and on submission of the said reply the Disciplinary Authority should consider the same. Instead of filing any reply the respondent filed a Writ Petition in the High Court which has been allowed, and hence this appeal.

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It is well settled by a series of decisions of this Court that ordinarily no writ lies against a charge sheet or show cause notice vide Executive Engineer, Bihar State housing Board vs. Ramdesh Kumar Singh andothers JT 1995 (8) SC 331, Special Director and another vs. Mohd. Ghulam Ghouse and another AIR 2004 SC 1467, Ulagappa and others vs. Divisional Commissioner, Mysore and others 2001(10) SCC 639, State of UP vs. Brahm Datt Sharma and another AIR 1987 SC 943 etc. The reason why ordinarily a writ petition should not be entertained against a mere show cause notice or charge sheet is that at that stage the writ petition may be held to be premature. A mere charge sheet or show cause

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notice does not give rise to any cause of action, be cause it does not amount to an adverse order which affects the rights of any party unless the same has been issued by a person having no jurisdiction to do so. It is quite possible that after considering the reply to the show cause notice or after holding an enquiry the authority concerned may drop the proceedings and/or hold that the charges are not established. It is well settled that a writ lies when some right of any part is infringed. A mere show cause notice or charge sheet does not infringe the right of any one. It is only when a final order imposing some punishment or otherwise adversely affecting a party is passed, that the said party can be said to have any grievance.

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Writ jurisdiction is discretionary jurisdiction and hence such discretion under Article 226 should not ordinarily be exercised by quashing a show cause notice or charge sheet.

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No doubt, in some very rare and exceptional cases the High Court can quash a charge sheet or show cause notice if it is found to be wholly without jurisdiction or for some other reason if it is wholly illegal. However, ordinarily the High Court should not interfere in such a matter.”

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27. In the backdrop of the above said rival averments, contentions

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and the decisions relied upon, the issue that would emerge for consideration is as follows:

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“Whether the impugned Memo of the respondent No.1 dated 12.03.2018 is sustainable?”

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On the appreciation of the above said averments, contentions and the decision quoted it can be reasoned as under:

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The subject land was originally part of the Vizianagaram Samsthanam (Zamindari Estate) and has been notified under the provisions of the Inams Abolition Act, 1956, as the land was a “Minor Inam”. The order, dt.10.07.1989 passed by the Primarily Authority under Section 3(3) of the Inams Abolition Act, 1956 contains a finding that the Collector of the Vizianagaram Estate had issued Patta No.243 in D.Dis.No.1895, dated 10.07.1942 to the petitioner’s late husband Venkanna Dora. There is no dispute that he was a tenant with permanent occupancy rights. The G.O.Ms.No.275, dated 29.03.1993 was issued by the Government under Section 75 of the Endowments Act, 1987, permitting transfer of Melvaram Rights (Ownership Rights) of the subject land in favor of the writ petitioner. Section 75(1) of the Act reads as under:

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“75. Lease, sale of imams to be void in certain cases: -

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(1) Any lease and any gift, sale exchange or mortgage of an inam land granted for the support or maintenance of charitable or religious institution or endowment or for the

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performance of a religious or public charity or service, shall be null and void unless any such transaction not being a gift, is effected with the prior sanction of the Government.”

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The value of the land was also paid on 09.08.1994 by the writ petitioner to the third respondent and NOC was also issued by the third respondent on 15.06.1995. The Government also issued Memo, dated 05.02.2004 rejecting the requests, dt. 08.12.2002 and 29.09.2003 made by the Commissioner of Endowments seeking withdrawal of the G.O.Ms.No.275, dated 29.03.1993 (effecting transfer of ownership rights in favour of the writ petitioner).

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Then the writ petitioner filed W.P.No.15513 of 2010 against the third respondent and the jurisdictional Sub-Registrar. The said writ petition was disposed of on 06.10.2010, directing that the writ petitioner’s possession and enjoyment shall not be interfered without following the due process of law and that the documents relating to the subject land, as and when presented by the petitioner/successorin-title, shall be registered in accordance with law. Thus the action of the Government in G.O.Ms.No.275 dated 29.03.1993 was upheld

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which is in favour of the petitioner. But the writ appeal was preferred against the said order in the writ petition.

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During the pendency of the W.A.No.776 of 2010 filed by the third respondent against the order, dt.06.10.2010 in W.P.No.15513 of 2010, an amendment was brought about to Section 8 of the Inams Abolition Act, 1956 (the said provision originally contemplated conferment of right of permanent occupancy on certain tenants) and was published in the State Gazette on 26.09.2013, adding a proviso to Section 8(1), which reads as follows:

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“Provided that in case of inam land held by a charitable or religious institution or endowment, no tenant shall have a right of permanent occupancy of the land”.

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This amendment was brought with retrospective effect.

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Thereafter the abovesaid W.A.No.776 of 2010 was disposed of by the Division Bench of the High Court of Judicature at Hyderabad on 16.10.2014. The Division Bench had left open all the questions, including the question of applicability of the amendment to Section 8 of the Inams Abolition Act. It is to be noted here that any observations, regarding the statutory amendment of the year 2013,

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made in the order of the Division Bench are obiter and do not constitute a ratio decidendi as per the decision reported in State of Haryana vs. Ranbir @ Rana: {[2006] 5 SCC 167}. Further, the Division Bench had made it clear that: “All questions including the question of applicability of the amendment are kept open.”

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Subsequently, the impugned Government Memo, dated 12.03.2018 was issued to the petitioner and a reading of the heading of the said Memo and paras 2 and 3 thereof, shows that the entire issue has been pre-decided by the government and that the impugned Memo is only a formal post-decisional opportunity given to the writ petitioner, in the matter of cancellation of G.O.Ms.No.275, dated 29.03.1993 (whereby ownership rights of the land were transferred to the petitioner). In other words, it is a replica of G.O.Ms.No.224, Revenue (Endts. II) Dept. dated 25.06.2015 cancelling the G.O.Ms.No.275 dated 29.03.1993 which was set aside in W.P.No.19507 of 2015 dated 01.11.2016. The amendment to Section 8 of the Inams Abolition Act, 1956, by insertion of provision has no application to the subject land. There is also an interim order dated

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12.04.2018, in this writ petition and the relevant portion of which is extracted hereunder:

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“When, prima facie , there has been alienation of melvaram rights in favour of petitioner vide G.O.Ms.No2.75 Revenue (Endts. IV) department, dated 29.03.1993 and that has been attained finality, it is not open to the respondents to reopen the said issue by the impugned show cause notice after 25 years. Therefore, there shall be an interim suspension as prayed for.”

¶229

As against the above said interim order, the third respondent

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preferred W.A.No.1037 of 2018, which was disposed of on 17.04.2019 observing that “we see no reason to interfere with the impugned interim order at this stage.

¶231

Section 75 of the Endowments Act, 1987 vis-à-vis amended Section 8 of the Inams Abolition Act, 1956, insofar as the present case is concerned, they tickle down as under:

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(a) Section75 of the Endowments Act, 1987 is a special provision in a special statute, expressly dealing with “Inam Land” granted for support/maintenance of a religious institution. The said

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provision speaks about lease/gift/sale/exchange/mortgage of inam land. A reading of the said provision, shows that the same exhaustively deals with certain transfers of Inam land pertaining to religious institutions. Lease and sale have been separately and distinctly mentioned therein. A lease pertains only to the leasehold rights or kudivaram rights, whereas a sale is a comprehensive transfer, which includes the ownership rights or Melvaram” rights and this is expressly and specifically in respect of “Inam Lands”. The provisions of Section 75 do not just only apply to persons who were hitherto in legitimate occupation of Inam land (including tenants) but to the other cases also. The provisions of Section 75 would operate without making any distinction between persons falling under the category of permanent occupancy rights holders or persons falling under other categories, of whichever nature.

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(b) It is of no consequence, whether a tenant, in whose favour permission is accorded under Section 75 of the Endowments Act, 1987, is a tenant who hitherto (pre-2013 amendment) was having permanent occupancy rights or was a tenant who was not having permanent occupancy rights. The proviso to Section 8(1), brought by

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an amendment, only speaks about the tenant not having a right of permanent occupancy (whereas, the unamended provision conferred permanent occupancy rights). This provision (i.e., Section 8) does not relate to the field that is covered by the Section 75 of the Endowments Act, 1987, which expressly deals with lease/gift/sale/exchange/mortgage of inam land pertaining to a religious institution. There is no conflict, whatsoever, between the provisions of Section 75 of the Endowments Act, 1987 and the provisions of amended section 8(1) proviso of the Inams Abolition Act, 1956 and there is no overlapping of any nature, whatsoever between these provisions.

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(c) The conclusion reached by pre-determination of the issue, as evident from the impugned Govt. Memo dated 12.03.2018 is such that it would lead to a conflict between the provisions of Section 75 of the Endowments Act, 1987 and the provisions of Section 8(1) of the Inams Abolition Act, 1956 which is not the intention of the legislature. The impugned Memo dt. 12.03.2018, if taken into its logical conclusion, i.e., cancellation of the permission accorded for sale under Section 75 of the Endowments Act, 1987 of the subject

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land, would result in the very provisions of Section 75 of the Endowments Act, 1987 being rendered otiose and redundant. This is not permissible in law.

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(d) The amended Section 8(1) of the Inams Abolition Act, 1956 i.e., the proviso which speaks of “.. no tenant shall have a right of permanent occupancy of the land:, cannot be sought to be applied to a case where there has been a sale of inam land in terms of Section 75 of the Endowments Act, 1987. The said amendment to the Inams Abolition Act, 1956 does not apply to the subject land and as such, the impugned Memo is wholly without jurisdiction. It is also relevant

¶245

to mention here that as on the date of the issuance of G.O.Ms.No.275, dated 29.03.1993 under Section 75 of the Act 30 of 1987, the land was held on Inam Tenure and only thereafter, by virtue of a re-grant i.e., issuance of a Ryotwari Patta, dated 14.08.1996, the land became ryotwari land.

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It would be pertinent to mention here that on several occasions, the Government has accorded permission even in respect of the land occupied by the encroachers, in the matter of regularizing

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such encroachments of the lands belonging to the third respondent and this power is being traceable to Section 75 and 80 of the Endowments Act, 1987. As an illustration, a reference may be made to G.O.Ms.No.578, dt.19.08.2000, which was issued in the matter of “Regularisation of encroachments in respect of the lands belonging to SVLNS Devasthanam, Simhachalam”, i.e., the 3^rd respondent herein. All these lands were inam lands endowed to the third respondent. Therefore, the impugned action in seeking to cancel the sale, in favour of the writ petitioner, permitted during the year 1993, violates the safeguards provided by the Article 14 of the Constitution of India, inasmuch as a recognized tenant cannot be on a worse footing than encroachers, in the matter of transfer of inam land already made in terms of Sections 75 and 80 of the Endowments Act, 1987.

¶250

Inam Tenure continues till grant of Ryotwari Patta:

¶251

(a) As observed supra, a bench comprising five learned Judges of the erstwhile High Court of AP at Hyderabd in Nellore Bujjamma vs. Tahsildar, Rapur Taluk: 1980(1) ALT 107, has laid down the law

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to the effect that the Inam Tenure gets converted to Ryotwari Tenure, only when a Ryotwari Pata is granted. As such, the subject land of the writ petitioner remained as “Inam Land” till a Ryotwari Patta, dated 14.08.1996 was granted in favour of the third respondent.

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(b) Once the tenure of the land ceases to be the inam and gets converted into ryotwari by virtue of such re-grant, the matter goes out of the purview of the Inams Abolition Act, 1956. The provisions of the amended section 8 i.e., proviso to section 8 of the Inams Abolition Act, 1956 would operate only till grant of Ryotwari patta and would cease to operate thereafter, as the Inam Tenure gets obliterated and gets converted into Ryotwari Tenure. Hence, the amendment of the year 2013, which is relied upon in the impugned Memo, dated 12.03.2018, has no application to the subject land, as Ryotwari Patta, dated 14.08.1996 had been granted to the third respondent resulting in the conversion of Inam Tenure to Ryotwari Tenure.

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(c) The permanent occupancy rights, that were conferred by virtue of unamended Section 8(1) were also not perennial and were

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operable only till the land was inam land and would not be operable after the conversion of tenure to Ryotwari. The beginning of subsection (1) reads thus:

¶260

“1. In the case of an inam land held by an Institution…”

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As such, the unamended provision would have applied only till the tenure was converted from Inam to Ryotwari. So also, the amended Section 8(1), with proviso added, would only be operable till the Inam Tenure continues and not thereafter, i.e., the same would not apply once a Ryotwari Patta is granted. This proposition would be in tune with the ratio laid down in Nellore Bujjamma’s case: 1980 (1) ALT 107, referred to hereinabove. Hence, the new proviso to Section 8(1) of the Inams Abolition Act, 1956 added by way of amendment, does not apply to the instant case.

¶262

A copy of the Encumbrance Certificate filed in support of the claim of the writ petitioner would indicate several transactions having been registered in respect of the subject land, after transfer of ownership in favour of the writ petitioner. Further, the provisions of the Government Grants Act, 1895, which are relied upon in the writ

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petition, was repealed by the Repealing and Amending (Second) Act, 2017, with effect from 05.01.2018, by the Parliament. But Section 4 of the repeal Act, contains a savings clause. In view of the above said legal position, the settled things under G.O.Ms.No.275 dated 29.03.1993 cannot be unsettled/reopened under the impugned memo of the respondent No.1 dated 12.03.2018.

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