Remanded

Moturi Susila, v. The State of Andhra Pradesh Rep., by its Principal Secretary

Telangana HC27 Apr 2018WP/24462/2017

Case brief

AI extract

What is this about?

Petitioners, landless farmers cultivating temple land via lease, challenged auction proceedings due to unascertained maktha. The court differentiated a precedent where auction determined rent. It remanded the matter to the Regional Joint Commissioner to fix market rent after a hearing.

What did the court decide?

Remand of the matter to the Regional Joint Commissioner, Tirupati to determine the market rent payable by the petitioners after affording an opportunity of hearing.

Moturi Susila, Vs The State of Andhra Pradesh Rep., by… — Landlord and Tenant | Telangana HC (2018)

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THE HON’BLE SRI JUSTI CE A. RAMALI NGESWARA RAO

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Writ Petition Nos. 24459 and 24462 of 2017

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Common Order :

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These two Writ Petitions are being disposed of by this common order, as the issue involved in both the Writ Petitions is identical.

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Heard learned counsel for the petitioners and learned Standing Counsel for the fourth respondent – Temple.

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The petitioners state that they are landless poor persons cultivating the lands of the fourth respondent – Temple by paying the lease amount regularly and there are no arrears as on today. The petitioners 1 to 5 in W.P.No.24459 of 2017 have been cultivating an extent of Ac.2-59 cents in Survey No.205/9, Ac.2-00 in Survey No.202/2, Ac.1-00 in Survey No.206/1, Ac.1-00 in Survey No.206/1 and Ac.1-55 cents in Survey No.207/1 of Vellaturu village, Bhattiprolu Mandal, Guntur District, respectively, whereas, the petitioners 1 to 4 in W.P.No.24462 of 2017 have been cultivating an extent of Ac.2-20 cents in Survey Nos.206/2, 211/1 and 210/2, Ac.2-46 cents in Survey No.206/2, Ac.1-33 cents in Survey Nos.201/1, 206 and 207 and Ac.2-62 cents in Survey Nos.211/1, 211/2 and 206/2 of Vellaturu village, Bhattiprolu Mandal, Guntur District, respectively. They were determined as landless poor persons as defined under Section 82 of the Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act, 1987 (for short ‘the Act’), by the third respondent. When the fourth respondent issued a notice on 01.04.2017 directing the petitioners not to enter the land for the year 2017 and 2018 without getting appropriate approval from the higher authorities of the Endowments Department, the petitioners filed W.P.Nos.14972 and 15053

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of 2017 challenging the action of the respondents in proposing to put the lands to auction without exercising the option by the petitioners for purchase of the leased lands under Section 82 of the Act. This Court, by order dated 25.04.2017, disposed of the said Writ Petitions with the following observations.

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“In view of the fact that there is no dispute with regard to the petitioners being small farmers and that they are entitled to continue to cultivate the land for the next three-year period, subject to the condition of the petitioners paying maktha in terms of G.O.Ms.No.379, Revenue (Endowments.I) Department, dated 11.03.2003, they shall be allowed to cultivate the subject land for the period 2017-2020. If there is any default in payment of maktha, the respondent authorities shall be at liberty to take appropriate steps in accordance with law and put the lands to public auction.”

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Now, the present Writ Petitions are filed challenging the action of the respondents in auctioning the leasehold rights of the lands without properly fixing the maktha for the lands in possession of the petitioners in terms of G.O.Ms.No.379, Revenue (Endowments.I) Department, dated 11.03.2003, and also for considering their representation dated 28.06.2017 for fixing the maktha for the said lands.

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A counter affidavit is filed stating that the petitioners have been cultivating the lands of the fourth respondent temple by paying meager maktha and not 2/3^rd of the existing market rental as per Section 82 of the Act. They issued a notice to the petitioners on 01.04.2017 demanding them to get a declaration with regard to their status as landless poor persons. They are supposed to get the declarations reviewed every three years. Since the petitioners came forward to purchase the lands, they cannot be claimed as landless poor persons. They were asked to pay 2/3^rd of the present market rental i.e., Rs.37,500/- x 2/3 = Rs.25,000/per acre for the dry land under their possession and the petitioners are

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not willing to pay the said amount. In those circumstances, the fourth respondent temple approached the Tahsildar, Bhattiprolu mandal, Guntur District and obtained a certificate with regard to present maktha that is payable. He issued a certificate on 18.04.2017 mentioning that each acre of land fetches around Rs.37,500/- per annum and when the neighbouring land of an extent of Ac.1-28 cents was put to auction during the years 2015-16 to 2017-18 it fetched Rs.48,000/- per annum, the same was approved by the Assistant Commissioner on 29.06.2015 and the tenants have been paying the same rent. When notice was issued on 01.04.2017, the same was challenged by the petitioners in W.P.Nos.14972 and 15053 of 2017 and this Court disposed of the said Writ Petitions by directing the petitioners to pay rental as per the Rules. Now, when the temple authorities issued a notice on 10.06.2017 demanding the petitioners to pay maktha amount of Rs.25,000/- per acre per annum based on the prevailing market rental of Rs.37,500/-, the petitioners filed the present Writ Petitions. It is also stated that the lands under the possession of the petitioners yield commercial crops like Kanda, Turmeric, Banana etc. With regard to the claim of the petitioners that in respect of the neighbouring lands belonging to Somasekhara Swamy Temple, Kotipalli, it fetched only Rs.15,000/- in public auction and another land fetched only Rs.20,000/-, it is stated that the said lands are wet lands and paddy can be raised in the said lands, whereas the lands of the fourth respondent Temple are dry lands and yield commercial crops having more market value. At present, the petitioners are paying only Rs.10,000/- per acre per annum.

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In view of the rival claims, the only point that survives for consideration is with regard to fixation of proper maktha for the lands. This Court in the earlier round of litigation did not decide the issue with

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regard to payment of maktha, but left that point by stating that the petitioners have to pay maktha in terms of G.O.Ms.No.379 dated 11.03.2003 and on payment of such maktha they are entitled to cultivate the land for the period 2017-2020.

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At this stage, learned counsel for the petitioners placed reliance on Rule 5(2) of the Rules framed under G.O.Ms.No.379 dated 11.03.2003. Rule 5(2) of the said Rules provides for an option to be given to the lessee to purchase the land in entirety or any portion thereof or to continue as a tenant by paying at least 2/3^rd of the market rent for the similarly placed lands as lease amount. If he fails to exercise his option within thirty (30) days of the receipt of notice the lease shall automatically stand cancelled after expiry of 30 days in which event he shall handover possession and pay all rents due up to that date failing which appropriate action would be taken under Sections 84 to 86 of the Act treating him as an encroacher.

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Now, the petitioners submitted a representation dated 28.06.2017 to the respondents 3 and 4 stating that in respect of neighbouring lands when an auction was conducted on 22.06.2017, it fetched only Rs.16,000/- and in view of the same, the demand for payment of maktha of Rs.25,000/- is high.

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The fixation of appropriate maktha cannot be decided by this Court and there are no rules governing the same. The rules only speak of fixation of maktha based on 2/3^rd of the market rent. What is market rent has not been defined anywhere.

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Learned counsel for the fourth respondent placed reliance on a decision reported in Vempalli Venkatarami Reddy v. Assistant Commissioner, Endow ments Department, Kadapa Tow n and

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District¹ , wherein the Writ Petition was disposed of directing the respondents therein to conduct auction of the leasehold rights to ascertain the amount that is fetched as rent. It was also held that if the petitioner emerges as highest bidder or if he is willing to pay 2/3^rd of the amount that is fetched as rent, the petitioner shall be entitled to be continued as tenant. But, this course of action may not be proper as an unwilling participant in the auction may inflate the rate and deciding that rate for fixing the lease amount would be unreasonable. Hence, this Court does not want to adopt such a course of action.

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Learned counsel for the petitioners submits that the Tahsildar cannot fix the maktha amount or the market rent and it would be arbitrary. She also submits that the fixation of maktha on the basis of a certificate of the Tahsildar would be improper. She also submits that in view of the local conditions there is possibility of depriving the right of the petitioners to continue in the lands by fixing higher amount. She further submits that the amount of Rs.10,000/- per annum per acre was already deposited as per the previous market rent for the year 2017-2018 and any difference by virtue of enhancement of rent would be paid by the petitioners.

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In the circumstances, these matters are remanded to the Regional Joint Commissioner (Endowments), Tirupati, to determine the market rent payable by the petitioners in respect of land belonging to the temple leased out to them and in their possession as on today. The Regional Joint Commissioner, Tirupati, shall fix the market value of the rent after giving an opportunity of hearing to the petitioners and the entire exercise

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1 2010(3) ALD 654

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shall be completed within a period of three (3) months from the date of receipt of a copy of this order.

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Accordingly, these two Writ Petitions are disposed of. There shall be no order as to costs.

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As a sequel thereto, the miscellaneous petitions, if any, pending in these Writ Petitions shall stand closed.

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____________________________ A. RAMALI NGESWARA RAO, J

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