As per the case facts, Gulf Oil Corporation Ltd., as a lessee, was ordered to be evicted from land under the provisions of the Telangana Charitable and Hindu Religious Institutions ...
No Acts & Articles mentioned in this case
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 7759-7760 OF 2014
GULF OIL CORPORATION LTD. .....APPELLANT(S)
VERSUS
THE STATE OF TELANGANA & ORS. .....RESPONDENT(S)
W I T H
CIVIL APPEAL NO. 7761 OF 2014
SRI UDASIN MUTT .....APPELLANT(S)
VERSUS
GULF OIL CORPORATION LTD. & ORS. .....RESPONDENT(S)
J U D G M E N T
HEMANT GUPTA, J.
1. The challenge in Civil Appeal Nos. 7759-7760 of 2014 is to an order
dated 7.3.2013 passed by the Andhra Pradesh High Court in Writ
Petition No. 31893 of 2011 whereby the appellant herein i.e., Gulf
Oil Corporation Limited
1
was ordered to be evicted under the
1 For short, the ‘Lessee’
provisions of The Telangana Charitable and Hindu Religious
Institutions and Endowments Act, 1987
2
. The lessee claimed
leasehold rights on the land admeasuring 540 acres and 30 guntas
situated at village Kukatpally, Hyderabad.
2. Civil Appeal No. 7761 of 2014 has been preferred by Sri Udasin
Mutt
3
, the lessor of the said land, arising out of Writ Petition No.
8005 of 2012. The said writ petition was decided along with the writ
petition filed by the lessee. The Mutt has claimed mesne profits in
terms of Section 83(6) of the 1987 Act. However, the writ petition
was disposed of with a direction to consider the request of the
lessee under Rule 15 of the Telangana Charitable and Hindu
Religious Institutions and Endowments Immovable Properties and
other Rights (Other than Agricultural Land) Leases and Licenses
Rules, 2003
4
, published vide Government Order Memo No. 866
dated 8.8.2003.
3. The dry soil land measuring more than 540 acres and 30 guntas was
granted as inam land by the Nizam of Hyderabad to the Mutt
somewhere in the year 1873. The Mutt entered into an agreement
of lease with M/s Indian Detonators, predecessor of the lessee, on
23.07.1964 in respect of 143 acres of inam lands, bearing survey
no. 1010/8 to 1010/10. The lessee, claiming to be the successor-in-
interest of M/s Indian Detonators, relies on the permission said to be
granted by the Government to enter into lease of the inam land on
2 For short, the ‘1987 Act’
3 For short the ‘Lessor’ or ‘Mutt’
4 For short, the ‘2003 Rules’
2
24.02.1964.
4. The lessor thereafter entered into an agreement with M/s Indian
Detonators on 14.9.1966 to take on lease 257 acres and 19 guntas
of the inam land. The supplementary lease deed dated 21.03.1969
was also executed for an area of 2 acres and 32 guntas of land.
5. The Commissioner, Endowments Department communicated to the
Secretary to Government, Revenue (Endowments) Department on
29.4.1975 to sanction proposed long lease of 99 years of 137 Acres
19 guntas of the land. It was also communicated that since the
lease was exceeding 6 years, therefore, sanction of the Government
is necessary under Section 70 of the Andhra Pradesh Charitable and
Hindu Religious Institutions & Endowments Act, 1966
5
. Section 70 of
the 1966 Act reads thus:
“70. Lease, sale, etc., of inams to be void in certain cases:-
(1)Any lease for a term exceeding six years and any gift,
sale, exchange or mortgage of an inam land granted
for the support or maintenance of a charitable or
religious institution or endowment or for the
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.
(2)Such prior sanction may be accorded by the
Government where they consider that the transaction
is-
(i)necessary or beneficial to the institution or
endowment;
(ii)consistent with the objects of the institution or
endowment and;
(iii)the consideration thereof is reasonable and
proper.
5 For short, the ‘1966 Act’
3
(3)The provisions of this section shall not apply to any
inam land in the Andhra Area of the State.”
6. It was on 10.05.1976, the Government of Andhra Pradesh accorded
sanction for lease of land measuring 137 acres and 19 guntas to
M/s. Indian Detonators Limited. Subsequently, on 20.04.1978, the
lessor entered into another lease deed with M/s Indian Detonators
Limited for a period of 99 years for land measuring 137 acres 19
guntas.
7. A perusal of the lease deed dated 23.07.1964 in respect of 143
acres and the lease deed dated 14.09.1966 in respect of 257 acres
and 19 guntas of land specifically mention that the lease are of
inam land. A summary of the various lease deeds executed by the
lessor are produced hereinunder:
Sl.
No.
Lessor Lessees Document No.
& Date
Sy. No. Extent
1 Mahant
Baba Seva
Das
M/s Indian
Detonator
s Limited
366
23.7.1964
1010/8 to
1010/10
1010/11 (p)
1010/12 to
1010/15
1024, 1026
143-00
2 -do- -do- 889
14.09.1966
1010/1 to
1010/7
1026, 1024,
1029, 1030,
1038, 1039,
1010, 1041
257-19
3 Udasin Mutt
Mahant
Baba Gynan
Das Ji
M/s Indian
Detonators
Limited
Supplementary
lease deed
21.3.1969
1010/11 2-32
4 Mahant
Baba Dynan
Das Chela
of Mahant
Puran Das
M/s I.D.L.
Chemical
Ltd
1817/75
28.9.19
78
1028, 1036,
1037, 1042,
1066, 1067,
1068, 1069 and
1070
137-19
Total 540.30
4
8. The 1987 Act came into force on 21.04.1987, repealing the 1966
Act. Section 82 of the 1987 Act has a non-obstante clause so as to
override and cancel any lease of agricultural land other than lease
to a landless poor person. Section 82 of the 1987 Act reads thus:
“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)xxx xxx xxx
(3)The authority to sanction the lease or licence in
respect of any property or any right or interest thereon
belonging to or given or endowed for the purpose of
any charitable or religious institution or endowment,
the manner in which and the period for which such
lease or licence shall be such as may be prescribed.
(4)Every lease or licence of any immovable property,
other than the Agricultural land belonging to, or given
or endowed for the purpose of any charitable or
religious institution or endowment subsisting on the
date of the commencement of this Act, shall continue
to be in force subject to the rules as may be prescribed
under sub-section (3).
(5)
6
[The provisions of the Andhra Pradesh (Andhra Area)
Tenancy Act, 1956 (Act XVIII of 1956) and the Andhra
Pradesh (Telangana Area) Tenancy and Agricultural
Lands Act, 1950 (Act XXI of 1950) shall not apply to
any lease of land belonging to or given or endowed for
the purpose of any charitable or religious institutions or
endowment as defined in this Act.]”
9. The Hyderabad Abolition of Inams Bill (Bill No. XVIII of 1954) was
published in Hyderabad Gazette Extraordinary No.86 on 10.04.1954.
6 Added by Act No. 27 of 2002, w.e.f. 26-8-2002.
5
One of the objects for the enactment of such legislation was the
abolition of all inams, other than village service inams and inams
held by religious and charitable institutions. In pursuance of such
Bill, the Hyderabad Abolition of Inams Act, 1955
7
came to be
enacted. Such Act received the assent of the President on
16.07.1955 and was published in the Hyderabad Gazette
Extraordinary No. 90 of 20.07.1955. The enactment is now known as
the Telangana Abolition of Inams Act, 1955. Initially, the Inams
Abolition Act was not applicable to inams held by or for the benefit
of charitable and religious institutions [Section 1(2)(i)]. The said
provision was however deleted by Andhra Pradesh (Amendment)
Act, 1985 (Act No. 29 of 1985) with effect from 26.12.1985. The
Inams Abolition Act was then subsequently amended vide Andhra
Pradesh (Amendment) Act, 1994 (Act No. 19 of 1994), whereby a
proviso was inserted to Section 4(1) of the Inams Abolition Act with
retrospective effect from 26.12.1985, the date when Section 1(2)(i)
was deleted. The inserted clause and other relevant provisions of
the said Inams Abolition Act read thus:
8
“[1(2) It extends to the whole of the Hyderabad State and
shall be applicable to all inams except –
(i)inams held by or for the benefit of charitable and
religious institutions;
(ii)inams held for rendering village service useful to
the Government or to the village community
including sethsendhi, neeradi and balutha inams.]
xx xx xx
7 Inams Abolition Act
8 omitted by A.P. (Amendment) Act, 1985 (Act No. 29 of 1985) w.e.f. 26.12.1985
6
3.Abolition and vesting of inams and the consequences
thereof-(1) Notwithstanding anything to the contrary
contained in any usage, settlement, contract, grant,
sanad, order or other instrument, Act, regulation, rules
or order having the force of law and notwithstanding any
judgment, decree or order of a Civil, Revenue or Atiyat
Court, and with effect from the date of vesting, all inams
shall be deemed to have been abolished and shall vest
in the State.
(2) Save as expressely provided by or under the
provisions of this Act and with effect from the date of
vesting, the following consequences shall ensue
namely:-
xxx xxx xxx
(c) all such inam lands shall be liable to payment of land
revenue;
(d) all rents and land revenue including cesses and
royalties, accruing in respect of such inam lands, on or
after the date of vesting, shall be payable to the State
and not to the Inamdar, and any payment made in
contravention of this clause shall not be valid;
4((1) xxx xxx xxx
9
[Provided that where inams are held by or for the benefit of
charitable and religious institutions no person shall be
entitled to be registered as an occupant under sections 5, 6,
7 and 8 and the institution alone shall be entitled to be
registered as an occupant of all inam lands other than those
specified in clauses (a) and (c) above without restriction of
extent to four and half times the family holding and without
the condition of personal cultivation:
Provided further that where any person other than the
concerned charitable or religious institution has been
registered as an occupant under sections 5, 6, 7 and 8 after
the commencement of the Andhra Pradesh (Telangana Area)
Abolition of Inams (Amendment) Act, 1985 such registration
shall and shall be deemed always to have been null and void
and no effect shall be given to such registration]”
9 inserted by A.P. (Amendment) Act, 1994 (Act No. 19 of 1994) with retrospective effect from 26.12.1985.
7
xxx xxx xxx
9. Vesting of certain buildings and inam lands used for non-
agricultural purposes.-
(1) Every private building, situated within an inam shall, with
effect from the date of vesting, vest in the person who
owned it immediately before that date.
(2) Where an inam land has been converted for any purpose
unconnected with agriculture, the holder of such land shall
be entitled to keep the land provided that such conversion
was not void or illegal under any law in force.
(3) The vesting of private buildings or lands under sub-
section (1) or (2) shall be subject to the payment of non-
agricultural assessment that may be imposed by
Government from time to time.”
10.Section 82 of the 1987 Act statutorily cancelled the lease deeds if
endowed for the purpose of any institution. Section 75 of the 1987
Act declares that any lease and any gifts, sale, exchange or
mortgage of an inam land, granted for the support or maintenance
of charitable or religious institution, or endowment or for the
performance of a religious or public charity or service shall be null
and void, unless such transaction, not being a gift, is affected with
prior sanction of the Government. A perusal of the facts would show
that prior approval was only in respect of 137 acres 19 guntas of
land on the basis of which registered lease deed was executed on
20.04.1978. However, lease deed dated 23.07.1964 in respect of
143 acres, lease deed dated 14.09.1966 in respect of 257 acres 19
guntas and supplementary lease deed dated 21.3.1969 in respect of
2 Acres 32 guntas were not preceded with any prior sanction.
8
Though there is a note of the Second Secretary of the Government
that lease for 99 years would not amount to transfer of property,
but such note is on the file of the Government and had not been
communicated to any of the interested parties.
11.It is submitted that the lessee faced no issues till November 2006
when the previous Mahant Baba Sagardas was unceremoniously
removed. It was on 24.08.2007, a notice on behalf of Sri Arun Das ji,
Mahant of the Mutt, for delivery of vacant possession, was served
treating lessee as an encroacher. It was later on 24.12.2007, the
Mutt wrote to the Assistant Commissioner (Endowments) for
eviction of the lessee, inter alia on the ground that a graveyard on a
land measuring 20 acres has come up and thus there is a violation
of the terms of the lease. The Assistant Commissioner called for an
inspection report from the office of the Inspector, Endowments
Department. A report was submitted on 29.01.2008, communicating
to the Assistant Commissioner, Endowments Department that the
three lease deeds are without prior Government approval. Only the
lease deed dated 20.04.1978 was with prior approval. It was
communicated that the 4 lease deeds have totally become null and
void as per the 1966 Act, 1987 Act and the Rules framed under the
Government Order No.866 dated 08.08.2003.
12.The proceedings leading to the present appeals were initiated when
a show cause notice dated 20.12.2008 was issued by Deputy
Commissioner, Endowments Department, Hyderabad. The
proceedings initiated in pursuance of show cause notice to the
9
lessee was assigned an Original Application No.21/2008 before the
Deputy Commissioner, Endowments Department, later renumbered
as OA No. 579 of 2010 after the constitution of the Endowments
Tribunal. The lessee was asked to remove the encroachment upon
the land belonging to the Mutt.
13.It has been argued that the Endowments Tribunal passed a patently
perverse order of eviction on the ground that the leased land was
agricultural in nature and therefore, the lease deed was void as per
Section 82 of the 1987 Act. The writ petition against the order
passed by the Endowments Tribunal remained unsuccessful. It is the
said order passed in the writ petition which is the subject matter of
challenge in the present appeals.
14.The argument of Mr. Harish Salve, appearing for the lessee, is that it
was neither asserted by the Mutt, nor any issue was framed
regarding treating the land as agricultural land. Therefore, in the
absence of any evidence of the land being an agriculture land, the
finding recorded by the Endowments Tribunal and affirmed by the
High Court suffers from patent illegality as without any plea or
evidence, a finding has been returned to declare the lease deed
executed in favor of the appellant as cancelled on the ground that
the lease was of an agricultural land.
15.Mr. Salve referred to an order passed by the Joint Collector in an
appeal under Section 24 of the Andhra Pradesh (Telangana Area)
Abolition of Inams Act, 1955, wherein a finding was returned that
10
the land in question was converted into for non-agricultural use
before 1973. The order under challenge in appeal was an order
passed by the Revenue Divisional Officer dated 27.11.2004.
16.It is argued that the order of the Joint Collector is final and act as an
estoppel to the effect that the leased inam lands are non-
agricultural in nature and the factum of the Endowments Tribunal
having delved into the same by giving a perverse finding is
impermissible. Reliance is placed upon the judgment of this Court
reported as Hope Plantations Ltd. v. Taluk Land Board,
Peermade and Anr.
10
that if an issue has been finally determined,
parties cannot dispute such finding.
17.The issue as to whether the land is agricultural land was raised for
the first time in the written arguments submitted by the Mutt before
the Endowments Tribunal relying upon a report of the Assistant
Commissioner (Endowments). It is submitted that the argument
raised by the Mutt was dealt with in the written arguments raised by
the lessee specifically contending that a new plea was raised for the
first time in the written arguments that the land was agricultural
land. Reliance is placed upon judgment of this Court reported as
Bachhaj Nahar v. Nilima Mandal & Anr.
11
wherein it was held
that once a particular plea is not raised and the defendants had no
opportunity to resist or oppose such a relief, it would lead to
miscarriage of justice. Reliance was also placed upon a judgment of
10 (1999) 5 SCC 590
11 (2008) 17 SCC 491
11
this Court reported as Ram Sarup Gupta (Dead) by Lrs. v.
Bishun Narain Inter College & Ors.
12
.
18.It is argued that the distinction between agricultural and non-
agricultural land is evident from the reading of Section 3 of the
Andhra Pradesh Non-Agricultural Assessments Act, 1963, which
provides for assessment of non-agricultural land. The A.P
Agricultural Land (Conversion for Non-Agricultural Purposes) Act,
2006 repealed the 1963 Act by keeping the distinction between the
agricultural and non-agricultural land. Reference was made to
Section 28 of the Andhra Pradesh (Telangana Area) Land Revenue
Act, 1317 Fasli that the land in Section 1(b) includes all kinds of
benefits pertaining to land and that land revenue is paid for non-
agricultural land as well. It has been argued that Section 82 would
be applicable only if lease of land is used for agricultural purpose
alone. Reliance was placed upon the judgments of this Court
reported as Commissioner of Wealth Tax v. Officer in Charge
(Court of Wards)
13
, Sarifabibi Mohmed Ibrahim (SMT) v.
Commissioner of Income Tax, Gujrat
14
and ITC Limited v. Blue
Coast Hotels Limited
15
dealing with the agricultural land in the
taxation laws such as wealth tax and income tax. It is further
contended that the lease deeds executed for a period of 99 years
could not be terminated in violation of the terms of a notice period
of 5 years, as well as on a non-existing ground of termination of
12 (1987) 2 SCC 555
13 (1976) 3 SCC 864
14 (1993) Supp 4 SCC 707
15 (2018) 15 SCC 99
12
lease. It is also argued that the report of the Assistant Collector,
Endowments is on inquiry and not evidence before the Tribunal
which can be made basis of terminating the lease in favor of the
lessee.
19.It is contended that the notice for termination of lease was issued
on 11.10.2007 on the ground that Mutt had entered into lease
agreements with IDL and IDL Chemicals Limited and not with the
appellant; the appellant abandoned most of the land, thereby
allowing encroachers to occupy the land and that the land of Mutt is
being converted into burial grounds.
20.It was averred that eviction proceedings can only be in consonance
with the terms of the eviction notice which allows no room for
vagueness and ambiguity. In the notice, no issue qua the nature of
the leased inam lands was raised but was surreptitiously supplanted
by the Mutt in its written arguments. The same is erroneously
considered and decided by the Tribunal and upheld by the High
Court. It is only Section 75 of the 1987 Act that would be applicable
which contemplates prior permission of the Government in the case
of inam lands.
21.It is argued that evidence can be led in support of the plea raised.
Since there is no plea raised by the Mutt that the land is agricultural
land, therefore, no amount of evidence in absence of plea can be
considered by the Court. Reliance is placed upon Union of India v.
13
Ibrahim Uddin & Anr.
16
, and Biraji alias Brijraji & Anr. v. Surya
Pratap & Ors.
17
.
22.The appellants further argued that any finding of a court of law in
the absence of evidence cannot be sustained. Such finding based
on a document which is not placed on record is violation of
principles of natural justice, fair play and fairness. Reliance is placed
upon Mahesh Dattatray Thirthkar v. State of Maharashtra
18
.
It is argued that since the report of the Inspector dated 29.1.2008
was not placed on record, therefore, the lessee was not given a
chance to rebut the assertion that the land is an agricultural land.
23.It has been further argued that the impugned order of the High
Court is perverse and that the judgment of the High Court in
Siddartha Academy of General and Technical Education v.
Deputy Commissioner of Endowments
19
has been wrongly
relied upon. In fact, in the said judgment, the land was agricultural
land. This Court in SLP (Civil) Nos. 25617-25619 of 2013 has
permitted Siddartha Academy to withdraw the SLP after the
Government passed the necessary orders, i.e., granting permission
to continue with the lease. It was contended that Section 82 does
not annul governmental permissions granted prior to the
commencement of the Act. Therefore, the same could not be
deemed to be cancelled in terms of the provisions of Section 82(1)
16 (2012) 8 SCC 148
17 (2020) 10 SCC 729
18 (2009) 11 SCC 141
19 2010 SCC Online AP 461
14
of the 1987 Act. It is stated that the lease deeds dated 23.7.1964
and 20.4.1978 make it abundantly clear that the said lease deeds
were entered into by the appellant and Mutt with prior permission of
the Government. It is further argued that the lease deeds were for
the purpose of construction and running a factory, therefore, the
land cannot be said to be an agricultural land.
24.Mr. Salve further relied upon the communication dated 17.11.1994
from Hyderabad Urban Development Authority to contend that the
land falls within the Zonal Development Plan for Kukatpally Zone
approved on 25.04.1986 and is earmarked as an industrial area as
per the said Plan. Thus, it was argued that Endowments Tribunal
wrongly held the land to be agricultural despite the reason that no
issue was framed. The finding is based on the basis of an
observation in the order passed by the High Court in Writ Petition
No. 24440 of 2010 filed by the lessee. It is also argued that the
judgment of the High Court in Siddartha Academy that the land is
agricultural and lease stands terminated is legally untenable. The
said order was affirmed in appeal on 1.3.2013
20
, holding that the
use of the land for non-agriculture purpose is immaterial for the
purpose of Section 82 of the 1987 Act.
25.It has been argued that Urban Land (Ceiling and Regulation) Act,
1976 was passed in the year 1976 w.e.f. 17.2.1976 and that the
lands at Kukatpally became urban lands. Therefore, the urban lands
are the lands situated within the limits of an urban agglomeration
20 Writ Appeal Nos. 488, 489 and 490 of 2011
15
and referred to as such in the master plan and where there is no
master plan, any land within the limits of an urban agglomeration
and situated in any area included within the local limits of a
municipality (by whatever name called), a notified area committee,
a town area committee, a city and town committee, a small-town
committee, a cantonment board or a panchayat. Therefore, with the
enactment of the aforesaid Act, the agricultural land changed to
non-agricultural urban land.
26.It is contended that the term of payment of land revenue are
standard boiler plate clauses and no land revenue has ever been
paid by the lessee for the leased inam lands.
27.The arguments raised by the lessee has been controverted by the
Mutt that nature of land was agriculture and by operation of Section
82 of the 1987 Act, the lease stands statutorily cancelled. It is
argued that the nature of land is important to be considered and not
the purpose to which the land is to put to use by the lessee. It is
further pointed out that validity of Section 82 has been upheld by
this Court in a judgment reported as State of A.P. v. Nallamilli
Rami Reddy & Ors.
21
, wherein it was held that the object of
Section 82 of the 1987 Act is to protect the interests of the religious
institutions and to safeguard such institutions from the “grip of rich
and powerful persons”.
28.It is also pointed out that the 1987 Act was preceded by a report
made by a Commission headed by Justice C. Kondaiah, former Chief
Justice of the Andhra Pradesh High Court. Para 1.18.1 of the report
21 (2001) 7 SCC 708
16
reads thus:
“It is stated that all concerned who are interested in the
charitable or religious institutions have stated that the temple
authorities are facing innumerable difficulties in the
management of the landed properties of the institutions, the
income is very meagre, not worth-mentioning, and in some
cases it is nil, although the institution owns large extent of
lands. Reasons thereof is the provisions of the Tenancy Act,
attitude of the persons in possession and enjoyment for
several years, the lands belonging to these institutions are
mostly in the hands of the rich and powerful sections against
whom the concerned authorities are experiencing difficulties
to dispossess them from the lands. The trustees or archakas
are in enjoyment of the lands kept Benami in the names of
their relations, etc. The authorities also are in the collusion
with them. The rents paid by the tenants are nominal fixed
decades back. The Estimates Committee also expressed the
same opinion.”
29.It is averred that the Endowments Tribunal and the High Court have
concluded that the lease stands statutorily terminated in terms of
Section 82(1) of the 1987 Act. The Khasra Pahanis are prepared only
in respect of agricultural land under Rule 8 of Andhra Pradesh
(Telangana Area) of Land Census Rules, 1954. Such Rules have been
framed under Andhra Pradesh (Telangana Area) Tenancy and
Agricultural Lands Act, 1950. The Khasra Pahanis show the land as
dry agricultural land and as cultivable and uncultivable. The nature
of the land is described as “sand soil”, “irrigability”, “trees” and
“kharif”. The Khasra Pahanis for the year 1954-55 and 2003-04
show that the land is dry agricultural land and also shows as
cultivable and uncultivable land. The land is described as “sand
soil”, “irrigability”, “trees”, “kharif”, which shows that reference is
made to agricultural lands apart from the fact that the lands were
17
inam lands. It is further pointed out that land revenue of Rs.714-27
was demanded from the lessee on 04-08-1980 by the Mutt in terms
of the lease deeds dated 23.07.1964, 14.09.1966, supplementary
lease deed dated 21.03.1969 and lease deed dated 20.04.1978.
30.The Mutt also relied upon notifications dated 25.04.1963 and
27.05.1975 published under Section 4 of the Land Acquisition Act,
1894 intending to acquire the land for the purpose of Andhra
Pradesh Housing Board. The land therein is described as a dry land.
It is further pointed out that the acquisition has not been concluded
but the notification has been referred to for pointing out the nature
of the land. The order dated 30.11.1976 passed by the A.P. Land
Reforms Tribunal under Section 8(1) of the A.P. Land Reforms
(Ceiling on Agricultural Holdings) Act, 1973 shows that the land was
considered to be within the ambit of the statute dealing with the
ceiling of the agricultural land, though the land was exempt from
the surplus area proceedings under Section 23 of the aforesaid Act.
31.The lease deeds further contemplate payment of land revenue at
the enhanced rate for use of land for non-agricultural purpose. The
use of land for non-agricultural purposes leads to enhance land
revenue. It is contended that the Assistant Commissioner has
submitted a report on 16.12.2008 wherein the land in question was
found to be agricultural and was the basis to proceed under the
1987 Act.
32.It is also argued that the Competent Authority, the then Deputy
Commissioner could initiate suo moto proceedings under Section
18
82(1) of the 1987 Act. It is also argued that no application was
submitted by the lessee to convert the land to non-agricultural use
under Rule 70 of the Andhra Pradesh (Telangana Area) Land
Revenue Rules, 1951. It is also argued that the argument of the
lessee before the Endowments Tribunal was that the leased land in
question, though registered as agricultural land, but has been used
for non-agricultural purposes. The Tribunal thus held that even if
land is being used for non-agricultural purposes, it is still an
agricultural land. The relevant extract from the order reads thus:
“6). (ii). (b). (i). (a). ……….On the other hand, the contest of
the Respondents is that the lease lands in question are
though registered as agricultural lands, from purpose of lease
and in use by the lessees for than agricultural as observed in
Ex.83 order point-2 at pages 8 and 9, it is only a non-
agricultural immovable property lease to govern by Sec.82(4)
of the Act, that there is no finding by the High Court to hold
the lands in question as agricultural in the writ petition
24440/2010 order dated 20.1.2011 and in the absence of
which an observation even between the parties inter se is not
Res-Judicata or obiter or estoppel from disputing now the
nature of the lease lands….
6). (ii). (b). (i). (d). In fact, the petition schedule lands of the
2
nd
Applicant Math is recorded as per the Ex.A17 pahanies
and A18 G.Os as Inam and Agricultural lands. Since the
petition schedule lands are in use after Ex.A1-4 lease deeds
by Respondents for non-agricultural (commercial/industrial)
purposes as observed in Ex.83 order point-2 for consideration
at pages 8 and 9, whether it changes the nature of the land
from agricultural to non-agricultural……..Thus, the subject
matter of the leases covered by Ex.A1-4 are the agricultural
lands though in other than agricultural purposes in use by
any of the Respondents and the leases stand terminated by
statutory operation of law from the above as per Sec.82(1
and 2) of the Act from the time the Act, 30/87 came in to
force for none of the Respondents are within the meaning of
landless poor agriculturists.”
19
33.It is contended that Section 160 of the 1987 Act gives it an over-
riding effect and that the provisions of 1987 Act shall apply
notwithstanding any compromise agreement, scheme, judgment,
decree or order of a Court, Tribunal or other authority. Thus, by
necessary implication, the leases would be governed by the statute.
34.It is argued that the lessees were fully aware of the issue before the
Tribunal that it is a statutory cancellation of lease of agricultural
land. The Mahant of the Mutt was confronted with the document
Ex.R-3, subsequently named Ex.B-3, which was an order passed by
the Joint Collector in appellate proceedings on the issue of grant of
occupancy rights wherein the finding was returned that the use of
land was for non-agricultural purposes. In the evidence affidavit, no
document was produced showing that the nature of the land was
non-agricultural. In Writ Petition No. 24440 of 2010 filed by the
lessee challenging the jurisdiction of the Tribunal, the High Court
dealt with the arguments raised by the Mutt, respondent No. 5 in
the said proceedings, that the lease is of agricultural land. The
argument recorded is as under:
“9. …..The counsel would place reliance on Section 82 and
contend that in any event the lease stood cancelled by virtue
of sub-section (1) thereof, which provides that a lease of
agricultural land held by other than a landless poor person on
the date of commencement of the Act shall notwithstanding
any other law for the time being in force stands cancelled……
10. The Learned Senior Counsel for the Petitioner in reply
would submit that the previous W.P. No.9681 of 2008 was not
concerned with the issue relating to formation of opinion and
if it is accepted that the subject land is agricultural land, then
the Rules issued in G.O.Ms. No.866 upon which earlier refer-
20
ence was placed have no application to the subject
lands……..”
35.Still further, the High Court had called for the record of the Tribunal
in the abovesaid writ petition (WP No. 24440 of 2010). It quoted
from the reports dated 29.1.2008 of the Inspector and dated
24.1.2008 of the Assistant Director and recorded as under:
“The lands and in question are agriculture lands. As per
Section 82(1) any lease of the Agriculture land belong into
any institution are held by a person who is not a landless
poor person stands cancelled. This Section is upheld by the
Honourable Supreme Court.”
Further I submit that during the scrutiny of the proposals
submitted u/s 83 the Amended Act 33/2007 has come into
force and the powers vested in the Deputy Commissioner U/s
83 of the Act 30/87 are conferred to the Endowments Tribunal.
Since it has not been constituted, the proposals have not
been submitted to the Deputy Commissioner, Endowments
Department, Hyderabad for initiating Action U/s 83.”
36.The order passed by the High Court on 20.1.2011 has attained
finality. The fact that the land is agricultural land was recorded in
the order passed, therefore, the lessee cannot plead ignorance of
the fact that the land in question was not an agricultural land.
37.It is averred that in the written submissions submitted before the
Tribunal, the stand of the lessee is not that it was not aware of the
report of the Assistant Commissioner or that no issue was framed
on the land being agricultural in nature, therefore, not covered
under Section 82(1) of the 1987 Act. The specific issue framed by
the Tribunal was whether the leases are not in subsistence by virtue
of Section 82 of the 1987 Act. It is further contended that the
21
parties have gone to trial fully aware of the real issues involved,
then even assuming that the issue was not framed, it is not open to
the parties to challenge the procedure. Reliance is placed upon
Swamy Atmananda & Ors. v. Sri Ramakrishna Tapovanam &
Ors.
22
, Nedunuri Kameswaramma v. Sampati Subba Rao
23
,
Nagubai Ammal & Ors. v. B. Shama Rao & Ors.
24
.
38.It is argued that the Tribunal has rightly held that the letter dated
24.2.1964 (Ex.B-40) or the order dated 10.5.1976 (Ex.A-16) does
not amount to valid sanction as there is no application of mind to
show how it is necessary or beneficial for the Mutt. The letter dated
24.2.1964 (Ex.B-40) is not addressed to either of the parties and
that in terms of Rule 331 of the Hyderabad Endowment Rules, lease
for 99 years could not be granted. Moreover, it is stated that the
order of the Joint Collector under the Inams Abolition Act dated
25.7.2007 is erroneously relied upon by the lessee. The finding that
the land was being used for non-agricultural purpose is an incidental
finding in the context of a different legislation and therefore cannot
be applied to interpret Section 82 of the 1987 Act. It is also
contended that the Inams Abolition Act has no application to the
land in question in view of Section 1(2)(i) of the said Act till
26.12.1985, and thereafter by virtue of proviso to Section 4(1) of
the said Act which exempts the charitable and religious institutions
from the operation of the Inams Abolition Act.
22 (2005) 10 SCC 51
23 AIR 1963 SC 884
24 AIR 1956 SC 593
22
39.It is also argued that the lessee has not made any application for
use of the land for non-agricultural purpose without prior permission
under Andhra Pradesh (Telangana Area) Land Revenue Rules, 1951
and that no document has been produced to prove the nature of the
land as non-agricultural.
40.The argument of the State is that the term ‘agricultural land’ as
mentioned in Section 82(1) of the 1987 Act has nothing to do with
the purpose of which the leased lands were being used. Therefore,
whether the lands were being used for agricultural purpose or not is
irrelevant for the application of Section 82(1) of the 1987 Act. The
object and purpose of the 1987 Act is to safeguard the interests of
the charitable and religious institutions and to revert and resume
the agricultural lands of the religious institutions to them for their
own benefit and well-being. Therefore, the legislature has sought to
statutorily cancel all leases of ‘agricultural land’ belonging to
charitable and religious institutions. Reliance was placed upon
judgment of the High Court in Siddartha Academy. It is also
argued that Section 82(4) of the 1987 Act deals with lease of any
immovable property other than agricultural land belonging to or
given or endowed for the purpose of any charitable or religious
institution subsisting on the date of commencement of the 1987 Act
and states that the same shall continue to be in force subject to the
rules as may be prescribed under sub-section (3). Rule 15 of the
2003 Rules is to the following effect:
“15. Any lease or license granted, continued or allowed to be
23
continued otherwise than in accordance with rules shall be
null and void:
Provided that, any lease or license subsisting by the
date of notification of these rules of any immovable property
or right may be continued according to such terms and
conditions and also on the rent payable thereto, till the expiry
of the period of the lease or license as may be decided upon
by the Additional Commissioner on a proposal received from
the Executive Officer or Chairman or the Person-in-
Management as the case may be.”
41.It is thus sought to be contended that in respect of agricultural land,
the lease stands cancelled whereas in respect of land other than
agricultural land, the property can be used only in terms of Rule 15
of the 2003 Rules.
42.The order of Joint Collector dated 25.8.2007 was argued to not
operate as estoppel as the issues are different. The issues before
the Joint Collector were in respect of nature of lands as inam lands
and if the said lands were used as agricultural lands on the crucial
date. The issue was not whether the lands are agricultural lands on
the appointed date that is 1.11.1973.
43.It is therefore contended that the lessee had sufficient knowledge,
awareness and opportunity to deal with and make representations
in respect of the issue relating to leased lands being ‘agricultural
lands’ and hence, the leases stand statutorily cancelled. The report
of the Assistant Commissioner of Endowment referred to by the
High Court in Writ Petition No. 24440 of 2010 is relied upon. Even in
the written arguments, the issue was raised that the lands in
question are agricultural lands. In fact, the lessee has referred to
24
evidence with respect to agricultural lands without ever attempting
to lead evidence on this issue. It is also argued that the
Endowments Tribunal has framed an issue as to whether the lease
deeds are in subsistence owing to the provisions of Section 82 of
the 1987 Act.
44.We have heard learned counsel for the parties at length. The
question required to be examined is whether in terms of Section 82
of the 1987 Act, lease of agricultural land stands statutorily
cancelled. It is not required to be examined at this stage as to
whether the lessee is the present lessee on account of change of
the name of original lessee M/s Indian Detonators Limited or IDL
Chemicals Limited. To determine the primary question, the following
aspects need to be examined:
(a)What is the effect of the order dated 25.8.2007 passed by the
Joint Collector under the Inams Abolition Act?
(b)Whether the land in question is agricultural land to which the
Telangana Charitable and Hindu Religious Institutions and
Endowments Act, 1987 is applicable and the lease in favor of
the lessee stands cancelled in terms of Section 82(1) of the
Act?
(c)Whether the parties went to trial with the knowledge that the
land in question was agricultural land in the proceedings
before the Endowments Tribunal?
(a)What is the effect of the order dated 25.8.2007 passed by the Joint
Commissioner under the Inams Abolition Act?
45.The Inams Abolition Act abolished all inams (grants) by the Nizam.
The Act contemplates adjudication of matters in relation to grant of
occupancy rights and certificates in respect of inam lands covered
25
by the Act and vested with the Government, inquiry into the nature
and history of such lands, determination of compensation payable
to the Inamdar and apportionment thereto. Sections 4 to 8 of the
Inams Abolition Act came into force on 1.11.1973 i.e., the date of
grant of occupancy rights under the Inams Act. It appears that the
Mutt entered into an agreement with one Kalyani Narsing Rao. He
filed an application for grant of occupancy rights. Such application
was allowed by the Revenue Divisional Commissioner on
27.11.2004. The Revenue Divisional Officer was considering an
application for issuance of occupancy rights certificate to the
general power of attorney holder of the Mutt. The application was
allowed and it was concluded as under:
“In view of the aforesaid findings the case has been
examined with reference to the Act and Rules in force. It is
revealed that as per the material on record, the lands in
question are inam lands and the applicants are owners. In
view of the aforesaid the application seeking the issuance of
Occupancy Rights Certificate is allowed as prayer for.
In view of the above and also as per the Judgment of
Honourable High Court of Andhra Pradesh, in WP No. 9497 of
2003, dated 29-7-2004, the land in question, falls under
section 9(2) of the AP (T.A) Abolition of Inams Act, 1955.
Therefore, the applicants are declared as owners of the land
in question under section 9(2) of the AP (T.A) Abolition of
Inams Act, 1955.”
46.In an appeal under Section 24 of the Inams Abolition Act, a finding
was returned that the land in question was converted into for non-
agricultural use before 1973. The issue no. 2 therein was to the
effect whether the land in question was under agriculture as on the
crucial date. The finding on the said issue is that it was being used
26
for non-agricultural purposes. The Inams Abolition Act was enacted
to abolish the inams and to confer occupancy rights to the tiller.
Since the land was an inam land given to the charitable and
religious institutions, it was found to be exempt from the operation
of the Inams Abolition Act. The Joint Collector held that the land is
an inam land and in terms of proviso to Section 4(1) of the Act, the
inam was held by or for the benefit of charitable and religious
institutions, therefore, no person shall be entitled to be registered
as an occupant and the institution alone shall be entitled to be
registered as the occupant. It is the said order of the Revenue
Divisional Officer which was set aside by the Joint Collector. It was
held as under:
“The property was given by Nizam for the Mutt but not to
Sagar Das. It is clear that Mutt only can sell the property after
taking prior permission from the Endowment Department but
not the Mahanth in his individual capacity. Baba Sagar Das is
not an institution and he is only a Mahanth appointed by
Endowment Department. The Revenue Divisional Officer has
considered irrevocable G.P.A. and the decree obtained by
Kalayani Narsinga Rao and concluded that Sagar Das is
entitled to 60% and K. Narsinga Rao is entitled for 40% share
in the properties of Mutt and further held that the G.P.A.
holder can maintain the case before him under Rule 5 of the
Rules under A.P. (T.A.) Abolition of Inam Rules, 1955 declared
the applicants K. Narsinga Rao and Baba Sagar Das as
owners of the properties belonged to Mutt. The order of the
Revenue Divisional Officer is based on assumption and
presumption and the orders speaks that there are no
documents marked and no evidence was adduced on either
side.
The Commissioner of Endowment Department vide its
Proceedings No.F1/47775/2004-I dated 25-11-2006 has
removed the said Sagar Das from the post of Mahant of
Udasin Mutt Hussaini Alam, Hyderabad and framed charges
for alienating the properties including execution of the G.P.A.
27
dated 1-9-1981 in favour of K. Narsinga Rao and misleading
the Revenue Divisional Officer and acted adverse to the
interest of the institution.
xxx xxx
Therefore in respect of Inams claimed by charitable and
religious institutions, no individual in entitled to maintain a
claim and religious institution alone is entitled to have locus
standi. Therefore, the order of the Revenue Divisional Officer,
declaring the GPA holder of Mahanth as owner of the land U/s
9(2) of the Act, to say the least, is mischievous, perverse and
totally illegal.
In view of the above facts, the Revenue Divisional Officer has
no jurisdiction to exercise powers U/s 9 of A.P. (T.A.) Abolition
of Inams Act, 1955 and declare a person as owner of inam
lands, much less a person who has no locus standi at all.
Further inam lands in question are being claimed by a
religious institution and will be covered by appropriate
provisions of the Act. The impugned Proceedings of Revenue
Divisional Officer, Chevella in Case No.L/76/2000 dated 27-
11-2004 wherein the respondent No.1 is declared as owner of
the land in question U/s 9(2) of the A.P. (T.A.) Abolition of
Inams Act, 1955 is perverse, without jurisdiction, abinitio
void, and hereby declared as a nullity.
The land in question being inam lands vest with the State
upon abolition of Inams as per the Section 3 of the Act.
Further as the lands were converted to non-agricultural use
as on the crucial date and continue to remain so as on date,
proceedings need to be initiated before competent court, and
not revenue authorities, under the appropriate provisions of
the Act. As the lands are claimed by religious institution a
claim under inam abolition Act can be maintained only in the
name of the institution and not by individuals.
The appeal is accordingly disposed of.”
47.The scope of inquiry under the said Act was restricted to grant of
occupancy rights which was negated for multiple reasons including
the fact that the land was not under agriculture on the crucial date.
Since the Inams Abolition Act is a special Act in respect of abolition
of inams and conferment of occupancy rights, it is an order not by a
28
Tribunal having a plenary jurisdiction. The Tribunal under the Inams
Abolition Act had limited jurisdiction to decide the questions arising
under the Inams Abolition Act. Therefore, the findings recorded in
such proceedings neither act as estoppel, nor res judicata for any
other proceedings.
48.In Hope Plantations Ltd., it was held that estoppel works in the
same proceedings, and also in subsequent suits between the same
parties in which the same issue arises. Reliance has been placed
upon the following part of the order, which reads thus:
“26. …….These two aspects are “cause of action estoppel”
and “issue estoppel”. These two terms are of common law
origin. Again, once an issue has been finally determined,
parties cannot subsequently in the same suit advance
arguments or adduce further evidence directed to showing
that the issue was wrongly determined. Their only remedy is
to approach the higher forum if available. The determination
of the issue between the parties gives rise to, as noted
above, an issue estoppel. It operates in any subsequent
proceedings in the same suit in which the issue had been
determined. It also operates in subsequent suits between the
same parties in which the same issue arises…..”
49.The proceedings under the Inams Abolition Act were initiated by a
Power of Attorney holder claiming occupancy rights on the basis of
an agreement to sell. The Mutt was represented by a Power of
Attorney holder who was claiming independent rights, therefore, the
previous proceedings were not between the same parties as the
Mutt was not a party in its own rights but through an attorney who
was claiming independent right in himself. Therefore, the findings
recorded therein are not relevant or binding in respect of
proceedings under another statute, enacted for different objective
29
to protect the inam land given to the charitable and religious
institutions.
50.The Inams Abolition Act is not applicable to the Mutt for the reason
that the Act itself is not applicable to charitable and the religious
institutions in terms of Section 1(2)(i) up to 26.12.1985 and
thereafter in terms of first proviso to Section 4(1) of the Inams
Abolition Act. Thus, any finding recorded by the Joint Collector is
only for the purposes of negating the claim of Power of Attorney
holder claiming occupancy rights. It has been categorically held by
the Joint Collector that the Act is not applicable to the Mutt.
(b)Whether the land in question is agricultural land to which the
Telangana Charitable and Hindu Religious Institutions and
Endowments Act, 1987 is applicable and the lease in favor of the
lessee stands cancelled in terms of Section 82(1) of the Act?
51.The primary argument of the learned counsel for the lessees is that
there was no pleading that the land in question was agricultural
land, therefore, the lessees were not made aware of the fact that
the lease stands statutorily cancelled. The said argument is not
tenable for the reason that the Inspector in his report dated
29.1.2008 and 16.12.2008 reported that the lands in question are
agricultural lands and that lease of such lands stands cancelled. It
was also mentioned that the validity of Section 82 has been upheld
by this Court in Nallamilli Rami Reddi wherein this Court held as
under:
“12. It is plain that religious institutions fall into a separate
class and lands held by them have a special character in
respect of which tenancies had been created and these
30
tenancies are sought to be put to an end to for resumption of
lands for better management thereof. It is clear that the
tenants under the religious institutions form a special class by
themselves and such classification is made, so far as tenants
are concerned, to achieve the object of protecting the
interests of the religious institutions. Therefore, we do not
think, any of the principles which result in hostile
discrimination would be applicable to the present case.”
52.The lessee had earlier filed Writ Petition No. 24440 of 2010
challenging the continuation of proceedings before the Endowments
Tribunal. In the counter affidavit dated 7.12.2010 filed on behalf of
the Mutt, it was stated that the leases have become null and void
under Section 82 of the 1987 Act.
“2. …It is our case that the leases have been null and void
under section 82 of Andhra Pradesh Charitable and Hindu
Religious Institutions & Endowments Act, 1987 …”
53.The writ petition was dismissed on 20.1.2011. The High Court also
noticed the argument of the Mutt that in terms of Section 82, the
leases stood cancelled.
“The counsel would place reliance on Section 82 and contend
that in any event the lease stood cancelled by virtue of sub-
section (1) thereof, which provides that a lease of agricultural
land held by other than a landless poor person on the date of
commencement of the Act shall notwithstanding any other
law for the time being in force stands cancelled.”
54.The High Court had called for the record of the fourth respondent
i.e., the Assistant Commissioner (Endowment) wherein, the
following statement was made:
“The lands and in question are agricultural lands. As per
Section 82(1) any lease of the agriculture land belong into
31
any institution are held by a person who is not a landless
poor person stands cancelled. This Section is upheld by the
Honourable Supreme Court.”
55.The argument that the land is agricultural land was raised by the
Mutt and also recorded in the report of the Inspector. Thus, it is
noted that lessees were well aware of the nature of the land as
agricultural land. Such order of the High Court has attained finality.
The following point for consideration was culled down by the
Endowments Tribunal:
“(1) Whether the leases for 99 years covered respectively, by
Ex.A1-3 in favour of R1 and by Ex.A4 in favour of R2,
executed by the 2nd Applicant Math for the entire petition
schedule property are not in subsistence by virtue of the
provisions of the Endowments Act 30/87 (Sec.82 r/w. the rules
made there under vide GOMS. Nos. 866 & 379 of 2003 with
amendments to it in GOMS No. 160 of 2010)?”
56.The Mutt has based its arguments on the premise that the land in
question is agricultural land. The precise argument raised by the
lessee in the written arguments submitted before the Endowments
Tribunal is as under:
“14. The contention of the Applicant No. 2 Mutt is that the
land covered by Ex.P1 to P4 are agricultural lands. It is
submitted that the said contention is incorrect since the lands
were taken by the Respondents for non-agricultural purpose
and for industrial use. The Applicant No. 2 Mutt is aware of
this fact. In page 2 of the legal notice dated 24.08.2007
(Ex.P11) issued by the Counsel for the Applicant No. 2 Mutt to
Gulf Oil Corporation Ltd. (R3), it was stated that the lease
agreements were permitted to be entered between my client
Sri Udasin Mutt, Hussaini Alam, Hyderabad and M/s. Indian
Detonators Limited/IDL Chemicals Limited. The above said
companies were entitled to use the lands totally admeasuring
an extent of Acs 539-38 guntas in terms of the lease
agreement which was more the less to be used as safety,
32
testing zone etc., as amended by the Government under the
provisions of the Explosives Act and Rules. The Pahanies for
the year 2003-2004 filed by the Applicant No. 2 Mutt vide
Ex.P17 (A-D) say that the lands covered by Ex.P1 to P4 are
“dry” lands. There is no mention in these documents to
suggest that the said lands are “dry agricultural lands”. The
Khasra Pahani for the year 1954-55 filed by the Applicant No.
2 Mutt vide Ex.P20 say that the said lands are “Isuka Nela”,
which means sandy soil. It is common knowledge that on
“sandy soil”, it is not possible to do agriculture. Except these
two documents, the Applicant No. 2 Mutt has not filed any
other document(s) to establish that the lands covered by
Ex.P1 to P4 are agricultural lands. On the other hand, the
Respondents have filed Ex.R33 which is a letter written by Dy.
Commissioner of Endowments to the Commissioner of
Endowments. In the said letter, it was stated that “…the
proposed land is neither cultivable nor useful for even grazing
purpose, as it is covered by rocks…”. Apart from Ex.R33, the
order dated 25.08.2007 of the Joint Collector, R.R. District has
stated that “…the land in question is used for non-agricultural
purpose…It is, therefore, submitted that the lands covered by
Ex.P1 to P4 are non-agricultural lands right from the
commencement of the lease and therefore, the contention of
the Applicant No. 2 that the lands are agricultural lands is
devoid of merit.”
57.A perusal of the written arguments, as reproduced above, shows
that the lessees have submitted that the land is being used for non-
agricultural purposes. The entire argument is based upon use of the
land for non-agricultural purposes. The nature of land is distinct
from the use of the land. Since the land is agricultural land, its use
for non-agricultural purposes would not alter the nature of the land
as an agricultural land. Section 82 of the 1987 Act mentions “any
lease of agricultural land….”, therefore, the lease has to be of
agricultural land irrespective of the use to which the lessee may put
such agricultural land to. The language of the statute refers to
nature of the land and not the use thereof. Therefore, even in terms
33
of the written arguments raised by the lessee before the Tribunal,
the use of land for non-agricultural purposes would be irrelevant for
statutory cancellation of the lease of agricultural lands under
Section 82 of the 1987 Act.
58.The distinction between agricultural and non-agricultural land
sought to be drawn from the reading of Section 3 of the Andhra
Pradesh Non-Agricultural Assessments Act, 1963 repealed by the
A.P Agricultural Land (Conversion for Non-Agricultural Purposes) Act,
2006, is not tenable. The distinction between the categories of land
leads to consequence of higher assessment in the case of non-
agricultural land. The lessee has not led any evidence that they are
paying levy as per the rates fixed under this statute as that of non-
agricultural land.
59.A learned Single Judge of the Andhra Pradesh High Court in a
judgment reported as A.P. Punjabi Sabha, Hyderabad v. Joint
Collector, Hyderabad
25
while considering the provisions of Inams
Abolition Act held that for the purpose of this Act, if the land is put
to non-agricultural purposes, it is not covered by the Act in
question. The Collector would assume jurisdiction to decide the
claims under Section 10 only if the lands were put to agricultural
use. It was held as under:
“19. The term ‘agricultural or non-agricultural purposes’ is not
defined under the Act. However, for the purpose of Section 9,
it is sufficient if the land is put to non-agricultural purposes.
The reason or justification is outside the scope of enquiry
under the provisions of the Act. The Collector will assume
jurisdiction to decide the claims under Section 10 only, if the
25 2004 SCC OnLine AP 689
34
lands were put to agricultural use. Though in Form I, the
relevant date is mentioned as 20.7.1955, in view of
subsequent legislative changes and judicial pronouncements,
the crucial date now stands as 1.11.1973. In Sections 4 and 5,
the expression ‘cultivates personally’ is used, whereas in
Sections 6, 7 and 8, the expression ‘under his personal
cultivation’ is employed. They constitute the jurisdictional
facts, for exercise of power under Section 10. An inamdar,
Kazim-e-kadim or tenant may have an excellent ground or
justification, for not undertaking activities of cultivation in the
inam lands. But once such land is found to be not under
cultivation, the Collector ceases to have power to deal with
the same under Section 10. Further, the contesting
respondents clearly stated that the land is put to non-
agricultural purposes.”
60.On the other hand, in respect of the 1987 Act, the Division Bench of
the High Court in Siddhartha Academy held that use of land for
non-agricultural purpose is immaterial for the purpose of statutory
cancellation of lease deed, as provided under Section 82(1) of the
said Act. It was held as under:
“A reading of the above provision would show that the
essential object and purpose of the provision is with regard to
regulating the leases of agricultural lands and all such leases
except those held by landless poor persons stand cancelled.
Explanation I also defines the expression ‘landless poor
person’. For applying Section 82, the test therefore is whether
the lease is that of agricultural lands. On the facts of the
present case, it cannot be disputed that the lease in favour of
the appellant is that of agricultural land. The mere fact that
the appellant/lessee has put the said land for non-agricultural
use therefore does not make any difference as the purpose for
which the leased property is used is immaterial for the
purpose of Section 82 of the Act. The leases therefore
statutorily stand cancelled with regard to all agricultural lands
and are only saved to the extent of leases in favour of
landless poor persons. The learned Single Judge therefore has
rightly held against the writ petitioner and the orders of
eviction passed against them by applying Section 82(1) of the
Act requires no interference.”
61.The SLP (Civil) Nos. 25617-25619 of 2013 stood withdrawn on
35
27.2.2017. Thus, the order passed by the Division Bench had
attained finality.
(c) Whether the parties went to trial with the knowledge that the land
in question was agricultural land in the proceedings between the
parties before the Endowments Tribunal?
62.The judgments in Bachhaj Nahar and Ram Sarup Gupta are not
applicable to the facts of the present case wherein, it has been held
that it is well settled that in the absence of pleading, evidence, if
any, produced by the parties cannot be considered. It is also equally
settled that no party should be permitted to travel beyond its
pleading and that all necessary and material facts should be
pleaded by the party in support of the case set up by it. The object
and purpose of pleading is to enable the adversary party to know
the case it has to meet.
63.The judgments relied upon by Shri Salve such as Ibrahim Uddin,
and Biraji alias Brijraji are not helpful to the arguments raised. In
fact, the lessees were aware of the controversy in respect of nature
of land and its statutory cancellation, therefore, the lack of
pleadings or the evidence loses its significance. The 1987 Act is a
Code in itself providing for constitution of the Endowments Tribunal,
appeal, revision and review. The strict rule of procedure
contemplated by the Code of Civil Procedure, 1908 in respect of
pleadings and evidence cannot be extended to the Tribunal
constituted for specific purpose. Since the lessees were aware of the
fact that the Mutt claims the land to be agricultural land and
36
statutory cancellation of the lease was being averred for the reason
that the leased land was agricultural, therefore, the lessees cannot
complain of any violation of principles of natural justice or strict
rules of pleading as is required under the Code of Civil Procedure,
1908.
64.In fact, this Court in Nedunuri Kameswaramma held that since
parties went to trial fully knowing the rival case and led all the
evidence not only in support of their contentions but in refutation of
those of the other side, it cannot be said that the absence of an
issue was fatal to the case. It was held as under:
“5. No doubt, no issue was framed, and the one, which was
framed, could have been more elaborate; but since the
parties went to trial fully knowing the rival case and led all the
evidence not only in support of their contentions but in
refutation of those of the other side, it cannot be said that the
absence of an issue was fatal to the case, or that there was
that mistrial which vitiates proceedings. We are, therefore, of
opinion that the suit could not be dismissed on this narrow
ground, and also that there is no need for a remit, as the
evidence which has been led in the case is sufficient to reach
the right conclusion. Neither party claimed before us that it
had any further evidence to offer.”
65.In Swamy Atmananda, it was held that if the parties went to the
trial knowing fully well the real issues involved and adduced
evidence in such a case, without establishing prejudice, it would not
be open to a party to raise the question of non-framing of a
particular issue.
66.Therefore, the parties were aware of the controversy about the
nature of the land. Thus, the lessee cannot be permitted to turn
37
around to dispute the nature of land leased to them.
67.We find merit in the argument raised by the lessees that the lease
executed prior to the commencement of 1987 Act would not be
annulled for the reason that there was no prior approval. The leases
were granted prior to the commencement of the 1987 Act but even
under the 1966 Act, Section 70 prohibited lease of the inam land if
its term exceeded six years. The lease of land measuring 143 acres
vide lease deed dated 23.7.1964; 257 acres 19 guntas vide lease
deed dated 14.9.1966 and 2 acres 32 guntas vide lease deed dated
21.3.1969 were not preceded with any prior approval of the
competent authority. Reliance is placed upon the note dated
24.2.1964 but such note is part of the decision-making process as
no approval was communicated to either the lessee or the lessor or
to any person. In fact, the said communication is a note of Second
Secretary to Government Home (Endowments-III) Department that
lease for a term of 99 years cannot be construed as a transfer of
ownership of the endowed lands by outright sale and is prohibited
under Rule 331 of Hyderabad State Endowment Rules and
Regulations. It is not a communication addressed either to the
lessee or to the lessor or to any other person or institution. The
regulation 331 prohibits the possession over and transfer of the
nuzli lands (tax bearing lands) from generation to generation in
future. The Regulation 331 is as follows:
“331. In the light of experience regarding the possession
over and transfer of the nuzli lands (tax bearing lands)
from generation to generation in future endowed lands
will not be let out on nuzul so that endowments may be
38
safeguarded.”
68.The note dated 24.02.1964 relied upon to argue that it leads to
approval of lease is not a decision which can be said to be effective
and binding in view of the judgements of this Court. Recently, this
Court in Nareshbhai Bhagubhai v. Union of India
26
, held as
under:
“27. In Bachhittar Singh v. State of Punjab [Bachhittar
Singh v. State of Punjab, AIR 1963 SC 395] a Constitution
Bench held that merely writing something on the file does
not amount to an order. For a file noting to amount to a
decision of the Government, it must be communicated to
the person so affected, before that person can be bound
by that order. Until the order is communicated to the
person affected by it, it cannot be regarded as anything
more than being provisional in character.
28. Similarly, in Shanti Sports Club v. Union of
India [Shanti Sports Club v. Union of India, (2009) 15 SCC
705 : (2009) 5 SCC (Civ) 707] this Court held that notings
recorded in the official files, by the officers of the
Government at different levels, and even the Ministers, do
not become a decision of the Government, unless the
same are sanctified and acted upon, by issuing an order in
the name of the President or Governor, as the case may
be, and are communicated to the affected persons.
29. In Sethi Auto Service Station v. DDA [Sethi Auto Ser-
vice Station v. DDA, (2009) 1 SCC 180] , this Court held
that: (SCC pp. 185-86, paras 14 & 16)
“14. It is trite to state that notings in a departmen-
tal file do not have the sanction of law to be an ef-
fective order. A noting by an officer is an expres-
sion of his viewpoint on the subject. It is no more
than an opinion by an officer for internal use and
consideration of the other officials of the depart-
ment and for the benefit of the final decision-mak-
ing authority. Needless to add that internal notings
are not meant for outside exposure. Notings in the
file culminate into an executable order, affecting
the rights of the parties, only when it reaches the
26 (2019) 15 SCC 1
39
final decision-making authority in the department,
gets his approval and the final order is [Ed.: The
word between two asterisks has been emphasised
in original as well.] communicated [Ed.: The word
between two asterisks has been emphasised in
original as well.] to the person concerned.
***
16. To the like effect are the observations of this
Court in Laxminarayan R. Bhattad v. State of Ma-
harashtra [Laxminarayan R. Bhattad v. State of
Maharashtra, (2003) 5 SCC 413] , wherein it was
said that a right created under an order of a statu-
tory authority must be communicated to the per-
son concerned so as to confer an enforceable
right.”
69.The only approval of land measuring 173 acres and 19 guntas is
dated 10.5.1976. Though there is a reference to the communication
of the Commissioner Endowment dated 29.4.1975 in respect of
three previous lease deeds, but there is no communication to the
Mutt either of the letter dated 10.5.1976 or of 29.4.1975. Section
82 does not make any exception of the lease granted with approval.
The approval is mentioned only in Section 75 of the 1987 Act. Even
if such approval is treated to have been granted in respect of the
entire land, the lease granted with approval is relevant only for the
purposes of Section 75 of the 1987 Act and not for the purposes of
Section 82 of the said Act.
70.Similarly, the argument that the land now falls within the urban
agglomeration in view of the enactment of the Urban Land (Ceiling
and Regulation) Act, 1976 is again not tenable. Firstly, the said Act
stands repealed on 22.3.1999. Still further, the mere fact that the
land has come within the municipal limits would not make the land
40
as non-agricultural land. It only means that the land within the
municipal limits can be utilized or the buildings be constructed in
terms of the provisions of the Municipal Laws applicable thereto.
71.Similarly, the argument that the land in question falls with the Zonal
Development Plan for Kukatpally as per the communication of the
Hyderabad Urban Development Authority is again not tenable. The
Zonal Development Plan is future planning of the development of
the area. Thus, in future, the land can be used only according to
Zonal Development Plan but that does not mean that the
agricultural nature of the land has ceased to exist. Therefore, the
said communication is also not tenable.
72.In Civil Appeal No. 7761 of 2014, there is a direction to consider the
request of the lessee. However, Rule 15 of the Telangana Charitable
and Hindu Religious Institutions and Endowments Immovable
Properties and other Rights (Other than Agricultural Land) Leases
and Licenses Rules, 2003 will have no application to the agricultural
land in view of the fact that Section 82(3) and (4) is applicable only
to the land and property which is not agricultural. Since the land
has been found to be agricultural, therefore, 2003 Rules would not
be applicable to the land in question. Thus, the direction to consider
the request of the lessee to consider the grant of lease under Rule
15 is untenable.
73.Consequently, Civil Appeal Nos. 7759-7760 of 2014 are dismissed
whereas Civil Appeal No. 7761 of 2014 is allowed, setting aside the
direction to consider the request of the lessee under Rule 15 of the
41
Telangana Charitable and Hindu Religious Institutions and
Endowments Immovable Properties and other Rights (Other than
Agricultural Land) Leases and Licenses Rules, 2003.
.............................................J.
(HEMANT GUPTA)
.............................................J.
(VIKRAM NATH)
NEW DELHI;
SEPTEMBER 13, 2022.
42
Legal Notes
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