IN THE HIGH COURT OF ANDHRA PRADESH : AMARAVATI
HON'BLE MR. JUSTICE PRASHANT KUMAR MISHRA, CHIEF JUSTICE
AND
HON'BLE MR. JUSTICE M. SATYANARAYANA MURTHY
WRIT APPEAL NO.704 OF 2021
(Proceedings through Physical mode)
W.A.No.704 of 2021
Ballapu Suresh,
s/o Venkateswara Rao,
aged 34 years,
R/o 3-58C, Pothatlanka Village,
Kollur Mandal,
Guntur District & another ..... Appellants
Versus
Kolli Rama Koteswara Rao,
S/o.Dasaradha Ramaiah,
Aged 67 years,
R/o.D.No.216, Pothartlanka Village,
Kollur Mandal,
Guntur district and 5 others .... Respondents
Counsel for the Appellants : Mr. D.V. Sasidhar
Counsel for Respondent Nos.1 & 2 : Mr. Ghanta Rama Rao
Counsel for Respondent No.5 : Mr. K. Madhava Reddy,
Standing Counsel for
Endowments
CJ & MSM,J
WA_704_2021
2
JUDGMENT
Dt.01.12.2021 (Per M. Satyanarayana Murthy, J) Aggrieved by the order passed by the learned single Judge in W.P.No.9603 of 2021 dated 07.10.2021, the present writ appeal is preferred under Clause 15 of Letters Patent by Appellants/Respondent Nos. 5 & 6, whereunder, W.P.No.9603 of 2021 was allowed by the learned Single Judge, setting aside the auction said to have been conducted on 26.04.2021 and all subsequent orders, confirmation of such auction by the endowment authorities. Consequently, Respondent Nos.5 & 6 were directed to handover possession of the land to the petitioners therein within two weeks from the date of receipt of the order, which the petitioners were entitled to take possession of the land with police assistance, in the event of resistance by Respondent Nos. 5 & 6.
The appellants herein were Respondent Nos. 5 & 6, Respondent Nos. 1 & 2 herein were the petitioners therein, Respondent Nos. 3 to 6 herein were Respondent Nos.1 to 4 in W.P.No.9603 of 2021. For the sake of convenience, parties will be referred as arrayed in the writ petition.
The petitioners (Respondent Nos. 1 & 2 herein) filed W.P.No.9603 of 2021 claiming writ of mandamus, declaring the action of the Respondent Nos. 2 & 3 therein in conducting the auction of leasehold rights in respect of land admeasuring Ac.3-00 cents and Ac.2-65 cents respectively situated in Sy.No.24 of Potharlanka Village, Kolluru Mandal, belonging to Sri Malleswara Swamy Temple, without renewing the leasehold rights in favour of the petitioners, without considering their representations dated 05.04.2021 and 22.04.2021 and without following CJ & MSM,J WA_704_2021 3 due process of law, as illegal, arbitrary, unconstitutional and violative of settled principles of natural justice.
The petitioners are claiming to be small and marginal farmers, residing at Potharlanka Village, Kollur Mandal, Guntur District, eking out their livelihood by cultivating agricultural land belonging to Sri Malleswara Swamy Temple admeasuring Ac.3-00 cents and Ac.2-65 cents respectively (henceforth referred as „subject land‟). The petitioners and their ancestors continued in possession of the subject land as lessees and those leases were governed by Section 82 of the Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act, 1987 (for short „Act No.30 of 1987‟).
The second respondent - Assistant Commissioner of Endowments conducted enquiry under the Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments (Lease of Agricultural Land) Rules, 2003 (for short „Rules, 2003‟) and issued proceedings dated 26.09.2003 certifying that the petitioners are landless poor persons. The petitioners have been cultivating the said land by duly complying the terms and conditions of the tenancy proceedings dated 26.09.2003, by paying Maktha regularly without any default or delay to the temple authorities. While the matter stood thus, the third respondent issued Notice dated 04.05.2020 calling upon the petitioners to submit Land Less Poor (hereinafter referred as „LLP‟) Certificates for grant of renewal of tenancy rights for the period 2020 to 2023. Accordingly, the petitioners approached Mandal Revenue Officer, Kolluru Mandal and after due verification, the Mandal Revenue Officer submitted the LLP certificates to CJ & MSM,J WA_704_2021 4 the third respondent/Executive Officer requesting to grant renewal of leasehold rights of the land. The petitioners also made representation dated 05.04.2021 enclosing copy of LLP certificates and requested the third respondent/Executive Officer to grant renewal of tenancy rights for the subject land belonging to Sri Malleswara Swamy Temple.
It is contended that, the third respondent/Executive Officer did not take any action even after receiving LLP certificates for renewal of tenancy rights. Therefore, having left with no option, the petitioners/Respondent Nos.1 & 2 made a representation dated 22.04.2021 to Respondent Nos. 2 & 3, explaining the facts and circumstances, while requesting to renew the leasehold rights of the subject land, but no action was taken either by Respondent No. 2 or by Respondent No.3 on the representation. The petitioners are in possession and enjoyment of the subject property as LLP lessees of the temple land and have been producing LLP certificates, obtained from the office of Mandal Revenue Officer for every three years and third respondent renewing leasehold rights in terms of Section 82 of Act No.30 of 1987 and Rules, 2003.
To the surprise of the petitioners, they came to know that the respondents are proceeding with the auction of the tenancy rights of the subject land belonging to the Sri Malleswara Swamy Temple. Though the petitioners tenancy is subsisting, despite pendency of the representations dated 05.04.2021 and 22.04.2021, proposed to conduct auction of leasehold rights of the subject land on 26.04.2021.
CJ & MSM,J WA_704_2021 5 Since the petitioners are LLP lessees of the temple land under the third respondent, the third respondent ought to have renewed the lease in favour of the petitioners having issued notice to the petitioners calling upon them to produce LLP certificates, but without following the procedure, i.e. to issue Notice under Rule 5 of the Rules, 2003, trying to dispossess the petitioners even without following the procedure contemplated under Act No.30 of 1987 and Rules, 2003. Therefore, the act of Respondent Nos. 2 & 3 is unconstitutional, violative of settled principles of natural justice and violative of provisions of Act No.30 of 1987 and Rules, 2003.
On account of conducting auction of leasehold rights, the petitioners will be deprived their right to livelihood, thus, the existing right of the petitioners i.e. legally enforceable right is likely to be infringed or invaded, and sought a relief as claimed above.
The third respondent/ Executive Officer of Sri Malleswara Swamy Vari Devasthanam, Potharlanka, filed counter affidavit, admitting that the petitioners were granted leasehold rights on production of LLP certificates obtained from the second respondent on commencement of Act No.30 of 1987 and the leasehold rights are being extended from time to time for every three years on production of LLP certificates. As the lease was expired in the year 2020, the third respondent issued notice dated 04.05.2020 to the petitioners in compliance of Rule 5 of the Rules, calling upon the petitioners to produce LLP certificates, enabling the third respondent to renew the lease. But, the petitioners did not comply with the mandatory requirement for renewal of lease under the Rules and CJ & MSM,J WA_704_2021 6 thereby, proposed to conduct leasehold rights in terms of Rule 7 & 8 of Rules, 2003.
It is also further contended that, the LLP certificates should be obtained from the second respondent/Assistant Commissioner of Endowments as per Section 82 of Act No.30 of 1987 and Rules, 2003, who allegedly produced certificates issued by Mandal Revenue Officer, who is incompetent in terms of Act No.30 of 1987 and Rules, 2003. Therefore, the auction of leasehold rights was conducted on 26.04.2021 and possession was delivered to Respondent Nos.5 & 6 as lessees and the auction was confirmed by the second respondent (Assistant Commissioner) vide proceedings D.Dis.B2/3055/2021 dated 28.04.2021, as such, Respondent Nos. 5 & 6 (appellants herein) became lessees of the land and they are in possession and enjoyment of the property. Respondent No.3/Executive Officer emphatically denied the other allegations and requested to dismiss the writ petition.
Upon hearing argument of learned counsel for the petitioners and respondents, the learned single Judge passed the impugned order, setting-aside the auction of leasehold rights conducted on 26.04.2021 and all subsequent orders, confirmation of such auction by the endowment authorities, while directing Respondent Nos. 5 & 6 (appellants herein) to handover possession of the land to the petitioners/Respondent Nos. 1 & 2 herein within two weeks from the date of receipt of the order, granting permission to the petitioners to take police assistance, in case of resistance and to deliver possession by Respondent Nos. 5 & 6 (appellants herein).
CJ & MSM,J WA_704_2021 7 The present writ appeal is filed by appellants herein/ Respondent Nos.5 & 6 on various grounds, mainly on the ground that, no notice was served on the appellants/Respondent Nos.5 & 6 and that, the petitioners raised plantation crop in an extent of Ac.0-40 cents, which was clandestinely taken away by the second respondent/Assistant Commissioner by virtue of interim order dated 06.05.2021. The Respondent Nos. 5 & 6 (appellants) have participated in the auction held on 26.04.2021 along with others and became highest bidders, immediately after the auction of the leasehold rights, possession of the land was handed over to appellants on 28.04.2021, as their lease was approved by the Assistant Commissioner/fourth respondent herein. Thus, the appellants herein are in active possession and cultivating the land, except Ac.0-70 cents of land, in which, standing crop of second petitioner/ second respondent herein was allowed to be harvested as per the orders of this Court. But, the said fact was not taken into consideration and issued a direction even without considering the material on record, including the counter affidavit filed by the third respondent/Executive Officer, committed a grave error in issuing a direction, which is not claimed by the petitioners (Respondent Nos. 1 & 2 herein), by exercising discretionary and extraordinary jurisdiction under Article 226 of the Constitution of India and requested to set-aside the order passed by the learned single Judge.
During hearing, Mr. D.V.Sasidhar, learned counsel for the appellants herein/Respondent Nos.5 & 6, while reiterating the contentions raised in the grounds of appeal, specifically contended that, CJ & MSM,J WA_704_2021 8 in the absence of production of LLP certificates by the petitioners/ Respondent Nos. 1 & 2 herein, conducting auction of leasehold rights by the third respondent/Executive Officer and confirmation by the second respondent/Assistant Commissioner is in accordance with Rules, 2003, more particularly, when a notice under Rule 5 was issued as per Rules, 2003. Despite notice issued in Form-II under Rule 5, the petitioners/Respondent Nos. 1 & 2 herein did not submit their LLP certificates, though they are conscious of requirement to furnish such certificates for renewal of lease for another three years in terms of the Rules framed under the Act. Even the petitioners admitted in the writ petition that they used to obtain LLP certificates from the second respondent/Assistant Commissioner for every three years and getting extension of leasehold rights, but, for the reasons best known to them, though notice was issued on 04.05.2020 calling upon the petitioners to produce LLP certificates obtained from the competent authority, they did not produce the same, but approached this Court seeking a discretionary relief and this Court cannot exercise such discretion in favour of the petitioners who did not comply with the mandatory requirement and requested to allow the writ appeal, setting-aside the order passed by the learned single Judge of this Court in W.P.No.9603 of 2021 dated 27.10.2021.
Whereas, Mr.Ganta Rama Rao, learned Senior Counsel representing Mr.Ganta Sridhar for the petitioners/Respondent Nos.1 & 2, vehemently contended that, it is the duty of the second respondent/Assistant Commissioner to issue LLP certificates for every three years after conducting necessary enquiry and the petitioners are not required to approach the second respondent/Assistant Commissioner for issue of CJ & MSM,J WA_704_2021 9 LLP certificates. When the second respondent did not issue LLP certificates, the lease is deemed to be renewed. Even otherwise, the petitioners produced LLP certificates issued by the Mandal Revenue Officer along with representation, but no action was taken either by the second respondent for issue of LLP certificates after conducting necessary enquiry to extend leasehold rights for another three years or the third respondent renewed the lease. Therefore, when Respondent Nos.2 & 3 did not discharge their public duty and for their failure, the petitioners cannot be made to suffer and cannot be deprived the right to cultivate their land, which is the source of their livelihood, being landless poor persons and such deprivation amounts to violation of fundamental right guaranteed under Article 21 of the Constitution of India i.e. right to life. Therefore, the auction conducted by the third respondent and confirmed by the second respondent/Assistant Commissioner vide proceedings in D.Dis.B2/3055/2021 dated 28.04.2021 are illegal and arbitrary.
Learned Senior Counsel also contended that, based on the judgment in W.P.No.14504 of 2021 dated 28.07.2021, the learned single Judge issued a direction allowing the writ petition, while concluding that once a person has been recognized as landless poor person, no further renewal is required to be obtained by the said person. However, it would be open to the endowment authorities to review the said certificates every three years. Hence, the petitioners are not required to get the certificates renewed or obtain fresh LLP certificates from the second respondent and it is the duty of the second respondent to conduct enquiry and issue such certificates. Therefore, the order under challenge does not suffer CJ & MSM,J WA_704_2021 10 from any illegality or irregularity, warranting interference of this Court in the intra-court appeal and requested to dismiss the writ appeal, while confirming the order passed by the learned single Judge of this Court in W.P.No.9603 of 2021 dated 27.10.2021.
Whereas, Mr. K. Madhava Reddy, learned Standing Counsel for third respondent - Sri Malleswara Swamy Devasthanam would supplicate that the petitioners did not comply with the mandatory requirement of production of LLP certificates after expiry of three years period of lease, despite issue of notice dated 04.05.2020 by the third respondent, the third respondent/Executive Officer held public auction of leasehold rights, as mandated under Section 82 of Act No.30 of 1987 and Rules 2003 framed thereunder, the same was confirmed by the second respondent, delivered possession of the property to Respondent Nos.5 & 6 (appellants herein) and they are in possession and enjoyment of the same, except Ac.0-70 cents of land, where the crop is in existence, in view of the orders of this Court. Thus, the learned Standing Counsel supported the appellants in all respects, while requesting to pass appropriate orders in the writ appeal.
Considering rival contentions, perusing the material available on record, the points that arise for consideration are as follows:
1. Whether extension of leasehold rights for every three years on submission of LLP certificates obtained from the second respondent on commencement of Act No.30 of 1987 is sufficient to renew the leasehold rights for every three years granted in favour of landless poor persons initially?
2. Whether the second respondent/Assistant Commissioner of Endowments is under obligation to conduct enquiry for issue of LLP CJ & MSM,J WA_704_2021 11 certificates in favour of LLP lessees of agricultural land of the Temple? Whether LLP lessees are required to approach the second respondent to obtain LLP certificates for every three years for renewal of the lease?
3. Whether failure of the petitioners/Respondent Nos. 1 & 2 herein to produce LLP certificates issued by the second respondent/Assistant Commissioner of Endowments, despite notice in Form-II under Rule 5 of Rules, 2003, entitled them to claim extension of leasehold rights for another three years. If so, whether the open auction of the leasehold rights conducted by the third respondent/Executive Officer during pendency of the representations dated 05.04.2020 and 22.04.2020 with Respondent Nos.2 & 3 is legal and valid? P O I N T No.1:
The first and foremost contention raised by Mr. Ganta Rama Rao, learned Senior Counsel representing Mr. Ganta Sridhar is that, LLP certificates issued by the second respondent/Assistant Commissioner, on the date of commencement of Act No.30 of 1987 is sufficient to continue the leases for every three years and the petitioners (LLP lesser) are not required to obtain LLP certificates for every three years from the second respondent/Assistant Commissioner and it is for the second respondent to conduct necessary enquiry as to the entitlement to claim LLP certificates by the LLP lessees for extension of leasehold rights of the land belonging to the temple. As such, the writ petitioners are not required to furnish LLP certificates for extension of leasehold rights after expiry of three years lease period in the year 2020. But, this contention was strenuously refuted by Mr. K. Madhava Reddy, learned Standing Counsel for third respondent/Executive Officer. Taking advantage of the proviso to Rule 3 of the Rules, 2003, added by G.O.Ms.No.425 Revenue CJ & MSM,J WA_704_2021 12 (Endowments-I) Department dated 09.11.2015 to contend that the LLP lessees are required to obtain certificates from the Assistant Commissioner having territorial jurisdiction as the economic status of any person is not constant.
In the present facts of the case, grant of lease in favour of the petitioners on the date of commencement of the Act being landless poor persons, on production of certificates issued by the second respondent as to the economic status of the writ petitioners, extension of lease for every three years, furnishing of LLP certificates by the petitioners and renewal of lease upto 2020 are not in dispute.
At this stage, in view of the specific contentions raised by Mr. Ganta Rama Rao, learned Senior Counsel appearing for the writ petitioners; Mr. K. Madhava Reddy, learned Standing Counsel for Sri Malleswara Swamy Vari Devasthanam and the findings recorded by the learned single Judge, it is necessary to advert to the provisions of Act No.30 of 1987 and Rules, 2003.
Section 82 of Act No.30 of 1987 deals with lease of agricultural lands. Clause (2) deals with right of purchase by the tenant whose lease is not less than six years continuously. The proviso thereto, permits small and marginal farmers who are not able to purchase the land will continue as tenants, provided, if they agree to pay at least two third of the market rent for similarly placed lands as lease amount. Therefore, small and marginal farmers are entitled to continue their lease in the event they are unable to purchase the land in terms of Clause (2) of Section 82.
CJ & MSM,J WA_704_2021 13 Explanation-II to Section 82 defined the words "small and marginal farmers" and it is apposite to extract the same for better appreciation of the facts and it is extracted hereunder:
"Explanation II: For the purpose of this sub-section, small and marginal farmer means a person who being a lessee is holding lands in excess of acres 0.25 cents of wet land or acres 0.50 cents of dry land over and above the ceiling limits of acres 2.50 wet or acres 5.00 dry land respectively they may be allowed to continue in lease subject to payment of 2/3rd of prevailing market rent and excess land held if any more than the above limits shall be put in public auction.
To claim benefit under proviso to Section 82(2), it is for the lessees to satisfy the requirements prescribed under Explanation II. But, the provision is silent as to the procedure for obtaining such LLP certificates. But, the Rules framed under Act No.30 of 1987 vide G.O.Ms.No.379 Revenue (Endowments-I) Department dated 11.03.2003 and amended by G.O.Ms.No.425 Revenue (Endowments-I) Department dated 09.11.2015 deals with issue of certification etc. Rule 3 of the Rules, 2003, prescribes the procedure for determination of landless poor persons. According to Rule 3(1), immediately after coming into force of these rules, if any cultivating tenant claims to be a landless poor person, the Assistant Commissioner having territorial jurisdiction shall enquire into and decide whether the cultivating tenant is a landless poor person as defined in Section 82 after giving a reasonable opportunity to the cultivating tenant and to the Executive Authority of the concerned institution or Endowment. Thus, the Assistant Commissioner is the competent person to enquire into the economic status of a cultivating tenant and issue of certificates.
CJ & MSM,J WA_704_2021 14 According to the proviso, the status of every Land Less Poor tenant shall be reexamined once in every three years and appropriate orders shall be passed by the Assistant Commissioner having territorial jurisdiction as the economic status of any person is not a constant. It is equally applicable to cases where persons already declared as Land Less Poor tenants shall also be reviewed once in every three years henceforth. Therefore, the Assistant Commissioner of Endowments having territorial jurisdiction has to reexamine and review the economic status to Land Less Poor Lessees for every three years. Act No.30 of 1987 and Rules, 2003, are silent as to the nature of enquiry and at whose instance, the said enquiry has to be conducted. But, the power is vested with the Assistant Commissioner to conduct an enquiry.
The learned single Judge in Paragraph No.4 of the order observed that the question of review of their financial status for every three years is decided by the learned Single Judge in W.P.No.14504 of 2021 dated 28.07.2021. In the said judgment, learned Single Judge held that, once a person has been recognized as a landless poor person, no further renewal is required to be obtained by such persons. But, this finding of the learned Single Judge is diagonally opposite to the requirement under the proviso to Rule 3 of the Rules, 2003, as amended by G.O.Ms.No.425 Revenue (Endowments-I) Department dated 09.11.2015 and the same is extracted hereunder:
"Provided the status of every Land Less Poor tenant shall be re-examined once every three years and appropriate orders shall be passed by the Assistant Commissioner having territorial jurisdiction as the economic status of any person is not a consent. It is equally applicable to cases where persons already declared as Land Less Poor tenants shall also be reviewed once every three years henceforth."
CJ & MSM,J WA_704_2021 15 The last sentence of the proviso made it clear that, obtaining certificates from Assistant Commissioner as LLP tenant is applicable to cases where persons already declared as landless poor tenants and their case shall be reviewed once in every three years henceforth. It appears that the learned single Judge did not advert to this proviso added by G.O.Ms.No.425 Revenue (Endowments-I) Department dated 09.11.2015 and swayed away with the submission of learned counsels. Therefore, finding that tenants who were declared as landless poor as per the Rules and their financial status need not be reviewed for every three years is hereby set-aside, while holding that the tenants who are claiming to be landless poor persons who continue their tenancy or lease basing on proviso to Section 82(2) of Act No.30 of 1987 shall furnish LLP certificates for every three years obtained from the second respondent/Assistant Commissioner of Endowments.
P O I N T No.2:
The next question is that, whether the tenant is required to approach the Assistant Commissioner for obtaining certificates or whether the second respondent/Assistant Commissioner himself has to review the economic status of a tenant/lessee of the temple land.
The contention of Mr. Ganta Rama Rao, learned Senior Counsel is that, it is the duty of the Assistant Commissioner to re-examine and review the economic status of Land Less Poor persons/tenants for every three years, as economic status is not a constant. The Rules did not specify the procedure for obtaining such certificates. But, in case of land CJ & MSM,J WA_704_2021 16 held by LLP as tenant after expiry of three years period, the „Executive Authority‟ as defined under Sub-rule (2) of Rule 2 of the Rules, 2003 shall issue Notice in Form-II annexed to the Rules for the purpose of renewal of lease under Section 82(2) of Act No.30 of 1987, giving an option either to purchase the leased land or such portion thereof, as he desires, in accordance with the conditions set out in Rule 6 or to continue as tenant paying at least 2/3rd of the market rent for the similarly placed lands as lease amount. If he fails to exercise his option within (30) days of the receipt of the Notice in Form-II, his lease shall automatically stand cancelled on the expiry of (30) days in which event he shall handover possession and pay all rents due up to that date, failing which he shall be evicted invoking the provisions under Sections 84, 85 and 86 of the Act, treating him as an encroacher under Section 83(4) of the Act.
Notice in Form-II under Rule 5(2) of the Rules, 2003, is in the annexure of the Rules. Even according to the proforma of Notice given to the cultivating tenant either to purchase leased land or portion of the said land in terms of Section 82(2) of Act No.30 of 1987 or to continue the lease in terms of the proviso thereto, an option shall be exercised within 30 days. But, the proforma is silent as to production of certificates by the petitioners to continue as lessee on production of LLP certificates. A conjoint reading of proviso to Section 82(2) of Act No.30 of 1987 and Rule 3 of Rules 2003, it is clear that economic status of LLP has to be renewed for every three years and certificates shall be issued. The Assistant Commissioner is having jurisdiction within a particular area and the second respondent is not required to maintain the register of CJ & MSM,J WA_704_2021 17 LLPs and he is not expected to know the lessees or tenants of various extents of land within his jurisdiction where the tenants may be more than 100 or 1000 depending upon the jurisdictional area of the second respondent/Assistant Commissioner. Therefore, it is highly impracticable for the Assistant Commissioner to review the economic status of the LLP tenants for every three years, in view of number of tenants/LLP lessees. But, to obtain renewal of lease, it is for the tenant to produce LLP certificates after review by the second respondent. Since the tenant is aware about expiry of three years lease, on an expiry, atleast on receipt of Notice in Form-II under Rule 5(2) of the Rules, 2003, he shall approach the second respondent and obtain LLP certificates on review of economic status of the writ petitioners. Therefore, adopting a practical approach, we find that it is appropriate for the petitioners to approach the second respondent/Assistant Commissioner for review of their economic status and for issue of LLP certificates, but the second respondent/Assistant Commissioner cannot suo motu exercise such power of review for every three years. Accordingly, the point is answered. P O I N T No.3:
Admittedly, on receipt of Notice in Form-II under Rule 5(2) of the Rules, 2003, the writ petitioners submitted representation to Respondent Nos. 2 & 3 annexing LLP certificates issued by the Mandal Revenue Officer, who is incompetent in terms of Rule 3 of the Rules, 2003 and requested to take appropriate action thereon.
CJ & MSM,J WA_704_2021 18 The representation discloses that the writ petitioners in compliance of Notice dated 04.05.2020 issued under Rule 5(2) by the third respondent, the petitioners submitted a copy of LLP certificates issued by the revenue authorities in the month of September, 2020. Though, he submitted LLP certificates and requested renewal of leasehold rights, the office has not issued renewal of tenancy rights over the said land and finally requested to renew the lease for the said land based on certificates issued by the revenue authorities. Instead of approaching the second respondent, conveniently the petitioners obtained certificates from Mandal Revenue Officer, who is incompetent to issue such certificates for the purpose of Act No.30 of 1987 and Rules, 2003, framed under the Act. Based on such certificates, the petitioners requested the third respondent to renew the leasehold rights. The third respondent is not entitled to renew the lease based on such LLP certificates issued by incompetent officer i.e. Mandal Revenue Officer. Therefore, the request of the petitioners vide representations dated 05.04.2021 and 22.04.2021 was not attended either by Respondent No. 2 (Assistant Commissioner) or Respondent No.3 (Executive Officer) and the same cannot be said to be an illegality, since the LLP certificates produced by the petitioners were obtained from Mandal Revenue Officer is not valid for the purpose of renewal of lease in terms of Rule 3. Hence, the third respondent/Executive Officer is not valid under obligation to extend the lease when they did not express their consent to continue as tenants on production of LLP certificates on renewal of economic status by the second respondent. Thus, the petitioners failed to exercise their option under Rule 5(2), but the notice issued under Rule 5(2) is not a verbatim of the notice in Form-II of annexure of Rules, 2003. In those CJ & MSM,J WA_704_2021 19 circumstances, this Court cannot compel the third respondent to renew the lease based on such representation submitted on receipt of notice allegedly issued under Rule 5(2) of the Rules, 2003.
As per Rule 5(2) of Rules, 2003, even in case of failure to produce or to continue as tenants, their occupation can be treated as an encroacher and the third respondent is entitled to take steps under Sections 84, 85 & 86 of Act No.30 of 1987. But, here, the writ petitioners/Respondent Nos.1 & 2 were not evicted by exercising power under Sections 84, 85 & 86 of Act No.30 of 1987. The petitioners shall be deemed to be in possession as „Encroachers‟ and thereby, the alleged auction of leasehold rights would not confer any right on Respondent Nos. 5 & 6 (appellants herein) to continue as lessees/tenants and the petitioners were not evicted by following procedure under Sections 84, 85 & 86 of Act No.30 of 1987, though they were treated as encroachers under Section 83(4) of Act No.30 of 1987.
Yet, one of the contentions of learned counsel for the appellants herein/Respondent Nos. 5 & 6 is that, the petitioners did not claim any relief which the learned single Judge granted. It is true that, no such relief is claimed by the petitioners. However, the Court can mould the relief in appropriate cases. But, as a whole, both the writ petitioners and third respondent/Executive Officer did not comply with the mandatory procedure prescribed under Rules 3 to 5 of Rules, 2003. In those circumstances, this Court has no option except to set-aside the order passed by the learned single Judge. In view of the findings recorded in Point No.1, while permitting the petitioners to apply for issue of LLP certificates to the second respondent and on making such application, CJ & MSM,J WA_704_2021 20 the second respondent is directed to enquire into the economic status of the writ petitioners, issue appropriate LLP certificates, subject to their entitlement, based on the enquiry. In case, the petitioners fail to apply for issue of LLP certificates within two weeks from today, or in case, the second respondent denies issuance of LLP certificates to the petitioners on completion of enquiry, the third respondent is entitled to take steps strictly adhering to Rules, 2003.
In view of the foregoing discussion, we hold that the order passed by the learned single Judge in W.P.No.9603 of 2021 dated 07.10.2021 is contrary to the proviso to Rule 3 and the same is hereby set-aside.
In the result, writ appeal is allowed, setting-aside the order in W.P.No.9603 of 2021 dated 07.10.2021, leaving it open to the writ petitioners (Respondent Nos. 1 & 2 herein) to approach the second respondent and apply for issue of LLP certificates within two (02) weeks from today and on submission of such application within one month thereafter, the second respondent is directed to complete the enquiry and renew LLP certificates, subject to result of the enquiry. Thereafter, the petitioners are directed to furnish the same to the third respondent and the third respondent is directed to proceed in accordance with Rules, 2003, in either of the cases of furnishing LLP certificates by the petitioners or for their failure, strictly adhering to Rule 5(2) of Rules, 2003.
Consequently, miscellaneous petitions pending, if any, shall also stand closed.
PRASHANT KUMAR MISHRA, CJ M. SATYANARAYANA MURTHY, J Sp