Ballapu Suresh, vs . Kolli Rama Koteswara Rao,
2021 Latest Caselaw 4916 AP

     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

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

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

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

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

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

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

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

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

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

(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

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

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

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

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

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

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

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

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