V NARASIMHASWAMY IYANGAR Vs. GOVERNMENT OF ANDHRA PRADESH

JUDGEMENT

(1.) THE writ petitioners are in appeal having failed before the learned single Judge in getting G. O. Ms. No. 29 dated 7-1-1986 quashed. They are admittedly Archakas of the temple Bhavanarayanaswamy Temple at Guntur. Under the impugned G. O. , Ac. 16. 77 acres of land belonging to the temple in question inter alia other lands of other institutions were purported to be sold to the fifth respondent for providing house-sites to weaker sections and for the purpose, the power under Section 108 of the Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act 17 of 1966 (hereinafter referred to as "the Act") was invoked to exempt the applicability of the procedure laid down under Section 74 (1 ) (c) of the Act. It was the appellants' case that in respect of the land a scheme was settled by the Commissioner of Endowments, Madras in 1934. The scheme became the subject-matter of a suit O. P. No. 152 of 1934. which was decided by the District Judge, Guntur on 13-2-1935, with consent of parties holding that the predecessors-in-interest of the writ appellants were to retain possession of the land towards their remuneration. While they were continuing in possession of the land, another scheme was settled by the Commissioner of Endowments under the Madras Hindu Religious Endowments Act, 1934 on 11-4-1943. Since the second scheme purported to interfere with the possession of the land by the predecessor-in-interest of the appellants, O. S. No. 3 of 1943 was filed before the District Judge, Guntur challenging the scheme. The suit was decreed on 21st February 1944 declaring that as long as the archakas rendered service satisfactorily and faithfully in the temple they shall be in possession and enjoyment of the archakatvam service inam lands. Elsewhere, in the decree it was also stated: "the plaintiffs, members of Kandlagunta alias Vedantam family shall be in possession of the suit inam lands mentioned in schedule annexed to this scheme in conformity with the compromise in O. P. No. 152 of 1934 District Court, Guntur. " (para 10) Since the impugned G. O. purported to interfere with the rights of the appellants to the land and sought to permit alienation of the land in favour of the 5th respondent, the petition under Article 226 of the Constitution of India was filed. The learned single Judge dealing with the case held that Section 108 of the Act, which has a wide sweep, enables the Government to do away with the operation of any of the provisions of the Act and that since that is the gamut of the power, the Government can as well dispense with the notice to a person like the petitioners and hence the impugned G. O. cannot be held to be illegal. He also observed that even otherwise it is quite reasonable that for the deprivation of the rights in respect of the land wherein the petitioners have got a limited right of enjoyment, they are fully compensated by payment of compensation.

(2.) ASSAILING the judgment of the learned single Judge, it is submitted by the learned Counsel for the appellants that the rights of the appellants that the rights of the appellants are protected under Section 37 (2) first proviso of the 1966 Act and as such the statutorily protected right of theirs cannot be taken away merely by the application of the provisions of Section 108 exempting the provisions of Section 74. Section 37 of the 1966 Act dealt with qualifications and remuneration to archakas and Sub-section (2) provides that remuneration to be received by them shall be as determined by the Commissioner, Deputy Commissioner or Assistant Commissioner, as the case may be, in accordance with the provisions contained in the Second Schedule to the Act. In the first proviso to Sub-section (2) of Section 37 a saving was given in the following words: "provided that nothing in this section shall apply to archakas whose remuneration is governed by any scheme, decree or order of a Court, tribunal or other authority, or by any compromise, in force immediately before the commencement of this Act. "

(3.) THE saving so made fully applies to the possessory rights of the appellants as guaranteed under the decree passed in O. S. No. 3 of 1943 on 21-2-1944 and hence, by the terms of the statute, the right to possession of the lands stood protected as long as the archakas continue to render satisfactory service. Section 74 of that Act dealt with alienation of immovable property and stipulates that no alienation of any kind mentioned therein was to be made and if made to be null and void unless it was made with the prior sanction of the Commissioner. The section laid down detailed procedure in accordance which the alienation was to be made. What the G. O. dated 7-1-1986 purport to provide was to exempt the applicability of the provisions of Section 74 of 1966 Act only. The notification never referred to Section 37. Hence what was purported to be exempted was only the compliance with the procedure or rigours of Section 74 only. Since Section 37 (2) proviso gave a substantive right to the appellants to possess the land, that right could not be defeated only because of a notification under Section 108 exempting the applicability of the provisions of Section 74. Taking such view, we also feel that it is not necessary for us to examine the further question as to whether the powers under Section 108 could be exercised to wipe out the substantive rights under Section 37 (2), if at all such a power is purported to have been exercised, since that question does not directly arise before us.