Peddinti
Venkata Muraliranganatha Desika Iyengar & Ors Vs. Government of Andhra
Pradesh & Anr [1996] INSC 52 (12 January 1996)
Ramaswamy,
K.Ramaswamy, K.Hansaria B.L. (J) K. Ramaswamy, J.
CITATION:
1996 AIR 966 1996 SCC (3) 75 JT 1996 (1) 234 1996 SCALE (1)298
ACT:
HEAD NOTE:
The
petitioners are challenging the constitutionality of Explanation II to Section
2(22) and Section 76 of the Andhra Pradesh Charitable and Hindu Religious
Institution and Endowments Act, 1987 [30 of 1987] [for short, "the
Act"] in this writ petition, apart from other provisions of the Act
challenge to which is decided in other connected matters. In this case we
confine our consideration to the validity of the above provisions. It is
contended in the writ petition and argued by Shri R. Venugopal Reddy, their
learned senior counsel, that ryotwari pattas having been granted under the
Andhra Pradesh (Andhra Area) Inams (Abolition and Conversion into Ryotwari) Act
[37 of 1956] [for short, "the Inams Abolition Act"] and the same
having attained finality, the legislature is devoid of power under the Act to
set at naught the effect of the grant of ryotwari patta to the archakas,
service holders or employees covered under the Act by a legislative side-wind.
It is their case that by grant of ryotwari patta in favour of the aforesaid
persons, they became absolute owners of the property. The legislature,
therefore, is devoid of competence to make the law, employing non obstante
clause, to take away their vested rights without compensation. Shri P.P. Rao,
learned senior counsel for the State, contended that since the legislature
abolished hereditary rights of archakas, service holders or other employees and
introduced payment of salary for them, the legislature is competent to enact
Section 76 and explanation II to the definition of 'endowment' under Section
2(22), divesting their title and vesting the same in the endowment or
institution as the case may be.
Section
2(22) of the Act defines religious endowment thus:
"2(22)
- 'religious endowments' means property (including movable property), and
religious offerings whether in cash or kind, given or endowed for the support
of a religious institution or given or endowed for the performance of any
service or charity of a public nature connected therewith or of any other
religious charity; and includes the institution concerned and also the premises
thereof.
Explanation
II :- Any Inam granted to an archaka, service holder or other employee of a
religious institution for the performance of any service or charity in
connection with a religious institution shall not be deemed to be a personal
gift to the archaka, service-holder or employee, notwithstanding the grant or ryotwari
patta to all archaka, service holder or employee under the Andhra Pradesh
(Andhra Area) Inams (Abolition and Conversion into Ryotwari) Act, 1956 but
shall be deemed to be a religious endowment." A reading of the section
would show that religious endowment means property including movable property
given or endowed for the support of a religious institution or given or endowed
for the performance of any service or charity of a public nature connected
therewith or of any religious charity and includes the institution connected
and also the premises thereof, Any inam granted to an archaka, service holders
or other employees of a religious institution for the performance of any
service or a charity in connection with the institution shall be deemed to be a
personal gift to the archaka, service holders or employee, notwithstanding the
grant of ryotwari patta to all archakas, service holders or employees under the
Inams Abolition Act, but shall be deemed to be a religious endowment. Section
76 of the Act reads thus:
"76.Prohibition
of transfer of lands granted for rendering service to a religious or charitable
institution or endowment:
(1)
Where, before or after the commencement of this Act, any person has been
granted a ryotwari patta in respect of any inam land given to a service holder
or other employee of a charitable or religious institution or endowment for the
purpose of rendering service to the institution or endowment then,
notwithstanding to the contrary in any other law for the time being in force or
in the deed of grant or of transfer or other document relating to such land it
shall be and shall be deemed never to have been granted and the lands covered
by such ryotwari patta shall not be transferred and shall be deemed never to
have been transferred and accordingly no right or title in such land shall vest
in any person acquiring the land by such transfer and a ryotwari patta in
respect of such land shall be deemed to have been granted in favour of the
institution or endowment concerned and thereafter the person in possession of
such load shall be deemed as an encroacher and the provisions in Sections 84
and 85 and shall apply.
(2) No
ryotwari patta holder in respect of the aforesaid land shall transfer any such
land and no person shall acquire any such land either by purchase, gift, lease,
mortgage, exchange or otherwise.
(3)
Any transfer or acquisition made in contravention of the provisions in
sub-Section (1) or sub-Section (2) shall be deemed to be null and void.
(4)
The provisions of Section shall apply to any transaction of the nature referred
to in sub-Section (2) in execution of a decree or order of a civil court or any
order or any other authority." Section 76, as amplified by its marginal
note indicates prohibition of transfer of land granted for rendering service to
a religious or charitable institution or endowment. Sub-Section (1) adumbrates
that where, before or after the commencement of the Act any person has been
granted a ryotwari patta in respect of any inam land given to a service holder
or other employee of a charitable institution or endowment for the purpose of
rendering service to the institution or endowment, notwithstanding anything to
the contrary in any other law for the time being in force or in the deed of
grant or of transfer or other documents relating to such land and shall be
deemed never to have been granted and the lands covered by such ryotwari patta
shall not be transferred and shall be deemed never to have been transferred.
Accordingly, no right or title in such land shall vest in any person acquiring
the land by such transfer and a ryotwari patta in respect of such land shall be
deemed to have been granted in favour of the institution or endowment
concerned. Thereafter, the person in possession of such land shall be deemed as
an encroacher and the provisions of Sections 84 and 85 of the Act shall apply.
Equally, sub-Section (2) issues an injunction against the holder of ryotwari patta
to transfer such land. The purchaser or a person acquiring such land either
purchase, gift, lease mortgage, exchange or otherwise acquires no title such
land. Such a transfer was declared null and void by operation of sub-Section
(3). Even an order or decree of a civil court or any order of any other
authority would also meet the same fate by operation of sub-Section (4)
thereof.
The
competency of the legislature to make this law, its deep impact on vested
rights and its sweep would be properly gazed and appreciated when we would look
into the provisions of the Inams Abolition Act which is a part of agrarian
reform forming part of the scheme to abolish an estate and conferment of ryotwari
patta on the tiller of the soil and the institution respectively and creation
of direct relationship of him with the State paying revenue assessment thereof.
The Inams Abolition Act was enacted under Entry 18 of List II of the Seventh
Schedule of the Constitution, viz., "Rights in or over the land, land
tenure including the relationship of the landlord and the tenant, transfer and
alienation of agricultural lands etc." The preamble of the Inams Abolition
Act envisages "an Act to abolish and convert certain inam lands into ryotwari
lands". The title of the Act itself indicates abolition of the inam lands
and conversion thereof into ryotwari lands. The Act had come into force on December 14, 1956 and it has been amended from time
to time. Similar provision is available in Telangana area of Andhra Pradesh.
Section 2(c) defines "Inam lands" to mean any land in respect of
which the grant in inam has been made, confirmed or recognized by the
government etc. Section 2(e) defines 'institution' to mean a religious or
charitable or an educational institution. Section 3 authorises the Tehsildar
either suo motu or on an application to determine the nature of the lands,
after enquiring (i) whether a particular land in his jurisdiction is an inam
land; (ii) whether such land is in ryotwari, zamindari or inam village;
(iii) whether
such land is held by any institution. The procedure in that behalf has been
provided in sub-sections (2) and (3) of Section 3 and the aggrieved person or
institution has been given right of appeal under sub-section (4) against the
decision of the Tehsildar to the Revenue Court within prescribed limitation therefore. Under sub- section
(5) the decision of the Revenue
Court shall be final.
The decision of the Tehsildar or Revenue Court is required to be published in the District Gazette under
sub- section (6) and also in any other prescribed manner. The decision of the Tehsildar
and the Revenue Court shall be binding, by operation of sub-section (7), on all
persons and institutions claiming an interest in any such lands notwithstanding
that such person or institution has not filed any application or a statement or
adduced any evidence or appeared or participated in the proceedings before the Tehsildar
or the Revenue Court, as the case may be. After publication, under sub-section
(6) of Section 3, the Tehsildar has been invested with power under Section 4 to
convert inam land into ryotwari land, The person or institution or the tenant
in occupation is declared entitled to ryotwari patta in respect of that land,
The institution is entitled to 2/3 and the tenant or a person or the inamdar is
entitled to l/3rd share of ryotwari patta. Therefore, the person, inamgar or an
institution who holds the land is entitled to 2/3 and 1/3 share of ryotwari patta
respectively. It has been held by the Andhra Pradesh High Court that archakas
in possession of land under terms of compromise to render service cannot be
regarded as inamdar and cannot obtain patta vide Sri Janardhanaswamy Veru
Temple, Kopperapadu, Ongole Taluk, Guntur District, represented by its Nanaging
Trustee vs. The Assistant Collector, Guntur District & Anr. [(1964) 2 An.
W.R. 139].
Section
5 empowers re-induction of tenants who were in occupation of the inam land in inam
villages as on 7th January, 1984 but were evicted from such land before the
commencement of the Inams Abolition Act and were entitled to ryotwari patta. Section
6 deals with the determination of 1/3 share of inam land in the occupation of
the tenants, Section 7 deals with the grant of ryotwari patta and has material
bearing on the question under consideration.
It
reads thus:
7.
Grant of ryotwari patta :-
(1).As
soon as may be after commencement of this Act and subject to the provisions of
sub- Section (4), the Tehsildar may suo motu and shall, on application by a
person or an institution, after serving a notice in the prescribed manner on
all the persons or institutions interested in the grant of ryotwari pattas in
respect of the inam lands concerned and after giving them a reasonable
opportunity of being heard and examining all the relevant records, determine
the persons or institutions entitled to ryotwari pattas in accordance with the
provisions of Section 4 and grant them ryotwari patta in the prescribed form.
(2)
Any person or institution aggrieved by the grant of a ryotwari patta by the Tehsildar
under sub-Section (1) may appeal to the Revenue Court within sixty days from
the date of such grant, and the Revenue Court may, after giving the parties to
the appeal a reasonable opportunity of being heard pass such orders on the
appeal as it thinks fit.
(3)
The decision of the Revenue
Court under
sub-Section (2), and there no appeal is filed, the decision of the Tehsildar
under sub-Section (1), shall be final.
(4)
Where the Revenue Court declares under sub-Section (2) that a person or an
institution different from the person or institution to whom a Tehsildar has
granted a ryotwari patta under sub- Section (1) is entitled to a ryotwari patta
the Tehsildar shall cancel the ryotwari patta granted by him and grant a fresh ryotwari
patta in accordance with the decision of the Revenue Court under sub-Section
(2).
(5) In
the case of inam lands held by the inamdar other than an institution in an inam
village, if an application is filed under sub- Section (2) of Section 5 within
the period specified in that sub Section, no tenant or inamdar shall be granted
a ryotwari patta under sub-Section (1) until the decision of the Revenue Court
under sub- Section (3) of Section 5 or of the Collector under sub-Section (5)
of that Section, as the case may be, is given." Section 8 gives right of
permanent occupancy to the tenant in inam land held by the institution in inam
villages with the words "said right shall be heritable and shall be
transferable by sale, gift or otherwise." Sub-Section (2) of Section 8
deals with eviction of permanent tenants for failure to pay the rent and the
procedure thereof. Section 9 deals with procedure for evicting the tenant
having right of permanent occupancy and re-grant of lease of lands taken from
tenant under Section 9 is governed by Section 10.
Section
10A deals with application of the Act to inam land in ryotwari or zamindari
villages. Section 10B deals with conferment of ryotwari patta on transfers of unenfranchised
inams. Section 11 makes the provisions of the Andhra Tenancy Act, 1956 or the
Act amended thereafter, applicable to the lands held by the permanent tenants
under the Act. Section 12 prescribes the procedure and imposes liability on
every person or institution receiving ryotwari patta to pay to the Government ryotwari
assessment in the manner specified thereunder. Section 14 bars jurisdiction of
the civil court over the matters covered as enumerated therein and Section 13
gives power of the civil court to the Tehsildar, Revenue Court and the Collector as indicated therein. Section 14A
provides a revisional jurisdiction to the Board of Revenue over the orders
passed by the Tehsildar, Revenue
Court or the
Collector, as the case may be. Sub-Section (2) prohibits exercise thereof
except on compliance with the principles of natural justice adumbrating that no
order prejudicial to any person shall be passed under sub-Section (1) unless
such person has been given an opportunity of making his representation. Section
15 also has a bearing on the question in issue which reads thus:
"Act
to override other laws :- Unless otherwise expressly provided in this Act the
provisions of this Act and of any- orders and rules made thereunder shall have
effect not withstanding anything inconsistent therewith contained in any other
law for the time being in force or any instrument having effect by virtue of
any such law." Section 16 gives power to the Government to remove
difficulties and Section 17 accords rule making power.
It
would thus be clear that the provisions of the Inams Abolition Act are a
complete code in itself providing determination of the land whether held by the
institution or the individual and declaration thereof, entitlement to ryotwari patta
by the individuals or institution who hold the land and the grant of ryotwari patta
under Section 7 shall become final unless the same is revised under Section 14A
of the Act. The inam ceases to have effect from the date of grant of ryotwari patta.
The conferment of ryotwari patta creates a vested right to the property held
either by the institution or the individual to the extent of 2/3 and 1/3
respectively with absolute right, title and interest in the land. The tenant in
occupation is also entitled to heritable occupancy rights with right to
alienate, exchange, gift etc.
Thereafter,
the pre-existing rights and liabilities of inam ceased.
In Boppudi
Punniah & Ors. v. Sri Lakshmi Narasimhaswamy Varu & Ors. [(1963) 2
A.W.R. 214], the applicability of the Act to service inams held by office
holders enjoying the inams and the right to grant of ryotwari patta had fallen
for consideration. The Division Bench, after an exhaustive review of the Act,
held that service inams formed a considerable proportion of inams in the Andhra
area, be it in ryotwari or zamindari area. There is no justification for
attributing ignorance to the legislature of the existence of this class of inams.
There is, therefore, no reason to suppose that the legislature thought of
keeping out of the purview of the Inams Abolition Act this class of inams,
especially then the intendant of the Act was to abolish and convert inam lands
into ryotwari lands. The absence of a provision enabling the authorities
concerned to insist upon performance of service could not lead, to the
conclusion that all service inams were excluded from the purview of the
enactment. Service inams also must be held as inams governed by this enactment.
The ryotwari patta should, therefore, be held to have been issued to the
service holders.
Another
Division Bench of the High Court to which one of us (K.Ramaswamy, J.) was a
member in Sri Bhavanaravanaswami Vari Temple v. Chintapudi Rudraiah [AIR (1986)
1 A.L.T. 444], after exhaustive consideration of the controversy, had held that
a conjoint reading of Section 7 and Form VIII and Section 12 would posit that
on and from the date of the grant of the ryotwari patta, the inam extinguishes.
The grantee becomes absolute owner. He is liable only to pay ryotwari
assessment to the Government. No condition has been fastened therein making the
grantee render service to the respondents. There is presumptive evidence that
the legislature is aware of the pre-existing law and it intendant to bring
about alteration in the pre- existing liability by putting an end thereto and
created new rights under the Act. The Act intended to extinguish the
pre-existing vestige of obligation to render service running with the land and
relieved the holder of the land from the said obligation. The vested rights,
therefore, cannot be divested except in accordance with the procedure
established by law. Section 15 gives over-riding effect over the Act though it
is inconsistent with any other law or any instrument having force of law by
virtue of any such law.
The
question that arises is: Whether the legislature, by a side-wind, without
suitably amending the Inams Abolition Act, as interpreted by the High Court, or
repealing it, could directly nullify the said law laid by the Court and divest,
under Section 76 of the Act, the vested right and declare that the land was not
covered by said ryotwari patta or shall not be transferred or shall be deemed
never to have been transferred thereunder and would treat such persons as
encroachers? It is seen that the inam Abolition Act is a complete code in itself
and gives over- riding effect to any law inconsistent therewith creating vested
rights over the former inam lands which ceased to exist on the grant of ryotwari
patta. Being a ryoti land held by a tenant, an archaka, a service holder or
other employee after grant of ryothwari patta, holds the land with absolute
right to the extent of 1/3 land as an independent and absolute owner. The
pre-existing relationship, in relation to the land stood terminated and direct
relationship with the Government was created by imposition of ryotwari
assessment. Section 12 fastens the liability to pay ryotwari settlement to the
Government. Thereby, the whole of inam service existing prior to the grant of ryotwari
patta ceased to have any statutory effect. The liability to render service
ceased. Thereby independently, the service holder became entitled to hold the
land in his own right as a holder of land held by him with absolute right,
title and interest in the said land and to enjoy the property with heritable
rights or right to alienation, gift over, bequeath etc. The Act did not make
any direct attempt to repeal the provisions of the Inams Abolition Act. It did
not directly attempt to extinguish the right, title and interest of ryotwari settlement
created under the lnams Abolition Act nor acquired the same under the Act.
The
question, in that scenario, which emerges is whether Section 76 is a valid
piece of legislation, indirectly repealing the Inams Abolition Act or the
judgments of that High Court referred to hereinbefore.
It is
settled law that repeal of an Act divesting vested rights is always disfavored.
Presumption is against repeal by implication and the reason is based on the
theory that the legislation, while enacting a law, has complete knowledge of
the pre-existing law on the same subject matter. In the "Principles of
Statutory Interpretation" by Justice G.P. Singh, (5th Edition) 1992 at
pages 186-87 under the caption "Reference to other statutes" in
Chapter IV (External Aids to Construction) it has been stated that "a
legislation proceeding upon an erroneous assumption of the existing law without
directly amending or declaring the law is ineffective to change the law.
"The beliefs or assumptions of those who frame Acts of Parliament cannot
make the law" and a mere erroneous assumption exhibited in a statute as to
the state of the existing law is ineffective to express an
"intention" to change the law; if, by such a statute, the idea is to
change the law, it will be said that "the legislature has plainly missed
fired". The "legislation founded on a mistaken or erroneous
assumption has not the effect of making that the law which the legislature had
erroneously assumed to be so." The court will disregard such a belief or
assumption and also the provision inserted in that belief or assumption. A
later statute, therefore, is normally not used as an aid to construction of an
earlier one." In Sarwan Singh & Anr. v. Kasturi Lal [(1977) 2 SCR
421], the facts were that Section 19 of the Slum Area Improvement and Clearance
Act, 1956, with a non obstante clause, provided overriding effect to any other
law being enforced in slum area. No person except with the previous permission
in writing of the competent authority could institute any suit or proceeding
for obtaining any decree or order for eviction of a tenant from any building in
slum area. The procedure in that behalf had been provided.
Chapter
IIIA of the Delhi Rent [Control] Act was enacted.
Section
14A, 25A, 25B and 25C were brought on statute.
Section
14A with non obstante clause, empowered the landlord to require his own
building for residential accommodation when he was asked to vacate the land
allotted by the Government. The question arose: which of the two provisions
occupying the same field, would prevail? At page 433, this Court held that
speaking generally, the object and purpose of a legislation assume greater
relevance, if the language of the law is obscure for resolving inter se
conflicts.
Another
test may also be applied, though the persuasive force of such a test is one of
the factors which combine to give a similar meaning to the language of the law.
The test is that the latter enactment must prevail over the earlier one in the
case of conflict. Accordingly, it was held that when two or more laws operate
on the same field and each contains a non obstante clause, case of conflicts
has to be decided with reference to the object and purpose of the law under
consideration. In that case, the landlord who was in Government house was
directed to vacate the house. Special procedure in Chapter IIIA was provided to
mitigate the hardship to the landlord and to have eviction of his tenant from a
premises situated in slum area for his personal occupation. To give effect to
the legislative object, in view of the conflict by employing double non clause
in the respective provisions occupying the same field, this Court had given
effect to legislative intention by harmonious interpretation of both provisions
by reconciling the two inconsistent provisions and held that the landlord was
entitled to evict his tenant under Section 14A, despite the special protection
given under the Slum Improvement Act.
The
ratio has no application to the facts situation.
The
provisions in the Delhi Rent Act are procedural format for evicting a tenant
from a building situated in a slum area covered by the Rent Act. But the Inams
Abolition Act occupies an entirely different field and has given absolute
right, title and interest over the land held by an archaka, service holder or
employee etc. Section 76 of the Act by indirect process, without directing
repeal of the Inams Abolition Act or divesting the title, which became final
after conjunction into ryotwari land, attempted to defeat them.
In The
Income-tax Officer, Kanpur & Ors. v. Mani Ram & Ors.
[AIR 1969 SC 543 at 548 para 8], this Court had held that, generally speaking,
a subsequent Act of Parliament affords no useful guide to the meaning of
another Act which came into existence before the later one was framed. Under
special circumstances, the law does, however, admit of a subsequent Act to be
resorted to for this purpose but the conditions under which the later Act may
be resorted for the interpretation of the earlier Act are strict; both must be
laws on the same subject, and the part of the earlier Act which is sought to be
construed must be ambiguous and capable of different meanings. In Inland
Revenue Commissioners v. Dowdalls O'Mahoney and Co. Ltd. [1952 AC 401], Lord Radcliffe
had held that the beliefs or assumptions of those who frame Acts of Parliament
cannot make the law. In Nalinikant Ambalal Mody v. Commissioner of Income-tax, Bombay [AIR 1967 SC 193 at 203], this
Court further had reiterated that an Act of Parliament does not alter the law
by merely betraying the erroneous opinion of it. In Hariprasad Shivshanker Shukla
& Anr. v. A.D. Divelkar & Ors. [AIR 1957 SC 121 at 131], a Constitution
Bench construing the effect of two enactments and the meaning to be assigned to
the word 'retrenchment' or a closure of an establishment on the point of Parliamentary
exposition had held that the earlier enactment was preferred to the latter
enactment covered under the Industrial Disputes Act; so, Industrial Disputes
[Amendment and Miscellaneous Provisions] Act [36 of 1956] was preferred to the
Industrial Disputes [Amendment] Act [41 of 1956].
It
would thus be clear and we hold that without amending the law under Inam
Abolition Act and without properly removing the foundation of the judgments
rendered by the High Court, the legislature sought to destroy the effect of the
law in Inam Abolition Act on erroneous belief or assumption that it did not
bind the religion or charitable institutions or endowment or that the holder of
land did not acquire title or no patta was granted to him and the land was
still with the institution and treated the occupant as encroacher. The
legislation founded on such an erroneous assumption does not have the effect of
depriving the holder of the land of their vested rights acquired under the Inams
Abolition Act. The legislature has plainly misfired. Accordingly, we hold that
Section 76 and Explanation II to Section 2(22) of the Act to that extent are
invalid and unconstitutional.
The
writ petition is accordingly allowed, but, without costs.
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