COMMON ORDER: (Per Hon’ble Sri Jusitce Ghulam Mohammed)
These writ petitions, arose out of a common set of facts and seek identical reliefs and hence they are heard together.
2. Writ Petition No.18083 of 2003 was filed by Sri Vijaya Bhavani Adarsha Mahila Mandali, Sujatha Nagar, Bypass road, Ongole, a society registered under the provisions of Societies Registration Act 21 of 1860; Writ Petition No.11063 of 2004 is instituted by an individual Sri P. Ravindranath, a devotee of Sri Kasi Visveswara Swamy Vari Temple (Sivalayam) at Ongole and Writ Petition No.21438 of 2004 of 2004 was instituted by Sri Nalluri Kishore, another devotee of the temple.
3. Sri Kasi Visveswara Swamy Vari Temple was an ancient Sivalayam at Ongole town. It was endowed with land of an extent of Ac.26.50 cents in Survey No.225 of Ongole town. There were also several other parcels of lands endowed to the said temple but, those lands were acquired by the State for various public purposes, such as for Nagarjuna Sagar Project and also for providing house sites to eligible beneficiaries. As of now, land of an extent of Ac.26.50 cents situate at Survey No.225 was available, but however it was not yielding much value by way of return to the temple. This land is sought to be alienated in favour of the Ongole Taluka Non Gazetted Officers House Building Co-operative Society (For brevity, ‘the N.G.Os. House Building Society’), Ongole and Prakasam District Economically Backward Classes Mahila Mandali, Ongole to the extent of Ac.22.44 cents and Ac.4.06 cents respectively. Coming to know of this development, the petitioner Society in W.P. No.18083 of 2003 has objected to it and offered more price than offered by the aforementioned two Societies.
4. It is stated that, the State Government passed orders in their G.O.Ms. No.954, Revenue (Endowments-IV) Department, dated 11.09.2003, accepting the proposal of the Collector, Prakasam District for allotting the land admeasuring Ac.22.44 cents belonging to Sri Kasi Visveswara Swamy Vari Temple, Ongole Town, Prakasam District in favour of the members of the N.G.Os. House Building Society, for providing house sites after following the procedure and in accordance with the provisions contained in Act 30 of 1987 and Rules framed there under, subject to payment of present market value. It is further stated that the market value was got ascertained from the Collector, Prakasam District, who valued the same as Rs.6,00,000/- per acre. Based thereon, the Commissioner of Endowments passed orders on 22.04.2004 directing the Executive Officer of the Temple to collect the market value as fixed by the Collector, Prakasam District for the total extent of land of Ac.22.44 cents situate in Survey No.225 belonging to the Temple from the N.G.Os House Building Society, at the rate of Rs.6,00,000/- per acre and to report compliance for taking further necessary action in the matter. These two orders are profoundly opposed by the petitioners in these writ petitions.
5. Heard Sri K. Sarva Bhouma Rao, Sri M. Narasimha Reddy, Sri Ch. Laxmi Narayana and Sri P. Venugopal, for the writ petitioners, the learned Government Pleader for Endowments, Sri V.T.M. Prasad, on behalf of the Temple, Sri P. Sri Raghu Ram and Sri V.V.N. Narayana Rao for the N.G.Os House Building Society, Ongole.
6. The principal contention of the learned counsel for the petitioners is that, the State Government and the Commissioner of Endowments have committed a gross error in agreeing for alienation of large extent of the land belonging to the Temple, which are situate abutting the Bypass road and surrounded by several residential colonies, for a throwaway price. It is contended that Ongole town like any other District Head quarter’s town has expanded in all directions, and after the bypass road is formed, the lands in and around the Survey No.225 have become very expensive lands. They are well suited for developing Group Housing activities, such as formation of layouts and construction of multi storied structures containing apartments. It is contended that another prominent temple in the town namely Sri Chennakesava Swamy Vari Temple also had lands in the close proximate vicinity of the lands of Sri Kasi Visveswara Swamy Vari Temple in Survey No.225. When Sri Chennakesava Swamy Temple put the lands in an extent of Ac.17.17 cents to public auction, in November/December, 2002 they were sold at the rate of Rs.64,00,000/- per acre. Therefore, the public action is the only measure that should be adopted for sale of such a large extent of Ac.22.44 cents of land belonging to Sri Kasi Visveswara Swamy Vari Temple; so that the Temple will get nothing less than Rs.10 crores, which amount when invested on a long term basis with any of the nationalized banks will fetch approximately Rs.1 crore as interest per year, with which amount, services in the Temple such as rituals and poojas can be performed to great satisfaction of the devotees. It is further contended that the Commissioner of Endowments has agreed with the proposal to sell the subject lands by conducting public auction in fact, when one other devotee by name Sri N. Kutumba Rao, filed W.P. No.14601 of 2003 seeking the sale of the lands through public auction only. A Gazette notification was also published in ‘Praja Sakthi’ daily news paper proposing to conduct sale by public auction of the lands in question. In view of the same, this Court disposed of W.P. No.14601 of 2003 on 27.03.2003 duly recording the above development. It is also contended that when the Government Servants working in the Revenue department and Endowments Department tried to purchase this land by forming Non-Gazetted Officers Association, otherwise than by public auction, the State Government reacted sharply and directed the Anti Corruption Bureau to investigate and file a report. Accordingly, the Directorate General of Anti Corruption Bureau filed a report stating that the value of the lands in the Temple are anywhere in the range of Rs.25 lakhs to Rs.30 lakhs per acre. Therefore, found the proposal to alienate such a large extent of valuable lands in favour of the N.G.Os. House Building Society for a throwaway price of Rs.6,00,000/- per acre is anything but fair. Based upon such a report, the Special Chief Secretary to the Government ordered through his Memo No.36806/Endts.IV(1)/2002-1, dated 15.07.2002 ordering the sale of the entire extent of Ac.26.50 cents of land situate in Survey No.225, Ongole town belonging to the Temple by way of Tender-cum-Public auction. Contrary to this development, the State Government and the Commissioner have agreed to sell the lands in question, otherwise than by public auction. The petitioners’ specifically assert that if public auctions are conducted, a much better price in the range of Rs.60,00,000/- per acre would be fetched and consequently the Temple will be benefited in the process. Hence, they instituted these writ petitions.
7. A detailed counter affidavit, has been filed by the Executive Officer of Sri Kasi Visveswara Swamy vari Temple, Ongole. It is admitted that the notification proposing to conduct public auction of the subject land was published in the ‘Prajasakthi’ daily news paper and in that view of the matter, W.P. No.14601 of 2003 was disposed of by this Court directing to conduct sale by public auction, as early as possible. It is also stated that a three man committee has been constituted by the Commissioner of Endowments for fixation of the market rate and that the said committee filed its report recommending the market value to be Rs.3,50,000/- per acre. But, however subsequent thereto a Cabinet Sub-Committee of the Government of Andhra Pradesh held discussions with the Joint Account Committee of employees on 27th December, 2002 and pursuant to the resolution of the Cabinet Sub-Committee, the present orders were issued by the Government contained in G.O.Ms. No.954, Revenue (Endowments-IV) Department, dated 11.09.2003 and thereafter the Commissioner of Endowments, ordered for collection of the entire market value from the N.G.Os. House Building Society through his orders dated 22.04.2004 and hence the Executive Officer has received a sum of Rs.1,34,64,000/- from the said N.G.Os House Building Society towards the total value of the land sought to be alienated in their favour. But, however when several Mahila Mandalis and individuals came forward to purchase this land at the rate of Rs.25,00,000/- to Rs.30,00,000/- lakhs per acre, the Commissioner of Endowments, Hyderabad clearly realized the futility of alienating the land in favour of N.G.Os. House Building Society at the rate of Rs.6,00,000/- per acre and consequently passed orders through his proceedings in R.C.No.M1/45239/2003, dated 28.07.2004 directing the Executive Officer of Temple to refund the amount of Rs.1,34,64,000/- to the N.G.Os. House Building Society and accordingly a communication was addressed to the N.G.Os House Building Society to come and collect the money. Since there was no response to the communication sent up by the Executive Officer, the Executive Officer has drawn a cheque bearing No.4473/2006 on Syndicate Bank, Ongole Branch for the entire sum deposited by the N.G.Os. House Building Society and transmitted the same for enabling the said society to encash the said refunded money. But, however since the said Society refused to receive the cheque, a legal notice was subsequently sent up by the Executive Officer demanding the N.G.Os House Building Society to come and collect the amount of Rs.1,34,64,000/- deposited by it as it is not in the interest of the Temple to alienate precious land at a nominal price of Rs.6,00,000/- per acre. Since the N.G.Os House Building Society is not coming forward, the said money is deposited with the Bank so as to earn interest. In paragraph No.12 of the counter affidavit filed by the Executive Officer in W.P. No.18083 of 2003 he made the following statement :
“It is pertinent to submit here that the subject land is a costly land. The neighbouring land in Sy. No.233 was sold in the Public Auction held on 09.12.2002 to 11.02.2002 at the rate of Rs.64,00,000/- per acre. That land belongs to Sri Chenna Kesava Swamy Temple and that land is located in the eastern side of the subject land. If the subject land is put in public auction, it will fetch more than Rs.75,00,000/- per acre.”
8. Sri P. Sri Raghu Ram and Sri V.V. N. Narayana Rao, have very strenuously argued before us that the writ petitioners have not mounted any direct challenge to the orders passed by the State Government contained in G.O.Ms. No.954, Revenue (Endowments-IV) Department, dated 11.09.2003 or the subsequent orders of the Commissioner of Endowments dated 22.04.2004 directing the Executive Officer to collect the value of the land from the House Building Society at the rate of Rs.6,00,000/- per acre and report compliance. Therefore, these writ petitions deserve to be dismissed. It was further contended that, the process of alienation was not challenged at all by the petitioners and most importantly, the procedure prescribed under Section 80 (1) (a) and (b) of the Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act, 1987, henceforth referred to as Act, was followed by the Commissioner scrupulously by publishing the notification in the Andhra Pradesh Gazette and invited objections and suggestions; but, however no meaningful or tenable objections have been received within the prescribed time. Therefore, the alienation in favour of the N.G.Os House Building Society was in accordance with the procedure contained in the Statue and hence no objection should be entertained at this distant point of time. It is vehemently contended that, for ascertaining the true market value, the Revenue records have been examined which revealed the value per acre to be around Rs.3,50,000/- per acre and notwithstanding the same, a three man committee was constituted which also confirmed the above said market value to be true and correct, but still the District Collector, Prakasam District, purposefully fixed the market value at a higher range at Rs.6,00,000/- per acre and the Cabinet Sub-Committee constituted by the Government of Andhra Pradesh was not at all willing to negotiate the price component and with a view to achieve the social objective of securing affordable housing accommodation to the deserving Government sector employees, who are all occupying posts which are not even first level gazetted posts, in the State Government service, the final decision was taken in the matter by the State Government. Therefore, there is nothing to suspect about the transaction and it is a bona fide transaction. Most importantly, the learned counsel for the N.G.Os House Building Society has stressed that all the members of the N.G.Os. House Building Society have pooled their life time savings and deposited the entire money of Rs.1,34,64,000/- with the Temple and having thus received the entire price for the value of the land, all due to administrative delay the actual deed of conveyance could not be executed. Otherwise, there was no reason for the sale transaction to be indicted. It is further contended by the learned counsel for the petitioner for the N.G.Os House Building Society that, the petitioners are only speculating about the price of the land, they have not exhibited their bona fides by depositing any amount higher than what has been deposited by the Society, to lend any credible substance to their bald pleadings. It was pleaded that majority of the members of the N.G.Os House Building Society, who pooled up their money and deposited with the Temple, have retired from the Government service and their wish to construct a house of their own remained to be unfulfilled so far, because of this litigation and in view of the cases. Very unfortunately, some of the Government employees have also died leaving behind the task for their respective family members to construct a dwelling unit for themselves. It is pleaded that for no fault of the members of the N.G.Os House Building Society, they are denied the benefit of owning a small extent of land as a house site in Ongole town. It was further contended that the cost of construction has escalated many folds from the time the orders were passed by the Government and it is in fact the members of the N.G.Os House Building Society, who should be truly aggrieved parties in the entire transaction.
9. We have given our anxious consideration to the rival submissions. Under Section 80 of the Act in unmistakable terms, makes it clear that, any sale, exchange or mortgage of any immovable property belonging to or given or endowed for the purposes of any charitable or religious institutions or endowments shall be null and void unless any such transaction, not being a gift, is undertaken with the prior sanction of the Commissioner. Section 80 (1) (b) requires the Commissioner, after publishing in the Andhra Pradesh Gazette the particulars relating to the proposed transaction and inviting objections and suggestions with respect there to and after considering such objections and suggestions, may accord such sanction where he considers that it is i) Prudent and necessary or beneficial to the institution or endowment, ii) in respect of immovable property which is uneconomical for the institution or endowments to own and maintain and iii) the consideration therefor is adequate and proper. These statutory conditions make the position most importantly clear that the sale should be first of all found to be beneficial to the institution concerned and that the consideration for the transaction is adequate and proper. In the instant case, there is no material available on record suggesting that the consideration is adequate and proper. Clause (c) of subsection 1 of Section 80 of the Act will have a bearing upon the controversy in this case. Hence, it is appropriate to notice it in its entirety :
“(c) Every sale of any such immovable property sanctioned by the Commissioner under clause (b) shall be effected by tender-cum-public auction in the prescribed manner subject to the confirmation by the Commissioner within a period prescribed.
Provided that the Government may, in the interest of the institution or endowment and for reasons to be recorded therefor in writing, permit the sale of such immovable property, otherwise than by public auction.
Provided further that the Government may purchase the lands situated in Scheduled Areas belonging to institutions or endowments, wherever necessary, otherwise than by public auction and assign such lands to the members of the scheduled Tribes.”
10. The intention of statue maker is very clear that every sale of immovable property of any institution shall be affected by tender-cum-public auction. That is the normal rule. A tender-cum-public auction in fact has been ordered to be undertaken by the Commissioner of Endowments in the instant case. But, however before such sale by tender-cum-public auction could fructify, the State Government intervened in the matter. The first proviso, no doubt empowered the State Government to permit the sale of immovable property of an institution otherwise than by public auction, but however, the most crucial conditions, subject to which the power is exercisable by the Government are thus two; 1) it shall be in the interest of the institution to allow the sale otherwise than by public auction and 2) the reasons reflecting the satisfaction of the State Government in that regard must be recorded.
11. However, the learned counsel appearing for the N.G.Os House Building Co-operative Society has drawn our attention to the proceedings of 997th meeting of the council of the Ministers held at 10.30 a.m. on Monday, the first September, 2003 in the council hall at the Secretariat, wherein considering the agenda Item No.13 relating to the alienation of Endowments land belonging to Sri Kasi Visveswara Swamy Vari Temple, Ongole, town on market value in favour of the Ongole Taluk Non Gazetted Officers House Building Society, Ongole the council resolution No.181/.2003 reads as under :
“The proposal was accepted and the above said land be allotted only on payment of present market value as per the provisions of the Act No.30 of 1987.”
Thereafter, the State Government passed orders through their G.O.Ms. No.954, Revenue (Endowments-IV) Department, dated 11.09.2003. Strangely, neither the cabinet resolution nor the subsequent and consequential orders contained in G.O.Ms. No.954, Revenue (Endowments-IV) Department, dated 11.09.2003 record any reason that it is expedient and it will be in the interest of the institution to permit the sale of its immovable property, otherwise than by public auction. No doubt, the resolution passed by the cabinet requires action to be taken in accordance with the provisions contained under Act 30 of 1987. In our opinion, the resolution of the Cabinet appears to be slightly irreconcilable.
12. As was already noticed supra, Section 80 of the Act mandates sale of immovable properties of Religious Institutions to be undertaken only by way of public auction, by adopting the tender-cum-public auction system. If the Government were satisfied that adopting tender-cum-public auction system will be either detrimental to the interests of the institution concerned or it will not sub-serve, at any rate, the interests of the institution, it may order for sale of such immovable property otherwise than by public auction. In the absence of any such suggestion recorded by the Government, though the resolution has been passed after appropriate deliberations and contemplation by the Cabinet, we cannot accord our approval to the same. Particularly, when we are informed by the Executive Officer of the Temple that lands in the vicinity have been sold in public auction for a price of Rs.64,00,000/- per acre, we cannot appreciate the decision of the State Government to sell the subject lands, other wise than by public auction for a price of Rs.6,00,000/- per acre. We are clearly of the view that the State Government acted beyond the power vested in it in ordering for the sale of immovable property, otherwise than by way of public auction, as the decision is not in the best interests of the Institution.
13. We do not require to over-emphasis the significance of conducting sale by public auction; such a sale at public auction would be transparent and a competitive edge is retained through out the course of public auction amongst the bidders. When tenders are also called for simultaneously a ring of secrecy is also ensured. Whatever apprehensions that one might entertain about formation of a cartel by the bidders, but, however, the bidders must come open with their offers matching the true market price. In fact, with a view to eliminate the formation of cartels or a prebid understanding amongst the bidders, to frustrate the process of sale transactions, e-tendering process is also resorted to. By this method, bids are liable to be submitted online on the web portal maintained for the said purpose. Thus, the process of secrecy of the bidders is thoroughly maintained till such time the bids are opened. Hence, by adopting such a method as realistic and as nearer a price to the market value, the true market value, can be expected in this process. We are therefore of the view that, the orders passed by the State Government contained in their G.O.Ms. No.954, Revenue (Endowments-IV) Department, dated 11.09.2003 and the consequential proceedings dated 22.04.2004 of the Commissioner of Endowments, Hyderabad are unsustainable and they are accordingly declared illegal and cannot be acted upon, as they are not seeking to protect the interests of the Institution.
14. In view of our finding on the legal aspects, we are not in a position to appreciate any of the contentions canvassed by Sri P. Sri Raghu Ram and Sri V.V.N. Narayana Rao.
15. We are alive that in the entire process the members of the N.G.Os House Building Society might have become victims of the circumstances. The dreams of the small time Government servants to own a small piece of land in a district headquarter town and to construct a house of one’s own thereon must have been frustrated. Further, they have pooled up the necessary money and deposited a sum of Rs.1,34,64,000/- with the Temple; which amount was lying in the interest fetching deposit with a bank. Payment of adequate interest to a party, who is not at fault, is one way of compensating him for the loss or damage sustained by him, particularly, because of the litigation. We therefore feel that it is appropriate to direct Sri Kasi Visveswara Swamy Vari Temple, Ongole town to refund the money i.e. Rs.1,34,64,000/- with interest at the rat of 18% p.a. from the date of its deposit, till its repayment. We, further direct that the said money may be deposited with the Collector and District Magistrate, Prakasam District at Ongole who will constitute a committee of three senior and responsible officers headed by the Revenue Divisional Officer, Ongole and comprising of the Assistant Commissioner of Endowments, Ongole. The Collector may choose any other district level officer to be the third member of the committee. The District Collector may entrust to this committee the task of refunding the monies to the individual members of the N.G.Os. House Building Society, so that appropriate distribution of the money can be ensured. The office bearers of the N.G.Os House Building Society will produce necessary records and material to vouch for the payments made to them by the individual members and will help and assist the committee of officers in refunding the entire money. With these directions, the writ petitions are allowed and the Commissioner of Hindu Religious Charitable Endowments, Hyderabad and the Deputy Commissioner of Endowments, Guntur and the Assistant Commissioner of Endowments, Ongole along with the Executive Officer of Sri Kasi Visveswara Swamy Vari Temple will take immediate and prompt steps for conducting sale of land of Ac.26.50 cents lying in Survey No.225 of Ongole town belonging to Sri Kasi Visveswara Swamy Vari Temple, Ongole by inviting e-tenders-cum-sealed tenders-cum-public auction and complete the same within a maximum period of sixty (60) days, from the date of receipt of a copy of this order. In case, the Ongole Taluk Non-Gazetted Officers House Building Co-operative Society, seeks to participate in the said public auction proceedings, it may be permitted to do so, if it exercises the option of not to withdraw the sum of Rs.1,34,64,000/- till finalization of the said public auctions, without the necessity to pay the Earned Money Deposit, but however subject to payment of tender fee and processing fee by it. Costs easy.