ORDER
Elipe Dharma Rao, J.
1. Impugning the order passed by the State Government in G.O.Ms.No. 751, dt. 17-8-1990 by which the State Government accorded permission to the Custodian of Sri Swami Hathiramji Mutt, Tirupathi, Chandragiri Taluk, Chittoor District for sale of land measuring a total extent of Ac. 25.36 gts. belonging to the mutt at the rate of Rs. 22,000/- per acre in favour of the sitting tenants i.e., an extent of Ac. 14.36 cents in Sy.No. 51/1 in favour of Smt. M. Changamma and an extent of Ac. 11.00 cents in Sy.No. 54/2 in favour of Sri T. Muniswamy Naidu by registered sale deeds dt. 25-10-1990 and dt. 15-10-1990 vide document Nos. 881 and 859 of 1990 respectively by relaxing the ban on sale of temple lands, this writ petition is filed seeking writ of certiorari to quash the said order. Before adverting to the contentions raised, it is necessary to notice few facts of the case.
2. Respondents 4 and 5 were the sitting tenants of Sri Swamy Hathiramji Mutt, which owns immovable property worth crores of rupees. Originally, they were granted permanent lease by the then Mahant. After the death of the then mahant a suit in O.S.No. 6 of 1966 was filed before the Sub-Court, Chittoor for cancellation of the permanent lease, which was decreed declaring that permanent lease is not valid in law. However, respondents 4 and 5 managed to continue as tenants under lease deeds executed from time to time. It appears that the mahant of the mutt was suspended in the year 1980 on serious allegations of mismanagement of the mutt and misappropriation of its funds. The Commissioner of Endowments appointed the Assistant Commissioner of Endowments to be in-charge of the day-to-day administration of the mutt in place of the mahant. Meanwhile, the Assistant Commissioner proposed the sale of certain properties belonging to the above mutt. Aggrieved by the same a writ petition in W.P.No. 3621. of 1982 was filed before this Court, which was disposed of by an order dt. 20-10-1983 directing the official respondents not to sell the mutt’s properties till a person who can competently represent the mutt is appointed. While so, in the year 1985 the Assistant Commissioner of Endowments after making an application for sanction from the Commissioner issued a notification dt. 4-1-1985 proposing to sell 11 acres of land belonging to the mutt and calling for suggestions and objections, it any, from the public. In reply to the above notification, the petitioner herein filed objections suggesting that the lands proposed to be sold may be done so by public auction or through private negotiations. It was also stated in the objection petition that the description of the land was incorrect, the concurrence of the mahant was not obtained and that the proposed value of the land is less. The grievance of the petitioner is that without considering the objections filed and without following the procedure contemplated in law the impugned G.O. dt. 17-8-1990 was passed by the Government in exercise of power conferred under first proviso to Section 80(1)(c) of the Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act (Act 30/1987), for short ‘The Act’, and in relaxation of the ban imposed on the sale of temple lands imposed in Government Memo dt. 23-1-1990 accorded permission to the custodian of the mutt to sell land admeasuring a total extent of Ac. 25.36 cents belonging to the mutt in Sy.Nos. 51/1 and 54/2 of Pudipatla village of Tirupathi at the rate of Rs. 22,000/- per acre in favour of the sitting tenants i.e., respondents 4 and 5 otherwise than public auction. Under those circumstances, the present writ petition is filed to declare the sale transactions of the immovable properties in question as null and void.
3. The main objection taken by the learned counsel for the petitioner is that the impugned order was passed without following the procedure contemplated under Section 80 r/w Section 183 of the Act and Rule 6 of the A.P. Charitable and Hindu Religious Institutions and Endowments Alienation of Immovable Properties Rules, 1987, which mandate that the sale of any immovable property sanctioned by the Commissioner under Section 80(1)(b) of the Act shall be effected by tender-cum-public auction and under Section 81 of the Act which envisages that sale of any immovable property without prior sanction of the Commissioner or Government shall be null and void. It is also contended that the impugned order is not passed in the interest of the institution/endowment and no reasons were recorded while granting permission by the Government for sale of the properties in question otherwise than public auction. In support of the above contentions the learned Counsel for the petitioner relied upon the judgment of the Supreme Court in C. Rami Reddy v. Govt. of A.P., , wherein the action of the Government granting permission to sell the land belonging to a charitable endowment by private negotiations instead of by public auction was deprecated observing that care must be taken while fixing the market value for the sake of safeguarding the interest of the endowment. The Supreme Court in R. Venugopala Naidu v. Venkatamyulu Naidu, affirmed the said view. The learned Counsel also relied upon judgments of this Court rendered in Board of Trustees of Sri Balaji Eshwara Veerabhadra Swamy Temple v. State of A.P., , Somanatha Reddy v. Government of A.P., and Employees Association v. Sri Chenna Keshava Swamy Temple, 1993 (1) An.W.R. 544 (F.B.) wherein it was declared that the Government is obligated in law to record reasons in justification of the decision to sell the lands to the sitting tenants otherwise than by standard mode prescribed and that the Government Order is unsustainable in the absence of reasons recorded for granting permission.
4. Denying the averments and allegations made by the petitioner a counter-affidavit has been filed on behalf of the second respondent inter alia stating that a notice dt. 23-11-1984 for sale of land in an extent of Ac. 14.36 cents in Sy.No. 51/1 and another notice dt. 4-1-1985 for sale of Ac. 10.28 cents in Sy.No. 51/1 and Ac. 0.72 cents in Sy.No. 54/2 were issued duly calling for objections and suggestions in response to which objection petitions dt. 9-1-1985 were filed in respect of land in Sy.No. 51/1 in an extent of Ac. 14.26 cents by the petitioner herein and one D. Kuppuswami Naidu. The said Kuppuswami Naidu also filed objection petition dt. 14-5-1985 regarding sale of land in an extent of Ac. 11.00 in Sy.Nos. 51/1 and 54/2. It is stated that the objection petitions were sent to the Custodian of the Mutt for his remarks and the Custodian stated in his remarks that the value of the lands in question got boosted in view of the improvements effected by the sitting tenants from the date of taking possession in the year 1957 by incurring huge amounts and by drawing water through pipe line from their own well situated at a distance of 1/4th furlong. It is also stated in the counter that taking possession of the lands from the sitting tenants would be a problem for the mutt and it may also lead to endless litigation since they are protected tenants under the provisions of the A.P. Tenancy Act and that in the interest of the institution and to avert possible litigation for recovery of arrears and eviction of tenants, the objection petitions, which were filed to create hurdles in the transaction, were not considered. It is further averred in the counter-affidavit that the sitting tenants themselves came forward to regularize the past transaction by way of sale with prior permission of the Government subject to payment of market value and as such the third respondent forwarded an application dt. 14-3-1984 to the Commissioner of Endowments, who, after following the procedure prescribed issued notice dated 23-11-1984, which is published on 21-4-1985, and obtained present basic value of the lands at Rs. 22,000/- per acre from the Sub-Registrar, Chandragiri upon the requisition of the Government vide Memo dt. 27-6-1990 and that under those circumstances and upon considering the fact that the sitting tenants are in continuous possession and enjoyment of the lands in question since decades by virtue of the renewal of the lease from time to time, the impugned order came to be passed. The second respondent, therefore, sought dismissal of the writ petition.
5. The legal representatives of the 4th and 5th respondents were brought on record and some of the legal representatives also filed counter-affidavits supporting the stand taken by the second respondent taking the ground that they are in continuous possession of the lands in question for decades, that they are protected tenants and in view of the tenancy law they are entitled to purchase the lands other than by the public auction and that the Government while passing the impugned order not only considered the interest of the mutt but also the interest of the protected tenants and as such the same does not warrant any interference. In support of their contention they relied upon a judgment of the Supreme Court in Hitkarini Samaj v. State of Andhra Pradesh, 2001 (4) Supreme 500 wherein the Supreme Court upheld the action of the Government in according permission for sale other than auction and also judgment of a Division Bench of this Court in W.A.No. 235 of 1986 confirming the judgment of the learned single Judge granting permission to sell the property belonging to Bairagi Mutt, Nellore otherwise than by public auction and accordingly sought dismissal of the writ petition.
6. So far as the provisions of law is concerned, Sub-section (1) of Section 80 of the Act deals with the alienation of the immovable property and Clause (b) of Sub-section (1) of Section 80 provides that the Commissioner may after publishing in the A.P. Gazette the particulars relating to the proposed transaction and inviting any objections and suggestions with respect thereto and considering all objections and suggestions, if any received from the trustee or other person having interest, accord such sanction where he considers that the transaction is prudent and necessary or beneficial to the institution or endowment; in respect of immovable property which is un-economical for the institution or endowment to own and maintain; and the consideration therefor is adequate and proper. Clause (c) of Sub-section (1) of Section 80 of the Act says that sale of immovable property sanctioned by the Commissioner 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. It is, therefore, clear from the above that the Commissioner may accord sanction for sale of any immovable property belonging to any charitable or religious institution or endowment after obtaining permission of the Government and the Government has to record its reasons therefor in writing for according such permission.
7. To examine the correctness of the averments made by the petitioner and to know whether the Government has recorded any reasons as contemplated under the provisions of law before according permission under the impugned G.O., I called for the records from the Government. Accordingly, the records were placed before me. On a perusal of the relevant records, it is borne out that the deal was settled in favour of respondents 4 and 5, who are protected tenants in continuous possession of the land, other than by public auction and without the consent of the custodian as observed by this Court in the judgment rendered in W.P.No. 3621 of 1982 dt. 20-10-1983 after obtaining basic value of the land furnished by the Commissioner of Endowments. It is pertinent to mention here that the judgment rendered in W.P.No. 3621 of 1982 has become final since the writ appeal filed aggrieved by the said order was closed on the basis of the letter addressed by the Commissioner of Endowments to the effect that there is permanent vacancy for the post of mahant in the office of the mutt and no nomination as to the succession to the office was made according to the custom and usage prevailing in the mutt and there is no disciple of the mahant having claims and there is no alternative left to the department than to appoint a custodian to safeguard the properties of the mutt. Nowhere it is mentioned in the reasons recorded as to the circumstances under which the land has to be sold to the protected tenants except closure of the writ appeal. The Government has merely acted upon the recommendations made by the Commissioner of Endowments and failed to apply its mind to meet the objections raised by the petitioner and in the interest of the institution. Further, another circumstance which weighed with the Government was the difficulty expressed by the third respondent in evicting the tenants who are in occupation of the land since decades and desirability of saving the institution from protracted and vexatious litigation. The question of evicting the tenants from the lands is secondary aspect, the primary being the interest of the endowment. Therefore, the contention of the petitioner that the Government failed to consider the interest of the institution or endowment and record any reasons before according permission under the impugned G.O., which is contrary to the procedure contemplated under the provisions of law, merits good. It appears that the entire exercise has been made by the Department only to protect the interest of the protected tenants i.e., respondents 4 and 5 but not in the interest of the institution or endowment. In view of the above discussion, I need not consider the judgments referred to by the petitioner wherein it was categorically held that the lands of the endowment/institution have to be sold through public auction. In the circumstances and in view of the fact that there are no justifiable reasons to sell the lands to the sitting tenants otherwise than by public auction, I have no hesitation to hold that the impugned order passed by the Government is liable to be set aside.
8. In the result, the writ petition is allowed setting aside the impugned G.O. as well as the sale transactions. A writ shall issue directing the respondents to sell the lands in question in pubic auction, within a period of six months after complying with the necessary formalities. It is needless to mention that respondent-tenants are also entitled to participate in the public auction. No costs.