B. Sudershan Reddy, J.
1. This batch of writ appeals and writ petitions may be disposed of by a common Judgment, since the question that arises for consideration in all these matters is one and the same.
2. The facts are stranger than fiction. An institution founded by noble men, whose management was entrusted to a Trust Board, disappeared into thin air not on account of any onslaught and difficulties created by the strangers but on account of the death wish of those who were entrusted with the duty of managing the affairs of the institution. The movable and immovable properties, worth crores of rupees, gathered by the noble men were parceled out to private buccaneers who masqueraded themselves as the trustees of the properties.
Factual matrix:
3. One late Pandit Bansilal Radhelal Vyas, his colleagues and associates successfully persuaded philanthropic minded people to give and donate movable and immovable property and in the process they have been able to gather and receive donations and gifts including considerable extents of lands for the purpose of establishing a 'Gurukul'. That various buildings were built and certain lands and properties were fully purchased and/or acquired for the Gurukul and such Gurukul was established, maintained and conducted at Anantagiri Rambagh, Hyderabad in the first instance and thereafter moved to Ghatkesar in Taluka East of Hyderabad District (presently Ranga Reddy District) about 16 miles away from the city of Hyderabad. It is popularly known as 'Gurukul Ghatkeshwar'. The institution had been imparting education and functioned as a regular educational institution under the able supervision of the said late Pandit Bansilal Vyas and his selfless colleagues and teachers. Pandit Bansilal Vyas, who gave up everything for Gurukul Ghatkeshwar, breathed his lost on the night between 1st and 2nd September, 1956 in a train accident that took place between Jadcherla and Mahabubnagar.
4. Thereafter, it was thought fit and expedient to prepare a regular trust deed inter alia describing the functions, rights and obligations of trustees and regulating the procedure of their meetings and various other activities and functions which they or any one of them is called to perform as such a trustee and to make a formal declaration of the trust. That is how the trust known as 'Gurukul Ghatkeshwar Trust' had come into existence with the same object of establishing, maintaining, managing and taking over and conducting schools, colleges, multipurpose schools, hostels, libraries, reading rooms and to aid and assist all kinds of educational and philanthropic institutions for which purpose huge movable and immovable properties were acquired in the manner referred to hereinabove. Even by the early fifties the Trust had owned and possessed the landed properties of Ac.649.02 guntas in Izzatnagar, Khanamet, Hyderabad West in the State of Andhra Pradesh and some properties in Nanded of Maharastra State. The landed properties, except that are situated at Nanded, are in the vicinity of Hyderabad Metropolis.
5. One B. Kishan Lal, became the managing trustee and was managing the trust properties from 1960 onwards. He sold away the entire immovable properties belonging to the trust admeasuring Ac.627-00 either by himself or through his General Power of Attorney agents and accordingly executed the sale deeds and got them registered in favour of the purchasers. Various Cooperative House Building Societies and individuals have purchased different extents of lands.
6. One Sri Swamy Ayyappa Cooperative Housing Society Limited (petitioner in W.P.No. 14387 of 1999 out of which W.A.Nos.1769 and 1792 of 2001 arise) purchased a total extent of Ac.140-20 guntas of land in Survey Nos.11/8 to 11/18 situated in Khanamet village near Madhapur in Ranga Reddy District during 1982 from the Trust represented by its President under three different registered documents dated 22-5-1982, 2-7-1982 and 2-8-1982 respectively and took possession of the same from the vendor.
7. One Visveswaraya Engineers Cooperative Housing Society Limited (petitioner in W.P.No. 2398 of 2001) purchased an extent of Ac.49-24 guntas of land situated in the same village under several registered sale deeds on 18-12-1982 and on various subsequent dates. The last sale deed is being dated 30-3-1989.
8. It appears that both the above Cooperative Housing Societies have divided the said land into small housing plots and allotted/sold them to its members. That apart, various other individuals, who are the petitioners in this batch of writ petitions, have also purchased various extents of lands from the Trust represented by its President - B. Kishan Lal.
9. The whole operation alienation for the disposal of the land of the Trust situated in Izzatnagar and Khanamet villages of Ranga Reddy District commenced under the Resolution purported to have been passed by the Trust on 11-3-1981 under the Presidentship of B.Kishan Lal, President of the Trust. The said resolution makes an interesting reading which says that the issue relating to disposal of Gurukul Trust lands situated at Izzatnagar and Khanamet villages was discussed in a meeting at length and the members present were of the unanimous view that it would be more beneficial to dispose of the lands 'as the President informed that fair offers are coming for purchase of all the lands by certain Societies.......The present position of law also does not help keeping of lands over and above the land ceiling and retention of possession on the lands has also become highly impossible because of illegal encroachers (sic.)'. It is under those circumstances, the Committee of the Trust gave its approval for sale of the entire extent of land situated in those two villages and accordingly recommended to its President - B.Kishan Lal to proceed further in the matter for the sale of the lands in his capacity as the President of the Gurukul Committee.
10. That by another Resolution passed on 16-4-1982, B.Kishan Lal, President of the Gurukul Ghatkeshwar Trust, was further authorised to effect the sales of lands at Khanamet and Izzatnagar villages and to execute agreements for sale, sale deeds and power of attorneys for registration before the registering authority and to convey possession of the said agricultural lands to the purchasers/agreement holders and to do all that is necessary and/or incidental for the transfer of the said agricultural lands by way of sale.
11. It is under those two resolutions purported to have been passed by the Committee of the Trust; the whole extent of Ac.627-00 of land belonging to the Trust, which was acquired by the noble men, was alienated. In neither of the resolutions, the purpose for which the lands have been permitted to be sold is revealed. It is not difficult to discern that the whole operation obviously was conceived and executed with an extraordinary finesse by the President of the Trust for his own personal benefit without any concern whatsoever to the noble aims and objects for which purposes the Trust was founded.
12. The President of the Trust in order to facilitate the smooth operation alienation of lands belonging to the Trust applied for and obtained the Certificate dated 20-4-1982 from the Special Officer and Competent Authority, Urban Land Ceilings, Hyderabad declaring that the 'Gurukul Ghatkeswar' Trust satisfies with the conditions laid down in Clause VI of sub-section (1) of Section 19 of the Urban Land (Ceiling and Regulation) Act, 1976 (for short 'the ULC Act') and as such the vacant lands held by the Trust are entitled to get the benefit of exemption provided in Section 19(1) subject to the provisions of Section 19(2) of the ULC Act. The said certificate has been issued in respect of an extent of Ac.421-17 guntas of vacant land in Khanamet village and Ac.167-11 guntas of vacant land in Izzatnagar village, totally for an extent of Ac.588-28 guntas. That is how; initially the operation alienation was commenced by transferring the lands in favour of the chosen Cooperative House Building Societies and as well as some individuals.
13. Sri Swamy Ayyappa Cooperative Housing Society Limited (petitioner in W.P.No. 14387 of 1999) having purchased the land referred to supra got the layout prepared dividing the said land into plots and the same has been temporarily approved by the Gram Panchayat, Kondapur during the year 1982. The said plots were in turn allotted to the individual members of the Society. That some of the allottees approached Serilingampalli Municipality seeking permission and approval of the building plans in order to enable them to proceed with the construction of the buildings in the plots allotted to them by the Society. It appears that some of the plot owners applied for regularisation of the unauthorised constructions already made by them in terms of G.O.Ms.No. 419, M.A., dated 13-7-1998 and G.O.Ms.No. 503, M.A., dated 2-9-1998. The Municipal Council, Serilingampalli informed the applicants vide its letter dated 29-12-1998 to get No Objection Certificate from the Revenue Department for taking further action in the matter. That such a stand has been taken by the Municipal Council on the basis that the Government of Andhra Pradesh, Revenue (Endts-II) Department as well as the Collector, Ranga Reddy District instructed the Municipality not to sanction any building permissions on the land belonging to Gurukul Ghatkeshwar Trust situated at Khanamet village.
14. It is under those circumstances, Sri Swamy Ayyappa Cooperative Housing Society Limited filed W.P.No. 14387 of 1999 with a prayer to issue a writ, order or direction more particularly a writ of Mandamus directing the authorities not to insist for No Objection Certificate from the Revenue Department for the purpose of considering its application for grant of building permission or even for the purpose of alienation of the land by the plot owners. That curiously not the members of the said Society who were aggrieved, but the Society itself has filed the said writ petition.
15. The whole case set up by the said Society is based upon the certificate dated 20-4-1982 issued by the Special Officer and Competent Authority referred to hereinabove declaring that the lands held by the Trust are entitled to get the benefit of exemption provided under Section 19(1) of the ULC Act subject to the provisions of Section 19(2) of the ULC Act. That the Society having purchased the said land applied for and got the layout approved and thereafter allotted the plots to its members and got them registered in their favour and in such view of the matter there is no justification to raise any objection at a later stage questioning the validity of sales and transfers. The whole burden of the song is that the land held by the said Society is exempted from the operation of the provisions of the ULC Act. The sale deeds were executed by the Trust for a valid consideration and there were no legal impediments for purchasing the said lands belonging to the Trust. That is all what has been stated in the affidavit filed in support of the said writ petition.
16. The Government as well as the Fit Person representing the Trust filed detailed counter affidavits opposing the claim of the said Society and we shall briefly advert to the salient features of the counters filed by them.
17. The case set up by the Government is that the purchase of the lands from the Trust is one of the unauthorised transactions of the management of the Trust. Having regard to the purpose for which the Gurukul Ghatkeshwar has been established, it is a charitable institution as defined in the Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act, 1966 (Act 17 of 1966) and as well as the Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act, 1987 (Act 30 of 1987) and its properties are charitable endowments. The combined effect of these provisions is that an alienation made by the Trust without the sanction of the Commissioner is null and void. The land, in law, still belongs to the Trust since the alienations made by the Trust without the prior sanction of the Commissioner is void. The Trust's right to title and possession is not effected in any manner. It is asserted that the issues arising under the provisions of the ULC Act and the issues arising under the provisions of the Act 17 of 1966 and Act 30 of 1987 cannot be mixed up. The writ petitioner-society may have permission/exemption under the provisions of the ULC Act, but not the requisite prior permission of the competent authority under the provisions of the Act 30 of 1987.
18. The learned single Judge having heard the parties allowed the said writ petition and accordingly issued consequential directions directing the Municipality to entertain the applications submitted by the members of the writ petitioner-society for sanction of building plans without insisting for No Objection Certificate from the Revenue authorities.
19. Before we make an analysis of the impugned judgment in order to consider as to whether the same suffers from any errors requiring our interference, it is required to notice certain further details as to what transpired after the President of the Trust sold away the lands in favour of the various third parties.
20. It appears that up to 1982 the functioning of the Trust was smooth, but when the President had chosen to take extreme step of selling away the lands keeping the trustees in dark, some of the trustees having differed with the high handed action of the President got a news item published in the newspapers cautioning the public not to purchase the lands belonging to the Trust. One V. Ramachander Rao and Kranthi Kumar Koratker - trustees submitted a written complaint dated 13-3-1989 requesting the Commissioner, Endowments Department to takeover the management of the Gurukul Ghatkeshwar Trust and its properties and funds. The Commissioner in exercise of the power conferred upon him under Section 6 of the Act 30 of 1987 published the list of charitable and religious institutions in the prescribed manner including this particular institution as a charitable institution vide Rc.No. J3/3529/89, dated 14-3-1989. The same was followed by appointment of Executive Officer to manage the affairs of the Trust. The person in management of the Trust has been kept under suspension by the competent authority in exercise of the power conferred upon him under Section 28 of the Act 30 of 1987 on the ground of mismanagement and misappropriation of the Trust funds. The affairs of the Trust were accordingly entrusted to the Executive Officer of the Department, who has been appointed as a Fit Person.
21. In the meanwhile, the Fit Person entrusted with the management of the Trust initiated proceedings under the provisions of the Act 30 of 1987 seeking declaration that the persons, who are in illegal possession of the land belonging to the Trust under the guise of the purchase from the President of the Trust, are encroachers over the said land. A number of Original Applications against the members of the Cooperative House Building Societies and other persons who purchased the land belonging to the Trust were filed before the Deputy Commissioner and the said proceedings are still under consideration of the Deputy Commissioner.
22. In the meanwhile, the Government of Andhra Pradesh having considered the entire issue relating to the mismanagement resulting in illegal sale of the lands pertaining to the Trust without obtaining permission from the competent authority issued orders in G.O.Ms.No. 703, Revenue (Endts-II) Department, dated 30-9-2000 declaring the sale transactions up to the year 1987 effected by late B.Kishan Lal himself and through his General Power of Attorney agents as null and void. The Commissioner and Inspector General of Registration and Stamps, Hyderabad has been accordingly directed to take necessary further action in the matter.
23. That challenging the said G.O.Ms.No. 703, dated 30-9-2000, a batch of writ petitions has been filed, which is before us for disposal along with W.A.Nos.1769 and 1792 of 2001.
24. This completes the factual matrix of the case.
25. That W.A.Nos.1769 and 1792 of 2001 are filed against the judgment of the learned single Judge allowing W.P.No. 14387 of 1999 filed by Sri Swamy Ayyappa Cooperative Housing Society Limited. The State and two others are the appellants in W.A.No. 1769 of 2001, whereas Gurukul Ghatkeshwar Trust represented by its Fit Person-cum-Correspondent is the appellant in W.A.No. 1792 of 2001.
Submissions:
26. The learned Advocate General appearing on behalf of the appellants-State in the writ appeals strenuously contended that the provisions of the Act 17 of 1966 as well as the provisions of the Act 30 of 1987 are applicable to the Trust, which is admittedly a charitable trust. Its registration as a charitable trust is not a condition for applicability of the provisions of those Acts. The learned Judge committed an error in commenting that it is doubtful which of the Acts applies to the institution in question. That under the provisions of both the Acts as they were in force at the relevant time, if any sale, exchange or mortgage of any immovable property belonging to any charitable or religious institution or endowment is effected, without the prior sanction of the Commissioner or the Government, such transaction shall be null and void. The learned Advocate General contended that the alienation of the trust properties by the President shall be deemed to be null and void thereby conveying no right, title or interest in favour of the purchaser. It was further submitted that the learned Judge committed an error in holding that the purchasers have perfected their title by adverse possession. The judgment under appeal, according to the submissions of the learned Advocate General, suffers from incurable legal infirmities. The learned Advocate General also submitted that the orders in G.O.Ms.No. 703, dated 30-9-2000 do not suffer from any legal infirmities. The Government merely declared the transactions alienating the trust properties as null and void, which is so obvious and self evident from the provisions of the Act 17 of 1966 as well as Act 30 of 1987. The question as to whether the purchasers are the encroachers is required to be gone into by the Deputy Commissioner who is the competent quasi-judicial authority to determine such question for which purpose the proceedings have already been initiated for and on behalf of the Trust through the Fit Person.
27. Sri M.N. Narasimha Reddy, appearing on behalf of Sri Swamy Ayyappa Cooperative Housing Society Limited - respondent-writ petitioner in writ appeals, contended that various proceedings issued by the competent authorities themselves reveal that the lands that were held and alienated are exempted under the provisions of the ULC Act. Necessary enquiries were made as to the validity of the transfers under the provisions of the ULC Act and in the process the Government and various other authorities had noticed the sale of the lands by the President of the Trust ever since 1982 and in spite of such notice, no objection has been raised for such alienation until 1998 when the Government as well as the Endowment authorities have started raising objections as to the validity of the sale transactions. It was submitted that vested rights cannot be unsettled in an arbitrary and discriminatory manner by the authorities. It was also contended that the proceedings have been initiated against the writ petitioner-society alone and not against all the Cooperative House Building Societies and various individuals who purchased the lands from the very same President of the Trust, which is nothing but discriminatory and violative of Article 14 of the Constitution of India. It was also contended that the permission by the competent authority under the provisions of the Act 17 of 1966 and Act 30 of 1987 is directory since it is only an enabling provision. It is not as if the properties of the Trust can never be sold under any circumstances. The prior requirement of obtaining permission from the competent authority under the provisions of the Act 17 of 1966 and Act 30 of 1987 before alienation of the properties of the Trust is only a procedural one.
27. Sarvasri A. Pulla Reddy, O. Manohar Reddy, C. Sunil Kumar Reddy, Raj Kumar Rudra and G.Ramachandra Reddy, learned counsel appearing on behalf of the writ petitioners in this batch of writ petitions, mainly attacked the order of the Government issued in G.O.Ms.No. 703, dated 30-9-2000. It was submitted that setting aside the sales without putting the effected parties on prior notice is in violation of principles of natural justice. That alienation of immovable properties belonging to any charitable institution or endowment by the institution is not completely prohibited and, therefore, the requirement of prior permission of the Commissioner is only a procedural one. It was also contended that Gurukul Ghatkeshwar Trust that was established in the year 1938 was not under the purview of the Endowments Department and for the first time the same was brought under the purview of the Endowments Department after the new Act 30 of 1987 came into force with effect from 28-5-1987, by which time the Trust has already alienated all the lands including the lands purchased by the writ petitioners. Since the Trust itself was not even registered under the Act the question of obtaining prior permission from the competent authority does not arise.
28. These are the broad submissions made in this batch of cases, in which we are required to consider the correctness of the impugned judgment of the learned single Judge as well as the validity of G.O.Ms.No. 703, dated 30-9-2000.
29. Notwithstanding the variety of submissions made across the Bar during the course of hearing of this batch of writ appeals and writ petitions, the crucial question that falls for consideration is as to what is the effect of alienation of immovable property belonging to a charitable or religious institution or endowment, without the prior sanction of the Commissioner or the Government, as the case may be?
30. Before we take up the said question, we shall dispose of an half-hearted submission made by the Counsel for the writ petitioners relating to the applicability of the provisions of either of the Acts i.e. Act 17 of 1966 and Act 30 of 1987 to the institution in question.
31. The submission was that in the absence of registration of Gurukul Ghatkeshwar Trust, as is required under the provisions of the Act 17 of 1966, the provisions of the said Act as well as the provisions of the later Act 30 of 1987 are not applicable to this particular institution. Act 17 of 1966 has been enacted with a view to consolidate and amend the law relating to the administration and governance of Charitable and Hindu Religious Institutions and Endowments in the State of Andhra Pradesh. The said Act came into force in the whole of the State of Andhra Pradesh with effect from 26-1-1967.
32. Clause (a) of sub-section (3) of Section 1 of the Act 17 of 1966 in clear and categorical terms declares that the Act applies to all public charitable institutions and endowments, whether registered or not in accordance with the provisions of the Act other than wakfs governed by the provisions of the Wakf Act, 1954.
33. Section 2 (4) defines 'charitable institution' which means any establishment, undertaking, organisation or association formed for a charitable purpose and includes a specific endowment.
34. Sub-section (5) of Section 2 defines 'charitable purpose' which includes (a) relief of poverty or distress; (b) education; (c) medical relief; (d) advance of any other object of utility or welfare to the general public or a section thereof, not being an object of an exclusively religious nature.
35. Sub-section (3) of Section 2 defines 'charitable endowment' which means all property given or endowed for any charitable purpose.
36. It is unnecessary to further dilate on the subject since there is no controversy whatsoever that Gurukul Ghatkeshwar Trust is a charitable institution and the properties given and endowed were for a charitable purpose and thereby its properties are charitable endowments.
37. It is no doubt true that Section 38 of the Act 17 of 1966 provides for registration of charitable and religious institutions and endowments and prescribes the procedure therefor. Section 39 of the Act 17 of 1966 confers power upon the Commissioner to have the institution or endowment registered in case where any trustee or management of a charitable institution or endowment fails to apply for the registration of the institution or endowment.
38. That a plain reading of the provisions referred to hereinabove makes it abundantly clear that the provisions of the Act 17 of 1966 apply to all public charitable institutions and endowments, whether registered or not in accordance with the provisions of the Act.
39. The said Act 17 of 1966 has been repealed by the Act 30 of 1987, which came into force with effect from 23-5-1987. That the application of the provisions of Act 30 of 1987 to all public charitable institutions and endowments, whether registered or not in accordance with the provisions of the Act continues to be the same as in Act 17 of 1966. There is no change in the law so far as that particular aspect of application of the provisions to all public charitable institutions and endowments is concerned. The definition of 'charitable institution' and 'charitable endowment' continues to be the same. In view of the clear provisions, both under the Act 17 of 1966 and Act 30 of 1987, the issue relating to the applicability of the provisions of both the Acts to the institution in question need not detain us any longer. The provisions are, undoubtedly, applicable and the trust, in law, is required to conduct the management of its affairs strictly in accordance with the provisions of the Act 17 of 1966 so long as it was in force and thereafter in accordance with the provisions of the Act 30 of 1987, which continues to be in force as on the date. Mere fact that the authorities failed to act in the matter to get the institution registered under the provisions of the Act is of no legal consequence. The submissions made in this regard are totally untenable and unsustainable. We accordingly reject the submissions made in this regard.
40. Now we shall proceed to consider the crucial question relating to the alienation of immovable properties by the Trust without permission from the competent authority as is required in law.
41. It would be convenient at this stage to notice the relevant provisions under the Act 17 of 1966 and Act 30 of 1987, which are to the following effect:
Act 17 of 1966
Act 30 of 1987
Sec.74. Alienation of immovable property.- (1) (a) Any gift, sale, exchange or mortgage of any immovable property belonging to or given or endowed for the purpose of any charitable or religious institution or endowment shall be null and void unless any such transaction, not being a gift, is effected with the prior sanction of the Commissioner.
(b) The Commissioner may, after publishing in the Andhra Pradesh Gazette the particulars relating to the proposed transaction and inviting any objections and suggestions, if any, received from the trustee or other person having interest, accord such sanction where he considers that the transaction is-
(i) necessary or beneficial to the institution, or endowment;
(ii) consistent with the objects of the institution or endowment; and
(iii) the consideration therefor is reasonable and proper.
(c) Every sale of any such immovable property sanctioned by the Commissioner under clause (b) shall be effected by 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.
(1) (d) - (f) .......
(2) (a) - (c) .......
(3) - (6) .......
Sec.80. Alienation of immovable property:- (1) (a) Any gift, sale, exchange or mortgage of any immovable property belonging to or given or endowed for the purpose of any charitable or religious institution or endowment shall be null and void unless any such transaction, not being a gift, is affected with the prior sanction of the Commissioner.
(b) The Commissioner, may, after publishing in the Andhra Pradesh Gazette the particulars relating to the proposed transaction and inviting any objections and suggestions with the 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,--
(i) prudent and necessary or beneficial to the institution or endowment;
(ii) in respect of immovable property which is uneconomical for the institution or endowment to own and maintain; and
(iii) the consideration therefor is adequate and proper.
(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.......
Explanation:- ......
(2) (a) - (c) ............
(3) - (8) ................
Sec.81. Invalidation of unauthorised sale:- Where before the commencement of this Act, any sale, exchange, or mortgage of any immovable property belonging to any charitable or religious institution or endowment is effected, without the prior sanction of the Commissioner or Government such transaction shall be null and void and shall be deemed never to have been effected and accordingly no right or title in such property shall vest in any person acquiring the property by such transaction and any such property shall be deemed to be the property of the institution or endowment concerned and any person in possession of such property shall be deemed to be an encroacher and thereafter the provisions of Sections 84 and 85 shall apply.
42. That a plain reading of the provisions referred to supra makes it abundantly clear that any alienation of immovable property belonging to any charitable institution or endowment without the prior sanction of the Commissioner shall be null and void. There cannot be any sale of immovable properties belonging to any charitable or religious institution or endowment without complying with the formalities specified in the said provisions.
43. A further reading of Section 81 of Act 30 of 1987 makes it abundantly clear that the legislature intended to invalidate all the unauthorised alienations by way of sale, exchange or mortgage belonging to any charitable or religious institution or endowment without the prior sanction of the Commissioner or the Government, as the case may be. It is a clear legislative declaration. The provisions provide for the consequences of alienation of immovable properties belonging to a charitable or religious institution or endowment without prior sanction of the Commissioner or the Government, as the case may be, since all such transactions are declared as null and void and shall be deemed to have been never effected. Such transactions of alienations without the prior sanction of the Commissioner or the Government, as the case may be, confers no right, title or interest over such property in any person acquiring the property by such transaction and it further declares that all such properties alienated without the prior sanction of the Commissioner shall be deemed to be the property of the institution or the endowment concerned and any person in possession of such property shall be deemed to be an encroacher against whom appropriate proceedings under the Act could be initiated.
44. The provisions do not admit more than one interpretation. The requirement of prior sanction is mandatory in its nature and non-compliance thereof is fatal to the alienation so made. That grant of sanction by the competent authority is not a matter of any empty formality or ritual. Sanction may be accorded only in cases where the competent authority considers that the proposed transaction is (i) prudent and necessary or beneficial to the institution, or endowment; (ii) in respect of immovable property which is un-economical for the institution or endowment to own and maintain; and (iii) the consideration therefor is adequate and proper. It is not the satisfaction of those who are entrusted with the management of the institution concerned, but it is the satisfaction of the competent authority as provided for under the provisions referred to hereinabove. In such view of the matter, the so-called resolution purported to have been passed by the trust authorising its President to alienate the immovable properties of the trust on the ground that 'retention of possession on the lands has also become highly impossible and it would be more beneficial to dispose of the lands, etc.,' is of no consequence. Such resolutions cannot override the statutory provisions. The genuineness of resolutions itself is seriously disputed by the State as well as Fit Person about which we do not propose to make any further enquiry.
45. In Mannalal Khetan v. Kedar Nath Khetan1 the Apex Court stated the principle succinctly:
'It is well established that a contract which involves in its fulfilment the doing of an act prohibited by statute is void. The legal maxim A pactis privatorum publico juri non derogatur means that private agreements cannot alter the general law. Where a contract, express or implied, is expressly or by implication forbidden by statute, no court can lend its assistance to give it effect. (See Mellis v. Shirley L.B. (1885) 16 QBD 446). What is done in contravention of the provisions of an Act of the legislature cannot be made the subject of an action.'
46. It is a very well settled and well accepted rule of construction that when consequence of nullification on failure to comply with the prescribed requirement is provided by the statute itself, such statutory requirement must be interpreted as mandatory.
47. We shall, however, bear in mind the principle stated by LORD CAMPBELL in an oft-quoted passage:
'No universal rule can be laid down as to whether mandatory enactments shall be considered directory only or obligatory with an implied nullification for disobedience. It is the duty of Courts of justice to try to get at the real intention of the Legislature by carefully attending to the whole scope of the statute to be considered'. (See: Liverpool Borough Bank v. Turner, (1861) 30 LJ Ch 379 and B.K. Srinivasan v. State of Karnataka, : [1987]1SCR1054 . Chinnappa Reddy, J in B.K. Srinivasan (3 supra), observed, 'the question whether a statutory requirement is mandatory or directory cannot itself be answered easily as was pointed out more than a century ago in Liverpool Borough v. Turner (2 supra). Many considerations must prevail and the object and the context are the most important. These are not simple chemical reactions.'
48. That one mode of showing a clear intention that the provision enacted is mandatory, is by clothing the command in a negative form. 'Prohibitive or negative words can rarely, if ever, be directory. And this is so even though the statute provides no penalty for disobedience'. Subbarao, J, pointed out more than 40 years ago in M.P entiah v. Muddala Veeramallappa, : [1961]2SCR295 that 'negative words are clearly prohibitory and are ordinarily used as a legislative device to make a statute imperative'.
49. In Mannalal Khetan (1 supra), the Apex Court stated the principle that the mandatory character of a provision is strengthened by the negative form of the language. 'Negative language is worded to emphasise the insistence of compliance with the provisions of the Act. Prohibition and negative words can rarely be directory. Therefore, negative, prohibitory and exclusive words are indicative of the legislative intent when the statute is mandatory'.
50. The expressions 'shall be null and void unless any such transaction.......is affected with the prior sanction of the Commissioner' employed in the provisions referred to hereinabove are crucial expressly showing the legislative intention that the provisions are mandatory.
51. In Chenchu Rami Reddy v. Govt. of A.P., : [1986]1SCR989 the Supreme Court while interpreting the very Section 74 of the Act 17 of 1966 observed that the properties belonging to institutions or endowments must be jealously protected. 'It must be protected, for, a large segment of the community has beneficial interest in it (that is the raison d'etre of the Act itself). The authorities exercising the powers under the Act must not only be most alert and vigilant in such matters but also show awareness of the ways of the present day world as also the ugly realities of the world of today. They cannot afford to take things at their face value or make a less than the closest-and-best-attention approach to guard against all pitfalls. The approving authority must be aware that in such matters the trustees, or persons authorised to sell by private negotiations, can, in a given case, enter into a secret or invisible underhand deal or understanding with the purchasers at the cost of the concerned institution'. The provision was held to be a mandatory one.
52. In the result, we hold that the transactions of sale of lands belonging to Trust by its President are invalid, void ab initio and the same do not confer any valid title upon the purchasers. The said transactions are hit by the mandatory provisions of the Act 17 of 1966 and as well as the Act 30 of 1987.
53. We are not impressed by the submission that the required sanction in law shall be deemed to have been granted since the Government as well as the Special Officer and Competent Authority, Urban Land Ceilings, granted exemption exempting the lands held by the Gurukul Ghatkeshwar Trust from the provisions of ULC Act. The submission does not merit any consideration.
54. For the aforesaid reasons, we are constrained to hold that the alienation of immovable properties belonging to Gurukul Ghatkeshwar Trust by its President is totally void and inoperative.
Adverse possession:
55. In the process of considering the question as to whether the Municipality could have insisted for No Objection Certificate from the Revenue Department in order to enable it to consider the request of the writ petitioners to grant building permissions and/or regularisation of the unauthorised constructions already made, the learned single Judge in the judgment under writ appeals went to the extent of holding that the members of the writ petitioner-society have perfected their title by adverse possession.
56. It needs no restatement in our hands that plea of adverse possession is a mixed question of fact and law and such disputed questions of fact cannot be resolved in a proceeding under Article 226 of the Constitution of India. It is a well-recognised principle of law that common law remedy is an appropriate remedy for settlement of disputes relating to the property rights between the parties. 'The High Court cannot allow the constitutional jurisdiction to be used for deciding disputes, for which remedies, under the general law, civil or criminal, are available. It is not intended to replace the ordinary remedies by way of a suit or application available to a litigant. The jurisdiction is special and extraordinary and should not be exercised casually or lightly' (See for the proposition: New Satgram Engineering Works v. Union of India, : [1981]1SCR406 ; Mohan Pandey v. Usha Rani Rajgaria, : [1992]3SCR904 ; State of M.P. v. M.V. Vyavsaya, : AIR1997SC993 ; Lambadi Pedda Bhadru v. Mohd. Ali Hussain, : 2003(4)ALD673 ; and Union of India v. S.M. Hussain Rasheed, : 2003(5)ALD150 ).
57. Be it as it may, there is no such plea of adverse possession taken by the writ petitioners in the affidavit filed in support of the writ petition. There is not even a whisper about the writ petitioners perfecting their title by adverse possession. With respect, we are unable to sustain the finding recorded by the learned single Judge virtually declaring the title of the members of the writ petitioner-society in W.P.No. 14387 of 1999 in the absence of any such plea and material in support of it.
Whether the impugned G.O. is void?
58. The governmental order issued in G.O.Ms.No. 703, dated 30-9-2000 merely reiterated the legal position. The said order, in our considered opinion, does not suffer from any legal infirmities. It is not the case of the writ petitioners that such permission/sanction has been granted by the competent authority enabling the President of the Trust to alienate its immovable properties. In such view of the matter, no useful purpose would have been served by putting the writ petitioners on notice. It could have been a useless formality since the one and only conclusion is possible that is to hold that the alienation is void and inoperative. The government merely declared and enunciated what is otherwise is clear and obvious as to the void nature of transaction of sale of trust lands by the President of the Trust contrary to mandatory provisions of law.
Whether the impugned action is discriminatory?
59. The contention that the proceedings have been initiated only against the writ petitioners leaving other individuals and Societies who purchased the lands from the very same President of the Trust in similar manner as that of the writ petitioners is discriminatory in its nature, is devoid of any merit. Mere fact that the State, so far, did not initiate any action against the similarly placed purchasers itself cannot be a ground for setting aside the action initiated against the writ petitioners. It is a different matter as to what order could have been passed by this Court had the writ petitioners provided the requisite details of those Societies and individuals against whom action has not been initiated by duly impleading them in the writ petitions. This Court in exercise of its jurisdiction under Article 226 of the Constitution of India cannot compel the statutory authority to validate the transactions, which are otherwise void and inoperative in law. A writ of Mandamus does not lie compelling the State and its instrumentalities to act contrary to law. Two wrongs together cannot make one right. The impugned action, therefore, cannot be held to be discriminatory in its nature and violative of fundamental rights guaranteed under Article 14 of the Constitution of India.
60. In Chandigarh Administration V Jagjit Singh, : [1995]1SCR126 the Supreme Court while considering the question of alleged discrimination and as to when it would arise necessitating grant of same relief, observed:
'Generally speaking, the mere fact that the respondent-authority has passed a particular order in the case of another person similarly situated can never be the ground for issuing a writ in favour of the petitioner on the plea of discrimination. The order in favour of the other person might be legal and valid or it might not be. That has to be investigated first before it can be directed to be followed in the case of the petitioner. If the order in favour of the other person is found to be contrary to law or not warranted in the facts and circumstances of his case, it is obvious that such illegal or unwarranted order cannot be made the basis of issuing a writ compelling the respondent-authority to repeat the illegality or to pass another unwarranted order. The extraordinary and discretionary power of the High Court cannot be exercised for such a purpose. Merely because the respondent-authority has passed one illegal/unwarranted order, it does not entitle the High Court to compel the authority to repeat that illegality over again and again. The illegal/unwarranted action must be corrected, if it can be done according to law - indeed, wherever it is possible, the Court should direct the appropriate authority to correct such wrong orders in accordance with law - but even if it cannot be corrected, it is difficult to see how it can be made a basis for its repetition. By refusing to direct the respondent-authority to repeat the illegality, the Court is not condoning the earlier illegal act/order nor can such illegal order constitute the basis for a legitimate complaint of discrimination. Giving effect to such pleas would be prejudicial to the interests of law and will do incalculable mischief to public interest. It will be a negation of law and the rule of law. Of course, if in case the order in favour of the other person is found to be a lawful and justified one it can be followed and a similar relief can be given to the petitioner if it is found that the petitioners' case is similar to the other persons' case. But then why examine another person's case in his absence rather than examining the case of the petitioner who is present before the Court and seeking the relief. Is it not more appropriate and convenient to examine the entitlement of the petitioner before the Court to the relief asked for in the facts and circumstances of his case than to enquire into the correctness of the order made or action taken in another person's case, which other person is not before the case nor is his case. In our considered opinion, such a course - barring exceptional situations - would neither be advisable nor desirable. In other words, the High Court cannot ignore the law and the well-accepted norms governing the writ jurisdiction and say that because in one case a particular order has been passed or a particular action has been taken, the same must be repeated irrespective of the fact whether such an order or action is contrary to law or otherwise. Each case must be decided on its own merits, factual and legal, in accordance with relevant legal principles. The orders and actions of the authorities cannot be equated to the judgments of the Supreme Court and High Courts nor can they be elevated to the level of the precedents, as understood in the judicial world.'
61. For the aforesaid reasons, we do not find any merit in the submission made in this regard and we accordingly reject the same.
Conclusion:
62. We have already noticed that the proceedings against some of the writ petitioners have already been initiated under the provisions of the Act 30 of 1987 before the competent authority seeking appropriate declaration as against them to be the encroachers of the land on the ground that the sale of the land by the President of the Trust did not confer any right, title or interest in the purchasers. The proceedings are stated to be pending consideration before the competent authority.
63. The transactions of alienation of immovable properties of the Trust have taken a long time ago. There is no suggestion that the writ petitioners have also played any fraud and obtained the sale deeds by misrepresentation. There is also no allegation that the purchasers have not paid any sale consideration. Most of the purchasers appear to be persons coming from the lower strata and middle-income group. That hundreds of people, if not thousands, appear to have purchased the properties belonging to the Trust. The person who indulged in the nefarious activity of selling away the endowed lands for personal gain is no more. The department is stated to have already filed civil suits to recover the sale consideration as against the person who realised the same but did not deposit into the account of the Trust. The legal representatives of the deceased B.Kishan Lal are stated to have been brought on record. Even criminal cases have been registered in this regard.
64. The action under the provisions of the Act 30 of 1987 appears to have been initiated not against all the purchasers but only against some of them even after issuing the order in G.O.Ms.No. 703, dated 30-9-2000 declaring all such transactions to be void.
65. It is brought to our notice that the Government having constituted a Cabinet Sub-committee for suggesting a reasonable package for regularisation of unauthorised encroachments of endowments lands and for disposal of vacant and uneconomic endowments properties ultimately considered the recommendations of the said Cabinet Sub-committee and issued guidelines in G.O.Ms.No. 405, Revenue (Endowments-II) Department, dated 4-7-2002 for regularisation of unauthorised encroachments without prejudice to the right of institutions to evict the encroachments. The Government in the said G.O., prescribed an elaborate procedure and has decided to regularise those encroachments in Urban areas that existed as on 31st December, 1990.
66. Section 89 of the Act 30 of 1987 confers power and jurisdiction upon the Commissioner of Endowments to pass an order directing the trustee or other person in charge of the management of the institution or endowment to enter into a compromise if the other party to a suit or other legal proceedings is willing to enter into a compromise under such terms and conditions which he considers acceptable in the interest of the institution or endowment.
67. Having regard to the totality of the facts and circumstances of the case, we are inclined to leave the remedies of the writ petitioners open to approach the Commissioner of Endowments as well as the Government seeking appropriate relief, in which event the Commissioner of Endowments and/or the Government shall consider the same subject to such terms and conditions as they may consider fit and proper in the background of the facts and circumstances and also in the light of the observations made in this judgment.
68. The writ petitioners, if they are so interested, may file appropriate applications before the competent authorities within eight weeks from today and in such an event the same shall be disposed of within four months from the date of filing of the same.
69. During the pendency of consideration of the request, if any, to be made by the writ petitioners, by the competent authorities, the writ petitioners shall not make any construction of whatsoever nature and shall maintain status quo existing as on today in all respects. They shall not alienate or encumber the lands in their possession or any portion thereof in any manner whatsoever.
70. In the result, the impugned judgment under W.A.Nos.1769 and 1792 of 2001 is set aside. The writ appeals are accordingly allowed.
71. The writ petitions are accordingly disposed of in terms of the limited direction supra. There shall be no order as to costs.