Indian principle that in the event of war, priests and properties endowed to places of worship must not be touched: AP High Court

For several centuries, our country had a principle in law of war to the effect that in the event of an invasion also, the priests and properties endowed to places of worship must not be touched. That is how, the properties of Temples remained intact even after the country was subjected to foreign invasions. Instances are not lacking where, the invaders have rendered services also.

ANDHRA PRADESH HIGH COURT

SINGLE BENCH

( Before : L. Narasimha Reddy, J )

C. VENKATAIAH — Appellant

Vs.

DISTRICT COLLECTOR AND OTHERS — Respondent

Writ Petition No. 5728 of 1996

Decided on : 13-04-2006

Land Acquisition Act, 1894 – Section 17, Section 17(4), Section 4(1), Section 5A, Section 6
Counsel for Appearing Parties

O. Manohar Reddy, for the Appellant; Government Pleader for Land Acquisition, for the Respondent

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L. Narasimha Reddy, J.—This writ petition is filed assailing the action of the respondents in proposing to acquire the lands belonging to Sri Anjaneya Swamy Temple at Gotlur, Dharmavaram Mandal of Anantapur District. The petitioner states that he is an ardent devotee of the temple. According to him, there is no independent source of income, for the maintenance of the temple, and that an extent of Ac.9.45 cents in Sy.No. 63, endowed to it; was being leased out after deliberations among the village elders, Trust Board members etc. He submits that the entire land belonging to the temple is sought to be acquired for the purpose of providing house sites, and no opportunity was given, either to the villagers or to the interested persons, to put forward their contentions. It is urged that the petitioner and other devotees came to know about the notifications issued u/s 4(1) and 6 of the Land Acquisition Act (for short ‘the Act’) on 20-02-1996, only when they were published on 24-02-1996 and 29-2-1996 respectively.

2. It is alleged that an extent of Ac.20.00 belonging to Sri Chenna Kesava Swamy Temple of the same village was acquired for house sites on a previous occasion, and most of the beneficiaries have not even occupied the allotted plots. It is also pleaded that the land, which is proposed to be acquired, is at a distant place and not suitable for house sites. The petitioner raises a legal contention to the effect that dispensing with the enquiry u/s 5-A of the Act, in the instant case, is illegal on account of the fact that the appropriate Government did not issue any directions as provided for u/s 17(4) of the Act.

3. On behalf of the respondents, a counter-affidavitAffidavit An ex parte statement in writing made under oath before a notary public or other officer authorized to administer oaths, about facts which the affiant either knows of his own personal knowledge or is aware of to the best of his knowledge. is filed. It is pleaded that the land is needed for providing house sites to the poor, and invoking the powers under the relevant provisions of the Act, the impugned notifications were issued, and that there is no illegality. The contention of the petitioner that the plots, carved out of 20 acres of land, belonging to Sri Chenna Kesava Swamy Temple, were not occupied; is not specifically denied. It is stated that plots have been distributed out of the said land. The allegation of the petitioner that the land proposed to be acquired is situated at a distance of 2 K.Ms., is admitted. However, the contention that it is not suitable for house sites is denied. It is stated that the object in filing the writ petition is to protect the existing tenant. The respondents raised an objection as to the locus standi of the petitioner.

4. Sri O. Manohar Reddy, learned Counsel for the petitioner submits that his client is very much interested in protecting the properties of the temple, and it cannot be said that he does not have the locus standi. He contends that the respondents have chosen the lands belonging to one temple or the other and thereby, they are trying to deprive the temples, of their source of income. Learned Counsel emphasizes that (dispensing with) the enquiry u/s 5-A of the Act is the only opportunity provided to the affected parties, in the matter of compulsory acquisition of lands, and the same cannot be dispensed with, mechanically. He contends that Section 17(4) of the Act enables dispensing with the enquiry u/s 5-A, only when it is so directed by the appropriate Government, and that such a direction was not at all issued in the instant case.

5. Learned Government Pleader for Land Acquisition submits that the procedure prescribed under the Act has been strictly followed, in the instant case. He pleads that the Land Acquisition Act, as amended by the A.P. State Legislature, empowers the 1st respondent, to dispense with the enquiry u/s 5-A. He contends that the discretion exercised by the respondents, in selecting the land; is not subject to judicial scrutiny.

6. Strong objection is raised on behalf of the respondents as to the locus standi of the petitioner to file the writ petition. Even while admitting the writ petition, this Court pointed out that the person-in-charge of the temple, being an employee, cannot be expected to raise any objection for the acquisition, and having regard to the nature of interests involved, it cannot be said that the petitioner does not have locus standi. Much water has flown, ever since the writ petition was admitted ten years ago. The concept of locus standi has almost become otiose, particularly when the person does not claimA Claim A claim is “factually unsustainable” where it could be said with confidence before trial that the factual basis for the claim is entirely without substance, which can be the case if it were clear beyond question that the facts pleaded are contradicted by all the documents or other material on which it is based. any interest or relief for himself. Therefore, the objection raised on behalf of the respondents is overruled.

7. The contentions advanced on behalf of the petitioner are twofold: the first is in relation to the legality of the proceedings, and the second is about propriety. It was specifically pleaded in paragraphs 5, 6 and 7 of the affidavit, filed in support of the writ petition, that Sub-section (4) of Section 17 of the Act empowers only the appropriate Government to direct, that the provisions of Section 5-A of the Act shall not apply, and it is only when such directions are issued, that a declaration u/s 6 can be published at anytime, after the publication, u/s 4(1), without conducting enquiry u/s 5-A of the Act. The petitioner pleaded that the appropriate Government did not issue any direction in the instant case. This statement of the petitioner was not denied by the respondents in their counter affidavit. Therefore, the contention of the petitioner remains unrebutted.

8. It needs to be borne in mind that compulsory acquisition of lands results in curtailment of right of citizens, to own, possess and enjoy the properties, and such curtailment can be brought about only after strict compliance with the relevant provisions. Further, it is settled principle, that, where the law requires a particular thing to be done in a particular manner, it shall be done in that manner, or not at all. The Government or the concerned authority does not have the prerogative to ignore or short-circuit the prescribed procedure.

9. When the Legislature has prescribed a particular procedure, in the context of denying the only protection of a citizen to make a representation, the 1st respondent cannot be permitted to ignore the same, and act according to his whims. The A.P. State Legislature amended Sub-section (2) of Section 17, enabling the Government to invoke urgency clause, whenever any land is proposed to be acquired, for the purposes indicated therein. The provision does not suggest that the District Collector or the appropriate Government must invariably dispense with the enquiry u/s 5-A, while acquiring the lands for the purposes indicated therein. The urgency, in its true sense and spirit; must exist. For instance, where the proposal for acquiring the land was pending for years together, the urgency cannot be felt, only in the matter of maintaining a gap of 30 days, between the notification, u/s 4(1), on the one hand, and the one, u/s 6, on the other hand, for the purpose of conducting enquiry u/s 5-A. The insistence, u/s 17(4), by the Legislature, that urgency clause can be invoked only when directed by the appropriate Government, has its own significance, and is a protection against indiscriminate invocation of urgency clause. Therefore, the action of the respondents in dispensing with the enquiry u/s 5-A, without there being a direction by the appropriate Government, as provided for u/s 17(4) of the Act; cannot be sustained in law.

10. Coming to the contention, touching on propriety, this Court is compelled to observe that the lands that were endowed to temples by the ardent devotees several decades and centuries ago, have unfortunately become soft targets, equally for land encroachers and the Government. In a way, it can be said that the tendency points to the decline in moralMorality Mental frame. It can be high morality or low morality, savage morality or civilised morality or Christian morality, or Nazi morality. Decent Behaviour is acceptable norms of the nations. Christian morality starts with the belief that all men are sinners and that repentance is the cause of divine mercy. Putting Crucified Christ in between is the destruction of Christian morality and logic. Now morality shifted to the personal choice of Jesus. What Jesus did is 'good'. The same would be the case of Ram, Krishna, Muhammad, Buddha, Lenin, etc. Pure Human Consciousness degraded to pure followership. There exists no proof the animals are devoid of morality. values in the society. Instead of discouraging such tendencies, the Government is encouraging them. If any proof is required, the present case provides for one.

11. It was categorically pleaded that an extent of 20 acres of land, belonging to Sri Chenna Kesava Swamy Temple was acquired for the purpose of house sites, and that several plots allotted to the beneficiaries remained unoccupied. This allegation is not controverted. It was also pleaded by the petitioner that the land of Sri Anjaneya Swamy Temple, which is sought to be acquired, is at a distance of 2 K.ms. away from the village and the respondents admitted this. Had the respondents been interested in the welfare of the citizens and in providing house sites to the poor, they could have acquired the lands abutting the village. They were confident that there would be none, to oppose the acquisition of lands, belonging to temples, whether they are fit for house sites or not. No other reason is either pleaded by them or appears to be evident.

12. It was with a specific purpose that the lands were endowed to the temples by the generous people. For several centuries, our country had a principle in law of war to the effect that in the event of an invasion also, the priests and properties endowed to places of worship must not be touched. That is how, the properties of Temples remained intact even after the country was subjected to foreign invasions. Instances are not lacking where, the invaders have rendered services also. The survey and construction of the 1st ghat road to Thirumala stands as an example. After independence, governments, as well as the native people, have acquired courage and strength to occupy or plunder such properties.

13. The lands endowed to Religious Institutions will generate periodical income, or, at least, would remain as assets. Once they are converted into liquid cash, the amount would be spent away, if not immediately, in the near future, and the very purpose of endowing the property would be defeated. Some of the officials of the Endowments Department have also exhibited complacency in the matter. In most of the cases encroachments are taking place on account of the indifference exhibited by the concerned authorities, and acquisition is projected as a better alternative. Such an approach was never contemplated when the religious institutions were brought under the control of the Government. Therefore, this Court finds that the respondents lacked propriety, in choosing the lands of the temples alone, for the purpose of providing house sites even after it was found to be located far away from the village.

14. Once it is held that the dispensing with the enquiry u/s 5-A of the Act was contrary to Section 17(4) of the Act, the notification issued u/s 6 must be set aside. Then remains the question, as to whether it would be permissible for the 1st respondent to issue fresh notification u/s 6, on the basis of the notification issued u/s 4(1) of the Act.

15. In. W.P.No. 15717 of 1998, this Court held that in view of the judgments rendered by the Supreme Court, it is impermissible to issue a fresh declaration u/s 6, beyond one year, once such a notification is set aside.

16. For the foregoing reasons, the writ petition is allowed as prayed for. It is further directed that the respondents shall be entitled to initiate fresh proceedings, in respect of the land in question, only after a clear finding is recorded to the effect that, no other land in the locality or vicinity is available for acquisition, and after obtaining necessary approval from the Government in the revenue department and the Commissioner of Endowments. They in turn, shall ascertain the views of the Trust Board of the Temple and other persons concerning it, before taking any decision in this regard.

17. An averment was made in the counter affidavit to the effect that the present writ petition is filed only at the instance of an existing lessee. In view of such a contention, it is directed that the leasehold rights of the land shall be put to auction every year, and the amount so secured, shall be deposited to the account of the temple.

18. There shall be no order as to costsCosts Subject to any written law, costs are at the discretion of the Court, and the Court has the power to determine all issues relating to the costs of or incidental to all proceedings, including by whom and to what extent the costs are to be paid, at any stage of the proceedings or after the conclusion of the proceedings. Generally “Costs” includes charges, disbursements, expenses, fees, and remuneration. Costs in any matter are payable from the date of the order of the Court unless the parties otherwise agree. The costs of a third-party funding contract are not recoverable as part of the costs of, or costs..

(2006) 3 ALT 735 : (2006) 4 AndhLD 17