Jampala Yadaiah And Two Others vs The Commissioner Endowments And 34 ... on 25 April, 2013

[Cites 20, Cited by 3]

Andhra HC (Pre-Telangana)

Jampala Yadaiah And Two Others vs The Commissioner Endowments And 34 ... on 25 April, 2013

2. The subject temple is Sri Mallikarjuna Swamy Temple, Komaravalli village, Cheryal mandal, Warangal District and based on the income, it is published under Section 6(a)(ii) of the Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act, 1987 (A.P. Act No.30 of 1987), and is being managed by the Executive Officer in the cadre of Deputy Commissioner under the administrative control of Commissioner of Endowments. In the said temple, there is a custom and usage with regard to offering of human hair by the devotees to the deity and the temple collects fee from the devotees towards tonsuring. Out of the said fee, 1/3rd of the amount will be given to service holders i.e., barbers, and 2/3rd will go to the temple. Nine persons belonging to Jampala family were stated to be recognized for tonsuring as per the records of the temple and they are offering services. During the periods of heavy rush, not only the said nine persons, other 23 persons were being engaged by Jampala family in the work of tonsuring and out of the said 1/3rd amount, which is paid to nine members of Jampala family, the same is being distributed by the said family to other members. The members, who are engaged by Jampala family for tonsuring work, filed O.A.No.17/1996 on the file of Deputy Commissioner, Endowments, Department, Hyderabad under Section 87(1) of the Act 30 of 1987 for declaration that the emoluments earmarked to the service holders should be distributed directly by the temple to all the members, who are actually rendering the services. Counters have been filed and eventually, the Deputy Commissioner by order no.9 dated 20.12.2000 passed the following order:

"In view of the above provisions of the statute, either the petitioners herein or the original 9 members whose names are found in the registration of the temple cannot claim the share out of the income derived form the tickets as a matter of right. However, the persons who are on the rolls of the temple can continue to do service of the tonsuring, draw the emoluments as prescribed under sub section (2) of Section 34. However, I think it fit to direct Executive Officer of the suit temple to engage the services of as many number of barbers as the temple requires, duly giving preference to the persons whose names are found on the registration and on festive occasions, the additional barbers from out of the O.A. petitioners as well as rest of the respondents and see sanction of fixation of cadre strength and emoluments from the Commissioner, Endowments Department, A.P., Hyderabad. However, taking into consideration of the practice in vogue, I direct the respondent no.2 i.e, the Executive Officer of the suit temple to release the amount deposited in the bank to the persons recognized by the temple and see that such members in turn distribute the amount to all the persons who actually served and continue to adopt the same procedure till the cadre strength and the emoluments etc., are fixed by the Commissioner. The O.A. is accordingly disposed of."

3. The above order of the Deputy Commissioner of Endowments Department, Hyderabad A.P. are carried to the Commissioner for confirmation under sub section (3) of Section 87 of Act 30 of 1987. By proceedings in D.Dis.Rc.No.G2/31658/02 dated 25-5-2005, the Commissioner in exercise of power under sub section (5) of Section 87, rejected the order of the Deputy Commissioner dated 20-12-2000 and observed that the said order does not preclude the Executive Officer from utilizing the services of the Jampala family members for tonsure work and to pay amounts as per the remuneration fixed on each tonsure ticket for such service.

4. Challenging the order of the Commissioner of Endowments dated 25-5-2005, the respondents 16, 17 and 18 in O.A.No.17/1996, filed appeal under Section 88 of Act 30 of 1987, on the file of Principal District Judge, Warangal, in A.S.No.81/2008. The court passed the following impugned docket order dated 15.7.2011:

"Heard.

Appeal under Section 88 of A.P. Charitable and Hindu Religious Institutions Act, 1987, questioning the order passed by Deputy Commissioner, Endowments Department.

R1 to R3 filed memo with notice to the Advocate for the Appellants that the appeal before the District Court is not maintainable.

Perused the decision of the A.P. High Court in the case of Executive Officer, Group Temples, Srikakulam vs. Sri Sakhiya Matt. Srikakulam, 2010(5) ALD 739:

In view of the above decision, Appeal would lie against order under Section 87, only to the High Court.

Hence, Appeal is dismissed as not maintainable. No costs."

5. Aggrieved by the above order, the appellants in the appeal, filed the present revision.

6. The learned counsel for the revision petitioners submitted that the claim petition was filed by the applicants under Section 87 (1) (e) of Act 30 of 1987, and the Deputy Commissioner by order dated 20.12.2000 in O.A.No.17/1996 disposed of the claim petition. Such order would come into effect only after confirmation and publication in the prescribed manner as per Section 87(3) by the Commissioner of Endowments. Under Section 87(5), the Commissioner has power either to confirm or reject the order of the Deputy Commissioner under Section 87(1) of the Act. In the present case, the Commissioner by order dated 25.5.2004 rejected the order of the Deputy Commissioner. Under Section 88, the aggrieved person is entitled to file an appeal before the District Court. Section 88 was amended by Act 33 of 2007, which came into force with effect from 3-1-2008. As per the amended provision, the appeal is provided to the High Court. He contended that in the absence of any indication in the enactment to show that it will have retrospective effect, the settled principle is that the amendment will always be prospective in nature. He submitted that in the present case, the appeal was filed on 29.11.2007 i.e., much prior to the amendment Act 33 of 2007 came into force and hence, it is clear that the appeal lies against the order of the Deputy Commissioner only to the District Court as per un-amended Section 88 of the Act. With regard to the judgment relied on by the court below reported in EXECUTIVE OFFICER, GROUP TEMPLES, SRIKAKULAM vs. SRI SAKHIYA MATT. SRIKAKULAM1, he submitted that the said judgment was rendered considering Act No.33 of 2007 and hence, the same cannot be made applicable to the facts of the present case and the present appeal has to be dealt with by the District Court. With these submissions, he sought to set aside the impugned docket order.

7. On the other hand, the learned counsel for the respondents supporting the impugned docket order and relying on the Division Bench Judgment of this court in M.SRI RAMULU REDDY vs. PAIMAGHAM SUGUNAKAR REDDY AND OTHERS2 and also on the judgment in EXECUTIVE OFFICER, GROUP TEMPLES v. SRI SAKHIYA MATT, SRIKAKULAM (1 supra), submitted that as against the order passed under Section 87(1) of the Act, appeal would like to the High Court under Section 88 and hence, the present revision is liable to be dismissed.

8. In order to appreciate the rival contentions, it is necessary to note the relevant provisions of the Act 30 of 1987 under Sections 87 and 88. Sections 87 and 88 were amended by virtue of Act 33 of 2007 and the same came into force with effect from 3.1.2008. Therefore, the provisions, which stood prior to amendment and after amendment, are necessary to be extracted.

9. The original Section 87 prior to Act 33 of 2007 reads as under:

87. Power of Deputy Commissioner to decide certain disputes and matters:-

(1) The Deputy Commissioner having jurisdiction shall have the power, after giving notice in the prescribed manner to the person concerned, to enquire into and decide any dispute as to the question -

(a) whether an institution or endowment is a charitable institution or endowment;

(b) Whether an institution or endowment is a religious institution or endowment;

(c) Whether any property is an endowment, if so, whether it is a charitable endowment or a religious endowment;

(d) Whether any property is a specific endowment;

(e) Whether any person is entitled by custom or otherwise to any honour, emoluments or perquisites in any charitable or religious institution or endowments and what the established usage of such institution or endowment is in regard to any other matter;

(f) Whether any institution or endowment is wholly or partly of a secular or religious character and whether any property is given wholly or partly for secular or religious usage; or

(g) Whether any property or money has been given for the support of an institution or endowment which is partly of a secular character and partly of a religious character or the performance of any service or charity connected with such institution or endowment or the performance of a charity which is partly of a secular character and partly of a religious character or where any property or money given is appropriated partly to secular uses and partly to religious uses, as to what portion of such property or money shall be allocated to secular or religious uses;

(h) Whether a person is a founder or a member from the family of the founder of an Institution or Endowment.

(2) The Commissioner may, pending his decision under sub-section (1), pass such order as he deems fit for the administration of the property or custody of the money belonging to the institution or endowment.

(3) Every decision or order of the Deputy Commissioner on confirmation by the Commissioner under this section shall be published in the prescribed manner.

(4) The Deputy Commissioner may while recording his decision under sub-section (1) and pending implementation of such decision, pass such interim order as he may deem fit for safeguarding the interests of the institution or endowment and for preventing damage to or loss of or misappropriation or criminal breach of trust in respect of the properties or moneys belonging to or in the possession of the institution or endowment.

(5) Any decision or order of the Deputy Commissioner deciding whether an institution or endowment is not a public institution or endowment shall not take effect unless such decision or order is confirmed by an order of the Commissioner.

(6) The presumption in respect of matters covered by clauses (a), (b), (c), (d) and (e) in sub-section. (1) is that the institution or the endowment is public one and that the burden of proof in all such cases shall lie on the person claiming the institution or the endowment to be private or the property or money to be other than that of a religious endowment or specific endowment as the case may be."

10. Section 87 of the Act after amendment Act 33 of 2007, which came into force with effect from 3.1.2008, reads as under:

87. Power of the Endowments Tribunal to decide certain disputes and matters:-

(1) The Endowments Tribunal having jurisdiction shall have the power, after giving notice in the prescribed manner to the person concerned, to enquire into and decide any dispute as to the question.

(a) Whether an institution or endowment is a charitable institution or endowment;

(b) Whether an institution or endowment is a religious institution or endowment;

(c) Whether any property is an endowment, if so whether it is a charitable endowment or a religious endowment;

(d) Whether any property is a specific endowment;

(e) Whether any person is entitled by custom or otherwise to any honor, emoluments or perquisites in any charitable or religious institution or endowment and what the established usage of such institution or endowment is in regard to any other matter;

(f) Whether any institution or endowment is wholly or partly of a secular or religious character and whether any property is given wholly or partly for secular or religious uses; or

(g) Where any property or money has been given for the support of an institution or endowment which is partly of a secular character and partly of a religious character or the performance of any service or charity connected with such institution or endowment or the performance of a charity which is partly of a secular character and partly of a religious character or where any property or money given is appropriated partly to secular uses and partly to religious uses, as to what portion of such property or money shall be allocated to secular or religious uses;

(h) Whether a person is a founder or a member from the family of the founder of an institution or Endowment.

(2) The Endowments Tribunal, may, pending its decision under sub-section (1), pass such order as it deems fit for the administration of the property or custody of the money belonging to the institution or endowment.

(3) The Endowments Tribunal may while recording its decision under sub-section (1) and pending implementation of such decision, pass such interim order as it may deem fit for safeguarding the interest of the institution or endowment and for preventing damages to or loss to misappropriation or criminal breach of trust in respect of properties or moneys belonging to or in the possession of the institution or endowment.

(4) The presumption in respect of matters covered by Clauses (a), (b), (c), (d) and (e) in sub-section (1) is that the institution or the endowment is a public one and that the burden of proof in all such cases shall lie on the person claiming the institution or the endowment to be private or the property or money to be other than that of a religious endowment or specific endowment, as the case may be.

(5) Notwithstanding anything contained in the above sub-section the Deputy Commissioner having jurisdiction shall continue to enquire into and decide the disputes referred to in sub-section (1) until the constitution of the Endowments Tribunal.

11. The original Section 88 prior to Act 33 of 2007 reads as under:

88. Right of appeal against the decision of the Deputy Commissioner under Section 87 and Commissioner under Section 119:

Any person aggrieved by the decision of the Deputy Commissioner or the order of the Commissioner under Section 87 and the decision of the Commissioner under Section 119 may, within ninety days from the date of receipt of the decision prefer an appeal to the District Judge and within the limits of Municipal Corporation of Hyderabad to the Chief Judge, City Civil Court.

12. Section 88 of the Act after amendment Act 33 of 2007, which came into force with effect from 3.1.2008, reads as under:

88. Right of appeal against the decision of the Endowments Tribunal under Section 87:-

Any person aggrieved by the decision of the Endowments Tribunal under Section 87 and Section 119 may, within ninety days from the date of receipt of the decision prefer an appeal to the High Court.

13. From a reading of Section 87, prior to amendment Act 33 of 2007, it could be seen that the power is given to Deputy Commissioner to decide certain disputes enumerated under the sub section 1 and under subsection 3, the decision or order of the Deputy Commissioner has to be confirmed by the Commissioner and thereafter shall be published in the manner prescribed and under sub section 5, the decision or order of the Deputy Commissioner, shall not take effect unless such decision or order is confirmed by the Commissioner. After the amendment, in the place of Deputy Commissioner, Endowments Tribunal was given jurisdiction to decide the disputes and the order passed by such Tribunal, unlike under sub sections 3 and 5 of the un-amended section, is not required to be confirmed and the said sub sections are removed. Under sub section 5 of amended section, till the constitution of the Endowments Tribunal, the Deputy Commissioner having jurisdiction shall continue to enquire into and decide the disputes referred to under sub section 1 of Section 87.

14. Similarly, as per un-amended Section 88, the person aggrieved by the order passed by the Deputy Commissioner under Section 87, has to prefer an appeal to the District Judge and if matter is within the limits of Municipal Corporation, appeal was to be preferred to the Chief Judge, City Civil Court. After the amendment Act 33 of 2007, under Section 88, the person who is aggrieved by the decision of the Endowments Tribunal under Section 87, has to prefer an appeal to the High Court.

15. The amendment Act 33 of 87 came to force with effect from 3-1- 2008. The said amendment, in the absence of any specific indication, will have only prospective effect. The Apex Court in the decision reported in GARIKAPATI v. N.SUBBIAH3 held as under:

"25. . . The golden rule of construction is that, in the absence of anything in the enactment to show that it is to have retrospective operation, it cannot be so construed as to have the effect of altering the law applicable to a claim in litigation at the time when the Act was passed."

16. In another judgment the Apex Court in RAFIQUENNESSA v. LAL BAHADUR CHETRI4 held as under:

"9.. . .In other words, a statutory provision is held to be retroactive either when it is so declared by express terms, or the intention to make it retroactive clearly follows from the relevant words and the context in which they occur."

17. Prior to the amendment, the appeal, from the decision of the Deputy Commissioner passed under Section 87, was provided to the District Court and hence the matters are pending. No provision is made in the amending statute with regard to the pending matters or with regard to matters filed in the District Court, before the amended Act 33 of 87, which came into force with effect from 3.1.2008. When that is the position, whether the civil court will have jurisdiction to decide the pending matters and the matters which were filed prior to the amendment Act came into force, or such matters are required to be returned by the Civil Court, for approaching the High Court to prefer appeal, is to be examined.

18. In the decision of the learned single Judge relied on by the court below and also by the counsel for the respondents reported in EXECUTIVE OFFICER, GROUP TEMPLES v. SRI SAKHIYA MATT, SRIKAKULAM (supra), the present issue, with regard to pending matters in civil court or the appeals filed prior to the amending Act 33 of 87, were not considered. Similarly, the Division Bench in M.SRI RAMULU REDDY v. PAIMAGHAM SUGUNAKAR REDDY AND TWO OTHERS (supra), the present issue was not considered and the issues that were dealt with are extracted as under for better appreciation:

1. Whether an Appeal would lie at all to the High Court as against the order made by the Deputy Commissioner of Endowments in O.A. in the light of the clear language of Section 88 of the Act?

2. Whether the remedy prior to the substitution of Section 88 by the present Amending Act i.e., Appeal to the District Court would be available in the interregnum period till the Endowments Tribunal is constituted?

3. What is the scope and ambit of Section 88 of the Act and whether the terms or expression "Endowments Tribunal" can be read as equivalent to the concerned Deputy Commissioner, Endowments Department, in the period of interregnum for the purpose of Section 88 of the Act?

4. Whether in the peculiar facts and circumstances, such aggrieved parties may have the remedy under Article 226 or Article 227 of the Constitution of India, as the case may be?

5. In the event of the Court coming to the conclusion that an Appeal be maintainable under Section 88 of the Act, whether the same to be numbered as a regular Appeal (A.S.) or a Civil Miscellaneous Appeal (C.M.A.)?

6. Inasmuch as in the interregnum period since the Endowments Tribunal had not been constituted till now, what would be the remedy available to the aggrieved parties of such orders?

19. The Bench with regard to issues 2, 3 and 6 held as under:

"7. The present reference apparently arose at a situation when the said Tribunal was not constituted and therefore the practical problems cropped up as to the maintainability of the Appeal in regard to the decisions or orders passed by the Deputy Commissioner during the said interregnum period and whether the said authority itself is to be constituted as the Tribunal for the purpose of enabling the parties to prefer the Appeal to the District Court or to this Court. Therefore, in view of the fact that the Tribunal has already been constituted and there exist no such interregnum period, out of the questions referred above, questions Nos. 2, 3 and 6 do no longer subsist for consideration.

8. So far as the other questions referred at serial No.1, 4 and 5 are concerned, the same can be narrowed down to the query as to whether an Appeal would lie to the district court as against the orders of the Deputy commissioner, who was discharging the functions during such interregnum period as an Endowments Tribunal as provided for under the aforesaid provision. This question has already come up for consideration before one of us (BPR,J) in the decision reported in EXECUTIVE OFFICER, GROUP TEMPLES v. SRI SAKHIYA MATT, SRIKAKULAM and it was held as follows:

"A.P. Charitable and Hindu Religious Institutions and Endowments Act 1987

- Section 87 (1)(a) to (h) - Application under - Dismissal of appeal against, before District Court, maintainability of - Against all orders passed under sub clauses (a) to (h) under Section 87(a), appeal would lie only to High Court, irrespective of fact that the same is presided over by Tribunal or Deputy Commissioner - Even though Deputy Commissioner initially passed order, fact remains that Deputy Commissioner only exercising all such powers in lieu of powers conferred on Endowments Tribunal as contemplated under Section 87 of Act

- A right of appeal necessarily has to be provided by a statute and cannot be implied under any circumstances - In the circumstances, appeal, as filed and disposed of before District Court, held not maintainable and necessarily, respondent has to approach High Court alone - Even under Section 91, High Court conferred with powers of revision only against orders, where no appeal provided, but not otherwise - CRP Allowed - Impugned order set aside, as being without jurisdiction - District Court directed to return original papers of appeal to respondent therein to resubmit the same."

9. In view of the aforesaid decision, virtually even the other questions also do no longer remain

10. An attempt was made on behalf of Mr. Bankatlal Mandhani, one of the counsels appearing on behalf of the respondents, that certain aspects have not been considered in the said decision and, therefore, the said decision cannot be an authority. It has been contended that even through no specific provision has been made conferring right of Appeal statutorily, however, having regard to the provisions of Section 6 of the General Clauses Act, necessarily it follows that no such appeal would lie.

11. The said submission does not hold any substance especially in view of the fact that the learned counsel has failed to point out any specific provision in regard to the Appeal even during the interregnum period. As long as the statute is totally silent in providing for such a right of appeal in any given situation, it cannot be said that by applying the principles of General Clauses Act, any presumption can arise for creation of an Appeal or making a provision thereof. There is no dispute across the Bar on the principal that the right of Appeal is to be borne out by the statue, but not otherwise. In the circumstances we are not prepared to accept the said submission or the objection raised on behalf of one of the respondents.

20. From a reading of the above judgment of the Division Bench of this court, it could be seen that the Division Bench has mainly considered the issue with regard to filing of the appeal during the interregnum period i.e., after the amendment Act and before the Constitution of Tribunal and as the Tribunal was constituted by then, issue No.2 was answered stating that ". . .Therefore, in view of the fact that the Tribunal has already been constituted and there exist no such interregnum period, out of the questions referred above, questions Nos. 2, 3 and 6 do no longer subsist for consideration."

21. The law laid down in the above Division Bench Judgment, cannot be made applicable to the facts of the present case.

22. In the present case, it could be seen from the material on record that the Deputy Commissioner passed orders on 20-12-2000 under Section 87(1) and the same was rejected by the Commissioner under Section 87(5) on 25.5.2004 and the appeal before the District Court was presented on 29.11.2007. The amendment Act 33 of 2007 came into force with effect from 3.1.2008 and in the amendment, no specific provision is made with regard to pending cases, therefore, the amendment will have only prospective effect and hence the pending cases have to be dealt with by the civil court.

23. A Full Bench of this court in BADARLA SURYAKUMARI v. BADARLA VAMAN MURTHY5, to which I am a member, had a occasion to consider jurisdiction of civil court, after enactment of Wakf Act, 1995, where under Section 85 of the said Act barred the jurisdiction of civil court to deal with the disputes relating to wakf, wakf property or other matter which is required by order under the said Act to be determined by a Tribunal. The said Act came into force with effect from 1.1.1996 and the Tribunal was constituted on 1.7.1997. Considering these facts and circumstances, the Full Bench held that the Tribunal will get jurisdiction on and from 1.7.1997 and no matter pertaining to wakf and wakf property, be filed before the civil court on and from that date and if filed, those matters be transferred to Tribunal and the jurisdiction of civil court is not ousted to decide matters filed before it between 1.9.1996 and 30.6.1997. Further, in the said case, the civil court returned the plaint filed prior to constitution of Tribunal. The Full Bench has set aside the order of the lower court in returning the plaint in the suit filed prior to constitution of Tribunal for presentation before Wakf Tribunal and directed the civil court to dispose of the suit in accordance with law. The Full Bench at paragraph no.32, held as under:

"32. Therefore, the quintessence of the above judgments is that if there is any special enactment creating a new forum or Tribunal to deal with matters under that special enactment and which bars the jurisdiction of the civil court, in the absence of any clear indication that such enactment is retrospective and in the absence of any provision for transferring of the pending proceedings on the file of Civil Court to such new forum or Tribunal, the pending cases need not be transferred and they shall have to be dealt with by the civil court. In case if the new law bringing a change in the forum intends to effect even the pending matters, the statute must enact an express provision to that effect."

24. In the present case, by virtue of amendment Act 33 of 2007, under Section 88, appeal is provided to the aggrieved person against the decision of the Endowments Tribunal under Section 87, to the High Court. Prior to amendment Act 33 of 2007, appeal was provided to the District Court against the orders passed by the Deputy Commissioner under Section 87. There is no express provision under the amendment Act 33 of 2007, with regard to the pending matters before the District Court. Therefore, having regard to the law laid down by the Full Bench and the facts and circumstances of the case, I am of the considered view that the pending matters have to be dealt with by the District Court in accordance with law and the matters need not be returned.

25. Accordingly, the impugned docket order is set aside and the court below is directed to dispose of the appeal in accordance with law, as expeditiously as possible, preferably within a period of three months from the date of receipt of a copy of this order.

26. The revision petition is accordingly allowed. No costs.

AVS --------------------------------------

25-04-2013

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Andhra HC (Pre-Telangana)