Andhra HC (Pre-Telangana)
Commissioner Of Endowments, Andhra ... vs All India Sai Seva Samaj on 19 October, 2001
Equivalent citations: 2001(6)ALD747, 2001(6)ALT539
Author: S.B. Sinha
Bench: S.B. Sinha, Goda Raghuram
JUDGMENT S.B. Sinha, C.J.
1. The order of reference made by a Division Bench of this Court dated 4.8.1995 reads:
Since this appeal has raised the question-whether a Bench decision of this Court in DY COMMISSIONER OF ENDOWMENTS v SAIBABA SAMSTHANAM has correctly decided that a temple or mandir dedicated to Shirdi Saibaba is not an exclusively Hindu temple and it seems discussion as to the religion which Saibaba propagated in the above judgment is taken as one parallel to the faith Kabirdas propagated, can it be said that endowments of Kabir Panth are not Hindu endowments and if the endowments to Kabir Panth are Hindu endowments and thus Hindu religious institutions, Sai temples are also Hindu temples, we are inclined to order for the hearing of the matter by a special Bench of three Judges of the Court.
2. The writ petitioner-respondent is a society registered under the Andhra Pradesh (Telangana Area) Public Societies Registration Act, 1350 F. It is not in dispute that it was also registered under the Andhra Pradesh Charitable Hindu Religious Institutions and Endowments Act, 1966 (Act 17 of 1966) which Act stood repealed and replaced by reason of Section 155 of the A.P. Charitable and Hindu Religious Institutions & Endowments Act, 1987 (hereinafter referred to as the 1987 Act). A notice dated 24.10.1987 issued by the Joint Commissioner intending to appoint Board of Trustees was the subject matter of the writ petition.
3. The learned single Judge allowed the writ petition on the ground that the point involved therein was covered by a decision of this Court in DY COMMISSIONER OF ENDOWMENTS v SAIBABA SAMSTHANAM, .
4. In the said decision, relying on or on the basis of the decisions of the Madras High Court in ALL INDIA SAI SAMAJ v DEPUTY COMMR. H.R. & C.E., 1967 (2) MLJ 618, as also an unreported decision in Writ Appeal No. 498 of 1967, dated 28.2.1973 it was held that the Endowments Act is not applicable to Sai Mandirs. It was further noticed that a bench of this Court in Writ Appeal No. 1722 of 1989 dated 5.3.1990 had also approved the decision of the Madras High Court. The correctness of the said decision is in question in this writ appeal.
5. The learned Government Pleader appearing on behalf of the appellants would submit that in the earlier decision the provisions of the said Act and in particular the applicability thereof as contained in Section I (3)(a) and (b) vis-a-vis the power of the Commissioner under Section 87 had not been taken into consideration. The learned counsel would submit that whether exclusion clause contained in the Act pursuant whereto and in furtherance whereof a charitable and Hindu religious institution and endowments is created, attracts the provisions of 1987 Act must be considered having regard to the scope, object and purport thereof. Strong reliance in this connection has been placed on SHYAM KISHORI DEVI v PATNA MUNICIPAL CORPORATION, , UNION OF INDIA v DEOKI NANDAN AGGARWAL, AIR 1992 SC 96 and SHIROMANI GURDWARA PRABANDHAK COMMITTEE v SOM NATH DASS, . The learned counsel would urge that the Act not only applies to Hindu religious institutions alone but also to charitable institutions belonging to the other community and other endowments and in this connection our attention has been drawn to a recent division bench decision of this court in PARSI ZOROASTRIAN ANJUMAN v DY. COMMISSIONER, ENDOWMENTS DEPT, .
6. Mr. N.V. Suryanarayana Murthy, the learned counsel appearing on behalf of the respondent on the other hand would submit that having regard to the fact that similar institutions have been held to be not coming within the purview of the said Act, the impugned judgment is unassailable. Criticising the order of reference the learned counsel would contend that the purpose for which the reference has been made to this Court is now academic inasmuch as before the learned single Judge as also before the Division Bench at the time of admission of this appeal, the parties addressed only on the question as to whether the writ petitioner-respondent Trust would come within the purview of the definition of "Hindu Religious Institutions and Endowments" and not a 'Charitable Endowment'.
7. In any event, contends the learned counsel, the joint Commissioner had no jurisdiction to appoint Board of Trustees for the respondent-temple without complying with the principles of natural justice and without giving it an opportunity of being heard.
8. The said Act was enacted to consolidate and amend the law relating to administration and governance of charitable as well as Hindu religious institutions and endowments in the State of Andhra Pradesh.
9. The said Act applies to the whole of the State of Andhra Pradesh. Sub-section (3) of Section 1 reads:
It applies to-
(a) all public charitable institutions and endowments, whether registered or not, in accordance with the provisions of this Act, other than Wakfs governed by the provisions of the Wakfs Act, 1954. Explanation: In this clause, the expression "public charitable institutions and Endowments" shall include every charitable institution or endowment the administration of which is for the time being vested in any department of Government, or Civil Court, Zilla Praja Parishad, Municipality or local authority, or any company, society, organisation institution or other person;
(b) all Hindu public religious institutions and endowments whether registered or not in accordance with the provisions of this Act.
10. Applicability of the said Act, therefore, can be sub-divided into two parts:
(1) public charitable institutions/endowments; and (2) Hindu public religious institutions and endowments.
11. 'Charitable endowments' have been defined in Section 2 (3) to mean:
All property given or endowed for any charitable purpose;
Explanations appended thereto read thus:
I. Any property which belonged to or was given or endowed for the support or maintenance of a charitable institution or which was given, endowed or used as of a right for any charitable purpose shall be deemed to be a charitable endowment within the meaning of this definition, notwithstanding that before or after the commencement of this Act, the charitable institution has ceased to exist or ceased to be used for any charitable purpose or the charity has ceased to be performed.
II. Any Inam granted to a service holder or to an employee of a Charitable Institution for the performance of any charity or service in connection with a charitable institution shall not be deemed to be a personal gift to the service holder or to the employees notwithstanding the grant of ryotwari patta to such service holder or employee under the Andhra Pradesh (Andhra Areas) Inams (Abolition and Conversion into Ryotwari) Act, 1956, but shall be deemed to be a charitable endowment.
12. 'Charitable institution' in terms of Sub-section (4) of Section 2 means:
any establishment, undertaking, organisation or association formed for a charitable purpose and includes a specific endowment and dharmadayam;
13. Section 2(5) does not define 'charitable purpose' but brings within its fold (a) relief of poverty or distress; (b) education, (c) medical relief; (d) advancement 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. A charitable purpose would, therefore, in terms of the aforementioned statutory definition excludes such charitable institutions which had been established having an object exclusively of religious nature.
14. In terms of the aforementioned definition of charitable purpose, those institutions which had been established for the advancement of any object of utility or welfare to the general public or a section thereof as also the object of religious nature would come within the purview thereof.
15. Section 43 occurring in Chapter IV of the said Act provides for registration of charitable and religious institutions and endowments. It is not in dispute that Section 43 of 1987 Act is in pari materia with Section 38 of the 1966 Act. Although Act 17 of 1966, as by reason of Section 155 of the 1987 Act, has been repealed but notwithstanding such repeal, the old registration would continue in terms of Sub-section (3) of Section 43 of 1987 Act which reads thus:
Notwithstanding anything in Sub-section (1), no application for registration shall be necessary in the case of any institution or endowment which was duly registered and entered in the book of endowments before the commencement of mis Act, under the Andhra Pradesh Charitable and Hindu Religious institutions and Endowments Act, 1966.
16. By reason of the provisions of Sub-section (2) of Section 155 of 1987 Act, the writ petitioner-respondent would thus be deemed to be registered under 1987 Act.
17. Prima facie, therefore, the writ petitioner-respondent itself proceeded on the basis that the 1987 Act is applicable to it or its activities as otherwise there would not have been any occasion for it to get registered.
18. The division Bench of this Court in DY. COMMR. OF ENDOWMENTS v SAIBABA SAMSTHANAM (supra) unfortunately did not notice the explanation appended to Section 1(3) (a) of the Act. The learned Judges proceeded on the basis that the devotees of the Sai Mandir belong to all religions; only because certain rituals which are usually performed in Hindu temples by Hindu priests are performed, the same by itself would not establish that the place is a Hindu temple or shrine. In this case we are not concerned with the aforementioned question.
19. We may, however, before adverting to the questions raised in this appeal observe that only because a society adopts the name of Sai Seva Sadan or professes to follow the preachings of Sai as one of its objects, the same by itself would not take the society out of the purview of the said Act as such societies may be formed by way of cloak or smoke and screen so as to enable it to come out of the rigours of the said Act. Each case has to be considered having regard to the purport and object of the said Act on its own merit particularly as regards the question as to whether it is a Charitable Institution and Endowment or Hindu Religious Institution and Endowment. The exclusionary clause is a pointer to the fact that even if a society is out of the fold of public charitable institution and endowment although the same may not be so, so far as all Hindu public religious institutions and endowments are concerned. Charitable purpose as defined in Section 2(5) must be read in the definition of charitable endowment as contained in Section 2(3) thereof.
20. For the purpose of finding out the object and purport of the society for which it has been established, the provisions of Section 2(5)(d) which only exclude those 'exclusively of religious nature' will also have a great-role to play.
21. It has rightly been submitted by the learned Government Pleader that having, regard to the scope and purport of the provisions of the said Act, it cannot be said that the same applies to Hindu Religious Institutions and Endowments only. If that restricted meaning is given, its applicability to all public charitable institutions and endowments would become otiose. It is a well settled principle of interpretation of statutes that the same must be construed having regard to the purport and object thereof and each provision thereof must be given effect to.
22. In RESERVE BANK OF INDIA v PEERLESS CO., , O. Chinnappa Reddy, J referring to DILWORTH v COMMISSIONER OF STAMPS, 1899 AC 99, ARDESHIR H. BHIWANDIWALA v STATE OF BOMBAY, , C.I.T. v TAJ MAHAL HOTEL, , and S.K. GUPTA v K.P. JAIN, , stated:
We do not think it necessary to launch into a discussion of either Dilworth's case or any of the other cases cited. All that is necessary for us to say is this: Legislatures resort to inclusive definitions 1) to enlarge the meaning of words or phrases so as to take in the ordinary, popular and natural sense of the words and also the sense which the statute wishes to attribute to it, 2) to include meanings about which there might be some dispute, or 3) to bring under one nomenclature all transactions possessing certain similar features but going under different names. Depending on the context, in the process of enlarging, the definition may even become exhaustive....
23. It was further observed:
Interpretation must depend on the text and the context. They are the bases of interpretation. One may well say if the text is the texture, context is what gives the colour. Neither can be ignored. Both are important. That interpretation is best which makes the textual interpretation match the contextual. A statute is best interpreted when we know why it was enacted. With this knowledge, the statute must be read, first as a whole and then section by section, clause by clause, phrase by phrase and word by word. If a statute is looked at, in the context of its enactment, with the glasses of the statute-maker, provided by such context, its scheme, the sections, clauses, phrases and words may take ' colour and appear different than when the statute is looked at without the glasses provided by the context. With those glasses we must look at the Act as a whole and discover what each section, each clause, each phrase and each word is meant and designed to say as to fit into the scheme of the entire Act. Mo part of a statute and no word of a statute can be construed in isolation. Statutes have to be construed so that every word has a place and everything is in its place....
24. Reed Dicker-son in his book on "The Interpretation and Application of Statutes", 1975 Edition, stated:
What is the significance of the context in which a message is read? It is highly improbable that any document, considered entirely apart from the culture that it presupposes, can convey meaning, except in another culture that shares some of the same elements. Indeed, to suppose an effective communication entirely apart from its cultural environment would be almost a self-contradiction. Obviously, a verbal communication must be expressed in the language appropriate to the culture in which the communication takes place. The essence of a language is to reflect, express, and perhaps even affect the conceptual matrix of established ideas and values that identifies the culture to which it belongs. For this reason, language has been called a 'conceptual map of human experience." As with any map, it has little or no significance apart from what it mirrors.
The underlying cultural elements that provide the materials of context include (1) the pervasive net work or grid of concepts presupposed by the language of that culture: and (2) the coordinate fund of habits, knowledge, values, and purposes that arc shared by the great bulk of the speech community of which both author and audience are members and at least some of which are taken account of in each communication. Together, the factors make up the aggregate of relevant human expectations.
25. In SHYAM KISHORI DEVI (supra) the Apex Court observed:
It is well known rule of construction that a court must construe a section, unless it is impossible to do so, to make it workable rather than to make it unworkable. In the words of Lord Brarnwell, the words of a statute never should in interpretation be added to or subtracted from, without almost a necessity.
26. In UNION OF INDIA AND ANR. v. DEOKI NANDAN AGGARWAL (supra), the Apex Court has held that the court does not have power to legislate. It held:
We are at a loss to understand the reasoning of the learned Judges in reading down the provisions in paragraph 2 in force prior to November 1, 1986 as "more than five years" and as "more than four years" in the same paragraph for the period subsequent to November 1, 1986. It is not the duty of the Court either to enlarge the scope of the legislation or the intention of the legislature when the language of the provision is plain and unambiguous. The Court cannot rewrite, recast or reframe the legislation for the very good reason that it has no power to legislate. The power to legislate has not been conferred on the Courts. The Court cannot add words to a statute or read words into it which are not there. Assuming there is a defect or an omission in the words used by the legislature the 'Court could not go to its aid to correct or make up the deficiency- Courts shall decide what the law is and not what it should be. The Court of course adopts a construction which will carry out the obvious intention of the legislature but could not legislate itself. But to invoke judicial activism to set at naught legislative judgment is subversive of the constitutional harmony and comity of instrumentalities. ...... Modifying and altering the scheme and applying it to others who are not otherwise entitled to under the scheme will not also come under the principle of affirmative action adopted by Courts sometimes in order to avoid discrimination. If we may say so, what the High Court has done in this case is a clear and naked usurpation of legislative power.
27. Furthermore, as noticed hereinbefore, a division bench of this court in PARSI ZOROASTRIAN AMJUMAN (supra) clearly held:
That A.P. Act 30 of 1987 is applicable only to Hindu Religious Institutions/ Endowments and is not applicable to Non-Hindu religious institutions/endowments.
That A.P. Act 30 of 1987 is applicable to all the charitable institutions regardless of any religion.
The petitioners in both the writ petitions have to work out the remedies by invoking the provision contained under Section 87 of A.P. Act 30 of 1987.
28. We may also notice that the division bench of this Court as also in ALL INDIA SAI SAMAJ (supra) the Courts were dealing with Madras Hindu Religious and Charitable Endowments Act, 1959, Section 1(3) whereof reads thus:
It applies to ail Hindu public religious institutions and endowments including the incorporated Devaswonms and unincorporated Devaswoms.
Explanation:- In this sub-section, Hindu public religious institutions and endowments do not include Jain religious institutions and endowments.
29. Section 87 of the said Act empowers the Deputy Commissioner to decide a question as to whether an institution or endowment is a charitable institution or endowment or not as also whether the same is a religious institution or endowment or not. Keeping in view the discussions made hereinbefore, it is no gain saying that as each case has to be considered on its own merits wherefor it may be necessary to hold a detailed enquiry, examine evidences and other materials which may be brought on records and, thus, we are of the opinion that when a jurisdictional fact is raised as, regard the applicability of the Act, the same may be considered as a preliminary issue by the statutory tribunal itself, although in a given case this Court in exercise of its jurisdiction under Article 226 of the Constitution of India may also take recourse thereof. In EXPRESS NEWSPAPERS (P) LTD. v THE WORKERS, , the Apex Court observed:
The High Court undoubtedly has jurisdiction to ask the Industrial Tribunal to stay its hands and to embark upon the preliminary enquiry itself. The jurisdiction of the High Court to adopt this course cannot be, and is indeed not disputed. But would it be proper for the High Court to adopt such a course unless the ends of justice seem to take it necessary to do so? Normally, the questions of fact, though they maybe jurisdictions facts the decision of which depends upon the appreciation of evidence, should be left to be tried by the special Tribunals constituted for that purpose. If and after the Special Tribunals try the preliminary issue in respect of such jurisdictional facts, it would be open to the aggrieved party to take that matter before the High Court by a writ petition and ask for an appropriate writ. Speaking generally, it would not be proper or appropriate that the initial jurisdiction of the Special Tribunal to deal with these jurisdictional facts should be circumvented and the decision of such a preliminary issue brought before a High Court in its writ jurisdiction. We wish to point out that in making these observations, we do not propose to lay down any fixed or inflexible rule; whether or not even the preliminary facts should be tried by a High Court in a writ petition, must naturally depend upon the circumstances of each case and upon the nature of the preliminary issue raised between the parties. Having regard to the circumstances of the present dispute, we think the Court of Appeal was right in taking the view that the preliminary issue should more appropriately be dealt with by the Tribunal. The Appeal Court has made it clear that any party who feels aggrieved by the finding of the Tribunal on this preliminary issue may move the High Court in accordance with law. Therefore, we are not prepared to accept Mr. Sastri's argument that the Appeal Court was wrong in reversing the conclusion of the trial Judge in so far as the Trial Judge proceeded to deal with the question as to "whether the action of the appellant was a closure or a lockout.
30. Yet again in DESIKA CHARYUUJ v STATE OF A.P., , it has been observed:
It was submitted to us on behalf of the appellant that the learned judges of the High Court were in error in holding that the jurisdiction of the Civil Courts to determine his complaint that the shrotriem was not an inam estate was barred by the provisions of the Abolition Act. Besides, it was pointed out that the judgment of the trial Judge who held on the merits on a consideration of the evidence adduced by the appellant that the shrotriem was an inam estate was extremely unsatisfactory and that the learned Judges hearing the appeal should have set aside that judgment and either decided the matter themselves or remanded it for further investigation by the trial court. We agree that the judgment of the learned trial Judge on this point about the shrotriem being an inam estate is not very satisfactory and that if the civil court had jurisdiction to decide the matter, one of the two courses suggested by learned counsel should have been followed by the High Court. We are, however, of the opinion that the learned Judges were right in their view that the jurisdiction of the civil courts was barred by reason of the provisions of the Abolition Act to which we shall make reference.
31. Furthermore, only a notification has been issued proposing to appoint a Board of Trustee in relation to a society which is already registered under the 1966 Act and continues to be registered under the 1987 Act. The writ petitioner-respondent, therefore, at this stage may not be held to be entitled to a declaration:
That mandirs of Saibaba of Shiridi are not Hindu Religious Institutions nor a temple as defined in Section 2 (27) of the Act 30/87 and further declare that the provisions of Act No. 30/87 cannot be made applicable in regard to Mandirs I dedicated to Saibaba of Shiridi.
32. In STATE OF U.P. v. SHRI BRAHM DATT SHARMA AND ANR, , it has been held:
The High Court was not justified in quashing the show cause notice. When a show cause notice is issued to a Govt. servant under a statutory provision calling upon him to show cause, ordinarily the Govt. servant must place his case before the authority concerned by showing cause and the courts should be reluctant to interfere with the notice at that stage unless the notice is shown to have been issued palpably without any authority of law. The purpose of issuing show cause notice is to afford opportunity of hearing to the Govt. servant and once cause is shown it is open to the Govt. to consider the matter in the light of the facts and submissions placed by the Govt. servant and only thereafter a final decision in the matter could be taken. Interference by the Court before that would be premature. The High Court in our opinion ought not to have interfered with the show-cause notice.
33. Recently, the Apex Court in an appeal filed by one Teki Venkata Ratnam claiming ownership of Sri Panduranga Vital Swami Temple in Chilakapudi has dearly held that a Deputy Commissioner has the power and jurisdiction to decide whether the temple in question is a public temple or a private temple. It was also held that every religious institution is a public property, unless proved otherwise.
34. The submission of the learned counsel to the effect that the institution does not come within the purview of 'temple' as contained in Section 2 (27) of 1987 Act is not apposite having regard to the definition of 'charitable endowment' and 'charitable purpose' as referred to hereinbefore. But it will be a repetition to state what stands excluded from the purview of the Act would be Hindu religious institutions and endowment and not charitable institutions and endowments. In TEKI VENKATA RATNAM v DY COMMR., ENDOWMENT, 2001 AIR SCW 2814, it has been held:
.... When a dispute arises as to whether an institution is a religious institution or put it straight for the present purpose, whether a temple is a public or a private temple, under Section 87 looking to the definitions contained in Sections 2 (22) and 2 (27) as to religious institution and temple the Deputy Commissioner has power and jurisdiction to enquire into and decide such a dispute. If the argument of the learned counsel for the appellants that the Act does not apply to private temples is to be accepted, then it is enough for any person or body to claim a temple as a private one so as to take away the power and jurisdiction otherwise conferred on the Deputy Commissioner under Section 87 of the 1987 Act. A merely self-serving design of a parry to claim a temple as private one cannot defeat a specific statutory provision conferring power on an authority to decide a question. It is a different matter, if there is no dispute that a particular temple is a private temple; in that case perhaps the argument could be accepted. When there arises a dispute as to whether a temple is a public temple or not, basically 'it becomes necessary to decide that question. If S87 is read carefully in its entirety, it will be clear that the Deputy Commissioner exercises quasi-judicial power while holding enquiry and deciding a dispute under Section 87(1). Under Sub-section (3), every decision or the order of the Deputy Commissioner on confirmation by the Commissioner shall be published in the prescribed manner.
35. The submission of Mr. Suryanarayana Murthy to the effect that the decision of this Court in DY. COMMR. OF ENDOWMENTS (supra) having been approved by the apex court in special leave petition, the same shall prevail is not acceptable for the reason stated supra. The merit of the decision of this Court in DY. COMMR. OF ENDOWMENTS has not been considered by the apex court. The apex court merely dismissed the special leave petition. It is now a well settled principle of law that dismissal of special leave petition without assigning any reason by itself would not mean that a law has been declared by the apex court in terms of Article 141 of the Constitution of India.
36. In C.I.T. v SUN ENGINEERING WORKS (P) LIMITED, , Dr. A.S. Anand, J (as the learned Judge then was) stated the law in the following terms:
"...It is neither desirable nor permissible to pick out a word or a sentence from the judgment of this Court, divorced from the context of the question under consideration and treat it to be the complete 'law' declared by this Court. The Judgment must be read as a whole and the observations from the Judgment have to be considered in the light of the questions which were before this Court....."
37. It is also a settled law that a decision is not an authority on a point which was not argued [see MITTAL ENGINEERING WORKS (P) LTD v. COLLECTOR OF CENTRAL EXCISE, ].
In Dias on jurisprudence, Fifth Edition at page 143, it is Stated-
Pronouncements of law, which are not part of the ratio decidendi are classed as obiter dicta and are not authoritative. Rationale and dicta tend to shade into each other. The former have law-quality and are binding on lower courts; dicta, too, have law quality but are not binding at all. Vis-a-vis a higher court even the ratio decidendi of a lower court decision has only persuasive force like that of a dictum. It has been pointed out that some dicta are so authoritative that the distinction between ratio and dictum is reduced to vanishing point. Dicta, which have no force, are propositions stated by way of illustration or on hypothetical facts. Greater difficulties attend rulings of law which are subsequently relegated to the status of dicta by interpretation. The distinction in such cases between ratio and dictum is but a device employed by subsequent courts for the adoption or rejection of doctrine expressed in previous 'cases according to the inclination of the Judges. An example would be the treatment of Lord Atkin's neighbour proposition in subsequent cases.
38. In Salmond on Jurisprudence 12th Edition, page 29, it is stated -
One of the essential features of the doctrine of precedent in the common law is that rules of law are developed in the very process of application. This means that they are created by judges and not by teachers and other academic lawyers. However, learned they may be. It also means that they are treated by judges only when acting as Judges i.e., when deciding cases and not for example when giving lectures or other addresses; statements made by judges in their extra-judicial capacity, like other extra-judicial opinions, are without binding authority. For the fundamental notion is that the law should result from being applied to live issues raised between actual parties and argued on both sides.
In the course of his judgment, however, a judge may let fall various observations not precisely relevant to the issue before him. He may for instance illustrate his general reasoning by reference to hypothetical situation and the law which he considers to apply to them. Here of course, since the issue is not one that arises between the parties, full argument by counsel will be lacking, so that it would be unwise to accord the observation equal weight with that given to his actual decision. Or again, having decided the case on one point, the judge may feel it unnecessary to pronounce on the other points raised by the parties, but he may nevertheless want to indicate how he would have decided these points if necessary. Here again we are not given the judge's final decision on a live issue, so that once more it would be unwise to endow it with as much authority as the actual decision. These observations by the way, obiter dicta are without binding authority, but are nonetheless important not only do they help to rationalize the law but they serve to suggest solutions to problems not yet decided by Courts. Indeed dicta of the House of Lords or of judges who were masters of their fields, like Lord Blackburn, may often in practice enjoy greater prestige than the rationale of lesser judges.
39. Referring to QUINN v. LEATHAIM, (1990-1903) AER (Rep.) 1, KRISHNA KUMAR v. UNION OF INDIA, , COMMISSIONER OF INCOME TAX v. SUN ENGINEERING CO. LTD, , REGIONAL MANAGER v. PAWAN KUMAR DUBEY, , and MUNICIPAL CORPORATION OF DELHI v. GURNAM KAUR, 1988 (1) SCC 101, it has been held by the Calcutta High Court in JAYA SEN v SUJIT KR. SARKAR, 2000 (1) ILR A & N 145 --
It is now well known that a decision is only an authority for what it decides and not whait can logically be deduced therefrom. It is also well known that even a slight distinction in fact or an additional fact may make a lot of difference in decision making process.
40. In A-ONE GRANITES v STATE OF U.P., 2001 AIR SCW 848, it is observed:
The first question which falls for consideration of this Court is as to whether the question regarding applicability of Rule 72 of the Rules in relation to the present lease is concluded by the earlier decision of this Court rendered in Prem Nath Sharma V State of U.P. . From a bare perusal of the said judgment of this Court it would be clear that the question as to whether Rule 72 was applicable or not was never canvassed before this Court and the only question which was considered was whether there was violation of the said rule.
The question was considered by the Court of Appeal in Lancaster Motor Co(London) Ltd v Bremith Ltd (1941) 1 KB 675, and it was laid down that when no consideration was given to the question, the decision cannot be said to be binding and precedents sub silentio and without arguments are of no moment.
41. In ARNIT DAS v STATE OF BIHAR, , the Apex Court observed:
A decision not expressed, not accompanied by reasons and not proceeding on a conscious consideration of an issue cannot be deemed to be a law declared to have a binding effect as is contemplated by Article 141. That which has escaped in the judgment is not the ratio decidendi. This is the rule of sub silentio, in the technical sense when a particular point of law was not consciously determined.
42. A decision, having regard to the aforementioned authoritative pronouncements of the Apex court must, thus, be read in the context what has been rendered. A decision as is well known cannot be read as a statute. The ratio must be culled out from a decision upon reading the judgment in its entirety and not in isolation. It is further well settled that a point which has not been considered in a decision shall not be an authority therefor.
43. The submission of the learned counsel to the effect that the reference itself to a Larger Bench is not maintainable inasmuch as, as indicated hereinbefore, the entire appeal has been referred and irrespective of the reasonings which might have weighed with their Lordships at the time of making the reference to a Larger Bench, this Court is not denied of its power to consider all aspects of the matter particularly when two conflicting division bench decisions of this Court have been brought to our notice. Referring to GOJER BROTHERS PVT. LTD. v RATANLAL, , U.J.S. CHOPRA v STATE OF BOMBAY, , in KUNHAYAMMED v STATE OF KERALA, , it has been held:
So far as merger is concerned on principle there is no distinction between an order of reversal or modification or an order of confirmation passed by the appellate authority; in all the three cases the order passed by the lower authority shall merge in the order passed by the appellate authority whatsoever be its decision -whether of reversal or modification or only confirmation. In U.J.S. CHOPTA it was held:
A judgment pronounced by a High Court in exercise of its appellate or revisional jurisdiction after issue of a notice and a full hearing in the presence of both the parties would replace the judgment of the lower Court, thus constituting the judgment of the High Court the only final judgment to be executed in accordance with law by the Courts below.
44. For the reasons aforementioned, we are of the opinion that the learned single Judge erred in holding that the provisions of Endowment Act are not attracted to Sai Mandirs.
45. Furthermore, it may be mentioned that a writ of prohibition may not be granted on mere asking. A writ of prohibition can be issued only when three conditions are satisfied viz., (i) that the authority against whom it is sought is about to exercise judicial or quasi Judicial power; (ii) that the exercise of such power is unauthorized by law; and (iii) that it will result in injury for which no other adequate remedy exists. It is provided for an extraordinary remedy and can issue only in cases of extreme necessity. Before such writ is issued, the Court must arrive at a finding that the party aggrieved had applied in vain to the inferior Tribunal for relief. It is also trite that a writ of prohibition is not to be claimed as a matter of right but the same is granted to do justice and the same must be based on sound judicial discretion depending upon the facts and circumstances of each case. In U.P. SALES TAX SERVICE ASSOCIATION v TAXATION BAR ASSOCIATION, , the apex court observed that a writ or order of prohibition cannot be issued prohibiting a quasi-judicial or statutory authority from discharging its statutory functions or transferring those functions to another jurisdiction. Exercise of such power, the Supreme Court held, generates its rippling effect on the subordinate judiciary and statutory functionaries. In GUDUTHUR BROS v I.T.O., , the apex court refused to issue a writ of prohibition when merely a show cause notice was issued. A writ of prohibition is a negative remedy.
46. For the aforesaid reasons, we are of the opinion that the impugned order cannot be sustained. However, the appellants could not have directed appointment of the Board of Trustees without giving an opportunity of hearing by an interim order. That portion of the notice, therefore, cannot be upheld. It is set aside accordingly with a direction that the Board of Trustee can be appointed only upon giving an opportunity of hearing to the petitioner-respondent herein.
47. This writ appeal is disposed of with the aforementioned directions. There shall be no order as to costs.