Andhra Pradesh High Court - Amravati
Swama Syam Sundar Alias Syam Sundar ... vs Syamala Ramalingeswara Swamyvari ... on 8 January, 2020
Author: C.Praveen Kumar
Bench: C.Praveen Kumar
THE HON'BLE SRI JUSTICE C.PRAVEEN KUMAR
C.R.P. No.1878 of 2019
ORDER :
1. Aggrieved by the order in I.A. No.199 of 2019 in O.S. No.187 of 2018, dated 7.6.2019 on the file of the Principal Junior Civil Judge, Machilipatnam, wherein the application filed by the 1st respondent - 1st plaintiff for order of police aid for protection of the crop in the plaint schedule property was allowed, the present Civil Revision Petition is filed under Article 227 of the Constitution of India.
2. The petitioners herein are defendants. Respondents - Plaintiffs filed O.S. No.187 of 2018 seeking injunction restraining the defendants, their men and followers from interfering with peaceful possession and enjoyment of the plaint schedule land by the 2nd plaintiff and for such other reliefs and costs.
3. Written Statement came to be filed disputing the averments raised in the O.S. While things stood thus, the 1st respondent - 1st plaintiff filed I.A. No.199 of 2019 seeking order of police aid for protection of the crop in the plaint schedule property. The averments in the affidavit filed in support of the petition show the 1st plaintiff/petitioner therein is a temple by name Sri Syamala Ramalingeswara vari Devasthanam, Polavaram village (private temple) managed by Devanga community of the village. It is said that temple owns Ac.5.65 cents in Mallavola Village, Guduru Mandal. The rights of the temple over the land were recognized and confirmed by way of Patta by Land Survey and Settlement Department on 28.6.1958 and since then it has been in possession and enjoyment of the property. It is further stated that the 2nd plaintiff is a tenant of the 1st petitioner scheduled land for the last 15 years and has been paying makta of 65 bags of paddy per year. The 2 2nd respondent therein, who is one of the petitioner herein, is the pujari of Sri Viswesvara Madana Gopala Anjaneya Swamy Temple, which is a separate temple, adjacent to the 1st temple. While things stood thus, the 1st respondent therein with the active connivance of the 2nd respondent therein intend to occupy the petition schedule lands of the temple of the petitioner therein. An application came to be filed before the Endowments Department to appoint Executive Officer for the first petitioner-temple. The rejection of the said application lead to filing of W.P.No.27296 of 2016 before the Hon'ble High Court. The affidavit filed in support of the Writ petition also refers to filing of O.S. No.15 of 2018 for recovery of the said temple. It is said that on 21.5.2018 when the petitioner therein was ploughing the petition schedule land, the respondents came across the tractor and created hurdles, but, however, with great struggle, the 2nd plaintiff therein completed the ploughing. A Complaint came to be lodged before the Police who warned respondents therein of their unlawful activities. Similar such act is said to have been occurred on 5.7.2018, which lead to filing of the suit and I.A.
4. The trial court considering the fact that the court passed the temporary injunction orders in I.A. No.584 of 2018 in favour of the petitioner therein and hence the same was confirmed by the IX Additional District Judge, Machilipatnam in C.M.A. No.29 of 2018 and as per the contents of the affidavit of the petitioner therein, in spite of temporary injunction order, the respondents therein obstructing for implementation of the temporary injunction orders, allowed the petition granting police aid on payment of process for implementation of the temporary injunction orders in I.A. No.584 of 2018. Assailing the same, the present Civil Revision petition is filed. 3
5. The main ground urged by the learned counsel for the petitioners is that petitioners herein is a public temple for all practical purposes, including administration of landed properties. It is stated that beside movable properties as per the register maintained under Section 43 of the Act, the subject temple is holding agricultural land including the land in which the temple is situated. According to the petitioners herein, their forefathers have been rendering Archakatvam in the subject temple. As the subject land is classified as temple under Section 6(c), trustees/archakas are ordered to enjoy temple administration in all respects. While things stood thus, certain persons formed themselves into an association, got it registered and started interfering with the management of the temple.
6. Having regard to the provisions of Section 162 of the Endowments Act, it is pleaded that the civil Court has no jurisdiction to entertain the applications and as such the order granting police aid is illegal.
7. The specific plea raised by the petitioner is that the property belongs to Charitable and Hindu Religious Institution i.e., temple and any dispute relating to the charitable and hindu religious institution shall be decided by the Tribunal constituted under the Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act, 1987, Act 30 of 1987. No doubt, the Tribunal is constituted under Section 162 of the A.P. Act 30 of 1987.
8. According to Section 87 of A.P. Act 30 of 1987, Endowments Tribunal is competent to decide certain disputes as to the questions :
(a) whether an institution or endowment is a charitable institution or endowment;
(b) whether an institution or endowment is a religious institution or endowment;4
(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.
9. The present dispute in suit O.S. No.187 of 2018 pending before the Principal Junior Civil Judge, Machilipatnam, is for grant of permanent injunction restraining defendants, their men and followers from interfering with peaceful possession and enjoyment of the plaint schedule land by the 2nd plaintiff. The suit is for perpetual injunction simplicitor and the scope of trial in a suit for injunction is limited and the Court is not required to record any finding as to the title to the property. Therefore, the dispute in the suit would not fall under any of the clauses of Sub-Section 1 of Section 87 of A.P. Act 30 of 1987. 5
10. Section 91 of C.P.C. deals with inherent jurisdiction of a civil court and the civil court has got jurisdiction unless the jurisdiction of civil court is ousted by any express bar or by necessary implication. The leading judgment on inherent jurisdiction of the civil court is Kamala Mills Ltd v. State of Bombay1, where constitutional bench of the Supreme Court held that to decide exclusive jurisdiction of the civil court expressly or impliedly, the scheme of the relevant provisions, their object and purpose has to be seen. The court will consider whether the remedy vide special statute is sufficient or adequate. Such determination is relevant but not decisive in case of express bar. In case of plea of implied bar, such a determination is decisive. Special right and liability created by a special statute determinable by special tribunal even though court will enquire whether remedies normally available in civil courts are prescribed by such statute.
11. In Dhulabhai and Others v. The State of Madhya Pradesh 2 five judges bench laid down following seven guidelines to infer jurisdiction or ouster of jurisdiction :
(1) Where the statute gives a finality to the orders of the special tribunals the Civil Courts' jurisdiction must be held to be excluded if there is adequate remedy to do what the Civil Courts would normally do in a suit. Such provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure.
(2) Where there is an express bar of the jurisdiction of the court, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the civil court.1
AIR 1965 SC 1942 2 AIR 1969 SC 78 6 Where there is no express exclusion the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive. In the latter case it is necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability and further lays down that all questions about the said right and liability shall be determined by the tribunals so constituted, and whether remedies normally associated with actions in Civil Courts are prescribed by the said statute or not.
(3) Challenge to the provisions of the particular Act as ultra vires cannot be brought before Tribunals constituted under that Act. Even the High Court cannot go into that question on a revision or reference from the decision of the Tribunals.
(4) When a provision is already declared unconstitutional or the constitutionality of any provision is to be challenged, a suit is open. A writ of certiorari may include a direction for refund if the claim is clearly within the time prescribed by the Limitation Act but it is not a compulsory remedy to replace a suit.
(1) [1964] 1 S. C. R. 752.
(2) [1966] 1 S. C. R. 64.
(5) Where the particular Act contains no machinery for refund' of tax collected in excess of constitutional limits or illegally collected a suit lies.
(6) Questions of the correctness of the assessment apart from its constitutionality are for the decision of the authorities and a civil suit does not lie if the orders of the authorities are declared to be final or there is an express prohibition in the particular Act. In either case the scheme of the particular Act must be examined because it is a relevant enquiry.
(7) An exclusion of the jurisdiction of the Civil Court is not readily to be inferred unless the conditions above set down apply.
12. In view of the above judgments, it is clear that Special Tribunals constituted under the Special statutes are vested with the power to grant all the reliefs which the civil court can grant and if a statute imposes liability and creates an effective machinery for deciding questions of law 7 or facts by necessary implication, civil court's jurisdiction is deemed to have been barred.
13. In the facts of the present case, though Tribunal is constituted under Section 162 of A.P. Act 30 of 1987, the powers of the tribunal are circumscribed under Section 87 and the Tribunal can decide only the issues pertaining to those clauses enumerated under sub-section 1 of section 87 of the Act. The present suit is filed only for injunction simplicitor by a third party. Normally, the Tribunal cannot grant such injunctive relief in favour of a private individual by exercising power under Section 87 of the Act. Therefore, in view of the limited powers conferred on the tribunal under the A.P. Act 30 of 1987, it is difficult to conclude at this stage that the jurisdiction of civil court is ousted by any express bar or by necessary implication. It is premature to record such a finding at this stage.
14. The Memo. Dated 1.10.2015, which is subsequent to the proceedings of the Commissioner of Endowments dated 12.2.2013 and proceedings of the Commissioner of Endowments dated 9.9.2015 and a memo dated 1.10.2015 prevails over the earlier proceedings, as such, as per the memo dated 1.10.2015, the Commissioner of Endowments allowed Devanga community to run the institution i.e., Sri Syamala Rama Lingeswara Swamyvari Devasthanam, Polavaram, Guduru Mandal, Krishna District, independently. It appears from the above, that the temple is exempted from application of provisions of Endowments Act.
15. Section 154 of the A.P. Act 30 of 1987 deals with exemptions. The Government may by notification, exempt from operation of any of the provisions of this Act or any of the rules made there under - 8
(a) any charitable institution or endowment the administration of which was or is for the time being vested -
(i) in the Government either directly or through a Committee or Treasurer of Endowments, appointed for the purpose ;
(ii) in the official Trustee or in the Administrator General;
(b) any charitable institution or endowment founded for educational purpose or for providing medical relief ; or
(c) any institution or endowment which is being well managed by the founder ; or
(d) any institution or endowment ; and may likewise vary or cancel such exemption.
16. By exercising discretionary power, the Government. by issuing notification, exempted the temple from the application of the provisions of A.P. Act 30 of 1987.
17. By order dated 31.8.2018 in I.A.No.584 of 2018 the trial Court has granted temporary injunction. It is alleged by the respondents - plaintiffs herein that in spite of temporary injunction orders, the petitioners herein tried to cut the crop and obstructing for implementation of the temporary injunction orders. Therefore, by order dated 7.6.2019 in I.A.No.199 of 2019, the trial court has rightly granted police aid on payment of process for implementation of the temporary injunction orders in I.A.No.584 of 2018.
18. In view of the foregoing discussion, I find no ground to disagree with the view expressed by the Principal Junior Civil Judge, at Machilipatnam, in I.A. No.199 of 2019 in O.S.No.187 of 2018, dated 7.6.2019 and I find no legal infirmity warranting interference of this Court while exercising power under Article 227 of the Constitution of India.
19. In the result, the Civil Revision Petition is dismissed without costs, under the circumstances, with direction to Principal Junior Civil Judge, 9 Machilipatnam, to dispose of the suit in accordance with law uninfluenced by findings or observations made hereinabove.
Consequently, Interlocutory Applications pending, if any, shall stand closed.
______________________________ JUSTICE C.PRAVEEN KUMAR Date : 08.01.2020 skmr