Andhra HC (Pre-Telangana)
Kalluram Alias Munnalal vs The Commissioner Of Endowments And Ors. on 16 July, 1991
Equivalent citations: 1991(2)ALT673
JUDGMENT M.N. Rao, J.
1. This writ petition has come up before us for disposal on a reference made by our learned brother Parvatha Rao, J., disagreeing with the view taken by one of us (Sivaraman Nair, J.,) in W.P. No. 1811/91 in which it was held that the power of the Commissioner of Endowments to make appointments to the posts of Executive Officers is saved by virtue of the provisions of Section 155 (2) of the A.P. Charitable & Hindu Religious Institutions & Endowments Act, 1987. (for short "the Endowments Act, 1987") Our 'earned brother Parvatha Rao, J, was also of the view that since no rules were framed under Section 29, no appointments cou1d be made because there is a vacuum.
2. In the writ petition the legality of an order dated 16-10-1989 passed by the Commissioner of Endowments in Rc. No. G3/54514/89 was questioned. In and by the above order, the Commissioner of Endowments appointed the Executive Officer of Sri Laxmi Narayana Swamy Temple, Secunderabad as Executive Officer in full additional charge of Sri Peddamma Temple, Jubilee Hills, Hyderabad. The petitioner in the writ petition claims to be the owner of an extent of Acs. 2.30 cents in which the temple in question is situate and us it is a. family temple it cannot be notified as a religious institution for the purpose of invoking power under the provisions of the Endowments Act, 1987. The main debate, it appears, centered round the interpretation of Section 29 before our learned brother Parvatha Rao, J., and therefore it. is necessary to notice to provisions of Section 29.
"29. Appointment and duties of Executive Officer:- (1) The Government may constitute not more than three charitable or religious institutions or endowments each of whose annual income is rupees fifty thousand but does not exceed rupees one lakh into such groups as may be prescribed.
(2) For each such group of charitable or religious institutions or endowments there shall be appointed an Executive Officer for exercising the powers and discharging the duties conferred on him by or under this Act.
Sub-section (3) of Section 29 after amendment by Act No. 26 of 1990, reads as follows:
"29 (3) : The Government may for purpose of this Act. constitute such grade of Executive Officers, prescribing their appointing authorities and authorise them to exercise such powers and discharge such duties as may be prescribed.
Provided that twenty percentum of vacancies in each grade of Executive Officers shall be filled by the employees belonging to the Institutions or Endowments of prescribed grade.
Provided further that, it shall be competent for the Government to appoint a Regional Joint Commissioner, a Deputy Commissioner or an Assistant Commissioner as an Executive Officer."
3. In W.P. No. 1811 of 1991 one of us viz., Sivaraman Nair J., had taken the view that although no rules were framed under Sub-section (3) of Section 29 of the Endowments Act, 19H7, the Commissioner of Endowments could Validly make appointments to the posts of Executive Officers in exercise of his powers under the A.P. Endowments Executive Officers Subordinate Service Rules issued by the State Govt. in G.O.Ms. No. 368, Revenue dated 16-2-1978 in exercise of powers under Section 107 r/w. Sub-section (5) of Section 27 of the Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act, 1966 which are saved by virtue of Sub-section (2) of Section 155 of the Endowments Act, 1987. With that view the learned Judge (SPR, J.,) dissented relying upon an earlier decision of a Division Bench of this Court in W.A.No. 644 of 1974 dated 30-6-1976 in which it was held that in the absence of rules, the Commissioner would not exercise power under Section 27 of the old Act, 1966 which corresponds to Section 29 of the Endowments Act, 1987.
4. We may at once state that when W.A.No. 644/74 was disposed of on 30-6-1976, the rules issued in G.O.Ms. No. 368 dated 16-2-1978 were not in force. Obviously, because of the absence of rules, the Division Bench had taken the view that exercise of power under Section 27 was fatal. The above rules issued in G.O.Ms No. 368, dt. (6-2-1978, we think, were not brought to the notice of our learned brother Parvatha Rao, J., Further discussion on this aspect, we feel, is unnecessary in view of the fact that the judgment in W.P. No. 1811/91 (rendered by Sivaraman Nair, J,.) was affirmed by a Division Bench in W.A.No. 369/91 on 28-3-1991. The reference order of Parvatha Rao, J., was on 14-3-1991. It is, needless to mention that if the judgment in W.A. No. (SIC)9/91 had been rendered earlier to the reference order, the reference itself would have become unnecessary. Since Parvatha Rao, J., disagreed with the view taken by one of us viz., Sivaraman Nair, J in W.P. No. 18111/91, this reference also becomes in fructuous as the judgment in W.P. No. 1311/91 was affirmed in W.A.No. 369/91.
5. In the normal course, we would have disposed of the writ petition taking the view that exercise of power by the Commissioner in the absence of rules under Section 29 was saved by Section 155 (2) of the Act, 1987 and therefore, the write petitioner could not validly complain against the impugned G.O. In the counter affidavit filed on behalf of respondents 1 and 2, a plea was taken that the petitioner has an effective alternative remedy by way of a revision to the State Government under the provisions of Section 93(1) and therefore the questions raised in the writ petition should not be adjudicated upon by this Court. Some of the pleas raised by the learned counsel for the petitioner relate to legality of the impugned order on grounds other than the one relating to jurisdiction of the Commissioner in the absence of rules. An application filed under Section 87 before the Deputy Commissioner of Endowments for a declaration that the temple in question is not a public temple is still pending and until the character and the nature of the institution is decided by the Deputy Commissioner in the above application (O.A.No. 4/90), it is not open to the Commissioner to invoke the power under the provisions of the 1987 Act. Without issuing any prior notice to the person-in-management, the impugned order was issued. These questions, we are not inclined to decide for the obvious reason that the petitioner has an effective alternative remedy by way of a revision under Section 93 of the Act. Sri Ramachandra Reddy says that he cannot approach the Government by way of a revision in view of the bar contained in Sub-section (3). We do not agree.
6. Section 92 of the Act, 1987 confers revisional power on the Commissioner of Endowments and Section 93 on the State Government. The two sections viz., Sections 92 and 93 read as follows :
"92. Power of the Commissioner to call for records and pass orders :--(1) The Commissioner may either suo motu or on application, call for and examine the record of any Deputy Commissioner, or Assistant Commissioner, or of any other Officer subordinate to him or of any Executive Officer or any trustee of a charitable or religious institution or endowment, other than a math or a specific endowment attached to a math in respect of any administrative or quasi-judicial decision taken or order passed under this Act, but not being a proceeding in respect of which a suit or an appeal or application, or reference to a Court is provided by this Act to satisfy himself as to the correctness, legality or propriety of such decision or order taken or passed, and if in any case, it appears to the Commissioner that such decision or order should be modified, annulled, reversed or remitted for consideration, he may pass orders accordingly-
(2) The Commissioner shall not pass any order prejudicial to any party under Sub-section (1), without giving him an opportunity for making representation.
(3) The Commissioner may stay the execution of any decision or order of the nature referred to in Sub-section (1) pending the exercise of his powers under the said Sub-section in respect thereof.
(4) Every application to the Commissioner for the exercise of his powers under this section shall be preferred within ninety days from the date on which the order or proceeding to which the application relates was received by the applicant.
Section 93. Power of Government to call for records and pass orders :-- (1) The Government may either suo motu or on an application call for and examine the record of the Commissioner or any Deputy Commissioner or any Assistant Commissioner or any other Officer subordinate to them, or of any Executive Officer or any trustee of a charitable or religious institution or endowment, other than a math or specific endowment attached to a math in respect of any administrative or quasi-judicial decision taken or order passed under this Act, but not being a proceeding in respect of which a suit or an appeal or application, or a reference to court is provided by this Act, to satisfy themselves as to the correctness, legality or propriety of such decision or order taken or passed, and if in any case, it appears to the Government that such decision or order should be modified, annulled, reversed or remitted for reconsideration, they may pass orders accordingly :
Provided that the Government shall not pass any order prejudicial to any party unless he has had an opportunity of making his representation.
(2) The Government may stay the execution of any such decision or order pending the exercise of their powers under Sub-section (1) in respect thereof.
(3) No application to the Government for the exercise of their power under this section shall be made in respect of any matters unless an application had already been made in respect of the same matter to the Commissioner under Section 92 and had been disposed of by him.
(4) Every application to the Government for the exercise of their powers under this section shall be made within ninety days from the date on which the decision or order to which the application was received by the applicant.
7. Sri Ramachandra Reddy's contention is based upon the specific language employed in Sub-section (3) of Section 93 which, according to him, constitutes a bar to approach the Government with a request to invoke the revisional jurisdiction against an order passed by the Commissioner unless the Commissioner himself was approached in the first instance. Although, at the first blush, the contention appears to be attractive, on a closer scrutiny of the provisions of Section 93, we are of the view that this contention does not merit acceptance. Under Sub-section (1) of Section 93, the Government is conferred with revisional jurisdiction which can be exercised either suo-motu or on an application and this jurisdiction extends to examining the record of not only the Commissioner, but of other subordinate authorities viz., Deputy Commissioner, Assistant Commissioner or any other subordinate officers. Sub-section (3) is aimed at preventing persons from directly approaching the Stale Government with a request to exercise revisional jurisdiction without first approaching the Commissioner under Section 92 (1) of the Act. As already noticed, the Commissioner is conferred with revisional jurisdiction under Sub-section (1) of Section 92 in respect of orders passed by a Deputy Commissioner or Assistant Commissioner or any subordinate officers. It is, therefore, necessary that unless the revisional jurisdiction of the Commissioner is exhausted in respect of any orders passed by any officer subordinate to the Commissioner, no person can invoke the jurisdiction of the Government under Section 93 (1). This is incorporated in Sub-section (3). The ambit of Sub-section (3) must be understood in its proper perspective. The general power conferred on the Govt. under Sub-section (1) cannot by any interpretative process, be nullified by reference to Sub-section (3). The interpretation Sri Ramachandra Reddy wants us to place on Sub-section (3) is contrary to the basic tenets of all canons of interpretation and will result in manifest absurdity. There cannot he a revision to the same authority against an order passed by him. That would be subversive of the very concept of rule of law and exercise of power by hierarchy of tribunals. We, therefore, hold that Sub-section (3) is not a bar for any person to invoke the jurisdiction of the State Government in respect of an order passed by the Commissioner of Endowments. So far as the orders passed by officers who are subordinate to the Commissioner arc concerned, unless the revisional jurisdiction of the Commissioner is invoked in respect of those orders, no person can approach the State Government by way of a revision under Section 93 (1). The above self-evident position has been fairly conceded in the counter filed by the State Government.
8. in the circumstances, we dispose of the writ petition with a direction that the petitioner shall within two weeks from today file a revision petition before the Government under Section 93 and within four weeks thereafter, the Government shall dispose of the same on merits and in accordance with law after giving notice to the parties and until the same is disposed of, the status quo obtaining as on today shall continue. We make it explicit that the petitioner shall Co-operate with the Government in the disposal of the revision petition. If the petitioner fails to file a revision within two weeks from today, the impugned order shall take effect. There shall be no order as to costs.
9. It is alleged in the counter that animal sacrifices and other undesirable activities forbidden by law are taking place at the site in question. It is needless to mention that if any such activities take place, it is open to the authorities to act in accordance with law.