Andhra Pradesh High Court - Amravati
G China Babu vs State Of Ap on 29 January, 2020
Author: M.Satyanarayana Murthy
Bench: M.Satyanarayana Murthy
THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY
WRIT PETITION No.605 OF 2020
ORDER:
This writ petition is filed under Article 226 of the Constitution of India, challenging the proceedings in Rc.No.J2/12676/2008 dated 26.03.2008 issued by the Commissioner, Endowments Department, notifying Sri Seetharama Swamy Temple, Ganjivari Street, Ravikamatham Village & Mandal, Visakhapatnam District under Section 6(c)(ii) of The Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act, 1987 (for short 'Act No.30 of 1987') as a public religious institution under Section 6 of Act No.30 of 1987 without following procedure laid down under Sections 43 and 44 of Act No.30 of 1987 and violative of principles of natural justice and consequently set-aside the proceedings Rc.No.J2/12676/2008 dated 26.03.2008.
It is the case of the petitioners that, Sri Seetharama Swamy Temple was constructed long ago and certain properties were registered in the name of the temple by registered gift deed dated 25.03.1908, executed by Inamdar by name late Bollapragada Krishnavenamma w/o Ranganayakulu in favour of Ganji Bapunaidu and others, who were members of the committee of Sri Seetharama Swamy Temple which was under construction at Ravikamatham. The income from the above mentioned property was directed to be utilized by the members of a committee and their successors for the maintenance of the temple. The said members of the committee completed the construction of temple and after their demise, the MSM,J 2 WP No.605 of 2020 petitioners herein who are successors have been utilizing the income from property for the maintenance of the temple.
While the matter stood thus, there were suits between different parties of the temple and the tenants in occupation of the temple property filed O.S.No.123 of 1992 on the file of Principal District Munsiff, Chodavaram against the Committee members of the temple for permanent injunction. The said suit was dismissed and an appeal A.S.No.26 of 1997 on the file of Senior Civil Judge, Chodavaram was also dismissed. The Committee members filed suits in O.S.No.77 to 80 of 2003 for eviction of the above mentioned tenants which was decreed and eviction was ordered. A suit for declaration of title and consequential recovery of possession was also filed in O.S.No.1 of 2014 on the file of Senior Civil Judge, Chodavaram by one Kanchipati Somunaidu and others in collusion with the above mentioned tenants. The petitioners herein were impleaded as Defendant Nos. 32 to 36 in the said suit. The said suit was dismissed by the Trial Court on 24.02.2012. An appeal was preferred against the dismissal of suit in A.S.No.239 of 2012 on the file of VII Additional District Judge, Visakhapatnam and the same was also dismissed vide judgment dated 30.05.2015.
While the matter stood thus, an anonymous complaint was given by the villagers of Ravikamatham to the third respondent on 19.11.2019 alleging that one late Bollapragada Krishanvenamma gifted 70 cents of land to Sri Seetharama Swamy Temple and the income derived from the above said property is misappropriated by the petitioners for personal purpose. It is also further alleged that the temple properties of 15 to 20 crores value is being misappropriated by the petitioners and requested to take appropriate action.
MSM,J 3 WP No.605 of 2020 As the villagers failed to obtained a favourable order in various forums, an anonymous complaint was submitted to the third respondent with false and frivolous allegation and acting upon such anonymous complaint, the third respondent issued proceedings in Rc.No.A3/4825/2019 dated 19.11.2019 requesting the Station House Officer, Ravikamahtam to stop the authorized occupation of shops belonging to Sri Seetharama Swamy Temple. Thus, the third respondent, acting upon the above mentioned proceedings issued an endorsement dated 20.11.2019 and the petitioners herein are being restrained by the third respondent from entering into the shops and property of Sri Seetharama Swamy Temple.
The petitioners filed W.P.No.19506 of 2019, aggrieved by the proceedings in Rc.No.A3/4825/2019 dated 19.11.2019 of the third respondent and the subsequent action of the Station House Officer, Ravikamatham. This Court vide order dated 09.12.2019 directed both the parties to maintain status quo.
The third respondent herein filed counter affidavit in W.P.No.19506 of 2019, wherein, the impugned proceedings dated 26.03.2008 were brought to the notice of the petitioners. The said proceedings were issued under Section 6(c)(ii) of Act No.30 of 1987, classifying Sri Seetharama Swamy Temple, as a public religious institution. Therefore, the proceedings issued by the Commissioner under Section 6(c)(ii) of Act No.30 of 1987 is arbitrary and without jurisdiction and in violation of principles of natural justice. No enquiry under Sections 43 or 44 of Act No.30 of 1987 was conducted, but registered the Temple under Section 6(c)(ii) of Act No.30 of 1987, contrary to the mandatory procedure prescribed under Sections 43 & 44 of Act No.30 of 1987 and thereby, the proceedings impugned in MSM,J 4 WP No.605 of 2020 this writ petition are liable to be set-aside, declaring the same as illegal and arbitrary.
The respondents did not file any counter, but placed on record the instructions he received from the Assistant Commissioner of Endowments, and submitted that the temple is a public charitable institution and it is registered in accordance with the provisions of Act No.30 of 1987 and the provisions of Act No.30 of 1987 are applicable and the notification issued under Section 6(c)(ii) of Act No.30 of 1987 issued by the Commissioner is only in consonance with the provisions of the Act and the Commissioner can issue such proceedings notifying the temple as religious institution and endowment other than mutt, subject to the annual income and no enquiry need be conducted under Sections 43 & 44 of Act No.30 of 1987, requested to be dismiss the writ petition.
During hearing, learned counsel for the petitioners and learned Government Pleader for Endowments reiterated their respective contentions.
The notification was issued in the year 2008, but it is challenged before this Court after 12 years. Therefore, there is any amount of delay in the challenge and on this ground of delay and latches, this writ petition is liable to be dismissed.
It is useful to refer to the passage from City and Industrial Development Corporation v. Dosu Aardeshir Bhiwandiwala and Ors1, wherein this Court while dwelling upon jurisdiction Under Article 226 of the Constitution, has expressed thus:
"The Court while exercising its jurisdiction Under Article 226 is duty-bound to consider whether: 1
2009) 1 SCC 168 MSM,J 5 WP No.605 of 2020
(a) adjudication of writ petition involves any complex and disputed questions of facts and whether they can be satisfactorily resolved;
(b) the petition reveals all material facts;
(c) the Petitioner has any alternative or effective remedy for the resolution of the dispute;
(d) person invoking the jurisdiction is guilty of unexplained delay and laches;
(e) ex facie barred by any laws of limitation;
(f) grant of relief is against public policy or barred by any valid law; and host of other factors."
Delay or latches is one of the factors which is to be borne in mind by the High Court when they exercise their discretionary powers Under Article 226 of the Constitution. In an appropriate case the High Court may refuse to invoke its extraordinary powers if there is such negligence or omission on the part of the applicant to assert his right as taken in conjunction with the lapse of time and other circumstances, causes prejudice to the opposite party. (vide Karnataka Power Corporation Ltd. Through its Chairman & Managing Director and Anr. v. K. Thangappan and Anr2) The High Court in exercise of its discretion does not ordinarily assist the tardy and the indolent or the acquiescent and the lethargic. If there is inordinate delay on the part of the Petitioner and such delay is not satisfactorily explained, the High Court may decline to intervene and grant relief in exercise of its writ jurisdiction. It was stated that this rule is premised on a number of factors. The High Court does not ordinarily permit a belated resort to the extraordinary remedy because it is likely to cause confusion and public inconvenience and bring, in its train new injustices, and if writ jurisdiction is exercised after unreasonable delay, it may have the 2 (2006) 4 SCC 322 MSM,J 6 WP No.605 of 2020 effect of inflicting not only hardship and inconvenience but also injustice on third parties. It was pointed out that when writ jurisdiction is invoked, unexplained delay coupled with the creation of third-party rights in the meantime is an important factor which also weighs with the High Court in deciding whether or not to exercise such jurisdiction. (vide State of M.P. v. Nandalal Jaiswal3) In Chennai Metropolitan Water Supply and Sewerage Board and Ors. v. T.T. Murali Babu4, it was held that, the doctrine of delay and laches should not be lightly brushed aside. A writ court is required to weigh the explanation offered and the acceptability of the same. The court should bear in mind that it is exercising an extraordinary and equitable jurisdiction. As a constitutional court it has a duty to protect the rights of the citizens but simultaneously it is to keep itself alive to the primary principle that when an aggrieved person, without adequate reason, approaches the court at his own leisure or pleasure, the court would be under legal obligation to scrutinise whether the lis at a belated stage should be entertained or not. Be it noted, delay comes in the way of equity. In certain circumstances delay and latches may not be fatal but in most circumstances, inordinate delay would only invite disaster for the litigant who knocks at the doors of the court. Delay reflects inactivity and inaction on the part of a litigant--a litigant who has forgotten the basic norms, namely, "procrastination is the greatest thief of time"
and second, law does not permit one to sleep and rise like a phoenix. Delay does bring in hazard and causes injury to the lis. 3 (1986) 4 SCC 566 4 (2014) 4 SCC 108 MSM,J 7 WP No.605 of 2020 In Tukaram Kana Joshi and Ors. v. Maharashtra Industrial Development Corporation & Ors5 it has been ruled that, delay and laches is adopted as a mode of discretion to decline exercise of jurisdiction to grant relief. There is another facet. The Court is required to exercise judicial discretion. The said discretion is dependent on facts and circumstances of the cases. Delay and laches is one of the facets to deny exercise of discretion. It is not an absolute impediment. There can be mitigating factors, continuity of cause action, etc. That apart, if the whole thing shocks the judicial conscience, then the Court should exercise the discretion more so, when no third-party interest is involved. Thus analysed, the petition is not hit by the doctrine of delay and latches as the same is not a constitutional limitation, the cause of action is continuous and further the situation certainly shocks judicial conscience. Further, it was held that, no hard-and-fast rule can be laid down as to when the High Court should refuse to exercise its jurisdiction in favour of a party who moves it after considerable delay and is otherwise guilty of latches. Discretion must be exercised judiciously and reasonably. In the event that the claim made by the applicant is legally sustainable, delay should be condoned. In other words, where circumstances justifying the conduct exist, the illegality which is manifest, cannot be sustained on the sole ground of latches. When substantial justice and technical considerations are pitted against each other, the cause of substantial justice deserves to be preferred, for the other side cannot claim to have a vested right in the injustice being done, because of a non-deliberate delay. The court should not harm innocent parties if their rights have in fact emerged by delay on the part of the petitioners.
5 (2013) 1 SCC 353 MSM,J 8 WP No.605 of 2020 Similar issue came up for consideration before the Apex Court in Londhe Prakash Bhagwan v. Dattatraya Eknath Mane and others6, wherein the Apex Court while deciding a service dispute highlighted the jurisdiction of the High Court to exercise power when the parties approached the Court at belated stage observed as follows:
"In all these cases, the aggrieved person shall have a right to approach the Tribunal. Now, the sole question which falls for our consideration is: when an aggrieved person can apply before the Court, if no limitation is prescribed in the statute for filing an appeal before the appropriate forum. We have duly considered the said question. Even if we assume that no limitation is prescribed in any statute to file an application before the court in that case, can an aggrieved person come before the court at his sweet will at any point of time ? The answer must be in the negative. If no time-limit has been prescribed in a statute to apply before the appropriate forum, in that case, he has to come before the court within a reasonable time. This Court on a number of occasions, while dealing with the matter of similar nature held that where even no limitation has been prescribed, the petition must be filed within a reasonable time. In our considered opinion, the period of 9 years and 11 months, is nothing but an inordinate delay to pursue the remedy of a person and without submitting any cogent reason therefor. The court has no power to condone the same in such case."
(vide Cicily Kallarackal v. Vehicle Factory7, State of Orissa v. Mamata Mohanty8 and K.R. Mudgal v. R.P. Singh9). In all the judgments, it has been held that the application should be rejected on the ground of inordinate delay.
The consistent view of the Apex Court in various judgments referred above was that, for abnormal delay, which is unexplained disentitles the petitioners to claim such discretionary relief under Article 226 of the Constitution of India.
6 (2013) 10 Supreme Court Cases 627 7 2012 (8) SCC 524 8 2011 (3) SCC 436 9 1986 (4) SCC 531 MSM,J 9 WP No.605 of 2020 In the present case, the reason assigned by these petitioners for delay is that, notification of the temple under Section 6(c)(ii) of Act No.30 of 1987 is handed over to these petitioners only when earlier W.P.No.19506 of 2019 was filed. But, the same cannot be accepted for the simple reason that, when the temple is notified under Section 6(c)(ii) of Act No.30 of 1987, such temple (institution or endowment or Dharmadayam) is liable to pay annual contribution and audit fees to the Government from the income derived from it, under Section 65 of Act No.30 of 1987 and it is not known whether any contribution is having sent or not. Apart from that, the explanation offered by this petitioner is not plausible or reasonable explanation. Therefore, based on the explanation offered by these petitioners will not outweigh the abnormal delay and latches on the part of these petitioners.
The other contentions of the learned counsel for the petitioners is that, when Sri Seetharama Swamy Temple is notified under Section 6 of Act No.30 of 1987, it must be a public charitable religious institution or endowment, otherwise, the same cannot be notified under Section 6 of Act No.30 of 1987.
Section 6 of Act No.30 of 1987 deals with prepration and publication of list of charitable and religious institutions and endowments on the basis of income. According to it, Commissioner sahre prepare separately and publish in the prescribed manner, a list of
(a)(i) the charitable institution and endowments; or
(ii) the religious institutions and endowments other than maths;
whose annual income as calculated for the purpose of contribution under Section 65 (exceeds rupees twenty five lakhs)
(b)(i) the charitable institution and endowments; or MSM,J 10 WP No.605 of 2020
(ii) the religious institutions and endowments other than maths;
whose annual income calculated as aforesaid (exceeds rupees two lakhs but does not exceed rupees twenty five lakhs)
(c)(i) the charitable institution and endowments; or
(ii) the religious institutions and endowments other than maths not falling under Clause (a) or Clause (b);
(d) the maths irrespective of the income;
(e) the Dharmadayam irrespective of the income;
Whereas, the contention of the learned Government Pleader for Endowments is that, when the temple is public and religious charitable institution, the Commissioner is entitled to prepare such list and issue notification under Section 6, subject to the income and drawn attention of this Court to Section 1(3)(a) of Act No.30 of 1987. According to Section 1(3)(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, the provisions of A.P. Act No.30 of 1987 are applicable. Explanation thereto is offered as to what is "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, organization institution or person.
According to Section 1(3)(b) of Act No.30 of 1987, all Hindu public religious institutions and endowments whether registered or not in accordance with the provisions of the Act itself A.P. Act No.30 of 1987. Now, the question is whether Sri Seetharama Swamy Temple is a public charitable institution or endowment.
Earlier, the Deputy Commissioner is vested with the power to decide whether Sri Seetharama Swamy Temple is a public charitable MSM,J 11 WP No.605 of 2020 institution or an endowment. But, on account of constitution of Endowments Tribunal, the jurisdiction of the civil courts is barred under Section 151 of Act No.30 of 1987 and power of the Deputy Commissioner is taken away. However, the Endowments Tribunal is competent to decide certain disputes and matters, as per Section 87 of Act No.30 of 1987. According to it, (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.
MSM,J 12 WP No.605 of 2020 (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 interests of the institution or endowment and for preventing damage to or loss 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.
According to Sub-section (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.
Thus, the said dispute arises as to whether a particular temple or an institution is a public charitable institution or an endowment. The Endowments Tribunal is competent to decide under Section 87 of Act No.30 of 1987. Earlier, the Deputy Commissioner was valid with such power to decide the dispute regarding the status of the institution, whether it is a public religious institution or endowment or whether it is not private. (vide T.V. Ratnam v. Deputy Commissioner10).
But, in view of the constitution of Endowments Tribunal, the power was taken away from the Deputy Commissioner and conferred upon the Endowments Tribunal. Therefore, if the dispute is purely as to whether temple is private or public charitable institution, the parties may approach the Endowments Tribunal, for decision and if 10 1996 (4) ALD 643 (DB) MSM,J 13 WP No.605 of 2020 the Endowments Tribunal found that it is a public charitable institution, notification under Section 6(c)(ii) of Act No.30 of 1987 is justifiable. Therefore, in the present facts of the case, more particularly, on account of delay and latches, the petitioners are disentitled to claim Writ of Mandamus, invoking judicial review under Article 226 of the Constitution of India. However, it is left open to the petitioners to approach the Endowments Tribunal or any competent authority, in accordance with law, for appropriate remedy under Section 87 of Act No.30 of 1987.
In the result, writ petition is dismissed with liberty to approach the Tribunal.
Consequently, miscellaneous applications pending if any, shall stand closed.
__________________________________________ JUSTICE M. SATYANARAYANA MURTHY Date:29.01.2020 sp