Andhra HC (Pre-Telangana)
S.T.V. Raghunathachary vs Commissioner, Endowments Department ... on 18 January, 2005
Equivalent citations: 2005(1)ALD683, 2005(1)ALT788
Author: L. Narasimha Reddy
Bench: L. Narasimha Reddy
ORDER L. Narasimha Reddy, J.
1. The petitioner challenges the notice of hearing, dated 27-12-2004 issued by the 2nd respondent. The brief facts that led to the filing of the writ petition may be stated as under:
2. The 4th respondent, Executive Officer, Sri Venkateswara Swamy Temple, Gaddi Annaram, Hyderabad, filed OA No. 113 of 1996 before the 2nd respondent, the Deputy Commissioner of Endowments, Hyderabad, under Section 87 of the Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act (for short 'the Act)', seeking a declaration that the properties mentioned in the application belong to the temple. The petitioner is the sole respondent in that application.
3. The proceedings had to cross several hurdles. Ultimately the 2nd respondent passed an order, dated 20-7-2000. Sub-section (5) of Section 87 of the Act mandates that the order passed by the 2nd respondent shall not take effect, unless it is confirmed by an order of the 1st respondent. It was in this context that the matter was placed before the 1st respondent. Through his order, dated 28.6.2004, the 1st respondent refused to confirm the order of the 2nd respondent. He pointed out certain deficiencies in the matter and directed the 2nd respondent to take necessary steps, such as impleading the Assistant Commissioner of Endowments, Hyderabad etc. In pursuance of the direction of the 1st respondent, the 2nd respondent issued the impugned notice for taking further steps in the matter.
4. Sri P. Yadagiri Rao, learned Counsel for the petitioner, submits that the effects of the order, dated 28-6-2004 passed by the 1st respondent is to remand the matter to the 2nd respondent and such a power does not vest in him. He contends that it is only when the 1st respondent exercises the power of appeal or revision, he can remand the matter to an inferior authority and not in the context of confirmation as contemplated under Sub-section (5) of Section 87 of the Act. He draws the attention of this Court to Section 92 of the Act. Learned Counsel also placed reliance upon a judgment of this Court in P. Raja Lingam v. Commissioner of Endowments, Hyderabad, . Learned Counsel points out that the petitioner was not issued certified copy of the order, dated 20-7-2000 passed by the 2nd respondent or the one dated 28-6-2004 passed by the 1st respondent.
5. Learned Government Pleader for Endowments, on the other hand, submits that there is nothing on record to disclose that the 1st respondent has remanded or remitted the matter. According to him, the 1st respondent has refused to confirm the order passed by the 2nd respondent and with a view to avoid any hiatus in the matter, he indicated certain steps to be taken by the 2nd respondent. He also contends that the petitioner has an effective remedy by way of filing an appeal under Section 88 of the Act.
6. The writ petition arises out of the proceedings initiated by the 4th respondent under Section 87 of the Act. The Act provides for an extraordinary type of adjudication of the matters under Section 87 of the Act. Though the 2nd respondent is the authority conferred with jurisdiction to decide the matters under that provision, Sub-section (5) of Section 87 of the Act mandates that an order passed by the Deputy Commissioner shall come into effect only after it is confirmed by the Commissioner of Endowments, the 1st respondent. The provision reads as under:
"87(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."
7. It discloses that a semblance of compulsory and forced appeal is provided to the Commissioner, irrespective of the decision arrived at by the Deputy Commissioner. The adjudication becomes complete only on the exercise by the two authorities, one taking a decision and the other confirming it. Such an extraordinary course is adopted for obviously, because of the consequences that arise out of the adjudication under Section 87 of the Act. The power to confirm, by its very nature, takes in its fold, the power to decline confirmation. In addition to this, the authority can issue certain directions, which are ancillary thereto. In the absence of such a power, it may lead to several complications. For example, if the Commissioner notices a technical defect in the order passed by the Deputy Commissioner, mere refusal to confirm the order does not subserve the purpose. Since he is not specifically conferred with the power to rectify the defect by himself, the only alternative for him would be to require the Deputy Commissioner to take necessary steps. This course of action accords with the purposive construction of the provision. If it is to be held that the Commissioner has either to confirm or refuse to do so and cannot adopt any other course, the proceedings may end up in a stalemate. The appellate authority also would not be in a position to resolve such a tangle.
8. In P. Raja Lingam's case (supra), this Court took the view that the Commissioner does not possess the power to remand a matter while exercising the power under Sub-section (5) of Section 87 of the Act. Firstly, there is nothing on record to show that the 1st respondent has remanded the matter in the instant case. Secondly, a direction to comply with a particular step by itself cannot be treated as an order of remand. Even where, the 1st respondent used the word 'remand', the matter has to be examined in the context of the contents of the concerned order and the purport thereof, rather than the words used in it. Hence, the principle laid down in the said decision does not apply to the facts of the present case.
9. Section 88 of the Act provides for an appeal against the decision of the 2nd respondent or the order passed by the 1st respondent under Section 87 of the Act. If the 1st respondent confirms the decision of the 2nd respondent, it becomes appealable. On the other hand, if the 1st respondent refuses to confirm the decision of the 2nd respondent, the latter becomes unenforceable and it is only the former that becomes appealable. The petitioner can avail the remedy under Section 88 of the Act, if he is so advised against the order, dated 28-6-2004 passed by the 1st respondent. The grievance of the petitioner that he was not served with the copies of the said orders can be attended to, by issuing necessary directions.
10 Hence, the writ petition is disposed of directing that-
(a) Respondents 1 and 2 shall issue certified copies of the order, dated 20-7-2000 in OA No. 113 of 1996 containing the decision of the 2nd respondent, and the order, dated 28-6-2004 passed by the 1st respondent, within one week from the date of filing of an application by the petitioner. Such an application shall be filed within ten days from today.
(b) The appeal that may be preferred by the petitioner under Section 88 of the Act against the order of the 1st respondent shall be treated as having been filed within the period of limitation, in case it is presented within four weeks from the date of receipt of the certified copy of the order appealed against.
(c) The proceedings before the 2nd respondent shall remain stayed for a period of six weeks from today and it shall be open to the petitioner to seek appropriate interim orders from the appellate authority, under Section 88 of the Act.
11. There shall be no order as to costs.