Andhra HC (Pre-Telangana)
Teki Venkata Ratnam And Ors. vs Deputy Commissioner Of Endowments And ... on 4 October, 1996
Equivalent citations: 1996(4)ALT374, 1997 A I H C 1831, (1996) 4 ANDHLD 643, (1996) 4 ANDH LT 374, (1996) 2 APLJ 515
Author: B.S. Raikote
Bench: B.S. Raikote
JUDGMENT Lingaraja Rath, J.
1. The petitioners-appellarts filed W.P.No.10824 of 1987 questioning the notice issued to them by the Deputy Commissioner,. Endowments Department, Kakinada - 1st respondent in O.A. No. 1 of 1987 on 6-6-1987 purportedly under Section 77 (1) of the Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act, 1966 (for short 'the 1966 Act') to decide whether Sri Pandurangaswamy temple, Chilakalapudi, Machilipatnam is a public or a private temple as also the order passed by the first respondent in LA. No. 36/87 in O.A. No. 1/87 on 20-74987 deciding that he has jurisdiction to decide the question. The writ petition was filed questioning the jurisdiction of the first respondent to issue the notice. The basis of the challenge is an earlier order passed by the District Judge, Krishna, Machilipatnam in O.P.No.1/1940 on 24-10-1941 declaring the temple as private. The writ petition having been dismissed on 31-12-1993, the present appeal has been preferred.
2. Narration of the background of the facts leading to the present appeal is necessary since not only the litigation spans about 20 years, but also because of the sheer number of the cases and the applications filed in them from time to time. It appears, notice was issued by the Inspector of Endowments on 8-10-1975 to the executive authority of Sri Pandurangaswamy temple, Chilakalapudi calling upon the temple to be registered under Sections 38 and 39 of the 1966 Act. W.?.No.5480 of 1976 was filed by the predecessor of the appellants challenging the notice. That petition was disposed of on 24-11-1976 recording the submission of Mr. T.H.B. Chalapathi, learned counsel for the peti tioners that the Executive Officer (writ petitioner therein) had been advised to raise the necessary dispute by filing an application before the Deputy Commissioner of Endowments, Kakinada under Section 77 of the 1966 Act and to contend that the temple does not fall within the purview of the Act being a private one, and hence is not obliged to be registered under Sections 38 and 39 of that Act. The learned counsel for the petitioners in the case submitted that steps would be taken to file the petition before the Deputy Commissioner of Endowments within two weeks of the date of the order. An appeal, W.A.No.20 of 1977 was carried by the writ petitioners which was disposed of on 20-1-1977 declining to interfere, taking the view mat the statement made by the learned counsel for the petitioners before the learned single Judge was on the instructions of the petitioners for which reason the appeal was to fail. While dismissing the appeal, six weeks time was allowed in the judgment to take such steps as they like. Admittedly, the writ petitioners did not file application under Section 77 of the 1966 Act. While the matter stood thus, the Assistant Commissioner, in his proceedings Rc.No.D/13602/77 dt 14-11-1977, appointed the Inspector of Endowments, Machilipatnam as the Chief Festival Officer for thefestivalofKarthikaSudhaEkadasifrom20-ll-1977to26-ll-1977. The order was passed in consideration of the report of the person in management, Sri Keti Satyanarayana. The order of the Assistant Commissioner was assailed before the Joint Commissioner of Endowments/ Hyderabad in R.P.No.168 of 1977 who passed orders on 19-10-1979 that as the order of the District Judge, Krishna inO.P.No.1 /40 had not been set aside by any competent Court or authority, that judgment declaring the temple as private was still in force and that respondent No. 2 in that case i.ev Keti Satyanarayana ci ihr Asst. Commissioner were at liberty to move the Deputy Commissioner under Section 77 of the 1966 Act for declaration that the temple is public one in view of the changed circumstances and until such declaration is obtained, the Asst. Commissioner cannot interfere with the administration of the temple. The appellants admittedly had not filed application under Section 77 of the 1966 Act as had been undertaken in W.P.No.5084 of 1976. Thereafter, the impugned notice was issued in O.A.No. 1 of 1987 under Section 77 of the 1966 Act. The appellants and some others raised the question before the Deputy Commissioner as regards his jurisdiction to undertake the enquiry and subsequently they also filed I.A.No.36/87 in O.A.No.1/87 to determine the question of jurisdiction of the first respondent The first respondent held, by his order of 20-7-1987, that he had jurisdiction to decide the question and passed interim orders appointing a person as custodian of the temple. The writ petition out of which this appeal arises was filed to quash the proceedings initiated suo motu by the first respondent as also to quash the order of 20-7-1987. Arguing the petition, the question urged before the learned single Judge was of Section 77 of the 1966 Act as not contemplating any enquiry whether a temple is private or a public one and that by the date of the notice, the 1966 Act had been repealed. The submission was contested by the respondent pointing out that since 19-2-1987 the present. Endowment Act of 1987 (for short '1987 Act') has come into force under Section 87{6) of which an enquiry, as had been initiated by the first respondent, is provided for. The learned single Judge took the veiw that though Section 77 of the 1966 Act did not provide for an enquiry as to whether an institution is public or private, yet as the notice was issued after the 1987 Act had come into force, the power to hold the enquiry must be traced to the new Act. Provision of the 1987 Act as well as the 1966 Act applies to all public charitable institutions and all Hindu public religious institutions and Section 87(6) of the 1987 Act created the presumption, in matters covered under clause (a) to (e) of Section 87(1), that the institution or the endowment is a public one, though the presumption is & rebuttable one but the burden to rebut is on the person claiming the institution or endowment to be private. The learned Judge hence took the view that the Deputy Commissioner had jurisdiction to decide whether the temple is a public or a private one. Taking the view, the learned Judge distinguished an earlier decision of this Court in A.S. No. 238 of 1975 decided on 26-10-1978 in which view had been taken of Section 77 of the 1966 Act as not clothing the Deputy Commissioner with the power to decide whether the institution is public or private, of it having been rendered under the 1966 Act but that the power was specifically available to the Deputy Commissioner under Section 87(6) of the 1987 Act. Taking such view, the writ petition was dismissed.
3. During the pendency of the appeal orders were passed in W.A.M.P. Nos. 142 & 143 of 1994 on 184-1994 that pending disposal of O.A. No.l /87 by the first respondent, the appellants shall be permitted to manage the affairs of the temple but the direction was subject to the final orders that would be passed by the first respondent in O.A. No.l /87 which was directed to be disposed of, preferably within three months. SX.P. No. 13171 of 1994 was filed by the appellants challenging the order but was dismissed as withdrawn on 22-8-1994. Therafter, the appellants again filed review W.A.M-P. No. 298 of 1996 to review the orders passed on 18-1-1994 in W.A.M.P. Nos. 14.2 &143 of 1994 and also filed W. A.M.P.No. 350 of 1996 on 29-2-1996 for stay pending the review. Since in the meantime the respondent No.l had disposed of O.A. No. 1/87 on 12-3-1996 holding the temple to be public one, the appellants filed W.A.M.P. No. 847 of 1996 on 18-4-1996 to stay the operation of that order. All the three petitions, W.A.M.P. No. 298 of 1996, 353 of 1996 and 847 of 1996 were disposed of on 25-3-1996 with the observation that the appellants should bring the order of the Deputy Commissioner to the notice of the Commissioner who can exercise revisional powers under Section 88 of the 1966 Act and it was open to the appellants to file an application for the purpose. The appellants, in pursuance of the order, moved the Commissioner in R.P. No. 45/96. The Commissioner expressed the view that the revision was not maintainable but that he was to dispose of the revision having been directed by the High Court. Considering the meri is he dismissed the revision saying that the appellants had been carrying on the litigation for the last 20 years without invoking the statutory provisions of 1966 Act or the i9S7 Act and that they had not carried out the orders of the Court passed in 1977 directing them to approach the Deputy Commissioner under Section 77 of the 1966 Act. Prior to the disposal of the matter by the Commissioner, the appellants had filed W.A.M.P.No.ll96 of 1996 seeking stay of further proceedings which had been refused in the order of 25-3-1996. While that petition was put up for orders, we directed to take up the writ appeal itself for disposal along with W.A.M.P. No. l l96 of 1996.
4. In urging the appeal, Mr. K. Venkataratnam, learned counsel for the appellants advanced two submissions, the first being that the Deputy Commissioner of Endowments has no jurisdiction to initiate the proceeding in O. A. No. 1/87 to determine the character of the temple as public or private and thai secondly such attempt of him is otherwise barred by the principle of res judicnta. I would lake up the submissions seriatim.
5. So tar as the question of jurisdiction is concerned, it is the submission of the learned counsel that the notice could not have been issued on 6-6-1987 under Section 77 of the 1966 Act as that Act was no longer in force then. Section 77 of the 1966 Act also did not vest authority in the Deputy Commissioner to decide a temple as public or a private one and oven if the notice is taken to have been issued under the 1987 Act, yet, the corresponding provision in that Act, Section 87, also does not vest any authority in the Deputy Commissioner to determine such question.
6. No doubt, notice was issued in O.A.No.l /87 under Section 77 of the 1966 Act, though that Act has been repealed by the 1987 Act .But the notice can hardly fail on such ground alone, as having been issued when the 1987 Act is in force, it has to be treated as having been issued under that Act only, provided, the Act has the provision under which the notice can be issued. It is well known that where a power is exercised by the authority under a wrong provision of law but the power is traceable to another existing provision, the power would be deemed to have been exercised under that provision. It is conceded by Mr. Venkataratnam that Section 87 of the 1987 Act is the corresponding provision to Section 77 of the 1966 Act. I must hence hold that issue of notice under Section 77 of the 1966 Act was merely an inadvertent mistake and that the notice in effect is under Section 87 of the 1987 Act.
7. Next is the question as to whether there is power in the 1987 Act to decide the status of the temple as public or private. Reliance is placed by Mr. Venkataratnam on the judgment of this Court in A.S.No.238 of 1975 where the learned single Judge held, discussing the scope of Section 77 of the 1966 Act, that the Deputy Commissioner though had the jurisdiction under the Section to decide whether an institution is a charitable institution or not, yet had no jurisdiction to decide whether an institution is a public charitable institution or a private charitable institution. It is the submission of the learned counsel that provisions of sub-section (a), (b) and (d) of the Section 77 of the 1966 Act are identical to clauses (a), (b) and (c) of the Section 87(1) of the 1987 Act and those being the relevant provisions in relation to the question of determination of the status of the institution, the law declared in A.S.No.238 of 1975 also applies to the provisions of Section 87 of the 1987 Act. Consequently, it has to be held that under Section 87 of the 1987 Act, the Deputy Commissioner had no jurisdiction to issue the impugned notice. So far as the two new sub-clauses to Section 87, sub-section (5) and sub-section (6) are concerned, which respectively provide that a decision or order of the Deputy Commissioner deciding whether an institution or endowment is not public shall not take effect unless the decision or order is confirmed by the Commissioner; and that in relation to sub- clauses (a) to (e) of sub-section (1) of Section 87 of the 1987 Act there shall be presumption of the institution or the endowment of being a public one with the burden of proof to displace the presumption cast on the person who claims to the contrary, it is submitted that the provisions relate to the administrative functions of the Deputy Commissioner but not to his judidal functions and have no bearing on the question at hand.
8. Since the argument of the learned counsel is built upon the basis of the decision of the learned single Judge, 1 would examine the question of powers of the Deputy Commissioner in greater depth. For the purpose, before the provisions of the 1987. Act are discussed, the provisions of the 1966 Act may be considered. Section 1(3) of the Act made it applicable, in sub-clause (a) to all public charitable institutions and endowments other than wakfs and in clause (b), to all Hindu public religious institutions and endowments. Section 2(20) defined "religious charity" as a public chanty associated with a Hindu festival or observance of a religious character whther connected with a religious institution or not; and in sub-section (21), "religious endowment" was defined as property either belonging, given or endowed either for the support of the religious institution or given or endowed for the performance of any service or charity of a public nature connected therewith of any other religious charity. Section 2(22) defined "religious institution" as a math, temple or specific endowment and as including a Brindavan, Sam ad hi or any other institution established or maintained for a religious purpose. Temple, under the Act, was defined under Section 2(26) as a place by whatever designation known, used as a place of public religious worship, and dedicated to, or for the benefit of, or used as of right by, the Hind u community or any section thereof, as a place of public religious worship etc. It is thus clear that the pre-eminent purpose of the Act was to apply the provisions of the Act, inter alia, to all Hindu religious institutions or endowments, including temples which are public in nature. Since the Act is to apply to Hindu religious institutions or endowments which are public in nature, and religious institution also means public temples, it is obvious that the provisions of the Act would, so far as temples are concerned/ apply only to public temples. Section 38 of the Act provided for registration of charitable and religious institutions and endowments requiring the trustee or other persons in-charge of the management of every charitable or religious institution or endowment to make application within the stipulated time for the purpose of registration. Section 39 vested power in the Commissioner, where the trustee or other person in-charge of the management of the charitable religious institution or endowment fails to apply for registration, to give notice to them to make the application within the specified period and if they fail to make the application within that period, to get the institution or endowment registered in the prescribed manner and recover the cost of registration from the funds of the institution or the endowment. Section 77 vested power in the Deputy Commissioner to decide certain disputes and matters. The disputes contemplated in sub-sections (a), (b) and (d) of Section 77 were as follows:
"(a) Whether an institution or endowment is a charitable institution or endowment;
(b) Whether an institution or endowment is a religious institution or endowment;
(d) Whether any property is an endowment, if so whether it is a charitable endowment or a religious endowment;"
The Act was successor to the Andhra Pradesh (Andhra Area) Hindu Religious and Charitable Endowments Act, 1951 and was designed to regulate the administration of public religious institutions or endowments. The different authorities under the Act were vested with different functions relating to such administration. In discharging their statutory functions either administrative or quasi-judicial, they were to decide, when the question was raised of the institution being not amenable to their jurisdiction being not a public religious Institution or endowment, as to whether the exception claimed is justified or not. Since the authorities under the Act are vested with the power to control public religious institutions or endowments, it is incumbent upon them to first reach the conclusion as to whether the institution they propose to regulate is a public one or not. It is a jurisdictional fact for the authorities to decide on upon the decision of which they can assume jurisdiction to proceed further. When a notice is issued under Section 39 of the Act and the notice complains that it is not covered by the provisions of the Act, the dispute arises for determination as to the status of the institution. Instead of the adjudication of the dispute being vested in the Commissioner, the Act devised a specific mechanism in Section 77 of the Act to resolve it. The Deputy Commissioner being vested with the power to decide whether an institution or endowment is a religious institution or endowment, has necessarily to decide whether it is a public religious institution or endowment for the Act to become applicable and hence has also necessarily to decide whether it is not private. Thus, as temple has been defined as a place of public religious worship, the Deputy Commissioner in deciding the applicability of the Act to it, has to decide its character as public or private. To say that the Deputy Commissioner has no power to decide whether a religious institution is public or private is to negate the given power of the Deputy Commissioner to decide an institution as public though that question has been specifically entrusted to him for decision. Any Tribunal vested with the jurisdiction to decide a particular dispute has the primary jurisdiction to decide the facts, the decision on which enables it to assume jurisdiction to decide the secondary set of facts which are specifically assigned to it for decision. The decision on such primary facts may be given to the same Tribunal or to a different Tribunal as in the 1966 Act where the determination of such dispute is given to the Deputy Commissioner to decide. I have hence to hold that the Deputy Commissioner had the power under the 1966 Act to decide the public or private status of the temple.
9. Of course, the decision of the Tribunal on such primary or jurisdictional facts may or may not be made final by the statute and if the jurisdiction of the Civil Court is not barred in the matter, the aggrieved persons may go before that Court to question the decision of the Tribunal on the jurisdictional issue, but that is a different matter.
10. Coming to the 1987 Act, its provisions, corresponding to the provisions referred in 1966 Act, are identical. Section l(3)(b) is similar to Section l(3)(b) of the 1966 Act Section 2(22) corresponds to Section 2(22) and 2(23) corresponds to 2(22). Sections 43 and 44 correspond to Sections 38 and 39 and as had been noticed earlier, Section 87 is the corresponding Section to Section 77. Two new sub-sections have been added to Section. 87, sub-section (5) and sub-section (6), which are as follows:
"(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.
(6): 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 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."
The provisions are thus specifically made that the Deputy Commissioner is to give the decision of the institution being public or not but the decision is not to be operative until that has been confirmed by the Commissioner, with the further provision made that in the entity to the disputes specified in clauses (a), (b), (c), (d) and (e) (of sub-section (i)), the Deputy Commissioner shall start with the presumption of the institution or the endowment to be public one and the burden of proving it to be private being of the person who claims it to be so. The two provisions without any sphere of doubt show the Deputy Commissioner as having the authority to decide whether the institution or endowment is public or private, and if no evidence is led to the contrary he has to presume that they are public institutions or public endowments, The very fact that both in the 1966 Act and in the 1987 Act the function of the Deputy Commissioner respectively under Section 77 and Section 87 was and is to enquire into a dispute shows that they were and are to exercise quasi-judicial functions and determine the lis. A dispute presupposes two sides to an issue, one supporting and the other opposing. The dispute whether an institution or endowment is religious institution or endowment can only be to the effect that it is not a religious institution or endowment under the Act, i.e., it is not a public religious endowment or a public religious institution and such dispute can arise only when the fact of their being of such public character is disputed by a person who must necessarily contend to raise the dispute, that they are private institutions or endowments. For such reason, there is absolutely no warrant to treat the provisions in sub-sections (5) and (6) of Section 87 as dealing only with administrative functions of the Deputy Commissioner.
11. Indeed, the law has been so since more than half a century. The Madras Hindu Religious Endowments Act (Act 2 of 1927) which is the predecessor of the 1951 Act also made provisions in Section 2 that the Act applies to all Hindu public religious endowments. Section 9(12) of the M.H.R.E. Act defined temple as a place, by whatever designation known, used as a place of public religious worship etc. The Act provided for excepted and unexcepted temples and Section 49 provided that the Chapter V, which dealt with temples, shall not apply to \excepted temples or trustees thereof. As there was no in-built mechanism in that Act to decide to which institutions the Act must be applied, the question whether a temple is non-excepted or not and whether the Act was applicable or not could be decided only by the Civil Court. In the Madras Hindu Religious and Endowments Act, 1951 (Act 19/1951), Section 1(2) extended the Act to all Hindu public religious institutions and endowments including the Tirumala Tirupathi Devasthanams and endowments thereof. Section 6(13) defined religious charity as a public charity associated with a Hindu festival or observance of religious character whether it be connected with a math or temple or not and in Section 6(14), which corresponded to Section 9(11)of the 1927 Act, religious endowment or endowment were defined as all properties belonging to or given or endowed for the support of maths or temples, or given or endowed for the performance of any service or charity of a public nature connected therewith or of any other religious charity etc. It would be seen that the definition corresponds to the definition in the 1966 Act and the 1987 Act. Section 6(15) defined religious institution as a math, temple or specific endowment and under Section 6(17) temple is a place by whatever designation known, used as a public place or worship and dedicated to, or for the benefit of or used as of right by the Hindu community or any section thereof, as a place of public religious worship. Section 57 of the Act vested power in the Deputy Commissioner to decide whether an institution is a religious institution which would necessarily mean that he had the power to enquire whether the institution was a temple under the Act i.e., a public temple. I need not refer to the other provisions. These considerations would show that the submission advanced by the learned counsel is wholly untenable. Because of the conclusions reached, I am also to hold that the decision in A.S.No.238 of 1975 was not correctly decided and hence is overruled.
12. The second submission urged by the learned counsel invoking the principles of res judicata is also without force. The basis of the argument is the decision of the learned District Judge in O.P.No.1/40 declaring the temple as private, and also placing reliance on the decision of the Joint Commissioner in R.P.No.168/1977 on 19-10-1979. No doubt, the decision of the District Judge would be res judicata for any attempt to be made to declare the temple as public prior to 1941 when the decision was given. The decision that the temple was private in 1941 is final so far as during the period prior to it is concerned but a temple being private is not a static concept and in course of time a private temple may become public. It depends upon various other factors, situations and developments in which a temple which was founded as a private one may gradually acquire the nature of a public temple. The question was considered by the Supreme Court in G.S. Mahalaxmi v. Shah Ranchhoddas,AIR 1970 SC 2005, where in paragraph 15 it was observed:
"Though most of the present day Hindu public temples have been founded as public temples, there are instances of private temples becoming public temples in course of time. Some of the private temples have acquired great deal of religious reputation either because of the eminence of its founder or because of other circumstances. They have attracted large number of devotees. Gradually in course of time they have become public temples. Public temples are generally built or raised by the public and the deity installed to enable the members of the public or a section thereof to offer worship. In such a case the temple would clearly be a public temple. If a temple is proved to have originated as a public temple, nothing more is necessary to be proved to show that it is a public temple but if a temple is proved to have originated as a private temple or its origin is unknown or lost in antiquity then there must be proof to show that it is being used as a public temple. In such cases the true character of the particular temple is decided on the basis of various circumstances."
There is hence no inherent lack of authority in the Deputy Commissioner to issue a notice to decide whether an institution has become public even though it was originally founded as a private one and there would not be any question of res judicata involved in determining the issue. So far as the order of Joint Commissioner is concerned, there was never any decision by him that the temple was public. All that he observed in the order was that until the judgment of the District Judge, Krishna is not departed from it must hold good, for which reason the Assistant Commissioner could not appoint a festival officer in respect of the temple festival and that the matter should be resolved in an enquiry under Section 77 of the 1966 Act. As a matter of fact, the predecessor of the appellants themselves conceded through their advocate before this Court in W.P. No. 5084 of 1976 that they would file an application under Section 77 of the 1966 Act before the Deputy Commissioner to decide the status but they never abided by the undertaking and have resorted to various litigations to stop the enquiry process which has since been completed and decision given.
13. In the result, this Writ Appeal has no merit and is dismissed with costs.