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Bheema Ramaswamy and anr. Vs. the Joint Commissioner, Endowments Department, Andhra Pradesh, Hyderabad and ors. - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtAndhra Pradesh High Court
Decided On
Case NumberWrit Petn. No. 105 of 1972
Judge
Reported inAIR1973AP62
ActsAndhra Pradesh Charitable and Hindu Religious Endowments Act, 1966 - Sections 77, 77(2), 77(4), 78 and 82; Constitution of India - Article 226; ;Code of Civil Procedure (CPC), 1908 - Sections 115
AppellantBheema Ramaswamy and anr.
RespondentThe Joint Commissioner, Endowments Department, Andhra Pradesh, Hyderabad and ors.
Appellant AdvocateS.V. Kondapi, Adv.
Respondent AdvocateA. Gangadhara Rao and ;P. Dwarakanath, Advs.
Excerpt:
.....endowments, under section 82 of the act. 82 of the act cannot be invoked by the petitioner'.the joint commissioner plainly failed to keep in view the material difference between a 'decision' given and an 'order 'made under section 77. he was clearly wrong in observing that 'the petitioner has to wait till a decision is given by the deputy commissioner under section 77 of the act and then only file a suit in the district court under section 78. any such direction would obviously amount to flying in the face of section 82. in the view which we have taken of section 78, the order under sub-section (2) of s. 80 of 1970 on 22.12.1971 was clearly revisable by the commissioner, endowments, under section 82 of the act......to administer the affairs of the endowed property. that i. a. was filed by the respondents. the deputy commissioner appointed sri thirumala naidu, executive officer of group temples at kurnool by an order dated 2-12-1971 as custodian of sadarvathi manyam, miduthur village, nandikotkur taluk, kurnool district for its management and endowments attached to it pending the disposal of o. a. no. 80 of 1970. the petitioners were directed to hand over charge of records and accounts of the property attached to it to the executive officer so appointed on 22-12-1971.4. aggrieved by that order, the petitioners preferred a revision petition to the joint commissioner, endowments, r. p. no. 129 of 1971. the joint commissioner, endowments, by his order dated 30-12-1971 declined to hear the revision.....
Judgment:

Gopal Rao Ekbote, C.J.

1. This is an application under Article 226 of the Constitution of India for the issue of a writ of certiorari or any other appropriate writ to quash the order of the joint Commissioner. Endowments, made in R. P. No. 129 of 1971 on 30-12-1971.

2. The facts in brief which are not in dispute are that the petitioners filed an application under Section 77 of the Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act, hereafter called ' the Act ' before the Dy. Commissioner, Endowments, Kurnool for a declaration that they are the hereditary trustees of Sri Sadvarthi Maryam, Midthur village, Nandikotkur Kurnool District and also for a declaration that the schedule lands do not constitute endowment.

3. During the pendency of that application I. A. No. 1 of 1971 was filed under Section 77 (2) for appointment of Executive Officer to administer the affairs of the endowed property. That I. A. was filed by the respondents. The Deputy Commissioner appointed Sri Thirumala Naidu, Executive Officer of Group temples at Kurnool by an order dated 2-12-1971 as custodian of Sadarvathi Manyam, Miduthur village, Nandikotkur Taluk, Kurnool District for its management and endowments attached to it pending the disposal of O. A. No. 80 of 1970. The petitioners were directed to hand over charge of records and accounts of the property attached to it to the Executive Officer so appointed on 22-12-1971.

4. Aggrieved by that order, the petitioners preferred a revision petition to the Joint Commissioner, Endowments, R. P. No. 129 of 1971. The Joint Commissioner, Endowments, by his order dated 30-12-1971 declined to hear the revision petition on the ground that he has no jurisdiction to entertain the revision petition. The writ petition is filed to challenge the correctness of this order.

5. The principal contention of Sri S. V. Kondapi, the learned counsel for the petitioners, is that Section 82 of the Act confers jurisdiction upon the Commissioner to hear revision petition against an order passed by the Deputy Commissioner under Section 77 (2) of the Act and therefore the Joint Commissioner erred in declining to hear the revision petition.

6. In order to understand the implications of this argument it is necessary to read Sections 77, 78 and 82 of the Act.

Section 77 :

(1) The Deputy Commissioner 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 trusteeship is hereditary or not ;

(d) Whether any property is an endowment, if so whether it is a charitable endowment or a religious endowment ;

(e) Whether any property is a specific endowment ;

(f) Whether any person is entitled by custom or otherwise to any honour. Emoluments or prerequisite 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 ;

(g) Whether any office holder or servant is holding or has held his office or service hereditarily ;

(h) Whether any office or service is of a hereditary nature ;

(i) Where a permanent or temporary vacancy occurs in the office of a hereditary trustee, as to the person who is entitled to succeed to such office ;

(j) 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

(k) 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 party 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.

2. The Deputy Commissioner may, pending his decision under sub-sec. (1) pass such order as he deems fit for the administration of the property or custody of the money belonging to the institution or endowment.

3. Every decision or order of the Deputy Commissioner under this section shall be published in the prescribed manner.

4. The Deputy Commissioner may while recording his decision under sub-section (1) and pending implementation of such decision pass such interim order as he may deem fit for safeguarding the interest of the institution or endowment, for preventing damage to or loss of 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.

Section 78 :

Any person aggrieved by the decision of the Deputy Commissioner under Section 77 may, within one year from the date of the publication of the decision, institute a suit in the District Court.

Section 82 :

(1) The Commissioner may either suo motu or on an application, call for and examine the record of any Deputy Commissioner or Assistant Commissioner or any trustee of charitable or religious institution or endowment, other than a math or specific endowment attached to a math in respect of any proceeding under this Act 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 regularity of such proceedings, or the correctness legality or propriety of any decision or order taken or passed therein and if 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 78 enjoins that any person aggrieved by the decision of the Deputy Commissioner under Section 77 may institute a suit in the District Court. The question therefore is whether the order passed in an interlocutory application under Section 77 (2) is a decision under Section 77 in regard to which there is only a remedy of a suit.

7. A careful reading of Section 77 would disclose that the section itself makes a distinction between ' decision' given under Section 77 (1) and an ' order' passed either under sub-sec. (2) or under sub-section (4) of that section. The difference in language of sub-section (1) on the one hand and the language of sub-sections (2) and (4) on the other is deliberate, and made with a purpose. While sub-section (1) uses the expression ' decide any dispute' and this expression means the decision under sub-section (1). In sub-section (2) or sub-section (4), the words ' order' and ' interim order' are respectively used. Sub-section (3) brings out that distinction prominently when it expressly says. ' Every decision or order of the Deputy Commissioner under this section'. Likewise , in sub-section (2), the words ' pending his decision under sub-section (1) pass such order as he deems fit' as also in sub-section (4) the words ' while recording his decision under sub-section (1) and pending implementation of such decision, pass such interim order as he may deem fit' manifestly bring out the difference between a ' decision' and an ' order'. The orders passed under sub-section (2) or (4) are really interim orders and they are not decisions under Section 77 (1). The final disposal of any dispute as to the questions referred to in sub-section (1) is what is characterised as a ' decision' while the orders passed under sub-section (2) or sub-section (4) are characterised as an ' order' or ' interim order' respectively in those sub-sections. This distinction made by the section gathers further strength from the words employed in sub-section (3) of Section 77. Sub-section (3) expressly uses the term ' decision' or 'order'. It becomes therefore plain that the decision referred to in Section 78 is the decision given by the Deputy Commissioner when he finally decides any dispute as to the question referred to in sub-section (1) of S. 77. What must necessarily follow is that the remedy of suit provided in Section 78 to any aggrieved person is only against a decision finally given by the Deputy Commissioner deciding any dispute relating to any question referred to in Section 77 (1) of the Act. Section 78 therefore does not apply to any order or an interim order passed by the Deputy Commissioner under Section 77 (2) and (4) respectively.

8. What then is the remedy available to an aggrieved partly against an order or an interim order made by the Deputy Commissioner under sub-sec (2) or sub-section (4) of S. 77 ?. Section 82 clearly provides an answer to this question. The remedy against such an order is by way of revision to the Commissioner. That section expressly states that the Commissioner may either suo motu or on an application call for and examine the record of any Deputy Commissioner in respect of any proceeding under the Act. It could not be doubted before and in fairness it must be said that it was not doubted before us that I.A.No. 1 of 1971 filed under Section 77 (2) of the Act or any I.A. filed under Section 77 (4) is a proceeding under the act within the meaning of Section 82. What is excluded from the revisory jurisdiction of the Commissioner is a proceeding under the act in respect of which a suit to court is provided by the Act. We have already noticed that Section 78 provides a remedy of suit in a proceeding wherein any dispute relating to any question mentioned in Section 77 (1) is finally decided by a decision does not provide the remedy of a suit against an order or any interim order made in a proceeding under Section 77 (2) or (4). No other provision is brought to our notice which provides a remedy of suit or an appeal or an application or reference to a court. That being the position, order made under sub-section (2) of S. 77 is clearly revisable by the Commissioner, Endowments, under Section 82 of the Act.

9. The Joint Commissioner obviously went wrong in holding that ' as under section 78 a right of suit is provided for the aggrieved party against the decision of the Deputy Commissioner under Section 77, S. 82 of the Act cannot be invoked by the petitioner'. The Joint Commissioner plainly failed to keep in view the material difference between a ' decision' given and an ' order ' made under Section 77. He was clearly wrong in observing that ' the petitioner has to wait till a decision is given by the Deputy Commissioner under Section 77 of the act and then only file a suit in the District Court under Section 78. Any such direction would obviously amount to flying in the face of Section 82. In the view which we have taken of Section 78, the order under sub-section (2) of S. 77, which the Deputy Commissioner has made in I.A. No. 1 of 1971 in O.A. 80 of 1970 on 22.12.1971 was clearly revisable by the Commissioner, Endowments, under Section 82 of the act. In deciding to hear the revision, he has refused to exercise the jurisdiction vested in him under Section 82 of the act. His impugned order dated 30.12.1971 therefore has necessarily to be quashed by the issue of a writ of certiorari. This court is also entitled to issue a command by mandamus to the Joint Commissioner directing him to restore R.P.No. 129 of 1971 to his file and hear and dispose of the Revision petition in accordance with law.

10. We accordingly allow the writ petition. The petitioners will get their costs. Advocate's fees Rs. 100/-.

11. Petition allowed.


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