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Paleru Venkateswarlu and ors. Vs. Potina Venkateswarulu and anr. - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtAndhra Pradesh High Court
Decided On
Case NumberL.P. Appeal Nos. 106 of 1970 and 180 of 1971
Judge
Reported inAIR1973AP264
ActsAndhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act, 1966 - Sections 36, 77 and 110; Code of Civil Procedure (CPC), 1908 - Sections 92 and 93
AppellantPaleru Venkateswarlu and ors.
RespondentPotina Venkateswarulu and anr.
Appellant AdvocateG. Venkatrama Sastry, Adv.
Respondent AdvocateP.M. Gopal Rao, Adv.
Excerpt:
trust and societies - removal of trustee - sections 36, 77 and 110 of andhra pradesh charitable and hindu religious institutions and endowments act, 1966 and sections 92 and 93 of code of civil procedure, 1908 - appellant were trustee of land and were bound to maintain water tank from earning of land - respondent claimed that existing trustees should be removed and new trustees need to be appointed from amongst villagers - high court directed trial court to issue notice to deputy commissioner to entrust management of tank to endowment department instead of villagers - appeal before division bench - both courts below found that appellants have persistently neglected to maintain tank in good condition - case for framing of schemes or passing device successfully made out - since maintenance.....gopal rao ekbote, c.j.1. pothina vari kunta a fresh water tank is situated in the hamlet of daggupadu viz., pothinavaripalem. it has been in existence from times immemorial and has been serving the needs of the villagers. the tank is endowed with 13 acres and 16 cents of land for the repairs and up-keep of the tank. the tank and the endowed property have been from the inception under the care and management of the trustees. the trustees used to derive income from the land and utilise the same for maintaining the tank in proper condition. the defendants are now the trustees and are in possession of the land and are charged with the obligation of maintaining the tank in repairs out of the income of the land. the trustees have been deriving income from the land but have not spent anything on.....
Judgment:

Gopal Rao Ekbote, C.J.

1. Pothina Vari Kunta a fresh water tank is situated in the hamlet of Daggupadu viz., Pothinavaripalem. It has been in existence from times immemorial and has been serving the needs of the villagers. The tank is endowed with 13 acres and 16 cents of land for the repairs and up-keep of the tank. The tank and the endowed property have been from the inception under the care and management of the trustees. The trustees used to derive income from the land and utilise the same for maintaining the tank in proper condition. The defendants are now the trustees and are in possession of the land and are charged with the obligation of maintaining the tank in repairs out of the income of the land. The trustees have been deriving income from the land but have not spent anything on repairs of the tank. They have been utilising the income for themselves. They are partitioning the property. They are also now trying to alienate the property as though it is their own. The tank is not in a proper condition and has now become incapable of storing water. The villagers are put to a great inconvenience. They therefore obtained the sanction of the Advocate-General and filed the suit for settling a scheme, for the removal of the trustees and for rendering of accounts by the trustees.

2. The defendant disputed that the extent of land is not what is shown by the plaintiffs but is only Acs. 10-80 cents. They denied that the suit tank was excavated by the ancestors of the defendants. The lands shown in the schedule and the lands surrounding them were owned by the successors of the original founder of the tank. The land did not constitute a grant or endowment. The land is an inam land personally granted to the ancestors of the defendants although the grant was burdened with service to keep the tank in repairs. The defendants have been repairing the tank regularly and have not misappropriated the amount. They have no intention of alienating the lands. The defendants are not liable to account. They are not trustees and therefore no question of their removal arises.

3. The trial Court framed as many as seven issues. The important issue with which we are now concerned ins the additional issue. It reads : 'Whether the suit is maintainable?'

4. The parties produced oral evidence and marked several documents. The Additional Subordinate Judge Bapatla by his judgment dated 30-9-1967 dismissed the plaintiffs' suit. He found that since proceedings under Section 3 (1) of the Andhra Inams (Abolition and Conversion into Ryotwari) Act are pending before the R.D.O in appeal the Civil Court has no jurisdiction to decide whether the inam land is held by an institution then the defendants would be liable to account. The learned Subordinate Judge however found that the tank was not maintained and kept in good condition. The defendants have neglected to repair the tank. He further observed that a scheme can be framed if the suit lands can be held to have been endowed for the repairs of the suit tank. In regard to the additional issue the learned Subordinate Judge held that since the suit was filed before the commencement of the Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act, 1966 (hereinafter called the Act), the Act does not apply to the present case. Nevertheless he found the suit not maintainable because the question whether the grant is to an individual or to an institution cannot be decided by the Civil Court.

5. Dissatisfied with that judgment the plaintiffs filed A.S.No. 294 of 1967 in this Court. Our learned brother M.Krishna Rao J. By his judgment dated 13-7-1970 (Andh Pra) allowed the appeal. He held that the defendants have neglected to maintain the tank properly and consequently a case has been made out for the framing of a scheme. Since he had held that the inam is held to be a public charitable trust he though it desirable that it should be managed by the Andhra Pradesh Endowments Department. He therefore directed the trial Court to issue notice to the Deputy Commissioner and to entrust the management of the tank and the inam to the concerned authorities instead of appointing persons in the village as trustees.

6. The defendants preferred L.P.A. ,106 of 1970. The plaintiffs also preferred L.P.A. 180 of 1971. When these appeals came up before a Bench of this Court the correctness of some unreported decisions of the Bench was challenged. Since the questions involved were considered to be important having far-reaching effects the Bench referred the case to a Full Bench and that is how the matter has come before us.

7. We have already seen that the suit was instituted in 1960 when the Andhra Pradesh Hindu Religious and Charitable Endowments Act, 1951 was in force, whereunder it was a common ground that a suit under Section 92 of the C.P.C. for framing a scheme and removal of trustees could be filed in a Civil Court and such a suit was maintainable. Before the suit, however, was disposed of by the trial Court the Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act, 1966 came into force repealing the 1951 Act. The repealing provision i.e. Section 109 of the Act, however, saves all proceedings pending before the Government any officer or authority or a trustee under the repealed Act and directs the proceedings to be continued by the appropriate authority. The said Section in Clause (d) of sub-section (2) also saves any remedy by way of right application suit or appeal which is provided by the Act and shall be available in respect of proceedings under the appealed Act pending at the commencement of the Act as if the proceedings had been instituted under the Act.

8. Section 110 then declares certain enactments to cease to apply to charitable and religious institutions. In so far as it is relevant it reads:

'110 Certain enactments to cease to apply to charitable and religious institutions: The enactments mentioned below shall cease to apply to charitable institutions and Hindu religious institutions and the endowments thereof to which this Act applies; and Section 8 of the Andhra Pradesh General Clauses Act, 1891 shall apply upon such cesser as if these enactments had been repealed by an Andhra Pradesh Act:

(a)........ .......... .........

(b)............ .......... .........

(c)......... ......... ..............

(d)......... ........... ..........

(e) Sections 92 and 93 of the Code of Civil Procedure 1908'

9. It was not disputed that the provisions of Section 109 regarding the continuation of the suit referred to in clause (d) of the sub-section (2) are not applicable to the instant case. The argument however was that in as much as Section 110(e) enjoins that Sections 92 and 93. C.P.C. shall cease to apply from 26-1-1966 when the Act came into force, the suit and the only right the plaintiffs can have is to file an application under Section 77 of the Act for the reliefs which they had claimed in the suit. It was argued that otherwise there will be two parallel proceedings one under Section 77 of the Act before the appropriate authority and the other before the Civil Court under Section 92 of the Civil Procedure Code. In support of this contention reliance was placed on the following decisions most of which are unreported.

(a) A.S.No. 36 of 1962 D/- 29-1-1968 (Andh Pra)

(b) A.S.No. 468 of 1966 D/- 14-7-1970 (Andh Pra)

(c) A.S.Nos 201 and 235 of 1967, dated 22-7-1971 (Andh Pra)

(d) A.S.Nos. 773 and 774 of 1968, dated 31-12-1971 (Andh Pra) (since reported in (1972) 2 Andh Pra LJ 152)

(e) A.S.Nos. 114 and 172 of 1969, dated 9-2-1972 (Andh Pra)

10. The answer to the questions raised indisputably depends upon the construction we place on Section 110 of the Act. While it was contended by the appellants that the section is retrospective in its operation and affects also the pending case the contention of the respondents was that the said section is prospective in its character and does not affect the pending cases instituted under the old Act and under Section 92, C.P.C.,

11. It is now fairly settled that the Courts do not favour ordinarily retrospective operation of an enactment. The general rule is that statutes are to operate prospectively. It is founded on judicial premonition that retroactive laws are characterised by want of notice, lack of knowledge of past conditions and that such laws disturb feelings of security in past transactions. The rule of retroactively therefore is the converse of the general principle just now stated. A law therefore will not be construed as retrospective unless the Act clearly by express language or necessary implication indicates that the Legislature intended retroactive application.

12. It is also plain that a retroactive statute cannot interfere with or divest vested rights. And it follows that a right to institute or continue the suit already institutes is a vested right. It cannot therefore be taken away without express language or by necessary intendment indicated in the provision. It is true that in certain cases remedial legislation is considered valid of course provided that vested rights are not thereby disturbed.

13. The general rule in regard to interpretation of statutes is that statutes are prospective and will not be construed to have retrospective operation unless the language employed in the enactment is so clear that it will admit of no other construction. Consequently strict construction to prevent retroactive operation has often been applied in order that the statute would not violate contractual obligations or interfere with vested rights.

14. We have therefore to look at the general scope and purview of the Act and at the remedy sought to be applied and consider what was the former state of the law and what it was that the Legislature contemplated. It is only in the background of such approach that we would be able to decide whether on general principles the Act ought in this particular Section 110 to be held to operate retrospectively, the general rule of law undoubtedly being that except there be a clear indication either from the subject-matter or from the wording of the retrospective construction.

15. Section 110 by the very language it employs indicates futurity and not retroactivity. The enactments mentioned therein 'shall' cease to apply to charitable institutions. Section 8 of the Andhra Pradesh General Clauses Act 'shall apply' upon such cesser. When the section thus indicates in clear language its prospective operation is there anything in clause (e) of that section which would indicate retroactivity. It was conceded by the learned Advocate for the appellants that Section 110 neither expressly nor by necessary implication indicates retrospectivity intended to be given to the Act. In our judgment also neither clause (e) in particular nor Section 110 read as a whole in any manner indicates intention on the part of the legislature to give retrospective effect to the provisions of the Act. On the other hand, there are clear indications in the section pointing to the prospective operation of the Act.

16. The contention however was that the provisions of Chapter III of the Act relating to administration and management of charitable and Hindu religious institutions and endowments point out that by necessary implication the Act is meant to be retrospective. We would therefore briefly taken stock of these provisions.

17. Section 14 enjoins that all properties belonging to a charitable institutions or endowments shall vest in the charitable institution or endowments.

18. Section 15 then makes provision for the appointment of Board of Trustees and their term of office. Every trustee appointed under the said section shall hold office for three years unless he is removed earlier.

19. Section 16 then prescribes certain disqualifications for trusteeship such as insolvency etc.,

20. Section 17 relates to the appointment of a Chairmen of the Board of Trustees. The Section prescribes the term of his office.

21. Section 18 states that on absence from the meetings of the Board of Trustees for a certain number of meetings a member shall cease to be a trustee.

22. Section 19 relates to the vacancy in the office of non-hereditary trustees and filling of such vacancies and Section 20 relates to filling of vacancies in the office of hereditary trustees.

23. Sections 21 and 22 relate to the power and duties of the trustees. Section 23 concerns itself with fixation of dittam. Section 24 relates to the power of trustees over trustee of specific endowments. Section 25 declares that acts of trustees would not be invalid because of informality or vacancy etc. Section 26 pertains to suspension, removal or dismissal of trustee.

24. Section 27 enacts regarding appointment and duties of executive officers and Sections 28 and 29 relate to the appointment of engineering staff and subordinate officers. Section 30 permits constitution of endowment services and Section 31 relates to appointment etc., of office-holders and servants.

25. Section 32 relates to punishment of office-holders and servants in certain cases.

26. Section 33 stipulates power of Commissioner Deputy Commissioner or Assistant Commissioner to punish office-holders. Section 34 prohibits office-holders and servants to keep in their possession jewels etc. Except under conditions.

27. Section 35 then states that in certain cases executive officers need not implement orders or resolutions of the trustee or Board of Trustees.

28. Section 36 then provides for overriding effect of the provisions of Chapter III over the existing corresponding provisions and Section 37, which is the last provision of the Chapter relates to qualifications of and remuneration to Archakas.

29. What does this brief survey of Chapter III indicate On a reading of these provisions as the title of the Chapter itself indicates they all relate to administration and management of Charitable and Hindu Religious Institutions and Endowments. We fail to comprehend how the provisions relating to administration or management can be implication even suggest the intention of the Legislature that Section 110 would be retrospective in character. The learned Advocate appearing for the appellants could not point out as to how these provisions taken cumulatively or each section separately would indicate a contrary intention that Section 8 of the General Clauses Act shall not apply after the 1951 Act is repealed by the 1961 Act.

30. It is true that Section 4 of the General Clauses Act enacts that the provisions of Chapter II, which includes Section 8 shall apply to all Acts of the Andhra Pradesh State after the commencement of the said Act 'unless a contrary intention appears in such Acts' In other words, even if any Act does not expressly state that Section 8 shall apply by force of Section 4 of the General Clauses Act Section 8 shall apply unless the Act expresses a contrary intention. It is true that it is not necessary that in all cases such an intention need expressly appear. It can be expressed even by necessary implication. When Section 110 in spite of Section 4 expressly applies Section 8 of the General Clauses Act. It can only mean that the Legislature expressly intended to apply the provisions of Section 8 and it did not want that their intention should be tried to be found out by implication.

31. Even otherwise as seen from the provisions of Chapter III of the Act we cannot find by necessary implications any intention of the Legislature which can be said to go contrary to what has been expressly stated in Section 110 of the Act that Section 8 of the General Clauses Act shall apply. It seems to us impossible to suppose that the Legislature can have intended under a general chapter relating to the administration lime Chapter III as it were by a side wind to effect a material change in the rights and relative positions of the parties concerned in such a pending action in the Civil Court.

32. The contention specifically however was that Section 36 of the Act impliedly shows such an intention of the Legislature. Let us therefore examine the contention a little more carefully, Section 36 reads as under :

'36. Overriding effect of the provisions of this Chapter over the existing corresponding provisions:-

(1) Notwithstanding any scheme, judgment, decree or order of a court, tribunal or other authority or any custom or usage, governing any charitable or religious institution or endowment, the provisions of this chapter shall, with effect on and from the date of the commencement of this Act prevail in so far as they relate to the matters governed by the corresponding provisions in any such scheme judgment decree or order or any custom or usage and such corresponding provisions shall thereafter have no effect.

(2) (a) Any scheme in force at the commencement of this Act in so far as it relates to matters not governed by the provisions of this Chapter may at any time by order, be modified or cancelled -

(i) Where such scheme was settled or modified by the Commissioner or Deputy Commissioner, by such Commissioner, by such Commissioner or Deputy Commissioner, as the case may be

(ii) Where such scheme was settled or modified by the Court, by such Court on an application made to it by the Commissioner the trustee or any person having interest;

Provided that before passing an order under this clause an opportunity shall be given to the trustee or other person likely to be affected by such order.

'(b) Any person aggrieved by an order under clause (a) may, within thirty days from the date of receipt of the order appeal -

(I) Where it is passed by the Commissioner or Deputy Commissioner to the Court:

(ii) Where it is passed by the Court, to the High Court'.

33. On a careful and close reading of this section it would be patently clear that sub-section (I) declares that notwithstanding any scheme judgment, decree or order of a Court, Tribunal or other authority or any custom or usage governing endowment the provisions in any such scheme judgement etc. On and from the date of the Act. It further declares that the corresponding provisions of the repealed act thereafter shall have no effect. What follows is that the schemes, judgments etc. Existing on the date of the Act stood modified and were brought statutorily in accord with the provisions of Chapter III of the Act. For example, if the scheme or judgment etc., had laid down term of office of the office of the trustees or the Chairman which term was less or more than what is now prescribed in Chapter III the said term shall stand modified and be in accordance with the relevant provisions of Chapter III.

The real purpose of Section 36 (1) is therefore two - fold. Firstly, it brings all the schemes, judgments, orders etc. In accordance with the provisions of Chapter III after declaring that whatever may be the corresponding provisions of the repealed Act the provisions of Chapter III shall prevail over them. After this purpose is thus achieved by force of Section 36 (1), secondly it declares that thereafter the corresponding provisions of the repealed Act shall have no effect. Thus the overriding effect given to certain provisions of the Act over corresponding provisions of the repealed Act expressly has a specific purpose, after serving which the corresponding provisions of the repealed Act ceases to be operative. We fail to understand how because of this provision, it can validly be contended, that hereafter the Civil Court in pending cases shall not be entitled to frame any scheme or give any judgment. Since the provisions of the repealed Act cease to be operative on commencement of the Act, the Civil Court will frame schemes or give judgments in accord with the provisions of Chapter III of the Act.

Why should it be presumed that nay scheme prepared by the Civil Court or any judgment given in pending case would be ineffective. We can find no justification, whatsoever to take that view from the provisions of Section 36 (1) . There are no words in that Section which would produce that result. That Section does not preclude the Civil Court from framing any scheme even in accordance with Chapter III of the Act. Nor does it take away the right of the plaintiffs to continue the suits which were validly laid on the dates when they were instituted; in fact this provision has very little to do either with any disturbance with any accrued or vested rights of the plaintiffs to continue the suits or with barring the Civil Court from continuing to hear such suits.

34. We then come to sub-section (2) of Section 36. That Sub-section relates to schemes in force at the commencement of the Act which are not governed by Chapter III of the Act. It is provided that such schemes may be modified or cancelled by an order of the Commissioner or Deputy Commissioner where they were framed by them and where such schemes were settled or modified by the Court by an order of such Court on an application made to it by the Commissioner the trustee or any interested person. What is manifest from that sub-section is that at least in cases of schemes framed or modified by the Court and which were in force at the commencement of the Act, the jurisdiction of the Civil Court is expressly saved to modify or cancel such schemes. In the presence, of this provision it would be erroneous to contend that after the commencement of the Act the Civil Court's jurisdiction is taken away by this provision of the Act.

35. It thus becomes plain that while sub-section (1) provides for the schemes which are governed by the provisions of the Chapter III of the Act the schemes referred to in sub-section (2) are those which are not so governed by Chapter III. In either case however the scheme must be in force on the date of the commencement of the Act. The section does not apply to any scheme or judgment framed or passed after the Act. This feature of the Section makes it impossible for anyone to contend that under this Section either expressly or by necessary implication any scheme frames or judgement given by a Civil Court in any pending case shall be in effective. The Section in no manner affects the vested right of the litigant to continue his suit nor does it curtail in any manner the jurisdiction of the Civil Court to continue or dispose of such suits in accordance with law.

36. The next contention was that such a contrary intention can be deducted at least from Section 77 of the Act. Section 77 relates to the power of Deputy Commissioner to decide certain disputes and matters. Such disputes include disputes mentioned in that Section. After the enactment it is true that the Deputy Commissioner would be empowered to decide such disputes. We however fail to see how because of this provision the vested right of the plaintiffs to continue their suit or the jurisdiction of the Civil Court to conclude the trial is in any manner affected. The apprehension that there will be two parallel proceedings resulting in conflicting decisions is in our opinion not well founded.

The causes of action on which the suits were instituted and were pending on the commencement of the Act have been merged in the suits. There is therefore no possibility of taking any action under the Act before the prescribed authorities on the same causes of action. Even otherwise since the jurisdiction of the Civil Court is not taken away in pending case the schemes and judgments of the Civil Court is not taken away in pending cases the schemes and judgments of the Civil Court shall prevail over any order made in a parallel proceedings on the same causes of action passed by any prescribed authority under the Act. It must be remembered that there are other provisions to prevent passing of conflicting judgments and orders. The Civil Courts are not helpless in such matters. In any case we are not satisfied that Section 77 of the Act in any manner expressly or impliedly indicates any contrary intention that Section 110 shall be so retrospective as to affect the pending cases before the Civil Court.

37. Let us then examine the decisions on which reliance was placed by the appellants.

38. A.S.No. 36 of 1962 D/- 29-1-1968 (Andh Pra) merely surveys the provisions 'From an examination of these provisions it is abundantly clear that the jurisdiction for appointing trustees to form the Board of Trustees for the management of the institutions or endowment exists notwithstanding the existence of the scheme. Therefore the order made by the learned Judge in O.P.No. 14/56 must give place to the provisions of the Act. We cannot therefore make any suggestions for the appointment of the trustees. We are informed that the authorities concerned have already appointed under the Act Board of Trustees for these institutions and it has been given effect to. It is therefore clear that any order to be made which conflicts with the provisions of the Act would not prevail over the provisions of the Act. Therefore we hold that the appeal is infructuous and it must be dismissed'.

39. It will immediately be plain that the appeal mainly was dismissed because it was found to have become infructuous. It is difficult to say from the judgment that it is an authority for the proposition that the pending suits automatically become infructuous on the commencement of the Act. No question, of giving place to the provisions of the Act can arise because in a pending case the Court can made an order. No argument was advanced regarding retrospectivity of Section 110.

40. Next case we were called on to consider was .A.S. Nos 201 and 235 of 1967 dated 22-7-1971 (Andh Pra) The circumstances of that case are said to be similar with those of the instant case.

41. The learned Judges reviewed the provisions of Chapter III of the Act and then observed: 'It has now to be seen whether Section 110 is applicable by reason of the fact that notwithstanding that Sections 92 and 93 of the Code of Civil Procedure ceased to apply to a charitable and religious institutions. The proceedings instituted under Sections 92 and 93 Civil P.C. are saved by virtue of Section 8 of the General Clauses Act to which specific reference is made in the Section'.

42. The learned Judges then referred to Section 4 of the General Clauses Act and said that Section 8 would apply only when contrary intention does not appear from the Act.

43. 'The following observation is pertinent'

'The question involved is not so much as to whether the Court was competent to render the decision on the action brought by the Collector under Section 92 but the effect or force of such a decision after the commencement of the Act'.

44. This observation clearly indicates that the learned Judges did not consider the problem in reference to the jurisdiction of the Civil Court in a pending suit under Sections 92 and 93. Civil P.C. They were concerned more with the effect of a decision of a Civil Court the effect of a decision of a Civil Court after the commencement of the Act. The Court noted that under the repealing Act no suit under Section 92 can be instituted with the consent of the Advocate General. The only suit which is permissible is under Section 68 only. Noticing then the provisions of S.77 of the Act, the learned Judges held:

'The provisions of Section 77 of the new Act will make it absolutely clear that the jurisdiction of a Civil Court is taken away in matters not covered by these provisions. It is thus manifest that the power which was hitherto vested in the Court as provided for in Section 62 (3) of the 1951 Act, is now to be exercised by the hierarchy of the officers of the departments named under the new Act............... The fact that the Civil Court had jurisdiction to entertain the suit since it was laid prior to the commencement of the Act, mades absolutely no difference, regarding the effectiveness of any decree passed or scheme framed subsequent to the passing of the new Act'.

45 The learned Judges then adverted to Section 36 (2) and observed that 'Section 36 injuncts that the provisions of Chapter III shall prevail and any scheme framed or any decree passed by a Court shall have no effect on an the Act. The decree of the Court below (which was passed on 22-7-1967 after the new Act) therefore, has been rendered ineffectual by virtue of Section 36 of the new Act'.

46. It will be manifest that the judgment does not provide directly any answer as to whether the provisions of Chapter III indicate a contrary intention, that is to say Section 110 shall operate retrospectively so as to affect pending cases. What it held is that although Civil Court may have jurisdiction to continue the suit the decree of Civil Court in such a case however would be ineffective because of Sections 77 and 36 (2) of the Act. We have considered these two provisions in detail and held that they do not in any manner indicate any contrary intention to what is expressly indicated in Section 110 of the Act. Without repeating what we have said earlier we are bound to say that the learned Judges' attention was not drawn to the principle that the plaintiffs' vested right to continue the suit validly instituted is not taken away even impliedly by these provisions. No attention was also drawn to the fact that the jurisdiction of a Civil Court to conclude the hearing of a suit pending before it cannot be taken away except by a clear language to that effect.

It has not been held by the learned Judges that Section 110 is retrospective and affects even the pending cases validly instituted. Once the existence of jurisdiction was conceded as appears from the observation extracted above, we fail to see how that would be ousted without any express language. We have already noticed that the assumption that any scheme framed or decree passed by a Civil Court after the Act would be ineffective is not warranted by the provisions of Section 77 or Section 36 (2) of the Act. The law applicable on the date when the suit was instituted is subject to the modifications made during the pendency of the suit and which law is applicable can be kept in view while framing the scheme or passing the decree. It will be in accordance with law which is enforceable on the date of the judgement and it would not be proper to presume that the Civil Court would frame a scheme or pass a decree which would be inconsistent with such law. Even otherwise such conflict. If any found in the scheme or decree can always be set right in appeal or by adopting such remedies. If any, as are available under the Act. Merely because any such apprehension of conflict or inconsistency were are not inclined to hold that the Civil Court's jurisdiction to hold that the Civil Court's jurisdiction in a pending case is taken away or the vested right of the plaintiff to continue the suit is destroyed.

47. The next case to be considered is .A.S.No. 773 and 774 of 1968 dated 31-12-1971 (Andh Pra) The learned Judges in that case after observing that a contrary intention referred to in Section 4 of the General Clauses Act from the provisions of the repealing Act observed that under Section 14 of the Act the property vests in the charitable institution. Therefore in spite of the pendency of the suit it will so vest and consequently they held that there cannot be two parallel institutions administering the trust. Then referring to Section 36 of the Act it is said that 'fresh schemes cannot be framed independent of the Act. Even though there was a suit pending as the plaintiffs have no vested rights which will be affected as what is now being agitated in the Court can be agitated before the authorities under the Act' the Court therefore said that 'the suits cannot be continued in the Court as they have become not maintainable'.

48. With due respect to the learned Judges we are unable to agree with the view that the plaintiffs had no vested right which can be said to have been affected. To continue a suit validly instituted is a vested right which just has been extinguished because of the dismissal of the suit. Section 36 in our opinion is not intended to produce that result.

49. The other two decisions relied upon by the Counsel for the appellants merely follow the earlier decisions. They need not therefore be considered separately.

50. Section 92 Civil P.C. is intended to confer power upon Civil Courts in matters relating to the administration of public charities, charitable or religious. That section is intended or provide proceedings of special nature for the purpose of determining questions that relate to the administration of public, religious or charitable trust s and to prevent multifarious and vexatious suits being filed by irresponsible persons against trustees whose duty is to administer such trust.

51. It is pertinent to note that it is not Section 110 of the Act for the first time enacts that Section 92 and 93, Civil P.C. shall cease to apply to charitable endowments to which the Act applies. Section 73 of the Madras Hindu Religious and Charitable Endowments Act, 1926 had provided that Section 92 ' shall have no application to any suit claiming any relief in regard to the administration or management of a Hindu Religious Institution and that no suit in respect of such administration of management shall be instituted except as provided by that Act'. The effect of Section 73 was that a suit relating to the religious endowments governed by the Act could be instituted by the religious endowment Board or by some persons having interest and with the permission of the Board.

52. The 1926 Act was repealed by the Madras Hindu Religious and Charitable Endowments Act, 19 of 1951. Section 5 (3) (e) of the repealing Act said that 'Sections 92 and 93 shall cease to apply to Hindu Religious institutions and endowments' Section 62 of the repealing Act provided for suits in Civil Courts in situations mentioned in that Section.

53. Act 19 of 1951 has now been repealed by Act 17 of 1966. Section 110 enjoins that Sections 92 and 93. Civil P.C. 'shall cease to apply to charitable institution and Hindu religious institutions and the endowments thereof to which this Act applies' Nevertheless the Act in some provisions permits the institution of suits in certain cases. For example, Section 78 expressly says that any person aggrieved by a decision under Section 77 may institute a suit in the District Court, Section 109 (20 (d) also saves the right of suit in certain cases.

54. In spite of the provisions on the lines of Section 110 being thus repeated in one form or the other, the general principle of law has always been that since the successive enactments provided prospectively these provisions were not considered retrospectively in their operation as we will see presently.

55. Section 92 Civil P.C. deals both with substantive rights as well as procedural rights. The Section therefore can operate retrospectively in respect of the procedural rights but in so far as it affects the right of suit it will not have retrospective effect. When that is the position of Section 92, Civil P.C. the suits laid under that Act under the substantive right have to be continued in exercise of the same substantive right. The principle is that express and unambiguous language is absolutely necessary and is indispensable in a statute if the intention is to take away the substantive right of continuing the suit. Likewise a Civil Court which assumes validly jurisdiction to try a suit will not deprived of its jurisdiction unless the language of the statute is very clear.

56. It is now firmly settled that a retrospective operation is not to be given to a statute so as to impair an existing right otherwise than as regards matters of procedure unless that effect cannot be avoided without doing violence to the language of the enactment. If the enactment is expressed in language which is fairly capable of either interpretation, it ought to be construed as prospective only. And it is equally plain that a right to sue on the case of action accrued is as much a vested right as to continue the validly instituted suit in a Civil Court. It is we consider, a fundamental rule from which we would not like to sanction any departure. It is a principle not by any means to be whittled down.

57. In Venugopala v. Krishnaswami, AIR 1943 FC 24 it was held:

'A right to continue a duly instituted suit is in the nature of a vested right and it cannot be taken away except by a clear indication of intention to that effect'.

58. As stated earlier the successive Acts repealed the previous Hindu Religious and Charitable Endowments Act. The corresponding provisions have never affected the vested rights or taken away the jurisdiction of the Civil Court in pending cases though the scope of such provisions was different. The following decisions bear out clearly the conclusions to which we have reached.

59. In Chengavya v,. Kotavya, AIR 1933 Mad 57 it is seen that under Act 1 of 1925 an aggrieved party could apply to a Court for setting aside or modifying a scheme. Pending that application Act II of 1927 was passed under which schemes of administration settled by Courts were deemed to be schemes settled under the Act and could be modified or cancelled by a suit and not otherwise. It was held that there was nothing in Section 57 (4) which was inconsistent with the continuing of applications presented already and what the Section contemplated was that all proceedings for modification or cancellation must be taken by way of suit. The rule relating to retrospectivity as stated by us above was applied.

60. In Ganapathy Raja v. Commissioner for H.R. & C.E. : AIR1955Mad378 the question involved was whether the District Court or the sub-court has jurisdiction to hear and dispose of suits or applications commenced under Madras Act II of 1927 and pending before it after the passing of the Madras Hindu Religious and Charitable Endowments Act, 1951. It was held:

'A party has a vested right to have a suit tried in a forum in which it was commenced. Such a right is a substantive one and is not in the realm or procedural law. There is no difference in principle between the case of an appeal and that of a suit. A statute should not therefore be so construed as to take away an action which has been well commenced. It is equally well recognised that it is open to the Legislature to defeat such vested right. But it is also beyond controversy that a very strong and distinctive language should be used to have that effect, that it either there should be express enactment depriving a suit or of that right or it must be by necessary intendment'.

61. In S.P.T. Swamuluvaru v. H.R. & C.E. : AIR1971AP211 , a Bench of this Court was concerned with the question whether right of appeal accrued to the petitioner under Section 61 (1) of Act 19 of 1951 is destroyed by the repealing Act 17 of 1966 or is saved and preserved by sub-section (3) of Section 109 of that Act read with Section 8 of the General Clauses Act. The learned Judges answered that question in the affirmative and held that such a right has been preserved. The appeal preferred under Section 61 against the decision of the Deputy Commissioner in a proceeding under Section 57(a) and which was pending on the commencement of the repealing Act cannot be rejected by the Commissioner on the ground that he had no jurisdiction after the repeal.

62. When this decision was cited before the learned Judges in A.S. Nos. 201 and 235 of 1967, D/- 22-7-1971 (Andh Pra) they sought to distinguish it by saying that the said decision was given under Section 109 with which they were unconcerned. Moreover Section 109 dealt with proceedings pending before Government any officer, or authority under the repealed Act and that it had no application to a pending suit in a Court. With due respect we are unable to share this view. Apart from the fact that Section 109 (2) (d) also provides for suits in Civil Courts, the principle underlying Section 109 as well as Section 110 is the same as was pointed out very correctly in Ganapathy Raja v. Commissioner for H.R. & C.R., : AIR1955Mad378 a passage from which has been extracted above.

63. In Garikapati v. Subbaiah Chowdhary, : [1957]1SCR488 it was held that the legal pursuit of a remedy, suit appeal and second appeal are really but steps in a series of proceedings all connected by an intrinsic unity and are to be regarded as one legal proceeding. The right of appeal it was further held, is not a mere matter of procedure but is a substantive right.

64. We are therefore satisfied that Section 110 of the Act neither expressly nor by necessary implications is retrospective in operation and consequently the pending suits in Civil Courts instituted validly under the repealed Act 19 of 1951 and the substantive right of the plaintiffs to continue these suits in the same Court have not at all been affected by Sections 92 and 93 Civil P.C. shall cease to apply to charitable and religious institutions. Provisions of Chapter III or Section 36 of that Chapter show no indication of any intention of the Legislature that Section 110 would affect pending suits. In our judgment neither Section 36 nor Section 77 of the Act makes any scheme or decree passed after the commencement of the Act ineffective. The learned single Judge therefor, in our view had jurisdiction to hear the appeal and pass a decree which he did.

65. Two questions were raised on the merits of the case which have been referred to us.

66. The first contention was that the inam question was granted to an individual although it was burdened with service. It was, however, a common ground that in an enquiry under Section 3 of the Inams Abolition Act the Inam Thahsildar has already held that the inam in question is held by an institution viz., the tank. An appeal against that decision, however, is pending before the Revenue Divisional Officer. Without therefore deciding as to whether the inam in question was granted to an institution or to an individual, we were requested to keep this matter open as the appeal is still pending. We thought it desirable in the circumstances of the case to keep this question open and as a result we do not express any opinion on the allied question also i.e., whether Civil Court's decision shall prevail on the decision of an inam authority under Section 3 of the Inams Abolition Act.

67. It was not doubted that even after the said question is kept open the Civil Court would have a jurisdiction to frame a scheme or pass a decree in a suit under Section 92 of the Code of Civil Procedure as is done by the learned single Judge. It was conceded that in either case such a scheme can be framed or a decree passed.

68. Both the Courts have held that the trustees i.e., the defendants have persistently neglected their duty to maintain the tank in good repair. In fairness we must state that the counsel for the appellants could not seriously attack this concurrent finding. A case therefore for framing the scheme or passing the decree was successfully made out by the plaintiffs. The direction given by the learned Judge that the Endowment Department should be entrusted with the management of the tank could not be assailed as unreasonable. Objection, however, was taken to the observation of the learned Judge that no villager should be appointed as a trustee. Although the observation made does not necessarily have that effect as the management has been entrusted to the Department, even then we think that the said observation is likely to be misunderstood and to create some difficulties in administering the tank. It is plain that even the department would not be able to manage the tank without the assistance in some form or the other of the villagers, the management remaining with the Department. We would therefore delete the following words appearing at the fag end of the judgment :

' Instead of appointing persons in the village as trustees '.

69. Subject to the abovesaid modification both the appeals will have to be accordingly dismissed. They are dismissed. We leave the parties to bear their own costs throughout.

70. Appeals dismissed.


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