Full Judgment Text
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CASE NO.:
Appeal (civil) 1560 of 1997
PETITIONER:
TEKI VENKATA RATNAM & ORS.
Vs.
RESPONDENT:
DY. COMMISSIONER, ENDOWMENT AND ORS.
DATE OF JUDGMENT: 07/08/2001
BENCH:
S. Rajendra Babu & Shivaraj V. Patil
JUDGMENT:
Shivaraj V. Patil, J.
In this appeal, in the light of the contentions raised and
submissions made, the following question arises for consideration
and decision
Whether the Deputy Commissioner of Endowments
has power to enquire and decide any dispute
whether a temple is a public temple or a
private one under Section 87 of Andhra Pradesh
Charitable and Hindu Religious Institutions &
Endowments Act, 1987?
In brief, the facts leading to the filing of this appeal
are: It appears, a notice was issued by the Inspector of
Endowments on 8.10.1975 to the Executive Officer of Shri
Panduranga Vitthal Swami temple, Chilakalapudi to register the
said temple under Sections 38 & 39 of the Andhra Pradesh
Charitable and Hindu Religious Institutions and Endowments Act,
1966 (for short ‘the 1966 Act). Challenging the same, W.P. No.
5480 of 1976 was filed. The said writ petition was disposed of
on 24.11.1976 placing on record the submission of the learned
counsel for the petitioner that the petitioner had been advised
to raise a dispute before the Deputy Commissioner under Section
77 of the 1966 Act to contend that the temple did not fall within
the purview of the said Act, being a private one. However, later
the petitioner filed a writ appeal against the order made in the
aforementioned writ petition. The writ appeal was dismissed,
noticing the statement made by the learned counsel in the writ
petition as stated above but granted six weeks time to the
petitioner to take steps as advised. The petitioner did not file
application under Section 77 of the 1966 Act. While the matter
stood thus, the Assistant Commissioner, by his order dated
14.11.1977 appointed the Inspector of Endowments, Machhlipatnam
as the Chief Festival Officer for Kartika Shudha Ekadashi from
20.11.1977 to 26.11.1977. In the R.P. No. 168 of 1977, the Joint
Commissioner of Endowments, Hyderabad, set aside the said order
on the ground that the order by the District Court, Krishna, in
O.P. No. 1 of 1940 declaring the temple as private temple, was in
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force and as such Assistant Commissioner could not have passed
the order appointing Inspector of Endowments as the Festival
Officer, while reserving liberty to the parties to move the
Deputy Commissioner under Section 77 of the 1966 Act for
declaration that the temple is a public in view of the changed
circumstances. Thereafter, a notice was issued in O.A. No. 1 of
1987 under Section 87 (wrongly quoting as under Section 77 of the
1966 Act) of the Andhra Pradesh Charitable and Hindu Religious
Institutions and Endowments Act, 1987 (for short ‘the 1987 Act)
to decide whether the said temple was a public temple or not.
The appellants and some others challenged the very jurisdiction
of the Deputy Commissioner to decide such a question. However,
the Deputy Commissioner by his order dated 20.07.1987 held that
he had jurisdiction to do so under Section 87 of the 1987 Act.
Assailing the said order, writ petition No. 10824 of 1987 was
filed. Before a learned Single Judge, it was urged that under
Section 77 of the 1966 Act there was no power to enquire and
decide whether a temple was a public temple or a private one and
that as on the date of the issue of the impugned notice, 1966 Act
had been repealed. Repelling the said submission, the respondent
pointed out that since the 1987 Act had come into force by then,
under Section 87 of the said Act, the Deputy Commissioner was
competent to hold enquiry and decide the question. The learned
Single Judge, accepting the submission made by the respondent,
dismissed the writ petition holding that the Deputy Commissioner
had jurisdiction to decide as to whether the temple was a public
temple or a private one. The appellants filed Writ Appeal No. 89
of 1994 questioning the validity and correctness of the said
order. The Division Bench of the High court, after noticing in
sufficient detail succinctly stated about the previous litigation
of more than two decades and after considering the respective
contentions, elaborately referring to the provisions of the 1966
Act and 1987 Act giving the historical background, by detailed
order dismissed the appeal. Hence this appeal.
Before us, the learned counsel for the appellants
reiterated the very same submissions, which appear to have been
made before the High Court. The emphasis of his argument was on
the point that the Deputy Commissioner has no jurisdiction to
determine the question whether a temple is a public temple or a
private one. According to him, the Deputy Commissioner has power
and jurisdiction only as to the questions enumerated in clauses
(a) to (g) of sub-section 1 of Section 87. He further submitted
that as per Section 1(3) of the Act it does not apply to a
private temple; when the Act itself does not apply to a private
temple, the Deputy Commissioner could neither enquire into nor
decide whether the temple in question is a private temple or not.
He made one more subsidiary submission that in the light of the
decree passed by the District Court as early as in 1940, it was
not open to the Deputy Commissioner to invalidate or override it
and pass order under Section 87; according to him, the said
decree passed by the Deputy Commissioner operated as res
judicata.
The learned counsel for the contesting respondent made
submissions supporting the impugned judgment and order. In
addition, he drew our attention to Section 160 of the 1987 Act to
state that it has over-riding effect notwithstanding the decree
passed by District Court in O.P. No. 1 of 1940.
We have carefully examined the respective submissions.
At the outset, it must be stated that it appears the Deputy
Commissioner issued notice on 6.6.1987 under Section 77 of the
1966 Act by oversight as by then that Act had been repealed by
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the present Act of 1987 and which had come into force on
28.5.1987. As rightly noticed by the Division Bench of the High
Court, the said notice should be construed as one issued under
Section 87 of the 1987 Act; mere wrong quoting of a statutory
provision did not prejudice the case of the appellants. In this
Court also, no argument was made on behalf of the appellants in
this regard and appropriately so in our opinion. In order to
appreciate the arguments of the learned counsel for the parties,
some of the relevant provisions of the 1987 Act are to be
noticed. It is evident from the Preamble of the Act that it is
to consolidate and amend the law relating to the administration
and governance of charitable and Hindu religious institutions and
endowments in the State of Andhra Pradesh. Section 1(3) of the
Act makes the Act applicable to all public charitable
institutions and endowments, whether registered or not, other
than wakfs and it also applies to all Hindu public religious
institutions and endowments whether registered or not in
accordance with the provisions of the Act. Section 2(23) of the
Act defines ‘religious institutions means a math, temple or
specific endowment and includes a Brindavan, samadhi or any other
instituition established or maintained for a religious purpose.
Under section 2(27) of the Act temple is defined: -
2(27) ‘Temple means 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 a right by the Hindu
community or any section thereof, as a place of
public religious worship and includes sub-
shrines, utsavas mandapas, tanks and other
necessary appurtenant structures and land;
Explanation I:- a place of worship where
the public or a section thereto have
unrestricted access or declared as a private
place of worship by court or other authority
but notwithstanding any such declaration,
public or a section thereof has unrestricted
access to such place and includes a temple
which is maintained within the residential
premises, if offerings or gifts are received by
the person managing the temple from the public
or a section thereof at the time of worship or
other religious function shall be deemed to be
a temple.
Section 87 of the Act in Chapter XII relating to
enquiries, to the extent it is relevant for the present purpose
reads :-
87. Power of Deputy Commissioner to
decide certain disputes and matters:- (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) ...........
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(d) ...........
(e) ...........
(f) ...........
(g) ...........
(2) ............
(3) ............
(4) ............
(5) Any decision or order of the Deputy
Commissioner deciding whether an
instituition 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.
Section 160 states as follows: -
160. Overriding effect of the Act: - (1)
Notwithstanding any compromise, agreement,
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 of Tirumala Tirupathi
Devasthanams, the provisions of this Act 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
compromise, agreement, scheme, judgment, decree
or order or any custom or usage and such
corresponding provision shall thereafter have
no effect.
(2) ........................
Section 1(3)(b), Section 2(23), Sections 43 & 44 of the
1987 Act correspond to Sections 1(3)(b), 2(22), 38 & 39 of the
1966 Act respectively. Section 87 of 1987 Act corresponds to
Section 77 of the 1966 Act. Sub-section (5) & (6) already
extracted above are added to Section 87 of the Act. Under
Section 87(1) of the Act, the Deputy Commissioner having
jurisdiction shall have the power to enquire into and decide
after giving notice to the person concerned, any dispute as to
the question (a) whether an institution or endowment is a
charitable institution or endowment; and (b) whether an
institution or endowment is a religious institution or endowment;
besides other disputes covered by clauses (c) to (g). It is
clear from the Preamble and provisions of the 1987 Act that it
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applies inter alia to all Hindu religious institutions or
endowments including public temples. When a dispute arises as to
whether an instituition is a religious institution or put it
straight for the present purpose, whether a temple is a public or
a private temple, under Section 87 looking to the definitions
contained in Sections 2(22) and 2(27) as to religious institution
and temple the Deputy Commissioner has power and jurisdiction to
enquire into and decide such a dispute. If the argument of the
learned counsel for the appellants that the Act does not apply to
private temples is to be accepted, then it is enough for any
person or body to claim a temple as a private one so as to take
away the power and jurisdiction otherwise conferred on the Deputy
Commissioner under Section 87 of the 1987 Act. A merely self
serving design of a party to claim a temple as private one cannot
defeat a specific statutory provision conferring power on a
authority to decide a question. It is a different matter, if
there is no dispute that a particular temple is a private temple;
in that case perhaps the argument could be accepted. When there
arises a dispute as to whether a temple is a public temple or
not, basically it becomes necessary to decide that question. If
Section 87 is read carefully in its entirety, it will be clear
that the Deputy Commissioner exercises quasi-judicial power while
holding enquiry and deciding a dispute under Section 87(1).
Under sub-section (3), every decision or the order of the Deputy
Commissioner on confirmation by the Commissioner shall be
published in the prescribed manner. Under sub-section 4, the
Deputy Commissioner, while recording his decision under sub-
section (1) pending implementation of such decision, can pass
appropriate interim order safeguarding the interests of the
institution or endowment. It is also made clear under sub-
section (5) that 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.
Sub-section (6) raises a presumption in respect of the matters
covered by clauses (a) to (e) of sub-section (1) that the
institution or the endowment is public one and that burden of
proof in all such cases shall lie on the person claiming the
institution or the endowment to be private. Thus, it is amply
clear that the Deputy Commissioner has jurisdiction to enquire
into and decide the dispute covered by clauses (a) to (g) of sub-
section (1). Sub-section (6) has sufficient indication that in
such an enquiry, there will be presumption that the institution
or endowment is public one and burden lies on the person claiming
institution or endowment to be private. Thus, when there is a
dispute as to whether a temple is a public or private one, the
same falls within the purview of Section 87 for the purpose of
enquiry and decision. It may also be recalled that as early as
on 24.11.1976 in Writ Petition No. 5480 of 1976 a submission was
made on behalf of the appellants that an application would be
made under Section 77 of the 1966 Act before the Deputy
Commissioner to decide as to the character and status of the
temple as public or private. We have no good reason or valid
ground to take a view other than the one taken by the Division
Bench of the High Court in this regard. Thus, having due regard
to all aspects, we are of the view that the Deputy Commissioner
has power and jurisdiction to decide whether the temple in
question is a public temple or private one.
The second submission based on the decision of the District
Court made in O.P. No. 1 of 1940 declaring the temple as
private, as rightly held by the High Court, has no merit or
force. It must be remembered that a private temple in course of
time depending on various factors and developments may gradually
acquire the nature of a public temple. The Division Bench of the
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High Court in this regard relied on the decision of this Court in
G.S. Mahalaxmiu vs. Shah Rancchhoodas. Para 15 of the said
judgment reads: -
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...............
As per the decree passed by the District Court in O.P. No.
1 of 1940, the temple in question was declared as private on
24.10.1941 and a dispute has arisen whether it continued to be a
private temple or it has become a public temple. Notice was
issued by the Deputy Commissioner under Section 87 of the 1987
Act. It cannot be said that no enquiry can be held and decision
taken as to the character of the temple. Further, as per Section
160, the Act has overriding effect. Notwithstanding inter alia a
decree of a court, the provisions of the 1987 Act will prevail.
Thus viewed from any angle, this appeal, in our opinion, is
devoid of any merit. Hence it is dismissed. No order as to
costs.
......................J.
[ S.RAJENDRA BABU ]
......................J.
[ SHIVARAJ V. PATIL ]
AUGUST 7, 2001