Sridhara Rao. Vs. Government of Andhra Pradesh & Ors  INSC 344 (29 February 1996)
S.B. (J) Majmudar S.B. (J) Bharucha S.P. (J) S.B. Majmudar, J:
1996 AIR 1334 JT 1996 (3) 430 1996 SCALE (2)705
two appeals by special leave have been moved by the common appellant against
the judgment and order of the Division Bench of the Andhra Pradesh High Court
by which the Division Bench dismissed one writ appeal and another writ petition
moved by the appellant before the High Court. The Government of Andhra Pradesh;
the Commissioner of Hindu Religious and Charitable Endowments, Hyderabad; the Deputy Commissioner of
Endowments, Guntur and the Assistant Commissioner of
Endowments, Ongole, Prakasam District, are the common respondents in these
appeals. A few relevant facts are required to be noted to highlight the
grievance of the appellant.
appellant filed Writ Petition No.531 of 1980 before the Andhra Pradesh High
Court being aggrieved by Memorandum dated 30.12.1978 issued by Respondent No.
1, Government of Andhra Pradesh, represented by its Secretary, Revenue
(Endowments) Department by which the order dated 30.05.1978 passed by
Respondent No.2, Commissioner of Hindu Religious and Charitable Endowments, was
confirmed. That writ petition came to be dismissed by the learned Single Judge.
The appellant carried the matter in appeal which was dismissed by the impugned
judgment. The facts leading to the said petition are that a saintly person
named Tummala Venugopala Swamy came to the village of the appellant and
expressed his desire to engage himself in peaceful meditation. The appellant
gave him a site and constructed an Ashram in the land belonging to him being
Survey No.201 of Mogilicherla Village. The Ashram was constructed out of the
donation received from one B. China Meera Setty. On 06.05.1976, Venugopala Swamy
passed away. A Samadhi was constructed in the place of Ashram which became a
centre for pilgrimage.
Ashram was known as Sri Dattatreya Swamy Mandiram. A total area of three acres
of land was dedicated for the said purpose by the appellant.
No.2 passed an order dated 30.05.1978 appointing an Executive Officer for this Mandiram.
The appellant being aggrieved by the said order preferred a revision before the
Government which was dismissed. The appellant then filed Writ Petition No.531
of 1980 before the Andhra Pradesh High Court. As noted earlier, the learned
Single Judge dismissed the writ petition. Thereafter, the appellant filed a
writ appeal before the Division Bench of the High Court. In the meantime, an
order was passed in 1987 precisely on 29.06.1987 by Respondent No.4, the
Assistant Commissioner of Endowments, Ongole, after the dismissal of the writ
petition by the learned Single Judge. By the said order of 29.06.1987 which was
a consequential order flowing from the earlier order of 30.05.1978 the
Executive Officer of the temple was invited to immediately take over charge of
the temple from the appellant de facto managing trustee. The appellant,
therefore, challenged the said order by filing the writ petition being Writ
Petition No.10016 of 1987. That was clubbed with the pending aforesaid writ
appeal. Both the writ petition and the writ appeal were dismissed by the
Division Bench of the High Court by its impugned judgment.
Division Bench of the High Court in the impugned judgment took the view that
the earlier order of 1978 continued to operate despite the repeal of the Andhra
Pradesh Charitable and Hindu Religious Institutions and Endowments Act, 1966
(in short `1966 Act') by the latter 1987 Act bearing the very same caption. The
High Court did not consider the main grievance of the appellant against the
order of 1978, namely, that it was passed without there being any basis for
passing such an order. The Division Bench of the High Court, as noted above,
dismissed both the writ appeal and the writ petition.
counsel for the appellant vehemently contended that leaving aside the question
whether the earlier order of 1978 survived after the enactment of 1987 Act
replacing the earlier Act, even for passing such order of 1978 there was no
material with the respondent-authorities and the order was passed without
application of mind and was null and void. It appears that this argument was not
canvassed before the High Court firstly at the stage of writ petition before
the learned Single Judge nor in writ appeal. However, as this question goes to
the root of the matter, we heard learned counsel for both the sides on this
question. The impugned order at page 23 of the paper-book is dated 30.05.1978.
It was passed with reference to a memorandum dated 14.04.1978 issued by the
Assistant Commissioner, Endowments Department, Ongole. The impugned order was
passed in the light of the aforesaid Memorandum dated 14.04.1978.
relevant recitals therein read as under :- "In the circumstances reported
by the Assistant Commissioner, Endowments Department, Ongole, and in the
interests of public service and for the better management of the Institution,
the Executive Officer of Temples, Malakonda, is appointed as Manager in
additional charge to Sri Dattatraya Mandiram, Mongilicherla (Village), Kandukur
Tq., Prakasam District.
Manager appointed is directed to take over complete charge of records,
accounts, moveable and immoveable properties etc., from the executive
authorities of the Subject Institution." A mere look at these recitals
shows that only on the basis of Memorandum dated 14.04.1978 passed by the
Assistant Commissioner, endowments Department, Ongole, the said order was
passed. We wanted to know from the learned counsel for the respondents whether
there was anything on record to show that at the relevant time the temple was
mismanaged or there was any reason for invoking the power under the 1966 Act for
passing the impugned order. We also wanted to know whether the Memorandum dated
14.04.1978 issued from the Assistant Commissioner's Office was on record. He
fairly stated that there was no such evidence on record. In this view of the
matter, the conclusion is inevitable that the impugned order was passed without
application of mind there being no factual basis for invoking the jurisdiction
of the competent authority under Section 27 of the 1966 Act under which the
impugned order came to be passed on 30.05.1978. It is true that at the relevant
time the annual income of the temple was not less than Rs.10,000/- and did not
exceed Rs.2 lakhs.
also true that as per sub-section 2(a) of Section 27 of 1966 Act, it was
provided that in case of any charitable or religious institution or endowment,
whose annual income was not less than Rs.10,000/- but did not exceed Rs.2 lakhs,
the Commissioner could appoint an Executive Officer for discharging the duties
of such institution or endowment for exercising the powers and discharging the
duties conferred on him by or under that Act. However, that power had to be
exercised on relevant data and on necessary facts and material. It could not be
exercised just offhand without there being any necessity for appointing an Executive
Officer for the temple in public interest. Nothing could be pointed out from
the record of this case by the learned counsel for the respondents as to why i
f was in the interest of public and for better management of the institution,
that an Executive Officer was to be appointed in 1978. Only on this short
ground these appeals are required to be allowed. The impugned order dated
30.05.1978 will stand quashed and set aside. We do not express any opinion on
the finding of the High Court that the said order remained operative even after
the 1987 Act. We keep that question open. So far as the subsequent order dated
29.06.1987 is concerned, a mere look at the said order shows that it was solely
based on the order dated 30.05.1978 and was passed consequent on the dismissal
of the writ petition by the learned Single Judge of the High Court on
not an independent order issued under the 1987 Act.
the main order of 30.05.1978 fails, the consequential order necessarily must
give way and must also fall with it.
result, these appeals are allowed. Both the impugned orders i.e. order dated
30.05.1978 issued by Respondent No.2 and the order dated 29.06.198? issued by
Respondent No.4 are quashed and set aside. The common orders of the Division
Bench of the High Court are set aside. Writ Appeal No.456 of 1987 and Writ
Petition No.10016 of 1987 will stand allowed.
we may note one contention canvassed by learned counsel for the respondents. He
submitted that by subsequent order dated 29.03.1979, Respondent No.3, Deputy
Commissioner, Endowments Department, Guntur, had appointed the appellant as
hereditary trustee of the Ashram, that the said order did not survive after the
1987 Act as office of the hereditary trustee was abolished by this Act and that
the 1987 Act was upheld by this Court in the case of Pannalal Bankilal &
Ors. etc. vs. State of andhra Pradesh & Anr . (1996 (1) Scale 405). In our
view this aspect is not much relevant at this stage. We are concerned here with
the legality of the 1978 order. Even if the office of hereditary trustee was
abolished by the 1987 Act, the same could not retrospectively validate the 1978
order, It would of course be open to the respondents to pass appropriate orders
under the 1987 Act in accordance with law, so far as the functioning of the
present temple is concerned. Exercise of that power on the part of the
respondents will not in any way stand affected by the present proceedings and
the decision rendered by us herein. If and when such an order is passed under
the 1987 Act, it will equally by open to the appellant to challenge it in
accordance with law.
to the aforesaid clarifications, these appeals are allowed. In the facts and
circumstances of the case, there will be no order as to costs throughout.