Teki Venkata
Ratnam & Ors Vs. Dy. Commissioner, Endowment & Ors [2001] Insc 373 (7 August 2001)
S. Rajendra
Babu & Shivaraj V. Patil 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 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 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)
...........
(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 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 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.
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