RATNAM T V Vs. DEPUTY COMMISSIONER OF ENDOWMENTS

JUDGEMENT

(1.) The petitioners-appellants filed W.P.No.10824 of 1987 questioning the notice issued to them by the Deputy Commissioner, Endowments Department, Kakinada - 1st respondent in O.A.No.l of 1987 on 6-6-1987 purportedly under Section 77 (1) of the Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act, 1966 (for short the 1966 Act) to decide whether Sri Pandurangaswamy temple, Chilakalapudi, Machilipatnam is a public or a private temple as also the order passed by the first respondent in L.A. No.36/87 in O.A. No.1/87 on 20-7-1987 deciding that he has jurisdiction to decide the question. The writ petition was filed questioning the jurisdiction of the first respondent to issue the notice. The basis of the challenge is an earlier order passed by the District Judge, Krishna, Machilipatnam in O.P.No.1/1940 on 24-10-1941 declaring the temple as private. The writ petition having been dismissed on 31-12-1993,the present appeal has been preferred.

(2.) Narration of the background of the facts leading to the present appeal is necessary since not only the litigation spans about20 years, but also because of the sheer number of the cases and the applications filed in them from time to time. It appears, notice was issued by the Inspector of Endowments on 8-10-1975 to the executive authority of Sri Pandurangaswamy temple, Chilakalapudi calling upon the temple to be registered under Sections 38 and 39 of the 1966 Act. W.P.No.5480 of 1976 was filed by the predecessor of the appellants challenging the notice. That petition was disposed of on 24-11-1976 recording the submission of Mr. T.H.B. Chalapathi,learned counsel for the petitioners that the Executive Officer (writ petitioner therein) had been advised to raise the necessary dispute by filing an application before the Deputy Commissioner of Endowments,Kakinada under Section 77 of the1966 Act and to contend that the temple does not fall within the purview of the Act being a private one, and hence is not obliged to be registered under Sections 38 and 39 of that Act. The learned counsel for the petitioners in the case submitted that steps would be taken to file the petition before the Deputy Commissioner of Endowments within two weeks of the date of the order. An appeal, W.A.No.20 of 1977 was carried by the writ petitioners which was disposed of on 20-1-1977 declining to interfere, taking the view that the statement made by the learned counsel for the petitioners before the learned single Judge was on the instructions of the petitioners for which reason the appeal was to fail.While dismissing the appeal,six weeks time was allowed in the judgment to take such steps as they like. Admittedly, the writ petitioners did not file application under Section 77 of the 1966 Act While the matter stood thus, the Assistant Commissioner, in his proceedings Rc.No.D/13602/77 dt.14-11-1977, appointed the Inspector of Endowments, Machilipatnam as the Chief Festival Officer for the festival of Karthika Sudha Ekadasi from 20-11-1977 to 26-11-1977, The order was passed in consideration of the report of the person in management, Sri Keti Satyanarayana.The order of the Assistant Commissioner was assailed before the joint Commissioner of Endowments,Hyderabad in R.P.No.168 of 1977 who passed orders on 19-10-1979 that as the order of the District Judge/Krishna inO.P.No.l/40 had not been set a side by any competent Court or authority, that judgment declaring the temple as private was still in force and that respondent No2 in that case i.e., Keti Satyanarayana or the Asst. Commissioner were at liberty to move the Deputy Commissioner under Section 77 of the 1966 Act for declaration that the temple is public one in view of the changed circumstances and until such declaration is obtained, the Asst. Commissioner cannot interfere with the administration of the temple. The appellants admittedly had not filed application under Section 77 of the 1966 Act as had been undertaken in W.F.No.5084 of 1976. Thereafter, the impugned notice was issued in O.A.No.1 of 1987 under Section 77 of the 1966 Act. The appellants and some others raised the question before the Deputy Commissioner as regards his jurisdiction to undertake the enquiry and subsequently they also filed I.A.No36/87 in O.A.No.1/87 to determine the question of jurisdiction of the first respondent. The first respondent held, by his order of 20-7-1987, that he had jurisdiction to decide the question and passed in terim orders appointing a person as custodianof the temple. The writ petition out of which mis appeal arises was filed to quash the proceedings initiated suo motu by the first respondent as also toquash the order of 20-7-1987. Arguing the petition, the question urged before the learned single Judge was of Section 77 of the 1966 Act as not contemplating any enquiry whether a temple is private or a public one and that by the date of the notice, the 1966 Act had been repealed. The submission was contested by the respondent pointing out that since 19-2-1987 the present,Endowment Act of 1987 (for short 1987 Act) has come into force under Section 87(6) of which an enquiry, as had been initiated by the first respondent, is provided for. The learned single Judge took the veiw that though Section 77 of the 1966 Act did not provide for an enquiry as to whether an institution is public or private, yet as the notice was issued after the 1987 Act had come into force, the power to hold the enquiry must be traced to the new Act. Provision of the 1987 Act as we!i as the 1966 Act applies to all public charitable institutions and all Hindu public religious institutions and Section 87(6of the 1987 Act created the presumption, in matters covered under clause (a) to (e) of Section 87(1), that the institution or the endowment is a public one, though the presumption is a rebuttable one but the burden to rebut is on the person claiming the institution or endowment to be private. The learned Judge hence took the view that the Deputy Commissioner had jurisdiction to decide whether the temple is a public or a private one. Taking the view, the learned Judge distinguished an earlier decision of this Court in A.S. No.238 of 1975 decided on 26-10-1978 in which view had been taken of Section 77 of the 1966 Act as not clothing the Deputy Commissioner with the power to decide whether the institution is public or private,of it having been rendered under the 1966 Act but that the power was specifically available to the Deputy Commissioner under Section 87(6) of the 1987 Act. Taking such view, the writ petition was dismissed.

(3.) During the pendency of the appeal orders were passed in W.A.M.P. Nos.142 & 143 of 1994 on 18-1-1994 that pending disposal of O.A.No.l/87 by the first respondent,the appellants shall be permitted to manage the affairs of the temple but the direction was subject to the final orders that would be passed by the first respondent in O.A, No.l/87 which was directed to be disposed of, preferably within three months. S.L.P.No.13171 of 1994 was filed by the appellants challenging the order but was dismissed as with drawn on 22-8-1994, Therafter, the appellants again filed review W.A.M.P. No.298 of 1996 to review the orders passed on 18-1-1994 in W.A.M.P. Nos.142 &143 of 1994 and also filed W.A.M.P.No.350 of 1996 on 29-2-1996 for stay pending the review. Since in the meantime the respondent No.l had disposed of O.A. No.1/87 on 12-3-1996 holding the temple to be public one, the appellants filed W.A.M.P. No.847 of 1996 on 18-4-1996 to stay the operation of that order. All the three petitions, W.A.M.P. No.298 of 1996, 353 of 1996 and 847 of 1996 were disposed of on 25-3-1996 with the observation that the appellants should bring the order of the Deputy Commissioner to the notice of the Commissioner who can exercise revisional powers under Section 88 of the 1966 Act and it was open to the appellants to file an application for the purpose. The appellants, in pursuance of the order,moved the Commissioner in R.P.No.45/96.The Commissioner expressed the view that the revision was not maintainable but that he was to dispose of the revision having been directed by the High Court.Considering the merits he dismissed the revision saying that the appellants had been carrying on the litigation for the last 20 years without invoking the statutory provisions of 1966 Act or the 1987 Act and that they had not carried out the orders of the Court passed in 1977 directing them to approach the Deputy Commissioner under Section 77 of me 1966 Act, Prior to the disposal of the matter by the Commissioner,the appellants had filed W.A.M.P. No.l196 of 1996 seeking stay of further proceedings which had been refused in the order of 25-3-1996. While that petition was put up for orders, we directed to take up the writ appeal itself for disposal along with W.A.M.P. No.1196 of 1996.