P. Uma Maheshwara Sastry, vs The State Of Andhra Pradesh
2021 Latest Caselaw 3915 AP

   IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

                                  ***

W.P.No.21761 of 2020 Between:

P.Uma Maheswara Sastry, S/o.Late Venkateswarlu, Age 60 years, Occ: Archaka of Sri Lakshmi Narayana Swamy Mandiram, Gulabchand Street, One Town, Vijayawada Adopted to Sri Durga Malleswara Swamy Devasthanam, Vijayawada, Krishna District.

... Petitioner

And

$ 1. The State of Andhra Pradesh Rep.by its Special Chief Secretary, Revenue (Endowments) Department, Secretariat, Velagapudi, Amaravathi, Guntur District.

2. The Special Commissioner, Endowments Department, Gollapudi, Vijayawada, Krishna District.

3. Sri Durga Malleswara Swamy Devasthanam, Vijayawada, Krishna District, Adoptee temple of Sri Lakshmi Narayanaswamy Mandiram, Gulabchand street, One Town, Vijayawada, Krishna District.

Rep.by its Executive Officer.

4. M.V.Suresh Babu, S/o.M.Ranganayakulu, Executive Officer of Sri Durga Malleswara Swamy Devasthanam, Vijayawada, Krishna District.

... Respondents

Date of Judgment pronounced on : 05-10-2021

HON'BLE SRI JUSTICE R. RAGHUNANDAN RAO

1. Whether Reporters of Local newspapers : Yes/No May be allowed to see the judgments?

2. Whether the copies of judgment may be marked : Yes/No

to Law Reporters/Journals:

3. Whether the Lordship wishes to see the fair copy : Yes/No Of the Judgment?

RRR,J

*IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

* HON'BLE SRI JUSTICE R. RAGHUNANDAN RAO

+ W.P.No.21761 of 2020

% Dated: 05-10-2021

Between:

P.Uma Maheswara Sastry, S/o.Late Venkateswarlu, Age 60 years, Occ: Archaka of Sri Lakshmi Narayana Swamy Mandiram, Gulabchand Street, One Town, Vijayawada Adopted to Sri Durga Malleswara Swamy Devasthanam, Vijayawada, Krishna District.

... Petitioner

And

$ 1. The State of Andhra Pradesh Rep.by its Special Chief Secretary, Revenue (Endowments) Department, Secretariat, Velagapudi, Amaravathi, Guntur District.

2. The Special Commissioner, Endowments Department, Gollapudi, Vijayawada, Krishna District.

3. Sri Durga Malleswara Swamy Devasthanam, Vijayawada, Krishna District, Adoptee temple of Sri Lakshmi Narayanaswamy Mandiram, Gulabchand street, One Town, Vijayawada, Krishna District.

Rep.by its Executive Officer.

4. M.V.Suresh Babu, S/o.M.Ranganayakulu, Executive Officer of Sri Durga Malleswara Swamy Devasthanam, Vijayawada, Krishna District.

... Respondents

! Counsel for petitioner : D.V.Sasidhar

^Counsel for Respondents 1 and 2 : G.P. for Endowments

^Counsel for Respondent No.3 and 4 : K.Madhava Reddy RRR,J

<GIST :

>HEAD NOTE:

? Cases referred:

AIR 1978 SC 988

2. (1975) 2 SCC page 22,

AIR 2007 SC page 168

(2017) 3 SCC page 362

5. (2013) 5 SCC 470(2013) =3 SCC (Civ) 153 = 2013 SCC OnLine SC 143 RRR,J

THE HON'BLE SRI JUSTICE R.RAGHUNANDAN RAO

WRIT PETITION No.21761 of 2020

ORDER:-

The petitioner is working as an Archaka in Sri Lakshmi

Narayana Swamy Mandiram, Gulabchand Street, I town,

Vijayawada. He is being paid a sum of Rs.12,700/- under

various heads, as his monthly salary. Sri Lakshmi Narayana

Swamy Mandiram was adopted, under the provisions of Section

145 of The Andhra Pradesh Charitable and Religious

Institutions and Endowments Act, 1987 (for short „the 1987

Act‟) by the 3rd Respondent, Sri Durga Malleswara Swamy

Devasthanam, Vijayawada. In view of the said adoption, the

petitioner had made a representation to the 4th respondent, who

is the executive officer of the 3rd Respondent, to pay him a

salary of Rs.25,000/- per month on par with the other

Archakas, who were serving in the 3rd Respondent. This claim

of the petitioner was rejected by the 4th respondent in his

proceedings Rc.No.F2/3508/18 dated 28.10.2020, on the

ground that the said remuneration is not payable as per

circular No. Rc.No.A1/1726091/118, dated 24.09.2018.

Aggrieved by the said order of rejection, the Petitioner has

approached this Court by way of the present Writ Petition.

2. It is the case of the petitioner that Sri Lakshmi

Narayana Swamy Mandiram, where the petitioner is serving,

was adopted by the 3rd respondent Devasthanam under Section

145 of the Andhra Pradesh Charitable and Hindu Religious

Institutions and Endowments Act, 1987 (for short, the 1987 RRR,J

Act‟) and consequently, he would be entitled to the same pay as

other Archakas serving in the 3rd respondent-temple by virtue

of the deeming provision in Section 145(2) of the 1987 Act and

on account of the judgment of the Hon‟ble Supreme Court in

Jagjit Singh Vs. State of Punjab1, which mandated equal pay

for equal work.

3. The 4th respondent, executive officer of the 3rd

respondent temple, has filed a counter, in which he took the

stand that Section 145(2) of the 1987 Act only provides for

management of the adopted institution by the adoptee

institution as a single entity but that could not mean that both

the adopted institution and the adoptee institution have become

one institution wherein the employees of both the institutions

would be paid the same salaries and given same service

conditions. It is further submitted by Sri K.Madhava Reddy,

learned standing counsel appearing for the 3rd respondent that

the Judgment of Jagjit Singh‟s case would apply only when the

petitioner is to be treated as an employee of the 3 rd respondent

temple and then he can claim equal pay for equal work done by

other employees of the 3rd respondent-temple.

4. Sri K.Madhava Reddy, learned standing counsel for

the 3rd respondent would rely upon the Judgments of the

Hon‟ble Supreme Court in Khemka & Co. (Agencies) Pvt.Ltd

Vs. State of Mahashtra 2, Paramjeet Singh Patheja Vs. ICDS

Ltd,3 State of Karnataka Vs. State of Tamil Nadu and Ors.,4

to contend that the submissions of Sri D.V.Sasidhar, learned

AIR 1978 SC 988

(1975) 2 SCC page 22,

AIR 2007 SC page 168

(2017) 3 SCC page 362 RRR,J

counsel for the petitioner require to be rejected as a legal fiction

or a deeming provision in Section 145(2) of the 1987 Act cannot

be taken to have amalgamated the establishments of the

adopted and adoptee temples into one unified establishment.

Consideration of the Court:

5. The controversy in the present Writ petition is on

the interpretation of section 145 of the 1987 Act which reads as

follows:

Adoption or amalgamation of institutions and Endowments:-

(1) Where the Commissioner has reason to believe that any religion institution is not capable of maintaining out of its funds, he may, in the interest of proper management of administration, subject to such restrictions and conditions as he may deem fit, direct the amalgamation or as the case may be, the adoption of such religious institution by any other religious institution having similar objects and capable of managing such institution and there upon the trustee of the institution to which it is amalgamated or by which it is adopted shall maintain and administer such institution.

[Provided that the conditions to be satisfied for any such adoption or amalgamation shall be as may be prescribed.]

(2) On such amalgamation or adoption the institutions shall be deemed to comprise a single institution and administered as if they were a single institution published under Section 6.

(3) Where the institution so amalgamated or as the case may be adopted under sub-section (1), subsequently found to be capable of being managed by itself, the Commissioner may in the interest of proper management of administration, revoke the orders issued under sub-section (1), and there upon the institution shall manage its affairs independently out of its funds.

(4) An appeal shall lie to the Government against the orders passed by the Commissioner under sub-section (1) or sub- section (3).

6. Sri D.V. Sasidhar, contends that the words "shall be

deemed to comprise a single institution as if they were a single

institution" contained in Section 145 (2) create a legal fiction

that both Sri Lakshmi Narayana Swamy Mandiram and the 3 rd RRR,J

W.P.No.21761 of 2020 Respondent are a single institution and the consequence of

such a legal fiction is that the petitioner is entitled to be treated

as an employee with the pay and service conditions given to the

employees of the 3rd Respondent being given to the Petitioner

and relies upon the following excerpt from the Judgment of the

Hon‟ble Supreme Court in Rajasthan State Industrial Development

& Investment Corpn. v. Diamond & Gem Development Corpn. Ltd.,5:

VI. "As if"--Meaning of

26. The expression "as if" is used to make one applicable in respect of the other. The words "as if" create a legal fiction. By it, when a person is "deemed to be" something, the only meaning possible is that, while in reality he is not that something, but for the purposes of the Act of legislature he is required to be treated that something, and not otherwise. It is a well-settled rule of interpretation that, in construing the scope of a legal fiction, it would be proper and even necessary to assume all those facts on the basis of which alone such fiction can operate. The words "as if" in fact show the distinction between two things and, such words must be used only for a limited purpose. They further show that a legal fiction must be limited to the purpose for which it was created. [Vide Radhakissen Chamria v. Durga Prosad Chamria [(1939-40) 67 IA 360 : (1940) 52 LW 647 : AIR 1940 PC 167] , CIT v. S. Teja Singh [AIR 1959 SC 352] , Ram Kishore Sen v. Union of India [AIR 1966 SC 644] , Sher Singh v. Union of India [(1984) 1 SCC 107 : AIR 1984 SC 200] , State of Maharashtra v. Laljit Rajshi Shah [(2000) 2 SCC 699 : 2000 SCC (Cri) 533 : AIR 2000 SC 937] , Paramjeet Singh Patheja v. ICDS Ltd. [(2006) 13 SCC 322 : AIR 2007 SC 168] (SCC p. 341, para 28) and CIT v. Willamson Financial Services [(2008) 2 SCC 202] .]

27. In East End Dwellings Co. Ltd. v. Finsbury Borough Council [1952 AC 109 : (1951) 2 All ER 587 (HL)] this Court approved the approach which stood adopted and followed persistently. It set out as under : (AC p. 133)

"... The statute says that you must imagine a certain state of affairs; it does not say that having done so, you must cause or

(2013) 5 SCC 470(2013) =3 SCC (Civ) 153 = 2013 SCC OnLine SC 143 RRR,J

permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs."

28. In Industrial Supplies (P) Ltd. v. Union of India [(1980) 4 SCC 341 : AIR 1980 SC 1858] this Court observed as follows : (SCC p. 351, para 25)

"25. It is now axiomatic that when a legal fiction is incorporated in a statute, the court has to ascertain for what purpose the fiction is created. After ascertaining the purpose, full effect must be given to the statutory fiction and it should be carried to its logical conclusion. The court has to assume all the facts and consequences which are incidental or inevitable corollaries to giving effect to the fiction. The legal effect of the words „as if he were‟ in the definition of „owner‟ in Section 3(n) of the Nationalisation Act read with Section 2(1) of the Mines Act is that although the petitioners were not the owners, they being the contractors for the working of the mine in question, were to be treated as such though, in fact, they were not so."

(emphasis added)

7. Two principles can be extracted, from the above

judgement. Firstly, a legal fiction creates a fact situation which

is not in actual existence and that fact situation has to be taken

to its logical conclusion. Secondly, while construing a legal

fiction, it must always be remembered that the purpose for

which such a legal fiction is being created must be considered

and the said legal fiction must be limited to the purpose for

which, it was created. The Judgments cited by Sri K.Madhava

Reddy, learned standing counsel, in State of Karnataka Vs.

State of Tamil Nadu and Ors., (4 supra) and Paramjeet Singh

Patheja Vs. ICDS Limited (3 supra) would also support this

understanding of the above passage in the Judgment of the

Hon‟ble Supreme Court.

RRR,J

8. It would now be necessary to ascertain the purpose

for which this legal fiction has been created. Section 145 of the

1987 Act provides for the takeover of an institution or

endowment by another institution or endowment. Where the

Commissioner finds that a religious institution is in trouble and

needs outside assistance to revive itself, either on account of

the fact that due to financial difficulties it is not capable of

maintaining itself or there is a necessity of improving the

management or administration of the said institution or

endowment, the Commissioner can direct the takeover of such

an institution or endowment by any other institution of

endowment. This takeover is for the purposes of assisting the

troubled institution till it can run itself without outside help.

This takeover can be in two forms. It would be either by way of

amalgamation or by way of adoption. However, this takeover is

not a permanent situation. Section 145(3) mandates that where

the adopted/amalgamated institution improves its functioning

to a stage where the said institution or endowment can be

managed by itself, the order of takeover issued by the

commissioner would be revoked. Further, the initial takeover

itself need not be a complete takeover as the order of takeover

can place restrictions and conditions in relation to the takeover

of the institution. Section 145 has been introduced for the

purposes of protecting financially weak or badly managed

institutions, till they are able to stand on their own feet. The

purpose of Section 145 is not a permanent merger of

Institutions.

RRR,J

9. In the light of the scope of Section 145, the legal

fiction created under Section 145(1) is obviously for the

purposes of ensuring that there are no hurdles in the

management of the adopted institution or endowment by the

adoptee institution or endowment. In the alternative, if the

contention of the petitioner is to be accepted, the petitioner

would be treated as an employee of the 3rd respondent temple

and would be paid a salary of Rs.25,000/- on par with the other

Archakas working in the 3rd respondent temple. However, on

the revocation of the order of takeover by way of adoption, the

petitioner would have to be paid the reduced scale of salaries

payable for an Archaka employed by Sri Lakshmi Narayana

Swamy Temple. Such a dichotomy is clearly not what the

legislature intended by creating this legal fiction. As noticed

above, the adoption or amalgamation of an institution is a

temporary phase and each institution would have to go back to

functioning in accordance with its categorization under the Act,

after the adoption/amalgamation is revoked. In the

circumstances it must be held that, the legal fiction set out in

Section 145 (2) would be restricted to the extent of creating a

unified management of both the institutions and nothing

further.

10. In the circumstances, the contention of the

petitioner that he is to be treated as an employee of the 3rd

respondent temple, by virtue of the legal fiction in Section 145

of the 1987 Act, cannot be accepted.

11. Accordingly, the Writ Petition is dismissed. There

shall be no order as to costs.

RRR,J

Miscellaneous petitions, pending if any, in this Writ

Petition shall stand closed.

___________________________________ JUSTICE R.RAGHUNANDAN RAO Date : 05-10-2021 RJS RRR,J

THE HON'BLE SRI JUSTICE R.RAGHUNANDAN RAO

WRIT PETITION No.21761 of 2020

Date : 05 -10-2021

RJS