Aggrieved By The Order Dated ... vs Order Passed By The Deputy ...
2023 Latest Caselaw 3152 AP

    THE HON'BLE SRI JUSTICE T.MALLIKARJUNA RAO

                APPEAL SUIT No.586 OF 2010

JUDGMENT:

1. Aggrieved by the Order dated 24.05.2010 in O.A.No.125 of

2009 passed by the Deputy Commissioner, Endowments

Department, Visakhapatnam, the appellant/respondent

preferred this Appeal, questioning the correctness of the

Order passed by the Deputy Commissioner. The respondent

is the petitioner, who filed O.A.No.125 of 2009 to initiate

enquiry under section 83(2) of the Andhra Pradesh

Charitable and Hindu Religious Institutions and

Endowments Act, 1987 (Act 30/87) [for short, "the Act"]

against the appellant, for eviction from the petition schedule

property.

2. The parties are referred to as per their array before the

Deputy Commissioner "for brevity".

3. The petitioner's case is that the respondent is in occupation

of the petition-mentioned property in an extent of 50

Sq.yards (18 X 12 and 18 X 13) situated in T.S.No:709,

Block No:29, Ward No.16, Assamgardens, Visakhapatnam

belonging to the temple, without any approval from the

competent Authority under the Endowments Act. The

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respondent also raised unauthorized structures therein and

is not vacating the petition schedule property despite several

demands made by the petitioner. The respondent's actions

are detrimental to the interests of the temple.

4. The respondent filed a counter, contending that the petitioner

has no right, title or interest over the scheduled mentioned

property. He filed suit O.S.No.235 of 1977 for declaration of

title to the scheduled property and delivery of possession, and

the suit was dismissed. The petitioner preferred an Appeal

before the High Court as A.S.No.3176 of 1985; the Appeal was

remanded back to the trial Court with a direction to decide

the matter afresh and on remand, the trial Court disposed of

the case on 11.01.2001, and the respondent herein preferred

Appeal A.S.No.1225 of 2001 before the High Court, and the

same is pending. The High Court directed both parties shall

maintain the status quo pending disposal of the Appeal.

5. Based on the pleadings before the Deputy Commissioner, the

Deputy Commissioner framed appropriate points for

consideration. On behalf of the petitioner, Ex.A.1 to Ex.A.3

documents got marked. On behalf of the respondent, no

documents got marked.

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6. After considering the oral and documentary evidence on

record, the Deputy Commissioner held that the respondent is

the encroacher of the petition schedule property within the

meaning of section 83 of Act 30/87 and directed the

respondent to be evicted from the scheduled property.

7. I have heard the arguments of the learned counsel

representing both sides.

8. Learned counsel for the appellant/respondent contends that

the Order passed by the Deputy Commissioner is the routine

cyclostyle order without appreciating the contentions raised

by the respondent in its proper perspective. The Order is

without jurisdiction and is passed after the constitution of the

Tribunal.

9. Per contra, the learned counsel for the respondent/petitioner

supported the findings and observations of the Deputy

Commissioner.

10. Now, the point for determination is:

Whether the Order passed by the Deputy Commissioner is without jurisdiction?

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11. The Deputy Commissioner initiated enquiry under Section

83(2) of the Act 30/87 against the respondent for eviction

from the scheduled property based on the proposal made by

Assistant Commissioner, Endowments Department,

Visakhapatnam, informing that the respondent has been in

unauthorized occupation of the petition schedule property

and recommended to initiate proceedings under section 83

of Act 30/87. The Deputy Commissioner passed an order

dated 24.05.2010 holding that the respondent is an

encroacher of the scheduled property within the meaning of

Section 83 of Act 30/ 87. The respondent is directed to be

evicted from the scheduled property and vacate the

scheduled property, and hand over the vacant possession to

the petitioner/institution within 15 days from receipt of the

Order.

12. The main grievance of the appellant against the Order

passed by the Deputy Commissioner is that the Order dated

24.05.2010 was passed after the constitution of the Tribunal

without jurisdiction. For better appreciation, I reproduce the

G.O.Ms.837, dated 13.08.2009.

13. G.O.Ms.No.837 dated 13.08.2009 issued by Revenue

(Endowments Department), reads as under:

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"In exercise of the powers conferred under section 162(1) of the Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act, 1987 (Act 30 of 1987) the Government of Andhra Pradesh hereby constitute the A.P. Endowment Tribunal sitting at Hyderabad. The Tribunal shall have jurisdiction for the entire State of Andhra Pradesh for the determination of any disputes, question or the matter relating to a Charitable Institution, Dharmadayam, Religious Charity, Religious Endowments, Religious Institution or any Institution etc., as defined in the Act".

14. The said G.O. specifies the Notification shall be published

in the Extraordinary issue of the Andhra Pradesh Gazette,

dated 20.08.2009. As seen from Section 87 of the Andhra

Pradesh Charitable and Hindu Religious Institutions and

Endowments Act, 1987 is substituted by Act No.33 of 2007

w.e.f. 03.01.2008. Before the amendment to Section 87 of

the Act, it reads as under:

87. (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) whether any property is an endowment, and if so, whether it is a charitable endowment or a religious endowment;

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d) whether any property is a specific endowment;

e) whether any person is entitled by custom or otherwise to any honour, emoluments or perquisites in any charitable or religious institution or endowment and what the established usage of such institution or endowment is in regard to any other matter;

f) whether any institution or endowment is wholly or partly of a secular or religious character and whether any property is given wholly or partly for secular or religious uses; or

g) where any property or money has been given for the support of an institution or endowment which is partly of a secular character and partly of religious character or the performance of any service or charity connected with such institution or endowment or the performance of a charity which is partly of a secular character and partly of a religious character or where any property or money given is appropriated partly to secular uses and partly to religious uses, as to what portion of such property or money shall be allocated to secular or religious uses.

(2) The Deputy Commissioner may, pending his decision under sub-section (1), pass such Order as he deems fit for the administration of the property or custody of the money belonging to the institution or endowment.

(3) Every decision or Order of the Deputy Commissioner on confirmation by the Commissioner under this section shall be published in the prescribed manner.

(4) The Deputy Commissioner may while recording his decision under sub-section (1) and pending implementation of such decision, pass such interim order as he may deems fit for safeguarding the interests of the institution or endowment and for preventing damage to or loss of or misappropriation or criminal

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breach of trust in respect of the properties or moneys belonging to or in the possession of the institution or endowment.

(5) 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.

(6) The presumption in respect of matters covered by clauses (a), (b), (c), (d) and (e) in sub-section (f) 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.

15. Section 87 of the Act is substituted by Act 33 of 2007, which

reads as follows:

"87. Power of Endowments Tribunal to decide certain disputes and matters. - (1) The Endowments Tribunal 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) whether any property is an endowment, and if so, whether it is a charitable endowment or a religious endowment;

(d) whether any property is a specific endowment;

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(e) whether any person is entitled by custom or otherwise to any honor, 'emoluments or perquisites in any charitable or religious institution or endowment and what the established usage of such institution or endowment is in regard to any other matter;

(f) whether any institution or endowment is wholly or partly of a secular or religious character and whether any property is given wholly or partly for secular or religious uses; or

(g) where any property or money has been given for the support of an institution or endowment which is partly of a secular character and partly of a religious character or the performance of any service or charity connected with such institution or endowment or the performance of a charity which is partly of a secular character and partly of a religious character or where any property or money given is appropriated partly to secular uses and partly to religious uses, as to what portion of such property or money shall be allocated to secular or religious uses;

(h) Whether a person is a founder or a member of the family of the founder of an Institution or Endowment.

(2) The Endowments Tribunal may, pending its decision under subsection (1), pass such Order as it deems fit for the administration of the property or custody of the money belonging to the institution or endowment.

(3) The Endowments Tribunal may while recording its decision under subsection (1) and pending implementation of such decision, pass such interim Order as it may deem fit for safeguarding the interest of the institution or endowment and for preventing damage to or loss or misappropriation or criminal

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breach of trust in respect of the properties or moneys belonging to or in the possession of the institution or endowment.

(4) 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 a 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.

(5) Notwithstanding anything contained in the above sub- sections, the Deputy Commissioner having jurisdiction shall continue to enquire into and decide the disputes referred to in sub-section (1) until the constitution of the Endowments Tribunal."

16. From the reading of the above provisions, it is explicit that

by virtue of the amendment to Section 87 of the Act, the

Deputy Commissioner is empowered to decide certain

disputes and matters, whereas, after the amendment to

Section 87 of the Act, the Endowment Tribunal is

constituted. Section 87(5) amendment shows that the

Deputy Commissioner having jurisdiction shall continue to

enquire into and decide the disputes referred to in Sub

Section (1) until the constitution of the Endowments

Tribunal. When the Endowments Tribunal is constituted,

the Deputy Commissioner is not supposed to decide the

disputes. The impugned Order passed by the Deputy

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Commissioner shows that the impugned Order was passed

after the constitution of the Endowments Tribunal. A

reading of the impugned Order does not indicate the

reasons for passing the Order after the constitution of the

Endowments Tribunal. During the course of the hearing,

learned counsel appearing for the Endowments has not

given justifiable reasons to pass the impugned Order by the

Deputy Commissioner after the constitution of the

Endowments Tribunal. This Court views that the Deputy

Commissioner is not empowered with the jurisdiction to

decide the disputes after the constitution of the

Endowments Tribunal. As such, without going into the

merits of other contentions, the Order passed by the

Deputy Commissioner is liable to be set aside.

17. For the reasons stated above, the Appeal is allowed by

setting aside the impugned Order passed in O.A.No.125 of

2009 dated 24.05.2010 by the Deputy Commissioner,

Endowments Department, Visakhapatnam. However,

leaving it open to the authorities concerned to work out

their remedies, if any, in accordance with the provisions of

the Act. There shall be no order as to costs.

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Consequently, miscellaneous petitions pending, if any, shall

stand closed.

_________________________________ JUSTICE T.MALLIKARJUNA RAO

Date:14.06.2023 SAK/MS

TMR, J A.S.No.586 of 2010

THE HON'BLE SRI JUSTICE T. MALLIKARJUNA RAO

APPEAL SUIT NO.586 OF 2010

DATE:14.06.2023

MS