Posted On by &filed under Andhra High Court, High Court.


Andhra High Court
K. Susheela vs Commissioner Of Endowments, … on 7 September, 2000
Equivalent citations: 2000 (5) ALD 544, 2000 (5) ALT 366
Bench: B S Reddy


ORDER

1. The petitioner is the instant writ petition impugns the proceedings on the file of the Regional Joint Commissioner of Endowments, Multi Zone-Ill, Hyderabad directing the petitioner herein to show-cause as to why the legality, the propriety of the order passed by the Asst. Commissioner, Endowments Department, T.C., Hyderabad declaring the petitioner herein as member of the founder family of Sri Kanaka Durga Temple, Ameerpet, Hyderabad, should not be examined. The petitioner herein was called upon to be present together with connected records and documents in connection with the proposed enquiry to be held on 28-12-1999 by the Regional Joint Commissioner.

2. It is stated that the petitioner’s husband was the devotee of Sri Kanaka Durga Devi. It is stated that with his own funds, the temple in question has been constructed by his individual efforts. It is however, stated that the temple has become public in character for the reason that the public have been allowed to have access for worship of the subject temple. It is also stated that the petitioner’s husband undertook construction of several sub-shrines like Pochamma Temple, Santhoshima Temple. The main temple and the subshrines constructed by him were being managed with his funds and a poojari has been appointed and his salary is also paid from out of the personal funds of the petitioner.

3. Be that as it may, the subject institution was registered under Section 43 of Act 30 of 1987. A certificate of registration was issued by the Assistant Commissioner, Endowments in Rc.No.C/ 4174/94 dated 22-10-1994. It is averred in the affidavit that the record itself would show that the subject institution was founded by the petitioner’s husband and his name is recorded as founder in 43 Register.

4. The petitioner’s husband Rajeshwarappa died in the month of February, 1996. The petilioner as the wife of the founder has stepped into the shoes of late Rajeshwarappa. The petitioner as the person in management applied to the Assistant Commissioner for declaring her as member of the founder’s family. The Assistant Commissioner of Endowments after examining the claim of the petitioner for being declared as member of the founder’s family and having verified the records declared the petitioner as member belonging to the family of the founder of Sri Kanaka Durga Temple, Ameerpet, Hyderabad vide proceedings dated 5-6-1997 on the file of the Assistant Commissioner of Endowments, Twin Cities. It is the case of the petitioner that by virtue of the declaration given by the Assistant Commissioiicr, she has been exercising her rights as a founder trustee. On account of such declaration as member of the founder’s family the petitioner may get right to be nominated as Chairman of the Trust Board as and when any trust board is constituted in respect of the subject institution and in the absence of any Board, she will be in exclusive management of the institution.

5. While so, the petitioner is served with notice dated 27-11-1999 issued by the second respondent herein purporting it to be under Section 92 of the A.P. Charilable and Hindu Religious Institutions and Endowments Act, 1987 (for short ‘the Act’). It is this notice dated 27-1-1999 issued by the second respondent herein proposing to examine the legality and validity of the order passed by the Assistant Commissioner dated 5-6-1997 declaring the petitioner to be member of the founder’s family is impugned in this writ petition. The very notice itself is impugned in this writ petition on the ground that the second respondent herein has no jurisdiction or authority in law to revise the order passed by the Assistant Commissioner.

6. Sri M. Ramachandra Reddy, learned Counsel for the petitioner contends that the Commissioner of Endowments by Circular No.J5/5288/96 dated 25-3-1996 (for short ‘the proceedings’) delegated his power and empowered the Assistant Commissioner to conduct an enquiry in respect of the claims of the founder trustee or member of the founder’s family and the decision of the Assistant Commissioner cannot be reviewed by the Commissioner as is sought to be done in the instant case. It is contended that once the power has been delegated by the Commissioner to the Assistant Commissioner, there is no further power that vests in the Commissioner to suo motu revise or review the order passed by the Assistant Commissioner. It is submitted that the said circular itself was issued by the Commissioner pursuant to the observations made by the Supreme Court in Pannalal Bansilal Patil v. State of Andhra Pradesh, while upholding the constitutional validity of Section 16 of the A.P. Charitable and Hindu Religious Institutions and Endowments Act 30 of 1987. It is further contended that Assistant Commissioner’s order dated 5-6-1997 if at all could be revised by the Commissioner in purported exercise of the power under Section 92 of the Act is subject to limitation envisaged under Section 92(3) of the Act. The impugned notice proposing to revise the order of the Assistant Commissioner is barred by limitation.

7. In the counter-affidavit filed by the respondents, it is inter alia stated that the Hereditary trusteeship stood abolished as per the provisions laid down under Section 16 of the Endowments Act 30 of 1987. The Supreme Court upheld the Constitutional validity of the said Act including that of Section 16 in Pannalal’s case (supra). It is submitted that under Section 17 of the Act, one of the trustees in the Trust Board to be constituted shall be from the family of the founder if qualified and in that context the Supreme Court while upholding the constitutional validity of the provision observed that in order to give affect to the said provision for inclusion of the founder or member of the founder’s family
should be made to head the Board of
Trustees. It is only in this context of
recognising a person as a founder or a
member of the founder’s family and for
making necessary entries in the register
maintained under Section 43 of the Act 30
of 1987, instructions were issued to the
Assistant Commissioners vide Circular dated
25-3-1996 by the Commissioner empowering
the Assistant Commissioners to make such
enquiry as may be necessary to recognise
the person as founder or member of the
founder family.

8. It is the case of the respondents that the Assistant Commissioner of Endowments is vested with the power to register an institution of Endowments under Section 43 of the Act and he is the authority under Section 43(10) issue certificate after making the necessary amendments to Ihe original registration. Therefore, Ihe exercise of power by the Assistant Commissioner under Section 43(10) of the Act cannot be stated to be the power delegated to him by the Commissioner of Endowments under the Act. The revisional jurisdiction under Section 92 of the Act was however, delegated to the Regional Joint Commissioner in G.O. Ms. No.81 Revenue (Endowments-I) Department, dated 25-1-1989, and by virtue of such powers me Regional Joint Commissioner initiated suomotu proceedings under Section 92 of the Act against the petitioner to decide the correctness, legality and propriety of the orders issued by the Asst. Commissioner, Twin cities. Learned Government Pleader contends that the power exercised by the Assistant Commissioner is not a delegated one. The Assistant Commissioner is originally vested with the power to register an institution or Endowment under Section 43 of the Act and he is the authority under Section 43(10) of the Act to issue certificate after making such additions as may be necessary to the original registration.

It is contended by the learned Government. Pleader that the order passed by the Assistant Commissioner is the proceeding within the meaning of Section 92 of Act 30 of 1987 and therefore, susceptible to be revised by the Commissioner or the Regional Joint Commissioner as the case may be in exercise of the jurisdiction under Section 92 of the Act. Learned Government Pleader submits that the limitation of 90 days as provided under Section 92 of the Act is not applicable in case of suo motu exercise of power by ihe Commissioner.

9. Before adverting to the question as to whether the impugned notice suffers from any jurisdictional error, it may be necessary to observe that the legality or the constitutional validity of the Circular in Re. No.JS/5288/96 (Acts and Rules) dated 25-3-1996 issued by the Commissioner, Endowments empowering the Assistant Commissioner to make an enquiry into the claims of founder or member of the founder family in respect of an institution is not questioned in this writ petition. G.O. Ms. No.81 Revenue (Endowments-I) Department, dated 25-1-1989, under which the revisional power of the Commissioner, Endowments are delegated to the Regional Joint Commissioner is also not under Challenge.

10. It would be relevant to briefly notice the relevant provisions for the purpose of deciding the issue that arises for consideration in this writ petition.

11. The A.P. Charitable and Hindu Religious Institutions and Endowments Act, 1987 (for short ‘the Act’) itself is enacted as is evident from the Statement of objects and reasons with a view to have a comprehensive law providing the better management of the properties and utilisation of funds of the institutions and endowments, abolishing the hereditary rights of Archakas, Mirasidars and other servants. The Act intends to abolish the hereditary system of trusteeship and make provision for adequate representation to women in Board of Trustees.

12. Section 2(16) defines the hereditary trustee means the trustee of a charitable or religious institution or endowment the succession to whose office devolves according to the rule of succession laid down by the founder or according to usage or custom applicable to the institution or endowment or according to the law of succession for the time being in force as the case may be. Section 3 of the Act mandates the Government to appoint the Commissioner, Additional Commissioner, Regional Joint Commissioner, Deputy Commissioner and Assistant Commissioner as the Government think fir for the purpose of exercising the powers and performing the functions conferred on or entrusted to them by or under the Act. Section 6 of the Act imposes the duty upon the Commissioner to prepare and publish the list of charitable and religious institutions and endowments on the basis of income. Section 8 of the Act deals with the power and functions of the Commissioner and Additional Commissioner. This is an important provision. It says that the administration of all Charitable and Hindu Religious Institutions and Endowments shall be under the general superintendence and control of the Commissioner and such superintendence and control shall include the power to pass any order which may be deemed necessary to ensure that such institution and endowments are properly administered and their income is duly appropriated for the purposes for which they were found or exist. Of course, that power of general superintendence and control is subject to the other provisions of the Act. Section 15 of the Act deals with the appointment of Board of Trustees. Section 16 declares that notwithstanding any compromise or agreement entered into or scheme framed, or order passed by any Court or authority or in deed or other document prior to the commencement of this Act and in force on such commencement, the rights of a person for the office of the hereditary trustee by whatever name is called shall stand abolished on the commencement of the Act. However, Section 17 of the Act which provides for procedure for making appointments of trustees and their term and further provides that one of the trustees to be appointed under Section 15 of the Act shall be from the family of the founder, if qualified.

13. The Supreme Court in Pannalal’s case (supra) observed:

“Though abolition of hereditary right in trusteeship under Section 16 has already been upheld, the charitable and religious institution or endowment owes its existence to the founder or members of the family who would resultantly evince greater and keener responsibility and interest in its proper and efficient management and governance. The autonomy in this behalf is an assurance to achieve due fulfilment of the objective with which is was found unless, in due course, foul in its management in proved, therefore, so long as it is properly and efficiently managed, he is entitled to due freedom of management in terms of the deed of endowment or established practice or usage. In case a board of trustees is constituted, the right to preside over the board given to the founder or any member of his family would generate feeling to actively participate, not only as a true representative of the source, but the same also generate greater influence in proper and efficient management of the charitable or religious institution or endowment. Equally, it enables him to persuade other members to follow the principles, practices, tenets, customs and sampradayams of the founder of the charitable or religious institution or endowment or specific endowment. Mere membership along with others, many a times, may diminish the personality of the member of the family. Even in case some funds are needed for repairs, improvement, expansion etc., the board headed by the founder or his family member may raise funds from the public to do the needful, while the Executive Officer, being a Government servant, would be handicapped or in some cases may not even show interest or inclination in that behalf. With a view, therefore, to effectuate the object of the religious or charitable institution or endowment or specific endowment and to encourage establishment of such institutions in future, making the founder or in his absence a members of his family to be a chairperson and to accord him major say in the management and governance would be salutary and effective. The founder or a member of his family would, thereby, enable to effectuate the proper, efficient and effective management and governance of charitable or religious institution or endowment or specific endowment thereof in further. It would add incentive to establish similar institutions.”

14. It is however, clear that all the existing hereditary trustees need not automatically be considered as the founders or members of the founder’s family unless the same is established in the enquiry by the competent authority. It is to give effect the directions of the Supreme Court, the circular referred to herein appear to have been issued by the Commissioner. The circular instructions issued by the Commissioner are meant for the guidance of the authorities under the Act. Through the impugned circular, the Commissioner has not delegated any of his powers to be exercised by the Assistant Commissioner of Endowments. The submission that the Commissioner having delegated his power under the circular to the Assistant Commissioner cannot be permitted to exercise revisional power under Section 92 of the Act is misconceived. The submission made by the learned Counsel for the petitioner that the exercise of power under Section 92 of the Act by the Commissioner would amount to revising his own order is totally untenable.

15. It may be notice that Section 43 ofthe Act deals with registration of Charitable and Religious Institutions and Endowments. The applications in this regard for registration of Charitable and Religious Institutions and Endowments is required to be made for registration of Charitable and Religious Institutions and Endowments to the Assistant Commissioner within whose sub-division such Institution or Endowment is situated. Sub-section (3) of Section 43 provides that notwithstanding anything in sub-section (1) no application for registration shall be necessary in the case of any institution or endowment which was duly registered and entered in the book of endowments before the commencement of the Act, under the Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act, 1966. Sub-section (4) of Section 43 says that every application made under sub-section (1) shall contain the particulars including the name of the founder, if any, and the names of the past and present trustees. We are not concerned in the instant case with the other particulars. Section 45 of the Act provides remedy to an aggrieved person of an entry or omission to make an entry in the register maintained under Section 43 may apply to the Deputy Commissioner for modification or annulment of such entry, or for directing the making of such entry, as the case may be. It is further provided that where any such application relates to the right claimed by the applicant in respect of such entry or omission, the Deputy Commissioner shall enquire into and decide the question as if it were a dispute within the meaning of Section 87 and the provisions of Chapter XII shall apply. It is obvious that the Deputy Commissioner is required to make an enquiry in case of the rival claim in respect of an entry or omission thereof and decide the same in accordance with law. Only then the Deputy Commissioner may have to decide the question as if it were a dispute within the meaning of Section 87 of the Act in respect of which the provisions of Chapter XII shall apply.

16. Admittedly, the Commissioner either suo niotit or on an application, is entitled to call for and examine the record of any Deputy Commissioner or Assistant Commissioner, or of any other Officer subordinate to him or of any Executive Officer or any trustee of a charitable or religious institution or endowment, other than a math or a specific endowment attached to a math in exercise of revisional power under Section 92 of the Act. The Commissioner is conferred with the jurisdiction to revise any administrative or quasi-judicial decision taken or order passed under the Act by the aforesaid authority. However, the Commissioner cannot exercise the revisional jurisdiction and revise any proceeding in respect of which a suit or an appeal or application, or reference to a Court is provided under the Act. Except such proceedings, the Commissioner is entitled to call for and examine the legality, propriety and the Correctness of any decision taken by any of the authorities under the Act.

17. It is sought to be contended that the order of the Assistant Commissioner dated 5-6-1997 in favour of the petitioner is an order passed under Section 43 of the Act in respect of which an application lies to the Deputy Commissioner which is required to be decided as if it were a dispute within the meaning of Section 87 of the Act. It is urged that the Commissioner in exercise of revisional jurisdiction cannot decide the legality and propriety of an order or proceedings in respect of which an application is provided under the Act. The. submission again is misconceived. It is true that a person aggrieved by an entry or omission to make an entry in the register maintained under Section 43 may apply to the Deputy Commissioner for modification or annulment of such entry, or for directing the making of such entry, as the case may be. Such application is required to be enquired into by the Deputy Commissioner as if it were a dispute within the meaning of Section 87 of the Act in respect of which the provisions of Chapter XII shall apply. Section 88 of the Act provides for an appeal against the decision of the Deputy Commissioner under Section 87 to the District Judge and within the limits of Municipal Corporation of Hyderabad to the Chief Judge, City Civil Court. In my considered opinion Section 45 of the Act provides for resolution of conflicting claims if any in respect of an entry in the register maintained under Section 43 of the Act. Only in such cases, the Commissioner cannot entertain any revision whatsoever. Where there are no rival claims in respect of an entry in the certificate of registration under Section 43 of the Act, the order passed by the Assistant Commissioner under Section 43 of the Act is a proceeding which is administrative in nature within the meaning of Section 92 of the Act. Such decision taken and order passed by the Assistant Commissioner is amenable to be corrected and interfered with by the commissioner in exercise of revisional jurisdiction.

18. In the instant case, the Commissioner desired to examine the correctness, legality or propriety of the order passed by the Assistant Commissioner dated 5-6-1997 recognising the petitioner herein as the member of the founder family of Sri Kanaka Durga Temple, Ameerpet, Hyderabad. There are no rival claims as such. Strictly speaking, the Assistant Commissioner of Endowments, Twin Cities, Hyderabad has not passed any order resolving any rival claim seeking an entry in the certificate of registration under Section 43 of the Act. There is no proceeding as such initiated by any person invoking the jurisdiction of the Deputy Commissioner by way of an application for resolving the dispute in relation to an entry or omission to make an entry in the register maintained under Section 43 of the Act. Only in such a case, the remedy under Section 92 of the Act may not be available. Under those circumstances, I am of the opinion that the Commissioner is entitled to exercise the revisional power under Section 92 of the Act.

19. Sub-section (4) of Section 92 of the Act says that every application to the Commissioner for the exercise of his power under Section 92 shall be preferred within ninety days from the date of which the order or proceeding to which the application relates was received by the applicant. Evidently, the revisional application may have to be preferred within a period of ninety days from the date of communication of the order to the aggrieved person. There is no limitation provided as such for exercising suo motu revisional power by the Commissioner. The limitation would apply only in case of revisional application by an aggrieved person and not when the power is sought to be exercised suo motu by the Commissioner. It is well settled that suo motu power of revision in respect of which no limitation is provided for by the statute is to be exercised within a reasonable period. What is reasonable period would depend upon the facts and circumstances of each case. In the instant case, there is no pleading whatsoever alleging that the Commissioner failed to exercise the revisional power within a reasonable period. On the other hand, it is contended that exercise of revisional power is barred by limitation. Therefore, this Court cannot go into the question as to whether the Commissioner exercised his power within a reasonable period. Suffice it to hold that the period of limitation of ninety days for preferring revision is not application in case of suo motu exercise of revisional jurisdiction by the Commissioner.

For all the aforesaid reasons, I do not find any merit in this writ petition.

However, the Commissioner shall proceed further in the matter pursuant to the impugned notice in accordance with law and decide the matter on its own merits uninfluenced by any of the observations made in this order, as this Court has not expressed any opinion whatsoever on the merits of the case.

20. The writ petition shall stand accordingly dismissed. No order as to costs.


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