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PETITIONER: PAVANI SRIDHARA RAO.

       Vs.

RESPONDENT: GOVERNMENT OF ANDHRA PRADESH & ORS.

DATE OF JUDGMENT:       29/02/1996

BENCH: MAJMUDAR S.B. (J) BENCH: MAJMUDAR S.B. (J) BHARUCHA S.P. (J)

CITATION:  1996 AIR 1334            JT 1996 (3)   430  1996 SCALE  (2)705

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T S.B. Majmudar, J:      These two  appeals by  special leave have been moved by the common  appellant against  the judgment and order of the Division Bench of the Andhra Pradesh High Court by which the Division Bench  dismissed one  writ appeal  and another writ petition moved  by the  appellant before the High Court. The Government of  Andhra Pradesh;  the  Commissioner  of  Hindu Religious and Charitable Endowments, Hyderabad; the Deputy Commissioner  of   Endowments,  Guntur   and  the  Assistant Commissioner of  Endowments, Ongole,  Prakasam District, are the common  respondents in  these appeals.  A  few  relevant facts are required to be noted to highlight the grievance of the appellant.      The appellant filed Writ Petition No.531 of 1980 before the Andhra  Pradesh High Court being aggrieved by Memorandum dated 30.12.1978  issued by  Respondent No. 1, Government of Andhra  Pradesh,   represented  by  its  Secretary,  Revenue (Endowments) Department  by which the order dated 30.05.1978 passed by  Respondent No.2,  Commissioner of Hindu Religious and Charitable Endowments, was confirmed. That writ petition came to  be dismissed  by  the  learned  Single  Judge.  The appellant carried  the matter  in appeal which was dismissed by the  impugned judgment.  The facts  leading to  the  said petition are  that a saintly person named Tummala Venugopala Swamy came to the village of the appellant and expressed his desire  to   engage  himself  in  peaceful  meditation.  The appellant gave  him a  site and constructed an Ashram in the land belonging  to him  being Survey  No.201 of Mogilicherla Village. The  Ashram was  constructed out  of  the  donation received from  one B.  China  Meera  Setty.  On  06.05.1976, Venugopala Swamy  passed away.  A Samadhi was constructed in the place  of Ashram  which became  a centre for pilgrimage. This Ashram  was known  as Sri  Dattatreya Swamy Mandiram. A total area of three acres of land was dedicated for the said

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purpose by the appellant.      Respondent  No.2   passed  an  order  dated  30.05.1978 appointing an  Executive  Officer  for  this  Mandiram.  The appellant being  aggrieved by  the said  order  preferred  a revision before  the Government  which  was  dismissed.  The appellant then filed Writ Petition No.531 of 1980 before the Andhra Pradesh  High Court.  As noted  earlier, the  learned Single Judge  dismissed the  writ petition.  Thereafter, the appellant filed  a writ  appeal before the Division Bench of the High Court. In the meantime, an order was passed in 1987 precisely on  29.06.1987 by  Respondent No.4,  the Assistant Commissioner of  Endowments, Ongole,  after the dismissal of the writ  petition by  the learned Single Judge. By the said order of  29.06.1987 which was a consequential order flowing from the  earlier order  of 30.05.1978 the Executive Officer of the temple was invited to immediately take over charge of the temple from the appellant de facto managing trustee. The appellant, therefore,  challenged the  said order  by filing the writ petition being Writ Petition No.10016 of 1987. That was clubbed with the pending aforesaid writ appeal. Both the writ petition  and the  writ appeal  were dismissed  by  the Division Bench of the High Court by its impugned judgment.      The Division  Bench of  the High  Court in the impugned judgment took  the view  that  the  earlier  order  of  1978 continued to  operate  despite  the  repeal  of  the  Andhra Pradesh Charitable  and  Hindu  Religious  Institutions  and Endowments Act,  1966 (in  short ‘1966  Act’) by  the latter 1987 Act  bearing the  very same caption. The High Court did not consider the main grievance of the appellant against the order of  1978, namely,  that it  was passed  without  there being any  basis for  passing such  an order.  The  Division Bench of  the High Court, as noted above, dismissed both the writ appeal and the writ petition.      Learned counsel  for the appellant vehemently contended that leaving aside the question whether the earlier order of 1978 survived  after the enactment of 1987 Act replacing the earlier Act,  even for  passing such order of 1978 there was no material  with the  respondent-authorities and  the order was passed  without application  of mind  and was  null  and void. It appears that this argument was not canvassed before the High  Court firstly at the stage of writ petition before the learned  Single Judge  nor in  writ appeal.  However, as this question  goes to  the root  of the  matter,  we  heard learned counsel  for both  the sides  on this  question. The impugned order  at  page  23  of  the  paper-book  is  dated 30.05.1978. It  was passed  with reference  to a  memorandum dated  14.04.1978  issued  by  the  Assistant  Commissioner, Endowments Department, Ongole. The impugned order was passed in the  light of  the aforesaid Memorandum dated 14.04.1978. The relevant recitals therein read as under :-           "In the circumstances reported      by  the   Assistant   Commissioner,      Endowments Department,  Ongole, and      in the  interests of public service      and for  the better  management  of      the  Institution,   the   Executive      Officer of  Temples, Malakonda,  is      appointed as  Manager in additional      charge to  Sri Dattatraya Mandiram,      Mongilicherla  (Village),  Kandukur      Tq., Prakasam District.           The   Manager   appointed   is      directed  to   take  over  complete      charge   of    records,   accounts,      moveable and  immoveable properties

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    etc.,    from     the     executive      authorities    of    the    Subject      Institution." A mere  look at  these recitals shows that only on the basis of Memorandum  dated  14.04.1978  passed  by  the  Assistant Commissioner, endowments  Department, Ongole, the said order was passed.  We wanted  to know from the learned counsel for the respondents whether there was anything on record to show that at the relevant time the temple was mismanaged or there was any reason for invoking the power under the 1966 Act for passing the  impugned order.  We also wanted to know whether the Memorandum dated 14.04.1978 issued from the Assistant Commissioner’s Office  was on  record. He fairly stated that there was  no such  evidence on  record. In this view of the matter, the conclusion is inevitable that the impugned order was passed  without  application  of  mind  there  being  no factual basis for invoking the jurisdiction of the competent authority under  Section 27  of the 1966 Act under which the impugned order  came to  be passed on 30.05.1978. It is true that at  the relevant  time the  annual income of the temple was not less than Rs.10,000/- and did not exceed Rs.2 lakhs. It is  also true  that as per sub-section 2(a) of Section 27 of 1966  Act, it was provided that in case of any charitable or religious  institution or  endowment, whose annual income was not less than Rs.10,000/- but did not exceed Rs.2 lakhs, the Commissioner  could appoint  an  Executive  Officer  for discharging the  duties of such institution or endowment for exercising the  powers and  discharging the duties conferred on him  by or  under that Act. However, that power had to be exercised on  relevant  data  and  on  necessary  facts  and material. It  could not  be exercised  just offhand  without there  being  any  necessity  for  appointing  an  Executive Officer for  the temple in public interest. Nothing could be pointed out  from the  record of  this case  by the  learned counsel for  the respondents  as to  why  i  f  was  in  the interest  of   public  and  for  better  management  of  the institution, that  an Executive  Officer was to be appointed in 1978.  Only  on  this  short  ground  these  appeals  are required to  be allowed. The impugned order dated 30.05.1978 will stand  quashed and  set aside.  We do  not express  any opinion on the finding of the High Court that the said order remained operative  even after  the 1987  Act. We  keep that question  open.   So  far  as  the  subsequent  order  dated 29.06.1987 is concerned, a mere look at the said order shows that it  was solely  based on the order dated 30.05.1978 and was passed  consequent on the dismissal of the writ petition by the learned Single Judge of the High Court on 18.02.1987. It is  not an  independent order  issued under the 1987 Act. Once the  main order  of 30.05.1978 fails, the consequential order necessarily must give way and must also fall with it.      In the  result, these  appeals are  allowed.  Both  the impugned  orders  i.e.  order  dated  30.05.1978  issued  by Respondent No.2  and the  order dated  29.06.198? issued  by Respondent No.4 are quashed and set aside. The common orders of the  Division Bench of the High Court are set aside. Writ Appeal No.456  of 1987  and Writ  Petition No.10016  of 1987 will stand allowed.      However,  we  may  note  one  contention  canvassed  by learned counsel  for the  respondents. He  submitted that by subsequent order  dated 29.03.1979,  Respondent No.3, Deputy Commissioner, Endowments  Department, Guntur,  had appointed the appellant  as hereditary trustee of the Ashram, that the said order  did not  survive after the 1987 Act as office of the hereditary  trustee was  abolished by  this Act and that the 1987  Act was  upheld by  this  Court  in  the  case  of

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Pannalal Bankilal  & Ors. etc. vs. State of andhra Pradesh & Anr .  (1996 (1)  Scale 405). In our view this aspect is not much relevant  at this stage. We are concerned here with the legality of the 1978 order. Even if the office of hereditary trustee was  abolished by  the 1987  Act, the same could not retrospectively validate  the 1978 order, It would of course be open  to the respondents to pass appropriate orders under the  1987  Act  in  accordance  with  law,  so  far  as  the functioning of  the present temple is concerned. Exercise of that power  on the  part of  the respondents will not in any way stand  affected  by  the  present  proceedings  and  the decision rendered by us herein. If and when such an order is passed under  the 1987  Act, it  will equally by open to the appellant to challenge it in accordance with law.      Subject to  the aforesaid clarifications, these appeals are allowed.  In the  facts and  circumstances of  the case, there will be no order as to costs throughout.