HON’BLE SRI JUSTICE B. PRAKASH RAO AND HON’BLE SRI JUSTICE G. CHANDRAIAH A.S.Nos. 821/2008, 944/2008 and C.M.A.Nos.1248/2008, 1382/2008, 1459/2008, 1621/2008, 306/2009, 334/2009, 1314/2008, 181/2009 and 1455/2008 COMMON ORDER: (Per BPR, J) Since all these matters involved common question, which is arising on a Reference made by a learned single Judge as per the orders, dated 09-04-2009 passed in A.S.No.821/2008, C.M.A.Nos.1459/2008, 1621/2008, 306/2009 and 334/2009, they are taken up together for disposal. 2. At the outset, the questions, which have been referred by the learned single Judge in the order of Reference, read as follows: 1. Whether an Appeal would lie at all to the High Court as against the order made by the Deputy Commissioner of Endowments in O.A. in the light of the clear language of Section 88 of the Act? 2. Whether the remedy prior to the substitution of Section 88 by the present Amending Act i.e., Appeal to the District Court, would be available in the interregnum period till the Endowments Tribunal is constituted? 3. What is the scope and ambit of Section 88 of the Act and whether the term or expression “Endowments Tribunal” can be read as equivalent to the concerned Deputy Commissioner, Endowments Department, in the period of interregnum for the purpose of Section 88 of the Act? 4. Whether in the peculiar facts and circumstances, such aggrieved parties may have the remedy under Article 226 or Article 227 of the Constitution of India, as the case may be? 5. In the event of the Court coming to the conclusion that an Appeal be maintainable under Section 88 of the Act, whether the same to be numbered as a regular Appeal (A.S.) or a Civil Miscellaneous Appeal (C.M.A.)? 6. Inasmuch as in the interregnum period since the Endowments Tribunal had not been constituted till now, what would be the remedy available to the aggrieved parties of such orders? 3. For proper appreciation of the aforesaid questions as referred to, it necessitates to delve into the backdrop of the situating giving rise to these questions. In regard to the Charitable and Hindu Religious Institutions and Endowments, the State has enacted Act No.30 of 1987 under its name and style of ‘Andhra Pradesh Charitable and Hindu Religious Institutions & Endowments Act, 1987’, which has come into force w.e.f. 28-05-1987 vide G.O.Ms.No.504, Revenue (End.VI), dated 25-05-1987. The said Act repeals the earlier Act of Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act, 1966 (Act No.17 of 1966), through the provision under Section 155 thereon. Further, as per Section 156 of the said Act No.30 of 1987, certain provisions under central enactments were ceased to apply to charitable and religious institutions. Under the latest legislation, there have been various substantial changes in contradiction to the earlier situation. Further, even Act No.30 of 1987 has undergone some amendments later. 4. The present controversy is only in regard to the right of Appeal and Appellate Court or Authority as constituted thereunder. Under Chapter-XII of Act No.30 of 1987, enquiries are contemplated and Section 87 thereof confers the powers on the Deputy Commissioner to decide the disputes and other matters. For convenience sake, the said provision reads as follows: “87. Power of Deputy Commissioner to decide certain disputes and matters— (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, if so whether it is a charitable endowment or a religious endowment ; (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 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. (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 deem fit for safeguarding the interests of the institution or endowment and for preventing damage to or loss or misappropriation or criminal 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 (1) 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.” 5. As against the order or decision of the Deputy Commissioner or the Commissioner under Section 87 of Act No.30 of 1987 or under Section 119 thereof, the right of Appeal has been provided to the District Judge. It is now well established that a right of Appeal necessarily has to be provided for by the statute and there cannot be any presumptions or assumptions for enabling a party to prefer an Appeal to any Court or Authority unless it is prescribed. 6. As per Act No.33 of 2007, the aforesaid provision under Section 87 has undergone substantial change and variation and in place of the departmental authorities, who have been constituted to go into such disputes, an Endowments Tribunal is constituted. For convenience sake, the amended provision reads as follows: 87.(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, if so whether it is a charitable endowment or a religious endowment; (d) whether any property is a specific endowment; (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 from the family of the founder of an Institution or Endowment. (2) The Endowments Tribunal may, pending its decision under sub- section (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 sub-section (1) and pending implementation of such decision, pass such interim order as it may deem fit for safeguarding the interests of the institution or endowment and for preventing damage to or loss or misappropriation or criminal 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.” The said Act No.33 of 2007 was gazetted on 14-12-2007 and it has come into force w.e.f. 03-01-2008 as per the Notification issued in G.O.Ms.No.06, Revenue (Endowments-I) Department, dated 02-01- 2008. As per sub-section (5) of the aforesaid amended provisions under Section 87, it has been contemplated that until the constitution of the Endowments Tribunal, the Deputy Commissioner shall continue to exercise the powers of conducting enquiry and deciding the disputes referred to under sub-section (1). Admittedly, the Tribunal was not constituted for quite a long time, however, it is now represented by the counsel on either side that the Tribunal has already been constituted and the same is functioning. 7. The present Reference apparently arose at a situation when the said Tribunal was not constituted and therefore the practical problems cropped up as to the maintainability of the Appeal in regard to the decisions or orders passed by the Deputy Commissioner during the said interregnum period and whether the said authority itself is to be constituted as the Tribunal for the purpose of enabling the parties to prefer the Appeal to the District Court or to this Court. Therefore, in view of the fact that the Tribunal has already been constituted and there exist no such interregnum period, out of the questions referred above, question Nos.2, 3 and 6 do no longer subsist for consideration. 8. So far as the other questions referred at serial No.1, 4 and 5 are concerned, the same can be narrowed down to the query as to whether an Appeal would lie to the District Court as against the orders of the Deputy Commissioner, who was discharging the functions during such interregnum period as an Endowments Tribunal as provided for under the aforesaid provision. This question has already come up for consideration before one of us (BPR,J) in the decision reported in EXECUTIVE OFFICER, GROUP TEMPLES v. SRI SAKHIYA MATT, SRIKAKULAM[1], and it was held as follows: “A.P. Charitable and Hindu Religious Institutions and Endowments Act 1987 – Section 87(1)(a) to (h) – Application under – Dismissal of, filing of appeal against, before District Court, maintainability of – Against all orders passed under sub-clauses (a) to (h) under Section 87(a), appeal would lie only to High court, irrespective of fact that the same is presided over by Tribunal or Deputy Commissioner – Even though Deputy Commissioner initially passed order, fact remains that Deputy Commissioner only exercising all such powers in lieu of powers conferred on Endowments Tribunal as contemplated under Section 87 of Act – A right of appeal necessarily has to be provided by a statute and cannot be implied under any circumstances – In the circumstances, appeal, as filed and disposed of before District Court, held, not maintainable and necessarily, respondent has to approach High court alone – Even under Section 91, High court conferred with powers of revision only against orders, where no appeal provided, but not otherwise – CRP allowed – Impugned order set aside, as being without jurisdiction – District Court directed to return original papers of appeal to respondent therein to resubmit the same.” 9. In view of the aforesaid decision, virtually even the other questions also do no longer remain. 10. An attempt was made on behalf of Mr. Bankatlal Mandhani, one of the counsels appearing on behalf of the respondents, that certain aspects have not been considered in the said decision and therefore, the said decision cannot be an authority. It has been contended that even though no specific provision has been made conferring right of Appeal statutorily, however, having regard to the provisions of Section 6 of the General Clauses Act, necessarily it follows that no such Appeal would lie. 11. The said submission does not held any substance especially in view of the fact that the learned counsel has failed to point out any specific provision in regard to the Appeal even during the interregnum period. As long as the statute is totally silent in providing for such a right of appeal in any given situation, it cannot be said that by applying the principles of General Clauses Act, any presumption can arise for creation of an Appeal or making a provision thereof. There is no dispute across the Bar on the principle that the right of Appeal is to be borne out by the statute, but not otherwise. In the circumstances we are not prepared to accept the said submission or the objection raised on behalf of one of the respondents. 12. Coming to the last aspect as to whether the Appeals as preferred would have to be numbered as A.S. or C.M.A., as rightly pointed out by Sri P. Yadagiri Rao, learned senior counsel, as per Rule 167 of the Civil Rules of Practice, all Appeals under any special statutes have to be numbered only as C.M.A. Therefore, following the said practice, which is in vogue, and also supported by the aforesaid specific Rule, we do hold that all these Appeals have to be numbered only as C.M.A. but not as A.S. We also make it clear that even if some of the Appeals have been numbered as A.S., however, we direct the Registry to make necessary amendment by converting the same into C.M.A. 13. For the aforesaid reasons, the Reference stands answered. 14. Registry is directed to post these matters before the regular Court hearing them. ________________ B. PRAKASH RAO, J ________________ G. CHANDRAIAH, J Date: 24-01-2011 YCR [1] 2010 (5) ALD 739