IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) MONDAY, THE THIRTEENTH DAY OF JULY TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE GODA RAGHURAM WRIT PETITION NO : 8707 of 2002 Between: ..... PETITIONER AND .....RESPONDENT Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to Counsel for the Petitioner: MR.M.Y.K.RAYUDU Counsel for the Respondent No.: GP FOR ENDOWMENTS The Court made the following: THE HON’BLE SRI JUSTICE GODA RAGHURAM W.P.No. 8707 of 2002 13-07-2009 Oral Order: A direction to the respondent Nos. 1 to 4 to register a compromise dated 21-04-1990 or to register the compromise deed pursuant to the permission accorded by the 1st respondent in proceedings R.C.No.D2/23078/88-13 dated 31-03-1990 and to declare the Government Memo No. 72113/Endts.II(1)/2001-1 dated 09-05-2002, as arbitrary, illegal, inoperative and void, are the reliefs sought in the writ petition. There was a checkered and meandering course of litigation between the petitioner and the Endowment Department. It would appear that the Nizam granted five (5) Bams of land in survey No. 174 situate at Saidabad, Hyderabad in favour of Sri Omkarnatha Amba Pershad Brahmachari (for short ‘Brahmachari’) in 1898. Brahmachari established Sri Omkara Brahmachari Mutt and was conducting religious discourse thereat. Later he installed an idol of Sri Hanuman in the site granted by the Nizam. Brahmachari executed a will in 1910 authorizing his brother –Gurupershad to manage the affairs of the Mutt while residing thereat. His brother—Gurupershad was married while Brahmachari was a celibate. On the death of Brahmachari, Gurupershand is stated to have constructed a small house in 1911 in a site adjoining the site granted by the Nizam. (There is a dispute on this account -- the non- official respondents contend that the entire site including the residential portion is part and parcel of the land granted by the Nizam, whereas the petitioner contends that only 900 square yards was granted and the rest was acquired by the brothers Brahmachari and Gurupershad by occupying the land adjacent to the granted site). On the death of Gurupershad in 1951 his legal heirs – Rampershad and the petitioner – were managing the Mutt and conducting the rituals thereat. However in 1959 Rampershad registered the entire area as part of the Endowment of Sri Hanuman Temple declaring the extent of the property of the establishment as 2719 square yards including the site on which residential premises were in existence. Some land out of this total extent of 2719 square yards was occupied by the Municipal Corporation of Hyderabad towards road widening. Only 2000 square yards now remains including the part of the property where the temple is situate and the other part where there are residential buildings. After initiating certain proceedings under the provisions of the then Endowment Act, 1966, Rampershad, the brother of the petitioner herein, filed O.S.No. 141 of 1979 on the file of the learned Chief Judge, City Civil Court, Hyderabad, for a declaration that Sri Hanuman Temple is Sri Omkarnath Amba Pershad Brahmachari Mutt. The suit was dismissed and Rampershad preferred C.C.C.A.No. 36 of 1982 before this Court. The said appeal has been disposed of by the judgment of this Court dated 29-11- 1995. As there were regnant disputes between the heirs of Gurupershad and the Endowment Department with regard to the identity and title to the total extent of land of 2000 square yards, the petitioner mooted a proposal for compromise. After inter-departmental consultations at the Assistant Commissioner and Deputy Commissioner of Endowments level, the 1st respondent issued proceedings in purported exercise of powers under Section 89 of the Andhra Pradesh Charitable and Hindu Religious Institutions & Endowments Act, 1987 (for short ‘the 1987 Act’) permitting the Executive Officer of Sri Hanuman Temple, Saidabad, Hyderabad, to enter into a compromise in respect of land of 2000 square yards belonging to the temple with the writ petitioner, subject to the terms and conditions four (4) in number enumerated in the order of the 1st respondent dated 31-03-1990. The details of the terms and conditions are not relevant for the purposes of this lis. While so, one O. Saibaba purporting to be the Joint Secretary to the Government signed and communicated a Memo No. 72113/Endts.II(1)/2001-1 dated 09-05-2002 addressing the same to the 1st respondent – the Commissioner of Endowments Department, Hyderabad. The Memo reads as under:- The attention of the Commissioner of Endowments Department Hyderabad is invited to the reference cited and he is informed that after careful examination of the matter Government hereby cancel the compromise deed executed on 31-03-1990 in view of the failure of private parties to honour the original compromise deed. The Commissioner of Endowments Department is requested to take further action in the matter accordingly. This Memo is also challenged by way of an amendment to the relief sought in the writ petition (ordered by this Court in W.P.M.P.No. 21055 of 2002). While the Memo states that the Government hereby cancel the compromise deed executed on 31-03-1990, the learned Government Pleader for Endowments appearing in the matter is unable to produce any other order of the Government canceling the compromise deed dated 31-03-1990 passed by the 1st respondent. It is by the Memo dated 09-05-2002 itself that the compromise permission is cancelled. The Memo per se does not refer to any basis or authority for the exercise of the power enumerated therein. The learned Government Pleader for Endowments however states that Section 93 of the 1987 Act is the possible source of power by the State Government. Section 93 of the 1987 Act enable either suo motu or on an application made, power to the State Government to examine inter alia the record of the Commissioner of Endowment or any other officer subordinate to them, in respect of any administrative or quasi judicial or order passed under the provisions of the 1987 Act, to interfere with any such order or decision, if the Government is satisfied that the order or decision is either incorrect, illegal, improper or otherwise requires to be modified, annulled, reversed or remitted for reconsideration. The proviso to Section 93 (1) of the 1987 Act enjoins that the Government should not pass any order prejudicial to any party unless such party has had an opportunity of making representation. Even without the proviso the principles of natural justice which are an embedded aspect of constitutional governance qua Article 14 of the Constitution enjoin that no Government shall take any action prejudicial to any citizen or person without affording a reasonable opportunity to such affected person to show cause against a proposal adverse or prejudicial to the interests of such person. This is an ancient and well-established principle which has unfortunately escaped the attention of the Joint Secretary to the Government, the signatory to the Memo dated 09-05-2002. Had the Officer taken care to refer to the statutory provision i.e., Section 93 of the 1987 Act he would have at least benefited from the legislative guidance on this fundamental principle of administrative law. Unfortunately, the Officer did neither and proceeded to assume a praetorian power and issued the impugned Memo purporting to cancel the decision of the 1st respondent dated 31-03-1990 according permission to the Executive Officer of the Sri Hanuman Temple, Saidabad, Hyderabad to enter into a compromise with the petitioner and others. The Memo dated 09-05-2002 is passed without notice or opportunity to the petitioner, who has a vital interest in and is a beneficiary of the order of the 1st respondent dated 31-03-1990. The petitioner alleges that the Memo dated 09-05-2002 has been passed by the 6th respondent without notice and opportunity to him. The 6th respondent does not contest this assertion. The order also does not show that any natural justice process or the mandatory requirement of the provisions of Section 93 (1) of the 1987 Act was followed. What is even more curious is that while the power of review (under Section 93) is conferred on the Government and the Executive power of the State is enjoined by Article 166 (1) of the Constitution to be expressed in the name of the Governor of the State, the impugned Memo omits such invocation as is enjoined by Article 166 of the Constitution. The executive process appears to have become oblivious to the constitutional mandate that all executive action of the State shall be expressed to be taken in the name of the Governor of the State. Mere use of Government stationary or Government hardware or the signature of a Secretary to the Government does not invest an instrument with imprimatur of State action. The Constitution enjoins that all executive action of the State should be expressed to be taken in the name of the Governor of the State and it is that expression which invests the formality of State action on an Executive exercise of power. The impugned Memo dated 09-05- 2002 violates this elementary procedural principle as well. The Memo bearing reference No. 72113/Endts.II(1)/2001 dated 09-05-2002 is invalid and inoperative for violation of the mandatory requirement of opportunity postulated by the proviso to Section 93 (1) of the 1987 Act. It is accordingly quashed. Since the impugned Memo has been issued in transgression of a clear and explicit statutory provision and in violation of elementary principles of fairness, the action of the 6th respondent in issuing the memo constitutes a grossly negligent conduct. Therefore this Court considers it appropriate to allow the writ petition with costs quantified at Rs.5,000-00 (Rupees Five thousands only) of which Rs.2,000-00 (Rupees Two thousand only) shall be payable to the petitioner and Rs.3,000-00 (Rupees Three thousand only) to the Secretary, A.P. State Legal Services Authority, Hyderabad, within a period of four weeks from the date of receipt of a copy of this order. It is open to the State Government to identify the Officer responsible for such fundamentally misconceived and negligent administrative action and take steps to recover these amounts of costs from such officer instead of mulcting the public exchequer with this avoidable expenditure. The costs shall however be paid in the first instance by the State, but may be recovered from the Officer responsible after following the due process of law. Another substantive relief sought in the writ petition is that the respondent Nos. 1 to 4 be directed to execute a registered compromise deed pursuant to the permission accorded by the 1st respondent—Commissioner. The 4th respondent is the Executive Officer of the Sri Hanuman Temple, Saidabad, Hyderabad, who has been accorded permission by the proceedings of the 1st respondent dated 31-03-1990 to enter into a compromise with the petitioner in the context of the terms and conditions of the compromise set out in the 1st respondent’s proceedings dated 31-03-1990. In view of the context and contours of the powers of oversight and regulation conferred on the 1st respondent under the provisions of the 1987 Act, the 4th respondent is enjoined to act in accordance with the decision of the 1st respondent under Section 89 of the 1987 Act. The 4th respondent would therefore have to proceed to enter into a compromise in conformity with the terms and conditions set out in the proceedings of the 1st respondent dated 31-03-1990. From this course of action the 4th respondent has no escape. The 4th respondent is accordingly directed to proceed to act in conformity with the orders of the 1st respondent dated 31-03-1990. This order does not preclude the exercise of any available statutory or other power by any authority nor does it foreclose the rights of any of the parties to these proceedings to seek appropriate remedies in accordance with law, in respect of the proceedings dated 31-03-1990 of the 1st respondent. The writ petition is allowed as above, with costs. ____________________ GODA RAGHURAM, J Dated: 13-07-2009 Pvks Note: A copy of this order be communicated to the Secretary, A.P. State Legal Services Authority, Hyderabad. B/o pvks/*