IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE TWENTY FIFTH DAY OF NOVEMBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION NO : 22551 of 2008 Between: P. Sugunakar Reddy S/o. P.Ramachandra Reddy R/o. Pymagam Village, Tavanampalle Mandal, Chittoor district. ..... PETITIONER AND 1 The Deputy Commissioner of endowments, Kurnool. 2 The Commissioenr of Endowments, Boggulkunta, Tilak Road, Hyderabad. 3 Sri Veera Anjaneya Swamy Temple, Argonda Village, Tavanampalle Mandal, Chittoor District, rep. by its Executive Officer. .....RESPONDENTS 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 issue a writ order or direction more particularly in the nature of writ of Mandamus declaring the action of the first respondent i.e. the Deputy Commissioner of Endowments, Kurnool sending O.A. No. 11 of 2007 dated 28-08-2008 to the second respondent i.e. the Commissioner of Endowments for confirmation as illegal, arbitrary and the action suffering from inherent lack of jurisdiction as contemplated in Endowments Act 33/207 and be pleased to pass such other and further orders as it deem fit ad proper. Counsel for the Petitioner: SRI M.VIDYASAGAR Counsel for the Respondent No.: GP FOR ENDOWMENTS The Court made the following : THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN Writ Petition No. 22551 of 2008 Order: Questioning the action of the first respondent, in sending the order passed by him in O.A. No. 11 of 2007 dated 28.08.2008 to the Commissioner of Endowments for confirmation, the present writ petition is filed. The contention of the petitioner, in short, is that consequent to the amendment of Section 87 of the Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act, 1987 (for short ‘the Act’), by Act 33 of 2007, with effect from 03.01.2008, the earlier requirement of the order of the Deputy Commissioner being confirmed by the Commissioner has been statutorily dispensed with and, therefore, the very act of the Deputy Commissioner, in sending his order to the Commissioner for confirmation, besides being contrary to the provisions of the amended Section 87, is also arbitrary and illegal. Heard Sri M. Vidya Sagar, learned counsel for the petitioner and the learned Government Pleader for Endowments. With their consent the writ petition itself is finally heard and disposed of at this stage. This Court, by order dated 16.10.2008, was of the view, prima facie, that, as a result of the amendment caused to Section 87, confirmation was no longer necessary and, consequently, the Deputy Commissioner was directed to issue the order passed by him in O.A. No. 11 of 2007 without seeking any confirmation from the Commissioner. Section 87 of the Act, prior to its substitution by Act 33 of 2007, read thus: 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 in 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 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 Commissioner may, pending his decision under sub-sec.(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 of 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-sec.(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. Under sub-section (5) thereof a 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. As noted herein above Section 87 of the Act, in its entirety, was amended by Act 33 of 2007 with effect from 03.01.2008. The amended Section 87 reads thus. 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 in 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; (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- sec.(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-sec.(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 dispute referred to in sub-section (1) until the constitution of the Endowments Tribunal. Learned Government Pleader for Endowments would submit that, as the Endowments Tribunal has not been constituted, it is the Deputy Commissioner who continues to exercise jurisdiction under the amended Section 87(5) of the Act and, as his order required confirmation by the Commissioner under the pre-amended Section 87(3), the impugned action of the first respondent, in referring his order to the Commissioner for confirmation, cannot be termed to be illegal. I must express my inability to agree. Under sub-section (5) of Section 87, as amended by Act 33 of 2007, notwithstanding contained any in the Section, the Deputy Commissioner having jurisdiction is empowered to enquire into and decide the disputes referred to in sub- section (1). Sub-section (1) of Section 87, as amended by Act 33 of 2007, prescribes the manner and the disputes which the Endowments Tribunal has jurisdiction to enquire into. Clauses (a) to (h) thereunder are matters which the Tribunal has been empowered to enquire and decide. The powers of the Deputy Commissioner, under the amended Section 87(5), is to decide those disputes enumerated in clauses (a) to (h) of sub-section (1) of Section 87 as amended by Act 33 of 2007. The legislature, in its wisdom, thought it fit to confer jurisdiction on the Deputy Commissioner to decide such disputes till an Endowments Tribunal is constituted. It, however, did not, as provided under the pre- amended Section 87(3), require the order of the Deputy Commissioner to be subjected to confirmation by the Commissioner. In view of the amendment to Section 87 the orders of the Deputy Commissioner, passed in exercise of the powers conferred on him under Section 87(5) read with Section 87(1) of the Act, as amended by Act 33 of 2007, do not require confirmation of the Commissioner. The action of the Deputy Commissioner in referring his order to the Commissioner for approval is ultravires Section 87 of the Act, as amended by Act 33 of 2007, and is, therefore, illegal. The order of the first respondent, to the limited extent he referred it to the Commissioner for his approval, is set aside. The writ petition is allowed. However, in the circumstances, without costs. __________________________ RAMESH RANGANATHAN, J. Date: 25.11.2008 Nsr