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Andhra Pradesh High Court
Judges : C.KONDAIAH, N.KUMARAYYA
Satya Pramoda Teertha Swamuluvaru - Appellant
Versus
Commissioner of Hindu Religious and Charitable Endowments, A.P., Hyderabad - Respondent
Decided On : 04-24-70
MADRAS HINDU RELIGIOUS AND CHARITABLE ENDOWMENTS ACT, 1951 - SECTION 57(A) - ANDHRA PRADESH CHARITABLE AND HINDU RELIGIOUS INSTITUTIONS AND ENDOWMENTS ACT, 1966 - SECTION 109(3) - ANDHRA PRADESH GENERAL CLAUSES ACT, 1891 - SECTION 8(D) AND 8(F) - RIGHT OF APPEAL - SAVING OF VESTED RIGHTS - REPEAL OF ACT - EFFECT.
Fact of the Case:
The petitioner, the head of Uttaradi Mutt, filed an application under Section 57(a) of the Madras Hindu Religious and Charitable Endowments Act, 1951, for a declaration that Uttaradi Mutt was not a public institution within the meaning of the Act and hence, it was not amenable to the jurisdiction of the Endowments Department. The application was dismissed by the Deputy Commissioner on December 16, 1965. The appeal preferred against the decision of the Deputy Commissioner, under Section 61(1) of that Act to the Commissioner for Hindu Religious and Charitable Endowments on February 23, 1966, was pending before him on the date of the coming into force of the Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act (XVII of 1966) i. e. on 26-1-1967. The appeal was rejected by the Commissioner on July 19, 1967, on the ground that he had no jurisdiction to dispose of the same after the passing of the present Act. The Writ Petition No. 3291/67 questioning the validity of the aforesaid order of the Commissioner was dismissed by Chinnappa Reddy, J. on the ground that the right of appeal possessed by the petitioner under the earlier Act perished, with the repeal of that Act. Aggrieved by that decision, this Writ Appeal has been filed by the appellant.
Finding of the Court:
The right of appeal accrued to the petitioners under Section 61(1) and a right of regular suit in a competent Civil Court and an appeal to the High Court therefrom are substantive right which are preserved by application of the provisions of Section 8(d) and 8(f) of the Andhra Pradesh General Clauses Act. 1981, unless they are specifically taken away by the provisions of the repealing Act either expressly or by necessary intendment.
Issues: Whether on the facts and in the circumstances the right of appeal possessed by and accrued to the Writ Petitioners under Section 61 (1) of the Madras Act 19 of 1951 is destroyed by the repealing Act or is saved and preserved by sub-section (3) to Section 109 of the Andhra Pradesh Act 17 of 1966 read with Section 8 (d) and (f) of the Andhra Pradesh General Clauses Act.
Ratio Decidendi: 1. The right of appeal is a vested right and such a right to enter the superior Court accrues to the litigant and exists as on and form the date the is commences and although it may be actually exercised when the adverse judgment is pronounced such right is to be governed by the law prevailing at the date of the institution of the suit or proceedings and not by the law that prevails at the date of its decision or at the date of the filing of the appeal. 2. This vested right of appeal can be taken away only by subsequent enactment. if it so provides expressly or by necessary intendment and not otherwise. 3. The mention of particular matters in Section 109 of the Andhra Pradesh Act 17 of 1966 shall not be held to prejudice or affect the general application of sections 8 and 18 of the Andhra Pradesh General Clauses Act, 1981, with regard to the effect of repeals.
Final Decision: The writ appeal and the writ petitions are allowed with costs payable by the Commissioner. Advocates fee Rs. 100/- in each.
( 1 ) AS the point involved in these cases is common, they are disposed of by a common judgment.
( 2 ) IT is sufficient to state the facts in Writ Appeal No. 599 of 1969: The application filed by the Writ Petitioner Sri Satya Pramoda Teertha Swamulavaru, Head of the Uttaradi Mtt under Section 57 (a) of the Madras Hindu Religious and Charitable Endowments Act (XIX of 1951) for declaration that Uttaradi Mutt was not a public institution within the meaning of the Act and hence, it was not amenable to the jurisdiction of the Endowments Department, was dismissed by the Deputy Commissioner on December 16, 1965. The appeal preferred against the decision of the Deputy Commissioner, under Section 61 (1) of that At to the Commissioner for Hindu Religious and Charitable Endowments on February 23, 1966 was pending before him on the date of the coming into force of the Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act (XVII of 1966) i. e. on 26-1-1967. The appeal was rejected by the Commissioner on July 19, 1967 on the ground that he had on jurisdiction to dispose of the same after the passing of the present Act. The Writ Petition No. 3291/67 questioning the validity of the aforesaid order of the Commissioner was dismissed by Chinnappa Reddy, J. on the ground that the right of appeal possessed by the petitioner under the earlier Act perished, with the repeal of that Act. Aggrieved by that decision, this Writ Appeal has been filed by the appellant.
( 3 ) MR. T. S. Narasinga Rao and Mr. T. Laxmaiah, learned counsel for the Writ Petitioners, contend that the right of appeal accrued to their clients on the date of the coming into force of the present Act is saved by Sub-sec. (3) to Section 109 of the repealing Act read with Section 8 (d) and (f) of the Andhra Pradesh General Clauses Act, 1891. This claim of the petitioners is opposed by the learned Government Pleader contending inter alia that the right of appeal possessed by the petitioners under the repealed Act has been taken away by the repealing Act and in any even, Section 8 of the Andhra Pradesh General Clauses Act is not attracted; there is not forum available under the present Act to entertain the appeals filed under Section 61 (1) of the repealed Act.
( 4 ) THE question that arises for decision is: Whether on the facts and in the circumstances the right of appeal possessed by and accrued to the Writ Petitioners under Section 61 (1) of the Madras Act 19 of 1951 is destroyed by the repealing Act or is saved and preserved by sub-section (3) to Section 109 of the Andhra Pradesh Act 17 of 1966 read with Section 8 (d) and (f) of the Andhra Pradesh General Clauses Act.
( 5 ) FOR a proper appreciation of the respective contentions of the parties, it is necessary to set out the relevant provisions of the repealed as well as the repealing Act. The Deputy Commissioner was invested with the power to enquire and decide the disputes and matters specified under Section 57 of the repealed Act. A right of appeal to the Commissioner against the decision of Commissioner against the decision of the Deputy Commissioner was provided by Section 61 (1) of that Act. The Commissioner under the present Act is not empowered to hear any appeals against the decisions of the Deputy Commissioner under Section 77 of the new Act. However, a right to institute a regular suit in the District Court within a year from the date of the decision of the Deputy Commissioner is provided by Section 78 of the repealing Act. The Commissioner and the Deputy Commissioner have been defined as persons appointed have been defined as persons appointed under Section 3 (1) of the present Act. State Government is empowered to appoint a Commissioner, joint Commissioners, Deputy Commissioners and Assistant Commissioners for purposes and of exercising the powers conferred on and performing the duties and functions entrusted to them by or under the Act.
( 6 ) SECTION 109 of the repealing Act deals with
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