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2006 (6) ALT 84
GODA RAGHURAM, J.
Writ Petition No. 13493 of 2006
Decided on 31-7-2006.
Alaparthi Venkata Chalapathi Rao
vs.
Commissioner of Endowments and another
Advocate Appeared
Mr. M. Vidya Sagar, Advocate for the Petitioner.
G.P. for Endowments for the Respondents.
Held : On a true and fair construction of the provisions of sub-section (3) of Section 87 of the Act, the inference is compelling that ever decision or order of a Deputy Commissioner in exercise of the power, authority and jurisdiction under Section 87 (1) of the Act requires a publication in the prescribed manner and the condition precedent for a publication is a confirmation by the Commissioner. The raison d etre of this requirement appears to be that as a raft of powers are conferred on the Deputy Commissioner including declaration as to whether an institution or endowment is a public religious or charitable institution or endowment; whether any person if 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; 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; whether any person has a rightful claim to being a member of the founder s family; and other core areas of determination, of vital interest to the regulatory powers under the Act, the Legislature thought it appropriate to condition the initial exercise of power by the Deputy Commissioner by a supervening requirement of confirmation by the Commissioner to ensure an internal regularity and supervision over the exercise of statutory powers by the Deputy Commissioner concerned.
In the context of the provisions of subsection (3) of Section 87, the specification in sub-section (5) of Section 87 of the Act, that a decision or order that the Deputy Commissioner is deciding whether an institution or endowment is a public institution or endowment requires confirmation by the Commissioner must be considered an ex-abundant cautela enactment reiterating specifically and emphatically what already is enacted in sub-section (3) of Section 87 of the Act. It is a well established principle of statutory interpretation that legislature occasionally if not often employs ex-abundant cautela provisions either for emphasizing a particular mandate or to avoid occasions for disputation. Sub-section (5) of Section 87 of the Act is an illustration of such genre of legislative drafting. That is also a harmonious way of construction of the provisions of sub-sections (3) and (5) of Section 87 of the Act without doing violence to either.
For the aforesaid reasons and on the aforesaid analysis, the impugned order of the 1st respondent declining confirmation of the order of the 2nd respondent (declaring the petitioner to be a member of founder s family) suffers from no inherent lack of incompetence or a jurisdictional error, warranting judicial ~view under Article 226 of the Constitution of India.
Since the order of the 1st respondent has been principally impeached on the ground of inherent lack of competence qua the provisions of Section 87 (5) of the Act and since the Court hereinabove has found, on an interactive analysis of sub-sections (3) and (5) of Section 87 of he Act, that the order of he the 1st respondent suffers from no infirmity on that count and since the petitioner has an effective alternative remedy by way of an appeal under Section 88 of the Act to the District Judge, which is an appellate jurisdiction, wider than judicial review, this Court is not inclined to entertain the impeachment of the order of the 1st respondent on merits. The order is upheld on the limited ground of jurisdiction.
A short and interesting question as to the purport of sub-sections (3) and (5) of Section 87 of the Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act, 1987 (for short the Act) falls for consideration in this case.
2. The petitioner assails the order of the 1 5t respondent bearing RC. No. D/1 /17641 /06 dated 30-05-2006 whereby the order of the 2nd respondent dated 18-02-2006 has been declined confirmation by the 151 respondent and rejected.
3. The 2nd respondent, by the order dated 18-02-2006 in a.A.No.74 of 2005 declared the petitioner to be a grandson of Alaparthi Venkatachalam, the founder of Sri Alaparthamma Ammavari Temple, Allaparru village, Nagaram Mandai, Guntur district and therefore a member of the founders family. O.A. was allowed as was the claim for recognition as a member of the founders family.
4. By the impugned order, the 1st respondent recorded that the 2nd respondent had taken up O.A. No. 74 of 2005 for trial on several dates and finally on 18-02-2006 and after reserving for orders on 18-02-2006, orders were passed on the same day. The 15t respondent further held that it was mandatory for the 2nd respondent to seek confirmation by the 151 respondent, the orders passed by him, under Section 87 (3) of the Act and that the action of the 2nd respondent in communicating his order dated 18-02-2006 was an irregular act. The impugned order further records that the villagers of Allaparru had filed objections to the publication of the petitioners claim inviting objections on 05-09-2005 and requested an opportunity of being heard on the petitioners claim, but the 2nd respondent had determined the petitioners claim without hearing the villagers. For these reasons, the 1st respondent declined to accord confirmation and rejected the 2nd respondents decision declaring the petitioner as a member of the founders family of Sri Alaparthamma Ammavari Temple, Allaparru village.
5. The learned counsel of the petitioner Sri M. Vidyasagar contends that in view of the provisions of Section 87 (5) of the Act only a decision or order of the Deputy Commissioner (exercising power under Section 87 of the Act), determining that an institution or endowment is not a public institution or _ endowment, requires confirmation by the Commissioner as a condition precedent to its effectuation. Section 87 (5) of the Act reads as under:
"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 impugned order of the 1st respondent sets out that an order of the 2nd respondent recognizing the petitioner as a member of the founders family being an order, referable to the 2nd respondents power, authority and jurisdiction under Section 87. (1)(h) of the Act, also requires confirmation by the 1st respondent in view of the provisions of Section 87 (3) of the Act. Sub-section (3) of Section 87 of the Act reads as under:
"Every decision or order of the Deputy Commissioner on confirmation by the Commissioner under this Section shall be published in the prescribed manner."
7. Sri M. Vidyasagar, learned counsel for the petitioner contends that since in terms, sub-section (5) of Section 87 of the Act enacts the requirement of confirmation by the Commissioner of only order of the Deputy Commissioner that declares the public character of a charitable or religious institution or endowment, the provisions of subsection (3) of Section 87 of the Act which enact that every decision or order of the Deputy Commissioner shall be published only on its confirmation by the Commissioner, must be restrictively construed as a requirement of confirmation and eventual publication of only an order of the Deputy Commissioner that a charitable or religious institution or endowment is not a public institution or endowment and not every order of the Deputy Commissioner exercising
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