A suit filed under the old Act, which was pending on the date of commencement of the new Act, has to be continued as an appeal instituted under the new Act.

Headnote:
ENDOWMENTS ACT - NOTIFICATION - A.P. CHARITABLE AND HINDU RELIGIOUS INSTITUTIONS AND ENDOWMENTS ACT, 17 OF 1966 - SECTIONS 6(C)(I), 77(1)(A)(B)(D), 87, 88, 155(2)(D) - A.P. CHARITABLE AND HINDU RELIGIOUS INSTITUTIONS AND ENDOWMENTS (AMENDMENT) ACT, 30 OF 1987 - SECTIONS 24(3)(A), 87, 88 - REMAND - APPEAL - SUIT - JURISDICTION - LEGAL FICTION - INTERPRETATION - RETROSPECTIVE EFFECT - REMEDY - STATUTORY PROVISIONS - COURT ANALYSIS AND CONCLUSION - The court held that the suit filed by the plaintiff-Assistant Commissioner of Endowments, Vijayawada against the two defendants viz. (i) Sri Vigneswara Swamy Devasthana Sangham and (ii) the Deputy Commissioner of Endowments, Kakinada to set aside the order dated 29.06.1989 of the second defendant in O.A. No. 89 of 1979, which was filed for a declaration that the first defendant Sangham and its properties are not a Public Charitable and Religious Institutions governed by the Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act, 17 of 1966, was not maintainable and should have been treated as an appeal under Sections 88 and 155(2)(d) of the New Act. The court further held that the remedy available to an aggrieved party against a decision of the Deputy Commissioner under the old Act was to institute a suit, but the remedy now provided under the new Act against such a proceeding, namely, an appeal is, now available to the aggrieved party. Hence, the suit will have to be continued as an appeal instituted under the new Act.
Fact of the Case:

The plaintiff-Assistant Commissioner of Endowments, Vijayawada filed a suit against the two defendants viz. (i) Sri Vigneswara Swamy Devasthana Sangham and (ii) the Deputy Commissioner of Endowments, Kakinada to set aside the order dated 29.06.1989 of the second defendant in O.A. No. 89 of 1979, which was filed for a declaration that the first defendant Sangham and its properties are not a Public Charitable and Religious Institutions governed by the Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act, 17 of 1966.
Finding of the Court:

The court held that the suit filed by the plaintiff-Assistant Commissioner of Endowments, Vijayawada against the two defendants viz. (i) Sri Vigneswara Swamy Devasthana Sangham and (ii) the Deputy Commissioner of Endowments, Kakinada to set aside the order dated 29.06.1989 of the second defendant in O.A. No. 89 of 1979, which was filed for a declaration that the first defendant Sangham and its properties are not a Public Charitable and Religious Institutions governed by the Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act, 17 of 1966, was not maintainable and should have been treated as an appeal under Sections 88 and 155(2)(d) of the New Act. The court further held that the remedy available to an aggrieved party against a decision of the Deputy Commissioner under the old Act was to institute a suit, but the remedy now provided under the new Act against such a proceeding, namely, an appeal is, now available to the aggrieved party. Hence, the suit will have to be continued as an appeal instituted under the new Act.
Issues: Whether the judgment and decree dated 23.12.1997 of the III Additional District Judge, Vijayawada in O.S. No. 6 of 1985 are correct and in accordance with the provisions of Act 17 of 1996 and Act 30 of 1987?
Ratio Decidendi: The court relied on the following legal principles in reaching its decision: * A suit which was instituted under the old Act is a proceeding which was pending on the date of commencement of the new Act, and the remedy now provided under the new Act against such a proceeding, namely, an appeal is, now available to the aggrieved party. * The remedy available to an aggrieved party against a decision of the Deputy Commissioner under the old Act was to institute a suit, but the remedy now provided under the new Act against such a proceeding, namely, an appeal is, now available to the aggrieved party. * Hence, the suit will have to be continued as an appeal instituted under the new Act.
Final Decision: The impugned judgment and decree is set aside. The present appeal is remanded to the Court of the Principal District Judge, Machilipatnam, who shall treat the remanded matter as an appeal and proceed to determine the same. The remanded appeal should be disposed within three months of receipt of a copy of this order.

JUDGMENT :

D.V.S.S. SOMAYAJULU, J.

1. This appeal is filed by the first defendant against the judgment and decree dated 23.12.1997 in O.S. No. 6 of 1985 passed by the III Additional District Judge, Vijayawada.

2. The suit O.S. No. 6 of 1985 was filed by the plaintiff-Assistant Commissioner of Endowments, Vijayawada against the two defendants viz. (i) Sri Vigneswara Swamy Devasthana Sangham and (ii) the Deputy Commissioner of Endowments, Kakinada to set aside the order dated 29.06.1989 of the second defendant in O.A. No. 89 of 1979, which was filed for a declaration that the first defendant Sangham and its properties are not a Public Charitable and Religious Institutions governed by the Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act, 17 of 1966.

3. The averments of the plaint in brief are that on 06.08.1999 the first defendant Sangham was published/declared under Section 6(c)(i) of the Act 17 of 1966 by the Commissioner of Endowments as a Charitable Institution. The Committee of the first defendant Sangham used to submit their budget every year and obtain sanction of the Endowments Department and also pay necessary contribution to the Department. The Asst. Commissioner issued a notice for constitution of the Trust Board under Section 15 of the Act to have control and management over the Sangham. The President and Secretary applied for being appointed as non-hereditary trustees, but their request was not granted and the Trust Board was constituted with different persons by the Asst. Commissioner, through order dated 24.03.1979. Aggrieved by the said order, the Secretary of the first defendant Sangham filed a suit O.S. No. 110 of 1979 before the Subordinate Judge, Vijayawada questioning the constitution of the Trust Board and for other reliefs. He also filed a petition u/s. 77(1)(a)(b)(d) of the Act 17 of 1966 before the second defendant-Deputy Commissioner of Endowments, Kakinada in O.A. No. 89 of 1979 for a declaration that the first defendant Sangam and its properties are not governed by the Endowments Act 17 of 1966 and to restrain the plaintiff from appointing the non-hereditary trustees. After considering the matter, the second defendant passed an order dated 22.06.1984 declaring that the first defendant Sangham is a private institution intended for the benefit of the members of the Sangham only and outsiders are not entitled as of right to visit the temple and the first defendant Sangham is neither a religious nor a charitable institution and the Society was registered on 11.03.1964 under the Societies Registration Act 14 of 1964 with a memorandum of association mentioning its objects. The objects of the Sangham clearly manifest the public nature of the society and it is predominantly a religious charitable institution. The temple was open for public worship and there are no restrictions. The Archanas are being performed by general public for which fee would be collected and a Hundi was installed for receiving offerings in money or kind. Therefore, the said Sangham was notified under Section 6(c)(i) of the Act 17 of 1966 by the Commissioner as a Charitable Institution. The orders passed by the second defendant are erroneous. From the beginning, the first defendant is a public temple. In the memorandum of association, the objects of the Sangham are mentioned as the renovation of Vigneswaraswamy temple. By the formation of a society with bye-laws, a public temple cannot be converted into a private temple of the Sangham. Thus, the second defendant failed to see that the objects of the Sangham fall within the ambit of sub-clauses 2 to 5 of Section 2 of A.P. Act 17 of 1966 and erred in holding that the Sangham is not a charitable or religious institution. Therefore, the Sangham is not a private institution, which is governed by A.P. Act 17 of 1966, hence the suit.

4. The second defendant remained ex-parte. Contesting the suit, the first defendant Sangham filed its written statement denying the material

Click Here to Read the rest of this document

2018 Supreme(AP) 953

A suit filed under the old Act, which was pending on the date of commencement of the new Act, has to be continued as an appeal instituted under the new Act.

Cases Referred (5)