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    W.A.1047 Of 2001
    Decided On, 04 September 2001
    At, High Court of Andhra Pradesh
    For the Appearing Parties: K.V.N. Bhupal, M. Ramachandra Reddy, M. Vidya Sagar, Advocates.

Judgment Text

( 1 ) THE writ petitioner is the appellant. He is aggrieved by an order dated 15-3-2001 passed by a learned single Judge of this Court in Writ Petition no. 8011 of 1990 whereby, and whereunder the writ petition claiming for the following reliefs was dismissed. "that the Hon'ble Court may be pleased to issue a writ of certiorari and call for the entire records leading to and in r. C. No. A2/740/90 E. O. S. Estt. , dated 23-5-1990 from the file of the Deputy commissioner Endowments Department, kurnool, seeking to appoint Executive officer to the petitioner institution and quash the same as arbitrary, mala fide, illegal, without jurisdiction and unconstitutional and issue any other appropriate writ, order or direction and grant such necessary reliefs. "

( 2 ) MR. M. VIDYASAGAR, the learned counsel appearing on behalf of the petitioner has raised a short question in support of this appeal. Drawing our attention to the finding of the learned single Judge, he would submit that as the Commissioner was the appointing authority so far as the post of executive Officer is concerned, the writ petition ought to have been allowed having regard to the fact that such appointment had been made by the Deputy Commissioner. The material portion of the impugned order reads thus:"this Court in G. RAMANA MURTHY v. GOVT. OF A. P. (1997 (4) ALT 769 (D. B.) clearly held that the Commissioner is competent to appoint the Executive officer. The Supreme Court in pannalal v. STATE OF ANDHRA pradesh (AIR 1996 SC 1023 ). also upholds the validity of Section 16 of the act. "

( 3 ) THE order impugned in the writ petition is dated 23-5-1990 wherein the deputy Commissioner Endowments department, Kurnool purported to be relying on the basis of Rc. G2/16293/90, dated 10-5-1990 issued by the Commissioner of endowments, purported to have appointed an Executive Officer in relation to the yadalla Pitchaiah Chetty Charities, cuddapah.

( 4 ) THE learned Government Pleader appearing for respondents 1 to 4 inter alia submitted that the Deputy Commissioner had the jurisdiction to pass the impugned order having regard to the provision contained in sub-section (4) of Section 8 of the Andhra Pradesh Charitable and hindu Religious Institutions and Endowments act, 1987 ('the Act' for brevity ). It is not in dispute that the appointment and duties of executive Officer are enshrined in terms of section 29 of the Act, which insofar as the some is relevant reads thus: "sec. 29. Appointment and duties of executive Officer: (1) The Government may constitute not more than three charitable or religious institutions or endowments each of whose annual income is rupees fifty thousand but does not exceed rupees one lakh into such groups as may be prescribed. (2) For each such group of charitable or religious institutions or endowments there shall be appointed an Executive officer for exercising the powers and discharging the duties conferred on him by or under this Act. (3) The Government may, for purposes of this Act, constitute such grade of executive Officers, prescribing their appointing authorities and authorise them to exercise such powers and discharge such duties as may be prescribed: provided that twenty per cent of vacancies in each grade of Executive officers shall be filled by the employees belonging to the institutions or endowments of prescribed grade; provided further that, it shall be competent for the Government to appoint a Regional Joint Commissioner, a Deputy Commissioner or an Assistant commissioner as an Executive Officer.

( 5 ) IT is accepted that pursuant to or in furtherance of the power conferred upon the state in terms thereof, no rules have yet been prescribed. It, however, appears that rules known as 'the Endowments Executive officers Subordinate Service Rules, 1978 were enacted by the Government. In terms of the said Rules, the Commissioner had the power to make appointment of an executive Officer in the absence of any statutory rules made thereunder.

( 6 ) THE matter came up for consideration before this Court in Kalluram v. Commissioner of Endowments, 1991 (2) alt 673 (DB), wherein it had been specifically held that in the absence, of any rule, the Commissioner can appoint an executive Officer in exercise of his power of general superintendence conferred upon him under sub-section (1) of Section 8 of the Act. The matter again came up for consideration before a Division Bench of this Court reported in G. Ramana Murthy v. Govt. of A. P. , 1997 (4) ALT 769 (DB), wherein, relying on Kalluram (supra) as also the decision of the apex Court in Pavani sridhara Rao v. Govt. of A. P. and others, (1996) 8 SCC 298, it was held:"the third submission of Mr. Rao of absence of materials also does not stand to scrutiny. No doubt, in a decision of the Supreme Court in Pavani Sridhara rao vs. Govt of A. P. and others { (1996) 8 SCC 298} the Court ruled that the power to appoint Executive Officer could be exercised only on relevant data and on necessary facts and materials, but could not be exercised just half-handed without there being any necessity for appointment of Executive Officer for a Temple in public interest. But, as we have already alluded, in fact, there were materials before the Commissioner to consider the appointment of Executive Officer, if necessary. Over a period of years, the appellant was not exercising any diligence to collect the dues, both in cash and kind, of the institution and was not even submitting the accounts. Whether such materials were adequate to appoint an executive Officer or not is not within the domain of the Court to examine as it is well known that the adequacy or inadequacy of the material to take an executive decision is not for the Courts to scrutinise. If at all there is existence of some materials on the basis of which a reasonable man could be persuaded to take a decision, the quantum of the material would not be for the Court to scrutinise and analyse. "

( 7 ) YET again, in Executive Officer, group Temples v. D. Rama Rao, 1999 (3) alt 466 (DB), in a case where the contention was raised is that the State government is the only appropriate authority for appointing Executive Officer. The division Bench negativing the said contention relied upon the aforementioned judgment of the Supreme Court as also the judgment of the Division Bench of this Court in Ramana murthy (supra) holding:"appointment of Executive Officer by the Commissioner of Endowment was challenged. Reference to Section 29 was inappropriate. The order was admittedly issued by the Commissioner. Section 29 of the Act comes into play only when the Executive Officer is appointed by the government. The appointment in the instant case was by the Commissioner and was obviously under Section 8 of the Act. This Court has held in g. R. Murthy vs. Government of Andhra pradesh (1997 (4) ALT 769) that appointment of Executive Officer under section 8 of the Act is valid. This view was confirmed by us while dealing with w. A. No. 140 of 1999 disposed of on 10-2-1999. In the circumstances, we are of the view that the judgment under appeal is unsustainable. 'the petitioner was claiming as a hereditary trustee which office was abolished and appointment of Executive Officer under section 8 of the Act by the Commissioner was justified. "

( 8 ) IN the aforementioned backdrop, the contention of the learned Government pleader is that, as would appear from the impugned order, that the same has been passed at the instance of the Commissioner, must be examined. The submission of the learned Government Pleader cannot be accepted both on facts as also in law. Before us, the records have been produced, from a perusal whereof it appears that the commissioner by an order dated 10-5-1990 appointed one P. V. Subba Reddy as Executive officer of Sri Lakshmi Narasimha Swamy temple, Chinna Dasaripalle. The commissioner, therefore, did not appoint any Executive Officer in respect of the choultry or temple in question, but despite the same, the Deputy Commissioner appointed P. V. Subba Reddy as Executive officer in relation to fifteen temples. The impugned order, therefore, suffers such exercise of power is hatched with the conditions referred to therein. Not only if a general or special power is exercised, the same has to be done by issuing an appropriate order which would show application of mind on the part of the delegating authority, but such order must be notified in the Official Gazette. Furthermore, prior to exercising such power, the

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matter is required to be placed before the State government inasmuch as the State government, in terms of sub-section (4) of section 8 of the Act, is entitled to put such restrictions and control as may be laid down. Having regard to the fact that neither any general or special power nor no power in accordance with law has been delegated in favour of the Deputy commissioner in terms of sub-section (4) of Section 8 of the Act, the impugned order could not have been sustained even on the ground that the Deputy Commissioner has acted under the directions of the commissioner. ( 9 ) FOR the reasons aforementioned, we are of the opinion that the impugned order of the learned single Judge cannot be sustained and it is set aside accordingly. However, it is open to the Commissioner of endowments to pass an appropriate order in accordance with law. ( 10 ) THE Writ Appeal is allowed accordingly. Advocate's Fee: Rs. 5,000. 00.