# COMMISSIONER OF ENDOWMENTS AND ORS v. VITT AL RAO AND ORS

- **Citation:** [2004] Supp. 6 S.C.R. 374
- **Court:** Supreme Court of India
- **Decided:** 2004-11-25
- **Bench:** Shivaraj V. Patil, B.N. Srikrishna
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/commissioner-of-endowments-and-ors-v-vitt-al-rao-and-ors-20350
- **Pages:** 32

## Headnote

Andhra Pradesh Charitable and Hindu Religious Institutions and
Endowments Act, 1987; Ss. 1(3) 14, 16, 42, 80(/)(a) and (b)/Andhra
Pradesh (Telengana Areas) Wakf Rules; Rule 156 :
Donation of land by one person to another for the purpose of
construction of a temple-Right of Successor of donee as trustee of the
temple-Held : Nature of an endowment, public or private, could be
ascertained by applying certain tests/guidelines-Division Bench of the High
D Court rightly held that since the gift made in respect of the temple land
in favour of ancestor of respondent was absolute, temple constructed thereon
was a private temple-Since the land not endowed, provisions of the Act
not attracted-State Government could not claim any interest on it-Since
offering of a compromise proposal by the counsel of the State for consent
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by the other partyldonee does not amount to concession on point of law,
the findings of the High Court binding-Failure to frame a formal issue
would not invalidate/dilute binding character of the proceedings-Since no
appeal was preferred, the order attained finality-No good grounds shown
to interfere with the judgment-A.P. Writ Proceeding Rules, 1977; Rule
24.
'Public trust' and 'private trust '-Distinction between-Discussed.
Code of Civil Procedure, 1908 :
Order XXJIJ Rule 3 and Section 141
Applicability of same procedure in regard to suits in the proceedings
under Article 226 of the Constitution-Held : Not applicable-Constitution
of India, 1950-Article 226. ·
H
Section 11 :
374
COMMISSIONER OF ENDOWMENTS v. VITT AL RAO
375
Doctrine of res judicatalconstructive res judicata-Applicability ofA
Held :Since the issue as to nature and scope of gift deed in the earlier
round of litigation though not formally framed but determined as it was
material and essential, bar of res judicata applies.
A person donated 5 bighas of land to the ancestor of respondent
No. 1 for construction of a temple. Donee started construction of the
temple but before its completion, he died and the construction got
completed by his sister. Later, in the year 1939, the State Government
of Andhra Pradesh constituted a Supervisory Committee to regulate
management of the temple under the provisions of A.P. Wakf Rules,
since then the temple affairs had been managed by the Committee. In
the year 1962, father of respondent No. 1 applied for transfer of
towaliatship in his name. Registration Officer allowed the claim and
accordingly ordered for amendment in the Revenue records in terms of
Hyderabad Endowment Rules. Aggrieved, the Committee filed an appeal
which was dismissed by the Appellate Authority. However, Revision
Petition was allowed by the State Government. Father of respondent No.
1 filed a declaratory suit. Trial Court dismissed the suit. Appellate
Court allowed the appeal. The Committee preferred an appeal which
was dismissed by the High Court holding that since the land in question
was gifted absolutely to the ancestor of respondent No. 1, the Government
could not claim any interest on it. The State Government and the
Committee filed appeals which were dismissed by this Court.
State Government issued a Memorandum to compromise the dispute
on certain terms in the interest of the temple. Accordingly, authority
concerned issued instructions to the tenants in the temple premises to
pay to respondent No. 1 the rent due. However, the Deputy Commissioner
of Endowments set aside the instruction on the ground and terms of
compromise had not been reduced into a deed of compromise. Respondent
No. I/successor filed a writ petition to quash the order and also filed an
affidavit stating that he was ready to accept the terms of compromise.
Single Judge of the High Court disposed of the writ petition by recording
the terms of compromise as agreed by both the parties. Authorities
concerned did not prefer any appeal. However, respondents/purchaser
of the land, filed writ appeal which was dismissed by the Division Bench
of the High Court holding that the Judg

## Text

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COMMISSIONER OF ENDOWMENTS AND ORS.
v.
VITT AL RAO AND ORS.
NOVEMBER 25, 2004
[SHIVARAJ V. PATIL AND B.N. SRIKRISHNA, JJ.]
Andhra Pradesh Charitable and Hindu Religious Institutions and
Endowments Act, 1987; Ss. 1(3) 14, 16, 42, 80(/)(a) and (b)/Andhra
Pradesh (Telengana Areas) Wakf Rules; Rule 156 :
Donation of land by one person to another for the purpose of
construction of a temple-Right of Successor of donee as trustee of the
temple-Held : Nature of an endowment, public or private, could be
ascertained by applying certain tests/guidelines-Division Bench of the High
D Court rightly held that since the gift made in respect of the temple land
in favour of ancestor of respondent was absolute, temple constructed thereon
was a private temple-Since the land not endowed, provisions of the Act
not attracted-State Government could not claim any interest on it-Since
offering of a compromise proposal by the counsel of the State for consent
E
F
G
by the other partyldonee does not amount to concession on point of law,
the findings of the High Court binding-Failure to frame a formal issue
would not invalidate/dilute binding character of the proceedings-Since no
appeal was preferred, the order attained finality-No good grounds shown
to interfere with the judgment-A.P. Writ Proceeding Rules, 1977; Rule
24.
'Public trust' and 'private trust '-Distinction between-Discussed.
Code of Civil Procedure, 1908 :
Order XXJIJ Rule 3 and Section 141
Applicability of same procedure in regard to suits in the proceedings
under Article 226 of the Constitution-Held : Not applicable-Constitution
of India, 1950-Article 226. ·
H
Section 11 :
374
COMMISSIONER OF ENDOWMENTS v. VITT AL RAO
375
Doctrine of res judicatalconstructive res judicata-Applicability ofA
Held :Since the issue as to nature and scope of gift deed in the earlier
round of litigation though not formally framed but determined as it was
material and essential, bar of res judicata applies.
A person donated 5 bighas of land to the ancestor of respondent
No. 1 for construction of a temple. Donee started construction of the
temple but before its completion, he died and the construction got
completed by his sister. Later, in the year 1939, the State Government
of Andhra Pradesh constituted a Supervisory Committee to regulate
management of the temple under the provisions of A.P. Wakf Rules,
since then the temple affairs had been managed by the Committee. In
the year 1962, father of respondent No. 1 applied for transfer of
towaliatship in his name. Registration Officer allowed the claim and
accordingly ordered for amendment in the Revenue records in terms of
Hyderabad Endowment Rules. Aggrieved, the Committee filed an appeal
which was dismissed by the Appellate Authority. However, Revision
Petition was allowed by the State Government. Father of respondent No.
1 filed a declaratory suit. Trial Court dismissed the suit. Appellate
Court allowed the appeal. The Committee preferred an appeal which
was dismissed by the High Court holding that since the land in question
was gifted absolutely to the ancestor of respondent No. 1, the Government
could not claim any interest on it. The State Government and the
Committee filed appeals which were dismissed by this Court.
State Government issued a Memorandum to compromise the dispute
on certain terms in the interest of the temple. Accordingly, authority
concerned issued instructions to the tenants in the temple premises to
pay to respondent No. 1 the rent due. However, the Deputy Commissioner
of Endowments set aside the instruction on the ground and terms of
compromise had not been reduced into a deed of compromise. Respondent
No. I/successor filed a writ petition to quash the order and also filed an
affidavit stating that he was ready to accept the terms of compromise.
Single Judge of the High Court disposed of the writ petition by recording
the terms of compromise as agreed by both the parties. Authorities
concerned did not prefer any appeal. However, respondents/purchaser
of the land, filed writ appeal which was dismissed by the Division Bench
of the High Court holding that the Judgment of the Supreme Court in
the matter had attained finality. State Government filed Review Petition
B
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376
SUPREME COURT REPORTS [2004] SUPP. 6 S.C.R.
A which was dismissed by the High Court. In the meantime, father of
respondent No. 1 filed a Contempt Petition against the Government and
the authorities. The Court did not proceed with the Contempt Petition
since counsel for the Government assured compliance of the orders. The
. Commissioner of Endowment and Others filed Special leave Petition
. B
before this Court which was dismissed as withdrawn. Hence the present
appeal.
It was contended by the appellants that the compromise deed was
only at the proposal stage and not acted upon by the authority concerned;
that since the proposed terms of compromise were rejected by ~espondent
C No. 1, they ceased to exist in the eyes of law; that the Division Bench
·of the High Court ought to have examined the legality to the alleged
compromise in the light of the provisions as contained in the Andhra
Pradesh Endowments Act, 1987 as the illegality was writ large in the
pfoposed terms of compromise; that the compromise deed should have
D been in writing and signed by the parties in terms of Orders XXIII Rule
3 CPC; that Rule 24 of the A.P. Writ Proceedings Rules, 1977 makes
the provisions of Order XXIII Rule 3 CPC applicable to the proceedings
under Article 226 of the Constitution of India; that a concession made
by the counsel on the question of law is not binding on the parties; that
_there is no bar in challenging the consent order on the ground of
E
illegality and/or fraud in terms of section 96(3) CPC; and that the
observations made by the Single Judge of the High Court were not
'findings1 as there was no issue at all warranting the same and the
observations in any event were outside the scope of a second appeal,
consequently, they were without jurisdiction; and a decree ordered by
F a Court wi!hout jurisdiction is a nullity.
Respondent No. 1 submitted that the High Court rightly dismissed
the appeal on the three grounds-( a) in terms of Section 96(3) of CPC
an appeal against a consent decree was not maintainable, (b) the
allegations of fraud and misrepresentation were without any basis and
G (c) the finding recorded in the first round of litigation operated as res
judicata against the appellants; that the consent order passed in the writ
petition is not contrary to the provisions of the Act; that the temple in
question was a private temple and the finding had attained finality as
not challenged; that merely because there is reference to a Dharamshala
H in the gift deed it did not imply that there was an endowment of a.public
...
COMMISSIONER OF ENDOWMENTS v. VITT AL RAO
377
character; that Order XXIII Rule 3 CPC cannot strictly be applied to A
the proceedings under Article 226 of the Constitution of India; and that
the decisions and findings recorded in the first round of litigation do
operate as res judicata against the appellants.
Dismissing the appeal, the Court
HELD : 1.1. It is clear that the Single Judge of the High Court
disposed of the writ petition by the consent of the parties accepting the
compromise memo. The present appellants did not file any appeal against
the order. The order passed by the Single Judge accepting the compromise
B
on the basis of the statement made on behalf of the parties is upheld. C
[393-H; 394-A, BJ
1.2. It was contended for the first time by the appellants before the
Division Bench of the High Court in the Writ Appeal that the Advocate
General did not appear before the Single Judge of the High Court and
it is not the case of the appellants that the counsel representing the D
appellants before the Single Judge was not authorized to make the
consent statement to accept the compromise. The writ petition was
disposed of by Single Judge of the High Court in terms of the compromise
deed with a direction to implement it within a specified period. The
representation so made or consent given for disposal of the Writ Petition E
before the Single Judge is not and does not amount to giving of concession
on a point of law particularly when taking a view that the provisions
of the Andhra Pradesh Charitable and Hindu Religious Institutions and
Endowment Act have no application to the property in question. Father,
in this case, there was no concession by the counsel on behalf of the
appellants on a point of law. [395-A, B, C, D, E,]
F
Nedunuri Kameswaramma v. Sampat Subba Rao, [1963] 2 SCR 208
and B.S. Bajwa & Anr. v. State of Punjab & Ors., [1998] 2 SCC 523,
distinguished.
2.1. It io: true that under Rule 24 of the Andhra Pradesh Writ G
Proceedings Rules, 1977, the provisions of the Code of Civil Procedure,
1908 would apply to writ petitions or writ appeals. Section 141 CPC also
provides that procedure provided in the Code in regard to suits shall be
followed in all proceedings in any Court of civil jurisdiction. But, the
explanation to the Section states that the expression 'proceedings' does H
378
SUPREME COURT REPORTS [2004] SUPP. 6 S.C.R.
A
not include any proceedings under Article 226 of the Constitution of
India. By virtue of Rule 24 of A.P. Writ Proceedings Rules, the provisions
of Civil Procedure Code could be applied as far as possible. The High
Court while exercising jurisdiction under Article 226 of the Constitution
of India has jurisdiction to pass appropriate orders. Such power can
B
neither be controlled nor affected by the provisions of Order XXIII Rule
3 CPC. It would not be correct to say that the terms of order XXII Rules
3 should be mandatorily complied with while exercising jurisdiction under
Article 226 of the Constitution of India. Otherwise anomalous situation
would arise such as before disposing of the writ petition, issue should be
c
framed or evidence should be recorded etc. (396-G, H; 396-A, B 397-A)
Gurpreet Singh v. Chatur Bhuj Goel, [1988) 1 SCC 270 and Banwari
Lal v. Chanda Devi (Smt.) through LRs. & Anr., [1993) 1 SCC 581,
distinguished.
D
2.2. Proceedings under Article 226 of the Constitution oflndia stand
on a different footing when com pared to the proceedings in suits or appeals
arising therefrom. Under the circumstances of the case, the Division Bench
of the High Court was right in not disturbing the order of the Single Judge
accepting the compromise as represented by counsel for the parties. On
the facts of the case, it is not possible to hold that the order of the Single
E Judge disposing of the writ petition was bad in law particularly when he
exercised his jurisdiction under Article 226 of the Constitution oflndia.
At any rate, when the findings recorded and the decision made in the first
round oflitigation between the parties being binding, the appellants cannot
take advantage on the gro~nd that compromise was not reduced to writing
F and not signed by the parties. (397-A; 399-B, C, DJ
Byram Pestonji Gariwa!a v. Union Bank of India & Ors., (1992) I
sec 31, relied on.
State of Maharashtra v. Ramdas Shrinivas Nayak & Anr., f 19821 2
G sec 463, referred to.
3.1. Mere use of the premises as 'Dharamshala' for number of
years could not lead to an inference that the same belongs to a public
trust. Whether an endowment is of public or private nature, depends
H on the facts of each case satisfying certain tests and guidelines. (399-GJ
..
COMMISSIONER OF ENDOWMENTS v. VITT AL RAO
379
Ku/dip Chand & Anr. v. Advocate-General to Government of H.P. & A
Ors., (2003) 5 SCC 46, relied on.
3.2. The specific finding of fact that the Division Bench of the High
Court made io respect of the land was that it was absolutely gifted in
favour of the ancestors of respondent No. 1, the temple was a private B
temple and the land was not endowed under the gift deed. As is evident
from Section 1(3) of the Act, it applies to all public charitable institutions
and endowments whether registered or not. This being the position,
having regard to the findings as to the nature and scope of the gift of
the land in favour of the ancestors of respondent No. 1, the temple was
a private temple and the land was not endowed under the gift deed, the C
Division Bench of the High Court committed no error in not considering
the effect of Sections 14, 16, 42, 80(l(a) and (b) and 87 of the Act when
the Act itself did not apply to the properties in question. [400-C, DJ
3.3. In the earlier round of litigation, it was specifically held that D
the gift deed not create an endowment and the temple in question was
not a public temple and that the land was gifted absolutely to the
ancestor of the respondent. In a private trust, the beneficiaries are
specific individuals and in a public trust, the beneficiary is general
public as a class. In a private trust, the beneficiaries can be ascertained
whereas in a public trust, they are incapable of ascertainment. (399-E) E
Deoki Nandan v. Murlidhar, [1956) SCR 756, relied on.
3.4. It cannot be said that the aspects as to nature and scope of the gift
deed and the rights that were conferred on donee, the ancestor of F
respondent No. 1 did arise for consideration. Both the parties knew about
the same. The High Court in the second appeal noticing the findings of the
lower appellate court, recorded a finding that the land was gifted to the
donee absolutely, the Government could not claim any interest, temple
constructe~ on a portion of the land was a private temple and it did not
make the gift of the land an endowment in favour of the God. These <J
findings have attained finality. Failure to frame a formal issue by the
Court would not invalidate the findings of the holding judgment between
the parties. These findings against the appellants could neither become
diluted, nor deprived of their binding character merely because specific
issue was not raised in the suit. [400-F, G, HJ
H
380
SUPREME COURT REPORTS [2004] SUPP. 6 S.C.R.
A
3.5. Merely because father of respondent No. 1 claimed declaration
B
of his mutawalliship under misconception, or wrongly, that does n.ot
affect the merit of the case of respondent No. 1 when there are positive
and categorical findings as to the nature and scope of the gift deed
conferring absolute right over the land in question. [401-B, CJ
4. In the earlier round of litigation, it was necessary for the O>Urt
to decide the nature and scope of gift. d.eed. Accordingly, the, courts
decided that the gift made in favour of ancestors of respondent No. 1
of the .land was absolute and it was not an endowment for a public or
C
cha~itable purpose. On the facts of the case, it is clear that though an
issue was not formally framed, the issue was.material and essential for
the. decision of the case in the earlier proceeding. Hence, the bar of res
judicata applies to the facts of the present case. (404-E, F]
Mathura Prasad Bajoo Jaiswal & Ors. v. Dossibai NB. Jeejeebhoy,
D [1970) 3 SCR 830; Madhvi Amma Bhawani Amma & Ors. v. Kunjikutty
Pillai Meenakshi Pillai & Ors., (2000) 6 SCC 301; Rameshwar Dayal v.
Banda (Dead) through his LRs. & Anr., (1993) 1 SCC 531; Income-tax
Officer, A-Ward, Sitapur v. Murlidhar Bhagwandas, Lakhimpur Kheri,
(1964] 6 SCR 411; Daffadar Bhagat Singh & Sons v. The Income-tax
E
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Officer, A-Ward, Ferozepore, (1969) 1SCR828 and C.J. T. Andhra Pradesh·
v. Mis. Vadde Pulliah & Co,. [1973) 4 SCC 121, distinguished.
l{aj Laxmi Dasi & Ors. v. Banama/i Sen & Ors., [1953) SCR 154;
Sajjadanashin Sayed MD. B.E. EDR. (D) by LRs. v. Musa Dadabhai Ummer
& Ors., [2000) 3 SCC 350 and Vithal Yeshwant Jathar v. Shikandarkhan
Makhtumkhan Sardesai, (1963) 2 SCR 285, relied on.
5. The Division Bench of the High Court rightly upheld both the
preliminary objections namely (1) as to the maintainability of the appeal
against the order of the Single Judge as the order was passed on the basis
G of the consent of the parties and (2) as to the applicability of doctrine
.
.
of res judicata or constructive res judicata. Hence, no good ground or
valid reason is found to interfere with the impugned judgme~t. [405-F)
CIVIL APPELLATE JURISDICTIQ_N : Civil Appeal No. 6246 of
H
1998.
COMMISSIONER OF ENDOWMENTS v. VITT AL RAO [PATIL, J.]
381
From the Judgment and Order dated 21.10.98 of the Andhra Pradesh A
High Court in W.A. No. 429 of 1998.
P.P. Rao, B. Sridhar, Ms. P. Mahalakshmi, Ms. A. Aiyagaria and K.
Ram Kumar for the Appellants.
Rajeev Sharma, S. Reddy, Vijay M. Chauhan, Azim H. Laskar and
V.N. Raghupathy for the Respondent No. l.
D. Ramakrishna Reddy, G. Venugopal and Ms. D. Bharathi Reddy for
the Respondent Nos. 3 & 5.
The Judgment of the Court was delivered by
SHIV ARAJ V. PATIL, J. : In this appeal, the order dated 21.10.1998
made by the Division Bench of the High Court in Writ Appeal No. 429 of
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I 998 is under challenge. Parties are before this Court for the third time in D
relation to the same subject matter.
One Fauzdar Khan donated 5 bighas of land situated at Hyderabad to
one Gunnaji, the ancestor of the respondent no. l for the purpose of
construction ofa temple, now known as Sri Jangli Vittobha Temple. Gunnaji
died and after his death, his sister Suguna Bai completed the construction E
of the temple. In 1939, one Golakishan Gir claiming himsel( to be the
Mutawalli of the temple, mismanaged its affairs. The Government having
come to know about the same, constituted a committee under Rule 156 of
Andhra Pradesh (Telangana Areas) Wakf Rules. Manik Rao, father of the
respondent no. 1, applied to the Registration Officer in 1962 for transfer of F
Towliatship of temple in his name. The Registration Officer (the Assistant
Secretary of Board of Revenue) after holding inquiry by the order dated
15 .1.1964 held that said Manik Rao was the rightful claimant to the
Towliatship and consequently ordered for amendment of Column No. 11 of
Munthakab under Section 36(c) of Hyderabad Endowment Rules. Aggrieved
by this order, the temple committee filed an appeal to the Director of G
Endowments, who, by his order dated 29.10.1966, confirmed the
aforementioned order dated 15.1.1964. The temple committee pursued the
matter further by filing a revision petition before the Government assailing
the order dated 29. l 0.1966 made by the Director of Endowments. The
revision petition was allowed and the order of the Director of Endowments H
382
SUPREME COURT REPORTS (2004] SUPP. 6 S.C.R.
A affirming the order of the Registration Officer was set aside as is evident
by G.O. Rt. No. 680 dated 17.06.1971. It is against this G.O. that Manik
Rao filed a suit O.S. No. 509/1971 in the City Civil Court, Hyderabad, for
declaration that he was the hereditary Mutawalli of the temple; for perpetual
injunction against the authorities and individuals, restraining them from
B
interfering with his Towliatship and from constituting or reconstituting any
committee for the temple and for setting aside the said G.O. dated 17 .6.1971.
The trial court dismissed the suit. The appeal No. A.S. No. 199/77 filed
against the judgment and decree of the trial court was allowed by the first
appellate court by its judgment and decree dated 22.12.1978, which decreed
C the suit .of Manik Rao granting the relief as sought for in the said suit. The
temple committee preferred second appeal being S.A. No. 122/79 in the
High Court against the judgment dated 22. 12.1978 aforementioned made by
the first appelJate court. It may be stated here itself that neither the Government
nor the Commissioner of Endowments (defendants 1 and 2 respectively)
filed second appeal challenging the judgment and decree passed by the first .·
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appellate court in favour of Manik Rao. Although they were respondents 2
and 3 in the second appeal No. 122/79 filed by the temple committee, they
did not participate. In other words, they did not put forth any plea before
the High Court. The High Court dismissed the said second appeal on
2. 7.1979 concurring with the findings recorded by the first appellate court
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and affirming the decree passed by it. The High Court held that the land in
question was gifted absolutely to Gunnaji and that the Government could
not claim any interest in it. The State of Andhra Pradesh and the Temple
Committee acting through its Chairman, approached this Court by filing
SLPs questioning the validity and correctness of judgment and decree
passed by the High Court in the second appeal. This Court dismissed C.A.
Nos. 702/80 & 703180 on 12.8.1987 after granting leave in the SLPs. Thus,
the judgment and decree passed in favour ofManik Rao by the first appellate
court in A.S. No. 199/77 attained finality.
About two years later, the Commissioner of Endowments, Govt. of
G Andhra Pradesh (appellant No. I), by his letter dated 14.6.89 addressed to
the Principal Secretary, Deptt. Of Revenue, Andhra Pradesh gave a detailed
report seeking permission to compromise the dispute in the best interest of
the temple. In response to the said letter, Joint Secretary to the Government
by Memorandum dated 27.10.89 stated that a compromise might be made
H on certain terms.
COMMISSIONER OF ENDOWMENTS v. VITT AL RAO [PATIL, J.]
383
The Assistant commissioner of Endowments issued instructions dated A
16.1.1990 to the tenants of the temple property to pay the rents due, to Vittal
Rao, the respondent no. 1 herein as the entire property had been declared
as his private property by virtue of the decree passed by the civil court in
A.S. No. 199/77 but the Deputy Commissioner of Endowments by his order
dated 15.6.1990 set aside the instructions dated 16.1.1990 given by the B
Assistant Commissioner of Endowments inter alia stating that the terms of
compromise mentioned in the Government Memorandum dated 27.10.1989
issued by the Joint Secretary had not been reduced into a deed of com!Jromise.
Consequently, the Assistant Commissioner withdrew his instructions dated
16.1.1990 and directed the tenants to comply with the order of the Deputy
Commissioner dated 15.6.1990. Thereafter on 25.6.1990, the Commissioner c
of Endow.ments appointed an Executive Officer for the management of the
temple. The respondent no. 1 Vittal Rao filed writ petition No. 8970/90 in
the High Court to quash the order of the Deputy Commissioner dated
15.6.1990 and that of the Commissioner dated 25.6.1990 aforementioned.
The respondents 2 to 5 got impleaded as party-respondents in the above writ D
petition claiming to be interested persons. In the said writ petition, the
respondents 1-3, (Officers of the Endowment Department) filed W.P.M.P.
No. 15438/95 seeking direction to appoint an Executive Officer to manage
the affairs of the temple and permit the officer to conduct the yearly festivals
pending disposal of the writ petition. The writ petitioner (respondent no. l
herein) filed a counter affidavit stating that he was ready to accept the terms
of compromise suggested in the Govt. Memo dated 27 .10.1989. Learned
Single Judge by his order dated 17. l 0.1995 disposed of th~ writ petition on
the submissiOn of the learned counsel for both parties that the writ petition
may be disposed of by recording the said terms of the compromise contained
in Government Memorandum dated 27 .10.1989 and the learned Judge further
directed to implement the terms of the compromise within four weeks from
the date of the order. The respondent Nos. 1 to 3 of the Endowments
Department (appellants Nos. l to 3 herein) in the writ petition did not file
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any appeal against the aforementioned order of the learned Single Judge
made in the writ petition but the private respondents 5-8, who were imp leaded
subsequently in the writ petition, contending to be the purchasers of the land, G
filed writ appeal No. 1536/95. The Division Bench of the High Court by
the order dated 13.1.1997 held that the appellants in the writ appeal having
· . not represented themselves in the earlier proceedings when the matter came
up to the Supreme Court, the decision of the Supreme Court had become
final in the matter and that in case they have any other right over the H
384
SUPREME COURT REPORTS [2004] SUPP. 6 S.C.R.
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property", they have to approach the civil court. Thus, the order passed by
the learned Single Judge on 17.10.1995 passed in the writ petition was
confirmed by the High Court in the writ appeal.
When the aforementioned writ appeal was pending, some individuals
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claiming to be devotees of the temple, filed W.P. No. 2830/96 claiming to
espouse public interest inter alia to declare the Memo of the Government
dated 27.10.1989 (suggesting compromise) as illegal and arbitrary and to
direct the Endowments Department to remove the respondent no. 1 from the
post of hereditary trusteeship of the temple. The Division Bench of the High
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Court dismissed the said writ petition on 21.2.1997.
ft is thereafter that the Govt. of Andhra Pradesh, which was not a party
to the writ appeal No. 1536/95, sought review of the order made in Writ
Appeal No. 1536 of 1995 in RWAMP No. 2435/97 contending that despite
permission granted to the Commissioner to enter into compromise by virtue
D of the Government Memorandum dated 27.10.1989, no compromise was in
fact entered into and therefore, it was unenforceable and that the proposal
for compromise was wrongly interpreted in earlier judgments and that too
on a wrong translation of the gift deed. The Division Bench of the High
Court, by its order dated 12.11.1997 dismissed the review petition taking
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a view that the earlier Supreme Court judgment in C.A. Nos. 702/80 and
703/80 attained finality so far as the construction of gift deed made in favour
of Manik Rao is concerned and that issue could not be re-opened. On the
same day, the High Court rendered a judgment in the contempt case filed
by Vittal Rao against the government and impleaded parties alleging that
they had violated the earlier judgment of the Court in Writ Appeal No. 1536/
1995. The Court did not proceed with the contempt petition stating that the
Govt. had stated that they would abide by the orders of the Court in the
review petition and in the contempt case. A further direction was given that ·
the order made in Writ Appeal No. 1536/95 be implemented within two
months by taking into consideration the observations made by the Court in
review petition. As against the judgment in the review petition, the
G Commissioner of Endowments and others filed special leave petition No.
22746/97. The said SLP was disposed of by this Court in the following
terms:-
H
"The learned Senior Counsel forthe petitioner after some arguments
seeks leave to withdraw this Special Leave Petition with a view to.
COMMISSIONER OF ENDOWMENTS v. VITT AL RAO [PATIL. J.]
385
filing appropriate proceedings for challenging the consent order in A
a writ petition which according to him was a nullity as being
fraudulent and contrary to law. The SLP stands dismissed as
withdrawn."
It is thereafter the present appellants filed Writ Appeal No. 429/98. .B
There was delay of 739 days in filing the writ appeal which was condoned.
The Division Bench of the High Court, by the impugned judgment, dismissed
the writ appeal on considerations of the material on record and accepting
the preliminary objections raised by the respondent no. l. The Division
Bench also held that the Government could not go back on its assurance
given in the contempt case. Hence, this appeal.
Shri P.P. Rao, learned senior counsel for the appellants in support of
the appeal, urged the following contentions: -
c
I. The Division Bench of the High Court having condoned the delay D
in filing the writ appeal ought to have set aside the compromise said to have
been arrived at between the parties. There was no concluded compromise
in writing signed by the parties or their authorized representatives, but there
was only proposal for compromise yet to be acted upon by the Commissioner
in the manner suggested by the Government in its Memorandum dated
27.10.1989; the proposed terms of compromise having been rejected by
respondent No. 1, they ceased to exist in the eye of law; after filing of writ
petition 8970 of 1990 containing serious misrepresentations of facts and
before the same could be adjudicated and their falsity exposed of by the
appellants the respondent No. l approached the High Court with a request
that the writ petition may be disposed of recording the said compromise as
per the Government Memorandum dated 27.10.1989 and got the order in
the writ petition taking the advantage of the absence of the Advocate
General at the hearing.
E
F
2. The Division Bench of the High Court committed an error in not G
considering the effect of Sections 14, 16, 42, 80(1 )(a) and (b) and Section
87 of the Andhra Pradesh Charitable and Hindu Religious Institutions and
E~~?wments Act, 1987 (for.short 'the Act'); the Division Bench ought to
pave examined the legality of the alleged compromise in the light of these
.J'..•")L
provisions as the illegality was writ large in the proposed terms of compromise. H
386
SUPREME COURT REPORTS [2004] SUPP. 6 S.C.R.
A
3. Not only the Government required the Commissioner of Endowment
to see that the above mentioned terms were reduced into a deed of compromise
by the parties but Order XXIII Rule 3 CPC also required the compromise
to be in writing and signed by the parties; no court could accept the
compromise, which was not in writing and not signed by the parties; therefore,
B the order of the learned single Judge accepting the compromise not signed
by the parties was in violation of Order XXIII Rule 3 CPC and consequently
it was void. Rule 24 of the A.P. Writ Proceedings Rules, 1977 makes the
provisions of Order XXIII Rule 3 CPC applicable to the proceedings under
Article 226 of the Constitution of India.
C
4. Having noted the submission of the Advocate General that he did
not appear before the learned single Judge, who disposed of the writ petition
in terms of the alleged compromise, the Division Bench out to have ascertained
the facts as to who appeared for the official respondent Nos. I to 4 when
the writ petition was disposed of; a concession made by the counsel on the
D question of law is not binding on the parties; Section 96(3) of CPC is no
·bar for challenging the consent order on the ground of illegality and/or
fraud.
E
F
5. The learned single Judge, who disposed of the second appeal No.
122/1979 on 2.7.1979, made the following observations: -
"As pointed out by the lower appellate Court, Ex. A-I shows that
the land was gifted absolutely to Gunnaji. The Government cannot
claim any interest in the land. The fact that Gunnaji' s sister
constructed a private temple subsequently on a portion of the land,
does not make the gift of the land an en.dowment in favour of God."
There being no pleadings, no prayer and no arguments before the learned
Judge on the above aspects, it was a mistake on his part to have made such
observations; it is settled law that such a mistake on the part of the court
shall not prejudice anyone. Further, the observations quoted above were not
G 'findings' as there was no issue at all warranting the same; the above
extracted observations in any event were outside the scope of a second
appeal, consequently, they were without jurisdiction; a decree by a court
without jurisdiction is a nullity and its validity could be set up whenever
and wherever it is sought to be enforced or relied upon, even at the stage
H of execution and even in the collateral proceedings.
COMMISSIONER OF ENDOWMENTS v. VITT AL RAO [PATIL. J.]
387
6. The observations made by the learned single Judge while dismissing A
the second appeal confirming the decree of the court below declaring
respondent No. one's father as a hereditary trustee of the temple, did not
create any additional right; the decree alone conclusively determines the
rights of the parties.
7. It was not necessary for the appellants to challenge the orders of the
High Court made in PIL and in the contempt petition as they were based
on order of the learned single Judge dated 17.10.1995; the principle of
consequential orders applies.
B
The learned counsel for respondent No. 1 on the other hand made C
following submissions fully supporting the impugned judgment: -
l. The High Court rightly dismissed the appeal by the impugned order
on the three grounds-(a) in view of Section 96(3) ofCPC an appeal against
a consent decree was not maintainable, (b) the allegations of fraud and D
misrepresentation were without any basis and (c) the finding recorded in the
first round of litigation operated as res judicata against the appellants.
2. Neither in the review petition nor in the writ appeal nor in the special
leave petition filed in this Court in the year 1998 nor in the present civil
appeal it was stated that the Advocate General was not present or that he E
did not consent to the decree being passed as recorded by the learned single
Judge in the High Court in the writ petition; it was for the first time before
the Division Bench of the High Court it was orally contended that the
Advocate General was not present and his junior had appeared; at no point
of time it was averred that the Advocate General or his junior were not F
authorized to appear or to compromise the matter or that they had acted
contrary to express instructions.
3. Following were the circumstances in which the Memorandum dated
27.10.1989 was issued: -
a)
The said Memorandum was the culmination of a proposal mooted by
the Commissioner, Endowments on 14.6.1989 and accepted by the
Government of Andhra Pradesh on 27. l 0.1989.
·
G
b)
ln the proposal dated 14.6.1989, the Commissioner of Endowment H
388
SUPREME COURT REPORTS [2004] SUPP. 6 S.C.R.
A
traced the entire history of litigation and stated that the land in question
was gifted to Gunnaji and the grant covered by the gift deed was
absolute in view ofthe findings recorded by the High Court and this ·
Hon'ble Court which were binding on the Deputy Commissioner, who
had to decide whether or not the grant in question was an endowment.
B
c
c)
It is in this view of the matter that the Commissioner, Endowment (and
not the Assistant Commissioner as contended by the other side) mooted
the proposal for compromise, which was accepted by the Government
of Andhra Pradesh.
d)
The writ petition having been disposed on the basis of the said proposal
mooted by the Commissioner, Endowment (the appellant No. 1 herein)
and accepted by the Government and that too on the specific
representation by the learned counsel for the appellants that the writ
petition may be disposed of on the said terms, it cannot be contended
D
that the High Court committed any error in disposing of the writ
E
F
petition accordingly.
4. The cbnsent order passed in the writ petition is not contrary to the
provisions of the Act -
a)
In the first round of litigation findings were recorded that there was
no endowment at all; the gift in question was not a gift to God; it was
an absolute gift to Gunnaji and that the temple in question was a private
temple. This being the position, the provisions of the Act are not
attracted to the land in question in any manner whatsoever.
b)
The Commissioner, Endowments having accepted in his proposal dated
14.6.1989 that the said findings were binding on the Deputy
Commissioner, Endowments for the purpose of exercise of jurisdiction
under Section 87 of the Act, it cannot be said that the compromise was
G
in violation of the provisions of the Act.
5. In the earlier round of litigation a clear finding is recorded that the
temple in question was a private temple and the said finding has attained
finality. Merely because there is reference to a Dharamshala in the gift deed
H
it did not imply that there was an endowment of a public character.
. .
',
-
COMMISSIONER OF ENDOWMENTS v. VITT AL RAO [PATIL, J.]
389
6. Order XXIII Rule 3 CPC cannot be strictly applied to the proceedings A
under Article 226 of the Constitution of India -
a)
The explanation to Section 14 l of CPC states that the expression
'proceedings' does not include any proceedings under Article 226 of
the Constitution of India. Therefore, it cannot be said that the provisions B
of Order XXIII Rule 3 CPC should be mandatorily followed in the writ
proceedings.
b)
The High Court while exercising jurisdiction under Article 226 of the
Constitution of India possesses inherent powers to do justice between c
the parties; the power of the High Court to dispose of the matter by
recording consent of the parties flows from Article 226 of the
Constitution of India and not from Order XXIII Rule 3 CPC. Further,
the manner in which such power is to be exercised is not controlled
by Order XXIII Rule 3 CPC.
D
c)
The contention that Order XXIII Rule 3 CPC was applicable in view
of the rules framed by the Andhra Pradesh High Court is not correct.
The provisions of CPC are applicable to the extent possible and having
regard to the context. If the provisions ofCPC are held to be applicable
to proceedings under Article 226 of the Constitution, absurd E
consequences will follow. Then it can be urged that before deciding
a writ petition issues should be framed under Order XIV, evidence
should be lead, etc.
d)
In the present case admittedly the compromise terms were available F
in writing in the form of memorandum dated 27.10.1989 and the same
were accepted. Thus provisions of Order XXIII Rule 3 CPC stood
substantially complied with.
7. The decisions and findings recorded in the first round of litigation
do operate as res judicata against the appellants.
G
8. In view of the dismissal of Civil Appeal Nos. 702 and 703of1980
by this Court it is not open to the appellants to question the validity of the
decisions and the findings, which stood concluded in the earlier round of
litigation.
H
390
SUPREME COURT REPORTS [2004) SUPP. 6 S.C.R.
A
We have carefully examined the rival contentions urged on behalf of
the parties in the light of the material placed on record.
Late Manik Rao, father of respondent No. l, filed suit No. OS No. 509
of 1971 in the City Civil Court at Hyderabad for declaration that the plaintiff
B was hereditary mutawalli (trustee) of Pandarinath Temple, generally known
as Jangli Vithoba Temple at Osman Shahi, Hyderabad City, entitled to get
his name entered in column No. I I of the Endowment Register, for perpetual
injunction restraining the defendants from constituting or reconstituting any
committee for the temple and to set aside the order of the Government dated
I 7 .6. I 97 I covered by G.O. Rt. No. 680. The Government of Andhra Pradesh
C was defendant No. 1 and the Commissioner, Endowments (appellant No. 1
herein) was the defendant No. 2 in the suit. One Vasedeve Naik, a person
. appointed as Chairman of the Managing Committee constituted for the
temple by the Government, was defendant No. 3 in the said suit. The trial
court dismissed the suit on 23.3.1977.
D
The First Appeal A.S. No. 199 of 1977, filed by the plaintiff Manik
Rao, was allowed on 22.12.1978 granting decree as sougbt for by the
plaintiff in the suit. Temple Committee, the third defendant in the suit, filed
Second Appeal S.A. No. 122of1979 in the High Court. The Government
and the Endowment Commissioner (defendant Nos. l and 2) did not file any
E appeal challenging the decree passed by the first appellate court in favour
of Manik Rao, father of respondent No. I. In other words, they accepted
the decree. Even otherwise the said second appeal was also dismissed by
the High Court on 2. 7 .1979 affirming the decree passed by the first appellate
court.