S.N. Srivastava, J. - (1.) RELIEF sought in the petition in hand is for quashment of order dated 8.3.1994 (Annexure -14 to the writ petition) passed by Additional Commissioner, Varanasi Division, Varanasi arrayed as respondent No. 2 and also the order dated 20.12.1991 passed by Chief Revenue officer Varanasi (Annexure -12 to the writ petition) besides challenge to the vires of Section 2 and other relevant Section of Act No. 3 of 1986 in so far as it confers Judicial power of appeal on Commissioner (the executive Head) being ultra vires Article 50 of the Constitution of India.
(2.) BABA Kinaram Aghorepith Ramshala Ramgarh Pargana Barrah district Varanasi claims itself to be a religious and charitable endowment and the land forming part of the Math is also claimed to have been dedicated by several persons of the locality for public religious and charitable purposes. The holding consisting in the Math comprises school, its building, temple and Samadhi, residential cottage for disciples, and the place of religious and public importance like Tank, Mela, Lolarakchath and Bhuidhara. Upon receiving notice the text of which was that certain land of petitioner Math is liable to be declared as surplus, objections were filed by petitioner founded on the ground that since it was a religious and charitable endowment, it is fully covered by Section 6 of the Act and further that no land consisting in the Math could be declared as surplus. It would appear from the record that in the ultimate analysis, the Prescribed Authority vide its order dated 20.9.1991, pronounced the decision declaring certain land as surplus. Appeal preferred against the impugned order came to be transferred to 4th Additional District and Sessions Judge Varanasi and this appeal also culminated in being dismissed vide order dated 23.2.1977. Thereafter, the matter travelled to this Court by filing Writ Petition No. 3060 of 1977 and by means of order dated 22.1.1987, this Court allowed the writ petition, quashed the impugned judgments and relegated the matter to the prescribed authority directing to determine the claim of the petitioner strictly in accordance with law regard being had to observations embodied in the judgment. The order of the Court is annexed to the petition as Annexure -10. It would further appear from the record that in the second inning, the Prescribed Authority in the ultimate analysis declared 63.93 acres of land of the petitioner situated in villages Bairath, Khetarpala, Raiyya, Mehmoodpur, Palia, Auravan, Sonbarsa, Ramgarh, Taiyya falling within Tahsil Sakladiha district Varanasi as surplus. Against the said order, an appeal was preferred before the appellate authority, i.e., Commissioner as in the meantime, Section 13 of the U.P. Act No. 3 of 1986 by which judicial power of deciding the appeal vested in the District Judge was halved off from the District Judge and instead it was conferred on Commissioner. Upon appeal being instituted before the Commissioner, it came to be transferred to Additional Commissioner who dismissed the same holding that provisions of Section 6F were not attracted for application to the present case. Learned Counsel for the petitioner argued at prolix length canvassing the intra vires of U.P. Act No. 3 of 1986 besides canvassing arguments on the validity of the impugned judgment and orders. I have also heard learned standing counsel at considerable length.
(3.) THE first ground pressed into service by the learned Counsel for the petitioner is that the provisions of U.P. Act No. 3 of 1986 conferring Judicial power of appeal on Commissioner which earlier vested on the District Judge is ultra vires to the Constitution of India arguing further that Constitution of India postulates complete separation of judiciary from Executive and the judicial power which was earlier conferred by the Legislature on District Judge to exercise appellate power against the order passed by Prescribed Authority was erroneously taken away in flagrant antagonism of basic structure of the Constitution of India. He also argued that separation of judiciary from executive has been posited as one of the basic structure of the Constitution and by this reckoning, proceeds the submission, the subsequent enactment by enacting U.P. Act No. 3 of 1986 militates against the basic structure of the Constitution of India. The learned Counsel also canvassed that by this amendment, the petitioner was deprived of getting justice from the members of State Judiciary. He further canvassed that the case is fully covered by Section 6F of the Act and petitioner Math which is a public religious and charitable endowment, the income accruing from the land was utilized for public religious and charitable purposes on running the Math beneficiary of which is the public at large. The attention of the Court has also been drawn to the fact that the petitioner Math is also running a recognized Intermediate College and other schools which impart education to the children and thus subserving the public purpose. The learned Counsel also adverted attention to the fact that notices were issued to the petitioner Math under the Agricultural Income Tax Act and in the proceeding, verdict has already come that petitioner Math is a religious and charitable endowment and consequently, the notices were discharged. The learned Counsel also launched into a fierce polemic urging that oral as well as documentary evidence of the petitioner was not considered at all either by the Prescribed Authority or by the appellate authority attended with further submission that petitioner's objection was not accepted on the ground alone that in the statement of account, the statement was kept for income and expenditure from 1949 to 1977 and in all these years in one ledger book, deficit was shown for certain years. The other ground urged is that a part of the income was used for purchasing horses and elephants for Math, which according to the view of the authorities below, could not be treated to be religious and charitable purposes. Per contra, learned standing counsel contended that State Legislatures are competent to enact the U.P. Act No. 3 of 1986 and power was rightly taken away from the District Judge and conferred on the Commissioner citing the instance of meandering procedures and massive delay entailed in disposal of cases in the courts of law. He further justified the competence of the State Legislature to enact the law. The learned standing counsel also contended that Article 50 of the Constitution is a part of Chapter IV of the Constitution of India and thus it is not enforceable. Coming to finding recorded by the Prescribed Authority and also the appellate authority the learned standing counsel submitted that finding of the authorities that petitioner Math is not a religious and charitable endowment is persuasively correct and consistent with the weight of evidence on record. And thus the same are liable to be affirmed.;