Andhra Pradesh High Court - Amravati

N.Govinda Swamy, vs The State Of Andhra Pradesh, on 16 July, 2021

     IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI



                                   ***

                       W.P.No.12609 of 2021

Between:

1.    N.Govinda Swamy, S/o.Late Sri Sri Sri Veerabhoga
      Vasantha Venkateswara Swamy Varu, Aged about
      14 years, Being Minor, Rep.by his Mother and
      Natural Guardian, Smt.N.Maruthi Mahalakshmi,
      R/o.Sri Mad Virat Pothuluri Veera Brahmendra
      Swamy     Mutt,  Kandi    Mallayapalli    Village,
      Brahmamgari MathanmMandal, YSR Kadapa
      District.


2.    Smt.N.Maruthi Mahalakshmi, W/o.late Sri Sri Sri
      Veerabhoga Vasantha Venkateswara Swamy Varu,
      Hindu, Aged about 40 years, R/o.Sri Mad Virat
      Pothuluri Veera Brahmendra Swamy Mutt, Kandi
      Mallayapalli  Village, Brahmamgari    Matham
      Mandal, YSR Kadapa District.



                                                            ... Petitioners

                                  And

1.    The State of Andhra Pradesh, Rep.by its Principal
      Secretary,   Revenue,    Secretariat     Buildings,
      Velagapudi, Amaravathi, Guntur District.

2.    The Special Commissioner of Endowments,
      Government of Andhra Pradesh, Gollapudi,
      Vijayawada, Krishna District.

3.    Andhra Pradesh Dharmika Parishad, Rep.by its
      Member    Secretary, O/o. Commissioner    of
      Endowments, Gollapudi, Vijayawada, Krishna
      District.

4.    The Assistant Commissioner         of   Endowments,
      Kadapa, YSR Kadapa District.

5.    The Deputy Commissioner            of   Endowments,
      Kurnool, Kurnool District.

6.    The Commissioner of Endowments, Government of
      Andhra Pradesh, Gollapudi, Vijayawada, Krishna
      District.



                                                        ... Respondents
                                    2




         Date of Pronouncement of Judgment : 16-07-2021




           HON'BLE SRI JUSTICE R. RAGHUNANDAN RAO




1. Whether Reporters of Local newspapers              : Yes/No

   May be allowed to see the judgments?



2. Whether the copies of judgment may be marked       : Yes/No

   to Law Reporters/Journals:



3. Whether the Lordship wishes to see the fair copy   : Yes/No

  Of the Judgment?
                                     3




*IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI


          * HON'BLE SRI JUSTICE R. RAGHUNANDAN RAO



                       + W.P.No.12609 of 2021



% Dated: 16-07-2021


#1.   N.Govinda Swamy, S/o.Late Sri Sri Sri Veerabhoga
      Vasantha Venkateswara Swamy Varu, Aged about
      14 years, Being Minor, Rep.by his Mother and
      Natural Guardian, Smt.N.Maruthi Mahalakshmi,
      R/o.Sri Mad Virat Pothuluri Veera Brahmendra
      Swamy     Mutt,  Kandi    Mallayapalli    Village,
      Brahmamgari MathanmMandal, YSR Kadapa
      District.


2.    Smt.N.Maruthi Mahalakshmi, W/o.late Sri Sri Sri
      Veerabhoga Vasantha Venkateswara Swamy Varu,
      Hindu, Aged about 40 years, R/o.Sri Mad Virat
      Pothuluri Veera Brahmendra Swamy Mutt, Kandi
      Mallayapalli  Village, Brahmamgari    Matham
      Mandal, YSR Kadapa District.


                                                            ... Petitioners

                                  And

#1.   The State of Andhra Pradesh, Rep.by its Principal
      Secretary,   Revenue,    Secretariat     Buildings,
      Velagapudi, Amaravathi, Guntur District.

2.    The Special Commissioner of Endowments,
      Government of Andhra Pradesh, Gollapudi,
      Vijayawada, Krishna District.

3.    Andhra Pradesh Dharmika Parishad, Rep.by its
      Member    Secretary, O/o. Commissioner    of
      Endowments, Gollapudi, Vijayawada, Krishna
      District.

4.    The Assistant Commissioner        of   Endowments,
      Kadapa, YSR Kadapa District.

5.    The Deputy Commissioner           of   Endowments,
      Kurnool, Kurnool District.

6.    The Commissioner of Endowments, Government of
      Andhra Pradesh, Gollapudi, Vijayawada, Krishna
      District.


                                                        ... Respondents
                                  4




! Counsel for petitioner       : M. Pitchaiah



^Counsel for Respondents 1 to 6 : G.P. for Endowments




<GIST :




>HEAD NOTE:




? Cases referred:
                                  5




       HON'BLE SRI JUSTICE R. RAGHUNANDAN RAO

             WRIT PETITION No.12609 of 2021

ORDER:

The interim management of Sri Mad Virat Pothuluri Veera

Brahmendra Swamy Mutt (herein after referred as "the Mutt"), is

the subject matter of the dispute before this Court.

2. The 2nd petitioner is the widow of the 11th

Peethadhipathi of the Mutt. He passed away on 08.05.2021. It

is the case of the 2nd petitioner that her elder son, who is the 1st

petitioner herein, had been nominated by her late husband as

the person to be appointed as Peethadhipathi by way of a Will

executed on 10.11.2018. It is also the case of the petitioners

that as the 1st petitioner was still a minor, it was stipulated in

the Will that the 2nd petitioner would be a temporary

Peethadhipathi, till the 1st petitioner attains majority. It is the

case of the petitioners that the deceased Peethadhipathi had, on

01.10.2010, nominated the 1st petitioner as his successor

Peethadhipathi and intimated the said nomination on the same

day to the Dharmika Parishad by way of a letter sent under

certificate of posting. It is further submitted that the nomination

of the 1st petitioner as the permanent Peethadhipathi and the

2nd petitioner as the temporary Peethadhipathi under the Will

dated 10.11.2018 was also intimated to the Dharmika Parishad.

3. The petitioners have now approached this Court on

the ground that the 2nd respondent had issued proceedings in

Rc.No.DPCELL/COE-25030(31)/152021, dated 12.06.2021,

under Section 52 of the Endowments Act, appointing the

Assistant Commissioner, Endowments Department, Kadapa as a

fit person under Section 51 of the Endowments Act to take over

the administration of the Mutt.

4. The learned Government Pleader for Endowments,

appearing for the official respondents submitted written

instructions from the respondents, the proceedings of the

Dharmika Parishad, which took the decision to appoint a fit

person under Section 52 of the Endowments Act, and also the

Andhra Pradesh Charitable and Hindu Religious Institutions

and Endowments Dharmika Parishad Rules, 2009 (herein after

referred to as the Dharmika Parishad Rules).

5. Sri M. Pitchaiah, learned counsel for the petitioners

after having gone through the written instructions and the

documents and the proceedings of the Dharmika Parishad

assails the impugned order dated 12.06.2021 as well as the

proceedings of the Dharmika Parishad on the following grounds:

i) Section 52 of the Endowments Act would not be applicable to the present case for the following reasons:

a) Section 52 of the Endowments Act would apply only where there is a temporary vacancy or dispute in regard to right of succession in a temporary vacancy or where the Peethadhipathi is a minor and does not have a proper guardian. He submits that none of the situations arise in the present case as the death of the earlier Peethadhipathi has created a permanent

vacancy and the 2nd petitioner, who is the mother of the 1st petitioner is willing to act as the guardian of the 1st petitioner till he attains majority.

b) The dispute relating to succession would not be in relation to a permanent vacancy and only relates to a temporary vacancy as can be seen from the language of the provision.

ii) Rule 13 to 22 of the Dharmika Parishad Rules set out the manner in which a meeting of the Dharmika Parishad is to be conducted. These rules require notices to be sent to the members of the Dharmika Parishad along with an agenda setting out the issues to be discussed in the meeting.

6. In the present case, no such meeting has been called

for, and as such, the decision of the Dharmika Parishad cannot

be accepted, as it was signed without a meeting. Rule 23 of the

Dharmika Parishad Rules stipulate that a decision can be taken

by way of resolution, provided, it is a unanimous decision of all

the members of the Dharmika Parishad. In the present case,

even according to the respondents, there are four members in

the Dharmika Parishad. However, one member, viz., the

Executive Officer of Tirumala Tirupathi Devasthanam did not

sign the note filed by way of circulation. In the absence of the

assent of the Executive Officer, by way of his signature on the

resolution, the requirement of a unanimous decision has not

been complied with.

7. The requirement of unanimous decision is

mandatory, in as much as, an emergency meeting has to be

called in the event of the members of the Dharmika Parishad

failing to have unanimity.

8. One of the members of the Dharmika Parishad is

shown to be the Special Commissioner. A reading of the

Endowments Act would show that there is no designation of

Special Commissioner available in the Endowments Act. The

definition of Commissioner, as set out in Section 2(6), does not

include a Special Commissioner. In the circumstances, the

impugned order dated 12.06.2021 issued by the Special

Commissioner, allegedly on behalf of the Dharmika Parishad,

does not answer the requirements of the Dharmika Parishad

Rules.

9. Sri M.Pitchaiah, learned counsel for the petitioners

would submit that for all the aforesaid reasons, the impugned

proceedings would have to be set aside.

10. The learned Government Pleader for Endowments

has filed written instructions and also the proceedings of the

Dharmika Parishad, on the basis of which the impugned order

has been passed. She would submit that the proceedings under

Section 52 of the Endowments Act have been initiated on

account of the disputes, between the members of the family of

the deceased Peethadhipathi, in relation to the succession to the

office of Peethadhipathi of the Mutt. Section 52 of the

Endowments Act clearly provides for appointment of a fit person,

as a temporary measure, till the succession is decided. In the

circumstances, the decision of the Dharmika Parishad cannot be

held to be without jurisdiction or irregular.

11. She further submits that Rule 4 of the Dharmika

Parishad Rules permits the Chairman of the Dharmika Parishad

to take decisions, when there is no time for the Dharmika

Parishad to meet or take a decision on the issue. She would

further submit that since the Hon'ble Minister for Endowments,

was a participant of the proceedings of the Dharmika Parishad, it

can always be held that even if the proceedings of the Dharmika

Parishad are not in accordance with the Rules, the presence of

the Chairman would save the resolution by virtue of Rule 4 of the

Dharmika Parishad Rules.

12. On facts, she would submit that the telephonic

approval was obtained from the Executive Officer, TTD and as

such, it cannot be said that there is no unanimity in the

decision. In the alternative, she would also submit that since all

the members, who signed the resolution have expressed the

same view, it would have to be treated as an unanimous decision

of the Dharmika Parishad and the absence of assent or signature

of one of the members cannot be treated as a situation where

there is no unanimity between the members.

Consideration of the Court:

13. The contentions of Sri M.Pitchaiah, learned counsel

for the petitioners are twofold. Firstly, Section 52 is not available

for the Dharmika Parishad to make an arrangement for the

management of the Mutt and secondly, even if the Dharmika

Parishad has such a power, the manner in which such power

has been exercised is not in accordance with the act and the

Dharmika Parishad Rules.

14. Sri M. Pitchaiah, learned counsel for the petitioners

contends that Section 52 of the Endowments Act would apply

only to a case of temporary vacancy and cannot be applied in the

case of a permanent vacancy.

15. The provisions relating to Mutts and specific

endowments attached there to are contained in Chapter 5 of the

Andhra Pradesh Charitable and Hindu Religious Institutions and

Endowments Act, 1987. Section 53 provides for filling of

permanent vacancies in the office of the Peethadhipathi. Section

54 provides that a sitting Peethadhipathi may nominate his

successor and the said nomination should be intimated to the

Dharmika Parishad within 90 days of such nomination. It is

further stipulated that such nomination will not be completed

until it is recognized by the Dharmika Parishad. Where there is a

temporary vacancy or where there is a dispute in regard to the

right of succession to such office, the Dharmika Parishad can

make an arrangement for the administration of the Mutt, till

Peethadhipathi is appointed.

16. The language of Section 52 is not restricted only to a

situation where there is a temporary vacancy. The words "there

is a dispute in regard to the right of succession to such office", in

section 52 of the Act, clearly show that the Dharmika Parishad is

empowered to make an arrangement in the administration of a

Mutt where, the succession to the office of the Peethadhipathi, in

a permanent vacancy, is in dispute.

17. A perusal of the documents placed before the Court

by the petitioners as well as the respondents show that there is a

dispute regarding succession to the office of Sri Mad Virat

Pothuluri Veera Brahmendra Swamy Mutt. On the one hand, the

petitioners claim that the first petitioner is the person nominated

by the deceased Peethadhipathi as his successor by virtue of the

Will dated 10.11.2018 and that, such a Will and also a

nomination made by the deceased Peethadhipathi was intimated

to the Dharmika Parishad. On the other hand, the children of the

first wife of the deceased Peethadhipathi are also making claims

to the office of the Peethadhipathi of the Mutt. The proceedings

of the 2nd respondent as well as the proceedings of the Dharmika

Parishad, which have now been placed before this Court by the

learned Government Pleader, would mention these disputes as

the reason for exercising the power under section 52 of the Act.

In such a situation, the exercise of power cannot be said to be

without jurisdiction.

18. On the question of the procedural defects in the

decision making process, the contention of Sri M. Pitchaiah,

learned counsel for the petitioners is that the Dharmika Parishad

Rules require a meeting to be held, before any decision can be

taken by the Dharmika Parishad. He contends that in the

present case no meeting was held and only the signatures of the

members of the Dharmika Parishad appear to have been taken

and the same is in violation of the procedure set out under Rule

13 to Rule 22 of the Dharmika Parishad Rules. He further

contends that even if Rule 23 is to be applied, the resolution has

to be an unanimous resolution of the Dharmika Parishad and in

the present case, the Executive Officer of TTD has not signed the

resolution and as such, there is no unanimous resolution. An

ancillary objection is that it is the Commissioner of Endowments,

who is a member of the Dharmika Parishad and a person

designated as Special Commissioner cannot take the place of the

Commissioner.

19. Section 152 of the Act, which provides for the

constitution of a Dharmika Parishad reads as follows:

(1) The Government shall, by notification in the 'Andhra Pradesh Dharmika parishad' for the State consisting of the following members, namely:-

(i) Minister for Endowments who shall be the Chairman;

(ii) The Principal Secretary/Secretary to Government, Revenue Department in charge of religious and Charitable Institutions and Endowments;

(iii) The Commissioner of Endowments who shall be member secretary;

(iv) The Executive Officer, Tirumala Tirupathi Devasthanams;

(v) one representative each from the Chairmen of Boards of Trustees from Section 6(a)(i) and

(ii), Section 6(b)(i) and (ii), Section 6(c)(i) and

(ii) and two Mathadhipathis published under Section 6(d) of the Act;

(vi) Retired Senior Officer of the Government who is a devout Hindu and has experience of and commitment to improve the Hindu Temple system, to be nominated by the Government;

(vii) A retired senior officer of the endowments department

(viii) Retired judge of the High Court who is a devout Hindu and has commitment to improve the Hindu Temple system;

(ix) A legal luminary/Advocate aged more than 62 years who is a devout Hindu and has experience and has commitment to improve the Hindu Temple system.

(x) Two prominent philanthropists who have a track record of establishment, maintenance and supporting various endowments, Charitable and Hindu religious institutions to be nominated by the Government;

(xi) Two Agama pandits to be nominated by the government;

(xii) one chartered accountant who is a devout Hindu and has a commitment to improve the Hindu Temple system, to be nominated by the Government.

(2) The Parishad may for the purpose of consultation, invite any person having experience and specialized knowledge in any subject under its consideration to attend its meetings and every such person shall be entitled to such allowances as may be prescribed.

(3) The powers, functions and term of office etc., of the members of Andhra Pradesh Dharmika Parishad shall be such, as may be prescribed.

(4) The Government may by order delegate its powers and functions to the Andhra Pradesh Dharmika Parishad.]

20. The proceedings of the Dharmika Parishad, produced

by the learned Government Pleader, show that, presently, the

Dharmika Parishad consists only of the four official members,

including the Commissioner of Endowments, enumerated in

Section 152 (1) (i) to (iv). The controversy is whether the person

given the designation of special commissioner can be equated

with "Commissioner" under the Endowment Act.

21. The Commissioner of Endowments is to be appointed

under Section 3(1) of the Endowments Act. The definition of

"Commissioner" is contained in Section 2(6) which reads as

follows:

"Commissioner means the Commissioner and the Additional Commissioner appointed under sub- section (1) of Section 3 and includes every officer who for the time being exercises the powers and performs the functions of a Commissioner under this Act or the rules made there under in respect of any charitable or religious institution or endowment as specified in sub-section (5) of Section 3.

22. A perusal of this provision would show that only the

Commissioner and Additional Commissioner appointed under

Sub section 3(1) of the Act, can be held to be Commissioner of

Endowments under the Act.

23. The learned Government Pleader for Endowment

would submit that under the same definition, all officers who

exercise the power and perform the functions of a Commissioner

under the act or the rules made there under, can also be treated

as a "Commissioner". She submits that since the Special

Commissioner is exercising all the powers and is performing the

functions of a Commissioner, the contention of Sri M. Pitchaiah,

learned counsel for the petitioners, cannot be accepted.

24. While the contention of the learned Government

Pleader appears attractive at first blush, it must be kept in mind

that unless there is a proceeding of the Government or statutory

authority conferring the powers of the Commissioner on the

Special Commissioner, it would be difficult to accept the

contention that the Special Commissioner should be treated as

the Commissioner under the Act. However, this issue need not

detain us and the said issue is left open for the following reason.

The Resolution of the Dharmika Parishad is signed by three out

of the present four members, including the Special

Commissioner, of the Dharmika Parishad. Even if the contention

of Sri M.Pitchaiah, is to be accepted, it would only mean that

there is no person holding the post of Commissioner of

Endowments and that the Dharmika Parishad has only three

members, namely the Hon'ble minister for Endowments, the

Principal Secretary to Government and the Executive Officer,

Tirumala Tirupathi Devasthanams, and this Court would be

required to see if all the remaining members of the Dharmika

Parishad had assented to the resolution. In such a situation the

signature of the Special Commissioner, acting as the

Commissioner may not be relevant.

25. It is true, Rule 13 to Rule 22 of the Dharmika

Parishad Rules set out the procedure under which the Dharmika

Parishad is to meet and the manner in which the decisions are to

be taken. However, none of these Rules would be applicable to

the present case as it is contended by the learned Government

Pleader that the decision of the Dharmika Parishad was taken by

way of a resolution by circulation under Rule 23 of the Dharmika

Parishad Rules. This Rule provides for a resolution by circulation

where the situation merits an immediate response from the

Dharmika Parishad without waiting for a formal meeting to be

convened. The said rule reads as follows:

(i) The Chairman may in case of emergency, ascertain the opinion of the members by circulation of the records among the members and, in case of unanimity of opinion, carry out the decision. If there is difference of opinion among the members during such circulation, the matter shall be considered at an emergency meeting convened for that purpose.

(ii) Where an unanimous decision is taken in circulation, it shall be placed before the next meeting of the Dharmika Parishad for confirmation.

26. As the resolution by circulation under Rule 23 is an

emergency measure, no specific procedure is set out for such a

resolution by circulation. However, the requirement is that the

resolution by circulation has to be unanimous. Even one dissent

is sufficient to defeat the resolution by circulation and the

Dharmika Parishad would have to mandatorily hold a meeting in

the event of even a single dissent in a resolution by circulation.

27. In the present case, it is the case of the respondents

that the Dharmika Parishad presently consists of four members,

the Hon'ble Minister of Endowments, the Principal Secretary,

Revenue, the Commissioner of Endowments and the Executive

Officer of TTD etc.

28. The contention by Sri M.Pitchaiah, learned counsel

for the petitioners is that the absence of the signature of the

Executive Officer, TTD results in a situation where there is no

unanimous decision of the Dharmika Parishad. The learned

Government Pleader for Endowments submits that as long as

there is no dissent expressed by any member of the Dharmika

Parishad, the resolution by circulation should be treated as

unanimous.

29. Rules 13 to 22, which provides the procedure for

conduct of meetings of the Dharmika Parishad, stipulate a

minimum quorum and the need for decisions to be by way of

majority. Due to various reasons, some of the members may not

be able to attend all the meetings. Keeping this practicality in

mind, the general rule is that a meeting is valid and the decision

taken in such meeting binding on all the concerned, provided a

minimum number of members attend. In the case of resolution

by circulation, such practical difficulties do not arise, as the

resolution is circulated to all the members. In that process, the

question of the resolution not being circulated to any member

would not and cannot arise. Further, the requirement of

unanimity in a resolution by circulation is not qualified with any

leeway for near unanimity or decision by majority.

Consequently, the requirement of a unanimous resolution by

circulation, under Rule 23 of the Dharmika Parishad Rules,

would require that all the members of the Dharmika Parishad

have to give their assent to such a resolution. In the absence of

a positive assent to the resolution by all the members, it would

have to be treated that the resolution is not unanimous.

30. The learned Government Pleader has relied on rule

4 of the Dharmika Parishad Rules to contend that since the

Chairman of the Dharmika Parishad had participated in the

meeting, the decision would have to be treated as a decision

under rule 4. The said Rule 4 reads as follows:

"The Chairman of Dharmika Parishad is authorized to exercise the functions of Dharmika Parishad in regard to constitution of Trust Boards and any other matter of urgency and place the same before the Dharmika Parishad for ratification in the next meeting".

31. The said Rule comes into operation only when the

chairman, in cases of extreme and dire urgency, takes a

decision and thereafter the decision is placed before the

Dharmika Parishad for ratification. In the present case, the

resolution was by the Dharmika Parishad itself. The assent of

the chairman in the resolution cannot bring the resolution

under Rule 4. Any such interpretation would mean render the

requirement of unanimity among all the members of the

Dharmika Parishad, under Rule 23, otiose. This contention

cannot be accepted.

32. In these circumstance, the writ petition is allowed

and the resolution of the 2nd respondent Dharmika Parishad