Andhra Pradesh High Court - Amravati
Common Order vs Unknown on 8 September, 2021
HON'BLE SRI JUSTICE R. RAGHUNANDAN RAO
W.P.Nos.14418 of 2019, 1737 of 2020
5624 and 13493 of 2021
COMMON ORDER:
These writ petitions relate to the recognition of Sri Guda
Ramamohan as a member of the founder family relating to Sri Moksha
Ramalingeswara Swamy Temple and the consequential proceedings
thereon.
2. By proceedings in Rc.No.D2/14022(51)/25/2018, dated
12.09.2019, the Commissioner of Endowments had recognised Sri Guda
Ramamohan as a member of the founder family of Sri Moksha
Ramalingeswara Swamy Temple, Ramatheerdham Village, Cheemakurthi
Mandal, Prakasam District. This has been challenged by Sri Guda
Chidambara Sastry, the writ petitioner in W.P.No.14418 of 2019.
3. Subsequent to these proceedings, the Deputy Commissioner
of Endowments, Guntur, by proceedings in Rc.No.A5/1990/2019, dated
09.01.2020 had fixed rotation among the founder trustees. This has again
being challenged, by way of W.P.No.1727 of 2020, by the writ petitioner
in W.P.No.14418 of 2019. W.P.No. 5624 of 2021 and W.P.No. 13493 of
2021 have been filed by Sri Guda Ramamohan for implementation of the
orders of the Commissioner, Endowments.
4. Since the entire controversy relates to the recognition of Sri
G. Ramamohan as a member of the founder family of Sri Moksha
Ramalingeswara Swamy Temple, and the disposal of all the Writ Petitions
would turn on this issue, W.P.No.14418 of 2019 is being taken up as the
main case.
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W.P.Nos.14418/2019 & batch
5. It is the case of the writ petitioner, viz., Sri G. Chidambara
Sastry that his father had been recognised as a hereditary trustee of Sri
Moksha Ramalingeswara Swamy Temple-the 2nd respondent herein, by
way of proceedings of the Deputy Commissioner, Endowments
Department Guntur dated 03.04.1983 in O.A.No.11 of 1982 under the
provisions of the A.P. Charitable and Hindu Religious Institutions and
Endowments Act, 1966, (for short „the 1966 Act‟) and subsequently he
was also recognised, under the provisions of the A.P. Charitable and
Hindu Religious Institutions and Endowments Act, 1987, (for short „the
1987 Act‟), as a member of the founder family by way of proceedings of
the Assistant Commissioner of Endowments, Ongole in Rc.No.A1/7689/98,
dated 20.01.1999.
6. The petitioner further submits that after the demise of his
father, he was recognised as a member of the founder family by the
Commissioner, Endowments Department, Hyderabad, in proceedings
bearing Rc.No.33/17194/2015, dated 16.12.2015.
7. The petitioner contends that Sri Guda Rammohan, the 5th
respondent in this writ petition, had filed O.A.No.37 of 1984 before the
Deputy Commissioner Endowments Department, Guntur for recognition as
a hereditary trustee under the 1966 Act, which came to be dismissed on
12.08.1987. It is stated that the 5th respondent had not taken any steps
thereafter, till 2018 when he filed an application before the Commissioner
of Endowments, for being recognised as a member of the Founder family
of the Temple. Upon this application being filed, the writ petitioner had
filed objections disputing the right of the 5th respondent being recognised
as a member of the founder family.
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W.P.Nos.14418/2019 & batch
8. The writ petitioner submits that despite these objections, the
Commissioner recognised the 5th respondent as a member of the founder
family, which is impermissible.
9. Sri M. Vidyasagar, learned counsel appearing for the
petitioner in W.P.No.14418 of 2019 raises the following contentions:
1. That on the merits of the case, the 5th Respondent is not entitled to
be recognised as a member of the founder family.
2. Once the writ petitioner had raised disputes by way of a
representation, the Commissioner, Endowments could not have
entertained the application and the said application should have
been referred to the A.P. Endowments Tribunal, under
Section 87 (1)(h) of the 1987 Act. The Commissioner had no
jurisdiction to decide the status of the 5th respondent once the
petitioner had raised a dispute.
3. A reading of Section 17 of the 1987 Act, as interpreted by a learned
Single Judge of the erstwhile High Court of Hyderabad for the State
of Telangana and the State of Andhra Pradesh, in
Vallabharayeswara Swamy Temple v. Bellamkonda Venkata
Subrahmanya Sarma1, precludes the 5th respondent from even
making an application for being recognised as a member of the
founder family, as only the persons who had been recognised as
hereditary trustees under the 1966 Act and their family members
are entitled to apply for being recognised as members of the
founder family.
2014 (5) ALT 801.
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W.P.Nos.14418/2019 & batch
10. Sri D.V. Sasidhar, learned counsel appearing for the 5 th
respondent, disputes these contentions. He has taken this Court through
the pleadings and proceedings before the various authorities to contend
that the claim of the forefather of the petitioner had been recognised even
earlier, though not by way of formal order, and as such there was no
dispute except a created dispute of the petitioner. In the circumstances,
he contends that neither the dispute raised on merits nor the second
contention of the petitioner that the matter ought to go before the
Tribunal under Section 87 (1)(h) of the 1987 Act, would survive.
11. As far as the third contention of the petitioner is concerned,
Sri D.V. Sasidhar would submit that an application by the 5th respondent
for recognition as member of the founder family is maintainable. He
further submits that another learned Single Judge of the erstwhile High
Court at Hyderabad for the State of Telangana and the State of Andhra
Pradesh had held that the judgment relied upon by Sri M. Vidyasagar was
not binding and that such applications are maintainable. He relies upon
the judgement of the learned single judge reported in Kum. Shashikala
and ors., v. Smt. Babita Sharma and ors.2.
Consideration of the Court:
12. The relevant provisions of Section 17 of the Act of 1987 read as
follows:
Procedure for making appointments of
trustees and their term. - (1) In making the
appointment of trustees under Section 15, the
Government, the Commissioner, the Deputy Commissioner
or the Assistant Commissioner, as the case may be, shall
have due regard to the religious denomination or any
2018 (4) ALT 161
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section thereof to which the institution belongs or the
endowment is made and the wishes of the founder:
[Provided that the founder or one of the members
of the family of the founder, if qualified as prescribed shall
be appointed as one of the Trustees.
[Explanation 1. - 'Founder' means,-
(a) in respect of Institution or Endowments existing
at the commencement of this Act, the person who was
recognized as Hereditary Trustee under the Andhra
Pradesh Charitable and Hindu Religious Institutions and
Endowments Act, 1966 or a Member of his family
recognized by the Competent Authority;
(b) In respect of an Institution or Endowment
established after such commencement, the person who
has founded such Institution or Endowment or a member
of his family and recognized as such by the competent
authority.]
Explanation II. - "Member of the family of the founder"
means children, grand children and so in agnatic line of
succession for the time being in force and declared or
recognized as such by the relevant appointing authority.
Explanation III. - Those persons who founded temples by
collecting donations partly or fully from the public as well
as those who founded them on public lands shall not be
recognized as founder trustees by any means.]
13. These provisions had been considered by a learned Single
Judge of the erstwhile High Court at Hyderabad for the State of Telangana
and the State of Andhra Pradesh in the case of Vallabharayeswara Swamy
Temple v. Bellamkonda Venkata Subrahmanya Sarma (1 supra).
14. The learned Single Judge had held that only those persons
who had been recognised as hereditary trustees under the provisions of
1966 Act, and their family members would be entitled to make an
application under Section 17 for being recognised as a member of the
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founder family. The learned Judge took the view that the amendments
brought in by way of Act 33 of 2007 had created a specific bar against an
application being made for the first time under the 1987 Act for being
recognised as a member of the founder family of a religious institution or
endowment. The learned judge also took the view that Section 87 (1) (h)
of the 1987 Act has to be read down, as it is in conflict with the language
of Section 17.
87. Power of Endowments Tribunal to decide
certain disputes and matters. - (1) The Endowments
Tribunal having jurisdiction shall have the power, after
giving notice in the prescribed manner to the person
concerned, to enquire into and decide any dispute as to
the question.
(a) .....
(b) .....
(c) ......
(d) ......
(e) .....
(f) ......
(g) .....
(h) whether a person is a founder or a member from the
family of the founder of an Institution or Endowment.
15. The relevant part of the judgement in Vallabharayeswara
Swamy Temple v. Bellamkonda Venkata Subrahmanya Sarma (1 supra), is
as follows:
"By Act 33 of 2007, further amendments were
brought out to Section 17(1) w.e.f. 3-1-2008. While
amending Explanation-I, the Amendment Act added
Explanations II and III. As Explanation III is relevant only
for deciding Point No. 3, it will be discussed while dealing
with the said Point. Explanation-1 of Section 17(1) of the
1987 Act which is rather sweeping, has divided the
institutions into two categories. The institutions existing at
the commencement of the 1987 Act are included under
clause (a) and the institutions established after its
commencement are included under clause (b). In respect
of the institutions falling under clause (a), founder means
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a person who was recognised as hereditary trustee under
the 1966 Act or a member of his family recognised as such
by the competent authority. In respect of institutions
falling under clause (b), founder means the person who
has founded such institution or endowment or a member
of his family and recognised as such by the competent
authority.
It is significant to notice that Section 17 of the 1987 Act,
as originally inserted, did not define founder or a member
of founder family. Explanation-I inserted by Act 27 of 2002
did not classify the institutions or endowments based on
point of time at which they came into existence. However,
a clear demarcation is made through amendment made by
Act 33 of 2007 between the institutions or endowments
which existed at the commencement of the 1987 Act and
those which came into existence thereafter. It is worth
noticeable that in respect of declaration of founder of the
institutions falling under both clauses (a) and (b) of
Explanation-I, the jurisdiction of the appointing authority is
taken away and vested in the competent authority. For
every institution falling under clause (a), the authority
under the 1966 Act must have recognised the founder as a
hereditary trustee.
Explanation-II defined member of the family of the
founder as children and grand children and also in agnatic
line of succession for the time being in force and declared
and recognised as such by the relevant appointing
authority. From the plain language of Explanation-II, it is
clear that in respect of both categories of temples falling
under clauses (a) and (b) of Explanation-I, the founder
should have been identified by the competent authority
under the respective Acts and a person can seek
appointment as trustee by approaching the appointing
authority with necessary proof that he is the successor to
the founder as defined in Explanation-II. It is implied from
this provision that such persons need not approach the
competent authority under Section 87(1)(h) of the 1987
Act to declare them as the successors to the founder. This
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W.P.Nos.14418/2019 & batch
means, if the founder was not recognised as the hereditary
trustee under the 1966 Act, his successors can neither
approach the appointing authority under Explanation-II nor
the competent authority under Section 87(1)(h) of the
1987 Act. What this amendment obviously meant to
achieve is to prevent persons from making claims for
declaration in respect of the institutions which existed
during the operation of the 1966 Act, under the 1987 Act.
The Legislature evidently sought to disallow stale claims
regarding founder and his family members. The
amendment has drawn a clear line between the two
categories of institutions referred to above and foreclosed
belated claims in respect of persons claiming to be the
founder or his family members in respect of the institutions
existing at the commencement of the 1987 Act. It is only
in respect of the institutions which came into existence
after commencement of the 1987 Act that the Deputy
Commissioner prior to the constitution of the Tribunal and
the Tribunal after its constitution, has been competent to
declare a person to be the founder."
16. A learned Single Judge of the erstwhile High Court at
Hyderabad for the State of Telangana and the State of Andhra Pradesh, in
the case of Kum. Shashikala and ors., v. Smt. Babita Sharma and ors,
while considering the above judgment, had held that the said judgment,
while interpreting the provisions of section 17 and Section 87(1) (h) of the
1987 Act, had not taken into account the observations of the Hon‟ble
Supreme Court in the case of Pannalal Bansilal Pitti v. State of
Andhra Pradesh3. In the case of Pannalal Bansilal Pitti, the Hon‟ble
Supreme Court upheld the constitutional validity of Sections 15, 16, 17, 29
(5) and 144 of the 1987 Act, which abolished the system of hereditary
offices in endowment institutions, subject to the condition that members
of the family of the founder should not only be members of the non
(1996) 2 SCC 498
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hereditary Trust Boards, but should be the chairmen of such boards. The
relevant observations of the Hon‟ble Supreme Court are:
27. The question then is whether legislative declaration of
the need for maintenance, administration and governance of
all charitable and Hindu religious institutions or endowments
or specific endowments and taking over the same and vesting
the management in a trustee or board of trustees is valid in
law. It is true, as rightly contended by Shri P.P. Rao, that the
legislature acting on the material collected by Justice Challa
Kondaiah Commission amended and repealed the predecessor
Act of 1966 and brought the Act on statute. Section 17 of the
predecessor Act of 1966 had given power to a hereditary
trustee to be the chairman of the board of non-hereditary
trustees. Though abolition of hereditary right in trusteeship
under Section 16 has already been upheld, the charitable and
religious institution or endowment owes its existence to the
founder or members of the family who would resultantly
evince greater and keener responsibility and interest in its
proper and efficient management and governance. The
autonomy in this behalf is an assurance to achieve due
fulfilment of the objective with which it was founded unless, in
due course, foul in its management is proved. Therefore, so
long as it is properly and efficiently managed, he is entitled to
due freedom of management in terms of the deed of
endowment or established practice or usage. In case a board
of trustees is constituted, the right to preside over the board
given to the founder or any member of his family would
generate feelings to actively participate, not only as a true
representative of the source, but the same would also
generate greater influence in proper and efficient
management of the charitable or religious institution or
endowment. Equally, it enables him to persuade other
members to follow the principles, practices, tenets, customs
and sampradayams of the founder of the charitable or
religious institution or endowment or specific endowment.
Mere membership along with others, many a times, may
diminish the personality of the member of the family. Even in
case some funds are needed for repairs, improvement,
expansion etc., the board headed by the founder or his family
member may raise funds from the public to do the needful,
while the executive officer, being a government servant,
would be handicapped or in some cases may not even show
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W.P.Nos.14418/2019 & batch
interest or inclination in that behalf. With a view, therefore, to
effectuate the object of the religious or charitable institution or
endowment or specific endowment and to encourage
establishment of such institutions in future, making the
founder or in his absence a member of his family to be a
chairperson and to accord him major say in the management
and governance would be salutary and effective. The founder
or a member of his family would, thereby, enable to effectuate
the proper, efficient and effective management and
governance of charitable or religious institution or endowment
or specific endowment thereof in future. It would add
incentive to establish similar institutions.
28. Keeping this pragmatic perspective in consideration,
the question that emerges is: Whether Sections 17 and 29(5)
are valid in law. Reading down the provisions of an Act is a
settled principle of interpretation so as to sustain their
constitutionality, as well as for effectuation of the purpose of
the statute. With the above in mind, we may examine the
validity of Sections 17 and 29(5). These statutory provisions
are grounded on the findings of the report of Challa Kondaiah
Commission, which indicated mismanagement and
misutilisation of funds of charitable and Hindu religious
institutions and endowments in a big way. This is, however, a
general finding; and we are prepared to agree with the
learned counsel for the petitioners that all the charitable and
religious institutions may not be painted with the same brush.
We have no doubt that there would be charitable or religious
institutions in the State which are neither mismanaged nor is
there misutilisation of funds. Even so, if the legislature acted
on the general findings recorded by the Commission, due
weightage has to be given to the same. Our view that the
board of trustees should be headed either by the founder or a
member of his family, would go a long way in seeing the
fulfilment of the wishes and desires of the founder.
29. Sections 17 and 29(5) cannot, therefore, be faulted.
Whatever rigour these sections have, would duly get softened
by the requirement of the board being headed by the founder
or any of his family members, as the case may be. Subject to
this rider, we uphold the validity of these two sections.
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W.P.Nos.14418/2019 & batch
17. The learned single judge took the view that, the
interpretation of the provisions of Sections 17 and 87 would have to be in
the light of the conditional approval of the said provisions given above and
the same cannot be read in isolation. Consequently, the learned Judge
held that the earlier judgement would have to be treated as a non-binding
judgment on the basis of the principles of sub silentio and per incuriam.
18. The judgement of the learned single Judge in
Vallabharayeswara Swamy Temple v. Bellamkonda Venkata Subrahmanya
Sarma (1 supra) is on the basis of the unambiguous provisions of
Section 17 of the 1987 Act. On the other hand, the ratio laid down by the
learned single Judge in Kum. Shashikala and ors., v. Smt. Babita Sharma
and ors, case is that, the conditional approval given by the Hon‟ble
Supreme Court, has to be factored into the interpretation of the same
provisions and they should be read down to mean that applications for
recognition can be filed at any stage and that any disputes in this regard
have to be referred to the Endowment Tribunal.
19. The issues raised in these two judgements have a long term
impact on the endowment law in Andhra Pradesh and the divergence of
opinion expressed in the two judgements requires to be reconciled by an
authoritative pronouncement on these issues by a division bench of this
court on (i) whether the provisions of Section 17 of the Endowment Act,
1987 are to be understood in the manner set out in Vallabharayeswara
Swamy Temple v. Bellamkonda Venkata Subrahmanya Sarma or whether
they can be read down to the extent stipulated in Kum. Shashikala and
ors., v. Smt. Babita Sharma and ors, and (ii) whether the Scope of Section
87 of the Endowment Act has to be understood in the light of the
Judgement in Vallabharayeswara Swamy Temple v. Bellamkonda Venkata
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Subrahmanya Sarma or as explained in Kum. Shashikala and ors., v. Smt.
Babita Sharma and ors.
20. Therefore, the Registry is directed to place W.P.No.14418 of
2019 before the Hon‟ble the Chief Justice for appropriate directions. The
remaining writ petitions would have to wait for the decision of the Court in
W.P.No.14418 of 2019.
________________________
R. RAGHUNANDAN RAO, J
8th September, 2021
Js
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W.P.Nos.14418/2019 & batch
HON'BLE SRI JUSTICE R. RAGHUNANDAN RAO
W.P.Nos.14418 of 2019, 1737 of 2020
5624 and 13493 of 2021
8th September, 2021
Js
