Andhra Pradesh High Court - Amravati
K Appanna vs The State Of Andhra Pradesh on 14 September, 2021
IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
***
W.P.No.22289 of 2020
Between:
# K. Appanna, S/o. Ramulu,
R/o. H.No.4-59, Moturu, Krishna
Andhra Pradesh-521323.
... Petitioner
AND
$ 1. The State of Andhra Pradesh, rep. by Special Chief Secretary,
Revenue (Endowments) Department, Secretariat, Velagapudi,
Amaravathi, Guntur District.
2. The Commissioner, Endowments Department, Gollapudi, Vijayawada
Krishna District.
3. The Assistant Commissioner, Endowments Department, Vijayawada
Krishna District.
4. Sri S.N.C. Sampath Ayyangar, S/o. Late S.N.C. Singaracharyulu
Ayyangar, Founder Family Member of Sri Seetharama Swamy Temple,
Moturu Village, Gudivada Mandal, Krishna District, R/o. Moturu
Village, Gudivada Mandal, Krishna District.
5. Association of Founders of the Hindu Religious and Charitable
Institutions of Andhra Pradesh (Regd.No.150/2015), having its office
at Door No.14-18, Mylavaram House, Mylavaram-521230, Krishna
District, rep. by its Propagation Committee Member, Sri H.D.
Nageswara Rao.
... Respondents
Date of Judgment pronounced on : 14-09-2021
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?
2 RRR,J
W.P.No.22289 of 2020
*IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
* HON'BLE SRI JUSTICE R. RAGHUNANDAN RAO
+ W.P.No.22289 of 2020
Date: 14-09-2021
Between:
# K. Appanna, S/o. Ramulu,
R/o. H.No.4-59, Moturu, Krishna
Andhra Pradesh-521323.
... Petitioner
AND
$ 1. The State of Andhra Pradesh, rep. by Special Chief Secretary,
Revenue (Endowments) Department, Secretariat, Velagapudi,
Amaravathi, Guntur District.
2. The Commissioner, Endowments Department, Gollapudi, Vijayawada
Krishna District.
3. The Assistant Commissioner, Endowments Department, Vijayawada
Krishna District.
4. Sri S.N.C. Sampath Ayyangar, S/o. Late S.N.C. Singaracharyulu
Ayyangar, Founder Family Member of Sri Seetharama Swamy Temple,
Moturu Village, Gudivada Mandal, Krishna District, R/o. Moturu
Village, Gudivada Mandal, Krishna District.
5. Association of Founders of the Hindu Religious and Charitable
Institutions of Andhra Pradesh (Regd.No.150/2015), having its office
at Door No.14-18, Mylavaram House, Mylavaram-521230, Krishna
District, rep. by its Propagation Committee Member, Sri H.D.
Nageswara Rao.
... Respondents
! Counsel for petitioners : Sri D.V. Sasidhar
^Counsel for Respondents 1 & 2 : G.P. for Endowments
^Counsel for Respondent No.4 : Sri K. Ramanuja Chary
^Counsel for Respondent No.5 : Sri V. Venugopala Rao
<GIST :
>HEAD NOTE:
? Cases referred:
1. (2007) 5 ALD 661=(2007) 4 ALT 509
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W.P.No.22289 of 2020
HON'BLE SRI JUSTICE R. RAGHUNANDAN RAO
W.P.No.22289 of 2020
ORDER:
The 2nd respondent issued a notification, dated 23.09.2019, under
the A.P. Charitable and Hindu Religious Institutions and Endowments
Appointment of Trustees Rules, 1987 (for short „the Trustees Rules‟)
inviting applications, from interested persons, for appointment as Trustees
of Sri Seetharama Swamy Temple, Moturu Village, Gudivada Mandal,
Krishna District (hereinafter referred to as the Temple). The petitioner
states that he had submitted his application, along with others, for being
appointed as a trustee. By proceedings in Rc.No.B2/COE-12026(31)/21/
2020-B SEC-ENDOWMENTS, dated 09.11.2020 the 2nd respondent had
constituted a Trust Board consisting of 7 members including the petitioner
herein and respondent No.4, who was appointed as the Chairman of the
Trust Board, as he was a recognised founder family member.
2. The petitioner, being aggrieved by the appointment of the
4th respondent who is a founder family member of the Temple, as Trustee
and Chairman of the Trust Board of the Temple, has approached this
Court by way of the present writ petition.
3. It is the case of the petitioner that the 4th respondent was
appointed as a Trustee and Chairman of the Trust Board, even though the
4th respondent had not made a formal application, in Form-II, under the
Trustees Rules, for being appointed as a Trustee, and that his
appointment is not permissible and is in violation of the provisions of the
A.P. Charitable and Hindu Religious Institutions and Endowments Act 1987
(for short „the Act‟) and the Trustees Rules.
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W.P.No.22289 of 2020
4. The 4th respondent has filed a counter affidavit disputing the
same. However, the fact that he had not given an application for being
appointed as a Trustee is not disputed. The Association of Founders of the
Hindu Religious and Charitable Institutions of Andhra Pradesh had
impleaded itself as the 5th respondent and filed a counter affidavit setting
out the reasons why a member of the founder family need not apply
under the Trustees Rules for being appointed as a member of the Trust
Board.
5. Sri D.V. Sasidhar, learned counsel appearing for the
petitioner relies upon the judgment of a learned Single Judge of the
erstwhile High Court of Andhra Pradesh in Andal Raghavan v. Deputy
Commissioner, Endowments Department, Kakinada1 to contend
that even though the member of a founder family is entitled to be
appointed as a Trustee and Chairman of the Trust Board, the said
appointment can be made only in accordance with the Rules and the said
rules require an application to be made in Form-II.
6. A learned Single Judge of the erstwhile High Court of Andhra
Pradesh, in Andal Raghavan v. Deputy Commissioner, Endowments
Department, Kakinada, delivered on 26.03.2007, before the amendments
made in Act 33 of 2007 came into force, had considered a similar issue. In
this case, a person, recognised as a member of the family of the founder
of a temple, had challenged the notification issued by the competent
authority on various grounds, including the ground that a member of the
family of the founder is entitled to be appointed as trustee and chairman
of the Trust board even without applying in Form -II, set out in the
(2007) 5 ALD 661=(2007) 4 ALT 509
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W.P.No.22289 of 2020
Trustee Rules, 1987. The Learned Judge took the view that the earlier
right of the hereditary trustees to be appointed as Trustees had been
abolished by Section 16 of the Act and the right of such persons to be
appointed as Trustee and Chairman of the Board, now flows from the
provisions of Section 17 and 20 of the Act alone. As Section 17 (3) now
prescribes the Trustees Rules, requiring an application to be made in
Form-II, by all applicants, the members of the family of the founder of an
Institution/temple cannot claim any exemption and cannot seek to be
appointed as Trustees without making such applications.
7. It is the stand of the 2nd respondent in his counter affidavit
that in view of the amendments carried out in Section 15(1) of the Act,
the competent authority mentioned under Section 15(1) of the Act is
restricted to the appointment of non-hereditary trustees as the right of
the member of the founder family to become a member of the Trust
Board is by operation of law and the same would not require any order or
appointment to be made by the Government/competent authority.
8. The 2nd respondent would also point to the third proviso to
Section 15(2) of the Act, which reads as follows:
"Provided also that where the Board of Trustees is
not constituted for any reason, the recognized Founder or
member of the Founder‟s family shall discharge the functions
of the Board of trustees till a new Board of Trustees is
constituted."
9. It is contended that a reading of the above proviso would
show that a member of the founder family would be a permanent member
of the Trust Board, and as such, would not require to be appointed by a
formal order of the Government/competent authority. In such
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W.P.No.22289 of 2020
circumstances, there would be no requirement of an application being
made by such a member of the founder family.
10. While the judgment of the erstwhile High Court of Andhra
Pradesh in Andal Raghavan v. Deputy Commissioner, Endowments
Department, Kakinada required an application to be made before a
member of the founder family could be appointed as a trustee, the
contention of the Respondents, including the State, is that by the
subsequent amendments, carried out by Act 33 of 2007, the amended
provisions of section 15 of the Act, stipulates that the competent authority
would constitute a board of trustees consisting of a certain number of
persons at its pleasure, EXCEPT for founder family member and ex-officio
members. This would mean that the appointment of founder family
members, to the Board of Trustees, is outside the purview of the authority
specified under various clauses of Section 15 (1) of the Act. Once the
appointing authority is denuded of that power, the Trustee Rules, which
are applicable to appointments made under Section 15, would not be
applicable any more.
11. Heard Sri D.V. Sasidhar, learned counsel appearing for the
petitioner, learned Government Pleader for Endowments for respondent
Nos.1 & 2, Sri K. Ramanuja Chary, learned counsel appearing for
respondent No.4 and Sri V. Venugopala Rao, learned counsel appearing
for the impleaded respondent No.5.
CONSIDERATION OF THE COURT:
12. The provision of the Act, relating to the constitution of Trust
Boards, by way of appointment of Trustees, is Section 15 (1) & (2) of the
Act, which, prior to its amendment, reads as follows:
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W.P.No.22289 of 2020
"15. Appointment of Board of Trustees:- (1) In respect of a
charitable or religious institution or endowment included in
the list published under clause (a) of Section 6-
(a) whose annual income exceeds rupees ten lakhs, the
Government shall constitute a Board of Trustees
consisting of (nine) persons appointed by them.
(b) Whose annual income does not exceed rupees ten
lakhs, the Commissioner shall constitute a Board of
Trustees consisting of (seven) persons appointed by
him.
(2) In respect of a charitable or religious institution or
endowment included in the list published under clause (b) of
Section 6, the Deputy Commissioner having jurisdiction shall
constitute a Board of Trustees consisting of (seven persons
appointed by him.
(3) ........
13. This provision was substituted, by the following, by Act 33 of
2007, with effect from 03.01.2008:
"15. Appointment of Board of Trustees:- (1) In respect of a
Charitable or Religious Institution or Endowment,-
(i) Where the income for the institution exceeds
Rs.20.00 crores (Rupees Twenty Crores) per annum,
the Government shall constitute a Board of Trustees
consisting of fifteen (15) persons at its pleasure
except for founder family member and ex-officio
members.
(ii) Where the income for the institution is between
Rs.5,00 crores (Rupees five crores) to Rs.20.00
crores (Rupees twenty crores) per annum, the
Government shall constitute a Board of Trustees
consisting of eleven (11) persons at its pleasure
except for founder family member and ex-officio
members.
(iii) Where the income for the institution is between
Rs.1.00 crore (Rupees one crore) to Rs.5.00 crores
(Rupees five crores) per annum, the Government
shall constitute a Board of Trustees consisting of nine
(9) persons at its pleasure except for founder family
member and ex-officio members.
8 RRR,J
W.P.No.22289 of 2020
(iv) ........."
14. The case of the respondents is:
A) The erstwhile High Court of Andhra Pradesh had, in the light of
the provisions, prior to Act 33 of 2007, held that the provisions of
Section 15 of the Act required the members of founder family to be
appointed as Trustees and consequently, the Trustees Rules would apply
and there was a requirement of making an application.
B) The Act 33 of 2007, by adding the words "at its pleasure
except for founder family member and ex officio member" had
waived the requirement of appointment of members of founder family as
Trustees and by implication, a person on being recognised as a member
of the founder family, automatically becomes a Trustee and Chairman of
the Trust Board and there is no need for such a person to apply under the
Trustees Rules.
15. The relevant provisions relating to the constitution of the
Trust Boards and the appointment of trustees, in relation to members of
founder family, which are contained in Chapter III of the Act, are proviso
to Section 17 (1) of the Act, and Section 20 (1) (b).
16. The proviso to Section 17 (1) reads as follows:
"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."
17. This proviso not only speaks of an "appointment" as a
Trustee, it also places a caveat that such an appointment can be made
only of a founder family member, who is found to be qualified, as
prescribed.
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W.P.No.22289 of 2020
18. Similarly, Section 20 (1) (b) stipulates that:
"(b) Where the Founder or a member of the family of the
founder is appointed as a Trustee, he shall be the
Chairman of the Board of trustees."
19. Even here, the Statute speaks of an "appointment". These
provisions proceed on the basis that even members of the Founder Family
require to be appointed as Trustees.
20. Another relevant provision is the 2nd proviso to Section 15
(2) of the Act, which reads as follows:
"Provided further that in the case of a religious
institution, the Archaka or where there is more than one
Archaka, the Pradhana Archaka thereof shall be an ex
officio member of the Trust Board notwithstanding clause
(g) of sub section (1) of section 19:"
21. In the case of the Archaka or Pradhana Archaka, there is no
appointment to the Board, they become part of the Board of Trustees by
virtue of their office of Archaka or Pradhana Archaka. When such a
provision was made for the Archakas, the absence of such a provision for
members of the founder family would indicate that the Act requires
members of founder family to be appointed every time a new Trust Board
is constituted. This can obviously be done only under Section 15 of the
Act.
22. The right of the family members of the founder family to
become a Trustee and chairman of the Trust Board flows from the
provisions of Section 17 and 20. The amendment, by way of Act 33 of
2007, only added the above extracted words to Section 15. No changes
have been made in section 17 and 20. In the absence of any amendment
to Section 17 and 20, the right of a member of a founder family will
10 RRR,J
W.P.No.22289 of 2020
continue to be regulated by the requirement of being appointed by the
competent authority. The amendment to Section 15 does not, in any
manner, alter that requirement. Such an interpretation of the amendment
would only result in a conflict between the requirement of appointment
under Section 17 and 20 and the supposed waiver of such appointment
under Section 15.
23. The Respondents are also relying on the 3rd Proviso to
Section 15 (2) to draw a conclusion that this provision, by implication,
declares that every member of a founder family is a permanent member
of the Trust Board and no appointment is necessary. It must be
remembered that this provision was available even, prior to Act 33 of
2007, when the Act required members of the founder family to be
appointed under Section 15 of the Act. In such a situation, no such
implication can be inferred. Further, this proviso only makes an
arrangement for management of institutions during periods when there is
no Trust Board. There is nothing in the language of that proviso to raise
an implied term that members of the Founder family are permanent
Trustees.
24. Apart from the above, the scheme of the Act does not lend
itself to such an interpretation. The proviso to Section 17 (1) requires
verification whether a member of the founder family is qualified to be
appointed as a Trustee, both under Section 18 of the Act and the Trustees
Rules. Apart from this, it would also have to be verified whether he is
suffering from any disqualifications set out under Section 19 of the Act. If
a member of the Founder family is to be treated as Trustee the minute he
is recognised as such, these provisions would be redundant. Another
practical issue that would arise is in the event of more than one person
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W.P.No.22289 of 2020
being recognised a member of the founder family. In such a situation,
according to the proviso in Section 17 (1), only one such member can be
appointed. Similarly, Section 20 (1) (b) speaks of a sole member of the
founder family being appointed as the Chairman. If it is to be accepted
that all persons recognised as members of founder family would
automatically become permanent Trustees, this understanding would run
contrary to express provisions of the Act.
25. Once it is apparent that a member of a founder family will
become a Trustee only upon appointment, the provision for making such
appointment would have to be traced. The only provision available for
making such appointments, as can be seen from the foregoing, is Section
15 of the Act. In the circumstances, the interpretation of the Respondents
cannot be accepted and it must be held that the members of the Founder
family do not automatically become trustees and the chairman of the
Board of Trust and would have to be appointed.
26. Coming to the effect and intent of the amendment to
Section 15 (1), the change made in Section 15, by Act 33 of 2007, is the
addition of the following words, in clauses (i) to (iv) of Section 15 (1), "at
its pleasure except for founder family Member and ex officio
members". The reference to Ex officio members is to the Archaka or
Pradhana Archaka, who would be entitled to be a part of the Board of
Trustees of a religious institution, by virtue of the 2nd proviso to
Section 15 (2) of the Act, extracted above. In the light of the fact that
Archakas or Pradhana Archakas are ex officio, automatically part of the
Trust Board, and are not appointed under Section 15 (1), the necessity of
having to insert a clause that they would be exempt from such
appointment under Section 15 (1) would not arise.
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W.P.No.22289 of 2020
27. The addition of the above sentence, by Act 33 of 2007, was
obviously for a different purpose. Section 17 (2) of the Act, prescribes a
term of 2 years for every trustee. This term cannot be cut, prior to Act 33
of 2007, except where the Trustee is removed due to his disqualification
under Section 19 or having ceased to hold the office under Section 21 of
the Act. This would require an enquiry, with the opportunity being given
to the Trustee to show cause that he is entitled to continue. The
Government, by virtue of above changes, under Act 33 of 2007, have
introduced the principle of "at pleasure" which would entitle them to cut
short the tenure of any trustee without having to follow any of these
procedures. However, any such exercise, to remove the members of the
founder family by resorting to this principle, would result in no member of
the founder family being in the Trust Board and that would be violative of
both the proviso to Section 17 (1) and Section 20 (1) (b) which mandate
the presence of such members. On account of the provisions of Section 17
and 20, and as Archakas or Pradhana Archakas are ex officio members of
the Trust Board and are not appointed under Section 15 (1), the
Government appears to have exempted these two categories of people
from the "at pleasure" principle.
28. The matter does not rest there even though members of
founder family are required to apply to be appointed as Trustees. They
have been given a pre eminent status under the Act. The 3rd proviso to
Section 15 (2), which is extracted above, mandates that where a trust
board is not in existence, the member of the family of the Founder would
discharge the functions of the Trust Board. The Proviso to Section 17 (1)
declares that, while making appointments of Trustees, the founder or one
of the members of the family of the founder, if qualified as prescribed,
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W.P.No.22289 of 2020
shall be appointed as one of the Trustees. Section 20 (1) (b) stipulates
that where a founder or member of the family of the founder is appointed
as a Trustee, he shall be the Chairman of the Board of Trustees.
29. This special position for the founders or members of their
family has been created, by the statute, on account of the directions of
the Hon‟ble Supreme Court in Pannalal Bansilal Pitti and Ors., v.
State of Andhra Pradesh & anr.,2. The Hon‟ble Supreme Court,
recognising the pivotal role of founders or their family members play in
such institutions, had directed that every Trust Board should
accommodate founders or their family members, wherever they are
available, and that the founders or their family members should head the
Trust Board.
30. Another relevant provision is Rule 5 (2) of the Trustees rules
which requires that:
"If no applications are received for the
appointment of Trustees, the competent authority shall
ascertain the names of the persons qualified under section
18 and free from disqualifications in terms of section 19
and obtain applications from them for being appointed as
Trustees"
31. The proviso to section 17 (1) of the Act, mandates the
compulsory presence of a founder family member in the Trust Board and
Section 20 (1) (b) directs that, if a founder family member is in the Board
of Trustees, such a member has to be made the Chairman. A reading of
these provisions along with the above Rule, makes it the duty of the
appointing authority to ensure that either the founder or any one
(1996) 2 SCC 492 = AIR 1996 SC 1023
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members of the family of the founder is brought into the Board of
Trustees as Chairman of the Board, as long as that founder or member is
qualified and does not suffer from any disqualifications. This would mean
that where an Institution/Temple has persons, who are recognised as
founder or a member of the family of the founder, one position of Trustee
has to be kept aside for them. If no application is received from the
persons in that category, within the time stipulated in the notification
calling for such applications, the appointing authority would have to invite
such persons to make an application and appoint one of them as a
Trustee and consequently Chairman of the Trust Board. It is only when
the founder or family members of the founder decline to be appointed as
Trustees that the appointing authority can look to fill up the position,
which is kept exclusively for founders or their family members, with other
applicants.
32. In the present case, it is true that the 4 th Respondent did not
apply for being appointed as a Trustee. However, that would require the
appointing authority to obtain such an application from the 4th
Respondent. In the present case, the appointing authority, instead of
formally obtaining such an application, had straightaway appointed the 4th
respondent. This is not in accordance with the requirement of law and
would have to be set aside. However, this order would not take away the
right of the 4th respondent to be appointed as the Trustee and Chairman
of the Trust Board of the Temple.
33. Therefore, this Writ Petition is allowed, setting aside the
appointment of the 4th Respondent as Trustee and Chairman of Sri
Seetharama Swamy Temple, Moturu Village, Gudivada Mandal, Krishna
District, while leaving it open to the appointing authority to obtain an
15 RRR,J
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application from the 4th Respondent to be appointed as Trustee and
Chairman, and thereafter, to appoint the 4th Respondent as Trustee and
Chairman of the above Temple, in accordance with the Act and the
Trustees Rules.
As a sequel, pending miscellaneous petitions, if any, shall stand
closed.
_________________________
R. RAGHUNANDAN RAO, J.
14th September, 2021
Js.
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W.P.No.22289 of 2020
HON'BLE SRI JUSTICE R. RAGHUNANDAN RAO
W.P.No.22289 of 2020
14th September, 2021
Js.
