The vs State Of A.P And Others
2022 Latest Caselaw 2350 AP

       THE HON'BLE SRI JUSTICE R.RAGHUNANDAN RAO

                   WRIT PETITION No.21805 of 2021

ORDER:-

         The petitioner is a founder family member of the 3 rd

respondent-temple. This temple owns Ac.6.00 cents of land

which fetches an income of about Rs.1 lakh per annum. This

temple had been registered under the Andhra Pradesh

Charitable and Hindu Religious Institutions and Endowments

Act, 1987 (for short, „the Act, 1987‟). It is the case of the

petitioner that on account of the said registration, there are

various liabilities cast on the temple, by way of making

payments to the Endowments Department, which are

effectively taking away the income of the temple. The petitioner

relying upon the observations of the Hon‟ble Supreme Court in

A.S.Narayana Deekshithulu vs. State of A.P and Others1.,

and Sri Divi Kodandarama Sarma and others vs. State of

Andhra Pradesh and others2, contends that temples which

have an income of less than Rs.5 lakhs are exempt from all

the regulations set out in the Endowments Act including the

payment of various contributions to the Endowments

Department and also salaries to the Executive Officer.

2. On the basis of these contentions, the petitioner

seeks a Writ of Mandamus declaring the inaction of the 1st

respondent in notifying and publishing in the Official Gazette,

(1996) 9 SCC 548

(1997) 6 SCC 189

orders of exemption, under Section 154 of the Act, 1987 in

relation to all temples whose annual income is less than Rs. 5

lakhs in the State of Andhra Pradesh and for these temples to

be managed by the respective founder family

members/persons in management.

3. Sri V.Venu Gopala Rao learned counsel, appearing

for the petitioner has taken this Court through the aforesaid

judgments as well as the report of the committee to contend

that there are binding directions of the Hon‟ble Supreme

Court, to the State Government, to exempt all temples whose

income is less than Rs.5 lakhs from the rigors of the

provisions of the Endowments Act, 1987.

4. The learned Government Pleader would submit

that the figure of Rs.5 lakhs is a typographical error, in the

judgment, and it is only temples which have an income of less

than Rs.50,000/- which have to be granted such an

exemption. She further submits that the 2nd proviso to Section

29(1) of the Act provides for appointment of an executive

officer, even if the income is less than Rs.2 lakhs per annum if

the temple has substantial property. She would contend that

this statutory provision clearly envisages departmental control

over temples which have an income of less than two lakh

rupees also and there cannot be any omnibus exemption to all

temples whose income is less than rupees five lakhs, as

contended by the petitioner, or rupees two lakhs as stipulated

in Section 29 of the Act.

CONSIDERATION OF THE COURT:

5. Before going into the issues arising in this case, it

is necessary to briefly review the circumstances in which this

issue has come up. The regulation of Endowment Institutions

in the erstwhile Madras province/state commenced with Act

20 of 1863 and went through the enactment of various laws

from time to time. It would suffice, for the purposes of this

case, to recognize that the Madras Hindu Religious and

Charitable Endowments Act, 1951 was in force when the state

of Andhra came into existence. After the formation of the state

of Andhra Pradesh, the 1951 Act was replaced by The Andhra

Pradesh Charitable and Hindu Religious Institutions and

Endowments Act 1966. After the passage of a few decades, a

commission, headed by a former chief justice of this court,

was appointed to go into the working of the 1966 Act. This

commission submitted its report suggesting various changes

in the existing law. The State of Andhra Pradesh, on the basis

of the said recommendations, repealed the 1966 Act and

replaced it with the Andhra Pradesh Charitable and Hindu

Religious Institutions and Endowments Act 1987 (hereinafter

referred to as the Act).

6. The Act brought in certain drastic departures and

innovations in the administration of endowments and in the

rights and liabilities of various stake holders. The relative

merits and demerits of these innovations/departures are still

being debated. The primary change sought to be brought into

the whole system was the abolition of hereditary rights of

Trustees, Archakas, Mirasidars and various other religious

and non religious office holders of religious institutions. There

were other drastic changes. As these are not the subject of this

Writ Petition, they are not being mentioned.

7. The scheme of the Act was to abolish all hereditary

positions, rights and liabilities of various holders of offices in

the administration of religious institutions and replace these

office holders with paid employees. Section 16 of the Act abolished

the office of hereditary Trustees. Section 34 of the Act

abolished the hereditary rights of Mirasidars, Archakas and

other office holders and servants. Section 35 of the Act

stipulates that all office bearers shall be appointed by the

Trustee with prior permission of the competent authority or

directly by the officers of the Endowment department,

depending upon the income of the religious institution. It also

abolished all forms of payment or income to the office holders,

including the Archakas, except the salary paid to them as per

scale. Section 144 abolished all shares in Hundis and other

rusums, including shares in the income from the lands of the

religious institutions which were earlier being given to the

office holders including Archakas.

8. The said Act, and more specifically sections 16, 34

35, 37, 39 and 144 were challenged before the courts and the

litigation culminated in the decision of the Hon‟ble Supreme

Court in the case of A.S. Narayana Deekshitulu v. State of A.P.,3.

The Hon‟ble Supreme Court, while upholding the said Act, was

also cognizant of the fact that such a drastic change was not

taking into account, the practical problems that would be

faced by Temples which would not have the financial ability to

make the transition to the new regime introduced by the Act.

The Hon‟ble Supreme Court issued further directions in this

regard with the following observations:

132. In Andhra Pradesh there are as many as 32,201 temples out of which 7761 temples are assessable institutions; the remaining 24,440 temples have income of less than Rs 1000 per annum, only 582 out of them have income of more than Rs 10,000 per annum. Only around 8 temples have income of more than Rs 20,00,000 per annum. All the archakas or employees in these categories of 24,440 small temples would be deprived of their livelihood by abolition of their hereditary rights and introduction of graded scales of pay. This information has been furnished in the written arguments submitted by Shri Markandeya but we did not have the occasion to have them verified during the course of hearing. It would be seen that the principles in fixing the scales of pay and method of payment of salary introduced by the rules are required to be adjudged. In the absence of any material it is difficult for us to give any finding in that behalf. Suffice it to state that liberty is given to place those necessary and material evidence before the Government which would constitute a committee consisting of Deputy Secretary, Finance Department, Joint Secretary to the Government, Revenue (Endowments

(1996) 9 SCC 548 at page 611

Department) and Joint Commissioner, Endowment Department. The Committee would go into the question to rationalise the pay scales of all the archakas in different temples and the modality for payment of salary to them. After approval of the rules by the State Government, the respondents should place the same before the Court for further approval.

133. Though we have upheld abolition of hereditary right to appointment as an archaka or other office-holders, the evidence from Vaikhanasa literature and other material indicate that archaka should bestow his total dedication to the Deity in the performance of daily rituals; at the same time, he and his family members must be kept in comfort. The property endowed for his services or the income derived from the offerings or the payment of salary, if any, is identified as a source for his living in comfort. The State exercising its secular power regulates appointment of archakas, as upheld hereinbefore; equally, he, along with his family, is required to be kept with daily comfort so that he would continue to dedicate himself to perform the ritual worship of the Deity. As indicated earlier, the State is required to determine his service conditions, scale of pay and other emoluments according to the grade of the temple in which he works and to regulate the period of duty and of service. That apart, welfare measures in addition should be initiated as a measure of social welfare to the archakas and other employees of the temple and pandits working in the temples and under the supervision of the Commissioner. Therefore, the State should come forward with a scheme to provide the archakas, other employees and their family members like suitable accommodation, education by way of refresher courses and courses in

Agamas in the respective region, medical facilities, educational facilities to their children, loans for construction of their own houses, and wherever accommodation in the temple is available letting the same to them on reasonable rent, group insurance scheme, unforeseen contingencies like accident, death, etc., rehabilitation of the widow or educated unemployed youth or such other measures as may be incidental and part of economic welfare. The extent of the similar facilities already existing and provided for may be excluded from the proposed scheme. For other items appropriate scheme should be formulated.

134. In that behalf the State Government is directed to constitute a committee consisting of the Additional Commissioner, Endowments Department, a Joint Secretary/Deputy Secretary (Endowment), Revenue Department; two representatives of the archakas to be nominated by their associations and one representative of other officers/servants of the temples. It would be open to the representatives of the archakas etc. to place their views and material before the Committee in the formulation of the scheme. The Committee will undertake an in-depth study into the schemes and formulate the same. After the scheme is formulated, the Government would take a decision thereon and would place the duly approved scheme before this Court within six months from today for further action thereon.

9. Pursuant to this direction, the State of Andhra

Pradesh constituted a committee to go into these issues and

submit a report. The committee, after conducting an exercise

in this regard, submitted a report, dated 4.10.1996, making

various recommendations. Some of these recommendations

were accepted by the Government and some were modified.

The recommendations of the Committee and the views of the

government on these recommendations were placed before the

Hon‟ble Supreme Court, which passed orders in Sri Divi

Kodandarama Sarma and others vs. State of Andhra

Pradesh and others4.

10. The sum and substance of the recommendations

placed before the Hon‟ble Supreme Court, which were

permitted to be brought into force, are that, the State is not

interested in taking up management and regulation of the

affairs of temples with low income and would prefer these

temples to look after themselves. The State would only take up

management of those temples which have substantial income.

The Hon‟ble Supreme Court accepted this stand of the

Government in the following manner:

3. Section 6 of the Act classifies the charitable or religious institutions and endowments and other mutts on the basis of the income and its calculation under Section 65. Section 6(a) institutions are those whose income exceeds Rs 5 lakhs and above per annum; Section 6(b) institutions are those whose income exceeds Rs 50,000 but is less than Rs 5 lakhs; and Section 6(c) institutions are other than those covered under clauses (a) and (b). The Committee has gone into this aspect, in the light of the directions issued and has recommended that the temples whose annual income is less than Rs 5 lakhs may be allowed to be managed by the respective managements of the temples etc. but be

(1997) 6 SCC 189

supervised by the Department as is being now done so that the managements of such temples may be allowed to pay such remuneration to the Archakas. In lieu of salary, the properties given to them may be retained by the Archakas for enjoyment subject to rendering service depending upon the income of the respective temples as per the prevailing circumstances. We are informed that a sizeable part of the temples would come within that category and, therefore, the Government has accepted the classification with the rider: "Temple with such abnormally low income may be left to fend for themselves." The recommendation of the Committee has thus been accepted by the Government. Under Section 154 of the Act, the Government by a notification may exempt from the purview of any of the provisions of the Act or any of the rules made thereunder (a) any charitable institutions or endowments administration of which was or is for the time being vested in the Government either directly or through the Committee or a Treasurer (Endowment) appointed for the purpose or the Official Trustees or the Administrator General etc. Any institution or endowment may be exempted and may likewise vary or cancel such exemption. In view of the above provision, it would be open to the State Government to issue a notification published in the Official Gazette exempting such institutions subject to the above recommendation and such orders as may be mentioned therein or deemed appropriate.

11. Sri Venugopal Rao relies on this observation of the

Hon‟ble Supreme Court, to contend that a duty is cast on the

government to exempt all temples having an income of less

than rupees five lakhs. This is disputed by the Learned

Government Pleader, who contends that the figure of rupees

five lakhs mentioned in the above passage is a typographical

error. She relies on the succeeding passages of the judgement

to contend that the direction of the Hon‟ble Supreme Court

was to exempt all temples below Rs. 50,0000 per annum.

While the contention of the learned Government pleader may

merit consideration, this court cannot interpret the judgement

of the Hon‟ble Supreme Court to hold that there was a

typographical error. Any such finding would amount to a

modification of the order of the Hon‟ble Supreme Court and

this court must decline to go into this question.

12. The matter does not rest there. The subsequent

amendments to Section 144 of the Act need to be taken into

account. This Section abolished the right of any office holder

including Trustees, Dharmakarthas, Mutawallis, Archakas or

Mirasidars to a share in the income of the temple obtained

from the donations or offerings made to the religious

institution or the income from the lands owned by the

religious institutions or any other income as remuneration for

services rendered by such office holders. This meant that the

office holders would cease to be hereditary sharers in the

fortunes of the religious institutions and become paid

employees of the institution. As temples with low incomes

would not be able to pay proper salaries to these office

holders, the Hon‟ble Supreme Court had directed that, for

such temples, the earlier system could be followed. Effectively,

the Hon‟ble Supreme court, while upholding the abolition of

such practices, permitted these practices to continue wherever

it was not convenient for the State to take over management of

low income temples.

13. This Supreme Court mandated system found

legislative expression in Act 33 of 2007, with effect from

03.01.2008, which added two provisos to Section 144. The

first proviso made it applicable only to institutions whose

annual income exceeds Rs.5 lakhs. The second proviso also

permitted the commissioner of Endowments to frame schemes

of payment of emoluments to Archakas in any of the

institutions, subject to the satisfaction of the Commissioner

that such a scheme is necessary for that institution.

14. The above amendment is an indication of the fact

that the state had taken cognizance of the fall in the value of

the rupee and the need to enhance the cut off point, in terms

of annual income, of those institutions which require to be

placed outside the purview of section 144 of the Act. The same

principle would apply to temples which need to be exempted

from the provisions of the Act itself, in line with the policy of

the state to leave temples below a certain income limit to their

own devices. In view of the above monetary limits fixed in the

above amendment, the government has implicitly accepted the

fact that Temples with an annual income which is less than

Rs. 5 lakhs would have to look after themselves and the earlier

system should be allowed to go on in these temples and

institutions as these temples do not have the financial

capacity to give scales of pay to their employees.

15. Another aspect of the matter is the effect of

payment of mandatory contributions to the endowment

department over the income of the temples. The learned

Government pleader has given the details of the contributions

collected from the temples and other religious institutions,

which are as follows:

The assessable income, as calculated under section 65 of the Act, is more or less the actual income of the temple or religious institution. Temples and religious institutions, with an income of more than Rs. 2 lakhs per annum are required to pay 18.5% of their income to the endowment department. Temples and religious institutions with an income of more than Rs.20 lakhs are required to pay 21.5 % of their income. No contributions are collected from temples with an income below Rs. 2 lakhs, on account of the exemption granted under G.O. Rt. No. 375, dated 01-10-2015.

16. The statistics provided by Sri V. Venugopal Rao

show that there are 1440 temples in the State, registered with

the endowments department, with an income between Rs.2

lakhs and Rs. 5 lakhs. These Temples are paying between Rs.

37,000/- and Rs. 92,500/- per annum, to the endowments

department as mandatory contributions. Diversion of such

amounts would clearly affect the financial strength and

stability of these temples. By way of an example, if we were to

take the case of a temple having an annual income of Rs.

2,00,001/-, the temple would have to pay Rs. 37,000/- to the

endowments department. This would leave an amount of Rs.

1, 63,000/- in the hands of the Temple to defray it‟s entire

annual expenditure. The minimum staff needed for a temple

would be an Archaka, a watchman and a sweeper/cleaning

person. Apart from this the expenditure for Dhupa, Deepa

Naivedyam would also have to be met. In today‟s world, such

an amount is clearly inadequate. There is every need to reduce

this burden on temples having an income of less than Rs. 5

lakhs.

17. On a review of all these facts, there is every need

for the State government to reconsider it‟s decision of granting

exemption to only those temples having an annual income of

less than Rs. 2 lakhs and to increase the limit to Rs.5 lakhs.

18. Accordingly, this Writ Petition is disposed of with a

direction to the State government to consider the grant of

exemption to temples having an annual income of less than

Rs.5 lakhs from the provisions of the Act including the

requirement to pay the mandatory contributions mentioned

above, in the light of the directions of the Hon‟ble Supreme

court in Sri Divi Kodandarama Sarma and others vs. State

of Andhra Pradesh and others5. This exercise shall be

conducted within a period of four months from the date of

receipt of this order.

(1997) 6 SCC 189

Miscellaneous petitions, pending if any, shall stand

closed.

___________________________________ JUSTICE R.RAGHUNANDAN RAO Date : 05-05-2022 RJS

THE HON'BLE SRI JUSTICE R.RAGHUNANDAN RAO

WRIT PETITION No.21805 of 2021

Date : 05.05.2022

RJS

IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

*** W.P.No.21805 of 2021 Between:

Allaparthi Venkata Chalapathi Rao, S/o.A.Nageswara Rao, aged 65 years, Occ:Founder Family Member, R/o.Allaparru Village, Nagaram Mandal, Guntur District.

... Petitioner

And

$ 1. The State of Andhra Pradesh, rep. by its Principal Secretary, Revenue (Endowments), Department, Secretariat Buildings, Velagapudi, Guntur District.

2. The Commissioner, Endowments Department, Andhra Pradesh, Gollapudi, Vijayawada, Krishna District.

3. Sri Alaparthamma Temple, Alaparru Village, Nagaram Mandal, Guntur District. Rep.by its Executive Officer.

4. The Executive Officer, Sri Alaparthamma Temple, Alaparru Village, Nagaram Mandal, Guntur District.

... Respondents

Date of Judgment pronounced on : 05-05-2022

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?

*IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

* HON'BLE SRI JUSTICE R. RAGHUNANDAN RAO

+ W.P.No.21805 of 2021

% Dated: 05-05-2022

Allaparthi Venkata Chalapathi Rao, S/o.A.Nageswara Rao, aged 65 years, Occ:Founder Family Member, R/o.Allaparru Village, Nagaram Mandal, Guntur District.

... Petitioner

And

$ 1. The State of Andhra Pradesh, rep. by its Principal Secretary, Revenue (Endowments), Department, Secretariat Buildings, Velagapudi, Guntur District.

2. The Commissioner, Endowments Department, Andhra Pradesh, Gollapudi, Vijayawada, Krishna District.

3. Sri Alaparthamma Temple, Alaparru Village, Nagaram Mandal, Guntur District. Rep.by its Executive Officer.

4. The Executive Officer, Sri Alaparthamma Temple, Alaparru Village, Nagaram Mandal, Guntur District.

... Respondents

! Counsel for petitioner : V.Venu Gopala Rao

^Counsel for Respondents 1 & 2 : G.P. for Endowments

^Counsel for Respondent 3 & 4 : K.Madhava Reddy

<GIST :

>HEAD NOTE:

? Cases referred:

1    (1996) 9 SCC 548
2.   (1997) 6 SCC 189
3.(1996)   9 SCC 548 at page 611
4.   (1997) 6 SCC 189
5.   (1997) 6 SCC 189