Telangana High Court
Tankasal Karmika Sangh, vs The Union Of India, Rep. By Its ... on 29 September, 2023
Bench: Pulla Karthik
*IN THE HIGH COURT OF JUDICATURE AT HYDERABAD FOR
THE STATE OF TELANGANA
AND
THE STATE OF ANDHRA PRADESH
(Special Original Jurisdiction)
PRESENT
THE HON'BLE THE CHIEF JUSTICE
SRI KALYAN JYOTI SENGUPTA
AND
HON'BLE SRI JUSTICE SANJAY KUMAR
+WRIT PETITION Nos.29189, 29264, 29317, 29453,
29455, 29474, 29475, 29499, 29556, 30168,
30674, 30688, 30692, 31352, 31445,
31551, 31640, 31652, 31677,
31692, 32020, 32246,
32255, 32578 and
32584 of 2014
%DATED________DECEMBER, 2014
W.P. No.29189 of 2014:
# S. Timmaiah ... Petitioner
Vs.
$ The State of Andhra Pradesh,
Revenue (Endowments) Department,
Rep. by its Principal Secretary and others ... Respondents
W.P. No.29264 of 2014:
# R. Subrahmanyam ... Petitioner
Vs.
$ The Government of Andhra Pradesh,
Revenue (Endowments-I) Department,
Rep. by its Principal Secretary and others ... Respondents
W.P. No.29317 of 2014:
# Mekala Anjinaiah ... Petitioner
Vs.
$ The State of Andhra Pradesh,
Revenue (Endowments-I) Department,
Rep. by its Principal Secretary and others ... Respondents
W.P. No.29453 of 2014:
# Putty Sastry ... Petitioner
Vs.
$ The State of Andhra Pradesh,
Revenue (Endowments-I) Department,
Rep. by its Principal Secretary and others ... Respondents
W.P. No.29455 of 2014:
# Ala Srinivasarao ... Petitioner
Vs.
$ The State of Andhra Pradesh,
Revenue (Endowments-I) Department,
Rep. by its Principal Secretary and others ... Respondents
W.P. No.29474 of 2014:
# Karanam Sambasiva Rao and others ... Petitioners
Vs.
$ The State of Andhra Pradesh,
Revenue (Endowments) Department,
Rep. by its Principal Secretary and others ... Respondents
W.P. No.29475 of 2014:
# Ramineni Jayalakshmi and others ... Petitioners
Vs.
$ The State of Andhra Pradesh,
Revenue (Endowments-I) Department,
Rep. by its Principal Secretary and others ... Respondents
W.P. No.29499 of 2014:
# Sri Vallamreddy Ramana Reddy and others ... Petitioners
Vs.
$ The State of Andhra Pradesh,
Revenue (Endowments) Department,
Rep. by its Principal Secretary and others ... Respondents
W.P. No.29556 of 2014:
# Dondapati Brahmaiah ... Petitioner
Vs.
$ The State of Andhra Pradesh,
Revenue (Endowments-I) Department,
Rep. by its Principal Secretary and others ... Respondents
W.P. No.30168 of 2014:
# Smt. R. Latha ... Petitioner
Vs.
$ The State of Andhra Pradesh, Revenue
(Endowments) Department, rep. by its
Principal Secretary and others ... Respondents
W.P. No.30674 of 2014:
# Maddala Prasad and others ... Petitioners
Vs.
$ The State of Andhra Pradesh, rep. by its
Principal Secretary to Revenue
(Endowments-I) Department and others ... Respondents
W.P. No.30688 of 2014:
# Rachabhathuni Laxminarsu and others ... Petitioners
Vs.
$ The State of Andhra Pradesh, rep. by its
Principal Secretary to Revenue
(Endowments-I) Department and others ... Respondents
W.P. No.30692 of 2014:
# Pavuluri Subba Rao and others ... Petitioners
Vs.
$ The State of Andhra Pradesh, rep. by its
Principal Secretary to Revenue
(Endowments-I) Department and others ... Respondents
W.P. No.31352 of 2014:
# Dulam Manikyam ... Petitioner
Vs.
$ The Government of Andhra Pradesh,
Revenue (Endowments-I) Department,
Rep. by its Principal Secretary and others ... Respondents
W.P. No.31445 of 2014:
# Smt. Bodapati Sreeneela Devi ... Petitioner
Vs.
$ The State of Andhra Pradesh,
Revenue (Endowments) Department,
Rep. by its Principal Secretary and others ... Respondents
W.P. No.31551 of 2014:
# Smt. Mekala Aruna Devi ... Petitioner
Vs.
$ The State of Andhra Pradesh,
Revenue (Endowments-I) Department,
Rep. by its Principal Secretary and others ... Respondents
W.P. No.31640 of 2014:
# Tanadhara Nagaraju ... Petitioner
Vs.
$ State of Andhra Pradesh, Revenue
(Endowments-I) Department, rep. by its
Principal Secretary and others ... Respondents
W.P. No.31652 of 2014:
# Pathangi Guru Prasad and others ... Petitioners
Vs.
$ The State of Andhra Pradesh, Revenue
(Endowments) Department rep. by its
Principal Secretary and others ... Respondents
W.P. No.31677 of 2014:
# Sri Chennu Thirupal Reddy and others ... Petitioners
Vs.
$ State of Andhra Pradesh rep. by Principal
Secretary, Revenue (Endowments)
Department and others ... Respondents
W.P. No.31692 of 2014:
# Sri A. Chandra Sekhara Reddy and others ... Petitioners
Vs.
$ State of Andhra Pradesh, rep. by
Secretary, Revenue (Endowments)
Department and others ... Respondents
W.P. No.32020 of 2014:
# Yisanaka Harshavardha Reddy and others ... Petitioners
Vs.
$ The State of Andhra Pradesh, rep. by its
Chief Secretary and others ... Respondents
W.P. No.32246 of 2014:
# S. Ramana Reddy and another ... Petitioners
Vs.
$ State of Andhra Pradesh rep. by its
Secretary, Revenue (Endowments) and others ... Respondents
W.P. No.32255 of 2014:
# L. Manohar Reddy ... Petitioner
Vs.
$ The State of Andhra Pradesh, rep. by its
Principal Secretary, Revenue (Endowments)
Department and others ... Respondents
W.P. No.32578 of 2014:
# Shri. V. Rammohan Reddy ... Petitioner
Vs.
$ The State of Andhra Pradesh, Revenue
(Endowments-I) Department rep. by its
Principal Secretary and others ... Respondents
W.P. No.32584 of 2014:
# Kadambari Suryanarayana Murthy
and others ... Petitioners
Vs.
$ The State of Andhra Pradesh, rep. by
its Principal Secretary, Revenue
(Endowments-I) Department and others ... Respondents
<Gist:
>Head Note:
! Counsel for petitioners : Sri R. Raghunandan Rao,
senior counsel
^ Counsel for respondents : Learned Advocate General for
the State of Andhra Pradesh
? CASES REFERRED:
1.1967(2) SCR 214 = AIR 1967 SC 1305
2. AIR 1955 SC 191
3. (2008) 5 Supreme Court Cases 1
4. (1997) 6 Supreme Court Cases 623
THE HON'BLE THE CHIEF JUSTICE
SRI KALYAN JYOTI SENGUPTA
AND
HON'BLE SRI JUSTICE SANJAY KUMAR
WRIT PETITION Nos.29189, 29264, 29317, 29453,
29455, 29474, 29475, 29499, 29556, 30168,
30674, 30688, 30692, 31352, 31445,
31551, 31640, 31652, 31677,
31692, 32020, 32246,
32255, 32578 and
32584 of 2014
COMMON ORDER: (per Hon'ble Sri Justice Sanjay Kumar)
The petitioners in this batch of cases were appointed as
Chairpersons and/or Trustees on the Boards of various temples in the
erstwhile combined State of Andhra Pradesh. Such appointment was
effected under the provisions of the Andhra Pradesh Charitable and
Hindu Religious Institutions and Endowments Act, 1987 (for brevity, 'the
Act of 1987'). Their common grievance in these cases is with the
Andhra Pradesh Charitable and Hindu Religious Institutions and
Endowments (Amendment) Act, 2014 (Act No.8 of 2014), enacted by the
bifurcated new State of Andhra Pradesh, in so far as it introduced
Section 163 in the Act of 1987. This provision is assailed on the ground
that it is illegal, arbitrary and a colourable exercise of power, contrary to
the provisions of the Constitution and the Act of 1987.
By way of Act No.8 of 2014, the new State of Andhra Pradesh
effected certain changes in Sections 15 and 96 of the Act of 1987 and
introduced Section 163 therein. The grievance canvassed presently is
as regards this new provision. Section 163 reads as under:
"163. Notwithstanding anything contained in the Principal
Act, all the Chairpersons and Members of the Trust Boards of all
Institutions including TTDs holding office at the commencement
of the Andhra Pradesh Charitable and Hindu Religious
Institutions and Endowments (Amendment) Act, 2014 shall cease
to hold office forthwith and thereupon it shall be competent for the
Government to appoint a person or persons to exercise the
powers and perform the functions of the Boards of Institutions
including TTDs till new Trust Boards are reconstituted and
Chairman/Members are appointed in accordance with the
provisions of Sections 15 and 96 of the Principal Act as amended
by this Act."
Given the multiplicity of pleadings, it would suffice to refer to the
affidavit filed in support of Writ Petition No.29264 of 2014, which
comprehensively covers the gamut of the grounds of challenge urged by
the petitioners against the impugned provision. The petitioner in this
writ petition was appointed Chairman of the Trust Board of Sri
Veerabhadra Swamy Vari Devasthanam, Lepakshi Village and Mandal,
Hindupur Taluk, Ananthapur District. His appointment as a Trustee took
place in December, 2013 and he was elected Chairman of the Board
thereafter. His term as a member of the Trust Board is till December,
2015 as per Section 17(2) of the Act of 1987. Sri Veerabhadra Swamy
Vari Devasthanam, Lepakshi, is a temple classified under Section 6(b)
(ii) of the Act of 1987. The Commissioner of Endowments is therefore
the competent authority to constitute its Board of Trustees as per
Section 15 of the Act of 1987. The petitioner's appointment was
accordingly effected by the Commissioner of Endowments of the
erstwhile combined State of Andhra Pradesh. While so, by way of the
impugned amendment and introduction of Section 163 in the Act of
1987, the present State of Andhra Pradesh decreed that the
Chairpersons and members of all the Trust Boards of all temples
holding office at the commencement of Act No.8 of 2014 shall cease to
hold office forthwith and thereupon, it shall be competent for the
Government of the present State of Andhra Pradesh to reconstitute new
Trust Boards and until such time, to appoint a person or persons to
exercise the powers and perform the functions of such Boards. The
petitioner challenges this legislative action on the ground that there was
no justification for terminating the Trust Boards constituted as per the
provisions of the Act of 1987 whereby a statutory right vested in those
appointed to continue in office, as per Section 17 of the Act of 1987, for
a term of two years unless removed as per the procedure prescribed
under Section 28 thereof.
The newly introduced Section 163, which has overriding effect in
view of the non obstante clause, is stated to be a colourable exercise of
power as it has the effect of terminating all existing Trust Boards
indiscriminately without reference to Sections 17 and 28 of the Act of
1987. The petitioner contends that no reference was made to the object
sought to be achieved, either in the interest of the temples or the
devotees thereof, by introduction of the impugned provision in the
statute. The petitioner alleges that the same is a misuse of legislative
power and is intended to gain political ends owing to the change in the
political scenario. The petitioner also attacks the motive in increasing
the number of Trustees in each Board. He further contends that even if
such amendment is to be effected, it could be done only prospectively
and could not be applied with retrospective effect so as to terminate the
existing Trust Boards without just cause. He alleges that the subject
exercise amounts to naked discrimination as persons suited to the
interests of the members of the present ruling party are sought to be
accommodated by removing the existing Trust Board members. The
petitioner further alleges that the Amendment Act amounts to
interference in the administration of the temples and is violative of
Articles 14, 25 and 26 of the Constitution. The petitioner asserts that the
impugned provision retrospectively cuts short the statutory right which
vested in the petitioner under Section 17 of the Act of 1987 and unless it
survives the test envisaged by Article 13(2) of the Constitution, it has to
be declared as illegal and unconstitutional.
The impugned provision is also challenged on the ground that it
creates two classes of Trust Board members - those appointed prior to
the impugned amendment and those appointed thereafter. The
petitioner points out that by virtue of Section 163, those appointed prior
to the amendment are denied the protection of Section 28 of the Act of
1987, which prescribes the procedure for cutting short the statutory term
of a Trust Board member, while those appointed thereafter would
continue to enjoy such statutory protection. This denial of statutory
protection to one class of Trust Board members is stated to be arbitrary
and violative of Article 14. The petitioner alleges that there is no
intelligible differentia between the two classes and the distinction
sought to be effected between them without rationale offends the
constitutional scheme, which requires reasonable and equal treatment
of all by the State.
Reiterating the thrust of the aforementioned pleadings, Sri R.
Raghunandan Rao, learned senior counsel who led arguments on
behalf of the petitioners in the batch, contends that the scheme of the
Act of 1987 substantially remained unchanged despite the limited
amendments effected under Act No.8 of 2014. He points out that the
appointing authorities remained the same for different classes of
temples under Section 6 of the Act of 1987 and that by way of the
amendments effected to Section 15 of the Act of 1987, only the number
of Trustees was enhanced. He asserts that in this situation, it was not at
all necessary to remove the existing members of the Trust Boards as all
that was required was to supplement the existing members by
appointing new members to satisfy the enhanced numbers. He
reiterates that creation of two classes of Trust Board members under
Section 163 results in discrimination between identically situated
classes without there being any intelligible differentia. He further
contends that the vested right of tenure under Section 17 of the Act of
1987 was sought to be taken away by way of the retrospective operation
of Section 163, which was given overriding effect. He would conclude
by asserting that Section 163 cannot withstand constitutional and legal
scrutiny and is therefore liable to be struck down being a colourable
exercise of legislative power.
Counter-affidavits having been filed in most of the cases, the
learned Advocate General for the State of Andhra Pradesh would
recapitulate the contents thereof. It is his argument that the impugned
provision does not offend any other provision of the statute, viz, the Act
of 1987, or any Constitutional provision. Reference is made to various
provisions of the Act of 1987 and he states that all that the amendment
did was to substitute the existing Sub-section (1) of Section 15, whereby
temples were segregated on their annual income. Temples in the new
State of Andhra Pradesh with an annual income exceeding Rs.20.00
crore are stated to be 7 in number; those with annual income between
Rs.5.00 and Rs.20.00 crore are 6 in number; those with annual income
ranging between Rs.1.00 crore and Rs.5.00 crore are 49; those with
annual income ranging from Rs.25.00 lakh to Rs.1.00 crore are 115;
those with annual income ranging between Rs.2.00 lakh and Rs.25.00
lakh are 1,597; and lastly, temples with less than Rs.2.00 lakh annual
income are 22,060.
The right of all the petitioners to be considered for appointment
afresh as non-hereditary Trustees is stated to be intact and it is pointed
out that the amendment did not preclude them from applying again
pursuant to a fresh notification in that regard. The learned Advocate
General states that pursuant to the substitution of Section 15, a fresh
notification necessarily has to be issued depending upon the temple
income as otherwise, it would amount to a person being a Trustee of a
particular temple whose income did not fit into any of the categories
envisaged under the new Section 15(1) of the Act of 1987. He further
states that one can only be a non-hereditary Trustee of a temple
depending upon the income of the temple and as this categorization had
undergone a change, fresh constitution of Trust Boards has to take
place and therefore, Section 163 was inserted to facilitate the same. He
submits that it was by a fiction that all the Trustees ceased to hold office
owing to the income criteria and that upon issuance of a new notification
they could apply and get appointed to the Trust Boards depending upon
the income categorization under the amended Section 15 of the Act of
1987.
Reply affidavits having been filed by some of the petitioners in the
batch, they reiterate therein their attack against the impugned provision
and pray for the writ petitions to be allowed. They point out that there
were no allegations against any of the existing Trustees and mere
increase in the number of Trust Board members could not be
justification to penalize them by casting them out of office en masse.
The impugned provision is castigated as a colourable exercise of
legislative power offending the principles of fair play and equality
enshrined in Article 14 of the Constitution.
Be it noted that prior to its promulgation, Act No.8 of 2014 was
preceded by Ordinance No.3 of 2014 which was challenged before this
Court by most of the petitioners in these cases. However, during the
pendency of those writ petitions, the said Ordinance culminated in Act
No.8 of 2014 and the pending writ petitions were closed leaving it open
to the petitioners therein to challenge the subsequent enactment.
Hence, these cases.
Being satisfied prima facie that the impugned legislation could
not be given retrospective operation, this Court passed interim orders in
all the cases directing the respondents to maintain status quo as on the
date of passing of such individual orders.
Though raised in the pleadings, the challenge to the increase in
the number of Trustees; the alleged violation of Articles 25 and 26 of the
Constitution; and the allegation that the impugned amendment is a
colourable exercise, were not pressed by Sri R. Raghunandan
Rao, learned senior counsel, during his arguments. We are thus not
called upon to decide these issues, which are accordingly eschewed
from consideration.
The petitioners' grievance now before us is solely against the
newly inserted Section 163 in the Act of 1987. It would therefore be
apposite to analyze the same in the backdrop of other provisions in the
Act of 1987. The relevant provisions are:
Section 6. Preparation and publication of list of charitable
and religious institutions and endowments on the basis of income:-
The Commissioner shall prepare separately and publish in the
prescribed manner, a list of-
(a) (i) the charitable institutions and endowments; or
(ii) the religious institutions and endowments other than
maths;
whose annual income as calculated for the purpose of
levy of contribution under Section 65 exceeds rupees
twenty five lakhs;
(b) (i) the charitable institutions and endowments;
(ii) the religious institutions and endowments, other than
maths;
whose annual income calculated as aforesaid exceeds rupees
two lakhs but does not exceed rupees twenty five lakhs;
(c) (i) the charitable institutions and endowments; or
(ii) the religious institutions and endowments other than
maths not falling under clause (a) or clause (b);
(d) the maths irrespective of the income;
(e) the Dharmadayam irrespective of the income;
Provided that the Commissioner may alter the classification
assigned to an institution or endowment in the list and enter the same in
the appropriate list in case the annual income of such institution or
endowment calculated as aforesaid exceeds or falls below the limits
specified in clause (a) or clause (b) or clause (c) for three consecutive
years.
Section 15 of the Act of 1987, as it stood prior to its amendment
under Act No. 8 of 2014, reads as under:
Section 15. Appointment of Board of Trustees:-
In respect of a Charitable or Religious Institution or Endowment,-
(1) included in the list published under clause (a) of Section 6,
where the income for the Institution exceeds Rupees one crore per
annum, the Government shall constitute a Board of Trustees consisting
of nine persons appointed by them; where the income of the institution is
between Rs.25 lakhs to Rupees one crore per annum, the Dharmika
Parishad shall constitute a Board of Trustees consisting of nine
persons.
(2) Where the income of the institution is between Rs.2.00 lakhs
to Rs.25 lakhs per annum, the Commissioner shall appoint a Board of
Trustees consisting of five persons and where the income of the
institutions is less than Rs.2.00 lakhs per annum, the Deputy
Commissioner concerned may constitute a Board of Trustees consisting
of three persons in respect of each such temple keeping in view the
traditions, sampradayams and wishes of the devotees:
Provided that the Deputy Commissioner may either in the interest
of the institution or endowment or any other sufficient cause or for
reasons to be recorded in writing appoint a single trustee instead of a
Board of Trustees:
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:
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:
Provided also that where there is no Executive Officer or Founder
Family member to any institution or where the Government or the
authority competent to constitute a Trust Board has not constituted the
Trust Board within the period specified under this sub-section, the
Commissioner shall make such arrangement as he deems fit to look
after the affairs of the institution during the interregnum period between
the date of expiry of the terms of the Trust Board and constitution of the
new Trust Board:
Provided also that one of the members of the Board of Trustees
shall be a prominent donor with a long track record of Philanthropy and
support to Hindu Religious Institutions.
By way of the amendment through Act No. 8 of 2014, the following
changes were effected:
In Section 15, -
(i) for sub-section (1), the following shall be substituted, namely,-
"(1) Any institution included in the list published under clause (a)
of section 6,-
(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;
(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;
(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;
(iv) where the income for the institution is between Rs.25.00
lakhs (Rupees Twenty Five Lakhs) to Rs.1.00 crore
(Rupees One Crore) per annum, the Andhra Pradesh
Dharmika Parishad shall constitute a Board of Trustees
consisting of nine (9) persons."
(ii) in sub-section (2),-
(a) in the opening paragraph, for the words "five
persons", the words "seven persons" and for the
words "three persons", the words "five persons" shall
respectively be substituted;
(b) for the fifth proviso, the following shall be substituted,
namely:-
"provided also that two members of the Board of Trustees
shall be prominent persons with a long track record of
philanthropy and support to Hindu Religious Institutions."
The effect and impact of the changes aforestated shall be dealt
with hereinafter.
Other provisions of the Act of 1987, germane for our purpose, are
extracted below:
Section 17. 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 such 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 I:- 'Founder' means,-
(a) in respect of Institution or Endowment 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.
(2) Every trustee appointed under Section 15 shall hold office for
a term of two years from the date of taking oath of office and secrecy.
Provided that every trustee who completed a term of office of one
year at the commencement of the Andhra Pradesh Charitable and
Hindu Religious Institutions and Endowments (Amendment) Act, 2000
shall cease to hold office forthwith and every trustee whose term of
office exists after such commencement shall continue to hold office for a
period of two years from the date of taking oath of office and secrecy.
Explanation:- Where the oath of office and secrecy are
administered on different dates, the period of two years shall be
reckoned from the earlier of those dates for the purpose of this sub-
section.
(3) The procedure for calling for application for appointment of
trustees, verification of antecedents and other matters shall be such as
may be prescribed.
(4) No person shall be a trustee in more than one Board of
Trustees.
(5) In every Board of Trustees, there shall be at least one woman
member and one member belonging to the Scheduled Castes or the
Scheduled Tribes whose population is larger in the concerned village
and one member belonging to Backward Classes:
Provided that it shall not be necessary to appoint-
(a) a woman member where any person appointed to represent
the Scheduled Castes or the Scheduled Tribes or the Backward
Classes is a woman;
(b) a member of the Scheduled Castes or the Scheduled Tribes
where any woman member appointed belongs to the Scheduled
Castes or the Scheduled Tribes;
(c) a member of the Backward Classes where any woman
member appointed belongs to the Backward Classes.
(6) All properties belonging to a charitable or religious institution
or endowment, which on the date of commencement of this Act, are in
the possession or under the superintendence of the Government, Zilla
Praja Parishad, Municipality or other local authority or any company,
society, organization. Institution or other person or any committee,
superintendent or manager appointed by the Government, shall, on the
date on which a Board of Trustees is or is deemed to have been
constituted or trustee is or is deemed to have been appointed under this
section, stand transferred to such Board of Trustees or trustee thereof,
as the case may be and all assets vesting in the Government, local
authority or person aforesaid and all liabilities subsisting against such
Government, local authority or person on the said date shall, devolve on
the institution or endowment, as the case may be.
Section 28. Suspension, removal or dismissal of trustee:-
(1) The authority competent to appoint a trustee may suspend,
remove or dismiss a trustee if he-
(a) fails to discharge the duties and perform the functions of a
trustee in accordance with the provisions of this Act or the rules
made thereunder:
(b) disobeys any lawful order issued under the provisions of this
Act or the rules made thereunder, by the Government or the
Commissioner or the Additional Commissioner, or the Regional
Joint Commissioner or the Deputy Commissioner or the Assistant
Commissioner;
(c) refuses, fails or delays to handover the property and records in
his possession relating to the institution or endowment to his
successor or any other person authorized in this behalf;
(d) commits any malfeasance or misfeasance or is guilty of
breach of trust or misappropriation in respect of the properties of
the institution or endowment;
(e) becomes subject to any of the disqualifications specified in
Section 19; or
(f) in the case of a religious institution or endowment, ceases to
profess Hindu religion.
(2) Where it is proposed to take action under sub-section (1), the
authority competent to appoint the trustee shall frame a charge against
the trustee concerned and give him an opportunity of meeting such
charge, of testing the evidence adduced against him and of adducing
evidence in his favour and the order of suspension, removal or
dismissal shall state every charge framed against trustee, his
explanation and the finding on such charge, together with the reasons
therefor.
(3) Pending disposal of any charge framed against a trustee, the
authority competent to appoint the trustee may suspend the trustee and
appoint a fit person to discharge the duties and perform the functions of
the trustee.
Reconnaissance of the above statutory scheme would
demonstrate that while appointing Trustees the competent authority is
required to have due regard to the religious denomination to which the
temple belongs and the wishes of its founder (Section 17). Further, to
be qualified for appointment as a Trustee, the incumbent is to fulfill the
qualifications set out in Section 18.
Notably, these provisions were not touched by way of the
amendments effected under Act No. 8 of 2014. All that was done
thereunder was a change of categorization of temples falling within the
ambit of Section 6(a) of the Act of 1987. Hitherto, under Section 15(1) of
the Act of 1987, such temples whose annual income exceeded
Rs.25.00 lakhs but were less than Rs.1.00 crore per annum were set
apart from temples whose annual income exceeded Rs.1.00 crore. By
substitution of Section 15(1), this division into two categories was
amended, whereby four categories were introduced. The first new
category is temples with an annual income exceeding Rs.20.00 crore for
which the Government is the competent authority for appointing a Board
of Trustees consisting of 15 members; the second new category is
temples with an annual income between Rs.5.00 crore and Rs.20.00
crore for which the Government will constitute a Board of Trustees
comprising 11 members; the third new category is temples with an
annual income ranging between Rs.1.00 crore and Rs.5.00 crore and
the Government is competent to constitute a Board of Trustees with 9
members and the last new category is temples with an annual income
between Rs.25.00 lakhs and Rs.1.00 crore for which the Andhra
Pradesh Dharmika Parishad is the competent authority for constituting a
Board of Trustees with 9 members.
By way of Act No.8 of 2014, Section 15(2) was also amended
whereby the number of members in Trust Boards for temples falling
under Sections 6(b) and 6(c) of the Act of 1987 was also increased. For
temples falling within Section 6(b), the number of Trust Board members
was increased from 5 to 7 and for Section 6(c) temples, the number of
members grew from 3 to 5. By way of the new fifth Proviso to Section
15, two members of the Board of Trustees, instead of the earlier one
member, were required to be prominent persons with a long track record
of philanthropy and support to Hindu Religious Institutions. Earlier, the
one member categorized under this Proviso was also required to be a
prominent donor but that requirement has been done away with and the
present two members falling under this category are only required to be
prominent persons and not donors. Section 96 of the Act of 1987
dealing with Tirumala Tirupathi Devasthanams was also amended, but
the same is of no relevance presently.
The bone of contention is the new Section 163 introduced in the
Act of 1987. This provision admittedly cuts short the tenure of the
existing Chairpersons and members of Trust Boards as their terms
ceased automatically thereunder, making way for the present State of
Andhra Pradesh to constitute new Trust Boards for all the temples. This
provision invariably distinguishes between the existing Trust Board
members, as a separate class targeted thereunder, as opposed to future
Trust Board members who would not be subjected to the same
treatment.
The question is whether there is any intelligible differentia
between these two classes of Trust Board members satisfying Article 14
of the Constitution, which permits reasonable classification.
Having given our earnest consideration to the matter, we are of
the opinion that such is not the case. As pointed out earlier, the
qualifications for appointment to the Trust Boards of temples remain
unchanged. The appointing authorities also remain the same. Though
the learned Advocate General sought to project the classification of
Section 6(a) temples into four new categories as a justification for
disbanding the existing Trust Boards, this Court finds no logic or
rationale in this argument. The financial profile of the applicant for
appointment as a member on the temple's Trust Board has no relevance
whatsoever under the provisions of the Act of 1987. Neither Section 15
nor Sections 17 and 18 of the Act of 1987 indicate such a criterion being
the basis for appointment as a Trust Board member. Earlier, all Section
6(a) institutions whose annual income exceeded Rs.1.00 crore were
clubbed into one category, whereas under the amended Section 15 they
are now split up into three categories with differing number of members
on the Trust Boards. Except for this, there is no other change.
There is only an overall enhancement in the number of members
on the Trust Boards of temples. There is no material to demonstrate
before us that any of the existing Trust Board members have suffered
any disqualification or warrant removal from office in terms of Section 28
of the Act of 1987. As the number of members has increased in such
Trust Boards all that is required is that the Government supplements the
existing numbers by appointing new members.
There is no discernible and acceptable factor which sets the
existing Trust Board members apart from Trust Board members who
may be appointed in future. There is therefore no logic or basis for
showing the existing Trust Board members the door. Their en bloc
removal without any rationale is therefore an apparent case of naked
discrimination. On the one hand, no grounds are cited or established for
their removal as a single class without reference to the statutory
protection of Sections 17 and 28 of the Act of 1987 and on the other
hand, is the denial of such protection to them alone when it continues to
remain available to future Trust Board members. The clubbing of the
existing Trust Board members into one single class and their
unceremonious removal vide Section 163 therefore demonstrates naked
discrimination against them offending Article 14 of the Constitution.
In D.S.REDDI, VICE-CHANCELLOR, OSMANIA UNIVERSITY
[1]
V/s. CHANCELLOR, OSMANIA UNIVERSITY , a Constitution Bench
was dealing with an amendment to the Osmania University Act, 1959,
which created a distinction between the existing Vice-Chancellor of the
University and all other Vice-Chancellors, before or after him. Referring
[2]
t o BUDHAN CHOUDHRY V/s. STATE OF BIHAR , the Bench
observed that in order to accept a classification as a reasonable and
permissible one, not hit by Article 14, the measure in question would
have to pass two tests as laid down therein -- (i) that the classification
must be founded on an intelligible differentia which distinguishes
persons or things that are grouped together from others left out of the
group and (ii) that that differentia must have rational relation to the object
sought to be achieved by the statute in question. If no such reasonable
basis of classification appears on the face of the statute or is deducible
from the surrounding circumstances, the Supreme Court opined that the
law would have to be struck down as an instance of naked
discrimination. Applying these principles, the Supreme Court found that
the provisions of the Act were directed only against one individual, the
existing Vice-Chancellor of the University and the classification which
was sought to be effected between him as a single class as opposed to
all other Vice-Chancellors, past and future, was not founded on an
intelligible differentia. No rational relation was established as to the
object sought to be achieved by the amendment creating such a
classification and the same was accordingly held to be unconstitutional.
A similar amendment was under challenge in
[3]
P. VENUGOPAL V/s. UNION OF INDIA . The
petitioner before the Supreme Court was the Director of the All India
Institute of Medical Sciences, New Delhi. An amendment was effected
to the All India Institute of Medical Sciences Act, 1956, whereby his term
was sought to be cut short. This was assailed on the ground that it
amounted to a single-man legislation intended to affect the petitioner
alone and therefore amounted to naked discrimination against him.
Referring to the earlier judgment in D.S. REDDI1, the Supreme Court
held that the impugned amendment was hit by Article 14 as it intended
only to carry out premature termination of the tenure of the petitioner
without justifiable reason or notice. The fact situation was held to be
similar to that obtaining in D.S. REDDI1 and the impugned
amendment was invalidated as it created an unreasonable classification
between the petitioner and future Directors and denied him fair
treatment without there being any intelligible differentia.
The ratio laid down in these two decisions applies on all fours to
the matter on hand.
Cutting short the normal tenure which vested in the existing Trust
Board members under Section 17(2) of the Act of 1987 without any
rational basis, when such guarantee of tenure continues to be available
to future Trust Board members, clearly discriminates against them. In
this regard, useful reference may also be made to CHAIRMAN,
[4]
RAILWAY BOARD V/s. C.R. RANGADHAMAIAH , wherein a
Constitution Bench was dealing with the connotation of a 'vested right'.
Referring to earlier decisions of the Supreme Court, the Bench observed
that the expressions 'vested rights' or 'accrued rights' had been used
while striking down impugned provisions which were given
retrospective operation so as to adversely affect the rights of
employees. The Bench further observed that the expressions were
used in the context of a right flowing under the relevant rule which was
sought to be altered with effect from an anterior date, thereby taking
away the benefits available under the rule in force at that time, and
affirmed that it had been held that such an amendment having
retrospective operation and had the effect of taking away a benefit
already available to the employee under the existing rule was arbitrary,
discriminatory and violative of the rights guaranteed by Articles 14 and
16 of the Constitution.
Article 13(2) of the Constitution proscribes the State from making
any law which takes away or abridges fundamental rights and renders
the law, to the extent of such contravention, void. The impugned Section
163 of the Act of 1987 demonstrably offends the principle of equality
enshrined in Article 14 as the existing Trust Board members and
Chairpersons were targeted as a single class without there being any
reasonable classification based on any intelligible differentia and
without a rational basis or object. The provision therefore falls foul of
Article 13(2) of the Constitution.
Interestingly, in M.THIRUPATHI RAO V/s. THE STATE OF
[5]
TELANGANA , we had occasion to consider an amendment on
similar lines brought by the State of Telangana to the Andhra Pradesh
(Agricultural Produce and Livestock) Markets Act, 1966 (vide Telangana
Ordinance No.1 of 2014), whereby existing Market Committees were
sought to be disbanded en bloc making way for the State to effect
reconstitution. This Court held that the amendment was constitutionally
invalid and accordingly struck down the same.
For the reasons aforestated, Section 163 of the Andhra Pradesh
Charitable and Hindu Religious Institutions and Endowments Act, 1987,
inserted by way of the Andhra Pradesh Charitable and Hindu Religious
Institutions and Endowments (Amendment) Act, 2014 (Act No.8 of 2014)
is declared void.
The writ petitions are allowed to the extent indicated above.
W.P.M.P. No.40821 of 2014 in W.P. No.29264 of 2014 was filed by one
Dr. M.V. Soundararajan seeking to intervene in the writ petition and
support the petitioner therein. However, none appeared for the
intervening petitioner to press the petition. W.P.M.P. No.40821 of 2014
along with other pending miscellaneous petitions in this batch of cases
shall therefore stand closed. No order as to costs.
Before we part with the matter, we may point out that Article 300
of the Constitution requires that the State be sued in its name. However,
we find that in W.P. Nos.29264 and 31352 of 2014, the State has been
wrongly described as the Government of Andhra Pradesh. We therefore
deem it proper that necessary corrections be carried out in the cause
titles of these writ petitions. The Registry is accordingly directed to
substitute 'The State of Andhra Pradesh' in the place of 'The
Government of Andhra Pradesh', wherever necessary, before issuing a
copy of this order.
___________________
K.J. SENGUPTA, CJ
____________________
SANJAY KUMAR, J
_____December, 2014
L/R copy to be marked - Yes
B/o Svv
After pronouncement of the order, the learned Advocate General
for the State of Andhra Pradesh prayed that the order may be
suspended so as to enable the State to take necessary steps as may be
advised. However, we are of the opinion that a blanket stay of the order
passed by us would create complications as the orders of status quo
passed in the writ petitions were subsisting till date.
We accordingly direct that the orders of status quo which held the
field during the pendency of these writ petitions shall continue for a
further period of four weeks from today. It is further clarified that
whosoever continued in office as on the date of passing of the status
quo orders in the individual writ petitions would continue pursuant to this
order for a further period of four weeks from today.
________________________
K.J. SENGUPTA, CJ
___________________
SANJAY KUMAR, J
30.12.2014
bnr
[1]
1967(2) SCR 214 = AIR 1967 SC 1305
[2]
AIR 1955 SC 191
[3]
(2008) 5 Supreme Court Cases 1
[4]
(1997) 6 Supreme Court Cases 623
[5]
W.P.No.24877 of 2014 and batch, dated 07.11.2014
