Telangana High Court
T.N.Pradeep Kumar vs N. Narasimha Murthy And Another on 7 June, 2024
THE HONOURABLE SMT. JUSTICE M.G.PRIYADARSINI
Civil Miscellaneous Appeal No.853 OF 2019
JUDGMENT:
Aggrieved by the Order dated 07.06.2019 (hereinafter will
be referred as 'impugned order') in O.A.No.3 of 2017 passed by
the learned Telangana Endowments Tribunal at Hyderabad, the
applicants filed the present Civil Miscellaneous Appeal.
2. For the sake of convenience, hereinafter, the parties will
be referred as per their array before the learned Telangana
Endowments Tribunal at Hyderabad (hereinafter will be referred
as "Tribunal").
3. The facts that lead the applicants to file the present
appeal are as under:
a) The applicants filed an application under Section 87 (1)(e)
of the Telangana Charitable and Hindu Religious Institutions
and Endowments Act, 1987 (hereinafter will be referred as 'the
Act') to declare the applicants and their family members as
hereditary pujaris and trustees of Sri Chenna Keshava Swamy
Temple and Sri Anjaneya Swamy Temple situated at Kodair
Village of Nagar Kurnool District (hereinafter will be referred as
'subject temple') with a right to receive the emoluments and
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honorarium like DDNS and others attached to the temple and
also for the annulments of the entries in the Section 43 register
standing in the name of first respondent by substituting it with
applicants and their ancestors names as hereditary Pujaris and
trustees of the temple. The brief averments of the application
are as under:
i) The subject temple is a very small, ancient temple in
existence ever since Vijayanagar dynasty having the income
below Rs.10,000/- per annum. The ancestors of the applicants
were recognized as hereditary pujaris and trustees of the
temple. Their great grandfather addressed a letter in the year
1939 to the Chief Engineer of Nizam Government under the
capacity of Muthawali wherein, it is appraised that there is no
revenue to the temple and it is very much necessary for
reconstruction of the temple, which is in dilapidated condition
and when there was no reply for that letter, it was renovated
with his personal resources.
ii) The great grandfather of the applicants used to submit
budget proposals every year pertaining to the temple and also
used to receive letter from Tahsil Office of Kollapur for
submitting budget proposals. To overcome the financial
difficulties and for smooth functioning of the temple, the village
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elders resolved that their grandfather has to do daily puja
activities in the subject temple by following traditional rituals
for which, it was decided to contribute some yield from their
agricultural fields. They have also resolved that in case for any
reason, no support is received from them even in such
circumstances, their grandfather has to do pujapath and it
should be continued.
iii) The great grandfather and his successors by overcoming
the adverse situations, sustained the pujariship cum
trusteeship of the subject temple. After obtaining permission
from Tahsil Office, Nagarkurnool, the great grandfather of the
applicants constructed a dwelling house at Kodair and he
became a permanent resident of Kodair by continuing Pujapath
and the maintenance of the temple. The grandfather of the
applicants by name Nambi Balakrishnaiah in line of succession
served as hereditary pujari cum trustee of the subject temple
and the Endowments Department recognized him as such, and
he used to receive the notices from the department for
submission of income and expenditure of the temple. The
grandfather of the applicants used to correspond with the
Assistant Commissioner of Endowments in relation to the
activities of the temple and he used to receive the
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acknowledgment for such correspondence. The subject temple
was published in the official gazette. At first instance, the great
grandfather Pujari Lakshmaiah, thereafter his son Pujari
Narasimha, thereafter his son Pujari Balakrishnaiah and
thereafter his sons Pujari Lakshmana Swamy, Pujari
Srinivasulu used to perform the pujapath in the subject temple
and now in the line of succession, the applicants are doing
archakatwamu in the subject temple in the capacity of
hereditary pujaris cum trustee though, it is a small and less
income temple.
iv) The pujariship and trusteeship of the subject temple at all
the times vested in the hands of their ancestors and at present
in them in line of succession. No one from outside their family
ever performed or functioned as hereditary pujari cum trustee of
the subject temple. The office of the Pujariship and trusteeship
of the subject temple is hereditary in nature, which is vested in
their family. Earlier, their ancestors were in the administration
of the temple as hereditary pujaris cum trustees and at present
they are doing the pujapath in the capacity of the hereditary
pujaris cum trustees of the temple and the temple was and is
exclusively in their hands since long.
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v) In the year 2008, the 1st respondent without any manner of
right and without informing them or to their family members got
registered the subject temple U/s.43 of the Act, 30/87 and the
2nd respondent without following the procedure, registered it by
holding the 1st respondent as hereditary trustee cum pujari of
subject temple and a certificate was also issued to that effect.
The 1st respondent on the strength of the certificate issued to
him by the 2nd respondent, applied for DDNS (Dhoopa Deepa
Naivedyam Scheme) and he managed to obtain. When the
applicants came to know about it and being aggrieved,
addressed a letter to 2nd respondent on 18.12.2008 by
narrating the facts and till date, there is no response from the
2nd respondent.
vi) The applicants aggrieved with the silence of 2nd
respondent, were constrained to address letters to the MRO,
Kodair, RDO of Nagar Kurnool and also to the Commissioner of
Endowments and when they did not get any response, then they
further constrained to address a letter to the District Collector
of Mahaboobnagar District and that authority was kind enough
to direct the 2nd respondent to take necessary action and but
2nd respondent has not shown any reaction. An application
was made to the 2nd respondent with a request to provide the
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information relating to hereditary pujaris for the year 1985-86
and to that application, there was no response. Then, they
approached the Village elders of Kodair Village and were
constrained to put into their notice about the illegal activities of
the 1st respondent. The Village Sarpanch was kind enough to
declare them as hereditary pujaris of the subject temple in line
of succession and the 1st respondent as village priest and he
has got no connection to the subject temple.
vii) The Committee of the subject temple jointly addressed a
letter to the Commissioner of Endowments on 10.08.2012
wherein, they declared them as original hereditary pujaris cum
trustees of the subject temple in the line of succession a
representation, dt.06.12.2012 was submitted to the
Commissioner of Endowments about the illegal activities of 1st
respondent, but, there is no response. That, despite their
several representations to the various authorities, the 1st
respondent is continuing his misdemeanor by receiving the
DDNS amount every month though, he had no right of
whatsoever nature, but, because of his close intimacy with the
Endowments officials. Without there being any other alternative,
the applicants were constrained to bring their problems to the
notice of Village elders and to the temple committee. Then, a
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meeting was held on 12.04 2013, wherein it was decided that,
the DDNS amount shall be handed over to them. The 1st
respondent accepted the proposal of the villagers and signed on
a note paper in front of village elders but he failed to do so and
then a representation was made to the 2nd respondent on
19.04.2014 vexed with the attitude of all the officials to
29.04.2014, but, there was no response.
viii) Having vexed with the attitude of all the officials to whom,
they made representations, they as a last resort constrained to
lodge a complaint before the Lokayukta and that authority
passed an order on 23.08.2008 by giving direction to 2nd
respondent for taking appropriate action after conducting the
enquiry within the period of four (4) months. The 2nd
respondent by issuing notices, called for details of the issue and
in response to the notice received by them, they submitted all
the required details along with the documents but, again the
2nd respondent has not responded. Then, they constrained to
bring the issue to the notice of Vigilance Officer of Endowments
Department and that authority issued a Memo to the 2nd
respondent, but, for that memo also, the 2nd respondent has
not responded. They also made an application to the 2nd
respondent under the Right to Information Act for furnishing
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the details of pujari of the subject temple along with other
details, but, for that application also there is no response from
the 2nd respondent. Aggrieved with the inaction of 2nd
respondent, the applicants constrained to address a letter to
Commissioner of Endowments on 21.06.2006, but, for that also
there is no response. In the meanwhile, the Hon'ble Lokayukta
passed a final order on 18.08.2016 wherein, a direction was
given to approach the Endowments Authorities under the Act,
30/87 to seek redressal of the grievance.
ix) Having no other go, they constrained to file this
application and even on the date of filing of the application, they
are performing daily pujapath in the subject temple in the
capacity of hereditary pujaris cum trustees and surprisingly,
the 1st respondent receiving the amount under DDNS for every
month from the Endowments Department, which shows the
collusion in between the 1st and 2nd respondents. Needless to
say, the 2nd respondent blatantly failed to discharge his
statutory duties in the manner prescribed and thereby he
caused irreparable injury. Thus, it is just and necessary to
allow the application by granting the following reliefs.
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b) The 1st respondent in his counter denied the case of the
applicants, the material allegations made against him and
sought dismissal of the application on the following grounds:
i) Sri Chenna Keshava Swamy Temple and Sri Anjaneya
Swamy Temple are in existence from time immemorial and his
ancestors used to work as pujaris in the Anjaneya Swamy
Temple. In line of succession at present, he is working as pujari
of Sri Anjaneya Swamy Temple. The ancestors of the
applicants and their father worked as pujaris of Sri Chenna
Keshava Swamy Temple which has got some lands for its
maintenance and those lands are in the custody of applicants
and their family members.
ii) There is no source of income to the Anjaneya Swamy
Temple and it is maintained by the donations collected from the
villagers. He was constrained to make an application for grant of
honorarium for maintenance of Sri Anjaneya Swamy Temple
from the Government under DDNS. The Government after
conducting enquiry with the village elders, with the committee
members and after perusing the actual state of condition of Sri
Anjaneya Swamy Temple granted Rs.6,000/- per month for
performing daily pujas and for the maintenance of the temple.
The applicants are no way concerned with the maintenance of
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Sri Anjaneya Swamy Temple and he is only entitled to receive
the honororium under DDNS.
iii) The applicants with a grudge filed applications before
various authorities for the stoppage and for the cancellation of
honorarium, which he has been receiving under DDNS for Sri
Anjaneya Swamy Temple. Those various authorities after
conducting enquiries rejected the case of the applicants. The
Hon'ble Lokayoukta before whom the applicants filed the
complaint, directed the applicants to approach the Endowments
Department and to apply for the sanction of amount under
DDNS for the maintenance and performance of pujas in Sri
Chenna Keshava Swamy Temple and the applicants instead of
working out for their remedies before the Endowments
Authorities under the Act, 30/87, they approached this
Tribunal.
iv) The Sarpanch of Kodair Village and the temple committee
of Sri Anjaneya Swamy Temple issued letters in his name with
regard to the maintenance and performance of pujas in the
Anjaneya Swamy Temple by himself and by his ancestors. There
are no merits in the application and prayed to dismiss the
application.
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c) The respondent No.2 also sought dismissal of the
application in counter for the following reasons:
i) The application is not maintainable before this Tribunal
for want of jurisdiction of this Tribunal to entertain the
application like that of applicants as such, the allotment of
beneficiaries under DDNS can be decided only by the
Commissioner of Endowments, who will issue a notification
calling for the eligible candidates to apply. The authority during
the enquiry finds any candidates eligible then, such candidate
shall be given the benefit of that scheme. The applicants are
seeking declaration as hereditary pujaris and trustees of the
subject temple, whereas as per the Act, 30/87 and its allied
rules, it is not possible. There is an express circular issued by
the Commissioner of Endowments, wherein it is said that, a
person cannot be considered as both i.e., as trustee and as
hereditary pujari of any temple. The applicants are not having
any official declarations from the competent authorities of the
Endowments Department to declare them as hereditary pujaris
cum trustees cum founder trustees of the subject temple.
ii) The Section 43 register was issued to the temple by
following the due process and the procedure as laid down under
the Act, 30/87. There was a notice to the general public calling
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for objections and suggestions for the registration of the temple.
As per the records, the applicants did not apply for getting the
benefit under DDNS and they can make an application for that,
whenever the Commissioner of Endowments notifies the same.
The identification of a beneficiary under DDNS is outside the
purview of this Tribunal and only the Commissioner of
Endowments is the competent authority to identify the
beneficiary. There are no merits in the application and finally
prayed to dismiss the application.
d) On behalf of applicants, PWs 1 and 2 were examined and
got marked Exs.A1 to A30 and on behalf of respondents, RW1
was examined but no documentary evidence was adduced. The
learned Tribunal after considering the rival contentions,
dismissed the application. Aggrieved by the same, the
applicants have preferred the present appeal.
4. Heard both sides and perused the record including the
grounds of appeal.
5. The first and foremost contention of the learned counsel
for the applicants is that the statement of the learned Tribunal
holding that as per the present Act, 30/1987, hereditary rights
in Arhakas etc., under Section 34 of the Act has been abolished,
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therefore, the question of now recognizing a person as
hereditary Archakas under the present Act does not arise, is
contrary to the findings of the High Court of Andhra Pradesh in
A.B.Seshadri v. State of Andhra Pradesh (Telangana and
Andhra Pradesh) 1 and Swarna Gadhadhara Babu v. State of
Andhra Pradesh (Telangana and Andhra Pradesh) 2. In the
above said decisions, it was observed that the qualified
members of those Archaka families which were continuing in
Archakathwam service under the repealed Act, 1966, having
been recognized thereunder, shall continue to have the right of
Archakathwam. Thus, by virtue of the amended provisions, if
entitled to the benefit, it is for them to take pleas as provided in
the Act and the Rules made thereunder before the proper forum
as per Section 34(3) of the Act. In Swarna Gadhadhara Babu's
case (supra), the High Court for the composite State of
Telangana and Andhra Pradesh observed as under:
"9. In this regard, it requires no repetition of Section
2(1) and Section 2(15) and the amended Section 34 sub section
3 referred supra, it is clearly laid down from Section 34(3) of the
qualified members of Archaka families which were continuing
under the repealed Act, 17/66 in the Archakathwam service
having been so recognized thereunder shall continue to have the
right of Archakathwam and it is crystal clear the abolition of
hereditary Archaka rights u/sec. 34(1) of the Act, is revived once
they were continuing by the time of the repeal of Act 17/66 under
the repealed Act by the new Act in 1987 of respectively, later on
not continued from the very wording supra of the amended Section
34(3) by the Act 30 of 2007, leave it apart from the very definition
2019 (1) ALT 235
2018 (3) ALT 738
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of Section 2(15) of the hereditary office holder which includes
Archaka, the succession to whose office devolves concerned, it is
according to the Rule of succession laid down by the founder or
according to usage and custom applicable to the institution or
endowment or according to the law of succession for the time being
in force. It is not a case of rule of succession allowed by the
founder of the institution or endowment. Coming to the law of
succession concerned, where Archakas herein are Hindus
undisputedly governed by the Hindu Succession Act, 1956 and as
per the very Section 8 of the Act r/w schedule-1 wife and
daughters are the class-1 legal heirs for no sons to the rule of
succession. It is not even the case of the respondents that the wife
or even she is now no more as the case may be of Poorneshwara
Rao at least wife-Saraswathamma among the two daughters one
eldest by name Manikyavalli Parvatha Venkata Subbamma @
Baby mentioned as innocent and not even ascertained the
petitioner's mother Swarna Seethamahalakshmi is eligible or not.
However among the provisions covered by section 34(3) what it
speaks is qualified members of those Archaka families irrespective
of what is the definition of Archaka and hereditary office holder
in Section 2(1) and (15) supra, she continued having eligibility. The
maternal grandson known as Dowhitra cannot be disputed as
family members of said Poorneshwara Rao. It is not even a case of
said grandson of Poorneshwara Rao by name Swarna
Gadhadhara Babu-the writ petitioner not qualified for continuing as
Archaka. Undisputedly he is continuing from the death of
Poorneshwara Rao died prior to the Act 30/87 came into force
making a bequeath providing rule of succession and he is to be
considered for all purposes as founder Archaka to his share
concerned of the hereditary rights u/sec.2(15) and of the Act once
continuing as Archaka even under Section 34(2) of the Act, despite
abolition of hereditary Archaka rights, he is entitled to continue
after Section 34(3) introduced by amended Act 32/2007 as
hereditary Archaka by the rule of succession which includes for the
bequeath is only to the member of the Archaka family that is to the
maternal grandson who is the only eligible family member of said
Poorneshwara Rao to continue as descendant of him in the line of
succession including by testamentary for performing Archaka
rights."
6. In view of the principle laid down in the above said
decision, it is amply clear that though the hereditary rights have
been abolished, an archaka is entitled to continue after Section
34(3) introduced by amended Act 32/2007 as hereditary
Archaka by the rule of succession. Thus, the learned Tribunal
ought not to have observed in the impugned that as hereditary
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rights have been abolished, the question of now recognizing a
person as hereditary Archakas under the present Act does not
arise.
7. It is further contended that learned Tribunal at paragraph
No.8 of page No.7 of the impugned judgment observed that
Section 87 (1) of the Act, 30/1987 gives any power to decide the
dispute in relation to declaring of a person as hereditary pujari
and trustee of a religious endowment or institution but by
contravening its own statement at paragraph No.4 of page No.13
observed as "that apart the Commissioner of Endowment is the
proper and correct authority to identify the Hereditary Archaka
cum trustee under the Act" and thereby created an ambiguity,
which is question of law requires to be determined in the
appeal. It is further contended that the learned Tribunal
observed at paragraph No.8 of page 7 of the impugned judgment
as "Even though, this Tribunal is not empowered U/s 87 of the
Act, to declare the applicants as hereditary pujaries and
trustees of the temple, this Tribunal in the interest of justice,
inclined to make some emphasis over the dispute raised by the
applicants in relation to their request of declaring them as the
hereditary pujaries cum trustees of the temple", which is a
question of law on the ground of ouster of jurisdiction and the
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validity/nullity of the order of the Tribunal in view of decisions
in Balvant N. Viswamitra v. Yadav Sadashi Mule 3 and in
Prem Singh v. Birbal 4.
8. In Shri Dangeti Narasinga Rao v. Sri Venkateswara
Swamy Temple 5 the High Court for the State of Andhra
Pradesh held as under:
"12. The main grievance of the appellant against the
Order passed by the Deputy Commissioner is that the Order
dated 24.05.2010 was passed after the constitution of the
Tribunal without jurisdiction. For better appreciation, I reproduce
the G.O.Ms.837, dated 13.08.2009.
13. G.O.Ms.No.837 dated 13.08.2009 issued by Revenue
(Endowments Department), reads as under:
"In exercise of the powers conferred under section 162(1)
of the Andhra Pradesh Charitable and Hindu Religious
Institutions and Endowments Act, 1987 (Act 30 of 1987) the
Government of Andhra Pradesh hereby constitute the A.P.
Endowment Tribunal sitting at Hyderabad. The Tribunal shall
have jurisdiction for the entire State of Andhra Pradesh for the
determination of any disputes, question or the matter relating to a
Charitable Institution, Dharmadayam, Religious Charity,
Religious Endowments, Religious Institution or any Institution
etc., as defined in the Act".
14. The said G.O. specifies the Notification shall be
published in the Extraordinary issue of the Andhra Pradesh
Gazette, dated 20.08.2009. As seen from Section 87 of the
Andhra Pradesh Charitable and Hindu Religious Institutions and
Endowments Act, 1987 is substituted by Act No.33 of 2007 w.e.f.
03.01.2008. Before the amendment to Section 87 of the Act, it
reads as under:
87. (1) The Deputy Commissioner 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) whether an institution or endowment is a charitable institution
or endowment;
3 2008 (8) SCC 706
4 2006 AIR (SC) 3608
5 Appeal Suit No.586 of 2010 decided on 14.06.2023
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b) whether an institution or endowment is a religious institution
or endowment;
c) whether any property is an endowment, and if so, whether it is
a charitable endowment or a religious endowment;
d) whether any property is a specific endowment;
e) whether any person is entitled by custom or otherwise to any
honour, emoluments or perquisites in any charitable or religious
institution or endowment and what the established usage of such
institution or endowment is in regard to any other matter;
f) whether any institution or endowment is wholly or partly of a
secular or religious character and whether any property is given
wholly or partly for secular or religious uses; or
g) where any property or money has been given for the support of
an institution or endowment which is partly of a secular
character and partly of religious character or the performance of
any service or charity connected with such institution or
endowment or the performance of a charity which is partly of a
secular character and partly of a religious character or where any
property or money given is appropriated partly to secular uses
and partly to religious uses, as to what portion of such property
or money shall be allocated to secular or religious uses.
(2) The Deputy Commissioner may, pending his decision under
sub-section (1), pass such Order as he deems fit for the
administration of the property or custody of the money belonging
to the institution or endowment.
(3) Every decision or Order of the Deputy Commissioner on
confirmation by the Commissioner under this section shall be
published in the prescribed manner.
(4) The Deputy Commissioner may while recording his decision
under sub-section (1) and pending implementation of such
decision, pass such interim order as he may deems fit for
safeguarding the interests of the institution or endowment and
for preventing damage to or loss of or misappropriation or
criminal breach of trust in respect of the properties or moneys
belonging to or in the possession of the institution or endowment.
(5) Any decision or order of the Deputy Commissioner deciding
whether an institution or endowment is not a public institution or
endowment shall not take effect unless such decision or order is
confirmed by an order of the Commissioner.
(6) The presumption in respect of matters covered by clauses (a),
(b), (c), (d) and (e) in sub-section (f) is that the institution or the
endowment is public one and that the burden of proof in all such
cases shall lie on the person claiming the institution or the
endowment to be private or the property or money to be other
than that of a religious endowment or specific endowment as the
case may be.
15. Section 87 of the Act is substituted by Act 33 of 2007, which
reads as follows:
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"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) whether an institution or endowment is a charitable institution
or endowment;
(b) whether an institution or endowment is a religious institution
or endowment;
(c) whether any property is an endowment, and if so, whether it
is a charitable endowment or a religious endowment;
(d) whether any property is a specific endowment;
(e) whether any person is entitled by custom or otherwise to any
honor, 'emoluments or perquisites in any charitable or religious
institution or endowment and what the established usage of such
institution or endowment is in regard to any other matter;
(f) whether any institution or endowment is wholly or partly of a
secular or religious character and whether any property is given
wholly or partly for secular or religious uses; or
(g) where any property or money has been given for the support
of an institution or endowment which is partly of a secular
character and partly of a religious character or the performance
of any service or charity connected with such institution or
endowment or the performance of a charity which is partly of a
secular character and partly of a religious character or where any
property or money given is appropriated partly to secular uses
and partly to religious uses, as to what portion of such property
or money shall be allocated to secular or religious uses;
(h) Whether a person is a founder or a member of the family of
the founder of an Institution or Endowment.
(2) The Endowments Tribunal may, pending its decision under
subsection (1), pass such Order as it deems fit for the
administration of the property or custody of the money belonging
to the institution or endowment.
(3) The Endowments Tribunal may while recording its decision
under subsection (1) and pending implementation of such
decision, pass such interim Order as it may deem fit for
safeguarding the interest of the institution or endowment and for
preventing damage to or loss or misappropriation or criminal
breach of trust in respect of the properties or moneys belonging to
or in the possession of the institution or endowment.
(4) The presumption in respect of matters covered by Clauses (a),
(b), (c), (d) and (e) in sub-section (1) is that the institution or the
endowment is a public one and that the burden of proof in all
such cases shall lie on the person claiming the institution or the
endowment to be private or the property or money to be other
than that of a religious endowment or specific endowment, as the
case may be.
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(5) Notwithstanding anything contained in the above subsections,
the Deputy Commissioner having jurisdiction shall continue to
enquire into and decide the disputes referred to in sub-section (1)
until the constitution of the Endowments Tribunal."
16. From the reading of the above provisions, it is explicit that by
virtue of the amendment to Section 87 of the Act, the Deputy
Commissioner is empowered to decide certain disputes and
matters, whereas, after the amendment to Section 87 of the Act,
the Endowment Tribunal is constituted. Section 87(5) amendment
shows that the Deputy Commissioner having jurisdiction shall
continue to enquire into and decide the disputes referred to in
Sub Section (1) until the constitution of the Endowments Tribunal.
When the Endowments Tribunal is constituted, the Deputy
Commissioner is not supposed to decide the disputes. The
impugned Order passed by the Deputy Commissioner shows that
the impugned Order was passed after the constitution of the
Endowments Tribunal. A reading of the impugned Order does not
indicate the reasons for passing the Order after the constitution
of the Endowments Tribunal. During the course of the hearing,
learned counsel appearing for the Endowments has not given
justifiable reasons to pass the impugned Order by the Deputy
Commissioner after the constitution of the Endowments Tribunal.
This Court views that the Deputy Commissioner is not
empowered with the jurisdiction to decide the disputes after the
constitution of the Endowments Tribunal. As such, without going
into the merits of other contentions, the Order passed by the
Deputy Commissioner is liable to be set aside."
9. In view of the principle laid down above, the Assistant
Commissioner or the Deputy Commissioner will have
jurisdiction to decide the disputes until the constitution of the
Endowments Tribunal. In the case on hand, by the date of filing
the claim application, the Endowments Tribunal was
constituted, as such, the learned Tribunal ought not to have
observed in the impugned order that the Tribunal is not
empowered to deal with case under Section 87 of the Act. In M.
Penchala Swamy and another v. The State of Andhra
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Pradesh and others 6 the High Court for the State of Andhra
Pradesh observed that the issue concerning hereditary rights is
cognizable by the Endowments Tribunal.
10. The learned Tribunal observed in the impugned order that
if at all the applicants were recognized as such, under the Act,
17/66 then, the intention of legislature under Section 34 (3)
would have been made applicable. In Kum. Shashikala and
four others v. Smt. Babita Sharma and three others 7 this
Court observed as under:
34(a). Thus in this Section, among sub Section (1) clauses
(a)-(g), clauses (a)&(b) deal with nature of institution, clauses (c)&(d)
deal with nature of property, clause (e) deals with personal
entitlement if any of emoluments, honours or perks etc., clause (f)
deals with combination of the above and clause (g) deals with any
property or money given for the support of, or performance of any
service or charity connected with, the institution or endowment is
partly secular and partly religious and at what proportions and
whereas clause (h) deals with enquiry into and to decide any
dispute as to the question whether a person is a founder or a
member from the family of the founder of an Institution or
Endowment and it is not confined to those already recognized as
such for such of the institutions existing by the time the Act
30/1987 came into force and not otherwise for any entitlement of
any enquiry and decision in this regard. Thus, so far as in respect
of an institution or endowment existing at the time of
commencement of the Act,30/1987, by virtue of the amended Act
33/2007, from combined reading of Section 87(1)(h) and Section
17, the person who was recognized as hereditary trustee under the
old Act 1966 or a member of his family recognized by the
competent authority, is with in the meaning of Founder as per the
Explanation I to Section 17(1) of the Act, though he was not but for
his ancestor if any was the real founder and that does not mean
those not recognized by any adjudicatory process earlier and even
acting from any dispute later arisen cannot be decided from the
literal wording of Section 17(1) Explanation I. In the other single
judge expression of this High Court in A.V.Ranga Rao Vs. State of
A.P , it was held that the person who was recognised as hereditary
trustee under the Repealed Act 17/66 automatically comes within
6 2022 AIR (Andhra Prades) 37
7 2018 (4) ALT 161
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the definition of Founder and thus he is entitled to be appointed as
one of the trustees as per the amended Act 33/2007 as per the
Explanations I&II therein. In fact to understand fully this Founder
concept, it is needful to refer the Sec.2 (15) & Sec.77 of the old
Act,17/1966. Under Sec.77(1) of the old Act 17/1966, the Deputy
Commissioner was conferred with jurisdiction to decide eleven
types of disputes and among which the Sec.77(1)(c) empowers the
Deputy Commissioner to decide whether trusteeship is hereditary
or not in case of any dispute in that regard. If there is no dispute
the question of approaching for deciding the same by the Deputy
Commissioner does not arise and that does not mean those not
recognized by adjudication not entitled to act as such much less to
obtain any decision from any dispute in this regard. It is for the
reason in such case, there is only recognition of hereditary trustee
by entering in the book of Endowment or in the trust deed or the
like. It is in fact clear for so concluding, from the meaning of
hereditary trustee defined under Sec.2(15)of the old
Act,17/1966. As per Sec.2(15) of the old Act,17/1966 Hereditary
trustee means the trustee of a charitable or religious institution or
endowment the succession to whose office devolves (i).according to
the rule of succession laid down by the founder or (ii).according to
usage and custom applicable to the institution or endowment or
(iii).according to the law of succession for the time being in force as
the case may be. Same is the meaning given by 2(16) of the Act
30/1987. From the above definition it is clear that, it is not always
devolution of office of trustee of a religious or charitable institution
by succession according to law of succession for the time being in
force, as it can be even according to rule of succession laid down
by the founder in the trust deed or some other document or book of
endowment or records of endowment as to who have to act as
hereditary trustees in future and in the absence of which it may be
according to usage and custom applicable to the institution or
endowment to regard such office as hereditary in nature and such
trustee as hereditary trustee, leave about the proper way is
according to the rules of succession. In fact, from the wording of the
amended Explanation II to Section 17(1) of the Act 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. The line
of succession above referred arises only after the death of the
person for claim by his agnatic lineal descendents as Members of
Founders Family. The line of succession provided by the Act is only
in agnatic line which is running contrary to the general rules of
succession covered by the Hindu Succession Act and other
personal statutory laws, leave about same even offending Articles
14 to 16 of the Constitution of India, though it is not the issue here
for the present revision petitioner being daughter of the founder is
in agnatic line descendent to the founder from the very claim to
adjudicate the factual dispute for nothing in any manner to decide
the claim from any bar of law to reject the application for
adjudication in O.A.No.603 of 2012. It is because of what is
discussed supra and further from the factum of once there is a
hereditary trustee so recognised under the old Act 17/1966, he is
founder within the meaning of the Explanation I to Section 17(1) of
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the Act 30/87 amended by Acts 27/2002 & 33/2007 and a
member of his(such a founder) family recognized by the competent
authority under the Act is Founder Family Member and for
anybody to claim even not already recognized before the Act 30/87
came into force, so to apply for recognition for no such bar from
very wording of Section 87(1)(h) to prevail over the Section
17(1) particularly Explanation I for the purposive construction
otherwise thereby required to read for all purposes by supplying
the words including those who are entitled to be so recognized from
the only conclusion on over all spectrum of the provisions and
propositions discussed supra to read in the wording of Explanation
I- of 'Founder' to mean (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, including those who are entitled to be so recognized as
the very proviso to it also clearly speaks 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 trustee. [Same is substituted for
trustees shall be from the family of the founder, if qualified by
amended Act 27/2002 w.e.f. from 26.08.2002.]. In fact, the above
proviso to sub-section (1) of Section 17 casts an obligation on the
appointing authority to appoint founder and if founder is not alive
among the recognized members of the founders family that is either
one or more of the members of the family of the founder to be the
trustees in the trust Board as also laid down by the Apex Court
in Pannalal Bansilal Pitti supra.
34(b). Further, on the above concept from the scope of
Sections 87(1)(h) r/w 15-19, after the amended Acts 27/2002 &
33/2007 to the Act,30/1987, as held by another expression of this
Court in Andal Raghavan vs. Deputy Commissioner, Endowments
Department, Kakinada at Para 10, that The declaration of a person
as founder or member of the founders family under section
87(1)(h) of the Act by the Deputy Commissioner of Endowments or
by any competent authority before coming into force of Section
87(1)(h), is altogether different from the appointment of a qualified
founder or a qualified member of founders family as trustee
under Sec.17(1) of the Act (see- G.Rajendranadh Goud vs. State of
AP-2006(1)ALD705). Every founder or member of the founders
family cannot be said to have an enforceable right for being
appointed as a trustee or Chairman of Trust Board as a matter of
course. Such person has to fulfill the qualifications prescribed
in Section 18 of the Act, Rule 8 of the Rules, and should not incur
any disqualifications under Section 19 of the Act. Further, even in a
case where the number of applications received by the competent
authority is equal to the number of trustees to be appointed, even
then, no applicant can be said to have any right for appointment.
The antecedents of all the applicants have to be verified by the
subordinate officers and the verification report has a bearing on the
exercise of the power by the competent authority. Therefore, unless
and until the application is made by the person claiming to be
founder or member of the founders family giving all the details in
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Form No.II and unless and until the antecedents of such person are
verified by the Verification Officer, such person cannot be
appointed as a trustee. Rule 7 of the Rules clearly lays down that,
competent authority shall scrutinize the applications along with the
report of the Verifying Officer and pass orders appointing trustees.
Therefore, the submission of the learned counsel for the petitioner
that there is no necessity for the founder or member of the founders
family to apply in Form No.II under Rule 5(1) of the Rules, after
publication of notice in Form No.1, cannot be countenanced. If the
same is accepted and a member of the founders family is
appointed without there being an application, it would lead to
number of complications besides showing up problems and
difficulties in a case where there are more than one recognized
member from the founders family. It no way speaks even of those
not recognized as such already of the institutions in existence prior
to the Act 30/1987 came into force cease to be so recognized or to
adjudicate any dispute in relation thereto. Even another division
bench expression of this Court in K.Girijakumari Vs.
G.Rajendranath Goud , it was held that Member of the family of the
founder of the Temple though got no right of claim as hereditary
trustee, yet shall have a right in the trust board to be constituted as
Chairman, unless disqualified otherwise as the management shall
remains with the members of the family of the founder as laid
down by the Apex Court in Pannalal supra. Further, in the case of
Executive Officer, Group Temple, Dhulipudi Vs. D.S.Rao , referring
to the decisions of the Apex Court in Pannalal supra and the
division bench expression of this Court in K.Girijakumari Vs.
G.Rajendranath Goud supra, it was held that a hereditary trustee,
if qualified entitled to be appointed as a trustee in Board of
trustees when constituted. When U/s 15 of the Act, a Board of
Trustees is constituted in respect of an institution or endowment,
the founder trustee or the hereditary trustee as the case may be
should be one of the said members of the board and should be an
honorary Chairperson of the said Board. The hereditary trustee
has no right except of being appointed as a trustee in the board of
trustees when constituted, subject to being qualified under the
provisions of the Act (Sec.17-19). Furthermore, in the case of Govt.
of A.P rep. by Commissioner of Endowments Vs. Rajandranath
Goud and others , referring to the decisions of the Apex Court
in Pannalal Bansilal Pitti supra, it was held that hereditary trustee,
unless incurred any disqualification in terms of Sec.18/19 of the
Act, is entitled to be appointed as a trustee in Board of trustees
when constituted. However he is not entitled to even any
honorarium much less other remuneration though earlier it was
paying since such right stood abolished by Sec.144 of the Act
30/1987. From the above there is no need of recognition earlier
and no bar to appoint as one of the trustees to head the trust board
as its Chairman by a person if he belongs to the family of the
founder, if founder is no more even, provided he/she is one of the
lineal descendants of the founder in the line of succession to make
a claim of entitled to be recognized and declared as Member of
Founder Family of the temple as per Sections 15 to 20 r/w 87(1)(h)
of the Act 30/87 amended by Acts 27/2002 & 33/2007, for bound
to consider as Member of Founder Family for trusteeship as one
24 MGP,J
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among others to the Trust Board of the temple being
constituted u/s.15 of the Act, by the Endowments Department from
time to time, subject to disqualifications u/s.19 of the Act as there
is no any exemption of application of Sections-15-19 of the Act for
Member of founder family to become Chairman of the board of
trustees, ex-officio or otherwise. This Honble High Court also held
in W.P.No.18719/2007 reported in 2008(2) ALD 123, that there is
jurisdiction and power to question the illegal order of recognition
even given, on having came to know of the same irrespective of the
same was earlier not challenged. Way back the full bench of the
Madras High Court in Gauranga Sahu Vs. Sudevi Matha that it is
competent to decide when questioned by any heir of the founder of
the shrine or other institution for any non- appointment in
trusteeship from the failure to recognize him in the line of original
trustee as an unending right.
35. Accordingly and in the result, by holding that the
judgment of the High Court reported in Sri Vallabharayeswara
Swamy Temple supra is hit by sub-silentio principle and there is no
bar for any legal heir of the founder or member of the family of the
founder of any institution even existing since prior to the Act
30/1987 came into force and even not recognized earlier to, to
make a claim of entitlement to act as one of the trustees of the
institution for any non-appointment in trusteeship or from the
failure to recognize despite entitlement in the line of original trustee
on such showing for same is as an unending right and the cause of
actions for such claim accrue from time to time for the descendents
in continuity of succession and as such, the order of the
Endowments Tribunal in dismissing the application for rejection of
the OA based on the claim of bar of law from the expression in Sri
Vallabharayeswara Swamy Temple supra, is perfectly right and
thereby the Civil Revision Petition is dismissed. No order as to
costs."
11. From the principle laid down in the above said decision, it
is clear that, it is not always devolution of office of trustee of a
religious or charitable institution by succession according to law
of succession for the time being in force, as it can be even
according to rule of succession laid down by the founder in the
trust deed or some other document or book of endowment or
records of endowment as to who have to act as hereditary
trustees in future and in the absence of which, it may be
25 MGP,J
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according to usage and custom applicable to the institution or
endowment to regard such office as hereditary in nature and
such trustee as hereditary trustee. It is further clear from the
above said decision that there is no bar for any legal heir of the
founder or member of the family of the founder of any
institution even existing since prior to the Act 30/1987 came
into force and even not recognized earlier to, to make a claim of
entitlement to act as one of the trustees of the institution for
any non-appointment in trusteeship or from the failure to
recognize despite entitlement in the line of original trustee on
such showing for same is as an unending right and the cause of
actions for such claim accrue from time to time for the
descendents in continuity of succession. It is not the case of
the respondents that the applicants are disqualified from being
declared as hereditary archakas of the subject temple.
12. The changed circumstances after filing of the present
appeal are as under:
a) Sri A. Kranti Kumar Reddy, learned counsel for the
respondent No.1 has submitted a memo stating that he was
informed by the counsel before the learned Tribunal that
respondent, who was unmarried, died on 10.01.2023. Along
with the memo, copy of death certificate of respondent No.1 is
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enclosed. A perusal of the death certificate discloses that
respondent No.1 passed away on 10.01.2023.
b) The claimants have filed an application vide I.A.No.1 of
2022 with a prayer to receive copy of order dated 16.01.2020
issued by the Assistant Commissioner of Endowments,
Mahaboobnagar as additional document and accordingly the
said application was allowed on 09.06.2022. A perusal of the
said document discloses that on the complaint filed by the
claimants, Lokayuktha for AP Endowments issued orders dated
23.08.2014 duly directing the Commissioner, Endowments
Department, Hyderabad for taking suitable action. Accordingly,
the matter was referred to the Inspector, Endowments
Department, Nagarkurnool division with directions to enquire
into the matter and report. In pursuance of the above, the
Inspector, Endowments Department, has reported that the
Sarpanch has certified that forefathers of claimants are
rendering service to Sri Chennakesava and Anjaneya Swamy
Temple and that Sri Narsimha Sharma (respondent No.1 herein)
has predicted that they are pujaries of subject temple and took
certificate over all the sarpanch, which was certified as a grama
purohits instead of the original archakas T.N. Pradeep Kumar
family (claimant herein). The document further discloses that
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T.N. Pradeep Kumar has not raised objection during the
registration of the temple and not applied for DDNS and that
their ancestors have mortgaged the temple kidmati inam land of
sy.No.136 Ac.2.00 guntas to others and it was in the possession
of the unauthorized persons. In the said document, the learned
Assistant Commissioner requested the Commissioner,
Endowments Department, Hyderabad to consider the plea of Sri
T. N.Ramakrishna Murthy for sanction of DDNS duly treating
the said plea as special case and issue suitable orders.
13. It is the specific case of the claimants that respondent
No.1 without any manner of right and without informing them
or to their family members got registered the subject temple
U/s.43 of the Act, 30/87 and the respondent No.2 without
following the procedure, registered it by holding the respondent
No.1 as hereditary trustee cum pujari of subject temple. The
respondent No.1 on the strength of the certificate issued to him
by the respondent No.2, applied for DDNS (Dhoopa Deepa
Naivedyam Scheme) and managed to obtain the same. But on
the other hand, the respondent No.1 contended that he is
working as pujari in Sri Anjaneya Swamy Temple and that the
ancestors of the applicants and their father worked as pujaris of
Sri Chenna Keshava Swamy Temple, which has got some lands
28 MGP,J
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for its maintenance and those lands are in the custody of the
applicants and their family members. Thus, the respondent
No.1 is acceding to the contention of the applicants that they
are eligible to be declared as hereditary archakas but only to the
extent of Sri Chenna Keshava Swamy Temple. However, the
learned Tribunal failed to consider this aspect. A perusal of the
impugned order does not disclose as to who is extending
services in Sri Chenna Keshava Swamy Temple i.e., either the
applicants or any other person other than the applicants.
14. It is the contention of the applicantsthat respondent No.1
accepted on 12.04.2013 before the village elders for paying a
monthly amount of Rs.2,500/- i.e., the amount which he is
receiving from the Endowments Department under DDNS from
01.07.2013 to 31.12.2014 and in the meanwhile, the first
applicant by using his good offices in the Endowments
Department has to get the name of first respondent cancelled as
a recipient of DDNS amount and on the event of his failure to
get it cancelled then, from 01.01.2015 onwards the first
respondent has to pay Rs.1,250/- to the first applicant, out of
Rs.2,500/-, which he is receiving every month under DDNS and
that in pursuance of resolution passed by the village elders the
first respondent executed an undertaking in front of the
29 MGP,J
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villagers. In support of the said contention, though the
applicants relied on Ex.A17 resolution of the villagers and
Ex.A18 alleged to be undertaking executed by first respondent,
the learned Tribunal failed to consider the same by explaining
that except self serving statements in their respective evidences
in chief, the applicants failed to prove the contents of Ex.A18 by
examining any of the village elders. But as can be seen from the
record, the respondent No.1 categorically admitted in the
counter that the ancestors of the applicants and their father
worked as pujaris of Sri Chenna Keshava Swamy Temple and
apart from that the resolution of the villagers is also filed by the
applicants. The learned Tribunal in the impugned order
observed that though it is not clearly pleaded by the first
respondent in the counter, but, a careful reading of his counter,
it is indicating that, he has got no objection if the Endowments
Authorities sanction the DDNS amount to the applicants as
Archakas of Sri Chenna Keshava Swamy Temple.
15. On one hand the learned Tribunal opined that the
Tribunal has no jurisdiction to entertain the applicant and on
the other hand expressed that the Commissioner of
Endowments is the proper and correct authority to identify the
hereditary archaka cum trustee under the Act. Further, the
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learned Tribunal observed that a person cannot be appointed as
archaka cum trustee and in such circumstances the learned
Tribunal ought not to have observed that the Commissioner of
Endowments is the proper and correct authority to identify the
hereditary archaka cum trustee under the Act. In these
circumstances, this Court is of the considered view that the
learned Tribunal has passed the impugned order without
considering the principles laid down in the above said decisions
and also without considering the evidence in proper perspective
and thereby there is need to interfere with the findings of the
learned Tribunal. Furthermore, as stated supra, some changed
circumstances have also taken place after passing of the
impugned order, especially the demise of respondent No.1.
Thus, it is just and appropriate to remand the matter to the
learned Tribunal for considering the case afresh.
16. Accordingly, the Civil Miscellaneous Appeal is disposed of
setting aside the impugned Order dated 07.06.2019 in O.A.No.3
of 2017 passed by the learned Telangana Endowments Tribunal
at Hyderabad while remanding the matter to the learned
Tribunal with a direction to consider the matter afresh by giving
opportunity to both the sides to put forth their respective
contentions. The learned Tribunal is also directed to consider
31 MGP,J
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the changed circumstances that took place after passing of the
impugned order while arriving to just and appropriate
conclusion in pursuance of the provisions of the Act and also
the settled principles of law in regard to subject matter. The
learned Tribunal shall decide the matter in accordance with law
uninfluenced by any of the comments or remarks made by this
Court in this Judgment. There shall be no order as to costs.
Pending Miscellaneous applications, if any, shall stand
closed.
_______________________________
JUSTICE M.G.PRIYADARSINI
Date: 07.06.2024
AS
