THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY WRIT PETITION No.15602 of 2001 ORDER: The petitioner claims to be a devotee of Sri Durga Malleswara Swamy Devasthanam, Indra Keeladri Hills, Vijayawada, (for short ‘the Devasthanam’). He feels aggrieved by the orders of the first respondent issued in G.O.Ms.No.135, Health, Medical and Family Welfare (M1) Department, dated 11.04.2001. Through the said G.O., the Government decided to handover the Government General Hospital, Vijayawada to the Devasthanam for maintenance thereof with its surplus funds. It is stated that this step became necessary in view of the reorganization of the affairs between N.T.R. University of Health Sciences, Vijayawada on the one hand and the Director of Medical Education, Hyderabad on the other. The petitioner contends that the funds of the Devasthanam are nothing but contributions made by the devotees in different forms and they cannot be utilized for any purpose other than the one for development of the temple or for propagation of the religious tenets with the Devasthanam. Counter-affidavit is filed by the Assistant Secretary, Government of A.P., Department of Medical and Health, Hyderabad. It is stated that necessity to bring the Government Hospital under the control of the Devasthanam arose on account of the disturbance of budgetary allocations and availability of surplus funds with the Devasthanam. According to the respondents, the allocation of surplus funds for maintenance of Government Hospital is permissible under Section 72 of the Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act, 1987 (for short ‘the Act’). Heard the learned counsel for the petitioner, the learned Government Pleader for Medical, Health and Family Welfare and the learned Standing Counsel for the Devasthanam. It is an age old practice that the persons with religious bent up of mind, express their faith towards the institutions symbolizing the deity or cult. This may include endowment of their properties or resources for the development and propagation of the institutions, or making of informal contributions in the form of offerings in hundi, etc. The object is to help the institution, to survive, flourish and develop. The persons, who make such contributions, feel their participation in the task, which according to them, is noble. The power vested with the Government to administer such institutions is limited to ensure that they are managed properly and the funds are not diverted for other purposes. To ensure objectivity in the matter of spending surplus funds, the A.P. State Legislature had enacted Section 72 of the Act, which reads as under: Section 72: Utilisation of Surplus funds: - (1) Where there is a surplus in the funds of an institution or endowment including a specific endowment attached thereto after providing for all the objects, needs, requirements or improvements of the institution or endowment and after making adequate provision for purposes referred to in sub-section (2) of Section 57, the trustee may make an application in the manner prescribed for permission to utilize such surplus fund for all or any of the following purposes: (i) propagation of the religious tenets or the institution or endowment; (ii) establishment and maintenance of schools for the training of archakas, adhyapakas and vedaparayanikas and for the study of Divya Prabhandams and the like for furthering education in Sanskrit; (iii) establishment and maintenance of, any institution in which special provision is made for the study of Hindu religion, Philosophy or Sastras or for imparting instruction in Hindu Temple Architecture, and for setting up libraries in connection with such study; (iv) grant of aid to any other Hindu religious institution or endowment which is in poor or needy circumstances or which require renovation; (v) establishment and maintenance of hospitals and dispensaries for the relief of the pilgrims and worshippers visiting the religious institutions; (vi) construction and maintenance of choultries and rest houses for the use and accommodation of pilgrims; (vii) provisions of water supply and sanitary arrangement to the pilgrims and worshippers; (viii) acquisition of any land or other immovable property for the purpose of the religious institution; (ix) construction and maintenance of roads and communications and the lighting thereof for the convenience of the pilgrims and worshippers; (x) establishment and maintenance of orphanages for children belonging to Hindu Religion; (xi) establishment and maintenance of the Homes for the poor, destitute and helpless, physically disabled persons belonging to Hindu Religion; (xii) establishment and maintenance of leprosy asylum for those belonging to Hindu Religion; (xiii) payment of the Common Good Fund. (2) Nothing in sub-section(1), shall prevent the trustee of a math or a specific endowment attached thereto from utilizing such surplus for any other purpose consistent with the tenets of the math. (3) Subject to such restrictions and conditions as may be prescribed, the trustee of a charitable or religious institution or endowment may appropriate any portion of such surplus for the performance of any Hindu Marriage among the needy persons belonging to Hindu Religion. From a perusal of Section 72 of the Act, it becomes clear that the purposes identified under it are very much connected to the activity of the religious institutions. If pursued, they would help the institutions to become stronger. In clear terms, the provision mandates that the funds shall not be utilized for any other purposes. Admittedly, what is brought under the control of the Devasthanam is a Government Hospital pure and simple. Treatment, at that place, is not confined to the pilgrims of the Devasthanam. Its budget allocation is very huge and it is intended to sub-serve the public in general from the entire District. By no stretch of imagination, it can be treated as an activity within the purview of the Devasthanam. The health activity mentioned in Section 72(v) of the Act is for the relief of pilgrims and worshippers visiting the religious institutions and not for the public in general in the entire District. The justification pleaded by the first respondent, in his counter-affidavit runs thus: It is submitted that Government have de-linked the Siddardha Medical College along with the other attached Medical Institutions from the Administrative Control of N.T.R. University of Health Sciences, Vijayawada and brought under the fold of Director of Medical Education, Andhra Pradesh, Hyderabad, for better administration. One of the attached Medical Institutions is the University General Hospital, Vijayawada. This institution has been brought into the administrative control of the Directorate of Medical Education, Andhra Pradesh, Hyderabad, so that the University of Health Sciences can concentrate completely on academic activities. The Directorate of Medical Education will provide all the required budgetary provision under relevant head of accounts both under plan and non-plan to run the institutions including the University General Hospital, Vijayawada. This arrangement was made for administrative convenience. Further, the Government have examined the above arrangement and decided to hand over the Government General Hospital, Vijayawada (i.e. University General Hospital) to Sri Durga Malleswara Swamy Devasthanam, Vijayawada considering the fact that sufficient money is available with the Devasthanam for the management of the said hospital. The existing budgetary provision available under the relevant head of account of the above institution both under plan and non-plan budget shall be provided by the Director of Medical Education, Andhra Pradesh, Hyderabad. Funds required for the development of Government General Hospital, Vijayawada shall be met from surplus money available with Sri Durga Malleswara Swamy Devasthanam, Vijayawada vide G.O.Ms.No.135, Health, Medical & Family Welfare (M1) Department, dated 11.04.2001 read with amendment issued in G.O.Rt.No.486, Health, Medical & Family Welfare (M1) Department, dated 03.05.2001. The above arrangement will not affect the freedom of conscience and right to profess, practice religion or religious faith as enshrined under articles 25, of the Constitution of India and 29 (1) of the Statutory Provisions contained in Andrha Pradesh Charitable and Hindu Religious Institutions and Endowment Act, 1987. The impugned action is sought to be justified, by citing an instance. In para-4 of the counter-affidavit, it is stated, “…The State Government have issued orders in G.O.Ms.No.220, Health, Medical & Family Welfare (E2) Department, dated 24.04.1999, entrusting the Sri Venkatwswara Rama Narayana Ruia Government General Hospital, Sri Venkateswara Medical College and Government Maternity Hospital, Tirupathi to Tirupathi Tirumala Devasthanam for its proper functioning and development. Here also the State Government is continuously paying salaries through Treasury and the Tirupathi Tirumala Devasthanam authorities will evolve required plans for development and improvement of hospitals to an expected level of standards. Likewise Sri Durga Malleswara Swamy Devasthanam Authorities would discharge such functions for the development of the Government General Hospital, Vijayawada with its surplus funds”. A perusal of the portions of the counter-affidavit, extracted above, would only disclose the mind-set of the Government, in general, towards the Hindu Religious Institutions and Endowments in the State. For all practical purposes, they are treated as the departments of Government. The movable and immovable properties of such institutions are squandered with impunity, or put to totally unrelated purposes. The hue and cry raised by persons practicing the religion, or the person, who have endowed such properties, or their successors, or the institutions themselves, have only fallen to deaf ears. In the counter-affidavit, reference is made to Clause (v) of sub-section (1) of Section 72 of the Act, with an attempt to justify the G.O. The provision is so clear, that it enables establishment and maintenance of Hospitals, only for “the relief of pilgrims and worshippers, visiting the religious institutions”. In a brazen attempt, the deponent of the counter-affidavit said, that the impugned G.O. conforms to this provision. The first respondent appears to have gained such courage, to put a totally distorted and deliberate mis-interpretation, only because they were convinced, that there would be none to check their illegality. It is the blatant illegalities of this nature, that have led to a situation, where the persons belonging to so-called majority community are complaining that they are treated as second-class citizens in their own country, and they are not being extended the same benefit, or protection, as is being accorded to the minority institutions, or communities. It is rather unfortunate, that the Act, that was intended to provide able and efficient administration to the Hindu religious institutions; was converted into a device, to gain complete control over such institutions. The secular aspects have overtaken the spiritual ones. In many cases, the salary of an Archaka, is not even a fraction of the salary paid to an Attender, and expenditure towards the salaries of administrative staff constitutes the major chunk. Different heads of accounts are evolved, to divert the funds of the institutions. Another disturbing feature is that, while a substantial portion of the funds of the institutions are taken away by the Government, on one pretext or the other, the institutions without any income are totally neglected. Unless these dangerous trends are stopped and contained, it would not be too late, that the dissatisfaction and demur may be expressed in a form, not so congenial. Not only the individual acts of this nature must stop, but also the mind-set, towards the institutions; must change. The writ petition is accordingly allowed, and it is directed that the funds of any religious institutions, governed by the provisions of the Act, shall not be put to any use, other than those, mentioned under Section 72 of the Act; nor the properties of such institutions be utilized for any purposes, other than for the benefit and development of such institutions. There shall be no order as to costs. _____________________ L.NARASIMHA REDDY,J Dt:22.12.2008 Note: L.R. copy to be marked. kdl