* THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN + WRIT PETITION NO.3622 OF 2009 WRIT PETITION NO.3354 OF 2009 AND WRIT PETITION NO.3844 OF 2009 % Dated 22-06-2010 # Pagadala Pratap and another …. Petitioners Vs. $ State of A.P. rep., by its Principal Secretary to Govt, Department of Revenue (Endowments), Secretariat, Hyderabad and sixteen others. …. Respondents ! Counsel for the Petitioners: Sri P. Gangaiah Naidu, Learned Senior Counsel, Sri M. Vidyasagar and Sri N. Gurugopal, Learned Counsel for the petitioners. ^ Counsel for the Respondents: Government Pleader for Endowments and Sri A. Chandraiah Naidu <GIST: > HEAD NOTE: ? Cases referred [1] (2004) 2 SCC 590 2 (1983) 4 SCC 131 3 (2004) 8 SCC 524 4 AIR 1961 SC 619 5 Judicial Review of Administrative Action, 5th Edn., p.445 6 (2003) 2 SCC 111 7 AIR 1969 SC 267 8 AIR 1969 SC 634 9 (2002)1 SCC 633 10 (2004) 6 SCC 440 11 2001(4) SCC 9 12 (1997) 146 Aus LR 126 13 (1997) 1 SCC 444 14 (1991) 4 SCC 54 15 (2005) 5 SCC 181 16 (2003) 4 SCC 579 17 1966 Supp SCR 311 18 (Administrative Law: H.W.R. Waoe & C.F. Forsysth: Ninth Edition). 19 Vol. 1, 4th Edn. para 33 20 (1974) 1 SCC 534 21 (1983) 4 SCC 339 22 1997(1) An.W.R. 316 23 1993(3) ALT 24 (DB) 24 AIR 1964 SC 962 25 AIR 1991 SC 1260 26 (1974) 4 SCC 3 27 1979(3) SCC 165 28 (1884)29 Ch.D 459 29 (1964) 4 SCR 733 30 ILR 1951 Cuttack 441 31 ILR 1952 Cuttack 529 32 1957 SCR 233 = AIR 1957 SC 397 THE HON'BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION NO.3622 OF 2009 WRIT PETITION NO.3354 OF 2009 AND WRIT PETITION NO.3844 OF 2009 COMMON ORDER: Constitution of the Trust Board of Sri Kalahasteswara Swamy Devasthanam, Srikalahasti, Chittoor District, vide G.O.Rt. No.313 dated 20.02.2009, is under challenge in these three writ petitions. As such they were heard together, and are now being disposed of by a common order. Since all the trust board members are arrayed as respondents, and the Minister for Information and Public Relations, and the Principal Secretary (Revenue), Government of Andhra Pradesh, (against both of whom malice is alleged), are arrayed as respondents eo-nominee in W.P. No.3622 of 2009 it would suffice, for disposal of all these three writ petitions, if the facts in W.P. No.3622 of 2009 are noted. 2. As the annual income of the Sri Kalahasthiswara Swamivari temple, a Section 6(a) religious institution, exceeds rupees one crore the State Government, which is the competent authority to appoint a board of trustees, under Section 15(1) of the A.P. Charitable & Hindu Religious Institutions & Endowments Act (Act 30 of 1987), issued a notification in G.O.Rt. No.2355 dated 05.11.2007 inviting applications from interested persons for appointment as non-hereditary members of the trust board. W.P. No.20269 of 2008 was filed questioning the procedure prescribed by the Government, in G.O.Rt. No.2355 dated 05.11.2007, for appointment of trustees to the Srikalahasteeswara Swamivari temple. This Court, by order in W.P.M.P. No.26459 of 2008 dated 26.08.2008, suspended the process of appointment of trustees observing that the Government could issue a fresh notification duly following the prescribed procedure. Thereafter the Government issued the notification in G.O.Rt. No.2121 dated 18.11.2008, in supersession of G.O.Rt. No.2355 dated 05.11.2007, inviting applications from persons interested in being appointed as trustees. The said notification was published in the local newspapers on 05.12.2008. Pursuant thereto, 114 applications were received by the Government. These 114 applications were forwarded to the Commissioner of Endowments, vide memo dated 27.01.2009, for causing verification of their antecedents. The Commissioner split the 114 applications in two batches. While 97 applications were sent, vide proceedings dated 10.02.2009, for verification of antecedents to the Assistant Commissioner of Endowments, Chittoor, the other 17 were sent to the Assistant Commissioner of Endowments, Rajahmundry. 3. Even before the antecedents of the applicants could be verified, the Minister for Information and Public Relations, vide letter dated 12.02.2009, informed the Minister of Endowments that the term of the earlier trust committee of the Srikalahasti Devastanam had expired on 26.11.2007; and a number of representations were received for re-constitution of the same. While enclosing a copy of the request of the Srikalahasthi M.L.A, proposing the names of ten persons to be appointed as trustees of the Sri Kalahastiswaraswamy temple, the Minister of Information and Public Relations requested the Minister of Endowments to consider constituting a trust board with those ten members. By its memo No. 49015/Endts.II/A1/2008 dated 17.2.2009 the Government, while enclosing a copy of the letter of the Minister of Information and Public Relations dated 12.2.2009, requested the Commissioner of Endowments to verify whether the applications of the 10 applicants, named in the said letter of the Minister, had been received in time, to examine the matter and furnish his remarks along with the antecedents of the applicants, including these ten applicants, immediately for taking further action. 4. The Assistant Commissioner, Rajahmundry forwarded the applications, vide memo dated 16.02.2009, to the Inspector of Endowments to cause enquiry and submit his report. The Inspector of Endowments, Kakinada submitted his report on 18.02.2009. The Assistant Commissioner of Endowments, Rajahmundry forwarded his report to the Commissioner of Endowments on the same day despite the fact that the Inspector of Endowments, in his report dated 18.02.2009, had stated that the antecedents of Smt. Talari Srilakshmi, (the petitioner in W.P. No.3844 of 2009), had not been verified as she was not available in station as on that date; and that a report regarding her antecedents would be submitted later. 5. The Assistant Commissioner of Endowments, Chittoor, in his report dated 18.2.2009, stated that he had visited Srikalahasti and had cause discreet enquiries on 17.02.2009 and 18.02.2009; he had issued a paper publication in “Vaartha” daily on 18.02.2009 making the applicants aware of the proposed enquiry; and he had also verified the antecedents of persons who were not residents of Srikalahasthi. In his report dated 18.2.2009 the Assistant Commissioner of Endowments, Chittoor records that, at the time of verification of antecedents of the applicants at Srikalahasthi, he had received applications from three persons, two by hand and one by fax, and that he was also forwarding the verification report of the antecedents of these three applicants. The said three applications include the application of Sri M. Ravichandra Reddy who was appointed, under the impugned G.O, as one of the trustees of the temple. The Assistant Commissioner, Chittoor also records that in response to the paper publication dated 18.2.2009 24 out of 98 applicants had appeared before him at the time of verification of antecedents; he had verified the antecedents of all the 98 applicants, including the three new applications, as per the procedure laid down under Act 30 of 1987; he had conducted discreet enquiry on the antecedents of the individuals in accordance with the procedure prescribed under law; he had verified the lease records and the DCB of the temple in order to ascertain whether any person, among the applicants, was the tenant/lessee of the temple, and whether any office holder, who was getting remuneration from the temple funds, had applied for trusteeship; and he had received a joint representation on 18.02.2009 from certain applicants protesting against the exercise being undertaken for verification of antecedents. 6. The report of the Assistant Commissioner, Chittoor dated 18.2.2009 was received by the Commissioner of Endowments on the same day and he, in turn, submitted his report to the Government on 19.02.2009. In his proceedings dated 19.2.2009 the Commissioner informed the Secretary to the Government, Revenue (Endowments) Department, that the Executive Officer of the Devastanam had published the notification issued by the Government in ‘Andhra Jyothi’ daily newspaper on 5.12.2008; the schedule time of 20 days had ended by 24.12.2008; and 114 applications had been received by the Government in response to the notification issued vide G.O.Rt.No.2121 dated 18.11.2008. The Commissioner stated that the 10 applications, referred to in the letter of the Minister dated 12.2.2009, were received in time except in the case of Smt.Talari Vasantha whose application was received on 27.12.2008 after the schedule time. The Commissioner noted that the Assistant Commissioner, Chittoor had observed in his report that six, out of the 114, applicants were disqualified to be appointed as trustees under Section 19(i) of Act 30/87; among the 17 applications, forwarded to the Assistant Commissioner, Rajahmundry, 16 were got verified; among them two applicants stood disqualified under Section 19(i) of Act 30 of 1987; except these 8 (6+2), all the other applicants, as verified by the Assistant Commissioners, were qualified to be appointed as trustees; they did not suffer from any disqualification; and the particulars of the six mukhya- archakas were being forwarded to the Government. The Government was requested to issue suitable orders duly selecting candidates from among the qualified applicants. 7. The notification issued by the Government, in G.O.Rt. No.2121 dated 18.11.2008, was subjected to challenge in W.P. No.3354 of 2009 and batch and this Court by its order dated 20.02.2009, while observing that persons, who had submitted applications on or before 26.12.2008 in pursuance of the notification dated 18.11.2008, were entitled to be considered for appointment as members of the trust board, directed the respondents not to constitute the trust board from amongst persons whose applications were received beyond 26.12.2008. On the very same day G.O.Rt. No.313 dated 20.02.2009 was issued constituting the trust board of Srikalahasthiswara swamy temple. 8. The Private Secretary to the Minister of Endowments, vide note dated 21.2.2009, informed the Principal Secretary (Revenue) that the Minister of Endowments had informed that the orders issued in G.O.Rt.NO.313 dated 20.2.2009 constituting the trust board of Srikalahasteeswara Swami Vari Devasthanam be kept in abeyance until further orders. The Principal Secretary was requested to issue necessary orders in this regard immediately. G.O.Rt. No.319 dated 21.2.2009 was issued to the effect that the Government, after reconsidering the matter, was keeping the orders issued in G.O.Rt. No.313 dated 20.2.2009 in abeyance until further orders. On the same day i.e., 21.2.2009, the Private Secretary to the Minister of Endowments sent another note to the Principal Secretary (Endowments) Revenue that the Minister for Endowments had informed that the abeyance orders issued in G.O.Rt. No.319 dated 21.2.2009 may be withdrawn with immediate effect. The Principal Secretary was requested to issue necessary orders in this regard immediately. Consequently G.O.Rt. No.322 dated 22.2.2009 was issued withdrawing the orders issued in G.O.Rt. No.319 dated 21.2.2009. As a result the orders issued in G.O.Rt. No.313 dated 22.2.2009, whereby ten persons were appointed as trustees, stood revived. 9. When the matter was listed before this Court on 02.06.2010, Sri P. Gangaiah Naidu, Learned Senior Counsel appearing on behalf of the petitioners, put forth his submissions in part. As this Court was of the view that the entire records, including the antecedent verification details of the persons appointed; the note file and the official file relating to G.O.Rt. No.313 dated 20.02.2009; and the reports of Assistant Commissioners of Chittoor and Rajahmundry; should be called for, the matter was adjourned to 04.06.2010, on which date the Learned Government Pleader for Endowments produced the records. 10. As respondent Nos.6 and 7, who were arrayed as respondent eo-nominee, and some of the trust board members were not represented by Counsel, this Court directed the Registry to verify whether notices had been served on the respondents in all the three writ petitions and directed that the matter be listed on 08.06.2010. The Registry, in its note dated 05.06.2010, informed that all the 17 respondents in W.P. No.3622 of 2009 were served. All the respondents in the other two writ petitions are arrayed as respondents in W.P. No.3622 of 2009. Despite services of notices, no counter affidavit has been filed either by the Minister of Information and Public Relations, or by the Principal Secretary (Revenue) though they are arrayed as respondents eo-nominee. Except for respondents 8, 11 and 14, none of the other respondents have chosen to file their counter affidavits. 11. Rule 12 (i)(a) of the Writ Proceedings Rules, 1977 requires every respondent in every Writ Petition to enter appearance and file a counter affidavit in opposition as soon as may be and, in any event, not later than six months from the date of service of notice in the Writ Petition or the service of Rule nisi on the said respondent “unless otherwise directed by the court”. Rule 12(b) (ii) stipulates that no counter affidavit filed beyond six months, from the date of service of notice on the opposite party or parties in the Writ Petition, shall be received or be used at the hearing of the Writ Petition unless the Court permits the respondent, on an application containing special reasons, to do so. As more than a year has elapsed since these writ petitions were filed, and as the Learned Senior Counsel and the other Counsel appearing on behalf of the petitioners, assert that the respondents were procrastinating and avoiding filing of counter affidavits only to drag on the matter till completion of the two year term of the trustees, and thereby render the writ petitions infructuous, the writ petitions were heard and are being adjudicated on the basis of the records placed before this Court by the Learned Government Pleader for Endowments, and the oral submissions made by Counsel on either side. 12. Heard Sri P. Gangaiah Naidu, Learned Senior Counsel, Sri M. Vidyasagar and Sri N. Gurugopal, Learned Counsel for the petitioners. The Learned Government Pleader for Endowments put forth his submissions on behalf the official respondents and Sri Chandraiah Naidu, Learned Counsel appeared on behalf of the respondent Nos.8, 11 and 14, put forth his submissions on behalf of those appointed as trustees of the Srikalahastiswamy vari Devasthanam. ANTECEDENT VERIFICATION BY THE ASSISTANT COMMISISONERS IS NOT IN ACCORDANCE WITH THE PROVISIONS OF ACT 30 OF 1987 AND THE TRUSTEES RULES: 13. It is contended on behalf of the petitioners that the antecedent verification exercise carried out by the Assistant Commissioner of Endowments, Chittoor, of around 100 applicants, was only on 17th and 18th February, 2009 at Srikalahasthi; antecedents of more than hundred applicants could not have been verified within a span of two days; the report of the Assistant Commissioner, Chittoor makes no mention as to how (1) the antecedents of those who resided in places far away from Srikalahasthi, that too at Chennai in the State of Tamilnadu, and Bangalore in the State of Karnataka, were verified by him sitting at Srikalahasthi; and (2) whether all the qualifications/disqualifications, prescribed in Act 30 of 1987, of all the applicants was verified by him; verification of just the daily cash book and the lease records of the temple, to ascertain whether the applicants were tenants/lessees, and whether any of the office holders, who were getting remuneration from the temple funds, had applied for trusteeship, did not suffice as the exercise of verification of antecedents required several other factors to be examined; only 24 of the 98 applicants had, admittedly, appeared before the Assistant Commissioner at the time of verification of antecedents; the report makes no mention of whether , and if so the mode and manner in which, verification of the antecedents of the other 74 applicants was carried out; mere examination of the 24 applicants, and their self-serving statements, would not suffice as the Trustees Rules required an independent exercise of antecedent verification to be carried out; and the exercise undertaken, of antecedent verification, was a mere ritual, an empty formality and did not satisfy the requirements of the Rules. 14. They would refer to some of the applications in support of their contention that the applications were submitted even before the notification was published on 05.12.2008; some of the applicants had not even sought appointment as trustees; one of them had sought appointment as a Union Leader of the association of temple employees; the rules required an application to be made to the Government despite which the Assistant Commissioner, Chittoor had received the applications and had caused verification of their antecedents; and the impugned order is, therefore, liable to be set aside. 15. On the other hand the Learned Government Pleader for Endowments, and Sri A. Chandraiah Naidu, Learned Counsel appearing on behalf of those appointed as trustees, would submit that in none of these three writ petitions is there any allegation that the respondents, who have been appointed as members of the trust board, suffered from any of the disqualifications stipulated in Act 30 of 1987; all those who had been appointed were respectable members of Sri Kalahasthi town and nearby areas; and the mere fact that antecedent verification of around 100 persons was carried out by the Assistant Commissioner of Endowments, Chittoor in two days did not necessitate the conclusion that such an exercise was a mere ritual and an empty formality as it could not be said that such an exercise of antecedent verification could not be carried out in two days. 16. Rule 4(1) of the A.P. Charitable & Hindu Religious Institutions & Endowments appointment of Trustees Rules, 1987 (hereinafter referred to as the Trustees Rules), stipulates that the authority, competent to appoint trustees, shall, forthwith on a report received under Rule 3, cause publication of the notice in Form-I. The notice in Form-I requires interested persons to send their applications for trusteeship in the prescribed proforma, vide Form II of the Trustees Rules, within 20 days from the date of publication of the notification. Since the notification was published on 05.12.2008 the 20 day period, prescribed under Rule 4(1) of the Trustees Rules read with Form I thereof, expired by 24.12.2008. Rule 5(1) requires the application, for appointment of a trustee, to be submitted in Form II. The said Form-II requires the applicant to state that he is qualified under Section 18 and is not disqualified from being appointed under Section 19 or any other provision of Act 30/87. It is the correctness of this declaration which, under Rule 6(2) of the Trustees Rules, is required to be verified by the officer who is causing verification of the antecedents of the applicants. The said officer is required to cause a discreet enquiry and satisfy himself that the declaration made by the applicants in Form-II is correct, and to submit his report to the competent authority together with the applications. Rule 6(2) read with Form II, in effect, required the enquiry officers, (in the present case the Assistant Commissioners of Endowments, Chittoor and Rajahmundry), to cause a proper enquiry to satisfy themselves that none of the applicants suffered from the disqualifications under Section 19 and that they possessed the qualifications prescribed under Section 18 of Act 30/87. The Trustees Rules casts a duty on the competent authority to cause verification, and the Enquiry Officer to verify, whether or not the applicants satisfied the qualifications, and did not suffer from the disqualification, under Act 30 of 1987 and the Trustees Rules. The contention, urged on behalf of the respondents, that the petitioners had not asserted that the persons appointed as trustees suffered from any disqualification is of no consequence, as the obligation to ascertain these facts is statutorily placed on the competent authority and the Enquiry Officer. 17. Section 18 of Act 30 of 1987 prescribes the qualification of trustees and, thereunder, a person shall be qualified for being appointed as, or for being, a trustee of a charitable or religious institution or endowment if (a) if he has faith in God; (b) if he possesses good conduct and reputation, and commands respect in the locality in which the institution is situated; (c) if he has contributed for construction, renovation or development of any institution or performance of any utsavam or ubbayam or any charitable cause; (d) if he has sufficient time and interest to attend to the affairs of the institution; and (e) if he possesses any other merit. Section 19, which prescribes the disqualifications for trusteeship, reads as under: (1) A person shall be disqualified for being appointed as, or for being, a trustee of any charitable or religious institution or endowment:- (a) if he is an undischarged insolvent; (b) if he is of unsound mind and stands so declared by a competent court or if he is a deaf-mute or is suffering from leprosy or any virulent contagious disease; (c) if he is interested either directly or indirectly in a subsisting lease of any property or of contract made with, or any work being done for, the institution or endowment or is in arrears of any kind due by him to such institution or endowment; (d) if he is appearing as a legal practitioner on behalf of or against the institution or endowment; (e) if he has been sentenced by a Criminal Court for an offence involving moral turpitude, such sentence not having been reversed; (f) if he has acted adverse to the interest of the institution or endowment; (g) if he is an office holder or servant attached to, or a person in receipt of any emolument or perquisite from such institution or endowment; (h) if he is addicted to intoxicating liquors or drugs; (i) if he has not completed (thirty years) of age; (j) if he does not profess Hindu religion in the case of a religious institution or endowment; or (k) if he has held such office for two consecutive terms. 18. The antecedent verification reports, of the Assistant Commissioners’ Chittoor and Rajahmundry, do not reflect verification of all the clauses (Clauses (a) to (e)) of Section 18 of Act 30 of 1987. The Assistant Commissioner, Chittoor has examined the records only to ascertain whether or not the applicants suffered from the disqualifications in clause (c), (g) and (i) of Section 19 of the Act. Except for a vague statement that the applicants fulfilled the qualifications and did not suffer from the disqualifications stipulated in Act 30/1987 the report of Assistant Commissioner, Chittoor makes no mention of the efforts made, or the information gathered, by him to satisfy himself that none of the applicants suffered from any of the other disqualifications in clauses (a), (b), (d), (e), (f), (h), (j) and (k) of Section 19 of Act 30 of 1987. The antecedent verification exercise carried out by the Assistant Commissioner, Chittoor does not, therefore, satisfy the requirement of Rule 6(2) of the Trustees Rules. THE MODE AND MANNER OF APPOINTMENT OF TRUSTEES BY THE GOVERNMENT FALLS FOUL OF THE REQUIREMENTS OF ACT 30 OF 1987 AND THE TURSTEES RULES – THE IMPUGNED ORDER STANDS VITIATED FOR NON- APPLICATION OF MIND: 19. It is contended on behalf of the petitioners that the impugned order of the Government, in G.O.Rt. No.313 dated 20.02.2009, suffers from non-application of mind; the Trustees Rules required the Government, which is the competent authority for appointment of trustees of Section 6(a) temples whose annual income exceeds Rupees one crore, to examine the individual merits of each applicant; no independent exercise was carried out in this regard; the competent authority is required under the Trustees Rules not only to take into consideration the qualification/ disqualification of the applicants but also to examine the merits of each individual applicant on a rational basis; no rational yardstick has been laid down by the Government in selecting meritorious applicants for being appointed as trustees; the ten applicants recommended by the Minister, from out of more than hundred applicants, were arbitrarily picked and chosen only because the local M.L.A had forwarded their names; and no exercise to ascertain their individual merit, or their inter-se merit vis-à-vis the other eligible applicants, was undertaken by the competent authority. 20. Section 15 of Act 30 of 1987 relates to appointment of board of trustees and, under sub-section (1) thereof, in respect of charitable or religious institutions or endowments, included in clause (a) of Section 6, where the annual income of the institution exceeds Rs. One Crore, the Government shall constitute the board of trustees consisting of nine