* THE HON’BLE Ms. JUSTICE G. ROHINI + WRIT PETITION No.2596 OF 2009 %Date: 26.07.2010 # A.V. Ranga Rao .. Petitioner Vs. $ 1. State of Andhra Pradesh, rep. By its Principal Secretary, Endowments Department, Secretariat, Hyderabad., And 4 others. … Respondents ! Counsel for the petitioner: Sri K.V. Krishna Rao ^ Counsel for the respondents 1 to 4: Govt. Pleader for Endowments Counsel for the respondent No.5 : Sri V.T.M..Prasad, Standing Counsel <GIST: >HEAD NOTE: ?CASES REFERRED: [1] AIR 1996 SC 1023 2 2008 (2) ALD 123 THE HON’BLE Ms. JUSTICE G. ROHINI WRIT PETITION No.2596 OF 2009 Dated: 26.07.2010 Between : A.V. Ranga Rao .. Petitioner And 1. State of Andhra Pradesh, rep. By its Principal Secretary, Endowments Department, Secretariat, Hyderabad., And 4 others. … Respondents THE HON’BLE Ms. JUSTICE G. ROHINI WRIT PETITION No.2596 OF 2009 ORDER : This writ petition is filed seeking a declaration that the order passed by the 2nd respondent – Commissioner of Endowments – dated 18.8.2008 as well as the order of the 4th respondent – Assistant Commissioner of Endowments, Guntur – dated 1.11.2008 as arbitrary and illegal and consequently to direct the respondents to hand over the management of the 5th respondent temple as he was declared as founder trustee of the said temple. The facts, which are not in dispute, are as under: By order dated 22.10.1981 in O.A.No.61 of 1980 on the file of the Deputy Commissioner of Endowments, Guntur, the petitioner’s application made under Section 77 (1) (c) of the A.P. Charitable Hindu Religious Institutions and Endowments Act, 1966 (Act 17 of 1966) for a declaration that he was the hereditary trustee of the 5th respondent temple was allowed and the said order became final. Pursuant thereto, the petitioner was managing the affairs of the temple even after the enactment of the A.P. Charitable and Hindu Religious Institutions and Endowments Act, 1987 (Act No.30 of 1987). While so, a trustee was appointed in the year 1996 by the 4th respondent without issuing any notice to the petitioner and challenging the same the petitioner filed W.P.No.2517 of 1996. The said writ petition was allowed by this Court by order dated 19.4.1996 by setting aside the appointment of the trustee. In the meanwhile the petitioner made an application before the 4th respondent to recognize him as a member of the founder family of the 5th respondent temple. Though the said request was rejected by the 4th respondent by order dated 7.2.2001 and the same was confirmed on Revision by the Regional Joint Commissioner of Endowments, by order dated 13.12.2001, the 1st respondent – Government of A.P. vide order in G.O.Rt.No.1935, dated 5.9.2007 set aside both the said orders and held that the petitioner was entitled to the status of the founder family member. In pursuance thereof the petitioner made a representation requesting the 2nd respondent to pass appropriate orders in the light of G.O.Rt.No.1935, dated 5.9.2007 and to hand over the records of the 5th respondent temple. However, the 2nd respondent by proceedings dated 18.8.2008 directed that the petitioner shall continue to function as the founder trustee of the subject temple and the accounts shall be maintained by the Executive Officer/ Manager. Consequential proceedings dated 1.11.2008 were issued by the 4th respondent informing the petitioner that he was permitted “to continue to function as founder trustee duly obtaining founder trustee declaration orders from the competent authority as per the procedure”. Aggrieved by the said orders dated 18.8.2008 and 1.11.2008 passed by the respondents 2 and 4 respectively, the present writ petition has been filed. A counter-affidavit has been filed on behalf of the 5th respondent temple stating that the petitioner’s application to declare him as a member of the founder family was rejected by the 4th respondent since the petitioner had failed to prove that the temple was constructed by their ancestors with their own funds and also on the ground that the petitioner had acted detrimental to the interest of the institution by not maintaining the accounts properly and the temple was neglected completely. The Revision petition preferred by the petitioner against the said order was dismissed by order dated 13.12.2001. Though the said orders were set aside by the 1st respondent vide G.O.Rt.No.1935, dated 5.9.2007, in view of the amendment to A.P. Charitable and Hindu Religious Institutions and Endowments Act, 1987 (Act 30 of 1987) by the Amendment Act 27 of 2002 incorporating clause (h) to Section 87 (1), unless the petitioner was declared as a member of the family of the founder of the 5th respondent temple by the Deputy Commissioner of Endowments as provided under Section 87 (1) (h) of the Act 30 of 1987, he cannot be permitted to act as a member of the founder family. Thus it is contended that the impugned orders dated 18.8.2008 and 1.11.2008 were rightly passed permitting the petitioner to function as founder trustee and directing him to obtain a declaration as a member of the founder family from the competent authority. I have heard the learned counsel for the petitioner, the learned Standing Counsel appearing for the 5th respondent temple as well as the learned Government Pleader for Endowments appearing for the respondents 1 to 4. The petitioner herein was admittedly declared as the hereditary trustee of the 5th respondent temple by order dated 22.10.1981 in O.A.No.61 of 1980 on the file of the Deputy Commissioner of Endowments who was the competent authority under the repealed Act 17 of 1966 and the said order became final. However, as per Section 16 of the Act 30 of 1987, the hereditary trusteeship has been abolished and under Section 15 read with Section 17 (1) of Act 30 of 1987 a Board of Trustees has to be constituted having due regard to the wishes of the founder of the institution or endowment. Section 18 of Act 30 of 1987 which prescribed the qualifications of trusteeship provided that a person who has contributed for construction, renovation or development of any institution shall also be qualified for being appointed as a trustee. The Constitutional validity of Sections 15, 16 and other relevant provisions of Act 30 of 1987 was upheld by the Apex Court in BANSILAL PATIL v. STATE OF A.P.[1]. A.P. Act 30 of 1987 was amended by Act 27 of 2002 inserting the proviso, Explanation-I and Explanation-II to Section 17 (1) as under: 17. Procedure for making appointments of trustees and their term:- (1) In making the appointment of trustees under Section 15, the Government, the Commissioner, the Deputy Commissioner or the Assistant Commissioner, as the case may be, shall have due regard to the religious denomination or any such section thereof to which the institution belongs or the endowment is made and the wishes of the founder: Provided that the founder or one of the members of the family of the founder, if qualified as prescribed shall be appointed as one of the trustees. Explanation I:- ‘Founder’ means a person who has founded an Institution or Endowment and recognized as such by the authority competent to appoint Trustees under Section 15. Explanation II:- ‘Member of the family of the founder’ means children, grand children and so in agnatic line of succession for the time being in force and declared or recognized as such by the relevant appointing authority. As could be seen, by virtue of the Amendment Act 27 of 2002, the founder or one of the members of the family of the founder, if qualified are entitled to be appointed as one of the trustees constituted under Section 15. As per Explanations I & II, the founder or the members of the family of the founder have to be recognized as such by the authority competent to appoint trustees under Section 15. However, the amendment under Act 27 of 2002 has come into force w.e.f. 26.8.2002. Prior to that there was no provision for recognition as the founder or member of the founder family. It is also relevant to note that prior to the amendment by Act 27 of 2002, no right as such was conferred on the founder / member of the founder family to be a member of the Trust Board and he was only qualified for being appointed as a member of the Trust Board under Section 15. Such a right for appointment as one of the trustees has been conferred on the founder/member of the founder family w.e.f. 26.8.2002 by virtue of the amendment to Section 17 (1) by Amendment Act 27 of 2002. While defining the expressions ‘founder’ and ‘member of the family of the founder’, the Explanations I & II of Section 17 (1) further provided that the authority to appoint trustees under Section 15 shall be competent to declare or recognize the founder /member of the founder family. Section 20 of Act 30 of 1987 has also been simultaneously amended by Act 27 of 2002 to the effect that where the founder or a member of the founder family is appointed as trustee, he shall be the Chairman of the Board of Trustees. On a combined reading of Sections 17 and 20 as amended by Act 27 of 2002, it is clear that the procedure for declaration as a founder or member of the founder family has been incorporated w.e.f. 26.8.2002 only. Thus, as on the date of the petitioner’s application before the Assistant Commissioner of Endowments or as on the date of his order dated 7.2.2001 or even by the date of the order of the Revisional Authority, dated 13.12.2001, there was no provision at all entitling the petitioner to seek a declaration that he was the founder / member of the founder family. Despite the fact that there was no such provision under Act 30 of 1987 at the relevant point of time, the petitioner’s claim for declaration as founder / member of the founder family was entertained by the Assistant Commissioner of Endowments. However the said claim was rejected on merits and the same was also confirmed on Revision by the Regional Joint Commissioner of Endowments. It appears that thereafter the petitioner made a representation requesting the Government to appoint him or his daughter Mrs. Anasuya as founder trustee to the 5th respondent temple so as to enable him to renovate the temple and perform Nitya Nivedya Deeparadhana etc., to the deities. While considering the said representation, the 1st respondent vide G.O.Rt.No.1935, dated 5.9.2007 had set aside the orders passed by the Assistant Commissioner of Endowments and the Regional Joint Commissioner of Endowments dated 7.2.2001 and 13.12.201 respectively and directed the 2nd respondent to take necessary further action holding that there was no strong ground to deny the status of the founder family member to the petitioner. On the basis of the said order dated 5.9.2007, it is contended in the present writ petition that the impugned orders passed by the respondents 2 and 4 were erroneous and that the management of the 5th respondent temple should be handed over to him without driving him to obtain a fresh declaration from the competent authority. In the facts and circumstances of the case, the first question that arises for consideration is whether the order of the 1st respondent vide G.O.Rt.No.1935, dated 5.9.2007 amounts to recognition of the petitioner’s right as founder / member of the founder family. As expressed above, prior to Amendment Act 27 of 2002, no right was conferred on the founder of founder family member to be a member of the Trust Board. There was also no provision enabling a person to seek a declaration as the founder / member of the founder family. Such provisions have been incorporated only under the Amendment Act 27 of 2002 w.e.f. 26.8.2002 and the competent authority to make such declaration / recognition is the appointing authority under Section 15. As such the 1st respondent’s order in G.O.Rt.No.1935, dated 5.9.2007 which was apparently made on a fresh application made by the petitioner but not in exercise of the revisional jurisdiction under Section 94 of the Act, is without jurisdiction and does not confer any right on the petitioner to claim that he should be allowed to manage the affairs of the 5th respondent temple. However, there is yet another amendment to Section 17 (1) by Act 33 of 2007 w.e.f. 3.1.2008. As per the said amendment, the person who was recognized as hereditary trustee under the repealed Act 17 of 1966, automatically comes within the definition of ‘Founder’ and thus is entitled to be appointed as one of the trustees. The Explanations I & II of Section 17 (1) as amended by Act 33 of 2007 read as under : Explanation I:- ‘Founder’ means,- (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; (b) in respect of an Institution or Endowment established after such commencement, the person who has founded such Institution or Endowment or a member of his family and recognized as such by the competent authority. Explanation II:- ‘Member of the family of the founder’ means children, grand children and so in agnatic line of succession for the time being in force and declared or recognized as such by the relevant appointing authority. The learned counsel for the petitioner while relying upon the Explanation-I to Section 17 (1) as inserted by Act 33 of 2007 contended that as the petitioner was recognized as hereditary trustee under the repealed Act 17 of 1966, he comes within the definition of founder and therefore there cannot be any objection for his continuation as a trustee of the 5th respondent temple. On the other hand, the learned counsel for the 5th respondent vehemently contended that unless there is a decision by the Deputy Commissioner of Endowments as required under Section 87 (1) (h) of the Act, the petitioner’s claim for appointment as a trustee cannot be accepted. In support of the said submission, the learned counsel has relied upon a decision of this Court in CHINNI SUBBA RAO v. GOVERNMENT OF ANDHRA PRADESH[2]. For proper appreciation of the said contention, it is necessary to refer to Section 87 (1) (h) of the Act as amended by Act 27 of 2002 which runs as under : 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) … … … … … … (b) … … … … … … (c) … … … … … … (d) … … … … … … (e) … … … … … … (f) … … … … … … (g) … … … … … … (h) whether a person is a founder or a member from the family of the founder of an Institution or Endowment. A plain reading of Section 87 (1) (h) shows that a decision is necessary only where there is any dispute as to the question whether a person is founder or a member from the family of the founder of an institution or endowment. In the instant case, admittedly there is no such dispute and on the other hand there is already a decision in favour of the petitioner under the provisions of the repealed Act 17 of 1966. Hence Section 87 (1) (h) in my considered opinion has no application to the instant case. For the aforesaid reasons, though the petitioner’s claim on the basis of the order in G.O.Rt.No.1935, dated 5.9.2007 cannot be accepted, as per Section 17 (1) as it stands as on today, I am of the opinion that in view of the order dated 22.10.1981 in O.A.No.61 of 1980 made under the repealed Act 17 of 1966, there is no need for any further declaration that the petitioner was the founder of the temple in question. Hence there shall be a direction to the 3rd respondent who is the competent authority under Section 15 of the Act to appoint a Board of Trustees in respect of the 5th respondent temple, to pass appropriate orders in accordance with law making appointment of the trustees in terms of Section 17 of the Act as amended by Act 33 of 2007 within a period of six weeks from the date of receipt of this order. Writ Petition is accordingly disposed of. No costs. ______________ G. ROHINI, J. Dt. 26.07.2010 Note:- LR copy to be marked. (B/O) gbs [1] AIR 1996 SC 1023 [2] 2008 (2) ALD 123