THE HON'BLE SRI JUSTICE P.S.NARAYANA W.P.No.19260 of 2006 Date : 14-2-2008 Between : Bodduluri Mangamma w/o. Seetaramaiah .. Petitioner And The Assistant Commissioner of Endowments, Endowments Department, Guntur and others .. Respondents THE HON'BLE SRI JUSTICE P.S.NARAYANA W.P.No.19260 of 2006 ORDER: 1. Heard Ms.Jhansi, the learned Counsel representing the writ petitioner, the learned Government Pleader for Endowments representing the 1st respondent and Ms.Usha Kiran, Counsel representing the 2nd respondent. 2. This Court issued rule nisi on 18-9-2006 and granted interim suspension in W.P.M.P.No.24273/2006. 3. The Writ Petition is filed for a Writ of Mandamus declaring the order of the 1st respondent in issuing the demand notice No.1120/Q/2007 dated 20-6- 2007 as illegal, arbitrary and violative of principles of natural justice and contrary to the provisions of Rule 26 of A.P. Mines and Mineral Concession Rules, 1966 and also being contrary to the orders in W.P.No.11830/2007 dated 8-7-2007 and to set aside the same and pass such other suitable orders. 4. Counter affidavit is filed by the 2nd respondent. 5. It is the case of the writ petitioner that her father late Sri Pamulapati Venkaiah had constructed the temple known as Sri Sitarama Swamy Temple at Gundlapalem, Guntur District in the year 1044-45 and also donated Ac.16.00 of land for the upkeep of the temple. During his life time, he was managing the affairs of the temple as the trustee and after his demise in the year 1977, the then Assistant Commissioner of Endowments had issued proceedings in D.Dis.No.A1/4442 dated 23-4- 1977 according permission to the petitioner to assume office of hereditary trustee of the temple. The petitioner was recognized as the trustee under Act 17/1966 and she continued to be the trustee of the temple. After the abolition of hereditary trustees bringing into force Act 30/1987, the petitioner made an application to the Assistant Commissioner of Endowments, Guntur to recognize her as a member of the founder family on 10-11-1998 which is in conformity with the Judgment of the Apex Court wherein the rights of founder trustees were upheld entitling them to head the Board of Trustees as Chairman. The said application was pending final adjudication. It is respondent stated that in the year 2001, the then Assistant Commissioner of Endowments had issued proceedings in Rc.No.A5/1374/2001.Adm dated 13-3-2001 appointing one Sri G.Venkateswarlu, Executive Officer, as Single Trustee of the aforesaid temple and in the said proceedings it had been clearly mentioned by the 1st respondent that the petitioner is the founder trustee of the subject temple. It is also further stated that while things stood thus, the 1st respondent had issued a notification in Rc.No.A5/957/06 dated 30-1-2006 inviting applications from eligible persons for being appointed as members of the trust board to Sri Sitaramaswamy Temple, Gundlapalem under Section 15 of the Endowments Act. Immediately after the said notification was issued, the petitioner made a representation to the 1st respondent stating that being a member of the founder family of the subject temple, the petitioner is entitled to be appointed as the Chairman of the Trust Board. It was further mentioned in the said representation that an earlier application to recognize the petitioner as the founder’s family of the subject temple is still pending adjudication before the very same 1st respondent who issued the impugned proceedings. The 1st respondent without considering the claim of the petitioner for appointment as the Chairman of the Trust Board is taking steps to appoint other persons as members of the Trust Board ignoring the claim of the petitioner as founder trustee and contrary to the Judgment of the Apex Court. It is also further stated that Section 15 of the A.P. Charitable and Hindu Religious Institutions and Endowments Act 1987 deals with regard to the appointment of Board of Trustees. The temple in question is notified as Section 6(c) temple and the Assistant Commissioner has got the power to appoint Board of Trustees comprising of five persons. Further it is stated that the provisions of the said Act were questioned and the Apex Court held that the founder member has to be appointed as the Chairman of the Board of Trustees. The procedure for making appointments is provided under Section 17 of the aforesaid Act and as per explanation (1) of Section 17 of the Act, it is clear that the founder means a person who had founded an institution and recognized as such by the authority competent to appoint trustee under Section 15 of the Act. It is also respondent stated that assailing the proceedings of the 1st respondent contemplating to constitute a Board of Trustees to the subject temple, W.P.No.8253/2006 was preferred before this Court alleging that the said attempt to constitute the Board of Trustees is with the sole aim of keeping the petitioner out of management and thereby depriving her rights as a founder trustee to the subject temple. The said Writ Petition was disposed of at the admission stage by order dated 24-4-2006 as hereunder:- “In the circumstances, the Writ Petition is disposed of directing the 1st respondent to forbear from appointing trustees to Sri Sitarama Swamy Temple, Gundlapalem, Medikonduru Mandal, Guntur District, till the petitioner’s representation dated 10-11-1998 is disposed of and the decision communicated to her and for a period of fifteen (15) days thereafter. The petitioner is at liberty to agitate her rights after receipt of such communication by her; either to pursue her remedies after the rejection of her application, if such be the result, or to apply for being appointed as a Chairman of the Trust Board in case her application for recognition is favourably considered. The 1st respondent is also directed to dispose of the petitioner’s representation dated 10-11-1998 expeditiously and in any event within a period of (4) weeks from the date of receipt of a copy of this order without fail or demur. The Writ Petition is disposed of as above at the stage of admission. No costs.” It is also further stated that consequent upon the said order, quite peculiarly the 1st respondent issued a notice asking the petitioner to attend the office on any working day along with necessary documents and in conformity with the same the petitioner was preparing to attend the said enquiry after receipt of the said notice on 25-8-2006. The petitioner received the notice of the 1st respondent and on the very same day, a decision was already taken to constitute Board of Trustees and in the entire exercise of sending the notice to the petitioner for enquiry on her claim as a founder trustee looks to be a sheer formality which is nothing but an eye wash to fulfil the formality of rejecting the claim of the petitioner as a member of the founder family of the temple in question. The rejection of the claim of the petitioner as a member of the founder family was on 25-8-2006 and the same had been received on 5-9-2006 and the orders were mailed to the petitioner on 29-8-2006. The order of this Court in W.P.No.8253/2006 dated 24-4-2006 clearly indicated that the petitioner can agitate her remedies within a period of 15 days from the communication of the order passed by the 1st respondent. However, contrary to the directions of this Court the Trust Board to the subject temple had been constituted on 31-8-2006, thus depriving the petitioner of her right to agitate her claim as a member of the founder family of the temple in question. The rejection of the claim of the petitioner as a member of the founder family and the consequent constitution of the Trust Board is ex facie illegal taking into consideration the facts of the case and also the legal issue involved in the subject matter. The constitution of the Board of Trustees to the subject temple illegally by the 1st respondent appears to be solely to keep the petitioner out of management since she would be nominated as the Chairman of the Board of Trustees in the event of being declared as a member of the founder family. The exercise of constitution of the Board of Trustees even without giving time granted by this Court to prefer appropriate remedies is mala fide exercise of power. As respondents 3 to 7 are proclaiming that they were appointed as the Board of Trustees to the subject temple and are taking oath on 11-9-2006, then the petitioner verified and with great difficulty could get a copy of the proceedings of the 1st respondent constituting the Trust Board. Several grounds also had been averred in the affidavit filed in support of the Writ Petition. 6. In the counter affidavit filed by the 2nd respondent, it is stated that the petitioner is put to strict proof as regards her contention that her father late Pamulapati Venkaiah had constructed the temple called Sri Seetharama Swamy Varu at Gundlapalem village of Medikonduru Mandal and donated an extent of Acs.16.00 of land for the upkeep of the temple and that during his life time and further he managed the affairs of the subject temple as trustee. It is admitted that the petitioner was permitted to assume office as hereditary trustee of the subject temple as per the orders of the then Assistant Commissioner, Endowments Department, Guntur vide D.Dis.No.A1/4442/1977 dated 23-4-1977 in the vacancy caused due to the demise of her father Sri Pamulaparthi Venkaiah as per the provisions of Section 20(1) of the Repealed Act of 1966. It is also admitted that the hereditary rights were abolished due to enactment of Act 30 of 1987 by virtue of Section 16 of the said Act. It is further stated that the Apex Court had upheld the validity of Sections 15, 16, 17, 29(5) and 144 of the Endowments Act, 1987 abolishing the hereditary rights, but however observed that either the founder or any member of the founder’s family should head the Board of Trustees appointed to the institution or Endowments under the provisions of Act 30/87 as long as the temple is managed perfectly and efficiently by him. The Assistant Commissioner is the competent authority to recognise the founder trustee of the subject temple which is Section 6(c) (ii) temple. The 2nd respondent received an order from the 1st respondent in Rc.No.A5/957/2006-Adm. Dated 25- 8-2006 and according to which it is learnt that the petitioner made an application to the Assistant Commissioner, Endowments Department, Guntur for recognizing her as the founder trustee and the same was rejected since there are no grounds to her to claim a right as the founder family member of the subject temple. Further it is stated that a notification had been issued by the 1st respondent proposing constitution of the Trust Board to the subject temple vide Rc.No.A5/957/2006, dated 30-1-2006 and the same was got affixed on the Mukhadwaram of the temple on 4-2-2006 and submitted affixture report on the same day itself. It is further stated that the 1st respondent after making necessary enquiries had rejected the application filed by the petitioner seeking for her recognition as the founder trustee of the subject temple. Thereafter a Trust Board was constituted on 11- 9-2006 to the aforesaid temple as per orders in Rc.No.A5/957/2006, dated 31-8-2006 of the 1st respondent and hence it is not true to state that the 1st respondent without considering her claim for appointment as Chairman of the Trust Board is taking steps to appoint other persons as members of the Trust Board ignoring her claim as the founder trustee and contrary to the Judgment of the Apex Court. It is also further stated that the subject temple is notified under Section 6(c)(ii) of the Endowments Act 30/87 and under the administrative control of the Assistant Commissioner, Endowments Department, Guntur. It is a fact that as per the Judgment of the Apex Court and as per the amended Act 30/87 the founder family member of the temple shall be headed as Chairman of the Board of Trustees, but by the time of making appointment of non-hereditary trustees to the subject temple, there is no founder to the subject temple and that the application filed by the petitioner for such recognition was also rejected. It is also further stated that it is a fact that the writ petitioner filed W.P.No.8253/2006 before this Court and this Court was pleaded to dispose of the Writ Petition at the admission stage on 24-4-2006. The application of the petitioner requesting for her recognition to be the member of the founder’s family was rejected by an order issued by the 1st respondent in Rc.No.A5/957/2006-Adm., dated 25-8-2006 and the Board of Trustees was constituted to the subject temple by the 1st respondent by an order in proceedings No.A5/957/2006.Adm., dated 31-8-2006. However, these orders dated 31-8-2006 were cancelled vide Rc.No.A5/957/2006 dated 28-11-2006 of the 1st respondent and hence there is no Trust Board existing now. Further it is stated that the application of the petitioner seeking for her recognition as the founder trustee was rejected by the 1st respondent by an order dated 25-8-2006 and that there is a remedy to her as per the provisions of the Endowments Act 30/87 to file a Revision Petition before the competent authority having jurisdiction by virtue of Section 92 of Act 30/87 and hence the Writ Petition filed before this Court is not maintainable under law since the petitioner had not availed the remedies as provided under the provisions of the aforesaid Act. 7. The order made in C.C.No.1020/2006 also is placed before this Court and in the said Contempt Case, it was observed as hereunder:- “The contempt case is filed alleging wanton and willful disobedience of the order of this Court dated 24-2-2006 in W.P.No.8253/2006. This Court directed the respondent to dispose of the petitioner’s representation dated 10-11-1998 (seeking recognition as a member of the founder’s family); to communicate the decision on the petitioner’s representation to her; and for a period of fifteen (15) days thereafter to forbear from appointing trustees to Sri Sitarama Swamy Temple, Gundlapalem, Medikonduru Mandal, Guntur District. By an order dated 25-8-2006 said to have been received by the petitioner on 5-9-2006, the respondent rejected the petitioner’s application/representation for recognition as a member of the founder’s family. Without waiting for the time stipulated by this Court, on 31-8-2006, the respondent appointed a board of trustees for the temple in question in clear defiance of the order of this Court, is the complaint in the contempt case. Responding thereto the respondent has filed a counter affidavit stating that he was not adequately scrutinized and informed and had therefore had passed the order dated 31-8-2006 order dated 31- 8-2006 constituting a board of trustees for the temple. The mistake is inadvertent and not intentional but on account of wrong advise. The respondent has also withdrawn, by the proceedings dated 28-10-2006, his earlier proceedings dated 31-8-2006 appointing a board of trustees to the temple. In view of the aforesaid developments, no proceedings in the contempt case against the respondent appear justified. The contempt case is dismissed. Rule discharged”. Further, the notice in Rc.No.A5/105/08 dated 7-1-2008, Form No.1, under Rule 4(1) of the office of the Assistant Commissioner, Endowments Department, Guntur, also is placed before this Court and the same reads as hereunder:- “It is hereby informed that a Trust Board will be constituted to Sri Seetha Rama Swamy Temple, Gundlapelem (V), Endowments Department, Guntur under Section 15 of A.P.C. & H.R.I. and Endowments Act 19087 (Act 30/87) after twenty days from the date of this notice. Interested persons may send their application for Trusteeship in the prescribed proforma vide Form II of the Rule U/s.17(3) within twenty days from the date of this notice to the Assistant Commissioner, Endowments Department, Guntur.” The relevant provisions i.e., Sections 17, 28 and 87 of the Act aforesaid also had been brought to the notice of this Court. 8. The learned Government Pleader for Endowments would submit that at present the competent authority is the Deputy Commissioner of Endowments, Guntur, to decide the question whether the petitioner is a member of the founder family of the Institution in question or not. 9. In the light of the same, let the writ petitioner make appropriate application in accordance with Law before the Deputy Commissioner, Endowments Department, Guntur, at an early date, preferably within a period of two weeks from the date of receipt of this order and let the Deputy Commissioner of Endowments Department, Guntur decide the same in accordance with Law within a period of four weeks thereafter. Till then, status quo obtaining as on today to be maintained. 10. The Writ Petition is accordingly disposed of. No costs. _________________ Justice P.S.Narayana Date : 14-2-2008 AM