* T H E H O N ' B L E S R I J U + W.P.No. 18719 of 2007 % 1 2 - 1 0 - 2 0 0 7 # C h i n n i S u b b a R a o . . . P e t i V s . $ The Government of Andhra Pradesh, rep. by its Principal Secretary, Revenue IV Department, Secretariat Buildings, Hyderabad and others. . . R e s p o n d e n t s < G I S T : > H E A D N O T E : ! C o u n s e l f o r p e t i t i o n Sri M. Radha Krishna. ^ C o u n s e l f o r r e s p o n d E n d o w m e n t s . ^ C o u n s e l f o r r e s p o n d e P.Sridhar Reddy ? C A S E S R E F E R R E D : - [1] 1982(2) ALT 3 (NRC) 2 1980 (1) ALT 157 3 1979 (1) ALT 298. 4 1991(II) ALT 673 5 AIR 2001 Supreme Court-2436 equivalent to 2001 SCC 7-106, 6 2001 ALT 3-13 equivalent to 2001 ALD 3-61. 7 2006 ALT-2-115 equivalent to 2006-ALD-1-705. 8 2007(5)ALD 661 9 2000-ALT-5-366 equivalent to 2000-ALD-5-544. 102006 (1) ALD-705 THE HON’BLE SRI JUSTICE P.S.NARAYANA W.P.No.18719 OF 2007 Dated: 12 -10-2007 Between: Chinni Subba Rao. ..Petitioner. And The Government of Andhra Pradesh, rep. by its Principal Secretary, Revenue IV Department, Secretariat Buildings, Hyderabad and others. ..Respondents. THE HON’BLE SRI JUSTICE P.S.NARAYANA W.P.No.18719 OF 2007 ORDER: Chinni Subba Rao, the writ petitioner, filed the present writ petition praying for the issuance of a writ, order or direction one in the nature of Mandamus declaring the action of the first respondent-the Government of Andhra Pradesh, represented by its Principal Secretary, Revenue Department, Secretariat Buildings, Hyderabad, in entertaining the representation of fourth respondent, Kotha Bala Veeraiah, as revision petition being illegal, arbitrary and without jurisdiction and further prayed for declaration that the proceedings in Memo No.36560/Endts IV(1)/2007-1 dated 12.07.2007 as illegal, arbitrary, void and to set aside the same and also pass such other suitable orders. 2. This Court issued rule nisi on 05.09.2007. Counter affidavits of respondent Nos.1 to 3 and respondent No.4 had been filed. With the consent of the counsel on record, the writ petition itself is taken up for final hearing. 3. Sri M. Radha Krishna, the learned counsel representing the writ petitioner had taken this Court through the contents of the affidavit filed in support of the writ petition, the respective stands taken in the counter- affidavits of R1 to R3 and R4 as well and would maintain that the 4th respondent, a non party to the orders made by respondents 2 & 3 cannot file such representation and the first respondent cannot treat the same as revision petition. The learned counsel also would further submit that even otherwise when the leave is said to be pending, even prior to the granting of leave or obtaining of leave, the first respondent has no jurisdiction to make the impugned order. The learned counsel also would maintain that even otherwise as against the orders made by the Regional Joint Commissioner, Endowments Department, Multi Zone-Ii, Tirupathi straight away revision cannot be entertained by the first respondent, Government. The learned counsel also would maintain that this is not a case of suo moto excessive of power, but on application of a party, who is a non party to the proceedings before the Regional Joint Commissioner as well as Assistant Commissioner of Endowments-R2 & R3. Even otherwise, the impugned order also is in violation of the principles of natural justice since no opportunity had been given to the petitioner before making such an order. The learned counsel also would maintain that this is not a case where for the first time the rights of the petitioner are being recognized by the Assistant Commissioner of Endowments. The Assistant Commissioner of Endowments had not passed any independent order and it is only recognizing the prior orders and hence would contend that the Deputy Commissioner of Endowments alone will have jurisdiction to make such an order also cannot be sustained. The learned counsel had taken this Court through the relevant provisions of the Andhra Pradesh Charitable & Hindu Religious Institutions and Endowments Act, 1987 (herein after referred to as ‘the Act’ for the purpose of convenience) and also placed strong reliance on several decisions to substantiate his submissions. 4. The learned Government Pleader for Endowments had taken this Court through Section 87(1)(h) of the Act and would maintain that in the light of the said provision the question involved is to be decided by the competent authority i.e., the Deputy Commissioner of Endowments and hence, the order made by the Assistant Commissioner of Endowments is wholly without jurisdiction, consequently, the order made even by the Regional Joint Commissioner Endowments purporting to exercise suo moto power also is invalid. When that being so, though a representation had been made by the fourth respondent in the light of the clear language of Section 93 of the Act, it has to be taken that the first respondent exercised suo moto powers and granted an order of stay, which is perfectly within the purview and jurisdiction of the first respondent and hence, the impugned order cannot be found fault in any one. The learned Government Pleader for Endowments also would maintain that the writ petitioner is at liberty to move appropriate application before the first respondent and get the order vacated, and if the writ petitioner is aggrieved of the same, this remedy by way of writ petition is misconceived in the facts and circumstances of the case. 5. Sri Sridhar Reddy, the learned counsel representing respondent No.4 had taken this Court through the historical background of the institution and would maintain that respondent No.4 being a person interested is entitled to maintain the revision. The learned counsel also would submit that the revision as such cannot be straight away maintained before respondent No.1 under Section 93 of the Act as against the order made in exercise of suo moto power by the Regional Commissioner Endowments, cannot be sustained in the light of Section 3(5) and Section 9 of the Act. Apart from this aspect of the matter, the learned counsel would contend that when the enquiry made by the Assistant Commissioner of Endowments itself is without jurisdiction, it cannot lie in the mouth of the writ petitioner to contend that the revision before the first respondent is incompetent. Hence, the learned counsel would maintain that the writ petition is liable to be dismissed. The learned counsel also placed reliance on certain decisions to substantiate his submissions. 6. Heard the learned counsel. Perused the records. Before taking up the respective stands taken by the parties, it may be appropriate to have a glance as such at the order impugned in the writ petition and the same reads as hereunder: “GOVERNMENT OF ANDHRA PRADESH REVENUE (ENDTS.IV) DEPARTMENT Memo.No.36560/Endts.IV(i)/2007-1, Dated:12.07.2007 Sub:Revision Petition-Nellore District-filed by K. Bala Veeraiah, s/o. Kotaiah, Nellore District-Against the orders of R.J.C.Endowments, Multi Zone-II, Tirupathi Chittoor Distict- Called for records-Reg. Ref: R.P. filed by Sri K. Bala Veeraia, s/o. K. Kotaiah, Nellore District, dt. Nil, addressed to Hon’ble M (Endowments). A copy of the reference cited, together with its enclosures is sent herewith to the Commissioner Endowments, Hyderabad and he is requested to furnish detailed report along with relevant records to Government, immediately. 2. Further Government hereby stayed orders passed by the Regional Joint Commissioner, Multi Zone-II Tirupathi, dated 09.05.2007 in R.P.No.10 of 007 until further orders. I.V.Subba Rao Prl. Secretary to Government. 7. It is averred in the affidavit filed in support of the writ petition that one Sri Vakati Sanjeevi Chetty was the founder of Sri Vakati Sanjeevi Chetty Educational Trust, known as Sarvodaya Educational College and P.G.Centre, Nellore. During his life time, Sri Vakati Sanjeevi Chetty executed a will on 15.08.1980 appointing Sri Chinni Chinni Subbarayudu as founder Trustee to the subject Trust, who took care of the development of the college and developed it. Sri C.C.Subbarayudu died on 29.11.2002 after rendering lot of service to the college. After demise of his father Sri C.C.Subbarayudu, the writ petitioner was appointed as Founder Trustee of the subject institution and the petitioner was authorised to act as a Founder Trustee of the Institution by the Trust. It is also stated that the writ petitioner made representation on 07.04.2004 to the respondent No.3 under whose jurisdiction the institution was functioning, prayed for a declaration that the writ petitioner as a member of founder trustee and to appoint him as Single Trustee under Section 15(3) of the Act. By proceedings, dated 13.05.2004, the respondent No.3, after conducting necessary enquiry and after verifying the Inspectors report and after being satisfied that the father of the writ petitioner late C.C.Subbarayudu was the Founder Trustee as per the will of Sri Vakati Sanjeevi Chetty, Founder of the subject institution, passed orders declaring the writ petitioner as the member of the founder trustee and appointed him under Section 15(3) of the Act as Single Trustee of the subject institution. Section 15 of the Act deals with appointment of Board Trustees and Section 15(3) specifies that in the case of any charitable or religious institution or endowment included in the list published under clause (c) of Section 6, the Assistant Commissioner having jurisdiction shall constitute a Board of Trustees consisting of five persons appointed by him: Provided that the Assistant Commissioner may either in the interest of the institution or endowment or any other sufficient cause or for reasons to be recorded in writing appoint a single trustee instead of a board of Trustees. The said order made by the Assistant Commissioner of Endowments Department reads as hereunder: “PROCEEDINGS OF THE ASSISTANT COMMISSIONER,ENDOWMENTS DEPARTMENT, NELLORE. Present: M.S.Ranga Rao. B.A., Assistant Commissioner. Rc.No.1408/2004 A1, dated 13.05.2004 Sub: Endowments Department-Declaration of Member of the Founter Trustee to “Sri Vakati Sanjeevi Setty Educational Trust” known as Sri Sarvodaya Educational College and P.G.Centre- Nellore Town and District-Orders-Issued. Ref:(1) Representation dt.17.04.2004 from Sri Chinni Subba Rao. (2) T/o Rc.No.A1/1408/04, dt.01.05.2004. (3) Rc.No.51/2004, dated 11.05.2004 from the Inspector, Endt. Department, Nellore. *** One Sri Chinni Subba Rao, s/o. Late Sri C.C.Subbarayulu Setty has filed an application in the reference 1st cited before the Assistant Commissioner, Endowments Department, Nellore for declaring him as Member the Founder Trustee to Sri Vakati Sanjeevi Setty Educational Trust known as Sri Sarvodaya Education College and P.G.Centre-Nellore town and Nellore District. The said application was sent to the Inspector, Endowments Department, Nellore in the reference 2nd cited for enquiring into the matter and submit his report. He enquired into the matter and submitted the report in the reference 3rd cited. The Inspector in his report has stated as follows: Sri Vakati Sanjeevi Setty was the founder of the subject institution. While he was alive he has executed a will dated 15.08.1980 through Notary. Nellore Distict appointed by Government of A.P. Sri Chinni Chinna Subbarayulu was appointed as Founder Trustee to the subject institution, after his death recognising his services and developments made to the subject institution to the stage of post graduation of the college. Sri C.C.Subbarayulu demised on 29.11.2002. During his tenure he made a lot of service to the college for its up lift and development at large. After close verification of Inspector’s report, the following order is passed Late C.C.Subbarayulu father of the present applicant was acted as Founder Trustee as per the Will executed by Late Sri Vakati Sanjeevaiah Setty and thereon Sri C.C.Subbarayulu was appointed as Founder Trustee of the subject institution. After his demise his son Sri Chinni Subba Rao was authorised to act as Founder Trustee of the institution. The Statute of Sri C.C.Subbarayulu was installed in the premises of the subject institution on 15.10.2003 in Memory of his services rendered to the institution. There is no record except the Will executed by Sri Vakati Sanjeevaiah Setty on 15.08.1980. In the best development of the institution and Will executed by late Sri Vakati Sanjeevaiah Setty which was certified by the Notary on 21.07.1997. In view of said postition, Sri Chinni Subba Rao, s/o.Late Sri Chinni Chinna Subbarayulu Setty is declared as Member of the Founder Trustee U/s.15(3) of the Act 30/87 and as per the A.P.Ordinance No.7/2002, dt. 24.08.2002 issued by the Government to the said institution. The Inspector Endowments Department, Nellore is authorised to administer the oath of office and secrecy to Sri Chinni Subba Rao and report. Sd/- Assistant Commissioner. It is stated by the writ petitioner that the writ petitioner has been functioning as such being authorised under the provisions of the Act. It is also averred in para 4 of the affidavit filed in support of the writ petition that suo moto revision was taken up by the respondent No.2, the Regional Joint Commissioner of Endowments Department, Multi Zone-II Tirupathi under Section 92 of the Act as against the orders of respondent No.3 dated 13.05.2004 in R.P.No.10/04 and the petitioner participated in the enquiry and brought to the notice of respondent No.2 that his late father Sri C.C.Subbarayudu was appointed as Founder Trustee by virtue of the Will dated 15.08.1980 by the Founder Sri Vakati Sanjeevi Chetty of the subject institution. Respondent no.2, who had conducted the enquiry had passed ex parte orders on 26.12.2005 setting all the respondents in R.P.No.10/2004 ex parte and also set aside the orders dated 13.05.2004 of respondent No.3. The petitioner filed an application to set aside the ex parte order dated 26.12.2005 and permit the petitioner to take part in the enquiry. Since the same was not considered, the petitioner filed W.P.No.14301 of 2006. The said writ petition was disposed of by this Court, by order dated 29.12.2006 as hereunder: “As the petitioner has filed an application dated 16.02.2006 seeking setting aside of the ex parte order, impugned herein, it would not be appropriate to this Court to go into the validity of the 2nd respondent’s order in R.P.No.10 of 2004. In the circumstances and on the view stated above, the writ petition is disposed of directing the 1st respondent to make appropriate administrative arrangements for appointing the Regional Joint Commissioner, Endowments Department, Multi Zone-II, Tirupati either by conferring appropriate power in an incharge officer, by posting or causing to be posted an officer as Regional joint Commissioner or alternatively the 1st respondent himself taking up the hearing of the application, as the power under Section 92 is the power of the Commissioner. The first respondent shall ensure that the application of the petitioner dated 16.02.2006 is disposed of expeditiously and preferably within a period of 30 days from the date of receipt of a copy of this order. The writ petition is disposed of at the stage of admission after hearing the learned Government Pleader for Endowment. In the circumstances no order as to costs. It is further stated that respondent No.2 conducted an enquiry and heard the petitioner in pursuance of the order referred to above and respondent No.2 after considering the material available on record having found that there is no dispute with respect to the claim of declaration of the founder family member for the subject institution upheld and confirmed the orders dated 13.05.2004 of respondent No.3, declaring the petitioner as Member of the Founder Trustee and appointed the petitioner as Single Trustee under Section 15(3) of the Act. It is also stated that respondent No.4, who was a non party to the proceedings referred to supra appears to have filed a representation before the Minister for Endowments, A.P., Hyderabad, which was treated as revision petition by the respondent No.1 and respondent No.1 stayed the orders of respondent No.2. The said orders of respondent No.1 are ex parte orders passed behind the back of the writ petitioner and without making him as a party in the said proceedings. It is also averred that the impugned order made by the first respondent is without jurisdiction and without affording opportunity to the writ petitioner and also is bad in law. It is also stated that under Section 87 of the Act the Deputy Commissioner has jurisdiction to inquire into and decide any dispute as to the question whether a person is a Founder or a Member of the family of the founder of an institution or endowment. The said power to decide a dispute if any is vested only with the Deputy Commissioner having jurisdiction. Against every decision of the Deputy Commissioner, an appeal lies to the District Court, under Section 88 of the Act. Respondent No.1 has no power and jurisdiction vested in it to entertain the alleged representation of respondent No.4 and stay the orders of respondent No.2 and 3. It is stated that respondent No.4 is no way concerned with the Trust or the subject institution nor he is a party to the proceedings before respondent Nos. 2 and 3. Respondent No.4 has purportedly acted with ulterior motive and approached the Minister. And as the consequence of the politically motivated action of respondent No.4, respondent No.1 without any power vested in it and without jurisdiction appears to have entertained the same as revision petition and passed impugned orders without any notice to the petitioner. It is further stated that a reading of the impugned proceedings show that, petitioner is not a party to the proceedings. Further it goes to show that the impugned orders are not even marked to the petitioner. Respondent No.4 with sinister motive has prevailed upon respondent No.1 to pass the impugned ex parte order. Further, impugned order does not even spell out any reasons whatsoever as to why respondent No.1 has stayed the orders of respondent No.2. It is stated that respondent No.4, who has nothing to do with the Trust or its affairs and who is not a party to the proceedings before respondent Nos.2 and 3 has obtained ex parte orders dated 12.07.2007 from respondent No.1 and has lodged a caveat before this Court which clearly shows that the whole exercise is malafide. It is also further averred that the father of the petitioner was appointed as a Founder Trustee in the year 1980 itself and his appointment as Founder Trustee was never disputed. Baseless allegations are now made by respondent No.4. Being his son the petitioner duly recognised as the member of Founder Trustee and therefore appointed as Trustee of the subject institution by the respondent No.3 under Section 15(3) of the Act. Respondent No.4 cannot question the same. He is neither the person aggrieved nor he is interested person in the affairs of the Trust. Respondent No.1 cannot entertain the alleged application of the 4th respondent which is not only arbitrary and illegal but also without jurisdiction. Further the alleged exercise of power by respondent No.1 is a colourable exercise of power for no justified reasons. It is also further stated that the petitioner is continuing as a Member of the Founder Trustee till today and as a Single Trustee of the institution and in such circumstances, being left with no other option, this writ petition has been filed praying for appropriate reliefs. 8. In the counter-affidavit filed by the first respondent specific stand had been taken that both the orders made by respondent No.3, the Assistant commissioner of Endowments and respondent No.2, the Regional Joint Commissioner, Endowments are illegal and without jurisdiction. The Regional Joint Commissioner can only exercise powers that are delegated to him by the Commissioner. There is no reference of the Commissioner confirming the decision of Assistant Commissioner or Regional Joint Commissioner in the petitioner’s affidavit though it is mandatory. The Assistant Commissioner or Deputy Commissioner or Commissioner or Government have been appointing the trustees and recognizing the founder trustee depending upon the classification of the institution under Section 6(1)(a) or (b) (c) up to 2002. It is also stated that under Section 87(1)(h) of the Act which was introduced by way of amendment Act 27 of 2002 which came into force from 23.12.2002, it is the Deputy Commissioner, who is competent to entertain an application and decide as to ‘whether a person is founder or a member from the family of founder of an institution of endowment’. The relevant portion of Section 87 reads as hereunder: (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) to (g) omitted as not relevant. (h) Whether a person is a founder or a member from the family of the founder of an Institution or Endowment. (2) The 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”. It is also further stated that this Court in (i) Inturi Venkayya and 3 others Vs Government of A.P & 4 others in W.P.No.26390 of 2003, on 24.12.2003 and (ii) Guru Prasad v. Commissioner of Endowments Department and 3 others, in W.P.No.25598 of 2003, on 9.12.2003, expressed the same view, so the Assistant Commissioner has no power to declare the petitioner as a member of family or the founder trustee. Though Joint Commissioner is a superior officer, he cannot usurp the functions of Deputy Commissioner. The order passed by the Deputy Commissioner under Section 87 is a quasi judicial order vide Teki Venkata Ratnam v. Deputy Commissioner of Endowments in AIR 2001 SC page No.2436. It has to be confirmed by the Commissioner under Section 87(2)(3) & (5). If any person is aggrieved by the orders of Deputy Commissioner under section 87 he may prefer an appeal to the District Judge under Section 88 of the Act. Further, the allegation that respondent No.4, who filed revision petition before the Government, is not a party to the enquiry conducted by the Assistant Commissioner and Joint Commissioner may be true . However as a citizen or as a person interested in proper running of the Trust, he is entitled to question the illegal orders passed by the Assistant Commissioner and Joint Commissioner. He is a person coming within the definition of “person having interest” within section 2(18) of the Act. Even otherwise the Government has power to call for the records suo moto, examine the same and pass orders under Section 93 of the Act. Section 2 of the Act deals definitions and Section 2 (18) of the Act defines ‘person having interest’ includes- (a) in the case of a math, a disciple of the math or a person of the religious persuasion to which the math belongs; (b) in the case of a charitable institution or endowment or a religious institution other than a math or a religious endowment a person who is entitled to attend at or is in the habit of attending the performance of service, charity or worship connected with the institution or endowment or who is entitled to partake or is in the habit of partaking in the benefit of any charity or the distribution of gifts thereat; (c) in the case of a specific endowment a person who is entitled to attend at or is in the habit of attending the performance of the service or charity or who is entitled to partake or is in the habit of partaking in the benefit of the charity: Section 93 of the Act dealing with power of Government to call for records and pass orders, reads as hereunder: “(1) The Government may either suo motu or on