*THE HON’BLE SRI JUSTICE GODA RAGHURAM AND * THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN + W.P.Nos.27776 OF 2005; 23870 OF 2007; 28173 OF 2008 & 12696 AND 14354 OF 2010 W.P.Nos.27776 OF 2005 % Dated 25-03-2011 # Yelamarthi Sarath Kumar …. Petitioner Vs. $ The State of A.P. rep. by its Principal Secretary to Government, Revenue (Endowments) Dept, Secretariat, Hyderabad and 4 others …. Respondents ! Counsel for the Petitioner: Sri P.S. Rajasekhar ^ Counsel for the Respondents: Sri T.Surya Satish, G.P. for Endowments Sri P.Yadagiri Rao Sri V.Venugopala Rao Sri B.Shiva Kmar <GIST: > HEAD NOTE: ? Cases referred 1) (2005) 5 SCC 598 2) (2003) 7 SCC 546 3) (2008) 12 SCC 541 4) (1987) 1 SCC 227 5) (1996) 3 SCC 52 6) (1982) 2 SCC 440 7) (2010) 10 SCC 320 8) (1998) 1 SCC 1 9) (2008) 3 SCC 542 10) (1996) 6 SCC 587 11) (2003) 4 SCC 305 12) AIR 1956 SC 35 13) AIR 1999 SC 1867 14) AIR 1989 SC 836 15) AIR 2001 SC 1832 16) (1998) 6 SCC 590 17) AIR 1968 SC 178 18) (1976) 1 SCC 226 19) (1975) 2 SCC 482 20) AIR 1967 SC 1074 21) (1961) 2 SCR 679 22) (1982) 1 SCC 159 23) AIR 1962 SC 1543 24) (1880) 5 AC 214 25) (1970) 2 SCC 355 26) AIR 1966 SC 1318 27) (1995) 1 SCC 189 28) AIR 1961 SC 1731 29) (1980) 1 SCC 340 30) AIR 1957 SC 510 31) (1994) 2 SCC 691 32) (2000) 7 SCC 425 33) 1999(4) ALT 668 (DB) 34) (1996) 2 SCC 498 35) (1976) 2 SCC 981 36) (1990) 4 SCC 594 37) (2007) 2 SCC 640 38) 1995 Suppl. (3) SCC 382 39) 1979 (3) SCC 489 40) 1996(6) SCC 530 41) AIR 2002 SC 1533 42) AIR 1996 SC 1175 43) (1995) 1 SCC 745 44) (2009) 15 SCC 705 45) (2007) 4 SCC 737 46) (2008) 3 ALT 754 47) AIR 1961 SC 82 48) (1985) 1 SCC 260 49) (1972) AC 1027 50) 1984) 2 SCC 436 51) AIR 1965 SC 1887 52) (2004)7 SCC 558 53) (1944 (2) All ER 293) 54) (1991) 4 SCC 139 55) (1990) 3 SCC 682 56) (2002) 4 SCC 234 57) (2004(5) SCC 568 58) (2002) 4 SCC 638 59) AIR 1988 SC 1681 60) AIR 1993 SC 2444 61) (1986) 1 SCC 133 62) (2000)5 SCC 630 63) (1974) 4 SCC 3 64) AIR 1977 SC 448 65) (2005)7 SCC 764 66) (2007) 8 SCC 418 67) (2008) 12 SCC 292 68) (2002) 4 SCC 160 69) (2010) 4 SCC 192 70) (2010) 9 SCC 437 71) 1993 Suppl.(2) SCC 734 72) 1995 Suppl (2) SCC 726 73) (1997) 4 SCC 388 74) (1998) 3 SCC 376 75) (2005) 8 SCC 423 76) (1992) 2 SCC 620 77) (1980) 2 SCC 191 78) (1995) 3 SCC 33 79) (2004) 2 SCC 783 80) (2003) 8 SCC 648 THE HON’BLE SRI JUSTICE GODA RAGHURAM AND THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN W.P.Nos.27776 OF 2005; 23870 OF 2007; 28173 OF 2008 & 12696 AND 14354 OF 2010 COMMON ORDER: (Per Hon’ble Sri Justice Ramesh Ranganathan) Repeated efforts of the Government notwithstanding, a board of trustees, as mandated by Section 15(1) of the A.P. Charitable and Hindu Religious Institutions and Endowments Act, 1987 (A.P. Act 30 of 1987), has not been constituted for the Sri Venkateswara Swamy Devasthanam, Dwaraka Tirumala for the past nearly twenty five years, and Sri S.V. Sudhakara Rao, and his family members (erstwhile “hereditary trustees”), continue to remain in sole control and management of the affairs of the temple, though the office of hereditary trustee stood abolished from 23.05.1987. 2. W.P. No.27776 of 2005 is filed by Sri Yerneni Sarath Kumar, a resident of Dorasanipadu village of Dwaraka Tirumala Mandal, West Godavari District, in public interest to declare the inaction of the State Government, in not constituting a non-hereditary trust board for the fourth respondent, (Sri Venkateswara Swamy Devastanam, Dwaraka Tirumala), in accordance with Section 15 of A.P. Act 30 of 1987, as arbitrary and illegal; and to direct the 1st respondent to forthwith constitute the non-hereditary trust board for the 4th respondent temple. 3. It is convenient, hereinafter, to refer to the parties in these writ petitions as they are arrayed in W.P. No.27776 of 2005. 4. Facts, in brief, are that the 4th respondent temple was established more than 400 years ago, and was managed by the Suraneni family of Mylavaram for several decades. After A.P. Act 30 of 1987 came into force the Commissioner, Endowments, vide proceedings dated 07.06.1989, recognized the 5th respondent, and other members of his family, as the hereditary trustees of the 4th respondent temple. The Assistant Commissioner, Endowments, vide proceedings dated 03.07.1996, recognised the 5th respondent and five others as members of the founder family. Sri S.V. Sudhakar Rao, (the fifth respondent herein), submitted a representation dated 21.08.2002 seeking exemption of the 4th respondent temple from the application of Section 15 of A.P. Act 30 of 1987. The 2nd respondent, by proceedings dated 25.11.2002, forwarded the request of the 5th respondent to the Government for appropriate orders. The Government, (1st respondent), vide memo dated 17.01.2003 rejected the proposal for exemption of the fourth respondent temple from the operation of Section 15 of A.P. Act 30 of 1987. The fifth respondent filed W.P. No.16283 of 2003 questioning the action of the 1st respondent in rejecting his representation, vide memo dated 17.01.2003, as illegal. The said Writ Petition was dismissed on 19.01.2004. W.A. No.2429 of 2005, filed thereagainst, was dismissed by order dated 22.10.2007 granting liberty to the 5th respondent to file a fresh Writ Petition on the same cause of action by incorporating additional facts, and taking additional grounds. Consequently W.P. No.23870 of 2007 was filed. 5. In the meanwhile, W.P. No.26236 of 2003 was filed to direct the respondents not to constitute a board of trustees for the 4th respondent temple. The said Writ Petition was dismissed by a Division bench of this Court by its order dated 08.01.2004. The 1st respondent had issued a notification earlier, in G.O.Ms. No.2291 dated 04.12.2003, inviting applications for constitution of the trust board. W.P. No.250 of 2004 was filed questioning the said notification. This Court passed an interim order on 07.01.2004 that the constitution of the trust board would be subject to further orders. Thereafter W.P. No.2517 of 2004 was filed seeking a direction to the 1st respondent not to consider the names of seven individuals who had applied for appointment as trustees pursuant to the notification dated 04.12.2003. This Writ Petition was also dismissed by order dated 11.02.2004. The Government issued memo dated 05.05.2005 for constitution of a non-hereditary trust board despite which no such board was constituted. 6. The Government issued another notification on 16.07.2007 against which W.P. No.19950 of 2007 was filed. The said Writ Petition was referred to a Division bench which, by its order dated 27.03.2008, held that no competent authority, including the Government, had the power to issue directions to any another authority to cause publication or issue notice, in regard to the acts to be done, for which they alone were competent. 7. The Government issued the notification, in G.O.Rt. No.2259 dated 17.12.2008, inviting applications from interested persons for constitution of a non-hereditary trust board for the fourth respondent temple. Forms I and II, as prescribed under the A.P. Charitable and Hindu Religious Institutions and Endowments Appointment of Trustees Rules, 1987, (hereinafter called the ‘Rules’), were appended to the said notification. W.P. No.28173 of 2008 was filed by the 5th respondent to declare the action of the State Government, in issuing the said notification, as arbitrary and illegal. This Court, by order dated 26.12.2008, directed that no final orders be passed constituting the trust board pursuant to the notification dated 17.12.2008. Thereafter, by order dated 29.12.2008, this Court extended until further orders its earlier interim order dated 26.12.2008. 8. The Government again issued a notification, in G.O.Rt. No.762 dated 24.5.2010, proposing to constitute a non-hereditary trust board for the 4th respondent temple, accompanied by memo dated 24.5.2010. W.P. No.12696 of 2010 was filed by the 5th respondent to declare both G.O.Rt. No.762 dated 24.05.2010, and the memo dated 24.05.2010, as arbitrary and illegal. This Court by its order dated 7.6.2010, while granting stay of impugned memo dated 24.5.2010 to the extent the Commissioner of Endowments was requested to take action for publication of the notification as envisaged under Rule 4 of the Rules, and also in any newspapers as envisaged under the proviso to Rule 4, observed that the said order would not preclude the Government, which was the competent authority, to cause publication of the notification as envisaged under Rule 4 of the Rules, and also in any newspaper as envisaged under the proviso to Rule 4 of the Rules. 9. Thereafter the Commissioner, vide memo dated 16.6.2010, communicated a copy of G.O.Rt. No.762 dated 24.5.2010 to the Executive Officer of the 4th respondent temple requesting him to take action as ordered by the Government, and affix the notice on the notice board of the temple and at other places as per Rules. W.P. No.14354 of 2010 was filed by the 5th respondent to declare the action of the Commissioner, Endowments in issuing proceedings dated 16.6.2010 as arbitrary and illegal. This Court, by order in W.P.M.P. No.18058 of 2010 dated 23.06.2010, granted interim stay. 10. Oral submissions were put forth, and written arguments submitted by Sri P. Yadgir Rao, Sri P.S. Rajasekhar and the Learned Government Pleader for Endowments. As it is convenient, we shall examine the contentions urged by Counsel on either side under different heads. PRELIMINARY OBJECTIONS: 11. Sri P. Yadgir Rao, Learned Counsel for the 5th respondent, would submit that, since the sole petitioner in W.P. No.27776 of 2005 died during the pendency of the writ petition, it is liable to be dismissed as having abated. 12. W.P. No.27776 of 2005 was filed in public interest seeking constitution of a non-hereditary trust board for the 4th respondent temple in accordance with Section 15 of A.P. Act 30 of 1987. The grievance espoused therein is to the continuance of the 5th respondent as a de-facto hereditary trustee, and the inaction of the Government in not constituting a board of nine trustees to manage the affairs of the 4th respondent temple whose annual income, even by the year 2005- 06, had exceeded Rs.17.86 Crores. Ensuring compliance with the provisions of Section 15 of A.P. Act 30 of 1987, which mandates constitution of a board of nine trustees to manage and control the affairs of religious institutions or endowments whose annual income exceeds Rs.1.00 crore, is in larger public interest. This writ petition is being listed from its inception, as a pubic interest litigation, before a Division Bench. Public interest litigation procedures may be adopted even in a case where initially the writ petition was filed as a private interest litigation, (Ashok Lanka v. Rishi Dixit[1]; Guruvayoor Devaswom Managing Committee v. C.K. Rajan[2]; and Indian Bank v. Godhara Nagrik Coop. Credit Society Ltd.,[3]), and the Court in furtherance of larger public interest may consider it necessary to enquire into the state of affairs of the subject of the litigation in the interest of justice. (Shivajirao Nilangekar Patil v. Dr Mahesh Madhav Gosavi[4]; Guruvayoor Devaswom2). If the Court finds involvement of a public law element therein, concerning a large number of people, it may proceed on the basis as if it is a public interest litigation. (Godhara Nagrik Coop. Credit Society Ltd.,3). Under Rule 7-A(d) of the Writ Proceedings Rules, 1977, as amended and notified in the A.P. Gazette on 10.6.2010, it is open to the Court to entertain a writ petition filed in public interest, without reference to the interest of the petitioner in the writ petition, if the subject matter of the complaint is of such a nature as to warrant adjudication of the case in larger public interest. As we are satisfied that the writ petition involves a public law element in ensuring exercise of control and management of the 4th respondent temple by a board of nine trustees, and as this concerns several lakh devotees of the temple, we see no reason to dismiss the said writ petition merely for the reason that the sole petitioner is no more. 13. Sri P. Yadgir Rao, Learned Counsel for the 5th respondent, would submit that the writ petitions in this batch, other than W.P. No.27776 of 2005, ought to have been heard by a learned Single Judge of this Court, and listing these matters before a Division Bench would deny the 5th respondent his right of appeal against the order of the Learned Single Judge. Unlike an appeal provided under a statute, which confers a right on the person aggrieved, it is the internal working of the High Court while splits it into different ‘benches’ and yet the court remains one. A letters patent appeal, as permitted under the Letters Patent, is normally an intra-court appeal whereunder the Letters Patent bench, sitting as a court of correction, corrects its own orders in exercise of the same jurisdiction as was vested in the Single bench. (Baddula Lakshmaiah v. Sri Anjaneya Swami Temple[5]). 14. Among the other four writ petitions is W.P. No.28173 of 2008 which, by order of the Hon’ble Chief Justice dated 19.12.2009, was directed to be listed before this Division bench. The Chief Justice is the master of the roster. He has full power, authority and jurisdiction in the matter of allocation of business of the High Court which inheres in him in the very nature of things. (State of Maharashtra v. Narayan Shamrao Puranik[6]). The Chief Justice enjoys a special status, and has jurisdiction to decide which case will be heard by which Bench. (State of U.P. v. Neeraj Chaubey[7]). The Chief Justice of the High Court alone has the right and power to decide how benches of the High Court are to be constituted: which Judge is to sit alone and which cases he can and is required to hear as also as which Judges shall constitute a Division Bench and what work those benches shall do. Judges of the High Court can sit alone or in Division Benches and do such work as may be allotted to them by an order of, or in accordance with the directions of, the Chief Justice. In the matter of constitution of benches, and making of the roster, he alone is vested with the necessary powers. (State of Rajasthan v. Prakash Chand[8]; Divine Retreat Centre v. State of Kerala[9]; Inder Mani v. Matheshwari Prasad[10]). 15. W.P. No.27776 of 2005, which is filed seeking constitution of a non-hereditary trust board to the 4th respondent temple, is a public interest litigation and can be heard only by a Division bench and not by a single judge. The other writ petitions, (wherein the repeated efforts of the Government to constitute a trust board, and its order rejecting the 5th respondent’s request that the 4th respondent temple be exempted from the operation of Section 15(1) of the Act, are under challenge), are integrally connected with W.P. No.27776 of 2005. An effective hearing of W.P. No.27776 of 2005 would be possible only if it is heard along with the other writ petitions. We see no reason, therefore, to accede to the petitioner’s request for listing all the writ petitions in this batch, other than W.P. No.27776 of 2005, before a Single Judge as no effective order can be passed in the public interest litigation without the other writ petitions being heard with it. Hearing of these writ petitions together would also avoid multiplicity of proceedings. The objection of the 5th respondent, to the listing and hearing of these writ petitions by a Division Bench, therefore, necessitates rejection. REJECTION OF THE 5t h RESPONDENT’S REQUEST TO EXEMPT THE FOURTH RESPONDENT TEMPLE FROM THE OPERATION OF SECTION 15(1) OF THE ACT: (W.P. No.23870 of 2007 and W.P.No.12696 of 2010): 16. The notifications issued by the Government, inviting applications for constitution of a board of trustees for the 4th respondent temple, is subjected to challenge by the 5th respondent, among other grounds, that they were issued when his application under Section 154(c) of the Act, seeking exemption of the 4th respondent temple from the operation of Section 15(1) of the Act, was pending consideration by the Government. The fifth respondent’s request for exemption was rejected by the Government by its orders dated 17.01.2003 and 24.05.2010. The order of rejection dated 17.01.2003 is under challenge in W.P. No.23870 of 2007. The memo of rejection dated 24.05.2010, whereby the fifth respondent’s application for grant of exemption to the fourth respondent temple from the operation of Sections 15 and 17 of the Act was rejected on the ground that entrusting the management of the affairs of an institution having crores of rupees as income in the hands of a single trustee was not desirable, and there was no possibility to include prominent donors as well as prominent trustees as envisaged in the Act, is under challenge in W.P. No.12696 of 2010. 17. Sri P. Yadgir Rao, Learned Counsel for the fifth respondent, would contend that the order of the Government dated 17.01.2003 is not a reasoned order; rejection of the application, without rhyme or reason, is arbitrary; the Government had not noticed the criteria laid down in memo dated 03.03.2003; one of the criteria for granting exemption was that the institution or endowment was well managed by the founder; that the subject institution is well managed by the fifth respondent is evident from the report of the Commissioner dated 25.11.2002 whereby he had recommended grant of exemption; the Government had failed to consider the recommendations of the Commissioner, and has not assigned any reasons for rejecting the proposal of the Commissioner; and the action of the Government, in rejecting the application under Section 154(c) of the Act, is arbitrary, illegal and in violation of principles of natural justice, as the petitioner was not given an opportunity of being heard. 18. Before its amendment by A.P. Act 33 of 2007, with effect from 3.1.2008, Explanation-I to Section 17(1) of A.P. Act 30 of 1987 defined “founder” to mean a person who had founded the institution or endowment, and was recognized as such by the authority competent to appoint trustees under Section 15 of the Act. After its amendment by Act 33 of 2007, Explanation I to Section 17(1) defines “founder” to mean (a) in respect of an institution or endowment existing at the commencement of A.P. Act 30 of 1987, the person who was recognized as the hereditary trustee under the A.P. Charitable and Hindu Religious Institutions & Endowments Act, 1966, (A.P. Act 17 of 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. We shall, therefore, proceed on the premise that the 5th respondent is a “founder” under Explanation I to Section 17 (1) of the Act. 19. The 5th respondent’s applications dated 27.08.2002 and 18.03.2007, under Section 154(c) of the Act, was to exempt the 4th respondent temple from the operation of Section 15 of A.P. Act 30 of 1987 on the ground that it is being well managed by him as its “founder”. What the 5th respondent, in effect, seeks is that he be permitted to control and manage the affairs of the 4th respondent temple without a board of trustees being constituted by the Government, under Section 15(1), to manage its affairs. In this context it is useful to read Section 15(1)(a) of Act 17 of 1966 in juxta-position with Section 15(1) of the Act 30 of 1987: ACT 17 OF 1966 ACT 30 OF 1987 Section 15(1)(a): Appointment of Board of Trustees and the term of office:- (1) In respect of a charitable or religious institution or endowment included in the list published under clause (a) of section 6- (a) whose annual income exceeds ruppes two lakhs, the Government may, in case where there is a hereditary trustee, and shall in any other case, constitute a Board of Trustees consisting of not less than seven and not more than eleven persons appointed by them. Section 15 (1): Appointment of Board of Trustees: In respect of a Charitable or Religious Institution or Endowment- (1) Included in the list published under clause (a) of Section 6, where the income for the Institution exceeds Rupees one crore per annum, the Government shall constitute a Board of Trustees consisting of nine persons appointed by them; 20. While Section 15(1)(a) of A.P. Act 17 of 1966 conferred discretion on the Government not to constitute a board of trustees in cases where there was a hereditary trustee, the Government was mandated to constitute a board of trustees in case there was no hereditary trustee. While the first limb of Section 15(1)(a) of A.P. Act 17 of 1966 used the word “may”, the second limb used the word “shall”. The general rule is that when two different words are used in the same provision, these different words should be construed as carrying different meanings. (Kailash Nath Agarwal v. Pradeshiya Industrial and Investment Corporation of U.P. Ltd[11]; The Member, Board of Revenue v. Arthur Paul Benthall[12]; M/s. B.R. Enterprises v. State of U.P[13]). When the situation has been differently expressed, the Legislature must be taken to have intended to express a different intention. (Commissioner of Income-tax, New Delhi v. M/s. East West Import & Export (P) Ltd, Jaipur[14]; Oriental Insurance Co. Ltd. v. Hansrajbhai V. Kodala[15]). Employment of the two monosyllables “may” and “shall” in the same provision must have two different imports. (Mahaluxmi Rice Mills v. State of U.P.,[16]). The use of the word ‘may’ in the first limb, and of the word ‘shall’ in the second limb of Section 15(1))a) of A.P. Act 17 of 1966, establishes the difference that, while the first limb gave a discretionary power, the second limb was mandatory. (Jamatraj Kewalji Govani v. State of Maharashtra[17]; T.R. Sharma v. Prithvi Singh[18]). The term ‘shall’, as used in the second limb of Section 15(1)(a) of A.P. Act 17 of 1966, in its ordinary significance is required to be interpreted as being obligatory or mandatory. (Govindlal Chhaganlal Patel v. Agricultural Produce Market Committee[19]; Khub Chand v. State of Rajasthan[20]; State of U.P. v. Babu Ram Upadhya[21]). Section 16 of A.P. Act 30 of 1987 abolished the right to be appointed as a hereditary trustee. As a result the first limb of Section 15(1) of A.P. Act 17 of 1966, (which conferred discretion on the government not to appoint a board of trustees where there was a hereditary trustee), does not find mention in Section 15(1) of A.P. Act 30 of 1987. Like the second limb of Section 15(1)(a) of A.P. Act 17 of 1966, Section 15(1) of A.P. Act 30 of 1987 also uses the word “shall”. Section 15(1) of A.P. Act 30 of 1987 must, therefore, be construed as mandatory, and the Government as being obligated to appoint a board of nine trustees to exercise control and manage the affairs of the fourth respondent temple. 21. While A.P. Act 17 of 1966 continued the right of a hereditary trustee to control and manage the affairs of a religious institution or endowment, Section 16 of A.P. Act 30 of 1987 abolished the said right on the commencement of the Act on 23.5.1987. In view of Section 16 of A.P. Act 30 of 1987 the 5th respondent cannot claim, as of right, that he should, in effect, continue to hold the office of a hereditary trustee, albeit under the guise of being a “founder”. As he has been recognized as a “founder” his right, if any, is only to be