* THE HON’BLE Ms. JUSTICE G. ROHINI AND THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT APPEAL No.2127 OF 2003 DATED: 29.12.2011 % 29.12.2011 Between # Kothalanka Chandra Mouli … Appellant $ The Government of Andhra Pradesh, rep. by its Special Chief Secretary to Government, Revenue(Endowments) Department, A.P. Secretariat, Hyderabad., and 3 others. ...Respondents ! COUNSEL FOR APPELLANT: Sri M.R.K.Chowdary ^ COUNSEL FOR RESPONDENT No.1 to 3: G.P. for Endowments. ^ COUNSEL FOR RESPONDENT No.4 : Sri M.Vidyasar < Gist: > Head Note: ? CITATIONS: 1. AIR 1996 SC 1765 THE HON’BLE Ms. JUSTICE G. ROHINI AND THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT APPEAL No.2127 OF 2003 DATED: 29.12.2011 Between: Kothalanka Chandra Mouli … Appellant And 1. The Government of Andhra Pradesh, rep. by its Special Chief Secretary to Government, Revenue(Endowments) Department, A.P. Secretariat, Hyderabad., and 3 others. … Respondents THE HON’BLE Ms. JUSTICE G. ROHINI AND THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT APPEAL No.2127 OF 2003 JUDGMENT: (Per G. Rohini, J) This Writ Appeal is preferred against the order of the learned Single Judge dated 11.09.2003 in W.P.No.435 of 2002. The appellant herein is the respondent No.4 in the writ petition. The writ petitioner in whose favour the writ petition was decided is the respondent No.4 in this Appeal. For the sake of convenience, the parties shall hereinafter be referred to as they were arrayed in the writ petition. Facts in brief: The writ petitioner / respondent No.4 herein is a member of the family of hereditary archaka of Sri Agastheswara Swami Temple (hereinafter referred to as ‘the temple’) situated at Ramachandrapuram, East Godavari District. The respondent No.4 / appellant herein is the son of one Yerraiah who was appointed long back in the year 1947 as a deputy of the family of the hereditary archaka for the purpose of rendering archakatvam in the said temple. Alleging that Yerraiah resisted to hand over the archakatvam in spite of the repeated requests, one of the family members of the hereditary archaka of the temple filed O.S.No.32 of 1959 in the Court of the District Munsif, Ramachandrapuram seeking a declaration of their rights as hereditary archakas and for delivery of possession of temple together with jewellery and their articles after ejecting Yerraiah. The said suit was decreed by judgment dated 31.08.1959 declaring that Yerraiah was only a deputy of the hereditary archaka and that he was not appointed directly by the hereditary trustee. A decree for delivery of possession of the temple and articles therein was also granted. However Yerraiah continued to render Archakatvam even after the said decree dated 31.08.1959 on the basis of an arrangement said to have been effected between the parties. Subsequently the family members of the hereditary archaka, including the writ petitioner filed O.S.No.469 of 1982 in the Court of the Principal District Munsif, Ramachandrapuram seeking a declaration that they were hereditary archakas of the temple and that Yerraiah was only a deputy. They also sought a mandatory injunction directing delivery of possession of the suit temples to enable them to perform archakatvam. The hereditary trustee of the temple as well as Yerraiah were arrayed as defendants to the said suit. By judgement dated 31.12.1992, O.S.No.469 of 1982 was decreed in part to the extent of relief of declaration. However the relief of mandatory injunction for delivery of possession of the suit schedule temples was rejected. Both the parties preferred appeals being A.S.No.9 of 1993 and A.S.No.12 of 1993 in the Court of the Subordinate Judge, Ramachandrapuram, and they were disposed of by common judgment dated 01.08.1996. During the pendency of O.S.No.469 of 1982, Yerraiah tendered resignation on 15.09.1984 and on the same day by proceedings dated 15.09.1984 the respondent No.4 who is the son of Yerraiah was appointed as archaka by the hereditary trustee of the temple. Initially the appointment was for a period of one year and it was subsequently confirmed by order dated 12.09.1985. Thus the respondent No.4 continued to render archakatvam in the temple. After the disposal of A.S.Nos.9 & 12 of 1993 by judgment dated 1.8.1996, the writ petitioner made a representation dated 9.10.1996 requesting the Assistant Commissioner of Endowments, Rajahmundry to direct the Executive Officer of the temple to terminate the services of the respondent No.4 so as enable him to render archakatvam in the temple. Having accepted the writ petitioner’s request, the Assistant Commissioner of Endowments, by order dated 27.08.1997 directed the Executive Officer to allow the writ petitioner to function as archaka of the temple. The said order was challenged by the respondent No.4 by filing W.P.No.2075 of 1998. By order dated 30.03.1998 this Court allowed the said writ petition and directed the Assistant Commissioner of Endowments to reconsider the matter and pass appropriate orders afresh. Pursuant thereto, the Assistant Commissioner of Endowments passed a fresh order dated 12.2.1999 holding that by virtue of the orders of the Hereditary Trustee, dated 15.09.1984 and 12.09.1985 the respondent No.4 alone was entitled to continue. Thus the writ petitioner’s request to allow him to function as archaka was rejected. Against the said order, dated 12.2.1999 the writ petitioner preferred Revision Petition No.21 of 1999 before the Regional Joint Commissioner of Endowments, Multizone-I, Kakinada under Section 92 of The A.P. Charitable and Hindu Religious Institutions and Endowments Act, 1987 (hereinafter referred to as ‘Act 30 of 1987’). The said Revision Petition was allowed by order dated 5.5.2001 holding that the writ petitioner was entitled to render archakatvam in view of the declaration granted by the Appellate Court in A.S.No.12 of 1993. Aggrieved by the same, the 4th respondent filed a Revision under Section 93 of the Act 30 of 1987 before the Government of A.P. The said Revision Petition was disposed of by order dated 13.09.2002 upholding the order passed by the Assistant Commissioner of Endowments, dated 12.02.1999 and setting aside the order of the Regional Joint Commissioner, dated 5.5.2001. Challenging the said order, the writ petitioner filed W.P.No.435 of 2003. By order under appeal the said writ petition was allowed with costs by the learned single Judge. Hence the present Writ Appeal by the respondent No.4. We have heard Sri M.R.K. Chowdary, the learned Senior Counsel appearing for the appellant / respondent No.4 in the writ petition; Sri M. Vidyasagar, the learned counsel appearing for the respondent No.4 herein/writ petitioner and the learned Government Pleader for Endowments appearing for the respondents 1 to 3. As could be seen, the contention of the writ petitioner before the learned Single Judge was that the order of the Assistant Commissioner of Endowments (respondent No.3) holding that the respondent No.4 alone was entitled to function as archaka was erroneous and contrary to the findings recorded in O.S.No.469 of 1982 and A.S.No.12 of 1993. It was also contended that the respondent No.1 (the State Government-Revisional Authority) committed a grave error in setting aside the well considered order passed by the respondent No.2 (Regional Joint Commissioner of Endowments) and restoring the erroneous order of the Assistant Commissioner of Endowments. The further contention was that the respondent No.4 whose appointment as archaka by the hereditary trustee itself was illegal and who had prevented the family of hereditary archaka from rendering service by resorting to various objectionable means and by playing fraud on the Courts ought not to have been allowed to continue under any circumstances. Having accepted the said contentions, the learned Single Judge held that the judgments in O.S.No.469 of 1982 and A.S.Nos. 9 and 12 of 1993 constituted the basis for the claims and rights of the writ petitioner and that the statutory authorities are bound by the findings recorded therein. While relying upon the findings recorded in O.S.No.469 of 1982, particularly the fact that against the judgment in the said suit, Yerraiah himself preferred the appeal i.e., A.S.No.9 of 1993 and that the respondent No.4 who claims to have been appointed as archaka during the pendency of the suit on 15.09.1984 did not choose to come on record, the learned Single Judge disbelieved the appointment of respondent No.4 on 15.09.1984. Thus, it was held that the order of appointment dated 15.09.1984 was fabricated or brought into existence to nullify the rights of the writ petitioner and his agnates under the decree in O.S.No.469 of 1982. Though the view expressed by the respondent No.3 as upheld by respondent No.1 that who ever was functioning as archaka as on the date of coming into force of Act 30 of 1987 was accepted, the learned Single Judge opined that such functioning should be lawful and that the benefit of such provision was not available to interlopers or those who did not have a valid right. Thus, while observing that conferring the benefit on the 4th respondent would amount to putting a premium on the fraud played by him and his father on the family of the writ petitioner as well as the temple and the Courts from time to time, the order of the 1st respondent was set aside and the writ petition was allowed and the respondent No.3 was directed to ensure that the writ petitioner is installed as archaka of the temple forthwith. Contentions: Sri M.R.K. Chowdary, the learned Senior Counsel appearing for the appellant (respondent No.4 in the writ petition), while pointing out that under Section 34 of the Act 30 of 1987 (new Act) the rights of hereditary archakatvam stood abolished and Section 35 (3) provided protection for the holder of office to continue as office-holder, contended that in the light of the specific provisions under Act 30 of 1987 the writ petitioner cannot claim any right against the office of archaka and the respondent No.4 who is admittedly holding office as on the date of the commencement of Act 30 of 1987 alone is entitled to continue. On the other hand, Sri M. Vidyasagar, the learned counsel appearing for the respondent No.4 herein/writ petitioner, contended that the subject-matter of O.S.No.469 of 1982 did not fall within the scope of Section 77 of the Act 17 of 1966 and therefore as rightly held by the learned Single Judge the findings recorded by the trial Court as well as the Appellate Court are binding and the Assistant Commissioner of Endowments and the Government of A.P. ought not to have ignored the hereditary rights of the petitioner’s family. It is further contended that the appointment of the respondent No.4 as archaka itself was illegal being contrary to Section 31 of Act 17 of 1966 and therefore he is not entitled to the benefit under Section 35(3) of the Act 30 of 1987. We have also heard the learned Government Pleader for Endowments appearing for the respondents 1 to 3 and perused the original record placed before this Court. Legal Position: The A.P. Charitable and Hindu Religious Institutions & Endowments Act, 1987 (Act 30 of 1987) has come into force w.e.f. 28.05.1987. Prior to that the A.P. Charitable and Hindu Religious Institutions and Endowments Act 1966 (Act 17 of 1966) was in force under which archakas, Mirasidars and other office holders of temples were holding hereditary rights. By virtue of sub-section (1) of Section 34 of Act 30 of 1987 the hereditary rights of a person holding any office of an archaka or poojari or any other office or service or post by whatever name it is called in any religious institution or endowment stood abolished on the commencement of the Act 30 of 1987. However notwithstanding the abolition of hereditary rights, sub-section (2) of Section 34 enabled every such officeholder holding office on the date of commencement of Act 30 of 1987 to continue to hold such office or post, on payment of emoluments and subject to conditions of service referred to in Section 35 (3) and (4). It is relevant to note that as per sub-section (3) of Section 35 of Act 30 of 1987 the protection to continue as office holder is available to every office holder whether hereditary or not, holding office as such on the date of commencement of Act 30 of 1987 on payment of such emoluments prescribed by rules made under the Act 30 of 1987. The Constitutional validity of Sections 34 and 35 of the Act 30 of 1987 was upheld by the Apex Court in A.S. NARAYANA DEEKSHITULU v. STATE OF A.P. AND OTHERS[1] holding that abolition of the hereditary right to appointment as archaka is not violative of either Article 25 (1) or 26 (b) of the Constitution of India. The relevant provisions under Act 30 of 1987 may be reproduced hereunder for ready reference: 34. Abolition of hereditary rights in Mirasidars, Archakas and other office holders and servants:- (1) (a) Notwithstanding anything in any compromise or agreement entered into or scheme framed or sanad or grant made or judgment, decree or order passed by any Court, Tribunal or other authorities prior to the commencement of this Act and in force on such commencement, all rights, whether, hereditary, contractual or otherwise of a person holding any office of the Peddajeeyangar, Chinna Jeeyangar, a Mirasidar or an Archaka or Pujari or any other office or service or post by whatever name it is called in any religious institution or endowment shall on the commencement of this Act stand abolished. (b) Any usage or practice relating to the succession to any office or service or post mentioned in clause (a) shall be void; (c) All rights and emoluments of any nature in cash or kind or both accrued to and appertaining to any office or service or post mentioned in clause (a) and subsisting on the date of commencement of this Act shall on such commencement stand extinguished. (2) Every office holder and servant mentioned in clause (a) of sub-section (1) holding office as such on the date of commencement of this Act shall, notwithstanding the abolition of the hereditary rights, continue to hold such office or post on payment of only such emoluments and subject to such conditions of service referred to in sub- sections (3) and (4) of Section 35. (3) Notwithstanding anything contained in sub-sections (1) and (2) of this section, the qualified members of those Archaka families which were continuing in archakatvam service under the provisions of the repealed the Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act, 1966 and recognised as such by the competent authority shall continue to have the right to archakatvam without having any right to emoluments such families used to receive earlier under Act 17 of 1966. However they shall receive emoluments in accordance with the scheme under Section 144. (Sub-section (3) has been added by Act No.33 of 2007 w.e.f. 3.1.2008) 35. Appointment of office holders and servants, etc:- (1) Every vacancy in the approved cadre strength whether permanent or temporary, amongst the office holders or servants of a charitable or religious institution or endowment shall be filed by the Trustee with the prior permission of the competent authority. Provided that in the case of a charitable or religious institution or endowment whose annual income exceeds rupees ten lakhs the Executive Officers, shall appoint the office holders and servants thereof with the prior permission of the competent authority: Provided further that in the case of appointment of religious office holders such appointment shall be made keeping in view the Agamas of the respective institutions and preference shall be given to those who are well versed with the Agama, custom and usage of the respective institution. (2) No person shall be considered for appointment to any vacancy under sub-section (1) on the ground merely, that he is entitled for such appointment according to- (i) any scheme framed, agreement entered or judgment, decree or order passed by any court, tribunal or other authority prior to the commencement of this Act; (ii) any custom or usage; or (iii) the principle that he is next in the line of succession to the last holder of office. (3) Every Office holder or servant including Pedda Jeeyangar, Chinna Jeeyangar and Mirasidar, Archaka and Pujari whether hereditary or not holding office as such on the date of commencement of this Act, shall continue as such office holder or servant and notwithstanding any scheme, judgment, decree or order of a Court, Tribunal or other authority or any agreement or custom or usage relating to the payment of any perquisites, emoluments or remuneration, either in cash or kind or both, before the commencement of this Act, be paid only such emoluments as may be prescribed. Provided that it shall be lawful for the Government to direct such office holders and servants as they may consider necessary to acquire such qualifications and to undergo training in such manner, for such period and on such terms as may be prescribed. (4) Fixation of cadre strength, the qualifications, method of recruitment, pay and allowances, discipline and conduct and other conditions of service for the office holders and servants of the charitable institutions and Endowments shall be such as may be prescribed. Coming to the case on hand, the writ petitioner claims to be a member of the family of the hereditary archaka of the temple. O.S.No.469 of 1982 filed by him for a declaration to that effect was decreed by judgment dated 31.12.1992. It is to be noticed that by the date of filing O.S.No.469 of 1982 the repealed Act 17 of 1966 was in force. Under the said Act, though Section 77 empowered the Deputy Commissioner of Endowments to enquire into and decide the disputes specified therein which included the question whether any officeholder or servant is holding his office or service hereditarily, there was no express provision ousting the jurisdiction of the Civil Courts to adjudicate upon the matters within the purview of the said Act. Moreover, as rightly observed by the learned Single Judge since Yerraiah himself admitted that he was only a deputy, there was never any dispute between the parties with regard to the hereditary rights held by the family of the writ petitioner. Apparently, the dispute arose only when Yerraiah refused to hand over the archakatvam to the family members of hereditary archaka. Therefore, we agree with the finding of the learned Single Judge that the subject-matter of O.S.No.469 of 1982 did not fall within the scope and ambit of Section 77 (1) of Act 17 of 1966. However the question that requires consideration is whether the declaration so granted by the Civil Court in favour of the writ petitioner is enforceable after the enactment of Act 30 of 1987. Admittedly the hereditary archakas themselves appointed Yerraiah, as a deputy to render service in the temple and that from 1947 onwards the family members of the hereditary archaka are not rendering archakatvam. Alleging that Yerraiah resisted to hand over archakatvam and possession of the temples in spite of the demands made by the writ petitioner and his family members, they filed O.S.No.469 of 1982. Thus even according to them, Yerraiah was rendering archakatvam by the date of filing of the suit. The respondent No.4 who is none other than the son of Yerraiah, claims that his father Yerraiah tendered resignation and that the same was accepted by the hereditary trustee of the temple on 15.09.1984 and on the same day he was appointed as archaka and since then he has been performing archakatvam. It is true that the writ petitioner alleges that the appointment of the respondent No.4 is illegal and invalid being contrary to Section 31 of Act 17 of 1966. However the said appointment was not questioned at any point of time and the respondent No.4 was allowed to continue to render archakatvam in the temple and he was holding the office of archaka on the commencement of Act 30 of 1987. In the light of the above noticed admitted facts, we shall now proceed to consider whether the writ petitioner’s claim that in pursuance of the decree in O.S.No.469 of 1982 and A.S.Nos.9 & 12 of 1993, the services of the respondent No.4 as archaka should be terminated and that he should be allowed to render archakatvam in the temple is sustainable under law. Conclusion :- At the outset, it is to be noticed that in view of Section 34 (1) of the Act 30 of 1987, the hereditary rights of archakatvam held by the family of the writ petitioner stood abolished on commencement of Act 30 of 1987 w.e.f. 28.05.1987. It is true that by virtue of Section 34 (2) of the Act 30 of 1987 the person holding office of archaka as on 28.05.1987 notwithstanding the abolition of hereditary rights is entitled to hold the said office of archaka on payment of emoluments and subject to conditions of service referred to in Section 35 (3) & (4) of Act 30 of 1987. However the petitioner is not entitled to the said protection since he was not holding the office of archaka as on 28.05.1987. It may be pointed out that the abolition of hereditary rights under sub-section (1) of Section 34 shall be notwithstanding anything in any compromise or agreement entered into or judgment, decree or order passed by any Court, Tribunal or other authorities. Therefore the decrees of the Civil Court passed in favour of the writ petitioner have become unenforceable by virtue of the specific provision contained in sub-section (1) of Section 34 of Act 30 of 1987. In fact, the effect of Section 34 and Section 35 of Act 30 of 1987 which came into force during the pendency of O.S.No.469 of 1982 was taken into consideration by the Civil Court. Having taken note of the fact that by virtue of Section 34 (1) of Act 30 of 1987 the hereditary rights stood abolished, O.S.No.469 of 1982 was decreed in part declaring that the plaintiffs were the hereditary archakas of the suit temples and that Yerraiah was their deputy till Act 30 of 1987 came into force w.e.f. 28.05.1987. The rest of the suit claim for delivery of possession of the suit temples together with movables after ejecting Yerraiah was dismissed. Against the said judgment dated 31.12.1992 in O.S.No.469 of 1982, both the parties preferred appeals being A.S.Nos.9 & 12 of 1993 in the Court of the Subordinate Judge, Ramachandrapuram and they were disposed of by common judgment dated 1.8.1996. Whereas A.S.No.9 of 1993 preferred by Yerraiah was dismissed, A.S.No.12 of 1993 preferred by the hereditary archakas including the writ petitioner was disposed of modifying the declaration granted by the trial Court to the effect that the plaintiffs were the hereditary archakas subject to sub-section (3) and (4) of Section 35 of Act 30 of 1987. However the relief of mandatory injunction sought for delivery of possession of suit temples together with movable properties was rejected by the Appellate Court also. Thus it is clear that both the Trial Court and the Appellate Court had taken into consideration that the hereditary rights of archakatvam were abolished during the pendency of the suit and the decree of declaration of the rights of hereditary archakatvam of the plaintiffs therein was granted in terms of Sections 34 and 35 of Act 30 of 1987. Therefore the petitioner’s representation before the 3rd respondent seeking a direction to the Executive Officer of the temple to terminate the services of the respondent No.4 so as to enable him to render archakatvam itself was misconceived. So far as the entitlement of the respondent No.4 to continue to hold the office of archaka is concerned, as noticed above, sub-section (3) of Section 35 provides that every office holder or servant whether hereditary or not holding the office as such on the date of the commencement of the Act 30 of 1987 shall continue as such office holder and he shall be paid the emoluments prescribed under the Act. Admittedly the respondent No.4 was holding office of archaka as on the date of the commencement of the Act 30 of 1987 i.e., 28.05.1987. Once the said fact is admitted, the protection provided under Section 35 (3) of the Act 30 of 1987 is