*THE HON’BLE Ms. JUSTICE G. ROHINI +W.P.Nos.4326 of 2002 & 14856 of 2003 % Dated 27-1-2006 # H.H. Arjun Doss Mahant, Disciple of Guru Devender Dass, 48 years, Sri Swamy Hatiramji Math, Tirumala, Tirupati. Petitioner (in both the W.Ps.) And $ The Commissioner of Endowments Endowment Department, Tilak Road, Hyderabad and two others. Respondents (in both the W.Ps.) ! Counsel for Petitioner : Sri K. Prabhakar Sri S.Ramachandra Rao ( Senior Counsel) ^Counsel for Respondents: G.P. for Endowments Mr. K.V.N. Bhoopal (for R.3 in W.P.No.14856 of 2003. <GIST: > HEAD NOTE: ? Cases referred 1. AIR 1954 SC 282; 2. AIR 1954 SC 388; 3. AIR 1970 SC 181; 4. (1996) 8 SCC 705; 5. AIR 1959 SC 149; 6. AIR 1986 SC 180; 7. AIR 1969 SC 1297; 8. 2002 (2) Supreme Today 393 9. AIR 1973 SC 268. THE HON’BLE Ms. JUSTICE G. ROHINI W.P.Nos.4326 OF 2002 & 14856 OF 2003 COMMON ORDER: The petitioner in these two Writ Petitions is the Mahanth of Sri Swamy Hathiramji Mutt, Tirumala Tirupati. W.P.No.4326 of 2002 has been filed aggrieved by the action of the Commissioner of Endowments, A.P., Hyderabad in continuing the Special Grade Deputy Collector appointed by the Government as the Custodian for managing the secular affairs of Sri Swamy Hathiramji mutt including administration of its properties. During the pendency of the said writ petition, the Government of A.P. passed an order dated 10-07-2003 setting aside the proceedings of the Commissioner dated 6-7-2000 whereunder permission was accorded to the petitioner to succeed to the office of the mathadhipathi of Sri Swamy Hathiramji Mutt. The said order dated 10- 07-2003 is under challenge in W.P.No.14856 of 2003. Since the parties to both the writ petitions are common and since both the writ petitions are based on the same set of facts involving common questions of fact and law, they are heard together and decided by this common order. The relevant facts, as can be noted from the affidavits filed in support of the writ petitions, are as under: Sri Swamy Hathiramji Mutt (hereinafter referred to as Mutt) is an historical mutt in South India. It was under the Mahantship of Shree Prayagdossji varu, who expired on 5th October, 1947. Subsequently, there appears to have arisen differences amongst his disciples being 1. Narayandosjee Varu, 2. Raghuvaradossji Varu, 3. Chetandossji Varu, 4. Hariramdossji Varu and 5. Bhagwandossji Varu as regards succession to the Mahantship of Sree Swamy Hathiramji Mutt, Tirupati. The said differences were ultimately resolved amongst them and an agreement dated 29th October, 1947 came into existence between the aforesaid five disciples of late Prayagdossji Varu. The said agreement has been registered with Sub-Registrar of Madras, Chengalpet on 31st October, 1947 as Document No.3481 of 1947. In the said Agreement, it was acknowledged and confirmed that Sree Swamy Hathiramji Mutt has several properties in the presidencies of Madras and Bombay, Bangalore City, Andhra, Tirupati, Adoni, Tanjore, Vellore and elsewhere in India which were being managed from the main Mutt at Tirupati. The mode of succession of the Mahantship of Sree Swamy Hathiramji Mutt has also been provided for and confirmed and acknowledged by the signatories to the said Agreement, in total conformity with the customs, usage and precepts founded by the said Sri Swamy Hathiramji. The Akhada Panchayat was to be controlling the activities of the said Mutt. By virtue of the said agreement Narayandosji Varu was appointed as the Mahant of Sri Swamy Hathiramji Mutt at Tirupati. On 9th December, 1958 Mahant Narayandossji Varu attained Samadhi, and Sri Devenderdass succeeded as Mahant. However, subsequently he resigned from the Mahantship and Sri Sarjudass, who was a disciple of Sri Devenderdass, succeeded as Mahant. It appears that in the year 1983 he was removed by the Government as Mahant on certain allegations of mismanagement and misappropriation of mutt properties. Consequently, a permanent vacancy in the office of mathadhipathi arose, however since there was no nomination as to the succession to the office made by Sri Sarjudass while he was in office, in exercise of the powers conferred by Section 8 read with Section 47 of the Act 17 of 1966, the Commissioner of Endowments vide proceedings dated 27-12-1983 appointed the Assistant Commissioner of Endowments as the Custodian of the Mutt to administer and maintain the affairs of the Mutt till Mathadhipathi succeeds to the office according to the provisions of Act 17 of 1966. Subsequently, Sri Arjundass, the petitioner herein, who is also one of the disciples of Sri Devenderdass Ji, was appointed as interim Mahant of the Mutt by the Government of Andhra Pradesh by proceedings dated 7-9-1990 making it clear that he shall confine himself to religious activities and that the officer of the Endowments Department will be continued to look after all the secular affairs and other administrative matters pertaining to the mutt. The said appointment as interim Mahant was made on the basis of a declaration made by Sri Devenderdass Ji stating that he had no objection for the nomination of Sri Arjundass as Mahant and also on the basis of a resolution passed by the renovation committee of the mutt to appoint a temporary Mahant. While so, Sri Sarjudass passed away on 20-10-1999. Thereafter, the petitioner made a representation claiming that he was a fit person to hold the permanent mahantship of the mutt as laid down under Section 53 of The A.P. Charitable and Hindu Religious Institutions and Endowments Act, 1987 (for short, ‘the Act’). In pursuance thereof, the Commissioner of Endowments having called for a report from the custodian of the mutt and having found that the petitioner was the only available claimant and that while functioning as interim Mahant he was performing religious functions in a befitting manner and co-operating for smooth running of the administration of the mutt, vide proceedings dated 6-7-2000 accorded permission to the petitioner to succeed to the office of Mathadhipathi under Section 53 (1) of the Act. However, by separate proceedings passed on the same day i.e., 6- 7-2000 the Commissioner of Endowments ordered that the Special Grade Deputy Collector appointed by the Government would continue as custodian of the Mutt for managing the secular affairs and for safeguarding the Mutt and its properties. In the said proceedings, it was mentioned that the officer was being continued since the administration of the secular affairs of the Mutt was found not in accordance with the established principles in the hands of the successive mathadhipathis in the recent past and in view of the consent given by the petitioner, who succeeded to the office of Mathadhipathi, for appointment of an officer to manage the secular affairs of the mutt. The petitioner assumed charge as Mahant of the Mutt on 18-7-2000 and the Pattabhishekam was also performed on 8-10-2000. It is not in dispute that for the purpose of Pattabhishekam, the Commissioner of Endowments vide proceedings dated 6-9-2000 and 22-9-2000 accorded permission to the custodian to incur necessary expenditure in consultation with the Mahant. However, since the custodian was continued to deal with the management of the Mutt and the petitioner was confined to mere religious activities, the petitioner filed W.P.No.4326 of 2002 seeking a writ of Mandamus directing the Commissioner of Endowments to remove the custodian and direct him to hand over the charge of the Mutt including administration of properties of the Mutt. In the said writ petition, it was also alleged that the custodian was mismanaging the properties of the Mutt and that he was unable to administer the affairs of the mutt properly, maintaining the sanctity of the mutt. This Court while directing Rule Nisi, by order dated 5.07.2002 in W.P.M.P.No.5379 of 2002 granted an interim direction to the Custodian (2nd respondent therein) to forthwith handover the management of the Mutt and take all necessary steps for transferring power to the petitioner. Against the said order, the respondents filed W.A.No.1135 of 2002, which was allowed by a Division Bench of this Court by judgment dated 24.07.2002, thereby setting aside the order dated 5.07.2002 and directing that the Writ Petition itself be heard and decided. During the pendency of the said Writ Petition, the State Government issued proceedings dated 10.10.2002 calling upon the petitioner to show cause as to why his appointment as permanent Mahant should not be cancelled. Aggrieved by the same, the petitioner moved W.P.M.P.No.29492 of 2002 in W.P.No.4326 of 2002 seeking suspension of the operation of the notice dated 10.10.2002. Having regard to the fact that the impugned notice was only a show cause notice, this Court by order dated 25.11.2002 granted liberty to the petitioner to submit appropriate explanation to the show cause notice and directed the Government of Andhra Pradesh to dispose of the matter within 8 weeks from the date of receipt of the explanation, after affording an opportunity of hearing to the petitioner as well as the representative of the Commissioner of Endowments. It was also ordered that till such time, the respondents shall not disturb the petitioner. Accordingly, the petitioner submitted his explanations dated 28.10.2002 and 7.12.2002. However, the Government by order dated 10.07.2003 held that the appointment of the petitioner as permanent Mahant was in gross violation of the statutory provisions and accordingly set aside the order of the Commissioner dated 6.7.2000 and directed the Commissioner to fill up the office of the Mahant and make interim arrangement in accordance with law. Questioning the said order, W.P.No.14856 of 2003 has been filed by the petitioner. Rule Nisi was ordered on 23.07.2003 in W.P.No.14856 of 2003 and in W.P.M.P.No.18395 of 2003 this Court granted interim suspension of the impugned order dated 10.07.2003. I have heard Sri S. Ramachandra Rao, the learned Senior Counsel appearing for the petitioner as well as Sri A. Satya Prasad, the learned Government Pleader on behalf of the learned Advocate General appearing for the respondents. The learned Senior Counsel appearing for the petitioner vehemently contended that since the Mahant of a Math is the supreme authority and the ultimate head of the Math, as per the well settled principles of law he shall be vested with the right to manage both the secular affairs as well as the religious functions and therefore the custodian appointed earlier to administer and maintain the secular affairs of the mutt cannot be continued any longer on any ground whatsoever. The learned Senior Counsel further contended that the order dated 10.07.2003 which was passed purportedly in exercise of suo motu powers of Revision under Section 93 of the Act amounts to fraud on the statute. The learned Senior Counsel while contending that exercise of suo motu powers of revision with regard to the matters relating to a Math or specific endowment attached to the Math have been expressly excluded under Section 93 of the Act, submitted that the order dated 10-07-2003, on the face of it, is without jurisdiction. The learned counsel also submits that since the petitioner has succeeded to the office of Mathadhipathi of the Mutt following the procedure under Section 53(1) of the Act, he can be removed from the Office of Mathadhipathi only if he suffers any of the disqualifications enumerated under Section 51(1) of the Act. The learned Senior Counsel further contends that even on merits the impugned order is ex facie arbitrary and illegal since all the allegations made against the petitioner are imaginary and without any factual basis. The learned Government Pleader appearing for the respondents contended that the finding recorded in the impugned order that the appointment of the petitioner as Mathadhipathi was in gross violation of the statutory rules is in accordance with law and does not warrant any interference by this Court. The learned Government Pleader while relying upon the definition of “Math” under Section 2 (17) of the Act and the definition of “trustee’ under Section 2 (29) of the Act, contended that the Government in exercise the suo motu powers of review under Section 93 of the Act though cannot call for the record of mathadhipathi, but is entitled to examine the record relating to any order or decision of the Commissioner even with regard to a Math or specific endowment attached to a Math. Having regard to the above submissions made by the learned Counsel, the following questions arise for consideration: 1. Once a permanent vacancy in the office of Mathadhipathi is filled up, is it open to the respondents to confine the Mathadhipathi only to religious functions and to entrust the secular affairs of the math including the management of its properties to an official of the Government? 2. Whether the order passed by the Government dated 10-07-2003 purportedly in exercise of suo motu revisional powers under Section 93 of the Act thereby setting aside the order of the Commissioner of Endowments according sanction to the petitioner to succeed to the office of Mathadhipathi is valid? POINT No.1:- At the outset, it would be appropriate to refer to the relevant provisions relating to Maths and specific endowments attached thereto under the Act. Section 2 (17) defines “Math” as under : ‘Math’ means a Hindu Religious Institution presided over by a person, whose principal duty is to engage himself in the teaching and propagation of Hindu religion and philosophy or the teachings and the philosophy of the denomination, sect or sampradaya to which the math belongs and in imparting religious instruction and training and rendering spiritual service or who exercises or claims to exercise spiritual headship over a body of disciples; and includes any place or places of religious worship, instruction or training which are appurtenant to the institution. Section 2 (23) defines “Religious Institution” as under : ‘Religious Institution’ means a math, temple or specific endowment and includes a Brindavan, Samadhi or any other institution established or maintained for a religious purpose. Section 2 (27) defines “Temple” as under : ‘Temple’ means a place by whatever designation known used as a place of public religious worship, and dedicated to, or for the benefit of, or used as a right by the Hindu community or any section thereof, as a place of public religious worship sub-shrines, utsava madapas, tanks and other necessary appurtenant structures and land; Explanation I :- … … … … … Under Chapter V of the Act which specifically deals with Maths and Specific Endowments attached thereto, Section 47 defines “Mathadhipathi” as under : In this chapter, unless the context otherwise requires, “Mathadhipathi” means any person whether known as mahant or by any other name, in w h o m the administration and management of a math or specific endowment attached to a math are vested. It is also relevant to note Section 48 which exempts the maths from certain sections of Chapter III. “48. Certain Sections of Chapter-III not to apply to maths or specific endowments attached thereto :-- The provisions of Sections 18, 19, 20, 21, 22, 25 and 28 shall not apply to math or specific endowment attached thereto.” Section 51 of the Act which deals with removal of Mathadipati runs as under : “51. Removal of Mathadhipathi : -- (1) The Commissioner may suo motu or on an application of two or more persons having interest initiate proceedings for removing a mathadhipathi or a trustee of a specific endowment attached to a math, if he, -- (a) is of unsound mind; b. is suffering from any physical or mental defect or infirmity which renders him unfit to be a mathadhipathi or such trustee; c. has ceased to profess the Hindu religion or the tenets of the math; d. has been sentenced for any offence involving moral turpitude, such sentence not having been reversed; e. is guilty of breach of trust, or mis-appropriation in respect of any of the properties of the math; f. commits persistent and willful default in the exercise of his powers or performance of his functions under this Act; (g) violate any of the restrictions imposed or practices enjoined by the custom, usage or the tenets of the math, in relation to his personal conduct, such as celibacy, renunciation and the like; h. leads an immoral life; or i. fails or ignores to implement the principles set out in Clause (17) of Section 2. (2) The Commissioner shall frame a charge on any of the grounds specified in sub-section (1) against the mathadhipathi or trustee concerned and give him an opportunity of meeting such charge, of testing the evidence adduced and of adducing evidence in his favour. After considering the evidence adduced and other material before him, the Commissioner may, by order exonerate the mathadhipathi or trustee, or remove him. Every such order shall state the charge framed against the mathadhipathi or the trustee, his explanation and the finding on such charge together with the reasons therefor : Provided that in the case of a math or specific endowment attached thereto whose annual income exceeds rupees one lakh, the order of removal passed by the Commissioner against the mathadhipathi or trustee shall not take effect unless it is confirmed by the Government. (3) Pending the passing of an order under sub-section (2); the Commissioner may suspend the mathadhipathi or the trustee. (4) (a) Any mathadhipathi or trustee aggrieved by an order passed by the Commissioner under sub-section (2), may within ninety days from the date of receipt of such order, institute a suit in the court against such order; (b) An appeal shall lie to the High Court within ninety days from the date of a decree or order of the Court in such suit.” On a combined reading of definitions of Math, Religious Institution and Temple, it is to be noted that the math is distinctly different from the temple. Though math is a religious institution, the main function of the math is teaching and propagation of Hindu religion and philosophy, sect or sampradaya to which the math belongs, whereas Temple is a place used as a place of public religious worship and dedicated to or used as a right by the Hindu community of any section thereof as a place of public religious worship. The scheme of the Act as can be noted from the above referred provisions shows that the entire administration of a math both in respect of religious as well as secular functions are vested with the mathadhipathi since the same are blended together and inseparable. In view of the said patent distinction, it appears that under Section 48 of the Act, the provisions of Sections 18, 19, 20, 21, 22, 25 and 28 under Chapter III dealing with Religious Institutions and Endowments are made inapplicable to the maths. Under Chapter V of the Act, a complete different set of provisions are incorporated so far as Maths and specific endowments attached thereto are concerned. In COMMR., H.R.E. v. L.T. SWAMIAR (known as First Shirur Math Case) the Supreme Court while dealing with the provisions under the Madras Hindu Religious and Charitable Endowments Act, 1951 considered in detail the rights of Mahanth of Math and the conception of Mahanthship. The said case related to the Shirur Math and the matter came to the Court with regard to the validity of a scheme framed for the administration of the affairs of the said Math. The Supreme Court having dealt with the rights of a Mahant to hold office as well as enjoy the property of the institution, exhaustively held that in the conception of Mahantship as in Shebaitship both the elements of office and property of duties and personal interest are blended together and neither can be detached from the other. It was also held that Mahanthship is not heritable like ordinary property. It was further observed that a Mahant’s duty is not simply to manage the temporalities of a Math and that he is the head and superior of spiritual fraternity and the purpose of Math is to encourage and foster spiritual training by maintenance of a competent line of teachers who could import religious instructions to the disciples and followers of the Math and try to strengthen the doctrines of the particular school or order of which they profess to be adherence. The Supreme Court further observed that besides the right to manage its own affairs in matters of religion, which is given by Article 26 (b) of the Constitution of India, the next two Clauses of Article 26 guarantee to a religious denomination the right to acquire and own property and to administer such property in accordance with law. In RATILAL vs. STATE OF BOMBAY, the Supreme Court, while considering the scope and object of Clauses (b) and (d) of Article 26 of the Constitution of India, observed as under : “So far as Article 26 is concerned, it deals with a particular aspect of the subject of religious freedom. Under this Article, any religious denomination or a section of it has the guaranteed right to establish and maintain institutions for religious and charitable purposes and to manage in its own way all affairs in matters of religion. Rights are also given to such denomination or a section of it to acquire and own movable and immovable properties and to administer such properties in accordance with law. The language of the two cls. (b) and (d) of Article 26 would at once bring out the difference between the two. In regard to affairs in matters of religion, the right of management given to a religious body is a guaranteed fundamental right which no legislation can take away. On the other hand, as regards administration of property which a religious denomination is entitled to own and acquire, it has undoubtedly the right to administer such property but only in accordance with law. This means that the State can regulate the administration of trust properties by means of laws validly enacted; but here again it should be remembered that under Art. 26 (d), it is the religious denomination itself which has been given the right to administer its property in accordance with any law which the State may validly impose. A law, which takes away the right of administration altogether from the religious denomination and vests it in any other or secular authority, would amount to violation of the right which is guaranteed by Art. 26 (d) of the Constitution.” The said principle has been reiterated in a later decision in DIGYADARSAN R.R. VARU v. STATE OF A.P. as under : “Under Article 26 (b), therefore, a religious denomination or organization enjoys complete autonomy in the matter of deciding as to what rights and ceremonies are essential according to the tenets of the religion and no outside authority has any jurisdiction to interfere with its decision in such matters. Moreover under Article 26 (d) it is the fundamental right of a religious denomination or its representative to administer its property in accordance with law; and the law; therefore, must leave the right of administration to the religious denomination itself subject to such restrictions and regulations as it might choose to impose. It was further laid down that a law which takes away the right of administration from the hands of a religious denomination altogether and vests it in any other authority would amount to a violation of the right guaranteed under Clause (d) of Article 26.” In the above decision, the Supreme Court, while considering different provisions under The A.P. Charitable and Hindu Religious Institutions & Endowments Act 17 of 1966, particularly Section 47, which provided for the filling of a temporary vacancy, further observed as under : “As regards the contravention of Clauses (b) and (d) of Article 26, there is nothing in Sections 46 and 47 which empowers the Commissioner to interfere with its autonomy of the religious denomination in the matter of deciding as to what rights and ceremonies are essential according to the tenets of the religion the denomination professes or practices nor has it been shown that any such order has been made by the Commissioner or that the Assistant Commissioner who has been put in charge of the day-to-day