HON’BLE SRI JUSTICE R. SUBHASH REDDY WRIT PETITION Nos.25563 and 25098 of 2010 Date: 30th December 2010 Between : K. Pardhasaradhi Reddy. ….Petitioner And The A.P.Dharmika Parishad, Hyderabad, rep. by its Member Secretary & others. ….Respondents HON’BLE SRI JUSTICE R. SUBHASH REDDY WRIT PETITION Nos.25563 and 25098 of 2010 COMMON ORDER : As the relief sought for in both these writ petitions is inter-related, they are heard together and are being disposed of by this common order. For the purpose of disposal, I refer to the facts as arise in W.P.No.25563 of 2010. 2. In this writ petition, the petitioner seeks directions by way of Mandamus, declaring the action of the 1st respondent-A.P.Dharmika Parishad, in appointing respondents 1 to 11 as Trustees to Sri Ardhagiri Veeranjaneya Swamy Temple, Aragonda village of Thavanampally Mandal in Chittoor District, vide proceedings in Rc.No.DP1/45132/2009, dated 25.09.2010, as illegal and arbitrary. 3. Sri Ardhagiri Veeranjaneya Swamy Temple is a notified temple under the A.P.Charitable and Hindu Religious Institutions and Endowments Act, 1987 (hereinafter referred to as ‘the Act’). It is classified under Section 6(c)(ii) of Act 30 of 1987. For such of the temples, where the income is between Rs.25 lakhs and Rs.1 Crore, the Dharmika Parishad, constituted under Section 152 of the Act, is the authority for constituting the Trust Board. It is the case of the petitioner that for the year 2009-10, the assessable income of the temple was Rs.88,02,000/-. The Member Secretary of the 1st respondent-Dharmika Parishad, who is the Commissioner for Endowments, by his Form-I Notice, dated 11.01.2010, issued in Notice No.H2/45132/09, invited applications for constitution of Trust Board within a period of 20 days from the date of said notice. The petitioner herein has applied for being considered to be appointed as one of the members to the Trust Board and although he had applied pursuant to the said notification issued in Form-I, he was not appointed. The 1st respondent has issued proceedings in Rc.No.DP1/ 45132/2009, dated 25.09.2010, constituting Trust Board to the said temple by appointing respondents 3 to 11 as its members. The order, dated 25.09.2010, passed by the Dharmika Parishad also states that all the persons appointed as Trustees, have to take oath of office and secrecy, as required under Sub-section 2 of Section 19 of the Act, before they enter the office. It is further stated that if any Trustee fails to take oath within a period of 30 days from the date on which he or she was appointed, such member shall cease to hold office. 4. In this writ petition, the appointment of respondents 3 to 11 to the Trust Board is questioned on the grounds, namely, that except respondent No.11, respondents 3 to 10 had never participated in the activities of the temple and they were also not involved in the development of the temple. It is the case of the petitioner that Dharmika Parishad is constituted under Section 152 of the Act and is headed by the Chairman, who is the Hon’ble Minister for Endowments. Mainly, it is the case of the petitioner that the original notice issued inviting applications for appointment of Trust Board, is issued by the Commissioner of Endowments, who is the Member Secretary of Dharmika Parishad, and who is not empowered to issue either a notification or notice in Form- I. It is stated that Dharmika Parishad alone is the authority for issuance of notification inviting applications for constitution of Trust Board and a Trust Board constituted pursuant to the notification issued by the Member Secretary, who is not competent, is illegal, and thus, the appointments made appointing respondents 3 to 11 are to be declared illegal. In the affidavit, it is stated that the very issuance of notification under Section 15 of the Act in Form-I runs contrary to a Division Bench judgment of this Court in W.P.No.19750 of 2007, and the appointments are made without following the rules titled as “The Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Dharmika Parishad Rules, 2009”, framed under the Act. 5. The Commissioner of Endowments, who is the Ex- officio Member Secretary of the 1st respondent- A.P.Dharmika Parishad, has filed counter affidavit. In the counter affidavit, while denying the various allegations made by the petitioner, it is stated that the application of the petitioner was received after the due date fixed in the notification. It is stated that Notice No.H2/45132/09, dated 11.01.2010 in Form-I, issued under Rule 4(1) of the Rules, was affixed on the notice board of the Grampanchayath, temple office and also published in Eenadu local edition, Chittoor on 26.01.2010, calling applications by giving 20 days time for submission of applications. The due date for receipt of applications was 14.02.2010, but the application of the petitioner was received on 16.02.2010, as such, his application was not considered for appointment as Trustee to the Trust Board. In the counter, it is stated that the procedure for appointment of Trust Board, was contemplated under Sections 15 to 19 of the Act and Rules made in G.O.Ms.No.258, Revenue Endowments (1), dated 31.03.1998, and that the appointments are made by following such Rules. It is further stated that the antecedent reports submitted by the authorities revealed that all the appointees are qualified under Section 18 of the Act, as such, no Statutory provision or Rule is violated in constituting the Trust Board for Sri Ardhagiri Veeranjaneya Swamy Temple, by appointing respondents 3 to 11 as Members. A reference is made to Rule 26 of the Rules framed in G.O.Ms.No.1206, dated 25.11.2009, stating that a three-member committee was also constituted in exercise of power under Rule 26, which includes the Member Secretary, who issued the notification inviting applications for constitution of Trust Board. Counter further states that pending administration of oath of office to the Trust Board members, complaints were received against two Trust Board members and as the Chairman issued orders to conduct inquiries on such complaints, taking oath of office by the above said Trust Board members was kept in abeyance. It is stated that action will be taken after completion of inquiry. It is further stated in the counter that all the appointed members as Trustees of the 2nd respondent-temple are devotees of the temple and they are qualified to be appointed in view of the provision under Section 18 of the Act. Thus, there is no illegality in appointing respondents 3 to 10 as Trustees to the 2nd respondent-temple. 6. On similar lines is the counter affidavit filed on behalf of respondents 1 to 10. In the counter, while denying the various allegations made by the petitioner, it is stated that in recent times, the temple was developed and they made contributions and also made efforts to contribute huge amounts for development of the institution but the petitioner, who neither participated in the temple activities nor donated anything to the temple, has filed the present writ petition. It is stated that the notification, dated 11.01.2010, for constituting the Trust Board for the temple, was issued by the 1st respondent, which was signed by the Member Secretary, who is also incidentally the Commissioner for Endowments. It is stated that even according to the petitioner, he has already applied in response to the notice issued by the 1st respondent, and having failed to get appointed, it is not open for the petitioner to question the very notice. In the counter, it is stated that the petitioner was set up by the 11th respondent in the writ petition for questioning the appointment of respondents 3 to 10 on false and untenable grounds. It is stated that the notification was issued by the Dharmika Parishad through its Member Secretary, hence, it cannot be said that the notification was not issued by the Dharmika Parishad. It is averred that the Member Secretary of the Dharmika Parishad is an Executive Officer for carrying out the activities of Dharmika Parishad, who is also incidentally the Commissioner, as such, when such executive authority has issued the notice, it cannot be said that the same was not issued by Dharmika Parishad. Respondents have also denied the allegation that the appointments made are contrary to the judgment of this Court in W.P.No.19750 of 2007. Counter further denies the allegation that the 3rd respondent is residing at Bangalore, doing business, and it is stated that the 3rd respondent is a resident of Aragonda and he owns agricultural lands, houses and pulp industry at Aragonda. It is pleaded that all the appointees are devotees of the temple and they fulfill the eligible criteria required for appointment, and as such, they are appointed. 7. The writ petition in W.P.No.25098 of 2010 is filed by the Trustees appointed pursuant to the orders, dated 25.09.2010, issued in Rc.No.DP1/45132/2009, seeking directions by way of Mandamus, declaring the action of respondents in not administering the oath of office and secrecy to the members of the Trust Board, pursuant to the aforesaid orders, as illegal and arbitrary. It is the case of the petitioners that though the order, dated 25.09.2010, states that the appointed members are to take oath of office and secrecy within a period of 30 days, inspite of their approaching the competent authority to administer oath of office, no action has been taken and there is no valid reason for not administering the oath of office to them, pursuant to the order, dated 25.09.2010. In this writ petition, a Memo in U.S.R.No.12442 of 2010 is filed by the sole respondent, adopting the counter affidavit filed in W.P.No.25563 of 2010. 8. Heard learned counsel for petitioner Sri M.S.Prasad, learned Government Pleader for Endowments, appearing for 1st respondent, Sri V.T.M.Prasad, appearing for 2nd respondent and Sri P.Gangaiah Naidu, learned senior counsel appearing for respondents 3 to 10. 9. The learned counsel for petitioner, Sri M.S.Prasad, has taken this Court to the notice, dated 11.01.2010, issued under Rule 4(1) and also the orders passed by the 1st respondent-Dharmika Parishad, dated 25.09.2010, issued in Proceedings No.DP1/45132/2009, constituting the Trust Board by appointing respondents 3 to 11 as members of the Trust Board. It is contended by the learned counsel that from a perusal of the notice, dated 11.01.2010 itself, it is clear that it is issued by the office of the Commissioner for Endowments, and is signed by the Commissioner, who is not the competent authority to issue notification inviting applications for constitution of Trust Board. It is submitted that the very Dharmika Parishad itself is a competent authority and the notice issued by the Commissioner and Member Secretary, Dharmika Parishad itself is illegal, as such, the appointments made based on such notification are illegal and runs contrary to the judgments of this Court. The learned counsel has relied on a Division Bench judgment of this Court in the case of S.V.Sudhakara Rao Vs. Government of A.P.[1], in support of his argument that the power conferred on the authority for constitution of Trust Board, cannot be delegated to any of the authority. It is submitted that as much as the temple in question is notified under Section 6 (c)(ii), Dharmika Parishad itself should have issued notice inviting applications, and in the absence of any such notification, the appointments made, appointing respondents 3 to 11 are illegal. 11. On the other hand, it is submitted by the learned Government Pleader appearing for respondent No.2 and the learned Senior Counsel appearing for respondents 3 to 10 that the Commissioner is an ex-officio Member Secretary of Dharmika Parishad and in that view of the matter, the impugned notification is issued by him as Member Secretary of Dharmika Parishad, but not in the capacity of the Commissioner. It is further submitted that the Statutory Rules, namely, the Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Dharmika Parishad Rules, 2009, empower the Chairman to exercise the functions of Dharmika Parishad, and in that view of the matter, there is no illegality in the order appointing respondents 3 to 11. It is submitted that the writ petition in W.P.No.25563 of 2010 is filed only to prevent the appointed persons from taking the oath, by making false allegations. It is submitted that the petitioner, who claims that he has already applied pursuant to the notice in Form-I, has filed the said writ petition, questioning the very competency of the Member Secretary, when he was not appointed. 11. Although in the affidavit filed in support of the writ petition, it is the case of the petitioner that respondents 3 to 10 are not qualified to be appointed, the same is not seriously disputed by the learned counsel for petitioner during the course of arguments, and there is no argument advanced on the eligibility and competency of respondents 3 to 10 as members of the Trust Board. Mainly, it is the case of the petitioner that the notification inviting applications in Form-I was issued by the Commissioner, showing his office address as ‘Office of Commissioner’, as such, he is not competent to issue the notification for constitution of Trust Board. It is contended that the Member Secretary of Dharmika Parishad also is not competent to issue the notification inviting applications for constitution of the Trust Board, when Dharmika Parishad is the competent authority to issue such notification. 12. In the present writ petition, it is not in dispute that Dharmika Parishad is the competent authority for constitution of Trust Board for the subject temple. As per Rule 4 of the Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Dharmika Parishad Rules, 2009, framed under Section 152 of the Act, the Chairman is authorized to exercise the functions of Dharmika Parishad in regard to constitution of Trust Board and any other matter of urgency, and place the same before the Dharmika Parishad for ratification in the next meeting. Rule 27 of the aforesaid Rules states that the Commissioner of Endowments shall be responsible for carrying out all lawful decisions and resolutions passed by the Dharmika Parishad. Under Section 152 of the Act, the Government is empowered to constitute the Andhra Pradesh Dharmika Parishad by way of notification, as enumerated therein. As per Section 152(iii) of the Act, the Commissioner of Endowments shall be the Member Secretary. I have also perused the original file produced by the learned Government Pleader, relating to the issuance of notification and constitution of Trust Board. A perusal of the aforesaid Rules, particularly Rule 4 of the Rules makes it clear that the Chairman is authorized to exercise the functions of Dharmika Parishad in regard to the constitution of Trust Board. From a perusal of the proceedings, dated 22nd December 2009, from the original file produced before this Court, it is clear that the Chairman of Dharmika Parishad, who is the Hon’ble Minister for Endowments, has authorized the Member Secretary of Dharmika Parishad to issue notification inviting applications for constitution of Trust Board. As such, from a perusal of the notification, read with Rule 4 of the Rules referred above, and the authorization given to the Member Secretary of Dharmika Parishad, who is the Commissioner of Endowments, it is clear that the notification is issued by Dharmika Parishad itself and the Member Secretary is authorized by the Chairman in exercise of powers under Rule 4 of the Rules, for issuing notification inviting applications for constitution of Trust Board. Merely because in the top of the notice, dated 11th January 2010, it is stated that the same is issued from the office of the Commissioner, it cannot be said that the notice is issued by the incompetent authority. As much as the Commissioner for Endowments is the ex-officio member in Dharmika Parishad, who is also responsible for carrying out the lawful decisions and resolutions of Dharmika Parishad, and in view of the authorization given by the Chairman of the Dharmika Parishad, he has issued the notification, and as such, it cannot be said that the notice, dated 11th January 2010, is not issued by the competent authority, for constitution of the Trust Board. Although the learned counsel for petitioner has relied on the judgment of a Division Bench of this Court in the case o f S.V.Sudhakara Rao (1 supra), but in the aforesaid judgment, while considering the scope of appointment of Trust Board under Sections 16, 17, 19 and 20 of the Act, interpreting the words “cause publication” in Rule 4 of the Trustee Rules, 1987, a Division Bench of this Court has held that for causing publication, the power cannot be delegated to any other authority. But in view of the rules, namely, the Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Dharmika Parishad Rules, 2009, and in view of the power conferred on the Chairman of Dharmika Parishad to exercise the functions of Dharmika Parishad, and exercising such powers, when the Chairman has issued authorization to the Member Secretary for constitution of the Trust Board, it cannot be said that such power is delegated to any other authority so as to take assistance from the aforesaid judgment of a Division Bench of this Court. As much as there is no delegation in the present case, the judgment relied on by the learned counsel for petitioner would not render any assistance in support of his argument that the notification in Form-I was not issued by the competent authority. In view of the specific power conferred on the Commissioner, and as the file discloses the authorization given by the Chairman, who is the Hon’ble Minister for Endowments, it cannot be termed as delegation, so as to apply the ratio laid down by this Court in the judgment referred to above. In that view of the matter, I do not find any illegality either in issuing the notification or constituting the Trust Board to Sri Ardhagiri Veeranjaneya Swamy Temple, Aragonda village of Thavanampally Mandal in Chittoor District. 13. So far as W.P.No.25098 of 2010 is concerned, it is to be seen that as per the Rules, once a Trust Board is constituted, such appointees are required to take oath within a period of 30 days and it further states that failing to take oath, such member seizes to take oath of office. In view of the averments made in the affidavit filed in support of the writ petition and the stand of respondents for not administering the oath of office and secrecy to the appointed members, it is clear that there is no reason or justification for not administering the oath of office. Merely because there were complaints against two of the members, by itself, is no reason for not administering the oath. When the appointment orders are not kept in abeyance, there appears no reason for not administering the oath. From the averments made in support of the writ petition, it is clear that the petitioners are ready to take oath, but only on account of allegations against two of the members, the oath of office is not administered, though it is obligatory to administer oath within a period of 30 days, even as per the appointment orders issued, constituting the Trust Board. 14. For the aforesaid reasons, while I do not find any illegality in the appointment of respondents 3 to 11 as members of the Trust Board, at the same time, this Court is of the view that there is no reason for not administering the oath for such appointed members. 15. Accordingly, W.P.No.25563 of 2010 is dismissed and W.P.No.25098 of 2010 is allowed, with a direction to the respondents to administer oath of office to the petitioners and other appointed persons, as per the Proceedings in Rc.No.DP1/45132/2009, dated 25.09.2010, within a period of ten days from today. No order as to costs. _____________________ R.SUBHASH REDDY, J 30th December 2010 N.B: Operative portion of order by wire at party’s costs. (b/o) ajr [1] 2008 (4) ALD 225 (DB)