*THE HON’BLE Ms. JUSTICE G. ROHINI + WRIT PETITION No.13377 OF 2010 % 31/08/2010 # Anant Prasad Ganeriwal … Petitioner Vs. $ The Govt. of A.P., rep. by its Secretary to Govt.., Revenue (Endowments) Department and others. … Respondents < Gist > Head Note: ! Counsel for the petitioner : Sri P. Yadagiri Rao ^ Counsel for the respondents : Government Pleader for Endowments Sri Ch. Satish Kumar Cases referred : [1] AIR 1996 SC 1023 2 1997 (3) An.W.R. 195 THE HON’BLE Ms. JUSTICE G. ROHINI WRIT PETITION No.13377 OF 2010 Dated: 31.08.2010 Between : Anant Prasad Ganeriwal … Petitioner And The Govt. of A.P., rep. by its Secretary to Govt.., Revenue (Endowments) Department and others. … Respondents THE HON’BLE Ms. JUSTICE G. ROHINI WRIT PETITION No.13377 OF 2010 ORDER : This writ petition is filed seeking a declaration that the action of the 4th respondent – Assistant Commissioner of Endowments, Hyderabad – in not delivering the physical possession of the land belonging to Sri Sitaram Maharaj Samsthan to the petitioner as directed by the 3rd respondent – Deputy Commissioner of Endowments - by order dated 11.4.2001 in O.A.No.36 of 1986 is arbitrary and illegal. It is stated that the petitioner was recognized as the sole hereditary trustee of Sri Sitharam Maharaj Samsthan, Sitharambagh, Hyderabad (hereinafter referred to as ‘the temple’) by order dated 20.11.1956 passed by the Deputy Commissioner of Endowments (Registrar of Public Trust, Amaravathi). Subsequent to the enactment of A.P. Charitable and Hindu Religious Institutions and Endowments Act, 1966 (for short, ‘Act 17 of 1966’), the petitioner was recognised as the sole hereditary trustee of the temple by order dated 20.03.1968 in O.A.No.19 of 1967 passed by the Deputy Commissioner of Endowments, Hyderabad. After the repeal of Act 17 of 1966, by virtue of Section 155 of A.P. Charitable and Hindu Religious Institutions and Endowments Act (for short, ‘Act 30 of 1987’) the petitioner and his younger brother were recognised as members of the founder family by order dated 28.7.2006 in O.A.Nos.3 and 4 of 2005 on the file of the Deputy Commissioner of Endowments, Hyderabad. The said order dated 28.7.2006 in O.A.Nos.3 and 4 of 2005 was also confirmed by the 2nd respondent - Commissioner of Endowments – by order dated 2.12.2006. It is claimed that the petitioner has been administering and managing the affairs of the temple right from the year 1956 till date. It is also stated that at the instance of the petitioner, eviction proceedings under Section 75 of Act 17 of 1966 were initiated in O.A.No.110 of 1981 (renumbered as O.A.No.36 of 1986) on the file of the Deputy Commissioner of Endowments, A.P., Hyderabad for removal of the encroachment on the property belonging to the temple. During the pendency of the said proceedings, Act 17 of 1966 stood repealed and a s per Section 83 of Act 30 of 1987 which is in pari materia to Section 75 of the repealed Act 17 of 1966, the eviction proceedings in O.A.No.36 of 1986 were continued. After due enquiry the 3rd respondent – Deputy Commissioner – by order dated 11.4.2001 while declaring the 2nd respondent therein as an encroacher within the meaning of the Explanation to Section 83 (1) of the Act 30 of 1987 directed removal of the encroachment and deliver vacant possession of the property to the petitioner herein within 15 days failing which action as provided under Section 84 of Act 30 of 1987 would be initiated. The said order attained finality by order of this Court dated 5.8.2009 in W.P.No.13383 of 2009. Even thereafter as the encroacher failed to deliver possession of the property in his occupation, the 4th respondent – Assistant Commissioner of Endowments – by letter dated 20.5.2010 requested the Assistant Commissioner of Police, Goshamahal P.S. to provide the police assistance on 1.6.2010 to assist the departmental staff to remove the encroachment and to hand over the physical possession to the founder family member. However, the 4th respondent had addressed another letter dated 26.5.2010 requesting to provide police assistance on 1.6.2010 for removal of the encroachment and to hand over physical possession to the 5th respondent - Executive Officer of the temple. Aggrieved by the said action of the 4th respondent in directing delivery of physical possession to the 5th respondent instead of the founder family member, the present writ petition has been filed. It is contended by the petitioner that the impugned letter dated 26.5.2010 which is quite contrary to the order passed by the 3rd respondent – Deputy Commissioner – dated 11.4.2001 in O.A.No.36 of 1986 wherein there was a specific direction to deliver vacant possession of the property in question to the founder family member is arbitrary, illegal and opposed to the provisions of Section 83 of Act 30 of 1987. It is further contended that the 4th respondent – Assistant Commissioner of Endowments – has no power to alter the order passed by the 3rd respondent – Deputy Commissioner of Endowments – who is the competent authority to make an order under Act 30 of 1987. A counter-affidavit has been filed on behalf of the 2nd respondent stating that the petitioner who is only a founder family member, is not entitled to take possession of the properties of the temple. It is further stated that the Commissioner of Endowments has been appointing Executive Officers to the temple in question since 1972 and the Executive Officer has been managing the affairs of the temple and therefore the Executive Officer alone is entitled to take possession of the property. It is also alleged that the petitioner and his family members have been acting highhandedly and not allowing any Executive Officer to function and exercise their powers and as many as 25 charges are framed against him and the disciplinary proceedings are pending. The 5th respondent – Executive Officer of the temple – filed a separate counter stating that the petitioner has not been acting in the interest of the temple and that he has constructed a building in the site of the temple at a cost of Rs.38 lakhs out of the temple funds and that he has been staying in the said building with his family. It is also stated that W.P.No.21919 of 2008 and W.P.No.4637 of 2010 filed challenging the illegal activities of the petitioner are pending on the file of this Court and by orders dated 30.09.2010 and 2.3.2010 the founder family member was directed not to take up further constructions without obtaining the orders from G.H.M.C. It is further stated that having regard to the high-handed action of the petitioner in utilizing the service of the temple employees and interfering with the affairs of the temple, the Commissioner framed as many as 25 charges and further proceedings are pending. I have heard the learned counsel for both the parties and perused the material available on record. Under Section 16 of the Act 30 of 1987, the right for the office of the hereditary trustee stood abolished and Section 14 provides that all properties belonging to a charitable or religious institution or endowment shall vest in the charitable or religious institution or endowment as the case may be. As per Section 15 read with Section 17 (1) of Act 30 of 1987 a Board of Trustees has to be constituted having due regard to the religious denomination or any such section thereof to which the institution belongs or the endowment is made and the wishes of the founder of the institution or endowment. The Constitutional validity of Sections 15, 16 and other relevant provisions of Act 30 of 1987 was upheld by the Apex Court in BANSILAL PATIL v. STATE OF A.P.[1]. As per the proviso to Section 17 (1) as substituted by the Amendment Act 27 of 2002, the founder or one of the members of the family of the founder, if qualified as prescribed shall be appointed as one of the trustees of the Board of Trustees constituted under Section 15. Section 20 of the Act 30 of 1987 has been simultaneously amended by Act 27 of 2002 to the effect that where the founder or a member of the founder family is appointed as trustee, he shall be the Chairman of the Board of Trustees. Certain other major changes have been made under Amendment Act 33 of 2007 (w.e.f. 3.1.2008) recognising the right of Hereditary Trustee under the repealed Act 17 of 1966 to participate in the management of Religious Institution or Endowment. By substituting the Explanation-I to Section 17 (1) of the Act the person who was recognized as Hereditary Trustee under the repealed Act 17 of 1966 has been brought within the definition of ‘Founder’. Consequently if qualified as prescribed he is entitled to be appointed as one of the Trustees. Similarly the third proviso has been inserted to Section 15 (2) of the Act recognising the right of a founder/member of the founder family to discharge the functions of a Board of Trustees till a new Board of Trustees is constituted. The third proviso to Section 15 (2) reads as under : “Provided also that where the Board of Trustees is not constituted for any reason, the recognised Founder or Member of the Founder’s Family shall discharge the functions of the Board of trustees till a new Board of Trustees is constituted.” On a combined reading of the above noticed provisions, it is clear that a person who was recognised as Hereditary Trustee under the repealed Act 17 of 1966 being a founder as defined under the Explanation-I to Section 17 (1) of the Act 30 of 1987, if qualified as prescribed, shall be appointed as one of the Trustees. On such appointment as Trustee, the founder or member of founder family shall be the Chairman of the Board of Trustees as provided under Section 20 (2). That apart, in the absence of a Board of Trustees the recognised founder / founder family member is also entitled to discharge the functions of the Board of Trustees. In the present case, it is not in dispute that the petitioner was recognized as the sole Hereditary Trustee under the provisions of the repealed Act 17 of 1966 and after the enactment of Act 30 of 1987 he was recognised as a member of the founder family along with his brother by the competent authority. Thus if qualified as prescribed, he shall be appointed as one of the trustees. However the Board of Trustees as provided under Section 15 of the Act 30 of 1987 has not been constituted to the temple in question so far. In the circumstances, the learned Government Pleader for Endowments appearing for the respondents 1 to 4 contended that unless and until the Board of Trustees is constituted, the petitioner cannot claim any right to administer the affairs and manage the properties of the temple. While pointing out that Section 83 (4) of the Act provides that on removal of the encroachment the possession of the land encroached upon shall be delivered to the trustee, the learned Government Pleader further contended that as the petitioner has not yet been appointed as a trustee, the property in question was rightly directed to be delivered over to the Executive Officer. On the other hand, the learned counsel for the petitioner contended that in view of the third proviso to Section 15 (2) the petitioner alone is entitled to discharge the functions of the Board of Trustees and therefore the impugned order directing delivery of possession of the property in question to the Executive Officer was arbitrary and illegal. No doubt the petitioner who is recognised as a member of the founder family under the Act 30 of 1987 apart from being recognised as founder in terms of the definition under the Explanation-I to Section 17 (1) of the Act is entitled to discharge the functions of the Board of Trustees in terms of the third proviso to Section 15 (2). However as observed by the Supreme Court in BANSILAL PATIL’S case (1 supra) the said right is not an absolute right and that the founder or founder family member is entitled to manage the institution as long as the temple is properly and efficiently managed. Following the said decision, a Division Bench of this Court in ALHARI NARAYANASWAMY v. THE COMMISSIONER[2] held as under: “It is seen that while upholding the validity of Section 16 it was clearly stated that as long as a temple is being properly and efficiently managed, a member of the family is entitled to manage the institution with full freedom in accordance with the established practice or usage. In the event of Board of trust is constituted, he has the right to head the Trust Board. The right is not an absolute one but is subject to the condition that he manages the temple properly and efficiently and that his management is limited to the time till the Trust Board is constituted. It is needless to observe that till such time, the management of the temple vests in him and the Executive Officer is to act under his control. The judgment of the Supreme Court being understood in such light, there is no void left in the management.” It is brought to my notice by the learned Government Pleader that vide proceedings of the Commissioner, dated 5.8.2010 issued under Section 28 (1) of the Act the petitioner was placed under suspension pending enquiry into certain irregularities committed by him in the administration of the temple in question. A perusal of the said proceedings make it clear that charges were framed against him on 1.12.2009 relating to several grave irregularities such as mismanagement, maladministration and misappropriation of temple funds. In the circumstances, notwithstanding the right conferred under the third proviso to Section 15 (2) of the Act, in my considered opinion the petitioner cannot be permitted to administer the affairs and manage the properties of the temple. Having regard to the facts and circumstances of the case and in the absence of the Board of Trustees, the impugned order was rightly passed directing delivery of the property to the Executive Officer on removal of the encroachment. The mere fact that the 4th respondent by order dated 20.5.2010 had initially directed delivery of vacant possession to the founder family member does not confer any legally enforceable right on the petitioner to take possession of the property in question since he is not entitled under law to manage the temple properties. Accordingly, the Writ Petition, which is devoid of any merit, is hereby dismissed. No costs. ______________ G. ROHINI, J. Dt. 31.08.2010 Note:- (1) LR copy to be marked. (2) CC by 06.09.2010. (B/O) gbs [1] AIR 1996 SC 1023 [2] 1997 (3) An.W.R. 195