IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE FOURTH DAY OF NOVEMBER TWO THOUSAND AND NINE PRESENT: THE HON'BLE SRI JUSTICE P.S. NARAYANA WRIT PETITION No.23748 of 2009 Between: Ratnam Sundana Raju ..... PETITIONER AND The Commissioner of Endowments, Boggulakunta, Tilak Road, Hyderabad and another ..... RESPONDENTS ORDER: The matter is coming up for admission. The learned Assistant Government Pleader for Endowments takes notice on behalf of respondent No.1 and Sri.V.T.M. Prasad, learned Standing Counsel takes notice on behalf of respondent No.2. 2. Heard Sri.M. Vidyasagar, learned counsel representing the writ petitioner, and the learned Assistant Government Pleader for Endowments and Sri.V.T.M. Prasad representing respondents. 3. The principal question which had been argued in elaboration by the learned counsel for writ petitioner is that the impugned proceeding is without jurisdiction. The learned counsel also would maintain that if really the competent authority, as per the provisions of the Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act, 1987 (hereinafter in short referred as ‘the Act’ for the purpose of convenience), is inclined to take necessary steps in this regard, let such enquiry, if any, be done in accordance with the provisions of the Act aforesaid and not. Hence, the learned counsel would maintain that this proceeding already initiated is one without jurisdiction the same is liable to be quashed. The learned counsel also pointed out to Sections 6, 15 and 28 of the Act as well. 4. The learned AGP for Endowments also had pointed out to the relevant provisions of the Act and also had pointed out the several serious irregularities which had been specified in the impugned proceedings. 5. Sri VTM. Prasad learned counsel representing the second respondent further had pointed out to the other material papers which had been placed before this court along with writ petition. 6. The present Writ Petition is filed praying for the relief of writ of Mandamus, declaring the action of the first respondent in issuing the impugned proceedings Rc.No.H1/20126/02 dated 19- 03-2009 framing charges on the founder family member i.e., the petitioner herein in collecting donations illegally from public for development of the 2nd respondent temple as bad, illegal, arbitrary, opposed to law and one without jurisdiction and pass such other suitable orders. 7. It is stated that the petitioner is a member of the founder family having been declared as a member of the founders family of Sri Raja Rajeswari Ammavri Temple by the first respondent herein vide Rc.No.C2/13882/96-1 dated 07-08-1996. The right since the date of his recognition as a member of the founder family, the petitioner herein was exercising his rights as a founder and also headed the trust board as Chairman in conformity with the judgment of the Supreme Court wherein founder trustees are entitled to head the board of trustees as a vested right. Ratnam Sundara Raju the petitioner was the sole declarant as a member of the founders family and he continued to function as a founder trustee for a period of 5 years continuously. The petitioner’s brother who also filed an application subsequently for declaration as a member of founder family was declared as a Founder Family Member on 23-09-2002. Thus, both the petitioner and his brother were functioning as founder trustees as per the rotation fixed in the said order vide proceedings in Rc.No.C3/20126/02 dated 23-09-2002 issued by the first respondent herein. 8. Further it is averred that the subject temple in the second respondent Devastanam is registered under Section 38 of the Act 17/66 and classified under Section 6(A) of the Act. Earlier under Act 30/87, the Government constituted Board of Trustees whose annual income exceeds rupees 10 lakhs. But presently under the amended Act 33/2007, the authorities to constitute the board of trustees had been defined and as per Section 15 (1) of the Act the competent authority to constitute the Board of Trustees to the second respondent temple based on the classification made by the Endowments Department, the Dharmika Parishad is competent authority to constitute Board of trustees as the income of the second respondent devasthanam is Rs.70,03,882/-. 9. While things stood thus, the first respondent herein seems to have framed certain charges on the petitioner herein in pursuance of an enquiry conducted by the Regional Joint Commissioner, M.Z.-II at Tirupathi. Quite peculiarly though the impugned proceedings are dated 19-03-2009 the same was served on the petitioner on 28-09-2009 which itself casts a doubt whether the enquiry so under taken is a bonafide action or not. 10. It is also averred that a perusal of the various correspondence made by the petitioner indicate an undisputed fact that the very exercise of power by the first respondent is malafide on a reading of his letter addressed to the first respondent indicates that the amount of Rs.60 lakhs, which he wished to donate was out of the money derived from the sale proceeds of his immovable property. After addressing these letter to respondents authorities, subsequently, a legal notice was issued by the second respondent to which the petitioner promptly replied denying all allegations. Having received the reply, proceedings were initiated by the first respondent, which was done so on a report submitted by the Regional Joint Commissioner, which was undertaken without even issuing notice to the petitioner herein. 11. In such circumstances, the proceedings aforesaid had been challenged on several grounds. The impugned proceedings reads as hereunder: “ Office of the Commissioner Endowments Department, A.P., Hyderabad Rc.No.H1/20126/2002, dated 19-03-2009 Sub: Endowment Department – Sri PSR Nellore District – Sri Raja Rajeswara Swamy Devasthanam, Durgamitta (V) – Collection of donations by Sri Ratnam Sundara Raju, F.F.M. Illegally – Charges framed – Reg. Ref: Lr.No.A1/3264/2004, dated 02-12-2008 from the Regional Joint Commissioner, Endowments Department, Tirupati. - - - In his report in the reference cited, the Regional Joint Commissioner, Endowments Department, Tirupathi stated that Sri R. Jayaram made allegations that Sri R. Sundara Raju has made public announcement on the dias on 09-10-2008 that he received Rs.60 lakhs from public as donations and appealed to donate the balance amount of Rs.90 lakhs. Sri R. Sundara Raju in his representation to the Commissioner, stated that he executed the following works by collecting donations from public. 1. Construction of Sri Sundreswara Swamy Temple … Rs.16,00,000- 00 2. Dwajams to Sri Swamivari and Ammavaru … Rs. 5,00,000-00 3. Construction of Naga Prathista Mandapam … Rs. 75,000-00 4. Pradakshina Mandapam … Rs. 15,000-00 5. Drainage … Rs. 31,000-00 6. Temporary pendals Gayatri Temple … Rs. 40,000-00 7. ‘Q’ Lines … Rs. 20,000-00 8. Two fountains … Rs. 10,000-00 9. Water Tanker … Rs. 35,000-00 10. Bore Well … Rs. 75,000-00 11. Fans an Decoration Lamps … Rs. 25,000-00 12. Tiles to Mahamandapam … Rs. 10,000-00 13. Decoration lamps … Rs. 20,000-00 On making enquiry, the Regional Joint Commissioner, Endowments Department, Multi Zone-II, Tirupathi stated that there is an Executive Officer to look after the administration of the temple and that all the afore mentioned works were executed without obtaining any sanction of Estimates. He also stated that Sri Sundar Raju collected donations from Public without passing receipts and without crediting to temple Account. In general practice it is the duty of the Executive Authority/ Executive Officer to seek permission from he Competent Authority for collecting donations from the public. In the present case no such permission was sought for. The Executive Officer of the temple vide reference 2nd cited issued notice to review the amount of Rs.60,00,000/- collected from the public and devotees but not complied with. In view of the report of the Regional Joint Commissioner, Endowments, Department, Multi Zone-II, Tirupathi following charges are framed against Sri R. Sundara Raju, F.F.M. of Sri Raja Rajeswara Swamy Devasthanam, Durgamitta, Nellore District. 1. That he collected donations from the public without obtaining permission from the competent authority. 2. That he acted detrimental to the interests of the institution in the capacity of Founder ”Trustee”. 3. That he did not maintain record for the donations collected and misappropriated the amounts. 4. That he acted independently in collecting the donations keeping the Executive Officer of the temple in darkness with a malafide intention to misappropriate the funds which amounts to breach of Trust. 5. That he misused his capacity of founder trustee for his personal malafide intentions. Sri R. Sundar Raj, is instructed to send his point wise explanation for the charges framed within 20 days from the receipt of this memo otherwise action will be taken against him as per the material available on records. Sd/-M.Veerabhadraiah Commissioner (F.A.C.)” 12. Section 28 of the Act dealing with Suspension, removal or dismissal of trustee as hereunder: “(1) The authority competent to appoint a trustee may suspend, remove or dismiss a trustee if he- (a) fails to discharge the duties and perform the functions of a trustee in accordance with the provisions of this Act or the rules made thereunder. (b) disobeys any lawful orders issued under the provisions of this Act or the rules made thereunder, by the Government or the Commissioner or the Deputy Commissioner or the Assistant Commissioner; (c) refuses, fails or delays to handover the property and records in his possession relating to the institution or endowment to his successor or any other person authorized in this behalf; (d) commits any malfeasance or misfeasance or is guilty of breach of trust or misappropriation in respect of the properties of the institution or endowment; (e) becomes subject to any of the disqualifications specified in Section 19; or (f) in the case of a religious institution or endowment, ceases to profess Hindu religion. (2) Where it is proposed to take action under sub-section (1), the authority competent to appoint the trustee shall frame a charge against the trustee concerned and give him an opportunity of meeting such charge, of testing the evidence adduced against him and of adducing evidence in his favour; and the order of suspension, removal or dismissal shall state every charge framed against trustee, his explanation and the finding on such charge, together with the reasons therefor. (3) Pending disposal of any charge framed against a trustee, the authority competent to appoint the trustee may suspend the trustee and appoint a fit person to discharge the duties and perform the functions of the trustee.” 13. It is needless to say that sub-section specifies that the authority competent to appoint a trustee may suspend, remove or dismiss a trustee and the other conditions already had been referred to above. 14. Section 6 of the Act dealing with Preparation and publication of list of charitable and religious institutions and endowments on the basis of income reads as under: - “The Commissioner shall prepare separately and publish in the prescribed manner, a list of- (a)(i) the charitable institutions and endowments ; or (ii) the religious institutions and endowments other than maths; whose annual income as calculated for the purpose of levy of contribution under Section 65 exceeds rupees five lakhs; (b)(i) the charitable institutions and endowments ; (ii) the religious institutions and endowments, other than maths; whose annual income calculated as aforesaid exceeds rupees fifty thousand but does not exceed rupees five lakhs ; (c)(i) the charitable institutions and endowments ; or (ii) the religious institutions and endowments other than maths not falling under Clause (a) or Clause (b) ; (d) the maths irrespective of the income ; (e) the Dharmadayam irrespective of the income : Provided that the Commissioner may alter the classification assigned to an institution or endowment in the list and enter the same in the appropriate list in case the annual income of such institution or endowment calculated as aforesaid exceeds or falls below the limits specified in Clause (a) or Clause (b) or Clause (c) for three consecutive years.” 15. Section 15 of the Act dealing with Appointment of Board of Trustees reads as hereunder: “(1) 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; where the income of the institution is between Rs.25 lakhs to Rupees one crore per annum, the Dharmika Parished shall constitute a Board of Trustees consisting of nine persons. (2) Where the income of the institution is between Rs.2.00 lakhs to Rs.25 lakhs per annum, the Commissioner shall appoint a Board of Trustees consisting of five persons and where the income of the institutions is less than Rs.2 lakhs per annum, the Deputy Commissioner concerned may constitute a Board of Trustees consisting of three persons in respect of each such temple keeping in view the traditions, sampradayams and wishes of the devotees: Provided that the Deputy Commissioner may either in the interest of the institution or endowment or any other sufficient cause or for reasons to be recorded in writing appoint a single trustee instead of a Board of Trustees: Provided further that in the case of a religious institution, the Archaka or where there is more than one Archaka, the Pradhana Archaka thereof shall be an ex-officio member of the Trust Board notwithstanding clause (g) of sub- section (1) of Section 19: Provided also that where the Board of Trustees is not constituted for any reason, the recognized 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: Provided also that where there is no Executive Officer or Founder Family member to any institution or where the Government or the authority competent to constitute a Trust Board has not constituted the Trust Board within the period specified under this sub-section, the Commissioner shall make such arrangement as he deems fit to look after the affairs of the institution during the interregnum period between the date of expiry of the terms of the Trust Board and constitution of the new Trust Board: Provided also that one of the members of the Board of Trustees shall be a prominent donar with a long, track record of Philanthropy and support to Hindu Religious Institutions.” 16. Section 15(1) of the Act specifies that in respect of a Charitable or Religious Institution or Endowment, 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; where the income of the institution is between Rs.25 lakhs to Rupees one crore per annum, the Dharmika Parished shall constitute a Board of Trustees consisting of nine persons. 17. Along with writ petition, apart from proceedings under challenge made in Writ Appeal No.145 of 1992, the list of temples published under Section 6 (a) of the Act, the legal notice and reply affidavits, the copy of Lr.No.06/2008 and Certificate of Posting, G.O.Rt.No.1363 and proceedings Rc.No.C2/13882/96-1 also had been placed before this court. 18. The principal contention advanced by the counsel representing the writ petitioner is that the impugned proceeding had been issued by the Commissioner of Endowments and the Commissioner of Endowments had no power, authority or jurisdiction to issue the same, since the second respondent Devasthanam is classified under Section 15(1) of the Act based on the income and it is for the Dharmika Parishad to constitute a Board of Trustees and the Dharmika Parishad alone is the competent authority to exercise such power under Section 28 of the Act in relation thereto. No doubt, certain other grounds also had been pointed out. 19. This court is not inclined to go into the merits and demerits of the case. No doubt, certain submissions were made in relation to the seriousness of the charges involved, but the principal question, which had been argued here, is the authority, who had issued the proceedings under challenge, is incompetent, and hence, the proceeding is one without jurisdiction, the other questions need not be further gone into at this stage. Hence, liberty is given to the competent authority to initiate such appropriate action, if the competent authority is inclined to do so. 20. Subject to the aforesaid liberty, the writ petition is hereby allowed. No order as to costs. ___________________ P.S. NARAYANA, J November 4, 2009. PN THE HON'BLE SRI JUSTICE P.S. NARAYANA WRIT PETITION No.23748 of 2009 November 4, 2009