*HON'BLE SRI JUSTICE P.S. NARAYANA +Writ Petition No.50 of 2006 %19-2-2008 #Gowlla Gidda Reddy. …Petitioner And $ The Executive Officer, Group Temples, appointed as Single Trustee to Sri Gidda Anjaneya Swamy Temple, Tarapuram (v), Peddakadugur (M) Kurnool District and another. … Respondents <GIST: >HEAD NOTE: ! Counsel for petitioner : Sri M.Vidya Sagar ^ Counsel for respondent No.1 : Sri V.T.M. Prasad Counsel for respondent No.2 : Government Pleader for Endowments Department ? CASES REFERRED : 2007(4) SCJ 667 HON'BLE SRI JUSTICE P.S. NARAYANA Writ Petition No.50 of 2006 Date: February , 2008 Between: Gowlla Gidda Reddy. …Petitioner And 1. The Executive Officer, Group Temples, appointed as Single Trustee to Sri Gidda Anjaneya Swamy Temple, Tarapuram (v), Peddakadugur (M) Kurnool District and another. … Respondent * * * ORDER: Gowlla Gidda Reddy, the writ petitioner, filed the present writ petition for a writ of Mandamus declaring action of the first respondent, the Executive Officer of Group Temples, Yemmiganur, appointed as single trustee to Sri Gidda Anjaneya Swamy Temple at Tarapuram village, Peddakadubur Mandal, Kurnool District, in trying to illegally exercise the jurisdiction over the Samadhi of Moula Saheb of said Tarapuram village, as illegal, arbitrary and without jurisdiction and pass such other suitable orders. 2. This Court issued rule nisi on 06.01.2006. On 17.02.2006 in W.P.M.P.No.52 of 2006 this Court made the following order: “The first respondent filed a detailed counter. Whether the Samadhi in question comes under the jurisdiction of the Endowments Act or wakf Act is a question to be decided in the main writ petition. Without deciding the said question I am not inclined to grant the interim order as prayed for. Hence, post the writ petition for final hearing on 20.03.2006, subject to part-heard.” 3. Apart from the counter-affidavit of the first respondent, second respondent also filed counter-affidavit. 4. Sri M. Vidya Sagar, learned counsel representing the writ petitioner had taken this Court through the contents of the affidavit filed in support of the writ petition, the representation made by the writ petitioner in this regard and would maintain that in the facts and circumstances of the case, the first respondent has no power, authority or jurisdiction over the Samadhi in question. The learned counsel also, while further elaborating his submissions, had taken this Court through the respective counter-affidavits and the stands taken by the first respondent and second respondent as well and would maintain that inasmuch as the Samadhi is not registered at all in accordance with the provisions of the Andhra Pradesh Charitable and Hindu Religious Institutions & Endowments Act, 1987 (hereinafter in short referred to as 'the Act' for the purpose of convenience) there is no question of invoking power under Section 15 (3) of the Act in relation to the said Samadhi. The learned counsel also had taken this Court through Section 2 (17) (18) (23) (27) and also further had taken this Court through Section 6 (d), Section 15 (3) and Sections 43, 47 to 55 of the Act as well and would maintain that unless and until the Samadhi also is registered in accordance with the provisions of the Act, the question of appointing an executive officer to administer or manage the affairs of the said Samadhi would not arise. The learned counsel also would submit that being the devotee he would fall under ‘person having interest’ and the writ petitioner can perfectly maintain the writ petition. Further, the learned counsel would submit that merely because a bald assertion had been made that the Samadhi is being treated as part and parcel of the temple in question for sufficiently a long time, by that itself it cannot be said that such power can be exercised under the provisions of the Act. Hence, the learned counsel would submit that the action to be declared invalid and let the authorities take appropriate steps to see that it is duly registered in accordance with the provisions of the Act if the authorities are advised to do so. 5. Sri V.T.M. Prasad, learned counsel representing respondent No.1 had taken this Court through the contents of the counter-affidavit and would maintain that in the facts and circumstances of the case it cannot be said that the appointment of the executive officer is void in law. The learned counsel also specifically pointed out that the Samadhi was never treated as a separate entity and the same is being part and parcel of the institution, absolutely there is no illegality in the action impugned in this writ petition. 6. Learned Government Pleader for Endowments had taken this Court through the contents of the counter-affidavit of the second respondent and would maintain that the Samadhi in question had been always treated as part and parcel of the temple-institution and the same had been duly registered under Section 6 of the Act. The writ petitioner is a busybody unconcerned with the affairs of the institution as such and for extraneous reasons the present writ petition had been filed. The contention that the Samadhi is to be separately registered and till then Endowments Department cannot exercise the power, authority or jurisdiction over the Samadhi in question, also cannot be said to be a sustainable contention in the light of Section 1 (3)(b) of the Act. The learned Government Pleader for Endowments also would submit that at any rate in the peculiar facts and circumstances it is not a fit matter to be interfered with. Further, the learned Government Pleader for Endowments placed strong reliance on the decision in Sri Gedela Satchidananda Murthy (D) By LRs. V. Dy. Commnr., Endowments Deptt., A.P. and others[1]. 7. Heard the counsel, perused the respective pleadings of the parties and also the material placed before this Court. 8. It is the case of the writ petitioner that the writ petitioner is a devotee of the subject Samadhi of Tarapuram village wherein one person by name Moula Saheb, who was the saint, attained ‘jeeva samadhi’ in the land belonging to one Omkarappa and the said land was a private land which was purchased by Omkarappa from his personal funds. It is also his case that the petitioner had been performing poojas to the said Samadhi as devotee and his family members also had been worshiping the said Samadhi and thus the writ petitioner would fall within the definition of the ‘person interested’. 9. It is also averred that in the village Tarapuram there was a saint by name Moula Saheb, who was a Muslim by religion, and in view of the powers which he possessed, he was treated as a ‘Guru’ by some of the members of the village and he was possessed of several saintly qualities as well. People of all religions used to come to Moula Saheb and there was no restriction to allow access on the basis of religion, caste or creed. The said Moula Saheb attained ‘Jeeva Samadhi’ in the year 1972 and it is also stated that the writ petitioner, his brothers and his parents had been performing regular poojas to the Samadhi even from the year 1972 when the saint had attained ‘Jeeva Samadhi’. 10. It is also stated that he was celebrating ‘Aradhana festival’ and also for certain other purposes donations were given by the devotees of all religions. Further, it is averred that whether the Samadhi falls within the purview of the Act aforesaid or would fall under the Wakf Act, may have to be yet decided and no enquiry as such had been conducted in this regard. The Samadhi was never registered under the provisions of the Act nor was it classified under Section 6 (c) of the Act aforesaid. In the absence of any classification being made the first respondent had no jurisdiction, whatsoever, either to interfere with the management of Samadhi or to interfere with any other activities of the petitioner’s family in relation to the Samadhi. Several other facts had been narrated asserting that the appointment of an executive officer to the Samadhi cannot be made at all. 11. It is also stated that the petitioner made a representation to both the respondents dated 21.11.2005 informing that the said action was illegal. In such circumstances the writ petitioner filed the present writ petition praying for the reliefs specified supra. A copy of the representation also had been placed before this Court. 12. In the counter-affidavit filed by the first respondent the locus standi of the writ petitioner to maintain the writ petition had been made a ground of attack. The writ petitioner is neither a trustee nor competent to administer the affairs of the subject Samadhi. The subject Samadhi had been always maintained as part of Sri Gidda Anjaneya Swamy Devasthanam at Tarapuram village. Moula Saheb, during his life time, was a spiritual devotee of Sri Gidda Anjaneya Swamy. During his life time he observed Hindu religion and spent his entire time in the said temple premises and got divine power being devotee of Sri Gidda Anjaneya Swamy. 13. It is also averred in para 5 of the counter-affidavit that after the death of Moulali, a Samadhi was constructed and poojas were being observed as per Hindu religious customs and it was the reason to call it as Samadhi, but it was not called as Darga. After the death of Sri Moulali, the disciples and followers voluntarily contributed donations and collectively constructed Samadhi under the supervision and management of Sri Gidda Anjaneya Swamy Devasthanam. It was always treated as part of Sri Gidda Anjaneya Swamy Devasthanam, though it is situated within the radius of 1½ furlongs and being administered by the management of the said Devasthanam. 14. Further it is averred that the first respondent had been appointed as single trustee of Sri Gidda Anjaneya Swamy Devasthanam vide proceeding Rc.No.A1/3012/2005 Adm., dated 11.7.2005 and taken charge of the Devasthanam including the subject Samadhi and discharging duties as single trustee of the temple including the present Samadhi from the date of appointment. The previous de facto trustee had challenged his appointment as single trustee and there was no stay granted in his favour. The previous trustee did not hand over relevant records inspite of notices. 15. Further it is stated that the writ petitioner had no locus standi to challenge the administration of the subject Samadhi by the first respondent as he was appointed by the competent authority as required under proviso to sub-section (3) of Section 15 of the Act. The writ petitioner was not a person authorized under the provisions of the Act and he did not reveal the fact that late Sri Moulali was a spiritual devotee of Sri Gidda Anjaneya swamy and as per his wishes his Samadhi was treated as part and parcel of the temple by extending the administration to it. It is also stated that it was incorrect to say that Sri Moulali (not Moula Saheb) was a Muslim by religion. In fact, he belonged to Dudekula community and he always observed Hindu religion being the spiritual devotee of Sri Gidda Anjaneya Swamy. It is also not correct to say that the people of all walks of life and other religious people associated with Sri Moulali. 16. As stated above Sri late Moulali was known as saint professing Hindu religion and strict observer of Hindu religion. The reference of Omkarappa had no relevance for the present dispute and the writ petitioner cannot make any claim from Sri Omkarappa, since both are hailing from different families. The petitioner is not taking part in performing poojas at the subject Samadhi. Aaradhana festivals were being performed by the management of Sri Gidda Anjaneya Swamy Devasthanam with the funds derived from the hundi at the subject Samadhi as well as from the funds of Devasthanam. 17. Further it is stated that the question of deciding whether the administration of subject Samadhi comes under Endowments Act or Wakf Act, does not arise as Sri late Moulali is a spiritual devotee of deity of Sri Gidda Anjaneya Swamy and always followed and preached Hindu religion only. All poojas and ceremonies at subject Samadhi were being performed as per Hindu religion and customs. Since it is right from the inception of Samadhi always treated as part of Sri Gidda Anjaneya Swamy Devasthanam and administered by said Devasthanam, it does not require any separate declarations. The writ petition is not maintainable since there is a statutory remedy provided under the provisions of the Act. 18. It is also stated that this respondent was appointed as single trustee by the competent authority under Section 15 (3) of the Act and he is competent to administer the affairs of subject Samadhi. It is incorrect to say that hundi was taken away by this respondent. The facilities available earlier are being continued and there was no sufferance caused to anybody as stated in the writ petition. Certain further averments also had been made in para 11 of the counter- affidavit as well. 19. In the counter-affidavit filed by the second respondent the locus standi of the writ petitioner to maintain the writ petition had been raised as a specific ground. It is also averred that the said Samadhi is maintained as part and parcel of Sri Anjaneya Swamy Devasthanam, situated at Tarapuram village and the contention that the petitioner had been performing poojas to the Samadhi etc., had been specifically denied. During the life time of Moulali he was a spiritual devotee of Sri Gidda Anjaneya Swamy and he observed Hindu religion and spent his entire life in the temple premises and got divine power. After the death of Moulali, a Samadhi was constructed and poojas were performed as per Hindu religious customs under the supervision of Sri Gidda Anjaneya Swamy Devasthanam and it was a Samadhi and not a Darga. Neither the petitioner nor his family had any right whatsoever in the affairs of Samadhi. The temple was published under Section 6 (c) of the Act and hence the respondent No.2 is empowered to appoint Single Trustee in the interest of public and good administration. 20. Further, it is stated that the question of determining whether the Samadhi comes under Section 6 (c) of the Act or not does not arise, since it was always treated as part of the temple. The petitioner was claiming rights for the first time, hence, the present writ petition is not maintainable. The respondent No.1 was appointed as Trustee under Section 15 (3) of the Act and the same is legal and had become final. In view of the same, the petitioner has to apply before the competent authority for necessary appointment. Further it is stated that the petitioner failed to avail remedies available under the Act and he had no locus standi to invoke the extraordinary jurisdiction under Article 226 of the Constitution of India. 21. These are the respective stands taken by the parties. 22. Certain photographs showing the Samadhi also had been placed before this Court. The learned Government Pleader for Endowments placed strong reliance on the decision in Sri Gedela Satchidananda Murthy (D) By LRs. V. Dy. Commnr., Endowments Deptt., A.P. and others (1 supra) wherein the Apex Court at paras 24 and 25 observed as hereunder: “In view of the fact that members of the public could visit the temple only on payment of some amount is itself indicative of the fact that they could do so as of right. It has been found as of fact that there used to be regular visitors in the temple. They would not only pay their obeisance to the great men who had been buried there but also offer pujas at the temple. It has also been found as of fact that various types of pujas were being performed by the public at the temple on payment. Pamphlets had been issued by the plaintiffs themselves for the aforementioned purpose. The said pamphlets were marked as Exs.B-7 and B-8. We have noticed hereinbefore that the Act itself recognizes Samadhi. A religious institution, thus, includes a Samadhi. When it is established or maintained for public purpose together with a temple, it would indisputably come within the purview of the said definition of the said terms.” No doubt, the learned counsel representing writ petitioner had distinguished the same and would maintain that inasmuch as facts are different, the said decision cannot be made applicable to the present case. 23. Be that as it may, as can be seen from the respective stands taken by the parties, the under noted facts appear to be not in serious controversy. No doubt in the counter-affidavit of R-1 it is stated that the said saint belonged to Dudekula Community. Be that as it may the fact remains that the saint by name Moulali, who was an ordained devotee of Sri Gidda Anjaneya Swamy of Tarapuram, had attained ‘jeeva samadhi’ in the year 1972. It is also not in serious controversy that the Samadhi as such had not been separately registered under the provisions of the Act. The specific stand taken in the counter-affidavits of R-1 and R-2 is to the effect that always the Samadhi is being treated as part and parcel of the main institution, the temple in question, and hence may be it is the stand of the respondents that no specific registration as such is necessary under the provisions of the Act. 24. Section 1 (3)(b) of the Act specifies that it applies to all Hindu public religious institutions and endowments whether registered or not in accordance with the provisions of this Act. Section 2 of the Act deals with definitions; Section 2 (17) of the Act defines ‘Math’; Section 2 (18) of the Act defines ‘person having interest’ and the said definition is an inclusive definition; Section 2 (23) of the Act defines ‘Religious institution; Section 2 (27) of the said Act defines ‘Temple’ and Section 6 of the Act deals with preparation and publication of list of charitable and religious institutions and endowments on the basis of income. 25. Specific reliance was placed on Section 6 (d) of the Act which deals with ‘maths irrespective of the income’. Section 8 of the Act deals with ‘powers and functions of Commissioner and Additional Commissioner’. Sub-section (1) says as hereunder: “8. Powers and functions of Commissioner and Additional Commissioner:- (1) Subject to the other provisions of this Act, the administration of all Charitable and Hindu Religious institutions and endowments shall be under the general superintendence and control of the Commissioner and such superintendence and control shall include the power to pass any order which may be deemed necessary to ensure that such institutions and endowments are properly administered and their income is duly appropriated for the purposes for which they were found or exist.” Sub-Section (2) of Section 8 reads as hereunder: “(2) Without prejudice to the generality of the foregoing provisions, the Commissioner shall exercise the powers conferred on him and perform he functions entrusted to him by or under this Act in respect of such institutions or endowments in the State as are included in the lists published under Clause (a), Clause (d) and Clause (e) of Section 6.” 26. Section 15 of the Act deals with ‘Appointment of Board of Trustees’. Section 15 (3) specifies as hereunder: “In the case of any charitable or religious institution or endowment included in the list published under Clause (c) of Section 6, the Assistant Commissioner having jurisdiction shall constitute a Board of Trustees consisting of three persons appointed by him: Provided that the Assistant 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.” 27. Section 43 of the Act deals with ‘Registration of Charitable and Religious Institutions and Endowments’. Chapter V of the Act deals with ‘Maths and specific endowments attached thereto’ and Sections 47 to 55 of the Act deal with different aspects relating to the ‘Maths’. 28. Section 55 of the Act dealing with Power of commissioner to frame schemes reads as hereunder: “(1) Where the Commissioner either suo motu or upon a report submitted by the Deputy Commissioner or the Assistant Commissioner having jurisdiction, has reason to believe that the affairs of the math and its properties are being mismanaged, funds are being misappropriated, or that there is gross neglect of duty on the part of the mathadhipathi, he may after making such enquiry, as may be prescribed, order to frame a scheme of administration, of a math and the specific endowment. (2) A scheme of administration framed under sub-section (1) may contain provision for:- (a) appointing or directing the appointment of an Executive Officer; (b) constituting a committee consisting of not more than five persons for the purpose of assisting in the whole or any part of the administration of all the endowments of such math or of specific endowments; Provided that the members of such Committee shall be chosen from among such persons having interest in such math or endowment; (c) determining the powers and duties of such committee; and (d) any other relevant matter incidental to the framing of such scheme. (3) Until a scheme is framed under sub-section (1) the Commissioner may appoint a fit person to manage the properties of math and its endowment. (4) the Commissioner, after consulting the mathadhipathi and other persons having interest, and after making such enquiry as may be prescribed may by order modify or cancel the scheme settled under sub-section (1). (5) Every order passed by the Commissioner under sub-section (1) and sub-section (4) shall be published in the manner prescribed. (6) Any person aggrieved by the order of the Commissioner passed either under sub-section (1) or under sub-section (4), may, within sixty days from the date of publication of the order, prefer an appeal to the Court.” 29. The main grievance ventilated by the writ petitioner is that the Samadhi in question cannot be treated as part and parcel of the temple or institution as such and the said temple or institution alone had been registered and notified in accordance with Section 6 (c) of the Act and unless there is a specific and separate registration relating to the Samadhi, the question of appointing an executive officer to manage the affairs under Section 15 (3) of the Act would not arise, especially, in the light of the other provisions, Sections 6 and 43 of the Act. As far as the general powers of the Commissioner of Endowments are concerned, there cannot be any dispute or controversy. 30. Further, as far as the applicability of the provisions of the Act as such is concerned, in the light of Section 1 (3)(b) there cannot be any doubt or controversy. But however, it is not in serious controversy that the Samadhi as such had not been separately registered. 31. No doubt, yet another question also had been raised whether a Samadhi of this nature would fall within the provisions of the Act at all or not. This Court is not inclined to go into such question, especially, in the light of the common stand taken by all the parties that the said deceased saint was an ordained devotee of Gidda Anjaneya Swamy and always he had professed the said faith. Be that as it may, this is no doubt a factual controversy. 32. In the light of the peculiar facts and circumstances, inasmuch as the Commissioner of Endowments is not made a party to the present writ petition and in view of the general powers of control and superintendence in relation to management and other affairs, let the writ petitioner make appropriate representation in this regard narrating all the details to the Commissioner of Endowments within a period of two (2) weeks from the date of receipt of this order and let the Commissioner of Endowments look into all these aspects and take appropriate decision in this regard within a period of eight (8) weeks thereafter. In