* THE HON'BLE MR JUSTICE RAMESH RANGANATHAN + WRIT PETITION NO : 7347 of 1993 % 16-12-2005 # Sri Ramanama Sankirthana Sangham, Vijayawada & 3 others Petitioners Vs. $ Government of Andhra Pradesh, rep. By its Secretary for Revenue (Endowments), Secretariat, Hyderabad & 3 others Respondents ! Counsel for petitioners: Sri P.M.Gopal Rao ^ Counsel for respondents: G.P. for Endowments < Gist: >Head Note ? AIR 1971 SC 966 2 AIR 1989 SC 2126 3 AIR 1985 SC 973 4AIR 1978 AP 121 5 AIR 1989 AP 81 6 AIR 2005 SCW 2317 7 (2002)8 SCC 481 8 (2005)6 SCC 537 9 AIR 1986 SC 180 10 (1999)7 SCC 666 11AIR 1971 SC 891 12(1995)3 ALT 271 13(2000)6 ALT 305 14(1996)8 SCC 298 15(2002)1 ALT 32 16(2003)6 SCC 545 17AIR 1987 SC 1239 18(2005)6 SCC 166 19(2005)6 SCC 321 201998(3) An.W.R. 195 211991(II) ALT 321 22 (2004)3 ALT 44 23(2004)2 SCC 590 24(2004)8 SCC 524 25AIR 1987 SCl 71 26 (2000)7 SCC 425 THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION No.7347 of 1993 JUDGMENT: The validity of G.O.Ms.No.433, Revenue (Endowments-I) Department, dated 5.5.1993, in classifying and grading among others, the petitioner – institutions, for the purpose of appointment of Executive Officers and in directing their appointment to the petitioner – institutions, is under challenge in this writ petition. The petitioners also seek a direction that Sections 15 and 29 of the Andhra Pradesh Charitable and Hindu Religious and Endowments Act, 1987 (A.P. Act 30 of 1987), be declared null and void. Facts, to the extent necessary for this writ petition, are that all the four petitioners are societies registered under the Societies Registration Act (Act 21 of 1860). The 1st petitioner was registered on 5.1.1961 and had earlier filed W.P.No. 405 of 1990 which was eventually withdrawn on 27.02.1997. The 2nd petitioner was registered in the year 1949, and the 3rd petitioner in 1956. The 4th petitioner, which was registered on 12.10.1920, was exempted, under G.O.Ms.No.428, dated 19.4.1972, from the provisions of the Endowments Act in so far as it related to appointment of trustees and executive officers. The petitioners contend that their dominant objects are neither religious nor charitable but are incidental to several other vital functions, that the management of their institutions is vested in a governing body elected by the members, the day to day executive functions are discharged by an elected secretary or joint or assistant secretary and that properties belonging to the society were never dedicated or endowed to the public. It is contended that, without an enquiry, without consulting the petitioners and without examining as to whether the petitioners could afford the luxury of having to employ paid executive officers, the 1st respondent, on the executive officers’ association’s request for upgradation and promotion, and on the recommendation of the Commissioner, issued G.O.Ms.No.433 dated 5.5.1993. A counter affidavit is filed, on behalf of the respondents, wherein it is stated that petitioners 1 and 2 are public religious institutions and petitioners 3 and 4 are public charitable institutions, that all the four institutions were published under Section 6(b) of Act. 30 of 1987, registered under Section 38 of A.P. Act 17 of 1966 and that they are under the administrative control of the deputy commissioner, endowments, Kakinada. It is stated that the 1st petitioner, which is under the management of a self- constituted committee, was exempted from the operation of Sections 15 and 29 of Act 30 of 1987 for a period of three years, under G.O.Ms.No.106 dated 23.1.1990, and the exemption period has since expired. Petitioners 2 to 4 are also said to be under the management of self-constituted committees. While the 4th petitioner was granted conditional exemption from the operation of Sections 15 and 29, the 2nd and 3rd petitioners are not covered under any exemption. It is stated that the self- constituted managing committees do not enjoy legal status, that the first petitioner’s managing committee was found guilty of committing various lapses in administering its affairs, that the commissioner of endowments had issued a show cause notice in proceedings dated 22.2.1990, and that after considering their explanation it was decided to appoint an executive officer to set right the affairs of the 1st petitioner – institution, aggrieved by which the 1st petitioner filed W.P.No.405/90 to restrain the respondents from appointing an executive officer or to have a person or trust board appointed to the institution. It is stated that the petitioners’ management had themselves filed applications, seeking grant of certificates of registration, under the provisions of the Endowments Act and had thereby acquiesced to the jurisdiction of the endowments department. It is further stated that these institutions were registered under the provisions of the Endowments Act, that the petitioner – managements were rendering accounts, submitting statutory returns, paying departmental contributions and audit fees and that their accounts were being audited by the L.F. Accounts department. The contention that a proposal is pending for granting exemption, under Sections 15 and 29 of the Act, to the 2nd respondent is denied. Conditional exemption granted to the 4th respondent, under G.O.Ms.NO.428 dated 19.4.1972, is however admitted. It is contended that the petitioner institutions had been established for the benefit of the general public, were funded with contributions from the general public, that the byelaws, framed by the self-constituted managing committees, has no legal effect since, under Section 42(1), the provisions of the Act are given overriding effect over the bye-laws. It is stated that Section 29(1) of Act 30/87 provides for constitution of institutions into groups for the purpose of appointment of executive officers to these institutions and that the government, in G.O.Ms.No.433 dated 15.5.1993, had constituted these institutions into groups. The contention that the Government had issued the said G.O, at the instance of the executive officers’ association, only for the purpose of upgradation and promotion, without enquiry and without consulting the petitioners is denied. It stated that the cadre strength of executive officers was fixed in G.O.Ms.No.433 dated 15.5.1993, on the basis of the income of each institution and that Section 29 of the Endowment Act does not provide either for an enquiry or for consultation before grouping of institutions. It is contended that since all the petitioner institutions are registered under and are governed by the provisions of Act 30 of 1987, the provisions of the Societies Registration Act has no application to such public religious and charitable institutions. Sri P.M.Gopal Rao, learned counsel for the petitioners, in his written submissions, would contend that G.O.Ms.No.433 dated 5.5.1993 sanctions additional posts of executive officers and directs the Commissioner to appoint executive officers, to the institutions mentioned in the schedule to the G.O, including to the petitioner – institutions. The said G.O. accords sanction for 81 Executive Officers Grade-I posts, 239 posts of Executive Officers Grade-II and 421 posts of Executive Officers Grade- III. The G.O. specifically states that it is passed on the proposals of the commissioner of endowments and after considering the viability of the institutions. Under the said G.O., the Commissioner is directed to draw the salaries and allowances of executive officers and to recover the same from the institutions and since this direction affects the petitioner societies, the present writ petition has been filed. The contentions of the learned counsel can broadly be classified, as under: i. Relevant factors were neither considered nor examined by the 1st respondent, while issuing the impugned G.O., including that the appointment of executive officers was not in the interest of the institutions, that the institutions could not afford to pay salaries to executive officers and that it violates Section 57(2) of the Endowments Act; ii. The impugned G.O. violates the petitioners fundamental rights, under Article 19(1)(c) of the Constitution of India, to carry on administration as per their bye laws; iii. Their fundamental rights, under Article 19(1)(g) of the Constitution of India, to carry on their occupation, as per their own bye laws, through their elected general secretary, is violated; iv. The impugned G.O. is in violation of the provisions of the A.P. Societies Registration Act 2001 (A.P. Act. 35/2001). Since Act 35/2001 is a subsequent and special enactment dealing with societies whereas the Endowments Act is a general enactment, dealing with all charitable or religious institutions, whether societies or other bodies or association of persons, the subsequent special law will prevail over the earlier general law. Learned counsel, would submit that the petitioner-institutions have a right to preserve their constitution, under Article 19(1) (c) of the Constitution of India, and would rely on Damayanti v. Union of india, Asom Rastrabhasa Prachar Simiti v. State of Assam, Daman Singh v. State of Punjab, Seethapathi Nageswara Rao v. State of A.P., and M.Raja Reddy v. State of A.P. in this regard. Learned counsel would refer to, Zoroastrian Co-operative Housing Society Ltd. V. District Registrar, Cooperative Societies (Urban) wherein it was held that Cooperative Societies, being creatures of the Cooperative Act, are bound by the restrictions under the said Act, and contend that this principle would not apply to Societies registered under the Societies Registration Act as they are autonomous bodies. Learned counsel would submit that the petitioners are guaranteed the fundamental right to carry on their occupation, in accordance with their bye laws, under Article 19(1) (g) of the Constitution of India, and would refer to T.M.A. Pai Foundation v. State of Karnataka, and P.A. Inamdar v. State of Maharashtra to contend that since the nature of its objects is carrying on charitable and other spiritual activities, the petitioners must be held to be carrying on an occupation and, except for the permissible restrictions under Articles 19(4) and 19(6), the fundamental rights of the petitioners to form an association and carry on their occupation cannot be violated, and that appointment of Executive Officers to the petitioner-institutions would be an unreasonable restriction on their fundamental rights to run their administration and in carrying on their affairs in accordance with law. Learned counsel would submit that the A.P. Societies Registration Act 2001 provides for the internal management of the affairs of the society and since the byelaws provide for the same, the impugned G.O. must be held to be inoperative being inconsistent with the provisions of the A.P. Societies Registration Act 2001. According to the Learned counsel since both the Endowments Act and the Societies Registration Act are laws made by the State Legislature, the A.P. Societies Registration Act, 2001, being the later law would prevail over the provisions of the earlier law to the extent of inconsistency. Learned counsel would contend that neither the fundamental rights guaranteed under the Constitution of India nor the statutory rights conferred under the A.P. Societies Registration Act 2001 can be waived, since there is no estoppel against the law, and would rely on Olga Tellis v Bombay Municipal Corporation in this regard. Learned counsel would submit that the earlier W.P.No.405/90 was filed in January 1990 as the period of exemption, previously granted to the 1st petitioner, was about to expire and as no action was taken regarding its further extension, and that this Court, while granting an order of status quo on 22.1.1990 had directed the government to dispose of the application dated 28.12.1989. Thereafter, on the recommendations of the Commissioner, the Government issued G.O.Ms.No.106, Revenue (Endts.IV) Department dated 23.1.1990 granting exemption to the 1st petitioner from the operation of Sections 15 and 29 of the Endowments Act for a period of three years from that date. The petitioner was called upon, vide notice dated 22.2.1990, to show cause as to why an executive officer should not be appointed and, by order dated 22.2.1990, the inspector of endowments was appointed to take complete charge of the institution at once. The 1st petitioner filed a revision petition and the government, vide proceedings dated 27.6.1990, granted interim stay of operation of the order of the Commissioner dated 19.6.1990 and subsequently issued G.O.Ms.No.433, (Revenue Endts-I) dated 5.5.1993. According to the learned counsel, the present writ petition came to be filed challenging the constitutional validity of certain provisions of the Endowments Act and the applicability of the provisions of Act 30/97 with regards appointment of trustees and executive officers to the petitioner institutions, and since this Court granted stay, in W.P.M.P.No.9219 of 1993, on 21.7.1993, the earlier writ petition in W.P.No.405 of 1990 was subsequently withdrawn on 27.2.1997. Learned counsel would submit that in the revision filed by the petitioner, against the earlier order dated 19.6.1990, the government, by order dated 13.3.1997, had directed appointment of a trust board. Both the orders of the commissioner dated 19.6.1990 and 13.3.1997 were challenged in W.P.No.9884 of 1997 and the said writ petition was allowed on 20.3.2003 quashing both the orders. Learned counsel would submit that in the aforesaid judgment it was held that the order of the Commissioner dated 19.6.1990 was incompetent since it was passed at a time when the institution was exempted from sections 15 and 29 of the Act and that the order of the government was perverse apart from being illegal. Against the order in W.P.No.9884 of 1997, the government filed W.A.No.1098 of 2003 which was dismissed by the Division Bench on 8.8.2003. It is contended that since the show cause notice had merged with the orders of the Commissioner dated 19.6.1990 appointing the Executive Officer and this order dated 19 06.1990 was quashed, no reliance could be placed by the respondents on their earlier orders nor could maladministration be attributed to the 1st petitioner herein. Learned counsel would submit that petitioners 2 and 3 are arya vysya institutions recognized as denominational, for the purpose of protection under Article 26(d) of the Constitution of India, and since this question is pending before a Division Bench in L.P.A.16/1979, consequent on the order of remand passed by the Supreme Court in Kanyaka Parameswari Annasatram Committee v. Commissioner Hindu Religious and Charitable Endowments Department, it is not necessary for this Court to examine this question in the present writ petition. Learned Government Pleader for Endowments would submit that having registered themselves under Section 38 of A.P. Act 17 of 1966 and published under Section 6 of Act 30 of 1987, it is not open to the petitioners to contend that the Endowments Act has no application. He would submit that the petitioners cannot take advantage of the bye-laws, made by their self constituted managing committees, since Section 42 of Act 30 of 1987 gives overriding effect to the provisions of the Act. Learned Government Pleader would submit that Section 27 of A.P. Act 17 of 1966 also dealt with appointment of executive officers and the constitutional validity of the said provision was upheld by the Supreme Court in Kakinada Annadana Samajam v. Commissioner of Hindu Religious & Charitable Endowments, Hyderabad. He would submit that the impugned G.O. merely classifies and fixes the grades and strength of executive officers grade I, II and III depending on the annual income, cadre of officers to be appointed etc. It is well settled that unless compelled to do so this Court, under Article 226 of the Constitution of India, would not, normally, adjudicate the vires of statutory provisions. A Full Bench of this Court in Andhra Pradesh Power Diploma Engineers’ Association v. Andhra Pradesh State Electricity Board held that courts would not enter into academic discussions regarding the constitutional validity of statutory provisions unless such a decision becomes necessary for the purpose of the decision in the case. In Government of A.P. v. Medwin Educational Society, a Full Bench of this Court held: “We remind ourselves of the settled principle of Constitutional adjudication that Constitutional issues should not be considered by the judicial branch as an academic issue. There is also a settled principle that if a lis could be decided on grounds other than constitutional issues the lis should be decided on the other issues” It is wholly unnecessary for this Court to examine the vires of Section 15 and 29 of Act 30 of 1987, or to deal with the other contentions of Sri P.M. Gopal Rao, learned counsel for the petitioner, since the writ petition is required to be disposed of on the short ground that the Commissioner, is required to take into consideration the factual position relating to each individual charitable or religious institution and after proper application of mind exercise his discretion in deciding as to whether or not an executive officer is required to be appointed thereto. The rival contentions in this regard are referred to in brief. Sri P.M.Gopal Rao, learned counsel for the petitioner, would submit that the power, to appoint executive officers, has to be exercised on relevant date, facts and materials and on an examination as to whether there is any necessity to appoint an executive officer to the subject charitable or religious institution. Learned counsel would submit that the relevant consideration is the interest of the institution alone and not opening avenues of promotion to members of the executive officers association. Learned counsel would rely on Pavani Sridhara Rao v. Govt. of A.P. , K.V. Rama Sastry v. Govt. of A.P., Legislative Affairs and Justice, Law Dept and Chandra Singh v. State of Rajasthan. Learned counsel would contend that the impugned G.O. is also in violation of the financial provisions in Section 57(2) of Act 30 of 1987 as the expenditure, relating to the salaries and allowances of executive officers, when added to the already existing establishment charges incurred for other employees, would exceed the limits prescribed. Learned counsel would contend that, before issuing the impugned G.O, the respondents were duty bound to consider the objections of the institutions, in the light of their budgets, annual reports, their future plans for development and their existing liabilities, and then decide as to whether an executive; officer should be appointed and since the impugned G.O. was passed merely on the recommendations of the Commissioner, it is required to be set aside on the ground of non-application of mind. Learned counsel would contend that, before appointment of executive officers, the respondents ought to have given the petitioners an opportunity of being heard and would rely on Baldev Singh v. State of Himachal Pradesh, R. Murali v. Kanyaka Parameswari Devasthanam and Canara Bank v. V.K. Awasthy, in this regard. Learned counsel would submit that the only reason stated, in the impugned G.O, for fixing the strength of executive officers, is to regulate fiscal discipline in charitable and religious endowments. According to the learned counsel appointment of executive officers, by the Commissioner or the Government, and in paying them huge salaries would not be conclusive to fiscal discipline and on the other hand would mulct the institutions with additional financial liability, which they could ill afford. Learned counsel would submit that the executive functions, relating to the petitioner-institutions, are being discharged by a secretary on an honorary basis and if he is substituted by a paid executive officer, it would needlessly burden and adversely affect the financial position of the petitioner-institutions. On the other hand, learned Government Pleader would submit that Section 29(3) of Act 30 of 1987, relating to appointment of executive officers, is mandatory and that the petitioners have acquiesced to the jurisdiction of the respondents under the provisions of the Act and are therefore estopped from contending that the provisions of the Act are not applicable to them. He would submit that the impugned G.O. has been made in exercise of the powers conferred under Section 29(3) of the Endowments Act. According to the Learned Government Pleader, in view of Section 29(5), the executive officer appointed by the government, on the basis of the recommendations of the Commissioner, is only to assist the governing body and to ensure that the provisions of the Act are complied with. Learned Government Pleader would refer to Section 29 and Section 8 of the Endowments Act in this regard. Before examining this question, the provisions of the Andhra Pradesh Charitable and Hindu Religious Institutions & Endowments Act, 1987 (Act 30 of 1987), and that of the impugned G.O.Ms.No. 433 dated 05.05.1993 are to be taken note of. Act 30 of 1987 is an Act to consolidate and amend the law relating to the administration and governance of Charitable and Hindu Religious Institutions and Endowments in the State of Andhra Pradesh. Section 2(12) defines ‘endowment administration fund’ to mean the Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Administration Fund established under sub-section (1) of Section 69 of the Act. Section 2(13) defines ‘Executive Officer’ to mean an officer appointed as such under any of the provisions of the Act. Sections, 8, 15 and 29 read thus:- 8. Powers and functions of Commissioner and Additional Commissioner:- 1. Subject to the other provisions of this Act, the administration of a 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. 2. Without prejudice to the generality of the foregoing provisions, the Commissioner shall exercise the powers conferred on him and perform the 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 Sec.6. 3. The powers and functions of the Additional Commissioner shall be such as may be determined by the Government from time to time. 4. The Commissioner may delegate to a Deputy Commissioner any of the powers conferred on or functions entrusted to the Commissioner by or under this Act including the powers and functions of an Assistant Commissioner which may be exercised or performed by the Commissioner under sub-section (5) but not including the power and functions of the Commissioner under sub-section (1), Sections 6, 15, 49, 51, 66, 90, 92 and 132 in respect of any institutions or endowments or any class or group of institutions or endowments in the State subject to such restrictions and control as the Government may by general or special order lay down and subject also to such limitations and conditions, if any, as may be specified in the order of delegation. 5. The Commissioner may delegate to an Assistant Commissioner any of the powers conferred on or functions entrusted to the Commissioner by or under this Act except the powers and functions of the Commissioner under sub- section (1), Sections 6, 15, 49, 51, 66, 90, 92 and 132 in respect of any institution or endowment in the sub-division in charge of the Assistant Commissioner subject to such restrictions and control as the Government may, by general or special order, lay down and subject also to such limitations and conditions if any, as may be specified in the order of delegation. 6. Notwithstanding anything in Sections 10 and 11, the Commissioner may, by order in writing, declare that the exercise and performance of all or any of the powers or functions by the Deputy Commissioner or the Assistant Commissioner, as the case may be, shall be subject to such exceptions, limitations and conditions as may be specified in the order and he may himself exercise any power or perform the functions so excepted. Section 15. Appointment of Board of Trustees: (1) In respect of a charitable or religious institution or endowment included in the list published under clause (a) of Section 6- a. whose annual income exceeds rupees ten lakhs, the Government shall constitute a Board of Trustees consisting of nine persons appointed by him; b. whose annual income does not exceed rupees ten lakhs, the Commissioner shall constitute a Board of Trustees consisting of Seven persons appointed by him. (2) In respect of charitable or religious institution or endowment included in the list published under clause (b) of Section 6, the Deputy Commissioner having jurisdiction shall constitute