Andhra HC (Pre-Telangana)
Sankuri Yadaiah vs Government Of Andhra Pradesh, Rep. By ... on 11 October, 2007
Equivalent citations: 2007(6)ALT804
Author: G. Rohini
Bench: G. Rohini
ORDER G. Rohini, J.
1. These two writ petitions are filed by one Sankuri Yadaiah, the founder trustee of Sri Padmavathi Venkateswaraswami Temple, Kushaiguda.
2. W.P. No. 984 of 2007 is filed seeking a declaration that the order passed by the first respondent-Government of Andhra Pradesh dated 22-12-2006 keeping in abeyance its earlier order dated 08-12-2006 wherein the proceedings against the petitioner for removal as founder trustee as well as the Chairman of the temple were dropped as arbitrary and illegal.
3. W.P. No. 1364 of 2007 is filed seeking a declaration that the order passed by the Commissioner of Endowments dated 05-12-2006 fixing rotation among the founder family members of the temple in question for considering them as Chairman of the Board of Trustees as arbitrary and illegal.
4. Since both the writ petitions are based on the same set of facts, involving common questions of fact and law, they are heard together and decided by this common orders. For the sake of convenience, the parties shall be hereinafter referred to as they are arrayed in W.P No. 984 of 2007.
5. The case of the petitioner, as pleaded in the affidavits filed in support of the writ petitions, is as follows:
The petitioner along with his deceased brother Sankuri Balaiah, constructed and developed Sri Padmavathi Venkateswara Swamy Temple, Kushaiguda, R.R. District which is a temple registered under Section 43 of the A.P. Charitable and Hindu Religious Institutions and Endowments Act, 1987 (for short, 'the Act'). The name of the petitioner along with his brother was entered in Column No. 4 of the Register under Section 43 of the Act as founders of the temple. While so, on an application made by the respondents 4 to 7 herein along with one P. Bapu Reddy, the Assistant Commissioner of Endowments, Medak, by order dated 23-4-1993 directed that their names shall also be entered in the Register as founder members holding that the enquiry revealed that they were also founders of the temple. Aggrieved by the said order, the writ petitioner filed O.A No. 23 of 1993 under Section 87 of the Act before the Deputy Commissioner of Endowments, Hyderabad. After hearing both the parties, the said petition was allowed by order dated 18-8-1993 thereby setting aside the order of the Assistant Commissioner dated 23-4-1993. Questioning the same, the respondents 4 to 7 herein filed CMA. No. 66 of 1993 in the Court of the District Judge, R.R. District which was allowed by Judgment dated 12-8-1994 and the matter was remanded to the Deputy Commissioner of Endowments for de novo enquiry. On such enquiry, the Deputy Commissioner of Endowments by order dated 14-8-2000 held that the respondents 4 to 7 herein had associated with the temple affairs along with writ petitioner and his deceased brother and that they made efforts for the development of the temple right from the beginning. Accordingly, the Assistant Commissioner of Endowments was directed to enter the names of the respondents 4 to 7 herein also in Column No. 4 of the Register of Institutions and Endowments maintained under Section 43 of the Act along with the names of the writ petitioner and his deceased brother. The said order was subsequently confirmed by the Commissioner of Endowments vide proceedings dated 11-2-2002 under Section 87(3) of the Act. In pursuance thereof, the names of the respondents 4 to 7 herein were incorporated in Column Nos. 4 and 14 of the Register on 18-5-2002.
6. While so, basing on certain complaints received against the writ petitioner who was acting as Chairman of the Board of Trustees of the Temple, a show-cause notice dated 4-10-2006 was issued by the Principal Secretary to Government of A.P. in exercise of powers conferred under Section 28 of the Act calling upon the petitioner to explain as to why he should not be removed from the office of the trustee as well as the Chairman of the temple. The petitioner submitted his explanation and after conducting due enquiry, by order dated 8-12-2006 the proceedings initiated against the petitioner were dropped vide order of the Principal Secretary to Government, Revenue (Endowments-II) Department, Hyderabad, dated 8-12-2006. Aggrieved by the same, the respondents 4 to 7 herein filed a Review Petition under Section 94 of the Act before the Minister for Panchayat Raj & Endowments. Having entertained the same, by order dated 22-12-2006 the 1st respondent kept the order dated 8-12-2006 in abeyance. The said order dated 22-12-2006 is under challenge in W.P. No. 984 of 2007.
7. In the meanwhile, the Commissioner of Endowments vide proceedings dated 5-12-2006 fixed the rotation among the petitioner and the respondents 4 to 7 for the purpose of considering them as Chairman of the Board of Trustees subject to the qualifications under Section 18 of the Act as and when Trust Board is constituted under the provisions of the Act. Aggrieved by the same, W.P. No. 1364 of 2007 has been filed.
8. I have heard the learned Counsel for both the parties and perused the material on record.
9. So far as W.P. No. 984 of 2007 is concerned, it is primarily contended by the learned Counsel for the petitioner that the impugned order dated 22-12-2006 passed by the 1st respondent purportedly in exercise of the power of Review under Section 94 of the Act was without jurisdiction and therefore liable to be set aside on that ground alone.
10. As noticed above, on an allegation that the petitioner while acting as Chairman of the Board of Trustees had fabricated an appointment order in favour of one Smt. G. Suvarchala with antedate, proceedings were initiated for removal from the office of trustee as well as the Chairman of the Board of Trustees.
11. It is not in dispute that after conducting due enquiry, the 1st respondent by order dated 08-12-2006 dropped the proceedings for removal initiated against the petitioner under Section 28(1) of the Act, holding that the allegations were not substantiated by any evidence. While so, a Review Petition was made by the respondents 4 to 7 before the second respondent i.e. Minister for Panchayat Raj and Endowments under Section 94 of the Act seeking to review the order dated 08-12-2006. On the basis of the said Review Petition, the first respondent while directing the Commissioner of Endowments to furnish his report, passed the impugned order dated 22-12-2006 keeping the earlier order dated 08-12-2006 in abeyance.
12. In the counter affidavit filed by the 1st respondent - Principal Secretary to Government (Revenue) Endowments department, it is stated that having received the review petition, the second respondent -the Minister for Endowments addressed the first respondent to examine the same while keeping the earlier orders in abeyance. Accordingly, the order dated 22-12-2006 was passed by the first respondent.
13. In the light of the above undisputed facts, the question that arises for consideration is whether the impugned order dated 22-12-2006 passed in exercise of the power of Review under Section 94 of the Act is valid?
14. Chapter-XIII of the Act provides for appeals, revision, review and etc. Under Section 90 of the Act the Government and the Commissioner are the appellate authorities as against the orders specified thereunder, whereas Section 92 of the Act confers power of Revision on the Commissioner as against the orders of the Deputy Commissioner, Assistant Commissioner or any other Officer subordinate to him or of any Executive Officer or any Trustee of a Charitable or Religious Institution or Endowment other than a Math.
15. Such power of Revision has also been conferred on the Government under Section 93 of the Act. That apart, under Section 94 of the Act the Government is conferred with the power of Review.
16. Sections 93 and 94 of the Act which provide for Revision and Review respectively may be extracted hereunder:
93. Power of Government to call for records and pass orders:- (1) The Government may either suo motu or on an application call for and examine the record of the Commissioner or any Deputy Commissioner or any Assistant Commissioner or any other Officer subordinate to them, or of any Executive Officer or any trustee of a charitable or religious institution or endowment, other than a math or specific endowment attached to a math in respect of any administrative or quasi-judicial decision taken or order passed under this Act, but not being a proceeding in respect of which a suit or an appeal or application, or a reference to court is provided by this Act, to satisfy themselves as the correctness, legality or propriety of such decision or order taken or passed, and if in any case, it appears to the Government that such decision or order should be modified, annulled, reversed or remitted for reconsideration, they may pass orders accordingly.
Provided that the Government shall not pass any order prejudicial to any party unless he has had an opportunity of making his representation.
(2) The Government may stay the execution of any such decision or order pending the exercise of their powers under Sub-section (1) in respect thereof.
(3) No application to the Government for the exercise of their power, under this section shall be made in respect of any matters unless an application had already been made in respect of the same matter to the Commissioner under Section 92 and had been disposed of by him.
(4) Every application to the Government for the exercise of their powers under this section shall be made within ninety days from the date on which the decision or order to which the application relates was received by the applicant.
94. Review :- The Government may either suo motu, or on an application from any person interested made within ninety days of the passing of an order under Section 93, review any such order if it was passed by them under any mistake, whether of fact or of law, or in ignorance of any material fact. The provisions in the proviso to Sub-section (1) and Sub-section (2) of Section 93, shall also apply to any proceeding under this section.
17. A plain reading of Section 94 of the Act shows that the order passed by the Government in exercise of the revisional powers under Section 93 of the Act alone is amenable for review. The power of review provided under Section 94 of the Act is not a general power empowering the Government to review any order passed under the Act but it is confined only to an order passed under Section 93 of the Act on the grounds specified thereunder.
18. The law is well settled that the power of review is not inherent and does not exist unless conferred by law or by necessary implication. Since the provisions relating to power of review always constitute an exception to the general rule that when once an order is passed it cannot be altered subsequently, the power of review is exercisable only where it is conferred on a statutory authority and in the manner and circumstances provided thereunder.
19. Having regard to the unambiguous language employed in Section 94 of the Act, the learned Counsel for the petitioner is justified in contending that no Review Petition can be maintained under Section 94 of the Act to review the order dated 8-12-2006 which was passed under Section 28 of the Act. Hence, undoubtedly the 1st respondent committed an error in entertaining the Review Petition and passing the impugned order dated 22-12-2006 keeping the order dated 8-12-2006 in abeyance. Thus, the order impugned, being without jurisdiction, is liable to be set aside on that ground alone.
20. In view of the above conclusion, the rest of the contentions raised by the petitioner including that the 2nd respondent was deprived of powers to represent the Government since the powers had already been delegated to the 1st respondent need no consideration.
21. Coming to the validity of the order assailed in W.P. No. 1364 of 2007, it is contended by the learned Counsel for the petitioner that the Commissioner of Endowments has no authority to fix the rotation among the founder members of the temple in question. According to the learned Counsel for the petitioner, the temple in question having been included in the list published under Section 6(a) of the Act whose annual income exceeded Rs. 10 lakhs, the Government which is empowered to constitute a Board of Trustees under Section 15(1)(a) of the Act alone is competent to fix the rotation but not the Commissioner of Endowments. Thus, it is contended that the impugned order passed by the Commissioner of Endowments is without jurisdiction.
22. It is also contended that since under the impugned order a dead person namely P. Bapu Reddy was included at SI. No. 6 for the purpose of the rotation, the entire proceedings were vitiated for non-application of mind and liable to be declared as illegal.
23. It is further contended that since CMA. No. 74 of 2002 filed by the petitioner against the order of the Deputy Commissioner of Endowments, dated 14-8-2000, recognizing the respondents 4 to 7 herein as founder members of the temple, is pending in the Court of the Additional District Judge, R.R. District and particularly since the names of the respondents 4 to 7 have not yet been included in the Register maintained under Section 43 of the Act showing them as the founder family members, the Commissioner of Endowments, while fixing the rotation among the founder family members, ought not to have included the respondents 4 to 7.
24. For proper appreciation of the above contentions, it is necessary to refer to the relevant statutory provisions as under:
6. Preparation and publication of list of charitable and religious institutions and endowments on the basis of income:
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 calculated for the purpose of levy of contribution under Section 65 exceeds rupees five lakhs;
(b) ...
(c) ...
(d) ...
(e) ...
8. Powers and functions 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.
(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 Section 6.
(3) ...
(4) ...
(5) ...
(6) ...
15. Appoint 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) ...
(3) ...
17. Procedure for making appointments of trustees and their term:
(1) In making the appointment of trustees under Section 15 the Government, the Commissioner, the Deputy Commissioner or the Assistant Commissioner as the case may be, shall have 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:
Provided that the founder or one of the members of the family of the founder, if qualified as prescribed shall be appointed as one of the Trustee. Explanation I :- "Founder" means a person who has founded an Institution or Endowment and recognized as such by the authority competent to appoint Trustees under Section 15. Explanation II:- ...
(2) ...
(3) ...
(4) ...
(5) ...
(6) ...
19. Disqualifications for Trusteeship:
(1) A person shall be disqualified for being appointed as, or for being, trustee of any charitable or religious institution or endowment -
(a) ...
(b) ...
(c) ...
(d) ...
(e) ...
(f) ...
(g) ...
(h) ...
(i) ...
(j) ...
(k) if he has held such office for two consecutive terms;
Provided that nothing in this clause shall apply to the founder or a member of the family of the founder who has been appointed as Trustee.
Explanation :- The expression "term" includes a part of the term.
(2) Before a trustee enters upon his office the Commissioner, Deputy Commissioner or Assistant Commissioner or any other person authorized by him in this behalf shall administer to him the oath of office and secrecy as may be prescribed., (3) Any such trustee who fails to take, within thirty days from the date on which he was appointed, the oath of office and secrecy laid down in Sub-section (2) shall cease to hold office.
20. Chairman of the Board of trustees:
(1)(a) In the case of Charitable and Religious Institution or endowment for which a Board of Trustees is constituted under Section 15, the members of the Board of Trustees shall, within such period not exceeding sixty days and in such manner as may be prescribe, elect from amongst themselves, a Chairman; and if no Chairman is so elected within the prescribed period the Government in the case of a Board of Trustees constituted under Clause (a) of Sub-section (1) of Section 15 and the Commissioner in the case of any other Board of Trustees shall nominate one of the members as Chairman.
(b) Where the founder or a member of the family of the founder is appointed as Trustee, he shall be the Chairman of the Board of Trustees.
(2) A Chairman elected or nominated under Clause (a) of Sub-section (1) or who becomes a Chairman under Clause (b) shall hold office so long as he continues to be the member of the board of trustees.
25. Admittedly the temple in question is included in the list published under Clause (a) of Section 6 of the Act and its annual income exceeds Rs. 10 lakhs. It is not disputed by the respondents that as per Section 15(1)(a) of the Act the Government is the competent authority to constitute the Board of Trustees to the temple in question.
26. However, the question is whether the impugned order fixing the rotation among the founder members can be said to have been passed in exercise of the power conferred under Section 15 of the Act.
27. It is relevant to note that the necessity to fix the rotation among the founder members of the temple has arisen in view of the proviso to Section 17(1) of the Act, according to which the founder or one of the members of the family of the founder shall be appointed as one of the trustees provided he is qualified as prescribed.
28. Where the founder or a member of the family of the founder is appointed as a Trustee, as per Section 20(1)(b) of the Act he shall be the Chairman of the Board of Trustees and as per Section 20(2) he can hold office of the Chairman so long as he continues to be the Member of the Board of Trustees.
29. In the case on hand, since altogether five persons i.e., the writ petitioner and the respondents 4 to 7 have been recognized as the founder family members, the question is who should be appointed as one of the trustees of the temple in question under the proviso to Section 17(1) of the Act as well as for consequential appointment as the Chairman of the Board of Trustees under Section 20(1)(b) of the Act.
30. Having regard to the fact that all the founder members are qualified for appointment as trustees, it has become necessary to evolve a method so as to enable all the founder members to hold the office of the Trustee as well as the Chairman of the Board of Trustees under Section 20(1)(b) on rotation basis. Accordingly, the impugned order dated 5-12-2006 was passed fixing rotation among the petitioner and the respondents 4 to 7 who are all recognized as founder family members.
31. Thus, it is clear that the fixation of rotation among the founder members is purely an administrative order to ensure that the temple in question is properly administered and it has nothing to do with the appointment of the Board of Trustees under Section 15 of the Act.
32. As a matter of fact, the constitution of Board of Trustees under Section 15 read with Section 17(1) of the Act as well as the Rules made under G.O.Ms. No. 258, dated 31 -3-1988 provides only for appointment of trustees by inviting applications from the public following the procedure prescribed thereunder. It does not deal with the inclusion of the founder of the temple or the founder family members who are entitled to be appointed as Board of Trustees.
33. Section 8 of the Act made it clear that the administration of all the Charitable and Hindu Religious Institutions and Endowments shall be under the general superintendence and control of the Commissioner which includes 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 are found or exist. Sub-section (2) of Section 8 of the Act further provides that the Commissioner is competent to perform the functions entrusted to him under the Act even in respect of such institutions or endowments which are included in the lists published under Clauses (a), (d) & (e) of Section 6 of the Act.
34. In the light of the above provisions, it is clear that the impugned order dated 5-12-2006 fixing rotation among the founder members was passed by the Commissioner in exercise of the power of general superintendence and control conferred under Section 8 of the Act to ensure smooth administration of the temple management and to avoid litigation among the founder members and also to see that all the founder members get a fair chance to function as a trustee as well as to hold the office of the Chairman of the Board of Trustees.
35. Therefore, there is absolutely no justifiable reason to hold that the Government alone is competent to fix the rotation among the founder family members of the temple. Hence, the contention of the petitioner that the order dated 5-12-2006 passed by the Commissioner of Endowments is without jurisdiction cannot be accepted.
36. The fact that P. Bapu Reddy whose name is shown at SI. No. 6 in the impugned order died on 3-6-2001 has not been disputed by the respondents. However, in the counter-affidavit filed by the Deputy Commissioner of Endowments, it is explained that since the said fact was not reported to the authorities, his name was also included in the impugned order while fixing the rotation.
37. As rightly submitted by the learned Counsel for the respondents, the inclusion of the name of the deceased member cannot be said to have caused any prejudice to the writ petitioner. On the face of it, the incorporation of the name of a dead person was on account of some communication gap and the same being a curable irregularity, if cannot be held that the order itself is liable to, be declared as bad on that ground.
38. The further contention of the petitioner that the Commissioner of Endowments ought not to have fixed the rotation among the founder members since CMA. No. 74 of 2002 under which the order of the Deputy Commissioner of Endowments, dated 14-8-2000 recognising the respondents 4 to 7 as members of the founder family is pending is also without any substance.
39. As could be seen from the material on record, CMA. No. 74 of 2002 was dismissed for non-prosecution on 20-6-2005 and thereafter an application was filed by the petitioner herein on 3-7-2006 for restoration of the said appeal along with I.A. No. 403 of 2006 under Section 5 of the Limitation Act to condone the delay of 358 days. Nothing could be placed before this Court by the petitioner to show that the delay is condoned and CMA. No. 74 of 2002 is restored to file. In the circumstances, as on today, the order of the Deputy Commissioner of Endowments, dated 14-8-2000 stands good and the same being valid in law, the Commissioner of Endowments cannot be said to have committed any error in passing the impugned order fixing rotation among the petitioner and the respondents 4 to 7.
40. For the aforesaid reasons, the impugned order dated 5-12-2006 cannot be held to be illegal on any ground whatsoever.
41. In the result, W.P. No. 984 of 2007 is hereby allowed setting aside the order impugned dated 22-12-2006 and W.P. No. 1364 of 2007 is dismissed.
42. No costs.