Andhra HC (Pre-Telangana)
M. Sivarama Naicher And Etc. vs Government Of Andhra Pradesh And Anr. on 21 June, 1982
Equivalent citations: AIR1983AP7, AIR 1983 ANDHRA PRADESH 7
ORDER
1. M.S. N. Charities, Kakinada was founded by one Malladi satyalinga naicker by his last will and testament in the year 1912. Under the will, he nominated his adopted son Malladi Subramanyam, one P. Govindarajulu, D. Seshagiri Rao pantulu and K. Adeyya Reddy as trustees, giving an additional vote to D. Seshagiri Rao pantulu and K. Adeyya Reddy as trustees, giving an additional vote to D. Seshagiri Rao pantulu and on his demise his adopted son. Each of the trustees was given the right to nominate his successor; in the event of any one of them dying without nominating, the other surviving trustees were to select and nominate the trustees. Under the will the number of trustees was not to be less than two at any time. If at any time, all the trustees die without nominating thier successors. The management of the charities was to vest in the head of the founder's family i.e., naicker's family.
2. In the course of time the offices of all the trustees execpting that of the founder's family passed into the hands of strangers to the original will. After the death of Malladi subramanyam, the adopted son of the founder, Subramanyam's son succeeded as the trustee and after him, his wife functioned as trustee, during the petitioner's minority. After the petitioner attained majority he was recognised as a trustee under section 20 of the Endowments Act 17 of 1966.
3. The other trustees in the office were those belonging to the families of Lakkaraju, Durisetti and pyda. It is complained before me that during the tenure of sri K. Vasudeva Rao as commissioner of endowments members of these families were recognised as hereditary trustees for reasons not lawful. One voleti sambamurthy appears to have filed O. A. In the year 1978 under section 77 (c) of the Act before the Deputy commissioner Endowments, Kakinada seeking a declaration from the deputy commissioner that the members of lakkaraju, Durisetti and Pyda families were not and could not be hereditary trustees of M.S. N charities. That dispute is still pending.
4. Now the Government exercising its powers under section 15 (1) of the endowments Act passed G.O. Ms. 1606 revenue (Endowments V-1) Department dated 24-10-1981 Appointing these persons to the board of trustees as non-hereditary trustees and Sri pyda chalamaiah under section 17 (2) of the Endowments Act as the chairman of the trust Board. G.O. Ms. No. 1606 dated 24-10-1981 reads as follows:
"ORDER"
"Under clause (a) of sub-sec. (I) of section 15 of the Andhra pradesh charitable and Hindu Religious Institutions and Endowments Act 1966 (Andhra pradesh Act 17 of 1966) the Government of Andhra pradesh, hereby constitute a Board of Trustees in respect of Sri M. S. N. Charities, Kakinada with the following members as non-hereditary trustees of the said Board. The non-hereditary trustees so appointed will hold office for a period of three years from the date of this order:-
1. Sri M. Venkataramana, M. L. A.
2. Smt. Y. Savithri devi, Ex. M.L. A.
3. Dr. D. V. Rama Rao, kakinada.
4. Sri. M. Veerabhadrarao, Advocate, Kakinanda.
5. Sri T. Bullaiah, M.A., B. Ed., Ex. M.L.C. Rajahmundry.
6. Sri. I. V. Subbarao, retd. DSP, Gandhi nagar, Kakinada.
7. Sri Cherukuvada venkararathnam, Ex. M. L. A. Kondevaram, Pithapuram Taluk E.G. Dist.
8. Dr. P. V. N. Raju (educationist) Ramaraopet, Kakinada.
9. Dr. Kondeti subbarao, Achutapuram, kakinada.
10. Sri T.S.L. Naickar, Advocate, Kakinada.
Under clause (b) of sub-section (2) of section 17 of the said Act, Government nominate by rotation, shri pyda chalamaiah as the chairman of the Trust Board, constituted above.
(By order and in the name of the governor of Andhra pradesh) N. Raghavan, Spl. Secretary to Government".
Challenging the above order of the Government two writ petitions have been filed. W.P. No. 8478/81 has been filed by sivaram naicker belonging to the family of Malladi setyalinga naicker, the founder challenging the validity of the aforesaid G.O. Ms. No. 1606 in so far as it relates to the nomina of the 2nd respondent pyda chalamaiah as the chairman of the Trust Board.
5. It is argued before me that the 2nd respondent pyda chalamaiah was not and can never be regarded as a heredirary trustee of the above charities as his ancestors were not one of the trustees nominated by the founder, Naicker. It is also argued that there must first be an adjudication on this point under section 77 (1) (c) of the endowments Act on the basis of which alone the Government can Act and exercise its powers under section 17 (2) (b) of the Act.
6. Taking the second point first, I say that the Government cannot by its own Act confer hereditary trusteeship on any person whomsoever it chooses and the Government is not the authority to decide that question only the Deputy commissioner under sec 77 (1) (c) is competent to decide sucha question. I have so held in writ petns. Nos 301 and 437 of 1979* and I still hold that view. But in this case it is admitted by the writ petitioner himself that the pyda family had been recognised as hereditary trustee at least during the time of K. Vasudeva Rao which was some years back and that a dispute in fact has been filed by sambamurthy under section 77 (1) (c) of the Endowments Act in the year 1978. The Government in those circumstances, did not in my opinion, assume for the first time the right to decide any dispute regarding hereditary trusteeship to a trust. It is merely following five or six decade old practice. It, merely giving effect to a situation then prevailing and acting upon it issued the impugned G.O. Ms. No. 1606. Such an Act cannot be called executive high-handedness. Whether the Act it self is law, can only be decided by a complicated consideration of law and practice previling over five decades. Till that time the Government did no more than follow the existing procedure and in my view the Government cannot be blamed for that.
7. The first question that has been raised by the writ petitioner in this case raises a serious dispute as to the hereditary trusteeship of pyda family. Such a question under the above statute should normally be decided by the Deputy commissioner. It would not be proper for this Court to take over that jurisdiction which the statute has conferred on the Deputy commissioner and decide who are all the hereditary trustees of this charities and whether the 2nd respondent's family or the 2nd respondent himself was a hereditary trustee. In view of the above, I am unable to grant a writ petition is accordingly dismissed without costs. Advocate's fee Rs. 100/-
8. But I direct the Deputy commissioner, Endowments Department, kakinada to entertain any dispute filed under section 77 (1) if the Endowments Act, within thirty days from the date of receipt of this order and dispose it of within five months from the date of receipt of such dispute along with the dispute which is filed by sambamurthy if it is pending.
9. Writ petition No. 2344/82 had been filed by the trustees belonging to Lakkaraju family and Durisetty family challenging the validity of the above-mentioned G.O. Ms. 1606 revenue (endowments V-I) department dated 24-10-1981.
10. Sri poornaiah, the learned counsel for the petitioner argued that the appointment of ten persons named in the above order of the Government as non-hereditary trustees is bad, because under section 15 (1) of the Endowments Act the total number of persons that may be appointed by the Government should not exceed eleven. The argument of the learned counsel was that the Government had been given power under section 15 (1) of the Endowments Act to constitute a board of Trustees consisting of not less than seven and not more than eleven persons to be appointed by the Government and as there were already four hereditary trustees, the argument proceeds, that the appointment of ten persons under the impugned G.O. would make a total number of persons to the Board of trustees fourteen three more than the ceiling limit fixed by the Act. This argument of the learned counsel was based upon the assumption that the maximum number of eleven persons referred to in section 15 (1) of the Endowments Act would take in not only the hereditary trustees but also the non-hereditary trustees. The question is whether this contention of sri poornaiah is correct. There is no decided case on the point and the question is to be answered on first impressions only which are in the matter of statutory interpretation, the best impressions generally. Section 15 (1) of the Act reads thus:
"15 (1). Appointment of Board of Trustees and the term of office: In respect of a charitable or religious institution or endowment included in the list published under Cl. (A) of section 6.
(a) whose annual income exceeds rupees two lakhs the Government may in the case where there is a hereditary trustee and shall in any other case, constitute a Board of Trustees consisting of not less than seven and not more than eleven persons appointed by them:
(b) whose annual income does not exceed rupees two lakhs, the commissioner may, in the case where there is a hereditary trustee, and shall in any other case, constitute a board of Trustees consisting of not less than five and not more than nine persons appointed by him".
The section uses two crucial words. It uses the words 'constitute a Board of Trustees' and also the word 'appointed'. The word 'constitite means, according to webster, appoint. The Constitution of Borad of Trustees, according to this dictionary meaning would take in the appointment to the Board of Trustees all those who should be members of the board. This is so because a Borad of Trustees in which the management of the trust property is vested under the Act is a body that is brought into existence not by the will of the founder of the trust but by the provisions of the Act. The membership of such a trust board can only be by appointment. The argument of the learned counsel was that as a membership of a trust board can only be by an Act of appointment and as the section speaks of Constituting a Trust Board by appointment of not more than eleven persons, the power to appoint would take in every one, either hereditary or non-hereditary trustee. According to this argument the impugned order which appointed 10 Non-hereditary trustees would be bad if to the number ten are added the four hereditary trustees. The argument is attractive and the best thing that can be said in support of this argument is that the two words 'constitute' and 'appointment' used by section 15 would lend literal support to this argument. The appointment referred to by section 15 would take in even hereditary trustees because even a hereditary trustee cannot acquire membership in a Board of Trustees under the Endowments Act except by any Act of appointmetn. If admission to a Trust Board requires a positive Act of appointment by the Government it would be logical to hold that the last words in section 15 (a) "eleven persons appointed" would take in hereditary trustees. If so the Government should , in exercising its appointing power, obey the limitations of ceiling imposed by section 15 (1) of the Act on the exercise of that power. It follows from the above that the Constitution of a Board of Trustees with a maximum number of eleven persons would be invalidation of section 15 of the Act as interpreted above.
11. But this attractive and logical argument deriving its support from the literal meaning of the words used in section 15 (1) of the Act when accepted and applied to concrete cases would lead to such astonishing results that should deter any Court from giving effect to it. In other words its logical strength should Act as its strongest repellant. A hereditary trustee who occupies the post of a trustee by reason of the founder's will has a right to manage the trust property independant of th statute. The endowments Act proceeds on that basis. This basic assumption of the Act runs exactly counter to the argument of the learned counsel regarding the meaning to be given to section 15 (1) of the Act. If the power of appointment under section 15 (1) is taken as comprehending hereditary trustees also it would mean that the Government would be free to choose or reject all or any hereditary trustee to be a member of the Board of Trustees. Such a freedom given to the Government would imply that the Government possesses the right under the Endowments Act to exclude a hereditary trustee from the management of the trust and from the enjoyment of his right under the trust. As there is nothing in the Act compelling the Government to appoint any hereditary trustee to a board of Trustees the Government would be justified in the event ot refuse to appoint any one or more of the hereditary trustees to the Trust Board. The result would be that all the hereditary trustees can be effectively excluded from the management of the trust property by a mere refusal of the Government to appoint them to the trust Board. The question is whether this could ever have been the intention of the legislature in enacing section 15 (1) of the Act. Considering the purposes of the endowments Act which are not to deprive the hereditary trustees of their right to manage the trust properties, I think it proper to give to the language used in section 15 (1) of the Act, a meaning and an operation that confines the Government power of appointment under sec. 15 (1) to non-hereditary trustees only. Leaving the right of the hereditary trustees to become members of the Trust Board to the automatic operation of their offices. In that meaning the hereditary trustee should become membersof hte Board of Trustees ipso facto along with the non-hereditary trustees without any order of appointment by the Government and the power of the Government to appoint which is subject to a ceiling limit of eleven persons would operate only to the power of appointing non-herditart trustees. As any other meaning to section 15(1) would involve profoundly fundamental changes in the concept of hereditary trustees and such changes can only be brought about in by clear and express words and not by a sidewind and as such words are absent in S. 15 (1), I reject the contention of the petitioner to the effect that the power of appointment under S. 15 (1) of the Act takes in hereditary trustees also.
12. It is no doubt true that under section 17 (2) (b) of the Endowments Act, the Government has to appoint a hereditary trustee by rotation as a chairman of the Board of Trustees. But this view at best be an answer to have the rights of one hereditary trustee at a time, but would provide no safeguards to the rights of hereditary trustees where there are more than one.
13. In view of the above the first argument advanced by Mr. Poornaiah is rejected.
14. It is next argued by Mr. Pooraiah that the second portion of the above G.O. appointing pyda chalamaiah as chairman of the Board of Trustees is inconsistent with the requirements of S. 17 (2) (b) of the Act. According to the argument of the learned counsel S. 17 (2) (b) requires not only a hereditary trustees to be nominated as chairman of the board of Trustees but would also require the mention of the period for which he should hold office as chairman and who are all the other trustees that should take the office of the chairman by rotation. It appears to me that the language of S. 17 (2) (b) read with sub-caluse (3) (b) of the Act would not require so much from the Government . it would be a sufficient compliance of the requirements of section 17 (2) (b) to appoint one of hte hereditary trustees by rotation to be the chairman. Such an appointment may under section 17 (2) (b) be for a statutory period of three years as fixed by S. 17 (3) (b) of the Act. Such an appointmetn can neither be for a longer period nor for a shorter period. It can only be for a full term of three years. There is therefore no legal requirement to state this obvious. If so, there would be no need either to mention how long pyda chalamaiah would hold the office nor in my opinion, ther is any need to mention chalamaiah's successor. In conceivable cases the mentioning of a successor to take office after three years may become impossible. In view of the above, I reject this contention also.
15. The writ petition No. 2344/82 is accordingly dismissed, but in the circumstances without costs.
Petition dismissed.