Telangana High Court
P Anathacharuy vs The Assitant Comissionwer on 10 August, 2022
HONOURABLE SRI JUSTICE SAMBASIVA RAO NAIDU
C.M.A.NO.663 of 2018
JUDGMENT:
This C.M.A. is filed against the order in O.A.No.5 of 2015 on the file of Telangana Endowments Tribunal dated 05-02-2018 by which the application filed by the appellants herein was dismissed.
2. The said application was filed by the appellants under Section 87(1)(h) of T.S. Charitable & Hindu Religious Institutions and Endowments Act, with a prayer to declare them as members of the Founder Family of 2nd respondent Temple and to incorporate their names as the Founder Family Members in Section 43 Register of the temple.
3. They have examined two witnesses and marked two documents. During enquiry, the respondent examined RW.1 on behalf of 2nd respondent temple. The Tribunal mainly relying on the Judgment of this Court in C.M.A.No.590 of 2012 between "Sri Vallabharayeswara Swamy Temple, represented by its Managing Trustee Jalasutram Venkata Subbaiah Vs. Bellamkonda Venkata Subramanya Sarma and another"1, 1 2014 (5) ALT 801 (S.B.) 2 SSRN,J CMA No.663 of 2018 held that in the light of the observations made by the High Court in the above C.M.A. that provisions of Section 87(1)(h) of the said Act are applicable only in relation to the Institutions and Endowments which came into existence after commencement of 1987 Act, and as the temple in that C.M.A. was in existence much prior to the coming into force of Act 30/1987, the application was not maintainable before Endowments Tribunal and dismissed their application.
4. The appellants have challenged the said order in the present C.M.A. on various grounds. However, while advancing arguments, the learned counsel for the appellants has submitted that in view of Judgment between "Kum. Shashikala and others vs. Smt. Babita Sharma and Others"2, the order of Endowment Tribunal is not maintainable. The learned counsel has submitted that this Court gave a finding in the subsequent C.R.P. No.4596 of 2017 to the effect that the Judgment referred in C.M.A. No.590 of 2012 is hit by Sub-Silentio Principle and there is no bar for any legal heir of the founder or member of the family of the founder of any institute even existing since prior to Act 30/1987 came into force and even not recognized earlier to, to make a claim of entitlement to act as one of the Trustees of the institutions. 2 2018 (4) ALT 161 (S.B.) 3 SSRN,J CMA No.663 of 2018 Therefore, according to the learned counsel for the appellants in view of the subsequent Judgment referred above the order of Tribunal based on the order in C.M.A. No.590 of 2012 need to be re-considered.
5. The learned counsel for the appellants has submitted that the Tribunal without going into the merits of the application filed by the appellants herein dismissed the case on the basis of the observations of the Hon'ble High Court in C.M.A.No.590 of 2012, and in view of the subsequent order referred above, there is a necessity for reconsideration of the application, thereby sought for remanding the matter to the Tribunal.
6. Now the point for consideration is :
Whether the order of the Tribunal is liable to be set aside in view of the Order in C.R.P.No.4596 of 2017 ?
7. It is true as could be seen from order under the appeal in the present C.M.A., it is very clear that the Tribunal dismissed the application filed by the appellants on the basis of the observations made by this Court in C.M.A.No.590 of 2012 but not on the basis of oral or documentary evidence. In support of their claim, the applicants produced two witnesses and marked Exs.A1 and A2. But the Tribunal vide order dated 05-02-2018 held as follows :
4 SSRN,J CMA No.663 of 2018 "By keeping in mind the principles under laid in this citations, when thee claim of the applicants is perused, it is clear that, the subject Temple was in Existence much prior to the coming into force of the Act, 30/1987. Therefore, the application is not maintainable before the Tribunal".
8. However, as per the Order of this Court in C.R.P.No.4596 of 2017, it was held that :
The Judgment of the Hon'ble High Court in C.R.P.No.590 of 2012 is hit by Sub-Silentio Principle and there is no bar for any legal heir of the founder or member of the family of the founder of any institutions even existing since prior to the Act 30/1987 came into force and even not recognized earlier to, to make a claim of entitlement to act as one of the trustees etc...................
9. Therefore, in view of the fact that O.A. filed by the appellants herein was dismissed not on the basis of evidence but in view of the order in C.M.A. No.590 of 2012 and as the subsequent order over ruled the observations in C.M.A. No.590 of 2012, it is just and necessary to remand the matter to the Tribunal for fresh disposal.
10. In the result, the C.M.A. is allowed, the Order of Tribunal dated 05-02-2018 in O.A. No.5 of 2015 is set aside and 5 SSRN,J CMA No.663 of 2018 the matter is remanded to Telangana Endowments Tribunal for disposal in the light of subsequent Order in C.R.P. No.4596 of 2017.
Consequently, Miscellaneous applications if any, are closed. No Costs.
__________________________ JUSTICE SAMBASIVA RAO NAIDU Date: 10.08.2022 PLV 6 SSRN,J CMA No.663 of 2018