Andhra HC (Pre-Telangana)
Sri Vallabharayeswara Swamy ... vs Bellamkonda Venkata Subrahmanya Sarma ... on 23 July, 2014
Author: C.V. Nagarjuna Reddy
Bench: C.V. Nagarjuna Reddy
HON'BLE SRI JUSTICE C.V. NAGARJUNA REDDY
C.M.A.No.590 of 2012
23-7-2014
Sri Vallabharayeswara Swamy Temple,Represented by its Managing Trustee
Jalasutram Venkata Subbaiah.. Appellant
Bellamkonda Venkata Subrahmanya Sarma and another .. Respondents
Counsel for appellants : Sri Ghanta Rama Rao
Counsel for respondent No.1 : Sri D.V.N. Acharya
<GIST:
>HEAD NOTE:
?CASES REFERRED:
1. 1974 (2) All.E.R. 97
2. Page 7, para-B of Australian Federal Constitutional Law
by Colin Howard
3. (1980) 2 SCC 478
4. AIR 1990 SC 101 = 1991 Supp.(1) SCC 600
The Court made the following :
JUDGMENT :
This Civil Miscellaneous Appeal arises out of Award dated 17-2-2012 in O.A.No.1442 of 2010 on the file of the A.P. Endowments Tribunal, Hyderabad (for short the Tribunal).
The concise facts leading to the filing of this appeal are stated hereunder :
Respondent No.1 approached the Deputy Commissioner, Guntur, under Section 87(1)(h) of the A.P. Charitable and Hindu Religious Institutions and Endowments Act, 1987 (for short "the 1987 Act") for declaring him as a Member of the Family of the Founders of Sri Vallabharayeswara Swamy Temple, Pamidipadu Agraharam village, Narasaraopet Mandal, Guntur District (for short the Temple). Respondent No.1 has stated in his application that the Temple was founded and established by his ancestors in the year 1050 with their own funds and in their own land and they have managed the Temple as Hereditary Trustees for generations by performing daily services, celebrating necessary utsavams and carrying on the Temple affairs without any blemish; that the Inam Fair Register dated 17-11-1860 shows the land was endowed by respondent No.1s fore-fathers in favour of the Temple; and that column No.4-A of the Property Register of the Temple contains the names of his fore-fathers as Hereditary and Managing Trustees, including Bellamkonda Hanumantha Rao. Respondent No.1 therefore pleaded that as he belongs to the Founder Family, he is entitled to be declared as such.
The appellant was arrayed as respondent No.1, represented by its Managing Trustee Jalasutram Venkata Subbaiah, in the application filed by respondent No.1 herein before the Deputy Commissioner.
The Managing Trustee of the Temple i.e., Jalasutram Venkata Subbaiah, filed a counter-affidavit opposing the application filed by respondent No.1 before the Tribunal. He has denied the claim of respondent No.1 that his fore-fathers founded the Temple on their land and with their own money. He has further pleaded that that the Property Register of the Temple approved in the year 1959 by the Deputy Commissioner of Endowments, filed by respondent No.1 mentioned that Bellamkonda Venkateswara Rao was the previous Trustee; that the Deponent has been in management of the Temple for the last 48 years; and that Garuda Vahanam and Hanumantha Vahanam were donated by Bellamkonda Venkata Subbamma w/o. Kesava Rao. It was further pleaded that as per the recent amendments made to the Act by way of Act 27 of 2002, respondent No.1 has to prove that the Temple was constructed by their ancestors in their own land and with their own funds without collecting any donations and that respondent No.1 is the agnatic descendant of the founder and his ancestors were recognised by the competent authority as the members of the founder family. While pleading that respondent No.1 failed to satisfy the provisions of the 1987 Act, as amended by Act 27 of 2002, the Managing Trustee of the Temple sought for dismissal of the application.
After constitution of the Tribunal, the case was transferred to it from the file of the Deputy Commissioner, Guntur.
Having regard to the rival pleadings, the Tribunal framed the following Points :
(1) Whether the petitioner is entitled to be recognised as Member of Founder Family of the subject temple under Section 87(1)(h) r/w. 15-19 of the Act 30/1987 and if so with any others? (2) To what relief?
Before the Tribunal, respondent No.1 examined himself as PW-1 and got Exs.P-1 to P-9 marked on his side. On behalf of the appellant, its Managing Trustee-Jalasutram Venkata Subbaiah, examined himself as RW-1 and marked Exs.R-1 to R-14. On a consideration of the oral and documentary evidence, the Tribunal allowed the application filed by respondent No.1 and declared him as a Member of the Founders Family of the Temple.
Sri Ghanta Rama Rao, learned Senior Counsel appearing for the appellant, made the following submissions:
(i) The application filed by respondent No.1 before the Deputy Commissioner/Tribunal itself is not maintainable as the Temple was in existence much prior to the commencement of the 1987 Act and that neither the original founder nor any member of his family, including respondent No.1 was recognised by the competent authority under the 1966 Act.
(ii) Even on merits, the Award of the Tribunal is liable to be set-
aside as the findings rendered by it are based on surmises and conjectures in the absence of any evidence adduced by respondent No.1 that his fore-fathers have founded the Temple within the meaning of Explanation III of Section 17(1) of the 1987 Act.
Opposing the above submissions, Sri D.V.N. Acharya, learned Counsel for respondent No.1, submitted that the appeal is liable to be dismissed as Jalasutram Venkata Subbaiah ceased to be the Managing Trustee and therefore he cannot represent the Temple. He further submitted that the Tribunal is competent to entertain the application filed under Section 87(1)(h) of the 1987 Act and that based on cogent evidence and sound analysis of the facts and evidence, the Tribunal has allowed the claim of respondent No.1 and that therefore the Judgment rendered by it does not call for any interference.
From the respective submissions of the learned Counsel for the parties, the following Points emerge for consideration :
1. Whether Jalasutram Venkata Subbaiah is entitled to represent the Temple in this Civil Miscellaneous Appeal?
2. Whether the application filed by respondent No.1 before the Tribunal was maintainable?
3. Whether, on merits, the Judgment of the Tribunal is sustainable?
Re Point No.1: The premise on which objection to the entitlement of Jalasutram Venkata Subbaiah to represent the Temple is raised is based on the plea that he ceased to be the Managing Trustee of the Temple when the application was filed by respondent No.1 before the Tribunal. The learned Senior Counsel, while admitting this position, however, pointed out that cessation of Jalasutram Venkata Subbaiah as the Managing Trustee, has taken place even during the pendency of the O.A. before the Tribunal and that despite being aware of this fact, respondent No.1 has not objected to Jalasutram Venkata Subbaiah continuing to represent the Temple. He further submitted that after expiry of the term of the Managing Committee, the Endowments Department has not reconstituted the same, as a result of which Jalasutram Venkata Subbaiah is continuing to manage the affairs of the Temple.
The fact that Jalasutram Venkata Subbaiah ceased to be the Trustee of the Temple even during the pendency of the O.A. is admitted by the learned Counsel for respondent No.1. He has also not disputed the submission of the learned Senior Counsel for the appellant that respondent No.1 has not raised any objection to Jalasutram Venkata Subbaiah continuing to represent the Temple before the Tribunal even after expiry of his term as the Managing Trustee. In my opinion, having not objected to the locus of Jalasutram Venkata Subbaiah to represent the Temple before the Tribunal after the expiry of his term as the Managing Trustee, respondent No.1 cannot be permitted to raise this objection for the first time in this Appeal. It is not disputed on behalf of respondent No.1 that though the term of Jalasutram Venkata Subbaiah as the Managing Trustee expired, he is continuing to look after the affairs of the Temple. From the evidence on record, which will be discussed hereafter under Point No.3, it is an admitted fact that Jalasutram Venkata Subbaiah had been the Managing Trustee for nearly 50 years. Under Section 88 of the 1987 Act, any person aggrieved by the decision of the Tribunal is entitled to file an appeal. Having been in the management for nearly 50 years, it cannot be said that Jalasutram Venkata Subbaiah is not aggrieved by the decision of the Tribunal. Therefore, even if Jalasutram Venkata Subbaiah cannot represent the Temple in his capacity as the Managing Trustee, in the absence of constitution of the Trust Board, he can espouse his individual cause as a person aggrieved and also represent the Temple as a probono publico to protect its interests. This Point is accordingly held in favour of the appellant. Re Point No.2: Hereditary-ship of trustees and other office holders of charitable and Hindu religious institutions was statutorily recognised in the State of Madras and also in Andhra Pradesh. Under sub-section (2) of Section 17 of the A.P. Charitable and Hindu Religious Institutions and Endowments Act, 1966 (for short the 1966 Act), in case of charitable or religious institutions or endowments which have hereditary trustee or trustees and for which Boards of Trustees are constituted, the hereditary trustees were entitled to be appointed as Chairmen of the Trust Boards. The Government of Andhra Pradesh has constituted a Commission headed by Justice Challa Kondaiah, a retired Chief Justice of the High Court of Andhra Pradesh inter alia to review and suggest measures for better management of the properties of charitable and religious institutions and endowments, including Tirumala Tirupati Devasthanams, utilisation of funds for their benefits, claims of trustees, the nature of rights held by archakas, mirasidars and other office holders on hereditary basis. The Commission has submitted its report on 28-2-1986 which was accepted by the State Legislative Assembly with certain modifications. In order to incorporate the recommendations of the Commission, the State Legislature has brought in the 1987 Act by repealing the 1966 Act. One of the radical changes introduced by the 1987 Act is abolition of hereditary system of trusteeship, archakas and mirasidars. Section 16 of the 1987 Act abolished hereditary trusteeship. However, a concession in small measure was made in favour of founders and members of founder families while considering them for trusteeship. Section 15 of the 1987 Act provides for appointment of Board of Trustees. In case of institutions whose annual income exceeds Rs.10 lakhs, the Government; and in case of institutions whose annual income does not exceed Rs.10 lakhs, the Commissioner; are prescribed as the competent authorities for constitution of the Trust Board. In respect of charitable or religious institutions or endowments included in the list published under Section 6(b), the Deputy Commissioner; for the institutions which are included in the list published under Section 6(c) of the 1987 Act, the Assistant Commissioner, are prescribed as the competent authorities for constitution of Trust Board. Sub-section (1) of Section 17 of the 1987 Act, which is material for the present purpose underwent several amendments. It is useful, nay, instructive, to reproduce the said provision, to the extent it is relevant, as originally inserted and amended from time to time :
Sub-Section (1) of Section 17 of Act 30 of 1987 as it originally stood Sub-Section (1) of Section 17 of Act 30 of 1987 (After its amendment by Act 27 of 2002 w.e.f.
26-8-2002) Sub-Section (1) of Section 17 of Act 30 of 1987 (After its amendment by Act 33 of 2007 w.e.f. 3-1-2008) (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 one of the trustees shall be from the family of the founder, if qualified.
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 Trustees.
Explanation I :
Founder means a person who has founded an Institution or Endowment and recognised as such by the authority competent to appoint Trustees under Section 15.
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 Trustees.
Explanation I: Founder means, - (a) in respect of Institution or Endowment existing at the commencement of this Act, the person who was recognised as Hereditary Trustee under the Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act, 1966 or a Member of his family recognised by the competent authority.
(b) in respect of an Institution or Endowment established after such commencement, the person who has founded such Institution or Endowment or a member of his family and recognised as such by the competent authority.
Explanation II: Member of the family of the founder means children, grand children and also in agnatic line of succession for the time being in force and declared or recognised as such by the relevant appointing authority.
Explanation III: Those persons who founded temples by collecting donations partly or fully from the public as well as those who founded them on public lands shall not be recognised as founder trustees by any means.
As could be noticed from the amendments brought out to sub-section (1) of Section 17 of the 1987 Act, they were mainly concerned with appointment of the founder or a member from the founder family as one of the trustees. Initially the proviso to sub-section (1) of Section 17 of the 1987 Act envisaged that one of the trustees shall be from the family of the founder, if qualified. By the amendment made to the said proviso by Act 27 of 2002, the word founder was also included. The said amendment added Explanation-I to sub-section (1) of Section 17. This provision defined the phrase founder as a person who has founded an Institution or Endowment and recognised as such by the authority competent to appoint Trustees under Section 15.
By Act 33 of 2007, further amendments were brought out to Section 17(1) w.e.f. 3-1-2008. While amending Explanation-I, the Amendment Act added Explanations II and III. As Explanation III is relevant only for deciding Point No.3, it will be discussed while dealing with the said Point. Explanation-1 of Section 17(1) of the 1987 Act which is rather sweeping, has divided the institutions into two categories. The institutions existing at the commencement of the 1987 Act are included under clause (a) and the institutions established after its commencement are included under clause (b). In respect of the institutions falling under clause (a), founder means a person who was recognised as hereditary trustee under the 1966 Act or a member of his family recognised as such by the competent authority. In respect of institutions falling under clause (b), founder means the person who has founded such institution or endowment or a member of his family and recognised as such by the competent authority.
It is significant to notice that Section 17 of the 1987 Act, as originally inserted, did not define founder or a member of founder family. Explanation-I inserted by Act 27 of 2002 did not classify the institutions or endowments based on point of time at which they came into existence. However, a clear demarcation is made through amendment made by Act 33 of 2007 between the institutions or endowments which existed at the commencement of the 1987 Act and those which came into existence thereafter. It is worth noticeable that in respect of declaration of founder of the institutions falling under both clauses (a) and (b) of Explanation-I, the jurisdiction of the appointing authority is taken away and vested in the competent authority. For every institution falling under clause (a), the authority under the 1966 Act must have recognised the founder as a hereditary trustee.
Explanation-II defined member of the family of the founder as children and grand children and also in agnatic line of succession for the time being in force and declared and recognised as such by the relevant appointing authority. From the plain language of Explanation-II, it is clear that in respect of both categories of temples falling under clauses
(a) and (b) of Explanation-I, the founder should have been identified by the competent authority under the respective Acts and a person can seek appointment as trustee by approaching the appointing authority with necessary proof that he is the successor to the founder as defined in Explanation-II. It is implied from this provision that such persons need not approach the competent authority under Section 87(1)(h) of the 1987 Act to declare them as the successors to the founder. This means, if the founder was not recognised as the hereditary trustee under the 1966 Act, his successors can neither approach the appointing authority under Explanation-II nor the competent authority under Section 87(1)(h) of the 1987 Act. What this amendment obviously meant to achieve is to prevent persons from making claims for declaration in respect of the institutions which existed during the operation of the 1966 Act, under the 1987 Act. The Legislature evidently sought to disallow stale claims regarding founder and his family members. The amendment has drawn a clear line between the two categories of institutions referred to above and foreclosed belated claims in respect of persons claiming to be the founder or his family members in respect of the institutions existing at the commencement of the 1987 Act. It is only in respect of the institutions which came into existence after commencement of the 1987 Act that the Deputy Commissioner prior to the constitution of the Tribunal and the Tribunal after its constitution, has been competent to declare a person to be the founder.
This Court, however, notices a seeming conflict between Section 87(1)(h) of the 1987 Act and the amended provisions of Explanation-I of Section 17(1) thereof. Section 87 was amended w.e.f. 3-1-2008 only for the purpose of substituting the expression Deputy Commissioner with Endowments Tribunal. However, clause (h) of Section 87(1) under which the power to declare a person as a founder or a member from the family of the founder was vested with the competent authority, was not amended in line with the amended provisions of Explanation-I to Section 17(1) of the 1987 Act. Under the 1987 Act, as I could perceive, the only purpose for a person to be declared as a founder or a member from the founders family is to get himself appointed as a trustee. In view of the amendment to Explanation-I only such of those persons who were recognised as hereditary trustees or members of their families by the competent authority under the 1966 Act, are entitled to be considered for appointment as trustees. They would not be appointed as trustees even if they are declared as founders or members from the family of founders by the competent authority under the 1987 Act. So much so, it will be an exercise in futility for any person to approach the competent authority under Section 87 of the 1987 Act to get a declaration as a founder or a member from the family of founder of an institution or endowment which existed at the commencement of the 1987 Act. Evidently, the Legislature has not bestowed its attention to this aspect and it has failed to amend clause (h) of sub-section (1) of Section 87 by restricting the jurisdiction of the Tribunal to adjudication of claims of persons as founders or members from the founders families of institutions or endowments which came into existence after the commencement of the 1987 Act.
Ordinarily, clause (h) of sub-section (1) of Section 87 of the 1987 Act is liable to be declared as unintelligible as it is in disharmony with the provisions of Explanation-I to Section 17(1) thereof. However, this Court feels the necessity of applying the doctrine of reading down.
The doctrine of reading down is recognised by many jurisdictions world-over, including ours. In Federal Steam Navigation Co. Vs. Department of Trade and Industry , Lord Reid has stated thus:
"The judge may read in words which he considers to be necessarily implied by words which are already in the statute and he has a limited power to add to, alter or ignore statutory words in order to prevent a provision from being unintelligible, absurd or totally unreasonable, unworkable, or totally irreconcilable with the rest of the statute" (Emphasis added) Dealing with the doctrine of reading down and severance, Colin Howard wrote :
"The High Court presumes the validity of legislation to the extent that it will not of its own motion raise questions of constitutionality. Legislation is treated as valid unless the parties to litigation challenge it on constitutional grounds. The techniques of construction known as reading down and severance are corollaries of this presumption. Reading down puts into operation the principle that so far as it is reasonably possible to do so, legislation should be construed as being within power. It has the practical effect that where an Act is expressed in language of a generality which makes it capable, if read literally, of applying to matters beyond the relevant legislative power, the court will construe it in a more limited sense so as to keep it within power.
In All Saints High School, Hyderabad Vs. Government of A.P. the Supreme Court held at para-112 as under:
This Court has in several cases adopted the principle of reading down the provisions of the statute. The reading down of a provision of a statute puts into operation the principle that so far as it is reasonably possible to do so, the legislation should be construed as being within its power. It has the principal effect that wherein an Act is expressed in language of a generality which makes it capable, if read literally, of applying to matters beyond the relevant legislative power, the court would construe it in a more limited sense so as to keep it within power.
In Delhi Transport Corporation Vs. D.T.C. Mazdoor Congress and others , a Constitution Bench of the Supreme Court held:
The Doctrine of Reading Down is an internal aid to construe the words or phrase in statute to give reasonable meaning. The object of reading down is to keep the operation of the statute within the purpose of the Act and constitutionally valid. The courts though, have no power to amend the law by process of interpretation, but do have the power to mend it so as to be in conformity with the intendment of the legislature. Doctrine of reading down is one of the principles of interpretation of statute in that process .
In the light of the discussion undertaken above, this Court has no option other than reading down the provisions of Section 87(1)(h) of the 1987 Act in order to bring harmony between the said provision and Explanation-I to Section 17(1) thereof. So read, this Court holds that the provisions of Section 87(1)(h) are applicable only in relation to the institutions and endowments which came into existence after the commencement of the 1987 Act.
From the above discussion, the following principles are deducible:
(i) In respect of the institutions or endowments existing at the commencement of the 1987 Act, only persons recognised as hereditary trustees or members belonging to the family of the hereditary trustees under the 1966 Act are entitled to be considered for appointment as trustees in the Trust Boards to be constituted under the 1987 Act. If a person was not recognised either as a hereditary trustee or as a member belonging to the family of the hereditary trustee under the 1966 Act, he is not entitled to approach the competent authority under the 1987 Act under Section 87(1)(h) for declaration as such or the appointing authority for appointment as a trustee.
(ii) If a person was recognised as a hereditary trustee in respect of the institutions referred to in clause (i) supra, it is not necessary for the members belonging to his family once again to approach the competent authority under the 1987 Act seeking recognition as a member belonging to such family. He can straight-away approach the appointing authority for appointment as a trustee.
(iii) In respect of the institutions coming into existence after the commencement of the 1987 Act, a person can approach the competent authority under Section 87(1)(h) of the 1987 Act for recognition either as the founder or as a member from the family of the founder of the institution or endowment. If a person is recognised as founder by the competent authority under the 1987 Act, a person belonging to his family need not again approach the competent authority for declaration that he is a member of the family of the founder, and instead, he can approach the appointing authority concerned for declaration or recognition as such for being appointed as a trustee.
It needs to be noted that the provisions of Section 17 and Section 87 of the 1987 Act were amended by the same Amendment Act. Respondent No.1 has evidently approached the Deputy Commissioner prior to the amendment of Explanation-I. Indeed, as per Explanation-I as it stood before the amendment, the authority competent to appoint trustees was vested with the power to recognise the founder and in strict sense there was no need for getting a declaration under Section 87(1)(h) of the 1987 Act. However, if a person chose to seek such a declaration, in the absence of dichotomy among the institutions under the pre- amended Explanation-I, the Deputy Commissioner may have been justified in entertaining the application of respondent No.1. But, on its constitution, the Tribunal ought to have declined to adjudicate the application on merits as the very purpose of filing such application was rendered otiose by the amendment brought out to Explanation-I of Section 17(1) of the 1987 Act.
On the above analysis, this Court holds that the application of respondent No.1 before the Tribunal was not maintainable and consequently, the adjudication of the application by the Tribunal is not sustainable in law.
Re Point No.3: In view of the finding on Point No.2, it is not necessary to decide this Point. However, to avoid remand of the case if an appeal is filed by the aggrieved party and in the event the appellate Court does not agree with the finding of this Court on Point No.2, I feel the necessity of dealing with this Point and render a finding thereon.
The substratum of the case of respondent No.1 is this :
That the Temple was founded and established in the year 1050 A.D. by his ancestors; that the Temple was built with their own funds and on their own land; that the Temple was being managed by his fore- fathers for generations as hereditary trustees; that they have also endowed landed property in favour of the Temple duly evidenced by Inam Fair Register dated 17-11-1860; and that the names of his fore- fathers such as Bellamkonda Hanumantha Rao, were mentioned as hereditary and managing trustees in column No.4-A of the Property Register of the Temple.
In support of the said pleas, respondent No.1 filed a copy of Ex.P-1 Genealogy Table, Ex.P-2 Property Register maintained under Section 25 of the 1951 Act, Ex.P-3 certified copy of Inam Fair Register, Ex.P-4 copy of proforma Village-wise Inam Land Register, Ex.P-5 copy of Guntur District Village Kaifiyaths, Ex.P-6 copy of Guntur District Sasanams (publications), Ex.P-7 photographs connected with utsavams in the subject Temple along with C.D., Ex.P-8 copies of particulars of the properties belonging to respondent No.1s family endowed to the Temple and Ex.P-9 copy of Property Register.
For being recognised as a Founder, not only that the person must establish that he or his ancestors have founded the Temple as per Explanation-I of Section 17(1) of the 1987 Act, he must also satisfy that the Temple was not founded by collecting donations, partly or fully, from the public and that the same was not funded on public lands as per Explanation-III thereof. Thus, the burden lies heavily on respondent No.1 to prove these two essential aspects.
The Tribunal has discussed the documentary evidence referred to above, produced by respondent No.1. As per Ex.P-1 Genealogy Table, one Bellamkonda Chennamma @ Chennappa is the ancestor of respondent No.1. The cover page of Ex.P-2 refers to the name of Jalasutram Venkaiah as the trustee. At page-2 thereof, the name of Bellamkonda Venkata Rao was mentioned as the previous trustee, besides Jalasutram Venkaiah s/o. Balakotaiah as the managing trustee and Gangannagunta Hanumaiah, as another trustee, appointed as per resolution dated 28-4-1954 for three years. At page-8 of the said Register, it was mentioned that Garuda Vahanam and Hanumantha Vahanam were donated by Bellamkonda Venkata Subbamma w/o. Kesava Rao. In the opinion of this Court, these documents on which the Tribunal has placed reliance would in no manner prove the claim of respondent No.1 that his ancestors have founded the Temple. It is not in dispute that the Temple is nearly 1000 years old. Therefore, just going by the names of the persons in management of the Temple more than 950 years after the same was founded, no presumption can be drawn in favour of Bellamkonda family. If that be so, such a presumption can be raised in favour of Jalasutram family also as Jalasutram Venkaiah was also appointed as the managing trustee. The fact that one of the ancestors of respondent No.1 has donated Garuda Vahanam and Hanumantha Vahanam also does not prove the claim of respondent No.1 as they have no relevance in ascertaining as to who founded the Temple.
As per the observation of the Tribunal, Ex.P-3 certified copy of Inam Fair Register dated 17-11-1860, shows that some inam land was given as endowment for support of pagoda of Sri Vallabharaya Swamy Varu and Bellamkonda Bhaskara Rao and Venkata Rao were shown as the managers of the Temple. Even this document does not conclusively prove that Bellamkonda family has constructed the Temple with its own funds without collecting any donations, which is a sine qua non for recognising a person as the founder as per Explanation-III of sub-section (1) of Section 17 of the 1987 Act. The Tribunal has committed a grievous error in treating this document as proof that Bellamkonda Chennamma was the founder of the Temple. The Tribunal appears to have got swayed away by the fact that as Bellamkonda family was managing the Temple as per Ex.P-3 Inam Fair Register, they would have constructed the Temple. This is nothing short of a conjecture.
Another serious flaw committed by the Tribunal is in placing reliance on the entries in Ex.P-4-Village-wise Inam Lands Register showing the names of the persons belonging to Bellamkonda family as being in possession of the Temple lands as tenants/occupants and also on Ex.P-5copy of Guntur District Village Kaifiyaths, wherein at Sl.No.80, it was mentioned that Bellamkonda village was given as a grant by Desipandyas (Deshmukhs) to Malraj family, that since then it has been continuing as zamindari inam and that from Rowdri year, the name of Bellamkonda Rama Krishnamma was mentioned as in possession of the lands of Pamidipadu, Dondapadu and Kesanapally and that Bellamkonda Vallabha Raidu was in possession of the lands of Guntakalpadu. The Tribunal has inferred from this document that as the entire village was zamindari village and Bellamkonda family was in possession of the same, there was no scope for anyone else owning or possessing any land and that therefore Bellamkonda family would have constructed the Temple. This approach of the Tribunal is not based on sound appreciation of the evidence on record. Exs.P-4 and P-5 raise several unanswered questions such as, can a family of a person in occupation of temple lands as tenant/occupant be presumed to have founded the temple?; whether by being in possession of zamindari lands, can a family be termed as the owner of such lands? (admittedly the lands were granted in favour of Malraj family by Desipandyas); and, if a temple was constructed over the lands belonging to zamindars, can a person in permissive possession as tenant or otherwise claim that such temple is constructed over his land?
The Tribunal itself has given a finding that no scheme was framed by the Endowments Department recognising any particular person or family as having founded any temple. It is of significance to note that the Tribunal has also observed that the evidence produced by respondent No.1 no where specifically reveals that Bellamkonda Chennamma founded and constructed the Temple. However, it has drawn an unwarranted interference that as the village land was donated by Malraj family to Bellamkonda Chennappa, no one could claim that the Temple was constructed on his own land. Indeed, from the discussion undertaken by the Tribunal on Ex.P-5, it does not follow that Malraj family has donated the land to Bellamkonda family. On the contrary, it was clearly mentioned by the Tribunal in its order that Ex.P-5 Kaifiyath mentioned that from Rowdri year, Bellamkonda Rama Krishnamma was in possession of the lands in three villages, including Pamidipadu village where the Temple was constructed. Therefore, the finding that Malraj zamindar has donated the land to Bellamkonda family is wholly without any basis.
Assuming that Bellamkonda family owned lands and that the Temple was constructed thereon, respondent No.1 still cannot succeed unless he proves the further fact that the Temple was constructed wholly from out of the personal funds of Bellamkonda family as required under Explanation-III to Section 17(1) of the 1987 Act. No evidence whatsoever was produced by respondent No.1 to prove this fact. The Tribunal has not bestowed its attention to the requirements of Explanation-III and made a perfunctory approach in jumping to the conclusion that Bellamkonda family has constructed the temple.
On a careful re-appreciation of the evidence on record, this Court has no hesitation to hold that respondent No.1 has miserably failed to satisfy the requirements of Explanations I to III of sub-section (1) of Section 17 of the 1987 Act for being considered for appointment as a trustee of the Temple. Therefore, the Award of the Tribunal cannot be sustained both in law and on facts. Accordingly, the Award under appeal is set-aside.
In the result, the Civil Miscellaneous Appeal is allowed. As a sequel to the disposal of the Civil Miscellaneous Appeal, CMAMP No.2238 of 2012 is disposed of as infructuous. ________________________ Justice C.V. Nagarjuna Reddy Date : 23-7-2014