Telangana High Court
Kosgi Nammula Kanki Reddy And 38 Others vs The Deputy Commissioner And 4 Others on 14 September, 2022
THE HON'BLE SRI JUSTICE SAMBASIVA RAO NAIDU
CIVIL MISCELLANEOUS APPEAL No.813 OF 2019
ORDER:
This Civil Miscellaneous Appeal is filed against the Order in O.A.No.391 of 2015 on the file of Telangana Endowments Tribunal dated 21.02.2019 by which the application filed by the applicants herein was dismissed.
2. The said application was filed by the appellants under Section 87(1)(h) of Telangana State Chartable & Hindu Religious Institutions and Endowments Act, with a prayer to declare them as Members of the Founder Family of 3rd respondent Temple and to pass order for the annulment of the entries in the property register under Section 43 of the subject institution by showing the names of the appellants/applicants as members of the founder family.
3. They have examined two witnesses and marked two documents. During enquiry, the respondent examined RW1 2 SSRN, J CMA.No.813 of 2019 on behalf of 3rd respondent temple. The Tribunal dismissed the said application vide order dated 21.02.2019 and as per the order it shows that the Tribunal came to the conclusion that none of the ancestors of the appellants herein were recognized as hereditary trustees of 3rd respondent temple under the Act 17/66 as per Section 17(1) of the Act 30/87 to assume them as founder of the temple, and in the absence of such entry they cannot be recognized as members of founder family.
4. The learned counsel for the appellants has submitted that the Tribunal prior to the order impugned in the present appeal dismissed two more applications basing on the order of this Court in C.M.A.No.590 of 2012 wherein it was observed that Section 87(1)(h) of the Act, applicable only in relation to the institutions and Endowments which came into existence after the commencement of 1987 Act.
5. The learned counsel for the appellant has submitted that the said order in C.M.A.No.590 of 2012 was discussed in a subsequent C.R.P., between "Kum.Shashikala and 3 SSRN, J CMA.No.813 of 2019 others vs. Smt.Babita Sharma and Others". 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. Therefore, according to 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.
6. Learned counsel for the appellant has submitted that the Tribunal without going into the merits of the application and without much discussion simply dismissed the application, but in view of the order of this Court in C.R.P.No.4596 of 2017, there is necessity for 4 SSRN, J CMA.No.813 of 2019 reconsideration of the application, thereby sought for remanding the matter to the Tribunal.
7. 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.4596 of 2017 ?
8. POINT:
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 with an observation that since the Temple in question is in existence prior to the commencement of Act 30/1987, there is no necessity to look into the explanation 1(6) of Section 17(1). The Tribunal further observed that though the evidence indicates that forefathers of the appellants were founders and they constructed the temple, none of them were recognized as hereditary trustees of the temple and in view of explanation to Section 17 (1) of the Act, they cannot be recognized as Members of Founder family. 5
SSRN, J CMA.No.813 of 2019
9. 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 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...."
10. Therefore, in view of the fact that O.A. filed by the appellants herein was dismissed on the basis of above observation, in the light of the observation of this Court in C.R.P.No.4596 of 2017, there is a necessity to re-examine the claim of the appellants herein. Therefore, it is just and necessary to remand the matter to the Tribunal for fresh disposal.
11. In the result, this Civil Miscellaneous Appeal is allowed, the Order of Tribunal dated 21.02.2019 in O.A.No.391 of 2015 is set aside and the matter is 6 SSRN, J CMA.No.813 of 2019 remanded to Telangana Endowments Tribunal for disposal in the light of subsequent Order in C.R.P.No.4596 of 2017.
12. As a sequel, pending Miscellaneous Applications, if any, shall stand closed. No costs.
___________________________________ JUSTICE SAMBASIVA RAO NAIDU Date: 14.09.2022 Pssk