Andhra HC (Pre-Telangana)
Sri Ganesha Parvathi Sametha ... vs The State Of Andhra Pradesh Rep. By Its ... on 22 March, 2018
Author: B. Siva Sankara Rao
Bench: B. Siva Sankara Rao
HONBLE DR. JUSTICE B. SIVA SANKARA RAO
WRIT PETITION No.34844 of 2017
22-03-2018
Sri Ganesha Parvathi Sametha Chodeswara Swamy Alaya Abhivruddi Sangam (Regd.No.430/2015) rep. by its President Sri S.Ramakum
The State of Andhra Pradesh rep. by its Principal Secretary, Revenue (Endowments-I) Department and 7 others.Respondents
Counsel for the petitioner:Sri Ravi Cheemalapati
Counsel for the respondents :learned Government Pleaderfor Endowments
Sri V.Harnoor
Smt. K.Lalitha
<GIST:
>HEAD NOTE:
? Cases referred
1. AIR 1978 SC 851
2. AIR 2001 SC 2436
3. 2014 (5) ALD 540=(6) ALT 744
4. 2006 (1) ALD 468
5. 1971 SCWR 22
HONBLE DR. JUSTICE B. SIVA SANKARA RAO
WRIT PETITION No.34844 of 2017
ORDER:
The writ petitioner is Sri Ganesha Parvathi Sametha Chodeswara Swamy Alaya Abhivruddi Sangam (Regd.No.430/2015) rep. by its President Sri S.Ramakumar of Pinagadi Village Pendurthi Mandal Visakhapatnam District, where the temple situated. The respondents 1 to 8 are the State of AP rep. by its Principal Secretary, Revenue (Endowments-I) Department, the Commissioner, Endowments Department, Vijayawada, The Regional Joint Commissioner Endowments, Kakinada, The Deputy Commissioner Endowments, Visakhapatnam, Assistant Commissioner Endowments, Visakhapatnam, one Sri K Nageswararao, earlier Executive officer, Madugula, one S.V. Satyanarayana Murthy, present Executive Officer Group of Temples, Madugula & Chodavaram respectively & unofficial respondent by name Sri Bylapudi Haragopal S/o Bylapudi Suryanarayana.
2. The prayer in the writ petition reads as follows:
to issue an appropriate Writ, order or direction more particularly one in the nature of writ of Mandamus or any other an appropriate writ and declaring the action of the 2nd respondent in issuing the impugned proceedings in R.C.No.E2/700905/2017 dated 27.9.2017 where in appointing the 6th respondent as full additional charge of the post of Executive Officer to Sri Ganesh Parvathi Sametha Chodeswara Swamy Temple, Pinagadi village, Pendurthi Mandal, Visakhapatnam District, contrary to Section 19(1)(g) and 15 of Andhra Pradesh Charitable & Hindu Religious Institutions and Endowments Act 30/1987 and to declare the same as illegal arbitrary unjust and also in violation of the Endowments Act and consequently set-a-side the impugned proceedings of the 2nd respondent in R.C.No.E2/700905/2017 dated 27.9.2017 and to pass such other order or orders
3. It is practically impugning the proceedings of the Commissioner dated 27.09.2017 appointing the respective EO of the Group temples as additional charge to the post of the EO of the temple by name Sri Parvathi Sametha Chodeswara Swamy Temple of Pingadi with consequential relief in setting aside the same as contrary to law. The affidavit averments speak that the deponent President of petitioners sangam is one of the ardent devotee of the lord Shiva of the age old temple that was established Chola Kings in an extent of Ac.0.04 cents and the temple once totally ruined for no care or maintenance and while so, in 2009 it was reconstructed by villagers including the family members of the President of the petitioner sangam among public donors including one B.Ramana Naidu, senior vice president of L&T company and after renovation of temple, the society of the petitioner formed for its improvement by conducting daily poojas including by appointment of priest. It is stated that there are no lands to the temple and it never belonged to Endowments Department. It is subsequent to the renovation of the temple and taking charge of the petitioner for its sangam and consisting of registered society with 10 members including executive committee among them with 5, the Deputy Commissioner of Endowments issued proceedings appointing one K.Nageswarrao on 28.03.2016 as single trustee without any notice or enquiry or opportunity to the petitioners society much less personal hearing which made them to file writ petition No.14537 of 2016 where there was an interim order obtained against it. The Deputy Commissioner referred in that order covered by the earlier writ petition impugnment of proceedings/report of Assistant Commissioner in saying in the interest of development of institution and to safeguard the properties of it and as per Section 15(3) r/w Section 1(3)(b) of the Act and after that writ petition and interim order again there is another proceedings dated 25.01.2017 by the Deputy Commissioner appointing the 7th respondent as substitute for 6th respondent, Executive Officer (EO) of Group temples as full additional charge saying for interest and better management of the temple and to safeguard its properties and the petitioners sangam then filed another writ petition No.6026 of 2017 which is also pending adjudication. It is further averred in the writ petition affidavit from Para 9 onwards in the background of facts supra, that above orders are in violation of Section 19(1)(g) and Section 15(2) of the Act and outcome of misguidance if any and both the previous orders are subject matters of impugnment in earlier writ petitions under colourable exercise of power, one as person in management and other as full additional charge with contractual designations though there is no much difference in their roles and while so, without any necessity or warranting a situation those orders were passed. The 8th respondent also resident of the same village and one of the donors among other people of the village who contributed for the upliftment of the temple, whose brother worked at one point of time as President to the earlier sangam started to project the 8th respondent as if Dharma Kartha and started misusing the funds for which the members of the petitioners sangam objected and changed that B.Uma Maheswara Rao from attending the affairs of the sangam by constitution of fresh executive committee having registered the same as referred supra and thereby with malafide intention the 8th respondent causing hurdles to the functioning of the petitioners sangam for progress of the temple. Even in both the earlier writ petitions there was interim orders, 8th respondent filed O.S.No.1140 of 2016 before learned I Additional Senior Civil Judge at Visakhapatnam for grant of permanent injunction and sought I.A.No.554 of 2016 for temporary injunction and obtained exparte injunction without even impleadment of petitioners sangam as one of the defendants to the suit and 8th respondent came by impleadment in the earlier WP.No.14537 of 2016, but not chosen to implead the petitioners sangam in the suit and suppressed those pendency of the first writ petition, filed the suit where written statement filed and suit is pending adjudication. While so, the Commissioner of Endowments passed the impugned proceedings dated 27.09.2017 appointing 6th respondent herein once again as EO to the temple as full additional charge in directing him to take complete charge from the managing trustee which proceedings is without reasons, baseless and unsustainable apart from in violation of Section 15(2) of the Act and thereby constrained to file the present writ petition seeking to set aside the same. Pending writ petition there was an interim order of suspension of the proceedings of the Commissioner granted on 31.10.2017 in WPMP.No.43316 of 2017.
4. The counter affidavit filed by the 8th respondent and 6th respondent-person in full additional charge and vacate petition filed in WVMP.No.4734 of 2017 by learned Government Pleader, Endowments for respondent Nos.1 to 5 supra and another stay vacate petition filed by 6th respondent in WVMP.No.4494 of 2017. Coming to the stay vacate petition sought by the official respondent Nos.1 to 5 from the affidavit of the 5th respondent- Assistant Commissioner-FAC reads that the temple is notified under Section 6(c)(2) of the Act and is under the administrative control of Assistant Commissioner Endowments (Commissioner proceedings under Section 6(c)(2) of the Act dated 04.02.2016 in DP2/24830/2015) and the temple was constructed by Chola Kings in an extent of around Ac.2.50 cents including open space and koneru abetting to the temple and it became dilapidated and one late Bylapudi Mallu Naidu renovated the temple with their own funds and Gram Panchayat passed resolution on 17.04.2006 for reconstruction of the temple and permission granted by Panchayat to the family members of Mallu Naidu and the construction was completed in 2009 and when the very temple again left open for public the family members of the Mallu Naidu and others formed the society for maintenance of temple having registered the same as society No.120/2009, there were 3 hundies in the temple and the income of the temple otherwise is from pooja tickets besides donations. The society members themselves divided into two groups and started managing the temple at their will and wish and at this juncture the family members of the Mallu Naidu made a representation on 26.10.2016 to register the temple under the Endowments Act to have the administrative control by the Department saying the temple is otherwise being mismanaged and Sarpanch of the village sent letter to the Assistant Commissioner on 19.10.2015 informing the temple getting income around Rs.3 to 5 lakhs. The Assistant Commissioner sent report to the Commissioner on 03.11.2015 of the temple is getting substantial income and it is constructed 70 years back and renovated and to register under Section 6(c) of the Act. Consequently the Commissioner issued proceedings and was registered and it was published pursuant to the proceedings of the Commissioner dated 04.02.2016 supra in bringing the temple as public temple under the control of Endowments Department. About 871 villagers of Pingadi sent a report to the Assistant Commissioner complaining of mismanaging of the temple affairs to manage the same through Endowments Department, consequently the Assistant Commissioner reported to the Deputy Commissioner on 29.02.2016 of the temple income is around Rs.5 lakhs through hundi collections and public donations etc., that can be raised and to protect the interest of temple there is need of appointment of nearest EO as single trustee for better management. It is based on that, the Deputy Commissioner issued proceedings on 28.03.2016 appointing single trustee, which is challenged in WP.No.14537 of 2016, thereafter EO was appointed by Deputy Commissioner which is under challenge in WP.No.6026 of 2017 and now in exercise of the powers under Section 29 of the Act, the Commissioner got jurisdiction to appoint EO to the temple and EO is appointed in the interest of the institution and for better administration and there is no any restricted entry to any public and even the petitioners society cannot claim right of management for the same is not a private temple. One registered society as development committee of the temple vide No.120 of 2009 in claiming as managing the temple till it was published in under Section 6(c) of the Act filed O.S.No.1140 of 2016 against the petitioner society and also I.A.No.554 of 2016 and obtained temporary injunction from the Court of Additional Senior Civil Judge, Visakhapatnam, and the petitioner society is not founder of the temple. Any renovator or any donor among several donors has no right to manage the affairs of a public temple. Thus neither petitioner society nor plaintiff in O.S.No.1140 of 2016 got any right to manage the affairs of the public temple defined in Section 2(27) of the Act, thereby appointed EO for better administration and the EO now appointed by the Commissioner get his emoluments from the Government exchequer and not drawing any salary from the temple. Both the societies fighting inter se including by filing suit or writ petitions not even paid salaries and paditharam to the archaka, archaka made representation dated 21.10.2017 and it is necessity for all these reasons the appointment of EO by the proceedings of the Commissioner thereby the interim order passed by the Court suspending the said appointment of the EO by the Commissioner is liable to be vacated.
5. The counter affidavit vis--vis stay vacate petition filed on behalf of the temple represented by the EO pursuant to the proceedings of the Commissioner are also in same line with the stay vacate petition filed by the 6th respondent-K.Nageswarrao, EO of group temples from the enclosures including the interim injunction order passed by the civil Court in O.S.No.1140 of 2016 supra dated 19.09.2016 of the inter se fight between petitioners society and 8th respondent and his family members formed into another sangam. There is a photo saying several persons made contribution for the temple renovation and there are 32 names in the photo taken from the name plate inscribed, however the names were struck off without any legibility as to who are the donors. There is another name plate inscription showing the temple is more than 7 to 10 decades old and it was originally constructed in the chola regime. The names printed at prathista were also struck off with no legibility, one of the photos show there is hundi.
6. From the above, coming to the counter contest of respondent No.8 to the writ petition while denying the writ petition averments, with contention of they formed into another society and they were the contributors for the temple renovation and a crime is registered against the present petitioners society on the representation of the 8th respondent and suit already filed there is interim injunction and the petitioners society cannot function to the welfare of the society which made them and the Sarpanch of the temple to make representations and consequently passing of the orders earlier by the Deputy Commissioner appointing R.6 or R.7 respectively as person in management and those were since in challenge in the earlier 2 writ petitions, the Commissioner passed the order and thereby sought for dismissal of the writ petition.
7. The impugned order of the Commissioner which is now in question on its sustainability to go into, it refers to the letter of the proceedings of the Assistant Commissioner in Rc.No.A1/1357/2017 dated 06.07.2017, which speaks K.Nageswara Rao, EO of Sri Panduranga Swamy Temple kept in FAC as EO of the temple. The managing trustee of the temple, Pingadi requested to handover complete charge of the post of EO to said Nageswara Rao and get himself relieved from incharge and Assistant Commissioner is requested to see that above orders are implemented and report compliance.
8. In coming to the correctness, it is to consider what the reference letter of the Assistant Commissioner dated 06.07.2017. The same filed as additional document shows Assistant Commissioner addressed to the Commissioner referring to letter of R.8-Hari Gopal reference No.3, order of WP.No.6026 of 2017 reference No.2 and order of the Deputy Commissioner dated 25.01.2017 and pursuant to it in saying the need of appointment of EO proposed for the reasons it is temple for which EO sought for appointment even by that trustee B.Hari Gopal-R.8 and the same was already notified as public temple by the proceedings of the Commissioner under Section 6(c)(2) of the Act on 04.02.2016 supra covered by Gazette publication. From the hundi and from abhisekham sale of tickets income is coming to the temple and the temple is spread out in an area of Ac.2.00 cts and odd with subject temple thereunder and it is mainly lord Shiva temple with Goddess and there is one archaka and one sweeper working therein. The income by hundi collection and ticket sale for abhisekham is in misuse, earlier there were complaints, from which the Deputy Commissioner under reference No.1 dated 25.01.2017 appointed EO as it is not tenable that is impugned in W.P.No.6026 of 2017, which was suspended by the High Court by interim order and having referred above it is necessary to appoint EO by the Commissioner.
9. Thus the sustainability of the impugned order of the Commissioner is simply based on the Assistant Commissioners letter and the Assistant Commissioner letter is based on letter of R.8 and earlier order of appointment of EO by the Deputy Commissioner since suspended by High Court in earlier WP and so far as letter of R.8 with signatures of more than 871 persons dated 17.02.2016 addressed to the Assistant Commissioner speaks some persons are mismanaging the temple affairs and its income by indulging in antisocial activities in temple premises, that his grand father late B. Mallu Naidu constructed mantapam of the temple 60 years back and his father and other family members were performing pooja. The temple is in dilapidated condition and he and his brother Uma Maheswara Rao obtained Panchayat permission in 2006 for its renovation and the local MP, MLA and village Sarpanch also consented for renovation of the temple for the public good with public contribution, however some persons are misusing the affairs of the temple, thereby the administration must be taken away by the Endowments Department in the public interest.
10. The Commissioner proceedings though not reproduced references supra once mentioned and references supra disclosed the need of appointment of person in management of the temple affairs, it is to see therefrom on its sustainability. The expression of the Apex Court in Mohinder Singh Gill & Another Vs. The Chief Election Commissioner, New Delhi , speaks that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, gets validated by additional grounds later brought out as held by the Apex Court also in AIR 1952 SC 16.
11. Before going further, it is to be kept in mind so far the legal position regarding appointment of EO or person in management of the temple that, as per Section 6 of the Act it must be published in the list of registered charitable and religious institutions and endowments in giving the classifications depending upon the income. In fact Section 1 of the Act speaks that it applies to all public charitable institutions and endowments whether registered or not in accordance with the provisions of this Act, other than of governed by the Waqf Act 1954, and the expression to all Hindu religious institutions and endowments in accordance with the provisions of this Act. Temple defined in Section 2(27) of the Act reads as follows:
Section 2(27) 'Temple' means a place by whatever designation known used as a place of public religious worship, and dedicated to, or for the benefit of, or used as a right by the Hindu community or any section thereof, as a place of public religious worship and includes sub- shrines, utsava mandapas, tanks and other necessary appurtenant structures and land;
Explanation I;- A place of worship where the public or a section thereto have unrestricted access or declared as a private place of worship by Court or other authority but notwithstanding any such declaration, public or a section thereof has unrestricted access to such place and includes a temple which is maintained within the residential premises, if offerings or gifts are received by the person managing the temple from the public or a section thereof at the time of worship or other religious function shall be deemed to be a temple.
12. The institution is temple in question a religious endowment once it is duly invoked under Section 6 of the Act as a public religious institution, since the above referred, including from writ petition, vacate petitions and counter affidavits, averments respectively supra shows it is a place of public worship constructed in the chola regime and continued under the management of the one or other among the several donors contributed to it, leave about the controversy as to any major contribution, by allowing people or not as the case may be, there are hundies and there are collection of tickets by charging for performing abhisekham and by allowing public and there is regular pujari and there is dwaja sthambam which are the pre- requisites of public temple since duly notified and same not in challenge as a public religious endowment within the control and general superintendence of the Commissioner of the Endowments under Section 8 of the Act, which reads as follows:
Section 8 - Powers and functions of 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) The powers and functions of the Additional Commissioner shall be such as may be determined by the Government from time to time.
(4) The Commissioner may delegate to a Deputy Commissioner any of the powers conferred on or functions entrusted to the Commissioner by or under this Act including the powers and functions of an Assistant Commissioner which may be exercised or performed by the Commissioner under sub-section (5) but not including the power and functions of the Commissioner under sub-
section (1), Sections 6, 15, 49, 51, 66, 90, 92 and 132 in respect of any institutions or endowments or any class or group of institutions or endowments in the State subject to such restrictions and control as the Government may by general or special order lay down and subject also to such limitations and conditions, if any, as may be specified in the order of delegation.
(5) The Commissioner may delegate to an Assistant Commissioner any of the powers conferred on or functions entrusted to the Commissioner by or under this Act except the powers and functions of the Commissioner under sub- section (1), Sections 6, 15, 49, 51, 66, 90, 92 and 132 in respect of any institution or endowment in the sub- division in charge of the Assistant Commissioner subject to such restrictions and control as the Government may, by general or special order, lay down and subject also to such limitations and conditions if any, as may be specified in the order of delegation.
(6) Notwithstanding anything in Sections 10 and 11, the Commissioner may, by order in writing, declare that the exercise and performance of all or any of the powers or functions by the Deputy Commissioner or the Assistant Commissioner, as the case may be, shall be subject to such exceptions, limitations and conditions as may be specified in the order and he may himself exercise any power or perform the functions so excepted.
13. Further Section 15 of the Act also reads as follows:
Section 15 - Appointment of Board of Trustees:-
In respect of a Charitable or Religious Institution or Endowment,-
(1) Included in the list published under clause (a) of Section 6, where the income for the Institution exceeds Rupees one crore per annum, the Government shall constitute a Board of Trustees consisting of nine persons appointed by them; where the income of the institution is between Rs.25 lakhs to Rupees one crore per annum, the Dharmika Parishad Shall constitute a Board of Trustees consisting of nine persons.
(2) Where the income of the institution is between Rs.2.00 lakhs to Rs.25 lakhs per annum, the Commissioner shall appoint a Board of Trustees consisting of five persons and where the income of the institutions is less than Rs. 2 lakhs per annum, the Deputy Commissioner concerned may constitute a Board of Trustees consisting of three persons in respect of each such temple keeping in view the traditions, sampradayams and wishes of the devotees:
Provided that the Deputy Commissioner may either in the interest of the institution or endowment or any other sufficient cause or for reasons to be recorded in writing appoint a single trustee instead of a Board of Trustees:
Provided further that in the case of a religious institution, the Archaka or where there is more than one Archaka, the Pradhana Archaka thereof shall be an ex- officio member of the Trust Board notwithstanding clause
(g) of sub-section (1) of Section 19:
Provided also that where the Board of Trustees is not constituted for any reason, the recognized Founder or Member of the Founder's Family shall discharge the functions of the Board of trustees till a new Board of Trustees is constituted:
Provided also that where there is no Executive Officer or Founder Family member to any institution or where the Government or the authority competent to constitute a Trust Board has not constituted the Trust Board within the period specified under this sub-section, the Commissioner shall make such arrangement as he deems fit to look after the affairs of the institution during the interregnum period between the date of expiry of the terms of the Trust Board and constitution of the new Trust Board:
Provided also that one of the members of the Board of Trustees shall be a prominant donar with a long, track record of Philanthropy and support to Hindu Religious Institutions.
14. Leave about even a private temple even already declared as such also in course of time may become public temple and even that can be notified under Section 6 of the Act by due publication as public temple as held by the Apex court in Teki Venkata Ratnam & Others Vs. Deputy Commissioner, Endowment & Others , that is not controversy herein to go further on that for there is nothing impugned of the said publication of institution as public religious endowment.
15. So far as appointment of trustees, person in management as stop gap arrangement and EO concerned, Section 29 of the Act reads as follows (amended by Act No.33/2007 with effect from 03.01.2008):
Section 29 - Appointment and duties of Executive Officer:- There shall be an Executive Officer for every Charitable or Religious Institution or Endowment to be appointed by the Government in the case of institutions and Endowments having income of rupees one crore and above and by the Commissioner in the case of other Institutions and Endowments included in the lists published under clauses (a) and (b) of Section 6. In respect of charitable or religious institutions or endowment having income of less than rupees two lakhs per annum, and included in the list published under clause (c) of Section 6, it shall not be necessary to appoint an executive officer. The cadre of Executive Officers to be appointed under this section for the respective institutions on the basis of the income of the Institution or Endowment shall be as may be prescribed:
Provided that, where there is no Executive Officer in respect of any Charitable or Religious Institution or Endowment, the trustee or the Chairman of the Board of Trustees or any employee of any Institution or Endowment where the income exceeds Rs.2 lakhs, but is less than Rs.25 lakhs per annum, duly authorised by the Commissioner in this behalf shall exercise the powers and perform the functions and discharge the duties of an Executive Officer:
Provided further that it shall be competent for the Commissioner to appoint an Executive Officer to any institution having income of less than Rs.2 lakhs per annum if there are substantial immovable properties to the institution or if he is satisfied that such appointment is necessary in the interest of better administration of the institution or for any other reason to be recorded in writing:
Provided also that, it shall be competent for the Commissioner to constitute such number of Charitable and Hindu Religious Institutions and Endowments as may be necessary, into a single group for the purpose of appointing an Executive Officer or any other employee to such group.
(2) The number of Executive Officers in each grade shall be as may be prescribed by the Government from time to time and the Commissioner shall be the appointing authority for the Executive Officer of Grades I, II and III:
Provided that forty percentum of vacancies in third grade Executive Officers posts and twenty percentum of the vacancies in other two grades of Executive Officers shall be filled by the employees belonging to the institutions or Endowments of prescribed grade:
Provided further that it shall be competent for the Government to appoint a Regional Joint Commissioner as an Executive Officer to any institution and it shall be competent for the Commissioner to appoint a Deputy Commissioner or an Assistant Commissioner as an Executive Officer to any institution basing on the annual income of such institution.
(3) The Executive Officer appointed and exercising the powers and discharging the duties shall be a person professing Hindu Religion and shall cease to exercise those powers and discharge those duties when he ceases to profess that religion.
(a) The Executive Officer appointed under this section shall be responsible for carrying out all lawful directions issued by such trustee from time to time;
(b) The Executive Officer shall, subject to such restrictions as may be imposed by the Government;
(i) be responsible for the proper maintenance and custody of all the records, accounts and other documents and of all the jewels, valuables, money, funds and other properties of the Institution or Endowment;
(ii) arrange for the proper collection of income and for incurring of expenditure;
(iii) sue or be sued in the name of the institution or Endowment in all legal proceedings;
Provided that any legal proceedings pending immediately before the commencement of this Act by or against an institution or Endowment in which any person other than an Executive Officer is suing or being sued shall not be affected;
(iv) deposit of money received by the institution or Endowment in such Bank or treasury as may be prescribed and be entitled to sign all orders or cheques against such moneys;
Provided that the Executive Officer shall not encash the fixed deposit certificates pertaining to any scheme or specific endowment under any circumstances;
(v) have power in cases of emergency to direct the execution of any work or the doing of any act which is provided for in the budget for the year or the immediate execution or the doing of which is in his opinion necessary for the preservation of the properties of the institution or endowment or for the service or safety of pilgrims resorting thereto and to direct that the expenses of executing such work or the doing of such work or the doing of such act shall be paid from the funds of the institution or endowment:
Provided that the Executive Officer shall report forthwith to the Trustee, any action taken by him under this sub-clause and the reasons therefore and obtain approval;
(c) The Executive Officer shall, with the prior approval of the trustee institute any legal proceedings in the name of the institution or endowment or defend any such legal proceeding;
(d) The Executive Officer appointed under this section shall be the employee of the Government and the conditions of his service shall be such as may be determined by the Government. The salary, allowances, pension and other remuneration of the Executive Officer shall be paid out of the consolidated fund of the State and later recovered from the Endowment Administrative Fund.
(e) It shall be the duty of the Executive Officer of every Religious or Charitable Institution to foster faith, devotion and ethical conduct in the society, by facilitating formation of a Bhaktha Samajam attached to each Institution, on voluntary basis, consisting of the devotees thereof in order to periodically organize Bhajans, Religious discourses devotional and other Religious programmes such as Nagara Sankeertans etc., appropriate to the Custom, Usage, Tradition and Sampradayams of the Institution concerned.]
16. In the case on hand, the income of the temple is between Rs.3 to 5 lakhs from the report of the Assistant Commissioner way back in the year 2016 to the Deputy Commissioner and also the present report referred by the Commissioner of the Assistant Commissioner referring to the Deputy Commissioner proceedings also pursuant to that recommendation to the Deputy Commissioner in appointing person in management or EO as the case may be and very Section 29(1) r/w Section 6(c) under which the institution is classified in the Gazette publication as public religious endowment with income between Rs.3 to 5 lakhs, however Rs.2 lakhs. The Section 6 publication says classified under Section 6(c)(2) of the Act of not exceeding Rs.2 lakhs. Even in such case, from Section 29(1) second proviso, where there are substantial immovable properties to the institution or if he is satisfied that such appointment is necessary in the interest of better administration of the institution or for any other reason to be recorded in writing, the Commissioner can appoint EO. Here two rival groups are fighting undisputedly as can be seen from the record also to take over management and there are complaints of mis-utilization, about 871 villagers signed in asking to take over management including by R.8, who claims from the family of the major contributors to the temple renovation. This material is more than sufficient to say in the interest and better administration of the institution for invoking proviso 2 to Section 29(1) of the Act by the Commissioner, within the general power of superintendence conferred under Section 8 of the Act referred supra.
17. No doubt the appointment of EO is different from appointment of trust board. The EOs powers and functions are as can be seen from Section 29(3) of the Act for carrying out all lawful directions issued by such trustee from time to time and subject to such restrictions as may be imposed by the Government, responsible for the proper maintenance and custody of all the records, accounts and other documents and valuable jewellery, money, funds and other properties of the Institution or Endowment, arrange for the proper collection of income and for incurring of expenditure, sue or be sued and to continue in pending legal proceedings and in cases of emergency to direct the execution of any work subject to limitation and with the prior approval of the trustee institute any legal proceedings in the name of the institution or endowment or defend any such legal proceeding and shall be the employee of the Government and the conditions of his service being determined to draw salary, allowances out of the consolidated fund of the State and later recovered from the Endowment Administrative Fund and general duties to foster faith, devotion and ethical conduct in the society, by facilitating formation of a Bhaktha Samajam on voluntary basis, consisting of the devotees to periodically organize Bhajans, Religious discourses devotional and other Religious programmes such as Nagara Sankeertans etc., appropriate to the Custom, Usage, Tradition and Sampradayams etc.
18. No doubt the petitioner in the writ petition mentioned of the temple has no properties and no income to appoint EO.
However the fact remains that, the Assistant Commissioners report referred supra and the counter affidavit refers to it clearly speak the temple is constituted in a landed property of about Ac.2.00 cts and odd. Apart from it, it is getting income by hundies and sale of abhisekham tickets and income is about Rs.3 lakhs per annum and it can be improved by proper supervision and management. Once such is the case, recommendation of the Assistant Commissioner earlier to the Deputy Commissioner and referring to it to the Commissioner, the contention that there is no specific denial of this in the counter affidavit of respondent is not tenable, when there are specific denials at least by respondent No.8 in this regard.
19. Thus EO cannot supersede a trustee once there is any trustee duly appointed trustees by constituting a trust board. So far as trustees concerned, unless the trustee is suspended or removed under Section 28 of the Act entitled to act during the tenure of the trust board other than for hereditary trustees recognized by the amended Act No.33/2007 w.e.f. 31.01.2008 including in saying the constitution of trust board under Section 15 shall be with inclusion of a founder or member of the family of the founder besides archaka being Ex-Officio member. Here in the case, there are no founders or family members of any founder to consider, but for to say only non-heriditary trustees are to be appointed under Section 15 of the Act. Section 15 of the Act says to a religious or charitable institution or endowment included in Section 6(a), by the Government where income above Rs.1 crore and where income is between Rs.2 to 25 lakhs the Commissioner and where income is less than Rs.2 lakhs the Deputy Commissioner to constitute board of trustees. Section 15 proviso (1) speaks that the Deputy Commissioner may either in the interest of the institution or endowment or any other sufficient cause or for reasons to be recorded in writing appoint a single trustee instead of a Board of Trustees. Second proviso says that if there are more than one Archaka, the Pradhana Archaka thereof shall be an ex-officio member of the Trust Board, notwithstanding clause (g) of sub-section (1) of Section 19. Third proviso says that where the Board of Trustees is not constituted for any reason, the recognized Founder or Member of the Founder's Family shall discharge the functions of the Board of trustees till a new Board of Trustees is constituted. Fourth proviso says that where there is no Executive Officer or Founder Family member to any institution or where the Government or the authority competent to constitute a Trust Board has not constituted the Trust Board within the period specified, the Commissioner shall make such arrangement as he deems fit to look after the affairs of the institution during the interregnum period between the date of expiry of the terms of the Trust Board and constitution of the new Trust Board. Further the last proviso says that one of the members of the Board of Trustees shall be a prominent donor with a long, track record of Philanthropy and support to Hindu Religious Institutions.
20. From this it cannot be ignored of the change of law after the amendment by Act No.33/2007 including by amendment to Sections 29, 15 & 17 of the Act in particular.
21. The recent past expression of the this Court in Machani Nagaraju Vs. the Commissioner of Endowments , on the issue as to the power of the Commissioner under Section 29 of the Act to appoint EO on the basis of the report of the Assistant Commissioner appointing defendants in administration of the temple by its trustee and scope of writ jurisdiction in impugning the said appointment of EO by the Commissioner based on the report of the Assistant Commissioner that though the power to issue prerogative writs under Article 226 is plenary in nature and not related by any other provisions of the Constitution. The High Court got discretion to entertain or not as it is imposed upon it certain restriction, one of which an efficacious and effective alternative remedy, though that by itself is not operative as a bar at least in 3 contingencies namely where writ petition filed for enforcement of the fundamental rights or violation of principles of natural justice or order of proceedings are wholly without jurisdiction or virus of an Act in challenge. It is pointed out referring to Section 29 proviso (2) of the satisfaction required to be arrived is that of the Commissioner. Court would neither substitute its satisfaction for nor sit in appeal over satisfaction of the Commissioner in this regard as satisfaction of the Commissioner is required to be shown as of necessity of appointment of EO in the interest of better administration of the institution. There on facts the Commissioner passed an order appointing EO from the report of the Assistant Commissioner after conducting enquiry into complaint against the petitioner trustee of the temple of several deficiencies that could be pointed out, held there is nothing to interfere with that order.
22. Before discussing further no doubt another expression by selfsame Judge in Ramanama Sankirthana Sangham Vs. Government Of A.P. and Others referring to Section 15, 29 & 8 of the Act which is prior to the amended Act No.33/2007 dated 31.01.2008 in saying the discretion conferred on the Commissioner to appoint EO is required to be exercised for just or valid reasons and outcome of application of mind in consideration of the relevant factors by examination of need for appointment in respect of the individual institution and what are the criteria for appointment of EO would equally apply for appointment of manager. Even consideration of the same, so far as appointment of EO in question as manager is practically a stop gap arrangement for some period, that too when there is no trust board to take charge of the affairs of the institution, that too when two rival groups taking management or fight against each other detriment to the interest of institution and public interest at large. In fact as can be seen from the provisions and also can be seen from the expressions of the Apex Court particularly in Annadana Samajam Vs. Commissioner , the duties of Executive Officer to discharge secular duties are different to discharge of religious and charitable duties by trust board (hereditary/non- hereditary) and in absence of trust board by a person incharge of management as a stop gap and in case non-hereditary trust board tenure ceased and new one not constituted and in case of hereditary trustees where there is a founder family member who can act even after expiry of tenure of trust board till new trust board to be appointed, where founder family member must be the Chairman and archaka an ex-officio member.
23. Having regard to the above, the order of the appointment of the EO passed by the Commissioner no way requires interference, but for to say it must be not for indefinite period more particularly from consideration of the Gazette notification of the nature of the institution under Section 6 of the Act and the discretionary power of the Commissioner to be exercised in appointing of EO or person in management under Section 29 & 8 of the Act with reference to Section 15 of the Act from no existing non-hereditary duly constituting trust board, to act as person in management till trust board is to be duly notified and constituted for the temple in question. It is needless to say the petitioners sangam or its members or respondent No.8 or any others can duly apply for consideration, whenever there is a notification for appointment of a non-hereditary trust board applying duly from the eligibility criteria and other relevant parameters for consideration. Till then the Commissioners appointment of the person as EO or person in charge holds good by virtue of this order. Among respondent Nos.1 to 3 are required to direct, who are concerned of the above, to take necessary steps to notify for constitution of non-hereditary trust board to the temple in question as early as possible requiring the eligible candidates by fixing on the notice board of the temple and the Panchayat and after receiving the applications on scrutiny with reference to the touchstone of eligibility contemplated by the qualifications and disqualifications of the trustees to be appointed under Sections 15 to 19 of the Act duly constituting by appointment of trust board to take on oath to function for the tenure by considering the archaka of the temple also as Ex-Officio of the trust therein pursuant to the provisions of the Act.
24. With the above observations, this Writ Petition is disposed of.
Consequently, miscellaneous petitions, if any shall stand closed. No costs.
_____________________________________ JUSTICE Dr. B.SIVA SANKARA RAO Date: 22.03.2018