Telangana High Court
D. Suryanarayana Raju vs Prl. Secy., Endw. Dept. 12 Ors. on 8 November, 2018
HON'BLE SRI JUSTICE C. PRAVEEN KUMAR
WRIT PETITION No. 7812 of 2017
ORDER:
1) The present Writ Petition came to be filed seeking issuance of writ of mandamus declaring the appointment of respondents 5 to 13 as Trustees of Sri Venkateswara Swamy Devasthanam, Vadapally, Aatreyapuram Mandal, East Godavari District vide G.O.Rt.No.1153 dated 09.12.2016, as illegal and they ceased to hold the office as Trustees of the said temple by operation of law due to non-administering the oath of office and secrecy as per Sections 19(2) & (3) of A.P. Charitable and Hindu Religious and Endowments Act, 1987 (hereinafter referred to "the Act").
2) The facts in issue are as under:-
The petitioner, who claims to be a resident of Lolla village and Mandal of Aatreyapuram revenue village and devotee of Sri Venkateswara Swamy Devasthanam, filed the present writ petition for the relief referred to above. According to him, it is his desire to become a trust board member of the said temple and was looking forward for issuance of notification under Section 17 of the Act. But to his utter surprise, the first respondent has constituted a trust board with respondents 5 to 13 without following due 2 procedure. According to him, the trust board was constituted under G.O.Rt.No.1153 Rev.(Endts.II) Department dated 09.12.2016 by the first respondent and requested the Commissioner to take steps to administer the oath of office and secrecy to the persons appointed as trustees and also make arrangements to elect Chairman as per Section 20(1) of the Act. According to him, as per Sections 19(2) and (3) of the Act, the persons appointed as trustees shall administer oath of office and secrecy within 30 days from the date on which they were appointed. As the same was not done, he filed the petition directing respondents 5 to 13 not to administer the oath as an interim relief. Since no stay was granted, oath was administered to its members on 07.03.2017.
3) A counter came to be filed by respondents 5, 6 and 9 to 13 and also by the 3rd respondent disputing the contents of the affidavit filed in support of the writ petition except to the extent admitted therein. It is urged that the writ petitioner is not an applicant for appointment of a trustee pursuant to a notification issued by the Government, which was published in Sakshi and Andhra Jyothi news paper. Hence the ground urged for filing the writ petition that he wants to become a member of the trustee by questioning the process cannot be accepted, and that he has no locus standi to challenge the appointment of the respondents. It is 3 said that after receipt of applications from the interested persons, for being appointed as trustees to the subject temple, pursuant to the notice dated 23.04.2016, the Government considered the material and issued the impugned G.O. Out of the 23 persons, who have filed their applications pursuant to the notification respondents 5 to 13 were selected/appointed. The unsuccessful applicants never challenged the proceedings. It is further stated that after that the Government constituted the Trust Board vide G.O.Rt.No.1153 dated 09.12.2016, the Commissioner of Endowments received instructions vide Memo No.B1/10944/2016 dated 25.01.2017, authorizing the Assistant-
Commissioner of Endowments to administer oath of office and secrecy to the persons appointed as trustees as required under Section 19(2) of the Act. On receipt of the orders of the Government and the Memo of the Commissioner of Endowments, the Assistant Commissioner sought clarification, as one of the members was holding the post of Sarpanch at that time. The same was clarified by the commissioner of Endowments in Memo No. No.B1/10944/2016 dated 16.02.2017 directing the Assistant Commissioner, Endowments Department, Rajamahendravaram to implement the orders of the Government and administer the oath of office and secrecy to the persons appointed as Trustees and 4 further specially instructed to follow model code of conduct, if there is an election for MLC constituency in East Godavari District. It is said that in view of the election to the Legislative Council from local bodies, during the month of March 2017 and as the model code of conduct came into operation, he could not proceed with the process till 06.03.2017 and immediately thereafter i.e., on 07.03.2017, he convened a meeting and administered oath to the trustees, as per the impugned G.O., and thereafter on 08.03.2017, election to the post of Chairman was conducted. It is further pleaded that the notice of the meeting was served on the trustees on 06.03.2017, fixing the date for taking oath on 07.03.2017. Hence, it is pleaded that there is no delay on the part of the authorities in administering oath after their appointment. Relying upon the judgment of this court between Rapolu Sudhakar v. Government of Andhra Pradesh and others1 the learned counsel would contend that the administration of oath cannot be said to be illegal and bad in law.
4) The counter filed by the 4th respondent i.e., Executive Officer of the Temple would show that the petitioner herein does not fall within the meaning of "person interested" as defined under Section 2(18) of the Act and as such he cannot maintain the writ 1 2007(2) ALD 743 5 petition. It is further stated that the petitioner is not a resident of Lolla village and Mandal of Athreyapuram revenue village and it is false to state that the first respondent constituted a trust board with respondents 5 to 13 without following due process of law. According to him, on 17.07.2016, notices were issued calling for constitution of trust board, by publishing the same in Sakshi and Andhra Jyothi daily news papers on 01.05.2016. About 23 applications were received and after thorough verification, respondents 5 to 13 were found to be eligible to be appointed as trustees vide G.O.Rt.No.1153 dated 09.12.2016. The second respondent issued Memo No.B1/10944/2016 dated 25.01.2017 authorizing the Assistant Commissioner to administer oath of office and secrecy of the persons appointed. A clarification letter dated 27.01.2013 was sent by the Assistant Commissioner to the Commissioner, who in turn directed the Assistant Commissioner to proceed further. It is urged that 30 days time specified under Section 19(2) and (3) will be operative upto 15.03.2017 and as such administration of oath of secrecy on 07.03.2017 and election of Chairman on 08.03.2017 cannot be said to be illegal.
5) A reply came to be filed by the petitioner disputing the averments made in the counter filed. It is stated that the election code though came into operation will not apply to the case on hand 6 since administering oath of office and secrecy has nothing to do with the election of members to the Legislative Council through local bodies. It is reiterated in the reply that since the administration of oath was beyond the period of 30 days, the respondents cannot continue as trustees of the said temple.
6) Section 19(2) of the Act states that before a trustee enters upon his office, the Commissioner, Deputy Commissioner or Assistant Commissioner or any other person authorized by him in this behalf, shall administer to him the oath of office and secrecy as prescribed. As per Section 19(3) of the Act any such trustee who fails to take, within thirty days from the date on which he was appointed, the oath of office and secrecy laid down in sub-section (2), shall cease to hold office.
7) In this case, the appointment was on 09.12.2016, which was communicated to the unofficial respondents on 27.01.2017 and the oath was administered on 07.03.2017. In these circumstances whether it can be said that the oath was beyond the period of 30 days as prescribed under the Act?
8) At first blush, it appears to be so, but a perusal of the law laid down proved to be otherwise. A perusal of the G.O., would show that in exercise of powers conferred under Section 15(1) of 7 the Act 30/1987, the Government of Andhra Pradesh constituted board of trustees fixing their period as two years, with effect from the date on which they take their oath of office and secrecy. Further, the Commissioner of Endowments, Hyderabad was directed to take necessary steps to administer oath of office and secrecy to the said persons as trustees whose names were referred and also for election to the post of Chairman of the above trust board, as per the provisions of Section 20 of the Act. A perusal of impugned G.O., would show that the Government while appointing unofficial respondents, directed the Commissioner to take steps to administer oath to office and secrecy to the persons appointed and also for election to the post of Chairman of the Trust Board. The impugned G.O., was issued on 09.12.2016. It is for the Commissioner, to take steps by convening a meeting by issuing notices to the appointed trustees and thereafter administer oath. In the instant case, though the G.O., was issued on 09.12.2016, the Commissioner of Endowments issued instructions on 25.01.2017, authorizing the Assistant Commissioner, Endowments to administer oath of office and secrecy to the persons appointed as trustees as required under Section 19(2) of the Act and the rules made thereunder. Pursuant thereto, the Assistant Commissioner of Endowments addressed a letter to the 8 Commissioner seeking clarification as to whether they can administer oath of office as one of the person was holding the post of Sarpanch of the village at that time. The said doubt came to be cleared vide Memo dated 16.02.2017. The said letter further directed the officials to follow model code of conduct, if there was an election for M.L.C. constituency in East Godavari district. The record and the counter indicate that election to the Legislative Council, from the local bodies was to be held in the first week of March 2017 and the Election Commission of India has issued the schedule to the election of the members of the Legislative Council on 14.02.2017, from which date the code of conduct came into operation and it would be in force till 06.03.2017. Therefore, nothing could be done till 06.03.2017. Immediately thereafter ie., on 07.03.2017, the oath was administered and Chairman was elected on 08.03.2017. Therefore, the delay if any, cannot be either attributed to respondents 5 to 13 or to the authorities.
9) In Commissioner of Customs (Imports), Mumbai v. Tullow India Operations Limited2 the Apex Court laid down that time limit within which public functionary has to act cannot be interpreted as mandatory. The relevant portion is as under:- 2
Laws (SC) 2005-10-111 9 "The Directorate General of Hydrocarbons is under the Ministry of Petroleum and Natural Gas of the Government of India. The functions performed by it are public functions. The notification never contemplated that a public functionary, having regard to the importance of the subject matter and in particular when such importations are being made in public interest, would not dispose of the application for grant of essentiality certificate within a reasonable time so as to enable the importer to avail the benefit thereof. Applicants for grant of such certificates, having regard to their importance, should have been processed by the Directorate General of Hydrocarbons as expeditiously as possible but they did not choose to do so probably having regard to the fact that no time schedule therefor was prescribed. It is trite that when a public functionary is required to discharge its public functions within a time specified therefor, the same would be construed to be directory in nature."
10) Situation identical to the case on hand came up for consideration before this Court in Rapolu Sudhakar v. Government of Andhra Pradesh and another decided in W.P.No.1020 and 1337 of 2007 on 23.02.2007. In the said case also the learned Judge after referring to the judgment of the Supreme Court referred to above held that unless and until the second respondent convenes a meeting by issuing notice to all the appointed trustees, the time of thirty days does not start running. Hence, found that there cannot be any impediment to take oath of office and secrecy under Section 19(2) of the Act, as and when the Commissioner take steps to administer oath of office and secrecy.10
11) As stated above, in the instant case, the Commissioner appears to have delegated the same to the Assistant Commissioner, who for the reasons stated above could not administer oath and only on 06.03.2017 issued notice and then administer oath on 07.03.2017. Viewed from any angle, I am of the view that there is no violation of Section 19(2) and (3) of the Act.
12) Accordingly, the Writ Petition is dismissed. There shall be no order as to costs. As a sequel to it, miscellaneous petitions pending if any, shall stand closed.
________________________ JUSTICE C. PRAVEEN KUMAR Dt: 08.11.2018 GM