WA/2127/2003 of Kothalanka Chandra Mouli, Vs The Govt.of A.P., rep.by its Special Chief on 29 December 2011

1. AIR 1996 SC 1765

THE HON’BLE Ms. JUSTICE G. ROHINIANDTHE HON’BLE SRI JUSTICE SANJAY KUMAR

DATED:29.12.2011

Between:

Kothalanka Chandra Mouli … Appellant

And

1. The Government of Andhra Pradesh, rep.by its Special Chief Secretary to Government,Revenue(Endowments) Department, A.P.Secretariat, Hyderabad., and 3 others. … Respondents THE HON’BLE Ms. JUSTICE G. ROHINIANDTHE HON’BLE SRI JUSTICE SANJAY KUMAR

WRIT APPEAL No.2127 OF 2003

JUDGMENT: (Per G. Rohini, J)

This Writ Appeal is preferred against the order of the learnedSingle Judge dated 11.09.2003 in W.P.No.435 of 2002.

The appellant herein is the respondent No.4 in the writ petition. The writ petitioner in whose favour the writ petition was decided is therespondent No.4 in this Appeal.

For the sake of convenience, the parties shall hereinafter bereferred to as they were arrayed in the writ petition.

Facts in brief:

The writ petitioner / respondent No.4 herein is a member of thefamily of hereditary archaka of Sri Agastheswara Swami Temple (hereinafter referred to as ‘the temple’) situated atRamachandrapuram, East Godavari District. The respondent No.4 /appellant herein is the son of one Yerraiah who was appointed longback in the year 1947 as a deputy of the family of the hereditaryarchaka for the purpose of rendering archakatvam in the said temple.

Alleging that Yerraiah resisted to hand over the archakatvam inspite of the repeated requests, one of the family members of thehereditary archaka of the temple filed O.S.No.32 of 1959 in the Courtof the District Munsif, Ramachandrapuram seeking a declaration oftheir rights as hereditary archakas and for delivery of possession oftemple together with jewellery and their articles after ejecting Yerraiah.The said suit was decreed by judgment dated 31.08.1959 declaringthat Yerraiah was only a deputy of the hereditary archaka and that hewas not appointed directly by the hereditary trustee. A decree fordelivery of possession of the temple and articles therein was alsogranted. However Yerraiah continued to render Archakatvam evenafter the said decree dated 31.08.1959 on the basis of an arrangementsaid to have been effected between the parties.

Subsequently the family members of the hereditary archaka,including the writ petitioner filed O.S.No.469 of 1982 in the Court of thePrincipal District Munsif, Ramachandrapuram seeking a declarationthat they were hereditary archakas of the temple and that Yerraiah wasonly a deputy. They also sought a mandatory injunction directingdelivery of possession of the suit temples to enable them to performarchakatvam. The hereditary trustee of the temple as well as Yerraiahwere arrayed as defendants to the said suit. By judgement dated31.12.1992, O.S.No.469 of 1982 was decreed in part to the extent ofrelief of declaration. However the relief of mandatory injunction fordelivery of possession of the suit schedule temples was rejected. Both the parties preferred appeals being A.S.No.9 of 1993 andA.S.No.12 of 1993 in the Court of the Subordinate Judge,Ramachandrapuram, and they were disposed of by common judgment dated 01.08.1996.

Conclusion

dated 01.08.1996.

During the pendency of O.S.No.469 of 1982, Yerraiah tenderedresignation on 15.09.1984 and on the same day by proceedings dated15.09.1984 the respondent No.4 who is the son of Yerraiah wasappointed as archaka by the hereditary trustee of the temple. Initiallythe appointment was for a period of one year and it was subsequentlyconfirmed by order dated 12.09.1985. Thus the respondent No.4continued to render archakatvam in the temple.

After the disposal of A.S.Nos.9 & 12 of 1993 by judgment dated1.8.1996, the writ petitioner made a representation dated 9.10.1996requesting the Assistant Commissioner of Endowments, Rajahmundryto direct the Executive Officer of the temple to terminate the services ofthe respondent No.4 so as enable him to render archakatvam in thetemple.

Having accepted the writ petitioner’s request, the AssistantCommissioner of Endowments, by order dated 27.08.1997 directed the Executive Officer to allow the writ petitioner to function as archakaof the temple. The said order was challenged by the respondent No.4by filing W.P.No.2075 of 1998. By order dated 30.03.1998 this Courtallowed the said writ petition and directed the Assistant Commissionerof Endowments to reconsider the matter and pass appropriate ordersafresh.

Pursuant thereto, the Assistant Commissioner of Endowmentspassed a fresh order dated 12.2.1999 holding that by virtue of theorders of the Hereditary Trustee, dated 15.09.1984 and 12.09.1985the respondent No.4 alone was entitled to continue. Thus the writpetitioner’s request to allow him to function as archaka was rejected.

Against the said order, dated 12.2.1999 the writ petitionerpreferred Revision Petition No.21 of 1999 before the Regional JointCommissioner of Endowments, Multizone-I, Kakinada under Section92 of The A.P. Charitable and Hindu Religious Institutions andEndowments Act, 1987 (hereinafter referred to as ‘Act 30 of 1987’).

The said Revision Petition was allowed by order dated 5.5.2001holding that the writ petitioner was entitled to render archakatvam inview of the declaration granted by the Appellate Court in A.S.No.12 of1993.

Aggrieved by the same, the 4[th] respondent filed a Revisionunder Section 93 of the Act 30 of 1987 before the Government of A.P. The said Revision Petition was disposed of by order dated13.09.2002 upholding the order passed by the AssistantCommissioner of Endowments, dated 12.02.1999 and setting asidethe order of the Regional Joint Commissioner, dated 5.5.2001.

Challenging the said order, the writ petitioner filed W.P.No.435of 2003. By order under appeal the said writ petition was allowed withcosts by the learned single Judge. Hence the present Writ Appeal bythe respondent No.4.

We have heard Sri M.R.K. Chowdary, the learned SeniorCounsel appearing for the appellant / respondent No.4 in the writpetition; Sri M. Vidyasagar, the learned counsel appearing for therespondent No.4 herein/writ petitioner and the learned GovernmentPleader for Endowments appearing for the respondents 1 to 3.

As could be seen, the contention of the writ petitioner before thelearned Single Judge was that the order of the AssistantCommissioner of Endowments (respondent No.3) holding that therespondent No.4 alone was entitled to function as archaka waserroneous and contrary to the findings recorded in O.S.No.469 of 1982and A.S.No.12 of 1993. It was also contended that the respondentNo.1 (the State Government-Revisional Authority) committed a graveerror in setting aside the well considered order passed by therespondent No.2 (Regional Joint Commissioner of Endowments) andrestoring the erroneous order of the Assistant Commissioner ofEndowments. The further contention was that the respondent No.4whose appointment as archaka by the hereditary trustee itself wasillegal and who had prevented the family of hereditary archaka from rendering service by resorting to various objectionable means and byplaying fraud on the Courts ought not to have been allowed to continueunder any circumstances.

Having accepted the said contentions, the learned SingleJudge held that the judgments in O.S.No.469 of 1982 and A.S.Nos. 9and 12 of 1993 constituted the basis for the claims and rights of the writpetitioner and that the statutory authorities are bound by the findingsrecorded therein. While relying upon the findings recorded inO.S.No.469 of 1982, particularly the fact that against the judgment inthe said suit, Yerraiah himself preferred the appeal i.e., A.S.No.9 of1993 and that the respondent No.4 who claims to have beenappointed as archaka during the pendency of the suit on 15.09.1984did not choose to come on record, the learned Single Judgedisbelieved the appointment of respondent No.4 on 15.09.1984. Thus,it was held that the order of appointment dated 15.09.1984 wasfabricated or brought into existence to nullify the rights of the writpetitioner and his agnates under the decree in O.S.No.469 of 1982. Though the view expressed by the respondent No.3 as upheld byrespondent No.1 that who ever was functioning as archaka as on thedate of coming into force of Act 30 of 1987 was accepted, the learnedSingle Judge opined that such functioning should be lawful and thatthe benefit of such provision was not available to interlopers or thosewho did not have a valid right. Thus, while observing that conferringthe benefit on the 4[th] respondent would amount to putting a premiumon the fraud played by him and his father on the family of the writpetitioner as well as the temple and the Courts from time to time, theorder of the 1[st] respondent was set aside and the writ petition wasallowed and the respondent No.3 was directed to ensure that the writpetitioner is installed as archaka of the temple forthwith.Contentions:

Sri M.R.K. Chowdary, the learned Senior Counsel appearing forthe appellant (respondent No.4 in the writ petition), while pointing out that under Section 34 of the Act 30 of 1987 (new Act) the rights ofhereditary archakatvam stood abolished and Section 35 (3) providedprotection for the holder of office to continue as office-holder,contended that in the light of the specific provisions under Act 30 of1987 the writ petitioner cannot claim any right against the office ofarchaka and the respondent No.4 who is admittedly holding office ason the date of the commencement of Act 30 of 1987 alone is entitled tocontinue.

On the other hand, Sri M. Vidyasagar, the learned counselappearing for the respondent No.4 herein/writ petitioner, contendedthat the subject-matter of O.S.No.469 of 1982 did not fall within thescope of Section 77 of the Act 17 of 1966 and therefore as rightly heldby the learned Single Judge the findings recorded by the trial Court aswell as the Appellate Court are binding and the AssistantCommissioner of Endowments and the Government of A.P. ought notto have ignored the hereditary rights of the petitioner’s family. It isfurther contended that the appointment of the respondent No.4 asarchaka itself was illegal being contrary to Section 31 of Act 17 of 1966and therefore he is not entitled to the benefit under Section 35(3) of theAct 30 of 1987.

We have also heard the learned Government Pleader forEndowments appearing for the respondents 1 to 3 and perused theoriginal record placed before this Court.

Legal Position:

The A.P. Charitable and Hindu Religious Institutions &Endowments Act, 1987 (Act 30 of 1987) has come into force w.e.f.28.05.1987. Prior to that the A.P. Charitable and Hindu ReligiousInstitutions and Endowments Act 1966 (Act 17 of 1966) was in forceunder which archakas, Mirasidars and other office holders of templeswere holding hereditary rights.

By virtue of sub-section (1) of Section 34 of Act 30 of 1987 thehereditary rights of a person holding any office of an archaka or poojari

or any other office or service or post by whatever name it is called inany religious institution or endowment stood abolished on thecommencement of the Act 30 of 1987. However notwithstanding theabolition of hereditary rights, sub-section (2) of Section 34 enabled every such officeholder holding office on the date of commencement ofAct 30 of 1987 to continue to hold such office or post, on payment ofemoluments and subject to conditions of service referred to in Section35 (3) and (4).

It is relevant to note that as per sub-section (3) of Section 35 ofAct 30 of 1987 the protection to continue as office holder is availableto every office holder whether hereditary or not, holding office as suchon the date of commencement of Act 30 of 1987 on payment of suchemoluments prescribed by rules made under the Act 30 of 1987.

The Constitutional validity of Sections 34 and 35 of the Act 30of 1987 was upheld by the Apex Court in A.S. NARAYANADEEKSHITULU v. STATE OF A.P. AND OTHERS[[1]]holding thatabolition of the hereditary right to appointment as archaka is notviolative of either Article 25 (1) or 26 (b) of the Constitution of India.

The relevant provisions under Act 30 of 1987 may bereproduced hereunder for ready reference:

34. Abolition of hereditary rights in Mirasidars,Archakas and other office holders and servants:-

(1) (a) Notwithstanding anything in any compromiseor agreement entered into or scheme framed or sanad orgrant made or judgment, decree or order passed by anyCourt, Tribunal or other authorities prior to thecommencement of this Act and in force on suchcommencement, all rights, whether, hereditary, contractualor otherwise of a person holding any office of thePeddajeeyangar, Chinna Jeeyangar, a Mirasidar or anArchaka or Pujari or any other office or service or post bywhatever name it is called in any religious institution orendowment shall on the commencement of this Act standabolished.

(b) Any usage or practice relating to the succession toany office or service or post mentioned in clause (a) shallbe void;

(c) All rights and emoluments of any nature in cash orkind or both accrued to and appertaining to any office orservice or post mentioned in clause (a) and subsisting onthe date of commencement of this Act shall on suchcommencement stand extinguished.

(2) Every office holder and servant mentioned in clause (a) of sub-section (1) holding office as such on thedate of commencement of this Act shall, notwithstandingthe abolition of the hereditary rights, continue to hold suchoffice or post on payment of only such emoluments andsubject to such conditions of service referred to in sub-sections (3) and (4) of Section 35.

(3) Notwithstanding anything contained in sub-sections(1) and (2) of this section, the qualified members of thoseArchaka families which were continuing in archakatvamservice under the provisions of the repealed the AndhraPradesh Charitable and Hindu Religious Institutions andEndowments Act, 1966 and recognised as such by thecompetent authority shall continue to have the right toarchakatvam without having any right to emoluments suchfamilies used to receive earlier under Act 17 of 1966. However they shall receive emoluments in accordancewith the scheme under Section 144. (Sub-section

(3) has been added by Act No.33 of 2007 w.e.f. 3.1.2008)

35. Appointment of office holders and servants, etc:-(1) Every vacancy in the approved cadre strengthwhether permanent or temporary, amongst the officeholders or servants of a charitable or religious institution orendowment shall be filed by the Trustee with the priorpermission of the competent authority.

Provided that in the case of a charitable or religiousinstitution or endowment whose annual income exceedsrupees ten lakhs the Executive Officers, shall appoint theoffice holders and servants thereof with the priorpermission of the competent authority:

Provided further that in the case of appointment ofreligious office holders such appointment shall be madekeeping in view the Agamas of the respective institutions and preference shall be given to those who are well versedwith the Agama, custom and usage of the respectiveinstitution.

(2) No person shall be considered for appointment to anyvacancy under sub-section (1) on the ground merely, thathe is entitled for such appointment according to-

(i) any scheme framed, agreement entered or judgment, decree or order passed by any court, tribunal or otherauthority prior to the commencement of this Act;

(ii) any custom or usage; or

(iii) the principle that he is next in the line of succession tothe last holder of office.

(3) Every Office holder or servant including PeddaJeeyangar, Chinna Jeeyangar and Mirasidar, Archaka andPujari whether hereditary or not holding office as such onthe date of commencement of this Act, shall continue assuch office holder or servant and notwithstanding anyscheme, judgment, decree or order of a Court, Tribunal orother authority or any agreement or custom or usagerelating to the payment of any perquisites, emoluments orremuneration, either in cash or kind or both, before thecommencement of this Act, be paid only such emolumentsas may be prescribed.

Provided that it shall be lawful for the Government todirect such office holders and servants as they mayconsider necessary to acquire such qualifications and toundergo training in such manner, for such period and onsuch terms as may be prescribed.

(4) Fixation of cadre strength, the qualifications, methodof recruitment, pay and allowances, discipline and conductand other conditions of service for the office holders andservants of the charitable institutions and Endowmentsshall be such as may be prescribed.

Coming to the case on hand, the writ petitioner claims to be amember of the family of the hereditary archaka of the temple. O.S.No.469 of 1982 filed by him for a declaration to that effect wasdecreed by judgment dated 31.12.1992. It is to be noticed that by thedate of filing O.S.No.469 of 1982 the repealed Act 17 of 1966 was inforce. Under the said Act, though Section 77 empowered the DeputyCommissioner of Endowments to enquire into and decide the disputesspecified therein which included the question whether any officeholderor servant is holding his office or service hereditarily, there was noexpress provision ousting the jurisdiction of the Civil Courts toadjudicate upon the matters within the purview of the said Act. Moreover, as rightly observed by the learned Single Judge sinceYerraiah himself admitted that he was only a deputy, there was never

any dispute between the parties with regard to the hereditary rightsheld by the family of the writ petitioner. Apparently, the dispute aroseonly when Yerraiah refused to hand over the archakatvam to the familymembers of hereditary archaka. Therefore, we agree with the findingof the learned Single Judge that the subject-matter of O.S.No.469 of1982 did not fall within the scope and ambit of Section 77 (1) of Act17 of 1966.

However the question that requires consideration is whether thedeclaration so granted by the Civil Court in favour of the writ petitioner is enforceable after the enactment of Act 30 of 1987.

Admittedly the hereditary archakas themselves appointedYerraiah, as a deputy to render service in the temple and that from1947 onwards the family members of the hereditary archaka are notrendering archakatvam.

Alleging that Yerraiah resisted to hand over archakatvam andpossession of the temples in spite of the demands made by the writpetitioner and his family members, they filed O.S.No.469 of 1982. Thus even according to them, Yerraiah was rendering archakatvam bythe date of filing of the suit. The respondent No.4 who is none otherthan the son of Yerraiah, claims that his father Yerraiah tenderedresignation and that the same was accepted by the hereditary trusteeof the temple on 15.09.1984 and on the same day he was appointedas archaka and since then he has been performing archakatvam. It istrue that the writ petitioner alleges that the appointment of therespondent No.4 is illegal and invalid being contrary to Section 31 ofAct 17 of 1966. However the said appointment was not questioned atany point of time and the respondent No.4 was allowed to continue torender archakatvam in the temple and he was holding the office ofarchaka on the commencement of Act 30 of 1987.

In the light of the above noticed admitted facts, we shall nowproceed to consider whether the writ petitioner’s claim that inpursuance of the decree in O.S.No.469 of 1982 and A.S.Nos.9 & 12 of 1993, the services of the respondent No.4 as archaka should beterminated and that he should be allowed to render archakatvam in thetemple is sustainable under law.

Conclusion:-

At the outset, it is to be noticed that in view of Section 34 (1) ofthe Act 30 of 1987, the hereditary rights of archakatvam held by thefamily of the writ petitioner stood abolished on commencement of Act30 of 1987 w.e.f. 28.05.1987.

It is true that by virtue of Section 34 (2) of the Act 30 of 1987 theperson holding office of archaka as on 28.05.1987 notwithstanding the abolition of hereditary rights is entitled to hold thesaid office of archaka on payment of emoluments and subject toconditions of service referred to in Section 35 (3) & (4) of Act 30 of1987. However the petitioner is not entitled to the said protectionsince he was not holding the office of archaka as on 28.05.1987.

It may be pointed out that the abolition of hereditary rights undersub-section (1) of Section 34 shall be notwithstanding anything in anycompromise or agreement entered into or judgment, decree or orderpassed by any Court, Tribunal or other authorities. Therefore thedecrees of the Civil Court passed in favour of the writ petitioner havebecome unenforceable by virtue of the specific provision contained insub-section (1) of Section 34 of Act 30 of 1987.

In fact, the effect of Section 34 and Section 35 of Act 30 of 1987which came into force during the pendency of O.S.No.469 of 1982 wastaken into consideration by the Civil Court. Having taken note of thefact that by virtue of Section 34 (1) of Act 30 of 1987 the hereditaryrights stood abolished, O.S.No.469 of 1982 was decreed in partdeclaring that the plaintiffs were the hereditary archakas of the suittemples and that Yerraiah was their deputy till Act 30 of 1987 cameinto force w.e.f. 28.05.1987. The rest of the suit claim for delivery ofpossession of the suit temples together with movables after ejectingYerraiah was dismissed. Against the said judgment dated

31.12.1992 in O.S.No.469 of 1982, both the parties preferred appealsbeing A.S.Nos.9 & 12 of 1993 in the Court of the Subordinate Judge,Ramachandrapuram and they were disposed of by common judgmentdated 1.8.1996. Whereas A.S.No.9 of 1993 preferred by Yerraiahwas dismissed, A.S.No.12 of 1993 preferred by the hereditaryarchakas including the writ petitioner was disposed of modifying thedeclaration granted by the trial Court to the effect that the plaintiffswere the hereditary archakas subject to sub-section (3) and (4) ofSection 35 of Act 30 of 1987. However the relief of mandatoryinjunction sought for delivery of possession of suit temples togetherwith movable properties was rejected by the Appellate Court also. Thus it is clear that both the Trial Court and the Appellate Court hadtaken into consideration that the hereditary rights of archakatvam wereabolished during the pendency of the suit and the decree ofdeclaration of the rights of hereditary archakatvam of the plaintiffstherein was granted in terms of Sections 34 and 35 of Act 30 of 1987. Therefore the petitioner’s representation before the 3[rd] respondentseeking a direction to the Executive Officer of the temple to terminatethe services of the respondent No.4 so as to enable him to renderarchakatvam itself was misconceived.

So far as the entitlement of the respondent No.4 to continue tohold the office of archaka is concerned, as noticed above, sub-section(3) of Section 35 provides that every office holder or servant whetherhereditary or not holding the office as such on the date of thecommencement of the Act 30 of 1987 shall continue as such officeholder and he shall be paid the emoluments prescribed under the Act. Admittedly the respondent No.4 was holding office of archaka as onthe date of the commencement of the Act 30 of 1987 i.e., 28.05.1987. Once the said fact is admitted, the protection provided under Section35 (3) of the Act 30 of 1987 is attracted. As noticed above, theappointment of the respondent No.4 as archaka by the hereditarytrustee of the temple on 15.09.1984 was not questioned before any forum either prior to the commencement of the Act 30 of 1987 orthereafter and there has never been an enquiry and adjudication onthe said issue. Such objection was not even raised before therespondent No.3 by the writ petitioner in his representation dated9.10.1996. Therefore, it is not open to the writ petitioner now tocontend that the appointment of the respondent No.4 as archaka isillegal. We also find force in the submission of the learned counsel forthe appellant that there cannot be a finding that the appointment wasobtained by the respondent No.4 by playing fraud without giving anopportunity to him to rebut the said allegations.

In the facts and circumstances of the case and in the light of theunambiguous language employed in sub-section (3) of Section 35 ofthe Act 30 of 1987, we are of the view that the question with regard tothe validity of the appointment of the respondent No.4 is not a relevantfactor for deciding the entitlement of the respondent No.4 to continue inthe office of archaka. For the aforesaid reasons, the order underappeal being contrary to the scheme of Act 30 of 1987 cannot besustained.

However, relying upon sub-section (3) of Section 34 of Act 30 of1987, it is urged by the learned counsel for the writ petitioner(respondent No.4 herein) that notwithstanding anything contained insub-sections (1) & (2) of Section 34, the qualified members ofhereditary archaka families are entitled to continue to have the right toarchakatvam.

On the other hand, the leaned counsel for the appellantcontended that as the writ petitioner has crossed 58 years long backhe does not satisfy the qualifications prescribed under the Act and theRules made thereunder.

We are not inclined to go into the said issue since sub-section(3) of Section 34 has been inserted by a recent amendment w.e.f.3.1.2008. Even assuming that the writ petitioner or his family membersare entitled to the said benefit, it is for them to take necessary steps as provided under the Act and the Rules made thereunder before theproper forum. Therefore we do not wish to express any opinion and itis left open to the parties to avail the appropriate remedy as availableunder law, if so advised.

Accordingly, the order under Appeal is hereby set aside and thewrit petition shall stand dismissed.

In the result, Writ Appeal is allowed. No costs.

_________________

Justice G. Rohini

______________________

Justice Sanjay Kumar

Dt. 29.12.2011

gbs

LR Copy to be marked.

[1]AIR 1996 SC 1765