CMA/1131/2012 of Sri Agasteswara Swamy Temple, Vs V. Siva Kameswara RAo, on 31 December 2013

1. V.Siva Kameswara Rao and another

…. Respondents.

Learned Counsel for appellant : Sri V.T.M.Prasad Learned counsel for 1[st] respondent : Smt.V.Dyumani This Court delivered the following :- HON’BLE SRI JUSTICE M.S. RAMACHANDRA RAOCIVIL MISCELLANEOUS APPEAL No.1131 of 2012JUDGMENT:

This Appeal is filed under Section 88 of the AndhraPradesh Charitable and Hindu Religious Institutions andEndowments Act, 1977 (for short “the Act”) challenging theorder dt.13-10-2010 in O.A.No.1337 of 2010 of the A.P.Endowments Tribunal at Hyderabad.

2. The said O.A. was filed by 1[st] respondent underSection 87(1)(h) of the Act to recognize him as a FounderTrustee of Sri Agasteswara Swamy Temple, Vangiuramvillage, Prathipadu Mandal, Guntur District.

3. In the said O.A., he contended that his fatherValluri Raghavendra Rao and his grand father ValluriSubbaiah were continued not only as trustees but also asArchakas of the above temple for generations together; thatthe temple was founded by his ancestors; that it was alsodeclared as exempted temple in the proceedings of theCommissioner of the erstwhile Madras ReligiousEndowment Board in B.O./No.2717/A dt.19-11-1934 withinthe meaning of Section 9(5) of Act 2 of 1927; that thescheme was settled in the above order which states thatthe administration of the temple vests with the hereditarytrustees and the applicant’s family has been continuing assuch; that in Column No.4-B of the Register maintainedunder Section 38 of the Act, his father was recorded as thehereditary trustee, that he applied to the EndowmentsDepartment to be recognized as Founder Trustee and afterdue enquiry, his father was recognized as Founder Trusteevide proceedings Rc.No.A5/1644/98 dt.09-04-1998. Hefurther contended that the concept of Hindu Templesrecognizes Archaka trustees ever since the temples wereconstructed and there is no conflict of Archaka andTrusteeship Rules; and therefore, he ought to be declaredas a Founder Trustee.

4. This was opposed by the Executive Officer of thesaid temple principally on the ground that under the Act,one cannot function both as Founder Trustee as well as Archaka simultaneously.

5. By order dt.13-10-2010, the A.P. EndowmentsTribunal at Hyderabad rejected the objection of theExecutive Officer of the above temple and held that 1[st]respondent is entitled to be recognized as Member ofFounder’s family of the above temple with nodisqualification under section 19(1)(g), by virtue of Section15(2) proviso (2) of the Act and as Chairman of Board ofTrustees as Ex-Officio Trustee while continuing asArchaka.

6. Challenging the same, the Executive Officer ofthe above temple has filed the above appeal.

7. Heard Sri V.T.M.Prasad, learned counsel forappellant and Smt.V.Dyumani, learned counsel for 1[st]respondent.

8. The learned counsel for appellant contended thatthe Tribunal erred in allowing the application filed by 1[st]respondent recognizing him as a Member of the Founder’sfamily of the above temple as under the Act, the sameperson cannot be both Archaka and a Trustee.

9. The learned counsel for 1[st] respondent, on theother hand, contended that the Executive Officer has nolocus standi to challenge the order passed by the Tribunal,as he is not the “person aggrieved” by the order passed by

the Tribunal; that the Executive Officer is appointed underSection 29 of the Act to carry out the lawful directions of thetrustee, be responsible for the proper maintenance andcustody of all the records, accounts and other documents,and of all the jewels, valuables, money, funds and otherproperties of the Institution or Endowment; and consideringthe nature of duties of the Executive Officer as provided inSection 29 of the Act, he cannot consider himself to beaggrieved by the recognition of 1[st] respondent as aFounder trustee of the above temple. She, therefore,prayed that the appeal be dismissed as not maintainable.

10. I have noted the submissions of both sides.

11. Section 88 of the Act provides the filing of anappeal against the order passed by an EndowmentTribunal under Sections 87 and 119 of the Act by anyperson aggrieved by the said decision. It states :

“88. Right to appeal against the decision of theEndowments Tribunal under Section 87:- Any personaggrieved by the decision of the EndowmentsTribunal under Section 87 and Section 119 may,within ninety days from the date of receipt of thedecision prefer an appeal to the High Court.”

12. Section 17 of the Act deals with procedure formaking appointment of trustees of the Trust Board of atemple and enables a founder or one of the members of thefamily of the founder, if qualified as prescribed, shall beappointed as one of the Trustees. Section 19 of the Act provides certain disqualifications for appointment of aperson as a Trustee. Clause (g) of sub-section (1) ofSection 19 of the Act prohibits a person from beingappointed as a trustee if he is an office holder or servantattached to, or a person in receipt of any emolument orperquisite from such institution or endowment. As perSection 87(1)(h) of the Act, the Endowment Tribunal hasthe jurisdiction to decide any dispute as to the questionwhether a person is a founder or a member from the familyof the founder of an Institution or Endowment. In thepresent case, the Tribunal, by the impugned order, hasdecided in favour of 1[st] respondent.

13. Under Section 29(3)(a) of the Act, an ExecutiveOfficer of a Religious Institution such as a temple shall beresponsible for carrying out all lawful directions issued by atrustee of the said Institution from time to time. Therefore,he is subordinate in hierarchy to a trustee. The Act doesnot envisage any role for the Executive Officer in the matterof appointment of trustees. He cannot be allowed toarrogate to himself such a role when it is not provided in thestatute. When the Tribunal, after enquiry, has upheld theclaim of 1[st] respondent to be recognized as a foundertrustee of the temple, it would be a travesty of justice topermit the Executive Officer of the temple to question thesame.

14. In Competition Commission of India Vs.

Steel Authority of India Limited and another[[1]], theSupreme Court considered the scope of Section 53-A(1)(a)of the Competition Act, 2002 ( which provided for an appealto the Appellate Tribunal against any directions issued or adecision made or ordered passed by the CompetitionCommission). It held that a direction under section 26 (1) ofthe said Act after formation of a prima facie opinion is only adirection simpliciter to cause an investigation into the matterand it does not effectively determine any right or obligationof the parties to the lis, that it is only a step towards finaldecision under Section 26(2) of the Competition Act andonly final order under Section 26(2) is appealable. It heldthat an order under section 26 (1) of the Act cannot beappealed under Section 53-A (1) (a). In that context theSupreme Court observed the right of appeal is neither anatural nor inherent right vested in a party and it is asubstantive statutory right regulated by the statute creatingit. It held that such a right should be provided by law inforce and cannot be assumed by logical analysis muchless by exercise of inherent jurisdiction. It held that:

“51…….. In absence of any specificprovision creating a right in a party to file anappeal, such right can neither be assumed norinferred in favour of the party.

52. A statute is stated to be the edict oflegislature. It expresses the will of legislature andthe function of the court is to interpret thedocument according to the intent of those whomade it. It is a settled rule of construction of statutethat the provisions should be interpreted by applying plain rule of construction. The courtsnormally would not imply anything which isinconsistent with the words expressly used by thestatute.In other words, the court would keep inmind that its function is jus dicere, not jus dare.The right of appeal being creation of the statuteand being a statutory right does not inviteunnecessarily liberal or strict construction. Thebest norm would be to give literal constructionkeeping the legislative intent in mind.”

15. In view of this decision, since the Act did notenvisage any role to the Executive Officer in the matterrelating to appointment of a trustee, merely because thetemple represented by him was arrayed as a partyrespondent before the Tribunal, he cannot claim that he isaggrieved by the impugned order. In this view of thematter, I am of the opinion that this appeal filed by theExecutive Officer of the temple is not maintainable and hehas no locus to file it.

16. Therefore, the Civil Miscellaneous Appeal isdismissed. No costs.

17. Miscellaneous applications pending if any inthis Appeal shall stand closed.

________________________________

JUSTICE M.S. RAMACHANDRA RAO

Date: 31-12-2013

LR COPY TO BE MARKED : YES/NOB/o.vsv/*

HON’BLE SRI JUSTICE M.S. RAMACHANDRA RAO

--Date : 31122013

vsv

[1] (2010) 10 S.C.C.744