WP/25563/2010 of K. Pardha Saradhi Reddy Vs The A.P. Dharmika Parishad on 30 December 2010

HON’BLE SRI JUSTICE R. SUBHASH REDDY

WRIT PETITION Nos.25563 and 25098 of 2010

thDate: 30 December 2010

Between :

K. Pardhasaradhi Reddy.

….Petitioner

And

The A.P.Dharmika Parishad, Hyderabad,rep. by its Member Secretary & others.

….Respondents

HON’BLE SRI JUSTICE R. SUBHASH REDDYWRIT PETITION Nos.25563 and 25098 of 2010COMMON ORDER:

As the relief sought for in both these writ petitions isinter-related, they are heard together and are beingdisposed of by this common order. For the purpose ofdisposal, I refer to the facts as arise in W.P.No.25563 of2010.

2. In this writ petition, the petitioner seeks directions byway of Mandamus, declaring the action of the 1[st]respondent-A.P.Dharmika Parishad, in appointingrespondents 1 to 11 as Trustees to Sri ArdhagiriVeeranjaneya Swamy Temple, Aragonda village ofThavanampally Mandal in Chittoor District, videproceedings in Rc.No.DP1/45132/2009, dated25.09.2010, as illegal and arbitrary.

3. Sri Ardhagiri Veeranjaneya Swamy Temple is anotified temple under the A.P.Charitable and HinduReligious Institutions and Endowments Act, 1987(hereinafter referred to as ‘the Act’). It is classified underSection 6(c)(ii) of Act 30 of 1987. For such of the temples,where the income is between Rs.25 lakhs and Rs.1 Crore,the Dharmika Parishad, constituted under Section 152 of the Act, is the authority for constituting the Trust Board. Itis the case of the petitioner that for the year 2009-10, theassessable income of the temple was Rs.88,02,000/-. The Member Secretary of the 1[st] respondent-DharmikaParishad, who is the Commissioner for Endowments, byhis Form-I Notice, dated 11.01.2010, issued in NoticeNo.H2/45132/09, invited applications for constitution ofTrust Board within a period of 20 days from the date ofsaid notice. The petitioner herein has applied for beingconsidered to be appointed as one of the members to theTrust Board and although he had applied pursuant to thesaid notification issued in Form-I, he was not appointed. The 1[st]respondent has issued proceedings inRc.No.DP1/ 45132/2009, dated 25.09.2010, constitutingTrust Board to the said temple by appointing respondents3 to 11 as its members. The order, dated 25.09.2010,passed by the Dharmika Parishad also states that all thepersons appointed as Trustees, have to take oath of officeand secrecy, as required under Sub-section 2 of Section19 of the Act, before they enter the office. It is furtherstated that if any Trustee fails to take oath within a periodof 30 days from the date on which he or she wasappointed, such member shall cease to hold office.

4. In this writ petition, the appointment of respondents3 to 11 to the Trust Board is questioned on the grounds,namely, that except respondent No.11, respondents 3 to10 had never participated in the activities of the templeand they were also not involved in the development of thetemple. It is the case of the petitioner that DharmikaParishad is constituted under Section 152 of the Act andis headed by the Chairman, who is the Hon’ble Minister for

Endowments. Mainly, it is the case of the petitioner thatthe original notice issued inviting applications forappointment of Trust Board, is issued by theCommissioner of Endowments, who is the MemberSecretary of Dharmika Parishad, and who is notempowered to issue either a notification or notice in Form-I. It is stated that Dharmika Parishad alone is the authorityfor issuance of notification inviting applications forconstitution of Trust Board and a Trust Board constitutedpursuant to the notification issued by the MemberSecretary, who is not competent, is illegal, and thus, theappointments made appointing respondents 3 to 11 are tobe declared illegal. In the affidavit, it is stated that the veryissuance of notification under Section 15 of the Act inForm-I runs contrary to a Division Bench judgment of thisCourt in W.P.No.19750 of 2007, and the appointments aremade without following the rules titled as “The AndhraPradesh Charitable and Hindu Religious Institutions andEndowments Dharmika Parishad Rules, 2009”, framedunder the Act.

5. The Commissioner of Endowments, who is the Ex-officio Member Secretary of the 1[st]respondent-A.P.Dharmika Parishad, has filed counter affidavit. In thecounter affidavit, while denying the various allegationsmade by the petitioner, it is stated that the application ofthe petitioner was received after the due date fixed in thenotification. It is stated that Notice No.H2/45132/09, dated11.01.2010 in Form-I, issued under Rule 4(1) of the Rules,was affixed on the notice board of the Grampanchayath,temple office and also published in Eenadu local edition,Chittoor on 26.01.2010, calling applications by giving 20

days time for submission of applications. The due date forreceipt of applications was 14.02.2010, but the applicationof the petitioner was received on 16.02.2010, as such, hisapplication was not considered for appointment asTrustee to the Trust Board. In the counter, it is stated thatthe procedure for appointment of Trust Board, wascontemplated under Sections 15 to 19 of the Act andRules made in G.O.Ms.No.258, Revenue Endowments(1), dated 31.03.1998, and that the appointments aremade by following such Rules. It is further stated that theantecedent reports submitted by the authorities revealedthat all the appointees are qualified under Section 18 ofthe Act, as such, no Statutory provision or Rule is violatedin constituting the Trust Board for Sri ArdhagiriVeeranjaneya Swamy Temple, by appointing respondents3 to 11 as Members. A reference is made to Rule 26 ofthe Rules framed in G.O.Ms.No.1206, dated 25.11.2009,stating that a three-member committee was alsoconstituted in exercise of power under Rule 26, whichincludes the Member Secretary, who issued thenotification inviting applications for constitution of TrustBoard. Counter further states that pending administrationof oath of office to the Trust Board members, complaintswere received against two Trust Board members and asthe Chairman issued orders to conduct inquiries on suchcomplaints, taking oath of office by the above said TrustBoard members was kept in abeyance. It is stated thataction will be taken after completion of inquiry. It is furtherstated in the counter that all the appointed members asTrustees of the 2[nd] respondent-temple are devotees ofthe temple and they are qualified to be appointed in viewof the provision under Section 18 of the Act. Thus, there is no illegality in appointing respondents 3 to 10 asTrustees to the 2[nd] respondent-temple.

6. On similar lines is the counter affidavit filed on behalfof respondents 1 to 10. In the counter, while denying thevarious allegations made by the petitioner, it is stated thatin recent times, the temple was developed and they madecontributions and also made efforts to contribute hugeamounts for development of the institution but thepetitioner, who neither participated in the temple activitiesnor donated anything to the temple, has filed the presentwrit petition. It is stated that the notification, dated11.01.2010, for constituting the Trust Board for the temple,was issued by the 1[st] respondent, which was signed bythe Member Secretary, who is also incidentally theCommissioner for Endowments. It is stated that evenaccording to the petitioner, he has already applied inresponse to the notice issued by the 1[st] respondent, andhaving failed to get appointed, it is not open for thepetitioner to question the very notice. In the counter, it isstated that the petitioner was set up by the 11[th]respondent in the writ petition for questioning theappointment of respondents 3 to 10 on false anduntenable grounds. It is stated that the notification wasissued by the Dharmika Parishad through its MemberSecretary, hence, it cannot be said that the notificationwas not issued by the Dharmika Parishad. It is averredthat the Member Secretary of the Dharmika Parishad is anExecutive Officer for carrying out the activities of DharmikaParishad, who is also incidentally the Commissioner, assuch, when such executive authority has issued the notice, it cannot be said that the same was not issued byDharmika Parishad. Respondents have also denied theallegation that the appointments made are contrary to thejudgment of this Court in W.P.No.19750 of 2007. Counterfurther denies the allegation that the 3[rd] respondent isresiding at Bangalore, doing business, and it is stated thatthe 3[rd] respondent is a resident of Aragonda and he ownsagricultural lands, houses and pulp industry at Aragonda. It is pleaded that all the appointees are devotees of thetemple and they fulfill the eligible criteria required forappointment, and as such, they are appointed.

7. The writ petition in W.P.No.25098 of 2010 is filed bythe Trustees appointed pursuant to the orders, dated25.09.2010, issued in Rc.No.DP1/45132/2009, seekingdirections by way of Mandamus, declaring the action ofrespondents in not administering the oath of office andsecrecy to the members of the Trust Board, pursuant tothe aforesaid orders, as illegal and arbitrary. It is the caseof the petitioners that though the order, dated 25.09.2010,states that the appointed members are to take oath ofoffice and secrecy within a period of 30 days, inspite oftheir approaching the competent authority to administeroath of office, no action has been taken and there is novalid reason for not administering the oath of office tothem, pursuant to the order, dated 25.09.2010. In this writpetition, a Memo in U.S.R.No.12442 of 2010 is filed by thesole respondent, adopting the counter affidavit filed inW.P.No.25563 of 2010.

8. Heard learned counsel for petitioner Sri M.S.Prasad,learned Government Pleader for Endowments, appearing for 1[st] respondent, Sri V.T.M.Prasad, appearing for 2[nd]respondent and Sri P.Gangaiah Naidu, learned seniorcounsel appearing for respondents 3 to 10.

9. The learned counsel for petitioner, Sri M.S.Prasad,has taken this Court to the notice, dated 11.01.2010,issued under Rule 4(1) and also the orders passed by the1[st] respondent-Dharmika Parishad, dated 25.09.2010,issued in Proceedings No.DP1/45132/2009, constitutingthe Trust Board by appointing respondents 3 to 11 asmembers of the Trust Board. It is contended by thelearned counsel that from a perusal of the notice, dated11.01.2010 itself, it is clear that it is issued by the office ofthe Commissioner for Endowments, and is signed by theCommissioner, who is not the competent authority toissue notification inviting applications for constitution ofTrust Board. It is submitted that the very DharmikaParishad itself is a competent authority and the noticeissued by the Commissioner and Member Secretary,Dharmika Parishad itself is illegal, as such, theappointments made based on such notification are illegaland runs contrary to the judgments of this Court. Thelearned counsel has relied on a Division Bench judgmentof this Court in the case of S.V.Sudhakara Rao Vs.Government of A.P.[[1]], in support of his argument thatthe power conferred on the authority for constitution ofTrust Board, cannot be delegated to any of the authority. It is submitted that as much as the temple in question isnotified under Section 6 (c)(ii), Dharmika Parishad itselfshould have issued notice inviting applications, and in theabsence of any such notification, the appointments made,appointing respondents 3 to 11 are illegal.

11. On the other hand, it is submitted by the learnedGovernment Pleader appearing for respondent No.2 andthe learned Senior Counsel appearing for respondents 3to 10 that the Commissioner is an ex-officio MemberSecretary of Dharmika Parishad and in that view of thematter, the impugned notification is issued by him asMember Secretary of Dharmika Parishad, but not in thecapacity of the Commissioner. It is further submitted thatthe Statutory Rules, namely, the Andhra PradeshCharitable and Hindu Religious Institutions andEndowments Dharmika Parishad Rules, 2009, empowerthe Chairman to exercise the functions of DharmikaParishad, and in that view of the matter, there is noillegality in the order appointing respondents 3 to 11. It issubmitted that the writ petition in W.P.No.25563 of 2010 isfiled only to prevent the appointed persons from taking theoath, by making false allegations. It is submitted that thepetitioner, who claims that he has already appliedpursuant to the notice in Form-I, has filed the said writpetition, questioning the very competency of the MemberSecretary, when he was not appointed.

11. Although in the affidavit filed in support of the writpetition, it is the case of the petitioner that respondents 3to 10 are not qualified to be appointed, the same is notseriously disputed by the learned counsel for petitionerduring the course of arguments, and there is no argumentadvanced on the eligibility and competency ofrespondents 3 to 10 as members of the Trust Board. Mainly, it is the case of the petitioner that the notificationinviting applications in Form-I was issued by the Commissioner, showing his office address as ‘Office ofCommissioner’, as such, he is not competent to issue thenotification for constitution of Trust Board. It is contendedthat the Member Secretary of Dharmika Parishad also isnot competent to issue the notification inviting applicationsfor constitution of the Trust Board, when DharmikaParishad is the competent authority to issue suchnotification.

12. In the present writ petition, it is not in dispute thatDharmika Parishad is the competent authority forconstitution of Trust Board for the subject temple. As perRule 4 of the Andhra Pradesh Charitable and HinduReligious Institutions and Endowments DharmikaParishad Rules, 2009, framed under Section 152 of theAct, the Chairman is authorized to exercise the functionsof Dharmika Parishad in regard to constitution of TrustBoard and any other matter of urgency, and place thesame before the Dharmika Parishad for ratification in thenext meeting. Rule 27 of the aforesaid Rules states thatthe Commissioner of Endowments shall be responsible forcarrying out all lawful decisions and resolutions passed bythe Dharmika Parishad. Under Section 152 of the Act, theGovernment is empowered to constitute the AndhraPradesh Dharmika Parishad by way of notification, asenumerated therein. As per Section 152(iii) of the Act, theCommissioner of Endowments shall be the MemberSecretary. I have also perused the original file producedby the learned Government Pleader, relating to theissuance of notification and constitution of Trust Board. Aperusal of the aforesaid Rules, particularly Rule 4 of theRules makes it clear that the Chairman is authorized to exercise the functions of Dharmika Parishad in regard tothe constitution of Trust Board. From a perusal of theproceedings, dated 22[nd] December 2009, from theoriginal file produced before this Court, it is clear that theChairman of Dharmika Parishad, who is the Hon’bleMinister for Endowments, has authorized the MemberSecretary of Dharmika Parishad to issue notificationinviting applications for constitution of Trust Board. Assuch, from a perusal of the notification, read with Rule 4 ofthe Rules referred above, and the authorization given tothe Member Secretary of Dharmika Parishad, who is theCommissioner of Endowments, it is clear that thenotification is issued by Dharmika Parishad itself and theMember Secretary is authorized by the Chairman inexercise of powers under Rule 4 of the Rules, for issuingnotification inviting applications for constitution of TrustBoard. Merely because in the top of the notice, dated 11[th]January 2010, it is stated that the same is issued from theoffice of the Commissioner, it cannot be said that thenotice is issued by the incompetent authority. As much asthe Commissioner for Endowments is the ex-officiomember in Dharmika Parishad, who is also responsible forcarrying out the lawful decisions and resolutions ofDharmika Parishad, and in view of the authorization givenby the Chairman of the Dharmika Parishad, he has issuedthe notification, and as such, it cannot be said that thenotice, dated 11[th] January 2010, is not issued by thecompetent authority, for constitution of the Trust Board. Although the learned counsel for petitioner has relied onthe judgment of a Division Bench of this Court in the caseo f S.V.Sudhakara Rao (1 supra), but in the aforesaid

judgment, while considering the scope of appointment ofTrust Board under Sections 16, 17, 19 and 20 of the Act,interpreting the words “cause publication” in Rule 4 of theTrustee Rules, 1987, a Division Bench of this Court hasheld that for causing publication, the power cannot bedelegated to any other authority. But in view of the rules,namely, the Andhra Pradesh Charitable and HinduReligious Institutions and Endowments DharmikaParishad Rules, 2009, and in view of the power conferredon the Chairman of Dharmika Parishad to exercise thefunctions of Dharmika Parishad, and exercising suchpowers, when the Chairman has issued authorization tothe Member Secretary for constitution of the Trust Board, itcannot be said that such power is delegated to any otherauthority so as to take assistance from the aforesaidjudgment of a Division Bench of this Court. As much asthere is no delegation in the present case, the judgmentrelied on by the learned counsel for petitioner would notrender any assistance in support of his argument that thenotification in Form-I was not issued by the competentauthority. In view of the specific power conferred on theCommissioner, and as the file discloses the authorizationgiven by the Chairman, who is the Hon’ble Minister forEndowments, it cannot be termed as delegation, so as toapply the ratio laid down by this Court in the judgmentreferred to above. In that view of the matter, I do not findany illegality either in issuing the notification or constitutingthe Trust Board to Sri Ardhagiri Veeranjaneya SwamyTemple, Aragonda village of Thavanampally Mandal inChittoor District.

13. So far as W.P.No.25098 of 2010 is concerned, it is to be seen that as per the Rules, once a Trust Board isconstituted, such appointees are required to take oathwithin a period of 30 days and it further states that failingto take oath, such member seizes to take oath of office. Inview of the averments made in the affidavit filed in supportof the writ petition and the stand of respondents for notadministering the oath of office and secrecy to theappointed members, it is clear that there is no reason orjustification for not administering the oath of office. Merelybecause there were complaints against two of themembers, by itself, is no reason for not administering theoath. When the appointment orders are not kept inabeyance, there appears no reason for not administeringthe oath. From the averments made in support of the writpetition, it is clear that the petitioners are ready to takeoath, but only on account of allegations against two of themembers, the oath of office is not administered, though itis obligatory to administer oath within a period of 30 days,even as per the appointment orders issued, constitutingthe Trust Board.

14. For the aforesaid reasons, while I do not find anyillegality in the appointment of respondents 3 to 11 asmembers of the Trust Board, at the same time, this Courtis of the view that there is no reason for not administeringthe oath for such appointed members.

15. Accordingly, W.P.No.25563 of 2010 is dismissedand W.P.No.25098 of 2010 is allowed, with a direction tothe respondents to administer oath of office to thepetitioners and other appointed persons, as per theProceedings in Rc.No.DP1/45132/2009, dated 25.09.2010, within a period of ten days from today. No order as to costs.

_____________________

R.SUBHASH REDDY, J

30[th] December 2010

N.B:

Operative portion of order

by wire at party’s costs.

(b/o)

ajr

[1]2008 (4) ALD 225 (DB)