No Acts & Articles mentioned in this case
IN THE HIGH COURT OF ANDHRA PRADESH ::
AMARAVATI
THE HON'BLE SRI JUSTICE B. KRISHNA MOHAN
THURSDAY, THE SECOND DAY OF NOVEMBER,
TWO THOUSAND AND TWENTY THREE
WRIT PETITION No.8692 OF 2003
(THROUGH PHYSICAL MODE)
Vaka Raghava Reddy,
S/o.Ramakrishna Reddy, 75 years,
r/o.Karavadi Village, Ongole
Mandal, Prakasam District and
others.
… Petitioners
Vs.
Government of Andhra Pradesh,
rep. by its Secretary, Hindu
Religious and Charitable
Endowments Department,
Secretariat, Hyderabad and others.
… Respondents
ORDER
Heard.
2) BRIEF FACTS OF THE CASE:
● Vaka Venkata Reddy (Ancestor and Predecessor in title of the
Writ Petitioners) being a devotee of the 5
th
Respondent Temple
(Sri Sitarama Swamy Temple), had purchased agricultural land to
an extent of Ac.29-95 cents situated in Survey No. 223 of
Karumanchi Village, Prakasam District under a registered sale
deed dated 25-11-1862 with the object of utilising the income
Wp_8692_2003
2
arising out of the said property for “Kalyanotsavams and
Kainkaryams” taking place in the said temple.
● The present Writ Petitioners are the successors of Late Sri Vaka
Venkata Reddy.
● The hereditary trustees of the temple represented by P.
Venkataraya Sarma, filed two applications in O.A. Nos. 72 and 73
of 1964 before the Deputy Commissioner under Section 57 & 77
of the A.P. Charitable and Religious Institutions and Endowments
Act, 1966 questioning the Vaka Family as hereditary trustees for
the specific endowment and their exclusive right to perform
Kalyanostavam and receive traditional temple honours on such
occasions. The Deputy Commissioner upheld the rights of the
members of the Vaka Family to perform the said rituals.
● Aggrieved by the said orders, the hereditary trustee of the temple
filed O.S. No. 47 of 1975 & O.S. No. 1 of 1976 before the District
Judge, Ongole. The learned District Judge held that the concerned
property was purchased by Vaka Family with a view to perform
kalyanotsavam etc in the temple out of the income of the property.
However the learned Judge held that they have not been
maintaining the accounts and so directed the defendants to
maintain the accounts from the date of judgment and to deposit the
income in a scheduled bank etc;
The Assistant Commissioner, Endowments was given liberty to
demand an account of the income from the year 1962 and realise
the same.
Wp_8692_2003
3
● Against the judgment of the learned District Judge in O.S. Nos. 47
of 1975 and 1 of 1976, the hereditary trustee of the temple
preferred an appeal vide Appeal. Nos. 270 & 614 of 1978.
● When there was no response to his demand from the Defendants 1
to 5 (Writ Petitioners herein) , on 07-03-1979, the 3
rd
respondent
has served a Memo of Charges on the trustees of the specific
endowment that
a) The trustees have not rendered the accounts of the income
arising out of the specific endowment right from the year 1960
and thereby have violated the directions of the Hon’ble Court
in the suit in O.S. 47 of 75 and 1/76 on the file of the District
Court, Ongole to maintain true and correct accounts.
b) The trustees were guilty of misconduct, misappropriation of the
income from the endowment and were guilty of breach of trust.
c) The trustees are liable to render accounts for the years 1960 to
1979 at the rate of Rs. 6,000/- per year for Ac. 29-05 cents and
for 20 years it costs Rs. 1,20,000/- which is the accumulated
income of this endowment.
d) The trustees have divided the property according to their shares
in their family property and are keeping it in their possession
till this date.
In view of the gravity of the above said charges, the Asst.
Commissioner, Endowments, Ongole in exercise of powers vested in
him under Section 26 (3) of the Act 1966 have placed the trustees of
the specific endowment under suspension pending enquiry.
Wp_8692_2003
4
● For the purpose of enquiry into the above said charges, the
hereditary trustees of the specific endowment have filed an
explanation before the Asst. Commissioner stating that:
a) The charges are contrary to the judgment of this Hon’ble Court
dated 23-02-1982 vide AS Nos. 270 and 614 of 1978; that they
are not liable to account for the past expenditure on their part
for the endowment purpose for the period prior to 23-02-1982.
b) As per the original sale deed, it only talks about the spending
income arising out of the land towards performance of
Kalyanosthavams and Kainkaryam and it does not mention
about maintenance of account by the trustees.
c) The Executive Officer of the temple acting in collusion with
the tenants of the property, was collecting rents at far lesser
rates than the actual rates to see that only Rs. 6,000/- is realised
and thus misappropriating the balance amount.
d) The trustees of the Specific Endowment have never flouted any
directions contained in the Judgments in OS. 47/1975 and in
OS. 1/1976 of Sub Court Ongole.
e) The trustees of the Specific Endowment are entitled to divide
the endowment among themselves for the sake of convenience
of administration and in proportion to their respective shares so
that they can discharge their trust obligations more
conveniently.
f) The hereditary trustees are not guilty of any breach of trust or
misappropriation.
g) In fact when the land recovery decrees were passed against the
tenants of the above mentioned specific endowment properties,
Wp_8692_2003
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the tenants have preferred revisions before this Hon’ble High
Court vide CRP Nos. 3655 of 1997 and batch
1
dated 1-10-1997
where it was held that
“Hereditary Trustees of Specific Endowment i.e.,
plaintiff – decree holders are entitled to execute their decrees
first against the Devasthanam and in case of failure to recover
the amount, for any reason, then only execute the decrees
against the petitioner – tenants.”
● By Order dated 05-10-1996 vide Rc.No. A1/8791/95, the third
respondent (Asst. Commissioner, Endowments) held that
hereditary trustees failed to prove their case and consequently they
are liable to be removed from the management of the specific
endowment.
● A Revision Petition No.7 of 1997 was preferred before the
Revisional Authority i.e. 2
nd
Respondent (Regional Joint
Commissioner, Multi Zone II).
The Revision has been dismissed by the order dated02-01-2003
holding that the Executive Officer of the Temple is entitled to take
possession of the Specific Endowment properties and also recover
profits made by the appellants (hereditary trustees of specific
endowment) over the land of specific endowment and lease out the
land to be recovered from the appellants by way of public auction by
following the rules in force.
1
The revision has been filed by the tenants of the trustees against the decision of a Small Causes
Court in Small Causes Suit which held that there exists the relationship of landlord and tenant
between the trustees – Plaintiffs and the tenants – Defendants and consequently decreed the suits.
Wp_8692_2003
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● Against the orders passed in Revision Petition No. 7 of 1997 dated
02-01-2003, the present Writ Petition has been filed by the
Petitioners.
RELIEF SOUGHT:
To issue an appropriate writ, order or direction, particularly one in the
nature of a Writ of Mandamus declaring:
a) The Order in Revision Petition No. 7 of 1997 dated 02-1-2003
of the 2
nd
respondent, confirming the Order of the 3
rd
respondent dated 05-10-1996 as void, illegal, unjust.
b) And consequently direct the Respondent authorities not to
interfere with the rights of the petitioner/hereditary trustees in
respect of the specific endowment in favour of the 5
th
respondent temple, Karawadi Village, Prakasam District etc.
3) PETITIONERS CONTENTIONS:
● The petitioners submits that they are the descendants of one Vaka
Venkata Reddy who purchased the subject matter of the
Agricultural Land from one Mr. Addanki Lakshmaiah via
registered sale deed dated 25-11-1862. The sale deed conveys an
absolute interest in the property in favour of the purchaser and it
also states that income arising out of the said land shall be used for
the purpose of performing Kalyanosthsavams and Kainkaryam
relating to the 5
th
respondent temple in Karavadi Village. Thus a
specific endowment has been created in favour of the temple and
the petitioners have thus been the hereditary trustees of the said
specific endowment.
Wp_8692_2003
7
● It is submitted that the Ownership, Rights of Management and
Possession of the property have always been with Vaka Venkata
Reddy and later on with his successors i.e. Writ Petitioners.
Thus it has been contended by the petitioners that they hold the
property as hereditary trustees and the income in respect of the
said property is to be utilised for the said religious purposes. The
same has been evidenced by the Judgment of the Court of District
Munsiff in OS.No. 111 of 1915 and OS. No. 47 of 1975 and
further the Hon’ble High Court of Andhra Pradesh in
A.S.Nos. 270 and 614 of 1978
2
dated 23-02-1982, wherein the
Hon’ble High Court has held that
i) The Vaka Family purchased the property with an obligation to
utilise the income arising from the property towards the
performance of Kalyanotsavams and kainkaryams in the suit
temple.
ii) The Defendants 1 to 5 (Writ Petitioners herein) have been in
possession of the property since 1862 and about 100 years have
elapsed between 1862 and 1964. Throughout this period they have
been in possession of the property as trustees thereof.
ii) The members of the Vaka Family have been functioning as the
hereditary trustees of the specific endowment since about 4
generations by 1964 and they have the right to jointly participate
along with the hereditary trustees of the temple in the performance
2
The issue in these First Appeals were with regard to
i) whether the Sale Deed dated 25-11-1862 creates a Specific Endowment for performing the
Kalyanotsavam in Karavadi by members of the Vaka Family as hereditary trustees for Specific
Endowment?
ii) whether the members of the Vaka Family have got the exclusive right to perform the
Kalyanotsavam in the temple and receive traditional temple honours on such occasions?
Wp_8692_2003
8
of Kalyanosthavams and Kainkaryams subject to the terms and
conditions laid down in the Judgment.
iii) The trustees of the specific endowment shall be permitted to
participate only after the depositing of Rs. 6,000/- with the
hereditary trustee on a tentative basis and balance income arising
from the specific endowment as determined by the audit shall be
deposited by the trustee of the specific endowment within 6
months after such determination failing which they would not be
allowed to participate in the performance of Utsavams.
iv) While performing Utsavams the hereditary trustees of the
temple shall have the preference over the trustees of the specific
endowment in the matter of reciting Sankalpams and in receiving
the Customary Honours. The trustees of the specific endowment
will be allowed to participate after setting aside the suspension
orders against them.
● The petitioners further submits that by order dated 05-10-1996
vide Rc No. A1/8791/95 the 3
rd
respondent wrongly held that the
hereditary trustees have failed to prove their case and
consequently they are liable to be removed from the management
of the specific endowment. The 3
rd
respondent has without any
jurisdiction, went into the question of title of hereditary trustees
and wrongly concluded that the said trustees cannot divide it. He
ignored the vital distinction between the ownership of the corpus
of the property and the usufruct (income) from the property. Here
the subject matter of the specific endowment is only the income
from the property and not the property itself. Thus the entire
Wp_8692_2003
9
appreciation of the material on record before the said authority is
vitiated both in law and in fact.
● Further the Revisional Authority i.e. 2
nd
respondent had wrongly
dismissed the revision by order dated 02-01-2003 by holding that
the Executive Officer of the Temple is entitled to take possession
of the Specific Endowment properties and also recover profits
from the hereditary trustees etc. The orders of the said authorities
are bad in law for the following reasons:
a) The 3
rd
respondent went wrong in thinking that the various
charges against the hereditary trustees are proved as they have
failed to maintain any account in as much as they have not realised
income from 1983 onwards;
b) The 3
rd
respondent failed to see that it was the Executive Officer
of the temple who in collusion with the tenants of the properties
collected income and he has to account for it;
c) Even before 1982 when there was no direction from the Hon’ble
High Court to maintain account etc. the hereditary trustees who
have succeeded before this Hon’ble High Court in AS No.270 and
614 of 1978 have been actually performing “Kalyanosthavams and
Kainkaryams” spending all the income they have derived from the
properties.
d) Even after the Executive Officer has started collecting income
himself from the tenants of the properties the hereditary trustees
were spending their own money and performing all
“Kalyanosthsavams and Kainkaryams” in the temple. It is only the
Executive Officer that has to account to the Temple and
Wp_8692_2003
10
Endowment Department in respect of the income realised from the
Endowment properties in question.
e) In the absence of realising income by the hereditary trustees
because of the wrongful and illegal attitude of the tenants, they
could not discharge their obligation of depositing anything into the
bank to the credit of the temple. On the other hand they have been
spending their own monies for performing the “Kalyanosthavams
and Kainkaryams”. The various findings of the 3
rd
respondent in
respect of various legal proceedings on the file of various Courts
are all contrary to the facts and purports of the judgments in those
cases.
f) Both the 2
nd
and 3
rd
respondent authorities have erred gravely in
ignoring the purport and effect of the judgment of this Hon’ble
Court in CRP Nos. 9655/97 dated 01-10-1997 wherein the rights
of the hereditary trustees of the specific endowment have been
clearly recognised and orders of the authorities under challenge
are arbitrary and unjust.
g) The Revisional Authority has failed to take into consideration the
explanations and contentions of the hereditary trustees in as much
as he has not at all applied his mind to the facts of the case and he
has only repeated merely the conclusions of the 3
rd
respondent.
h) The impugned orders of the 2
nd
respondent are contrary to the
provisions of the A.P. Charitable and Hindu Religious Institutions
and Endowments Act.
● The petitioners submit that before framing the charge of
misappropriation of funds it has to be preceded by the statutory
Wp_8692_2003
11
procedure of Section 58 (1), (2) (b), 59 (iii), 60 (1), 61 (1) (2), 62,
64 of A.P. Charitable and Hindu Religious Institutions &
Endowments Act, 1987. By virtue of the above sections, an
auditor should have been appointed to do an estimate as regards to
the expenditure, deficit if any left unspent out of the income from
the Endowment and the same should have been considered while
taking appropriate decision in the matter. If the provisions of
accounts and audits have been followed, it would have provided a
correct conclusion for the authorities to afford a proper
opportunity to the delinquent trustees to remedy the matter.
● The petitioners further submits that from the aforesaid facts, the
hereditary trustees are not guilty of any misconduct on their part
and they have been acting bona fide and earnestly in attempting to
safeguard the interests of the specific endowment created by their
ancestor. Hereditary trustees are entitled to be in possession and
management of the said endowment properties. They are entitled
to perform “Kalyanotsavam and Kainkaryams” in the said temple.
Neither the Executive Officer nor the departmental authorities
have any right or interest in impending the exercise of their
legitimate rights on the part of the hereditary trustees in respect of
specific endowment mentioned above.
● It is further submitted that the Endowment Authorities have no
right either to suspend or remove the hereditary trustees of any
specific endowment from exercising their rights in respect of the
endowment in a hereditary and legitimate manner. Further in
respect of the several tenants of the Endowment properties the
Wp_8692_2003
12
hereditary trustees have filed eviction cases vide ATC. Nos. 33 to
40 of 1993 on the file of the Court of the II Additional Junior Civil
Judge, Ongole, for eviction of the tenants. They were all decreed
in their favour on 24-04-1998 and Appeals preferred by the
tenants were dismissed in common judgment in the batch of
appeals filed vide ATA Nos. 5 to 18 of 1998 on the file of the
Court of District judge, Ongole dated 11-12-2000.
● On account of the orders passed by the 2
nd
and 3
rd
respondent
authorities, the petitioners are unable to perform their functions
properly and effectively. Moreover the said orders are in utter
disregard of the judgment of this Hon'ble Court in various
proceedings as referred above.
● The decision of the Hon’ble High Court in 2004 (3) ALD 43 is
contrary to the decision of the Hon’ble High Court in Judgment in
A.S. No. 270 & 614 of 1978 dated 23-02-1982; moreover, that is
inconclusive and therefore not binding.
● The Writ Petitioners are mainly relying on the judgments of
Hon’ble High Court of Andhra Pradesh vide
i) AS. No. 270 & AS.No. 614 of 1978 dated 23-02-1982
ii) SA. No. 1134 of 2000; 205 of 2001; 238 of 2001 dated17-03-2006
3
iii) CRP. Nos. 3655 to 3660 of 1997 dated 01-10-1997
4
and
3
These Second Appeals were filed against the judgments of the lower courts allowing the
hereditary trustees of the specific endowment to recover arrears of Maktha from the tenants of the
suit property.
The Hon’ble High Court has held that the descendants of late Vaka Venkata Reddy have the title
and right to maintain the suit properties and utilise income derived therefrom for ‘Kalyanotsavam
and Kainkaryam’ of the said temple. The recitals of the sale deed and also as per the Judgement in
O.S.No. 11 of 1961, the plaintiffs are entitled to be in possession of the property and also entitled
to supervise and maintain the same. Thus they are entitled to collect Maktha from the tenants of
the suit schedule property. It is always open for the Endowments Department to regulate the
number of trustees required to look after the specific endowment from the descendants of Late
Vaka Venkata Reddy.
Wp_8692_2003
13
iv) CRP. Nos 1542 of 1997; 1521 & 5632 of 2000; 2471 & 4897 of
2001 dated 07-02-2003
5
Relevant Provisions of A.P. Charitable and Hindu Religious
Institutions and Endowments Act, 1987
● Section 2 (22) - Definition of Religious Endowment
● Section 2 (25) - Definition of Specific Endowment
● Section 8 - Commissioners Powers
● Section 16 - Abolition of the Posts of Hereditary Trustees
● Section 17 - Appointment of Non - Hereditary Trustees -
preference for the founder members
● Section 20 - Chairman of the Non - Hereditary Trust Board is
to be from the founder’s family members
4
The Revision Petitions involve common questions of law and facts. The Revision Petitions were
filed against S.C No. 46 of 1992 and Batch dated 31-10-1995 where decrees have been passed for
recovery of certain amounts from the tenants by the trustees of the specific endowment.
The Hon’ble High Court held that relationship of landlord and tenant between the trustees -
plaintiffs and the petitioners-tenants did not come to an end on suspension of trustees and just
because they had paid the rents to the Devasthanam as per their desire or notification, the liability
to pay rent to the trustees did not absolve. Hence it upheld the judgement of the learned District
Munsiff and found no reason to interfere with the same.
In the result, the revision petitions are dismissed. However , the decrees shall be modified to the
effect that the liability of the petitioners-tenants and Devasthanam shall be joint and several.
However , the plaintiffs-decree holders shall be entitled to execute their decrees first against the
Devasthanama and in case of their failure to recover the amount, for any reason, then only
execute the decree against the petitioners-tenants.
5
The High Court held that all the leases between the parties in these petitions came to an end on
the date of commencement of the Endowments Act and thereafter there is no landlord and
tenancy relationship between the institution and cultivator. A Division Bench of this Court in
W.P. No. 28714 of 1998 dated 19-02-2002 also held that the provisions of A.P. (Andhra Pradesh)
Tenancy Act, 1956 have no application to the Endowments Act in view of the Judgment of the
Supreme Court referred supra. Therefore the proceedings before the Authorities under the
Tenancy Act are not maintainable and the proceedings initiated either by the Institution or by the
cultivator are non est in law.
Therefore all the proceedings initiated and orders passed under the Tenancy Act have become non
est in law and the parties are not entitled to enforce the orders passed under the Tenancy Act.
Thus all matters have become infructuous.
It is for the respective parties to work out their remedies under the Endowments Act alone. The
CRPs are accordingly disposed of.
Wp_8692_2003
14
● Section 58 to 64 - Procedure of Audit etc.
NOTE: During the pendency of this Writ Petition, some of the
petitioners in the case died and surviving Petitioners are entitled to
continue to proceed with this litigation vide order in the MEMO
dated 17-11-2022 by this Court.
4) Respondent No. 2 counter [Regional Joint Commissioner,
Multi Zone II, Endowments Department at Tirupati]:
● It is submitted that for the purpose of performing Kalyanotsavam
and Kainkaryams in the temple, one Sri Vaka Venkata Reddy
created specific endowment dedicating the property purchased by
him under the registered sale deed dated 25-11-1862. The said
dedication was complete and the property stood vested with the
temple and the donor was divested with his ownership rights over
the property after such dedication and he is no longer the owner of
the said property.
The successors of the donor used to maintain the property as
Trustees. When the petitioners failed to abide by the directions of
this Hon’ble Court in A.S. No. 270 and 614 of 1978, the 3
rd
respondent initiated disciplinary proceedings against the
petitioners and framed 8 charges against them. After full fledged
enquiry, it was held that all the charges were proved against the
petitioners.
● Regarding Hereditary Trusteeship, it is submitted that by the
operation of Section 16 of Act 30 of 1987, the office of the
hereditary trustee was abolished. The petitioner failed to get
Wp_8692_2003
15
themselves declared as hereditary trustees of the specific
endowment by the Deputy Commissioner, Endowments
Department as required under the provisions of the Act 30 of
1987. Therefore, the petitioners are no more trustees of the temple.
Further, they filed suit in O.S. No. 284 of 2002 on the file of the
Addl. Junior Civil Judge, Ongole for recovery of rents against Sri
V. Venkata Subbamma and others arraying the instant temple as
the 4
th
defendant and the same was dismissed on merits on 11-03-
2005. Assailing the said judgment and the decree the petitioners
preferred an appeal in A.S. No. 102/2005. The said appeal was
also dismissed on 23-03-2010 on merits. The petitioner failed to
abide by the directions of this Hon’ble Court in AS. No.. 270 and
614 of 1978 and failed to render the accounts.
i) It is specifically averred in the above judgment that participation
of the trustee of the specific endowment during any calendar year
shall be permitted only after the trustees of the specific
endowment deposit with the hereditary trustee the amount of Rs.
6,000/- on a tentative basis.
ii) The balance arising from the specific endowment during the
audit made by the Endowments Department should be deposited
within 6 months after such determination, failing which the
trustees of the specific endowment shall not be allowed to
participate in the performance of Utsavams and
iii) The trustees of the specific endowment will be allowed to
participate only after the setting aside of the suspension orders
passed against them .
Wp_8692_2003
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● The Revision Petition No.7 of 1997 was rightly dismissed by the
2
nd
respondent. The order contains detailed reasons and
conclusions and needs no further clarification.
● As regards the hereditary trusteeship is concerned, the petitioners
are not the hereditary trustees of the subject temple and there is no
such declaration by the Endowments Department. The petitioners
failed to carry the object of dedication and the specific
endowment.
● The subject temple is under the management of Fit Person
appointed by the Endowments Department vide D.Dis.No.
G1/12336/B4, dated 09-03-1984 and Kalyanotsavam and
Kainkaryams in the subject temple are being performed by the fit
person from the date of his appointment.
● By virtue of A.S. No. 270 and 614 of 1978 the petitioners are
entitled to question the validity of the specific endowment and the
authority of the department to supervise the endowment. The
petitioners are not entitled for any relief and the Writ Petition is
liable to be dismissed with costs.
5) RESPONDENT NO.5 COUNTER [Executive Officer, Sri
Sitarama Swamy Temple, Karavadi Village, Ongole Mandal,
Prakasam District]:
● It is submitted that originally the 3
rd
respondent issued orders
u/Sec. 26 of the Act 17 of 1966 which is corresponding to Section
28 of the present Endowments Act, 1987. The 3
rd
respondent has
initiated disciplinary proceedings against the trustees of the
specific endowments attached to the 5
th
respondent temple and
Wp_8692_2003
17
framed as many as 8 charges and by holding an enquiry comes to a
conclusion that all the charges are proved against them and
removed them as trustees of the specific endowment.
● It is further submitted that as against the order of removal from
trusteeship, an appeal lies under Section 90 of the Endowments
Act, 1987. The present revision before the 2
nd
respondent is not
maintainable in law. In the revision petition also,
the 2
nd
respondent has clearly drawn a finding that all the charges
were proved beyond any doubt. Regarding the charge of division
of property among the writ petitioners, respondent no. 2, relying
on the O.S. No. 11 of 1961
6
and S.A. No. 1215 of 1904 (Madras
High Court) held that the land is dedicated to the temple and the
trustees in violation of the above judgments had treated the temple
property of their own. This charge is enough to disqualify the writ
petitioner to become trustees. Moreover, the right of hereditary
trusteeship was abolished by Act 30 of 1987 and by operation of
law also, even if the petitioners succeeded before the respondent
6
O.S. No. 11 of 1961 (17-12-1963) on the learned Subordinate Judge, Ongole. The temple was
the plaintiff in the above suit.
Suit is for the recovery of possession of the Suit Schedule property and to direct the
defendants 1 to 5 (Trustees) for rendition of account of the income from the suit properties
during the time of their management and to pay the same and for costs.
Issues and Findings:
1. Whether the plaint schedule property constitutes specific endowment in favour of
the plaintiff’s temple?
The suit schedule property constitutes specific endowment in favour of the plaintiff
temple
2. Whether the plaintiff is entitled to possession of the suit schedule property?
The Plaintiff is not entitled to possession of the suit schedule lands
3. Whether the plaintiff is entitled to ask for accounts of the income on the suit
schedule land from the defendants 1 to 5 and if so for what period?
The plaintiff is not entitled to ask for an account of the income on the suit schedule land
from defendants 1 to 5.
Wp_8692_2003
18
no. 2, they cannot get anything, as the hereditary trusteeship was
abolished.
● The same issue was recently raised between the same parties and
this Hon’ble Court has given a clear finding that, the Writ
Petitioners are not the owners of the land but the temple is the
owner of the land vide its judgment reported in 2004 ALT (4) 341
and the judgment has attained the finality. Hence in view of the
judgment reported in 2004 ALT (4) 341 also the present writ
petition is liable to be dismissed.
6) CASES RELIED UPON BY THE PETITIONERS
● Maharaja of Jeypore vs. Rukmini Patta mahadevi garu
7
In the present case, the issue was with regard to
i) Whether service attached to the grant or lease by the plaintiff is
remuneration for discharging the service annexed to the said office or
on tenure subject to the condition and burden of rendering such
service to the Zamindar?
ii) Whether the plaintiff can take back the land on non performance of
such service?
The Hon’ble Court held that it is competent to the plaintiff in the
former case (i.e. grant or lease as a remuneration) to dispense with
such services and to resume the Pargana at pleasure, and in either
case the defendant is liable to forfeit the Pargana by repudiating the
plaintiff's title and his (defendant's) liability to render such services,
and it is competent to the plaintiff to enforce such forfeiture as he has
7
1918 SCC Online PC 2
Wp_8692_2003
19
done by his notice, dated 24-04-1906 and resume the possession and
management of the Pargana.
Under Indian law there are circumstances in which such a repudiation
will work as a forfeiture. By Transfer of Property Act, 1882 - Section
111 (a), lease of immovable property, determines -
(g) by forfeiture, that is to say (1) in case the lessee breaks an express
condition which provides that, on breach thereof the lessor may re-
enter, or the lease shall become void; or (2) in case the lessee
renounces his character as such by setting up a title in a third persons
or by claiming title in himself; and in either case the lessor or his
transferee does some act showing his intention to determine the lease.
This statutory provision not being retrospective, does not govern the
present case. But it is in substance the placing in a statutory form of
the rule of law which had already been adopted by the Courts in
India.
The qualification that the denial must be clear and unmistakable terms
has not infrequently been applied by the Courts in India, which have
held that where a tenant admits that he does hold as a tenant of the
person who claims to be his landlord, but disputes the terms of the
tenancy and sets up terms more favourable to himself, he does not,
though he fails in establishing a more favourable tenancy to himself,
so far deny the landlord's title as to work a forfeiture.
Further the High Court held that refusal to render these services did
not operate to create a forfeiture or give occasion for resumption.
The defendant held and the respondent holds a tenure under the
appellant.
Wp_8692_2003
20
● Rani Chhatra Kumari Devi vs. Prince Mohan Bikram Shah
8
The Hon’ble Court held that Trust would only continue during such
time as equity would enforce specific performance.
But even assuming that by reason of the Contract the properties were
impressed with a continuing trust in favour of the respondent, their
lordships are unable to hold that this would entitle him to sue for
possession as "owner". The Indian law does not recognise legal and
equitable estates.
By that law, therefore, there can be but one "owner", and where the
property is vested in a trustee the "owner" must, their lordship think,
be the trustee. This is the view embodied in the Indian Trusts Act,
1882: See SS. 3, 55, 56 etc.
7) CASES RELIED UPON BY THE GP FOR ENDOWMENTS
● Vaka Ramakrishna Reddy v. Venkata Subba Reddy
9
(27-02-
2004)
The present Revision petition is filed against the judgment and decree
dated 24-01-2000 of the II Addl. Junior Civil Judge, Ongole in Small
Causes Suit No. 67 of 1998.
The Suit is for recovery of maktha for the years 1995-95 to 1997-98
over the land cultivated by the 1St respondent with interest or to grant
the same as damages for use and occupation of the land.
Whether the plaintiff is entitled to continue in possession of the
suit property by collecting rents from the tenants and spend the
8
1931
9
2004 (3) ALD 43
Wp_8692_2003
21
said amount for the purpose for which the specific endowment
was created?
The erstwhile High Court of Andhra Pradesh observed that
"charitable institutions includes "Specific Endowment". When once
the provisions of Endowments Act, 1987 are applicable, the
charitable institutions become public institutions, therefore, the
trustees are bound to render accounts for the income they receive
from the specific endowment, and are bound to spend the said money
for Kalyanothsavams and other festivals. But the plaintiff and other
trustees failed to render any accounts and there were allegations that
they are not utilising the entire amount for the purpose mentioned
therein.
When once the trustees of charitable institutions fail to discharge their
duties, the Government has every power either to appoint another
team of trustees or keep the temple under the management of the
Executive Officer, pending appointment of the trustees. As per the
provisions of the Endowments Act, 1987, the trustees, including
hereditary trustees, are liable to be removed. The system of
hereditoryship was also abolished through Endowments Act, 1987,
therefore, there cannot be a lien to any individual to claim the
trusteeship.
When it is made out from the material that the plaintiff and other
trustees were removed through the order of the Assistant
Commissioner, the management of the specific endowment has to be
taken up by another team of trustees or the Executive Officer. Under
Section 29 of the Endowments Act, 1987, it is the responsibility of
Wp_8692_2003
22
the Executive Officer to protect the properties of the Charitable
institutions and he is empowered to take steps for protecting such
properties, subject to the supervision of the trustees.
Since the plaintiff and others are no more trustees of the specific
endowment, the question of supervising and managing the affairs of
the specific endowment by them does not arise. The Executive
Officer is competent to sue and be sued in the name of the specific
endowment, therefore, he has every right to receive the rents paid by
the tenants. Since the plaintiff and other trustees were removed from
the trusteeship, they are not entitled to supervise the affairs of the
specific endowment and the Executive Officer or the next team of
trustees have to protect the specific endowment and see that the
income of the specific endowment is utilised for the purpose for
which it was created.
After carefully going through the record, it is understood that on
account of passage of time, the successors of the transferee are getting
the property divided due to increase of legal heirs and if the number
further increases and if they are allowed partition the property for
every generation, there is every likelihood of the property
disintegrated and ultimately nothing remains to yield any income and
it may not be possible to fulfil the obligation created under Ex.A-1
document (Sale Deed). The transferee under Ex.A-1 gifted the
property to fulfil the purpose of the endowment for which it was
created. It is the high duty of the trustees to maintain transparency
regarding the income from the property and the expenditure they
incur. The transparency of the income and expenditure would be
possible only by opening a bank account in a nationalised bank
Wp_8692_2003
23
operating the account by depositing the amounts realised from the
lands and withdrawing the same for the purpose for which specific
endowment is created.
The suit viz., O.S.No. 11 of 1961 filed by the temple was dismissed
when there was no allegation of mismanagement of the property by
the plaintiff and other trustees. But, the subsequent developments led
to initiate departmental action against the trustees and as they were
appropriating the income without maintaining proper accounts, the
department plunged into action and ultimately removed the trustees.
The object of the specific endowment is to render Kalyanothsavams
and Kainkaryam to the deity Sri Seetharamaswamy Varu. Under any
circumstances, there shall be no deviation from fulfilment of the
object. The object of the Endowments Act, 1987 is to protect the
properties of charitable endowment and religious institutions. Since
the concerned authorities noticed the failure of the trustees
maintaining the accounts of the income and expenditure, there was no
option, except to remove them from service and to entrust the duty of
management to the Executive Officer. The Executive Officer received
the rents paid by the tenant and made necessary entries in the record
on behalf of the temple. Since the plaintiff and other trustees are
removed from trusteeship, they are not entitled to demand rents of
specific endowment from the tenants on behalf of the temple.
So far as the participation of the plaintiff and their other family
members in Kalyanothsavams and other Kainkaryam is concerned,
since they are the legal heirs of the family which used to manage the
specific endowment, they shall be allowed to participate in those
Wp_8692_2003
24
functions as family members of the original trustee and they have
every right to ascertain the particulars of the income of the lands and
the expenditure incurred in respect of the endowed property.
Since the first respondent (tenant) paid Maktha to the Executive
Officer on proper acknowledgement, the plaintiff is not entitled to
recover the same. Therefore the Civil Revision Petition is dismissed.
8) In M/s Gammon India Ltd. V. Commissioner of Customs,
Mumbai
10
, the Hon'ble Supreme Court held that when the language is
clear and unambiguous, there is no need to resort to the interpretative
process in order to determine whether the said Condition is to be
imparted strict or liberal construction.
The Court further observed that if a Bench of a Tribunal, in identical
fact- situation, is permitted to come to a conclusion directly opposed
to the conclusion reached by another bench of the tribunal on earlier
occasion, that will be destructive of the institutional integrity itself.
What is important is the Tribunal as an institution and not the
personality of the members constituting it. If a Bench of the Tribunal
wishes to take a view different from the one taken by the earlier
Bench, the propriety demands that it should place the matter before
the President of the Tribunal so that the case is referred to a large
bench, for which provision exists in the Act itself.
● In Krishna Lal vs. Food Corporation of India & ors
11
, the
Hon'ble Supreme Court observed that "Availability of an
10
2011 AIR SCW 4175
11
AIR 2012 SC (Supp) 46
Wp_8692_2003
25
alternative remedy for adjudication of dispute is, therefore, not a
ground that can be pressed into service at this belated stage and is
accordingly rejected."
● In Executive Officer, Sri Bhramaramba Mallikarjuna Swamy
Temple, Beeranguda, Patancheru Mandal, Medak District v. Sai
Krupa Homes, Karimnagar and others
12
, regarding the
jurisdiction of the Civil Court to decide a suit for declaration with
respect to lands which are claimed to be property of the Temple
and covered under Act 30 of 1987, the Hon’ble High Court held
that
“Similar issue was considered by this Court in a Division Bench
judgment in JAGGAYYA’s case which is based upon the decision of
the Supreme Court, which considered similar contention with respect
to Andhra Pradesh Charitable and Hindu Religious Institutions and
Endowment Act, 1966 wherein similar question with reference to
Section 77 of the 1966 Act was considered and the suit was held to be
maintainable. The present Section 87 being similar to Section 77 of
the 1966 Act, it has to be held that since it is a suit for declaration, the
same would not fall within the purview of the authorities under the
Act 30 of 1987 under Section 87. Similarly, Section 151 contains a
bar of jurisdiction that no suit or legal proceeding in respect of
administration or management of an institution or endowment or any
other matters of dispute for determining or deciding, for which the
provision is made in this Act 30 of 1987 shall be instituted in any
Court. As a suit for declaration of title is not falling within the
12
2010 (6) ALD 207
Wp_8692_2003
26
parameters of Section 151 of the Act 30 of 1987 the said contention
of the appellants is liable to be rejected and it is accordingly
rejected.”
● In Villuri Subba Rao and others Vs. Sri Karyasiddeswara Swamy
Vari Temple, Dhinnayagudem rep. By Fit-person and Executive
Officer and others
13
, the main issue is with regard to whether a
suit can be filed in the civil court in view of the provisions
contained in the Endowments Act?
The Hon’ble Court held that though there is no provision in the 1967
Act ousting the jurisdiction of the Civil Court expressly the position
as pointed out by the Division Bench is that Section 77 was construed
as ousting the jurisdiction of the civil court. So , no distinction can be
made between 1951 Act and 1966 Act on that ground i.e. regarding
the jurisdiction of the civil court in the matters to be decided by the
Deputy Commissioner because even regarding the 1966 Act it was
held that the Civil Court has no jurisdiction to entertain the disputes
to be enquired by the Deputy Commissioner even though there is no
specific provision ousting the jurisdiction of the Civil Court.
● In Rbf Rig Corporation, Mumbai vs Commissioner Of Customs
(Imports), Mumbai
14
, the Hon’ble Supreme Court held that
Article 226 of the Constitution confers powers on the High Court
to issue certain writs for the enforcement of fundamental rights
conferred by Part-III of the Constitution or for any other purpose.
13
1990 (1) An.n W.R. 313
14
AIR 2012 SC (Supp) 176
Wp_8692_2003
27
The question, whether any particular relief should be granted
under Article 226 of the Constitution, depends on the facts of
each case. The guiding principle in all cases is promotion of
justice and prevention of injustice. In Comptroller and Auditor-
General of India v. K.S. Jagannathan, (1986) 2 SCC 679, this
Court has held:
“20. There is thus no doubt that the High Courts in India exercising
their jurisdiction under Article 226 have the power to issue a writ of
mandamus or a writ in the nature of mandamus or to pass orders and
give necessary directions where the government or a public authority
has failed to exercise or has wrongly exercised the discretion
conferred upon it by a statute or a rule or a policy decision of the
government or has exercised such discretion mala fide or on
irrelevant considerations or by ignoring the relevant considerations
and materials or in such a manner as to frustrate the object of
conferring such discretion or the policy for implementing which such
discretion has been conferred. In all such cases and in any other fit
and proper case a High Court can, in the exercise of its jurisdiction
under Article 226, issue a writ of mandamus or a writ in the nature of
mandamus or pass orders and give directions to compel the
performance in a proper and lawful manner of the discretion
conferred upon the government or a public authority, and in a proper
case, in order to prevent injustice resulting to the concerned parties,
the court may itself pass an order or give directions which the
government or the public authority should have passed or given had it
properly and lawfully exercised its discretion.”
Wp_8692_2003
28
In Dwarkanath v. ITO, AIR 1966 SC 81, this Court pointed out that
Article 226 is designedly couched in a wide language in order not to
confine the power conferred by it only to the power to issue
prerogative writs as understood in England, such wide language being
used to enable the High Courts "to reach injustice wherever it is
found" and "to mould the reliefs to meet the peculiar and complicated
requirements of this country."
In Halsbury's Laws of England, 4
th
Edn., Vol.I, para 89, it is stated
that the purpose of an order of mandamus “is to remedy defects of
justice; and accordingly it will issue, to the end that justice may be
done, in all cases where there is a specific legal right and no specific
legal remedy for enforcing that right; and it may issue in cases where,
although there is an alternative legal remedy, yet that mode of redress
is less convenient, beneficial and effectual.”
● In D.V. Raghavacharyulu vs Deputy Commissioner Endowments
Department, Guntur and others
15
, the Hon’ble Division Bench of
the erstwhile Andhra Pradesh High Court held that “The
hereditary trustee is entitled to succeed to the officer under the rule
of succession and he can be suspended, removed or dismissed
after following the procedure under sub-sec. (2) of Section 20 of
Act 17 of 1966 but the authorities have no right to suspend the
hereditary trustee pending disposal of the charges framed against
him.”
15
AIR 1984 ANDHRA PRADESH 39
Wp_8692_2003
29
● In Amarawadi Venkata Narsaiah Trust, Hyderabad v. State Of
Andhra Pradesh and others
16
, the issue for consideration in the
present case is whether the agriculture department is legally
entitled to retain possession of the subject land, be it for an
educational or any other purpose, in the light of the specific
endowment created by late Sri Amarawadi Venkata Narsaiah
under his will dated 21. 08. 1954. Late Sri Amarawadi Venkata
Narasaiah, being the donor of the endowed properties, created a
charitable and religious endowment in as much as he desired that
an educational institution be established with the use of his
property. The said endowment also had religious overtones as he
desired that the educational institution should be named after lord
Sri Venkateswara.
The Hon'ble High Court held that “The State having been placed
under an obligation by the donor, cannot claim independent
proprietary rights in respect of the endowed properties, in excess of or
over and above what was bestowed upon it under the will dated 21.
08. 1954. It is manifest that the State being the original trustee under
the will dated 21. 08. 1954 could not have betrayed such trust and it is
not open to the agriculture department, claiming through such trustee,
to assert any rights over the subject lands in variance with the
objective of the endowment.The stand of the agriculture department
that the state had such rights must therefore be rejected.”
16
2009 (2) ALD 417
Wp_8692_2003
30
● In Pannalal Bansilal Patil & Ors. Etc vs State Of Andhra
Pradesh & Anr
17
, the Hon’ble Supreme Court observed that
Section 17 of the predecessor Act of 1966 had given power to a
hereditary trustee to be the chairman of the board of non-
hereditary trustee. Though abolition of hereditary right in
trusteeship under Section 16 has already been upheld, the
charitable and religious institution or endowment owes its
existence to the founder or members of the family who would
resultantly evince greater and keener responsibility and interest in
its proper and efficient management and governance. The
autonomy in this behalf is an assurance to achieve due fulfillment
of the objective with which it was founded unless, in due course,
foul in its management is proved.
Therefore, so long as it is properly and efficiently managed, he is
entitled to due freedom of management in terms of the deed of
endowment or established practice or usage. In case a board of
trustees is constituted, the right to preside over the board given to the
founder or any member of his family would generate feeling to
actively participate, not only as a true representative of the source, but
the same also generate greater influence in proper and efficient
management of the charitable or religious institution or endowment.
Equally, it enables him to persuade other members to follow the
principles, practices, tenets, customs and sampradayams of the
founder of the charitable or religious institution or endowment or
specific endowment.
17
AIR 1996 SUPREME COURT 1023
Wp_8692_2003
31
Mere membership along with others, many a times, may diminish the
personality of the member of the family. Even in case some funds are
needed for repairs, improvement, expansion etc., the board headed by
the founder or his family member may raise funds from the public to
do the needful, while the executive officer, being a Government
servant, would be handicapped or in some cases may not even show
interest or inclination in that behalf. With a view, therefore, to
effectuate the object of the religious or charitable institution or
endowment or specific endowment and to encourage establishment of
such institutions in future, making the founder or in his absence a
member of his family to be a chairperson and to accord him major say
in the management and governance would be salutary and effective.
The founder or a member of his family would, thereby, enable to
effectuate the proper, efficient and effective management and
governance of charitable or religious institutions or endowment or
specific endowment thereof in future. It would add incentive to
establish similar institutions.
Sections 17 and 29(5) of Act 30 of 1987 cannot, therefore, be faulted.
Whatever rigour these sections have, would be duly get softened by
the requirement of the board being headed by the founder or any of
his family members, as the case may be. Subject to this rider, the
Supreme Court upholds the validity of these two Sections.
● In Govt. Of A.P. v. G. Rajendranath Goud and others
18
, the
Division Bench of Hon’ble erstwhile High Court of Andhra
Pradesh held that “Section 142 of Act 30 of 1987 has saved only
the "honour" of participating in the religious ceremonies by the
18
1996 (6) ALD 147 (DB)
Wp_8692_2003
32
trustees. In other words, such an "honour" the hereditary trustee
would continue to enjoy without any 'honorarium' or any kind of
rights, which were earlier recognised as hereditary rights. The
other saving as provided under Section 17(1) of the Endowments
Act, 1987, is that whenever a trust is to be constituted, one of the
trustees shall be from the family of the founder trust, if he is not
disqualified. As per this provisions the 'honour' is saved to the
family of the founder of the trust to occupy one seat in the trust
board by virtue of such hereditary right of succession without
being appointed as a trustee in the manner prescribed for other
trustees, as long as such trustee of the founder family is qualified
to be a trustee.”
● In Sunita Devi vs State Of Bihar and another
19
, the Hon’ble
Supreme Court observed that “Incuria” literally means
“carelessness”. In practice per incuriam is taken to mean per
ignoratium. English Courts have developed this principle in
relaxation of the rule of stare decisis. The “quotable in law”, as
held in Young v. Bristol Aeroplane Co. Ltd., [1944] 2 All E.R.
293, is avoided and ignored if it is rendered, “in ignoratium of a
statute or other binding authority,” Same has been accepted,
approved and adopted by this Court while interpreting Article 141
of the Constitution of India, 1950 which embodies the doctrine of
precedents as a matter of law. The above position was highlighted
in State of U.P. and Another v. Synthetics and Chemicals Ltd. and
Another, [1991] 4 SCC 139. To perpetuate an error is no heroism.
To rectify it is the compulsion of the judicial conscience.
19
AIR 2005 SUPREME COURT 498
Wp_8692_2003
33
● In Ramachandra Dagdu Sonavane (Dead) By L.Rs. and ors v.
Vithu Hira Mahar (Dead) By L.Rs. & ors
20
, the Hon’ble Supreme
Court observed that “if an earlier judgment has to operate as res-
judicata in the subsequent proceedings, then all the necessary facts
including pleadings of the earlier litigation must be placed on
record in the subsequent proceedings.”
● In Ramji Gupta & Anr vs Gopi Krishan Agrawal (D) & Ors
21
, the
Hon’ble Supreme Court observed that “In order to operate as res
judicata, the finding must be such, that it disposes of a matter that
is directly and substantially in issue in the former suit, and that the
said issue must have been heard and finally decided by the court
trying such suit. A matter which is collaterally or incidentally in
issue for the purpose of deciding a matter which is directly in issue
in the case, cannot be made the basis for a plea of res judicata.
A question regarding title in a small cause suit, may be
regarded as incidental only to the substantial issue in the suit, and
therefore, when a finding as regards title to immovable property is
rendered by a Small Causes Court, res judicata cannot be pleaded as a
bar in the subsequent regular suit, for the determination or
enforcement of any right or interest in the immovable property.”
● In Smt. Gangabai vs. Smt. Chhabubai
22
, the Hon’ble Supreme
Court observed that “When a finding as to title to immovable
property is rendered by a Court of Small Causes res judicata
cannot be pleaded as a bar in a subsequent regular civil suit for the
20
AIR 2010 SUPREME COURT 818
21
AIR 2013 SUPREME COURT 3099
22
AIR 1982 SUPREME COURT 20
Wp_8692_2003
34
determination or enforcement of any right or interest in
immovable property. In order to operate as res judicata the finding
must be one disposing of a matter directly and substantially in
issue in the former suit and the issue should have been heard and
finally decided by the court trying such suit. A matter which is
collaterally or incidentally in issue for the purposes of deciding the
matter which is directly in issue in the case cannot be made the
basis of a plea of res judicata. It has long been held that a question
of title in a Small Cause suit can be regarded as incidental only to
the substantial issue in the suit and cannot operate as res judicata
in a subsequent suit in which the question of title is directly
raised.”
● In Bhagwan Dayal vs Mst. Reoti Devi
23
, the Hon’ble Supreme
Court observed that “If a particular matter is one which does not
fall within the exclusive jurisdiction of the revenue court, then a
decision of a revenue court on such a matter, which might be
incidentally given by the revenue court, cannot be binding on the
parties in a civil court. The present suit was not within the
exclusive jurisdiction of the revenue court and, therefore the suit
in the civil court was maintainable. The relevant part of s. 11 of
the Code reads:
“No Court shall try any suit or issue in which the matter
directly and substantially in issue has been directly and
substantially in issue in a former suit between the same parties
or-between parties under whom they or any of them claim,
litigating under the same title, in a Court competent to try such
23
AIR 1962 SUPREME COURT 287
Wp_8692_2003
35
subsequent suit or the suit in, which such issue has been
subsequently raised, and has been heard and finally decided by
such Court.” In this case the title to properties now put in issue
was tried in the revenue court. But that court is not competent to
try the present suit in which the same issue is raised. It follows
that in terms of s.11 of the Code, the decision on the said issue
in the revenue court could not operate as res judicata for the
necessary condition of competency of that court to try the
present suit is lacking.
● In Sajjadanashin Sayed Md. B.E. Edr. (D) by L.Rs. vs Musa
Dadabhai Ummer & Others
24
, theHon'ble Supreme Court
observed that “It will be noticed that the words used in Section 11
CPC are "directly and substantially in issue". If the matter was in
issue directly and substantially in a prior litigation and decided
against a party then the decision would be res judicata in a
subsequent proceeding. Judicial decisions have however held that
if a matter was only 'collaterally or incidentally' in issue and
decided in an earlier proceeding, the finding therein would not
ordinarily be res judicata in a latter proceeding where the matter is
directly and substantially in issue.”
The Hon'ble Supreme Court further observed that “It is well
settled that an earlier decision which is binding between the
parties loses its binding force if between the parties a second
decision decides to the contrary. Then, in the third litigation, the
24
AIR 2000 SUPREME COURT 1238
Wp_8692_2003
36
decision in the second one will prevail and not the decision in the
first.”
● In R.S. Bakshi and anr vs. H.K. Malhari and anr
25
, the Hon’ble
Delhi High Court held that “Rule of per incuriam can be applied
where a court omits to consider a binding precedent of the same
court or the superior court rendered on the same issue or where a
court omits to consider my statue while deciding that issue, a case
cannot be referred to a Larger Bench on mere asking of a party. A
decision by two Judges, has a binding effect on another coordinate
Bench of two Judges, unless it is demonstrated that the said
decision by any subsequent change in law or decision ceases to
laying down a correct law.”
● In Ushodaya Enterprises Ltd. vs. Commissioner Of Commercial
Taxes, AP
26
, the Hon’ble Division Bench of erstwhile Andhra
Pradesh High Court held that “In a case of conflict arising from
the decisions of co-equal benches of the Supreme Court, the High
Court is free to disregard the decision which is based on an
obvious mistake of fact or the one which purports to follow the
ratio of an earlier decision though such ratio is found to be non-
existent. The High Court can legitimately decline to follow such a
decision and follow the earlier decision which is backed by
reasoning-whether it is acceptable to the High Court or not, and
which is free from any such apparent flaw. We are unable to
persuade ourselves to subscribe to the view that the later decision
25
2002 IAD DELHI 589
26
1998 (3) ALD 478 (FB)
Wp_8692_2003
37
should be automatically followed despite the fact that it rests on a
conclusion based on an erroneous impression that an earlier
decision took a particular view which in fact it has not taken. By
doing so, we are neither questioning the hierarchical superiority of
the Supreme Court nor the higher wisdom of the Hon'ble Judges of
the Supreme Court. We are preferring one decision to the other -
both rendered by Division Benches, for obvious reasons so as to
avoid an incongruity leading to travesty of justice.”
9) NATURE OF PROPERTY:
The Sale deed dated 25-11-1862 mentions that the property is
sold to Mr. Vaka Venkata Reddy “for doing every year Kalyana
Mahostsavams etc Kainkaryams to Sri Sitarama Swamy in the
temple, Karavadi.” which reads as under:
“On 1874 year No.974 Plaintiff’s deed, dundhubi Year,
Margasira Suddha Chaturdhi dated:-
“Manyam Khandimpu
27
” deed dated 25-11-1862, executed in
favour of Vaka Venkata Reddy, Karavadi Village resident, by
M/s Addanki Lakshmayya, Maladondrayudu, Ramanna,
Narasimham and Lakshmi Narsu. We have in Karumanchi
Village, Ongole Taluk, 16 ‘Gorlu” Manyam, on northern side,
northern side half, Eastern side half-8 “gorlu'' bounded by East:
Kakumani Kondanda Ramulu, Mallavarapu Venkata Reddy,
27
‘Khandimpu Deed’ means ‘Condemnation Deed’
“Condemnation refers to the process adopted by the government of seizing
private property for public use. The ownership of the property is transferred from
private to public enterprise.”
Wp_8692_2003
38
Tata Reddy, Venkata Narayana, No. 243,244, Black Cotton
Seed land, South: Our land partly, West: Donka land No:230
and our land, North: Land of Nagineni Peddayya, Nagineni
Obayya No.247, near Inagaleru, Land of Duggambhotlu
Krishnayya No.248, Nagineni Kotayya’s ‘Koshtam’, specified
as AB i.e., 8 ‘gorlu’ land, is sold for Rs.1675 to you, and we
took that price, it is for doing every year Kalyana mahotsavams
etc Kainkaryams to Sri Sitarama Swamy, Karavadi. So, on this
8 ‘gorlu’ land, this “Dundhubhi’ year also, according to your
wish you can utilise for doing Kainkaryams to the said
‘Sitarama Swamy’ from generation to generation always.
All waters, trees, treasures etc in this 8 ‘gorlu’ land, you,
yourself utilise for the Kainkaryams of ‘Sri Sitarama Swami
varu’. We or our heirs have no rights for ever. You have to pay
taxes to the Government for this 8 ‘gorlus’ land.
This ‘Khandimpu’ deed is executed voluntarily by us :
Lakshmayya’s Signature, Malakondrayudu’s Signature,
Rajanna’s Signature, Lakshmi Narusu’s Signature, Narsing’s
Signature.
Witnesses: Karavadi Narasamma, Pisupati
Venkambhotlu’s son Raghavayya, Addnaki Lakshmi Narsu, 29
October 1862, Addanki Lakshmi Narasayya, Ongole.
Registered on the 26th day of November 1862 at 4PM,
Civil Judge, 1874 No.974 filed by Government on 3-11-1874,
T.H.Smith, District Munsiff No. 974 filed by Government on 3-
11-1874, by guardian on behalf of Plaintiff on 30-06-1875
PDM, given to Plaintiff’s pleader Nelaturi Srinivasa Charyulu.
Wp_8692_2003
39
(v) L.A.C completely Dated Judge 27-1-88 Sd. Mohamad
Abdul Khadar in District Munsiff court of Ongole O.S.No. 117
of (Torn) produced on the 29.4.16 by the the defendant -
admitted in evidence on 29-4-16 and added as (Sd/-) K.K.Suri,
District, Munsiff 29-4-1916- Application made on 25-10-1890
stamps call for 28-10-89 stamp paper deposited 29-10-1890
copy ready 5.11.1890 to delivered 12.11.90 (Sd) M.Abdul
Khadar examined (True copy) (sd)
D.Venkatanarayana copy claimed 26-8-16 (Sd/-) sri
venkatanarayana swami”
It appears from the language of the Sale Deed that the Specific
Endowment
28
in favour of the temple is only with respect to the
usufruct of the land and not the property itself. If the intention was to
endow the land itself there is no need to mention that
“You can utilise the land for doing Kainkaryams to the said
‘Sitarama Swamy’ from generation to generation. All waters,
treasures etc in this 8 ‘gorlu’ land, you, yourself utilise for doing
Kainkaryams of ‘Sri Sitarama Swamy Varu’.”
10) TEMPLE:
The temple is a Section 6 (c) temple. The Executive Officer of the
Temple is the Respondent No.5 herein. According to Section 11 of
the Act 30 of 1987, the Assistant Commissioner shall, within the
28
Section 2 (25) of Act 30 of 1987
‘Specific Endowment’ means any property or money endowed for the
performance of any specific service or charity in a charitable or religious
institution or for the performance of any other charity, religious or otherwise.
Wp_8692_2003
40
subdivision in his charge, exercise the powers conferred on, and
perform the functions entrusted to as such by or under this Act in
respect of all institutions and endowments included in the list
published under clause (c) of section 6.
The Hierarchy of the Authorities under the Act are as follows:
1. Commissioner
2. Additional Commissioner
3. Regional Joint Commissioner (Incharge of Region)
4. Deputy Commissioner (Incharge of Division)
5. Assistant Commissioner (Incharge of Sub Division)
11) TRUSTEESHIP:
● SECTION 2
(29) ‘Trustee’ means any person whether known as mathadhipati,
mohant, dharmakarta mutawally, muntazim or by any other name, in
whom either alone or in association with any other person, the
administration and management of a charitable or religious institution
or endowment are vested and includes a Board of Trustees.
(16) Hereditary Trustee means the trustee of a charitable or
religious institution or endowment the succession to whose office
devolves according to the rule of succession laid down by the founder
or according to usage or custom applicable to the institution or
endowment or according to the law of succession for the time being
in force, as the case may be
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● According to Section 16, the hereditary trustees were abolished.
But as per the Section 17 (1) proviso, “the founder
29
or one of the
members of the family of the founder
30
, if qualified as
prescribed, shall be appointed as one of the Trustees.” According
to Section 15 (2), where the income of the institutions is less than
Rs.2.00 lakhs per annum, the Deputy Commissioner concerned
may constitute a Board of Trustees consisting of five persons in
respect of each such temple keeping in view the traditions,
sampradayams and wishes of the devotees.
● Section 28 - Suspension, removal or dismissal of trustee
(1) The authority competent to appoint a trustee may suspend,
remove or dismiss a trustee if he-
(a) fails to discharge the duties and perform the functions of a
trustee in accordance with the provisions of this Act or the rules
made there under;
29
Explanation I of Section 17 (1):
‘Founder’ means,-
(a) In respect of Institution or Endowments exiting at the commencement of this
Act, the person who was recognized as Hereditary Trustee under the Andhra
Pradesh Charitable and Hindu Religious Institutions and Endowments Act, 1966
or a Member of his family recognized the Competent Authority;
(b) In respect of an Institution or Endowment established after such
commencement, the person who has founded such Institution or Endowment or a
member of his family and recognized as such by the competent authority.
30
Explanation – II of Section 17 (1):
‘Member of the family of the founder’ means children, grandchildren and
so in agnatic line of succession for the time being in force and declared or
recognised as such by the relevant appointing authority.
Wp_8692_2003
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(b) disobeys any lawful orders issued under the provisions of this
Act or the rules made there under, by the Government or the
Commissioner [or Additional Commissioner, or the Regional Joint
Commissioner] or the Deputy Commissioner or the Assistant
Commissioner;
(c) refuses, fails or delays to handover the property and records in
his possession relating to the institution or endowment to his
successor or any other person authorised in this behalf;
(d) commits any malfeasance or misfeasance or is guilty of breach
of trust or misappropriation in respect of the properties of the
institution or endowment.
(e) becomes subject to any of the disqualifications specified in
section 19; or
(f) in the case of a religious institution or endowment, ceases to
profess Hindu religion.
(2) Where it is proposed to take action under sub-section (1), the
authority competent to appoint the trustee shall frame a charge
against the trustee concerned and give him an opportunity of
meeting such charge, of testing the evidence adduced against him
and of adducing evidence in his favour; and the order of
suspension, removal or dismissal shall state every charge framed
against the trustee, his explanation and the finding on such charge,
together with the reasons therefor.
(3) Pending disposal of any charge framed against a trustee, the
authority competent to appoint the trustee may suspend the trustee
Wp_8692_2003
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and appoint a fit person to discharge the duties and perform the
functions of the trustee.
● The Petitioners were removed from hereditary trusteeship in 1979
by virtue of disciplinary proceedings against them and since then
they are not in possession and management of specific
endowment.
12) MAINTENANCE OF ACCOUNTS:
● The District Judge in O.S. No. 47 of 1975 & O.S. No. 1 of 1976
held that “the defendants (petitioners herein) have not been
maintaining the accounts and so directed the defendants to
maintain the accounts from the date of judgment and to deposit the
income in a scheduled bank etc and get the accounts audited by
the department.
The Assistant Commissioner, Endowments was given liberty to
demand an account of the income from the year 1962 and realise
the same.”
So by virtue of the above judgment, the petitioners are accountable
for accounts of income from the year 1962. But after the year 1979,
the petitioners are not in possession of the property. So the issue
arises as to Accounts of Income from 1962-1979.
‘The charge that they are not maintaining an account of income
would itself tantamount to misconduct and misappropriation of
income’ is a question to be decided.
● After 1979, the petitioners are not in possession of the lands as
they were removed from trusteeship pending enquiry proceedings.
From 1979 the lands were in possession of fit person appointed by
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44
the Authorities or Executive Officer and they are collecting the
rents from the tenants of the specific endowment property.
So no question of maintaining accounts of income or
misappropriation of income shall arise after 1979 by the petitioners.
● According to Section 58 of Act 30 of 1987, where annual income
of the institution is less than 2 lakhs per year, it shall be audited
annually by an officer subordinate to the Assistant Commissioner
and deputed by him for the purpose.
According to Section 59, the Auditor shall send a report to the
Assistant Commissioner in respect of the institutions included under
Section 6 (c).
According to Section 60, the auditor shall specify in his report all
cases of irregular, illegal or improper expenditure or of failure to
recover moneys or other property due to the charitable or religious
institution or endowment or of loss or waste of money or other
property thereof, caused by neglect or misconduct or misapplication
or collusion or fraud or breach of trust or misappropriation on the part
of the trustee or of any other person.
Section 61 provides for the rectification of defects in the audit and
Section 62 provides for the rectification of defects detected by the
commissioner.
Section 64 states that it is the Duty of the trustee to give all assistance
and facilities to auditors.
So before alleging misappropriation, misconduct or breach of trust, an
audit should have been conducted by an officer subordinate to the
Assistant Commissioner and deputed by him for the purpose.
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Both the District Judge in O.S. No. 47 of 1975 & O.S. No. 1 of 1976
and the erstwhile High Court in Appeal No. 270 and 614 of 1978,
mandated for an audit.
No opportunity was given for the petitioners to pay a sum of Rs.
1,20,000/- as mentioned in the memorandum of charges either before
or during the pendency of the enquiry. No audited amount was also
specified on the specific endowment to the petitioners at any point of
time if they are otherwise liable for any due amount. Instead the
petitioners were removed from the management of the specific
endowment and possession of the same was taken over by the
Executive Officer. The respondent had not considered the explanation
of the petitioners in detail and passed the impugned orders
erroneously in a coercive manner which is not warranted under law.
13) PRESENT AUTHORITY TO CONSIDER MATTERS
AFRESH
● Section 87 - Power of Endowments Tribunal to decide certain
disputes and matters
(1) The Endowments Tribunal
31
having jurisdiction shall have the
power, after giving notice in the prescribed manner to the person
concerned, to enquire into and decide any dispute as to the question-
(b) whether an institution or endowment is a religious institution or
endowment;
31
Section 162
Constitution of Endowments Tribunal
The Tribunal shall consist of a Chairman and one other member to be appointed
by the Government.
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46
(d) whether any property is a specific endowment;
(e) whether any person is entitled by custom or otherwise to any
honour, emoluments or perquisites in any charitable or religious
institution or endowment and what the established usage of such
institution or endowment is in regard to any other matter;
(h) Whether a person is a founder or a member from the family of the
founder of an Institution or Endowment.
● Section 88 - Right of appeal against the decision of the
Endowments Tribunal under section 87
Any person aggrieved by the decision of the Endowments Tribunal
under section 87 and section 119 may, within ninety days from the
date of receipt of the decision, prefer an appeal to the High Court.
● Section 90 - Appeal in certain cases
(1) Any person aggrieved may, within ninety days from the date of
receipt by him of an order, appeal against such order where it is
passed by -
(i) the Commissioner under sub-section (1) of section 28
32
, sub-
section (2) or sub-section (3) of section 61
33
, to the Government;
(ii) the Deputy Commissioner or the Assistant Commissioner,
as the case may be, under sub-section (1) of section 28
34
to the
Commissioner.
32
Suspension, Removal or dismissal of trustee by a authority competent to
appoint a trustee
33
Rectification of defects in audit etc
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14) The issue of maintenance of accounts of income by the petitioners
arises only with respect to the income earned from 1960-1979. And
the amount at the rate of Rs.6,000/- per year for 20 years would be
equal to Rs.1,20,000/- and the petitioners can be directed to pay such
amount with interest at 6% per annum. An Audit be conducted for the
years 1960-1979 by the competent authority i.e., by an officer
subordinate to the Assistant Commissioner and deputed by him for
the purpose or if already conducted then if any excess amount found,
then the same can be recovered after giving due opportunity of
hearing to the petitioners.
● The contention of the petitioners is that as per the sale deed dated
25-11-1862 [Ac.29-95 cents situated in Survey No. 223 of
Karumanchi Village, Prakasam District] that “it is only the
usufruct of the land and not the land is given on specific
endowment.”
15) For the foregoing reasons the impugned orders of the 2
nd
and
3
rd
respondents respectively in R.P. No. 7 of 1997 dated 02-01-2003
and the order dated 05-10-1996 are hereby set aside and the
respondent authorities are directed not to interfere with the rights of
the petitioners/trustees of the specific endowment in favour of the
5
th
respondent temple regarding the income on Ac. 29-95 cents of
agricultural land in Survey No. 223 of Karumanchi Village, Ongole
Mandal, Prakasam District except in accordance with law henceforth.
The respondents nos. 2 to 5 are directed to handover the possession
34
Suspension, Removal or dismissal of trustee by a authority competent to
appoint a trustee
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and management of the above said specific endowment to the
petitioners within 4 months from the date of receipt of this order
under an acknowledgment with up to date account of the said
property. The petitioners shall pay a sum of Rs.1,20,000/- with simple
interest calculated at 6% per annum from the year 1980 to till date to
the credit of 5
th
respondent temple account within one month from the
date of receipt of copy of this order for the purpose of participating
henceforth in Kalyanothsavams and the other sevas/rituals as earlier
in the temple and for the purpose of taking possession and
management of the above said specific endowment. If any excess
amount is to be paid by the petitioners on account of the audit made
and determined if any between the periods from 1962 to 1979 for
recovery of the same, the respondent authorities can issue demand
notice subject to the permissibility of the same under law and the
petitioners shall be given an opportunity to submit their explanation
for the same within a period of two weeks from the date of receipt of
such demand notice and upon hearing the matter by giving due
opportunity to the petitioners and upon verification of the records an
appropriate decision shall be taken by the respondent authority
concerned strictly on merits for such recovery of amount due if any.
16) The petitioners shall maintain separate account showing the
income and expenditure of the above said specific endowment and the
income derived on it shall be exclusively spent for the
kalyanotsavams, sevas and other kainkaryams for the deity in the
respondent No.5 temple as per the avowed object of the specific
endowment and the above said accounts in detail shall be submitted
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periodically to the respondent authority concerned in compliance with
the provisions of law.
17) Accordingly, the writ petition is allowed. Interim orders if any
deemed to have been vacated. There shall be no order as to costs.
As a sequel, the miscellaneous applications pending if any shall
stand closed.
_____________________________
JUSTICE B. KRISHNA MOHAN
November 2, 2023
Usha/Lmv
Wp_8692_2003
50
HON’BLE SRI JUSTICE B. KRISHNA MOHAN
WRIT PETITION No.8692 OF 2003
November 2, 2023
Usha/Lmv
Legal Notes
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