S. v. Sudhakara Rao VS Government of Andhra Pradesh
2008-03-27
B.PRAKASH RAO, G.BHAVANI PRASAD
body2008
DigiLaw.ai
ORDER B. Prakash Rao :- This Writ Petition arises out of a reference made by a learned single Judge as per the orders dated 28.09.2007 on the question as to the procedure contemplated in regard to the publication of notice in Form-I under Rule 4 of the Trustees Rules 1987 for appointment of the Trust Board in respect of an Institution in terms of the powers conferred under Section 15 of the A.P. Charitable and Hindu Religious Institutions Endowments Act, 1987. Though a specific question as such is not forming part of the reference, however, the learned single Judge having regard to a view held by another learned single Judge of this Court in W.P.Nos.1020 and 1337 of 2007 dated 23.02.2007 vis--vis the procedure as contemplated and required to be followed up, did not find favour with the said view. Hence, the Reference. 2. Briefly stated the facts giving rise to these proceedings are as a result of a writ filed by the petitioner seeking Mandamus assailing the issuance of notification in Memo No.159220/Endts.IV (2)/2003, dated 16.07.2007 by the Government of Andhra Pradesh and the consequent issuance of notice in Form-I No.G2/8885/2006, dated 20.08.2007 by the Additional Commissioner, Endowments Department, Hyderabad and the communication thereof by the Deputy Commissioner (A), Endowments Department, Hyderabad as arbitrary and illegal. 3. The case of the petitioner though reference to other chequered events relating to the Institution concerned namely Sri Venkateswara Swamy Devasthanam, Dwaraka Tirumala, West Godavari District vis--vis himself claiming to be the hereditary trustee, it is not necessary to delve into it for the purpose of the present issue. It would suffice to state that the petitioner had filed an application under Section 154 of the said Act No.30 of 1987 seeking exemption from the operation of Section 15 of the said Act so far as it relates to the said Institution before the Government and the same was rejected. The petitioner filed W.P.No.16283 of 2003 questioning the said orders and the same was dismissed on 19.01.2004 and against which a Writ Appeal No.2429 of 2005 was filed and the same is still pending. He filed yet another application for the self-same relief. According to him, the Government had issued a memo No.159220/Endts. IV(2)/2003, dated 05.05.2005 by way of a notification under Section 15 of the said Act for constitution of a Trust Board to the said Institution.
He filed yet another application for the self-same relief. According to him, the Government had issued a memo No.159220/Endts. IV(2)/2003, dated 05.05.2005 by way of a notification under Section 15 of the said Act for constitution of a Trust Board to the said Institution. However, this was followed up by issuance of a notice in Form-I by the Commissioner on 28.07.2007. Though it was challenged earlier in Writ Petition No.3988 of 2006 and since the said notification was withdrawn, the Writ Petition accordingly came to be disposed of on 13.03.2007. Once again the Government had issued a notification vide Memo No.159220/Endts.IV (2)/2003, dated 16.07.2007 deciding to issue a fresh notification as appended to the said memo and directed the Commissioner, Endowments Department to publish and issue notice in Form-I. Accordingly, the Additional Commissioner-I, Endowments Department, Hyderabad issued notice No.G2/8885/2006, dated 20.08.2007 in Form-I and the Deputy Commissioner (A), Office of the Commissioner, Endowments Department, Hyderabad issued a memo of even number, dated 27.08.2007 directing the Deputy Commissioner, Endowments Department, Kakinada and the Assistant Commissioner, Endowments Department, Eluru and the Inspector, Endowments Department, Eluru to issue publication of notice in Form-I in one of the largest circulated daily newspapers and affix the same at conspicuous places. It is this follow up action on the part of the authorities in issuing the notification and notices, which is under challenge in this present Writ Petition. 4. It has been contended on behalf of the petitioner that having regard to the provisions under Section 15 of the said Act, the hierarchy of the authorities constituted and the procedure contemplated under the Rules, it is only the competent authority who shall issue the notification and cause publication but the same cannot be delegated to any other authority and therefore, such a direction to cause publication by other authorities other than the competent authority for constituting a trust board is not valid and the same is liable to be set aside. 5. During the course of arguments, reliance is placed on Section 15 of the said Act and Rule 4 of the Appointment of Trustees Rules.
5. During the course of arguments, reliance is placed on Section 15 of the said Act and Rule 4 of the Appointment of Trustees Rules. A learned single Judge of this Court as per the orders in W.P.Nos.1020 and 1337 of 2007, dated 23.02.2007 considering the similar such question held that the expression used in Rule 4(1) of the Trustees Rules i.e., cause publication by the competent authority is not mandatory and need not necessarily by the same competent authority but is a quite distinct power which can be exercised by the other authorities in obedience to the directions given by such competent authority including the Government. It is this view, which is now sought to be assailed as not in terms or within the parameters as contemplated under those aforesaid provisions. 6. On a reading of the provisions of the aforesaid Act, the entire procedure in regard to the appointment of trust board is provided for under Sections 15, 17, 19 and 20 of the Act. Under Section 6 of the said Act, all the charitable and religious Institutions have been classified into 3 classes depending on the income and accordingly the competent authorities have been named vis--vis the said income. Under Section 6(A) of the Act, the Institutions whose income only exceeds five lakhs are taken in and the power is conferred on the Government to constitute a trust board. Similarly if the income does not exceed ten lakhs but exceeds five lakhs, the competent authority is the Commissioner of Endowments for the purpose of constituting a board of trustees. The aforesaid provisions contemplate the required satisfaction as to the qualifications etc., For convenience sake, Section 15 of the Act reads as follows: "Sec.15. Appointment of Board of Trustees:- In respect of a charitable or religious institution or endowment included in the list published under clause (a) of Section 6 – (a) whose annual income exceeds rupees ten lakhs, the Government shall constitute a Board of Trustees consisting of (nine) persons appointed by them; [Substituted by Act 26 of 1990 (w.e.f. 21.1.1991)] (b) whose annual income does not exceed rupees ten lakhs, the Commissioner shall constitute a Board of Trustees consisting of [seven] persons appointed by him.
[Substituted by Act 26 of 1990 (w.e.f. 21.1.1991)] (2) In respect of a charitable or religious institution or endowment included in the list published under clause (b) of Section 6, the Deputy Commissioner having jurisdiction shall constitute a Board of Trustees consisting of [seven] persons appointed by him. [Sub. By Act 26 of 1990, w.e.f. 21.1.1991] (3) In the case of any charitable or religious institution or endowment included in the list published under clause (c) of Section 6, the Assistant Commissioner having jurisdiction shall constitute a Board of Trustees consisting of [five] persons appointed by him; [Sub. By Act 26 of 1990, w.e.f. 21.1.1991] Provided that the Assistant Commissioner may either in the interest of the institution or endowment or for any other sufficient cause or for any reasons to be recorded in writing appoint a single trustee instead of a Board of Trustees. 7. Rule 4 which is now under much controversy in this case reads as follows: "4. (1) The authority competent to appoint trustees shall, forthwith on a report received under Rule 3, cause publication of the notice in Form-I. (2) The notice referred to in sub-rule (1) shall be affixed; (i) on the notice board of the office or on the front door of the institution or endowment or in any conspicuous place where there is no Institution; (ii) on the notice board of the Sarpanch, Mandal Revenue Officer, Municipal Office, as the case may be; and (iii) on the notice board of the office of the Commissioner, Regional Joint Commissioner, Deputy Commissioner, Assistant Commissioner, and Inspector as the case may be; Provided that the competent authority may also order of cause publication of the notice in any daily news paper in the language of the locality at the cost of the institution or endowment, if it is situated in big cities and is capable of meeting the cost of publication." 8. From the above under sub-rule (1) thereof, it is contemplated that the authority competent to appoint trustees shall cause publication of notice in Form-I. However, in the aforesaid judgment referred to above in W.P.Nos.1020 and 1337 of 2007 dated 23.02.2007, the learned single Judge has taken an exception to the expression used therein "cause publication" as different from taking out publication or publish notice in Form-I. Such power "cause publication" has been disjuncted.
Since none of the provisions under Sections 15, 17, 19 and 20 of the Act do not contemplate issue of notice by the concerned authority, it was held that such publication need not necessarily by a competent authority itself but such competent authority can even direct causing of such publication in Form-I which is a sufficient compliance with the requirement of law. However, by keeping the whole scheme of the Act and the framework within which the entire hierarchies constituted vis--vis the categories of institutions depending on income only and especially providing for different competent authorities for exercise of powers in respect of each of such institutions, necessarily Rule 4 has to be read in the background thereof and the language as used therein. Therefore, the expression "cause publication" cannot simply be taken away or put it in any distinct or different use or interpretation. The very expression "cause publication" is a qualified one and the provision itself starts with reading that the authority competent to appoint shall cause publication which necessarily means and takes in only one way of interpretation i.e., conferring power to cause such publication by the said authority alone but not to delegate the same to any other authority. Further, any such notice or format as contemplated under Form-I necessarily has to be only in the name of such competent authority but not otherwise or by any other authority other than the competent one. Therefore, it is not a ministerial act, which is sought to be delegated to at the lowest run for any formal implementations or exemptions. Thus, the question of publication by any other authority other than the competent is not the one, which is intended and in fact could defeat the very scheme of the Act. Thus, we regret that we are not in agreement with the view taken by the learned single Judge in the aforesaid judgment. It is now well settled that any interpretation of the provision should stick to the expression as used in the statute and any exercise of power should be in the manner as conferred there under rather than by making any amends thereto. In the circumstances, we hold that the expression "cause publication" cannot be different from to do or to give effect or to exercise as sought to be put by the learned single Judge in the aforesaid decision.
In the circumstances, we hold that the expression "cause publication" cannot be different from to do or to give effect or to exercise as sought to be put by the learned single Judge in the aforesaid decision. The said expression thus takes in the power to act and power to give effect to rather than making it a mere a ministerial act, which can be delegated to the lowest wrong. In view of the aforesaid reasons, we hold that on a reading of Section 15 of the Act and the scheme as contemplated in respect of various Institutions and different categorizations and different competent authorities, the only conclusion which the said Rule 4(1) can be made is that the competent authority alone who has to cause publication in notice in Form-I but not by any other authority. All the institutions are made in three distinct clauses depending on the income and separate authority is constituted for exercise of all powers and control independently. Therefore, there is no scope for transgression by one authority or the other, however, high or low in rank may be. It is now well established that the letter of the statute should be given effect to rather than breaking it and giving scope for any other interpretation unintended. There is a clear distinction in regard to the specific powers which statute confers any authority, the exercise of which is mandatory. Keeping the purpose for which the provision is intended viz., the constitution of trust board necessarily all acts in pursuance thereof should be with the same authority. Further any constitution of the trust board is only after due publications to be made by the competent authority and the same cannot be issued or published by any other authority. The publication totally stands different from the other incidental institution of service of notices as a ministerial act. Therefore, causing of the publication would not include ministerial execution thereof, but necessarily means only the publication thereof. Thus, there is absolutely no justification to take away those expressions and to give a different interpretation allowing such publication to be given effect to or made by any other authority.
Therefore, causing of the publication would not include ministerial execution thereof, but necessarily means only the publication thereof. Thus, there is absolutely no justification to take away those expressions and to give a different interpretation allowing such publication to be given effect to or made by any other authority. Therefore, no such competent authority including the Government has any power to issue any direction to any other authorities down below to cause such publications or issue notice in regard of the acts to be done, for which they alone are competent. 9. The Reference is answered accordingly.