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Sri Bramaramba Chennamalleswara Swami Temple, Isukapdili Vs. theta Narasimharao and ors. - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtAndhra Pradesh High Court
Decided On
Case NumberCriminal Revn. Case No. 30 and Criminal Revn. Petn. No. 30 of 1979
Judge
Reported inAIR1979AP297
ActsAndhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act, 1966 - Sections 2(28), 75, 75(4), 76(2), 78(1) and 82; Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Rules - Rules 11, 13 and 14
AppellantSri Bramaramba Chennamalleswara Swami Temple, Isukapdili
Respondenttheta Narasimharao and ors.
Appellant AdvocateT. Balireddy, Adv.
Respondent AdvocateB.S.A Swamy, Public Prosecutor
Excerpt:
.....assistant commissioner filed report stating respondents encroached upon land belonging to temple - deputy commissioner ordered for delivery of possession of land to managing trustees of temple - respondent contended that land could be delivered only to board of trustees and not to managing trustees - section 75 (4) says that possession of land should be delivered to trustees - expression trustee also includes managing trustees - held, order of deputy commissioner valid. - - ramalingaiah, ravulapalli venkata subhamma and theta srimannarayana (respondents 4, 5, 8, 33, 37 and 40) failed to vacate and deliver possession of the property to the managing trustee sri a. following certain madras decisions, he held that the order of the deputy commissioner ordering delivery of possession of..........is of importance. 2. the assistant commissioner bapatla, filed a report o. a. no. 31/70 before the deputy commissioner, endowments department, vijayawada, under s. 15 of the andhra pradesh charitable and hindu religious institution and endowments act (act no. xvii) of 1966 (hereinafter called 'the act') stating that one kesana narasimhulu and forty other persons had encroached upon survey nos. 58/1 and 38/2 of isukapalli village belonging to sri bramaraml chennamalleswaraswamy temple isukapalli and constructed houses there and hence they should be evicted. it a stated that in a compromise between the archakas of the temple which was a proved by the commissioner this la fell to the share of the temple. it was originally in the possession of the archakas and in the year 1941 one of.....
Judgment:

Gangadhara Rao, J.

1. This case was referred by Muktadar, J. to a Division Bench on the ground that the question raised in the case is of importance.

2. The Assistant Commissioner Bapatla, filed a report O. A. No. 31/70 before the Deputy Commissioner, Endowments Department, Vijayawada, under S. 15 of the Andhra Pradesh Charitable and Hindu Religious Institution and Endowments Act (Act No. XVII) of 1966 (hereinafter called 'the Act') stating that one Kesana Narasimhulu and forty other persons had encroached upon Survey Nos. 58/1 and 38/2 of Isukapalli village belonging to Sri Bramaraml Chennamalleswaraswamy Temple Isukapalli and constructed houses there and hence they should be evicted. It a stated that in a compromise between the Archakas of the temple which was a proved by the Commissioner this la fell to the share of the temple. It was originally in the possession of the Archakas and in the year 1941 one of Archakas leased the lands to one M.Subrahmanyam for a period of ten years for raisins a casuarina tope. On the expiry of the lease, M. Subrahmanyam did not vacate the land Instead he was subleasing it to forty other persons and was not paying any amount to the temple. It was also stated that under the Andhra Pradesh Inams Abolotion Act, a patta was granted to the temple and both land revenue and Municipal taxes were being paid by the temple. A show cause notice was issued to M. Subrahmanyam and the other forty persons under S. 75 (2) of the Act. Subrahmanyam filed a counter stating that he was not a trespasser but was enjoying the land in his own right, lie denied the title of the temple for the land and also the execution of the lease deed in favour of Archakas. The other forty persons admitted the claim of the temple and requested that the land in their possession might be sold to them on payment of market value.

3. Sri Subrahmanyam also filed a petition, O. A. No. 48/1970, under Section 77 (b) of the Act for a declaration that the lands were not properties of the endowments. After an elaborate enquiry, that petition was dismissed on 30-9-1970.

4. Since the issues in both the petitions were the same, the evidence in O.A. No.48/70 was taken into consideration in O. A. No. 31/70. The temple filed sweral documents to show that the lands belong to the deity, that it was paying the taxes and M. Subrahmanyam had executed the lease deeds in favour of the temple. In the light of this evidence, the Deputy Commissioner of Endowments rejected the claim of Sri M. Subrahmanyarn and others and ordered under S. 75 (4) of the Act that all of them should deliver possession of the land to the Managing Trustee within fifteen days from the date of the receipt of his order, failing which action would be taken under S. 16 of the Act. He passed this order on 30th Sept. 1970.

5. All the encroachers vacated tire land. But six of them, viz, Thata Narasimha Rao, Vepuri Subamma, Shaik Mastan, B. Ramalingaiah, Ravulapalli Venkata Subhamma and Theta Srimannarayana (respondents 4, 5, 8, 33, 37 and 40) failed to vacate and deliver possession of the property to the Managing Trustee Sri A. Venkata Ratnam

6. Originally the Deputy Commissioner, Endowments, Gundur filed Criminal Miscellaneous Petition No. 448/74 for eviction of the respondents. When that petition was pending. the Government stayed the operation of the order passed in O.A. No. 31/70. Therefore the Judicial Magistrate of First Class, Repalle, dosed that petition with liberty to tile an application after matter was disposed of by the Government. The Government dismissed the petition and vacated the stay orders on 21-8-1976. There are the Deputy Commissioner. Endowments Gundur filed Criminal Miscellaneous Petition No. 262/77 in the Court of the Judicial Magistrate of First Class Repalle under S. 78 (1) of the Act for eviction of the respondents and for delivery of possession of the land to the Managing Trustee of the temple.

7. The respondents filed a counter in that petition contending inter alia that under S. 75 of the Act the Deputy Commissioner can direct delivery of possession of the land only to the Board of Trustees but not to the Managing Trustee that the copy of the order of the Deputy Commissioner in O.A. No. 31/70 tiled in the court was not genuine, for it differs from the copy of the order that was communicated to them and that they have filed a revision before the Commissioner and it is pending and the Commissioner passed interim orders stating that status quo should he maintained.

8. The learned Magistrate rejected all the contentions of the respondents except one. Following certain Madras decisions, he held that the order of the Deputy Commissioner ordering delivery of possession of the land to the Managing Trustee was bad, Therefore he dismissed the petition Questioning his order, the temple represented by its Managing Trustee has filed this revision.

9. Sri T. Bah Reddy the learnt d counsel for the petitioner has submitted that the learned Magistrate erred in holding that under S. 75 (4) of the Act possession of the land could not he delivered to the Managing Trustee. On the other hand Sri B. S. k Swamy, submitted that possession of the land could be delivered only to the Board of Trustees but not to the Managing Trustee. Alternatively he submitted that the findings of the learned Judge an the other questions (which we will presently refer) are not correct.

10. First, we take up the question whether the order of the Deputy Commissioner dated 30th Sept. 1970 under S. 15 (4) of the Act that possession of the lands of the temple should be delivered to the Managing Trustees is valid or not Section 75 of the Act reads as follows:-

'75. (1) Where the Assistant Commissioner having jurisdiction, either suo motu or upon a complaint made by the trustee, has reason to believe that any person has encroached upon (hereafter in this chapter referred to as encroached any land, building, tank, well, spring or water-course, or any space belonging to the institution or endowment, wherever situated, the Assistant Commissioner shall report the fact together with relevant particulars to the Deputy Commissioner having jurisdiction over the division in which the institution or endowment is situated.

Explanation: For the purpose of this Chapter.................

(i) the expression 'person' shall include an institution, and

(ii) the expression 'encroacher' shall be deemed to include any person or institution who continues to remain in the land or building after the expire or the termination or cancellation of the lease mortgage or license in respect thereof granted to him or it.

(a) Where, on a perusal of the report received by him under sub-sec. (1), the Deputy Commissioner finds that there is a prima facia case of encroachment he shall cause to be served upon the enroacher a notice Specifying the particulars of the encroachment and calling on him to show cause before a certain date why an order requiring him to remove the encroachment before the date specified in the notice should not be made. A copy of the notice shall also be sent to the trustee of the institution or endowment concerned.

(3) The notice referred to in sub-section (2) shall be served in such manner as may be prescribed,

(4). Where after considering the objections, if any, of the encroached received during the period specified in the notice referred to in sub-sec. (2) and after conducting such enquiry as may be prescilbed, the Deputy Commissioner is satisfied that there has been an encroachment, he may by order require, the encroacher to remove the encroachment and deliver possession of the land or building or space encroached upon to the trustee before the date specified in such order.

(5). The order of Deputy Commissioner under sub-sec. (4) shall be in writing and shall contain the grounds on which he has passed the order.''

A reading of Section 75 shows that the Assistant Commissioner having jurisdiction either suo motu or upon a complaint made be the trustee shall report the fact of encroachment to the Deputy Commissioner having jurisdiction over the division in which the institution a endowment is situated, On perusing the report, if the Deputy Commissioner find that there is a prima facie case of encroachment, he should give a notice to the encroacher to show cause before certain date as to why an order requiring him to remove encroachment before the date specified in the notice should not be made. After considering the objections and after conducting such en quiry as may be prescribed, if the Deputy Commissioner is satisfied that then has been an encroachment, he may by order require the encroacher to remove the encroachment and deliver possession of the land to the trustees before the date specified in that order. Sub-sec (4) of S. 75 says that the possession of the lands should be delivered to the trustees

11. Section 76 reads as follows:--

'76. (1) Where within the period specified in the order under sub-sec. (4) of S. 75, the encroacher has not remover the encroachment, and has not vacate the land, building or space, the Deputy Commissioner may apply to the Magistrate of First Class having territorial jurisdiction for eviction of the encroach her and such Magistrate shall, order the eviction of the encroacher from the land building! or space and the delivery of it possession to the executive Officer or where there is no Executive Officer to the trustee, taking such police assistance as may be necessary.

(2) Nothing in sub-sec (1) shall pre vent any person aggrieved by the order of the Deputy Commissioner from instituting a suit in a court to establish that the institution or endowment has no title to the land, building or space.

Provided that no such suit shall instituted by a person who is let into to possession of the land, building or spa by, or who is a lessee, licencee or mortgagee of, the institution or endowment.'

Under S. 76, if the encroacher does not remove the encroachment within period specified in the order under sub sec. (4) of S. 15, the Deputy Commissioner can apply to the Magistrate First Class for evicting the encroacher and that Magistrate shall order the eviction of the encroacher from the land delivery of its possession to the Executive Officer or where there is no Executive Officer, to the trustee.

12. The word 'Trustee' is detained by S. 2 (26) of the Act as meaning any person whether known as mathadhipathi, mohant, dharmakarta, mutwalli, muntazim, or by any other name in whom either alone or in association with any person the administration and management of a temple or religious institution or endowment are vested and vested a Board of trustees. In view of this definition 'trustee' is a person in whom the administration and management of the religious institution is vested, It also includes a Board of Trustees. A (trustee) can be one person or more than one person and it can also be a Board of Trustees 12-A. S. 15 provides for the appointment of Board of Trustees and their term of office. S. 17 provides for the election Or nomination of the Chairman of the Board of Trustees. He will be elected by the members of the Board of Trustees failing which he will be nominated.

13. Rule 11, relating to maintenance and custody of jewels or other valuables and documents of the institution or endowments, Provides that the documents relating to title of a religious institution to Properties and securities and fixed deposit receipts of 'banks etc, shall be under double lock of the Trustee or Chairman of the Board of Trustees and the Executive Officer, if the institution has an Executive Officer. If the Institution has no Executive Officer, they shall be under the double lock of the Trustee or Chairman of the Board of Trustees and such other person as may he decided upon by the Commissioner. According to R. 14, documents other than those referred to in R. 11 shall be in the custody of the Executive Officer and where there is no such Executive Officer, they shall be in the custody of the Trustee err Chain of the Board of Trustees or such other officer as the Chairman may decide, R. 13 of the Rules issued under Ss. 8 (1), 17 and 23 of the Act. in G. O. Ms. No. 376 Home (Endowments-III) dated 20th March, 1969 says that the Chairman or the Executive Officer, as the case may be, shall give effect to the decisions taken at the meeting of the Trust Board. These provisions make it clear that a Managing is also a trustee within the Trustee of S, 2 (28). Therefore, we do not see any reason why possession of the could not be delivered to the Managing Trustee under sub-sec.(4) of S. 75, Apart from that, a reading of S. 76 (1) also strengthens our conclusions, for the Magistrate can direct delivery of possession of the land to the Executive Officer or where there is no Executive Officer, to the trustee. The Managing Trustee represents the Trust Board When he takes possession he takes it an behalf of the Trust Board. Possession of the land could not be physically taken by all trustees together. It is also a routine ad Of management. Therefore, we are of take opinion that the word 'trustee' in sub-sec. (4) of S. 75 also means the Managing Trustee and an order directing deliver of possession of the land to the Managing Trustee is valid.

14. Apart from that, wherever, the word 'trustee' is in the Act, should not be understood as meaning only the Board of Trustees, It should be understood in the context in which the expression is used, otherwise, it will lead to anomalous results. For instance S.16 deals with disqualification of trusteeship S. 18 deals with the cessation of trustee ship on absence from the meeting of the Board of Trustees and S. 19 with vacancy in the office of the non-here ditary trustees and filling Up of such vacancy, Similarly, S. 22 deals with the duties of the trustees and S. 26 with the suspension, removal or dismissal of a trustee. Obviously, in all these section the expression 'trustee' cannot he understood as meaning only the Board or Trustees.

15. Therefore, we hold that the expression 'trustee' in sub-sec. (4) also includes the managing trustee. Bur that, it should not be understood that an order could not be made to deliver possession of the properties to the Trust Board That will also be a valid order If there is one single trustee, obviously possession of the property has to be delivered only to him. If there are more than one trustee, whether the Deputy commissioner could direct delivers of possession only to one of them but not to the managing in trustee or the Trust Board is a question which does not arise in this case and it should not be understood that we are expressing any opinion in that regard.

16. In that connection, we may refer to a decision of this Court in K. Satyanarayana v. Sri Rarnalingeswara Swami Temple ((1964) 2 Andh WR 256). There, the question did not directly arise but some observations made therein do certainly help us. That case arose under S. 87 of the Madras Hindu Religious and Charitable Endowments Act, 1951. That petition was filed by one Satyanarayana alleging to be a hereditary trustee of a Trust Board against the order of the Munsif Magistrate directing him to hand over documents, accounts, and leases in his charge to the Chairman of the Board of Trustees. When it was contended that the trustee cannot ask another trustee or make over Possession of the records etc., Jaganmahan Reddy, J. (as he then was) and Venkatesam J., observed:-

'This collection also is untenable because where there are more than one trustee, it is practically impossible to envisage that all the trustees can be in possession of records. Such an assumption would lead to confusion and chaos and this is the reason why the legislature has provided in S. 40 of the Act that where a Board of Trustees is constituted under S. 39 (i) the Board Shall elect one of its members to be its Chairman and in the case of any other religious institution having more than one trustee, the trustees of such institution shall elect one of their members to be the Chairman and that a Chairman elected under sub-sec. (1) or sub-sec. (2) shall hold office for such period as may be prescribed'

Then, the Teamed judges referred to R. 10 of the Rules framed under the Act and observed that this provision resolves practical difficulties and prescribes a workable scheme for the administration of religions institutions, They further observed that when a statute lays down that a person elected as the Chairman shall exercise the functions under the Act, he must be deemed to be a person appointed under the Act The Chairman is a person appointed to discharge the functions of the trustee of a religious institution within the provisions of S. 40 of the Madras Hindu Religious and Charitable Endowments Act, 1951.

17. Now, we wilt refer to the decision relied upon by the learned Adagistrate as well as by the learned counsel for the respondents. In Ramalingam v, Peria Kali Goundan (1947-2 Mad LJ 109) a scheme was settled by the Hindu Religious Endowments Board under S. 63 of the Madras Hindu Religious Endownments Act, 1927, for the Devasthanam. The scheme vested the administration of the temples in the hereditary trustees and three non-hereditary trustees. It also provided that the Board shall have the power to appoint a managing trustee from among the trustees for a period of one year. He was to have power to do certain routine acts of day-to-day management. He was given power to represent the Devasthanam in all suits and proceedings. in a suit under S,63 (4) of the Act Objecting to the framina of a scheme and to the provisions of the scheme framed, the District judge modified the Scheme. On an appeal, objecting to the provisions of the scheme, the High Court held that the provision in the scheme that each hereditary trustee should act as a managing trustee in rotation for two Years was valid. It was also held that clause 5 (e) of the scheme empowering the Managing Trustee to represent the temple in all suits and proceedings was not valid since the trust can Only be represented in such matters by all the trustees.

18. In M. Angappan v, Deputy Commissioner Hindu Religious and Charitable Endowments, Madras (1965-1 Mad LJ 151), Ramachandra Iyer and Venkatadri. JJ. held that an application far the issue of a certificate under S. 101 of the Madras Hindu Religious and Charitable Endowments Act, 1959, by one only of the trustees where there are more than One even if he happens to he the Chairman of the Board of Trustees or the managing trustee Would be incompetent and it would be necessary that the entire body of trustees Should apply. It was observed that on a reading of the section it was clear that when a single trustee was appointed, he would have the right to apply for the certificate and then, armed with the certificate apply again to the Magistrate for being put in possession or the property of the institution But when more than one trustee have been appointed, all of them Should apply together. In that connection it was observed that it is well settled that in the case of trustees the office is a joint one, all of them forming as it were, one collective body and they should therefore execute the duties of their office in their joint capacity, It will undoubtedly be open to them in matters of routine nature to divide their duties. But so far as their applications to Courts and to public authorities for endorsement of statutory rights or privileges are concerned they should all figure as a party or apply for the same.

14. In P. V. Ruppapyandi Pillai v, Veerakutty Gounder (1966-2 Mad LJ 152), it was held by Venkataraman, J, that an application under S. 101 of the Madras Hindu Religious and Charitable Endowments Act, 1959, has to be made by all the trustees appointed by the Area Committee and the fact that one of the Trustees had resigned but his resignation had not been accepted by the Commissioner on the date of the application for delivery under S. 101 renders the application as if that trustee had not joined in the application. It was further held such an application under S. 101 was not maintainable. In this connection, the learned Judge followed the division bench decision in Angappan v. Deputy Commr, Rindu Religious and Charitable Endowments (supra).

20. There can be no dispute of the legal proposition that in the case of cotrustees, the office is a joint one and all of them should execute the duties of their office in their joint capacities. But the decisions in Ansappan v. Deputy Commissioner, Hindu Religious and Charitable Endowments (supra) and P, V. Kuppayandi Pillai v. Veerakutti Gounder (supra) are clearly distinguishable. They are cases in which petitions were filed under S. 101 of the Madras Hindu Religious and Charitable Endowments Act, 1959. That provision is in a way Similar to S. 87 of the Madras Hindu Religious and Charitable Endownments Act, 1951, and S. 93 of the Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act, 1966. But in the case on hand, we are dealing with the provisions of Ss. 75 and 76 of the Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act. 1966. These two Provisions are entirely different. There is no question of applying for a certificate and approach the Magistrate with that certificate, Under S. 75 what is essential is a report by the Assistant Commissioner. He can do it suo motu or upon a complaint made by the trustee. Thereupon the Deputy Commr. passes an order requiring the encroacher to remove the encroachment and deliver possession of the land to the trustee. If he fails to do so, the Deputy Commissioner can apply to the Magistrate of the First Class for the eviction of the encroacher. Thus, the provisions of Ss. 75 and 76 are entirely different, Apart from that, in the case on hand, it is not the trustees that filed the application for removal of encroachment. A report was submitted suo motu by the Assistant Commissioner. Consequently, those decisions are distinguishable both on law and fact. Therefore, we do not agree with the learned Magistrate that the order of the Deputy Commissioner is bad because he had directed delivery of Possession of the properties to the Managing Trustee.

21. Next, it was submitted by the learned Counsel for the respondents, that typed copy of the order of the Deputy Commissioner, enclosed to the petition, was not a true ropy of the origin order, for it differs with the stencil copy Supplied to the respondents. In the copy supplied to the respondents, the property is described as 'door No. 58 (2)', but in the copy of order filed by the petitioner, it is mentioned as 'D. No. 58 (2).'' It is further submitted that the copy filed by the petitioner does not bear the seal. The property in question i. situate in D. No. 58/2. We see no reason to hold that the copy of the order filed by the petitioner is not genuine. The copy filed by the respondents is stenciled. It may be that while stenciling the mistake has occurred in mentioning D. No. as 'Door No.' Even the body of the stencil copy shows that it refers only to D. No. 58 (2). Further, there is no dispute with regard to the identity of the land. We therefore reject this contention.

22. It was next submitted by the learned Counsel for the respondents that the finding of the learned Magistrate that the Commissioner has no power to revise the orders of the Deputy Commissioner and the orders passed by him for maintaining status quo Is not correct To appreciate this question, it is necessary to state a few facts. After the Deputy Commissioner passed an order for eviction of the respondents, they made a representation before the Government The Government admitted it and granted interim stay. Thereafter, the Government rejected that petition on 21-8-1976 and directed the Commissioner to look into the matter personally and settle the same at an early date. Thereafter, Sri Basabathuni Ramalingaiah filed a petition before the Commissioner praying for settlement of the matter and for stay. The Commissioner by his order dt. 4-9-1976 stated that status quo should be maintained and action taken to finalise the matter. I am informed that that petition is still pending; before the Commissioner. It is submitted by the learned Counsel for the respondents that in view of the orders passed by the Commissioner the Petition by the Deputy Commissioner is not maintainable. On the other hand, it is contended by the petitioner that no revision lies to the Commissioner against the order of the Deputy Commissioner under S. 75 (4) of the Act and the remedy of the respondents is only to file a suit. The learned Magistrate observed that no appeal or revision lies against the order of the Deputy Commissioner under S. 75 and the remedy of the respondents was only to file a suit as provided in S. 76 (2) of the Act. On the facts of this case, we are unable to agree with the finding of the learned Magistrate. Sub-sec (2) of S. 76 provides that a person aggrieved by the order of the Deputy Commissioner under sub-sec. (1) can institute a suit in a court to establish that the institution or the endowment has no title to the land, building or placer provided that no such suit shall be instituted by a person who is let into the possession of the land, building or space by, or who is a lessee, licensee or mortgagee of, the institution or endowment, Thus, a suit can be filed only to establish that the institution has no title to the land. It cannot be filed by a person who let into the possession of the land by a lessee of the institution, in this case, the respondents never denied the title of the temple for the land in question. The finding of the Deputy Commissioner is that the land was leased by one of the Archakas of the temple to Shri M. Subanyam and in his turn he has subleased it to the other persons including the respondents. Therefore, they cannot file a suit under Sub-sec. (2) of S. 76. If so we are of the opinion that they can file a revision against the order of the Deputy Commissioner before the Commissioner under Section 82 of the Act Consequently, we set aside the finding of the learned Magistrate that the Commissioner has no power to revise the order of the Deputy Commissioner in question and the order passed by him for maintaining status quo would have no effect. It is for the Commissioner to decide whether the representation could be treated as a revision. The petitioner when given notice could raise whatever objections he wants in that regard before the Commissioner.

23. Before we conclude, we have to state that possession of the land was delivered to the temple on 11-8-1977 and a suit also was filed by the temple against the respondents in O. S. No. 401/77 in the Court of the Prl. District Munsif, Repalle, for a permanent injunction

24. In the result, we reverse the order of the Magistrate and allow the petitioner filed by the Deputy Commissioner, Accordingly, the revision is allowed.

25. Revision allowed


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