THE HON'BLE SRI JUSTICE P.S.NARAYANA W.P.M.P.No.11211 of 2007 and
Writ Petition No.2506 of 2007 Dated: 27th November, 2007
Between :-
Suriti Krishna .. Petitioner And The Government of Andhra Pradesh, Revenue (Endt.II/1) Department, Secretariat, Hyderabad and 4 others .. Respondents THE HON'BLE SRI JUSTICE P.S.NARAYANA W.P.M.P.No.11211 of 2007 and Writ Petition No.2506 of 2007
ORDER:-
Heard Sri V.Tulasi Reddy, the learned Counsel representing the writ petitioner and the learned A.G.P. for Endowments and Sri Satish Kumar, the Counsel representing respondents.
2. This Court issued rule nisi on 12-2-2007 and granted interim suspension in W.P.M.P.No.3216/2007.
3. The learned Counsel representing the petitioner placed strong reliance on the order made by this Court dated 11-10-2007 in W.P.Nos.984 and 1364 of 2007 and would maintain that in the light of the same, the Writ Petition to be allowed.
4. The learned A.G.P. for Endowments however placed strong reliance on Section 94 of the Andhra Pradesh Charitable and Hindu Religious Institutions & Endowments Act, 1987 (hereinafter, in short, would be referred to as ‘the Act’ for the purpose of convenience) and would maintain that such power of Review can be exercised.
5. Heard the Counsel.
6. The matter is coming under the interlocutory caption but however at the request of the Counsel, the Writ Petition is being disposed of finally.
7. The Writ Petition is filed for a Writ of Certiorari calling for the records of the respondent No.1 in G.O.Ms.No.112 Revenue (Endt.II/1) Department dated 1-2-2007 and quash the same as arbitrary, illegal, high handed and without jurisdiction in the interest of justice and equity and pass such other suitable orders.
8. The said G.O.Ms.No.112, Revenue (Endowments.II/1) Department, dt.1-2-2002 reads as hereunder:-
GOVERNMENT OF ANDHRA PRADESH ABSTRACT Endowments – Religious – Sri Ujjani Mahankali Temple, Secunderabad – Review Petition filed under Section 94 of Endowments Act 1987 filed by Sri M.Balakrishna, against the orders issued in G.O.Ms.No.150, Revenue (Endts.II/1) Department, dt.10-2-2004 – Disposed of – Orders – Issued.
Revenue (Endowments.II/1) Department
G.O.Ms.No.112 Dated 01-02-2002
Read the following:
(1) G.O.Ms.No.150, Revenue (Endts.II/1) Department dated 10-2-2004.
(2) Review Petition filed by Sri M.R.Balakrishna, S/o.Ramulu, R/o.1-6-219, Condoli Bazar, Secunderabad.
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ORDER:-
In the G.O. first read above, under Section 15(1) of the Andhra Pradesh Charitable and Hindu Religious Institutions & Endowments Act, 1987 (Act No.30 of 1987) read with Explanation under sub- Section (1) of Section 17 as amended in Act 27 of 2002, orders were issued recognizing Sri Suriti Krishna, S/o.Late Laxmaiah, R/o.Dwarakanagar, Vanasthalipuram, Hyderabad as a Member of Founder’s Family of Sri Ujjaini Mahankali Temple, Secunderabad.
2. Aggrieved by the said order, Sri M.R.Balakrishna filed a Review Petition under Section 94 of the said Act. Heard the case and perused the material available on record.
3. It is on record that, Sri Ujjaini Mahankali Devasthanam situated at Secunderabad was registered in the Books of Endowments at Serial No.603 in File No.17/2 of 1356 Fasli. The name of his grand father late Sri Suriti Kistayya was entered in Column No.11 of the Munthakab as Muthavalli and that as per the compromise decree in O.S.No.48 of 31 Sri Suriti Kistayya grand father of the petitioner was given right to be a life time member of the management committee and his right would devolve after his death, in any member of his family standing in agnatic relationship not more than (3) degrees. Late Sri Suriti Kistayya had executed a Will on 24-3- 1946 in favour of late Sri Suriti Laxmayya and on 7- 8-1946 gave G.P.A. to late Sri Laxmayya as per the Will. After his grand father’s death, Sri Suriti Laxmayya was declared as successor of his father by the then Assistant Director, Endowments as Muthavalli. But, the said orders of the Assistant Director, Endowments were set aside by the Director of Endowments on an Appeal filed by the Management of the Temple and this order was also confirmed by the Board of Revenue.
4. Aggrieved by the order of Board of Revenue late Sri Suriti Laxmayya has filed an Appeal in the year 1958 before the Government, but, no orders were passed by the Government. Thus, neither his grand father Suriti Kistayya nor his father Suriti Laxmayya ever managed the Temple exclusively, and the management was always vested in a Committee constituted by the Department and late Suriti Laxmayya the father of the petitioner was appointed as one of the Non-Hereditary Trustees to this Temple on 15-6-1971. As seen from the Scheme laid down by the District Court, Secunderabad in O.S.No.48 of 31 as modified by the Judgment of District Judge, Secunderabad in M.P.No.645 of 43 in O.S.No.48 of 31, dated 28-6- 1943, the petitioner cannot claim exclusive right to the management, but, he has a right to be a member in the Management Committee.
5. It is also on record that, Sri Suriti Laxmayya the father of the petitioner has filed an application under Section 77 of the Act in O.A.No.13 of 1980 of 1966 (repealed) before the Deputy Commissioner, Endowments Department, Hyderabad requesting to declare him as Hereditary Trustee of the subject Temple and also to declare, that, he is entitled to the perquisites and emoluments attached to the office of the Trustee. While allowing the petitioner partly, the Deputy Commissioner, Endowments Department, Hyderabad by his Order No.19 dated 6-2-1985 has rejected his claim as Hereditary Trustee of the subject Temple, but, his petition was partly allowed to the extent of recognizing the rights of the petitioner to be a Hereditary Servicedar in the Temple to perform the services being performed by the petitioner as per usage and custom and to receive the honours and emoluments.
6. Thereupon, Sri Suriti Krishna has filed an application under Section 87 of Act 30 of 1987 before the Deputy Commissioner of Endowments Department, Hyderabad with a request to allow him to perform all services as per the usage and custom in the Temple and he should be allowed to have the honours like wearing “Kankanam” before Annual festival and he should be paid the emoluments which are being paid as per usage and custom.
While allowing the petition, the Deputy Commissioner of Endowments Department, Hyderabad by his Order No.5, dated 9-2-1994 in P.A.No.11 of 1991 held, that, the petitioner is entitled to perform the services in the Temple as was done by his late father and he is also entitled to receive the honours and the Endowments, Hyderabad in O.A.No.13/80 in view of the services rendered by Sri Suriti Krishna as per the usage and customs. Further the Deputy Commissioner held that whenever the Non-Hereditary Trust Board is constituted, Sri Suriti Krishna or any one of his family members is entitled for appointment as Non Hereditary Trustees under Section 17(1) of the Act 30 of 1987.
7. While the matter stood thus, the Hon'ble Supreme Court in its Judgment dated 17-1-1996 in W.P.No.713 of 1987 has upheld the relevant provisions of the Act 30 of 1987 abolishing hereditary rights and at the same time upheld the rights of the Founder and a Member of his family to head the Board of Trustees. In pursuance of these orders, Sri Suriti Krishna has filed an application before the Assistant Commissioner, Endowments Department, Twin Cities, Hyderabad, to declare him as Member belonging to the family of the Founder of the subject Temple. After due conduct of enquiry, the Assistant Commissioner, Endowments, Twin Cities, Hyderabad vide his proceedings No.C/5405/96, dated 20-11-1997 has passed orders rejecting his claim for Founder Trusteeship.
8. Assailing the said orders of the Assistant Commissioner, Endowments Department, Twin Cities, Hyderabad, Sri Suriti Krishna has filed an application before the Deputy Commissioner, Endowments Department, Hyderabad under Section 45 read with Section 87(1) of the Act for declaration that he is the member of the Founder's Family. The Deputy Commissioner of Endowments, Hyderabad, by his Order No.12, dated 30-6-1998 in O.A.No.44 of 1997 has also dismissed the petition.
9. Aggrieved by the orders passed by the Deputy Commissioner of Endowments, Hyderabad in O.A.No.44 of 1997 Sri Suriti Krishna has filed a C.M.A.No.205 of 1998 on the file of the Chief Judge, City Civil Court, Hyderabad. While allowing the Appeal, the Hon'ble Court has passed orders declaring the petitioner as the Member of the Founder's Family of the subject Temple and also held that he is entitled for appointment as Non- Hereditary Trustee whenever Non Hereditary Trust Board is constituted.
10. Against the orders of the Hon'ble Chief Judge, City Civil Court, Hyderabad, the Executive Officer of Sri Ujjaini Mahankali Temple, Secunderabad along with the Deputy Commissioner and the Assistant Commissioner of Endowments have filed C.M.A.No.205 of 1998, C.R.P.No.2716 of 2002 on the file of the Hon'ble High Court of Andhra Pradesh, Hyderabad. The Civil Revision Petition was allowed in part setting aside the order dated 21-2-2002 passed in C.M.A.No.205 of 1998 on the file of the Chief Judge, City Civil Court, Hyderabad, to the extent of declaring the entitlement of Sri Suriti Krishna to be appointed as Non Hereditary Trustee of the Endowments concerned.
11. It is observed that, Sri Suriti Krishna mainly relying upon a Munthakab, wherein, it has been mentioned that, the petitioner’s father was recognized as Muthavalli of the subject Temple. Sri Suriti Krishna has contended that, his father had executed a Will Deed on 26-7-1984 bestowing the hereditary rights of the said Temple in his favour, but it does not confer any rights with regard to the recognition of founder’s trustee.
12. Whereas, Sri Suriti Krishna filed a W.P.No.20314 of 2003 before the Hon'ble High Court of Andhra Pradesh and the Hon'ble High Court in its order dated 24-8-2003 directed the Government to consider the representation of the individual. Accordingly, orders have been passed in G.O.Ms.No.150 (Revenue (Endts.II/1) Department, dated 10-2-2004 recognizing Sri Suriti Krishna S/o.Late Laxmaiah, R/o.Dwarakanagar, Vanasthalipuram, Hyderabad as a Member of Founder's Family of Sri Ujjaini Mahankali Temple, Secunderabad.
13. Aggrieved by the said order issued in G.O.Ms.No.150, Revenue (Endts.II/1) Department, dt.10-2-2004 Sri M.R.Balakrishna filed a Review Petition under Section 94 of the Endowments Act 1987.
14. Having regard to the circumstances of the case, Government have observed that, the Assistant Commissioner of Endowments Department, Twin Cities, Hyderabad has rightly dismissed the claim of Sri Suriti Krishna for declaring him as Member of Founder's Family of the said Temple and rightly confirmed by the Deputy Commissioner of Endowments, Hyderabad in O.A.No.44 of 1997 and the declaration sought for by Sri Suriti Krishna to declare him as Member of Founder's Family of Sri Ujjaini Mahankali Devasthanam, Secunderabad is observed as misconceived. U/s.87 of the Act 30 of 1987 the appellate authority against the orders of the Deputy Commissioner concerned is the City Civil Court only, but not the Government.
15. It is also observed that, the orders issued in G.O.Ms.No.150, Revenue (Endts.II/1) Department, dt.10-2-2004 are contrary to the above statutory provisions of Section 87 of the said Act.
16. for the foregoing reasons, the Review Petition filed by Sri M.R.Balakrishna is allowed and the orders issued in G.O.Ms.No.150, Revenue (Endts.II/1) Department, dt.10-2-2004 are hereby cancelled and the matter is remanded back to the Deputy Commissioner of Endowments, Hyderabad. The Deputy Commissioner of Endowments, Hyderabad is directed to take the matter afresh and dispose of the matter on merits. ARCIL the parties are requested to approach the Deputy Commissioner and submit their claims on the subject matter before the Deputy Commissioner of Endowments, Hyderabad if they are interested.
(BY ORDER AND IN THE NAME OF THE GOVERNOR OF ANDHRA PRADESH) I.V.Subba Rao Principal Secretary to Government
9. It is averred by the petitioner in the affidavit filed in support of the Writ Petition that in the year 1815 the Grate Grand Father of his Grand Father by name Sri Suriti Appaiah has installed the wooden Idol of Sri Mahankali Ammavaru and that thereafter, when a big well situated at the site of the Temple was being repaired, the idol of Sri Manikyala Devi Ammavaru was surfaced, which was also installed therein by him and thereafter in the year 1964 again Sri Suriti Appaiah has got the present idol of Sri Ujjaini Mahankali Ammavaru and got installed and to the right side of Sri Ujjaini Mahankali Devi Ammavaru, the idol of Sri Manikyala Devi Ammavaru has been installed by him an also stated that thereafter, his son Sri Suriti Sanjeevaiah, after him Suriti Lakshmaih, Suriti Kistaiah and Suriti Laksmaiah have managed the Temple before the same was taken over by the Wakf Department in 1356 Fasli and the same was notified in the Gazette and in column No.11 of the Gazette the name of the father of the petitioner’s great grand father by name Suriti Kishtaiah has been shown as the Trustee, which is also stated in para 3 of the impugned order. It is also stated by the petitioner that in the Gazette his ancestors have been officially recognized as the founders of the subject Temple and consistently have been appointed as the Trustees of the subject Temple. It is further stated that after the enactment of the Charitable and Hindu Religious Act 17/1966, the subject Temple was taken over by the Endowments Department and consistently from the booklets published on every occasions of Jatara and Festivals, the respondent No.4 the history of the Temple. Further it is stated that it has been admitted and consistent case of the Endowments Department that the subject Temple has been established by Sri Suriti Appaiah, the great grand father of petitioner’s grand father in the year 1815 and recognized in 1964 and his successors have participated in the rituals of the Temple, which has been taken by the Endowments Department in the year 1953. Further it is averred by the petitioner that prior to the taking over of the subject Temple by the Endowments Department, the father of his grand father by name Suriti Kistaiah was regularized as the Muthavalli of the subject Temple and subsequent to his death, his grand father. It is also averred by the petitioner that in the year 1971 the respondent No.3 by his proceedings D.Dis.No.2466/7-B dated 15-6-1971 has recognized his father Sri Suriti Lakshmaiah as the Member of Founder's Family of the subject Temple and that his fore-fathers have managed the Temple and as such he has been appointed as a trustee and it is also mentioned therein that he was the trustee more than a decade. It is also further averred by the petitioner that after the death of his father in the year 1985 though he was partitipating the jataras in the subject Temple, the respondents herein have not appointed him as one of the trustees to the subject Temple, as such he had filed O.A.No.11/1991 before the respondent No.3 herein and the same was disposed of by the respondent No.3 by order dated 9-2- 1994 holding that the petitioner is entitled the performance of service of the subject Temple and that he is entitled to receive honours and emoluments in the subject Temple as declared in O.A.No.13/80 dated 6-2-1985 and that whenever a Non Hereditary Trust Board is constituted the petitioner is entitled to be appointed as Non Hereditary Trustee under Section 17 of the Act, following which the petitioner had been appointed as one of the Non Hereditary Trustee under Section 17 of the Act in the year 1994. It is also further averred by the petitioner that pursuant to the Judgment of the Hon'ble Supreme Court of India reported in AIR 1996 S.C., 1023, wherein the Hon'ble Supreme Court has held that a Member of the Founders Family of the Temple has to be appointed as one of the Trustees under Section 17 of the Act and also as the Chairman of the Trust Board. It is also stated by the petitioner that thereafter he made repeated requests and representations to the respondents herein to appoint him as one of the Trustees to the subject Temple being the Member of Founder's Family, but as per the circular instructions issued by the respondent No.2 herein, he has to file a petition before the Assistant Commissioner of Endowments, Twin Cities, Hyderabad to recognize him as the Member of Founder's Family of the subject Temple but the same has been erroneously rejected by the Assistant Commissioner by order in No.12 dated 30-6- 1998 questioning which the petitioner had filed O.A.No.44/97 before the Deputy Commissioner of Endowments and the same was also erroneously dismissed, against which the petitioner had filed C.M.A.No.205/98 on the file of the Chief Judge, City Civil Court, Hyderabad under the provisions of the Act and the same was allowed by the learned Judge by Judgment dated 21-1-2002 declaring that the petitioner is the Member of Founder's Family entitled to be appointed as Non Hereditary Trustee of the subject Temple, by setting aside the order passed by the Assistant Commissioner and Deputy Commissioner of Endowments and also further stated that questioning the same, C.R.P.No.2716/2002 was filed before trial Court under Section 91 of the Act mainly contending that the proceedings of seeking to recognize the petitioner as the member of the founders family are not properly initiated and the authorities considered including the appellate authority the Chief Judge, City Civil Court are beyond the scope of the provisions of the Act, as the subject Temple fall in the category of 6(a)(ii) of the Act which the 1st respondent herein the Government of Andhra Pradesh is the competent authority for appointment of trustees and the declaration of founder trustee. It is also further stated by the petitioner that accepting the said contention regarding the lack of jurisdiction to the authorities, who considered his application for appointment as the Member of Founder's Family, this Court was pleased to allow the C.R.P. and set aside the order passed by the learned Chief Judge, City Civil Court, Hyderabad and it has been observed by this Court that all the benefits conferred on the petitioner in O.A.No.11/91 dated 9-2-1994 shall remain un-altered. Further it is stated that in view of the order of this Court, the petitioner had filed a petition before the 1st respondent on 5-5-2003 along with the relevant documents requesting the respondent No.1 herein to declare the petitioner as Member of Founder's Family. It is also further stated by the petitioner that elaborate enquiry was conducted by the respondent No.1 and passed order in G.O.Ms.No.150, Revenue (Endts.II/1) Department, dt.10-2-2004 recognizing the petitioner as the Member of Founder's Family of the subject Temple and the said G.O. reads as hereunder:-
GOVERNMENT OF ANDHRA PRADESH ABSTRACT Endowments – Religious – Sri Ujjaini Mahankali Temple, Secunderabad – Recognition of Sri Suriti Krishna as Member of Founder's Family of Sri Ujjaini Mahankali Temple, Secunderabad – Orders – issued.
Revenue (Endowments.II/1) Department G.O.Ms.No.150 Dated the 10th February, 2004
Read the following:-
(1) Representation from Sri Suriti Krishna, S/o. late Lakshmaiah, R/o.Dwarakanagar, Vanasthalipuram, Hyderabad dated 25-6- 2002.
(2) Government Memo.No.22346/Endts.II(1)/2002-1, dated 19-7-2002.
(3) From the Commissioner, Endowments Department, Hyderabad Lr.No.D2/2365/02, dated 26-8-2002 and 9-9-2002.
(4) Government Memo.No.22346/Endts.II(1)/2002, dated 16-
9-2002.
(5) From the Commissioner, Endowments Department, Hyderabad Lr.No.D2/2365/02, dated 24-9-2002.
(6) Representation from Sri Suriti Krishna, S/o. late Lakshmaiah, R/o.Dwarakanagar, Vanasthalipuram, Hyderabad
(7) Government Memo.No.22346/Endts.II(1)/2002-6, dated 21-7-2003 and 27-7-2003.
(8) Representation from Sri Suriti Krishna, S/o.
late Lakshmaiah, R/o.Dwarakanagar, Vanasthalipuram, Hyderabad dated 29-9- 2003.
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ORDER:-
Under Section 15(1) of the Andhra Pradesh Charitable and Hindu Religious Institutions & Endowments Act, 1987 (Act 30/1987) read with under Explanation II under sub-Section (1) of Section 17 as amended in Act No.27 of 2002, Government hereby recognize Sri Suriti Krishna, S/o.late Lakshmaiah, R/o.Dwarakanagar, Vanastalipuram, Hyderabad as a Member of Founder's Family of Sri Ujjaini Mahankali Temple, Secunderabad, Hyderabad District.
2. The Commissioner, Endowments Department, Hyderabad shall take necessary action accordingly.
(BY ORDER AND IN THE NAME OF THE GOVERNOR OF ANDHRA PRADESH) J.P.Murthy, Principal Secretary to Government It is also further stated that inspite of the orders passed by the respondent No.1 herein in recognizing the petitioner as the Member of Founder's Family, the respondent No.2 to 4 herein have not taken steps to appoint the petitioner as the trustee being the Member of Founder's Family, thereupon the petitioner was constrained to file W.P.No.6541/2004 which was disposed of by this Court after hearing the Government Pleader and the Standing Counsel of the respondents, by order dt.6-4-2004 holding that in view of G.O.Ms.No.150, the petitioner is entitled to be appointed as one of the trustees of the Trust Board and accordingly directed the respondents to constitute the Trust Board. In W.P.No.6541/2004 the following Order was made:-
“The grievance of the petitioner is that though the petitioner was declared as member of the founder’s family of Sri Ujjaini Mahankali Temple, Secunderabad, Hyderabad District, the Trust Board was not constituted including the petitioner, where he would be declared as Chairman of such Trust Board. Admittedly, an order has been passed by the 1st respondent dated 10-2-2004 in which the petitioner was declared as Member of the Founder’s Family of the Temple in question. In view of the fact that the petitioner was declared as member of the founder’s family, the petitioner is entitled to be appointed as one of the trustees of the Trust Board. The further grievance of the petitioner is that no Trust Board has been constituted to the Temple in question. Therefore, the petitioner sought for a direction to the respondents.
In view of the above circumstances, the Writ Petition is disposed of at the admission stage itself, directing the respondents to constitute a Trust Board to administer the management of the Temple in question, expeditiously.”
It is also further stated that inspite of the orders of this Court the respondents have not constitute the Trust Board even till today. However, the petitioner written statement recognized as the member of the founder’s family and conferred with the benefits of the founder’s family. It is further averred that on three occasions the respondent No.3 had declared the petitioner’s family as the members of the founder’s family even under the provisions of the present Act and the same had attained finality. The petitioner further averred that while things stood thus, respondent No.5 filed a Review Petition before the 1st respondent purporting to be under Section 904 of the Act, after two years of his recognition of a member of the founder family, alleging that he is a ardent devotee of the subject Temple and that the respondents have unjustly recognized him as the Member of Founder's Family, while vaguely stating various facts without any documents in support of his case and requested the Government to review the order passed by the Government and set aside the same, without stating any cause of action or grievance and any relief sought in his favour. R.1 instead of rejecting the petition filed by the respondent No.5 herein, being vague, baseless, illegal and without jurisdiction, for the reasons best known to them, have entertained the same and issued notices to the petitioner and respondent No.4 herein. Further it is stated that the petitioner had filed the counter to the Review Petition filed by the respondent No.5 stating that the respondent No.5 herein is a stranger and is not a interested person and he has no locus standi to question the order passed under G.O.Ms.No.150 and that the petition under Section 94 of the Act is not maintainable, as the order passed by the 1st respondent under G.O.Ms.No.150 was under Sections 15 and 17 of the Act, whereas the Act confers the provisions and jurisdiction in the 1st respondent to review any order passed under Section 93 of the Act and Section 93 of the Act confers the powers on the 1st respondent either suo motu or on an application to call for and examine the records of the subordinate authorities. Sections 93 and 94 of the Act also had been referred to in the affidavit filed in support of the Writ Petition. It is also further stated that R.1 herein issued orders dated 1-2-2007 in G.O.Ms.No.112, which have served on the petitioner on 6- 2-2007, wherein by simply extracting the facts of the case, without even considering as to what is the case and grievance of the Review Petitioner, without discussing any of the documents and counters filed by them and without examining the question of jurisdiction and authority to entertain the Review Petition, the 1st respondent herein has passed G.O.Ms.No.112, which is impugned herein. It is also stated that it will amount getting over the orders made by this Court in C.R.P.No.2716/2002 and the said Order at paras 8 and 9 it was observed as hereunder:-
“The respondent herein filed application before the Commissioner, Endowments Department to declare him that he is a Member of the Founder Family of endowment concerned. Admittedly, the endowment concerned falls in the category of institutions under Section 6(a)(ii), Under Section 15 of the Act, the Government is competent authority to appoint of Board of Trustees in respect of institutions falling under the category of Section 6(a)(ii) of the Act. The learned Chief Judge in exercising the appellate jurisdiction against the order passed by the Deputy Commissioner declared that the respondent is entitled for appointment as Non Hereditary Trustee. The Deputy Commissioner before whom the respondent moved the application is not the competent authority to appoint the respondent as a member of the Board of Trustees since the endowment concerned falls within the category of Section 6(a)(ii) of the Act. When the Deputy Commissioner is not competent to appoint Board of Trustees to the endowment concerned, it is beyond the scope of C.M.A.No.205/98 on the file of Chief Judge, City Civil Court, Hyderabad to consider whether the respondent herein is entitled for appointment as Non Hereditary Trustee. Therefore, the order of the Chief Judge declaring that the petitioner is entitled for appointment as Non Hereditary Trustee is set aside. But all the benefits conferred on the respondent herein as per orders dated 9-2-1994 in O.A.No.11/91 shall remain unaltered.
In the result, the Civil Revision Petition is allowed in part setting aside the order dated 21- 2-2002 passed in C.M.A.No.205 of 1998 on the file of Chief Judge, City Civil Court, Hyderabad to the extent of declaring the entitlement of the respondent herein to be appointed as Non Hereditary Trustee of the endowment concerned. No costs.”
10. Implead application had been filed W.P.M.P.No.11211/2007 and the same is hereby ordered.
11. In W.V.M.P.No.1811/2007, several facts had been averred. It is averred that Sri Ujjaini Mahankali Temple is a famous Temple in Twin Cities of Hyderabad and Secunderabad which was registered in the books of Endowments at Senior No.603 in file No.17/2 of 1356 Fasli and the same is published and notified under Section 6(A) of the Endowments Act 30 of 1987. It is a fact that the successors of the petitioner have participated in the rituals of the Temple, as such the petitioner’s father also was permitted to participate in the rituals as successor and also stated that he name of his grand father late Suriti Kistayya was entered in column No.11 of the Munthakab as Muthavalli and that as per the compromise decree in O.S.No.48 of 31, Suriti Kistayya, grand father of the petitioner was given right to be a life time member of the management committee and his right would devolve after his death, in any member of his family standing in agnatic relationship not more than (3) degrees. Late Suriti Kistayya had executed a will on 24-3- 1996 in favour of late Suriti Laxmayya and on 7-8-1946 gave G.P.A. to late Suriti Laxmayya as per the will and also stated that after his grand father’s death, Suriti Laxmayya was declared as successor of his father by the then Assistant Director of Endowments as Muthavalli. But, the said orders of the Assistant Director of Endowments were set aside by the Director of Endowments on an appeal filed by the management of the Temple and this order was also confirmed by the Board of Revenue. Aggrieved by the order of Board of Revenue, late Suriti Laxmayya had filed an appeal in the year 1958 before the Government, but no orders were passed. Further it is stated that thus, neither the petitioner’s grand father Suriti Kistayya nor his father Suriti Laxmayya ever managed the Temple and the management was always vested in a Committee constituted by the Department and late Suriti Laxmayya, the father of the petitioner was appointed as one of the Non Hereditary Trustees to this Temple on 15-6-1971. As seen from the scheme laid down by the District Court, Secunderabad in O.S.No.48 of 31 as modified by the Judgment of the District Judge, Secunderabad in M.P.No.645 of 43 in O.S.No.48 of 31, dated 28-6-1943, the petitioner cannot claim exclusive right to the management but he has a right to be a member in the management committee. It is further stated that as per the record, late Suriti Laxmayya, the father of the petitioner had filed an application under Section 77 of the Act in O.A.No.13 of 1980 of 1966 (repealed) before the Deputy Commissioner of Endowments, Hyderabad requesting to declare him as Hereditary Trustee of the subject Temple and also to declare that he is entitled to the perquisites and emoluments attached to the office of the Trustee. While allowing the petition partly, the Deputy Commissioner of Endowments, Hyderabad by his Order No.19, dated 6-2-1985 has rejected his claim as Hereditary Trustee of the subject Temple, but his petition was partly allowed to the extent of recognizing the rights of the petitioner to be a Hereditary Servicedar in the Temple to perform the services being performed by the petitioner as per usage and custom and to receive the honours and emoluments. Thereupon, Sri Suriti Krishna has filed an application under Section 87 of Act 30 of 1987 before the Deputy Commissioner of Endowments, Hyderabad requesting to allow him to perform all services as per usage and custom in the Temple and he should be allowed to have the honours like wearing “Kankanam” before annual festival and also he should be paid the emoluments which are being paid as per usage and custom. While allowing the petition, the Deputy Commissioner of Endowments, Hyderabad by his order No.5, dated 9-2-1994 in O.A.No.11 of 1991 held that the petitioner is entitled to perform the service in the Temple as was done by his late father and he is also entitled to receive the honours and the emoluments as already declared by the Deputy Commissioner of Endowments, Hyderabad in O.A.No.13/80 in view of the services rendered by Sri Suriti Kirshna as per the usage and custom. Further, the Deputy Commissioner held that whenever the Non Hereditary Trust Board is constituted, Sri Suriti Krishna or any one of his family member is entitled for appointment as Non Hereditary Trustee under Section 17(1) of the Act 30 of 1987. While the matter stood thus, Hon'ble Supreme Court in its Judgment dated 17-1-1996 in W.P.No.713 of 1987 upheld the relevant provisions of the Act 30 of 1987 abolishing hereditary rights and at the same time upheld the rights of the Founder and a Member of his family to head the Board of Trustee. In pursuance of these orders, Sri Suriti Krishna has filed an application before the Assistant Commissioner of Endowments, Twin Cities, Hyderabad to declare him as member belonging to the family of the Founders of the subject Temple. After due conduct of enquiry, the Assistant Commissioner of Endowments, Twin Cities, Hyderabad vide his proceedings No.C/5405/96, dated 20-11-1997 has passed orders rejecting his claim for Founder Trusteeship. It is true that the Judgment of the Hon'ble Supreme Court, the member of the founders family of the Temple considered to be appointed as one of the trustees under Section 17 of the Act, but not successor of the hereditary trustees. It is further stated that the petitioner has to be put to strict proof that his grand father’s father, Suriti Kistaiah was regularized as Muthavali of subject Temple and after his death his ground became Muthavalli. As per the proceedings No.2466/7-B, dated 15-6-1971, late Laxmaiah, father of the petitioner was recognized as a Member Trustee as a successor of his grand father but not as a Founder Member. The petitioner has filed a petition before the Assistant Commissioner of Endowments, Hyderabad to recognize him as a member of founder’s family and the same was dismissed by the Assistant Commissioner vide his orders dated 30-6-1998. Aggrieved by the said orders, the petitioner has filed O.S.No.44/97 before the Deputy Commissioner of Endowments, Hyderabad and the same was dismissed confirming the orders of the Assistant Commissioner. Against this, the petitioner has filed a C.M.A.No.205/98 on the file of the Chief Judge, City Civil Court, Hyderabad and the same was allowed declaring that he is entitled to be appointed as Non Hereditary Trustee vide orders dated 21-1-2002. The Deputy Commissioner has filed C.R.P.No.2716/2002 before this Court questioning the orders dt.21-1-2002 in C.M.A.No.205/98 and the said revision was pleased to allowed by this Court vide orders dated 15-4-2003 by setting aside the orders of the learned Chief Judge in C.M.A.No.205/98 dt.21-1-2002 observing that all the benefits conferred as per the orders dt.9-2- 1994 in O.A.No.11/91 shall remain unaltered. It is also stated that Sri Suriti Krishna mainly relying upon a Munthakab, wherein, it has been mentioned that, the petitioner’s father was recognized as Muthavalli of the subject Temple and based on that Sri Suriti Krishna has contended that, his father had executed a Will Deed on 26.7.84 bestowing the hereditary rights of the said Temple in his favour, but it does not confer any rights with regard to the recognition of founder’s trustee. Sri Suriti Krishna had filed a W.P.No.20314/2003 before this Court and this Court in its order dated 24-8-2003 directed the Government to consider the representation of the individual and accordingly, the orders have been passed in G.O.Ms.No.150 Revenue (Endts.II/1) Department, dated 10—2-2004 recognizing Sri Suriti Krishna S/o.late Laxmaiah, R/o.Dwarakanagar, Vanastalipuram, Hyderabad as a Member of Founder's Family of Sri Ujjaini Mahankali Temple, Secunderabad. Aggrieved by the said order issued in G.O.Ms.No.150 Revenue (Endts.II/1) Department, dated 10—2-2004, Sri M.R.Balakrishna (one of the respondents in W.P.No.2506/2007 filed by Sri Suriti Krishna) filed a Review Petition under Section 94 of the Act. Having regard to the circumstances of the case, Government have observed that the Assistant Commissioner of Endowments, Hyderabad has rightly dismissed the claim of Sri Suriti Krishna for declaring him as Member of Founder's Family of the Temple and rightly confirmed by the Deputy Commissioner of Endowments, Hyderabad in O.A.No.44/97 and the declaration sought for by Sri Suriti Krishna to declare him as Member of Founder's Family of the Temple is observed as misconceived. Under Section 87 of the Act, the appellate authority against the orders of the Deputy Commissioner concerned is the City Civil Court only, but not the Government. It is also observed that the orders issued in G.O.Ms.No.150 Revenue (Endts.II/1) Department, dated 10—2-2004 are contrary to the statutory provisions of Section 87 of the Act. Hence, the Review Petition filed by Sri M.R.Balakrishna was allowed and orders issued in the said G.O. were cancelled and the matter was remanded back to the Deputy Commissioner of Endowments, Hyderabad with a direction to take the matter afresh and to dispose of the matter on merits after giving opportunity for all the parties in the matter vide G.O.Ms.No.112, Revenue (Endts.II/1) Department, dated 1—2-2007. It is also stated that in view of the above facts, there is no illegality in passing the impugned order by the Government in having cancelled the said G.O., in view of the amended provisions of the Act more specifically Section 87(h) of the Act. It is further stated that as regards the dispute of declaration of the petitioner whether a Member of Founder's Family of the subject Temple or not, the Deputy Commissioner of Endowments, Hyderabad is the competent authority to declare the same, as per the law laid down in this regard.
12. Certain additional facts, no doubt, had been narrated in the Implead Application as well.
13. Section 93 of the Act reads as hereunder:-
“Power of Government to call for records and pass orders:- (1) The Government may either suo motu or on an application call for and examine the record of the Commissioner or any Deputy Commissioner or any Assistant Commissioner or any other Officer subordinate to them, or of any Executive Officer or any trustee of a charitable or religious institution or endowment, other than a math or specific endowment attached to a math in respect of any administrative or quasi-judicial decision taken or order passed under this Act, but not being a proceeding in respect of which a suit or an appeal or application, or a reference to Court is provided by this Act, to satisfy themselves as to the correctness, legality or propriety of such decision or order taken or passed, and if any case, it appears to the Government that such decision or order should be modified, annulled, reversed or remitted for reconsideration, they may pass orders accordingly.
Provided that the Government shall not pass any order prejudicial to any party unless he has had an opportunity of making his representation.
(2) The Government may stay the execution of any such decision or order pending the exercise of their powers under sub-Section (1) in respect thereof.
(3) No application to the Government for the exercise of their power under this Section shall be made in respect of any matter unless an application had already been made in respect of the same matter to the Commissioner under Section 92 and had been disposed of by him.
(4) Every application to the Government for the exercise of their powers under this Section shall be made within ninety days from the date of which the decision or order to which the application relates was received by the applicant.”
14. Section 94 of the Act reads as hereunder:-
“Review:- The Government may either suo motu, or on application from any person interested made within ninety days of the passing of an order under Section 93, review any such order if it was passed by them under any mistake, whether of fact or of law, or in ignorance of any material fact. The provisions of the proviso to sub-Section (1) and sub-Section (2) of Section 93, shall also apply to any proceeding under this Section.
15. The language of Sections 93 and 94 of the Act being self-explanatory, the scope and ambit of the said provisions need not be elaborated further. However, the learned Counsel representing the Writ Petitioner placed strong reliance on the decision of this Court in W.P.Nos.984 and 1364 of 2007 dt.11-10-2007. The learned Judge at page No.9 observed as hereunder:-
“Having regard to the unambiguous language employed in Section 94 of the Act, the learned Counsel for the petitioner is justified in contending that no Review Petition can be maintained under Section 94 of the Act to review the order dated 8-12-2006 which was passed under Section 28 of the Act. Hence, undoubtedly, the 1st respondent committed an error in entertaining the Review Petition and passing the impugned order dated 22-12-2006 keeping the order dated 8-12-2006 in abeyance. Thus, the order impugned, being without jurisdiction, is liable to be set aside on that ground alone.”
After observing so, ultimately, W.P.No.984/2007 was allowed setting aside the impugned order dated 22-12- 2006 and W.P.No.1364/2007 was dismissed by the learned Judge.
16. In the light of the language of Sections 93 and 94 of the Act and also in the light of the view expressed by the learned Judge specified supra, this Court is of the considered opinion that the impugned order is without jurisdiction and accordingly the same is hereby quashed.
17. The Writ Petition is allowed accordingly. No order as to costs.
27th November, 2007 Justice P.S.Narayana smr