THE HONBLE THE CHIEF JUSTICE SRI KALYAN JYOTI SENGUPTA AND HONBLE SRI JUSTICE SANJAY KUMAR WRIT PETITION Nos.29189 of 2014 30-12-2014 S.Timmaiah Petitioner The State of Andhra Pradesh, Revenue (Endowments) Department, Rep. by its Principal Secretary and others Respondents
THE HONBLE THE CHIEF JUSTICE SRI KALYAN JYOTI SENGUPTA AND HONBLE SRI JUSTICE SANJAY KUMAR
WRIT PETITION Nos.29189 of 2014
30-12-2014
S.Timmaiah Petitioner
The State of Andhra Pradesh, Revenue (Endowments) Department, Rep. by its
Principal Secretary and others Respondents
Counsel for petitioners: Sri R. Raghunandan Rao,
senior counsel
Counsel for respondents: Learned Advocate General for
the State of Andhra Pradesh
<Gist:
>Head Note:
? CASES REFERRED:
1.1967(2) SCR 214 = AIR 1967 SC 1305
2. AIR 1955 SC 191
3. (2008) 5 Supreme Court Cases 1
4. (1997) 6 Supreme Court Cases 623
THE HONBLE THE CHIEF JUSTICE
SRI KALYAN JYOTI SENGUPTA
AND
HONBLE SRI JUSTICE SANJAY KUMAR
WRIT PETITION Nos.29189, 29264, 29317, 29453,
29455, 29474, 29475, 29499, 29556, 30168,
30674, 30688, 30692, 31352, 31445,
31551, 31640, 31652, 31677,
31692, 32020, 32246,
32255, 32578 and
32584 of 2014
COMMON ORDER: (per Honble Sri Justice Sanjay Kumar)
The petitioners in this batch of cases were appointed as
Chairpersons and/or Trustees on the Boards of various temples in
the erstwhile combined State of Andhra Pradesh. Such
appointment was effected under the provisions of the Andhra
Pradesh Charitable and Hindu Religious Institutions and
Endowments Act, 1987 (for brevity, the Act of 1987). Their
common grievance in these cases is with the Andhra Pradesh
Charitable and Hindu Religious Institutions and Endowments
(Amendment) Act, 2014 (Act No.8 of 2014), enacted by the
bifurcated new State of Andhra Pradesh, in so far as it introduced
Section 163 in the Act of 1987. This provision is assailed on the
ground that it is illegal, arbitrary and a colourable exercise of power,
contrary to the provisions of the Constitution and the Act of 1987.
By way of Act No.8 of 2014, the new State of Andhra Pradesh
effected certain changes in Sections 15 and 96 of the Act of 1987
and introduced Section 163 therein. The grievance canvassed
presently is as regards this new provision. Section 163 reads as
under:
163. Notwithstanding anything contained in the
Principal Act, all the Chairpersons and Members of the Trust
Boards of all Institutions including TTDs holding office at the
commencement of the Andhra Pradesh Charitable and Hindu
Religious Institutions and Endowments (Amendment) Act,
2014 shall cease to hold office forthwith and thereupon it
shall be competent for the Government to appoint a person or
persons to exercise the powers and perform the functions of
the Boards of Institutions including TTDs till new Trust
Boards are reconstituted and Chairman/Members are
appointed in accordance with the provisions of Sections 15
and 96 of the Principal Act as amended by this Act.
Given the multiplicity of pleadings, it would suffice to refer to
the affidavit filed in support of Writ Petition No.29264 of 2014,
which comprehensively covers the gamut of the grounds of
challenge urged by the petitioners against the impugned provision.
The petitioner in this writ petition was appointed Chairman of the
Trust Board of Sri Veerabhadra Swamy Vari Devasthanam,
Lepakshi Village and Mandal, Hindupur Taluk, Ananthapur District.
His appointment as a Trustee took place in December, 2013 and he
was elected Chairman of the Board thereafter. His term as a
member of the Trust Board is till December, 2015 as per Section
17(2) of the Act of 1987. Sri Veerabhadra Swamy Vari
Devasthanam, Lepakshi, is a temple classified under Section 6(b)(ii)
of the Act of 1987. The Commissioner of Endowments is therefore
the competent authority to constitute its Board of Trustees as per
Section 15 of the Act of 1987. The petitioners appointment was
accordingly effected by the Commissioner of Endowments of the
erstwhile combined State of Andhra Pradesh. While so, by way of
the impugned amendment and introduction of Section 163 in the
Act of 1987, the present State of Andhra Pradesh decreed that the
Chairpersons and members of all the Trust Boards of all temples
holding office at the commencement of Act No.8 of 2014 shall cease
to hold office forthwith and thereupon, it shall be competent for the
Government of the present State of Andhra Pradesh to reconstitute
new Trust Boards and until such time, to appoint a person or
persons to exercise the powers and perform the functions of such
Boards. The petitioner challenges this legislative action on the
ground that there was no justification for terminating the Trust
Boards constituted as per the provisions of the Act of 1987 whereby
a statutory right vested in those appointed to continue in office, as
per Section 17 of the Act of 1987, for a term of two years unless
removed as per the procedure prescribed under Section 28 thereof.
The newly introduced Section 163, which has overriding effect
in view of the non obstante clause, is stated to be a colourable
exercise of power as it has the effect of terminating all existing Trust
Boards indiscriminately without reference to Sections 17 and 28 of
the Act of 1987. The petitioner contends that no reference was
made to the object sought to be achieved, either in the interest of
the temples or the devotees thereof, by introduction of the impugned
provision in the statute. The petitioner alleges that the same is a
misuse of legislative power and is intended to gain political ends
owing to the change in the political scenario. The petitioner also
attacks the motive in increasing the number of Trustees in each
Board. He further contends that even if such amendment is to be
effected, it could be done only prospectively and could not be
applied with retrospective effect so as to terminate the existing Trust
Boards without just cause. He alleges that the subject exercise
amounts to naked discrimination as persons suited to the interests
of the members of the present ruling party are sought to be
accommodated by removing the existing Trust Board members. The
petitioner further alleges that the Amendment Act amounts to
interference in the administration of the temples and is violative of
Articles 14, 25 and 26 of the Constitution. The petitioner asserts
that the impugned provision retrospectively cuts short the statutory
right which vested in the petitioner under Section 17 of the Act of
1987 and unless it survives the test envisaged by Article 13(2) of the
Constitution, it has to be declared as illegal and unconstitutional.
The impugned provision is also challenged on the ground that
it creates two classes of Trust Board members those appointed
prior to the impugned amendment and those appointed thereafter.
The petitioner points out that by virtue of Section 163, those
appointed prior to the amendment are denied the protection of
Section 28 of the Act of 1987, which prescribes the procedure for
cutting short the statutory term of a Trust Board member, while
those appointed thereafter would continue to enjoy such statutory
protection. This denial of statutory protection to one class of Trust
Board members is stated to be arbitrary and violative of Article 14.
The petitioner alleges that there is no intelligible differentia between
the two classes and the distinction sought to be effected between
them without rationale offends the constitutional scheme, which
requires reasonable and equal treatment of all by the State.
Reiterating the thrust of the aforementioned pleadings, Sri
R. Raghunandan Rao, learned senior counsel who led arguments on
behalf of the petitioners in the batch, contends that the scheme of
the Act of 1987 substantially remained unchanged despite the
limited amendments effected under Act No.8 of 2014. He points out
that the appointing authorities remained the same for different
classes of temples under Section 6 of the Act of 1987 and that by
way of the amendments effected to Section 15 of the Act of 1987,
only the number of Trustees was enhanced. He asserts that in this
situation, it was not at all necessary to remove the existing members
of the Trust Boards as all that was required was to supplement the
existing members by appointing new members to satisfy the
enhanced numbers. He reiterates that creation of two classes of
Trust Board members under Section 163 results in discrimination
between identically situated classes without there being any
intelligible differentia. He further contends that the vested right of
tenure under Section 17 of the Act of 1987 was sought to be taken
away by way of the retrospective operation of Section 163, which
was given overriding effect. He would conclude by asserting that
Section 163 cannot withstand constitutional and legal scrutiny and
is therefore liable to be struck down being a colourable exercise of
legislative power.
Counter-affidavits having been filed in most of the cases, the
learned Advocate General for the State of Andhra Pradesh would
recapitulate the contents thereof. It is his argument that the
impugned provision does not offend any other provision of the
statute, viz, the Act of 1987, or any Constitutional provision.
Reference is made to various provisions of the Act of 1987 and he
states that all that the amendment did was to substitute the
existing Sub-section (1) of Section 15, whereby temples were
segregated on their annual income. Temples in the new State of
Andhra Pradesh with an annual income exceeding Rs.20.00 crore
are stated to be 7 in number; those with annual income between
Rs.5.00 and Rs.20.00 crore are 6 in number; those with annual
income ranging between Rs.1.00 crore and Rs.5.00 crore are 49;
those with annual income ranging from Rs.25.00 lakh to Rs.1.00
crore are 115; those with annual income ranging between Rs.2.00
lakh and Rs.25.00 lakh are 1,597; and lastly, temples with less than
Rs.2.00 lakh annual income are 22,060.
The right of all the petitioners to be considered for
appointment afresh as non-hereditary Trustees is stated to be intact
and it is pointed out that the amendment did not preclude them
from applying again pursuant to a fresh notification in that regard.
The learned Advocate General states that pursuant to the
substitution of Section 15, a fresh notification necessarily has to be
issued depending upon the temple income as otherwise, it would
amount to a person being a Trustee of a particular temple whose
income did not fit into any of the categories envisaged under the
new Section 15(1) of the Act of 1987. He further states that one can
only be a non-hereditary Trustee of a temple depending upon the
income of the temple and as this categorization had undergone a
change, fresh constitution of Trust Boards has to take place and
therefore, Section 163 was inserted to facilitate the same. He
submits that it was by a fiction that all the Trustees ceased to hold
office owing to the income criteria and that upon issuance of a new
notification they could apply and get appointed to the Trust Boards
depending upon the income categorization under the amended
Section 15 of the Act of 1987.
Reply affidavits having been filed by some of the petitioners in
the batch, they reiterate therein their attack against the impugned
provision and pray for the writ petitions to be allowed. They point
out that there were no allegations against any of the existing
Trustees and mere increase in the number of Trust Board members
could not be justification to penalize them by casting them out of
office en masse. The impugned provision is castigated as a
colourable exercise of legislative power offending the principles of
fair play and equality enshrined in Article 14 of the Constitution.
Be it noted that prior to its promulgation, Act No.8 of 2014
was preceded by Ordinance No.3 of 2014 which was challenged
before this Court by most of the petitioners in these cases.
However, during the pendency of those writ petitions, the said
Ordinance culminated in Act No.8 of 2014 and the pending writ
petitions were closed leaving it open to the petitioners therein to
challenge the subsequent enactment. Hence, these cases.
Being satisfied prima facie that the impugned legislation could
not be given retrospective operation, this Court passed interim
orders in all the cases directing the respondents to maintain status
quo as on the date of passing of such individual orders.
Though raised in the pleadings, the challenge to the increase
in the number of Trustees; the alleged violation of Articles 25 and 26
of the Constitution; and the allegation that the impugned
amendment is a colourable exercise, were not pressed by Sri
R. Raghunandan Rao, learned senior counsel, during his
arguments. We are thus not called upon to decide these issues,
which are accordingly eschewed from consideration.
The petitioners grievance now before us is solely against the
newly inserted Section 163 in the Act of 1987. It would therefore be
apposite to analyze the same in the backdrop of other provisions in
the Act of 1987. The relevant provisions are:
Section 6. Preparation and publication of list of
charitable and religious institutions and endowments on the
basis of income:-
The Commissioner shall prepare separately and publish in the
prescribed manner, a list of-
(a) (i) the charitable institutions and endowments; or
(ii) the religious institutions and endowments other
than maths;
whose annual income as calculated for the purpose of
levy of contribution under Section 65 exceeds rupees
twenty five lakhs;
(b) (i) the charitable institutions and endowments;
(ii) the religious institutions and endowments, other
than maths;
whose annual income calculated as aforesaid exceeds rupees
two lakhs but does not exceed rupees twenty five lakhs;
(c) (i) the charitable institutions and endowments; or
(ii) the religious institutions and endowments other
than maths not falling under clause (a) or clause (b);
(d) the maths irrespective of the income;
(e) the Dharmadayam irrespective of the income;
Provided that the Commissioner may alter the classification
assigned to an institution or endowment in the list and enter the
same in the appropriate list in case the annual income of such
institution or endowment calculated as aforesaid exceeds or falls
below the limits specified in clause (a) or clause (b) or clause (c) for
three consecutive years.
Section 15 of the Act of 1987, as it stood prior to its
amendment under Act No. 8 of 2014, reads as under:
Section 15. Appointment of Board of Trustees:-
In respect of a Charitable or Religious Institution or
Endowment,-
(1) included in the list published under clause (a) of Section 6,
where the income for the Institution exceeds Rupees one crore per
annum, the Government shall constitute a Board of Trustees
consisting of nine persons appointed by them; where the income of
the institution is between Rs.25 lakhs to Rupees one crore per
annum, the Dharmika Parishad shall constitute a Board of Trustees
consisting of nine persons.
(2) Where the income of the institution is between Rs.2.00
lakhs to Rs.25 lakhs per annum, the Commissioner shall appoint a
Board of Trustees consisting of five persons and 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 three persons in respect of each such temple keeping
in view the traditions, sampradayams and wishes of the devotees:
Provided that the Deputy Commissioner may either in the
interest of the institution or endowment or any other sufficient
cause or for reasons to be recorded in writing appoint a single
trustee instead of a Board of Trustees:
Provided further that in the case of a religious institution, the
Archaka or where there is more than one Archaka, the Pradhana
Archaka thereof shall be an ex-officio member of the Trust Board
notwithstanding clause (g) of sub-section (1) of Section 19:
Provided also that where the Board of Trustees is not
constituted for any reason, the recognized founder or Member of the
founder's family shall discharge the functions of the Board of
trustees till a new Board of Trustees is constituted:
Provided also that where there is no Executive Officer or
Founder Family member to any institution or where the Government
or the authority competent to constitute a Trust Board has not
constituted the Trust Board within the period specified under this
sub-section, the Commissioner shall make such arrangement as he
deems fit to look after the affairs of the institution during the
interregnum period between the date of expiry of the terms of the
Trust Board and constitution of the new Trust Board:
Provided also that one of the members of the Board of
Trustees shall be a prominent donor with a long track record of
Philanthropy and support to Hindu Religious Institutions.
By way of the amendment through Act No. 8 of 2014, the
following changes were effected:
In Section 15, -
(i) for sub-section (1), the following shall be substituted,
namely,-
(1) Any institution included in the list published under
clause (a) of section 6,-
(i) where the income for the institution exceeds Rs.20.00
crores (Rupees Twenty Crores) per annum, the
Government shall constitute a Board of Trustees
consisting of fifteen (15) persons;
(ii) where the income for the institution is between Rs.5.00
crores (Rupees Five Crores) to Rs.20.00 crores (Rupees
Twenty Crores) per annum, the Government shall
constitute a Board of Trustees consisting of eleven (11)
persons;
(iii) where the income for the institution is between Rs.1.00
crore (Rupees One Crore) to Rs.5.00 crores (Rupees Five
Crores) per annum, the Government shall constitute a
Board of Trustees consisting of nine (9) persons;
(iv) where the income for the institution is between
Rs.25.00 lakhs (Rupees Twenty Five Lakhs) to Rs.1.00
crore (Rupees One Crore) per annum, the Andhra
Pradesh Dharmika Parishad shall constitute a Board of
Trustees consisting of nine (9) persons.
(ii) in sub-section (2),-
(a) in the opening paragraph, for the words five
persons, the words seven persons and for the
words three persons, the words five persons
shall respectively be substituted;
(b) for the fifth proviso, the following shall be
substituted, namely:-
provided also that two members of the Board of
Trustees shall be prominent persons with a long track
record of philanthropy and support to Hindu Religious
Institutions.
The effect and impact of the changes aforestated shall be dealt
with hereinafter.
Other provisions of the Act of 1987, germane for our purpose,
are extracted below:
Section 17. Procedure for making appointments of
trustees and their term:-
(1) In making the appointment of trustees under Section 15
the Government, the Commissioner, the Deputy Commissioner or
the Assistant Commissioner as the case may be, shall have due
regard to the religious denomination or any such section thereof to
which the institution belongs or the endowment is made and the
wishes of the founder:
Provided that the founder or one of the members of the family
of the founder, if qualified as prescribed shall be appointed as one of
the Trustees.
Explanation I:- 'Founder' means,-
(a) in respect of Institution or Endowment existing 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 by 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.
Explanation II:- "Member of the family of the founder" means
children, grand children and so in agnatic line of succession for the
time being in force and declared or recognized as such by the
relevant appointing authority.
Explanation III:- Those persons who founded temples by
collecting donations partly or fully from the public as well as those
who founded them on public lands shall not be recognized as
founder trustees by any means.
(2) Every trustee appointed under Section 15 shall hold office
for a term of two years from the date of taking oath of office and
secrecy.
Provided that every trustee who completed a term of office of
one year at the commencement of the Andhra Pradesh Charitable
and Hindu Religious Institutions and Endowments (Amendment)
Act, 2000 shall cease to hold office forthwith and every trustee
whose term of office exists after such commencement shall continue
to hold office for a period of two years from the date of taking oath of
office and secrecy.
Explanation:- Where the oath of office and secrecy are
administered on different dates, the period of two years shall be
reckoned from the earlier of those dates for the purpose of this sub-
section.
(3) The procedure for calling for application for appointment of
trustees, verification of antecedents and other matters shall be such
as may be prescribed.
(4) No person shall be a trustee in more than one Board of
Trustees.
(5) In every Board of Trustees, there shall be at least one
woman member and one member belonging to the Scheduled Castes
or the Scheduled Tribes whose population is larger in the concerned
village and one member belonging to Backward Classes:
Provided that it shall not be necessary to appoint-
(a) a woman member where any person appointed to represent
the Scheduled Castes or the Scheduled Tribes or the
Backward Classes is a woman;
(b) a member of the Scheduled Castes or the Scheduled Tribes
where any woman member appointed belongs to the
Scheduled Castes or the Scheduled Tribes;
(c) a member of the Backward Classes where any woman
member appointed belongs to the Backward Classes.
(6) All properties belonging to a charitable or religious
institution or endowment, which on the date of commencement of
this Act, are in the possession or under the superintendence of the
Government, Zilla Praja Parishad, Municipality or other local
authority or any company, society, organization. Institution or
other person or any committee, superintendent or manager
appointed by the Government, shall, on the date on which a Board
of Trustees is or is deemed to have been constituted or trustee is or
is deemed to have been appointed under this section, stand
transferred to such Board of Trustees or trustee thereof, as the case
may be and all assets vesting in the Government, local authority or
person aforesaid and all liabilities subsisting against such
Government, local authority or person on the said date shall,
devolve on the institution or endowment, as the case may be.
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 thereunder:
(b) disobeys any lawful order issued under the provisions of
this Act or the rules made thereunder, by the Government or
the Commissioner or the 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 authorized 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
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 and appoint a fit person to discharge the duties and perform
the functions of the trustee.
Reconnaissance of the above statutory scheme would
demonstrate that while appointing Trustees the competent authority
is required to have due regard to the religious denomination to
which the temple belongs and the wishes of its founder (Section 17).
Further, to be qualified for appointment as a Trustee, the
incumbent is to fulfill the qualifications set out in Section 18.
Notably, these provisions were not touched by way of the
amendments effected under Act No. 8 of 2014. All that was done
thereunder was a change of categorization of temples falling within
the ambit of Section 6(a) of the Act of 1987. Hitherto, under Section
15(1) of the Act of 1987, such temples whose annual income
exceeded Rs.25.00 lakhs but were less than Rs.1.00 crore per
annum were set apart from temples whose annual income exceeded
Rs.1.00 crore. By substitution of Section 15(1), this division into
two categories was amended, whereby four categories were
introduced. The first new category is temples with an annual
income exceeding Rs.20.00 crore for which the Government is the
competent authority for appointing a Board of Trustees consisting of
15 members; the second new category is temples with an annual
income between Rs.5.00 crore and Rs.20.00 crore for which the
Government will constitute a Board of Trustees comprising 11
members; the third new category is temples with an annual income
ranging between Rs.1.00 crore and Rs.5.00 crore and the
Government is competent to constitute a Board of Trustees with 9
members and the last new category is temples with an annual
income between Rs.25.00 lakhs and Rs.1.00 crore for which the
Andhra Pradesh Dharmika Parishad is the competent authority for
constituting a Board of Trustees with 9 members.
By way of Act No.8 of 2014, Section 15(2) was also amended
whereby the number of members in Trust Boards for temples falling
under Sections 6(b) and 6(c) of the Act of 1987 was also increased.
For temples falling within Section 6(b), the number of Trust Board
members was increased from 5 to 7 and for Section 6(c) temples, the
number of members grew from 3 to 5. By way of the new fifth
Proviso to Section 15, two members of the Board of Trustees,
instead of the earlier one member, were required to be prominent
persons with a long track record of philanthropy and support to
Hindu Religious Institutions. Earlier, the one member categorized
under this Proviso was also required to be a prominent donor but
that requirement has been done away with and the present two
members falling under this category are only required to be
prominent persons and not donors. Section 96 of the Act of 1987
dealing with Tirumala Tirupathi Devasthanams was also amended,
but the same is of no relevance presently.
The bone of contention is the new Section 163 introduced in
the Act of 1987. This provision admittedly cuts short the tenure of
the existing Chairpersons and members of Trust Boards as their
terms ceased automatically thereunder, making way for the present
State of Andhra Pradesh to constitute new Trust Boards for all the
temples. This provision invariably distinguishes between the
existing Trust Board members, as a separate class targeted
thereunder, as opposed to future Trust Board members who would
not be subjected to the same treatment.
The question is whether there is any intelligible differentia
between these two classes of Trust Board members satisfying Article
14 of the Constitution, which permits reasonable classification.
Having given our earnest consideration to the matter, we are
of the opinion that such is not the case. As pointed out earlier, the
qualifications for appointment to the Trust Boards of temples
remain unchanged. The appointing authorities also remain the
same. Though the learned Advocate General sought to project the
classification of Section 6(a) temples into four new categories as a
justification for disbanding the existing Trust Boards, this Court
finds no logic or rationale in this argument. The financial profile of
the applicant for appointment as a member on the temples Trust
Board has no relevance whatsoever under the provisions of the Act
of 1987. Neither Section 15 nor Sections 17 and 18 of the Act of
1987 indicate such a criterion being the basis for appointment as a
Trust Board member. Earlier, all Section 6(a) institutions whose
annual income exceeded Rs.1.00 crore were clubbed into one
category, whereas under the amended Section 15 they are now split
up into three categories with differing number of members on the
Trust Boards. Except for this, there is no other change.
There is only an overall enhancement in the number of
members on the Trust Boards of temples. There is no material to
demonstrate before us that any of the existing Trust Board members
have suffered any disqualification or warrant removal from office in
terms of Section 28 of the Act of 1987. As the number of members
has increased in such Trust Boards all that is required is that the
Government supplements the existing numbers by appointing new
members.
There is no discernible and acceptable factor which sets the
existing Trust Board members apart from Trust Board members
who may be appointed in future. There is therefore no logic or basis
for showing the existing Trust Board members the door. Their en
bloc removal without any rationale is therefore an apparent case of
naked discrimination. On the one hand, no grounds are cited or
established for their removal as a single class without reference to
the statutory protection of Sections 17 and 28 of the Act of 1987
and on the other hand, is the denial of such protection to them
alone when it continues to remain available to future Trust Board
members. The clubbing of the existing Trust Board members into
one single class and their unceremonious removal vide Section 163
therefore demonstrates naked discrimination against them offending
Article 14 of the Constitution.
In D.S.REDDI, VICE-CHANCELLOR, OSMANIA UNIVERSITY
V/s. CHANCELLOR, OSMANIA UNIVERSITY , a Constitution Bench
was dealing with an amendment to the Osmania University Act,
1959, which created a distinction between the existing Vice-
Chancellor of the University and all other Vice-Chancellors, before
or after him. Referring to BUDHAN CHOUDHRY V/s. STATE OF
BIHAR , the Bench observed that in order to accept a classification
as a reasonable and permissible one, not hit by Article 14, the
measure in question would have to pass two tests as laid down
therein (i) that the classification must be founded on an
intelligible differentia which distinguishes persons or things that are
grouped together from others left out of the group and (ii) that that
differentia must have rational relation to the object sought to be
achieved by the statute in question. If no such reasonable basis of
classification appears on the face of the statute or is deducible from
the surrounding circumstances, the Supreme Court opined that the
law would have to be struck down as an instance of naked
discrimination. Applying these principles, the Supreme Court found
that the provisions of the Act were directed only against one
individual, the existing Vice-Chancellor of the University and the
classification which was sought to be effected between him as a
single class as opposed to all other Vice-Chancellors, past and
future, was not founded on an intelligible differentia. No rational
relation was established as to the object sought to be achieved by
the amendment creating such a classification and the same was
accordingly held to be unconstitutional.
A similar amendment was under challenge in
P. VENUGOPAL V/s. UNION OF INDIA . The petitioner before the
Supreme Court was the Director of the All India Institute of Medical
Sciences, New Delhi. An amendment was effected to the All India
Institute of Medical Sciences Act, 1956, whereby his term was
sought to be cut short. This was assailed on the ground that it
amounted to a single-man legislation intended to affect the
petitioner alone and therefore amounted to naked discrimination
against him. Referring to the earlier judgment in D.S. REDDI1, the
Supreme Court held that the impugned amendment was hit by
Article 14 as it intended only to carry out premature termination of
the tenure of the petitioner without justifiable reason or notice. The
fact situation was held to be similar to that obtaining in
D.S. REDDI1 and the impugned amendment was invalidated as it
created an unreasonable classification between the petitioner and
future Directors and denied him fair treatment without there being
any intelligible differentia.
The ratio laid down in these two decisions applies on all fours
to the matter on hand.
Cutting short the normal tenure which vested in the existing
Trust Board members under Section 17(2) of the Act of 1987
without any rational basis, when such guarantee of tenure
continues to be available to future Trust Board members, clearly
discriminates against them. In this regard, useful reference may
also be made to CHAIRMAN, RAILWAY BOARD V/s. C.R.
RANGADHAMAIAH , wherein a Constitution Bench was dealing
with the connotation of a vested right. Referring to earlier
decisions of the Supreme Court, the Bench observed that the
expressions vested rights or accrued rights had been used while
striking down impugned provisions which were given retrospective
operation so as to adversely affect the rights of employees. The
Bench further observed that the expressions were used in the
context of a right flowing under the relevant rule which was sought
to be altered with effect from an anterior date, thereby taking away
the benefits available under the rule in force at that time, and
affirmed that it had been held that such an amendment having
retrospective operation and had the effect of taking away a benefit
already available to the employee under the existing rule was
arbitrary, discriminatory and violative of the rights guaranteed by
Articles 14 and 16 of the Constitution.
Article 13(2) of the Constitution proscribes the State from
making any law which takes away or abridges fundamental rights
and renders the law, to the extent of such contravention, void. The
impugned Section 163 of the Act of 1987 demonstrably offends the
principle of equality enshrined in Article 14 as the existing Trust
Board members and Chairpersons were targeted as a single class
without there being any reasonable classification based on any
intelligible differentia and without a rational basis or object. The
provision therefore falls foul of Article 13(2) of the Constitution.
Interestingly, in M.THIRUPATHI RAO V/s. THE STATE OF
TELANGANA , we had occasion to consider an amendment on
similar lines brought by the State of Telangana to the Andhra
Pradesh (Agricultural Produce and Livestock) Markets Act, 1966
(vide Telangana Ordinance No.1 of 2014), whereby existing Market
Committees were sought to be disbanded en bloc making way for the
State to effect reconstitution. This Court held that the amendment
was constitutionally invalid and accordingly struck down the same.
For the reasons aforestated, Section 163 of the Andhra
Pradesh Charitable and Hindu Religious Institutions and
Endowments Act, 1987, inserted by way of the Andhra Pradesh
Charitable and Hindu Religious Institutions and Endowments
(Amendment) Act, 2014 (Act No.8 of 2014) is declared void.
The writ petitions are allowed to the extent indicated above.
W.P.M.P. No.40821 of 2014 in W.P. No.29264 of 2014 was filed by
one Dr. M.V. Soundararajan seeking to intervene in the writ petition
and support the petitioner therein. However, none appeared for the
intervening petitioner to press the petition. W.P.M.P. No.40821 of
2014 along with other pending miscellaneous petitions in this batch
of cases shall therefore stand closed. No order as to costs.
Before we part with the matter, we may point out that Article
300 of the Constitution requires that the State be sued in its name.
However, we find that in W.P. Nos.29264 and 31352 of 2014, the
State has been wrongly described as the Government of Andhra
Pradesh. We therefore deem it proper that necessary corrections be
carried out in the cause titles of these writ petitions. The Registry is
accordingly directed to substitute The State of Andhra Pradesh in
the place of The Government of Andhra Pradesh, wherever
necessary, before issuing a copy of this order.
___________________
K.J. SENGUPTA, CJ
____________________
SANJAY
KUMAR, J
_____December, 2014
L/R copy to be marked Yes
B/o Svv
After pronouncement of the order, the learned Advocate General for
the State of Andhra Pradesh prayed that the order may be suspended so as
to enable the State to take necessary steps as may be advised. However,
we are of the opinion that a blanket stay of the order passed by us would
create complications as the orders of status quo passed in the writ petitions
were subsisting till date.
We accordingly direct that the orders of status quo which held the
field during the pendency of these writ petitions shall continue for a further
period of four weeks from today. It is further clarified that whosoever
continued in office as on the date of passing of the status quo orders in the
individual writ petitions would continue pursuant to this order for a further
period of four weeks from today.
________________________
K.J. SENGUPTA, CJ
__________________
SANJAY KUMAR, J
30.12.2014
WRIT PETITION Nos.29189 of 2014
30-12-2014
S.Timmaiah Petitioner
The State of Andhra Pradesh, Revenue (Endowments) Department, Rep. by its
Principal Secretary and others Respondents
Counsel for petitioners: Sri R. Raghunandan Rao,
senior counsel
Counsel for respondents: Learned Advocate General for
the State of Andhra Pradesh
<Gist:
>Head Note:
? CASES REFERRED:
1.1967(2) SCR 214 = AIR 1967 SC 1305
2. AIR 1955 SC 191
3. (2008) 5 Supreme Court Cases 1
4. (1997) 6 Supreme Court Cases 623
THE HONBLE THE CHIEF JUSTICE
SRI KALYAN JYOTI SENGUPTA
AND
HONBLE SRI JUSTICE SANJAY KUMAR
WRIT PETITION Nos.29189, 29264, 29317, 29453,
29455, 29474, 29475, 29499, 29556, 30168,
30674, 30688, 30692, 31352, 31445,
31551, 31640, 31652, 31677,
31692, 32020, 32246,
32255, 32578 and
32584 of 2014
COMMON ORDER: (per Honble Sri Justice Sanjay Kumar)
The petitioners in this batch of cases were appointed as
Chairpersons and/or Trustees on the Boards of various temples in
the erstwhile combined State of Andhra Pradesh. Such
appointment was effected under the provisions of the Andhra
Pradesh Charitable and Hindu Religious Institutions and
Endowments Act, 1987 (for brevity, the Act of 1987). Their
common grievance in these cases is with the Andhra Pradesh
Charitable and Hindu Religious Institutions and Endowments
(Amendment) Act, 2014 (Act No.8 of 2014), enacted by the
bifurcated new State of Andhra Pradesh, in so far as it introduced
Section 163 in the Act of 1987. This provision is assailed on the
ground that it is illegal, arbitrary and a colourable exercise of power,
contrary to the provisions of the Constitution and the Act of 1987.
By way of Act No.8 of 2014, the new State of Andhra Pradesh
effected certain changes in Sections 15 and 96 of the Act of 1987
and introduced Section 163 therein. The grievance canvassed
presently is as regards this new provision. Section 163 reads as
under:
163. Notwithstanding anything contained in the
Principal Act, all the Chairpersons and Members of the Trust
Boards of all Institutions including TTDs holding office at the
commencement of the Andhra Pradesh Charitable and Hindu
Religious Institutions and Endowments (Amendment) Act,
2014 shall cease to hold office forthwith and thereupon it
shall be competent for the Government to appoint a person or
persons to exercise the powers and perform the functions of
the Boards of Institutions including TTDs till new Trust
Boards are reconstituted and Chairman/Members are
appointed in accordance with the provisions of Sections 15
and 96 of the Principal Act as amended by this Act.
Given the multiplicity of pleadings, it would suffice to refer to
the affidavit filed in support of Writ Petition No.29264 of 2014,
which comprehensively covers the gamut of the grounds of
challenge urged by the petitioners against the impugned provision.
The petitioner in this writ petition was appointed Chairman of the
Trust Board of Sri Veerabhadra Swamy Vari Devasthanam,
Lepakshi Village and Mandal, Hindupur Taluk, Ananthapur District.
His appointment as a Trustee took place in December, 2013 and he
was elected Chairman of the Board thereafter. His term as a
member of the Trust Board is till December, 2015 as per Section
17(2) of the Act of 1987. Sri Veerabhadra Swamy Vari
Devasthanam, Lepakshi, is a temple classified under Section 6(b)(ii)
of the Act of 1987. The Commissioner of Endowments is therefore
the competent authority to constitute its Board of Trustees as per
Section 15 of the Act of 1987. The petitioners appointment was
accordingly effected by the Commissioner of Endowments of the
erstwhile combined State of Andhra Pradesh. While so, by way of
the impugned amendment and introduction of Section 163 in the
Act of 1987, the present State of Andhra Pradesh decreed that the
Chairpersons and members of all the Trust Boards of all temples
holding office at the commencement of Act No.8 of 2014 shall cease
to hold office forthwith and thereupon, it shall be competent for the
Government of the present State of Andhra Pradesh to reconstitute
new Trust Boards and until such time, to appoint a person or
persons to exercise the powers and perform the functions of such
Boards. The petitioner challenges this legislative action on the
ground that there was no justification for terminating the Trust
Boards constituted as per the provisions of the Act of 1987 whereby
a statutory right vested in those appointed to continue in office, as
per Section 17 of the Act of 1987, for a term of two years unless
removed as per the procedure prescribed under Section 28 thereof.
The newly introduced Section 163, which has overriding effect
in view of the non obstante clause, is stated to be a colourable
exercise of power as it has the effect of terminating all existing Trust
Boards indiscriminately without reference to Sections 17 and 28 of
the Act of 1987. The petitioner contends that no reference was
made to the object sought to be achieved, either in the interest of
the temples or the devotees thereof, by introduction of the impugned
provision in the statute. The petitioner alleges that the same is a
misuse of legislative power and is intended to gain political ends
owing to the change in the political scenario. The petitioner also
attacks the motive in increasing the number of Trustees in each
Board. He further contends that even if such amendment is to be
effected, it could be done only prospectively and could not be
applied with retrospective effect so as to terminate the existing Trust
Boards without just cause. He alleges that the subject exercise
amounts to naked discrimination as persons suited to the interests
of the members of the present ruling party are sought to be
accommodated by removing the existing Trust Board members. The
petitioner further alleges that the Amendment Act amounts to
interference in the administration of the temples and is violative of
Articles 14, 25 and 26 of the Constitution. The petitioner asserts
that the impugned provision retrospectively cuts short the statutory
right which vested in the petitioner under Section 17 of the Act of
1987 and unless it survives the test envisaged by Article 13(2) of the
Constitution, it has to be declared as illegal and unconstitutional.
The impugned provision is also challenged on the ground that
it creates two classes of Trust Board members those appointed
prior to the impugned amendment and those appointed thereafter.
The petitioner points out that by virtue of Section 163, those
appointed prior to the amendment are denied the protection of
Section 28 of the Act of 1987, which prescribes the procedure for
cutting short the statutory term of a Trust Board member, while
those appointed thereafter would continue to enjoy such statutory
protection. This denial of statutory protection to one class of Trust
Board members is stated to be arbitrary and violative of Article 14.
The petitioner alleges that there is no intelligible differentia between
the two classes and the distinction sought to be effected between
them without rationale offends the constitutional scheme, which
requires reasonable and equal treatment of all by the State.
Reiterating the thrust of the aforementioned pleadings, Sri
R. Raghunandan Rao, learned senior counsel who led arguments on
behalf of the petitioners in the batch, contends that the scheme of
the Act of 1987 substantially remained unchanged despite the
limited amendments effected under Act No.8 of 2014. He points out
that the appointing authorities remained the same for different
classes of temples under Section 6 of the Act of 1987 and that by
way of the amendments effected to Section 15 of the Act of 1987,
only the number of Trustees was enhanced. He asserts that in this
situation, it was not at all necessary to remove the existing members
of the Trust Boards as all that was required was to supplement the
existing members by appointing new members to satisfy the
enhanced numbers. He reiterates that creation of two classes of
Trust Board members under Section 163 results in discrimination
between identically situated classes without there being any
intelligible differentia. He further contends that the vested right of
tenure under Section 17 of the Act of 1987 was sought to be taken
away by way of the retrospective operation of Section 163, which
was given overriding effect. He would conclude by asserting that
Section 163 cannot withstand constitutional and legal scrutiny and
is therefore liable to be struck down being a colourable exercise of
legislative power.
Counter-affidavits having been filed in most of the cases, the
learned Advocate General for the State of Andhra Pradesh would
recapitulate the contents thereof. It is his argument that the
impugned provision does not offend any other provision of the
statute, viz, the Act of 1987, or any Constitutional provision.
Reference is made to various provisions of the Act of 1987 and he
states that all that the amendment did was to substitute the
existing Sub-section (1) of Section 15, whereby temples were
segregated on their annual income. Temples in the new State of
Andhra Pradesh with an annual income exceeding Rs.20.00 crore
are stated to be 7 in number; those with annual income between
Rs.5.00 and Rs.20.00 crore are 6 in number; those with annual
income ranging between Rs.1.00 crore and Rs.5.00 crore are 49;
those with annual income ranging from Rs.25.00 lakh to Rs.1.00
crore are 115; those with annual income ranging between Rs.2.00
lakh and Rs.25.00 lakh are 1,597; and lastly, temples with less than
Rs.2.00 lakh annual income are 22,060.
The right of all the petitioners to be considered for
appointment afresh as non-hereditary Trustees is stated to be intact
and it is pointed out that the amendment did not preclude them
from applying again pursuant to a fresh notification in that regard.
The learned Advocate General states that pursuant to the
substitution of Section 15, a fresh notification necessarily has to be
issued depending upon the temple income as otherwise, it would
amount to a person being a Trustee of a particular temple whose
income did not fit into any of the categories envisaged under the
new Section 15(1) of the Act of 1987. He further states that one can
only be a non-hereditary Trustee of a temple depending upon the
income of the temple and as this categorization had undergone a
change, fresh constitution of Trust Boards has to take place and
therefore, Section 163 was inserted to facilitate the same. He
submits that it was by a fiction that all the Trustees ceased to hold
office owing to the income criteria and that upon issuance of a new
notification they could apply and get appointed to the Trust Boards
depending upon the income categorization under the amended
Section 15 of the Act of 1987.
Reply affidavits having been filed by some of the petitioners in
the batch, they reiterate therein their attack against the impugned
provision and pray for the writ petitions to be allowed. They point
out that there were no allegations against any of the existing
Trustees and mere increase in the number of Trust Board members
could not be justification to penalize them by casting them out of
office en masse. The impugned provision is castigated as a
colourable exercise of legislative power offending the principles of
fair play and equality enshrined in Article 14 of the Constitution.
Be it noted that prior to its promulgation, Act No.8 of 2014
was preceded by Ordinance No.3 of 2014 which was challenged
before this Court by most of the petitioners in these cases.
However, during the pendency of those writ petitions, the said
Ordinance culminated in Act No.8 of 2014 and the pending writ
petitions were closed leaving it open to the petitioners therein to
challenge the subsequent enactment. Hence, these cases.
Being satisfied prima facie that the impugned legislation could
not be given retrospective operation, this Court passed interim
orders in all the cases directing the respondents to maintain status
quo as on the date of passing of such individual orders.
Though raised in the pleadings, the challenge to the increase
in the number of Trustees; the alleged violation of Articles 25 and 26
of the Constitution; and the allegation that the impugned
amendment is a colourable exercise, were not pressed by Sri
R. Raghunandan Rao, learned senior counsel, during his
arguments. We are thus not called upon to decide these issues,
which are accordingly eschewed from consideration.
The petitioners grievance now before us is solely against the
newly inserted Section 163 in the Act of 1987. It would therefore be
apposite to analyze the same in the backdrop of other provisions in
the Act of 1987. The relevant provisions are:
Section 6. Preparation and publication of list of
charitable and religious institutions and endowments on the
basis of income:-
The Commissioner shall prepare separately and publish in the
prescribed manner, a list of-
(a) (i) the charitable institutions and endowments; or
(ii) the religious institutions and endowments other
than maths;
whose annual income as calculated for the purpose of
levy of contribution under Section 65 exceeds rupees
twenty five lakhs;
(b) (i) the charitable institutions and endowments;
(ii) the religious institutions and endowments, other
than maths;
whose annual income calculated as aforesaid exceeds rupees
two lakhs but does not exceed rupees twenty five lakhs;
(c) (i) the charitable institutions and endowments; or
(ii) the religious institutions and endowments other
than maths not falling under clause (a) or clause (b);
(d) the maths irrespective of the income;
(e) the Dharmadayam irrespective of the income;
Provided that the Commissioner may alter the classification
assigned to an institution or endowment in the list and enter the
same in the appropriate list in case the annual income of such
institution or endowment calculated as aforesaid exceeds or falls
below the limits specified in clause (a) or clause (b) or clause (c) for
three consecutive years.
Section 15 of the Act of 1987, as it stood prior to its
amendment under Act No. 8 of 2014, reads as under:
Section 15. Appointment of Board of Trustees:-
In respect of a Charitable or Religious Institution or
Endowment,-
(1) included in the list published under clause (a) of Section 6,
where the income for the Institution exceeds Rupees one crore per
annum, the Government shall constitute a Board of Trustees
consisting of nine persons appointed by them; where the income of
the institution is between Rs.25 lakhs to Rupees one crore per
annum, the Dharmika Parishad shall constitute a Board of Trustees
consisting of nine persons.
(2) Where the income of the institution is between Rs.2.00
lakhs to Rs.25 lakhs per annum, the Commissioner shall appoint a
Board of Trustees consisting of five persons and 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 three persons in respect of each such temple keeping
in view the traditions, sampradayams and wishes of the devotees:
Provided that the Deputy Commissioner may either in the
interest of the institution or endowment or any other sufficient
cause or for reasons to be recorded in writing appoint a single
trustee instead of a Board of Trustees:
Provided further that in the case of a religious institution, the
Archaka or where there is more than one Archaka, the Pradhana
Archaka thereof shall be an ex-officio member of the Trust Board
notwithstanding clause (g) of sub-section (1) of Section 19:
Provided also that where the Board of Trustees is not
constituted for any reason, the recognized founder or Member of the
founder's family shall discharge the functions of the Board of
trustees till a new Board of Trustees is constituted:
Provided also that where there is no Executive Officer or
Founder Family member to any institution or where the Government
or the authority competent to constitute a Trust Board has not
constituted the Trust Board within the period specified under this
sub-section, the Commissioner shall make such arrangement as he
deems fit to look after the affairs of the institution during the
interregnum period between the date of expiry of the terms of the
Trust Board and constitution of the new Trust Board:
Provided also that one of the members of the Board of
Trustees shall be a prominent donor with a long track record of
Philanthropy and support to Hindu Religious Institutions.
By way of the amendment through Act No. 8 of 2014, the
following changes were effected:
In Section 15, -
(i) for sub-section (1), the following shall be substituted,
namely,-
(1) Any institution included in the list published under
clause (a) of section 6,-
(i) where the income for the institution exceeds Rs.20.00
crores (Rupees Twenty Crores) per annum, the
Government shall constitute a Board of Trustees
consisting of fifteen (15) persons;
(ii) where the income for the institution is between Rs.5.00
crores (Rupees Five Crores) to Rs.20.00 crores (Rupees
Twenty Crores) per annum, the Government shall
constitute a Board of Trustees consisting of eleven (11)
persons;
(iii) where the income for the institution is between Rs.1.00
crore (Rupees One Crore) to Rs.5.00 crores (Rupees Five
Crores) per annum, the Government shall constitute a
Board of Trustees consisting of nine (9) persons;
(iv) where the income for the institution is between
Rs.25.00 lakhs (Rupees Twenty Five Lakhs) to Rs.1.00
crore (Rupees One Crore) per annum, the Andhra
Pradesh Dharmika Parishad shall constitute a Board of
Trustees consisting of nine (9) persons.
(ii) in sub-section (2),-
(a) in the opening paragraph, for the words five
persons, the words seven persons and for the
words three persons, the words five persons
shall respectively be substituted;
(b) for the fifth proviso, the following shall be
substituted, namely:-
provided also that two members of the Board of
Trustees shall be prominent persons with a long track
record of philanthropy and support to Hindu Religious
Institutions.
The effect and impact of the changes aforestated shall be dealt
with hereinafter.
Other provisions of the Act of 1987, germane for our purpose,
are extracted below:
Section 17. Procedure for making appointments of
trustees and their term:-
(1) In making the appointment of trustees under Section 15
the Government, the Commissioner, the Deputy Commissioner or
the Assistant Commissioner as the case may be, shall have due
regard to the religious denomination or any such section thereof to
which the institution belongs or the endowment is made and the
wishes of the founder:
Provided that the founder or one of the members of the family
of the founder, if qualified as prescribed shall be appointed as one of
the Trustees.
Explanation I:- 'Founder' means,-
(a) in respect of Institution or Endowment existing 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 by 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.
Explanation II:- "Member of the family of the founder" means
children, grand children and so in agnatic line of succession for the
time being in force and declared or recognized as such by the
relevant appointing authority.
Explanation III:- Those persons who founded temples by
collecting donations partly or fully from the public as well as those
who founded them on public lands shall not be recognized as
founder trustees by any means.
(2) Every trustee appointed under Section 15 shall hold office
for a term of two years from the date of taking oath of office and
secrecy.
Provided that every trustee who completed a term of office of
one year at the commencement of the Andhra Pradesh Charitable
and Hindu Religious Institutions and Endowments (Amendment)
Act, 2000 shall cease to hold office forthwith and every trustee
whose term of office exists after such commencement shall continue
to hold office for a period of two years from the date of taking oath of
office and secrecy.
Explanation:- Where the oath of office and secrecy are
administered on different dates, the period of two years shall be
reckoned from the earlier of those dates for the purpose of this sub-
section.
(3) The procedure for calling for application for appointment of
trustees, verification of antecedents and other matters shall be such
as may be prescribed.
(4) No person shall be a trustee in more than one Board of
Trustees.
(5) In every Board of Trustees, there shall be at least one
woman member and one member belonging to the Scheduled Castes
or the Scheduled Tribes whose population is larger in the concerned
village and one member belonging to Backward Classes:
Provided that it shall not be necessary to appoint-
(a) a woman member where any person appointed to represent
the Scheduled Castes or the Scheduled Tribes or the
Backward Classes is a woman;
(b) a member of the Scheduled Castes or the Scheduled Tribes
where any woman member appointed belongs to the
Scheduled Castes or the Scheduled Tribes;
(c) a member of the Backward Classes where any woman
member appointed belongs to the Backward Classes.
(6) All properties belonging to a charitable or religious
institution or endowment, which on the date of commencement of
this Act, are in the possession or under the superintendence of the
Government, Zilla Praja Parishad, Municipality or other local
authority or any company, society, organization. Institution or
other person or any committee, superintendent or manager
appointed by the Government, shall, on the date on which a Board
of Trustees is or is deemed to have been constituted or trustee is or
is deemed to have been appointed under this section, stand
transferred to such Board of Trustees or trustee thereof, as the case
may be and all assets vesting in the Government, local authority or
person aforesaid and all liabilities subsisting against such
Government, local authority or person on the said date shall,
devolve on the institution or endowment, as the case may be.
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 thereunder:
(b) disobeys any lawful order issued under the provisions of
this Act or the rules made thereunder, by the Government or
the Commissioner or the 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 authorized 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
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 and appoint a fit person to discharge the duties and perform
the functions of the trustee.
Reconnaissance of the above statutory scheme would
demonstrate that while appointing Trustees the competent authority
is required to have due regard to the religious denomination to
which the temple belongs and the wishes of its founder (Section 17).
Further, to be qualified for appointment as a Trustee, the
incumbent is to fulfill the qualifications set out in Section 18.
Notably, these provisions were not touched by way of the
amendments effected under Act No. 8 of 2014. All that was done
thereunder was a change of categorization of temples falling within
the ambit of Section 6(a) of the Act of 1987. Hitherto, under Section
15(1) of the Act of 1987, such temples whose annual income
exceeded Rs.25.00 lakhs but were less than Rs.1.00 crore per
annum were set apart from temples whose annual income exceeded
Rs.1.00 crore. By substitution of Section 15(1), this division into
two categories was amended, whereby four categories were
introduced. The first new category is temples with an annual
income exceeding Rs.20.00 crore for which the Government is the
competent authority for appointing a Board of Trustees consisting of
15 members; the second new category is temples with an annual
income between Rs.5.00 crore and Rs.20.00 crore for which the
Government will constitute a Board of Trustees comprising 11
members; the third new category is temples with an annual income
ranging between Rs.1.00 crore and Rs.5.00 crore and the
Government is competent to constitute a Board of Trustees with 9
members and the last new category is temples with an annual
income between Rs.25.00 lakhs and Rs.1.00 crore for which the
Andhra Pradesh Dharmika Parishad is the competent authority for
constituting a Board of Trustees with 9 members.
By way of Act No.8 of 2014, Section 15(2) was also amended
whereby the number of members in Trust Boards for temples falling
under Sections 6(b) and 6(c) of the Act of 1987 was also increased.
For temples falling within Section 6(b), the number of Trust Board
members was increased from 5 to 7 and for Section 6(c) temples, the
number of members grew from 3 to 5. By way of the new fifth
Proviso to Section 15, two members of the Board of Trustees,
instead of the earlier one member, were required to be prominent
persons with a long track record of philanthropy and support to
Hindu Religious Institutions. Earlier, the one member categorized
under this Proviso was also required to be a prominent donor but
that requirement has been done away with and the present two
members falling under this category are only required to be
prominent persons and not donors. Section 96 of the Act of 1987
dealing with Tirumala Tirupathi Devasthanams was also amended,
but the same is of no relevance presently.
The bone of contention is the new Section 163 introduced in
the Act of 1987. This provision admittedly cuts short the tenure of
the existing Chairpersons and members of Trust Boards as their
terms ceased automatically thereunder, making way for the present
State of Andhra Pradesh to constitute new Trust Boards for all the
temples. This provision invariably distinguishes between the
existing Trust Board members, as a separate class targeted
thereunder, as opposed to future Trust Board members who would
not be subjected to the same treatment.
The question is whether there is any intelligible differentia
between these two classes of Trust Board members satisfying Article
14 of the Constitution, which permits reasonable classification.
Having given our earnest consideration to the matter, we are
of the opinion that such is not the case. As pointed out earlier, the
qualifications for appointment to the Trust Boards of temples
remain unchanged. The appointing authorities also remain the
same. Though the learned Advocate General sought to project the
classification of Section 6(a) temples into four new categories as a
justification for disbanding the existing Trust Boards, this Court
finds no logic or rationale in this argument. The financial profile of
the applicant for appointment as a member on the temples Trust
Board has no relevance whatsoever under the provisions of the Act
of 1987. Neither Section 15 nor Sections 17 and 18 of the Act of
1987 indicate such a criterion being the basis for appointment as a
Trust Board member. Earlier, all Section 6(a) institutions whose
annual income exceeded Rs.1.00 crore were clubbed into one
category, whereas under the amended Section 15 they are now split
up into three categories with differing number of members on the
Trust Boards. Except for this, there is no other change.
There is only an overall enhancement in the number of
members on the Trust Boards of temples. There is no material to
demonstrate before us that any of the existing Trust Board members
have suffered any disqualification or warrant removal from office in
terms of Section 28 of the Act of 1987. As the number of members
has increased in such Trust Boards all that is required is that the
Government supplements the existing numbers by appointing new
members.
There is no discernible and acceptable factor which sets the
existing Trust Board members apart from Trust Board members
who may be appointed in future. There is therefore no logic or basis
for showing the existing Trust Board members the door. Their en
bloc removal without any rationale is therefore an apparent case of
naked discrimination. On the one hand, no grounds are cited or
established for their removal as a single class without reference to
the statutory protection of Sections 17 and 28 of the Act of 1987
and on the other hand, is the denial of such protection to them
alone when it continues to remain available to future Trust Board
members. The clubbing of the existing Trust Board members into
one single class and their unceremonious removal vide Section 163
therefore demonstrates naked discrimination against them offending
Article 14 of the Constitution.
In D.S.REDDI, VICE-CHANCELLOR, OSMANIA UNIVERSITY
V/s. CHANCELLOR, OSMANIA UNIVERSITY , a Constitution Bench
was dealing with an amendment to the Osmania University Act,
1959, which created a distinction between the existing Vice-
Chancellor of the University and all other Vice-Chancellors, before
or after him. Referring to BUDHAN CHOUDHRY V/s. STATE OF
BIHAR , the Bench observed that in order to accept a classification
as a reasonable and permissible one, not hit by Article 14, the
measure in question would have to pass two tests as laid down
therein (i) that the classification must be founded on an
intelligible differentia which distinguishes persons or things that are
grouped together from others left out of the group and (ii) that that
differentia must have rational relation to the object sought to be
achieved by the statute in question. If no such reasonable basis of
classification appears on the face of the statute or is deducible from
the surrounding circumstances, the Supreme Court opined that the
law would have to be struck down as an instance of naked
discrimination. Applying these principles, the Supreme Court found
that the provisions of the Act were directed only against one
individual, the existing Vice-Chancellor of the University and the
classification which was sought to be effected between him as a
single class as opposed to all other Vice-Chancellors, past and
future, was not founded on an intelligible differentia. No rational
relation was established as to the object sought to be achieved by
the amendment creating such a classification and the same was
accordingly held to be unconstitutional.
A similar amendment was under challenge in
P. VENUGOPAL V/s. UNION OF INDIA . The petitioner before the
Supreme Court was the Director of the All India Institute of Medical
Sciences, New Delhi. An amendment was effected to the All India
Institute of Medical Sciences Act, 1956, whereby his term was
sought to be cut short. This was assailed on the ground that it
amounted to a single-man legislation intended to affect the
petitioner alone and therefore amounted to naked discrimination
against him. Referring to the earlier judgment in D.S. REDDI1, the
Supreme Court held that the impugned amendment was hit by
Article 14 as it intended only to carry out premature termination of
the tenure of the petitioner without justifiable reason or notice. The
fact situation was held to be similar to that obtaining in
D.S. REDDI1 and the impugned amendment was invalidated as it
created an unreasonable classification between the petitioner and
future Directors and denied him fair treatment without there being
any intelligible differentia.
The ratio laid down in these two decisions applies on all fours
to the matter on hand.
Cutting short the normal tenure which vested in the existing
Trust Board members under Section 17(2) of the Act of 1987
without any rational basis, when such guarantee of tenure
continues to be available to future Trust Board members, clearly
discriminates against them. In this regard, useful reference may
also be made to CHAIRMAN, RAILWAY BOARD V/s. C.R.
RANGADHAMAIAH , wherein a Constitution Bench was dealing
with the connotation of a vested right. Referring to earlier
decisions of the Supreme Court, the Bench observed that the
expressions vested rights or accrued rights had been used while
striking down impugned provisions which were given retrospective
operation so as to adversely affect the rights of employees. The
Bench further observed that the expressions were used in the
context of a right flowing under the relevant rule which was sought
to be altered with effect from an anterior date, thereby taking away
the benefits available under the rule in force at that time, and
affirmed that it had been held that such an amendment having
retrospective operation and had the effect of taking away a benefit
already available to the employee under the existing rule was
arbitrary, discriminatory and violative of the rights guaranteed by
Articles 14 and 16 of the Constitution.
Article 13(2) of the Constitution proscribes the State from
making any law which takes away or abridges fundamental rights
and renders the law, to the extent of such contravention, void. The
impugned Section 163 of the Act of 1987 demonstrably offends the
principle of equality enshrined in Article 14 as the existing Trust
Board members and Chairpersons were targeted as a single class
without there being any reasonable classification based on any
intelligible differentia and without a rational basis or object. The
provision therefore falls foul of Article 13(2) of the Constitution.
Interestingly, in M.THIRUPATHI RAO V/s. THE STATE OF
TELANGANA , we had occasion to consider an amendment on
similar lines brought by the State of Telangana to the Andhra
Pradesh (Agricultural Produce and Livestock) Markets Act, 1966
(vide Telangana Ordinance No.1 of 2014), whereby existing Market
Committees were sought to be disbanded en bloc making way for the
State to effect reconstitution. This Court held that the amendment
was constitutionally invalid and accordingly struck down the same.
For the reasons aforestated, Section 163 of the Andhra
Pradesh Charitable and Hindu Religious Institutions and
Endowments Act, 1987, inserted by way of the Andhra Pradesh
Charitable and Hindu Religious Institutions and Endowments
(Amendment) Act, 2014 (Act No.8 of 2014) is declared void.
The writ petitions are allowed to the extent indicated above.
W.P.M.P. No.40821 of 2014 in W.P. No.29264 of 2014 was filed by
one Dr. M.V. Soundararajan seeking to intervene in the writ petition
and support the petitioner therein. However, none appeared for the
intervening petitioner to press the petition. W.P.M.P. No.40821 of
2014 along with other pending miscellaneous petitions in this batch
of cases shall therefore stand closed. No order as to costs.
Before we part with the matter, we may point out that Article
300 of the Constitution requires that the State be sued in its name.
However, we find that in W.P. Nos.29264 and 31352 of 2014, the
State has been wrongly described as the Government of Andhra
Pradesh. We therefore deem it proper that necessary corrections be
carried out in the cause titles of these writ petitions. The Registry is
accordingly directed to substitute The State of Andhra Pradesh in
the place of The Government of Andhra Pradesh, wherever
necessary, before issuing a copy of this order.
___________________
K.J. SENGUPTA, CJ
____________________
SANJAY
KUMAR, J
_____December, 2014
L/R copy to be marked Yes
B/o Svv
After pronouncement of the order, the learned Advocate General for
the State of Andhra Pradesh prayed that the order may be suspended so as
to enable the State to take necessary steps as may be advised. However,
we are of the opinion that a blanket stay of the order passed by us would
create complications as the orders of status quo passed in the writ petitions
were subsisting till date.
We accordingly direct that the orders of status quo which held the
field during the pendency of these writ petitions shall continue for a further
period of four weeks from today. It is further clarified that whosoever
continued in office as on the date of passing of the status quo orders in the
individual writ petitions would continue pursuant to this order for a further
period of four weeks from today.
________________________
K.J. SENGUPTA, CJ
__________________
SANJAY KUMAR, J
30.12.2014
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