Sri Kanyaka Parameswari Anna Satram Committee & Ors. Vs. The Commissioner, Hindu Religious & Charitable E
EmailAppeal: CIVIL APPEAL NO.1340 OF 1986
(From the Judgment and Order dated 8.11.85 of the Andhra Pradesh High Court in L.P.A. No. 16 of 1979)
(From the Judgment and Order dated 8.11.85 of the Andhra Pradesh High Court in L.P.A. No. 16 of 1979)
Petitioner: Sri Kanyaka Parameswari Anna Satram Committee & Ors.
Respondent: The Commissioner, Hindu Religious & Charitable Endowments Deptt. & Ors.
Apeal: CIVIL APPEAL NO.1340 OF 1986
(From the Judgment and Order dated 8.11.85 of the Andhra Pradesh High Court in L.P.A. No. 16 of 1979)
(From the Judgment and Order dated 8.11.85 of the Andhra Pradesh High Court in L.P.A. No. 16 of 1979)
Judges: K. VENKATASWAMI & A.P. MISRA, JJ.
Date of Judgment: Sep 16, 1999
Appearances:
Mr. K. Parasaran, Ms. K. Amreshwari, Senior Advocates, Mr. K.B.S. Rajan, Mr. M. Vijaya Bhaskar, Mr. A.V. Rangam, Mr. Vijay Bhaskar, (C.A. Brijesh), Advocate for Mr. V.G. Pragasam, Advocate, Mr. A.V. Rangam, Mr. K. Ram Kumar, Ms. Santinarayan, Mr. Y. Subba Rao, Mr. Sridhar, B. Advocates with them for the appearing parties.
Head Note:
RELIGIOUS ENDOWMENTS
Andhra Pradesh Charitable and Religions Institutions and Endowments Act, 1966
Section 26 and 27 – Constitution of India 1950, Article 26 – Religious Institution – Denominational Institution – Interference in the administration by Government – When permissible – Appointment of Executive officer for better management – When warranted. Held. Any challenge to the appointment of Executive officer has to be considered in the light of the protection given by Article 26 to such denominational institutions. Matter remanded to High Court for fresh consideration in the light of the protection under Article 26.
Andhra Pradesh Charitable and Religions Institutions and Endowments Act, 1966
Section 26 and 27 – Constitution of India 1950, Article 26 – Religious Institution – Denominational Institution – Interference in the administration by Government – When permissible – Appointment of Executive officer for better management – When warranted. Held. Any challenge to the appointment of Executive officer has to be considered in the light of the protection given by Article 26 to such denominational institutions. Matter remanded to High Court for fresh consideration in the light of the protection under Article 26.
Denominational Religions institution – Appointment of Executive Officer – Legality – Court examining the legality of such appointment ought to consider whether there is sufficient reason for such appointment since such institutions enjoy special status under Article 26.
Held:
It cannot be denied that among the religious institutions denominational institutions stand on a different footing and enjoys special protection under Article 26 of the Constitution. Therefore, while considering the challenge to the appointment of an Executive Officer, it is essential to bear in mind the protection given under Article 26 of the Constitution, which the High Court failed to do. In the circumstances, we are of the view that instead of ourselves going into that, we consider it appropriate to remand the matter to the Division Bench to hear and dispose of the case on that aspect. While accepting the finding, which has not been challenged by the respondents that the appellant-institution is a denomination one, the High Court will decide the legality of the appointment of the Executive Officer particularly in the light of Article 26 of the Constitution and the decisions of this Court.(Para 14)
Cases Reffered:
1. Pavani Sridhara Rao v. Govt. of A.P. & Ors. ( JT 1996 (3) SC 430)
2. Kakinada Annadana Samajam, etc. v. Commissioner of Hindu Religious & Charitable Endowments, Hyderabad & Ors. (1971 (2) SCR
3. Tilkayat Shri Govindlalji Maharaj v. The State of Rajasthan & Ors. (1964 (1) SCR 561)
4. The Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Tirtha Swamiar of Sri Shirur Mutt (1954 SCR 1005);
5. Ratilal Panachand Gandhi v. The State of Bombay & Ors. (1954 SCR 1055)
2. Kakinada Annadana Samajam, etc. v. Commissioner of Hindu Religious & Charitable Endowments, Hyderabad & Ors. (1971 (2) SCR
3. Tilkayat Shri Govindlalji Maharaj v. The State of Rajasthan & Ors. (1964 (1) SCR 561)
4. The Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Tirtha Swamiar of Sri Shirur Mutt (1954 SCR 1005);
5. Ratilal Panachand Gandhi v. The State of Bombay & Ors. (1954 SCR 1055)
JUDGEMENT:
O R D E R
Civil Appeal No.1340/86:
1. Though elaborate arguments were addressed by counsel on both sides challenging and defending the appointment of an Executive Officer to the appellant-institution, we are of the view that it is not necessary at this stage to deal with the merits or demerits of the contentions in the view we propose to take in this appeal.
2. Briefly stated, the facts are as follows:-
The appellant initially challenged the constitutionality of Section 27 of the Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act, 1966 (hereinafter referred to as the ‘Act’).
3. This Court in Kakinada Annadana Samajam, etc. v. Commissioner of Hindu Religious & Charitable Endowments, Hyderabad & Ors. (1971 (2) SCR 878), while upholding the validity of Section 27 of the Act, directed that the issue whether the appellant-institution and similarly established institutions are religious denominations within the meaning of Article 26 of the Constitution should be agitated in a proper forum before challenging the vires of Section 27 of the Act. Thereafter, the appellant filed O.S. No.466/72 before the Sub-Judge, Vijayawada, for a declaration that the provisions of the Act are not applicable to the appellant-institution; that the respondents had no jurisdiction to appoint an Executive Officer to the appellant-institution and for a permanent injunction restraining the respondents from interfering with the administration of the institution. The Trial Court by its judgment dated 27.11.76 held that the appellant-institution is a religious denomination. However, the challenge to the appointment of an Executive Officer and the injunction prayed for were refused. Aggrieved by that refusal of injunction, the appellant preferred an appeal to the High Court in A.S. 64/77.
4. A learned Single Judge of the Andhra Pradesh High Court by a Judgment dated 21.8.78 held that the power of the functionaries under the Act to suspend a Trustee and appoint a fit person under Section 26 or to appoint an Executive Officer under Section 27 should be read down to mean that the power so exercised should not amount to total extinction or destruction altogether of the right of the religious denomination to administer the property and vest in any other authority. The learned Single Judge, however, held “by the appointment of the Executive Officer, there is no interference with the constitution of the Governing Body. But the executive officer is appointed for better management of the institution. Sub-section 4(a) of Section 27 of the Act clearly provides that the Executive Officer appointed shall be under the administrative control of the trustee of the Institution or endowment and shall be responsible for carrying out all lawful direction issued by such trustee from time to time. Thus, the Executive Officer merely works under the direction of the Governing Body and is under the control of the Governing Body. I do not, therefore, think that the administration of the property of the religious denomination is entirely taken away and vested in another person by the appointment of the Executive Officer. Thus, the suspension of the trustees by the Endowment was set aside, the appointment of fit person to the appellant-institution was also set aside. The other claim in the suit, i.e., that the provisions of the Act are inapplicable to the institution and the Endowment has no jurisdiction to appoint an Executive Officer was dismissed.”
5. Still aggrieved, the appellant preferred an LPA No.16/79. Before the Division Bench, the appointment of Executive Officer was challenged inter alia on the ground that Sections 26 and 27 of the Act are violative of the provisions of the Constitution and, therefore, the appointment of Executive Officer under Section 27 of the Act is liable to set aside. The High Court rejected such a contention in view of the decision of this Court in Kakinada Annadana Samajam (supra). The Division Bench, while agreeing with the learned Single Judge that the appellant-institution is a religious denomination, was of the view that the appointment of Executive Officer was for the better management of institution and if an Executive Officer from the same community (Arya Vysya) is appointed as an Executive Officer there cannot be any prejudice to the appellant. Accordingly, the Division Bench directed the respondents to appoint an Executive Officer from Arya Vysya community.
6. The appellant, aggrieved by the judgment of the Division Bench sustaining the appointment of the Executive Officer, preferred this appeal. The respondents have also preferred Civil Appeal No.1341/86 challenging that portion of the judgment directing them to appoint an Executive Officer from Arya Vysya community.
7. A careful perusal of the judgment of the Division Bench shows that it had not addressed itself rightly because no such argument was placed before it, whether the appointment of an Executive Officer for the appellant-institution was warranted and the reason given in the impugned appointment order, namely, ‘for the better management’, was a relevant consideration especially when the institution was declared as a religious denomination.
8. Sri K. Parasaran, learned counsel appearing for the appellant, submitted that in view of the judgments of this Court in The Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Tirtha Swamiar of Sri Shirur Mutt (1954 SCR 1005); Ratilal Panachand Gandhi v. The State of Bombay & Ors. (1954 SCR 1055) and Tilkayat Shri Govindlalji Maharaj v. The State of Rajasthan & Ors. (1964 (1) SCR 561), the religious denomination enjoys a special status under Article 26 of the Constitution and, therefore, before sustaining an order appointing an Executive Officer, the Court ought to have considered whether there was sufficient reason for such appointment. It is the contention of Shri Parasaran that in view of Article 26(d) a religious denomination enjoys complete autonomy in the matter of deciding as to what rites and ceremonies are essential according to the tenets of the religion and no authority has jurisdiction to interfere with their decision in this regard. Matters like scale of expenditure in connection with such religious observance would be matters of administration of property. While the right to administer property in accordance with law vests in the denomination, it may be controlled by secular authorities in accordance with law. This is to ensure that the institution and its endowment are preserved and not destroyed in the guise of autonomy in matters of religion. It is not for the purpose of enabling the taking over of the administration from the denomination by any secular authority.
9. The law must leave the right of administration to the denomination itself subject to such restrictions and regulations as may be provided by law. But such law if it takes away the right of administration from the hands of the religious denominations altogether and vests it in any other authority, it would violate Article 26(d).
10. The substance of the interference has to be looked at, to decide whether the rights have been altogether taken away. The restrictions have to be reasonable and should be merely regulatory and the purpose of such restrictions or regulations has to be to ensure (a) that there is no mal-administration of the institution as right to administration does not carry with it a right to mal-administration, or (b) regulatory provisions can be such as to ensure that mismanagement or mal-administration is guarded against. So long as the institution and its properties are properly administered to ensure that they are not destroyed there will be no occasion for appointment of an Executive Officer.
11. In support of the above submissions, he placed reliance on the judgments of this Court referred to above. He also submitted that the provisions of the A.P. Act, i.e., Section 27 of the 1966 Act and Section 29 of the 1987 Act are very drastic. To authorise the Executive Officer to arrange for proper collection of income, for incurring all expenditure, or permitting him to sue and be sued in the name of the institution and empowering him to lodge all moneys received by him in a scheduled bank and exclusively entitling him to sign all orders or cheques against such moneys, etc. and the nature of the order passed in the present case of appointment of Executive Officer directing him to take over complete charge of the records, etc. and directing the denomination “to hand over charge of the records, accounts, etc. to the Executive Officer appointed” read with the powers under the Act referred to above are nothing but taking away the right of administration altogether. It would be a travesty to describe an appointment of an Executive Officer with such powers as a regulatory measure.
12. In support of this submission, he placed reliance on a judgment of this Court in Pavani Sridhara Rao v. Govt. of A.P. & Ors. (JT 1996 (3) SC 430) in which an order of appointment of Executive Officer to a religious institution (not a case of religious denomination which stands on a higher footing) was set aside. He also placed reliance on this judgment to contend that though the point now argued was not advanced before the High Court, in that case this Court allowed the point to be raised for the first time. In that judgment, this Court observed that the power had to be exercised on the relevant data and on necessary facts and material. It could not be exercised just off-hand without there being any necessity of appointing an Executive Officer for the temple in public interest.
13. The learned senior counsel, Ms. K.Amreswari, appearing for the respondents, however, submitted that such an argument was not advanced before the High Court and, therefore, it is not open to the appellant to raise that contention now. We have already noticed that this Court has permitted under similar circumstances to raise a point which was not argued before the High Court in the interest of justice.
14. It cannot be denied that among the religious institutions denominational institutions stand on a different footing and enjoys special protection under Article 26 of the Constitution. Therefore, while considering the challenge to the appointment of an Executive Officer, it is essential to bear in mind the protection given under Article 26 of the Constitution, which the High Court failed to do. In the circumstances, we are of the view that instead of ourselves going into that, we consider it appropriate to remand the matter to the Division Bench to hear and dispose of the case on that aspect. While accepting the finding, which has not been challenged by the respondents that the appellant-institution is a denomination one, the High Court will decide the legality of the appointment of the Executive Officer particularly in the light of Article 26 of the Constitution and the decisions of this Court referred to earlier.
15. Since we remand the matter to the High Court to decide the legality of the appointment of Executive Officer, no further order need be passed in Civil Appeal No.1341/86.
16. Accordingly, we remit the matter to the High Court of Andhra Pradesh for hearing on the legality of the appointment of Executive Officer to the appellant-denominational institution
Civil Appeal Nos.8535/94 and 2718/97:
Civil Appeal No.2718/97:
19. This appeal is preferred against an order of the Division Bench in LPA No.1/86. That LPA was filed against an interim order in CMP 21126/85 in AS 3603/85. We are informed that AS 3603/85 on the file of the High Court of Andhra Pradesh is still pending. The question whether the appellant-institution is a religious denomination or not itself is a question yet to be decided in the appeal and, therefore, we do not propose to interfere with the order under appeal of the Division Bench. Likewise, no order in C.A. No.8535/94 need be passed in view of the pendency of AS 3603/85 and the High Court was right in holding so. However, we make it clear that if the Executive Officer/fit person, if any, appointed for the appellant-institution had taken charge and functioning as such, he will continue to be in the Office subject to the result of AS 3603/85. In case the Executive Officer/fit person had not taken charge for any reason, he shall not take charge notwithstanding the dismissal of C.A. No.2718/97. In other words, the status quo as on date shall be maintained pending disposal of AS 3603/85.
30. The appeals are disposed of accordingly with no order as to costs.
Civil Appeal No.1340/86:
1. Though elaborate arguments were addressed by counsel on both sides challenging and defending the appointment of an Executive Officer to the appellant-institution, we are of the view that it is not necessary at this stage to deal with the merits or demerits of the contentions in the view we propose to take in this appeal.
2. Briefly stated, the facts are as follows:-
The appellant initially challenged the constitutionality of Section 27 of the Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act, 1966 (hereinafter referred to as the ‘Act’).
3. This Court in Kakinada Annadana Samajam, etc. v. Commissioner of Hindu Religious & Charitable Endowments, Hyderabad & Ors. (1971 (2) SCR 878), while upholding the validity of Section 27 of the Act, directed that the issue whether the appellant-institution and similarly established institutions are religious denominations within the meaning of Article 26 of the Constitution should be agitated in a proper forum before challenging the vires of Section 27 of the Act. Thereafter, the appellant filed O.S. No.466/72 before the Sub-Judge, Vijayawada, for a declaration that the provisions of the Act are not applicable to the appellant-institution; that the respondents had no jurisdiction to appoint an Executive Officer to the appellant-institution and for a permanent injunction restraining the respondents from interfering with the administration of the institution. The Trial Court by its judgment dated 27.11.76 held that the appellant-institution is a religious denomination. However, the challenge to the appointment of an Executive Officer and the injunction prayed for were refused. Aggrieved by that refusal of injunction, the appellant preferred an appeal to the High Court in A.S. 64/77.
4. A learned Single Judge of the Andhra Pradesh High Court by a Judgment dated 21.8.78 held that the power of the functionaries under the Act to suspend a Trustee and appoint a fit person under Section 26 or to appoint an Executive Officer under Section 27 should be read down to mean that the power so exercised should not amount to total extinction or destruction altogether of the right of the religious denomination to administer the property and vest in any other authority. The learned Single Judge, however, held “by the appointment of the Executive Officer, there is no interference with the constitution of the Governing Body. But the executive officer is appointed for better management of the institution. Sub-section 4(a) of Section 27 of the Act clearly provides that the Executive Officer appointed shall be under the administrative control of the trustee of the Institution or endowment and shall be responsible for carrying out all lawful direction issued by such trustee from time to time. Thus, the Executive Officer merely works under the direction of the Governing Body and is under the control of the Governing Body. I do not, therefore, think that the administration of the property of the religious denomination is entirely taken away and vested in another person by the appointment of the Executive Officer. Thus, the suspension of the trustees by the Endowment was set aside, the appointment of fit person to the appellant-institution was also set aside. The other claim in the suit, i.e., that the provisions of the Act are inapplicable to the institution and the Endowment has no jurisdiction to appoint an Executive Officer was dismissed.”
5. Still aggrieved, the appellant preferred an LPA No.16/79. Before the Division Bench, the appointment of Executive Officer was challenged inter alia on the ground that Sections 26 and 27 of the Act are violative of the provisions of the Constitution and, therefore, the appointment of Executive Officer under Section 27 of the Act is liable to set aside. The High Court rejected such a contention in view of the decision of this Court in Kakinada Annadana Samajam (supra). The Division Bench, while agreeing with the learned Single Judge that the appellant-institution is a religious denomination, was of the view that the appointment of Executive Officer was for the better management of institution and if an Executive Officer from the same community (Arya Vysya) is appointed as an Executive Officer there cannot be any prejudice to the appellant. Accordingly, the Division Bench directed the respondents to appoint an Executive Officer from Arya Vysya community.
6. The appellant, aggrieved by the judgment of the Division Bench sustaining the appointment of the Executive Officer, preferred this appeal. The respondents have also preferred Civil Appeal No.1341/86 challenging that portion of the judgment directing them to appoint an Executive Officer from Arya Vysya community.
7. A careful perusal of the judgment of the Division Bench shows that it had not addressed itself rightly because no such argument was placed before it, whether the appointment of an Executive Officer for the appellant-institution was warranted and the reason given in the impugned appointment order, namely, ‘for the better management’, was a relevant consideration especially when the institution was declared as a religious denomination.
8. Sri K. Parasaran, learned counsel appearing for the appellant, submitted that in view of the judgments of this Court in The Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Tirtha Swamiar of Sri Shirur Mutt (1954 SCR 1005); Ratilal Panachand Gandhi v. The State of Bombay & Ors. (1954 SCR 1055) and Tilkayat Shri Govindlalji Maharaj v. The State of Rajasthan & Ors. (1964 (1) SCR 561), the religious denomination enjoys a special status under Article 26 of the Constitution and, therefore, before sustaining an order appointing an Executive Officer, the Court ought to have considered whether there was sufficient reason for such appointment. It is the contention of Shri Parasaran that in view of Article 26(d) a religious denomination enjoys complete autonomy in the matter of deciding as to what rites and ceremonies are essential according to the tenets of the religion and no authority has jurisdiction to interfere with their decision in this regard. Matters like scale of expenditure in connection with such religious observance would be matters of administration of property. While the right to administer property in accordance with law vests in the denomination, it may be controlled by secular authorities in accordance with law. This is to ensure that the institution and its endowment are preserved and not destroyed in the guise of autonomy in matters of religion. It is not for the purpose of enabling the taking over of the administration from the denomination by any secular authority.
9. The law must leave the right of administration to the denomination itself subject to such restrictions and regulations as may be provided by law. But such law if it takes away the right of administration from the hands of the religious denominations altogether and vests it in any other authority, it would violate Article 26(d).
10. The substance of the interference has to be looked at, to decide whether the rights have been altogether taken away. The restrictions have to be reasonable and should be merely regulatory and the purpose of such restrictions or regulations has to be to ensure (a) that there is no mal-administration of the institution as right to administration does not carry with it a right to mal-administration, or (b) regulatory provisions can be such as to ensure that mismanagement or mal-administration is guarded against. So long as the institution and its properties are properly administered to ensure that they are not destroyed there will be no occasion for appointment of an Executive Officer.
11. In support of the above submissions, he placed reliance on the judgments of this Court referred to above. He also submitted that the provisions of the A.P. Act, i.e., Section 27 of the 1966 Act and Section 29 of the 1987 Act are very drastic. To authorise the Executive Officer to arrange for proper collection of income, for incurring all expenditure, or permitting him to sue and be sued in the name of the institution and empowering him to lodge all moneys received by him in a scheduled bank and exclusively entitling him to sign all orders or cheques against such moneys, etc. and the nature of the order passed in the present case of appointment of Executive Officer directing him to take over complete charge of the records, etc. and directing the denomination “to hand over charge of the records, accounts, etc. to the Executive Officer appointed” read with the powers under the Act referred to above are nothing but taking away the right of administration altogether. It would be a travesty to describe an appointment of an Executive Officer with such powers as a regulatory measure.
12. In support of this submission, he placed reliance on a judgment of this Court in Pavani Sridhara Rao v. Govt. of A.P. & Ors. (JT 1996 (3) SC 430) in which an order of appointment of Executive Officer to a religious institution (not a case of religious denomination which stands on a higher footing) was set aside. He also placed reliance on this judgment to contend that though the point now argued was not advanced before the High Court, in that case this Court allowed the point to be raised for the first time. In that judgment, this Court observed that the power had to be exercised on the relevant data and on necessary facts and material. It could not be exercised just off-hand without there being any necessity of appointing an Executive Officer for the temple in public interest.
13. The learned senior counsel, Ms. K.Amreswari, appearing for the respondents, however, submitted that such an argument was not advanced before the High Court and, therefore, it is not open to the appellant to raise that contention now. We have already noticed that this Court has permitted under similar circumstances to raise a point which was not argued before the High Court in the interest of justice.
14. It cannot be denied that among the religious institutions denominational institutions stand on a different footing and enjoys special protection under Article 26 of the Constitution. Therefore, while considering the challenge to the appointment of an Executive Officer, it is essential to bear in mind the protection given under Article 26 of the Constitution, which the High Court failed to do. In the circumstances, we are of the view that instead of ourselves going into that, we consider it appropriate to remand the matter to the Division Bench to hear and dispose of the case on that aspect. While accepting the finding, which has not been challenged by the respondents that the appellant-institution is a denomination one, the High Court will decide the legality of the appointment of the Executive Officer particularly in the light of Article 26 of the Constitution and the decisions of this Court referred to earlier.
15. Since we remand the matter to the High Court to decide the legality of the appointment of Executive Officer, no further order need be passed in Civil Appeal No.1341/86.
16. Accordingly, we remit the matter to the High Court of Andhra Pradesh for hearing on the legality of the appointment of Executive Officer to the appellant-denominational institution
Civil Appeal Nos.8535/94 and 2718/97:
Civil Appeal No.2718/97:
19. This appeal is preferred against an order of the Division Bench in LPA No.1/86. That LPA was filed against an interim order in CMP 21126/85 in AS 3603/85. We are informed that AS 3603/85 on the file of the High Court of Andhra Pradesh is still pending. The question whether the appellant-institution is a religious denomination or not itself is a question yet to be decided in the appeal and, therefore, we do not propose to interfere with the order under appeal of the Division Bench. Likewise, no order in C.A. No.8535/94 need be passed in view of the pendency of AS 3603/85 and the High Court was right in holding so. However, we make it clear that if the Executive Officer/fit person, if any, appointed for the appellant-institution had taken charge and functioning as such, he will continue to be in the Office subject to the result of AS 3603/85. In case the Executive Officer/fit person had not taken charge for any reason, he shall not take charge notwithstanding the dismissal of C.A. No.2718/97. In other words, the status quo as on date shall be maintained pending disposal of AS 3603/85.
30. The appeals are disposed of accordingly with no order as to costs.
