1. Plaintiffs are the appellants. The first plaintiff is an Association originally constituted in 1871 with the name 'Sri Kanyaka Parameswari Anna Satram Sangham, Vijawada' and later on registered on 28-5-1947 under the Societies Registration Act, 1860 as 'Sri Kanyaka Parameswari Anna Satram Committee, Vijayawada'. Tbs. plaintiffs claim that the first plaintiff-Institution is a Denominational in institution both religious and charitable, envisaged under Art. 28 of the Constitution or India, and is governed by the Vassvi Kanyaka Parameswari Cult', and seek to inter diet the acts of the defendants 1 and 2, the Commissioner and the Deputy Commissioner of Hindu Religious and Charitable Endowments Department, Government of Andhra Pradesh, respectively from interring with the administration and management of the first plaintiff-Institution. Their case is: The General Body of the first plaintiff-Institution consists of only members belonging to Arya Vysya Community and no person of alive other community is entitled to become a members of the first plaintiff-Institution. The properties of the fiat Plaintiff- Institution vest in the General Body and the right to management in the Governing Body. The General body elects once in every three years the President and the other office bearers and members of the Governing Body, in all consisting of 25 members as laid down in the rules of the Association. Except the body so elected from out of the members of the first plaintiff, none else is entitled to participate in its management. Plaintiffs 2 to 9 are the duly elected office bearers of the first plaintiff-Institution.
2. The first plaintiff-Institution is dedicated to the deity Sri Varavi Kanyaka Popularly known as 'Sri Kanyaka Parameswari' with whose worship the Arya Vysya community has been specially associated according to the tenets Peculiar to itself from several centuries. According to one theory the worship of Sri Kanyaka Parameswari by the Arya Vysya community dates back to the time when Chalukya Emperor Vishnu Vardhana, father of Raja Raja Narendra ruled over Andhra Desa with Rajahmundry (Raja Mahendravaram) as the Capital. History as well as 'purana' tells that there was B very beautiful Arya Vysya maid by name by 'Vasavi Kanya' at Penurgonda, a devotee of 'Parasakthi' of penurgonda. Emperor Vishnuvardhana fell in love with Vasavi Kanya and wanted to marry her. But her parents and members of Arya Vysya community refused to give her in marriage. Therefore, the Emperor directed his armies to march to Penurgonda to take her by force. Vasavi Kanya preferred self-immolation and burnt herself in fire. Along with her, couples from 102 Gotras of Arya Vysya community also jumped into the sacrificial fire on being exhorted and ordered by her and gave up their lives in order to save the honor of their community. Simultaneously the Emperor too died at his palace with his head broken on account of the divine curse.
The survivors of the community deified Sri Vasavi Kanya who was believed and worshipped since as an incarnation of 'Parasakthi' Several institutions came into being in the country , in the name of .Sri Kanyaka Parameswari all dedicated to her.
3. The first plaintiff-Institution was one such institution formed from among the people of 102 Goths of Arya Vies Community to commemorate the memory of Sri Vasavi Kanya and those martyrs of 102 Goths who had sacrificed their lives along with Sri Vasavi Kanyaka Parameswari It is stated, special forms of worship and pujas are performed daily to Sri Kanyaka Parameswari in the temple in the premises of the first plaintiff-Institution, and the members of the Arya Vysya community alone are entitled to 'perform the same. The 102 Arya Vysya families form religious denominational community even among the Vysya in general. The first plaintiff-Institution being one dedicated to Sri Vasavi Kanyaka Parameswari a Special and unique religious denomination, is entitled to manage the first plaintiff-Institution. It is different from the other religious institutions which are governed by the Andhra Pradesh Charitable and Hindu Religious Institution and Endowments Act, 1966 (Act 17 of 1966) hereinafter referred to as 'the Act'. The first plaintiff is governed by the Societies Registration Act of 1860 and is an Association of the members of the Arya Vysya Community belonging to the cult of Sri Vasavi Kanyaka Parameswari. It is, therefore. claimed that the provisions Of the Act are inapplicable to the first plaintiff-Institution and the defendants have no jurisdiction to appoint an Executive Officer or a Trustee or a Manager or a Fit Person to the first plaintiff-Institution as in the ass of any other religious or charitable institution.
4. It is the case of the plaintiffs that the first plaintiff-Institution had Practically no property to start with in the year 1871 and even by 1947 and it resources were meagre. But by 1958 its annual income was about Rs. 50,000/- and by the time of the institution of the suit, the annual income rose to Rs. 85,000/- and moveable and immovable properties were estimated at Rupees Fifteen Lakhs. It is claimed that the members of the first plaintiff-Institution are rich, leading and respectable business and professional men with religious and charitable disposition who have richly contributed to its development by benevolent and liberal donations. While so, the Endowment Department proposed to apply the provisions of the Act to the first plaintiff-Institution and the first defendant appointed an Executive officer. The first plaintiff-Institution then filed a Writ Petition No. 3228 of 1969 in the High Court quartioning the validity of the provisions of the Act. The High Court as wed as the Supreme Coma in Civil Appeal No. 1521 of 1970 held that the denominational nature and rights Of the first plaintiff and Similar institution claiming freedom from interference by the Endowments department in the matter of their administration and management, have to he decided in a civil suit. Subsequently, the first defendant, by his order dated 19-6-1971 appointed an Executive Officer to the first plaintiff-Institution and directed the Executive Officer to take complete charge of the records etc. Finding that the defendants were trying to encroach upon the rights of the first plaintiff-Institution the latter gave notice under S. 80 of the Civil P. C. on 30-7-1972 asserting the exclusive right of the 1st plaintiff to manage its properties and also demanding the first defendant to withdraw and cancel the first defendant's order dated 19-6-1971 Appointing, Executive Officer, order dated 29-3-1972 demanding contribution and the directions Of the end defendant dated 16-3-1972 and 23-5-1972 demanding common good fund and compliance with his directions. The said notices was received by the defendants on 30-7-1972. But without giving any reply to the aforesaid suit notice, the second defendant framed and communicated to the plaintiffs 2 to 9 certain charges as per proceedings in Rc. No. 4086/71. A2 Adm. dated 24-7-1972 alleging that the governing body of the first plaintiff has been acting independently without conforming to the provisions of the Act. The plaintiffs 2 to 9 filed their objections stating that the charge were neither true nor tenable and that the defendants had no jurisdiction to frame charges and conduct an enquiry.
5. On receiving that explanation from the plaintiffs, the second defendant passed an order on 17-8-1972 suspending plaintiffs 2 to 9 under Section 26 of the Act as if they were trustees appointed under the Act. By the same order, the third defendant was appointed as a Fit Person to take charge of the first plaintiff-Association. The plaintiffs 2 to 9 being aggrieved by the said order of suspension filed W. P. No. 3882 of 1972 in the High Court questioning the jurisdiction of the second defendant to flame charges and suspend them. The High Court stayed the operation of the order of the first defendant pending disposal of the writ petition. The plaintiff's then filed the suit for declaration that the provisions of the Act were inapplicable to the first plaintiff-Institutions and that the defendants purporting to act under the Act have no jurisdiction to appoint an Executive Officer a Fit Person or trustees or manager to the first plaintiff-Institution and for a permanent injunction restraining the defendants from interfering with the administration and management of the first plaintiff. They further prayed for the cancellation of the orders of the first defendant dated 19-6-1971 appointing an Executive Officer and the order of the second defendant suspending the plaintiffs 2 to 9 and appointing 3rd defendant as a Fit Person to the first plaintiff's institution.
6. It is pleaded in the written statement filed on behalf of the defendants 1 and 2 that the suit was barred by res judicata in view of the previous decision of the High Court in W. P. No. 3228 of 1969 which was confirmed by the Supreme Court in Civil Appeal No. 1521 of 1970. The allegation in the plaint that the first plaintiff-Institution is a spiral unique releases institution and dedicated to Sri Vasavi Kanyaka Parameswari is denied. It is further stated that the plaintiff's had submitted to the jurisdiction of the Department by submitting budgets for the year 1970-71 and 1971-72 and also by following the instructions issued by the Department and the plaintiff's were, therefore, estopped,, from questioning the jurisdiction of the Department to manage the affairs of the plaintiff's institution under the provisions of the Act. It is averred that the plaintiff's having lost their aim before the Supreme Court were attempting to cling to the administration for their selfish ends by dragging the Department from Court to court. It is asserted that the order Of the first defendant dated 19-6-1971 and the order of the end defendant dated 17-8-1972 were Legal and valid and the Court had no jurisdiction to set aside the said orders.
7. On the aforesaid pleadings, the learned Subordinate Judge framed the relevant issues and held that the suit was not hit by res iudicata of view of the decision of this Court in W P. No. 3228 of 1969. He also held that the provisions of Act 17 of 1966 were not in violation of Arts. 25 and 28 or the Constitution and that tbs. provisions of the Act were applicable to the first plaintiff-Institution. Consequently, the suit was dismissed with costs. Hence this appeal by the plaintiffs.
8. The first and foremost submission of the learned counsel is that the first plaintiff- Institution is a denominational institution and therefore, the provisions of the Act were not applicable to the first plaintiff-Institutions and defendants 1 and 2 had no jurisdiction to appoint an Executive Officer or a Fit Person and supervise the management of the first plaintiff administration. On the other hand. the learned Government Pleader pleads that the provisions of Act were questioned as being in violation of Article 28 of the Constitution before the High Court and the Supreme Court, and this Court and the Supreme Court held that any of the provisions of the .act were wt violative of Article 26 of the Constitution. It is true that this court in Nalam Ramalingayya v. Commr. AIR 1971 AP 320 held that none of the provisions of the Act contravenes the fundamental rights guaranteed to any religious denomination under Arts. 25 or 26(b) or 26(d) of the Constitution of India, and this decision was upheld by the Supreme Court in Kakinada Annadana Samajan v. Commr. H. R. and C. E. Hyderabad : [1971]2SCR878 . The Supreme Court however, observed at p. 898 as follows:--
'Before tbs High Court some of the Writ Petitioners had claimed that their institutions were religious detonations within Art. 28 end were therefore entitled to the protection guaranteed by that Article. The High Court has, quite rightly, observed that these matters should be agitated in a proper forum and they have been left open for determination if and when so desired. This indisputably was the correct course to follow.'
9. That immediately gives rise to the guardian whether the fist plaintiff-Institution Is a religious denomination. It is the case of the plaintiffs that the Arya Vysyas observe special forms of Pujas to sri Kanyaka Parameswari and that they belong to a separate religious denomination. The first plaintiff-Institution of which only the Arya Vysyas are members and managed by the Arya Vysyas is claimed to be a separate religious denominational institution. It is clear from the evidence of P. Ws. 1 to 13 that the Arya Vysyas belong to 102 Gotras and are distinct and separate from other Vysyas and they have a common faith in Sri Ranyaka Parameswari and formed into a Separate community known as Arya Vysya. The Arya Vysyas have a special cult and denomination and Sri Kanyaka Parameswari is worshipped by them as their 'Kula Devatha'. The institutions of sri Kanyaka Parameswari or Vasavi Kanya are to be managed exclusively by the people of Arya Vysya community alone and the institute are intended to propagate the Arya Vysya cult. P. Ws. l to 13 who are all Arya Vysyas have deposed that except Arya Vysyas others are ineligible to become the members of the first plaintiff-Institution and that the office bearers elected by the General Body have to manage the first plaintiff-Institution. The evidence on record also establishes that the property acquired by the first plaintiff-Institution by voluntary contributions is dedicated to the deity Sri Kanyaka Paramesvari and the management of the said property vested in the Governing Body of the first plaintiff-Institution The learned Subordinate Judge on a consideration of the evidence held that the first plaintiff-Institution is a denominational institution.
18. The Supreme Court while dealing with the question as to, what is a religions denomination observed in Commr. Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shinu Mutt : [1954]1SCR1005 , popularly known as 'Shirur Mutt case' as follows (at p. 289):-
'The word 'denomination' has been defined in the Oxford Dictionary to mean a collection of individuals classed together under the same name a religious sea or body having a common faith and organization and designated by a distinctive name'. It a well known that the practice of setting up Maths as centers of theological teaching was started by Shri Sankaracharya and was followed by various teachers since them. After Sankara, came a galaxy of religious teachers and philosophers who founded the different seas and sub-sects of the Hindu religious that We find in India at the present day.
Each one of such sects or sub-sects can certainly be called a religious denomination, as it is designed by a distinctive name-in many case it is the name of the founder-end has a common faith and common spiritual organization. The followers of Ramarmja, who are known by the name of Shri Vaishnabas, undoubtedly constitute a religious denomination; and so do the followers of Madhwacharya and other religious teachers.'
11. Therefore, the first plaintiff-Institution founded by Arya Vysyas who have peculiar tenets and beliefs is a denominational institution. I find absolutely no valid ground disagree with the finding of the learned Judge.
12. The question that then arises is: What are the rights of a religious denomination It is claimed that the first plaintiff-Institution being a denominational institution is entitled to acquire property and administer the same under Article 28 of the Constitution and that the defendants have no right to interfere with the right of the first plaintiff-Institution and its members to manage and administer the property. Therefore, it is contended by the Learned counsel for the appellants that the defendants have no jurisdiction to appoint an Executive Officer at a Fit Person to take over the management of the first plaintiff-Institution or to suspend plaintiffs 2 to 9 and prevent them from managing the affairs of the first plaintiff-Institution. It is argued that the provisions of Ss. 26 and 27 of the A. P. Act 17 of 1966 which are intended to take over the management of the first plaintiff-Institution and to manage its affairs are violative of Art 26(d) of the Constitution. The learned counsel for the appellants submits that in any case, Ss. 26 and 27 of the Act should be read down so as to limit the power of the officials of the Endowment Department so as not to amount to a total extinction or destruction of the rights of the denomination to administer their own property. Reliance is placed on the observations of the Supreme Court in State of Kamataka v. Union of India : [1978]2SCR1 . In that case, Chandrachud, J. (as he then was) observed that 'S. 3 (1) of Commissions of Inquiry Act should be given a restricted meaning so as to limit the power of the Central Government to appointing Commissions of Inquiry for Inquiring into the conduct of patrons in relation to matters concerning the affairs of the Union Government only'. Chnndrachud J. (as he them was) further observed (at p. 194):--
'It is inarguable that the conduct of ministers of State Governments in the purported discharge of their official functions is not a definite matter of Public importance within the meaning of S.3(1). To what extent the principle of federalism will be unpaired by such a construction will of course have to be examined with care but I see no subspace of the contention that the Central Government does not even possess the power to collect facts in regard to allegations of corruption made by a section of the State Legislature against sitting ministers of the State Government. That power must undoubtedly be exercised sparingly and with restraint because under the guise of directing an inquiry under S. 3 (1). the Central Government cannot interfere with the day-to-day working of the State Government one cannot also contradict that what appears to be a proper use of power may sometimes contain a veiled abuse of powers howsoever infinitesimally. But statutory construction cannot paced on distrust and suspicion of those who are charged with the duty of administering laws. S. 3 (1) must, therefore. receive its proper construction with the reservation that mala fides vitiate all acts.'
13. On the other hand, the Government Pleader urges that these contentions were squarely raised by the petitioners and repelled by this Court in Nalam Ramalingayya v. Commr. H R. I, and E. AIR(1971) Andh pra 320. In that case, as already noticed, this Court observed at p. 358 that none of the provisions of Act 17 of 1968 contravenes the fundamental rights guaranteed to any religious denomination under Arts. 25 or 26(b) or 26(d) of the Constitution of India. There fore, it is no longs open to them to contend Once again that Ss. 26 and 27 of the Act are violative of the provisions of the Constitution.
14. That however does not conclude the matter. The question still remains whether the action taken under Ss. 26 and 27 of the Act by the defendant infringes the right guaranteed under Art. 26(d) of the Constitution to a religious denomination. In other words, should Ss. 26 and 27 be read down so as to keep the action of the authorities within the bounds of Art. of the Constitution. That immediately gives rise to the question as to, what is the Scope and limitation Of Art. 26(d) of the Constitution. This question has been the subject of several decisions of the Supreme Court. The turns and twists of the Article have been explained with swift and summary brevity in the Shirur Mutt's case (AIR 1951 SC 282) (supra). In that case, the Supreme Court observed (at p. 291):
'It should be noticed, however, that under Art. 26(d) it is the fundamental right of a religious denomination or its representative to administer its properties in accordance with law and the law, therefore, must have the right of administration to the religious denomination itself subject to such restrictions and regulations as it right choose to impose.
A law which takes away the right of administration from the hands of a religious denomination altogether and vests it in any of her authority would amount to a violation of the right guaranteed under Cl (d) of Article 26.'
15. Once again, the Supreme Court in Ratilal Panchand Gandhi v. State of Bombay : [1954]1SCR1055 echoed the same opinion Mukherjea, J, speaking for the Court observed at p. 391 as follows:
'On the other hand, as regards administration of property which a religious denomination is entitled to own and acquire, it has undoubtedly the right to administer such property but only in accordance with law. This means that the State can regulate the administration of trust properties by means of laws validly enacted; but here again it should he remembered that under Art. 26(d), it is the religious denomination itself which has been given the right to administer its property in accordance with any law which the State may validly impose. A law, which takes away the right to administration altogether from the religious denomination and vests if in any other secular authority, would amount to violation of the right which is guaranteed by AIR 26 (d) of the Constitution'.
16. In Tilkayat Shri Govindlalji Maharaj v. State of Rajasthan, : [1964]1SCR561 once again the Supreme Court observed that under the guise of regulating the administration of the property by the denomination, the denomination's right must not be extinguished or altogether destroyed. In Digyadarsan Rajendra Ramdassji Varu v. State of Andhra Pradesh : [1970]1SCR103 the Supreme Court observed (at p. 187):
'Moreover under Art 26(d) it is the fundamental right of a religious denomination or its representative to administer its property in accordance with law: and the law, therefore, must leave the right of administration to the religious denomination itself subject to such restrictions and regulations as it might choose to impose. A law which takes away the right of administration from the hands of a religious denomination altogether and vests it in any other authority would amount to a ,violation of the right guaranteed under C1. (d) of Art. 26(d).'
17. Therefore, the conclusions that emerge from the aforesaid discussion of authorities are: (1) Ss. 26 and 27 of the 17 of 1966 are not violative of Art. 26 of the Constitution and (2) the power of functionaries under the Act to Trustee and appoint a Fit Person under Section 66 or to appoint an Executive under S. 27 should be read down to that the power so exercised should amount to total extinction or destruction together of the right of the religious denomination to administer the property and in any other authority.
18. Let me now examine and see whether the action of the second defendant in appointing a Fit person under S. 26 of the Act suspending plaintiffs 2 to 9 and appointing the third defendant as a Fit Person to discharge the duties and functions of the management, amounts to tailing away altogether the right of the plaintiff's to administer their own property. The order, Ex- P-14 clearly directs the President of the Committee to hand over all the moveable and immovable properties of the Satram to the Fit Person. It further directs that the Fit Person shall enter upon his duties forthwith and take charge of all moveable properties of the Satram from the President or the Secretary of the Committee as the case be, Thus the administration of the properties is totally taken away from the religious denomination and entrusted to a Fit Person. Therefore, it is outside the power vested the Deputy Commissioner under S. 26 of the Act in so far as religious denomination concerned.
19. Now, as regards the appointment of an Executive Officer by the Commissioner under his proceedings Ex. A-8 dated 19-6 1971, the learned counsel submits that the appointment of an Executive Officer also amounts to interference with the internal management of the religious denomination and is, therefore, outside the scope and beyond the powers vested in the functionaries under S. 27 of the Act. The learned Counsel in support of his submission placed reliance on the decision or the Supreme Court in Ahmedabad St. Xaviers College Society v. State of Gujarat, : [1975]1SCR173 . In that case, the contention was that S. 33-A (a) of the Gujarat University Act was violative of Art. 30 of the Constitution. The said Section provides that every college shall be under the management of a Governing Body which shall include amongst its members, a representative of the University nominated by the vice-chancellor and representatives of teachers, non-teaching staff and students of the College These provisions Were challenged on the ground that this amounts to invasion of the fundamental right of administration. It was argued that the governing body of the College is a part of its administration and therefore, the administration should not be touched and that the right to administer is the right to conduct and manage the affairs of the institution The Supreme Court observed (at pp. 1399,1400):
'Autonomy in administration means right to administer effectively and to manage and conduct the affair of the institutions. The distinction is between a restriction on the right of administration and a regulation rescrubbing the manner of administration The right to administration is day-to-day administration. The choice in the personnel of management is a part of the administration. The University will always have a right to see that there is no maladministration. If there is maladministration, the university will take steps to cure the same. There may be control and check on administration in order to find out whether the university in situations are engaged in activities which are not conducive to the interest of the minority or to the requirements of the teachers and the students. In 0065/1970 : [1971]1SCR734 this Court said that if the administration goes to a body in the selection of whom the founders have no say, the administration would be displaced. This Court also said that Situations might be conceived when they might have a preponderating voice. That would also affect the autonomy in administration. The provisions contained in S. S3-A (1) (a) of the Act have the effect of displacing the Management and entrusting it to different agency. The autonomy in administration b lost. New elements, the shape of representatives of different types are brought in. The calm waters of an institution will not only be disturbed but also mixed. These provisions in S. 33-A (1) (a) cannot, therefore, apply to minority institution.
20. Thus, in the above decision there was interference in the very constitution Of the governing body. In this case, by the appointment of the Executive Officer, there is interference with the constitution of the Governing Body, But the Executive Officer is appointed for better management of the Institution. He is only directed to take charge of the records etc. from the executive authority of the said institution. Sub-section 4 (a) of S. 27 of the clearly provides that the Executive Officer appointed shall be under the administrative control of the trustee the institution or endowment and shall responsible for carrying out all lawful directions 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 an Executive Officer.
22. In the result, the appeal is party allowed. There shall be decree canceling the order of the second defendant dated 17-8-1972 suspending plaintiffs 2 to 9 and appointing the third defendant as Fit Person to the first plaintiff-Institution. In other respects the appeal is dismissed. There shall be no order as to costs.
23. Appeal partly allowed