Prathi Subbaiah Chetty and Others Vs. Government of Andhra Pradesh and Others - Court Judgment

Excerpt:
trust and societies - appointment - sections 15 and 17 of andhra pradesh charitable and hindu religious institutions and endowments act, 1987 - appointment of respondent no. 5 (r5) as founder trustee challenged - r5 appointed by assistant commissioner which was later on confirmed by regional joint commissioner - appointment was in violation of sections 15 and 17 - only deputy commissioner entitled to appoint founder trustee - held, appointment invalid and set aside. - all india services act, 1951.sections 8 & 11 & a.p. buildings (lease, rent and eviction) control rules, 1961, rule 5: [v.v.s. rao, g. yethirajulu & g. bhavani prasad, jj] refusal by landlord to receive rent - deposit of rent in court - held, a tenant has the option to take recourse to section 8 in case of refusal or evasion by landlord to receive rent and if landlord were to not name a bank or refuse even the money order of rent, the tenant can deposit the rent in accordance with sub-rules (1) to (3) of rule 5. the notice to person entitled to rent and proper maintenance of accounts of such deposits under sub-rules (4) and (5) of rule 5 are solely dependent on compliance with sub-rule (3) by the tenant. the payment or deposit of rent under section 11 read with sub-rule (6) of rule 5 arises only in respect of a tenant who did not take recourse to section 8 or section 9 before an application for eviction has been made against him in respect of any rent in arrears by date of that application, whereas in respect of rent that becomes subsequently due since date of application for eviction, the tenant is bound to pay or deposit regularly until termination of proceedings in order to enable him to contest the application. any violation of section 11(1) to (3) and sub-rule (6) of rule 5 makes the tenant liable for the adverse consequences under sub-section (4) of section 11. thus, the provisions of section 11 and sub-rule (6) of rule 5 are intended only to ensure the payment and deposit of rent including arrears during pendency and till termination of proceedings for eviction. the forfeiture of right of tenant to contest in case of default is to protect the rights and interests of landlord pending such an application for eviction, but not to confer any right on tenant to plead that all defaults committed by him prior to application for eviction can never be considered wilful, if he were to deposit all arrears of rent due within fifteen days under rule 5(6) read with sub-section (1) of section 11. the object and effect of section 11 and sub-rules (1) to (5) to rule 5, the former being for protection of landlord during pendency of eviction proceedings and the later being for protection of tenant to avoid any liability for eviction on ground of wilful default. consequently, while taking recourse to section 8 by tenant is optional, once that option is exercised, compliance with sub-rules (1) to (5) of rule 5 becomes mandatory in the sense that any non-compliance with prescribed procedure will positively indicate the wilful nature of default committed in paying or tendering rent as prescribed. while deposit of rent in terms of provisions of act and the rules amounts to valid tender of rent to landlord, the failure to comply with rule 5 (3) requiring delivery of a copy of the challan for deposit of rent in office of controller or appellate authority, as the case may be, so as to enable controller or appellate authority to cause maintenance of proper accounts under sub-rule (5) and give notice of deposit to person amounts to wilful default in making valid payment or lawful tender of the rent by the tenant to the landlord. thus, where a tenant obtains an order to deposit rent, same shall be deposited at least by the last day of the month following that for which rent is payable and rent challan shall be delivered in the office of controller within a reasonable time so that rent controller can take necessary action for service of notice of deposit under sub-rule (4) of rule 5 of the rules within seven days of such delivery. in the absence of compliance in so depositing rent and delivering challan in the office of controller, tenant shall be deemed to have committed wilful default. - it is stated that there was no such notification issued so as to enable the trustees like the petitioners to make any claim.orderb. subhashan reddy, j 1. this writ petition has been filed questioning the appointment of 5th respondent as the founder-trustee of the endowment institution concerned. the endowment concerned has got an annual income between rs.50,000/- and rs.5,00,000/- and as such it falls in the category of institutions under section 6(b)(i) of the a.p. charitable and hindu religious institutions and endowments act, 1987 (hereinafter referred to as 'the act'). the 5th respondent was appointed as founder-trustee by the assistant commissioner-fourth respondent vide proceedings dated 30-12-1998. the founder-trustee has to be appointed because of the judgment of the supreme courtinterpreting the provisions of the act. there is a claim of the petitioners for such appointment and as such there is a dispute and the dispute has to be resolved. it is stated that there was no such notification issued so as to enable the trustees like the petitioners to make any claim.2. be that as it may, the impugned order of appointment as confirmed by the regional joint commissioner itself is in violation of sections 15 and 17 of the act. the said sections read together make it clear that it is the deputy commissioner who has to make appointment in respect of section 6(b)(i) institutions. if there is a factual dispute with regard to the category of institutions, we would not have entertained this writ petition as it would involve a disputed question of fact requiring an enquiry. in the counter-affidavit filed by the endowment authorities, it is admitted that the institution in question falls under section 6(b)(i) category.3. mr. s. satyanarayana prasad, learned government pleader would argue that regardless of the fact that the institution in question falls under section 6(b)(i) category, the fourth respondent, who is the assistant commissioner, is entitled to exercise his right under section 43(4)(b) of the act. he also makes a reference to the circular no.15/5288/96 (act and rules) dated 25-3-1996 issued by the commissioner (endowments). in para-4 of the said circular, it is stated that if there is no entry with regard to the name of the founder as contemplated under section 43(4)(b) of the act, an application has to be filed before the assistant commissioner to consider the claim and then the assistant commissioner after making an enquiry should make necessary entries. but, it is only a consequential act pursuant to the appointment of founder trustee and in fact it is a sort of ministerial act and not a statutory function. the statutory function vests in the deputy commissionerunder section 15 of the act, the procedure whereof is provided under section 17 of the act and these provisions are mandatory and, there cannot be any exception to the same. when the act names the authority and the manner in which that authority has to function, it is the basic tenet of interpretation of a statute that such a plain and unambiguous provision should not be twisted and distorted. it is not out of place to mention that there are rules framed for appointing the trustees which includes the founder trustee titled. appointment of trustees rules, 1987 issued in g.o. ms. no.258 revenue (endowments-i), dated 31-3-1998, which have been issued in exercise of the powers conferred by subsection (3) of section 17 read with section 153 of the act. under rule 3, the assistant commissioner has to report to the authority competent to appoint trustees about the vacancy of trustee(s) and rule 4 then enables the competent authority to appoint the trustee(s). the circular aforementioned has to be interpreted in consonance with the said rules. the net result is that the assistant commissioner has to notify the vacancy of trustee(s) and then the competent authority, may be the assistant commissioner or deputy commissioner or the commissioner having regard to the category of institutions mentioned in section 6(a)(b)(c), has to appoint the trustee including founder trustee, by making enquiry if there are rival claims, and after obtaining such finality of appointment of tmstee(s) including founder trustee(s), the assistant commissioner under the aforementioned circular has to make entries in the register to be maintained under section 43(4)(b) of the act.4. the said mandatory procedure having not been followed, we hereby declare that the appointment of 5th respondent as trustee is invalid and accordingly, the impugned order is set aside. the concerned deputy commissioner will now take upthe matter and make an enquiry by issuing notice to the petitioners and the 5th respondent and also by publishing a general notification calling for objections and hear them and pass orders identifying and appointing the hereditary/founder trustee of the institution concerned within a period of four months from the date of receipt of this order. we make it clear that pending such decision by the deputy commissioner concerned, the 5th respondent who is functioning as on today shall continue to function but under regular monitoring by the 4th respondent particularly with regard to accounting.5. the writ petition is accordingly allowed. no order as to costs.

Judgment:
ORDER

B. Subhashan Reddy, J

1. This writ petition has been filed questioning the appointment of 5th respondent as the Founder-Trustee of the endowment institution concerned. The Endowment concerned has got an annual income between Rs.50,000/- and Rs.5,00,000/- and as such it falls in the category of institutions under Section 6(b)(i) of the A.P. Charitable and Hindu Religious Institutions and Endowments Act, 1987 (hereinafter referred to as 'the Act'). The 5th respondent was appointed as Founder-Trustee by the Assistant Commissioner-fourth respondent vide proceedings dated 30-12-1998. The Founder-Trustee has to be appointed because of the judgment of the Supreme Courtinterpreting the provisions of the Act. There is a claim of the petitioners for such appointment and as such there is a dispute and the dispute has to be resolved. It is stated that there was no such notification issued so as to enable the Trustees like the petitioners to make any claim.

2. Be that as it may, the impugned order of appointment as confirmed by the Regional Joint Commissioner itself is in violation of Sections 15 and 17 of the Act. The said sections read together make it clear that it is the Deputy Commissioner who has to make appointment in respect of Section 6(b)(i) institutions. If there is a factual dispute with regard to the category of institutions, we would not have entertained this writ petition as it would involve a disputed question of fact requiring an enquiry. In the counter-affidavit filed by the Endowment authorities, it is admitted that the institution in question falls under Section 6(b)(i) category.

3. Mr. S. Satyanarayana Prasad, learned Government Pleader would argue that regardless of the fact that the institution in question falls under Section 6(b)(i) category, the fourth respondent, who is the Assistant Commissioner, is entitled to exercise his right under Section 43(4)(b) of the Act. He also makes a reference to the Circular No.15/5288/96 (Act and Rules) dated 25-3-1996 issued by the Commissioner (Endowments). In para-4 of the said Circular, it is stated that if there is no entry with regard to the name of the founder as contemplated under Section 43(4)(b) of the Act, an application has to be filed before the Assistant Commissioner to consider the claim and then the Assistant Commissioner after making an enquiry should make necessary entries. But, it is only a consequential act pursuant to the appointment of Founder Trustee and in fact it is a sort of ministerial act and not a statutory function. The statutory function vests in the Deputy Commissionerunder Section 15 of the Act, the procedure whereof is provided under Section 17 of the Act and these provisions are mandatory and, there cannot be any exception to the same. When the Act names the authority and the manner in which that authority has to function, it is the basic tenet of interpretation of a statute that such a plain and unambiguous provision should not be twisted and distorted. It is not out of place to mention that there are Rules framed for appointing the Trustees which includes the Founder Trustee titled. Appointment of Trustees Rules, 1987 issued in G.O. Ms. No.258 Revenue (Endowments-I), dated 31-3-1998, which have been issued in exercise of the powers conferred by subsection (3) of Section 17 read with Section 153 of the Act. Under Rule 3, the Assistant Commissioner has to report to the authority competent to appoint trustees about the vacancy of trustee(s) and Rule 4 then enables the competent authority to appoint the trustee(s). The Circular aforementioned has to be interpreted in consonance with the said Rules. The net result is that the Assistant Commissioner has to notify the vacancy of trustee(s) and then the competent authority, may be the Assistant Commissioner or Deputy Commissioner or the Commissioner having regard to the category of institutions mentioned in Section 6(a)(b)(c), has to appoint the Trustee including Founder Trustee, by making enquiry if there are rival claims, and after obtaining such finality of appointment of Tmstee(s) including Founder Trustee(s), the Assistant Commissioner under the aforementioned Circular has to make entries in the Register to be maintained under Section 43(4)(b) of the Act.

4. The said mandatory procedure having not been followed, we hereby declare that the appointment of 5th respondent as Trustee is invalid and accordingly, the impugned order is set aside. The concerned Deputy Commissioner will now take upthe matter and make an enquiry by issuing notice to the petitioners and the 5th respondent and also by publishing a general notification calling for objections and hear them and pass orders identifying and appointing the hereditary/founder trustee of the institution concerned within a period of four months from the date of receipt of this order. We make it clear that pending such decision by the Deputy Commissioner concerned, the 5th respondent who is functioning as on today shall continue to function but under regular monitoring by the 4th respondent particularly with regard to accounting.

5. The writ petition is accordingly allowed. No order as to costs.