Telangana High CourtSri Venkateswara Swamy Vari ... vs State Of Telangana, on 14 November, 2018In the High Court of Judicature at Hyderabad
  for the State of Telangana and the State of Andhra Pradesh

           WRIT PETITIONS No. 21677 of 2007 & BATCH


Between:

G. Rajenderanath Goud

                                                                      ... Petitioner

and



The Government of Andhra Pradesh,

Rep. by its Secretary, Endowments Department & others

                                                                   ...Respondents


Date of Judgment Pronounced: 14-11-2018
Submitted for Approval:
        The Hon'ble Sri Justice CHALLA KODANDA RAM


      1. Whether Reporters of Local newspapers                   Yes/No
         may be allowed to see the judgments ?

      2. Whether the copies of judgment may be                   Yes/No
         marked to Law Reporters/Journals

      3. Whether His Lordship wish to                            Yes/No
         see the fair copy of the Judgment ?



                                                        ________________________
                                                         (CHALLA KODANDA RAM, J)
                                              2




         * The Hon'ble Sri Justice CHALLA KODANDA RAM
            WRIT PETITIONS No. 21677 of 2007 & BATCH
                                   % Dated 14.11.2018

Between:

G. Rajenderanath Goud

                                                                                 ... Petitioner

and

The Government of Andhra Pradesh,

Rep. by its Secretary, Endowments Department & others

                                                                              ...Respondents

! Counsel for the petitioners :    Sri K. Govind, Sri Ch. Satish Kumar, Sri Sreekanth

                                    Reddy Ambati, Sri P.Rajasekhar, Sri T. Sanjay Rao, Sri

                                    Venugopal Reddy, Sri V.S.K. Rama Rao, Sri

                                    K.R.Pbabhakar, Sri V.V.N. Narayana Rao, Sri V.

                                   Venugopala Rao, Sri M. Jayaram Reddy, Sri K.

                                   Muralidhar Reddy, Sri Sudarshan Reddy Duddugunta,

                                   Sri D.V. Sasidhar, Sri P. Yadagiri Rao, Sri Goparaju Ravi,

                                   Smt. K. Lalitha (SC for Endowments), A.Sreekanth

                                   Reddy(SC for Endowments ).



^ Counsel for the respondent : GP for Endowments, Sri S.S. Varma, Sri N. Subba Rao,

                                  Sri Venugopala Rao, Sri N. M Ranga Rao



GIST:

HEAD NOTE:

?1. 2011 Law Suit (Kerala) 690

2. AIR 2010 Andhra Pradesh 127

3. (2002) 25 ITR 123 (Delhi)
                                   3




     THE HON'BLE SRI JUSTICE CHALLA KODANDA RAM

W.P.Nos. 21677 of 2007, 1504, 7469, 7471, 943 and 9580 of 2008, 19399
of 2011, 23354, 29396, 29858, 32702, 32934, 39731, 6560 of 2012,
11142, 11164, 12661, 13005, 20228, 21737, 23441, 26454, 31279, 36210,
36692, 38114, 38309, 5823, 190 of 2013, 12886, 12890, 188, 23068,
23443, 25472, 25473, 25474, 25837, 26454, 27649, 34117, 36406, 37738,
38424, 38939, 39427, 39822, 40414, 40804, 9036, 9045, 9102, 9104 of
2014, 10473, 20291, 27280, 39603, 4311, 5207, 9480 of 2015, 10045,
12741, 11067, 11734, 13381, 17412, 17965, 19199, 19976, 19992, 22519,
26851, 34053, 4717, 9121 of 2016, 10790, 11798, 20570, 22178, 3833,
38757, 6429 of 2017, 11615, 12495, 12538, 14988, 18865, 18869, 18942,
19468, 8994, 20195 and 9202 of 2018

COMMON ORDER :These Writ Petitions filed by various religious institutions,

charitable endowment trusts and some of the trustees / Executive

Officers of temples are heard together, as, they all, in essence,

questioned either invocation of the provisions of theRight to

Information Act, 2005(for short, 'the 2005 Act') with respect to

their organizations or the circulars issued by the government

directing the respective organizations to designate and constitute

'Public Information Officers' and other    officers to operationalize

the mechanism for providing information under the 2005 Act.Insofar as State of Telangana is concerned, counter-affidavits

filed in W.P.No. 21677 of 2007 is requested to be taken as a

common counter-affidavit in all the Writ Petitions and insofar as

the State of Andhra Pradesh is concerned, they have also filed a

common counter-affidavit, to be treated as the one in respect of all

the Writ Petitions. In addition, on behalf of the State of Andhra

Pradesh, the letter addressed by the Commissioner, Endowments

Department, to the learned Government Pleader bearing No.

Lr.In.RC.No.U1/Courts/13703/2012,         dated   20.07.2018     was

placed on record. The essence of the said letter is that the 2005 Act

cannot be made applicable to the details regarding rituals that are

being performed in the temples as per Agama Sastra. In the said4communication, it was further stated that there is no governmental

/ budgetary support to the temples / religious or charitable

institutions and hence, they are not receiving any funds from the

government either for its administration or governance and further

the government has no role in establishing the temples or religious

institutions.In all these cases, the issue raised being purely a question of

law, ie. to deal with interpretation of the provisions of the 2005

Act   or some or the other provisions of theAndhra Pradesh

Charitable and Hindu Religious Institutions & Endowments Act,

1987(for short, 'the Act'), it is not necessary to set out, in detail,

the factual scenario. However, for convenience sake, the prayer,

averments in the affidavit filed in support of Writ Petition No.

21677 of 2007 and the stand taken by the respondents in their

respective counter-affidavits are briefly summarized hereunder:"To declare the proceedings in Rc.No. K3/32011/07, dated

27.09.2007 of the 3rd respondent Commissioner, Endowments

Department, whereby the Executive Authority of Sri Venkateswara

Swamy Devasthanam, Chikkadpally was requested to furnish the

information sought by the applicant - the 4th respondent herein

directly as per Rules underSection 6(3)(ii)of the Right to

Information Act, 2005, under intimation to the said office, as

arbitrary and illegal and consequently, to declare that the subject

temple is not a 'public authority' under the 2005 Act, the petitioner

who is a Founder Family Member, filed the Writ Petition."The case of the petitioner is that his paternal grandfather

late Sri Gudidevuni Jangaiah Goud constructed the subject temple5and he was the founder of the same. While so, the Deputy

Commissioner of Endowments declared the petitioner as hereditary

trustee, by order dated 23.05.1987 in O.A. No. 1 of 1987.

According to the petitioner,Section 23of the 1987 Act governs the

powers of the trustee to administer the affairs, management and

the properties of the temple.While the matter stood thus, it is the further case of the

petitioner that the 4th respondent herein applied to the Executive

Officer of the subject temple seeking information under the 2005

Act and the Executive Officer, in turn, sought clarification from the

Commissioner    of   Endowments.      The   3rd   respondent   Deputy

Commissioner vide proceedings impugned, requested the Executive

Officer to furnish the information as sought by the 4th respondent.

It is also the further case of the petitioner that though Act 22 of

2005 was enacted to provide information to the citizens, to curtail

corruption and to hold governments and their instrumentalities

accountable, the subject temple is not an instrumentality of the

State and the Executive Officer is not a 'public authority', as

defined underSection 2(h)of the 2005 Act.The 2nd respondent had filed the counter-affidavit stating

that the subject temple is a public religious institution and it has

been published underSection 6(a)(ii)of the 1987 Act and the

Executive Officer is responsible for the administrative functions of

the temple. The 4th respondent, who is the brother of the

petitioner- founder family member, had filed O.A.No. 10 of 2006

before the Deputy Commissioner to recognize him as Member of

the founder family of the subject temple and during the course of6enquiry, the 4th respondent had filed an Application under the

provisions of the 2005 Act seeking certain information regarding

the affairs of the temple. It is stated that since there is a statutory

obligation on all the public authorities to comply with the

provisions of the 2005 Act, the Office of the Commissioner, had

directed the Executive Officer to furnish the information as the

information sought is very much available in the Office. It is

further stated thatSection 29(5)(a)of the 1987 Act reads "The

Executive Officer appointed under this Section shall be under the

administrative control of the trustee of the institution or endowment

and shall be responsible for carrying out all lawful directions issued

by such trustee from time to time". It is the ultimate case of the 2nd

respondent that the petitioner is a vexatious litigant and as of now,

as many as 20 to 30 Writ Petitions filed by him are pending

adjudication and the 4th respondent is rightly entitled to seek the

information required under the 2005 Act.The petitioner filed the reply-affidavit denying the counter-

allegations made by the 2nd respondent.Heard Sri R. Raghunandan Rao, learned Senior Counsel who

elaborated and supported the arguments of Sri K. Govind,

Sri Ch. Satish Kumar, Sri Sreekanth Reddy Ambati, Sri P.

Rajasekhar, Sri T. Sanjay Rao, Sri Venugopal Reddy J., Sri V.S.K.

Rama Rao, Sri K.R. Prabhakar, Sri V.V.N. Narayana Rao, Sri V.

Venugopala Rao, Sri M. Jayaram Reddy, Sri K. Muralidhar Reddy,

Sri   Sudarshan     Reddy      Duddugunta,     Sri   D.V.   Sasidhar,

Sri P. Yadagiri Rao, Sri Goparaju Ravi, Smt. K. Lalitha, learned

Standing     Counsel     for    Endowments       (Andhra     Pradesh),7Sri       A.     Sreekanth       Reddy,     learned     Standing     Counsel   for

Endowments              (Telangana),      learned     Government     Pleader   for

Endowments for both the States, Sri S.S. Varma, Sri N. Subba

Rao, Sri Venugopala Rao, Sri N.M. Ranga Rao for the unofficial

respondents opposing the grant of relief prayed for in the Writ

Petitions. In Writ Petition No. 39427 of 2014, Sri Patibandla

Prabhakar, learned counsel contends that the petitioner is the

water tank popularly known as 'Munagalavari Cheruvu, Kollipara',

represented by the hereditary trustee. Hence, it does not fit in the

definition of 'public authority'. In Writ Petition No. 13550 of 2013,

Sri Rajsekhar, learned counsel submits that the petitioner is a

math, as defined underSection 2(17)of the 1987 Act, governed by

Sections 47 and 48 thereof. According to him, the Executive

Officer, underSection 29(3)(c)has to function under the trustees

or Trust Board. Though appointed by the government,                            the

Executive Officer is under the control of the Trust Board, and that

they are not under the control of the Commissioner. He places

reliance onSections 6,14,15of the said Act.All the learned counsel, in unison, placed reliance on the

Division Bench judgment of Kerala High Court in Bhanunni v.

Commissioner, Hindu Religious and Charitable Endowments

(Admn.) Department1 apart from other judgments as they

squarely cover the issue in their favour.After      advancing     arguments,         to   assist   the   Court,

Smt. K. Lalitha, learned Standing Counsel appearing in large12011 Law Suit (kerala) 6908number of Writ Petitions, has formulated the following issues for

consideration of this Court:1) What is the purport and scheme of theRight to Information Act,
      2005?2) Who is a public authority as defined underSection 2(h)of the
      Right to Information Act? Whether the Temple falls within the
      ambit and scope of the definition of 'public authority'?3) Whether the Commissioner has the power to issue the impugned
      memo treating the temple as an administrative unit underSection
      5of the Act?4) Whether the Commissioner and other officers of the Endowments
      Department being the public authorities are duty-bound to give
      any information pertaining to the temple?5) Whether it can be said that by virtue of the provisions of the 1987
      Act, particularly in view ofSections 18,23, 87 and 157, the affairs
      and information in relation to the temple can be brought within
      the purview of theRight to Information Actor not.


      It is the emphatic contention of all the learned counsel for

the petitioners that temples / charitable institutions do not answer

the description 'public authority', as defined underSection 2(h)of

the 2005 Act, hence, there is no obligation on Trustees,

Chairpersons, Trust Boards and Executive Officers of the subject

institutions to respond and furnish 'information' in relation to the

temples / institutions under theRTI Act.At the outset, it may be noted that the various High Courts

and the Supreme Court held that the 2005 Act does not have any

application with respect to a temple, whether the same is under

the control of the Endowments Department or otherwise.                The

reasoning given      in all the above judgments is based on the

definition of 'Public Authority' underSection 2(h)of the 2005 Act,

which is required to be established or constituted - (a) by or under

the Constitution; (b) by any other law made by Parliament; (c) by

any other law made by State Legislature; (d) by notification issued9or order made by the appropriate Government, and includes any-(i) body owned, controlled or substantially financed; (ii) non-

Government       Organization   substantially   financed,   directly   or

indirectly by funds provided by the appropriate government. It may

also be noted thatSection 4, casts certain obligations on public

authorities, more specified in sub-section (1)(a)&(b).            A close

scrutiny of the details mentioned therein, when read conjointly

with the definition underSection 2(h), leaves no manner of doubt

that a 'public authority' must necessarily be a body or institution

in contra-distinction to an individual officer or a public servant as

normally understood; for example, an Executive Officer, a District

Collector, Commissioners under various enactments, a bank

manager, etcetera. The individual-designated authorities may be

officers / managers of an institution, who may be responsible

under their respective charter/constitution to be in possession of

or to maintain records etc. containing information, but by that

itself, the said designated officers cannot be said to be public

authorities for the purpose of the 2005 Act. This would also

become clear on account of the obligation            cast on the public

authority {a body or institution satisfying the ingredients as

defined underSection 2(h)} to designate Public Information

Officers, Assistant Public Information Officers, Senior Officers in

all their administrative units / offices, as otherwise, it would be

meaningless for the officer to impose obligation on self and create a

structure   of    Public   Information    Officer,    Assistant    Public

Information Officer, etcetera besides maintaining various records.

In those circumstances, the words 'Public Authority' (not Public

Authorities) appearing inSection 4have to be given a restrictive10meaning. It may be noted thatSection 2begins with "In this Act,

unless the context otherwise requires--".      In the context of the

statutory scheme of the Act, what is required to be considered is

'whether a temple would satisfy the parameters prescribed under

the Act to be termed as 'public authority' as defined underSection

2(h)'.On a close examination ofSection 2(h), applying the tests

laid in the definition, it would be clear that the same does not fall

underSection 2(h)(a)(b)and (c) as the temple is not established or

constituted by or under the constitution, or by any other law made

by the Parliament or State Legislature.      The establishment or

running the affairs of the temple cannot be said to be either owned

or controlled or substantially financed by the government. Though

a temple could be said to be a non-governmental organization, as it

does not depend for its finances, in any away, much less

substantially, on the government either directly or indirectly, the

same is also outside the purview ofSection 2(h)(d)(ii). In this

context, the argument of the learned counsel Sri N. Subba Rao, to

bring a temple within the scope ofRTI Actrequires to be examined.

Sri Subba Rao makes a reference to the definition of 'person having

interest' underSection 2(18)of the 1987 Act to contend that a

devotee is a 'person interested' and keeping in view the objects of

the enactment of the 2005 Act, a devotee is entitled to obtain the

information within the parameters specified under the said Act.

Further, underSection 6, every temple with a specified income is

required to be registered and it has to maintain certain records in

relation to the properties and various other aspects specified under

the Act and underSections 23, 87(4), the State Government /11Commissioner / Dharmik Parishad are entitled to constitute Board

of Trustees, the governing bodies, Executive Officer person-in-

charge for managing the affairs of the temple which establish a

deep and pervasive control of the government with respect to the

affairs of the temple thereby equating a temple with the public

authorities / State Organization as normally understood underArticle 12of the Constitution of India.            To examine the above

argument, one may notice relevant sections as quoted by the

learned counsel:" 23: Powers of trustee: (1) The trustee of every charitable or
    religious institution or endowment shall administer its affairs,
    manage its properties and apply its funds in accordance with the
    terms of the trust, the usage of the institution or endowment and all
    lawful directions which a competent authority may issue in respect
    thereof and as carefully as a man of ordinary prudence would deal
    with such affairs, fund and properties if they were of his own.(2) A trustee shall, subject to the provisions of this Act, be
    entitled to exercise all powers incidental to the prudent and
    beneficial administration of the charitable or religious intuition or
    endowment and to the performance of the functions entrusted to
    him.(3) A trustee shall not spend the funds of the charitable or
    religious institution or endowment for meeting any costs, charges or
    expenses incurred by him in any suit, appeal or application or other
    proceedings for or incidental to the establishment of his appointment
    to or removal from office or any disciplinary action taken against
    him:Provided that the trustee may reimburse himself in respect of
    such costs, charges and expenses if he is specifically permitted to do
    so by an order passed under Section 136............... .87: Power of Endowments Tribunal to decide certain
    disputes and matters: (4) The presumption in respect of matters
    covered by clauses (a), (b), (c), (d) and (e) in sub-section (1) is that
    the institution or the endowment is a public one and that the
    burden of proof in all such cases shall lie on the person claiming the12institution or the endowment to be private or the property or money
     to be other than that of a religious endowment or specific
     endowment, as the case may be."The argument of the learned counsel so far as the power of

the State or its authorities with respect to monitoring certain

affairs of the temple cannot be denied, however, the question

which begs consideration is whether, in the first instance, the

institution itself falls within the definition of 'public authority', as

defined under the Act and not as understood either in general

parlance or for the purpose ofArticle 12/ 226of the Constitution

which expanded the parameters of the 'State'. The answer would

be a definite 'no' on account of the statutory provisions restricting

the scope and authority in the Act. This answers Point Nos.1, 2

and 5.So far as point Nos. 3 and 4 are concerned, once point Nos.

1, 2 and 5 are answered in the negative, it cannot be said that the

Commissioner is vested with the power to direct temples to

establish a hierarchy required to be established underSection 5of

the Act by notifying Public Information Officers / Assistant Public

Information Officers / Senior Officers.          As a matter of fact, a

Division Bench of Kerala High Court in Bhanunni's case (cited

supra) held that the Hindu Religious Institutions and endowments

are not the 'public authorities' as defined in theRTI Actand the

provisions of that Act do not apply to those institutions and their

offices, officers and employees and the Executive Officer, if any

appointed by the government. In Writ Petition No. 28068 of 2007,

the learned Single Judge of this Court had also taken the view that

Sri Venkateswara Swamy Temple, Narsipatnam represented by the

petitioner therein is not the 'public authority', as defined under13Section 2(h)of the 2005 Act and the provisions of the said Act are

not applicable to the Endowments Institutions and hence, it is

concluded that the impugned memo is not applicable to the

petitioner's temple.Though there may be officers in organization but they do not

fit into the definition of 'public authority' by applying the principle

of ejusdem generis.Further, in Sri Bhavana Rishi Co-op. House Building

Society v. A.P. Information Commission2, a learned Single

Judge of this Court held that a cooperative society registered under

theCooperative Societies Act, which is not substantially financed

or funded either directly or indirectly by the government, would not

fall within the expression 'public authority', as defined underSection 2(h)of the RTI Act. However, in the process, by taking into

considerationSections 2(f)and2(n)of the Act and by making a

reference to the 'person' inSection 3(42)of the General Clauses

Act, 1897 and in the context ofSections 8(1)(b)and8(1)(j), had

held that the Registrar of the Cooperative Societies is bound to

furnish        information        in   relation   to   the   cooperative   society

notwithstanding the fact that such cooperative society is not a

public authority and thus, indirectly, brought the Cooperative

Society albeit through the Registrar under the purview of theRTI

Act. With due respect, I am unable to agree with the said reasoning

as it is well-settled that the purpose of a definition, though the

'information', as defined underSection 2(f)encompasses its scope

which can be accessed to by a public authority under any law for2AIR 2010 Andhra Pradesh 12714the time being in force( the information that could be obtained by

the authority), the emphasis being the information that could be

accessed to by a public authority as defined under the Act and not

by an officer (normally referred as an authorized officer /

competent authority) . The distinction to be understood is 'public

authority' as defined under the Act in contrast to 'public authority'

as normally understood in common parlance. In that view of the

matter, the institution or the temple being outside the purview of

theRTI Act, the Commissioner or any authority under theEndowments Actwould not be under an obligation to furnish

information other than the information within their knowledge by

specifically accessing thereto, invoking the provisions of theRTI

Actnotwithstanding the fact that the Office of the Commissioner or

the Endowments Department satisfying the definition of 'public

authority'. The reasoning of the learned Single Judge to cast an

obligation on the Registrar of the Cooperative Society was the

definition of 'information' which is inclusive of not only the

information in their possession but also the information that could

be accessed to by a 'public authority'. In this context, the purpose

and scope of 'definition' is well settled i.e. to define a particular

word, and the same by itself does not confer any right or obligation

or empower an officer unless there is a corresponding provision

under the Act.As a mater of fact, the judgment of the Supreme

Court inNalini Mahajan v. Director of Income Tax (Inv)3, in the

context of considering the definition of 'director', had held as

under:3(2002) 25 ITR 123(Delhi)15" 82. Mr. Khanna, however, has placed reliance on a decision
     of the Punjab and Haryana High Court in Vinod Goel and Ors. V.
     Union of India and Ors. MANU/PH/1927/2001. With utmost respect
     to the learned Judges, we cannot subscribe to the views expressed
     therein. Mr. Khanna pointed out thatSection 132of the Act is a
     separate code in itself.    If a broad meaning, as is sought to be
     contended by Mr. Khanna to the definition of 'Director' as contained
     inSection 2(21)of the Act is assigned, authorizing officer and
     assessing officer although may be different persons, would come
     within the purview thereof, which could never be the intention of the
     legislature.83. Furthermore, had the Additional Director been covered
     within the purview of the definition of Director General or Director,
     there was no necessity of defining Joint Director again, as has been
     done inSection 2(28D)of the Act      in terms whereof also a Joint
     Director would be an Additional Director.84. Interpretation clause is not a positive enactment.   It is
     also well settled that an interpretation clause, having regard to its
     limited operation, must be given a limited effect. While giving effect
     thereto, the Court must not forget that the scope and object of such
     a provision is subject to its applicability and it is used having
     relation to the context only."                    (emphasis supplied)


         In the light of the above elaborate discussion, this Court is of

the opinion that the religious institutions like temples, churches,

mosques, which are not financed / funded by the government, do

not fall within the purview of the 2005 Act.Hence, all the Writ Petitions are allowed, setting aside the

impugned Memo issued by the Commissioner of Endowments. No

costs.In Writ Petition No. 29396 of 2012, the petitioner               in the

capacity       of     Chairman        and        Managing       Trustee        ofSri Venugopalaswamy Vari Temple, Nellore, seeks to declare the

action of the 2nd respondent          therein in entertaining the Appeal

filed by the 5th respondent underSection 19(3)of the 2005 Act as

illegal and arbitrary and to set aside the notice dated 03.09.201216which directed the petitioner to appear for hearing of Appeal on

21.09.2012 on the ground that the Memorandum issued by the 1st

respondent dated 27.11.2007 was not in force. Since the impugned

memorandum in all the above Writ Petitions itself is set aside, this

Writ Petition is liable to be allowed and the same is accordingly,

allowed.However, now a days, since the religious institutions are

receiving enormous amounts in the form of donations from various

sources, it is desirable to amend the Act at least to bring in its fold

all the registered temples / institutions having income over and

above a particular limit, to furnish information so as to have a

greater vigil with respect to utilization of the monies, conducting

affairs transparently and to achieve the objects of theRTI Act.The Miscellaneous Applications, if any shall stand closed._______________________________
                                        CHALLA KODANDA RAM, J



14th November 2018




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