A. Rajaiah vs Govt. of A.P. and others

Jeevan Reddy

By his proceedings dated 16-8-1977 the Deputy Commissioner, Endowments, Hyderabad, appointed seven persons, including the petitioner herein, as non-hereditary trustees of "Sree Ujjaini Mahankali Devasthanam" Secunderabad, By another proceeding of the same day, the Deputy Commissioner called upon the members of the Trust Beard to assemble for a special meeting of the Trust Board to be held within the premises of the temple at 2-30 p.m. on 26-8-1977 for electing a Chairman. Only four members attended the meeting and since, according to the Rules the quorum is live, the meeting was adjourned. Another meeting of the Trust Board was convened on 9-9-1977 for the same purpose. Even at this meeting the three members, who did not attend the first meeting, again did not attend. Sometime later the three members, including the petitioner, came forward with explanations for their absence at the said two meetings. The record does not show whether the reasons assigned by them for their absence were accepted as true, or not. Be that as it may, on 19-9-77 the Asst. Commissioner administered the oath to the said three members. (The other four members were administered oath even at the first meeting). By his proceeding dated 7-12-1977 the Deputy Commissioner nominated the petitioner as the Chairman of the Trust Board u/s 17 (1) of the Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act, 1966 (hereinafter referred to as "The Act"), on the ground that no Chairman was elected within sixty days. Against the said order, a revision appears to have been filed by other member to the Government which has been allowed under the impugned order. The order of the Deputy Commissioner nominating the petitioner as the Chairman, has been set aside, with the result that a meeting has now to be called for electing the Chairman.

Mr. G. Suryanarayana Murthy, the learned Counsel for the petitioner, assails the basis of the Government''s order and contends that since sixty days elapsed from the date of constitution of the Trust Board, without the trustees electing a Chairman, the Deputy Commissioner was within his powers to nominate a Chairman. It is argued that after the oath of office was administered to the remaining three trustees on 17-9-1977, it was not obligatory upon the Deputy Commissioner or the Asst. Commissioner to call for another special meeting for electing a chairman. Indeed, according to the learned counsel, the Rules contemplate only two special meetings for this purpose, and no third meeting is contemplated or is permissible.

On the other hand, the learned Government Pleader and Sri. R. Venugopala Reddy, the learned Counsel for the 3rd respondent; contend that the Rules do not prohibit a third special meeting and that, in the light of the scheme of the Act and the Rules, the authorities, ought to have called for another special meeting after the other three members were administered the oath of office. It is pointed out that the remaining three members, including the petitioner, were administered the oath of office on the thirty-first, day after the constitution of the Board, and there was sufficient time for convening a special meeting. It is argued that the three members, including the petitioner, deliberately absented themselves from the first two special meetings with a view to foil the election of a chairman from among the majority group. The said three members were in minority and, by absenting themselves, they saw to it that there was no quorum, and thereby brought about a situation where a Chairman had to be nominated. It is argued that no interference is called for by this court under Art. 226 in favour of such persons.

Sub-Section (1) of Section 17 of the Act, which is relevant for our purpose, reads as follows;--

(1) In the case of a Charitable or Religious institution or endowment which has no hereditary trustee or trustees and for which a Board of Trustees is constituted u/s 15, the members of the Board of Trustees shall, within such period not exceeding sixty days and in such manner as may be prescribed, elect from among themselves a Chairman; and if no Chairman is elected within the prescribed period, the Government in the case of a Board of Trustees constituted under clause (a) of sub-section (1) of Section 15, and the Commissioner in the case of any other Board of Trustees, shall nominate one of the members as Chairman.

Rules have been framed under sub-sections (1) and (2) of Section 17, which are contained in G.O.Ms. No. 376 dated 20-3-1969. Rule 1 of these Rules says that the Chairman of the Board of Trustees shall be elected at a special meeting convened for the purpose within a period of sixty days from the date of constitution of the Board and that, the election shall be held by secret ballot. Rule 2 prescribes the authority who should convene such meeting, and the procedure to be followed in case of equality of votes. Rule 3 prescribes the quorum. Where the Board of Trustees consists of seven persons, the quorum is five. Rule 4 provides that the special meeting shall be convened in the premises of the institution or the endowment concerned and that, the authority convening the meeting shall issue notices by Registered Post with Acknowledgment Due, or by service through a local messenger to all the members, specifying the date, time and the place of such meeting. Rule 5 states that where a special meeting could not be convened either for want of quorum or for any other reason, the concerned authority shall convene a special meeting in accordance with Rules 1 to 4, for a second time. Rules 6 to 8 are not relevant for the present purpose.

A perusal of the above provisions makes it clear that after a Board of Trustees is constituted u/s 15, the members of the Board shall have to elect a Chairman from among themselves within a period of sixty days in the manner prescribed by the Rules; and if no Chairman is elected within the said period, a Chairman has to be nominated by the Commissioner or the Government, as the case may be. The Rules prescribe the several details concerning the convening the meetings and the procedure at such meetings, which are called ''special meetings.'' They neither prohibit a third meeting, nor do they expressly provide for convening of a third meeting, in the case the two special meetings prescribed for the purpose, could not be convened for one or the other reason.

In this case, notices as contemplated by the Rules were issued for the first meeting, as well as the second meeting. These notices were served upon all the seven members. For the first special meeting, only four members attended and since they did not make up the quorum according to Rule 3, the meeting could not be held The oath of office was, however, administered since section 16 (2) does not require that the oath of office shall be administered only in a meeting of the Board. The second meeting also failed for lack of quorum, because only four trustees an ended on this occasion also. It is after these two meetings were held that the three members, including the petitioner, came forward with certain explanations for their absence at the first two meetings, and they were administered the oath of office on 17-9-1977. Probably because the Rules do not expressly provide for a third special meeting for the purpose of electing a chairman, no further meeting was called for even after administering the oath of office to the remaining three members, and the authorities proceeded to nominate the Chairman.

The reasoning of the Government for setting aside the nomination of the petitioner as Chairman, is as follows. When the three members did not attend the first two meetings inspite of due service of notice, the Deputy Commissioner ought to have taken action against them u/s 26 (1) (a) for failure to discharge their duties as trustees. Instead of doing that, he nominated one of such members as the Chairman. Further, the special meeting for electing a Chairman can be held only after all the trustees have taken the oath of office and not earlier thereto. In this care, no special meeting was called after all the trustees have taken the oath of office. Therefore, the position in law is that no special meeting has so far been convened in this case. The nomination of the petitioner as Chairman u/s 17 (1) is, therefore, illegal.

The reasoning of the Government that a special meeting can be called only after all the trustees have taken the oath of office, does not appear to be warranted by law. There is no specific provision to that effect. Section 16 (2) merely says that before a trustee enters upon his office, he shall be administered an oath of office and secrecy, according to the form prescribed for the purpose. Rule 3 of the Rules framed u/s 17 (1) of the Act, fixes the quorum at five, where the membership of the Board is seven. In other words, if 5 out of 7 members attend, the special meeting can be held. It is true that before the election of the Chairman is held, oath of office and secrecy has to be administered to the members but, the law does not require that all the members should be given the oath of office and secrecy before the special meeting is convened. Oath can be administered at the meeting itself before it transacts any business, including the election of Chairman. Oath can also be administered even before convening the meeting. There is nothing prohibiting such a course in law.

The second reason given by the Government in support of it''s order, is that when, the three trustees failed to notice, action ought to have been initiated against them u/s 26 by the Deputy Commissioner nominated one of them as the Chairman. It is true that if the members of the Board fail to attend the two special meetings inspite of service of notice therefor they can be proceeded against for failure to discharge the duties, and can be be removed, suspended or dismissed under Sec. 26. But, in this case, before the Deputy Commissioner could probably think of initiating any action the three members came forward with certain explanations for their absence at the said two meetings. The record does not show whether the said explanations were accepted or rejected. The fact, however, remains that they were administered the oath of office by the Assistant Commissioner on 17-9-1977 (The said explanations were addressed to the Asst. Commissioner, as well as to the Deputy Commissioner. In fact, the record shows that by a letter dated 15-9-1977, the Deputy Commissioner authorised the Asst. Commissioner to administer the oath of office and secrecy to the said three members, and it is in pursuance to the same that the Asst. Commissioner administered the oath to them. But, even if action were to be taken against the three members u/s 26 of the Act, it would still not have made any deference so far as the present issue is concerned, since a Chairman had any how to be nominated by the appropriate authority in case sixty days elapsed from the date of constitution of the Board, without a Chairman having been elected by the members.

But, I am inclined to agree with Mr. R. Venugopala Reddy the learned Counsel for the 3rd respondent that, in this case, the Asst. Commissioner/Deputy Commissioner ought to have called another special meeting for electing a Chairman The Act does not speak of number of meetings nor does the Act say that the election, if at all, has to be held only in the first two meetings. The Rules also do not say so. Of course the Rules specifically speak of a second meeting but not of a third meeting in case the first two meetings could not be convened for any of the reasons stated in Rules. Accepting Mr. Suryanarayana Murthy''s contention, that the authorities have no power to convene a third meeting within sixty days, would amount to an uncalled for abridgement of the clear language in sub-section (1) of Section 17. An illustration would suffice; according to the Act, only where a Chairman is not elected by the members within sixty days can a Chairman be nominated. But, if it is held that within sixty days only two special meetings can be held and no more, and the two special meetings are held, as in this case, within 24 days of the constitution of the Board, then it would follow that a Chairman can be nominated immediately after the twenty-fourth day. The authority nominating the Chairman would then be able to say that since the Rules contemplate only two meetings, and because no Chairman has been elected in those two meetings and also because no other special meeting can be held, he has no option but to nominate a Chairman. He need not wait for sixty days-such waiting would have no meaning. On the other hand, it would be reasonable to hold more particularly when there is no prohibition in the Rules-that the Rules do not prohibit the holding of a third or fourth meeting, if necessary, within sixty days. The stress should not be on the number of meetings, but on the period of sixty days. Merely because Rule 5 speaks of convening of a second meeting it does not follow that a third or a fourth meeting cannot be convened even if it is necessary. Since the Chairman can be elected only at a meeting convened in accordance with the Rules, the appropriate authority is under an obligation to take reasonable steps to convene the required meeting or meetings, as the case may be, within the said period.

Now looked at from the above angle, the two meetings were called within twenty-four days of the constitution, but could not be held for want of quorum. The three members were sworn in on thirty-first day of constitution. There were still 29 days left within which another meeting could easily have been called. (Rule 4 requires ten clear days'' notice for the purpose) Having not called such meeting the authorities were not empowered to nominate a Chairman. Indeed, the nomination in this case was made only on 712-1977, i.e. after a lapse of more than 3 1/2 months. The Government''s order can, therefore be justified on the above basis.

It should be noticed that once a Chairman is nominated, them can be no election of Chairman during the entire term of the trustees. The scheme and intendment of the Act is that thee should be an elected Chairman. Only in cases where a Chairman is not elected within the period prescribed is a nomination to be made. The petitioner was merely nominated as a Chairman, and not elected. I do not see any justification for his trying to cling to the office. That may at least be justified in the case of an elected office-holder. Nor is this is an office of profit. In the circumstances, it is but proper that an election he held for office of Chairman. For the above reasons, the writ petition fails and is, accordingly, dismissed but, in the circumstances without costs.