S.C. Pratap, C.J.@mdashThis Appeal is preferred against the order of the learned single Judge dismissing Writ Petition No. 6293 of 1991.
2. Facts and circumstances, briefly stated, are as follows: Sri Arun Jyothi, Shri Natraj Murthy Ashram Committee, with seven members with the original writ petitioner as President for life was formed. In 1974 the Committee constructed ''Sri Raja Rajeswari Amma Varu'' Temple (for short, the temple) at Nellore. In 1981, the Assistant Commissioner, Endowments, directed the Committee to get the said temple registered u/s 38 of the Andhra Pradesh Charitable & Hindu Religious Institutions and Endowments Act, 1966 (hereinafter, ''the Act''). This order was challenged by the original writ petitioner in Writ Petition No. 2071 of 1981. The said petition was disposed of with a direction to the Writ Petitioner to approach the Deputy Commissioner of Endowments u/s 77 of the Act. In the meanwhile, the Assistant Commissioner of Endowments appointed in July, 1982 the fifth respondent and others as non-hereditary trustees of the temple. Writ Petition No. 5098 of 1982 questioning the said appointment, was filed. Pending the same, the Deputy Commissioner of Endowments, by his order of July 1983 dismissed O.A. No. 129 of 1983 filed by the writ petitioner and held that the temple aforesaid was a public religious institution. This order was challenged by another writ petition, namely, Writ Petition No. 7156 of 1983. Both these petitions were disposed of in April 1985 with a direction that the petitioner should approach the Deputy Commissioner of Endowments u/s 77 of the Act. In the meanwhile the writ petitioner filed O.A. No. 35 of 1985 for a declaration that he was the hereditary trustee and founder of the aforesaid temple. In March, 1986, declaration accordingly was granted.
3. In May, 1987, the Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act, 1987 (hereafter, the ''the new Act''), came into force. u/s 16 thereof, the right of a person for the Office of the hereditary trustee, or mutawalli or dharmakarta or mumtazim or by whatever name called, stood abolished on the commencement of the new Act. Questioning the validity of this Section the present writ petitioner filed Writ Petition No. 19253 of 1988. We understand that the said petition has since been transferred to the Supreme Court for being heard along with other similar matters. In January, 1989, the fifth respondent filed a revision before the State Government against the declaration in O.A. No. 35 of 1985. It was dismissed in August, 1989. The Writ Petitioner there after applied to the Deputy Commissioner of Endowments, Guntur, to hand over complete charge and management of the temple. While the said application was pending, the fourth respondent Assistant Commissioner of Endowments, invited applications for appointment of non-hereditary trustees. It was at that stage that the present writ petition was filed. The learned single Judge dismissed the writ petition holding that the same was filed after an unduly long time and further holding that the writ petitioner''s rights stood abolished with the aforesaid new Act coming into force. Hence this appeal.
4. Hearing Counsel on either side and considering the relevant provisions of the new Act, we are unable to agree with the impugned judgment. The declaration obtained by the writ petitioner in O.A. No. 35 of 1985 does not stand extinguished or abolished by virtue of the new Act. It continues to enure to the extent it declares the writ petitioner to be a hereditary trustee. Relevance of this declaration becomes apparent when we find that even under the new Act rights of hereditary trustee or family members of the founder-trustee, are not totally extinguished, but on the contrary and to some extent, are recognised and preserved. In the circumstances, the fact that the writ petition was filed after a long time, can have but limited relevance. The declaration continues to operate and if the authorities refuse to recognise or act thereon, nothing prevents the aggrieved party from approaching the Court by way of a writ petition, as in the instant case. It is a continuing cause of action and purported delay would not extinguish the same. In the context, it is relevant that the declaration has become final. Though a suit was maintainable challenging the same, no suit was filed. What is more, attempt to challenge the declaration by way of revision to the State Government also failed. The declaration that the writ petitioner was a hereditary trustee thus therefore, stands and continues to enure to his benefit and the benefit of the members of his family.
5. In the circumstances, we are also unable to agree with the finding of the learned Single Judge that all rights of hereditary Trustees (as distinguished from the office of hereditary trustee) stood extinguished by the new Act. Indeed, turning to the proviso to Sub-section (1) of Section 17 of the new Act, we find a mandate embodied therein that, while making appointments of trustees, one of the trustees shall be from the family of the founder, if qualified. Considering the position here, namely, that the original writ petitioner was undisputedly the founder of the trust which built the temple in question, he had, consistent with the legislative mandate supra, every right to contend that one of the trustees shall, if qualified, be from the family of the founder.
6. In the result, the appeal succeeds and the same is allowed. The impugned judgment is set aside. While making appointments of trustees and fixing their term u/s 17 of the new Act, the concerned authority shall not only have due regard to the religious denomination or any such section thereof to which the temple belongs, but it shall also have due regard to the wishes of the founder. The concerned authority shall also see to it that one of the trustees is from the family of the founder. The original writ petitioner, who has been all along asserting his rights as a founder-trustee, is unfortunately no longer alive. He expired in September, 1991. The present appellant is his son and successor-in-interest. As he belongs to the family of the founder-true tee, he will be entitled to be considered for appointment as one of the trustees in terms of the proviso to Sub-section (1) of Section 17 of the new Act. In the circumstances, there will be no order as to costs. Advocate''s fee Rs. 300/-.
