ORDER : This is an application under Art. 226 of the Constitution, for the issue of a writ of mandamus, directing the State of Andhra Pradesh, represented by its Secretary, Social Welfare Department, to forbear from taking action under Ss. 4 and 5 of the Charitable Endowments Act 1890.

2. The facts which have given rise to this writ petition may be briefly stated. On 5-6-1950, a society, called Pammulapati Buchi Naidu College Committee, with a provisional membership of eleven members, was formed with the object of promoting education. The Society was registered under the Societies Registration Act in the Assistant Registrars Office at Guntur on 10-11-1951.

It has started a College at Nidubrole. The rules and bye-laws framed for the conduct of the affairs of the Society provide for the composition of the Committee, for a Governing Body which is to consist of the President, Vice-President and Secretary of the College Committee and other members, including two representatives of the Andhra University and the Principal of the College.

It has been provided that the Governing Body shall have full responsibility for the day to day administration of the College. Among the persons who made donations to the Society are the petitioner, his brother-in-law and several others.

3. On 4-12-1956. one Prasada Rao, the President of the College Committee, and Seshagiri Rao, one of the members of the Governing Body, filed a petition before the Government of Andhra Pradesh -alleging serious defects in the management of the College. It was therein stated that they had obtained the sanction of the Advocate-General of Madras to file a suit under S. 92 of the Code of Civil Procedure.

They prayed that the Government might take action under S. 4 of the Charitable Endowments Act of 1890 and under S. 3 of the Madras Hindu Religious and Charitable Endowments Act, 1951, to appoint a Treasurer. The Government forwarded the petition to the Commissioner for Hindu Religious and Charitable Endowments, who directed the Special Officer to make an enquiry and submit a report.

Accordingly the Special Officer conducted a detailed enquiry. He submitted his report on 2-1-1957, wherein he recommended that a Treasurer might be appointed under Ss. 4 and 5 of the Charitable Endowments Act. The Board of Revenue, to whom the report was forwarded, recommended that action might be taken under Ss. 4 and 5.

4. On 21-4-1957, the Vice Chancellor of the Andhra University addressed a communication to the Minister for Law and Religious Endowments specifying certain acts of mismanagement on the part of the Committee and suggesting that as an alternative to the disaffiliation of the College, the Government might appoint a Special Officer to take over the administration of the College.

On 21-6-1957, a Committee of the Syndicate of the University, which was appointed to enquire into the irregularities in the management of the College, drew up an elaborate report, copies of which were sent to the Secretary and Correspondent of the College, and to Prasada Rao, President of the College Committee.

In his letter dated 20-6-1957, the Deputy Secretary to the Government in the Social Welfare Department, informed the members of the Governing Body that a meeting of that body might be convened immediately and a resolution passed in accordance with the rules and bye-laws, and that an application be made to the Government to take action under Ss. 4 (1) and 5 (1) of the Charitable Endowments Act for the appointment of a Treasurer.

Copies of this communication were sent to the Director of Public Instruction and to the Vice Chancellor of the Andhra University. It was also communicated to the petitioner.

5. On 4-7-1957, six members of the Governing Body passed a resolution requesting the Government of Andhra Pradesh to appoint a Treasurer and to frame a scheme for the College under Ss. 4 (1) and 5 (1) of Act VI of 1890. Whether this resolution can be considered as a valid application under the Charitable Endowments Act, is one of the matters in controversy in this Writ petition and I will deal with it presently.

According to the petitioner, the College Committee met on the evening of the same day and passed a resolution opposing the appointment of a Treasurer and also removing the President from his office.

6. Shortly stated, the petitioners case is that the properties belonging to the institution, namely, the College, have already vested in the Committee by virtue of its registration under the Societies Registration Act and there can be no revesting of the same property in a Treasurer under the Charitable Endowments Act; and that assuming, however, that the Charitable Endowments Act can be made applicable, there having been no valid application as contemplated by S. 4 or 5 of the Act, the proposed action of the Government is illegal besides being capricious and unreasonable.

7. In a counter-affidavit filed by the Deputy Secretary to the Government, the material averments made by the petitioner have been denied. It is asserted by him that the proposed action is valid.

8. Seshagiri Rao (who was one of the petitioners before the Government for the appointment of a Treasurer) and Prasada Rao have filed an application in this Court to implead them as respondents. They have filed an affidavit controverting the material allegations made by the petitioner. The petitioner has filed a reply affidavit reiterating the allegations made by him in his original affidavit.

9. The contentions of Mr. T. Lakshmiah, learned counsel for the petitioner, may be summarised as follows : The provisions of the Charitable Endowments Act cannot be applied to the society. The registration of the society is a final and conclusive act and the provisions of no other statute can be made applicable to the society. There was no valid application before the Government and therefore the proposed action is both unauthorised and unwarranted.

10. As already stated, the College Committee was registered under the provisions of the Societies Registration Act (XXI of 1860) in the Office of the Assistant Registrar at Guntur on 10-11-1951. Eleven members affixed their signatures to the memorandum containing the objects of the society and expressed their intention to form themselves into a Society.

11. Now, what is the legal effect of the registration of a Society? The Societies Registration Act was enacted for the registration of literary and scientific societies and the object of the Act, as stated in the preamble, is to make provision for improving the legal condition of societies established for the promotion of literature, science, or the fine arts or for the diffusion of useful knowledge, the diffusion of political education, or for charitable purposes.

Under the provisions of the Act. any seven or more persons associated for any literary, scientific, or charitable purpose, or for any such purpose as is described in S. 20 may, by subscribing their names to a memorandum of association and filing the same with the Registrar of Joint Stock Companies, form themselves into a society. The memorandum of association is to contain the name of the society, the objects of the society, the names, addresses and occupations of the governors, council, directors, committee, or other governing body to whom, by the rules of the society, the management of its affairs is entrusted.

The property, movable and immovable, belonging to a society may be vested in trustees, and if not so vested, is deemed to be vested for the time being in the governing body of such society, and in all proceedings, civil and criminal, may be described as the property of the governing body of such society by their proper title. Under S. 16 of the Act, the governing body of the society shall be the governors, council, directors, committee, trustees, or other body to whom by the rules and regulations of the society the management of its affairs is entrusted.

12. Mr. Lakshmayyas contention is that the society having been registered under the Act and the property of the College having vested in the Society, the Charitable Endowments Act cannot be invoked.

13. The Charitable Endowments Act (VI of 1890) was enacted with a view to provide for the resting and administration of property held in trust for charitable purposes. Section 2 of the Act defined charitable purpose as including relief of the poor, education, medical relief and the advancement of any other object of general public utility.

Under S. 3 of the Act, the Central Government may appoint an Officer of the Government by the name of his office to be treasurer of charitable endowments for India, and the Government of any State may appoint an officer of the Govt. by the name of his office to be treasurer of charitable endowments for the State. Section 4 is an important provision and it reads :

"Where any property is held or is to be applied in trust for a charitable purpose, the appropriate Government, if it thinks fit, may, on application made as hereinafter mentioned, and subject to the other provisions of this section, order, by notification in the Official Gazette, that the property be vested in the Treasurer of Charitable Endowments on such terms as to the application of the property or the income thereof as may be agreed on between the appropriate Government and the person or persons making the application, and the property shall thereupon so vest accordingly."

14. Sub-section (4) of S. 4 explains the nature of vesting in the Treasurer :

"An order under this section vesting property in a Treasurer of Charitable Endowments shall not require or be deemed to require him to administer the property, or impose or be deemed to impose upon him the duty of a trustee with respect to the administration thereof."

15. Section 5 provides for an application being made to the Government to settle a scheme for the administration of any property which has been or to be vested in the Treasurer of Charitable Endowments. Section 6 provides for the mode of applying for vesting orders and schemes. Under S. 8 of the Act it is provided that

"a treasurer of Charitable Endowments shall not, as such Treasurer, act in the administration of any trust whereof any of the property is for the time being vested in him under this Act."

Section 10 contains the limitation of functions and powers of a treasurer :

"A Treasurer of Charitable Endowments shall always be a sole trustee and shall not, as such treasurer, take or hold any property otherwise than under the provisions of this Act, or subject to those provisions, transfer any property vested in him except in obedience to a decree divesting him of the property, or in compliance with a direction in that behalf issuing from the authority by whose order the property became vested in him."

16.From a consideration of the above material provisions of the Charitable Endowments Act of 1890, it is clear that an educational purpose is included within the definition of charitable purpose. Therefore, the College Committee comes within the ambit of the definition contained in S. 2 of the Charitable Endowments Act. So much is conceded. The vesting of property in a treasurer under the Act applies to two categories of cases :

(1) Where any property is held trust for a charitable purpose; and

(2) Where property is to be applied in trust for a charitable purpose.

There is no difficulty in reaching the conclusion in this case that the property held by the College Committee for an educational purpose, which is included in the expression charitable purpose, can be the subject-matter of vesting in a treasurer, provided the other conditions prescribed by the Act are complied with.

Where in a given case those prescribed conditions are satisfied, it is open to the State Government, if it thinks fit, to direct that the property of the endowment be vested in a treasurer. The use of the expression if it thinks fit shows that the matter is left to the subjective satisfaction of the appropriate Government to appoint a Treasurer.

Assuming that the Government is satisfied that the conditions for the exercise of their discretion under the Charitable Endowments Act exist, is there, as contended by the learned counsel for the petitioner, any prohibition in the Act from applying its provisions to a society registered under the Societies Registration Act? The Charitable Endowments Act itself does not contain any reservation nor does it make any exception with regard to registered societies.

17. Mr. Lakshmayya has contended that when property is vested in a registered society, there cannot be a second vesting in a treasurer appointed under the provisions of the Charitable Endowments Act. In support of this contention he has principally relied upon an American decision in The Trustees of Dartmouth College v. Woodward, (1819) 4 Law Ed 629 (A).

The facts therein were that one Dr. Wheelock founded a charity, on funds owned and procured by himself. He made a will devising this property in trust to continue the existence and uses of the school, and appointed trustees, and while doing so, he was invited to fix his school permanently in New Hampshire and to extend the design of it to the education of the youth of that province.

Before he removed his school and accepted this invitation, he applied for a charter which was granted to the persons whom he named and appointed viz.; the persons whom he had already appointed to be future trustees of his charity by his will. The charter, or letters patent then proceeded to create such a corporation, and to appoint 12 persons to constitute it by the name of the "Trustees of Dartmouth College" to have perpetual existence, as such corporation, and with power to hold and dispose of lands and goods, for the use of the College, with all the powers of corporations.

After the institution had existed for over fifty years, the Legislature of New Hampshire passed an Act making the 12 trustees appointed under the charter, and 9 other individuals to be appointed by the Governor and Council, a corporation by a new name; and to this new corporation transferred all the property, rights, powers, liberties and privileges of the old corporation.

A further Act passed by the Legislature made provision for executing the objects of the trust, and the last Act authorised the treasurer to retain and hold their property against their will. It was held that corporation established for purposes of general charity or for education generally, did not make it per se a public corporation liable to the control of the legislature.

The learned Judges held that the Act of the Legislature of New Hampshire was repugnant to the Constitution of the United States and that therefore the Act in question was not valid. They made the following observations at page 659 :

"There can be no reason for implying in a charter, given for a valuable consideration, a power which is not only not expressed, but is in direct contradiction to its express stipulations.

From the fact, then, that a charter of incorporation has been granted, nothing can be inferred which changes the character of the institution, or transfers to the Government any new power over it. The character of civil institutions does not grow out of their incorporation, but out of the manner in which they are formed, and the objects for which they are created."

18. The learned counsel for the petitioner has equated the registration of a society under the Act of 1860 to a charter granted by the Crown in favour of a corporation. He has further argued that the registration constitutes a contract between the society and the Government which is an irrevocable one and the superimposition of the provision of the Charitable Endowments Act which has the result of curtailing the powers of the College Committee, would tantamount to a violation of the so-called charter granted to the Committee in the shape of its registration under the Act.

The decision proceeded on the particular facts of the case, namely; the granting of a charter by the Crown in favour of the trustees and it was held that the rights granted by the charter could not be curtailed by the Legislature of New Hampshire.

19. The basic assumption made by the learned counsel for the petitioner that the registration of society can be equated to the granting of a Royal Charter, does not rest on a solid foundation. A society registered under the Societies Registration Act is an association of individuals which comes into existence with certain aims and objects.

If it is not registered as a society under the Act, it would have the character of an association which cannot sue or be sued except in the name of all the members of the association. The registration of the Society confers on it certain advantages. The members as well as the Governing Body of the Society are not always the same. Even though the members of the Society or the Governing Body fluctuate from time to time, the identity of the society is sought to be made continuous by reason of the provisions of the Societies Registration Act.

The Society continues to exist and to function as such until its dissolution under the provisions of the Act. The properties of the society continue to be vested in the trustees or in the Governing Body irrespective of the fact that the members of the society for the time being are not the same as they were before; nor will be the same thereafter.

By reason of the provisions of the Societies Registration Act, once the society is registered with the Registrar, by the filing of the memorandum and certified copy of the rules and regulations and the Registrar has certified that the society is registered under the Act, it enjoys the status of a legal entity apart from the members constituting the same and is capable of suing or being sued.

But the fact to be noted is that what differentiates a society registered under the Act of 1860 from a company incorporated under the Companies Act is that in the latter case the share-holders of the company hold the properties of the company as their own whereas in the case of a society registered under the Act of 1860, the members of the society or the members of the governing body do not have any proprietary or beneficial interest, in the property the society holds.

Having regard to the fact that the members of the general body or the members of the governing body of the society do not have any proprietary or beneficial interest in the property of the society, it follows that upon its dissolution, they cannot claim any interest in the property of the dissolved society. The Societies Registration Act, therefore, does not create in the members of the registered society any interest other than that of bare trustees. What all the members are entitled to, is the right of management of the properties of the society subject to certain conditions.

As I have already stated, the Charitable Endowments Act, 1890, provided that the conditions specified therein are satisfied, makes provision for the appointment of a treasurer, in whom certain powers are vested. Sub-section (4) of S. 4 contains a clear enunciation of the nature of that vesting. The said provision makes it clear that an order vesting property in a treasurer shall not require or be deemed to require him to administer the property, or impose or be deemed to impose upon him the duty of a trustee with respect to the administration thereof.

Section 10 of the Charitable Endowments, Act contains a specific limitation of the functions and powers of a treasurer. It says that a Treasurer of Charitable Endowments shall always be a sole trustee, and shall not, as such treasurer, take or hold any property otherwise than under the provisions of the Act, or, subject to those provisions, transfer any property vested in him except in obedience to a decree divesting him of the property, or in compliance with a direction in that behalf issuing from the authority by whose order the property became vested in him.

Having regard to the specific limitation of the functions and powers of treasurer under S. 10 the treasurer shall not take or hold any property. He cannot dispose of property. He is a bare trustee as S. 8 of the Act makes it clear.

20.The appointment of a treasurer under the Charitable Endowments Act, therefore, does not result in divesting the Society of its property and in a corresponding vesting of the same in the treasurer. The vesting in the treasurer contemplated by the Act being only for certain specified purposes, there is no transference of any property from the Society to the treasurer.

21. Mr. Lakshmayya has then contended that there was no valid application as contemplated by Ss. 4 and 5 of the Charitable Endowments Act. This really involves the determination of a question of fact. According to the respondent, six out of eleven members constituting the Governing Body passed a valid resolution requesting the Government to take action under Ss. 4 and 5 of the Charitable Endowments Act.

What is, however, stated by the petitioner is that the College Committee, at a meeting held the same evening, passed a resolution strongly opposing the intervention of the Government by applying the provisions of Ss. 4 and 5 of the Act. It is stated by the petitioner that at this meeting a resolution was also passed removing the President from his office.

It is contended by the learned Government Pleader that there was a valid application satisfying the requirements of the Act, before the Government, on which they could initiate proceedings under the Charitable Endowments Act. According to the petitioner, however, there was no valid application. As I have already indicated, this involves the determination of a question of fact which it is not possible to do within the limited scope of an application under Art. 226 of the Constitution.

Section 4 of the Endowments Act provides that the appropriate Government (in this case the State Government) can appoint a treasurer, if it thinks fit, or in other words, it is left to the subjective satisfaction of the Government to find whether the conditions necessary for the exercise of their discretion under that section are satisfied in a given case. If they are satisfied that there was a valid application before them on which they could act and if they think fit to appoint a treasurer, it is not for this court to substitute its opinions for those of the Government.

This Court can and will only interfere if it is alleged and proved that the Government, in taking the decision or in being satisfied that the conditions necessary for the exercise of their power under S. 4 exist, have been swayed by extraneous considerations or that their action has been mala fide. No such allegations have been made in this case and it is not therefore within the competence of this court to pronounce upon the question as to whether the Government should or should not have been satisfied about the necessity for the appointment of a treasurer.

22. The averments made by the respondent, however, show that the Vice-Chancellor of the Andhra University addressed a communication as early as 1957 to the Minister for law and Religious Endowments, bringing to his notice certain alleged acts of mismanagement on the part of the persons responsible for the administration of the College.

On this the Government moved the Commissioner for Hindu Religious and Charitable Endowments who sent the Special Officer to make an enquiry and investigate into the affairs of the institution. That Special Officer, it is not denied, had examined, as witnesses, the members of the governing body and other persons and eventually submitted a report giving, as his opinion, that the circumstances, in which the institution was being managed, required the application of Ss. 4 and 5 of the Endowments Act.

There can be also no controversy about the fact that the Syndicate of the Andhra University appointed a Committee to make an investigation and to submit a report. A copy of this report was sent to the petitioner and the Secretary of the Committee. It cannot be said that the petitioner had no knowledge of the enquiry made by the Special Officer appointed by the Commissioner for Hindu Religious and Charitable Endowments and the Committee of the Syndicate of the Andhra University which also went into the matter.

Therefore, there was some factual data before the Government and it is not possible to hold that the Government was swayed by extraneous considerations and indeed that was not the complaint made in this writ petition.

23. Mr. Lakshmaiah then stated that the letter of the Government dated 20-6-1957 contains an invitation to the governing body to pass a resolution with a threat that failure to take action on the lines suggested, may result in the disaffiliation of the College. It was stated that a threat to disaffiliate the college from the University was a very serious matter and that the governing body in passing the resolution, which it did could not but be affected by the threat. On a consideration of the material placed before me, I do not, however, find anything wrong in the Government suggesting to the governing body to pass a resolution in accordance with the rules and bye-laws and make an application to the Government to take action under Ss. 4 (1) and 5 (1) of the Act. It must have been within the knowledge of the members of the governing body, as it was within the knowledge of the Government, that a valid application under that Act was a precondition for the exercise of jurisdiction by the Government and that in the absence of such a resolution and application, the Government could not very well take action.

In this connection, it may be noted that it was the President and a member of the governing body of the college that sent an application to the Government making serious allegations against the persons responsible for the management of the institution. This application by the President and a member of the governing body and the letter of the Vice-Chancellor of the University sent to the Minister as early as 21-4-1957 resulted in an enquiry being conducted into the allegations of mismanagement and I do not find anything wrong in the Government asking the members of the Governing body to make an application under the relevant provisions of the Charitable Endowments Act for action being taken.

It was, of course, often open to the members of the governing body to say that they did not want the appointment of a Treasurer. According to the allegations made by the President and the member, 6 out of the 11 members forming the governing body passed a resolution supporting the appointment of a Treasurer. It is no doubt true that this resolution was repudiated by the Committee but under what circumstances this repudiation came to be made is not a matter pertinent to the present enquiry.

What should be emphasised however, is that there is nothing illegal or improper in the Government asking the governing body to pass a resolution and to make an application. The fact that this was coupled with an intimation to the governing body that failure to take action on the lines suggested by the Government might result in the disaffiliation of the college, can be indicative of the apprehension of the Government that absence of timely action by the Governing Body would result in the consequence of disaffiliation.

I am unable to accede to the contention of the learned counsel for the petitioner that the threat I resulted in the application.

24. Mr. Lakshmaiah also contended that in the case of this institution, it was not the governing body but the Committee that was competent to pass the resolution or make the application. My attention has been drawn both by the learned counsel for the petitioner as well as the learned Government Pleader to certain rules and bye-laws of the College.

But I do not wish to express an opinion as to the competency of the governing body to pass the resolution or make the application. That would depend upon the nature of the powers conferred on the governing body by the Rules and the bye-laws of the Society. It may also be noted that under S. 16 of the Societies Registration Act, the governing body of the society shall be the directors, committee, trustees, or other body to whom by the rules and regulations of the society the management of its affairs is entrusted.

According to the learned Government Pleader, the Governing Body of the society has been entrusted with the management of the affairs of the College and that the college committee as such had no such powers of management. In support of this contention, he has relied upon R. 8 of the Rules and bye-laws of the Society. I do not, however, wish to go into this question inasmuch as it is for the Government to satisfy themselves as to whether there was a valid application under the provisions of the Charitable Endowments Act which would give them jurisdiction to appoint a Treasurer as provided under that Act.

It is not possible for me to express an opinion on the powers of the governing body vis-a-vis the Committee in the absence of all the necessary material before me.

25. Mr. Lakshmayya then contended that the resolution passed by the governing body in the morning was nullified by the resolution passed by the committee in the evening. Here we are in the region of fact and it is not possible for me to adjudicate upon this question in an application under Art. 226.

26. It is stated before me that the Government has not passed final orders with regard to the appointment of the Treasurer. There is no doubt that the Government would do so after they are satisfied with regard to the existence of the conditions necessary for the exercise of their jurisdiction.

27. There remains the contention of the learned counsel for the petitioner that if a treasurer is to be appointed, the society would cease to hold the property and that this is violative of the petitioners rights guaranteed under Art. 19 (1) (g) and Art 31 of the Constitution. This contention really overlaps the first of the contentions which has been already dealt with.

If what is vested in the College Committee or its governing body is a right of management simpliciter, there is no question of the members of the society or the members of the governing body being beneficially interested in its property. It necessarily follows that by the fact of appointment of a treasurer, there can be no deprivation of the society of its rights in property.

The consequence, which would flow on the appointment of a treasurer by the Government under the provisions of the Charitable Endowments Act, "would be that he will take charge of the management of the properties held by the society. There is no divesting of the rights of the society in its properties. As already stated, what all the society is deprived of would be right of management which cannot be equated to any right in the property.

In the Commissioner of Hindu Religious Endowments v. Sri Lakshmindra Thirtha Swamiar of Sri Sirur Mutt, 1954 SCJ 335 at p. 352 : (AIR 1954 SC 282 at p. 292), (B), with respect to S. 20 of the Madras Hindu Religious, and Charitable Endowments Act, 1951, which describes the powers of the commissioner in respect to religious endowments including the power vested in him to pass any orders that may be deemed necessary to ensure that such endowments are properly administered, and that their income is duly appropriated for the purposes for which they were founded, which is equally applicable to the present case, their Lordships of the Supreme Court observed : -

"Having regard to the fact that the Matadhipathi occupies the position of a trustee with regard to the math, which is a public institution, some amount of control or supervision over the due administration of the endowments and due appropriation of their funds is certainly necessary in the interest of the public and we do not think that the provision of this section by itself offends any fundamental right of the Mahant.

We do not agree with the High Court that the result of this provision would be to reduce the Mahant to the position of a servant. No doubt the Commissioner is invested with powers to pass orders, but orders can be passed only for the purposes specified in the section and not for interference with the rights of the Mahant."

Their Lordships there were dealing with the rights of a Mahant which are certainly more substantial than the rights of a member of the Committee of the Governing body of a society registered under the Act of 1860. I do not think that the appointment of a treasurer and the vesting of the properties in him for the purposes specified in the Charitable Endowments Act would offend the fundamental rights of the petitioner either under Art. 19 or under Art. 31 of the Constitution.

It cannot be denied that the petitioner has no beneficial interest in the property which requires to be protected under either of those Articles.

28. For all the above reasons, this Writ Petition must fail and is dismissed with costs; Advocates fee Rs. 100/-.

Petition dismissed.