THE HON’BLE SRI JUSTICE K.C. BHANU CIVIL MISCELLANEOUS APPEAL No.923 OF 2010 JUDGMENT: This Civil Miscellaneous Appeal, under Section 88 of the Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act, 1987, is directed against the judgment and decree, dated 07.08.2010, in O.A.No.31 of 2002, on the file of the Andhra Pradesh Endowments Tribunal, Hyderabad, whereunder and whereby, the application filed for declaration that Sri Kamisetty Sundara Ramaiah Chetty Choultry situated at Nawabpet, Nellore District, was a denominational institution belonging to Arya Vysya community and that the Arya Vysya community is only entitled to manage the temple without any interference by Endowments Department or Government, was dismissed. 2. Heard. 3. Learned counsel for the appellant contended that there are relevant documents to show that the institution is being run by Arya Vysya community people for the purpose of which it was constituted; that the Endowments Department has no role to play in Management of the affairs of the trust; that originally this trust was being managed by the hereditary trustees; that after the demise of the original founder, his son managed the temple as hereditary trustee and after his death, his wife was managing the trust and therefore, it is a denominational institution which is not under the administrative control of the Assistant Commissioner, Endowments Department; that in spite of filing number of documents and an affidavit in lieu of chief examination of PW.1, the same were not taken into consideration by the Endowments Tribunal and hence, he prays to set aside the impugned judgment. 4. None appears for the respondent, in spite of service of notice. 5. The brief facts necessary for disposal of the present case are as follows: The institution was constructed in the year 1886 by collecting donations and contributions from prominent Arya Vysya Philanthropist to serve Arya Vysya Community of Nellore District with an object of performing several charitable activities like poor feeding, providing free accommodation in the institution to the persons belonging to Arya Vysya Community and all the activities are being performed solely with the funds of the institutions derived from some properties including Ac.17-00 of land and building of 10 Ankanams in a total land area of 17 Ankanams (5/342 Stonehousepet, Nellore) which was donated to the institution. The institution was registered with the Department that it will not give any authority to interfere in any manner in the management of the institution, as the institution is a denominational one protected under Article 26 of the Constitution of India. W.P.No.18881 of 2001 was filed before this Court praying to declare that the Arya Vysya Community is a Hindu religious denomination entitled for protection under Article 26 of the Constitution of India with full freedom to manage that institution without any interference from the authorities and not to make appointments of Trust Board/Executive Officer to the said institution. This Court on 28.12.2001, while disposing of the said Writ Petition finally, directed the petitioner to file an application under Section 87 of the Act 30/1987 with a direction to provide sufficient proof before the competent authority of endowments to establish and obtain a declaration that the institution is a denominational one and get protection under Article 26 of the Constitution of India. Accordingly, the petitioner filed this application. In support of its contention, the petitioner herein has filed the documents viz., 1. Registered Veelunamas, dated 23.03.1987 and 24.07.1959, 2. Document No.57/1935, 3. Judgment in Civil Appeal No.1340 of 1986, dated 16.09.1999 of Honourable Supreme Court of India and 4. Judgment in Appeal No.64 of 1977, dated 21.08.1978 of this Court (as reported in AIR 1979 A.P. 121). 6. Notices were issued to the respondent. In response to this, the respondent has filed his counter stating that the petitioner temple i.e., Sri Kamisetty Sundara Ramaiah Chetty Choultry, Nawabpet, Nellore District, was published under Section 6 (c) (i) of the Act 30/1987 by the Commissioner of Endowments Department and is under administrative control of the Assistant Commissioner, Endowments Department, Nellore. He further stated that the subject temple originally established by one Sri Kamisetty Sundara Ramaiah Chetty and after his demise, his son Sri Kamisetty Audiseshaiah Setty managed the temple as hereditary trustee and after his death, his wife Smt. Kamisetty Hymavathamma, the representative of the petitioner herein, came into the management and subsequently, she was recognized as founder trustee in his proceedings in Rc.No.A1/46821/1996, dated 01.10.1996. The main objects of the institution is to feed the poor Brahmin and Vysya Community people, and others for the supply of utensils for cooking purpose among other things as provided in the property register. It clearly shows that it is not meant only for the Vysya Community, but also meant for public purpose with charitable nature and it cannot be termed as denominational institution as contended by the petitioner. Therefore, it is not a denominational institution as contended by the petitioner, belonging to a particular community i.e., Arya Vysya Community. Further, the respondent contends that from a long time the petitioner choultry has submitted statutory returns like budget estimates etc., and paid contributions to the Department till the end of 2000, but subsequently stopped it for the reasons best known to the petitioner and that the petitioner’s contention that the said choultry belongs to their caste and it is only a denominational institution as mentioned in Article 26 of the Constitution of India is denied. In the light of the above fact, the petitioner Choultry is not at all a denominational institution as envisaged under Article 26 of the Constitution of India and prayed for the dismissal of the petition. 7. In support of his case, the appellant has not adduced any evidence, either oral or documentary, to show that the institution is a denominational institution belonging to Arya Vysya community. Therefore, the Tribunal held that the application filed by the appellant deserves to be dismissed. 8. There is a serious dispute with regard to the aspect whether Sri Kamisetty Sundara Ramaiah Chetty Choultry situated at Nawabpet, Nellore District, is a denominational institution belonging to Arya Vysya community or not. It has to be decided by the Tribunal in accordance with law. Disputed facts cannot be decided basing on pleadings. According to the learned counsel for the appellant, the affidavit filed in lieu of chief examination of PW.1 has not been taken into consideration and also the documents have not been marked. The impugned judgment is passed without marking the documents and without considering the affidavit filed in lieu of chief examination of PW.1. Hence, the impugned judgment is liable to be set aside. 9. Accordingly, the Civil Miscellaneous Appeal is allowed setting aside the impugned judgment and decree, dated 07.08.2010, in O.A.No.31 of 2002, on the file of the Andhra Pradesh Endowments Tribunal, Hyderabad, and remanding the matter to the Tribunal to give an opportunity to the appellant to adduce necessary evidence and to mark necessary documents for the purpose of proving its case. In lieu of chief examination of PW.1 an affidavit has already been filed into the Court. PW.1 shall make himself available for cross-examination by the opposite party on the date so fixed by the Tribunal and for further evidence, if any. It is needless to observe that respondent shall be given reasonable opportunity to adduce evidence. There shall be no order as to costs. _______________ K.C. BHANU, J March 14, 2011 MD IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD MONDAY, THE FOURTEENTH DAY OF MARCH TWO THOUSAND AND ELEVEN PRESENT THE HON'BLE SRI JUSTICE K.C. BHANU CIVIL MISCELLANEOUS APPEAL No.923 OF 2010 Between: Sri Kamisetty Sundara Ramaiah Chetty Choultry .....APPELLANT AND Assistant Commissioner, Endowments Department, Nellore ....RESPONDENT The Court made the following: THE HON’BLE SRI JUSTICE K.C. BHANU CIVIL MISCELLANEOUS APPEAL No.923 OF 2010 March 14, 2011