*THE HON’BLE SRI JUSTICE V.ESWARAIAH AND THE HON’BLE SRI .JUSTICE G.V.SEETHAPATHY +W.A.NO.793 OF 1999 % 15-09-2008 Between: #ADUSUMALLI SEET HA RAMAIAH S/O SREERAMULU R/O ELCHURU, SANT HAMAGULURU MANDAL, PRAKASAM DIST RICT , ONGOLE …Appellant And $MANDALAPU RAGHUNAYAKULU & 49 OT HERS …Respondents !Counsel for the Appellant: MR. B.ADINARAYANA RAO. ^Counsel for the Respondents: MR. E.MANOHAR for Mr. G.PEDDA BABU <Gist: >Head Note: ?Cases referred: 1. 1997 (1) ALD 171 (DB) 2. 1990 (2) ALT 656 IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD MONDAY, THE FIFTEENTH DAY OF SEPTEMBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE SRI JUSTICE V.ESWARAIAH AND THE HON’BLE SRI JUSTICE G.V.SEETHAPATHY WRIT APPEAL NO : 793 of 1999 (Writ Appeal under Clause 15 of the Letters Patent against the Order dated 19.04.1999 in WP No.15051 of 1996 on the file of the High Court.) Between: Adusumalli Seetha Ramaiah S/o Sreeramulu R/o Elchuru, Santhamaguluru Mandal Prakasam district, Ongole ..... APPELLANT AND Mandalapu Raghunayakulu & 49 others … RESPONDENTS Counsel for the Appellant. MR. B. ADINARAYANA RAO Counsel for the Respondents: Mr. E.Manohar for Mr.G. PEDDABABU The Court made the following : THE HON'BLE SRI JUSTICE V.ESWARAIAH AND THE HON’BLE SRI JUSTICE G.V.SEETHAPATHY Writ Appeal No.793 of 1999 JUDGMENT: (Per the Hon’ble Sri Justice G.V.Seethapathy) This writ appeal is directed against the order dated 09.04.1999 in W.P.No.15051 of 1996, wherein the said writ petition ﬁled by the respondents 1 to 36 herein, was allowed. 2. Heard the learned counsel for the appellant and respondents. Perused the records. 3. W.P.No.15051 of 1996 was ﬁled seeking writ of mandamus declaring that the action of the Commissioner of Endowments, Andhra Pradesh, Hyderabad-Respondent No.38 herein in issuing proceedings R.Dis No.J3/42590/87 dated 29.09.1987 published in the A.P. Gazette dated 17.03.1988 under Section 6[c] (i) of the A.P. Charitable and Hindu Religious Institutions and Endowments Act [for short ‘the Act’] enlisting the Dasabandham Tank, Kundurru, Santhamaguluru Mandal, Prakasam district, as one of the public charitable institutions/Endowments governed by the said Act and consequent action of the Assistant Commissioner of Endowments-Respondent No.39 herein in appointing the appellant herein and the respondents 40 to 43 herein as non-hereditary trustees of the said tank by proceedings dated 27.11.1995 as illegal and without jurisdiction and also for direction to the respondents 1 to 9 in the writ petition i.e., appellants and respondents 37 to 44 herein, not to interfere with the writ petitioners’ possession, management and enjoyment of the said tank. 4. It is not disputed that there is a tank in an extent of Ac.196.80 cents in Survey No.718 of Kundurru village of Prakasam district, providing irrigation facility for a large extent of lands included under its ayacut. It is also not disputed that the said tank was ‘Dasabandham tank’ and an extent of Ac.14.22 cents in RS Nos.306, 398 and 432 of Kundurru village was granted Inam to the Dasabandhamdars, namely, Chitalapudi Akkulu, Yeluri Ramulu and Makkena Venkatappa, for eﬀecting repairs to the tank on a quit rent of Rs.4-12-5 per annum. As per the revenue records, the said extent was noted as Ac.15.44 cents and as ‘Dasabandham Inam’. The said Inam was granted in favour of the individuals of the Dasabandhamdars, who were obligated with the duty to maintain the tank in proper shape by eﬀecting necessary repairs from time to time. The petitioners claimed to be the successors in interest of original Dasabandhamdars, which claim is disputed by the respondents in the writ petition. The petitioners also claimed to be in exclusive possession, management and enjoyment of the tank as of right, which claim is also disputed by the respondents in the writ petition. In 1987, the Commissioner of Endowments in exercise of his powers under Section 6[c] of the Act enlisted the Dasabandham tank, Kundurru village as one of the public charitable institutions and the same was published in A.P. Gazette on 17.03.1988. Subsequently, the Assistant Commissioner of Endowments, Ongole issued proceedings dated 27.11.1995 appointing the appellant and 4 others as non-hereditary trustees of the said tank for a period of one year. Challenging the said inclusion of the tank in the list of public charitable institutions under Section 6[c](i) of the Act and appointing the non-hereditary trustees, the writ petition was filed. 5. The 4th petitioner ﬁled an aﬃdavit in support of the writ petition, wherein, it is averred that the tank is neither a public tank nor a public charitable institution/endowment and the public in general have no rights therein and the Act has no application, as the said tank is a private tank, owned and possessed by the writ petitioners. It was further averred in the said aﬃdavit that enlisting the tank under Section 6[c](i) of the Act by the Commissioner is illegal and without jurisdiction and against the principles of natural justice, as the said proceedings were issued without any notice to the management committee of the tank to show cause against the action proposed for inclusion. It was further averred that the impugned proceedings were issued mechanically without any enquiry as to whether, in fact, the tank is a public charitable institution and whether its income does not exceed Rs.50,000/- per annum. It was further averred that the tank was intended for the purpose of supplying irrigation water to the lands under its ayacut, which are deﬁnite and certain and the public in general have no rights therein and hence, it is not a charitable institution/endowment and therefore, the Act has no application. Consequently the action of the Assistant Commissioner appointing non-hereditary trustees was also sought to be assailed on similar grounds. 6. The Assistant Commissioner of Endowments filed a counter-aﬃdavit, inter-alia contending that as the tank is big one, the water in the tank is being utilized by all the ryots for irrigation purpose and at the same time, water is also being used by all the villagers and cattle of Kundurru village. It was further averred that the tank was not meant only for Dasabandamdars but was meant for entire public in the village and it was being utilized as such. It was further averred that the Commissioner in exercise of the powers under the Act included the tank in the list of public charitable institutions/endowments. It was further averred that when the Executive Oﬃcer and Assistant Commissioner tried to auction ﬁshing rights in the tank in the year 1990, the petitioners ﬁled WP No.9141 of 1990, as admitted by them, and thus they were aware of the inclusion of the tank in the list under Section 6[c](i) of the Act even by 1990 itself. It was further averred that the remedy for the petitioners, if any, against such inclusion was to raise the dispute before the Deputy Commissioner of Endowments, Guntur under Section 87 of the Act, but they failed to avail the eﬀective alternative remedy available under the statute. 7. The appellant herein as 4th respondent in the writ petition ﬁled counter-aﬃdavit reiterating the contentions of the Assistant Commissioner and further alleging that as the tank is meant to supply irrigation water to the public in general, the same can never be a private tank and the petitioners claim on one hand that inam land was given as compensation for up keep of the tank and claiming on the other hand that the petitioners have absolute rights over the tank is self-contradiction. He seeks to justify the inclusion of the tank in the list under Section 6 [c](i) of the Act prepared by the Commissioner and consequential proceedings issued by the Assistant Commissioner of Endowments appointing non-hereditary trustees. 8. Thus it can be seen from the pleadings that apart from the petitioners’ claim that they are descendents of original Dasabandhamdars, the very nature and character of the tank as to whether it was a private tank as claimed by the writ petitioners, meant exclusively for their enjoyment or it was a public tank meant for irrigation of lands of all the villagers and therefore a public charitable institution/endowment as contended by the respondents in the writ petition, is in dispute. Further the question, which necessarily arises for consideration is, as to the remedy available to the writ petitioners to ventilate their grievance over inclusion of the tank in the list under Section 6[c](i) of the Act. The learned Single Judge allowed the writ petition on the premise that when once it is admitted that the tank was dug in the government land, the question of tank being called as charitable institution/endowment does not arise and that the respondents have further not disputed that there is ayacut under the tank and the government is collecting water cess from the ayacutdars and the tank was dug in the land belonging to the government and therefore, it is not endowment that can be included in the list under Section 6[c](i) of the Act. 9. The main contention of the learned counsel for the petitioners as can be culled out from the averments in the aﬃdavit ﬁled in support of the writ petition is that it is a private tank, meant for enjoyment of Dasabandhamdars alone and the public in general have no rights therein and therefore, it is not a charitable institution/endowment. No doubt in the counter-aﬃdavit ﬁled by the appellant herein, it was averred that the tank was dug in the government land. It was further averred that the inam was granted to Dasabandamdars to keep the tank in good repair by enjoying the produce from Inam lands and they have no right over the tank at any point of time. 10. The contentions raised by the Assistant Commissioner in his aﬃdavit are also to the same eﬀect that it was a public tank meant for use and enjoyment of entire village, both for irrigation and cattle needs, and for the purpose of up keep and maintenance of the tank only a separate grant by way of Dasabandham inam was made in favour of the Dasabandhamdars to the extent of Ac.15.44 cents enabling them to enjoy the produce there from in lieu of maintenance. It is to be noted that Dasabandham tank is distinct and separate from Dasabandham Inam. The extent of Dasabandham tank is stated to be originally about Ac.196.80 cents in Survey No.718. The extent of Dasabandham inam granted in favour of original dasabandhamdars was an extent of Ac.15.44 cents in Survey Nos. 306, 398 and 432. If really, the tank was not meant for public utility and it was an exclusive and private tank of original dasabandhamdars, there was absolutely no reason or occasion to obligate Dasabandhamdars with the duty to maintain the tank in good repair by granting an extent of Ac.15.44 cents separately as Dasabandham inam in lieu of the maintenance of the tank. The very fact that such an extent of Ac.15.44 cents was separately granted by way of inam to ensure proper up keep and maintenance of the tank, is indicative of the fact that the tank was meant for public use. As rightly contended by the learned counsel for the appellant the claim that the tank is private and exclusive one meant for enjoyment of the petitioners and their predecessors dasabandhamdars and claiming on the other hand that separate dasabandam inam of Ac.15.44 cents was granted to them for up- keep and maintenance of the tank is contradiction in terms. If it is a private tank, there was no need or occasion to obligate its proper maintenance by separately granting an extent of Ac.15.44 cents as inam. It is nowhere admitted by the oﬃcial respondents in their aﬃdavit that the tank was dug in the government land or that it is a government property. The question, which essentially arises for consideration is therefore whether the tank was a private tank as claimed by the petitioners, or a public tank in the nature of public charitable institution/endowments as contended by the respondents in the writ petition. Based on the stray averment in the aﬃdavit of a non-oﬃcial respondent- appellant herein, who was appointed as one of the non- hereditary trustees for a period of one year that the tank was dug in the government land, the tank does not become government tank, dug in the government land. The quashing of the proceedings of the Commissioner including the tank in the list under Section 6[c](i) of the Act and consequential proceedings of the Assistant Commissioner appointing the non-hereditary trustees on the premise that the tank was dug in the government land is, unsustainable, especially, in the absence of any material to show that the tank was dug in the government land and when it is not the contention of the oﬃcial respondents that the tank was dug in the government land. 11. The contention of the writ petitioners that if the public have a right in the tank, it would be a public tank, not governed by the provisions of the Act, is fallacious. In fact, the petitioners themselves contended that unless it is public charitable institution /endowment, the Act has no application. 12. Section 2(4) of the Act deﬁnes ‘charitable institution’ as meaning ‘any establishment, undertaking, organization or association formed for a charitable purpose and includes a speciﬁc endowment and dharmadyam’. Section 2 (5) of the Act deﬁnes ‘charitable purpose’ as including among other things ‘advancement of any other object of utility or welfare to the general public or a section thereof not being an object of an exclusively religious nature’. Section 2(3) deﬁnes ‘charitable endowment’ as meaning ‘all property given or endowed for any charitable purpose’. Explanation-I states that ‘any property which belonged to or was given or endowed for the support or maintenance of a charitable institution or which was given, endowed or used as of right for any charitable purpose shall be deemed to be a charitable endowment”. 13. In view of the inclusive deﬁnition of the expression “charitable purpose”, which among other things, includes welfare of the general public or a section thereof, the tank which was constituted as ‘dasabandham tank’ for a charitable purpose, becomes a charitable institution/endowment and in exercise of statutory powers, the Commissioner has included the subject tank in the list prepared under Section 6[c)(i) of the Act. If any person is aggrieved by such inclusion, a speciﬁc remedy is provided under Section 87 of the Act, which states that the Deputy Commissioner having jurisdiction shall have the power, after giving notice in the prescribed manner to the person concerned, to enquire into and decide any dispute as to the question, whether or not charitable institution/endowment, besides other things. Sub section (2) of Section 87 enables the Deputy Commissioner to pass such interim orders as he deems ﬁt pending decision under sub section (1), for administration of the property or custody of the money belonging to the institution or endowment. Sub Section (3) states that every decision or order of the Deputy Commissioner on conﬁrmation by the Commissioner under this Section shall be published in the prescribed manner. Sub Section (4) enables the Deputy Commissioner to pass interim order pending implementation of such decision, for safeguarding the interests of the institution or endowment. Sub Section (5) states that any decision of the Deputy Commissioner deciding whether an institution or endowment is not a public institution or endowment shall not take eﬀect unless such decision or order is conﬁrmed by an order of the Commissioner. Sub Section (6) lays down that the presumption in respect of matters covered by Clauses (a) to (e) of sub section (1) is that the institution or endowment is public one and that the burden of proof in all such cases shall lie on the person claiming the institution or the endowment to be private. 14. The scheme of the above statutory provisions contained in Section 87 of the Act would disclose that the Deputy Commissioner is the competent authority to decide whether the institution or endowment is charitable institution or endowment and while deciding so, he performs quasi judicial functions. A remedy of appeal to the District Court against the orders of the Deputy Commissioner is provided under Section 88 of the Act and thereafter revision to the High Court under Section 91 of the Act. 15. In the present case, the status of the institution/subject tank is in dispute. Such dispute has to be resolved only by an enquiry under Section 87 of the Act by the Deputy Commissioner after giving notice to the persons concerned. Resolution of such dispute necessarily involves determination of questions of fact as to the nature and character of the tank and its use or otherwise by the general public, which can be done only on proper appreciation of the evidence that may be adduced by the parties in support of their respective contentions. Such questions of fact, which require decision on appreciation of evidence, cannot be gone into in the proceedings under Article 226 of the Constitution of India. 16. In ‘PABUN vs. State of A.P. ,[1]’ Division Bench of this Court held as follows: “If jurisdictional question is purely based on legal contentions, there is no diﬃculty in deciding the same in the writ petition, without driving the parties for resolution on factual aspects. But it is quite diﬀerent when the jurisdiction issue is intrinsically linked with the questions of fact and in such a situation, this Court’s extraordinary jurisdiction under Article 226 of the Constitution of India, cannot be availed of for the reason that the fact resolution has to be made by recording evidence both oral and documentary and consider the same.” 17. In ‘M.Ramaswamy vs. Commissioner of Endowments[2]’, a Division Bench of this Court held as follows: “Section 6 of the Act is intended to permit the Commissioner to go into the income of the various temples and charities and classify them on the basis of the said income. It is on the basis of the said classiﬁcation that the diﬀerent authorities get the jurisdiction to appoint non-hereditary trustees or to appoint Executive Oﬃcers. But the assumption underlying Section 6 is that these institutions or endowments are public institutions and not private institutions. Therefore, the Commissioner must necessarily come to a conclusion, before preparing and publishing any such list under Section 6, that the Institutions or endowments are of public nature. For that purpose, it is open to the Commissioner to make such enquiries or to father such information as he deems necessary”. It was further held as follows: “For the purpose of arriving at a decision under Section 6, even if the Commissioner incidentally decides a question that an institution or an endowment is a public one, such decision is for the limited purpose of Section 6 and cannot be treated as a ﬁnal decision. Any such decision would be subject to the decision to be arrived at by the Deputy Commissioner under Section 87(2) and also subject to the decision of the Commissioner under Section 87 (3) and (5) when the matter comes up for consideration. The incidental decision, if any, under Section 6 does not come in the way of the Commissioner taking an independent decision under Section 87 (3) after a full pledged enquiry by the Deputy Commissioner under Section 87 (2).” It was further held as follows: “It is open to the Commissioner even at the stage of Section 6 to rely on the statutory presumption raised under Section 87 (6) and proceed on the basis that an institution or an endowment is a public one. It would, however, be open to the aggrieved party to move the Deputy Commissioner under Section 87 of the Act and obtain a decision that the institution or endowment is a private one. If the aggrieved party succeeds before the Deputy Commissioner or when the matter comes up for conﬁrmation before the Commissioner under Section 87 (3) or when the matter goes to the Court under section 88, any anterior decision under Section 6 on the basis that the institution or endowment was a public institution, would no longer hold good.” It was further held as follows: “The Deputy Commissioner, while making an enquiry under Section 87, will have to consider the question whether the temple is a private temple independently without being inﬂuenced by the order of the Commissioner and any publication made under Section 6(a)(ii) by the Commissioner. So also the Commissioner while conﬁrming the order of the Deputy Commissioner under Section 87 (3), shall give an independent consideration to the above said question in the light of facts emerging from out of the enquiry conducted by the Deputy Commissioner under Section 87 (2) notwithstanding the inclusion of the temple in the list published under Section 6(a)(ii) of the Act”. 18. In the circumstances and in the light of the above decisions and having regard to the nature of the dispute pertaining to the status and character of the subject tank requiring decision by competent authority i.e., the Deputy Commissioner under Section 87 of the Act, it is considered that invoking extraordinary jurisdiction of this Court under Article 226 of the Constitution of India is not called for and the writ in the nature sought for cannot be granted. The respondents-writ petitioners are at liberty to approach the Deputy Commissioner and invoke his jurisdiction under Section 87 of the Act for a decision on the dispute. In such event, the Deputy Commissioner shall make an independent enquiry under Section 87 of the Act after giving prior notice to all concerned, without in any way being inﬂuenced by any of the observations made herein above. 19. In the result, the writ appeal is allowed and the order of the learned Single Judge is set aside with liberty as stated above. No order as to costs. __________________ V.ESWARAIAH, J ______________________ G.V.SEETHAPATHY, J Date:15.09.2008 Bss LR copy to be marked. [1] 1997 (1) ALD 171 (DB) [2] 1990 (2) ALT 656