HON’BLE SRI JUSTICE P.S. NARAYANA WRIT PETITION No.22667 of 2007 Date: January 23, 2008 Between: 1. Vellanki Venugopala Rao and another. … Petitioners. And 1. The Deputy Commissioner of Endowments, Kakinada, E.G. District and another. … Respondents * * * ORDER: This Court ordered notice before admission on 26.10.2007 and granted interim stay for a period of three weeks. Counter-affidavit of second respondent is filed. 2. The writ petition is filed for a writ of Mandamus declaring action of the first respondent in issuing the notice in O.A.No.4/2007 Jdl. dated 24.01.2007, in respect of Sri Vellanki Anjamma Trust, Rajahmundry, as illegal, contrary to law and without jurisdiction and for a consequential order directing the first respondent to drop all further proceedings in this regard and pass such other suitable orders. 3. Sri Challa Dhanamjaya, learned counsel representing the petitioners had taken this Court through the contents of the affidavit filed in support of the writ petition and would maintain that in the light of the facts and circumstances the writ petition to be allowed. Even otherwise the learned counsel would submit that in the light of the specific stand taken in para 8 of the counter-affidavit of R-2, it would be just and proper to permit the petitioners, if they are impleaded as parties in the said petition, to raise all the objections including the question of jurisdiction. 4. Learned Assistant Government Pleader for Endowments would submit that the stand taken by the writ petitioners that it is a private trust is not correct and the same had been notified under the provisions of Act 17 of 1966. 5. Learned Standing Counsel Sri V.T.M. Prasad representing R-2 had taken this Court through the contents of the counter-affidavit and would maintain that in the light of the specific stand taken by R-2 the writ petition is liable to be dismissed. 6. It is stated that the first petitioner and late Hanumantha Rao are the sons of late Vellanki Narasimha Rao and Smt. Vellanki Anjamma; and the second petitioner is wife of late Hanumantha Rao. The schedule properties are the absolute properties of Smt. Vellanki Anjamma. Smt. Vellanki Anjamma executed two trust deeds on 28.11.1960 and 12.01.1961 creating a trust in respect of the schedule properties whereunder she wanted to utilize 10% of the income from the schedule properties for Sri Sitarama Kalyana Mahotsavams to be celebrated every year on Chaitrasudha Navami; another 10% of the net income to be spent towards poor feeding at the time of Srirama Navami Kalyana Mahotsava; another 10% to be deposited in an account and spent towards the improvement of the trust properties; another 10% should be spent towards education of the deserving grandchildren of late Vellanki Anjamma and the remaining 60% should be paid to 1st petitioner, 2nd petitioner and late Vellanki Hanumantha Rao. Further it is stated Smt. Vellanki Anjamma appointed Sri Vellanki Narasimha Rao to be the Managing Trustee. Smt. Vellanki Anjamma died on 5.4.1964. Thereafter Vellanki Narasimha Rao, who was the Managing Trustee, also died. Sri Vellanki Hanumantha Rao died on 10.6.1979 and the 2nd petitioner being his wife had been appointed as a trustee. It is also averred that after the death of Managing Trustee, Sri Vellanki Narasimha Rao started acting as Managing Trustee. While acting as Managing Trustee, because he did not properly manage the trust properties, petitioners herein and also Sri Veera Suryanarayana, who is also one of the trustees, under the trust deed dated 28.11.1960 filed O.P.No.543 of 1982 on the file of this Court and sought for removal of Sri Vellanki Narasimha Rao from the post of Managing Trustee and the Court removed Sri Vellanki Narasimha Rao from the post of Managing Trustee and appointed Sri Veera Surayanarayana, who was the son- in-law of late Vellanki Anjamma, as the Managing Trustee for the schedule properties. Further it is stated Veera Suryanarayana died on 31.12.2002. Bank account was opened in the name of the Trust in Lakshmi Vilas Bank, T.Nagar Branch, Rajahmundry, bearing Account No.11914. The Trust properties have to be managed only by the Managing Trustee who would have power to manage the trust properties. The petitioners and other trustee by name Bhaskara Rao filed O.P.No.109 of 2003 on the file of Principal District Judge, Rajahmundry seeking direction to appoint the petitioners as Joint Managing Trustees and empower them to deal with the Trust Properties as per the objects of the Trust and also permit them to operate the Bank Account of the Trust Property. The said O.P. was allowed on 24.4.2003 appointing the petitioners herein as Joint Managing Trustees. Further it is stated thereafter the second respondent styling himself as single trustee stating that he is the only single trustee issued a public notice dated 31.10.2005. For the said public notice the petitioners herein got issued rejoinder notice stating that the public notice issued by the second respondent was absolutely false and fictitious. It is also stated that by virtue of the order in O.P.No.684/2003, some of the properties were disposed of by the petitioners as per the terms and conditions of the Trust deed. While so, the first respondent, on an application filed by the second respondent, taken cognizance in O.A.No.4/2007 Jdl. Dated 24.01.2007 gave notices under Section 83(2) of Act 30 of 1987 asking the respondents therein to vacate the schedule property. In fact, the petitioners herein were not shown as respondents in the said notice to enable them to put forth their contentions before the first respondent and the first respondent had no jurisdiction to entertain any application, since the properties were never registered under Section 38 (b) of the Act 17 of 1966 of A.P. Charitable and Hindu Religious Institution & Endowments Act by the then Trustees on 20.1.1972. The Trust was created by Vellanki Anjamma, which was a private trust, intended for the benefit of her three sons and their descendants besides the other charitable activities. Unless the properties were registered with the Endowments Department, the first respondent had no jurisdiction to entertain any application filed by the second respondent and also to issue any notice to the tenants therein for enquiry. In fact, the petitioners herein were the land management trustees, the first respondent would not have chosen to give any notice to them. It is also stated that the action of the respondents in trying to eliminate the petitioners from the trust in an unauthorized manner is illegal, unjust and not permissible under law. 7. In the counter-affidavit filed it is averred that the properties in question are the absolute properties of Smt. Vellanki Anjamma, wife of Vellanki Narasimha Rao, Rajahmundry. During her life time she executed two trust deeds one on 28.11.1960 and another on 12.12.1960 creating a trust for the purposes mentioned in the said two trust deeds and the said trust is designated as “Smt. Vellanki Anjamma Trust, Rajahmundry”. In the trust deed dated 28.11.1960 she earmarked 10% of the income for Sri Seetharama Swamy Vari Kalyana Mahotchavams to be performed on Chaitra Sudha Navami day of every year (ii) 10% of the income was earmarked for poor feeding at the time of Sri Sreerama Navami Kalyana Mahotchavams; (iii) 10% of the income was earmarked for improvement of the trust; (iv) 10% of the income for education of her deserving grandchildren; and (v) 60% of the income for her sons and their heirs. Further it is stated that in the trust deed dated 12.12.1960 she earmarked (i) 5% of the income for Seetharama Kalyana Mahotchavams; (ii) 5% of the income for poor feeding at the time of Sree Rama Navami day; (iii) 5% of the income she earmarked for improvement of the trust; (iv) 5% of the income for the education of her deserving grand children; (v) 30% of the income for her three sons each 10% and (vi) 50% of the income she earmarked for “Nitya Dhoopa Deepa Naivedyams” of Sree Seetharama Swamy varu at the donors “Puja Mandiram”. Under the said two trust deeds, she appointed her husband Vellanki Narasimha Rao; her son-in-law Veera Suryanarayana; and her eldest son Vellanki Hanumantha Rao as trustees to administer the said trust. Under the said first trust deed, 30% of the income was earmarked for religious and charitable purposes, and under the second trust deed dated 12.12.1960, 65% of the income for religious and charitable purposes. Thus, the religious and charitable trust created by Smt. Vellanki Anjamma attracts the provisions of the A.P. Endowments Act 17 of 1966. The said Vellanki Anjamma Trust was duly registered on 20.1.1972 under Section 38(6) of the A.P. Charitable and Hindu Religious Institutions and Endowments Act 17 of 1966 before the Asst. Commissioner, Endowments, Rajahmundry by the then trustees, and Section 38 Register was signed by the then Mananging Trustee Vellanki hanumantha Rao. After registration of the trust, Vellanki Hanumanha Rao managed the trust as per the wishes of late Vellanki Anjamma and after his death without informing the authorities of the Endowments Department, Vellanki Narasimha Rao took up the management of the trust. The petitioners 1 and 2 and the younger brother of first petitioner Vellanki Bhaskara Rao joined together and made a scheme to get the trust properties alienated and since they felt that Vellanki Narasimha Rao would not act to their wishes to alienate the properties, the petitioners filed O.P.No.543 of 1982 for removal of Vellanki Narasimha Rao and to appoint Veera Suryanarayana as the Managing Trustee and obtained suitable orders. As seen from the petitioners’ affidavit, Veera Suryanarayana died on 31.12.2002 and later the petitioners herein and Vellanki Bhaskara Rao filed O.P.No.109 of 2003 for appointment of Sri Venugopala Rao and Vellanki Sitamahalakshmi as Joint Managing Trustees and to empower them to deal with the trust properties and to operate bank accounts etc. No respondents were impleaded to the said petition and they obtained an order dated 24.4.2003 in the said O.P. getting the petitioners 1 and 2 herein in the above writ petition appointed as Joint Managing Trustees. To implement their scheme, the said trustees appear to have filed O.P.No.684 of 2003 before the District Judge’s Court, seeking permission for alienating some of the trust properties, obtained favourable order and in pursuance of the said order, it appears that the Managing Trustee executed registered General Power of Attorney in favour of Vonteddu Suribabu and through him they sold valuable properties viz., the house bearing Door No.6-2-14 of an extent of 152.53 square yards in favour of one Kotha Soma Kanaka Durga Audi Lakshmi under a registered sale deed dated 29.01.2004 for a paltry sum of Rs.4,37,000/- and another part consisting of an extent of 153.48 square yards in favour of Kotha Venkata Ratnam under a registered sale deed dated 24.01.2004 for a very low consideration of Rs.4,80,000/- and the remaining extent of 67.21 square yards in the said house was alienated to Dr. Y. Sanyasi Rao under a registered sale deed dated 24.01.2004 for Rs.2,25,000/-. At the time of the said sale, each square yard was selling at Rs.8,000/-. The so called trustees had also not properly account for the consideration received by them. After sale of the properties, some of the interested persons brought to the notice of the Assistant Commissioner, Endowments, Rajahmundry, that the trust was being misappropriated and to take steps to safeguard the trust. Then the Assistant Commissioner appointed Sri P.T.V.V. Satyanarayana Murthy as the single trustee to the said “Smt. Vellanki Anjamma Trust” in his proceedings in Rc.No.A4/11215/2005, dated 03.10.2005, who is the second respondent in the writ petition. The second respondent in the said writ petition, the sole trustee appointed by the Assistant Commissioner, issued registered notice dated 26.10.2005 to the petitioners in the writ petition to Vellanki Bhaskara Rao and to Vonteddu Suribabu and the alienees and the tenants in the unsold properties for seeking possession of the trust properties. The first petitioner in the writ petition Vellanki Venugopala Rao received the said notice and got issued a contentious reply through his advocate. The second respondent in the writ petition received the notice and no reply was given. Vellanki Bhaskara Rao and Vonteddu Suribabu evaded receiving the said notices. Some of the alienees gave reply disputing the right of the trustee appointed by the Assistant Commissioner. Thereupon, the sole trustee, who was the second respondent in the writ petition, filed O.A.No.4 of 2007 before the Deputy Commissioner, Endowments, Kakinada, under Section 83 of Act 30/87 for possession of the trust properties and for other reliefs. The sole trustee, for seeking permission of the Asst. Commissioner to file O.A., prepared a draft O.A. impleading all the trustees including the writ petitioners and forwarded the draft to the Assistant Commissioner, and the Asst. Commissioner, while forwarding the same to the Deputy Commissioner, by inadvertence omitted the names of the trustees. Now, the second respondent is taking steps to implead them. The so called trustees played fraud on the District Judge, suppressing the fact that the trust was already registered under Act 17/1966 and obtained order of appointment of the trustee and also obtained order of permission to alienate the properties claiming the trust as a private trust. To avoid the enquiry in O.A.No.4 of 2007 before the Deputy Commissioner, the writ petitioners filed the above writ petition. It is also stated that the orders obtained by them from the District Court are invalid and unenforceable in law. It is also further stated that the sons of Smt. Vellanki Anjamma and her grandchildren had a portion of the income earmarked under the two trust deeds. Simply because, some income was earmarked in favour of her sons and grandchildren, the trust does not cease to be a Religious and Charitable Trust, under the A.P. Religious and Charitable Institutions and Endowments Act. Further the respondent is enclosing a copy of the registered notice dated 26.10.2005 issued by him and also the draft copy of O.A filed by him before the Assistant Commissioner to make the matters clear. 8. The copy of O.A.No.4 of 2007 on the file of the Deputy Commissioner, Endowments Department, Kakinada also placed before this Court. 9. In the light of the specific stand taken in para 8 of the counter- affidavit that the writ petitioners also are being impleaded as parties to the said O.A., let the petitioners raise all these objections inclusive of the objection relating to jurisdiction before the concerned Deputy Commissioner of Endowments, the first respondent herein and let the first respondent pass appropriate orders in this regard. 10. The writ petition is disposed of accordingly. No order as to costs. ___________________ (P.S. NARAYANA, J) Date: January 23, 2008. BSB