THE HON'BLE SRI JUSTICE K.G.SHANKAR CIVIL REVISION PETITION No.2772 of 2006 Date:23.12.2011 Between: Avanigadda Lakshmi Bai and others. ..... Petitioners. AND Sri Avadhoota Sadhana Ashramam Trust, Vijayawada, rep by its Executive Officer, Patamatalanka, Vijayawada. .....Respondent. The Court made the following: THE HON'BLE SRI JUSTICE K.G.SHANKAR CIVIL REVISION PETITION No.2772 of 2006 ORDER: The petitioners in A.S.No.120 of 2004 on the file of the II Additional District Judge, Vijayawada preferred the revision assailing the judgment of the learned II Additional District Judge, Vijayawada. The II Additional District Judge, Vijayawada sat in appeal over the orders in O.A.No.207 of 1983 on the file of the Deputy Commissioner, Endowments Department, Kakinada. 2. The case arose in the following circumstances: Late Avanigadda Dharma Rao was a freedom fighter. The petitioners are the wife and children of late Dharma Rao. It is the case of the petitioners that Dharma Rao acquired the disputed property. The petitioners further claimed that late Dharma Rao established Sri Avadhoota Sadhana Ashramam Trust (respondent herein) in 1947. He also created two other trusts. Sri S.S. Prasad, learned Senior Counsel representing the petitioners contended that the beneficiaries of the Trust are the family members of late Dharma Rao only and no other outsider. The Endowments Department did not interfere with the management of the property for more than two decades. On 30-01-1971, the 1st respondent trust was however, registered as a Charitable Institution under Section 6 (a) of the Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act, 1966 (‘Old Endowments Act’, for short). The registration was effected by the Assistant Commissioner of Endowments. Questioning the registration of the institute as a Charitable Institution, O.S.No.74 of 1970 on the file of the Principal District Munisif, Vijayawada was filed by late Dharma Rao. The suit was dismissed. An appeal in A.S.No.14 of 1974 on the file of the Principal Sub Judge, Vijayawada was preferred from the judgment in O.S.No.74 of 1970. A.S.No.14 of 1974 was also dismissed. Late Dharma Rao, thereafter, filed S.A.No.771 of 1979 on the file of this Court. The same was allowed by this Court. Late Dharma Rao was granted a perpetual injunction holding that the disputed property is the personal property of late Dharma Rao. The High Court, however, observed that the Deputy Commissioner for Endowments, Kakinada was at liberty to institute suo-moto enquiry to decide whether the plaint schedule property was a Charitable Endowment as asserted by the defendants after due notice to the appellant. Considering that Endowments Department was duty bound to proceed by initiating suo-motu enquiry, the Deputy Commissioner, Endowments Department initiated proceedings under Section 77 of the Old Endowments Act. It was later converted as proceedings under Section 87 of the A.P Charitable and Hindu Religious Institutions and Endowments Act, 1987 (‘Endowments Act’, for short). On 20-01-2004, the Deputy Commissioner passed orders in O.A.No.207 of 1983 holding that a trust was created by a trust deed dated 16-07-1947 and that the institute was a charitable institute. The orders of the Deputy Commissioner of Endowments were assailed in A.S.No.120 of 2004. The Appeal in A.S.No.120 of 2004 was dismissed on 24-04-2006. Hence this revision. 3. The learned Senior Counsel for the petitioners took me through the orders of the Deputy Commissioner of Endowments in O.A.No.207 of 1983 and the orders of the learned II Additional District Judge, Vijayawada in A.S.No.120 of 2004. It is his contention that the Deputy Commissioner and the learned II Additional District Judge did not consider the case in the correct perspective and that the matter deserves to be remitted to the Appellate Court to consider the case afresh regarding the nature of the disputed property. It is his contention that while the question ought to be whether the disputed property is endowment property or otherwise, the learned Appellate Judge proceeded on the assumption as if it was a suit for possession. In Paragraph No.12 of the Judgment in A.S.No.120 of 2004, the Appellate Court framed the points for consideration. The Appellate Court considered that whether the Trust created by the Avadhoota was valid or not and whether the institution had title to the property were the questions of controversy and proceeded to decide the same. The learned trial Judge ultimately held that the property originally belonged to Nagidi Chenchaiah, that the same was dedicated by way of endowment in 1947, that the petitioner in O.S.No.74 of 1978 had no title and that the appeal was not maintainable. 4. The learned Senior Counsel repeatedly and strenuously contended that the question before the Deputy Commissioner of Endowments and the learned II Additional District Judge was simply whether the property in question is a charitable endowment or otherwise. It is the contention of the learned Senior Counsel for the petitioners that the Deputy Commissioner and the District Court do not have jurisdiction beyond considering this issue. The learned Senior Counsel for the petitioners also referred to Sections 82 & 83 of Old Endowments Act, which are equivalent to Sections 92 & 93 of the Endowments Act, which delimit of the power of even Commissioner of Endowments to examine the correctness, legality and propriety of the order of the Assistant Commissioner or the Deputy Commissioner of Endowments and not to go into enquiry as to the title and nature of the property. It is his contention that the High Court did not remit the case through judgment in S.A.No.771 of 1979 for the Deputy Commissioner of Endowments to initiate proceedings under Section 77 of the Old Act. The High Court merely observed that the Deputy Commissioner may initiate suo-motu enquiry. It thus granted liberty to the Deputy Commissioner of Endowments but did not make it obligatory on the part of the Deputy Commissioner to initiate suo-motu action. 5. The learned Senior Counsel contended that Section 77 of the Old Act empowers the Deputy Commissioner to consider the question whether any property is an endowment and if so whether it is a charitable endowment or a religious endowment vide Section 77 (1) (d) of the Old Act. The same powers are conferred upon the Endowment Tribunal under Section 87 of the Endowments Act. However, the question is very limited as to whether the property is dedicated as an endowment and if so, whether it is a charitable endowment or a religious endowment. Neither Section 77 of the Old Act nor Section 87 of the present Act empowers the Deputy Commissioner and the Tribunal as the case may be to consider as to whether donar had title to the property and whether the property was capable of being used as a charitable institute. Where the Deputy Commissioner of Endowments as well as the Appellate Court did not consider the nature of the property but considered other aspects, the learned Senior Counsel seeks for the remittance of the case to the Appellate Court for fresh consideration on correct point of law. 6. Sri M. Vidyasagar, learned counsel representing the respondent, on the other hand, contended that the Ashramam was endowed with a view to fulfill charitable purposes and that the Ashramam is a Charitable Institute. He submitted that the institute was permitted to receive donations according to the Trust Deed dated 16-07-1947 and that the Trust indeed is a Charitable Institute so much so the order of the Deputy Commissioner and the Judgment of the learned II Additional District Judge do not warrant any interference. The basic controversy is whether the property is a Charitable Institute or otherwise. One Chenchaih gifted the immovable property over which Sri Sitarama Avadhoota allegedly constructed an Ashramam. The learned counsel for the respondent contended that the property was donated by Chenchaiah in 1920 and that the Avadhoota merely erected the super structure over the property. He further pointed out that the Trust empowers the trusties to receive donations from public and that the institute consequently was registered as a Charitable Institute under Section 38 of the Old Endowments Act. He further submitted that the endowment was not exclusively for the benefit of the family members of Chenchaiah or Avadhoota and that the Trust was dedicated to the public. He raised questions such as the source to run the Ashramam. 7. I agree with the contention of the learned Senior Counsel for the petitioners that mere creation of a Trust and entitlement of the trust to receive donations from the public are not sufficient to constitute a Charitable Institution. The hallmark of a Charitable Institute is the admission to the public as of right. 8. The learned senior counsel for the petitioners referred to Section 2 (3) Explanation-I of the Endowments Act. The Explanation-I reads thus: “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 a right for any charitable purpose shall be deemed to be a charitable endowment within the meaning of this definition, notwithstanding that before or after the commencement of this Act, the chartable institution has ceased to exist or ceased to be used for any charitable purpose or the charity has ceased to be performed.” 9. According to Section 2 (3) Explanation-I, the dedication must be for the use as of a right for charitable purpose for the dedication to become a charitable endowment. It is evident that the principle of right to the charity is the hallmark of a charitable endowment under Section 2 (3) in view of explanation (1) of the Act. Further, it would appear that there is nothing known as a Public Charitable Endowment and a private charitable endowment. If the endowment is for the benefit of public, the institution becomes a charitable institute. On the other hand, when the right of admission is reserved, the institute would not be a charitable institution. 10. The learned Senior Counsel for the petitioners pointed out that the Trust Deed does not allow one and all to enjoy the benefits of the trust and that the trust deed specifically permitted destitutes to enjoy the charity only. Thus it would appear that there is an element of consent in the trust. Further, it would appear that the right to receive donation also is restricted by the trust deed. 11. At any rate, the main question in this case is whether the institution is a charitable institution or not. While so, neither the Deputy Commissioner of Endowments nor the II Additional District Judge considered this aspect of the case. Their consideration was whether the creation of the trust by Sri Sitarama Avadhoota was valid or not and whether the petitioners got title to the property or not. Neither of the Courts considered whether the institute was a charitable institution or otherwise. As the Primary Court in the Deputy Commissioner of Endowments as well as the Appellate Court did not determine the real question in controversy, I consider that it would be appropriate to set aside the orders of the learned II Additional District Judge, Vijayawada and remit the case to the Deputy Commissioner of Endowments for fresh consideration according to law. However, in view of the constitution of the Endowments Tribunal under Section 87 of the Endowments Act, the Tribunal is entitled to consider this petition whether the institution is a charitable institute or endowment otherwise. I, therefore, consider that it is just and appropriate to set aside the orders passed by the learned II Additional District Judge in A.S.No.120 of 2004 and remit the case to the Endowments Tribunal for fresh consideration of the controversy. I consider it appropriate to make it clear that the point for consideration is whether the petition schedule property is a charitable institute or not. The Tribunal is not entitled to go into other questions except to the extent necessary to decide the main issue. 12. Accordingly, this revision is disposed of setting aside the orders of the District Court in A.S.No.120 of 2004 and remitting the case to the Endowments Tribunal for fresh consideration in the lines mentioned above. No costs. _________________________ JUSTICE K.G. SHANKAR Date:23.12.2011. mrb