ORDER
B. Subhashan Reddy, J.
1. Atissue, in these two writ petitions, is whether Parsi Zoroastrian Anjuman of Secunderabad and Hyderabad, is a charitable institution coming within the purview of Andhra Pradesh Hindu Religious Institutions and Endowments Act, 1987.
2. The cause of action for the above two writ petitions is the order dated 28-3-1995 passed by the Assistant Commissioner of Endowments, Twin Cities, Hyderabad-the 2nd respondent herein-appointing the 3rd respondent, namely, Dr. F.D. Vakil, as the single Trustee of the above Trust. The above proceeding was issued on the premise that the above trust is a charitable institution within the meaning of the Act.
3. In Writ Petition No.6274 of 1995, the first petitioner is the Anjuman Trust, while the petitioners 2 to 6 are the trustees. In Writ Petition No.13135 of 1995, the petitioner is a member of the founder-donor family of the above trust. She has appeared as a party-in-person. In Writ PetitionNo,6274 of 1995, respondents 4 to 7 were impleaded. Respondent No.6 is Mr. B.F. Dilfia, at whose instance, the proceedings were iniliated culminating into impugned order. He had also represented as a party-in-person. To avoid confusion, we refer the 1st petitioner as petitioner-Trust and the party- ill-person in WP No.6274 of 1995 as the petitioner-party-in-person, and respondent No.6 in WP No.6274 of 1995 as the respondent-party-in-person. The Deputy Commissioner of Endowments, Hyderabad is referred to as 'the 1st respondent' while the Assistant Commissioner, Endowments, Twin Cities of Hyderabad as 'the 2nd respondent' and Dr. F.D. Vakil, the single Trustee appointed by the respondents I and 2 as the 3rd respondent.
4. The petitioner-trust was formed on 15-12-1941. It was registered under Hyderabad Endowment Regulations, 1349 F. The above regulations framed during the period of Government of Hyderabad were repealed and a comprehensive legislation for the entire State of Andhra Pradesh was enacted, namely, the Andhra Pradesh Charitable and Hindu Religious Institutions Endowments Act. 1966, hereinafter referred to as 'A.P. Act of 1966'. A.P. Act of 1966 was repealed and in its place, the Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act, 1987 (AP Act 30 of 1987) was enacted. The said Act is hereinafter referred to as 'the A.P. Act of 1987'. The dispute had started when a notice lias been issued by the 3rd respondent to the petitioner-trust calling upon the person-in-charge to submit the records and accounts of the petitioner-trust for verification and assessment. In fact, the said notice was issued at the instance of the respondent-party-in-person, who had alleged that the property at Boggulkunta bearing Municipal No.4-1-1225 was sold without obtaining any permission and without following the procedure as contemplated under Section 80 of A.P. Act of 1987. This was on the premise that the petitioner-trust is covered by A.P. Act of 1987. In fact, the allegation was that the petitioner-trust was being mismanaged and that amounts were being embezzled. The 2nd respondent had exercised his powers under A.P. Act of 1987 on the ground that the Endowment Department had control over the petitioner-trust as the Trust Deed indicates that it was formed for the welfare of a section of community and that it was the bounded duty of the Endowment Department to probe into the affairs and to safeguard the interests of the institution. On the other hand, the petitioners-trustees did not submit to the jurisdiction of the 2nd respondent on the ground that the petitioner-trust is not governed by A.P. Act of 1987 and that it was not registered so and as such, there was no liability on their part to submit either accounts or documents. There were repeated reminders, but the petitioner-trust has struck to its stand. The 2nd respondent had ignored the said protest and by his proceedings dated 28-3-1995 had appointed the 3rd respondent as single Trustee seeking to displace the petitioner-trust for the following reasons:
(1) That they have failed to submit the statutory returns such as, budget assessment, monthly receipt and charge.
(2) That they have failed to submit accounts and records as called for even after constant persuasion.
(3) That they have sold away the properties belonging to the subject institution as per their whims and fancies by contravening the provisions under Section 80 of the Act, which tantamount to misappropriation of funds and material loss to the institution.
(4) That they have disobeyed the lawful instructions issued by the departmental officers and failed to discharge the duties and perform the functions inaccordance with the provisions of the Act.
5. The said order was passed in exercise of the powers under Section 28 of A.P. Act of 1987, by seeking to suspend the petitioners-trustees pending enquiry into the above charges. The 3rd respondent was appointed as a single Trustee under Section 15(3) of the Act and he was directed to take charge from the Secretary of the petitioner-trust and report compliance. The 2nd respondent claims that he had administered the oath of Office and secrecy to the 3rd respondent on 29-3-1995 and the 3rd respondent supports his version and a letter was addressed on 29-3-1995 to the Secretary of the petitioner-trust to hand-over the complete charge to the 3rd respondent. Reacting to the said proceedings of the 2nd respondent, Secretary of the petitioner-trust had addressed a letter dated 30-3-1995 that they met the Commissioner on 29-3-1995 and that he had promised to look into the matter and asked the 2nd respondent to keep the matter in abeyance. But, the 3rd respondent by his letter dated 30-3-1995 addressed to the 2nd respondent mentioning that he had assumed charge as Single Trustee to look after the affairs of the petitioner-trust, in the afternoon of 30-3-1995 and that the petitioner-trust had asked time to handover the same till 11-4-1995 and that if the said time schedule is not adhered to, then action as contemplated under Section 133 of A.P. Act of 1987 may be taken. Meanwhile, Writ Petition No.6274 of 1995 was filed on 31-3-1995 and the orders of interim suspension were granted by this Court and the said orders are still operating, by virtue of which, the petitioners-trustees had been managing the affairs of the petitioner-trust.
6. Shri K. Parasaran, the learned senior Counsel appearing for the petitioners in Writ Petition No.6274 of 1995 strenuously contended that the basic purpose of declaration of trust is to ensure themaintenance and up-keep of the place of worship and as such, the petitioner-trust is a religious institution and not a charitable institution. The learned senior Counsel further contends that A.P. Act of 1987 is applicable to Hindu Religious and Hindu Charitable Institutions and is not applicable to other religious and charitable institutions and even if the petitioner-trust is a charitable institution, it being an institution meant for the Parsi community is not attracted by the provisions of A.P. Act of 1987. Alternatively, he submits that the declaration of trust enables the trustees to receive bequest/donate for purposes indicated by the donors and that if any charity is rendered, it is purely incidental and does not alter the characteristic of a Parsi religious trust. The learned Counsel, though raised an argument touching upon violation of audi alterant parieni rule, but did not stress the point much. He also submitted that Anjuman functions under registered declaration of trustees vide Trust Deed dated 15-12-1941 registered on 17-1-1942 and Fire Temple and Tower of Silence are integral part of the Parsi Zoroastrian Anjuman. There are properties at Secunderabad and Hyderabad and those have been bequeathed/donated by the donors. The learned Counsel has also submitted that the very fact that the properties belong to Anjuman in occupation of tenants were exempted from the provisions of A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960, as also from the provisions of Urban Lands (Ceiling and Regulation) Act, 1976 show mat these are the properties which arc not covered by the A.P. Act of 1987. Me submits that as evidenced by Trust dated 15-12-1941, the objects of trust are purely religious and though charitable aspect is there, the religious aspect is dominant and charitable aspect is only incidental to the religious aspect. He submits that the petit ioner-trust is meant for the benefits and welfare of Parsis and Iranians professing Zoroastrian religion and all Zoroastrians profess their faith in Prophet Zoroaster and all Parsis and Iran is who professZoroastrianism are called Zoroastrians. The learned senior Counsel has also submitted that even if this Court come to conclusion that the trust is partly religious and partly charitable even then, 1987 Act is not applicable and the dispute has to be resolved only in accordance with Section 92 of Code of Civil Procedure. The learned senior Counsel has relied upon the Division Bench judgments of this Court rendered in K. V. Sangham v. Commissioner Endowments, A.P., : AIR1979AP173 , Deputy Commissioner of Endowments v. Saibaba Samsthanam, 0044/1991 : AIR1991AP253 and T.V. Ratnam v. Deputy Commissioner of Endowments, 1996 (4) ALD 643.
7. The petitioner, party-in-person, has submitted that the petitioner-trust is a purely religious one and that it is not covered by 1987 Endowment Act and has drawn the attention of the Court to the material papers filed by her.
8. Shri D. Prakash Reddy, the learned Additional Advocate-General appearing for the respondents 1 and 2 submits that 1987 Endowment Act is applicable to all the charitable institutions regardless of any religion and the petitioner-trust, even if it is formed and run by the Parsis, is attracted by the provisions of the above Act. He further submits that the petitioner-trust was already a registered one under Hyderabad Endowment Regulations, 1349 Fasli, and as such, is deemed to have been registered under sub-section (3) of Section 43 of the Act. It is also submitted by him that the 1st petitioner had paid an amount of Rs.2542/- to the 2nd respondent on 18-12-1968 towards the contribution and the same amounts to acquiescence and that it is now estopped from pleading the contra. The learned Additional Advocate-General has relied upon the decision rendered by the Division Bench of this Court in Molleti Ramaswamy v. Commissioner oj Endowments, 1990 (2) ALT 656 and another judgment of a Division Bench ofthis Court in Pabun v. State o/A.P., 1997 (l)ALD 171.
9. The respondents 3 and 4 and respondent-party-in-person have also made their submissions to similar effect. A contention is also raised that 'parsi' is not a religion.
10. Apart from the contentions raised, we were adverted to the several material papers on record. We have perused all the material papers in detail and also considered the respective submissions made by the learned Counsel of either parties and also parties who have appeared in-person.
11. No doubt, the petitioner-trust was registered under the Hyderabad Endowment Regulations of 1349 Fasli because of the definition of endowment contained in Regulation 2 therein, which takes-in in its ambit all property transferred for religious purpose or purpose of charity. There, the emphasis was on 'all religious purpose and all charitable purpose'. But, the Hyderabad Endowment Regulations, 1349 Fasli is a pre-Constitution Act. As such, the same is not relevant to the post-Constitution laws, for, fundamental right under Article 26 mandates the State not to interfere with establishing and maintaining institutions for religious and charitable purposes; to manage its own affairs in matters of religion; to own and acquire movable and immovable property; and to administer such property in accordance with law by every religious denomination or any section thereof, subject to public order, morality^ and health. While the right to manage religious affairs is unfettered, right to administer property by the religious denomination or any action thereof, can be regulated by law. As such, there cannot be any objection for provision of law regulating the administration of the charitable property belonging to any religious denomination or section thereof under 1987 Endowment Act.If there is a State interference with regard to administration of religious trust/institution, then the same will be impermissible to the extent it violates the above fundamental right guaranteed in Article 26 of the Constitution. In the light of the above, the mere regislration of the petitioner-trust under Hyderabad Endowment Regulations of 1349 Fasli cannot ipso facto make it susceptible to the provisions of either 1966 Endowment Act or 1987 Endowment Act. The contention of the respondents, be it official or unofficial, that the mere fact that the petliioner-trust was registered under the Regulation 1349 Fasli makes it a deeming charitable trust, is therefore, unsustainable. That apart, the petitioner-trust is neither shown in the book of Endowments maintained under 1966 Act nor the Act of 1987. The amount of Rs.2542/- which has been paid by the petitioner to the 2nd respondent on 18-12-1968 does not relate to the period after 1966 Act, but it pertains to the period prior to the said Act i.e., 1962 to 1966 and the same is manifest by the receipt dated 10-1-1969 issued by the 2nd respondent. Demand notice dated 5-2-1968 was issued stating it to be towards the arrears of endowment fees for the years, 1962-63, 1963-64, 1964-65 and 1965-66. As the amount was not paid inspite of the said notice, a final notice was issued on 4-12-1968 and then the cheque was issued on 18-12-1968 and after realisation of the amount, the receipt dated 10-1-1969 was issued. There was no demand made by the authorities for payment of any endowment fees either under 1966 Act or 1987 Act. From the facts, it is clear that no power was exercised by the respondents 1 and 2 relating to the petitioner-trust ever since 1966, either under the Act of 1966 or under the Act of 1987 and for the first time, the notice was issued on 18-11-1994 by the 2nd respondent, which reads:
'It was brought to the notice of the Department that there is a Farsi charitable institution in the twin cities. All theCharitable Hindu Religious and Endowments in the State would come under the purview of the A.P. Charitable and Hindu Religious Charitable and Endowments Act 30 of 1987 vide Section 1(3). Please take notice to submit the accounts for verification and assessment.'
There was no application by any trustee of the petitioner-trust for registering it under the Act of 1966 or of 1987 and there was also no stio niotu action taken by either the respondent No.l or 2 for registering the same and as already stated above, the petitioner-trust has not been entered as the charitable institution in the book of Endowments maintained either under the Act of 1966 or the Act of 1987. Action was initiated pursuant to the complaint made by respondents appearing in-person. But, even as on this date, the petitioner-trust has not been shown in the book of Endowments under the 1987 Act.
12. Then the question arises as to whether the petitioner-trust has to be declared as not covered by 1987 Act. There is some difficulty in giving such declaratory relief. The first hurdle is the statutory presumption raised under sub-section (6) of Section 87 thereof and the other one is the disputed question of fact as to whether the petitioner-trust is purely religious one or purely a charitable one or partly religious and partly charitable and to what extent and as to whether the religious purpose is dominant and the charitable purpose ancillary or the charitable purpose is dominant and the religious purpose ancillary. Apart from the pleadings and contentions of the parties-petitioners' side taking a stand that the petitioner-trust is a purely religious one and that charitable purpose is ancillary thereto and the respondents' stand that the petitioner-trust is a charitable one and even if there is a religious aspect, it is only ancillary, from a reading of the Trust Deed of 15-12-1941 and particularly, clauses (3) and (4) thereof,it leaves no doubt that there exists a serious dispute of fact as to whether the petitioner-trust is a purely religious one or purely a charitable one or whether it is a mix-up of religious and charitable purposes and if so, which purpose dominates. The petitioner-trust owns, both movable and immovable, properties and sub-clauses (a), (b) and (c) of clause (3) of the Trust Deed relate to user of the buildings for public worship to all Parsis (including Iranis) who profess the Zoroastrian religion and also to permit the use of Tower of Silence and as Nussakhana or a place of use for the corpse-bearers, as may be decided upon by the trustees from time to time and also for other purposes for the benefit of the members of the Anjuman. Other sub-clauses of clause (3) deal with the application of the petitioner-trust properties, as the trustees may from time to time deem fit and proper. Clause (4) deals with the management of the funds and properties of the trust. How the surplus funds have to be dealt with is prescribed in clause (5). Apart from the same, general powers are also entrusted to the trustees under clauses (6), (7) and (8). Mode and manner of conducting meetings etc., is provided in clauses (9) and (10). Other clauses may not be necessary for discussion. Suffice it to say that the Trust Deed of 1941 makes a provision for both religious and charitable purposes and unless an enquiry is conducted into the same and a fact finding is arrived at, it is not possible to adjudicate with regard to the applicability or otherwise of 1987 Act. In so far as the contention regarding inapplicability of 1987 Act to the Non-Hindu charitable institutions is concerned, as already stated above, we hold that the legislative intent of 1987 Act and the scheme thereof cover all charitable institutions/ endowments regardless of any religion.
13. Shri K. Parasaran, the learned senior Counsel, submits that there is non-application of mind on the part of the 2nd respondent, as he has just assumed that the petitioner-trust is a charitable institution anduntil such adjudication is made, the impugned order has to be treated as baseless and without jurisdiction. In this connection, he rel ies upon the judgment in T. V. Raitiam 's case (supra). But, in the said case, there is no definite ratio laid down that enquiry is necessary before issuing notice to comply with the provisions of the Act. In fact, the decision rendered in Molletl Ramaswamy's case (supra), is directly applicable to the instant case. Speaking for the Division Bench of A.P. High Court, M. Jagannadha Rao, J., (as His Lordship then was), has held that there is a presumption under Section 86(6) that an institution or endowment is a public one and that the Deputy Commissioner while considering the nature of a temple in enquiry need not be influenced by publication of the list by the Commissioner and even if a list is prepared under Section 6, the same cannot be treated as final and such preliminary or administrative decisions will have no impact while adjudicating the matter by the Deputy Commissioner under Section 87(2) of the Act. The Division Bench judgment in Varthaka Sangham's case (supra), cannot also be of any assistance to the case of petitioner-trust, as the point involved therein was whether association registered under the Societies Registration Act, considering and attending to the problems of business community would not attract the provisions of 1966 Act, even if there was charitable purpose. It was held that the main object of the association was redressal of grievance of the business community who were the members of the said association and the charitable purpose was ancillary. In fact, the above judgment was rendered in the Letters Patent Appeal on the concluded questions of fact in the First Appeal which arose out of a judgment in a suit and it is needless to mention that the judgment in the suit has been decided after appreciation of evidence, both oral and documentary. The other case cited by Sri K. Parasaran, the learned senior Counsel i.e., Saibaba Samsthanm 's case (supra), is alsoinapplicable to the facts of this case as in that case, the point for consideration was as to whether Saibaba Samsthanam is Hindu or Non-Hindu endowment religious institution and on the undisputed facts, it was held that the said institution was a non-Hindu religious institution and as such, is outside the purview of 1987 Act. The exemption under the A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960 or under the provisions of Urban Lands (Ceiling and Regulation) Act, 1976 cannot have any relevance for the adjudication of these two writ petitions. It is pertinent to mention that 1987 Act is a self-contained Act and relates to the endowments in particular and Section 160 thereof gives overriding effect to anything contra stated in the above Act. The last submission of Mr. K. Farasaratt, the learned senior Counsel for the petitioner-trust is that the Forum for decision to resolve the dispute regarding the nature of the charitable purpose defined under Section 2(5Xd) as to whether the objection of the petitioner-trust is exclusively of religious nature or mix-up of religious and charitable nature and if so, extent thereof, is the civil Court under Section 92 of the Code of Civil Procedure. But, the said contention cannot be acceded to, for the reason that determination of all issues with regard to nature of the institution, whether religious or charitable and whether it is religious-cum-charitable and in what proportions, is provided under Section 87 of A.P. Act 30 of 1987 and it may be apt to extract the said provision, which reads:
'Section 87. Power of Deputy Commissioner to decide certain disputes and matters :--(1) 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--
(a) whether an institution or endowment is a charitable institution or endowment;
(b) whether an institution or endowment is a religious institution or endowment;
(c) whether any property is an endowment, if so, whether it is a charitable endowment or a religious endowment;
(d) whether any property is a specific endowment;
(e) whether any person is entitled by custom or otherwise to any honour, emoluments or perquisites in any charitable or religious institution or endowment and what are established usage of such institution or endowment is in regard to any other matter;
(f) whether any institution or endowment is wholly or partly of a secular or religious character and whether any property is given wholly or partly for secular or religious uses; or
(g) where any property or money has been given for the support of an institution or endowment which is partly of a secular character and partly of a religious character or the performance of any service or charity connected with such institution or endowment or the performance of a charity which is partly of a secular character and partly of a religious character or where any property or money given is appropriated partly to secular uses and partly to religious uses, as to what portion of such , property or money shall be allocated to secular or religious uses.
(2) The Commissioner may, pending his decision under sub-section (1), pass such order as he deems fit for the administration of the property or custody of the money belonging to the institution or endowment.
(3) Every decision or order of the Deputy Commissioner on confirmation by the Commissioner under this section shall be published in the prescribed manner.
(4) The Deputy Commissioner may while recording his decision under subsection (1) and pending implementation of such decision, pass such interim order as he may deem fit for safeguarding the interests of the institution or endowment and for preventing damage to or loss or misappropriation or criminal breach of trust in respect of the properties or moneys belonging to or in the possession of the institution or endowment.
(5) Any decision or order 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.
(6) The presumption in respect of matters covered by clauses (a), (b), (c), (d) and (c) in sub-section (1) is that the institution or the 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 or the property or money to be other than that of a religious endowment or specific endowment, as the case may be.
From the reading of the above, it is obvious hat the nature of dispute raised in the instant case arising out of the impugned order dated 18-3-1995 has to be resolved only in the nanner stated under the above provision ind not otherwise. It is needless to mention hat the enquiry under Section 87 is a quasi-udicial one and decision rendered (herein iiipersedcs the administrative actions/orders Milminating into the impugned order dated 18-3-1995 and the said decision which isrendered under Section 87 is also made appealable to the Court of the District Judge under Section 88 and is further revisable by the High Court under Section 91 of the said Act of 1987.
14. The argument advanced by the official respondents that the petitioner-trust is estopped from contending that it is not covered by A.P. Act 30 of 1987 and that Parsi is not a religion are fit to be rejected outright, as there is no substance in the said contentions. Parsi (Zoroastrian) religion is an ancient one and is being followed by the Parsi community since last several centuries. The argument of the respondenls-parry-in-pcrson that Parsi (Zoroastrian) is not a religion, is a disgruntled one apart from being baseless.
15. In view of what is stated supra, we hold that:
(1) That A.P. Act 30 of 1987 is applicable only to Hindu Religious Institutions/ Endowments and is not applicable to Non-Hindu religious institutions/ endowments;
(2) That A.P. Act 30 of 1987 is applicable to all the charitable institutions regardless of any religion.
(3) The petitioners in both the writ petitions have to work out the remedies by invoking the provision contained under Section 87 of A.P. Act 30 of 1987.
(4) A time of two months from the date of the receipt of a copy of this order is granted to the petitioners to avail the remedy before the 1 st respondent.
(5) If the petition is filed as stated above, the 1st respondent shall make an enquiry by following the procedure of the civil Court relating to a suit and render his decision, whichshould be well-reasoned one, within six months of the presentation of the petition, without reference to either his preliminary opinion or the order of the 2nd respondent, which is impugned in these writ petitions.
(6) The impugned order dated 28-3-1995 passed by the 2nd respondent, which had been under suspension, stands suspended until the decision of the 1st respondent under Section 87 of the Act, and the continuance or otherwise of the said order shall depend upon the decision to be rendered by the 1 st respondent in the above proceedings under Section 87 of A.P. Act 30 of 1987.
16. The two writ petitions are disposed of accordingly. We direct the parties to bear their own costs.