The judgment emphasized the distinction between a tomb constructed on the Samadhi of an ordinary man and a saintly person, and the public character of the institution.

JUDGMENT

S.B. SINHA, J :

1.One Gedela Appala Swamy Naidu was owner of a piece of land measuring 81 x 70 sq. yards situated in a secluded locality on the hills situated at village Simhachalam. He died leaving behind him his wife Atchamamba and son G. Satchidananda Murthy (Plaintiff No. 1). He was buried in the same property. A Samadhi was constructed thereon by his son. Plaintiff No. 1 shifted his residence at the said property. In or about 1976, he installed statutes of Appala Swamy Naidu and Shri Veera Bhoja Vasantha Rayalu who was the guru of his father. The Guru of Appala Swamy Naidu and Appala Swamy Naidu himself had a large number of disciples. The idol of Godess Gayatri Devi was also installed. It was named as "Sri Simha Saila Puri Virat Guru Mandiram" and "Sri Simha Saila Puri Gayatri Peetam".

2. Allegedly, after the death of Appala Swamy Naidu, the said property was being managed by his brother Suryanarayana Naidu. When Smt. Atchamamba, wife of Appala Swamy Naidu died in the year 1979, her dead body was buried by the side of her husband in the same compound. A tomb was also constructed.

3.A notice was issued by Respondent No. 1 as to why the plaintiffs should not apply for registration of the temple/ institution as a public institution within the meaning of Sections 38 and 39 of the A.P. Charitable and Hindu Religious Institutions and Endowments Act, 1966 (for short "the Act").

4. An application was filed before Respondent No. 1 for deletion of the said institution from the list of Charitable and Hindu Religious Institutions and Endowment. The said application was dismissed by an order dated 14.12.1982. In arriving at the said decision, a large number of documents as also a report of the Assistant Commissioner Endowments, Anakapalli and statements of some persons including one Satyanarayana, the first cousin of the original Plaintiff No. 1, were taken into consideration.

5. A suit was filed by the appellant in terms of the provisions of Section 78 of the Act. By a judgment and order dated 31.12.1984, the said suit was decreed. Respondents filed a first appeal before the High Court of Andhra Pradesh. The said appeal has been allowed by reason of the impugned judgment.

6. Mr. M.N. Rao, learned senior counsel appearing on behalf of the appellant, in support of the appeal raised the following contentions:

(i)The term "religious institution" as defined in Section 2(22) of the Act would not bring within its purview a place where burial had taken place and tombs were constructed.

(ii)The order of the Deputy Commissioner is a nullity being violative of the principles of natural justice.

(iii)In view of the fact that the District Judge had inspected the property personally and recorded his observations, the High Court should not have interfered therewith.

(iv)No member of the public having been examined by the respondents to prove public participation in the affairs of the trust nor the public character thereof having been proved, the High Court committed an error in arriving at its findings.

(v)Plaintiff No. 1 having not undertaken preaching of any religious tenets to disciples and the suit property being not a place of worship for the general public but one for the family, it should have been held to be a private institution.

(vi)The purported admission of G. Satyanarayana, at whose instance the litigation had started, could not have been relied upon by the High Court.

7. Mr. Manoj Saxena, learned counsel appearing on behalf of the State, however, would support the impugned judgment.

8.Before embarking upon the rival contentions of the parties as noticed hereinbefore, we may notice some of the relevant provisions of the Act.

9. The terms "religious institution" and "temple" as defined in Sections 2(22) and 2(26) of the Act read as under:

"(22) religious institution means a math, temple or specific endowment and includes a Brindavan, Samadhi or any other institution established or maintained for a religious purpose;

(26) te