Madras High Court
Gurumanamachivayam Poosari vs The Commissioner on 29 July, 2022
Author: P.Velmurugan
Bench: P.Velmurugan
A.S(MD)No.16 of 2013
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 29.07.2022
CORAM :
THE HONOURABLE MR.JUSTICE P.VELMURUGAN
A.S(MD)No.16 of 2013
and
M.P(MD)Nos.1 to 3 of 2013
Rajapalayam Ambalapuzhi Bazaar,
Arulmighu Gurusamy Samadhirep. by its
Poosaris.
1. Gurumanamachivayam Poosari
2. Sivaguru Poosari
3. S.Gurusamy ... Appellants
vs.
1. The Commissioner
Hindu Religious and Charitable
Endowments (Admn.) Department,
Mahatma Gandhi Road,
Chennai-600 034.
2. Rajapalaya, Ambalapuzhi Bazaar,
M/s. Gurusamy Koil Thirupani and
Koil Niruvaga Committee (Society
Reg. under Tamil Nadu Societies
Registration Act as Society No.71/89)
through its Secretary Arulmighu
Gurusamy Koil Temple Complex.
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A.S(MD)No.16 of 2013
3. P.P.Arumugam
4. R.Alagusundaram Chettiar
5. M.Thiagarajan
6. M.Muthusamy
7. B.Sivasubramanian ... Respondents
Appeal Suit filed under Section 70(2) of the Hindu Religious and
Charitable Endowments Act, against the judgment and decree dated
09.07.2012 made in O.S.No.241 of 1999 on the file of the Subordinate
Judge, Srivilliputhur, confirming the order of the learned Commissioner,
HR & CE, dated 16.07.1999 made in SMR.No.14 of 1992.
For Appellants : Mr.V.Meenakshi Sundaram
For R1 : Mr.M.Lingadurai
Special Government Pleader
For R2 : Mr.M.P.Senthil
For R4 to R7 : No appearance
JUDGMENT
The appellants as plaintiffs filed a suit in O.S.No.241 of 1999 on the file of the Subordinate Judge, Srivilliputhur, against the respondents/defendants to set aside the order passed by the learned Page 2 of 20 https://www.mhc.tn.gov.in/judis A.S(MD)No.16 of 2013 Commissioner, HR & CE, dated 16.07.1999, in SMR.No.14 of 1992 and for a declaration that the suit property is not a religious institution as defined in the HR & CE Act and also for permanent injunction, restraining the defendants, their men, from interfering with the plaintiffs' possession and management of the suit property. After trial, the trial Court by judgment and decree dated 09.07.2012, dismissed the suit. Aggrieved by the said judgment and decree, the plaintiffs as appellants, have filed this appeal.
2. Brief averments stated in the plaint are as follows:-
The suit property is a Samadhi called Gurusamy Samadhi Temple. A Hindu Saint by name, Gurusamy hailed from Saliyar community lived at Kottoor village near Sattur, attained Mahasamathy in the suit property. The members of the Saliyar community and disciples of the Saint interned his body there and built a Samadhi in the suit property. During his life time, the said Saint adopted a girl by name, Palaniammal and she was given marriage to one Anjaneya Perumal. After the death of Palaniammal and her husband, statutes for them were erected by their community members in the suit property. Over the Samadhi of the Saint Page 3 of 20 https://www.mhc.tn.gov.in/judis A.S(MD)No.16 of 2013 Gurusamy, a Linga idol was erected. Every year, Gurupooja is being performed to Samadhi and except the milk abisekam for the Samadhi, no other festival or celebrations will be conducted in the suit property. According to the plaintiffs, the Samadhi in the suit property is not a temple as defined under Section 6(20) of the HR & CE Act, but however, some of the residents of Rajapalayam tried to convert the suit property into a temple. Hence, the poosaries of the suit Samadhi filed an application in O.A.No.18/85 before the Deputy Commissioner, HR & CE, Madurai, under Section 63(e) of the Act and obtained a declaration on 04.10.1986 that the suit property is not a religious institution, but a Samadhi. Thereafter, one Poomari @ Mariappan claiming to be the in-
charge of Thiruppani Committee tried to convert the institution to be a public temple in the year 1988. The first plaintiff filed a suit in O.S.No. 168/88 on the file of the District Munsif, Srivilliputhur, for a permanent injunction, which was later transferred to the Sub Court, Srivilliputhur, and renumbered as O.S.No.25/1993. Further, the so called Thiruppani Committee attempted to misuse and misapply its funds for purposes other than renovation works. The first plaintiff filed a suit against them, for rendition of accounts and for an injunction, before the Sub Court, Page 4 of 20 https://www.mhc.tn.gov.in/judis A.S(MD)No.16 of 2013 Srivilliputtur, by way of O.S.No.89/1989. The Thiruppani Committee also filed a suit O.S.No.257/90 against the poosaries for an injunction before the District Munsif Court, Srivilliputtur, which was transferred to the Sub court, Srivilliputtur, and renumbered as O.S.No.486/93. Further, the poosaries also filed another suit in O.S.No.41/991 before the Sub Court, Srivilliputtur, against the Thiruppani Committee, for a declaration that the registration of the society is invalid and for accounts and for other incidental reliefs. By a common judgment dated 30.09.1993, the suits of the poosaries O.S.Nos.89/89, 41/91 and 25/93 were decreed and the suit in O.S.No.486/93 filed by the Thiruppani Committee was dismissed. Aggrieved by the said common judgment, Thiruppani committee filed appeals before the District Court, Srivilliputtur, which were dismissed, by a common judgment and decree dated 20.10.1994, against which, second appeals were filed in S.A.Nos.484 to 487 of 1995 which are pending. Thereafter, the defendants 2 to 6 filed an appeal under Section 69(2) of the HR & CE Act, before the Commissioner, HR & CE, Chennai, to initiate suo motu revisional powers to set aside the order of the Deputy Commissioner, HR & CE, Madurai, dated 04.10.1986 in O.A.No. 18/85, declaring that the suit property or institution is a Samadhi and Page 5 of 20 https://www.mhc.tn.gov.in/judis A.S(MD)No.16 of 2013 not a temple. By order dated 01.11.1992, the Commissioner held that the appeal was maintainable under Section 69(2) of the Act, which was challenged by the plaintiffs/Poosaries in W.P.No.907/93 before the High Court. By order dated 16.04.1996, the said writ petition was allowed, directing the Commissioner, HR & CE., to decide whether the appeal was filed within a reasonable time. The Commissioner, HR & CE., again held that the appeal was filed within a reasonable time and further posted the appeal to be decided on merits. The appeal was numbered as S.M.R.No. 14/1992. After hearing the parties, by order dated 16.07.1999, the Commissioner, HR & CE., set aside the order of the Deputy Commissioner dated 04.10.1986 in O.A.No.18/85 and held that the suit Samadhi is a religious institution as defined under section 6(18) of the Act and it is a place of public religious worship. Hence, the suit.
3. Brief averments in the written statement are as follows:-
The Commissioner, HR & CE/the first defendant filed a written statement, stating that the suit Samadhi has all the identical characters of a temple and it is worshipped by the entire public. There are Manimandapam, Arthamandapam, Yali Mandapam and Sanctum Page 6 of 20 https://www.mhc.tn.gov.in/judis A.S(MD)No.16 of 2013 Sanctorium. A Samadhi of a Saint will not have all these features as that of a temple. There is no detail about the origin of the temple. Regular poojas and abishekams are being done and hence the suit temple is a religious institution as defined under section 6(20) of the HR & CE Act. The plaintiffs or their family members never endowed any properties for the suit temple and there is no piece of evidence that the temple was constructed and administered from their own funds or that they are performing poojas by themselves only. The suit temple is built on natham land in S.No.415/3. The first defendant was not made as parties in the suits mentioned in the plaint. There is a Thiruppani Committee consisting of various communities for the renovation of the temple. After a careful enquiry and considering the statements and documents, the first defendant has passed orders. Thus, the suit is liable to be dismissed.
3.1. The sixth defendant has also filed a written statement which was adopted by the defendants 2 to 5, wherein, they have averred that the suit property is not a Samadhi. The allegation that the disciples of the Saint Gurusamy interned his body and built a Samadhi is denied, Page 7 of 20 https://www.mhc.tn.gov.in/judis A.S(MD)No.16 of 2013 whereas, the suit property is a temple worshiped by the public. The allegation that the Saint adopted a girl namely, Palaniammal and she married one Anjaneya Perumal is denied. There are no statues of Palaniammal and Anjaneya Perumal in the suit property as alleged in the plaint. The further allegations regarding erection of Linga idol and non conducting of festival to the suit temple are denied. In fact, poojas and festival are conducted as like a public temple, as such, it is a public temple. Further, out of the money donated by the public, Panthal Mandapam, Kalimandapam, Madapalli were constructed and there are stone inscriptions for public contributions and necessary physical features like, Hundial, public donation, Gopuram, Praharam, Inscriptions are all situated in the suit property and hence, the plaintiffs cannot deny that it is a temple. The public of Rajapalayam have donated huge sums and performed Kumpabishekam. The Samadhi of the Saint Gurusamy is only at Kottoor which can be seen even today. The order of the Deputy Commissioner which was passed without proper enquiry and having been set aside, cannot be relied on by the plaintiffs. Prior Civil Court proceedings were only on the basis and relying upon the erroneous order of the Deputy commissioner. H.R.& C.E, in O.A. No.18/85. Now that Page 8 of 20 https://www.mhc.tn.gov.in/judis A.S(MD)No.16 of 2013 order having been set aside and since the matter is pending in the second appeals, the matter has not become final. Thus, the suit is liable to be dismissed.
4. Based on the above pleadings, the trial Court framed the following issues:-
(i) Whether the order of the Commissioner, HR & CE., dated 16.07.1999 in SMR.No.14/92 is liable to be set aside?
(ii) Whether the plaintiffs are entitled to declaration that the suit property is not a religious institution?
(iii) Whether the plaintiffs are entitled to the consequential injunction restraining the defendants from interfering with the plaintiffs' possession and management of the suit property?
5. In order to substantiate the case, on the side of the plaintiffs, three witnesses were examined as PW1 to PW3 and 23 documents were marked as Exs.A1 to A23. On the side of the defendants, two witnesses were examined as DW1 and DW2 and 13 documents were marked as Exs.B1 to B13.
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6. The trial Court, considering the pleadings, oral and documentary evidence, dismissed the suit by judgment and decree dated 09.07.2012. Challenging the said judgment and decree, the plaintiffs have filed this appeal.
7. The learned counsel for the appellants would submit that the suit property is a Samadhi of the Sanit Gurusamy and his disciples belonged to Salliyar community interned the body of the Saint in the suit property and built a Samadhi. Further, the statutes of the adopted daughter of Saint and her husband were installed in the suit property which cannot be allowed in a Hindu temple and it is one of the important features of Samadhi, and therefore, the suit Samadhi is not a temple. Over the Samadhi, a Linga idol was installed and Gurupoojas are being performed during the Mahasamadhi day of the Sanit Gurusamy on the 13th day of July every year, which will be held only in Samadhis and no regular festival as that of a Hindu temple is conducted in the suit Samadhi. Originally, the adopted daughter of the Saint and her husband were performing poojas and after their life time, the plaintiffs are the poosaries succeeded the said persons, as such, the suit Samadhi was Page 10 of 20 https://www.mhc.tn.gov.in/judis A.S(MD)No.16 of 2013 managed and administered by the said poosaries for more than 100 years. They have developed some shops and collected rents which were utilised for the maintenance and administration of Samadhi, as such, it is not either a temple as defined under Section 6(20) of the HR & CE Act or a religious institution as defined under Section 6(18) of the HR & CE Act. It is further submitted that when the public tried to convert the suit Samadhi into a temple, the poosaries filed an application under Section 63(a) of the Act and the Deputy Commissioner, HR & CE by order dated 04.10.1986 declared that it is only a Samadhi and not a religious institution. Later, an inspection was also conducted by the HR & CE officials and a report was submitted stating that the suit property is only a Samadhi and in this regard, there is an ancient stone inscription available in the suit property. Thereafter, the plaintiffs also filed suits against the Thiruppani Committee and succeeded in those suits and in the first appeals, and now the second appeals filed against those concurrent findings, are pending before the High Court. Even thereafter, the private respondents filed an appeal under Section 69(2) of the HR & CE Act, before the first respondent/Commissioner, HR & CE, Chennai, to initiate suo motu revisional powers to set aside the above order of the Page 11 of 20 https://www.mhc.tn.gov.in/judis A.S(MD)No.16 of 2013 Deputy Commissioner, HR & CE, Madurai, dated 04.10.1986 and though the first respondent initially took a decision that the appeal was maintainable, pursuant to the directions of the High Court in the writ petition filed by the appellants, the first respondent was directed to consider the above appeal afresh and even thereafter, the first respondent erroneously allowed the appeal and set aside the order dated 04.10.1986.
8. The learned counsel for the appellants would further contend that without even marking any documentary evidence by the defendants, the first respondent accepted their case and set aside the order dated 04.10.1986, ignoring the earlier civil courts decrees declaring the suit property as Samadhi, which reflects non application of mind on the part of the first respondent. Further, the suo motu power shall be exercised by the first respondent on his own and not on the petition filed by the Thiruppani Committee and that the Thiruppani Committee should have filed appeal within 60 days from the date of the order namely, 04.10.1986, but they filed appeal in 1992 and therefore, it should not have been entertained. It is not the case of Thiruppani Committee that Page 12 of 20 https://www.mhc.tn.gov.in/judis A.S(MD)No.16 of 2013 any property was dedicated to the suit Samadhi nor the suit Samadhi was dedicated to the public and in the absence of the same, the definition of 'temple' is not satisfied. Thus, the reasonings given by the first respondent are unsustainable and the trial Court also failed to appreciate the oral and documentary evidence and erroneously dismissed the suit. Hence, the learned counsel would pray for setting aside the judgment and decree passed by the trial Court. For a proposition that mere worship by the public will not convert the Samadhi into a temple and it must have been used as of right as a place of public religious worship by the Hindu community or any section thereof, the learned counsel relied on the judgments of the Hon'ble Supreme Court reported in (2012) 1 MLJ 465 (SC), Parasamya Kolerinatha Madam vs. P.Natesa Achari and Soundharathammal vs. The Tiruchirappalli Mavattam Mahasuruli Alaya Bakthargal Madya Sangam reported in 1997 1 MLJ 125 and a decision of this Court in Commissioner, HR & CE vs. G.Veluchamy and others reported in (1987) 2 MLJ 403.
9. The learned Special Government Pleader appearing for the first respondent/Commissioner, HR & CE., would submit that admittedly, Page 13 of 20 https://www.mhc.tn.gov.in/judis A.S(MD)No.16 of 2013 there is a Samadhi in the suit property and Samadhi also comes under the definition of 'religious institution' as per the amendment to the HR & CE Act which came into force on 27.06.2012. As per Section 6(18) of the HR & CE Act, 'religious institution' means a math, temple or specific endowment and includes a Samadhi or Brindhavan or any other institution established or maintained for a religious purpose. As per the Explanation (1) to the above provision, ''Samadhi'' means a place where the mortal remains of a guru, sadhu or saint is interned and used as a place of public religious worship. Thus, as per the amendment in 2012, Samadhi comes under the definition of 'religious institution'.
10. The learned Special Government Pleader would further submit that adjacent to suit Samadhi, the appellants constructed a temple also and even the Kumbabishekam was conducted and the public are allowed to worship in the temple and public contributions/donations are received and Thiruppani Committee was also formed to maintain and renovate the temple and therefore, it is a religious institution more particularly, a temple and also a public temple within the purview of both Sections 6(18) as well as 6(20) of the HR & CE Act. The first respondent Page 14 of 20 https://www.mhc.tn.gov.in/judis A.S(MD)No.16 of 2013 considered all the facts and circumstances and allowed the appeal and challenging the same, the appellants filed a statutory suit under Section 70 of the HR & CE Act, and the trial Court also considering the pleadings, oral and documentary evidence, rightly dismissed the suit. Thus, he would submit that there is no merit in this appeal and the same is liable to be dismissed.
11. The learned counsel for the second respondent/Thiruppani Committee also would submit that there is a temple in the suit property and the public are worshiping and donations are received from the public and Kumbabishekam was also performed. Since the public contribution is a vital role in the suit property, it comes under the definition of Section 6(20) of the HR & CE Act. Thus, the trial Court rightly dismissed the suit and this appeal is liable to be dismissed. In support of his contentions, he relied on the following decisions:-
(i) Goswami Shri Mahalaxmi Vahuji vs. Ranchhoddas Kalidas and others reported in 1969 (2) SCC 853.
(ii) Sri Gedela Satchidananda Murthy (D) by LRs vs. Deputy Commissioner, Endowments Department, A.P., and others, reported in Page 15 of 20 https://www.mhc.tn.gov.in/judis A.S(MD)No.16 of 2013 (2007) 5 MLJ 177.
(iii) Shri Ram Mandir Indore vs. State of Madhya Pradesh and others reported in 2019 SAR (Civil) 510.
12. Heard both sides and perused the records.
13. Though the suit was filed in the year 1999, in view of the amendment to the HR & CE Act in the year 2012, the prayer sought for in the suit to declare that the Samadhi of Gurusamy in the suit property is not a religious institution itself, goes out, as the said prayer becomes infructuous. Though the appellants contended that the statutes of the adopted daughter of the Saint and her husband were installed in the suit property, which cannot be allowed in a Hindu temple and it is one of the important features of Samadhi, and therefore, suit Samadhi is not a temple, in view of the amendment in 2012, the appellants cannot take such stand. However, the learned counsel for the appellants would submit that one of the prayers is that the order of the first respondent is to be set aside. From the evidence, it is clearly shows that the suit property is not only the Samadhi, but also there is a temple. According to the appellants, there is no temple at all in the suit property. Page 16 of 20 https://www.mhc.tn.gov.in/judis A.S(MD)No.16 of 2013
14. Now, the core question to be decided in this case is, whether there is any temple in the suit property and whether it is a public temple. A reading of the oral and documentary evidence shows that there is a temple in the suit property and even Ex.B1-photos clearly shows that there is a structure of temple. Though this Court cannot decide based on the structure alone that there is a temple, admittedly, Thiruppani Committee has been also formed and they have done all the renovation work and subsequently, Kumbabishekam was also performed, which fact has not been denied by the appellants. Though there were earlier civil proceedings between the plaintiffs and the defendants, in none of the proceedings, the party empowered to decide the character of the suit property which is the HR & CE Department, has been impleaded. Hence, the judgments rendered in those civil proceedings are not binding on the first respondent. Further, the nomenclature of the suit property as per the oral and documentary evidence is Gurusamy Samadhi Koil. Exs.A4 and A5 series of invitations describe the suit property as Samadhi Gurusamy Koil. PW1 has admitted that Kumbabishekam of the suit property had taken place. Kumbabishekam takes place only in temples and not in Samadhis. Further, Exs.A4 and A5-invitations prove that Page 17 of 20 https://www.mhc.tn.gov.in/judis A.S(MD)No.16 of 2013 festival is being conducted in the form of Gurupooja, Annadhanam, Palabishekam and Palkuda Vizha. Such conduct of festivals indicate that the suit property is a public temple. It is also admitted by both sides that there is a public worship in the Gurusamy Samadhi Koil and though mere public worship alone cannot convert any place into a public temple, it is a characteristic feature of a public temple. Apart from that, PW1 also admitted that idols of Pillaiyar and Subramaniar are found in the suit property. Further, there are necessary physical features of a public temple like, Hundial, Gopuram, Praharam, Yazhi Mandapam, Artha Mandapam and Manimandapam in the suit property and regular priests are conducting poojas and not just once in a year on the death anniversary of the Sanit Gurusamy as contended by the appellants.
15. The above evidence categorically shows that the suit property is not only a religious institution, but also a public temple, since the public are freely worshiping the temple and making contributions/donations and Kumbabishekam was also performed from the contribution of the public. Thus, the suit property is not only comes under the definition of Section 6(18) of the HR & CE Act, but also comes Page 18 of 20 https://www.mhc.tn.gov.in/judis A.S(MD)No.16 of 2013 under the definition of Section 6(20) of the HR & CE Act. Thus, the contentions of the appellants are not sustainable and there is no perversity in the judgment and decree passed by the trial Court. The judgments relied on by the appellants are not applicable, in view of the amendment to HR & CE Act in 2012. There is no merit in this appeal.
16. In view of the above, the Appeal Suit is dismissed. The parties are directed to bear their own costs. Consequently, connected miscellaneous petitions are closed.
bala 29.07.2022
Index : Yes / No
Internet : Yes
To
1. The Subordinate Judge,
Srivilliputhur.
2. The Commissioner
Hindu Religious and Charitable
Endowments (Admn.) Department,
Mahatma Gandhi Road,
Chennai-600 034.
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A.S(MD)No.16 of 2013
P.VELMURUGAN, J.
bala
JUDGMENT MADE IN
A.S(MD)No.16 of 2013
DATED : 29.07.2022
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