Madras High Court
Sri Varasidhi Vinayagar Sath Sangam vs The Commissioner on 21 July, 2008
Author: V. Dhanapalan
Bench: V. Dhanapalan
IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated :: 21.07.2008 Coram The Honourable Mr. Justice V. DHANAPALAN A.S.Nos.1280 & 1395 of 1994 A.S.No.1280 of 1994 : Sri Varasidhi Vinayagar Sath Sangam represented by its present Secretary V. Srinivasan ... Appellant vs. The Commissioner H.R. & C.E. Department Uthamar Gandhi Salai Madras 600 034 Respondent A.S.No.1395 of 1994 : E.Devarajan ... Appellant -vs- 1.The Commissioner, Hindu Religious & Charitable Endowments Department, Nungambakkam High Road, Madras-600 034. 2.The Deputy Commissioner, Hindu Religious & Charitable Endowments Department, Nungambakkam High Road, Madras-600 034. ... Respondents A.S.No.1280 of 1994 is filed under Section 96 of Code of Civil Procedure against the judgment and decree dated 25.01.1994 made in O.S.No.3988 of 1990 on the file of V Assistant City Civil Court, Madras. A.S.No.1395 of 1994 is filed under Section 96 of Code of Civil Procedure against the judgment and decree dated 30.06.1993 made in O.S.No.6412 of 1990 on the file of V Assistant City Civil Court, Madras. For appellants in both appeals :Mr. W.C. Thiruvengadam For respondent in A.S.No.1280/1994: Mr. V. Chandrasekaran, Spl. Government Pleader (HR & CE) For respondents in A.S.No.1395/1994:Mr.R.Murugesan, Spl. Government Pleader (HR & CE). COMMON JUDGMENT
Since both the appeals relate to a common issue, they are being disposed of in common.
2. The plaintiff, who is the appellant in A.S.No.1280 of 1994, filed a statutory suit in O.S No.3988 of 1990 before the V Assistant City Civil Court, Madras under Section 70 (1) of the H.R. & C.E. Act 22 of 1959 (in short the Act) in order to set aside the order dated 28.12.1989 passed by the Commissioner, H.R. & C.E. Madras 34 passed in A.P. No.107 of 1987 under Section 69(1) of the Act. The statutory suit was dismissed by the V Assistant Civil Court, Madras by a judgment and decree dated 25.01.1994 against which the present appeal by the appellant.
3. The case of the appellant is as under:
a. There is a private temple dedicated to the worship of Sri Varasiddhi Vinayagar situated in Door No.E-96/A, 17, I Avenue, Besant Nagar, Madras 600 090. An idol of Sri Varasiddhi Vinayagar was first installed and worshipped by one Balaramamoorthy Naidu of the locality in the land belonging to the Housing Board and the said Balaramamoorthy Naidu was continuing his personal worship for some years and there was no dedication to the said deity either by way of any property or by way of any public worship as a matter of right. In the meantime, some residents of Besant Nagar conceived an idea of forming a Sangam to construct a temple for Sri Varasiddhi Vinayagar and to perpetuate worship for ever. Accordingly, an association was formed under the name and style of Varasiddhi Vinayagar Sath Sangam (in short the Sath Sangam)and the same was also registered under the Societies Registration Act, XXI of 1860. Thus, the temple in question is a private temple belonging to Varasiddhi Vinayagar Sath Sangam, which was initially having only 63 members with various objects, viz., i to build Hindu temples and such other institutions, religious and charitable as well, minister to the religious needs of the Hindu residents of Besant Nagar and surrounding areas and to arrange for their proper working. The Varasiddhi Vinayagar Temple shall be owned, maintained and managed by the Sath Sangam;
ii to arrange for the diffusion of useful religious knowledge through libraries, discourses and similar religious activities;
iii to raise ;funds for the achievement of the above objects, to purchase and hold properties movable and immovable relating thereto and to arrange for the management of the same; and iv to do such other things as are incidental to or conducive to the attachment of the above objects.
b. After forming and registering the Sath Sangam in question, its members resolved to shift the idol of Shri Varasiddhi Vinayagar from its original place to a new place where a superstructure could be constructed for the deity in question which was originally worshipped by the said Balaramamoorthy Naidu. Thereafter, the Sath Sangam purchased a piece of vacant land measuring about 6 grounds and 425 sq. ft. at E.964/E.154, Besant Nagar, Adyar for a total purchase amount of Rs.77,213.54 and also obtained permission for the construction of a private temple from the MMDA and thereupon a private temple was finally constructed and kumbabishekam was performed on 12.04.1979. Thus, the original of the private temple was of a recent one and remained with the members belonging to the appellant-Sath Sangam.
c. While so, one T.N. Venkoba Rao was elected as the Secretary of the Sath Sangam and was co-ordinating the day-to-day affairs of the private temple in question. The members of the Sath Sangam liberally donated for the construction of the institution and they did not take donation from outsiders of the locality for the founding of the private temple in question and as a matter of fact, no contribution was received from outsiders in the locality at any point of time, either for the founding of the institution or for its subsequent maintenance. Accordingly, it was founded by the members of the Sath Sangam and being continuously maintained till date. The public at large are not allowed to come and have worship in the temple. The so-called worship by the public can be a permissive possession only. The relatives of the Sath Sangam are allowed to worship after obtaining permission from the members of the Sath Sangam. However, the Supreme Court, took a view that a Hindu will not prevent a Co-Hindu from coming and worshipping in a Hindu temple and such a worship by a Hindu cannot be taken as a worship by right.
d. After kumbabishekam, the temple is in the private control and management of the appellant-Sath Sangam for whose benefit, the institution is chiefly intended and maintained. The Sath Sangam has been paying the monthly instalments to the Tamil Nadu Housing Board towards the purchase amount till date and thus, the institution in question is the private property of the Sath Sangam, a body registered under the Society Registration Act and therefore, that institution will not come under the purview of the Act 22 of 1959 and it is not a religious institution as laid down under Section 6(18) of the Act and also will not attract the definition of a temple as contemplated under the provisions of the Act. The private temple is not possessed of any property of its own and there is no hundial in the temple except an open brass pot kept for the use of the members of the Sath Sangam only and that practice has also been stopped ever since the H.R. & C.E. Department made an attempt to interfere in the day-to-day affairs of the private temple in question. The general public at large are not allowed to worship in the temple as a matter of right and such worship if at all is always permissive worship only and therefore, permitting certain members of public to come and have worship in a private temple cannot take away the private character of such institution. The founding, establishing and continuous management should remain in the private capacity for getting such declaration under Section 63(a) of the Act and in the appellant's case, the private temple has been founded, established and maintained by the members of the Sath Sangam and therefore, the institution as a whole will not attract the provisions of the Act.
e. Further, the Inspector of the Department, all of a sudden, visited the temple without notice to the appellant, made an attempt to seal the brass pot kept for the collections from and among the members of the Association which led to the filing of O.A. No.52 of 1980 on the file of the Deputy Commissioner, H.R. & C.E., Administration Department, Chennai600 034 for a declaration that Shri Varasiddhi Vinayagar Temple situated in Besant Nagar is not a religious institution coming under the Act.
f. The Deputy Commissioner, H.R. & C.E. Department, after conducting an enquiry into the matter dismissed O.A. No.52 of 1980 without properly appreciating the evidentiary value of Exs. A.1 to A.9 filed by the appellant in support of its case under Section 63(a) of the Act. Aggrieved by the order of the Deputy Commissioner passed in O.A. No.52 of 1980, the appellant filed a statutory appeal under Section 69 (1) of the Act before the Commissioner, H.R. & C.E. Department who is the respondent in A.P. No.107 of 1987 which was also dismissed on 28.12.1989 without properly appreciating the evidentiary value of the relevant records filed in support of the case and against the said order in the appeal, the appellant filed the present statutory suit under Section 70(1) of the Act. The various grounds raised in the suit are that:
i the order of the respondent passed in A.P. No.107 of 1987 was against law, weight of evidence and all probabilities of the case;
ii the respondent-Commissioner failed to understand the scope of the application filed under Section 63(a) of the Act;
iii the respondent-Commissioner failed to see that there was no contra evidence which was forthcoming in the court below to destroy the case of the appellant herein and in the absence of such contra evidence, the irresistible inference should be that Shri Varasiddhi Vinayagar Temple situated in Besant Nagar is not a religious institution coming under the purview of the Act;
iv The respondent-Commissioner has failed to see that the Inspector, H.R. & C.E. Department, Madras and her report having been marked as C.W.1, has failed to examine any oral evidence to establish the public character of the institution. The report of the Inspector simply contemplated that there was public worship in the temple; but, there was no evidence in that respect and accordingly, the report of the Inspector ought not to have been relied on by the courts below for deciding the character of the institution in question;
v The Inspector, in her report, has categorically pointed out to the effect that she has collected information from the Gurukkal in regard to the public worship in the temple. It is not known why the Inspector has not chosen to examine the Gurukkal of the temple as a witness in this case. The said Gurukkal of the temple has never given any information to the Inspector at any time in regard to the real character of the institution. Therefore, the report of the inspector is of no use in deciding the character of the institution and accordingly, the Court below must have gone into Exs.A.1 to A.9 filed by the Secretary of the Sath Sangam to decide the character of the institution which has not been done in this case;
vi The respondent-Commissioner, as an appellate authority, has also simply enumerated the records Exs.A.1 to A.9 in the Annexure to the order but failed to make a legal analysis on the same which has led to the miscarriage of justice;
vii The respondent-Commissioner has failed to see that the private temple is actually located in a land purchased by the Sath Sangam for a valuable consideration and therefore, the private character of the institution is well-established which is also under the control and management of the Sath Sangam;
viii The respondent-Commissioner has failed to take note of the establishment of the private temple by the Sath Sangam by properly analysing Exs.A.3 to A.5 which clearly establish the origin of the private temple;
ix The respondent-Commissioner has failed to see that there was no evidence in the Court below to establish that contribution was taken from outsiders for the founding of the temple or for its establishment and for its subsequent maintenance. In the absence of such a vital evidence, the Court below ought to have come to the conclusion that Sri Varasiddhi Vinayagar Temple situated in Besant Nagar is not a religious institution coming under the purview of the Act. On the other hand, the respondent-Commissioner has wrongly interpreted the evidence of P.W.2 which would clearly indicate that donations were accepted from the relations of the members only and that at no point of time, P.W.2 had deposed that donations were collected from outsiders, i.e., outside the members of the Sath Sangam;
x The respondent-Commissioner has further erred in holding that P.W.2 has deposed that public are worshipping in the temple but as a matter of fact, P.W.2 has never deposed in that manner but only deposed that public are allowed to worship in the temple with the permission of the members of the Sangam and the respondent-Commissioner has not taken note that the idol was originally in the personal custody of Balaramamoorthy Naidu who was personally worshipping the deity and later given it to the Sath Sangam for installing and making it a private temple of the Sath Sangam and the said Balaramamoorthy is also a member of the Sath Sangam ever since its inception;
xi The respondent-Commissioner has failed to see that the definition of Section 6(20) does not attract to the private temple in question in view of the fact that the temple in question has never been treated as a place of public religious worship and secondly, there has been no dedication for the benefit of Hindu community. In such circumstances, the Court below ought to have granted the relief as prayed for under Section 63(a) of the Act. On the other hand, the respondent-Commissioner, based on Ex.A.6 series, has decided that the Sath Sangam has made an appeal to the public to donate liberally for the celebration of consecration ceremony. But, in fact, Ex.A.6 series did not reveal such a request from the members of the Sangam. It is purely imaginary on the part of the court-below to arrive at such a conclusion;
xii The respondent-Commissioner can come to the conclusion on the basis of the records available in this case and therefore, the surmise of the Commissioner to the effect that collections were made for the performance of kumbabishekam is totally denied besides being improper and mischievous;
xiii The respondent-Commissioner has failed to see that there was no public participation in the construction of the temple and there was no evidence to this effect and in the absence of such an evidence, he has erred in arriving at a conclusion that the public participated in the construction of the temple; and xiv In any event, the records filed by the appellant in Exs.A.1 to A.9 have not been properly appreciated and the evidentiary value has not at all been discussed in the annexure to the order of the respondent in A.P. No.107 of 1987 and in the circumstances, the order of the respondent-Commissioner in A.P. No.107 of 1987 dated 28.12.1989 has to be set aside and consequently declare that Sri Varasiddhi Vinayagar Temple situated in Besant Nagar, Madras owned by Sath Sangam situated in Besant Nagar is not a temple as laid down under Section 63 (a) of the Act.
g. The cause of action for the suit arose at Madras under Section 70(1) of the Act when the Commissioner, H.R. & C.E. Department, Madras has dismissed A.P. No.107 of 1987 dated 28.12.1989 and the said order having been communicated on 03.01.1990 and has been received by the appellant on 06.03.1990 and the suit has been valued and the appellant has prayed for a decree and judgment to declare that Sri Varasiddhi Vinayagar Temple situated in Besant Nagar, Madras is not a religious institution as contemplated under Section 63 (a) of the Act and to set aside the order passed by the respondent-Commissioner, H.R.&C.E. Department, Madras passed in A.P. No.107 of 1997 dated 28.12.1989
4. The respondent has filed written statement in which it is stated that he being a public servant, the appellant ought to have issued a statutory notice as contemplated under Section 80 of the Civil Procedure Code. Such notice is necessary even for a suit under Section 70 (1) of the Tamil Nadu H.R.&C.E. Act 22/1959. Hence, the suit is not maintainable and liable to be dismissed in limini. According to the respondent, the averments contained in paras 4 to 8 of the plaint are denied and it is his case that the appellant has filed an application under Section 63(a) of the Act before the Deputy Commissioner in O.A. No.52 of 1980 seeking a declaration to the effect that the suit temple is not a religious institution as contemplated under Section 63 (a) of the Act. They have filed several documents before the Deputy Commissioner, Madras which were marked as Ex.A.1 to A.8. S.Thukkaram, R. Thirumalachari, T. Balaramamoorthy and Thirumalai were examined as P.W.1 to P.W.4 respectively and S. Manomani, Inspector of the Department was examined as court witness and her report was marked as court document (C1).
5. According to the respondent, the Deputy Commissioner, Madras who is the authority under Section 63(a) of the Act has conducted a detailed enquiry in the matter. During the course of said enquiry, Thukkaraman got himself examined as P.W.1 and Exs.A.1 to A.9 were marked. In addition, the evidence of P.Ws.2 to 4 was also let in. The Court examined the Inspector of the Department as C.W.1 and report sent by her was marked as Ex.C.1. After analysing the evidence of the witnesses and the documentary evidence produced, the Deputy Commissioner has given a finding that the institution in question is a public religious institution and negatived the claim to the contrary in his order dated 13.05.1986 in O.A. No.52 of 1980. Aggrieved by the order, they filed an appeal before the Commissioner in A.P. No.107/87 under Section 69(1) of the Act. The Commissioner has heard the appellant's counsel and perused the records.
6. It is the specific case of the respondent that P.W.1 Thukkaram deposed on the lines of the petition before the Deputy Commissioner and marked the documents. Ex.A.1 is the certificate dated 05.06.1975 issued by the Registrar of Assurances, Madras South for having registered the Sath Sangam in the name of Varasiddhi Vinayagar under S.No.83 of 75 as per the Societies Registration Act, 21 of 1860. This has been filed to show that the Sath Sangam was formed first and according to the wishes of the residents of the locality, the temple was constructed with the Arulmighu Varasiddhi Vinayagar for the worship of the idol for ever. According to the petitioners, the idol in question was already there and worshipped by one Balaramamoorthy Naidu in the land belonging to the Tamil Nadu Housing Board. Ex.A.2 is the Memorandum of Association to show the formation of the Sangam in the name of Sri Varasiddhi Vinayagar containing its objects and functions. One of the objects as specified under Rule 2(a) of the Memorandum is to own, maintain and manage the Varasiddhi Vinayagar Temple. But, in this document, nowhere it is stated that the temple to be constructed is for the exclusive worship of the members of the Sangam and denying the right of others offering worship therein. Ex.A.3 is the communication dated 04.06.1977 of the Tamil Nadu Housing Board, Madras, addressed to the President of Arulmighu Varasiddhi Vinayagar Temple, Besant Nagar, Madras 90 informing the total cost of Plot No.E.96-A, Besant Nagar, measuring about 6 grounds and 425 sq. ft. as Rs.77,213.54 on hire purchase basis. Ex.A.4 is the plan of the temple in question approved by MMDA in their Lr.No.29274/S177 dated 07.10.1977. Ex.A.5 is the estimate dated 25.02.1978 given by P.M. Nataraja Sathapathy for the construction of the temple at a cost of Rs.6,300/- to the Sath Sangam. Ex.A.6 series contain invitation dated 28.02.1979 extended to the public inviting them for the consecration ceremony of the temple and making appeal to the public to contribute liberally for the celebration of the ceremony by Sath Sangam. They have also mentioned in the notice that the donations in the form of cheques should be sent in the name of Sri Varasiddhi Vinayagar Sath Sangam. Further, the allotment order also makes it clear that the property was allotted to Varasiddhi Vinayagar Temple only and not to the Varasiddhi Vinayagar Sath Sangam.
7. Further, the respondent has stated in the written statement that Ex.C1 is the register for the enrolment of member of the Sangam under rule 16 of the Tamil Nadu Societies Registration Rules and the report of the Inspector, H.R. & C.E., Madras 7. P.Ws.1, 2 and 4 spoke on the lines of the petition. P.W.3, Balaramamoorthy had deposed that he was the first member of the said Sath Sangam and donated idol to it. In cross-examination, he admitted that the public used to offer worship freely when it was located adjunct to C.P.W.D. Office compound wall. During 1969, Prathishtai or installation ceremony was done by Samayapuram Ramanatha Swamigal. The Sath Sangam in the name and style of Varasiddhi Vinayagar came to be formed in the year 1975. The land for the construction of the temple was taken possession from the Tamil Nadu Housing Board by the Sath Sangam in 1976. In 1977, the consecration was done to the temple and the idol which was already in worship was shifted and installed in the new premises. Though he deposed that at the time of formation of the Sath Sangam, there were 36 members and only with the contribution made by the members by way of cash and kind, the temple came to be constructed. P.W.3 also denied knowledge of the actual amount of materials contributed by the members and about the date of performance of the kumbabishekam. He denied knowledge to the suggestion as to the maintenance of accounts by the Secretary. He states no accounts were maintained for the contribution received towards the construction of the temple.
8. It is further stated that the Inspector, H.R. & C.E. Department who was examined as C.W.1 spoke that according to the enquiries made by her, the idol of Sri Varasiddhi Vinayagar was originally in a hut in a platform belonging to C.P.W.D. Quarters even prior to the formation of Sath Sangam and the public worship was going on there. In 1969, Prathishtai was done by Samayapuram Ramanatha Swamigal. After the construction of the temple, the idol was shifted from its original place and installed in the temple premises after consecration. Public worship and offering of Abhishekam and Archanai are said to be in practice and this fact was said to have been ascertained from the Gurukkal of the temple. The main source of the income of the temple is from hundial and thattu kannikkai.
9. To ascertain whether a temple can come within the scope of the definition of Section 6(2) of the Act, two conditions must be cumulatively satisfied. One is that it must be a place of public religious worship and secondly, it must have been dedicated for the benefit of Hindu community or any Section thereof. Further, it is stated that it is not correct to say that the respondent has passed the order in A.P. No.107 of 87 against law, weight of evidence and all probabilities of the case inasmuch as the respondent has passed the order in a speaking manner.
10. According to the respondent, the suit temple is a public temple as defined under Section 6(2) of the Act and the appellant cannot claim that the temple is a private one and the respondent has applied his mind while passing the order impugned in the suit. It is their case that one of the witnesses has admitted the fact that the expenses for construction of temple was not out of the donations made by the members of the Sath Sangam. Ex.A.2 never made any assertion that the temple to be constructed was intended only for the welfare of the members of the Sath Sangam. Further, the Ex.A6 series borne out that the Sath Sangam made appeal to the public to donate liberally for the celebration of the consecration ceremony by the Sath Sangam and no doubt that there was public participation in the construction of the temple and also offer worship without any hindrance. Ex.A.8 shows that the temple is having hundials for the collection of offering from the public. Also, the allotment of 6 grounds and 425 sq. ft. by the Housing Board which is a highly developed area has been admitted by the appellant. Therefore, a Government body like Tamil Nadu Housing Board would not allot such a bulk area for a private purpose and all these facts prove that the temple is a public temple as laid down under Section 6(20) read with Section 6(18) of the Act.
11. While rebutting the averments in paragraph 9(d), it is submitted that the report of the Inspector (C.W.1) spoke that according to enquiries made by her, the idol of Sri Varasiddhi Vinayagar was originally in a hut in a platform belonging to C.P.W.D. quarters even prior to the formation of the Sath Sangam and public worship was going on there. In 1969, Prathishtai was done by Samayapuram Ramanatha Swamigal. After the construction of the temple, the idol was shifted from its original place and installed in the temple premises after consecration. Public worship and offering of abishekam and archanai were in practice and this fact was ascertained from the Gurukkal of the temple. The main source of income of the temple is from hundial and thattu kaanikkai. Therefore, the report of the Inspector established the public character of the suit temple.
12. Further, the contentions in paragraph 9(e) also are denied and it is stated that the appellant was not prevented from examining the Gurukkal as a appellant's witness before the Deputy Commissioner at the time of enquiry and the respondent has examined all the connected records and exhibits relating to this case very carefully and came to a conclusion that the appellants have not made out a case to prove that the temple in question is a private one and hence, the respondent dismissed the appeal petition under Section 69(1) of the Act.
13. The Department has a statutory power to decide whether a religious institution is a private one or not under Section 63 of the Act. Exs.A.3 to A.5 alone are not sufficient proof to establish the character of the suit temple. The Government bodies such as Tamil Nadu Housing Board and MMDA did not allot a bulk area in Besant Nagar for private purpose. According to the respondent, the appellant has collected public donation for the founding and maintenance of the suit temple and the Inspector in her evidence spoke that she made an enquiry and found that public worship and offering of Abishekam and Archanai were said to be in practice and this fact was said to have been ascertained from the Gurukkal of the suit temple. Therefore, it is clearly established that the public are allowed for worship and also to offer their kaanikkais. According to the respondent, P.W.3 admitted in his deposition before the Deputy Commissioner, the idol was consecrated and installed in the new building constructed over the plot purchased from the Tamil Nadu Housing Board. Therefore, the respondent submits that the above facts clearly prove that it is a place of public religious worship and secondly, it has been dedicated for the benefit of the Hindu community or any section thereof. Therefore, the suit temple can come within the scope of the definition in Section 6(20) of the Act. Ex.A.6 shows that the public was invited for the consecration ceremony of the temple and an appeal was made to them to contribute liberally for the celebration of the ceremony by the Sath Sangam. Therefore, it is not correct to say that Ex.A.6 did not reveal such a request from the members of the Sath Sangam. It is also proved that the public and the relatives of the members of the Sath Sangam in the capacity of worshipping public have liberally donated to the temple for its construction and consecration ceremony. Therefore, the averment of the appellant in this regard is not correct. The evidence in the exhibits have been carefully examined and discussed by the respondent and the respondent has correctly dismissed the appeal under Section 69(1) of the Act and in such a situation, the suit is false, frivolous, bad in law and liable to be dismissed.
14. Mr.Thiruvengadam, learned counsel counsel for the appellants would contend that the learned trial Judge failed to understand the scope of the application filed under Section 63 (a) of the Hindu Religious and Charitable Endowments Act and also to take note of the evidence to decide the private character of the temple in question. According to him, the evidentiary value of Exs.A-1 to A-16 has not been looked into properly by the Court below and the respondent has not filed any documents and also not chosen to examine anyone to establish the public worship in the temple. The learned counsel, in his submissions, has pointed out that Ex.A-5 indicates the origin of the institution and that the institution is of a recent one and has been in existence for the benefit of the members of the appellant Sangam and also the evidentiary value of Ex.A-3, dated 04.08.1977 and Ex.A-4, dated 07.10.1977, with regard to the private character of the institution has not been looked into by the trial Court. It is pointed out by him that the Court below ought to have taken into consideration whether there has been any dedication of any property to the temple by a third party and in the circumstances the irresistible inference should be that the temple in question will not attract the provisions of the Act and the trial Court has erroneously held that the public are allowed to run the temple and such a worship by the public will lead to the conclusion that the institution is not a private temple. He would further contend that the trial Court ought to have arrived at a conclusion that the institution in question is not a public temple attracting the definition of Section 6 (20) of the Act and it failed to take note of the entire records filed by the appellant; the conclusion arrived at by the respondent that the main source of income of the temple is from offerings cannot be sustained as there is no credible evidence to that effect and, therefore, the judgment and decree of the trial Court have to be set aside.
15. Learned counsel for the appellants has relied on the following decisions :
(i) A judgment of the Privy Council reported in 1934 Law Weekly Vol. XL 428 in the matter of Mundacheri Koman v. Thachangat Puthan Vittil Achuthan Nair and others:
In the greater part of the Madras Presidency, where private temples are practically unknown, the presumption is that temples and their endowments form public charitable trusts. But this presumption does not apply in the case of temples in Malabar. Hence, in the case of a temple in Malabar, the decision of the question whether the temple is a public or private temple really depends on the inferences to be derived from the evidence as to the way in which the temple endowments have been dealt with and the evidence as to the public user of the temple.
(ii) A judgment of this Court reported in AIR 1966 Madras 99 (V 53 C 34) in the case of Sri Chidambareswara Sivagami Ambigai Temple vs. The Commissioner, Hindu Religious and Charitable Endowments, Madras (paras 7 and 9 ) . . . It will be clear from these decisions that even if there is a temple founded by a section of the Hindu community and they claim exclusive right of worship in that temple, still the definition in S.6(17) of Act XIX of 1961 will apply as long as that particular section of the community is clearly marked and constitutes a considerable section of the Hindu public.
In the present case, it was alleged that originally there were 50 families of Nagarathars, but at present there are 300 pullis ... of the community living in Nachandupatti village. But if we take the evidence of P.W.2 also into consideration, this section of the Hindu public is widened further and will include among the beneficiaries Nattukkottai Chettiars belonging to 5 out of 9 temple clans in that village and also outside. This will form a group of the Hindu community adequate in number and sufficiently distinctive to constitute a section of the community for whose benefit the dedication of the temple are necessarily to be inferred. Though a claim was put forward in the lower court, there was no proof, of actual dedication. Only continued user as of right by the section of the Hindu community as aforesaid has been urged. Of course, there is a reference in the judgment of the lower court, to members of the other communities like brahmin community being allowed to worship in the temple.
Applying the above principles to the present case, it is clear that in regard to the temple in Nachandupalli, even if it was founded exclusively for the benefit of the members of the Nattukottai Chettiar community belonging to 5 temple clans, the dedication of the temple to the community and the worship by the members of the community as of right in the temple, would still have make it a public temple, as the members constitute a section of the Hindu community as contemplated in the definition in S.6(17) of the Act.
(iii) A judgment of the Supreme Court reported in (1972) 2 SCC 329 in the matter of T.D. Gopalan vs. The Commissioner of Hindu Religious and Charitable Endowments, Madras (paras, 9, 11 and 16) 9. The High Court next proceeded to reproduce a summary of the statement of each of the witnesses produced by the respondents. No attempt whatsoever was made to discuss the reasons which the learned District Judge had given for not accepting their evidence except for a general observation here and there that nothing had been suggested in the cross-examination of a particular witness as to why he should have made a false statement. We apprehend that the uniform practice in the matter of appreciation of evidence has been that if the trial court has given cogent and detailed reasons for not accepting the testimony of a witness the appellate court in all fairness to it ought to deal with those reasons before proceeding to form a contrary opinion about accepting the testimony which has been rejected by the trial court. We are, therefore, not in a position to know on what grounds the High Court disagreed with the reasons which prevailed with the learned District Judge for not relying on the evidence of the witnesses produced by the respondents.
11. Mr Natesan who appears for the plaintiff-appellant has assailed the whole approach of the High Court to the question of the character of the temple which, according to him, had been proved to be private in origin. It has been contended by him that the usual state of affairs to be found in Madras as per the observations of the Privy Council could not be applied to the case of Saurashtra community which migrated from the territories which now form part of the State of Gujarat centuries ago. This community, has, apart from several other individual characteristics, maintained a tradition of having private temples. Moreover if the origin of the temple had been proved to be private then according to the law laid down by the Privy Council itself in Babu Bhagwan Din case, dedication to the public was not to be readily inferred. Such an inference, if made, from the fact of user by the public was hazardous since it would not, in general, be consonant with Hindu sentiment or practice that worshippers should be turned away; and, as worship generally implied offerings of some kind, it was not to be expected that the managers of a private temple should in all circumstances desire to discourage popularity. It was further emphasised by Their Lordships that the value of public user as evidence of dedication depends on the circumstances which give strength to the inference that the user was as of right. In Goswami Shri Mahalaxmi Vahuji v. Rannchhoddas Kalidas it was pointed out that the appearance though a relevant circumstance was by no means decisive. The circumstance that the public or a section thereof had been regularly worshipping in the temple as a matter of course and they could take part in the festivals and ceremonies conducted in that temple apparently as a matter of right was a strong piece of evidence to establish its public character. If votive offerings were being made by the public and the expenses were being met by public contribution, it would be safe to presume that the temple was public. In short the origin of the temple the manner in which its affairs were managed, the nature and extent of the gifts received by it, rights exercised by devotees in regard to worship therein, the consciousness of the manager and the consciousness of the devotees themselves as to the public character of the temple were factors that went to establish whether a temple was public or private.
16. It is true that the suit temple had some physical characteristics and features which are generally to be found in a public temple. It was also established that persons who were outsiders in the sense that they did not belong to the Thoguluva family used to come and worship at the temple and made offerings there. There were also some jewels and other articles in the temple. But the determination of the question whether the temple was public or private did not depend on some facts or set of facts alone. The entire evidence, both documentary and oral, had to be considered as a whole keeping in view the principles already noticed by us. We are satisfied that the learned District Judge came to the correct conclusion that the suit temple was private in character.
(iv) AIR 1976 MADRAS 26, T.Mudaliar v. Commissioner, HR & CE.:
"The other inspiring norms to decide whether a temple is a private or public temple is dependent upon the features of the institution."
(v) AIR 1971 MADRAS 405 (V C 83), Pichai v. Commissioner, HR & CE :
"The definition of temple is wide enough to include any place of public religious worship irrespective of installation of idols or a building or a tower or stupi. Presence of idols is not an essential requisite of temple. The only conditions are that it must be dedicated to or for the benefit of, Hindu community or a section thereof or used by it as of right"
(vi) 2005 (2) TLNJ 375, C.Nallasivan Pillai v. The Commissioner, HR & CE :
"Character of Temple Tests merely because Government appointed trustees cannot be sole basis to determine character of temple initial presumption that temples in Tamil Nadu should be treated as public temple usual presumption cannot be invoked in respect of temple at Tranvancore or otherwise at Kerala (on facts held) temple private"
(vii) 1998 (2) L.W.819, The Commissioner, HR & CE v. Sri Andarvillai Mutharamman Temple :
"In view of the concurrent findings of fact about the physical features of the temple, its origin and subsequent administration all along and the absence of any proof of other members of the public worshipping in the temple or giving any funds or contribution or the presence of any hundial, no exception could be taken to the ultimate decision arrived at that the temple in question is not a public temple."
(viii) 2003 (1) CTC 65, The Commissioner, HR & CE, v. T.S.Palanichamy :
"Crucial factor for determining character of temple is whether there is dedication to public and right if public to offer worship is as a matter of right"
(ix) 1977 (1) MLJ 125, Soundharathammal v. M.A.B.M.Sangam :
"Merely because the members of the public are allowed to attend religious festivals and ceremonies, it cannot be straightaway said that such user was due to an inherent or acquired right of the public to visit the shrine and offer worship. The mere fact that Hindu worshippers have been freely admitted to the temple does not prove the temple to be a public institution, because the consonance of Hindu sentiment and practice is not to turn away worshippers even in private temples."
16. On the other hand, the learned Special Government Pleader appearing for the respondents has contended that the respondents have a statutory power to decide whether a religious institution is a private one or not under Section 63 of the Act and when the Government bodies like TNHB and MMDA have allotted a bulk area in Besant Nagar for a purpose, it is only for a public purpose and not for a private purpose. He has further submitted that the appellant has collected public donations for the founding and maintenance of the suit temple and the Inspector, in her evidence, spoke that she conducted an enquiry and found that public worship, offerings and Archanai were said to be in practice and this fact was stated to have been ascertained from the Gurukkul of the suit temple and that the public was allowed for worship and also to offer their Kanikkais (offerings). The learned Special Government Pleader has further contended that the factors of the public worship and offerings are made out and the foundation of the temple has been constructed in an area allotted by TNHB and on an approval given by MMDA and it has been dedicated for the benefit of the Hindu community or any section, thereby the temple in question can come within the scope of definition under Section 6 (20) of the Act. The learned Special Government Pleader has also pointed out that the public have liberally donated to the construction and consecration ceremony and, therefore, the conclusions arrived at by the authorities below are in no way legally infirmed and in the absence of any perversity and infirmity in the orders of the Court below, there is no scope to interfere with such findings. In support of his contentions, the learned Special Government Pleader relied on the following decisions :
(i) A judgment of the Supreme Court reported in 1981 (1) SCC 445 in the case of T.V. Mahalinga Iyer v. State of Madras :
2. Shri Balakrishnan, appearing for the appellant, has taken us through the details of the evidence to impress upon us that the High Court had grievously erred in holding that the temple was a public one. It is undisputed law that so far as Tamil Nadu is concerned, there is an initial presumption that a temple is a public one, it being up to the party who claims that it is a private temple, to establish that fact affirmatively. Of course, this initial presumption must be rebutted by clinching testimony and the crucial question is as to whether the public worship in the temple is as of right. Ordinarily, there may not be direct evidence regarding the exercise of such right and inference has to be drawn from a wealth of circumstances. In the present case, the High Court has gone into great detail and taken up circumstance after circumstance to uphold its conclusion that the institution is a public temple. The dedication to the public need not be by a deed and may be spelt out of the circumstances present. The right of the public to worship again is a matter of inference. In the present case, the founder is no more and he died issueless with the result that his family is extinct. A will had been executed by him and the trustees under the will are now claiming the institution as a private temple. The various features referred to by the appellate court and discussed at some length do not call for reiteration and we desist from doing so. It may be noted that the temple itself is situate on government property, that processions with the deity are taken out and that offerings are made, that the structure especially of Gopuram and Mandapam also indicates the public nature of the temple. Many other facts have been accumulated by the High Court and the evidence (Ex. B-1) in the case also supports the conclusion that there had been contributions made by the public and the temple was not a private one. We are not inclined to reappraise the evidence in this Court as we are thoroughly satisfied that no serious error of law or perspective or misappreciation of evidence has been pointed out in the judgment of the High Court. We are, therefore, constrained to reject the case of the plaintiff-appellant that the institution is private or that the deity is a family idol. We accordingly dismiss the appeal.
(ii) Hindu Religious and Charitable Endowment (A) Department v. N.Sivarawajan Nadar, 2001 (2) CTC 513 :
"Person alleging that temple under consideration is private temple and not public temple Onus of proof is on person alleging that it is private temple Onus is not on Department to prove that it is public temple"
17. I have carefully considered the contentions raised by the learned counsel on either side and the reliance made by them and also perused the records.
18. At this juncture, the questions that arise for consideration are : (i) whether the temple in question is having a public character or a private character and (ii) whether the appellant has a right over the affairs of the temple.
19. Before proceeding to decide the said questions, the relevant provisions for consideration are Sections 6 (18), 6 (20) and 63 (a) of the Act, which read as under :
"6 (18). "religious institution" means a math, temple or specific endowment and includes,-
(i) a samadhi or brindhavan; or
(ii) any other institution established or maintained for a religious purpose."
"6 (20). "temple" means, a place by whatever designation known, used as a place of public religious worship and dedicated to, or for the benefit of, or used as of right by, the Hindu community or of any section thereof, as a place of public religious worship."
"63. Joint Commissioner or Deputy Commissioner to decide certain disputes and matters.-
Subject to the rights of suit or appeal hereinafter provided, the Joint Commissioner or the Deputy Commissioner, as the case may be, shall have power to inquire into and decide the following disputes and matters :-
(a) whether an institution is a religious institution."
20. A thorough reading of the entire case would reveal that the temple in question was initially located adjacent to C.P.W.D. Office compound wall and during 1969, prathishtai was done by one Samayapuram Ramanatha Swamigal and the public worship and offering of Abhishekam and Aradhanai were said to be in practice, which fact was said to have been ascertained by the Inspector from the Gurukkal of the temple. Further, on inspection, it was found that the main source of the income of the temple is from hundial and Thattukankkai. In addition, from the oral and documentary evidence of P.W.2 and C.W.1, what comes to be known is that though the appellant had some control over the affairs of the temple in question, the moment they started allowing the public to worship and having hundial and permitted the offerings, the appellant has lost the character of private nature. It could also be seen that purchase of the property from the Housing Board for a valuable consideration has been given to the temple and not to the Sangam, as could be seen from Ex.A-3, which is addressed to the President of Arulmighu Sri Varasiddhi Vinayagar temple and not to the appellant herein.
21. It is seen that the Tamil Nadu Housing Board has sent a communication Ex.A-3 on 04.06.1977, addressing the President of Sri Varasidhivinayagar temple, Besant Nagar, Madras, allotting the land to the extent of 6 grounds and 425 sq.ft. The plan approval by MMDA under Ex.A-4 dated 07.10.1977 and the estimate Ex.A-5, dated 25.02.1978, for the construction of the temple have also been obtained. Under Ex.A-6 invitation, dated 28.02.1979, it is mentioned that donations in the forms of cheques should be sent in the name of Sri Varasiddhi Vinayagar Sath Sangam. Further, it is clear from the allotment order that the property is allotted to Sri Varasiddhi Vinayagar temple only and not to the petitioner Sangam. One of the witnesses, namely, P.W.2 has admitted that the expenses for the construction of the temple was not only from the donations offered by the members of the Sath Sangam but also from the contributions made by the public, which is evident from the invitation Ex.A-6 series. It is nowhere asserted in Ex.A-2 that the temple was intended to the welfare of the members of the Sath Sangam. Therefore, it has to be stated that there was a public contribution in the construction of the temple and also their participation in offering worship without any hindrance. From Ex.A-8, it is established that the temple is having hundials for collection of offering from the public. It is further seen that the allotment of 6 grounds and 425 sq.ft. allotted by the Housing Board in a highly developed area, which has been admitted by the appellant, from which it can be assumed that the Government body like Housing Board would not allot such a bulk area for a private purpose. Further, the Inspector of HR & CE Department, Madras, conducted an inspection and her report has been marked as C.W.1. She collected information from the Gurukkal in regard to the public worship in the temple. She had inspected the temple and seen hundials and offerings, based on which the report has been taken into consideration for deciding the character of the institution whether it is public or private. All these facts would prove that the temple in question is having a public character. Hence, the fact finding authorities as well as the statutory and appellate authorities have concurrently held that the temple is public in character, as contemplated under the provisions of Section 6 (20) read with Sections 6 (18) and 63 (a).
22. The Supreme Court in T.D. Gopalan's case (cited supra) has held that the circumstance that the public or a section thereof had been regularly worshipping in the temple as a matter of course and they could take part in the festivals and ceremonies conducted in that temple apparently as a matter of right was a strong piece of evidence to establish its public character. The Apex Court also held therein that if offerings are made by the public and the expenses met by public contribution, it would be safe to presume that the temple was public.
23. Therefore, in the absence of any contra evidence to that effect, when there is a clinching material to prove the participation of public and their worship with offerings and thattukanikkai, this Court is of the considered opinion that the temple in question is a public temple.
24. With regard to the appellant's right over the temple, the appellant claims that the temple in question has assumed only a private character and, therefore, the respondent has no control over the affairs of the temple; the idol was worshipped by one Balaramamoorthy Naidu of the locality in the land belonging to the Housing Board and he was continuing his personal worship and there was no dedication to the said deity either by way of any property or by way of any worship as a matter of right; it is a registered society and they have applied to the Housing Board for allotment of land and one T.N.Venkoba Rao was elected as the Secretary of the Sath Sangam and he was coordinating the day-to-day affairs of the private temple in question.
25. The evidence of P.Ws.2 and 3 would reveal that the temple came to be constructed by the contributions of the members of the appellant also. However, P.W.3 denied the knowledge of the actual amount of materials contributed by the members. But, he admitted that no accounts were maintained for the contributions received towards the construction of the temple.
26. Looked at from any angle at the affairs of the temple, its subsequent maintenance, the installation of hundials and also receiving offerings (thattukanikai) and on consideration of the report of the C.W.1 and the evidence of P.Ws.2 and 3, this Court, having come to a definite conclusion that the temple in question has lost the right of private character and retained the public character, holds that the appellant has no right over the affairs of the temple.
27. It is well settled that the origin of the temple, the manner in which its affairs are managed, the nature and extent of the contributions received by it, the rights exercised by devotees in regard to worship therein, the consciousness of the manager and the consciousness of the devotees themselves as to the public character of the temple are the factors that go to establish whether a temple is public or private. It is also an ordained principle that the suit temple has some physical characteristics and features which are generally to be found in a public temple. The said principles are taken note by the Supreme Court in Goswami Mahalaxmi Vahuji v. Rannchhoddas Kalidas, AIR 1970 S.C. 2025, This Court also, in repeated rulings, relied upon by the learned counsel for the appellants, held that with regard to the origin and subsequent administration all along and the absence of any proof of other members of the public worshipping in the temple or giving any funds or contribution or the presence of any hundial, no exception could be taken to the ultimate decision arrived at that the temple in question is not a public temple. The initial presumption is that temples in Tamil Nadu should be treated as public temples. The character of the temple is to be determined based on the dedication to public and right of the public to offer worship as a matter of right. The definition of temple is wide enough to include any place of public religious worship irrespective of installation of idols or a building or a tower or stupi. Presence of idols is not an essential requisite of temple. The only conditions are that it must be dedicated to or for the benefit of Hindu community or a section thereof. In the instant case, the public character assumed importance, as there are contributions, presence of hundials and the offerings.
28. All the above points have been taken into consideration by the trial Court, while passing the impugned judgments. Therefore, there is no sound and substantial reason to interfere with the findings rendered by the trial Court in dismissing the suits. As such, these appeals deserve to be dismissed and the same are dismissed accordingly, confirming the judgments and decrees of the Court below.
29. However, since it is not in dispute that the appellant had applied to the Tamil Nadu Housing Board for allotment of land to the extent of 6 grounds and 425 sq.ft. and the same was purchased for Rs.77,213.54 ps. and they have also obtained plan approval from MMDA, it cannot be proper for this Court to leave the appellant without any proper compensation or remedy. Therefore, the respondents are directed to find out what was the individual and collective contribution of the members of the appellant and also as to the source of the fund towards the purchase of the land on verification of the statements of accounts of the temple by appointing an appropriate officer of the Department and by giving the members an opportunity of being heard and if their claim is so established, they be compensated properly. The entire exercise shall be completed by the respondents within a period of two months.
30. With the above direction, these appeals are dismissed. No costs.
dixit To The Registrar, City Civil Court, Madras