Madras High Court
Om Shri Ananda Sai Ram Dhiyana Koodam vs The Commissioner on 3 August, 2022
Author: C.Saravanan
Bench: C.Saravanan
W.P.No.41014 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved On 11.07.2022
Pronounced On 03.08.2022
CORAM
THE HON'BLE MR.JUSTICE C.SARAVANAN
W.P.No.41014 of 2016
and
W.M.P.Nos.35026 & 35027 of 2016
Om Shri Ananda Sai Ram Dhiyana Koodam,
Represented by its Trustee,
M.Chokkalingachetty,
No.75/2, Perumal Chetty Street,
Tiruvallur – 602 001. ... Petitioner
Vs.
1.The Commissioner,
Hindu Religious and Charitable Endowments,
Nungambakkam, Madras 34.
2.The Asst. Commissioner,
Hindu Religious and Charitable Endowments,
Thiruvallur, Thiruvallur District. ... Respondents
Writ Petition filed under Article 226 of the Constitution of India,
for issuance of a Writ of Certiorari, to call for the records on the file of
the first respondent in proceedings No.2501/2015/A2 dated 23.11.2015
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https://www.mhc.tn.gov.in/judis
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W.P.No.41014 of 2016
and quash the same as illegal, untenable and wholly without jurisdiction
and to pass order against the illegal involvement of the first respondent in
the affairs of the “Ramar Bajani Koodam”.
For Petitioner : Mr.V.Ragavachari
For Respondents : Mr.N.R.R.Arun Natarajan,
Special Government Pleader
ORDER
The petitioner has challenged the impugned order dated 23.11.2015 of the second respondent Assistant Commissioner, H.R. & C.E. bearing reference Proceedings No.2501/2015A2.
2. By the impugned order dated 23.11.2015, the second respondent Assistant Commissioner appointed the Inspector, H.R. & C.E. Department, Tiruvallur as a Thakkar / Fit Person for the “Arulmighu Ramar Bajanai Temple, Perumal Chetty Street, Tiruvallur Nagar”.
3. The challenge to the impugned order passed by the second respondent Assistant Commissioner, H.R. & C.E. is on the ground that the “Sri Ramar Bajanai Koodam” where “Sai Bajanai Madam” is situated, is neither a “temple” nor a “religious institution” within the meaning of ______________ https://www.mhc.tn.gov.in/judis Page No 2 of 24 W.P.No.41014 of 2016 Section 6(17) & (18) of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959.
4. The learned counsel for the petitioner submits that only a statue of Sai Baba is in the said place and sai bajans are sung. It is therefore not a “religious institution” or a “temple”. Persons from different communities visit the “Sai Bajanai Madam” and that therefore there is no authority under the provisions of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 for the respondents to interfere with the affairs of the petitioner.
5. A reference was also made to three documents dated 16.10.1926 bearing reference Document Nos.392/1927, 393/1927 & 394/1927, whereby, the properties were dedicated by Sadhasiva Chettiar, Pattu Chettiar and Raghava Chettiar for “Sri Ramar Bajanai Kovil” where “Sai Bajanai Madam” is situated. It is submitted that the second respondent Assistant Commissioner cannot invoke Section 49 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959. ______________ https://www.mhc.tn.gov.in/judis Page No 3 of 24 W.P.No.41014 of 2016
6. It is submitted that one Mr.Mothi V.Arumugam, the grandson of one of the original settlors had filed a mischievous suit in O.S.No.160 of 1990 before the Subordinate Court, Tiruvallur, against an order dated 26.02.1990 passed by then Commissioner of H.R. & C.E. Department in A.P.No.56 of 1987 and to declare that “Sri Ramar Bajanai Koodam” situated in Perumal Chetty Street, Tiruvallur was not a religious institution and thus it was dedicated for reciting the bajans and therefore was a private property of the family of the said Mr.Mothi V.Arumugam. The learned counsel for the petitioner submits that the suit filed by the said Mr.Mothi V.Arumugam came to be dismissed by a Judgment and Decree dated 25.09.1996 of the Subordinate Court, Tiruvallur.
7. Against the same, the said Mr.Mothi V.Arumugam filed A.S.No.449 of 1998 before this Court to declare that the “Ramar Bajanai Koodam” situated in Perumal Chetty Street, Tiruvallu was not a “religious institution”. The said A.S.No.449 of 1998 was also dismissed vide order dated 22.04.2008.
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8. It is submitted that though the appeal was dismissed by this Court in A.S.No.449 of 1998, the fact remains that the suit was itself an abuse of court proceedings as the property in question was dedicated by the original settlors vide Document Nos.392/1927, 393/1927 & 394/1927 dated 16.10.1926, for the reasons stated in the Settlement Deeds.
9. The learned counsel for the petitioner has placed reliance on the decision of the Division Bench of this Court in S.Kannan Vs. All India Sai Samaj (Regd.), (1974) 87 LW 81 : 1973 SCC OnLine Mad 51 and therefore submits that this Writ Petition deserves to be allowed as no religious institution exists at “Sai Bajanai Madam”.
10. The learned Special Government Pleader for the respondents, on the other hand, submits that the koodam was constructed for worship of Lord Rama. However, a life size statute of “Shirdi Sai Baba” was installed and bajans were being recited and entry is by sale of tokens and for special darshans, separate fee was collected. There was earning income out of it. It is submitted that the property was exclusively meant for worship of Lord Rama and several representations were given by ______________ https://www.mhc.tn.gov.in/judis Page No 5 of 24 W.P.No.41014 of 2016 public to the Trustees and the petitioner. However, there was no response from them.
11. It is submitted that one Mr.Prabhu, an advocate, had earlier issued a legal notice to the petitioner and his family members who claimed to be the Trustees stating that the family members of the petitioner removed all the photos of Lord Ram hung at the premises of “Sri Ramar Bajanai Koodam” and had restricted the entry for the general public which went against the very reason why the Bajanai Koodam was conceived.
12. It is submitted that the Bajanai Koodam is to be administered under the provisions of the H.R. & C.E. Act as the activity of the petitioner was in violation of the Act. It is submitted that no proper permission was sought by the petitioner from the official respondents and the devotees were put to hardship. It is therefore prayed for dismissal of this Writ Petition.
13. By way of rejoinder, the learned counsel for the petitioner ______________ https://www.mhc.tn.gov.in/judis Page No 6 of 24 W.P.No.41014 of 2016 submits that another mischievous suit in O.S.No.98 of 2013 was filed by one Mr.Ashokan and an I.A. was also filed for interim injunction which came to be dismissed by the Trial Court in its order dated 31.07.2015.
14. Heard the learned counsel for the petitioner and the learned Special Government Pleader for the respondents.
15. The purpose for which the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 (H.R. & C.E. Act, 1959 for short) was enacted was to consolidate the law relating to the administration and governance of Hindu religious and Charitable Institutions and Endowments in the State of Tamil Nadu.
16. The point for consideration in this Writ Petition is “whether the power exercised by the second respondent in appointing a fit person was within the scope of the power vested with the said respondent under the provisions of the H.R. & C.E. Act, 1959”.
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17. To answer the above, following is to be looked into and answered:-
i. the intention with which the property was dedicated ii. whether the property dedicated for the charity in connection with Sri Rama Swami Bajanai Kovil (Temple) by its settlors could have been changed by the petitioner for reciting bajans (religious songs) by installing a life size statue/idol of Shirdi Sai Baba and thereby altering the character of the dedication?
iii. whether the activity of reciting bajans in front of the life size idol/ statue of Shirdi Sai Baba was religious or secular?
iv. whether the petitioner trust can have a say in the appointment of a fit person under HR & CE Act, 1959?
18. The facts on records indicate that three parcels of land were endowed/gifted by the three settlers namely Sadhasiva Chettiar, Pattu Chettiar and Raghava Chettiar during their life time in favour of the five trustees (Darmakarthas) of Sri Rama Swami Bajanai Kovil (Temple) at Perumal Chetty Street of Tiruvallavur District vide registered Document ______________ https://www.mhc.tn.gov.in/judis Page No 8 of 24 W.P.No.41014 of 2016 Nos.392/1927, 393/1927 & 394/1927 all dated 16.10.1926.
19. The dedication of the land was for the performance of religious charity in Sri Rama Swami Bajanai Kovil (Temple). Three of the settlors were also the trustees of Sri Rama Swami Bajanai Kovil (Temple) along with two others.
20. These registered documents also indicate the ‘Will’ of the respective settlors. The endowed properties were to be used for the performance of religious charity in Sri Rama Swami Bajanai Kovil (Temple) only. They had made it clear that neither they nor their family members will have any interest in the endowed property dedicated by them for the said Temple.
21. As per Section 6(16) of H.R. & C.E. Act, 1959, a “religious charity” means a public charity associated with a Hindu festival or observance of a religious character, whether it be connected with or math or temple or not. Section 6(16) of H.R. & C.E. Act, 1959 reads as under:-
“religious charity” means a public charity ______________ https://www.mhc.tn.gov.in/judis Page No 9 of 24 W.P.No.41014 of 2016 associated with a Hindu festival or observance of a religious character, whether it be connected with or math or temple or not"
22. In this case the dedication was for a specific Temple viz. Sri Ramar Swami Bajanai Kovil. The expression “Specific endowment” has been defined in Section 6(19) of H.R. & C.E. Act, 1959 as under:-
“Specific endowment” means any property or money endowed for the performance of any specific service or charity in a math or temple or for the performance of any other religious charity, but does not include an inam of the nature described in Explanation (1) to clause (17)”
23. The Hon' ble Supreme Court in P.F. Sadawarthy Vs Commissioner, Hindu Religious and Charitable Endowments, A.I.R. 1963 S.C.510, held as follows:-
“A religious institution will be a temple if two conditions are satisfied. One is that it is a place of public religious worship and the other is that it is dedicated to, or is for the benefit of, or is used as of right by, the Hindu community, or any Section thereof, as a place of religious worship”.
24. As per Mukherjea's, the author of the “Hindu Law of Religious ______________ https://www.mhc.tn.gov.in/judis Page No 10 of 24 W.P.No.41014 of 2016 & Charitable Trusts, 1979 Edition”, there is no distinction between Religion & Charity in Hindu Law. He has opined that in the Hindu system, there is no demarcation between religion and charity. Charity is to be regarded as a part of religion.
25. In the same text, the author has further stated that in the Hindu system, religion and charity overlap with each other and do not admit of any differentiation. They are both integral parts of ‘Dharma’ or the rule of righteousness which the Hindu sages regard as the upholder of the entire fabric of the universe, both in its physical and moral aspects.
26. In Kalia Pillai (died) Vs. Kathayee Ammal Dharmam (Charities), Thiruvannamalai, (2003) 3 MLJ 122, the Division Bench of this High Court held that a religious charity which is a public charity should be associated with a Hindu festival or observance of a religious character. It may or may not be connected with a “math” or “temple”.
27. In A. Semmalai Gounder and others Vs. The Commissioner, Hindu Religious and Charitable Endowments and Another, (1996) 1 ______________ https://www.mhc.tn.gov.in/judis Page No 11 of 24 W.P.No.41014 of 2016 MLJ 245, it was held that "performing Annadhanam on Thaipoosam day in a private place is a religious endowment".
28. In The Commissioner, H.R. & C.E. Vs. C.V. Sudharsan and another, (2000) 3 MLJ 23), this Court held that the founder of the Charitable Trust had created a specific endowment for the performance of the “Thatiarchanai Service”, namely, offering food to devotees and to feed “Desanthris” in “Perumal Temples” in Chennai. The said endowment was held to be a religious endowment.
29. It was further held to be a specific endowment, since the desanthiris who were the beneficiaries who cannot be ascertained. The Court rejected the argument that there was a private trust and held it will definitely fall within the ambit of the Act.
30. In Bhupati Nath Smrititirtha Vs. Ram Lal Maitra, (1910) ILR 37 Cal 128, the Calcutta High Court had held that “a gift to an idol was not to be judged by the rules applicable to a transfer to a 'sentient being', and that dedication of properties to an idol consisted in the ______________ https://www.mhc.tn.gov.in/judis Page No 12 of 24 W.P.No.41014 of 2016 abandonment by the owner of his dominion over them for the purpose of their being appropriated for the purposes which he intends.
31. Thus, it was observed by Sir Lawrence Jenkins C.J. at Page No.138 that “the pious purpose is still the legate, the establishment of the image is merely the mode in which the pious purpose is to be effected” and that “the dedication to a deity may be” a compendious expression of the pious purposes for which the dedication is de- signed” vide also the observations of Sir Ashutosh Mookerjee at Page No.155.
32. The Bombay High Court in Lakshmidhar Misra Vs. Bangalal, (1950) 52 BOMLR 458, held that whether a religious endowment is a public or a private one is a mixed question of law and fact, the decision of which must depend on the application of legal concepts of a public and a private endowment to the facts found and is open to consideration by the Court.
33. Dealing with the distinction between public and private ______________ https://www.mhc.tn.gov.in/judis Page No 13 of 24 W.P.No.41014 of 2016 endowments in Hindu law, Sir Dinshah Mulla has said in his Principles of Hindu Law (11th Edition, Page No.529) that Religious endowments are either public or private. In a public endowment the dedication is for the use or benefit of the public. When property is set apart for the worship of a family god in which the public are not interested, the endowment is a private one. In other words, the distinction be- tween a private and a public endowment is that whereas in the for- mer the beneficiaries are specific individuals, in the latter they are the general public or a class thereof.
34. The Seven Judge Bench of the Hon’ble Supreme Court in Mahant Ram Saroop Dasji Vs. S.P.Sahi, 1959 AIR SC 942, held that “The essential distinction in Hindu law between religious endowments which are public and those which are private is that in a public trust, the beneficial interest is vested in an uncertain and fluctuating body of persons, either the public at large or some considerable portion of it answering a particular description and in a private trust, the beneficiaries are definite and ascertained individuals or who within a time can be definitely ascertained.
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35. The fact that the uncertain and fluctuating body of persons is a section of the public following a particular religious faith or is only a sect of persons of a certain religious persuasion would not make any difference in the matter and would not make the trust a private trust”.
36. The Court was also of the opinion the test is that the public or any section thereof are not interested in the trust, such a test is characteristic of all private trusts in Hindu law, thereby stating that there may be a trust created for the worship of a family idol in which the public may be interested. Those are cases of trust which began as a private trust but which eventually came to be thrown open to the public.
37. In Hindu Religious Endowments Board Vs. Yeera Raghavachariar, A.I.R. 1937 Mad 750, this Court dealing with this question, referred to the decision in Bhupati Nath Smrititirtha vs Ram Lal Maitra, referred to supra and observed as under:-
“As explained in that case, the purpose of making a gift to a temple is not to confer a benefit on ______________ https://www.mhc.tn.gov.in/judis Page No 15 of 24 W.P.No.41014 of 2016 God but to confer a benefit on those who worship in that temple, by making it possible for them to have the worship conducted in a proper and impressive manner. This is the sense in which a temple and its endowments are regarded as a public trust". When once it is understood that the true beneficiaries of religious endowments are not the idols but the worshippers, and that the purpose of the endowment is the maintenance of that worship for the benefit of the worshippers, the question whether an endowment is private or public presents no difficulty. The cardinal point to be decided is whether it was the intention of the founder that specified individuals are to have the right of worship at the shrine, or the general public or any specified portion thereof. In accordance with this theory, it has been held that when property is dedicated for the worship of a family idol, it is a private and not a public endowment, as the persons who are entitled to worship at the shrine of the deity can only be the members of the family and that is an ascertained group of individuals. But where the beneficiaries are not members of a family or a specified individual, then the endowment can only be regarded as public, intended to benefit the general body of worshippers.”
38. The property that was dedicated and endowed was for the purpose of religious charity in Sri Rama Swami Bajanai Kovil to its trustees (Dharmakartas). A reading of the three documents referred to supra indicates that the property were endowed specifically for the performance of a religious charity (Dharma) in Sri Rama Swami Bajanai ______________ https://www.mhc.tn.gov.in/judis Page No 16 of 24 W.P.No.41014 of 2016 Kovil and thus there was “specific endowment” under the Act as there was a dedication of the property for “religious charity” as defined in Section 6(16) of H.R. & C.E. Act, 1959.
39. This Court has also recognized the “Arulmighu Ramar Bajanai Kovil (Temple), Perumal Chetty Street, Tiruvallur Nagar” as a public temple in A.S. No. 449 of 1998 vide order dated 22.04.2008 The said suit was filed by Mothi. V. Arumugam against the Judgement and Decree dated 25.09.1996 in O.S. No. 160 of 1990 which was filed against the order of the Commissioner of H.R. & C.E. (Administration) dated 26.02.1990.
40. There was a “specific endowment” within the meaning of Section 6(19) of H.R. & C.E. Act, 1959 as the property was dedicated for the performance of specific service in the Sri Ramar Swami Bajanai Kovil (Temple) for charity.
41. The attempt of the Petitioner Trust is to take over the endowed properties as a private property contrary to the declaration in the ______________ https://www.mhc.tn.gov.in/judis Page No 17 of 24 W.P.No.41014 of 2016 registered Document Nos.392/1927, 393/1927 & 394/1927 all dated 16.10.1926 that the properties were neither to be used by them for personal use nor by their family members.
42. The use of the endowed properties dedicated by the original settlors has been deliberately altered by the family members Rajagopala Chettiar to give it semblance of a secular character by registering the petitioner trust by starting Sai Bajanai Koodam though the property was dedicated for the charity associated only with Sri Rama Swami Bajanai Kovil for worship of “Sri Rama”.
43. Sri Rama is a celebrated icon in the ancient epic of Ramayana. Different version of Ramayana have been scripted by ancient saints and sages. It is an important religious text today and revered by majority of the Hindus. It is estimated that there are atleast 300 different versions of Ramayana starting from the “Valmiki’s Ramayana” to “Kambha Ramayana”.
44. Further, worship of Sri Rama is considered to be central to the Vaishnavism. Sri Rama is believed to be the seventh incarnation of the ______________ https://www.mhc.tn.gov.in/judis Page No 18 of 24 W.P.No.41014 of 2016 Sri Vishnu. A large section of the Hindu society in the country worships Sri Rama as their main deity. Therefore, the attempt of the petitioners and their family members to highjack the property has been rightly inferred.
45. They have successfully attempted to change the character of the dedication from worship of Sri Rama to Sai Baba of Shirdi to give a colour of secular institution to take the property outside the purview of H.R. & C.E. Department.
46. The decision of this Court in S.Kannan Vs. All India Sai Samaj (Regd.), (1974) 87 LW 81 : 1973 SCC OnLine Mad 51, which was relied on by the learned counsel for the petitioner was perhaps in the background in the mind of the Petitioner when they registered the Petitioner Trust as “Sai Bajanai Koodam”.
47. The Court in S.Kannan Vs. All India Sai Samaj (Regd.), (1974) 87 LW 81 : 1973 SCC OnLine Mad 51, has observed in paragraph 13 that “The Sai baba of Shirdi was a Brahmin by birth, but was brought up by a Mohammadan and lived in Mohammadan environment. He ______________ https://www.mhc.tn.gov.in/judis Page No 19 of 24 W.P.No.41014 of 2016 preached universal religion based on love, equality and justice and the gospel that he preached attracted a large number of followers pursuing different faiths”.
48. The Court therefore held that the Act was intended to apply only to Hindu Religious Institutions and therefore, the question then will be whether the Institutions which are composite in character, i.e. partly Hindu and partly Mohammedan or Christian, would fall under the provisions of the Act. The Court observed that the evidence adduced clearly establishes that Non-Hindus also visited the temple although they do not worship Sri Sai Baba in their own way.
49. The Court considered the evidences on records before it and came to a conclusion that the respondent-Society consists of Hindus and Non-Hindus and some of the Non-Hindus have been members of the Executive Committee and also have acted as Vice-President for long periods.
50. The above decision therefore cannot be applied to the facts of ______________ https://www.mhc.tn.gov.in/judis Page No 20 of 24 W.P.No.41014 of 2016 the present case. There, the question was “whether the Sai Mandir, Mylapore was a temple within the meaning of Section 6(20) of the Madras Hindu Religious and Charitable Endowments Act, 1959”. Where as in the present case, the character of the worship in the property has been altered.
51. Facts of record indicate that late Sadhasiva Chettiar did not have any issues. It is not clear when the endowed properties came under the control of the descendants of late Rajagopala Chettiar, the brother of Late Sadhasiva Chettiar.
52. To give a semblance of legitimacy to their design, a Trust was registered vide Trust Deed dated 31.10.2011 in the name of the petitioner authored by Mrs.M.C.Kasturi W/o.M.Chokkalingam. Mrs M.C.Kasturi appears to be the wife of the grandson of late Rajagopala Chettiar the brother of late Sadhasiva Chettiar.
53. There are indications that there was collection of entry amounts from the public. Therefore, I do not find any case has been made out for ______________ https://www.mhc.tn.gov.in/judis Page No 21 of 24 W.P.No.41014 of 2016 interference with the impugned order of the second respondent. I am of the view that this is a fit case for appointing a fit person as the attempt of the petitioners is to usurp and privatize the endowed property.
54. Therefore, there is also no merit in the challenge to the impugned order of the second respondent appointing a Fit Person. Further, the issue has already been decided by this Court vide order dated 22.04.2008 in A.S.No.449 of 1998 filed by one Mothi V.Arumugam against the Judgment and Decree dated 25.09.1996 in O.S.No.160 of 1990.
55. This Writ Petition is therefore deserves to be dismissed and is accordingly dismissed with the above observations. No cost. Consequently, connected Miscellaneous Petitions are closed.
03.08.2022 Internet : Yes/No Jen To
1.The Commissioner, ______________ https://www.mhc.tn.gov.in/judis Page No 22 of 24 W.P.No.41014 of 2016 Hindu Religious and Charitable Endowments, Nungambakkam, Madras 34.
2.The Asst. Commissioner, Hindu Religious and Charitable Endowments, Thiruvallur, Thiruvallur District.
______________ https://www.mhc.tn.gov.in/judis Page No 23 of 24 W.P.No.41014 of 2016 C.SARAVANAN, J.
Jen Pre-Delivery Order mad in W.P.No.41014 of 2016 and W.M.P.Nos.35026 & 35027 of 2016 03.08.2022 ______________ https://www.mhc.tn.gov.in/judis Page No 24 of 24