Calcutta High Court
Sri Sri Lakshmi Janardan Thakur And Ors. vs Collector Under Section 54 Of The ... on 30 April, 2003
Equivalent citations: 2004(2)CHN519
JUDGMENT Aloke Chakrabarti, J.
1. Nine deities including Sri Sri Lakshmi Janardan Thakur represented by its Advocate Receiver filed the present writ petition contending, inter alia, that by virtue of three Arpannamas dated 1880, 1899 and 1953 the members of the Nandi family of Hooghly dedicated family properties to the petitioner deities for religious and charitable purpose. After coming into force of West Bengal Estates Acquisition Act, 1953 a proceeding under Section 44(2a) of the said Act was initiated and the Debuttar estate was adjudicated by Revenue Officer holding the entire estate was endowed exclusively for religious and charitable purposes. In respect of a notice dated 14th February, 1976 issued by the concerned Revenue Officer a writ petition was filed which was decided holding the properties to be absolute Debuttar. A proceeding initiated under Section 57 read with Sections 14T(6), 14T(8), 14M(5) and 14M(6) of the West Bengal Land Reforms Act, was decided by order dated 3rd December, 2001 holding the said Debuttar estate of the petitioners to be of public nature and ceiling of land was to be fixed applying necessary law. Challenge to the said order before the Tribunal failed as a statutory appeal was available and such statutory appeal forum was availed of by preferring an appeal which was decided by judgment and order dated May 31, 2002 passed by the appellate authority confirming the order of the Revenue Officer, and the appeal was dismissed. The petitioners challenged the said order before the Tribunal in O.A. No. 2175 of 2002 which was decided by order dated January 21, 2003 and challenging the same, the present writ petition was filed.
2. Heard Mr. P.B. Sahoo, learned counsel for the petitioners, Mr. P.R. Mondal, learned counsel for the State authorities and Mr. P.K. Giri learned counsel for the applicant in the application for addition of party, who adopted the contention of the writ petitioners.
3. The main contention of the petitioners is of two folds : the first one being that Debuttar estate is of private nature and there were nine deities in total in favour of which the endowment was created. In support of this contention, Mr. Sahoo learned Advocate relied on the findings of a learned Single Judge in an earlier writ petition bearing Civil Rule No. 4941(W) of 1976 decided on 16th July, 1980 as also the copies of the Arpannamas giving much stress on the contents of first and second Arpannamas.
4. Mr. Sahoo, further relied on the law for showing the considerations for deciding such a dispute as to whether a particular endowment is of public nature or of private nature and special reliance was made on various texts. Law was also cited as decided in the cases of Bala Shankar Maha Shankar Bhattjee v. Charity Commissioner, Gujrat , State of West Bengal v. Atis Chandra Sinha , and the provisions of law as contained in Section 14M and Section 14T. Reliance was placed on the judgment in the case of Sasanka Sekhar Maity v. Union of India and Ors. .
5. Mr. Mondal learned counsel appearing for the State and its authorities contended that the Arpannamas clearly showed that endowment was in favour of only one family deity, namely, Lakshmi Janardan Thakur. In support of his contention, special reference was made to the portions of the contents of the first Arpannama. It is further contended that the deeds show clearly that endowment was of public nature and the authorities came to such finding appropriately. In support of such contention for showing reasons in reaching such conclusion. Mr. Mondal relied on the judgment of the appellate authority in particular.
6. Considering the aforesaid contentions, I find that mainly two aspects required our consideration, the first of such aspects is whether endowment was made in favour of one deity or in favour of more deities than one. Copy of the first Arpannama has been annexed to the supplementary affidavit filed by the writ petitioners. At the time of argument though Mr. Mondal raised objection as regards correctness of the said document, but nothing has been shown that at any earlier stage the correctness of the said document has been disputed either before the Tribunal or before this Court enabling the writ petitioners to produce further authenticated copies. In such circumstances, such objection taken at the belated stage without disputing the correctness of the said document in the pleadings, cannot be entertained.
7. On perusal of the said deeds, it becomes clear that the family of Nandis being the settler recorded in the said Arpannama executed in the year 1880 that already some properties were purchased in the name of Sri Sri Lakshmi Janardan Thakur and as income from the said property was not sufficient for the religious purpose, further properties were given in endowment. Mention was made of Sri Sri Lakshmi Janardan Thakur in respect of such endowment over and above the annual Durga Puja and 'Atithi Seba' making it clear that the said properties also will be part of the Debuttar estate. The document itself also prescribed how the income of the said estate was to be spent under specified separate heads. The document makes it clear that apparently the residential house of the said Nandi family had only one deity, namely, Sri Sri Lakshmi Janardan Thakur whose daily seba puja was to be performed. Apart from the same mention was made of annual Durga Puja and festivals of Rash Yatra and Dol Yatra and 'Atithi Seba'.
8. From the document, there is no doubt that the expenditure was to be only for religious and charitable purposes. It is also apparent that the endowment was in the name of only one family deity of the family of Nandis. The other specified religious purposes like Rash Jatra, Dol Jatra etc. do not amount to creation of the endowment in favour of more deities.
9. The second deed executed in the year 1899 made a clear mention of creation of endowment only in favour of Sri Sri Lakshmi Janardan Thakur. All materials available clearly show that endowment was in favour of the said only one family deity Lakshmi Janardan Thakur and parties although proceeded on that basis.
10. In an earlier proceeding of the parties it has already been held that the endowment was absolute.
11. With regard to the nature of Debuttar estate as to whether it is a private one or a public one, law has been shown laying down criteria for such a decision. In the case of Bala Shankar Maha Shankar Bhattjee (supra), while considering the nature of a trust to find out whether it is a public trust, the following aspects have been considered:--
"(i) Is the temple built in such imposing manner that it may prima facie appear to be a public temple?
(ii) Are the members of the public entitled to worship in that temple as of right?
(iii) Are the temple expenses met from the contribution made by the public?
(iv) Whether the sevas and utsavas conducted in the temple are those usually conducted in public temple?
(v) Have the management as well as the devotees been treating that temple as a public temple?"
12. In this connection the authorities of repute have also discussed such criteria in deciding the public or private nature of a Debuttar estate.
13. In Mayne's Hindu Law and Usage (13th Edition 1991) at para 828, public and private endowments when were discussed, it is recorded as follows:--
"Religious endowments are of two kinds, public and private. In a public endowment, the dedication is for the use or benefit of the public at large or a specified class. But when property is set apart from the worship of a family God, in which the public are not interested, endowment is a private one."
14. In the opinion of Golap Chandra Sarkar Shastri, in his "A Treaties of Hindu Law" (7th Edition 1933), the following was noted:--
"Endowments are either public or private. In the former, the public is interested and in the later certain definite persons only are interested. The property is dedicated to charitable, educational or religious uses, for the benefit of the indeterminate body of persons, or where the public are freely allowed to worship and no permission of the head is necessary for such purpose, nor can he impose any fee for entrance into the temple, the endowment is of public one. When property is set apart for the worship of a deity of a particular family, in which no outsider is interested, the endowment is a private one."
15. In the works of Mullah under the title "Principles of Hindu Law" (17th Edition, 1998), the following has been noted:--
"Religious endowments are either public or private. In a public endowment, the dedication is for the use or benefit of the public. The essential distinction between a public and private endowment is that, in the former the beneficial interest is vested in an uncertain and a fluctuating body of persons, either the public at large or some considerable portion of it answering a particular description; in a private endowment the beneficiaries are definite and ascertained individuals or who within a definite time can be definitely ascertained."
16. In the "Hindu Law" by A.N.R. Raghavachari (7th Edition, 1980), it is stated as follows:--
"A distinction, albeit fine, exists between public and private religious endowment. In the former conferment of benefit to the public is foreseeable. But in the later the bounty is intended to serve the kith and kin of the Settle through the medium of an accepted Hindu Religious endowment. When a question arises whether an endowment made by a private individual is a public endowment or a private one, the subsequent conduct of the person who has endowed and the user of the property by the public are important factors to be considered in deciding it."
17. Keeping in mind, the law as aforesaid, I find that in the present facts, the settlers admittedly are definite and private individuals. Properties admittedly had been given to the family deity by virtue of the deeds. No material has been shown by the petitioners which satisfies the requirements for holding the said endowment of public nature.
18. Law has been settled that the beneficiaries are those who are the worshippers of the idol as decided in the case of Bala Shankar Maha Shankar Bhattjee(supra) and the relevant portion of the said judgment is as follows:--
"20. An idol is a juristic person capable of holding property. The property endowed to it vests in it but the idol has no beneficial interest in the endowment. The beneficiaries are the worshippers."
19. Therefore, considering the aforesaid aspect, I do not find that in the present case the dedication was made for the use or benefit of the public at large or even a specified class of it. Therefore, the endowment is of private nature. Admittedly neither the management nor the control over the expenditure is of the public. It does not also appear that public has a clear right of even worship of the said idol.
20. The contention was made by the learned counsel for the petitioner that 'Atithi Seba' as provided in the deed entitles a section of the general public to the said benefit and therefore, the endowment is of public nature. But apparently, in my opinion, this does not make the said section of the general public beneficiary in the strict lease of the term while consideration is of the language of the endowment for finding out the nature of the endowment. Moreover, expenditures under different heads set apart in the original deed shows that only Rs. 150/- was allotted for the said expenditure out of the total expenditure of Rs. 1800/-. Therefore, I find that this is not a significant part of the expenditure wherefrom it can be concluded that a section of the public is having a benefit and the right flowing therefrom.
21. In view of the above findings, I hold that the subject endowment is private in nature.
22. In view of such finding, the judgments impugned herein by the authorities as also the Tribunal cannot stand. The considerations of the appellate authority as recorded in its judgment do not inspire much confidence as none of the relevant facts were taken into consideration for arriving at this decision i.e. whether it was a private or public endowment.
23. Therefore, the writ petition is allowed. The impugned orders are hereby set aside. The Revenue Officer is directed to decide afresh the matter taking note of the observations made hereinabove and the findings reached here in this judgment and such decision is to be taken in accordance with law after giving all concerned portion along with the applicant Shib Sankar Nandi opportunity of hearing within a period of three months from the date of communication of this order.
Joytosh Banerjee, J.
24. I agree.