Madras High Court
The Commissioner vs Srikanth on 26 October, 2018
Author: C.V.Karthikeyan
Bench: C.V.Karthikeyan
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
JUDGMENT RESERVED ON : 10.10.2018
JUDGMENT PRONOUNCED ON : 26.10.2018
CORAM:
THE HONOURABLE MR. JUSTICE C.V.KARTHIKEYAN
A.S.(MD)No.199 of 2006
1.The Commissioner,
Hindu Religious and Charitable Endowments
Administration Department,
Nungambakkam High Road,
Chennai-34.
2.The Joint Commissioner,
Hindu Religious and Charitable Endowments
Administration Department,
Mahimombuchavadi,
Thanajavur Town and Municipi. ...Appellants
vs.
1.Srikanth
2.R.Balachandran ...Respondents
PRAYER: This First Appeal is filed under Section 70(2) of the Hindu
Religious and Charitable Endowments Act, 22 of 1959, to set aside the
decree dated 28.04.2006 made in O.S.No.74 of 2005 on the file of the
Sub Court, Thanjavur.
For Appellants : Mr.J.Gunaseelan Muthiah
Additional Government Pleader
http://www.judis.nic.in
2
For Respondents : Mr.V.K.Vijayaragavan
JUDGMENT
The defendants in O.S.No.74 of 2005 on the file of the Additional Sub Court, Thanjavur are the appellants herein. O.S.No.74 of 2005 has been filed by two plaintiffs Srikanth and R.Balachandran against the Commissioner, HR & CE, Chennai and the Joint Commissioner, HR & CE, Thanjavur under Section 70 (i) of the Hindu Religious and Charitable Endowments Act, 1959, [hereinafter referred to as “the Act”] seeking a judgment and decree to set aside the order of the Commissioner, HR & CE, Chennai in A.P.No.13 of 1998 dated 09.11.2004 and grant a declaration that the suit property, 'Swanandha Bhuvan Institution' is not a religious Institution or a temple falling within the purview of the Act and consequently restrain the HR & CE Department from interfering with the Management and Administration of 'Swanandha Bhuvan Institution', which is a private Institution belonged to the plaintiffs and their family and also for costs of the suit. By judgment and decree dated 28.08.2006, the suit was decreed with costs. Challenging that judgment, the defendants had filed the present first appeal.
http://www.judis.nic.in 3 O.S.No.74 of 2005 ( Additional Sub Court, Thanjavur):-
2.The suit had been filed under Section 70 (i) of the Act. It had been stated that the suit property in T.S.Nos.2324, 2325 and 2326 in Sunnambukkara Street, now known as Yakubia Street, called Swanandha Bhuvan, Thanjavur was founded by one Dabir Ramachandra Rao, the ancestor of the plaintiffs. The following genealogy table had also been given in the plaint:-
Dabir Ramachandra Rao = Gojira Bai (Wife) I Banu Bai (Daughter) I R.Santha Bai ............ Leela Bai I Balachandran and R.Srikanth (Sons – Plaintiffs)
3.It was stated that originally the Institution of Swanandha Bhuvan was functioning in the residence of the founder. The founder belonged to Deshishta Maharashtra Community. The founder was an ardent devotee of Sri Heramber (Lord Vigneshwar) as worshipped by the Maharashtrian Community to which the plaintiffs and his http://www.judis.nic.in 4 ancestors belonged). He founded the Institution for the welfare of the members of his family and for meditation. He kept a small deity of Sri Heramber in his house and was performing daily poojas. He used to perform special poojas on every Chathurthi day. Only the members of his family participated in the poojas. This method of pooja is different from the poojas performed in the houses of persons belonging to other sects.
4.The suit property was purchased on 02.11.1923 by a registered sale deed from and out of the own funds of the founder. He then shifted the Swanandha Bhuvan to a new place and continued to do daily poojas and special poojas on Chathurthi days for Sri Heramber. He and his family members also did meditation. They installed a new Heramber Idol made of marble stone in the new premises. It was kept in a glass case. He also installed the idol of Sri Narmadha Heramber. Such installation of idols was not in accordance with any Agamasastras. It was stated that the Institution was a private one. There was no public participation. The idol was kept inside the Swanandha Bhuvan. He instructed and trained the members of his family to perform poojas in a particular manner. After his life time, his Padukas were also kept in Swanandha Bhuvan.
http://www.judis.nic.in 5 Thereafter, his widow and daughter succeeded him and continued to do poojas. They also did poojas on his anniversary day. There was no public worship or participation by the public.
5.The Thanjavur Municipality by proceedings dated 04.08.1928 passed a resolution granting exemption to the Swanandha Bhuvan as if it was set apart for charitable purpose. Exemption was revoked later and property tax is also being paid. The electricity service connection also stands in the name of Swanandha Bhuvan. The daughter of the founder, Sri Dabir Ramachandra Rao continued to do poojas. She executed a Will on 24.06.1973 and poojas were continued even after her death. In the Will it had been specifically mentioned that the Swanandha Bhuvan is a private Institution. After the Will came into force, the successor took the control of the Management and continued to do poojas. Public did not contribute towards the expenses for conducting poojas.
6.It was specifically stated that Swanandha Bhuvan is not a temple as defined under Section 6 (2) of the Act or a religious Institution as defined under Section 6(18) of the Act. It not a religious endowment as defined under Section 6(17) of the Act. The http://www.judis.nic.in 6 idol is kept in a glass case. It is not meant for public worship. The Institution faces south and it is not a temple. The public do not have right to worship. The premises is kept under the lock and key in the custody of the founder's family.
7.It was stated that in 1992 the officials of the HR & CE Department tried to interfere with the Management and Administration of the Institution. Hence, Shantha Bai, D/o Banu Bai filed O.A.No.8 of 1992 before the Deputy Commissioner, HR & CE, Thanjavur for a declaration that the Swanandha Bhuvan is not a religious Institution. This petition was dismissed by order dated 22.01.1997, against which an appeal in A.P.No.13 of 1998 was filed and the same was also dismissed on 09.11.2004. The plaintiffs claimed that the reasons given by the Deputy Commissioner and the Commissioner are wrong. They claimed that Swanandha Bhuvan is not a temple and there was no public worship. It is purely a private Institution. It is under these circumstances that the suit had been filed under Section 70 (1) of the Act.
8.In the written statement filed by the defendants, it had been stated that the Institution is a temple and this temple comes under the http://www.judis.nic.in 7 definition in Section 6 (18) of the Act and there was a Vinayakar idol. It was stated that Vinayaka is a Hindu God and pooja was also performed daily in the Institution. It was futher stated that the burden was on the plaintiffs to prove that it was not a public Institution. It was stated that the Thanjavur Municipality had granted exemption from payment of property tax on the ground that the Institution is a charitable Institution. It was stated that the defendants have a right to administer the Institution. It was also stated that a Thakkar was also appointed for administration of the Institution. It was stated that the said order had not been challenged. It was finally stated that the suit should be dismissed.
9.On the basis of the above pleadings, the learned Additional Sub Judge, Thanjavur, framed the following issues for trial:-
(i)Whether the plaintiffs are entitled for declaration to set aside the order of the first defendant in A.P.No.13 of 1998 dated 09.11.2004?
(ii)Whether the plaintiffs are entitled for the declaratory relief sought in the plaint?
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(iii)Whether the plaintiffs are entitled for the relief of permanent injunction?
(iv)to what relief the plaintiffs are entitled to?
10.During trial, the second plaintiff was examined as P.W.1 and another witness Mohan was examined as P.W.2. The plaintiffs marked Exhibits A1 to A17. Ex.A1 dated 02.11.1923 is the sale deed in the name of Dabir Ramachandra Rao. Ex.A2 dated 24.06.1973 is the copy of the Will executed by Banu Bai. Ex.A3 is the order of the Commissioner, HR & CE, Thanjavur made in A.P.No.13 of 1998 dated 09.11.2004. Ex.A4 is the Electricity charges bill. Exs.A5 to 12 are the photographs of the Swanandha Bhuvan. Ex.A13 is the notice regarding property tax and Exs.A14 to A17 are the house tax receipts.
11.On the side of the defendants, four witnesses were examined [DW.1 to D.W.4]. The defendants marked Exs.B1 to B4. Ex.B1 is the order of the Joint Commissioner; Ex.B2 is the entire file; Ex.B3 is the order of appointment of Thakkar dated 28.03.1988; Ex.B4 is the order of the Commissioner, HR & CE dated 09.11.2004. http://www.judis.nic.in 9
12.The learned Additional Sub Judge, Thanjavur had examined the oral and documentary evidence adduced and found that even according to the witnesses for the defendants, the idol of Heramber was installed inside a glass case. It was found that the Poojari appointed to the temple was not appointed by the HR & CE Department. It was also found that D.W.1, who was the Head Clerk in the office of the Joint Commissioner, HR & CE, Thanjavur, had admitted that in Hindu temples, there will not be any samathi or burial places and also admitted that the HR & CE Department had not paid any money for the expenses and maintenance of the suit Institution.
13.It was also found that the suit temple was facing south. It was also seen that D.W.4, Sundaresa Gurukkal had admitted during cross examination that he was not the actual poojari, who did poojas for the suit Institution. It was also found that the suit temple has a compound Wall and it is kept under lock and key under the control of the founder's family. It was also found that there are no other idols. There are no bells or pillars in the suit Institution. http://www.judis.nic.in 10
14.It was also found that even though originally exemption to pay property tax was granted, subsequently the property had been assessed to tax and the tax had been paid by plaintiffs. It was found that the suit Institution was a private Institution. It was found that the property tax has been continuously paid and consequently, it is not a religious or charitable Institution. Basing his finding on the above facts, the learned Additional Sub Judge, Thanjavur decreed the suit. Challenging the said judgment, the first and second defendants have filed the present appeal.
A.S.(MD)No.199 of 2006:-
15.Heard arguments advanced by Mr.J.Gunaseelan Muthaiah, learned Additional Government Pleader, appearing for the appellants and Mr.V.K.Vijayaragavan, learned counsel for the respondents. The points, which arise for consideration in this appeal are:-
(i)Whether the 'Swanandha Bhuvan Institution' is a private Institution or a temple / religious Institution under the provisions of the Act?
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(ii)whether there has been dedication to the public of the Institution?
(iii)whether the Institution has the trappings of a temple / religious Institution?
(iv)whether the judgment and decree of the trial Court requires interference?
The points answered:-
16.The Institution called Swanandha Bhuvan is situated in T.S.Nos.2324, 2325 and 2326 in Sunnambukkara Street, now known as Yakubia Street, Swanandha Swanandha Bhuvan, Thanjavur District. The land was purchased by Sri Dabir Ramachandra Rao. Even prior to purchase of the land, he had founded the Institution Swanandha Bhuvan and it was functioning in his residence from the year 1916. He belonged to Deshishta Maharashtra Community. He was an ardent devotee of Sri Heramber (Lord Vigneshwar) as worshipped by the Maharashtrian Community to which he and his ancestors belonged). He founded the Institution for the welfare of the members of his family and for meditation. Subsequently, the suit property was purchased on 02.11.1923 by a registered sale deed. The sale deed had been produced as Ex.A1. After the purchase of the suit property, the idol of Heramber was shifted to the suit property. It is http://www.judis.nic.in 12 kept in a glass case. The property faces south. In the said property, he continued to do poojas daily and in Charthurthi days. It must be mentioned that the general public did not contribute any amount towards the expenses for conducting the poojas. The entire expenses were borne only by the family members of Sri Dabir Ramchandra Rao. After his death, the management and administration was taken over by his wife Gojira Bai. After her death it was taken over by her daughter Banu Bai. Banu Bai continued to do Poojas. She executed a Will dated 24.06.1973, which was produced as Ex.A2. In the Will she had given direction for the line succession. This Will has not been questioned by the appellants herein. It is clear that the succession devolves only onto into the family itself of Dabir Ramachandra Rao. No third person even any other person belonging to same community have right to administer or manage the Institution. It is a family Institution. There is no participation by any member of the public either during the poojas or in the administration or the Institution. These facts have not been contested by the appellants. After Banu Bai, her daughters Shantha Bai and Leela Bai took over the administration. The plaintiffs are the sons of the Shantha Bai. It can be seen that the management and administration have been controlled only by one particular family. This had been admitted by http://www.judis.nic.in 13 the appellants and it is also admitted by all the witnesses of the appellants that the property faces south. No Hindu temple faces south. There is no bell. There is no Bali Beedam. There is no Dwajasthambam. There are no Prakarams.
17.It is also admitted by the appellants that the entire building is surrounded by a compound Wall and is kept under lock and key in the custody of the family of he respondents. The key is kept only by the plaintiffs' family members. It is also seen that the property is assessed to tax. Ex.A13, is the tax revision issued by the Thanjavur Municipality. It had been issued in the name of the Swanandha Bhuvan. The tax had been revised to Rs.59/- and it had been categorised as 'Sontha Kudiruppu' / private residential place. Pursuant to this tax revision Ex.A14, Ex.A15 and Ex.A16 have also been produced by the plaintiffs. These are property tax receipts. The name of the property has been given as Swanandha Bhuvan.
18.Ex.A17 is the notice issued by the Thanjavur Municipality determining the property tax for the periods from 2001 – 2002 to 2004 – 2005. It could be seen that the suit property is within the Thanjavur Municipality and had been recognized as property http://www.judis.nic.in 14 assessable for payment of property tax. Ex.A4 is the electricity connection card for the property.
19.It is further seen that the electricity charges are also being paid for the property in the name of the Swanandha Bhuvan Institution. It is thus seen that the Thanjavur Municipality has assessed the property only as private property and electricity charges are also paid on the basis that it is a private property. In the order of the Commissioner, HR & CE, who was the first defendant in the suit, the reason given for negativing declaration of the Institution as private Institution was that documentary evidence had not been produced to prove the claim and that the plaintiffs herein had not proved beyond doubt that the suit Institution is a private religious Institution belonging to their family. It has to be pointed out that in a civil proceedings preponderance of probabilities alone have to be examined and not proof beyond reasonable doubt.
20.In the instant case, the plaintiffs had established by Ex.A1 that the property, where the Institution is instituted, is a private property. By Ex.A2, which is a Will executed by the daughter of the founder, Banu Bai, the history of the Institution had been narrated. It http://www.judis.nic.in 15 was then stated that her mother was doing poojas. Thereafter, she had stated that since she was 71 years old she had executed the Will. It was mentioned that her eldest daughter Shanthi Bai and youngest daughter Leela Bhai were looking after the administration of the Institution. The nature of succession had also been indicated in the Will. Two facts are established: (i) though poojaris are normally male members and that even ladies in the family did poojas for the idol and also administered and managed the Institution and (ii) the line of succession was confined within the family. It was not open to the third persons to either do poojas or to administer the Institution.
21. The original founder did not have sons. But the responsibility to do the poojas, administer and manager the Institution did not fall in the hands of a male member of the same community. It was only confined to his widow and to his daughters and the said daughter by Ex.A3 had bequeathed that right to her daughter and her children. This will simply not be possible if the temple had been a public temple. There would be wide participation in the management and administration.
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22.It is not known why the defendants examined D.W.4, since he was not the Gurukkal of the Institution and did poojas for the idol. Exs.A5 to A12 are photographs of the Institution. It is seen that the idol is kept inside a glass case. This is also significant since in no Institution in our country the idol is kept inside a glass case. One of the fundamental principal in doing pooja is performing abisekam to the idol and abisekam can be performed only if the idol is kept in the open. It involves abisekam by water, milk, honey, curd and other materials prescribed in the Agamasasthras. This abisekam would simply not be possible if the idol is kept inside the glass case. It has also come out in evidence that the entire Institution is surrounded by a compound Wall and kept locked. The photographs also evidence this fact. This has also been stated in the evidence of D.W.1, who was the head Clerk of the HR & CE Department, Thanjavur.
23.The witness, D.W.1, has further admitted as follows:-
“,e;J mwepiyaj;Jiwia nrh;e;j nfhtpy;fspy; rkhjp fpilahJ” http://www.judis.nic.in 17
24.In the suit Institution, the samathi of the founder is present. This one fact itself would be sufficient to hold that the Institution is not a public temple. The witness further admitted that for the suit Institution “,e;J mepiyaj;JiapypUe;J ve;j tpjkhd bryt[k; bra;tJ fpilahJ”. HR & CE department had not spend any money towards maintenance, administration or performing poojas for the temple. It was further admitted “;jhth ,lj;jpw;Fwpa rhtp ,e;J mwepiyaj;Jiwaplk; fpilahJ.” This admission that the keys are not with HR & CE department has to be read in conjunction with the assertion by P.W.1 that the keys are with the family members of the plaintiffs. D.W.1 further admitted as follows:-
“jhth ,lj;jpYs;s gspq;f fy;yhyhd rpiy Mfk tpjpfspd;go ];jhgpf;fg;gl;lJ my;y vd;why; rhp.” This admission that idol in marble is not in consonance with Agamasasthras is also significant.
25.The witness also admitted that “,e;j ];jhgdk; bjw;F ghh;j;J cs;sJ vd;why; rhp. This aspect is also not in conformity with Akamasasthras. It is thus seen on facts that the Institution is not http://www.judis.nic.in 18 a public temple. It is also seen that there is no Hundial in the Institution. Public also did not contribute for the maintenance or administration of the Institution.
24.In 2003 (1) CTC in the case of the Commissioner, Hindu Religious and Charitable Endowments Board, Nungambakkam, Madras and 34 others vs. T.S.Palanichamy and seven others this Court has held that the temple situated in Thottipalayam Village, Palladam Taluk is a private temple on the basis of the following finding of facts:-
“25........ The temple here was founded by the grandfather of the plaintiff. There is no endowment made to that temple by any outsider. The temple does not have Prakaram, but only has Dwajasthamba. There is no Hundial for the public. There is no evidence of monies having been expended for the improvement of the temple by any member of the public.......”
25.In the case of Radhakanta Deb V. the Commissioner of Hindu Religious Endowments, Orissa, [AIR 1981 SC 798] a case similar to the present case, the Court held that “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.” Thereafter, the Court http://www.judis.nic.in 19 observed that the mere fact that members of the public are allowed to worship by itself would not make an endowment a public unless it is proved that the members of the public had a right to worship in the temple. At paragraph 14 of the judgment, the Court formulated four tests as providing sufficient guidelines to determine on the facts of each case whether an endowment is of a private or of a public nature. The four tests are – “(1) whether the user of the temple by members of the public is of right; (2) whether the control and management vests either in a large body of persons or within the members of the public and the founder does not retain any control over the management; (3) whether the dedication of the properties is made by the founder who retain the control and management and whether control and management of the temple is also retained by him; and (4) where the evidence shows that the founder of the endowment did not make any stipulation for offerings or contributions to be made by the members of the public to the temple, this would be an important intrinsic circumstance to indicate the private nature of the endowment.”
26.It is in evidence in this case that there was no stipulation for the public to make any contribution on the occasions they were allowed to offer worship at the temple and that there was no endowment made to the temple by any outsider. The control and the management of the temple at all times was with the family of the http://www.judis.nic.in 20 plaintiffs even as admitted by D.W.1.
27.In the case of the Commissioner, HR & CE (Admn), Department, Madras Vs. Sri Andarvillao Mutharamman Temple and another [1998 -2-L.W.819], a Division Bench of this Court had examined the character of the temple in Eraniel Village, Kaniyakumari District. In that case, it was found that on the following facts that temple is not a public temple:-
“14.It is also admitted tby the lone witness on behalf of the defendant that the temple is administered by Chekkala community and he was also not successful in getting the statements from the residents of the street, where the temple is situated, that they are also worshipping in the temple. Admittedly, the temple has not 'Gopuram' or 'Prakaram' ' Hundial' or Moorthis', which would be taken out in procession during festivals. It is also and admitted fact that the presence of 'Gopuram' or 'Praharam', 'Hundial' or 'Moorthis' is necessary to reach the conclusion, whether the particular temple is a public temple or a private temple. In this case, the material on record shows that there was no 'Gopuram' or 'Praharam' and there was no 'Hundial' or 'Moorthis', which would be taken out in procession during festivals, to hold that the temple is a public temple.
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15.In view of the above concurrent finding 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.”
28.In the present case also the very same reasoning can be applied. There is no Hundial there is no Gopuram, there is no Prakaram, there are no Moorthies.
29.In (2003) 1 MLJ 726 in the case of The Commissioner, HR & CE (Admn) Department, Chennai Vs. Thirukoilur Adhinam Thiruppuliyur Srimath Gnaniar Madalayam the Division Bench of this Court was concerned with the Tirukoilur Adhinam Tirupappuliyur Srimath Gnaniar Madalayam by Srilasri Sivashanmugha Arukuga Melgnana Sivachariar Swamigal and it has held as follows:-
“11.The law is quite clear. The fact that in a Hindu temple members of the public are allowed to come and offer worship does not on that score alone makes the temple a public temple. The tenets of the Hindu Religion which lay great emphasis on tolerance and sharing do not visualize a http://www.judis.nic.in 22 worshipper being turned away and refused permission to offer worship. It is, therefore, not the factum of the members of the public was as of right, that is crucial for the purposes of deciding, in the light of the other circumstances of a given case, as to whether such a temple is a public temple or a private temple.”
30.It is thus seen that worship by the public is encouraged and merely because of there is public visit to the temple such worship will not give the Institution the character of a public temple.
31.In the present case, there is no dedication for the benefit of the Hindu community or any section there of as a place of worship. All the above reasons, pointed out to the fact that the points framed must be answered that the Institution is a private Institution and certainly not a public temple. There is also no evidence to show the dedication to the public. Consequently the point one and two are answered that the Institution is not a public temple and that there is no dedication for the benefit of the general public. Merely because the public used to worship in the place, it cannot be categorized as a public temple. The features of a public temple are totally absent. It is purely a private Institution. The points are answered accordingly. http://www.judis.nic.in 23
32.In view of the reasons stated above I find no reason to differ from the judgment of the trial Court. In the result, (1) the appeal is dismissed with costs;
(2) the judgment and decree dated 28.04.2006 passed by the learned Additional Sub Judge, Thanjavur in O.S.No.74 of 2005 is confirmed.
26.10.2018 Internet : Yes /No Intex : Yes /No ta To
1.The Sub Court, Thanjavur.
2.The Commissioner, Hindu Religious and Charitable Endowments Administration Department, Nungambakkam High Road, Chennai-34.
3.The Joint Commissioner, Hindu Religious and Charitable Endowments Administration Department, Mahimombuchavadi, Thanajavur Town and Municipi.
4.The Section Officer, V.R.Section, Madurai Bench of Madras High Court, Madurai.
http://www.judis.nic.in 24 C.V.KARTHIKEYAN,J.
ta Pre-delivery Judgment made in A.S.(MD)No.199 of 2006 26.10.2018 http://www.judis.nic.in