Document Fragment View

Matching Fragments

7. The temple is defined under Section 2(17) of the Act of 1950 which reads thus -

(17) "temple" means a place by whatever designation known and 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 any section thereof as a place of public religious worship.

10. The aforesaid definitions of public trust and temple came up for consideration before the Apex Court in Bala Shankar Maha Shankar Bhattjee and Ors. v. Charity Commissioner, Gujarat State,. . After referring to the aforesaid definitions of Public Trust and temple, the Apex Court in para 7 held thus -

8. The question whether the temple or the trust is a private trust or public trust had come up for consideration before various Courts including the Apex Court from time to time. In Deoki Nandan v. Murlidhar and Ors. the Apex Court highlighted the distinguishing features between the private and the public trust. The distinction between a private and a public trust, the Apex Court observed is that whereas in the former the beneficiaries are specific individuals, in the latter they are the general public or a class thereof. While in the former the beneficiaries are persons who are ascertained or capable of being ascertained, in the latter they constitute a body which is incapable of ascertainment. A religious endowment must, therefore, be held to be private or public accordingly as the beneficiaries thereunder are specific persons or the general public or sections thereof. Referring to the text in Mayukha, the Apex Court observed that according to texts, Uthsarga is to be performed only for charitable endowments, like construction of tanks, rearing of gardens and the like, and not for religious foundations, and that in the case of temples, the proper word to use is 'Prathista' and not 'Uthsarga' and therefore, the question of inferring a dedication to the public by reason of the performance of the Uthsarga ceremony cannot arise in the case of temples. The Apex Court held that in the case of temples, 'Prathista' takes the place of 'Uthsarga' in dedication of temples and the question as to its scope of dedication is a mixed question of law and fact, the decision of which must depend on the question of public and private endowment to the facts found. In Devki Nandan's case (supra) the Apex Court was seized of a case where idol was installed not within the precincts of residential quarters but in a separate building constructed for that very purpose on a vacant site and after referring to the case Delroos Banoo Begum v. Nawah Syud Ashgur Ally Khan, 15 Beng. L.R. 167 observed that it is a factor to be taken into account in deciding whether an endowment is private or public where the place of worship is located inside a private house or a public building. It was found in the Deoki Nandan's case that idol was permanently installed on a pedestal within the temple precincts; the puja in the temple was performed by archaka appointed from time to time and that there was no temple in the village and the evidence was available that the temple was built at the instance of villagers for providing place for worship for them. In the background of these facts, the Apex Court held the temple Thakurdwara of Shri Radhakrishnaji' in the village of Bhadesia in the district of Sitapur as a public temple. In Haribhanu Maharaj of Baroda v. Charity Commissioner the Supreme Court was dealing with a Math viz. Laxman Maharaj Math and the question was whether Laxman Maharaj Math is a public trust or a private trust. The Apex Court observed that one of the crucial tests for determining whether a temple is intended for private worship or public worship is to find out whether the temple has been constructed within the precincts of residential quarters or in a separate building and Anr. relevant feature which must enter the field of perception when judging whether a Math or Mandir is a public or private one is the size of the construction and its proportion to the entire extent of the property. In paras 11 and 12 of the report, the Apex Court observed thus -

11. Another infirmity noticed in the judgment of the High Court is that it has not focussed its attention to the juxbaposition of the Math with the residential portion of the property occupied by the appellant and his brothers and the members of their families. The Charity Commissioner has observed that the residential portions of the appellant's family are situated on the western and eastern portions and besides there are also shops on the western and southern sides. The High Court has adverted to these features and has observed that "the Manager with his family resided in a part of premises adjoining the room wherein idols are installed". Whenever a dispute arises as to whether a Mandir is a public or private temple, one of the features taken into consideration by Courts for deciding the issue is the location of the Mandir with reference to the residence of the persons claiming rights of private ownership. This position has been set out in several cases but we may refer only to two of them viz. Peesapati v. Kanduri. 1915 Mad. W.N. 842 : 18 Mad. L.T. 543 : AIR 1916 Mad. 462 : 30 I.C. 822, Deoki Nandan v. Murlidhar . The decisions lay down that one of the crucial tests for determining whether a temple is intended for private worship or public worship is to find out whether the temple has been constructed within the precincts of residential quarters or in a separate building. In this case the Mandir is within the precincts of the residential quarters of the appellant but the High Court has failed to give due consideration to this aspect of the matter.

21. Dedication to the public may be proved by evidence or circumstances obtainable in given facts and circumstances. In given set of facts, it is not possible to prove actual dedication which may be inferred on the proved facts that place of public religious worship has been used as of right by the general public or a section thereof as such place without let or hindrance. In a public debutter or endowment, the dedication is for the use or benefit of the public. But in a private endowment when property is set apart for the worship of the family idol, the public are not interested. The mere fact that the management has been in the hands of the members of the family itself is not a circumstance to conclude that the temple is a private trust. In a given case management by the members of the family may give rise to an inference that the temple is impressed with the character of a private temple and assumes importance in the absence of an express dedication through a document. As stated earlier, consciousness of the manager or the devotees in the user by the public must be as of right. If the general public have always made use of the temple for the public worship and devotion in the same way as they do in other temples, it is a strong circumstance in favour of the conclusiveness of public temple. The origin of the temple, when lost in antiquity, it is difficult to prove dedication to public worship. It must be inferred only from the proved facts and circumstances of a given case. No set of general principles could be laid.