of West Bengal & Ors Vs. Sri Sri Lakshmi Janardan
Thakur & Ors  Insc 507 (21 August 2006)
Pasayat & Lokeshwar Singh Panta
Out of S.L.P. (C) No.1613 of 2004) ARIJIT PASAYAT, J.
call in question legality of the judgment rendered by a Division Bench of the
Calcutta High Court holding that an endowment which was the subject matter of
controversy was private in nature. After so holding, the High Court directed
the Revenue Officer and Ex-officio Deputy Land and Land Reforms Officer to decide
afresh the matter taking note of the observations made and the findings
recorded. It was directed that the decision was to be taken after affording all
concerned parties opportunity of hearing.
background facts in a nutshell are as follows:
officer initiated proceedings registered as 3/Hoogly of 2002 under Section
14T(6), 14T(9), 14M(5) and 14M(6) of the West Bengal Land Reforms Act, 1955 (in
short the 'Act') to cause enquiry in order to ascertain the total extent of
land held by Deity Sri Sri Lakshmi Janardan Thakur (hereinafter referred to as
the 'Deity') and to decide the question as to whether the endowment is of
public or private nature and connected issues. It is to be noted that under the
Act, the Revenue Officer is the Ex-Officio Deputy Land and Land Reforms officer.
order dated 3.12.2001, the Revenue Officer disposed of the proceedings allowing
the Deity to retain 24.22 acres of land and directed vesting of rest of the
land in the State. The Revenue Officer held that the endowment was of public
nature exclusively for charitable and religious purpose and therefore was
entitled to retain 7 standard hectares of land in terms of Section 14M(6) of
the Act. Challenging the said order, an application numbered as O.A. 328 of
2002 was filed by the Shebaits of the said Deity before the West Bengal Land
Reforms and Tenancy Tribunal (hereinafter referred to as the
'Tribunal')claiming that the character of the Deity was private in nature.
Aforesaid O.A. was disposed of by the Tribunal directing the applicants to
prefer statutory appeal under the provisions of the Act before the District Land and Land Reforms Officer, the designated appellate
preferred the statutory appeal in terms of Section 54 of the Act before the
appellate authority. The appeal was registered as Appeal Case No. 52 of 2002.
By order dated 31.5.2002 the appellate authority rejected the appeal and
confirmed the order passed by the Revenue Officer.
aggrieved by the said judgment an appeal (O.A. No. 2175/2002) was preferred
before the Tribunal claiming properties of the Deity as absolute and not the
personal property of its Shebaits.
Tribunal after hearing the parties rejected the OA holding that the contentions
raised by the applicants before it were rightly rejected by the appellate
authority for cogent reasons based on solid and unassailable materials.
the said judgment of the Tribunal, a Writ Petition was filed before the
Calcutta High Court which was registered as W.P.L.R.T. No. 101 of 2003. A
Division Bench of the Calcutta High Court by the impugned judgment allowed the
Writ Petition, set aside the orders passed by the Revenue Officer, the
appellate Authority and the Tribunal. As noted above certain directions were
given. The High Court inter alia held that the dedication was not made for the
use or benefit of the public at large or even a specified class of it and
therefore the endowment was of private nature. It was noticed that neither the
management nor the control over the expenditure was of the public and therefore
set aside the orders.
support of the appeal, learned counsel for the appellant-State and its
functionaries submitted that the High Court has fallen into grave errors by
ignoring the fact that the respondents have taken different stands at different
points of time. They themselves have accepted that the endowment was of a
public nature. Reference in this is made to various orders including an order
passed by a High Court in an earlier Writ Petition and the prayer made in the
Writ Petition filed before the High Court.
counsel for the respondents on the other hand submitted that the High Court has
rightly taken note of the factual position in the proceeding under Section 44(2)(a)
of the West Bengal Estates Acquisition Act, 1953 (in short the 'Acquisition
Act'), wherein it was clearly held that Deity is entitled to benefits as
provided under Sections 6(1)(i) and 6(2) and proviso to Section 17 of the
Acquisition Act. This order dated 24.8.1968 it is submitted, was not
challenged. The Arpannama (religious endowment) clearly shows the character of
adjudication of the controversy, certain provisions and factual aspects need to
be noted. Section 5 of the Acquisition Act deals with effect of Notification
issued under Section 4 of the Acquisition Act. Section 6(1) is of significance
and reads as follows :
of intermediary to retain certain lands
anything contained in sections 4 and 5, an intermediary shall, except in the
cases mentioned in the proviso to sub-section (2) but subject to the other
provisions of that sub-section, be entitled to retain with effect from the date
in or appertaining to buildings and structures owned by the intermediary or by
any person, not being a tenant, holding under him by leave or license.
For the purposes of this clause
'tenant' shall not include a thika tenant as defined in the Calcutta Thika
Tenancy Act, 1949:
land in his khas possession including land held under him by any person, not
being a tenant, by leave or license, not exceeding fifteen acres in area, and
excluding any land retained under clause (a) Provided that the total area of
land retained by an intermediary under clauses (a) and (c) shall not exceed
twenty acres, as may be chosen by him:
further that if the land retained by an intermediary under clause (c) or any
part thereof is not utilised for a period of five consecutive years from the
date of vesting, for a gainful or productive purpose, the land or the part
thereof may be resumed by the State Government subject to payment of
compensation determined in accordance with the principles laid down in sections
23 and 24 of the Land Acquisition Act, 1894." xx xx xx xx xx Till 1981
there was no ceiling in respect of religious or charitable endowment, be
private or public. In 1981 the Land Reforms Act was amended and provisions of
Sections 14M(5) and (6) become effective and the ceiling area was prescribed.
the first time distinction was made between private and public charitable
14 M (5) and (6) read as follows:-
owned by a trust or endowment other than that of a public nature, shall be
deemed to be lands owned by the author of the trust or endowment and such
author shall be deemed to be a raiyat under this Act to the extent of his share
in the said lands, and the share of such author in the said lands shall be
taken into account for calculating the area of lands owned and retainable by
such author of the trust or endowment, and for determining his ceiling area for
the purposes of this Chapter.
"author of trust or endowment" shall include the
successors-in-interest of the author of such trust or endowment.
anything contained in sub-section (1), a trust or an institution of public
nature exclusively for a charitable or religious purpose or both shall be
deemed to be a raiyat under this Act and shall be entitled to retain lands not
exceeding 7.00 standard hectares, notwithstanding the number of its centres or
branches in the State".
B.K. Mukherjea's The Hindu Law of Religious and Charitable Trust, Tagore Law
Lectures the distinction between a public and private charitable trust has been
set out in the following terms:
between public and private purpose _Gifts for individuals The line of
distinction between a public purpose and a purpose which is not public is very
thin and technical and is difficult of an easy definition.
in the 5th edition of his book an 'Charities' thus summed up the principles
deducible from the cases on the subject:
the intention of the donor is merely to benefit specific individuals, the gift
is not charitable, even though the motive of the gift may be to relieve their
poverty accomplish some other purpose with reference to those particular
individuals which would be charitable if not so confined; on the other hand, if
the donor's object is to accomplish the abstract purpose of relieving poverty,
advancing education or religion or other purpose charitable within the meaning
of the Statute of Elizabeth, without giving to any particular individuals the
right to claim the funds, the gift is charitable." 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 for the worship of a family god, in which the public are
not interested, the endowment is a private one.
a question of tact whether a temple is a private or a public one. The extent of
properties belonging to the temple, the course of conduct of the devotees, the
supervision exercised by the founder and his descendants whether the rents and
profits are exclusively utilised for the temple for a long period are relevant
factors to be taken into consideration whether a temple is a public one or a
private one as also public visiting the temple for Darshan and worship,
appearance of the temple, association of members of public with the management
and earlier statements or admission of parties.
order to ascertain whether a trust is a private, following factors are
If the beneficiaries
are ascertained individuals;
If the grantor
has been made in favour of an individual and not in favour of a deity;
The temple is
situated within the campus of the residence of the donor;
If the revenue
records or entries suggest the land being in possession of an individual and
not in the deity. On the other hand an inference can be drawn that the temple
along with the properties attached to it is a public trust:
If the public
visit the temple as of right
If the endowment
is the name of the deity.
beneficiaries are the public.
management is made through the agency of the public or the accounts of the
temple are being scrutinized by the public.
reading of the High Court's judgment show that factual position has not been considered
in its proper perspective and in fact High Court has not referred to several
relevant documents and materials. In the earlier writ petition i.e. Civil Writ
Petition No.4941(W) of 1976 decided on 16.7.1980 a learned single judge after
referring to the submissions made on behalf of the Deity noted as follows:
submitted that as a matter of fact out of the income of the Debutter properties
Educational Institutions and Dispensaries are run by the Shebaits of the said
Deity and the said facts unmistakably point out that the properties are
utilized for religious and charitable purpose of public nature. Although there
is force in the contention of Mr. Mitra, it is not necessary for me to decide
at the present stage as to whether the Debutter properties are really utilized
for religious and charitable purpose of public nature." (underlined for
emphasis) In the written notes of arguments filed before the Revenue Officer,
it was inter alia stated as follows:
endowment of the said Sri Sri Laxmi Janardan Thakur is absolutely debuttor
deity is public in nature. In fact this is an absolute public Debuttor Estate
with religious and charitable in nature and that Estate will enjoy the
protection as given by W.B.L.R. Act, 14M Sub Section 5." (Underlined for
emphasis) Similarly, in the writ Petition filed one of the prayers was as follows
writ of and/or in the nature of declaration, declaring that the properties
dedicated in favour of the deities absolutely used for religious and charitable
purposes, the Revenue Officer cannot tagged the said properties with the
personal properties of the Nandis and the Order so passed by the Revenue
Officer, Appellate Authority and the learned Tribunal are bad, illegal and
contrary to law." The order on which reliance has been placed by learned
counsel for the respondent was passed on 21.1.2003.
at that time the question of ceiling vis a vis private and public institutions
were not relevant.
High Court does not appear to have considered all the relevant aspects and has
come to abrupt conclusion and the following findings have been recorded:
material has been shown by the petitioners which satisfies the requirements for
holding the said endowment as to public nature." In the fitness of things,
it would be appropriate to set aside the order of the High Court and remand the
matter to it for consideration afresh. It shall consider the effect of the
order in the earlier writ petition, effect of the submission made and the
written statement and the prayer in the writ petition.
aspects shall be considered along with other materials to be placed by the
parties. Needless to say on consideration of all the relevant material the High
Court shall dispose of the writ petition in accordance with law.
ultimate result the appeal is allowed, with no orders as to costs.