Smt. Marua
Dei Alias Maku Dei & Ors Vs. Muralidhar & Ors [1998] INSC 572 (30 November 1998)
K. Venkataswami,
A.P. Misra. K. Venkataswami, J.
ACT:
HEAD NOTE:
This
appeal by special leave arises out of proceedings taken by Harekrushana Das and
Ram Chandra Das, predecessors-in-interest of the appellants herein, under
Section 41 of the Orissa Hindu Religious endowments Act, 1951 (hereinafter
called the "Act") for a declaration that the institution in question
is neither a public temple nor a math as defined in the Act and that it is a
private spiritual institution for the worship by the applicants' family members
only. The application under Section 41 was seriously contested by the
respondents contending that the institution in question was a public religious
worship place. The Additional Assistant Commissioner of Endowments, Orissa, Bhuvaneswar,
on the basis of the pleadings, oral and documentary evidence, by his order
dated 27.5.71 held that the institution in question is neither a public temple
nor a math as defined in the Act but it is a private institution of the
petitioners. Aggrieved by the order of the Additional Assistant Commissioner,
the respondents preferred an appeal to the Commissioner of Endowments, Orissa, Bhubaneswar, F.A. No. 20/71. The appellate
Authority by its order dated 21st December, 1076 held that though the
institution has developed all the external features of a Hindu temple, the
deities therein are worshipped by the public alongwith the Samadhis and through
the members of the public have free access to the institutions the institution
has been in possession control and management of the petitioners and was not
used as of right by the Hindu community as a place of public religious worship.
Consequently,
the Appellate Authority dismissed the appeal.
Still
aggrieved, the respondents preferred a further appeal to the High Court of Orissa
at Cuttack under Section 44 of the Act in M.A.No.
16/77. The High Court in its detailed judgment dated 28.11.1979 after elaborate
discussions held that the institution satisfied all the essential features of a
public temple; that the members of the public visit the place without
restriction and are in the habit of offering worship as of right that the
petitioners themselves held out and represented to the public that the
institution is a public temple and that, therefore, the institution clearly
falls within the definition of "temple" as given in the Act.
Aggrieved
by the said judgment of the High Court, the present appeal by special leave has
been filed by the appellants.
Brief
facts leading to the filing of application under Section 41 of the Act are as under
:- The gist of averment in the Application under Section 41 is given below.
According
to the original applicants before the Additional Assistant Commissioner, their
ancestor, by name Hadibandhu Das, was a great saint and he exercised spiritual
headship over a body of disciples. After his death, he was given Samadhi within
his own premises which was known as Samadhi Gosain. One Sadhubara das, the son
of Hadibandhu Das, was also given Samadhi in the same premises.
Thereafter,
Raghubara Das son of Sadhubara Das, installed two idols of Balabhadra and Jaganatha
respectively on the Samadhis of Hadibandhu Das and Sadhubara Das. After his
death he was also given Samadhi in the same apremises by his successors Harekrushana
Das and Ram Chandra Das, applicant nos. 1 and 2 before the Additional Assistant
Commissioner.
These
two applicants installed an idol of Subhadra on the Samadhi of Raghubara Das.
The first applicant, it was claimed commanded spiritual headship over a large
number of disciples who offered Pranami to him. Likewise applicant no. 2 was
also respected and received Pranami from the disciples. The applicants are said
to have utilised the money received from the disciples in building the pucca
structures over the Samadhis. They also installed a number of idols of Hindu
mythology in these structures for worship by their family member. The public
have no right to come and worship as of right through they were generally
allowed to worship without hindrance. In the year 1948-49, the Inspector of
Endowments called upon the first applicant to render accounts treating the
institution as a public religious institution. On account of that, the
applicants moved the Additional Assistant Commissioner under Section 41 of the
Act for a declaration as mentioned at the outset.
As
against the above case of the original Applicants, the respondents contended
before the Additional Assistant Commissioner that the institution is a public
religious institution. It has developed into a temple where Hindu deities are
regularly worshipped. The Hindu public have free access to the temple as of
right by offering "bhog". According to the respondents, the main
temple with its subsidiary temples have been built with the subscription raised
from the public. The common religious festivals like Rath Jatra, Dola Jatra, Jools
Jatra etc. were celebrated in the institution and the Hindu public participated
in those functions. Inside the premises, the Hindu scriptures like Gita, Bhagvat
were recited before a large number of devotees. Therefore, the case of the
respondents was that the institution, which originated from Samadhis, ceased to
be so and has developed all the characteristics of a Hindu temple as defined in
the Act.
Before
the Additional Assistant Commissioner, number of documents were filed on both
sides and oral evidence also was let in by both sides. On the basis of the oral
and documentary evidence and the pleadings, as noticed earlier, the Additional
Assistant Commissioner and the Commissioner accepted the case of the
applicants, predecessors-in-interest of the appellants.
Before
the High Court, the respective parties reiterated their respective stand as
noticed above. The High Court on a re-appreciation of the pleadings and
evidence came to a different conclusion by accepting the case of the
respondents. Aggrieved by that the present appeal has been filed.
Before
going into the correctness or otherwise of the judgment under appeal, it is necessary
to set out certain provisions of the Act.
"Religious
institution" is defined in Section 3(xiii) as follows :- "religious
institution" means a math, a temple and endowment attached thereto or a
specific endowment and includes an institution under direct management of the
State Government." "Temple" is defined in Section 3(xv) as follows
:- "temple" means a place by whatever designation known, 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 class or section thereof,) as
a place of public religious worship and also includes any cultural institution
or mandap or library connected with such a place of public religious &
worship." Sections 41 and 44 read as follows :-
"41.
Assistant Commissioner to decide certain disputes and matters - (1) In case of
a dispute the Assistant Commissioner shall have power to enquire into and
decide the following disputes and matters:-
(a) whether
an Institution is a public or religious institution;
(b) whether
an institution is a temple or a math;
(c) whether
a trustee holds or held office as a hereditary trustee;
(d) whether
any property or money is of a religious endowment or specific endowment;
(e) whether
any person is entitled, by custom or otherwise, to any honour, emolument or
perquisite in any religious institution and what the established usage of a
regard institution is in regard to any other matter;
(f) whether
any institution or endowment is wholly or partly of & religious or secular
character, and whether any property or money has been given wholly or partly
for religious or secular use and;
(g)
where property or money has been given for the support of an institution or the
performance of a charity, which is partly of religious and partly of a secular
character or when any property or money given is appropriated partly to
religious and partly tu secular uses, as to what portion thereof shall be
allocated to religions uses :
Provided
that the burden of proof in all disputes or matters covered by Clauses (a) and
(d) shall lie on the person claiming the institution to be private or the
property or money to be other than that of a religious endowment or specific
endowment, as the case may may be."
44.
(1) Any person aggrieved by an order passed under Section 41, or Sub-section
(1) or (6) of Section 42, or Section 43 may, within thirty days from the date
of receipt of the order under Section 41 or Section 43 nor from the date of
publication of the order under Section 42, as the case may be, prefer an appeal
to [the Commissioner].
(2)
any party aggrieved by the order of [the commissioner] passed under Sub-section
(1), may, within thirty days from the date of the order, prefer an appeal to
the High Court." The High Court, after carefully analysing the oral and
documentary evidence, ultimately summarised its findings as follows:
"23.
Although direct evidence of dedication is not forthcoming, yet the evidence
adduced in the case is sufficient to hold that the dedication was for the benefit
of the public and that the Hindu public have been using the temple premises as
a place of religious worship and offering bhog as of right. The cumulative
effect of the following facts and circumstances proved in the case clearly
establish that the dedication was for the benefit of the public and that the
temple premises are being used as of right by the public as a place of
religious worship :- (1) The existence of idols, some of which have been
permanently installed and images of Minor deities in the temple.
(2)
The institution has external features of a public temple.
(3)
Hindu religious festivals are celebrated in the temple and the members of the
public participate in the same.
(4)
The members of the public visit the without restriction and are in the of
offering worship as of right.
(5)
The land on which the temple stands has not been dedicated to any private
individual or a family but to the 'Samadhi Gossain' through an ancestor of the
petitioners as the marfatdar and the land is held rent free.
(6) That
the temple was constructed with the aid of public subscriptions.
(7)
That Pujaris have been engaged carry on sevapuja of the deities and after bhog
daily.
(8)
Existence of a shop in the temple premises for sale of bhog articles to the
visitors.
(9) The
devotees visiting the temples are given food and shelter in the temple.
(10)
The temple is located by the side of a public road at a place quite separate
from the residential house of the petitioners.
(11)
Existence of a tank known as 'Chakratirtha' excavated on a land recorded as Sarbasadharan.
(12)
Existence of a Dharmasala in the temple premises for accommodation of the
visitors.
(13)
Absence of evidence that any member of public was denied access to the temple
at any time.
(14)
The petitioners have themselves held out and represented to the public that the
institution is a public temple.
24. In
coming to the conclusion about the private nature of the institution, the
learned Commissioner of Endowments seem to have been influenced by the facts
that the petitioners have ceased to hold the festivals for the last 8 to 10
years and that they also closed the main gate of the temple for about 3 years
without any opposition by the public. He, however, overlooked the fact that the
petitioners stopped celebration of the festivals and closed the main gate only
after an attempt was made by the Endowment Department to assume jurisdiction
over the institution.
The
petitioners themselves admitted in their application under Section 41 than in
the year 1948-49 an Inspector of Endoments called upon them to render ac
counts. It also appears that subsequently there was a proposal for appoinment
of trustees by the Endowment Department and the members of the public filed
several complaints before the Commissioner regarding mismanagement of the
institution and the reply to those complaints the petitioners filed counters in
Exts. H and J. The institution cannot be held to be a private one merely
because the peritioners who are marfatdars stopeed the festivals and closed the
main gate for some years, if it otherwise satisfies the definition of a temple
as given in the Act.
25. On
a consideration of the facts and circumstances, as discussed above I am
satisfied that all the essential features of a public temple are found in the
institution and it, therefore, clearly falls within the definition of temple as
given in the Act." Mr. R.F. Nariman, learned Senior counsel, challenged
the above conclusions reached by the High Court contending that the
institution, which originated as Samadhis, continued as "Samadhis";
that the character never changed; that the object of the founders was not to
promote Hinduism; that there was no document to establish any endowment for any
purpose; that the alleged temple was not an ancient one but constructed only
recently in the year 1948-49; that the institution was only a private family
Samadhi and the appellants and their ancestors were living in the same
premises; that there was no daily rituals as usually carried on in public
temples; that the Pranami was given to the person and not to the idol; that no
donation was collected from the public for constructing structures;
that
there was no proof of public construction; that the public could not worship as
a matter of right; that the land measuring about 8 acres belonged to the
ancestors of the appellants and that the management was always in the hands of
the family. According to the learned Senior Counsel, in view of the above
features, the findings and conclusions reached by the High Court cannot be
sustained. In support of his arguments, he also pointed out relevant oral arid
documentary" evidence and also cited a number of decisions which will he
referred to at the appropriate place.
On the
other hand, Mr. B.A. Mohanty, learned Senior Counsel appearing for the
contesting respondents, invited our attention to the pleadings before the
Additional Assistant Commissioner and also to the oral and documentary evidence
and then submitted that the High Court was absolutely right in summarising the
findings in paragraphs 23-25 after elaborate discussion on facts. He also cited
a number of Judgments in support of his contention. According to the learned
Senior Counsel for the contesting respondents, the Additional Assistant
Commissioner and the Commissioner went wrong in deciding against the
respondents by wrongly throwing the burden of proof on them. He mainly relied
on the evidence of PW-7, one of the applicants before the Additional. Assistant
Commissioner, to support the findings reached by the High Court.
We
have considered the rival submissions.
It
would be advantageous to bear in mind the principles/tests laid down by this
Court and other High Courts in the matter of finding out whether an institution
is a private temple or a public temple. The decisions brought to our notice at
the bar mar now be noted. As early as in 1924, the Privy Council in Pujari LakSihmana
Goundan & the view that even in a case where at the initial stage the
temple is a private one by reason of the founder holding it out by representing
to the Hindu public that the temple was a public temple at which all Hindus
might worship, then the inference will be that he had dedicated the temple to
the public. This judgment of the Privy Council was noted and cited with
approval by this Court in Pratapsinhji N. Desai vs. Deputy Charity
Commissioner, Gujarat & Ors. [1987 (3) SCR 909]. This Court observed as
follows:- "We do not think: that it would serve any purpose to refer to
ail the well-known decisions except a few. In temple was not an ancient one and
there was no deed of endowment. The question was whether the temple was a
public temple or a private temple, Although the temple was a private temple,
the evidence disclosed that the Pujari Lakshmana Goundan, the founder of the
temple had held out and represented to the Hindu public in general that the
temple was a public temple at which all Hindus might worship. Sir John Edge, in
delivering the judgment of the Privy Council held that on that evidence the
Judicial Committee had no hesitation in drawing the inference that the founder
had dedicated the temple to the public, as it was found that he had held out
the temple as a public temple. Another Privy Council decision to which we need
1939 67 IA 1 where the grant was made to one Daryao Gir and his heirs in
perpetuity and the evidence showed that the temple and the properties attached
thereto had throughout been treated by the members of the family as their
private property appropriating to themselves the rents and profits thereof. Sir
George Rankin, delivering the judgment of the Privy Council held that the fact
that the grant was made to an individual and his heirs in perpetuity was not
reconcilable with the view that the grantor was in effect making a wakf for A
Hindu religious purpose. That very distinguished Judge referred to the earlier
decisions in Pujari Lakshamana Goundan's case, and observed;
"Their
liordships do not consider that the case before them is in general outline the
same as the case of the Madras temple, 29 C.W.N. 112, in which it
was held that the founder who had enlarged the house in which the idol had.
been installed by him, constructed, circular roads for processions, built a
rest house in the village for worshippers, and so forth, had held out and
represented to the Hindu public that it was a public temple." The true
test as laid down by this Court speaking through Venkatarama Ayyar, J in Deoki Nandan
V. Murlidhar, [1956] SCR 756 in determining whether a temple is a private or a
public temple, depends on whether the public at large or a section. thereof,
'had an unrestricted right of worship' and observed:
"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 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." The learned Judge
distinguished the decision of the Privy Council in Bahu Bhagwan Din v. Gir Har Saroop,
(supra) on the ground that properties in that case were granted not in favour
of an idol or temple hut in favour of the founder who was maintaining the
temple and to his heirs in perpetuity, and said:
"But,
in the present case, the endowment was in favour of the idol itself, and the
point for decision is whether it was private or public endowment. And in such
circumstances, proof of user by the public without interference would be cogent
evidence that the dedication was in favour of the public." It was also
observed while distinguishing the Privy Council decision in Babu Bhagwan Din's
case that it was unusual for rulers to make grant to a family idol. In Deoki Nandan's
case the Court referred to several factors as an indicia of the temple being a
public one viz the fact that the idol is installed not within the precincts of
residential quarters but in a separate building constructed for that purpose on
a vacant site, the installation of the idols within the temple precincts, the
performance of pooja by an archaka appointed from time to time for the purpose,
the construction of the temple by public contribution, user of the temple by
the public without interference, etc." Ors. [AIR 1940 PC 7], whil&
distinguishing the case of Pujari Lakshmana Goundsn's case, the Court observed
as follows: - "In these circumstances, it is not enough in their Lordshpis
'opinion' to deprive the family of their private property to show that Hindus
willing to worship have never been turned away or even that the deity has
acquired considerable popularity among Hindus of the locality or among persons
resorting to the annual mela. Worshippers are naturally welcome at a temple
because of the offerings they bring and the repute they give to the idol; they
do not have to be turned away on pain of forfeiture of the temple property as
having become property belonging to a public trust. Facts and circumstances, in
order to be accepted as sufficient proof of dedication of a temple as. a public
temple, must be considered in their historical setting in such a case as the
present; and dedication to the public is not to be readily inferred when it is
known that the temple property was acquired by grant to an individual or
family.
Such
an inference if made from the fact of user by the public is hazardous, since it
would not in general be consonant with Hindu sentiments or practice that
worshippers should be turned away; and as worship generally implies offerings
of some kind it is not to be expected that the managers of a private temple
should in all circumstances desire to discourage popularity. Thus, in 61 I A
405, the Board expressed itself as being show to act on the mere fact of the
public having been freely admitted to a temple. The value of public user as
evidence of dedication depends on the circumstances which give strength to the
inference that the user was as of right. Their Lordships do not consider that
the case before them is in general outline the same as the case of the Madras
temple 29 C W N 112, in which it was held that the founder who had enlarged the
house in which the idol had been installed by him, construted circular roads
for processions, built a rest house in the village for worshippers, and so
forth, had held out and represented to the Hindu public that it was a public
temple." The Commissioner, Hindu Religious and. Charitable Endowments
[(1962) Supp.(2) SCR 276], Raghubar Dayal, J., speaking for a three-Judge
Bench, laid down the following tests to find out whether a particular temple is
a private or a public one:- "That an institution would be a public temple
within the Hindu Religious Endowments Act, 1926, if two conditions are
satisfied; firstly,that it was a place of public religious worship and
secondly, that it was dedicated to, or was for the benefit of, or was used as
of right by the Hindu Community, or any section thereof, as a place of religious
worship.
When
there be good evidence about the temple being a private one, the mere fact that
a number of people worship at the temple, is not sufficient to come to the
conclusion that the temple must be a public temple to which those people go as
a matter of right as it 15 not usual for the owner of the temple to disallow
visitors to the temple even if it be a private one." Jall & Anr. [1971
(2) SCR 650], this Court, inter alia, observed that the fact that the
worshippers from the public were admitted to the temple was not a decisive
fact, because worshippers would not be turned away as they brought in
offerings, and the popularity of the idol among the public was not indicative
of the fact that the dedication of the properties was for public.
This
Court in Bihar State Board Religious Trust, that the evidence that Sadhus and
other persons visiting the temple were given food and shelter was not by itself
indicative of the temple being a public temple or its properties being subject
to a public trust; that the mere fact of the public having been freely admitted
to the temple cannot mean that courts should readily infer therefrom dedication
to the public; that the value of such public user as evidence of dedication
depends on the circumstances which give strength to the inference that the user
was as of right; that the fact that idols were installed permanently on a
pedestal and the temple was constructed on grounds separate from the
residential quarters of the mahant could not lead to inference of dedication to
the public.
Religious
and Chairtable Endowments, Madras [1973
(1) SCR 584], this Court while considering a similar question, observed as follows
:
"Moreover,
if the origin of the temple had been proved to be private then according to the
law laid down by the Privy Council itself in Babu Bhagwan Din's case dedication
to the public was not to be readily inferred. Such an inference, if made, from
the fact of user by the public was hazardous since it should not, in general,
be consonant with Hindu sentiment or practice that worshippers should be turned
away; and, as worship generally implied offerings of some kind, it was not to
be expected that the managers of a private temple should in all circumstances
desire to discourage popularity. It was further emphasised by their Lordships
that the value of public user as evidence of dedication depends on the
circumstances which give strength to the inference that the user was as of
right. In Goswami Shri Maha;axmi Vahuji V. Rannchboddas Kalidas & Others it
was pointed out that the appearance though a relevant circumstance was by no
means decisive. The circumstance that the public or a section thereof had been
regularly worshipping in the temple as a matter of course and they could take
part in the festivals and ceremonies conducted in that temple apparently as a
matter of right was a strong piece of evidence to establish its public
character. If votive offerings were being made by the public and the expenses
were being met by public contribution, it would be safe to presume that the
temple was public. In short the origin of the temple the manner in which its
affairs were managed the nature and extent of the gifts received by it.
rights
exercised by devotees in regard to worship therein, the consciousness of the
manager and the consciousness of the devotees themselves as to the public
character of the temple were factors that went to establish whether a temple
was public or private," Hindu Religious and Charitable Endowments [AIR
1954 Madras 398] a Division Bench of that High Court had occasion to consider a
similar question. Mr. Venkatarama Aiyar, J., as he then was, spewing for the
Bench, held as follows:- "In 1946, the Hindu Religious Endowments Board
called for reports on the structure and the constitution of the building.
Exhibits
R-2 and R-3 are the reports submitted by the office. These reports show that
the building has got all the normal features of the temple, that it has got Prakaram,
Dhwajastambam, Balipeetam and Nandikeswara, and there are shrines for Bhairavar,
Kasi Visalakshi, Chandikeswara, and other deities. There is a 16 pillared mandapam
and there are gopurams all over the shrine. It also appears from the evidence
now adduced that festivals are being regularly performed, the deity is taken in
procession, and archanas are performed by the worshippers.
On
these materials the only conclusion possible is that the institution has for a
long period come to be regarded as a place of religious worship, which the
public are entitled to use as a matter of right, and this being so the
institution will be a temple as defined in S. 9(12), Madras Hindu Religious
Endowments Act." The very same Bench of the Madras High Court in Ammal by
Power of Attorney agent T.V. Mahalinga Aiyar [AIR 1954 Madras 482] held that in the case of an
old temple, such dedication might be presumed from long user by the public as
right. On the facts, the learned Judges found that the worship was maintained
and the expenses were met from out of private funds of the respondents and in
the absence of any property being dedicated for the maintenance of worship in
the temple, it was difficult to infer dedication of the temple to the public.
Kalidas
& Ors. [1970 (2) SCR 275], this Court, after considering the earlier
decisions on this aspect, held as follows:- "Though roost of the present
day Hindu public temples have been found as public temples, there are instances
of private temples becoming public temples in course of time. Some of the
private temples have acquired great deal of religious reputation either because
of the eminence of its founder or because of other circumstances. They have
attracted large number of devotees. Gradually in course of time they have
become public temples.
Public
temples are generally built or raised by the public and the deity installed to
enable the members of the public or a section thereof to offer worship. In such
a case the temple would clearly be a public temple- If a temple is proved to
have originated as a public temple, nothing more is necessary to be proved to
show that it is a public temple but if a temple is proved to have originated as
a private temple or its origin is unknown or lost in antiquity then there must
be proof to show that it is being used as a public temple. In such cases the
true character of the particular temple is decided on the basis of various
circumstances. In those case the courts have to address themselves to various
questions such as:-
(1) Is
the temple built in such imposing manner that it may prima facie appear to be a
public temple?
(2) Are
the members of the public entitled to worship in that temple as of right?
(3)
Are the temple expenses met from the contributions made by the public?
(4)
Whether the saves end utsavas conducted in the temple are those usually
conducted in public temples?
(5)
Have the management as well as the devotees been treating that temple as a
public temple?
Though
the appearance of a temple is a relevant circumstance, it is by no means a
decisive one. The architecture of temples differs from place to place. The
circumstance that the public or a section thereof have been regularly
worshipping in the temple as a matter of course and they can take part in the
festivals and ceremonies conducted in that temple apparently as a matter of
right is a strong piece of evidence to establish the public character of the
temple. If votive offerings are being made by the public in the usual course
and if the expenses of the temple are met by public contribution, it is safe to
presume that the temple in question is a public temple. In brief the origin of
the temple, the manner in which its affairs are managed, the natura and extent
of gifts received by it, rights exercised by the devotees in regard to worship
therein, the consciousness of the manager and the consciousness of the devotees
themselves as to the public character of the temple are factors that go to
establish whether a temple is a public temple or a private temple. In Lakshmana
V. Subramania the Judicial Committee was dealing with a temple which was
initially a private temple. The Mahant of this temple opened it on certain days
in each week to the Hindu public free to worship in the greater part of the
temple, and on payment of fees in one part only. The income thus received by
the Mahant was utilised by him primarily to meet the expenses of the temple and
the balance went to support the Mahant and his family. The Privy Council held
that the conduct of the Mahant showed that he had held out and represented to
the Hindu public that the temple was a public temple at which all Hindus might
worship and the inference was, therefore, that he had dedicated it to the
public. In Mundancheri Koman v. Achutan Nair, the Judicial Committee again
observed that the decision of the case would depend on the inferences to be
derived from the evidence as to the way in which the temple endowments had been
dealt with and from the evidence as to the public user of the temples. Their
Lordships were satisfied that the documentary evidence in the case conclusively
showed that the properties standing in the name of the temples belonged to the
temples and that the position of the manager of the temples was that of a
trustee. Their Lordships further, added that if it had been shown that the
temples had originally been private temples they would have been slow to hold
that the admission of the public in later times possibly owing to altered
conditions would affect the private character of the trusts. In Deoki Nandan V.
Murlidar, this Court observed that the issue 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 private
endowment to the facts found. Therein it was further observed that the
distinction between a public and private endowment is that whereas in the
former the beneficiaries, which means the worshippers are specific individuals
and in the later the general public or class thereof. In that case the
plaintiff sought to establish the true scope of the dedication from the user of
the temple by the public.
In Narayan
Bhagwant Rao Gosavi Balajiwale v. Gopal. Vinayak Gosavi & Ors., this Court
held that the vastness of the temple, the mode of its construction, the long
user of the public as of right, grant of land and cash by the Rulers taken
along with other relevant factors in that case were consistent only with the
public nature of the temple." The above judgment was followed by this
Court in Pratapsinhji N. Desai (supra).
Apart
from the above decisions, learned senior counsel appearing for the appellants
also challenged the correctness of the judgment of the High Court in
interfering with the findings rendered by the Additional Assistant Commissioner
and the Commissioner of Endowments by citing a Indian Charge Chrome & Ors.
[(1994) I SCC 502], The passage relied on by the learned counsel reads as
follows:- "Whenever an appeal is heard it is the duty of the appellate
court to examine the finding of the trial court and if the findings of the
trial court are not correct, to deal, with it." According to the learned
counsel, the High Court failed to do its duty as expected of it. For the same
proposition he also placed reliance on a judgment of the Andhra Pradesh High
Court in Kondamuri Anasuyamma M/s. Distt. Judge,, W.G. Dist at Eluru & Ors.
[AIR 1991 AP 47].
After
going through the facts in detail and the relevant tests laid down by this
Court in various judgments noted above, we find that on the basis of the
materials available in this case. it can fairly be stated that the authorities
(Additional Assistant Commissioner and Commissioner Endowments) had considered
the matter fairly and elaborately to come to a conclusion that the institution
in question is a private one. Equally the High Court on appeal had considered
the evidence exhaustively and arrived at 5 conclusion that the institution in
question is a public religious institution. At this juncture, it must be borne
in mind that the High Court was not handicapped in considering the oral and
documentary evidence as an appellate court though the appeal before the High
Court was second appeal, having regard to the scope of Section 44 of the Act.
It is also not argued before us that the High Court has exceeded its
jurisdiction in appreciating the oral and documentary evidence.
With
this background, let us deal with the factual aspects of the case.
As
noticed earlier, tho conclusion reached by the Addl. Assistant Commissioner was
affirmed on appeal, by the Commissioner. The Commissioner had made a local
inspection before giving his findings on the issues raised before him.
Before
the Cornmissioner, it was conceded that the institution in question was not a
math. The only question argued before the Commissioner was whether the
institution is a temple within the riseaning of the Act or a private
institution. On the basis of the evidence and on the basis of his local
inspection, the Commissioner found that an extent of 1.04 acres was given by
way of gift by Raja of Darpan to the first ancestor of the Petitioners and
another extent of 7.28 acres was given by the Collector, Cuttack;
that
the structures have all the external signs of Hindu temple and in the
subsidiary temples within the premises there are installed different Gods and
Goddesses of Hindu mythology; that the main temple is about 30-40 ft. high;
that
within the premises there is a jhulan mandap and snanan mandap, a Rosaghar for
cooking food for feeding the sisyas and that the idols are of large size built
of either stone or cement'. The Commissioner also found that there was a bhog
shop and bhog articles are supplied to sisyas on payment of cost within the
premises. It was suggested that there was auctioning of bhog shop but the
Commissioner found that in the absence of any evidence by auction purchaser the
same cannot be taken for granted. The Commissioner also found that there is no
sufficient evidence to find that daily rituals are observed in the institution
as are commonly seen in any Hindu temple. On the basis of the evidence, he also
found that the car festival was being observed in the institution at least upto
1960. As regards the resources utilized for the construction of the temple and
installation of idols, the Commissioner was of the view that the evidence
available on record was not adequate to establish that the petitioners were
raising funds from the public by engaging Hundawalls or by issuing appeals. He
also found that the petitioners and their ancestors were given pranamis out of
reverence and that was utilized for the construction of temple and installation
of images. The Commissioner took note of the fact that the petitioners have
stopper conducting the Rathyatra since 1960 and have closed the temple gates
for three years, which did not invoke any protest from public and on that basis
the Commissioner was of the view that the public had visited, the temple not as
of right though they had free access to the premises to worship the deities
installed wherein.
The
Commissioner ultimately found that the institution originated from a samadhi of
a saint and had developed to a place of religious worship; that the premises of
the institution contained large pucca structures which are akin to Hindu
temples and bear ail the external features of such temples including the size
and manner of construction of the building and that the temples accommodate
various deities of Hindu mythology including Jagannatha, Balabhadra and Subhadra
idols installed on the samadhis of the ancestors of the petitioners. Those
deities are worshipped by the outsiders, who offer bhog. The Commissioner found
that the main source of income of the institution was 'Pranami' and 'Dakhin'
received from the sisyas of the petitioners; that the institution used to hold
different Hindu religious festivals like Rathajatra, Dols Jatra, Jhulan Jatra
till 1900 and the members of the public used to participate in such festivals;
that the members of the public freely enter the premises of the institution to
have darshan of the petitioners and to worship the deities in the temple and
offer bhog to them. But no right of use by the members of the public was
established. That the control, regulation and management of the institution had
been with ins petitioners and their ancestors since the time of the founder.
The Commissioner further found that the temple arid other constructions were
not made out of donations raised from the public and that the members of the
public had no control over the management of the institution. On the basis of
this, the Commissioner found, affirming the conclusion of the Addl. Assistant
Commissioner, that the institution was only a private one.
As
against the above conclusions of the Commissioner, the High Court, on a
re-consideration of the evidence, reached just the opposite conclusion. The
High Court found mainly on the basis of the evidence of PW7, who is Petitioner
No.2, that the institution owns 8.50 acres of land out of which an area of 7.28
acres was granted by 'Sarkat' and that the rest of the area consisted of lands
gifted by other people. For coming to this conclusion, the High Court placed
reliance on Exbt. B/1. By referring to R.O.R. (Exbt.2) the High Court was of
the view that the recording of the land in favour of the Samadhi Gosain and
description of Raghubar Das as a marfatdar, on the facts of the case, would
show that the land had been dedicated for the benefit of Hindu public and not
of any private individual or family. Rent free character of the land has
continued upto date and that is a strong cirumstamce which is in favour fo
holding that the land was dedicated for the public benefit. To strengthen the
above conclusion, the High Court referred to Exbt.-A a copy of the objection
filed by one of the predecessors of the petitioner in which it was stated that
many people used to visit Chhatia Bata (premises in question) daily and more so
on festive occasions and that as there was scarcity of water in the area, the
people of the locality held a meeting and passed resolutions for requesting the
Government for permission to excavate a tank on behalf of Chhatia Bata. Only on
the basis of the above representation, the Government accorded permission for
excavation of the tank over the Government land. The High Court, with reference
to Exbt.-E, a receipt book for collection of subscription from the public for
construction of temple at Chhatia Bata was of the view that the petitioners
themselves held out and represented to the public that the institution is a
public temple. Though the Commissioner was of the view that in the absence of
individual concerned with Exbt. E & F had not been examined and those
document is could not be accepted as proof of facts contained therein, the High
Court took the view that the evidence of O.P.W. -9 who speke about those
documents could not be discarded especially petitioner no.1 who was said to be
in the know of things, avoided the witness box.
Though
the petitioner no, 2, as PW-7, gave evidence saying that petitioner no. 1 was
suffering from blood pressure, that was disproved by the evidence of PW-1 who
deposed that the petitioner no.1 was not suffering from any physical infirmity.
The High Court also took note of the fact that though it was admitted on behalf
of the petitioners that they were receiving money as 'Dakshina' from the
devotees, but no account was maintained to support the same. As against the evidence
of PWs to hold that the donations and subscriptions were collected from the
public for construction of the temple and though PW-3, one of the witnesses of
petitioners, had stated that accounts were maintained by Harekrushna Das for
construction of the temple and the accounts have not been produced. The High
Court has taken note of the important features of the temple such as that a
lion's gate abutting the public road and the words 'Chhatia Bata' had written
on the gate. Agains believing the evidence of OPWs, the High Court cane to the
conclusion that the members of the public had free access to the temple. Again
placing reliance on the evidence of PW-7 (petitioner no.2) the High Court took
note of the fact that in the evening some religious discussions used to be held
in the temple and that the Brahmins have been engaged to carry out puja and to
offer bhog to the deities. The High Court was conscious of the fact that there
was no direct evidence of dedication but the evidence adduced in the case was
sufficient to hold that the dedication was for the benefit of the public and
that the Hindu public have been using the temple premises as a place of
religious worhip and offering bhog as of right. We have already set out the
conclusions reached by the High Court on the basis of the oral and documentary
evidence.
In the
light of the diametrically opposite conclusion reached on the main issue as
regards the dedication and the right of the public to worship the temple in
question, the point for consideration will be whether the High Court was
justified in taking the view differing from the Commissioner that the
institution in question is a public temple within the meaning of the Act.
We
have already pointed out that the High Court was considering the appeal under
Section 44 of the Act and that Section did not, in any way, fetter the
jurisdiction of the High Court from going into the facts and appreciating the
evidence. That being the position,if we find as we do that the conclusions
reached by the High Court on re-appreciation of the evidence are not perverse
but supported by evidence, then we feel that we may not be justified in
interfering with the conclusions reached by the High Court while exercising
jurisdiction under Article 136 of the Constitution. No doubt Mr. Nariman,
learned senior counsel appearing for the appellants vehemently argued that the
findings reached by the High Court are perverse and contrary to the evidence
available in the case.
However,
on a careful reading of the judgment under appeal and after perusing the
evidence placed before us, we are unable to hod that the findings of the High
Court are perverse.
In the
earlier portion of this judgment, we have set out the rests laid down by this
Court and other High Courts for considering whether an institution is a temple
as defined in the Act and bearing those tests in mind let us consider whether
the High Court has come to a right conclusion in holding that the institution
in question is a temple as defined in the Act. We must also bear in mind that
the best evidence that could have been made available through the first
petitioner (late Shri Harekrushana Das), both documentary and oral, was not
forthcoming on a lame excuse. PW-7, petitioner no.2, in his deposition has also
said that it was the first petitioner who was in the know of vital things. This
leads one to take an adverse inference and the High Court was right in taking
such adverse inference on vital aspects such as donations raised for the
construction of the temple and other structures by holding out that the
institution was a public temple. We are not adverting to the various tests laid
down by this Court and other High Courts separately as we are satisfied that
broadly speaking, the features of constructions, idols and the festivals held,
as notice by the authorities and the High Court, are sufficient to hold that
the institution in question falls within the definition of temple under the
Act. Wed are also not agreeing with the contention of the learned Senior
Counsel, Mr. Nariman, that the High Court failed to examine the findings of the
authorities below before reversing their conclusions. We are satisfied that the
High Court has elaborately dealt with the Matter and had given reasons for not
accepting the findings of the authorities below.
In the
light of the tests laid down by this Court in several judgments extracted
above, we find that the High Court was right in holding that the institution in
question is a public temple within the meaning of the Act.
In the
result, the appeal fails and is accordingly dismissed. There will be no order
as to costs.
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