Ram Jankijee
Deities & Ors Vs. State of Bihar & Ors [1999] INSC 196 (11 May 1999)
M. Jagannadha
Rao, Unesh C. Banerjee BANERJEE, J.
The
core question that falls for consideration in this appeal, by the grant of
special leave, is whether a Deity being consecrated by performance of
appropriate ceremonies having a visible image and residing in its abode is to
be treated as a juridical person for the purpose of Bihar Land Reforms
(Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 (Bihar Act
XII of 1962). On a reference to the factual backdrop, the records depict, that
one Mahanath Sukhram Das did execute two separate deeds of dedication in
December, 1950, and duly registered under the Indian Registration Act,
dedicating therein the landed properties to the deities `Ram Janki Ji'
(Appellant No.1) and Thakur Raja (wrongly described in the records of the High
Court as `Raja Rani') (Appellant No.2). Both the deities were separately given
the landed property to the extent of 81.14 acres of land and in fact were put
in possession through the shebaits. After however the death of the aforesaid Mahanth
Sukhram Das, Petitioner No.3 became the shebait of both the deities. The
properties of the deities were also duly registered and enlisted with the
Religious Trust Board and the same are under the control and guidance of the
Board.
Be it
noted that both `Ram Janki Ji' and `Raja Rani' (for convenience sake since the
High Court referred to the deity as such in place and stead of Thakur Raja) are
located in two separate temples situated within the area of the land.
On the
basis of an Inquiry Report, the Deputy Collector in the matter of fixation of
Ceiling Area by his order dated 18th November, 1976 in Ceiling Case No.222/76-77 allowed two units to the
Deities, on the ground that there are two temples to whom lands were gifted by
means of separate registered deeds of Samarpan namas and declared only 5 acres,
as excess land, to be vested on to the State. The Collector of the District
however, came to a conclusion different to the effect that mere existence of
two temples by itself can not be said to be a ground for entitlement of two
separate units under the Act, since the entire property donated to the two
units are being managed by a committee formed under the direction of the
Religious Trust Board and prior conferment of the managerial right to only one
person and there being no evidence on record to show that the property donated
to the deities are to be managed separately, having separate account, question
of recommendation for exemption under Section 5 and entitlement of two units
would not arise. As a matter of fact the Collector passed an order recording
therein that the entitlement of the trust would be one unit only. The Revision
Petition subsequent thereto however was rejected though on the ground of being
hopelessly barred by the laws of limitation. The records depict that against
the order of the Member Board of Revenue, wherein the rights and contentions of
the petitioners to hold two units for two separate deities were rejected, the
petitioner moved the Patna High Court in Writ Petition 5020 of 1984 for
quashing of the orders passed by the Collector and Member Board of Revenue. The
record further depicts that the High Court on 19th November 1984 allowed the Writ Petition and granted the relief of two
units as claimed by the petitioner. The judgment of the High Court became final
and binding between the parties by reason of the factum of there being no
appeal therefrom. Subsequently however, after about two years a Writ Petition
was filed before this Court under Article 32 of the constitution being Civil
Writ No.52563 of 1985 (Badra Mahato vs. State of Bihar) wherein one Badra Mahato
prayed for issuance of a mandatory order as regards the allotment order in favour
of the petitioner (the aforesaid Badra Mahato). This Court, however, remitted
the matter to the High Court with a direction that the petition before this
Court be treated as a Review Petition before High Court and be disposed of
accordingly. On 21st October, 1987 in terms of the direction of this Court the
Division Bench of the High Court directed that the matter should be placed
before the Division Bench on 23rd November 1987 subject to any part heard
matter and on 25th November, 1987 as the chronology depicts the Review Petition
was allowed and the order dated 19th November, 1984, was recalled. The matter
was, however, directed to be listed before the appropriate Bench on 4th December, 1987. The matter was not however placed
in the list or heard for over two years and finally the matter came up for
hearing before the learned Single Judge who in turn has rejected the contention
of the petitioner and hence the appeal before this Court. Before proceeding
with the matter any further, it would be convenient to note that while on a
review of the order, the Division Bench of the High Court has been pleased to
recall its earlier order dated 19th November, 1984, but the observations
pertaining to the entitlement of two idols seems to be apposite. The High Court
in its order dated 19th
November, 1984
observed:
"....This
aspect of the matter has been considered by a Bench of this Court in the case
of Shri Lakshmi Narain and others vs. State of Bihar and others (1978 BBCJ 489)
where it has been pointed out that once endowment is separate in the name of
separate deities the legal ownership under the endowment vests in idols; the
matter would have been different if the endowment was to any Math in which
there were two deities. From the order of the learned Collector itself it
appears that the two endowments were made by name of the two deities on whose
behalf claims have been made.
It is
settled by several pronouncements of the Judicial Committee that under the
Hindu Law images of the deities are juristic entities with the capacity of
receiving gift and holding property. As such, when the gift is directly to an
idol, each idol or deity holds it in its own right to be managed either by
separate managers or by a common manager.
..............
.............." It is on this score that Mr. Goburdhan, the learned
Advocate appearing in support of the appeal very strongly criticised the
judgment of the learned Single Judge both on the count of not being sustainable
as per the provisions of Hindu law as also on the question of propriety. Mr. Goburdhan
contended that there is a Division Bench judgment recording therein the
entitlement of the Appellants for exemption and judicial propriety requires one
learned Single Judge to follow a binding precedent of an earlier Division Bench
judgment from the same High Court and more so, in the same matter. The issue as
a matter of fact according to Mr. Goburdhan was no longer res integra and open
for further discussion but the learned Single Judge went on to decide the issue
once again not withstanding the earlier finding as regards Idols' entitlement.
We are constrained to record that we find some justification for such a
criticism. It is true that the earlier Division Bench's order stands recalled
and strictly speaking there may not be any necessity to refer to the same, but
when there was an existing order of the Division Bench, judicial propriety
demands that the learned Single Judge dealing with the matter ought to have
referred to the same, more so when a contra view is being expressed by the
learned Judge. It is a matter of judicial efficacy and propriety though not a
mandatory requirement of law. The court while deciding the issue ought to look
into the records as to the purpose for which the matter has been placed before
the court. We are rather at pains to record here that judicial discipline ought
to have persuaded the learned Single Judge not to dispose of the matter in the
manner as has been done, there being no reference even of the earlier order.
Before proceeding with the matter any further apropos the judgment under
appeal, it would be convenient to note however that Hindu law recognizes Hindu
idol as a juridical subject being capable in law of holding property by reason
of the Hindu Shastras following the status of a legal person in the same way as
that of a natural person. The Privy Council in the case of Pramatha Nath Mullick
vs. Pradyumna Kumar Mullick & Anr LR 52 IA 245 observed:
"One
of the questions emerging at this point, is as to nature of such an idol, and
the services due thereto. A Hindu idol is, according to long established
authority, founded upon the religious customs of the Hindus, and the
recognition thereof by Courts of law, a "juristic entity." It has a
juridical status with the power of suing and being sued. Its interests are
attended to by the person who has the deity in his charge and who is in law its
manager with all the powers which would, in such circumstances, on analogy, be
given to the manager of the estate of an infant heir. It is unnecessary to quote
the authorities; for this doctrine, thus simply stated, is firmly established.
A
useful narrative of the concrete realities of the position is to be found in
the judgment of Mukerji J. in Rambrahma Chatterjee vs. Kedar Nath Banerjee
[1922 (36) CLJ 478/483] "We need not describe here in detail the normal
type of continued worship of a consecrated image - the sweeping of the temple,
the process of smearing, the removal of the previous day's offerings of
flowers, the presentation of fresh flowers, the respectful oblation of rice
with flowers and water, and other like practices. It is sufficient to state
that the deity is, in short, conceived as a living being and is treated in the
same way as the master of the house would be treated by his humble servant.
The daily
routine of life is gone through with minute accuracy; the vivified image is
regaled with the necessaries and luxuries of life in due succession, even to
the changing of clothes, the offering of cooked and uncooked food, and the
retirement to rest." The person founding a deity and becoming responsible
for these duties is de facto and in common parlance called shebait. This
responsibility is, of course, maintained by a pious Hindu, either by the
personal performance of the religious rites or - as in the case of Sudras, to
which caste the parties belonged - by the employment of a Brahmin priest to do
so on his behalf. Or the founder, any time before his death, or his successor
likewise, may confer the office of shebait on another." The only question
that falls for consideration is whether `Ram Jankiji' and `Raja Rani' can be
termed to be Hindu deities and separate juristic entities and it is on this
score the learned Judge in the judgment under appeal observed: ".....The
image of the deity is to be found in Shastras. `Raja Rani' is not known to Shastras.
It is unknown in Hindu Pantheon. It is a particular image which is a juristic
person. Idol is again an image of the deity.
There
cannot be a dedication to any name or image not recognised by the Shastras. Here,
in the present case, the petitioners assert that the dedication is to both the
deities `Raja Rani' but none of these have been recognised by the Shastras.
......................
11.
The petitioners contended that the Raja Rani are the deities under the Hindu
Pantheon. The Upanishads are the highest sacred books of the Hindus. It was
admitted that in Kaushitaki-Brahamana-Upanishad, IInd Chapter `sloka 1' as
translated in Hindi by Pt. Sriram Sharma Acharya, in the book styled as `108 Upnishads',
the following has been said : - "It is the statement of Rishi Kaushitaki
that soul is God and the soul God is imagined as a king and the sound is his
queen."
12.
The above translation has been seriously challenged by the respondents-Parcha-holders.
It may
be noticed that Pt. Sriram Sharma Acharya is not an authority on the subject
....".
We are
afraid the entire approach of the learned Single Judge was on a total misappreciation
of the principles of Hindu law. Divergent are the views on the theme of images
or idols in Hindu Law. One school propagates God having Sayambhu images or
consecrated images:
the
other school lays down God as omnipotent and omniscient and the people only
worship the eternal spirit of the deity and it is only the manifestation or the
presence of the deity by reason of the charm of the mantras: Images according
to Hindu authorities, are of two kinds: the first is known as Syambhu or
self-existent or self-revealed, while the other is Pratisthita or established.
The Padma Purana says: "the image of Hari (God) prepared of stone earth,
wood, metal or the like and established according to the rites laid down in the
Vedas, Smritis and Tantras is called the established images.....where the self-
possessed Vishnu has placed himself on earth in stone or wood for the benefit
of mankind, that is styled the self-revealed." (B.K. Mukherjea - Hindu Law
of Religious and Charitable Trusts: 5th Edn.) A Sayambhu or self-revealed image
is a product of nature and it is Anadi or without any beginning and the
worshippers simply discover its existence and such images do not require
consecration or Pratistha but a manmade image requires consecration. This
manmade image may be painted on a wall or canvas. The Salgram Shila depicts Narayana
being the Lord of the Lords and represents Vishnu Bhagwan. It is a Shila - the shalagram
form partaking the form of Lord of the Lords Narayana and Vishnu.
It is
further to be noticed that while usually an idol is consecrated in temple, it
does not appear to be an essential condition. In this context reference may
also be made to a decision of the Andhra Pradesh High Court in the case of Addangi
Nageswara Rao vs. Sri Ankamma Devatha Temple. [(1973) 1 A.W.R. 379] The High Court in paragraph 6 of the
Report observed:-
6. The
next question to be considered is whether there is a temple in existence.
`Temple as defined 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 section thereof as a place of public
religious worship.
That
is the definition by the Legislature to the expression `temple' in Act (II of
1927), Act (XIX of 1951) and Act (XVII of 1966). Varadachariar, J., sitting
with Pandrang Row, J., in H.R.E. Board vs. Narasimham (1939 (1) MLJ 134)
construing the expression `a place of public religious worship' observed:
"The
test is not whether it conforms to any particular school of Agama Shastras. The question must be decided with reference to the view of
the class of people who take part in the worship. If they believe in its
religious efficacy, in the sense that by such worship they are making
themselves the object of the bounty of some super-human power, it must be
regarded as "religious worship".
To the
same effect was the view expressed by Viswanatha Sastry, J., in T.R.K. Ramaswami
Sarvai and another vs. The Board of Commissioner for the Hindu Religious
Endowments, Madras (ILR (1950) Madras 799) "The presence of an idol,
though it is an invariable feature of Hindu temple, is not a legal requisite
under the definition of a temple in Section 9(12) of the Act. If the public or
that section of the public who go for worship consider that there is a divine
presence in a particular place and that by offering worship there they are
likely to be the recipients of the blessings of God, then we have the essential
features of a temple as defined in the Act." A Division Bench of this
Court consisting of Justice Satyanarayana Raju (as he then was) and Venkatesam,
J., in Venkataramana Murthi vs. Sri Rama Mandhiram (1964 (2) An. W.R. 457)
observed that the existence of an idol and a Dhwajasthambham are not absolutely
essential for making an institution a temple and so long as the test of public
religious worship at that place is satisfied, it answers the definition of a
temple.
Their
Lordships of the Supreme Court in P.F.Sadavarthy vs. Commissioner, H.R. &
C.E. (AIR 1963 SC 510) held:
"A
religious institution will be a temple if two conditions are satisfied. One is
that it is a place of public religious worship and the other is that it is
dedicated to or is for the benefit of, or is used as of right by the Hindu
Community, or any section thereof, as a place of religious worship." To
constitute a temple it is enough if it is a place of public religious worship
and if the people believe in its religious efficacy irrespective of the fact
whether there is an idol or a structure or other paraphernalia. It is enough if
the devotees or the pilgrims feel that there is some super human power which
they should worship and invoke its blessings." The observations of the
Division Bench has been in our view true to the Shastras and we do lend our
concurrence to the same. If the people believe in the temples' religious
efficacy no other requirement exists as regards other areas and the learned
Judge it seems has completely overlooked this aspect of Hindu Shastras - In any
event, Hindus have in Shastras "Agni" Devta; "Vayu" Devta -
these deities are shapeless and formless but for every ritual Hindus offer
their obalations before the deity. The Ahuti to the deity is the ultimate - the
learned Single Judge however was pleased not to put any reliance thereon. It is
not a particular image which is a juridical person but it is a particular bent
of mind which consecrate the image. One cardinal principle underlying idol
worship ought to be borne in mind: "that whichever god the devotee might
choose for purposes of worship and whatever image he might set up and
consecrate with that object, the image represents the Supreme God and none
else. There is no superiority or inferiority amongst the different gods. Siva,
Vishnu, Ganapati or Surya is extolled, each in its turn as the creator,
preserver and supreme lord of the universe. The image simply gives a name and
form to the formless God and the orthodox Hindu idea is that conception of form
is only for the benefit of the worshipper and nothing else." (B.K. Mukherjea
- on Hindu Law of Religious and Charitable Trusts - 5th Edn.).
In
this context reference may also be made to an earlier decision of the Calcutta
High Court in the case of Bhupatinath vs. Ramlal Maitra (ILR (37) Calcutta 128)
wherein Chatterjee,J. (at page 167) observed:- "A Hindu does not worship
the "idol" or the material body made of clay or gold or other
substance, as a mere glance at the mantras and prayers will show. They worship
the eternal spirit of the deity or certain attributes of the same, in a
suggestive form, which is used for the convenience of contemplation as a mere
symbol or emblem. It is the incantation of the mantras peculiar to a particular
deity that causes the manifestation or presence of the deity or according to
some, the gratification of the deity." God is Omnipotent and Omniscient
and its presence is felt not by reason of a particular form or image but by
reason of the presence of the omnipotent: It is formless, it is shapeless and
it is for the benefit of the worshippers that there is manifestation in images
of the Supreme Being.
`The
Supreme Being has no attribute, which consists of pure spirit and which is
without a second being, i.e. God is the only Being existing in reality, there
is no other being in real existence excepting Him - (see in this context Golap
Chandra Sarkar, Sastri's Hindu Law: 8th Edn.). It is the human concept of the
Lord of the Lords - it is the human vision of the Lord of the Lords: How one
sees the deity:
how
one feels the deity and recognises the deity and then establishes the same in
the temple upon however performance of the consecration ceremony. Shastras do
provide as to how to consecrate and the usual ceremonies of Sankalpa and Utsarga
shall have to be performed for proper and effective dedication of the property
to a deity and in order to be termed as a juristic person. In the conception of
Debutter, two essential ideas are required to be performed: In the first place,
the property which is dedicated to the deity vests in an ideal sense in the
deity itself as a juristic person and in the second place, the personality of
the idol being linked up with natural personality of the shebait, being the
manager or being the Dharam karta and who is entrusted with the custody of the
idol and who is responsible otherwise for preservation of the property of the
idol. The Deva Pratistha Tatwa of Raghunandan and Matsya and Devi Puranas
though may not be uniform in its description as to how Pratistha or
consecration of image does take place but it is customary that the image is
first carried to the Snan Mandap and thereafter the founder utters the Sankalpa
Mantra and upon completion thereof, the image is given bath with Holy water,
Ghee, Dahi, Honey and Rose water and thereafter the oblation to the sacred fire
by which the Pran Pratistha takes place and the eternal spirit is infused in
that particular idol and the image is then taken to the temple itself and the
same is thereafter formally dedicated to the deity. A simple piece of wood or
stone may become the image or idol and divinity is attributed to the same. As
noticed above, it is formless, shapeless but it is the human concept of a
particular divine existence which gives it the shape, the size and the colour.
While
it is true that the learned Single Judge has quoted some eminent authors but in
our view the same does not however, lend any assistance to the matter in issue
and the Principles of Hindu Law seems to have been totally misread by the
learned Single Judge. On the factual score there are temples- In one there is `Jankijee'
and in the second there is `Raja Rani' but by no stretch of imagination, the
Deity can be termed to be in fake form and this concept of introduction of fake
form, it appears is a misreading of the provisions of Hindu Law Texts. What is
required is human consecration and in the event of fulfilment of rituals of
consecration, Divinity is presumed: There cannot be any fake deity: whole
concept of Hindu Law seems to have been misplaced by the High Court. In more or
less a similar situation Patna High Court in the case of Shri Lakshmi Narain
& Ors vs. State of Bihar & Ors (1978 BBCJ 489) observed: .......................
"5. In this court Mr.
Balbhadra
Pd. Singh, learned counsel appearing in support of the application, strongly
contended that the Revenue authorities have entirely misdirected themselves in
allowing only one unit to the petitioners under an erroneous impression that
they being installed in only one temple and there being only one document of
endowment in their favour, they could not get more than one unit. Learned
counsel contended that as a matter of fact, all the four deities were entitled
to separate units in their own rights, notwithstanding the fact that no
specified properties were endowed to them separately and that the endowment was
made in their favour jointly.
9. On
consideration of the facts of this case and the relevant position in point of
law, I come to the conclusion that all the four petitioners are separate jurisdic
entities, properties being endowed to them just like any other human being.
Learned counsel appearing for the respondents rightly conceded that had it been
a gift to four individuals, they were entitled to four units separately each of
them being a `land-holder' within the meaning of clause (g) of Section 2 of the
Act and entitled to a separate unit. If that be so, I do not see any reason for
taking a view that the position should be different as the beneficiaries in
this case are idols. It could not be conceded that all the four petitioners
would constitute one `family' within the meaning of section 2 (ee) of the Act.
The
definition of `family' in section 2 (ee) is as follows:- " ` Family' means
and includes a person, his or her spouse and minor children." Even
applying the above rigid test laid down in the Act, the first two petitioners,
namely, Shri Lakshmi Narain and Shri Mahabirji must be treated as separate units.
And even assuming that the fourth petitioner, namely, Shri Parbatiji is
considered to be a spouse of the third petitioner namely, Shri Shivajee, even
then both these petitioners were entitled to one unit. In that view of the
matter, the petitioners were entitled to at least three units, being in the
same position of Hindu co-parceners and, therefore, separate `land holder' or
"families" in the eye of law. The petitioners had, however, claimed
only two units before the Revenue authorities. It is, therefore, not possible
to grant them any larger relief of more than two units. Their purpose also will
be served if only two units are allowed to them as the surplus land declared in
this case is a little over 20 acres only.
It is
needless to point out that even though admittedly there are two idols, but the
learned Single Judge thought it fit to ascribe one of them as fake, which in
our view is wholly unwarranted an observation and the finding devoid of any
merit whatsoever. Quotations from English Authors unfortunately are totally
misplaced and the meaning misappreciated. The quotes are not appropriate and
not apposite, as such we refrain ourselves from dilating thereon.
In the
view as above, The factum of two idols cannot be denied and as such question of
deprivation of another unit to the second idol does not and cannot arise. As
regards the provisions of the statute, be it noted that there is no amount of
controversy involved that in the event there are two idols capable of being
ascribed of juridical personality, two units ought to be granted rather than
one as has been effected by the learned Single Judge. We thus feel it expedient
to record that petitioner Nos.1 and 2 (or Thakur Raja as the case may be) are
entitled to individual grant and thus entitlement for two units to be noted in
the records of the Government and exemption of 75 acres Taal land only would be
made available to the Petitioners and the balance 5 acres of land be made
available to the Government and the State Government would be at liberty to
deal with the above noted five acres of land in accordance with the law. Since
no other issue was raised before us. The appeal is allowed. The order of the
High Court stands set aside and quashed. No order however as to costs.
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