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Judgment
M. Duraiswamy, J.—The above appeal arises against the judgment anddecree in O.S. No. 8268 of 1992 on the file ofAssistant Judge, City Civil Court, Chennai.
The Plaintiff in the suit is the Appellant and the Respondents were the Defendants in the suit.
The Plaintiff filed the suit in O.S. No. 8268of 1992 on the file of v. Assistant Judge, City CivilCourt, Chennai to declare that the Plaintiff institutionis outside the scope of provision of Hindu Religious andCharitable Endowments Act 22 of 1959 by setting aside theorder of the Commissioner, Hindu Religious and CharitableDepartment, Chennai passed in A.P. No. 89/90 dated 23.4.1992and for permanent injunction restraining the Defendantsfrom interfering with the administration of the suit temple.
The brief case of the Plaintiff in thesuit is as follows:
(i) According to the Plaintiff, Sri RamaAnjaneya Temple situated in the Teachers'' Colony,Royapettah, Chennai is a private temple. The origin of theinstitution in question is of very recent one. Theinstitution in question is actually located in the privateland belonging to the layout of Teachers'' Colony,Royapettah, Chennai - 14. It was plotted out into 19plots. A portion in the entire lay out was set apartfor the common community purpose. A portion was leftapart for the purpose of laying road. The teachers''colony consisted of teachers, who were working in HinduHigh School, who jointly purchased the plots and plottedout the entire area.
(ii) According to the Plaintiff, the residentsof teachers'' colony have formed an association known as"Teaches Colony Cultural Association" in which, theresidents of Teachers'' colony are members. Similarly, theyhave also formed " Teachers'' Colony Youngmen''s Association''in which, persons residing in teachers'' colony are holdingmembership and taking active part in the activities of theassociation. Though there are two associations, as far asthe temple in question is concerned, it has been established and maintained by the said two associationsout of the funds of the associations.
(iii) According to the Plaintiff, the said templehas been constructed at the end of Teachers'' colony whichhas a blind road end. Even in the lay out, this area wasmeant for community purposes. First, a small deity ofAnjaneya was put in a thatched roof and it was improvedstage by stage. The temple does not own any property. Thesite, over which the temple has been constructed, belongsto the residents of teachers'' colony, who are living inthat area.
(iv) According to the Plaintiff, the temple hasbeen established and being administered and mostlyworshipped by the residents of teachers'' colony. In fact,each day, each house is contributing Rs. 10/-. Members ofteachers'' colony have been in the management andadministration of the temple. It was only the residentsof teachers'' colony, who have been managing andadministering the affairs of the temple from time to time.S.T. Bashyam Iyengar, Secretary of the temple committee, who is the retired teacher from Hindu High School, is doing thepoojas in the temple honorarily and he has been taking onlycertain amounts towards the actual expenses. He aloneattends to the poojas and other services of the temple bothin the morning and in the evening and on festivaloccasions. The temple is under his lock and key. He isincharge of the entire temple affairs. The saidS.T. Bashyam Iyengar opens and closes the temple in themornings and again opens the temple in the evenings andcloses in the late evenings. There is no fixed time forthe temple. The temple is opened according to theconvenience of the residents of teachers'' colony and mainlyit is only the said Bashyam Iyengar, who controls thetimes according to his convenience. The public are allowedto worship in the temple only when the temple is opened. There is no fixed hours. There is no dedication of anyproperty to deity in question nor there is a dedicationfor any public worship. The public cannot enter andworship in the temple as a matter of right. The temple isnot intended for the benefit of the public. The temple isnot used as a place of public religious worship. Further,according to the Appellant, Bashyam Iyengar has put up asmall box in the temple where the residents of the locality put their contribution for meeting the expenses. According to the Appellant, the temple has noDwajasthambam, Rajagopuram and Prakaram. The temple doesnot have ingredients of a public temple.
(v) According to the Plaintiff, when the HinduReligious and Endowment Board wrote a letter dated14.10.1988, calling upon them to show cause why trusteesshould not be appointed, the Secretary sent a reply dated20.10.1988 clearly stating that the temple in question is aprivate temple and that it is outside the scope ofprovisions of Hindu Religious and Endowment. ThePlaintiff filed Original Application in O.A. No. 31 of 1988 before the Deputy Commissioner, Hindu Religious andEndowment Board, Administration Department, Chennai, thesecond Defendant, u/s 63(a) of the Tamil NaduHindu Religious and Endowment Board Act. The Secretaryexamined himself as a witness and has marked Exs. A-1 toA-9. The Deputy Commissioner passed a cryptic order in onepara dismissing the application. As against the order ofthe Deputy Commissioner, the Plaintiff preferred appealbefore the first Defendant u/s 69(1) of the Act. By order dated 23.4.1992, the first Defendant dismissed theappeal. The said order was communicated to the Plaintiffon 25.6.1992.
(vi) According to the Plaintiff, the appellateauthority, the first Defendant, for the first timeconsidered all the documents and has given his own findingswithout and evidence. The first Defendant has notproperly appreciated the scope of definition of section6(2) of the Hindu Religious and Endowment Board Act. Thefirst Defendant failed to see that even in houses, afterpooja, sacred water and Thualsi are being given. It isbased on Hindu custom and it cannot be taken as ingredientto hold that the place in question will become a publictemple. The first Defendant also failed to see thatsimply because in the printed pamphlet the devotees havebeen asked to contribute for the conduct of the ceremony,it will not amount to temple being construed as publictemple and it will not amount to dedication. The firstDefendant also failed to see that there is no fixed workinghours for the temple and the public cannot worship in thetemple as a matter of right. In these circumstances, thePlaintiff filed the suit.
The brief case of the Defendants are as follows:
(i) According to the Defendants, the suit templeis not a private temple. The temple will fall within themeaning and definition of a temple u/s 6(2) ofthe Hindu Religious and Charitable Endowment Act. It isthe place of public worship and a religious institutionunder Section 6(10) of the Act. The Plaintiff hascollected public funds for the construction of the temple. The Plaintiff, who is the Archagar of the temple, isallowing the Hindu public other than the residents of theteachers'' colony to worship in the temple as a matter ofright. The Plaintiff, as a Archakar, is alsodistributing prasadams to the outsider, public andreceiving the kanikkai offered. The public are enteringthe temple as a matter of right. Therefore, the temple isdedicated to the public. The contribution received for theconstruction of the temple and accounts prepared by theprivate auditors would clearly proves the dedication. Nowhere in the accounts there is a mention of the name ofassociation but all accounts and contributions stands in the name of the Deity which clearly proves the dedication. It is a place of public worship and a religious institutionunder Section 6(18) of the Act.
(ii) According to the Defendants, the avermentthat a box for collection of contribution from theresidents of locality is false and it is only a Hundialand that any container collecting money is a Hundial. The orders passed by the Defendants in O.A. No. 31/88 andA.P. No. 89/90 were exercised only under the provisions of Section 63(1) and 69(1) of the Act. The orders were passedbased on records and facts placed by the Plaintiff. Theorder of the Defendants are in accordance with law based onthe oral and documentary evidences.
(iii) According to the Defendants, tickets werealso printed for collection of donations for Sri Ramanavamifestival and a fixed amount of Rs. 10/-was collected fromthe public. This will clearly proves that there isdedication. Not only the residents of the teachers''colony, but also the public, who enter the temple forworship offered their donations in the Hundi. There ispublic participation in the management of the temple. When the property has not been conveyed in favour of the templeby any document, conferring right on them to make use of itfor the purpose of construction of the temple, thecontention of the temple cannot be relied upon. In Hindu Religious and Charitable Endowment Act, a public temple isclearly defined and there is no need to define a privatetemple. The Defendants have properly appreciated the scopeof Section 6(20) of the Hindu Religious and CharitableEndowment Act that the finding and the reasoning arebased on law and facts. In these circumstances, theDefendants prayed for dismissal of the suit.
Before the trial court, on the sidethe Plaintiff, P.W.1 was examined and 18 documents,Exs. A-1 to A-18 were marked and on the side of theDefendants, D.W.1 was examined and no document wasmarked.
The trial court after taking intoconsideration, the oral and documentary evidences of bothsides, dismissed the suit.
Aggrieved over the judgment and decree of the trial court, the Plaintiff, has filed the above appeal.
Heard Mr. R. Subramanian, learned Counselappearing for the Appellant and Mr. T. Chandrasekar, learnedSpecial Government Pleader (H.R. & C.E.) for theRespondents.
On a careful consideration of thematerials available on record and on the submissionsmade by both the counsels, the following points arise for consideration in the above appeal:
(i) Whether the suit temple is apu8blic or private temple?
(ii) Whether the Appellant/Plaintiff isentitled for decree for declaration andinjunction as prayed for in the suit ?
The Appellant/Plaintiff filed the statutorysuit u/s 70 of the Tamil Nadu Hindu Religious andCharitable Endowment Act 22 of 1959 challenging the orderpassed by the first Respondent/first Defendant, confirmingthe order passed by the second Respondent/second Defendant holding that the suit temple is the public temple andrejecting the Appellant''s claim that the temple is aprivate temple. Originally, the suit was filed by oneBashyam Iyenger in the capacity of Secretary of Sri RamaAnjaneya Temple. Pending suit, the said Bashyam Iyengerdied and his son, Kuppusamy, in the same capacity asSecretary, was impleaded as the Plaintiff in the suit.
According to the Appellant/Plaintiff, thesuit temple is actually located in the private landbelonging to the lay out of Teachers'' colony, Royapettah,Chennai. The origin of the institution in question is ofvery recent one. The teachers'' colony consisted ofteachers, who were working in Hindu High School, whojointly purchased the plots and plotted out the entirearea.
13 According to the Appellant, the residents ofteachers'' colony have formed two associations namely,"Teachers'' Colony Cultural Association" and " Teachers''Colony Youngmen''s Association''. As far as the temple inquestion is concerned, it has been established andmaintained by the said two associations out of the funds of the associations. The temple was improvedslowly stage by stage and the temple does not own anyproperty.
According to the Appellant, S.T. BashyamIyengar, Secretary of the temple committee, who was theretired teacher from Hindu High School, was doing thepoojas in the temple honorarily and he was being assistedby his son and other residents of the teachers'' colony andnone else. The temple was managed by Bashyam Iyengar andit was under his lock and key. According to the Appellant,there is no fixed time for the temple. The temple isopened according to the convenience of the residents ofteachers'' colony. There is no dedication of any propertyto the deity in question nor there is a dedication forany public worship. According to the Appellant, publiccannot enter and worship in the temple as a matter ofright. The temple is not intended for the benefit of thepublic. The temple is not used as a place of publicreligious worship. Further, according to the Appellant,S.T. Bashyam Iyengar had put up a small box in the templewhere the residents of the locality put their contributionfor meeting the expenses. According to the Appellant, the temple has no Dwajasthambam, Rajagopuram and Prakaram. The temple does not have ingredients of a public temple. In these circumstance, the Appellant contended that thesuit temple is a private temple.
Based on the report of the Inspector ofHindu Religious and Charitable Endowment Board dated04.08.1988, the Hindu Religious and Charitable EndowmentDepartment sent Ex.A-1 show cause notice dated 6.8.1988 tothe Appellant/Plaintiff stating that the department hasproposed to appoint trustees. Thereafter, theAppellant/Plaintiff filed Original Application in O.A. No. 31of 1988 before the second Respondent u/s 63(a)of the Tamil Nadu Hindu Religious and Endowment Board Actto declare that the temple is not a temple as laid downunder Section 63(a) of the Act.
Before the second Respondent, the Secretaryof the temple committee was examined and 9 documentswere marked. The Inspector of Hindu Religious andCharitable Endowment Department was examined as C.W.1. Thesecond Respondent came to the conclusion that the publicare allowed to worship in the temple without any restrictions and the temple in question is having managedby the residents of teachers'' colony Royapettah mighthave contained people of different communities. Therefore,the temple is not a private temple. The second Respondentultimately dismissed the application.
Aggrieved over the same, theAppellant/Plaintiff preferred appeal in A.P. No. 89/90 on thefile of first Respondent/first Defendant relying upon theevidence of C.W.1, who deposed that there was a Hundial andthere is distribution of Prasadam like sacred water andThulasi after pooja to the worshippers. The firstRespondent also relied upon a printed pamphlet at thetime of consecration ceremony, which has been marked asEx.A-10. At the end of the notice, a request was made tothe devotees to make contribution for the purpose ofconsecration ceremony.
In Ex.A-10 pamphlet, it has been stated as follows:
Though it has been mentioned in Ex.A-10 pamphlet that the first Respondent construed the said word as ''public''. It is pertinent to note that in Ex.A-10 pamphlet the word has not been mentioned. While so, the first Respondent/first Defendant took it as public and found that the public also contributed for the temple.
The first Respondent found failed to provethat the temple committee consists of a group ofindividuals belonging to certain family and theirdescendants and ultimately, came to the conclusion that thetemple is a public temple and dismissed the appeal.
Learned Counsel appearing for the Appellant,in support of his contention, relied upon the followingjudgments:
(i) G. Jayalakshmi and Others Vs. Arulmighu Pazkhikanchiya Vinayagar and Its Temple, , wherein the Hon''ble Apex court held that a temple may be declared as public temple inter alia when a grant is made in favour of the public by the owner of the property although the temple is constructed by a private person, or if the temple is constructed on Government land and if the public in general have a right to worship the deity as contra distinguished from the right of worship in a temple which is confined to a family on community.
(ii) Thanumalayaperumal Mudaliar and Others Vs. The Commissioner, The Hindu Religious and Charitable Endowments (Administration) Department and Others, , wherein the Division Bench of this Court held as follows:
"8 (a) The existence of Moolasthanam,Mahamandapam, Prakaram, idols of chief and otherdeities, utsavamurthi, daily poojas, specialpoojas and procession during festive occasions,worship by the local public belonging todifferent communities without any let orhindrance, are all factors which give the impression that the temple is a public one.
8(b) If the temple is being used as a''place of public religious worship if there isno dedication of the temple to and for thebenefit of the Hindu community or any sectionthereof, if it is not used generally by theHindu community as of right as a place of publicreligious worship, if there is no hundial and nocollections are made from the public for theperformance of any festival connected with thetemple as for its maintenance and no member ofthe public has come forward to say that he hascontributed any amount for the maintenance orany of the related poojas to the deity therein,the temple will not be a public temple, but aprivate one.
8(c) The origin of the temple, the manner inwhich its affairs are managed, the nature andextent of the gifts received by it, rightsexercised by devotees in regard to worshiptherein, the consciousness of the manager, and the consciousness of the devotees themselves asto the public character of the temple, arefactors that go to establish whether a temple isa public or a private one and in each case boththe documentary and oral evidence have to beconsidered as is whole while keeping in view theabove principles.
8(d) An inference whether a religiousinstitution is a pubic one or a private one canbe drawn from the usage and customs of theinstitution or from the mode in which theproperties have been dealt with as also theother established circumstances.
8(e) The essential sine qua non to make atemple a public temple appears to be that thepublic should claim the right to worship thedeity installed therein as of right. If theorigin of the temple is very well-known as aprivate temple, then the clearest possibleevidence is necessary for converting that templeinto a public temple. As worshippers, are naturally welcome and as the sentiment of aHindu would not prevent another from makingofferings or to turn away a worshipper and asthere is an inmate desire in persons in chargeof private temples not to discourage popularityof the deity, the mere circumstance o that thepeople in the locality were visiting the templeand were worshipping the deity may not take awaythe character of the temple from a privatetemple to a public temple. In all such casesworship of outsiders is referable to the leaveand licence granted by the owner and cannot beindicative of any dedication to the public.
8(f) A temple will not be a public templewithin the scope of the Act because in theabsence of an express dedication for thebenefit of the pubic, user by the public as ofright must be established and such user as ofright is far different from the trustees beingwilling to welcome the public to come andworship in the temple. If a temple had nogarbagraham, mahamandapam and if there was no dwajasthambam, no prakaram no hundi and if nokanikai or any collection was made b y templeand if the utsava idols were not taken inprocession in the street then the temple in nota public one.
8(g) If the public do not worship the idolas of right and simply because some poojas areperformed in a temple and certain members of thepublic are allowed to participate in the pooja,the temple cannot be said to be a publictemple."
(iii) 2006(5) CTC 645 (Sri Krishnavilas Bajanai Madam v. The Commissioner, H.R. & C.E., Department, Madras and others), wherein, a Division Bench of this Court held that in the absence of any material whatsoever indicating that pubic had right to participate in the worship or in the bajanai or offer any worship, a document creating a trust can be construed only as a private trust. The Division bench also held that in the absence of a member of public participating in the management or even had right to worship, then same can be construed only as private trust.
(iv) T.D. Gopalan Vs. The Commissioner of Hindu Religious and Charitable Endowments, Madras, , wherein the Hon''ble Apex Court held as follows: " 11. ... 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."
(v) The Bihar State Board Religious Trust, Patna Vs. Mahant Sri Biseshwar Das, , wherein it has been held as follows: "14. Evidence that the mahants used to celebrate Hindu festivals when members of the public used to attend the temple and give offerings and that the public were admitted tothe temple for darshan and worship is also indicative of the temple being one for thebenefit of the public. The celebration offestivals is according to Hindu belief, part andparcel of the pooja of the deity. ..."
(vi) Madras Hindu Religious Endowments Board Vs. V.N. Deivanai Ammal by Power of Attorney agent T.V. Mahalinga Aiyar, , wherein, the Division Bench of this Court held as follows: " In the absence of a deed of dedication it is essential that it should be clearly proved that the temple claimed as a public temple was dedicated to the public. In the case of an old temple, such dedication might be presumed from long user by the public as of right. But in the case of a recently built temple it would be difficult to hold that there has been dedication to the public, in the absence of a deed of dedication. Where no property ahs been dedicated for the upkeep of the temple and the worship is maintained and the expenses are met from out of private funds it is difficult to hold that the temple has been dedicated to the public. In sucha case, merely the fact of the Utsava deity being taken in procession or the fact that members ofthe public were worshipping in the temple, or thatwhen the temple was built kubhabhishekam wasperformed on a grand scale, or a Gurukkal has beenengaged to perform the pooja regularly and thetemple has got a gopuram and other features whichare usually found in a public temple is not ofsufficient weight to prove that there has beendedication to the public."
(vii) The Commissioner, H.R. and C.E. (Admn. Department) and The Assistant Commissioner, H.R. and C.E. Vs. K. Nagarajaodayar, , wherein, the Division Bench of this Court held as follows:
The rules framed under Clause 3 and 5 ofSection 162 of the Act provides for the manner inwhich enquiries should be held. Detailedprocedure is laid down regarding service ofsummons, recording of oral evidence and production fo documents. Rule 20 provides for theapplicability of the Code of CPC asfar as practicable. The Commissioner on the otherhand had decided the title to the propertiessummarily.
(viii) The Commissioner for the Hindu Religious and Charitable Endowments and Another Vs. Swamikeela Arasalwar Dharmam and Others, wherein, it was held as follows:
" ... The mere fact that public is being allowed to participate in the festivals connected with the temple or allowed to worship in the temple could not persuade the court to readily infer therefrom dedication to the public. The crucial test is that the Hindu public or any section thereof must be entitled to use the place as a place of public religious worship, and they must be doing it as of right and not as gratia from the persons in the management. Hence, the Plaintiff trust, its properties and the temple it built cannot come within he mischief of the Act."
(ix) 2003(1) CTC 65 ( The Commissioner, H.R. & C.E. Department, Madras and Anr. v.T.S. Palanichammy and others), wherein, the Division Bench of this Court held that the mere fact that the members of the public are allowed to worship by itself would not make an endowment a publicunless it is proved that the members of the public had a right to worship in the temple.
On a perusal of the order passed by thesecond Respondent/second Defendant in O.A. No. 31/88, itcould be seen that the second Respondent failed to takeinto consideration, the documents marked on the side ofthe Appellant/Plaintiff. That apart, he has not takeninto consideration the oral evidences of C.W.1 and P. Ws. However, the second Respondent came to the conclusion thatthe suit temple is not a private temple. On appeal by theAppellant, the first Respondent relied upon Ex.A-10,printed invitation, for the purpose of consecrationceremony and also found that there was a Hundial in thesuit temple and ultimately the first Respondent confirmedthe order of the second Respondent.
Aggrieved over the orders passed by theRespondents, the Appellant has filed the statutorysuit in O.S. No. 8268 of 1992 on the file of v. AssistantJudge, City Civil Court, Chennai. The trial court alsorelied upon Ex.A-10, printed pamphlet wherein, as already stated, only the devotees were called upon to make donations and not the public as found by the trial court.
The consistent case of the Appellant is thatonly the residents of the teachers'' colony are allowed toworship the deity and the public are not allowed toworship the temple as a matter of right. According to theAppellant, only the association of the teachers'' colony ismanaging the temple. The very reading of Ex.A-10 wouldshow that only the devotees were requested to makecontributions for the temple ceremony. The trial court completely misconstrued the word ''gf;jh;fs;'' for public and erroneously cam to the conclusion that public also contributed for the ceremony.
From the principles laid down in the abovereferred judgments, it could be seen that the test todetermine on facts of each case, whether a temple is aprivate or a public temple are (i) whether the user of thetemple by members of the public is of right; (ii) whetherthe control and management vests either in a large body ofpersons or within the members of the public and the founderdoes not retain any control over the management; (iii)whether the dedication of the properties is made by the founder who retain the control and management and whetherthe control and management of the temple is also retainedby him; and (iv) where the evidence shows that the founderof the endowment did not make any stipulation for offeringsor contributions to be made by the members of the publicto the temple, this would be an important intrinsiccircumstance to indicate the private nature of theendowment.
It is not in dispute that the suit templesituate in a private land. It is also not the case of theRespondents that the land belongs to them. The specificcase of the Appellant is that a portion of the lay out wasset apart for the common community purpose at the time ofplotting out the lands. Therefore, it is clear that thetemple was constructed only in the land belonging to theresidents of the teachers'' colony.
With regard to placing of hundial in thetemple, the Appellant contended that no hundial was placedin the temple and only a small box was placed to collectthe contribution from the residents of the colony. However, the Respondents contended that public also contributed in the said hundial. P.W.1 in his evidencespecifically stated that the said box was not placed forcollecting the donations from the public and it was placedonly for collating the contributions from the residents ofthe colony. However, no public was examined on the sideof the Respondents to prove that public also made theircontributions in the hundial.
D.W.1, who was working as Inspector in H.R. &C.E., Department, in her evidence deposed that according toher assessment, the suit temple is a public temple. However, in the cross examination she admitted that she didnot examine and worshippers in the temple at the time ofher inspection. Therefore, even without examining orenquiring the worshippers in the temple, D.W.1 came to theconclusion that the suit temple is a public temple. Further, the dispute with regard to the temple arose in theyear 1988. D.W.1 was appointed as Inspector in H.R. & C.E.,Department only in the year 1995. Therefore, it is clearthat she was not working as an Inspector in the Inspectorin H.R. & C.E., Department during the relevant period.
It is not in dispute that generally the burden of proof is on the Plaintiff to prove the case. But, in the case of dispute with regard to the status ofthe temple, whether it is a public temple or a privatetemple, the burden is on the Hindu Religious andCharitable Endowment Department to prove that the temple isa public temple.
As laid down in the above referred judgmentsit is clear that the Hindu Religious and CharitableEndowment Department ought to have examined the public inorder to prove that the temple is the public temple.
In the case on hand, they miserably failed toexamine any public. In fact, they have examined only theInspector of Hindu Religious and Charitable EndowmentDepartment as D.W.1. When the Appellant consistentlypleaded that the public are not allowed to worship thedeity as a matter of right, the Respondents ought to haveexamined atleast one member of the public to prove that thepublic are allowed to worship the deity as a matter ofright. In the present case, they have not examined anypublic to substantiate their contention.
In the present case, there was no grantmade in favour of the public by the owner of theproperty although the temple was constructed byprivate individuals. The temple is not constructed onthe Government land. The right to worship the deityis confined to the residents of the teachers'' colony. There is nothing on record to show that the public haveright to worship the deity. Further, there is nodedication of the temple to the public. Further, thetemple is of very recent origin and in the case of a recently built temple, it would be difficult to hold thatthere has been dedication to the public, in the absence ofa deed of dedication. That apart, no property has beendedicated for the upkeep of the temple and the temple ismaintained and the expenses are met from out of privatefunds therefore, it is difficult to hold that the templehas been dedicated to the public.
Rules framed under Clause 3 and 5 of Section162 of the Hindu Religious and Charitable Endowment Actprovides for the manner in which enquiries should be held. Detailed procedure is laid down regarding service of summons, recording of oral evidence and production ofdocuments. Rule 20 provides for the applicability of theCode of Civil Procedure. In the case on hand, theRespondents without following the due procedure passed theorders holding that the suti temple is a public temple.
In The Bihar State Board Religious Trust, Patna Vs. Mahant Sri Biseshwar Das, , the Hon''ble Apex court held that the the dedication to public cannot be readily inferred from the mere fact that members of public are freely admitted to the temple for worship or for attending festivals celebrated in the temple. Further, there is nothing on record to show that the Appellant received donations from the public for the purpose of celebrating the festivals and also to manage the temple. The Appellant specifically pleaded that the residents of the colony used to contribute Rs. 10/-each day for the management of the temple.
As per Section 6(20) of the Hindu Religiousand Charitable Endowment Act 1959, a temple means a placeby whatever designation known, used as a place of publicreligious worship and dedicated to, or for the benefit of, or used as of right by, the Hindu community or of any section thereof, as a place of public religious worship.
From the above discussion, it is clear thatthe suit temple does not fit into Section 6(20) of theHindu Religious and Charitable Endowment Act to be termedas public temple.
With regard to the distribution of prasadamslike sacred water and thulasi, it is common that even inhouses, after performing poojas, Hindus used to distributeprasadams. So, merely by distributing sacred water andthulasi, the temple will not become a public temple. Inthe absence of dedication to the public and by nonexamination of any public by the Hindu Religious andCharitable Endowment Department, the Respondents miserablyfailed to establish that the suit temple is a publictemple. It is also an admitted fact that the templecommittee consist of only the residents of the teachers''colony and no public were allowed to participate in thecommittee at any point of time. It also provs that thesuit temple is a private temple and not a public temple.
As already stated, no independent witness ormember of the public has come to state that he wasvisiting the temple as of right and performing poojapursuant thereto. The mere presumption of worshippers oncertain occasions by itself is not conclusive to show thatthe generality of the public were having ingress into thetemple as of right. Further, if a person alleges that aparticular religious institution is a public temple, it isfor him to establish it. The Appellant alleged that itis a private temple and that they have also established byreasonable oral and documentary evidence that it is such aninstitution. On the contrary, the Respondents, who allegedthat the suit temple is a public temple, failed todischarge the onus of proof.
It is also not in dispute that the temple isunder the lock and key of the Appellant/Plaintiff i.e,previously with Bashyam Iyengar and after his death, withhis son Kuppusamy, the Appellant herein. The temple isopened according to the convenience of the residents of theteachers'' colony. There is no fixed hours for opening andclosing the temple. Further, there is no Dwajasthambam, Rajagopuram and Prakaram in the temple. The temple hasbeen maintained by the contribution made by the residentsof the teachers'' colony. All these ingredients clearlyprove that the temple is meant only for the residents ofthe teachers'' colony and not to the public as a matter ofright.
In these circumstances, I hold that thesuit temple is a private temple. Therefore, thejudgment and decree of the trial court are liable to beset aside and the Appellant is entitled to a decree fordeclaration and permanent injunction as prayed for.
Accordingly, the judgment and decree inO.S. No. 8268 of 1992 on the file of v. AssistantJudge, City Civil Court, Chennai are set aside. Thesuit in O.S. No. 8268 of 1992 on the file ofAssistant Judge, City Civil Court, Chennai is decreedas prayed for. The above appeal is allowed. Consequently, connected miscellaneous petition is closed. However, there shall be no order as to costs.