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Judgment
Y. Bhaskar Rao, J.—The plaintiff-Mutt is the appellant. The suit is filed for a declaration that the plaintiff-mutt is a private religious institution not subject to control and management by the endowments department and for setting aside the order dated 24-9-76 of the Dy. Commissioner of Endowments holding that the plaintiff-Mutt is a Hindu Public Religious Institution within the meaning of the definition given u/s 2(22) of the A.P. Charitable and Hindu Religious Institutions and Endowments Act, 17 of 1966.
The facts of the case in brief are: Srimad Abhinava Ranganatha Mandiram at Hindupur is a religious institution and a branch of the plaintiff-Mutt. During 1961 Sri Swamiji of the plaintiff-Mutt was proceeding on a tour and visited the Hindupur Mutt en route. The Swamiji having found that a large number of disciples of the Hindupur Mutt are interested in religious discourses and there was no proper place for their congregation felt the need for construction of a mandiram and accordingly gifted the Padakanukas and nominated some of the disciples to proceed ahead with the construction. Pursuantly the Mandiram was constructed by 1966. Swamiji also visited the Mandiram and sanctified it. He also declared it to be a branch of Parakala Mutt. The Swamiji named the mandiram as ''Srimad Abhinava Ranganatha Mandiram''. The disciples also unequivocally declared the Mandiram to be a branch of Parakala Mutt of Mysore. The disciples have also accepted at the instance of Swamiji to run the plaintiff-Mutt independent of Parakala Mutt control. These facts were also reduced into writing on 13-2-1966 as a declaration signed by the disciples. The Mandiram is established for propagation and spread of Visishta Advaita Philosophy and as an appurtenant to Parakala Mutt. The Swamiji nominates five members among the local disciples from time to time for the management of the Mandiram. The Mandiram is maintained by the rents received from the two shops attached thereto. The Mandiram contains the Padukas of Swamiji and photos of Lakshmi, Hygreeva, Sr Rama, Andal, etc. and does not contain any of the characteristics of a public temple, such as Prakaram, Dwajastambham, Bali peetam, etc. The main Parakala Mutt has been recognised as a major institution by the Government of Karnataka and is exempt from registration under any statute in force in Mysore in respect of Religious and Charitable Institutions. The plaintiff-Mutt is always treated as a private religious institution and there is no dedication of any properties for public purposes. Padukaradhana will be conducted during morning and evening hours and Bhajans and religious discourses are held as Kalakshepam during Dhanur-masam. The Mutt is held as a place of congregation for advocating the tenets of Sri Visishta Advaita Philosophy and not as a public or religious institution. So much so, no part of public funds are utilised for the up-keep and maintenance of the mandiram and that the mandiram is not a religious institution falling within the ambit of the provisions of the A.P. Charitable and Hindu Religious Institutions and Endowments Act, 1966. While so, on 22-9-1972 the Asst. Commissioner of the Endowments Department issued a notice calling upon the plaintiff-Mutt to register it u/s 38 of the Endowments Act, 1966. Pursuantly at the instance of the plaintiff-Mutt the Joint Commissioner directed that the plaintiff has to place the controversy before the Deputy Commissioner Kurnool. Accordingly the plaintiff filed a petition, O.A. 31/73, before the Dy. Commissioner, who through his orders dated 24-9-76 declared the plaintiff institution to be a public religious institution within the meaning of Section 2(22) of the Endowments Act. It is in the wake of this order the institution filed the present suit.
The first defendant Dy. Commissioner filed a written statement stating that the plea that the plaintiff-Mutt is a branch of Parakala Mutt is not true, that the averment that in 1961 at the suggestion of Swamiji the idea of constructing the mandiram came to be considered could not be correct since even long prior to 1961 the site was purchased, that even assuming that the Swamiji made over the Padakanukas which are his personal funds, it cannot be said that the mandiram is a branch of Parakala Mutt, that admittedly no funds from Parakala Mutt have been diverted to the present Mandiram, that there is no declaration by the disciples to the effect that tine present Mandiram is a branch of Parakala Mutt and that the declaration appears to be brought into existence having been antedated, that the mandiram is a pure and simple place of worship where the pictures of several deities are installed and regular poojas are performed and people of all walks of life and opinions who believe the spiritual sanctity of the presiding deity are freely allowed to partake in the worship with all the prescribed religious rites being regularly performed, that contributions small and big were accepted from all devotees irrespective of their belief in Visishta Advaita philosophy, that the entry to the mandiram is not restricted to any section of devotees who believe in any particular philosophy, that regular processions of the deities are taken out and kainkaryams are regularly performed and all Hindu devotees are freely allowed into the premises, that the institution has its own moveable and Immovable properties and does not receive any help from the plaintiff''s mutt, that the absence of certain traditional insignia does not take away the mandiram from the fold of religious institution, that even if the Mutt in Mysore is exempt from registration under the relevant statutes in Karnataka, that cannot extend to the Mandiram in our State, that the institution and its property are by practice dedicated to the public and that the order of the Dy. Commissioner does not call for any interference.
On the above pleadings, the trial Court framed the relevant issues. Thereafter the plaintiff examined P.Ws. 1 to 8 and marked Exs. A-l to A-15 while the defendants examined D.W.I and marked Ex.B-1. Ex.X-1 is marked at the instance of the trial Court. The trial Court after considering the entire oral and documentary evidence found that the plaintiff institution is a religious one falling within the definition of Section 2(22) of the Endowments Act and accordingly dismissed the suit. Hence this appeal.
Sri Pattabhi Rama Rao, the learned counsel for the appellant-plaintiff firstly contended that the Mandiram in question situate at Hindupur is a branch of Parakala Mutt at Mysore, that the Parakala Mutt is exempt from application of all State laws in Karnataka and therefore there is no necessity for registration of the Mutt in question in Hindupur u/s 38 of the A.P. Charitable and Hindu Religious Institutions and Endowments Act, 1966. As against this the contention of the learned Government Pleader for the Endowments is that there is no connection between the Parakala Mutt and the institution in question at Hindupur, that the suit institution is independent of Parakala Mutt though constructed at the inspiration of the Swamiji of Parakala Mutt, started by his sishyas and inaugurated by him.
P.Ws. 1 to 7 are residents of Hindupur and they all know the institution in question. It is in their evidence that the suit institution was constructed about 14 years ago. They all deposed that in 1961 the Swamiji of Parakala Mutt on his way to Badarinath visited Hindupur when the Sishyas expressed that there should be a Mandiram at Hindupur, for which the Swamiji acceeded saying that himself and Sishyas whenever they pass through that town could make a halt there. Thereafter Swamiji, according to P.Ws. 1 to 7, donated all the offerings Padakanukas given to him by the Sishyas to one M.V. Subbaiah of that Hindupur village to construct the Mandir. However none of the witnesses, P.Ws. 1 to 7, knows whether the Swamiji sent subsequently any amount. They have also admitted that they have no connection with the construction of the Mandiram. P.W. 8, however, is a resident of Mysore and an employee of Parakala Mutt. He stated that the mandiram was inaugurated in 1966. He deposed that the Swamiji gave money for construction of the Mandiram and he brought the money, once Rs. 5,000/- and again Rs. 4,000/-. The witness stated that he handed over the money to M.V. Subbaiah. Ex.X-1 is an entry in the property register of Parakala Mutt at pages 36 and 37 in relation to the Hindupur Mutt. Exs.A-2 and A-15 are the letters sent from Parakala Mutt to Hindupur Mutt. The witness deposed that the entire cost of construction was Rs. 35,000/- and that Swamiji contributed only Rs. 10,000/- as per Ex.X-1. D.W.I who is examined on behalf of the defendants has no knowledge about the giving of funds by Swamiji.
The above evidence shows that the Swamiji of Parakala Mutt visited in 1961 along with his Sishyas the town, Hindupur during which it was decided in the presence of Swamiji that a Mandiram should be constructed at Hindupur so that Swamiji and Sishyas can stay at any time and religious discourses could also be conducted there. It is the case of the plaintiff as also the evidence of P.Ws. 1 to 7 that the Swamiji donated the Padakanukas then offered by Sishyas for construction of the Mandiram. Even according to P.Ws. 1 to 7, the amount may be somewhere between Rs. 6,000/- to Rs. 10,000/- while the entire cost of construction was Rs. 30,000/-. The balance amount according to the plaintiff was paid by the disciples of the Swamiji. Apart from this evidence Ex.A-1 is a declaration made by the disciples of the Swamiji at Hindupur. It is dt. 13-2-1966. It is unequivocally stated in Ex.A-1 that the Mandiram at Hindupur should be run independant of Parakala Mutt in Mysore. Thus, first of all there is no evidence to show that the Parakala Mutt alone has spent the entire cost of construction of the Mandiram in question. Further the site in which the Mandiram was constructed was purchased under Ex.A-4 registered sale-deed dated 29-1-1959, long before the visit of the Swamiji. Admittedly, there is no control or supervision over the Hindupur Mandiram by the Parakala Mutt. For all these reasons, we hold that the mandiram in question at Hindupur is not a branch of Parakala Mutt.
It is next contended by Mr. Pattabhirama Rao that even taking that the suit institution is independant of Parakala Mutt, still it is administered and managed by the followers of Visishta Advaitliam, a religious denomination and therefore it is a private mandiram not governed by the provisions of the A.P. Charitable and Hindu Religious institutions and Endowments Act, 1966. The learned Govt. Pleader, on the other hand, contended that the Mandiram in question is a religious institution where there is Padukas of Swamiji. Even according to the plaintiff there are photos of Lakshmi, Hygreeva, Sri Rama and Andal, that Poojas are performed in the morning and Bhajans in the evening, apart from special Poojas during Dhanur Masam. He further submitted that there is no evidence to show that the plaintiff-institution is dedicated to an individual or family or members of family and on the other hand, admittedly, the Mandiram was constructed for propagation of Visishta Advaitham; and therefore it is a religious institution amenable for registration u/s 38 of the Act.
The evidence of P.Ws. 1 to 7 discloses that there are Padukas of Parakala Mutt Swamiji in the plaintiff-institution, that there are photos of Lakshmi, Hygreeva, Sri Rama and Andal, that Poojas are performed in the mornings and Bhajans in the evening apart from special poojas during Dhanur Masam. It is therefore to be seen whether the plaintiff institution is a temple, mutt or religious institution. According to Section l(3)(b) of the A.P. Charitable and Hindu Religious Institutions and Endowments Act, 1966, the Act is applicable to all Hindu Public religious institutions and endowments. The question whether the institution or endowment is a public or private one is a mixed question of law and facts. Section 2(17) of the Act defines Mutt thus:
"......."Math" means a Hindu religious institution presided over by a person whose principal duty is to engage himself in the teaching and propagation of Hindu religion and philosophy or the teachings and philosophy of the denomination, sect or sampradaya to which the mutt belongs......"
Section 2(22) of the Act defines ''religious institution'' as under:
"Religious institution" means a math, temple or specific endowment and includes a Brindavan, Samadhi or any other institution established or maintained for a religious purpose."
As per Section 2(26), ''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 section thereof, as a place of public religious worship and includes sub-shrines, utsava mantapas, tanks and other necessary appurtenant structures and land."
As per the evidence on record, there is no idol, Dwajastambham, Prakaram, etc., in the plaintiff institution. But there are Padukas of Parakala Mutt Swamiji, photos of Lakshmi,Hygreeva, Sri Rama and Andal. There is equally no evidence to show of any dedication. Therefore, the institution does not come under the definition ''temple''. So much so there is no Matadhipathi here, Sanyasi or Guru to conduct religious discourses. Admittedly there is no such Mattadhipathi, Sanyasi or Guru to the plaintiff institution. Therefore, it does not come under the definition of ''mutt''. According to the evidence of P.Ws. 1 to 7 the Mandiram is constructed for propagating Visishta Advaitham at the inspiration of Swamiji of Parakala Mutt. The Padukas of Parakala Mutt Swamiji are kept there besides the photos of Lakshmi, Hygreeva, Sri Rama and Andal, etc. Therefore, the plaintiff comes under the definition of ''religious institution'' as per Section 2(22) of the Act.
Then, the question still remains is, whether it is a private or public institution to attract the provisions of the A.P. Charitable and Hindu Religious Institutions and Endowments Act, 1966. For this purpose, it is necessary to refer to the case law on the subject.
In AIR 1940 7 (Privy Council) the Privy Council delving on the question of a temple being a private or public held:
"Where a grant of a temple is made to an individual or family and the family has treated the temple as family property dividing the various forms of profit whether offerings or rents it is not enough 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...."
In Devamja v. State of Madras AIR 1953 Mad. 49 the temple of Sri Venkataramana Mulki, was held to be a private temple. But this decision is earlier to that of the Supreme Court in The Commissioner, Hindu Religious Endowments, Madras Vs. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt., to which we shall make a reference a little later.
In Madras Hindu Religious Endowments Board Vs. V.N. Deivanai Ammal by Power of Attorney agent T.V. Mahalinga Aiyar, the Madras High Court held that dedication to the public is one of the clinching factors to determine whether the temple is a public or private one. It is also observed therein that merely because there is an idol in the temple and there are processions, it cannot be said that the temple is a public temple.
In Deoki Nandan Vs. Murlidhar, the question before the Supreme Court is as to the private or public nature of the trust. The Supreme Court held that the distinction between a private and a public trust is that whereas in the former the beneficiaries are specific individuals in the latter they are the general or a class thereof. While in the former the beneficiaries are persons who are ascertained or capable of being ascertained, in the latter they constitute a body which is incapable of ascertainment.
In T.D. Gopalan Vs. The Commissioner of Hindu Religious and Charitable Endowments, Madras, the Supreme Court narrated the tests to hold whether a temple is public or private. The tests laid down are: The origin of the temple, the manner in which its affairs are managed, the nature and extent of 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 are factors that go to establish whether a temple is public or private.
In Radhakanta Deb v. Commissioner, (1981) 2 SCR 826 certain guidelines in the nature of tests are provided so as to determine whether an endowment is of a private or public nature. The tests are: (1) Where the origin of the endowment cannot be ascertained, the question whether the user of the temple by members of the public is as of right; (2) The fact that the control and management vests either in a large body of persons or in the members of the public and the founder does not retain any control over the management and (3) Where the evidence shows that the founder of the endowment did not make any stipulation for offerings or contributions to be made by members of the public to the temple this would be an important intrinsic circumstance to indicate the private nature of the endowment.
Examining the present institution in the light of the above decisions and tests it is to be seen that this mandiram was not built by an individual or family. The Mandiram was built by the Sishyas of the Swamiji of Parakala Mutt with a view to propagate the Visishta Advaitha philosophy a religious denomination. As regards the management of the institution the Swamiji at Parakala Mutt nominates the persons for purposes of administering the institution. From these facts it cannot be held that this is a private institution/Mandiram.
The learned counsel Sri Pattabhirama Rao next submitted that the Mandirarn is established by a religious denomination, viz., Visishta Advaitha followers, of Hindupur town and that members of the families of Visishta Advaitha cult alone are maintaining the Mandiram since the date of its sanctification by the Swamiji of Parakala Mutt. In this background of the submission the contention advanced is that under Articles 25 and 26 a religious denomination is entitled to establish and maintain the religious institution and follow its own practice and procedure in the matter of conducting prayers, poojas, bhajans, special poojas etc., and this right is likely to be adversely affected by the appointment of trust board by the Endowment Department pursuant to the registration of the religious institution u/s 38 of the Act calling thereby for interference of this Court with the order under appeal. On the other hand the learned Government Pleader contended that once the Mandiram is not a private institution it has to register itself u/s 38 of the Act and pursuantly liable to be governed by the provisions of the Act. Further under Article 26(d) of the Constitution the Trust board will administer the properties of the Mandiram which are secular and non-religious. In this background of the rival contentions, the point that arises for consideration is, whether the Visishta Advaitha followers at Hindupur a religious denomination, have a right to administer and manage the affairs of the mandiramas per Article 26 of the Constitution exclusively.
At the outset it is relevant to notice Articles 25 and 26 of the Constitution which are:
"25. Freedom of conscience and free profession, practice and propagation of religion - (1) Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion.
(2) Nothing in this Article shall affect the operation of any existing law or prevent the State from making any law-
(a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice;
(b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus".
Article 26 of the Constitution is as follows:
"26. Freedom to manage religious affairs:- Subject to public order, morality and health, every religious denomination or any section thereof shall have the right-
(a) to establish and maintain institutions for religious and charitable purposes;
(b) to manage its own affairs in matters of religion;
(c) to own and acquire movable and immovable property; and
(d) to administer such property in accordance with law."
The above articles envisage that every religious denomination has a right to establish and maintain its own institution for religious purposes. It. can manage its own affairs in the matter of religion. It can own and acquire moveable and Immovable properties and administer such properties in accordance with law. Of course, all these rights are subject to public order, morality and health. The ambit, scope and depth of Article 26 of the Constitution is the subject matter of decision in Commissioner v. L.T. Swamiar (3 supra). Referring to the meaning of ''Religion'' the Supreme Court in paragraphs 17 & 18 held:
"Religion is a matter of faith with individuals or communities and it is not necessarily theistic. There are well known religions in India like Buddhism and Jainism, which do not believe in God or in any Intelligent First Cause. A religion undoubtedly has its basis in a system of beliefs or doctrines, which are regarded by those who profess that religion as conducive to their spiritual well being, but it will not be correct to say that religion is nothing else but a doctrine or belief. A religion may not only lay down a code of ethical rules for its followers to accept, it might prescribe rituals and observances, ceremonies and modes of worship, which are regarded as integral parts of religion, and these forms and observances might extend even to matters of food and dress. The guarantee under the Constitution of India not only protects the freedom of religious opinion but it protects also acts done in pursuance of a religion and this is made clear by the use of the expression ''practice of religion'', in Article 25."
In paragraph 15 of its decision, the Supreme Court has dealt with the meaning of ''Denomination'' in the following manner:
"The word ''denomination'' has been defined in the Oxford Dictionary to mean'' a collection of individuals classed together under the same name; a religious sect or body having a common faith and organisation and designated by a distinctive name''. The practice of setting up mutts as centres of theological teaching was started by Sri Sankaracharya and was followed by various teachers since then. After Sankara came a galaxy of religious teachers and philosophers who founded the different sects and sub-sects of the Hindu religion. Each one of such sects or sub- sects can be called a religious denomination, as it is designated by a distinctive name - in many cases it is the name of the founder, and as a common faith and common spiritual organisation. The followers of Ramanuja, who are known by the name of Shri Vaishnavas, constitute a religious denomination; and so do the followers of Madhwacharya and other religious teachers.
Further, Article 26 contemplates not merely a religious denomination but also a section thereof, the Mutt or the spiritual fraternity represented by it can legitimately come within the purview of this Article."
Adverting to the distinction between Article 26(b) and the following clauses therein, the Supreme Court held in paragraph 17:
"Besides the right to manage its own affairs in matters of religion, which is given by Article 26(b), the next two clauses of Article 26 guarantee to a religious denomination the right to acquire and own property and to administer such property in accordance with law. The administration of its property by a religious denomination has, thus, been placed on a different footing from the right to manage its own affairs in matters of religion. The latter is a fundamental right which no Legislature can take away, whereas the former can be regulated by laws which the Legislature can validly impose. It is clear, therefore, that questions merely relating to administration of properties belonging to a religious group or institution are not matters of religion to which clause (b) of the Article applies."
Referring to the fundamental rights and restrictions with respect to matters of religion in the light of Articles 25 and 26 of the Constitution, the Supreme Court in paragraph 22 held:
"The language of Articles 25 and 26 is sufficiently clear to enable the Court to determine without the aid of foreign authorities as to what matters come within the purview of religion and what do not. Freedom of religion in the Constitution of India is not confined to religious beliefs only; it extends to religious practices as well subject to the restrictions which the Constitution itself has laid down.
Under Article 26(b), therefore, a religious denomination or organisation enjoys complete autonomy in the matter of deciding as to what rites and ceremonies are essential according to the tenets of the religion they hold and no outside authority has any jurisdiction to interfere with their decision in such matters. Of course, the scale of expenses to be incurred in connection with these religious observances would be a matter of administration of properties belonging to the religious denomination and can be controlled by secular authorities in accordance with any law laid down by a competent legislature; for it could not be the injunction of any religion to destroy the institution and its endowments by incurring wasteful expenditure on rites and ceremonies.
However, under Article 26(d), it is the fundamental right of a religious denomination or its representative to administer its properties in accordance with law; and the law, therefore, must leave the right of administration to the religious denomination itself subject to such restrictions and regulations as it might choose to impose. A law which takes away the right of administration from the hands of a religious denomination altogether and vests it in any other authority would amount to a violation of the right guaranteed under clause (d) of Article 26."
This distinction brought-in is again reiterated by the Supreme Court in Sarup Singh v. State of Punjab, AIR 1959 SC 860 as between clauses (b) and (d) of Article 26 of the Constitution.
In Muthahh Asari v. Madasami Asari 1965 (2) MLJ 220 a Division Bench of the Madras High Court was to deal with the appointment of trustees to manage the properties of a temple, belonging to the entire body of Viswa Karma Brahmin community. While so dealing, it laid down:
"The temple, we must reiterate, belongs to the entire body of Viswa Karma Brahmin Community of the District and not merely to the members of the five named villages or certain villages. The interim powers of the Commissioner or the Area Committee to make arrangements for the day to day administration of the temple and its endowments are not in dispute. Hence, wedirect that such arrangements be made, as appear feasible and expedient. In the meantime it is obvious that an electrol roll has to be prepared of the members of this community in the District which form a corporate body in whom are vested relevant rights under Article 26 of the Constitution. If such a roll is prepared, some kind of an electoral meeting has to be convened, or an electoral college has to be formed and two or three trustees, as convenient will have to be elected by the electorate. Certainly, the Area Committee and the Commissioner will have discretion to decline to accept the elected candidates who suffer from any specific unsuitability or infirmity unfitting them from office; in that case election may have to be held again in that particular respect. But subject to this restriction, it is the corporate body that has to elect trustees for the administration and management of the temple and its properties. Such arrangements may be carried out by the authorities under the directions of the Commissioner after the proper interval of time...."
Keeping the above case law in view, the learned counsel Sri Pattabhirama Rao contended that the appointment of trustees by the Endowments department pursuant to the registration u/s 38 of the Act, may result in interference with the religious rites and ceremonies to be conducted in the Mandiram as ordained by the Visishta Advaitha Philosophy, thereby infringing the guaranteed right under Article 26 of the Constitution. It is to be seen that it has come in the evidence that there are about 100 families in Hindupur town proclaiming Visishta Advaitha cult for the propagation of which the present Mandiram is constructed. Those that are nominated by the Swamiji of Parakala Mutt are administering the religious and secular matters. In view of the apprehension expressed, it is just and proper in our view to direct the respondent-defendants to prepare a list of names of the different families in Hindupur town dedicated to Visishta Advaitha Philosophy, as may equally be available with the Present Management of the Mandiram so that trustees to be appointed under the Act will be either elected or nominated from among the members of those families alone so as to protect the right to administer the religious matters in the mandiram as guaranteed by Article 26 of the Constitution of India. This would also be in conformity with Section 17 of the 1987 Act inasmuch as it postulates that in making the appointment of trustees u/s 15 due regard shall be had to the religious denomination or any section thereof to which the institution belongs. It needs to be pointed out here that the A.P. Charitable and Hindu Religious Institutions and Endowments Act, 1966 is repealed by the same Act of 1987. It is also to be noted that there is no individual founder of the mandiram in the instant case. The disciples of Visishta Advaitha cult in Hindupur town alone are the founders of the religious institution in question.
With the direction to prepare the list as stated in the earlier paragraph, the appeal is dismissed. No costs.