IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated :: 21.07.2008 Coram The Honourable Mr. Justice V. DHANAPALAN A.S.Nos.1280 & 1395 of 1994 A.S.No.1280 of 1994 : Sri Varasidhi Vinayagar Sath Sangam represented by its present Secretary V. Srinivasan ... Appellant vs. The Commissioner H.R. & C.E. Department Uthamar Gandhi Salai Madras – 600 034 Respondent A.S.No.1395 of 1994 : E.Devarajan ... Appellant -vs- 1.The Commissioner, Hindu Religious & Charitable Endowments Department, Nungambakkam High Road, Madras-600 034. 2.The Deputy Commissioner, Hindu Religious & Charitable Endowments Department, Nungambakkam High Road, Madras-600 034. ... Respondents A.S.No.1280 of 1994 is filed under Section 96 of Code of Civil Procedure against the judgment and decree dated 25.01.1994 made in O.S.No.3988 of 1990 on the file of V Assistant City Civil Court, Madras. A.S.No.1395 of 1994 is filed under Section 96 of Code of Civil Procedure against the judgment and decree dated 30.06.1993 made in O.S.No.6412 of 1990 on the file of V Assistant City Civil Court, Madras. https://hcservices.ecourts.gov.in/hcservices/ For appellants in both appeals :Mr. W.C. Thiruvengadam For respondent in A.S.No.1280/1994: Mr. V. Chandrasekaran, Spl. Government Pleader (HR & CE) For respondents in A.S.No.1395/1994:Mr.R.Murugesan, Spl. Government Pleader (HR & CE). COMMON JUDGMENT Since both the appeals relate to a common issue, they are being disposed of in common. 2. The plaintiff, who is the appellant in A.S.No.1280 of 1994, filed a statutory suit in O.S No.3988 of 1990 before the V Assistant City Civil Court, Madras under Section 70 (1) of the H.R. & C.E. Act 22 of 1959 (in short “the Act”) in order to set aside the order dated 28.12.1989 passed by the Commissioner, H.R. & C.E. Madras – 34 passed in A.P. No.107 of 1987 under Section 69(1) of the Act. The statutory suit was dismissed by the V Assistant Civil Court, Madras by a judgment and decree dated 25.01.1994 against which the present appeal by the appellant. 3. The case of the appellant is as under: a. There is a private temple dedicated to the worship of Sri Varasiddhi Vinayagar situated in Door No.E-96/A, 17, I Avenue, Besant Nagar, Madras – 600 090. An idol of Sri Varasiddhi Vinayagar was first installed and worshipped by one Balaramamoorthy Naidu of the locality in the land belonging to the Housing Board and the said Balaramamoorthy Naidu was continuing his personal worship for some years and there was no dedication to the said deity either by way of any property or by way of any public worship as a matter of right. In the meantime, some residents of Besant Nagar conceived an idea of forming a Sangam to construct a temple for Sri Varasiddhi Vinayagar and to perpetuate worship for ever. Accordingly, an association was formed under the name and style of “Varasiddhi Vinayagar Sath Sangam” (in short “the Sath Sangam”)and the same was also registered under the Societies Registration Act, XXI of 1860. Thus, the temple in question is a private temple belonging to “Varasiddhi Vinayagar Sath Sangam”, which was initially having only 63 members with various objects, viz., i to build Hindu temples and such other institutions, religious and charitable as well, minister to the religious needs of the Hindu residents of Besant Nagar and surrounding areas and to arrange for their https://hcservices.ecourts.gov.in/hcservices/ proper working. The Varasiddhi Vinayagar Temple shall be owned, maintained and managed by the Sath Sangam; ii to arrange for the diffusion of useful religious knowledge through libraries, discourses and similar religious activities; iii to raise ;funds for the achievement of the above objects, to purchase and hold properties – movable and immovable relating thereto and to arrange for the management of the same; and iv to do such other things as are incidental to or conducive to the attachment of the above objects. b. After forming and registering the Sath Sangam in question, its members resolved to shift the idol of Shri Varasiddhi Vinayagar from its original place to a new place where a superstructure could be constructed for the deity in question which was originally worshipped by the said Balaramamoorthy Naidu. Thereafter, the Sath Sangam purchased a piece of vacant land measuring about 6 grounds and 425 sq. ft. at E.964/E.154, Besant Nagar, Adyar for a total purchase amount of Rs.77,213.54 and also obtained permission for the construction of a private temple from the MMDA and thereupon a private temple was finally constructed and kumbabishekam was performed on 12.04.1979. Thus, the original of the private temple was of a recent one and remained with the members belonging to the appellant-Sath Sangam. c. While so, one T.N. Venkoba Rao was elected as the Secretary of the Sath Sangam and was co-ordinating the day-to-day affairs of the private temple in question. The members of the Sath Sangam liberally donated for the construction of the institution and they did not take donation from outsiders of the locality for the founding of the private temple in question and as a matter of fact, no contribution was received from outsiders in the locality at any point of time, either for the founding of the institution or for its subsequent maintenance. Accordingly, it was founded by the members of the Sath Sangam and being continuously maintained till date. The public at large are not allowed to come and have worship in the temple. The so-called worship by the public can be a permissive possession only. The relatives of the Sath Sangam are allowed to worship after obtaining permission from the members of the Sath Sangam. However, the Supreme Court, took a view that a Hindu will not prevent a Co-Hindu from coming and worshipping in a Hindu temple and such a worship by a Hindu cannot be taken as a worship by https://hcservices.ecourts.gov.in/hcservices/ right. d. After kumbabishekam, the temple is in the private control and management of the appellant-Sath Sangam for whose benefit, the institution is chiefly intended and maintained. The Sath Sangam has been paying the monthly instalments to the Tamil Nadu Housing Board towards the purchase amount till date and thus, the institution in question is the private property of the Sath Sangam, a body registered under the Society Registration Act and therefore, that institution will not come under the purview of the Act 22 of 1959 and it is not a religious institution as laid down under Section 6(18) of the Act and also will not attract the definition of a temple as contemplated under the provisions of the Act. The private temple is not possessed of any property of its own and there is no hundial in the temple except an open brass pot kept for the use of the members of the Sath Sangam only and that practice has also been stopped ever since the H.R. & C.E. Department made an attempt to interfere in the day-to-day affairs of the private temple in question. The general public at large are not allowed to worship in the temple as a matter of right and such worship if at all is always permissive worship only and therefore, permitting certain members of public to come and have worship in a private temple cannot take away the private character of such institution. The founding, establishing and continuous management should remain in the private capacity for getting such declaration under Section 63(a) of the Act and in the appellant's case, the private temple has been founded, established and maintained by the members of the Sath Sangam and therefore, the institution as a whole will not attract the provisions of the Act. e. Further, the Inspector of the Department, all of a sudden, visited the temple without notice to the appellant, made an attempt to seal the brass pot kept for the collections from and among the members of the Association which led to the filing of O.A. No.52 of 1980 on the file of the Deputy Commissioner, H.R. & C.E., Administration Department, Chennai–600 034 for a declaration that Shri Varasiddhi Vinayagar Temple situated in Besant Nagar is not a religious institution coming under the Act. f. The Deputy Commissioner, H.R. & C.E. Department, after conducting an enquiry into the matter dismissed O.A. No.52 of 1980 without properly appreciating the evidentiary value of Exs. A.1 to A.9 filed by the appellant in support of its case under Section 63 (a) of the Act. Aggrieved by the order of the Deputy Commissioner passed in O.A. No.52 of 1980, the appellant filed a statutory appeal under Section 69 (1) of the Act before the Commissioner, H.R. & C.E. Department who is the respondent in A.P. No.107 of 1987 which was also dismissed on 28.12.1989 without properly appreciating the evidentiary value of the relevant records filed in support of the case and against the said order in the appeal, the appellant filed the present statutory suit under Section 70(1) of the Act. The various grounds raised in the suit are that: https://hcservices.ecourts.gov.in/hcservices/ i the order of the respondent passed in A.P. No.107 of 1987 was against law, weight of evidence and all probabilities of the case; ii the respondent-Commissioner failed to understand the scope of the application filed under Section 63(a) of the Act; iii the respondent-Commissioner failed to see that there was no contra evidence which was forthcoming in the court below to destroy the case of the appellant herein and in the absence of such contra evidence, the irresistible inference should be that Shri Varasiddhi Vinayagar Temple situated in Besant Nagar is not a religious institution coming under the purview of the Act; iv The respondent-Commissioner has failed to see that the Inspector, H.R. & C.E. Department, Madras and her report having been marked as C.W.1, has failed to examine any oral evidence to establish the public character of the institution. The report of the Inspector simply contemplated that there was public worship in the temple; but, there was no evidence in that respect and accordingly, the report of the Inspector ought not to have been relied on by the courts below for deciding the character of the institution in question; v The Inspector, in her report, has categorically pointed out to the effect that she has collected information from the Gurukkal in regard to the public worship in the temple. It is not known why the Inspector has not chosen to examine the Gurukkal of the temple as a witness in this case. The said Gurukkal of the temple has never given any information to the Inspector at any time in regard to the real character of the institution. Therefore, the report of the inspector is of no use in deciding the character of the institution and accordingly, the Court below must have gone into Exs.A.1 to A.9 filed by the Secretary of the Sath Sangam to decide the character of the institution which has not been done in this case; vi The respondent-Commissioner, as an appellate authority, has also simply enumerated the records Exs.A.1 to A.9 in the Annexure to the order https://hcservices.ecourts.gov.in/hcservices/ but failed to make a legal analysis on the same which has led to the miscarriage of justice; vii The respondent-Commissioner has failed to see that the private temple is actually located in a land purchased by the Sath Sangam for a valuable consideration and therefore, the private character of the institution is well-established which is also under the control and management of the Sath Sangam; viii The respondent-Commissioner has failed to take note of the establishment of the private temple by the Sath Sangam by properly analysing Exs.A.3 to A.5 which clearly establish the origin of the private temple; ix The respondent-Commissioner has failed to see that there was no evidence in the Court below to establish that contribution was taken from outsiders for the founding of the temple or for its establishment and for its subsequent maintenance. In the absence of such a vital evidence, the Court below ought to have come to the conclusion that Sri Varasiddhi Vinayagar Temple situated in Besant Nagar is not a religious institution coming under the purview of the Act. On the other hand, the respondent-Commissioner has wrongly interpreted the evidence of P.W.2 which would clearly indicate that donations were accepted from the relations of the members only and that at no point of time, P.W.2 had deposed that donations were collected from outsiders, i.e., outside the members of the Sath Sangam; x The respondent-Commissioner has further erred in holding that P.W.2 has deposed that public are worshipping in the temple but as a matter of fact, P.W.2 has never deposed in that manner but only deposed that public are allowed to worship in the temple with the permission of the members of the Sangam and the respondent-Commissioner has not taken note that the idol was originally in the personal custody of Balaramamoorthy Naidu who was personally worshipping the deity and later given it to the Sath Sangam for installing and making it a private temple of the Sath Sangam and the said Balaramamoorthy is also a member of the Sath Sangam ever since its inception; xi The respondent-Commissioner has https://hcservices.ecourts.gov.in/hcservices/ failed to see that the definition of Section 6(20) does not attract to the private temple in question in view of the fact that the temple in question has never been treated as a place of public religious worship and secondly, there has been no dedication for the benefit of Hindu community. In such circumstances, the Court below ought to have granted the relief as prayed for under Section 63 (a) of the Act. On the other hand, the respondent- Commissioner, based on Ex.A.6 series, has decided that the Sath Sangam has made an appeal to the public to donate liberally for the celebration of consecration ceremony. But, in fact, Ex.A.6 series did not reveal such a request from the members of the Sangam. It is purely imaginary on the part of the court-below to arrive at such a conclusion; xii The respondent-Commissioner can come to the conclusion on the basis of the records available in this case and therefore, the surmise of the Commissioner to the effect that collections were made for the performance of kumbabishekam is totally denied besides being improper and mischievous; xiii The respondent-Commissioner has failed to see that there was no public participation in the construction of the temple and there was no evidence to this effect and in the absence of such an evidence, he has erred in arriving at a conclusion that the public participated in the construction of the temple; and xiv In any event, the records filed by the appellant in Exs.A.1 to A.9 have not been properly appreciated and the evidentiary value has not at all been discussed in the annexure to the order of the respondent in A.P. No.107 of 1987 and in the circumstances, the order of the respondent- Commissioner in A.P. No.107 of 1987 dated 28.12.1989 has to be set aside and consequently declare that Sri Varasiddhi Vinayagar Temple situated in Besant Nagar, Madras owned by Sath Sangam situated in Besant Nagar is not a temple as laid down under Section 63 (a) of the Act. g. The cause of action for the suit arose at Madras under Section 70(1) of the Act when the Commissioner, H.R. & C.E. Department, Madras has dismissed A.P. No.107 of 1987 dated 28.12.1989 and the said order having been communicated on 03.01.1990 and has been received by the appellant on 06.03.1990 https://hcservices.ecourts.gov.in/hcservices/ and the suit has been valued and the appellant has prayed for a decree and judgment to declare that Sri Varasiddhi Vinayagar Temple situated in Besant Nagar, Madras is not a religious institution as contemplated under Section 63 (a) of the Act and to set aside the order passed by the respondent-Commissioner, H.R.&C.E. Department, Madras passed in A.P. No.107 of 1997 dated 28.12.1989 4. The respondent has filed written statement in which it is stated that he being a public servant, the appellant ought to have issued a statutory notice as contemplated under Section 80 of the Civil Procedure Code. Such notice is necessary even for a suit under Section 70 (1) of the Tamil Nadu H.R.&C.E. Act 22/1959. Hence, the suit is not maintainable and liable to be dismissed in limini. According to the respondent, the averments contained in paras 4 to 8 of the plaint are denied and it is his case that the appellant has filed an application under Section 63(a) of the Act before the Deputy Commissioner in O.A. No.52 of 1980 seeking a declaration to the effect that the suit temple is not a religious institution as contemplated under Section 63 (a) of the Act. They have filed several documents before the Deputy Commissioner, Madras which were marked as Ex.A.1 to A.8. S.Thukkaram, R. Thirumalachari, T. Balaramamoorthy and Thirumalai were examined as P.W.1 to P.W.4 respectively and S. Manomani, Inspector of the Department was examined as court witness and her report was marked as court document (C1). 5. According to the respondent, the Deputy Commissioner, Madras who is the authority under Section 63(a) of the Act has conducted a detailed enquiry in the matter. During the course of said enquiry, Thukkaraman got himself examined as P.W.1 and Exs.A.1 to A.9 were marked. In addition, the evidence of P.Ws.2 to 4 was also let in. The Court examined the Inspector of the Department as C.W.1 and report sent by her was marked as Ex.C.1. After analysing the evidence of the witnesses and the documentary evidence produced, the Deputy Commissioner has given a finding that the institution in question is a public religious institution and negatived the claim to the contrary in his order dated 13.05.1986 in O.A. No.52 of 1980. Aggrieved by the order, they filed an appeal before the Commissioner in A.P. No.107/87 under Section 69(1) of the Act. The Commissioner has heard the appellant's counsel and perused the records. 6. It is the specific case of the respondent that P.W.1 Thukkaram deposed on the lines of the petition before the Deputy Commissioner and marked the documents. Ex.A.1 is the certificate dated 05.06.1975 issued by the Registrar of Assurances, Madras South for having registered the Sath Sangam in the name of Varasiddhi Vinayagar under S.No.83 of 75 as per the Societies Registration Act, 21 of 1860. This has been filed to show that the Sath Sangam was formed first and according to the wishes of the residents of the locality, the temple was constructed with the Arulmighu Varasiddhi Vinayagar for the worship of the idol for ever. According to the petitioners, the idol in https://hcservices.ecourts.gov.in/hcservices/ question was already there and worshipped by one Balaramamoorthy Naidu in the land belonging to the Tamil Nadu Housing Board. Ex.A.2 is the Memorandum of Association to show the formation of the Sangam in the name of Sri Varasiddhi Vinayagar containing its objects and functions. One of the objects as specified under Rule 2(a) of the Memorandum is to own, maintain and manage the Varasiddhi Vinayagar Temple. But, in this document, nowhere it is stated that the temple to be constructed is for the exclusive worship of the members of the Sangam and denying the right of others offering worship therein. Ex.A.3 is the communication dated 04.06.1977 of the Tamil Nadu Housing Board, Madras, addressed to the President of Arulmighu Varasiddhi Vinayagar Temple, Besant Nagar, Madras – 90 informing the total cost of Plot No.E.96-A, Besant Nagar, measuring about 6 grounds and 425 sq. ft. as Rs.77,213.54 on hire purchase basis. Ex.A.4 is the plan of the temple in question approved by MMDA in their Lr.No.29274/S177 dated 07.10.1977. Ex.A.5 is the estimate dated 25.02.1978 given by P.M. Nataraja Sathapathy for the construction of the temple at a cost of Rs.6,300/- to the Sath Sangam. Ex.A.6 series contain invitation dated 28.02.1979 extended to the public inviting them for the consecration ceremony of the temple and making appeal to the public to contribute liberally for the celebration of the ceremony by Sath Sangam. They have also mentioned in the notice that the donations in the form of cheques should be sent in the name of “Sri Varasiddhi Vinayagar Sath Sangam”. Further, the allotment order also makes it clear that the property was allotted to Varasiddhi Vinayagar Temple only and not to the Varasiddhi Vinayagar Sath Sangam. 7. Further, the respondent has stated in the written statement that Ex.C1 is the register for the enrolment of member of the Sangam under rule 16 of the Tamil Nadu Societies Registration Rules and the report of the Inspector, H.R. & C.E., Madras – 7. P.Ws.1, 2 and 4 spoke on the lines of the petition. P.W.3, Balaramamoorthy had deposed that he was the first member of the said Sath Sangam and donated idol to it. In cross-examination, he admitted that the public used to offer worship freely when it was located adjunct to C.P.W.D. Office compound wall. During 1969, “Prathishtai” or installation ceremony was done by Samayapuram Ramanatha Swamigal. The Sath Sangam in the name and style of Varasiddhi Vinayagar came to be formed in the year 1975. The land for the construction of the temple was taken possession from the Tamil Nadu Housing Board by the Sath Sangam in 1976. In 1977, the consecration was done to the temple and the idol which was already in worship was shifted and installed in the new premises. Though he deposed that at the time of formation of the Sath Sangam, there were 36 members and only with the contribution made by the members by way of cash and kind, the temple came to be constructed. P.W.3 also denied knowledge of the actual amount of materials contributed by the members and about the date of performance of the kumbabishekam. He denied knowledge to the suggestion as to the maintenance of accounts by the Secretary. He states no accounts were maintained for the contribution received towards the construction of the temple. 8. It is further stated that the Inspector, H.R. & C.E. https://hcservices.ecourts.gov.in/hcservices/ Department who was examined as C.W.1 spoke that according to the enquiries made by her, the idol of Sri Varasiddhi Vinayagar was originally in a hut in a platform belonging to C.P.W.D. Quarters even prior to the formation of Sath Sangam and the public worship was going on there. In 1969, “Prathishtai” was done by Samayapuram Ramanatha Swamigal. After the construction of the temple, the idol was shifted from its original place and installed in the temple premises after consecration. Public worship and offering of Abhishekam and Archanai are said to be in practice and this fact was said to have been ascertained from the Gurukkal of the temple. The main source of the income of the temple is from hundial and thattu kannikkai. 9. To ascertain whether a temple can come within the scope of the definition of Section 6(2) of the Act, two conditions must be cumulatively satisfied. One is that it must be a place of public religious worship and secondly, it must have been dedicated for the benefit of Hindu community or any Section thereof. Further, it is stated that it is not correct to say that the respondent has passed the order in A.P. No.107 of 87 against law, weight of evidence and all probabilities of the case inasmuch as the respondent has passed the order in a speaking manner. 10. According to the respondent, the suit temple is a public temple as defined under Section 6(2) of the Act and the appellant cannot claim that the temple is a private one and the respondent has applied his mind while passing the order impugned in the suit. It is their case that one of the witnesses has admitted the fact that the expenses for construction of temple was not out of the donations made by the members of the Sath Sangam. Ex.A.2 never made any assertion that the temple to be constructed was intended only for the welfare of the members of the Sath Sangam. Further, the Ex.A6 series borne out that the Sath Sangam made appeal to the public to donate liberally for the celebration of the consecration ceremony