IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 09.08.2011 CORAM: THE HONOURABLE MR.JUSTICE T. MATHIVANAN A.S.No.370 of 2007 1.The Commissioner, Hindu Religious and Charitable Endowments Administration Department, Uthamar Gandhi Salai, Nungambakkam, Chennai 2.The Deputy Commissioner, Hindu Religious and Charitable Endowments Administration Department, Uthamar Gandhi Salai, Nungambakkam, Chennai ... Appellants Vs. S.Arunachalam ... Respondent Prayer: Appeal is filed under Section 70(2) of the H.R. & C.E. Act 22 of 1959 against the Judgment and Decree dated 28.03.2005, and made in O.S.No.1275 of 2001 on the file of the V Additional Judge, City Civil Court, Chennai. For Appellants : Mr.T.Chandrasekaran Spl.Govt.Pleader For Respondent : Mr.W.C.Thiruvengadam for Mr.W.C.Sridhar J U D G M E N T This appeal is directed against the Judgment and Decree dated 28.03.2005, and made in O.S.No.1275 of 2001 on the file of the Learned V Additional Judge, City Civil Court, Chennai. 2. The facts which give rise to the memorandum of appeal are as under: https://hcservices.ecourts.gov.in/hcservices/ 2.1. The temple in question is neither a 'temple' as defined under Section 6(20) of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 (Tamil Nadu Act XXII of 1959) (hereinafter it may be referred to the 'Act') nor a religious institution as defined under Section 6.16 of the Act. It is a private temple founded by the father of the plaintiff Thiru Sambandamurthy, in the year 1942 from and out of his personal earnings. The founder had installed an Idol under a thatched shed and a pucca construction was put up in the year 1968 from his own fund without taking donation from outside. The temple in question is situated in Survey No.30/4 in the land measuring about 0.10 cents which purchased by the founder Thiru Sambandamurthy Gramani in the year 1942, through a sale deed dated 25.09.1942 from his own funds. 2.2. General public are not allowed to worship in the temple. The founder Thiru Sambandamurthy had died in the year 1976 and thereupon the temple was succeeded by the plaintiff herein and he has been administering the day today affairs of the temple in question by succession in accordance with the line of succession in the private temple in question as per the direction of the founder. While he was alive he had executed a settlement deed dated 31.08.1944 through which he had endowed a land measuring about 2.62 acres for the deity in question, wherein a specific succession of trusteeship for the private temple has also been contemplated. 2.3. There is no festival in the temple equally there is no utsava idol in the temple and hence, it is very clear that the institution in question is not a public religious institution so as to attract the provisions of the Act 22 of 1959. The Hindu Religious and Charitable Endowments Department has not so far extended its provisions of the Act to the institution in question. The private temple has not been assessed for the purpose of levying contributions also. There is no dedication of any property to the deity in question by the public at large and no one outside the family of the plaintiff herein had ever interfered with the private management of the affairs of the institution in question. 2.4. The plaintiff had filed an application before the second defendant, the Deputy Commissioner, H.R & C.E. Administration Department in O.A.No.14 of 1992 for a declaration that the suit temple is not coming under the purview of the Act. The Deputy Commissioner after adjudication has dismissed the application on 7.02.1995. Then the plaintiff had preferred an appeal to the first defendant, The Commissioner, H.R.& C.E Administration Department in A.P.No.54 of 1995 which was also dismissed on 20.12.2000. https://hcservices.ecourts.gov.in/hcservices/ 2.5. The plaintiff was therefore, constrained to file a suit under Section 70(1) of the Hindu Religious and Charitable Endowment Act 1959 before the Trial Court. 2.6. The defendants have contended in their written statement that the suit temple is a public religious institution as defined under Section 6(20) r/w. Section 6(18) of the Tamil Nadu HR & CE Act, 1959 brought under the administrative jurisdiction of the Assistant Commissioner, HR & CE Chennai and as such all the provisions of the HR & CE Act are squarely applicable to this public temple. The plaintiff did not adduce any documentary evidence before the defendants during enquiry to show that the temple was constructed in the year 1942 and renovated in its present form in the year 1968 by his father Sambandamurthy from his personal funds. The temple has been gifted and dedicated with the lands comprised in the following Survey Numbers in favour of the deity for specific purposes of performing pooja and other festivals; 1. S.No.30/1-6 cents of land in Kodungaiyur Village, 2. S.No.30/4-10 cents of land in Kodungaiyur Village, 3. S.No.110/1-1 Acre 72 cents in Selaivoyal Village, 4. S.No.111/1-90 cents of 1 land in Selaivoyal Village. 2.7. The land specified in item No.2 alone was proved to be a personal property purchased by a Sambandamurthy, father of the plaintiff by a registered sale deed No.2389 dated 14.02.1943 and later on by an another registered sale deed No,1289 dated 31.08.1944 and these lands together with 2 acres 78 cents of lands have been dedicated by Sambandamurthy in favour of the deity. No documentary evidence was produced before the defendants that the temple in question was intended for private worship of the members of the plaintiff's family or that public were not allowed to worship in that temple. The object of donating the land is specifically mentioned for the performance of Abishegam and Aradhanas during the (Panjaparvam) festival in the temple. These kinds of festivals no doubt attract large number of devotees and there will certainly be a large gathering of public worshippers. Hence, there is no basis on the contention of the plaintiff that the general public is not allowed inside the temple for worship. 2.8. As held in 1950 II MLJ 541, the presence of an idol is not a legal requisite under the definition of a temple. As such the non- presence of utsava idol and festivals will in no way help the plaintiff to prove his case. Any endowed property of a public temple becomes a property of the deity and even person endowed the property cannot claim any right over the same. https://hcservices.ecourts.gov.in/hcservices/ 2.9. The plaintiff's father would have definitely viewed the temple only as public temple and that is why he had endowed his personal property for it's future. If he had viewed both the temple and the property as his personal assets, he would not have endowed property since there is no necessity for the same. The plaintiff had sold the land in public auction for a sum of Rs.4,45,400/- by obtaining an order from the High Court, Chennai in C.S.No.766/88 for the reason that no income was derived from the above lands and that the lands were prone to encroachment by outsiders. The plaintiff has wantonly suppressed these facts since he could have thought it would create negative impact on his pseudo claim. Since the plaintiff has not produced any iota of evidence to prove the fact that the temple in question is a private temple, the claim of the plaintiff has to be turned down. 3. Based on the pleadings of the parties to the suit, the Trial Court has formulated the following two issues; 1. Whether the plaintiff is entitled to set aside the order of the Commissioner and declaration as prayed for ? 2. To what relief ? 4. The plaintiff in order to establish his claim had examined himself as PW 1. During the course of his cross-examination Exs.A1 to A9 were marked. On the other hand one Smt.V.N.Ranipadmini, was examined as DW 1. No documentary evidence was led on behalf of the defendants. On evaluating the evidences available on record, the Trial Court has proceeded to decree the suit as prayed for on 28.05.2005. Impugning the judgment and decree of the Trial Court, the defendants being the Commissioner and Deputy Commissioner of Hindu Religious and Charitable Endowments Administration Department, Chennai, have preferred this appeal. 5. This court has given careful consideration to the arguments advanced by the learned Special Government Pleader appearing for the appellants and the learned counsel for the respondent/plaintiff as well. The core question to be decided is whether the temple in question is a private temple or a public temple. 6. It is apparent from the materials available on record that previously the respondent/plaintiff had filed an application before the second appellant/second defendant, Deputy Commissioner of HR & CE in O.A.No.14 of 1992 for declaration that the suit temple is not coming under the purview of the Act which was dismissed and challenging that order he had preferred an appeal in A.P.No.54 of 1955 before the first defendant Commissioner HR & CE. That appeal https://hcservices.ecourts.gov.in/hcservices/ was also dismissed on 20.12.2000. The above said facts can be drawn from Exs.A1 and A2 respectively. In Ex.A2 viz., the order dated 20.12.2000 and made in A.P.No.54 of 1995 (D2) the first defendant has concluded that there is nothing contained in the documents to show that the temple in question was intended for private worship of the members of the appellant family or the public were not allowed to worship in the temple. He has also concluded that the object of donating the lands is specifically for the purpose of performance of Abishegam and Aradhanas during the (Panjaparvam) festival in the temple and during the festivals there will certainly be a large gathering of public worshippers and hence, there is no basis on the contention of the appellant that the general public is not allowed inside the temple for worship. 7. In this connection the learned counsel for the respondents/plaintiff would submit that the Commissioner had not taken his decision independently on the basis of the materials available on record, but he had taken this decision dependently on the conclusion of Deputy Commissioner in his order in O.A.No.14 of 1992 dated 27.02.1995. He has also maintained that the order of the first appellant/defendant in Appeal No.54 of 1995 was only based on mere surmise and guesture and was not based on the materials produced by the respondent/plaintiff. While advancing his arguments he has submitted that the temple which is in question in the suit is a denominational temple which is not defined in the Act. 8. To have clarity on the subject matter, this Court is of view that it may be relevant to refer Section 63 of the Act. Section 63 of the Act enacts as follows; '63. [Joint Commissioner or] Deputy Commissioner to decide certain disputes and matters – Subject to the rights of suit or appeal here-in after provided, [Joint Commissioner of the Deputy Commissioner as the case may be] shall have power to inquire into and decide the following disputes and matters:- (a) whether an institution is a religious institution. (b) whether a trustee holds or held office as a hereditary trustee; (c) whether any property or money is a religious endowment; (d) whether any property or money is a specific endowment; (e) whether any person is entitled, by custom or otherwise, to any honour, emolument or perquisite https://hcservices.ecourts.gov.in/hcservices/ in any religious institution; and what the establishment usage of a religious institution is in regard to any other matter; (d) whether any property or money has been given for the support of an institution which is partly of a religious and partly of a secular character, or the performance of any service or charity connected with such an institution or the performance of a charity which is partly of a religious and partly of a secular character or where any property or money given is appropriated partly to religious and partly to secular uses, as to what portion of such property or money shall be allocated to religious uses.' 9. In the above context, the learned counsel for the respondent/plaintiff would submit that the Joint Commissioner or the Deputy Commissioner are empowered to decide the disputes enlisted under Sub-Section (a) to (g) of Section 63 and hence, the respondent/plaintiff was constrained to file an application under A.P.No.14 of 1992. Sub-Section (1) to Section 64 of the Act contemplates with regard to power of (Joint Commissioner) or Deputy Commissioner to settle schemes. Sub-Section 1 to Section 64 enacts as follows; “(1) When the [Joint Commissioner or Deputy Commissioner as the case may be], has reason to believe that in the interests of the proper administration of an institution, a scheme should be settled for the institution, or when not less than five persons having interest make an application in writing, stating that in the interests of the proper administration of an institution a scheme should be settled for it, the [Joint Commissioner, Deputy Commissioner] shall consult in the prescribed manner the trustee and the persons having interest, and if, after such consultation, he is satisfied that it is necessary or desirable to do so, he shall, by order, settle a scheme of administration for the institution.” 10. From the above wordings of Section 64(1) it is thus clear that if there are reasons to be believed either the Joint Commissioner or the Deputy Commissioner as the case may be in the interest of proper administration of an institution they can frame a https://hcservices.ecourts.gov.in/hcservices/ scheme for the institution. When an application is made to them by the persons not less than members having interest over the religious institution, then the Joint Commissioner or the Deputy Commissioner shall consult in the prescribed manner to the trustee and to the person having interest and if they are satisfied, then the scheme shall be settled for better administration of the institution. 11. Section 107 of the Act contemplates that the Act not to affect rights under Article 26 of the Constitution. It reads as follows; “Nothing contained in this Act shall, save as otherwise provided in Section 106 and clause(2) of Article 25 of the Constitution, be deemed to confer any power or impose any duty in contravention of the rights conferred on any religious denomination or any section thereof by Article 26 of the Constitution.” 12. As per the case of the respondent/plaintiff, the temple in question is a private temple and as such it could be termed as denominational religious institution. In this connection, we may refer to Article 26 of the Constitution of India. Article 26 guarantees certain rights to every religious denomination, subject to 'public order, morality and health', and the rights are capable of being enforced by or on behalf of a denomination. This dictum is laid down in Devaraja Shenoy vs. State of Madras, AIR 1953 Madras 149. 13. As observed by the Apex Court in Sri Adi Visheshwara of Kashi Vishwanath Temple, Varanasi, vs. State of U.P., (1997) 4 SCC 606, this Article (Article 26) does not create rights in any denomination or a section, which it never had. It merely safeguards and guarantees the continuance of a right which such denomination or the section had. Article 26 of the Constitution of India reads 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." https://hcservices.ecourts.gov.in/hcservices/ 14. While Article 25 of the Constitution of India extends to all persons, Article 26 is confined to religious denominations. Hence, there is no anomaly in the fact that while the rights under both the Articles 25 and 26 are subject to 'public order, morality and health', Article 25 is also subject to 'other provisions' of Part III, while Article 26 is not. This has been envisaged by the Hon'ble Supreme Court in Narendra Prasadji Anand Prasadji Maharaj, Acharya Maharaj Shri v. state of Gujarat, AIR 1974 SC 2098. 15. In Commissioner H.R.& C.E v. Lakshmindra Thirtha Swamiar (1954) SCR 1005:AIR 1954 SC 282, the phrase 'Denomination' has been explained in the following manner: 'Denomination' – The word 'denomination' has been defined 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. To constitute a religious denomination, the following three conditions have to be complied with: 1. It must be a collection of individuals, who have a system of beliefs or doctrines which they regard as conducive to their spiritual well-being, i.e., a common faith, 2. A common organisation, 3. Designation by a distinctive name. 16. The term 'Denomination', as defined in Black's Law Dictionary 6th Edition at Page No.435, means: 'The Act of nominy. A society of individuals known by the same name, usually a religious society.' 17. The phrase 'Denominational Institution' has been defined in the Black's Law Dictionary in the same edition and the same page that: 'Institution controlled or operated by a religious sect or organisation and hence forbidden to receive governmental aid because of constitutional separation of Church and State.' 18. Hence, as contemplated under the proviso to Section 107 of the Act there is nothing in the Act in contravention of the rights conferred under Article 26 of the Constitution of India. 19. It may also be relevant to refer Section 51 of the Act. Sub- clause (a) to Section 51 was omitted by the Tamil Nadu Hindu https://hcservices.ecourts.gov.in/hcservices/ Religious and Charitable Endowments (Amendment) Act, 2006 (Tamil Nadu Act 15 of 2006) with effect from 16.07.2006. Sub-clause (b) to Section 51 contemplates that the Government, the Commissioner, the Joint Commissioner, the Deputy Commissioner or the Assistant Commissioner in making appointments of trustees under Section 47 or Section 49-A, as the case may be, shall have due regard to the claims of persons belonging to the religious denomination for whose benefit the institution concerned is chiefly intended or maintained. 20. Section 108 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 creates an embargo to file a suit in respect of administration or management of religious institutions etc., Section 108 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 enacts as follows: "108. Bar of suits in respect of administration or management of religious institutions etc.- No suit or other legal proceeding in respect of the administration or management of a religious institution or any other matter dispute for determining or deciding which provision is made in this Act shall be instituted in any Court of Law, except under, and in conformity with, the provisions of this Act." 21. In this connection, the learned counsel for the respondent/plaintiff would submit that the plaintiff had filed an application in O.A.No.14 of 1992 before the second defendant the Deputy Commissioner, H.R. & C.E. Admn., for declaration that the suit temple is not coming under the purview of the Act. He has also added that since the application was dismissed on 27.02.1995, he had filed an appeal in A.P.No.54 of 1995 before the first defendant, who is the Commissioner, H.R. & C.E. Administration Department, which was also dismissed on 20.12.2000. Hence, with no other option, the plaintiff as indicated in the proviso to Section 70(1) of the Act was constrained to file a suit before the Trial Court. 22. The learned counsel for the respondent/plaintiff while advancing his arguments has submitted that when it was contended by the plaintiff that the temple in question is a denominational and private religious institution, it is for the Hindu Religious and Charitable Endowment Department to prove and establish that the temple in question is a public temple. 23. In support of his contention, he has placed reliance upon the decision of this Court in Kuppuswamy vs. The Commissioner, H.R. & C.E. & another, 2011-1-L.W.351. In Paragraph No.29 of the above https://hcservices.ecourts.gov.in/hcservices/ cited Judgment, the learned Single Judge of this Court has observed as follows: “29. 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 of the temple, whether it is a public temple or a private temple, the burden is on the Hindu Religious and Charitable Endowment Department to prove that the temple is a public temple.” 24. The same question as to whether the temple is a private temple or a public temple was arisen in Mundacheri Koman vs. Achuthan Nair, 1934 LW Vol.XL 428, P.C.Appeal No.3 of 1933. For the above said question, the Privy Council has answered that: “In the greater part of the Madras Presidency, where private temples are practically unknown, the presumption is that temples and their endowments form public charitable tusts. But this presumption does not apply in the case of temples in Malabar. Hence in the case of a temple in Malabar, the decision of the question whether the temple is a public or private temple really depends on the inferences to be derived from the evidence as to the way in which the temple endowments have been dealt with the evidence as to the public user of the temple.” 25. On the above line, the learned counsel for the respondent/plaintiff has also placed reliance upon an another decision in T.Mudaliar vs. Commr. H.R. & C.E. AIR 1976 Madras 26. In this case, the ancestors of Periaveettu Mudaliar Family about 1000 years ago constructed Shiva temple at Alur on sites belonging to them with their private funds. The Ashtabandhan Prathishtan was made by the ancestors. There was no evidence expressly as to dedication, but from time immemorial these temples were recognized as the private temples of the Periaveettu Mudaliar family. The State of Travancore as it then was recognised private ownership of religious institutions. There was no pavement on the prakaram as in the case of other temples. There was no gopuram for the temple. There was neither the permanent flag itself (Dwajasthambam) nor was there even a structure for installing a temporary flag staff for celebrating periodical utsavam of the temple. No provision had been made for taking out the idols of the temple on procession to any place outside the inner compound of the temple. There was no hundi for collection https://hcservices.ecourts.gov.in/hcservices/ from worshippers of the temple. There was no bell and when the Commissioner visited the temple at the time of Deeparadhana, there were no outsiders excepting himself and the two inspectors of the department. The provision of the door and the compound wall and the site of the temple was such that it was incapable of attracting members of the public to resort therein as of right either for worship or for participating in any celebration therein. The question was whether such a temple was a public temple or a private one. After analysing the materials on record, this Court has held that the temple was a private one. 26. In Paragraph No.13 of the above cited Judgment, the HON'BLE JUSTICE RAMAPRASADA RAO has held that: “13. In the beginning, we have set out the principles which have to be borne in mind in deciding whether a temple is a private one or a public one. At the outset we have to mention that the indicia and the necessary features, which ought to be present in a temples is absent in the instant case. Utsavamurthies are not taken in procession. There is no gopuram. There is proof of Ashtabandhanan Prathishta having been made by the ancestors. There is no external indicia which is ordinarily present in public temples in South India. The compound wall is not to be equated to aprakaram. There were no worshippers at the time when the Deeparadhanan was done. Excepting the representative of the Commissioner and the two Inspectors, there is no proof that any member of the public participated in it.” 27. In T.D.Gopalan vs. The