IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 02.09.2010 C O R A M THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR A.S.No.525 of 1997 1.The Commissioner, H.R. & C.E.Admn. Department, NungambakkamHigh Road, Madras-34 2.The Assistant Commissioner, H.R. & C.E.Admn. Department, NungambakkamHigh Road, Madras-34 ..Appellants/ Defendants 1 & 2 Vs. Sri Ayyappa Baktha Sabha Represented by its Secretary K.V.Thangappan Nair ...Respondent/ Claimant Appeal suit filed under Section 70(2) of the Tamil Nadu Hindu Religious and Charitable Endowments Act 22 of 1959 against the judgment and decree of the learned V Assistant Judge, City Civil Court, Madras made in O.S.No.4229/89 dated 9.9.93. For Appellant : Mr.M.R.Murugesan Spl. Government Pleader HR & CE For Respondent : Mr.T.L.Ram Mohan Senior counsel J U D G M E N T The Commissioner, Hindu Religious and Charitable Endowments Administration Department, Chennai and the Assistant Commissioner, Hindu Religious and Charitable Endowments Administration Department, Chennai, who figured as the defendants in O.S.No.4429 of 1989 on the file of the V Assistant Judge, City Civil Court, Chennai are the appellants herein. Sree Ayyappa Baktha Sabha represented by its Secretary K.V.Thangappan Nair, the plaintiff in the above suit, is the respondent in this appeal. https://hcservices.ecourts.gov.in/hcservices/ 2. The respondent/plaintiff filed a petition before the Deputy Commissioner of Hindu Religious and Charitable Endowments Administration Department, Chennai in O.A.No.4/1984 under Section 63(a) of the Tamil Nadu Act 22 of 1959 for getting a declaration that Sree Ayyappa temple constructed by the respondent/plaintiff sabha in the property bearing New No.45, (Old No.28), Sir Madhavan Nair Road, Madhavan Nair Colony, Nungambakkamm, Madras- 600 034 was not a Hindu public religious institution coming under the purview of the said Act and that it was a private temple which came into existence for the benefit of the members of the Sabha. The said application was filed pursuant to the steps taken by the officials of the H.R. & C.E. department to bring the temple under the control of the department. It had been prayed in the said application that the suit temple should be declared as a private temple not coming under the definition of section 6(20) of the Tamil Nadu Hindu Religious and Charitable Endowments Act 1959, (Act 22 of 1959). After enquiry in the said original application O.A.No.4/1984, the Deputy Commissioner, H.R & C.E. Administration Department, Chennai passed an order with the following observation:- "Although the petitioner sabha is maintaining a temple in which public religious worship exists, if there is no public dedication, it has to be concluded that the Ayyappa temple situated in the private land of Sree Ayyappa Baktha Sabha, Madhavan Nair Road, Madhavan Nair Colony, Nungambakkamm, Madras-34 has not been dedicated for the benefit of or use as of right by the Hindu community or any sections thereof as a place of public religious worship." The said order was passed by the Deputy Commissioner, H.R. & C.E. Administration Department on 10.03.1987. 3. As against the said order of the Deputy Commissioner, H.R. & C.E. Administration Department, as it is quite natural, no third party filed an appeal. However, the first appellant/first defendant, namely the Commissioner, H.R. & C.E. Administration Department, Chennai, exercising his power of suo motu revision under Section 69(2) of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959, issued necessary notice on the suo motu revision to the respondent/plaintiff sabha. In spite of the objections raised by the respondent/plaintiff sabha placing materials in support of its case, the Commissioner, H.R. & C.E. Administration Department rejected the contentions of the respondent/plaintiff sabha, found fault with the order passed by the Deputy Commissioner, H.R. & C.E. Administration Department in O.A.No.4/1984, set aside the order of the Deputy Commissioner, H.R. & C.E. Administration Department passed in O.A.No.4/1984 and held that Sree Ayyappa temple situated at No.45, Madhavan Nair https://hcservices.ecourts.gov.in/hcservices/ Road, Madhavan Nair Colony, Nungambakkam was a Hindu public religious institution as contemplated under Section 6(18) of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959. 4. As against the said order of the Commissioner, H.R. & C.E. Administration Department dated 13.01.1989, the respondent/plaintiff filed a statutory suit under section 70(1) of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 in O.S.No.4229/89 and prayed that the said order should be set aside and the suit temple should be declared a private temple not coming under the definition of religious institution as contemplated under section 6(18) of the said Act. The suit was resisted by the appellants herein/defendants. The written statement was filed by the first appellant/first defendant and the same was adopted by the second appellant/second defendant. In the said written statement it was contended that the suit temple, viz., Sree Ayyappa temple, situated at No.45, Madhavan Nair Road, Madhavan Nair Colony, Nungambakkamm, Chennai satisfied the ingredients of Hindu public religious institution as contemplated under section 6(18) of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 and that hence the suit should be dismissed. 5. It is the contention of the respondent/plaintiff that the objects of the plaintiff sabha are secular in nature, viz: "the spread of the cult of Sree Ayyappa which means universal brotherhood; arranging discourses and lectures; propagating the idea of charity by providing scholarships and other assistance to deserving students; feeding of poor; establish and run educational institutions; promoting tourism; providing medical assistance to needy and the poor; constructing halls, buildings etc.; to propagate the ideas of the sabha and establishing and running libraries containing books of all faiths"; that the membership of the sabha was open to all persons irrespective of caste, creed or religion and that hence the Society cannot be construed to be confined to any religion or community. It was also the contention of the respondent/plaintiff that the suit temple, namely Sree Ayyappa Temple, was built by the respondent/plaintiff society in a private land belonging to the sabha and that the construction of the temple was made only with the contributions made by the members of the sabha; that 10% of the members of the plaintiff sabha are Muslims, Christians and persons other than Hindus; that the admission to the temple for offering worship was reserved and that it was not open to all the members of the Hindu community to enter the premises and offer worship as a matter of right. It had also been averred in the plaint that a warning, to the effect that the temple was not open to all the members of Hindu community to offer worship in the suit temple as a matter of right, had been prominently displayed at the entrance of the temple from the very inception of the temple; that Sree Ayyappa temple is not a Hindu Public religious https://hcservices.ecourts.gov.in/hcservices/ institution as defined in Section 6(18) read with section 9(2) of the said Act; that it was not a place of public worship where members of public could offer worship or have access or entry as of right; that the temple was not dedicated to or endowed to general public, much less to members of Hindu community for offering worship as of right; that the entire property including the suit temple stood vested with the plaintiff sabha; that Sree Ayyappa temple was not a public religious institution to attract the provisions of Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959; that the suit temple was a private temple belonging to the respondent/plaintiff sabha in respect of which Hindu public or a section thereof did not have any right of entry and worship and that the suit temple was nothing but a private temple, to which the provisions of Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 would not apply. 6.Per contra, the appellants/defendants had contended in their written statement that the suit was bad for non-service of notice under section 80 CPC; that Sree Ayyappa temple had been treated as a separate entity by the respondent plaintiff and as such the objects of the sabha had nothing to do with the character of the temple; that the declaration granted by the Deputy Commissioner, H.R. & C.E. Administration Department, Madras in his order dated 10.03.1987 made in O.A.No.4/1984 to the effect that the suit temple would not come under the definition of section 6(20) of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 was not sustainable; that hence the first appellant, namely the Commissioner, H.R. & C.E. Administration Department, Chennai in exercise of his suo motu revision power under section 69(2) of the Act rightly invoked such power and decided to revise the order and that the ultimate order of the Commissioner, H.R. & C.E. Administration Department, Madras passed on 30.01.1989 in S.M.R. No.13/1988 setting aside the order of the Deputy Commissioner, H.R. & C.E. Administration Department, Madras dated 10.03.1987 made in O.A.No.4/1984 and consequently rendering a finding that the suit temple was a Hindu public religious institution as defined under the provisions of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 could not be successfully assailed as infirm or erroneous. It had also been contended therein that the land over which the temple had been constructed had been obtained by way of gift settlement; that the temple was constructed out of the donations received from the public; that the Hindu public were entitled to offer worship in the suit temple as of right; that the temple itself had been constructed based on the model of Sree Sabarimala Ayyappan temple; that as it would be done in respect of Hindu temples Kumbabishekam was also performed on 28.03.1974 for the suit temple; that poojas were performed in the suit temple by Namboodhiris; that Theerthavari (Aarattu) was also performed once in a year taking the deity to the sea and that separate accounts were maintained for the income and expenditure of the temple https://hcservices.ecourts.gov.in/hcservices/ administration and for the sabha. It was contended further that the temple was maintained out of collection of fees levied for the performance of special archanas and sevas etc.; that the worship had been offered in the temple by unascertained public, which would clearly show that the public had a right to offer worship and that the temple had been dedicated to public for worship; that the suit temple would answer the characteristics of the public religious institutions as per section 6(20) read with section 6(18) of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959; that the order passed by the Commissioner, H.R. & C.E. Administration department after considering all the aspects, could not be assailed and that hence the suit should be dismissed. 7. Based on the above said pleadings, the learned trial judge framed three issues, which are as follows:- i)Whether the order of the Commissioner, H.R. & C.E. Administration Department dated 30.01.1989 made in Suo Motu Revision No.13/1988 is liable to be set aside? ii)Whether Arulmighu Ayyappa temple concerned in the suit is a temple defined under Tamil Nadu Act 22 of 1959? and iii) To what other reliefs the plaintiff is entitled? 8. Four witnesses were examined as P.Ws.1 to 4 and forty two documents were marked as Exs.A1 to A42 on the side of the respondent/plaintiff and one witness was examined as D.W.1 and no document was marked on the side of the appellants/defendants. 9. The learned trial judge, at the conclusion of the trial, heard the arguments advanced on either side, considered the pleadings and evidence in the light of the points urged in such arguments and, upon such consideration, came to the conclusion that the character of the suit temple was rightly decided by the Commissioner, H.R. & C.E. Administration Department as a Hindu Public Religious institution found in section 6(20) read with section 6(18) of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959. The trial Court also held that the contention of the respondent/plaintiff that the suit temple was a private temple not coming under the scope of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 had got to be countenanced. Based on the said findings, the learned trial Judge by judgment and decree dated 09.09.1993 decreed the suit O.S.No.4229/89 filed by the respondent herein/plaintiff. 10. The said decree of the trial court is challenged in the appeal filed in accordance with the enabling provision found in section 70(2) of Tamil Nadu Hindu Religious and Charitable https://hcservices.ecourts.gov.in/hcservices/ Endowments Act, 1959 on various grounds set out in the memorandum of appeal. 11. The arguments advanced by Mr.M.R.Murugesan, learned Special Government Pleader (H.R. & C.E.) appearing for the appellants and the arguments advanced by Mr.T.L.Rammohan, learned senior counsel for the respondent were heard. Materials available on record were perused. 12. The points that arise for consideration in this appeal are:- i)Whether the suit temple is not a Hindu temple? ii)Whether the suit temple is a private temple belonging to the respondent/plaintiff sabha which does not come under the purview of Tamil Nadu Act 22 of 1959? and iii)Whether the court below has committed an error in holding that the order of the Commissioner, H.R. & C.E. Administration Department dated 30.01.1989 made in Suo Motu Revision No.13/1988 is liable to be set aside? 13. The Commissioner, Hindu Religious and Charitable Endowments, Administration Department, Chennai – 34 and the Assistant Commissioner, Hindu Religious and Charitable Endowments, Administration Department, Chennai – 34 , who figured as the first and second defendants respectively, in the original suit (O.S.No.4229 of 1989) are the appellants herein. Sree Ayyappa Baktha Sabha, represented by its Secretary, which figured as the plaintiff before the Court below is the respondent herein. The suit was one filed under Section 70(1) of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 (Act 22 of 1959). 14. Sree Ayyappa Baktha Sabha viz., the respondent/plaintiff, is a registered society. A pious and charitable woman, namely, Lady Madhavan Nair donated a land measuring about three grounds to the respondent/plaintiff Sabha by a deed of settlement dated 30.04.1974. In the said land bearing old Door No.28, New Door No.45, Sir Madhavan Nair Colony, Nungambakkamm, Chennai – 34, the respondent/plaintiff Sabha constructed a temple for Lord Sree Ayyappa with a typical temple architecture of Kerala and in accordance with the Agama Sastras, employing Late Sri Kaniapayyoor Sankaran Namboodripad, a well known temple Architect of Kerala and renowned exponent of Agama Sastras. The nature of the said temple is the subject matter of the suit from which the appeal has arisen. 15. According to the respondent/plaintiff Sabha, the said temple does not come under the definition of public religious institution under Section 6(18) of Tamil Nadu Act 22 of https://hcservices.ecourts.gov.in/hcservices/ 1959 and hence, the Tamil Nadu Hindu Religious and Charitable Endowments Department authorities do not have, and cannot exercise, any control over the management of the same. Per contra, the appellants contend that the suit temple viz., Sree Ayyappa temple is one constructed over a land donated by a person, who was not a member of the respondent trust; that the temple was constructed using the contributions collected from the members of the Sabha and also from the donations received from the public; that the temple has been built with the features of Hindu temple in accordance with Agama Sastras; that besides the idol of Sree Ayyappa, the chief deity, idols of Valli Deivanai, Malligai Purathama Devi and Vinayaka etc., have also been installed therein, which would show that the temple is a religious institution; that a board has been exhibited to the effect that non-Hindus are barred entry into the temple; that the temple has been left open for being worshipped by all the devotees of Lord Ayyappa, who are essentially Hindus; that Lord Ayyappa himself is a Hindu god; that the Hindu public come and offer worship there, as of right and that therefore, the suit temple , namely, Sree Ayyappa temple at Old Door No.28, New Door No.45, Sir Madhavan Nair Colony, Nungambakkam, Chennai – 34 is nothing but a Hindu Public temple, which comes under the definition of Hindu Public Religious institution found in Section 6(18) of Act 22 of 1959. 16. The contention of the respondent/plaintiff Sabha is two fold. The first contention is that Ayyappa worship is a particular cult transcending barriers of caste, religion and sections thereof; that the respondent/plaintiff society itself was established with the object of spreading the cult of Sree Ayyappa viz., universal brotherhood among all persons irrespective of caste, creed or religion and for other secular charitable purposes and that therefore, Sree Ayyappa temple constructed and managed by the respondent/plaintiff Sabha cannot be termed a Hindu temple to bring it within the ambit of the definition of Hindu Public Religious institution. The second contention of the respondent/plaintiff sabha is that Sree Ayyappa temple situated at Old Door No.28, New Door No.45, Sir Madhavan Nair Colony, Nungambakkam, Chennai – 34, is a private temple belonging to the respondent/plaintiff Sabha, in which its members alone have got a right of entry and that though the other devotees of Ayyappa (non-members of the Sabha) are permitted to offer worship on payment of entry fee, the respondent/plaintiff sabha retains a power to deny entry to any non-member. 17. In short, the two contentions made by the respondent/plaintiff sabha are:- 1) Sree Ayyappa temple is not a Hindu Religious Institution and 2) Sree Ayyappa Temple is a private temple belonging to the respondent/plaintiff Sabha. The correctness of both the above contentions of the https://hcservices.ecourts.gov.in/hcservices/ respondent/plaintiff is disputed by the appellants/defendants. According to them, the suit temple is a Hindu temple and a public temple as well since it was constructed using the donations collected from the public and left open to be worshipped by Hindu Public without confining the right of entry to defined persons. 18. The dispute arose when the Assistant Commissioner, Hindu Religious and Charitable Endowments, Administration Department, Chennai – 34 , namely, the second appellant proposed to seal the Hundis that were allegedly placed in the temple to enable the devotees to place their offerings and thus making an attempt to bring it under the control of the Hindu Religious and Charitable Endowments Department, on the premise that it is a public temple to which the provisions of Tamil Nadu Act 22 of 1959 apply. Pursuant to the said attempt, the respondent/plaintiff Sabha approached the Deputy Commissioner, Hindu Religious and Charitable Endowments, Administration Department, Chennai under Section 63(a) of Act 22 of 1959, for an order declaring that the suit temple is not a Hindu Public Religious institution. The Deputy Commissioner took the application thus filed by the respondent/plaintiff Sabha, on his file as O.A.No.4 of 1984 and after enquiry, decided the issue in favour of the respondent / plaintiff sabha. The first appellant, viz., the Commissioner, Hindu Religious and Charitable Endowments, Administration Department, Chennai – 34, in exercise of his suo motu power of revision under Section 69(2) of Tamil Nadu Act 22 of 1959, issued notice to the respondent/plaintiff in suo motu Revision No.13 of 1982 and after hearing, took a view that the Deputy Commissioner had passed an erroneous order, set aside the order of the Deputy Commissioner dated 10.03.1987 made in O.A.No.4 of 1984 and declared Sree Ayyappa Temple situated at Old Door No.28, New Door No.45, Sir Madhavan Nair Colony, Nungambakkamm, Chennai – 34 to be a religious institution as defined in Section 6 (18) r/w. 6/20 of Tamil Nadu Act 22 of 1959. 19. Aggrieved by the said order, challenging the same as erroneous and praying for an order to set aside the order of the first appellant dated 30.01.1989 made in suo motu R.C.No. 13 of 1988, the respondent/plaintiff had filed the suit under Section 70(1) of the Hindu Religious and Charitable Endowments, Administration Department Act, 1959. In order to prove its case, the respondent/plaintiff Sabha examined four witnesses as Pws 1 to 4 and produced 42 documents as Exs.A1 to A42. The appellants /defendants relied on the oral testimony of the sole witness examined on their side viz., DW1 without producing any documentary evidence. As a Court of first appeal, this Court has to consider and re-appreciate the evidence. Point No.1:- 20. Thangappan Nair, the Secretary of the https://hcservices.ecourts.gov.in/hcservices/ respondent/plaintiff Sabha has deposed as PW1. It is his evidence that there is no restriction on the ground of religion to become a member of the plaintiff sabha and that every one who believes in the cult of Ayyappa can become a member. It is also his evidence that the membership of the respondent/plaintiff Sabha consists of not only Hindus, but also Christians and Muslims. However, in his evidence he would admit that only a minority constituting 10% of the members are non-hindus. It is his further evidence that no donation from public was received for the construction of the temple and the donations made by the members and their friends alone were used for constructing the temple. He has specifically denied the contention of the appellants that a board has been displayed to the effect that non-hindus should not enter the temple. He has stated that they have put up a writing in front of the temple that right of admission is restricted. It is an admitted fact that the office of the respondent/plaintiff Sabha is located on the backside of the temple. A suggestion was made to PW1 to the effect that the said sign board was meant for indicating that the right of admission to the office of the Sabha alone was restricted and the right of admission to the temple was not restricted. Such a suggestion was stoutly denied by PW1. 21. PW2 is one Gabriel. He has been examined to show that despite being a Christian, he remains a member of the respondent/plaintiff Sabha and he is also offering worship in the suit temple, namely, Sree Ayyappa Temple. Through him also it is sought to be proved that the entry to the temple to offer worship to Lord Ayyappa is not restricted to members of a particular religion viz., Hindu religion; that irrespective of the religion to which they belong people are allowed to enter the temple and offer worship after getting specific permission. Similarly one J.M.Naji, who claims to be a Christian and at the same time a member of the respondent/plaintiff Sabha, has been examined as PW4. His evidence is similar to that of PW2. Sadhanadhan S/o.Krishnan has been examined as PW3 to show that he is a regular visitor to the suit temple and he has seen people belonging to other religions also coming there and offering worship. From the testimonies of Pws 1 to 4, it is made clear that the membership of the respondent/plaintiff Sabha is open to persons other than Hindus also and that persons other than Hindus are also permitted to offer worship to the deities in the suit temple. From the above evidence, it is quite obvious that the membership of the respondent/plaintiff sabha is open to persons professing religions other than Hindu also. In fact from the evidence of Pws 1 and 2 and Ex.A39, the Membership Register, it is obvious that Christians and Muslims are also inducted as members of the respondent/plaintiff. Respondent / plaintiff Sabha has also been registered as a Society under the Societies Registration Act, as evidenced by Ex.A9 Therefore, the contention of the respondent/plaintiff that the respondent / https://hcservices.ecourts.gov.in/hcservices/ plaintiff Sabha is a society transcending the barriers of religion, caste, creed etc., is well founded and stands established. Point Nos. 2 and 3:- 22. But the question involved in this case is not whether the respondent/plaintiff sabha is a Hindu Religious institution or a society meant for Hindus alone and on the other hand the question involved in this case is "whether Sree Ayyappa Temple situated at Door No.28, New Door No.45, Sir Madhavan Nair Colony, Nungambakkamm, Chennai – 34, admittedly constructed by the plaintiff society, is not a Hindu temple as contended by the respondent/plaintiff?" The respondent/plaintiff has raised the above contention on the strength of the plea that the society itself is not meant for Hindus alone and all the members of