IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 22.12.2010 CORAM: THE HON'BLE MR. JUSTICE M.DURAISWAMY A.S.No.197 of 2003 & C.M.P.NO.3607 of 2003 Kuppuswamy ... Appellant/Plaintiff v 1.The Commissioner, H.R. & C.E., Admn. Department, Chennai – 600 034. 2.The Deputy Commissioner H.R. & C.E.,Admn. Department Chennai – 600 034. ... Respondents/Defendants Appeal is filed under Section 70(2) of theT amil Nadu Hindu Religious and Charitable Endowments Act 1959 against the judgment and decree made in O.S.No.8268 of 1992 dated 11.03.2002 on the file of V Assistant Judge, City Civil Court, Madras. For Appellant : Mr.R.Subramanian for Mr.N.C.Ashok Kumar For Respondents : Mr.T.Chandrasekar, S.G.P. (H.R. & C.E.) JUDGMENT The above appeal arises against the judgment and decree in O.S.NO. 8268 of 1992 on the file of V Assistant Judge, City Civil Court, Chennai. 2. The plaintiff in the suit is the appellant and the respondents were the defendants in the suit. 3. The plaintiff filed the suit in O.S.NO. 8268 of 1992 on the file of V Assistant Judge, City Civil Court, Chennai to declare that the plaintiff institution is outside the scope of provision of Hindu Religious and Charitable Endowments Act 22 of 1959 by setting aside the order of the Commissioner, Hindu Religious and Charitable Department, Chennai passed in A.P.No.89/90 dated 23.4.1992 and for permanent injunction restraining the https://hcservices.ecourts.gov.in/hcservices/ defendants from interfering with the administration of the suit temple. 4. The brief case of the plaintiff in the suit is as follows:- (i) According to the plaintiff, Sri Rama Anjaneya Temple situated in the Teachers' Colony, Royapettah, Chennai is a private temple. The origin of the institution in question is of very recent one. The institution in question is actually located in the private land belonging to the layout of Teachers' Colony, Royapettah, Chennai – 14. It was plotted out into 19 plots. A portion in the entire lay out was set apart for the common community purpose. A portion was left apart for the purpose of laying road. The teachers' colony consisted of teachers, who were working in Hindu High School, who jointly purchased the plots and plotted out the entire area. (ii) According to the plaintiff, the residents of teachers' colony have formed an association known as "Teaches Colony Cultural Association" in which, the residents of Teachers' colony are members. Similarly, they have also formed " Teachers' Colony Youngmen's Association' in which, persons residing in teachers' colony are holding membership and taking active part in the activities of the association. Though there are two associations, as far as the temple in question is concerned, it has been established and maintained by the said two associations out of the funds of the associations. (iii) According to the plaintiff, the said temple has been constructed at the end of Teachers' colony which has a blind road end. Even in the lay out, this area was meant for community purposes. First, a small deity of Anjaneya was put in a thatched roof and it was improved stage by stage. The temple does not own any property. The site, over which the temple has been constructed, belongs to the residents of teachers' colony, who are living in that area. (iv) According to the plaintiff, the temple has been established and being administered and mostly worshipped by the residents of teachers' colony. In fact, each day, each house is contributing Rs.10/-. Members of teachers' colony have been in the management and administration of the temple. It was only the residents of teachers' colony, who have been managing and administering the affairs of the temple from time to time. S.T.Bashyam Iyengar, Secretary of the temple committee, who is the retired teacher from Hindu High School, is doing the poojas in the temple honorarily and he has been taking only certain amounts towards the actual expenses. He alone attends to the poojas and other services of the temple both in the morning and in the evening and on festival occasions. The temple is under his lock and key. He is https://hcservices.ecourts.gov.in/hcservices/ incharge of the entire temple affairs. The said S.T.Bashyam Iyengar opens and closes the temple in the mornings and again opens the temple in the evenings and closes in the late evenings. There is no fixed time for the temple. The temple is opened according to the convenience of the residents of teachers' colony and mainly it is only the said Bashyam Iyengar, who controls the times according to his convenience. The public are allowed to worship in the temple only when the temple is opened. There is no fixed hours. There is no dedication of any property to deity in question nor there is a dedication for any public worship. The public cannot enter and worship in the temple as a matter of right. The temple is not intended for the benefit of the public. The temple is not used as a place of public religious worship. Further, according to the appellant, Bashyam Iyengar has put up a small box in the temple where the residents of the locality put their contribution for meeting the expenses. According to the appellant, the temple has no Dwajasthambam, Rajagopuram and Prakaram. The temple does not have ingredients of a public temple. (v) According to the plaintiff, when the Hindu Religious and Endowment Board wrote a letter dated 14.10.1988, calling upon them to show cause why trustees should not be appointed, the Secretary sent a reply dated 20.10.1988 clearly stating that the temple in question is a private temple and that it is outside the scope of provisions of Hindu Religious and Endowment Act. The plaintiff filed Original Application in O.A.No.31 of 1988 before the Deputy Commissioner, Hindu Religious and Endowment Board, Administration Department, Chennai, the second defendant, under section 63(a) of the Tamil Nadu Hindu Religious and Endowment Board Act. The Secretary examined himself as a witness and has marked Exs. A-1 to A-9. The Deputy Commissioner passed a cryptic order in one para dismissing the application. As against the order of the Deputy Commissioner, the plaintiff preferred appeal before the first defendant under section 69(1) of the Act. By order dated 23.4.1992, the first defendant dismissed the appeal. The said order was communicated to the plaintiff on 25.6.1992. (vi) According to the plaintiff, the appellate authority, the first defendant, for the first time considered all the documents and has given his own findings without and evidence. The first defendant has not properly appreciated the scope of definition of section 6(2) of the Hindu Religious and Endowment Board Act. The first defendant failed to see that even in houses, after pooja, sacred water and Thualsi are being given. It is based on Hindu custom and it cannot be taken as ingredient to hold that the place in question will become a public temple. The first defendant also failed to see that simply because in the printed pamphlet the devotees have been asked to contribute for the conduct of the ceremony, it will not amount to temple being construed as public temple and it will not amount to dedication. The first defendant https://hcservices.ecourts.gov.in/hcservices/ also failed to see that there is no fixed working hours for the temple and the public cannot worship in the temple as a matter of right. In these circumstances, the plaintiff filed the suit. 5. The brief case of the defendants are as follows: (i) According to the defendants, the suit temple is not a private temple. The temple will fall within the meaning and definition of a temple under section 6(2) of the Hindu Religious and Charitable Endowment Act. It is the place of public worship and a religious institution under section 6(10) of the Act. The plaintiff has collected public funds for the construction of the temple. The plaintiff, who is the Archagar of the temple, is allowing the Hindu public other than the residents of the teachers' colony to worship in the temple as a matter of right. The plaintiff, as a Archakar, is also distributing prasadams to the outsider, public and receiving the kanikkai offered. The public are entering the temple as a matter of right. Therefore, the temple is dedicated to the public. The contribution received for the construction of the temple and accounts prepared by the private auditors would clearly proves the dedication. No where in the accounts there is a mention of the name of association but all accounts and contributions stands in the name of the Deity which clearly proves the dedication. It is a place of public worship and a religious institution under section 6(18) of the Act. (ii) According to the defendants, the averment that a box for collection of contribution from the residents of locality is false and it is only a Hundial and that any container collecting money is a Hundial. The orders passed by the defendants in O.A.No.31/88 and A.P.No.89/90 were exercised only under the provisions of section 63(1) and 69(1) of the Act. The orders were passed based on records and facts placed by the plaintiff. The order of the defendants are in accordance with law based on the oral and documentary evidences. (iii) According to the defendants, tickets were also printed for collection of donations for Sri Ramanavami festival and a fixed amount of Rs.10/- was collected from the public. This will clearly proves that there is dedication. Not only the residents of the teachers' colony, but also the public, who enter the temple for worship offered their donations in the Hundi. There is public participation in the management of the temple. When the property has not been conveyed in favour of the temple by any document, conferring right on them to make use of it for the purpose of construction of the temple, the contention of the temple cannot be relied upon. In Hindu Religious and Charitable Endowment Act, a public temple is clearly defined and there is no need to define a private temple. The defendants have properly appreciated the scope of section 6(20) of the Hindu Religious and Charitable Endowment Act https://hcservices.ecourts.gov.in/hcservices/ that the finding and the reasoning are based on law and facts. In these circumstances, the defendants prayed for dismissal of the suit. 6. Before the trial court, on the side the plaintiff, P.W.1 was examined and 18 documents, Exs. A-1 to A-18 were marked and on the side of the defendants, D.W.1 was examined and no document was marked. 7. The trial court after taking into consideration, the oral and documentary evidences of both sides, dismissed the suit. 8. Aggrieved over the judgment and decree of the trial court, the plaintiff, has filed the above appeal. 9. Heard Mr.R.Subramanian, learned counsel appearing for the appellant and Mr.T.Chandrasekar, learned Special Government Pleader (H.R. & C.E.) for the respondents. 10. On a careful consideration of the materials available on record and on the submissions made by both the counsels, the following points arise for consideration in the above appeal:- " (i) Whether the suit temple is a pu8blic or private temple? (ii) Whether the appellant/plaintiff is entitled for decree for declaration and injunction as prayed for in the suit ?" 11. The appellant/plaintiff filed the statutory suit under section 70 of the Tamil Nadu Hindu Religious and Charitable Endowment Act 22 of 1959 challenging the order passed by the first respondent/first defendant, confirming the order passed by the second respondent/second defendant holding that the suit temple is the public temple and rejecting the appellant's claim that the temple is a private temple. Originally, the suit was filed by one Bashyam Iyenger in the capacity of Secretary of Sri Rama Anjaneya Temple. Pending suit, the said Bashyam Iyenger died and his son, Kuppusamy, in the same capacity as Secretary, was impleaded as the plaintiff in the suit. 12. According to the appellant/plaintiff, the suit temple is actually located in the private land belonging to the lay out of Teachers' colony, Royapettah, Chennai. The origin of the institution in question is of very recent one. The teachers' colony consisted of teachers, who were working in Hindu High School, who jointly purchased the plots and plotted out the entire area. https://hcservices.ecourts.gov.in/hcservices/ 13 According to the appellant, the residents of teachers' colony have formed two associations namely, "Teachers' Colony Cultural Association" and " Teachers' Colony Youngmen's Association'. As far as the temple in question is concerned, it has been established and maintained by the said two associations out of the funds of the associations. The temple was improved slowly stage by stage and the temple does not own any property. 14. According to the appellant, S.T.Bashyam Iyengar, Secretary of the temple committee, who was the retired teacher from Hindu High School, was doing the poojas in the temple honorarily and he was being assisted by his son and other residents of the teachers' colony and none else. The temple was managed by Bashyam Iyengar and it was under his lock and key. According to the appellant, there is no fixed time for the temple. The temple is opened according to the convenience of the residents of teachers' colony. There is no dedication of any property to the deity in question nor there is a dedication for any public worship. According to the appellant, public cannot enter and worship in the temple as a matter of right. The temple is not intended for the benefit of the public. The temple is not used as a place of public religious worship. Further, according to the appellant, S.T.Bashyam Iyengar had put up a small box in the temple where the residents of the locality put their contribution for meeting the expenses. According to the appellant, the temple has no Dwajasthambam, Rajagopuram and Prakaram. The temple does not have ingredients of a public temple. In these circumstance, the appellant contended that the suit temple is a private temple. 15. Based on the report of the Inspector of Hindu Religious and Charitable Endowment Board dated 04.08.1988, the Hindu Religious and Charitable Endowment Department sent Ex.A-1 show cause notice dated 6.8.1988 to the appellant/plaintiff stating that the department has proposed to appoint trustees. Thereafter, the appellant/plaintiff filed Original Application in O.A.No.31 of 1988 before the second respondent under section 63(a) of the Tamil Nadu Hindu Religious and Endowment Board Act to declare that the temple is not a temple as laid down under section 63(a) of the Act. 16. Before the second respondent, the Secretary of the temple committee was examined and 9 documents were marked. The Inspector of Hindu Religious and Charitable Endowment Department was examined as C.W.1. The second respondent came to the conclusion that the public are allowed to worship in the temple without any restrictions and the temple in question is having managed by the residents of teachers' colony Royapettah might have contained people of different communities. Therefore, the temple is not a private temple. The second respondent ultimately dismissed the application. https://hcservices.ecourts.gov.in/hcservices/ 17. Aggrieved over the same, the appellant/plaintiff preferred appeal in A.P.No.89/90 on the file of first respondent/first defendant relying upon the evidence of C.W.1, who deposed that there was a Hundial and there is distribution of Prasadam like sacred water and Thulasi after pooja to the worshippers. The first respondent also relied upon a printed pamphlet at the time of consecration ceremony, which has been marked as Ex.A-10. At the end of the notice, a request was made to the devotees to make contribution for the purpose of consecration ceremony. 18. In Ex.A-10 pamphlet, it has been stated as follows: "gf;jh;fs; midtUk; fye;J bfhz;L j';fshy; ,ad;w bghUSjtpia mspj;J rpwg;ghf elj;jp itj;J nkw;go vk;bgUkhd; fpUigf;F ghj;jpuh;fshf MFk;go gpuhh;j;jpf;fpnwhk;". 19. Though it has been mentioned in Ex.A-10 pamphlet that 'gf;jh;fs;' the first respondent construed the said word as 'public'. It is pertinent to note that in Ex.A-10 pamphlet the word 'bghJ kf;fs;' has not been mentioned. While so, the first respondent/first defendant took it as public and found that the public also contributed for the temple. 20. The first respondent found failed to prove that the temple committee consists of a group of individuals belonging to certain family and their descendants and ultimately, came to the conclusion that the temple is a public temple and dismissed the appeal. 21. Learned counsel appearing for the appellant, in support of his contention, relied upon the following judgments: (i) 2009(16) SCC 409 (G.Jayalakshmi and others v. Arulmighu Pazkhikanchiya Vinayagar Trust and its temple), wherein the Hon'ble Apex court held that a temple may be declared as public temple inter alia when a grant is made in favour of the public by the owner of the property although the temple is constructed by a private person, or if the temple is constructed on Government land and if the public in general have a right to worship the deity as contra distinguished from the right of worship in a temple which is confined to a family on community. (ii) 1975(2) MLJ 310 (Thanumalayaperumal and others v. The Commissioner, H.R. & C.E. Department, Madras and others), wherein the Division Bench of this court held as follows:- https://hcservices.ecourts.gov.in/hcservices/ "8 (a) The existence of Moolasthanam, Mahamandapam, Prakaram, idols of chief and other deities, utsavamurthi, daily poojas, special poojas and procession during festive occasions, worship by the local public belonging to different communities without any let or hindrance, are all factors which give the impression that the temple is a public one. 8(b) If the temple is being used as a 'place of public religious worship if there is no dedication of the temple to and for the benefit of the Hindu community or any section thereof, if it is not used generally by the Hindu community as of right as a place of public religious worship, if there is no hundial and no collections are made from the public for the performance of any festival connected with the temple as for its maintenance and no member of the public has come forward to say that he has contributed any amount for the maintenance or any of the related poojas to the deity therein, the temple will not be a public temple, but a private one. 8(c) The origin of the temple, the manner in which its affairs are managed, the nature and extent of the gifts received by it, rights exercised by devotees in regard to worship therein, the consciousness of the manager, and the consciousness of the devotees themselves as to the public character of the temple, are factors that go to establish whether a temple is a public or a private one and in each case both the documentary and oral evidence have to be considered as is whole while keeping in view the above principles. 8(d) An inference whether a religious institution is a pubic one or a private one can be drawn from the usage and customs of the institution or from the mode in which the properties have been dealt with as also the other established circumstances. 8(e) The essential sine qua non to make a temple a public temple appears to be that the public should claim the right to worship the deity installed therein as of right. If the origin of the temple is very well-known as a private temple, then the clearest possible evidence is necessary for converting that temple into a public temple. As worshippers, are naturally welcome and as the sentiment of a Hindu would not prevent another from making offerings or to turn away a worshipper and as there is an inmate desire in persons in charge of private temples not to discourage popularity of the deity, the mere circumstance https://hcservices.ecourts.gov.in/hcservices/ o that the people in the locality were visiting the temple and were worshipping the deity may not take away the character of the temple from a private temple to a public temple. In all such cases worship of outsiders is referable to the leave and licence granted by the owner and cannot be indicative of any dedication to the public. 8(f) A temple will not be a public temple within the scope of the Act because in the absence of an express dedication for the benefit of the pubic, user by the public as of right must be established and such user as of right is far different from the trustees being willing to welcome the public to come and worship in the temple. If a temple had no garbagraham, mahamandapam and if there was no dwajasthambam, no prakaram no hundi and if no kanikai or any collection was made b y temple and if the utsava idols were not taken in procession in the street then the temple in not a public one. 8(g) If the public do not worship the idol as of right and simply because some poojas are performed in a temple and certain members of the public are allowed to participate in the pooja, the temple cannot be said to be a public temple." (iii) 2006(5) CTC 645 (Sri Krishnavilas Bajanai Madam v. The Commissioner, H.R. & C.E., Department, Madras and others), wherein, a Division Bench of this court held that in the absence of any material whatsoever indicating that pubic had right to participate in the worship or in the bajanai or offer any worship, a document creating a trust can be construed only as a private trust. The Division bench also held that in the absence of a member of public participating in the management or even had right to worship, then same can be construed only as private trust. (iv) AIR 1972(SC) 1716 (T.D.Gopalan v. The Commissioner, H.R. & C.E. Department, Madras), wherein the Hon'ble Apex Court held as follows: " 11. ... In short the origin of the temple, the manner in which its affairs were managed, the nature and extent of the gifts received by it, rights exercised by devotees in regard to worship therein, the consciousness of the manager and the consciousness of the devotees themselves as to the public character of the temple were factors that went to establish whether a temple was public or private." https://hcservices.ecourts.gov.in/hcservices/ (v) AIR 1971 SC 2057 (The Bihar State Board of Religious Trust (Patna) v. Mahanth Sri. Bishwar Das), wherein it has been held as follows: "14. Evidence that the mahants used to celebrate Hindu festivals when members of the public used to attend the temple and give offerings and that the public were admitted to the temple for darshan and worship is also indicative of the temple being one for the benefit of the public. The celebration of festivals is according to Hindu belief, part and parcel of the pooja of the deity. ..." (vi) AIR 1954 MAD 482 (Madras Hindu Religious Endowments Board v. N.Deivanai Ammal), wherein, the Division Bench of this court held as follows: " In the absence of a deed of dedication it is essential that it should be clearly proved that the temple claimed as a public temple was dedicated to the public. In the case of an old temple, such dedication might be presumed from long user by the public as of right. But in the case of a recently built temple it would be difficult to hold that there has been dedication to the public, in the absence of a deed of dedication. Where no property ahs been dedicated for the upkeep of the temple and the worship is maintained and the expenses are met from out of private funds it is difficult to hold that the temple has been dedicated to the public. In such a case, merely the fact of the Utsava deity being taken in procession or the fact that members of the public were worshipping in the temple, or that when the temple was built kubhabhishekam was performed on a grand scale, or a Gurukkal has been engaged to perform the pooja regularly and the temple has got a gopuram and other features which are usually found in a public temple is not of sufficient weight to prove that there has been dedication to the public." (vii) 2003(1) MLJ 288 ( The