1998 Supreme(SC) 1179

1998(9) Supreme 52
Supreme Court of India
(From Orissa High Court)
K. Venkataswami & A.P. Misra, JJ.
Smt. Marua Dei @ Maku Dei & Ors. -Appellants
versus
Muralidhar Nanda & Ors. -Respondents
Civil Appeal No. 1990 of 1980
Decided on 30-11-1998
Counsel for the Parties :
For the Appellants : R.F. Nariman, Sr. Advocate, P.K. Routray, P.K. Chakravarty, P.N. Mishra, Advocates.
For the Respondents : B.A. Mohanty, Sr. Advocate, Ms. Mamta Tirpathi, A.K. Gupta and Farrukh Rashid, Advocates.

Headnote:Orissa Hindu Religious Endow­ments Act, 1951-Sections 41 and 44 read with Section 3(xiii) and 3(xv)-Public religious institution/ temple - Appellants ancesstors given samadhis in premises they lived and appellants continued to live therein-Idols of Hindu mythology were installed on samadhis -Public given access to worship-Deities worshiped by public along with samadhis-Additional Assistant Commissioner of Endowment held that institution is neither a public temple nor a math as defined in the Act but private institution of appellants-Appellate autho­rity upheld decision giving a finding that though institution has developed all external features of Hindu temple and deities were worshipped by public, institution was not used as of right by Hindu community as place of public religious worship and institution has been in possession and control and management of appellant-High Court holding, after reappreciation of evidence on record, that institution satisfied all essential features of a public temple, members of public visit place without restraint and are in the habit of offering worship as of right, appellant themselves held out and represented to public temple and therefore institution clearly falls within definition of temple as given in the Act-No direct evidence of dedication-Section 44 did not in any way fetter jurisdic­tion of High Court from going into facts and appreciating evidence-Conclusions reached by High Court not perverse-Interference not warranted.

       Held : the conclusion reached by the Addl. Assistant Commissioner was affirmed, on appeal, by the Commissioner. The Commis­sioner had made a local inspection before giving his findings on the issues raised before him. Before the Commissioner, it was conceded that the institution in question was not a math. The only question argued before the Commissioner was whether the institution is a temple within the meaning of the Act or a private institution. On the basis of the evidence and on the basis of his local inspection, the Commis­sioner found that ‘an extent of 1.04 acres was given by way of gift by Raja of Darpan to the first ancestor of the Petitioners and another extent of 7.28 acres was given by the Collector, Cuttack; that the structures have all the external signs of Hindu temple and in the subsidiary temples within the premises there are installed different Gods and Goddesses of Hindu mythology; that the main temple is about 30-40 ft. high; that within the premises there is a jhulan mandap and snanan mandap, a Rosaghar for cooking food for feeding the sisyas and that the idols are of large size built of either stone or cement’. The Commissioner also found that there was a bhog shop and bhog articles are supplied to sisyas on payment of cost within the premises. It was suggested that there was auctioning of bhog shop but the Commissioner found that in the absence of any evidence by auction purchaser the same cannot be taken for granted. The Commissioner also found that there is no sufficient evidence to find that daily rituals are ob­served in the institution as are commonly seen in any Hindu temple. On the basis of the evidence, he also found that the car festival was being observed in the institution at least upto 1960. As regards the resources utilized for the construction of the temple and installation of idols, the Commissioner was of the view that the evidence available on record was not adequate to establish that the petitioners were raising funds from the public by engaging Hundawallas or by issuing appeals. He also found that the petitioners and their ancestors were given pranamis out of reverence and that was utilized for the con­struction of temple and installation of images. The Commissioner took note of the fact that the petitioners have stopped conducting the Rathyatra since 1960 and have closed the temple gates for three years, which did not invoke any protest from public and on that basis the Commissioner was of the view that the public had visited the temple not as of right though they had free access to the premises to worship the deities installed therein. (Para 30)

       The Commissioner ultimately found that the institution originated from a samadhi of a saint and had developed to a place of religious worship; that the premises of the institution contained large pucca structures which are akin to Hindu temples and bear all the external features of such temples including the size and manner of construction of the building and that the temples accommodate various deities of Hindu mythology including Jagannatha, Balabhadra and Subhadra idols installed on the samadhis of the ancestors of the petitioners. Those deities are worshipped by the outsiders, who offer bhog. The Commis­sioner found that the main source of income of the institution was ‘Pranami’ and ‘Dakhina’ received from the sisyas of the petitioners; that the institution used to hold different Hindu religious festivals like Rathajatra, Dola Jatra, Jhulan Jatra till 1960 and the members of the public used to participate in such festivals; that the members of the public freely enter the premises of the institution to have dar­shan of the petitioners and to worship the deities in the temple and offer bhog to them. But no right of use by the members of the public was established. That the control, regulation and management of the institution had been with the petitioners and their ancestors since the time of the founder. The Commissioner further found that the temple and other constructions were not made out of donations raised from the public and that the members of the public had no control over the management of the institution. On the basis of this, the Commis­sioner found, affirming the conclusion of the Addl. Assistant Commis­sioner, that the institution was only a private one. (Para 31)

       As against the above conclusions of the Commissioner, the High Court, on a re-consideration of the evidence, reached just the oppo­site conclusion. The High Court found mainly on the basis of the evidence of P.W. 7, who is Petitioner No. 2, that the institution owns 8.50 acres of land out of which an area of 7.28 acres was granted by ‘Sarkar’ and that the rest of the area consisted of lands gifted by other people. For coming to this conclusion, the High Court placed reliance on Exbt. B/1. By referring to R.O.R. (Exbt. 2) the High Court was of the view that the recording of the land in favour of the Sa­madhi Gosain and description of Raghubar Das as a marfatdar, on the facts of the case, would show that the land had been dedicated for the benefit of Hindu public and not of any private individual or family. Rent free character of the land has continued upto date and that is a strong circumstance which is in favour of holding that the land was dedicated for the public benefit. To strengthen the above conclusion, the High Court referred to Exbt.-A, a copy of the objection filed by one of the predecessors of the petitioner in which it was stated that many people used to visit Chhatia Bata (premises in question) daily and more so on festive occasions and that as there was scarcity of water in the area, the people of the locality held a meeting and passed resolutions for requesting the Government for permission to excavate a tank on behalf of Chhatia Bata. Only on the basis of the above representation, the Government accorded permission for excava­tion of the tank over the Government land. The High Court, with refer­ence to Exbt.-E, a receipt book for collection of subscription from the public for construction of temple at Chhatia Bata was of the view that the petitioners themselves held out and represented to the public that the institution is a public temple. Though the Commissioner was of the view that in the absence of individual concerned with Exbt. E & F had not been examined and those documents could not be accepted as proof of facts contained therein, the High Court took the view that the evidence of O.P.W.-9 who spoke about those documents, could not be discarded especially petitioner No. 1 who was said to be in the know of things, avoided the witness box. Though the petitioner No. 2, as P.W. 7, gave evidence saying that petitioner No. 1 was suffering from blood pressure, that was disproved by the evidence of P.W. 1 who deposed that the petitioner No. 1 was not suffering from any physical infirmity. The High Court also took note of the fact that though it was admitted on behalf of the petitioners that they were receiving money as ‘Dakshina’ from the devotees, but no account was maintained to support the same. As against the evidence of P.Ws, the High Court preferred the evidence of OPWs to hold that the donations and sub­scriptions were collected from the public for construction of the temple and though P.W. 3, one of the witnesses of petitioners, had stated that accounts were maintained by Harekrushna Das for construc­tion of the temple and the accounts have not been produced. The High Court has taken note of the important features of the temples such as that a lion’s gate abutting the public road and the words ‘Chhatia Bata’ had written on the gate. Again believing the evidence of OPWs, the High Court came to the conclusion that the members of the public had free access to the temple. Again placing reliance on the evidence of P.W. 7 (petitioner No. 2), the High Court took note of the fact that in the evening some religious discussions used to be held in the temple and that the Brahmins have been engaged to carry out puja and to offer bhog to the deities. The High Court was conscious of the fact that there was no direct evidence of dedication but the evidence adduced in the case was sufficient to hold that the dedication was for the benefit of the public and that the Hindu public have been using the temple premises as a place of religious worship and offering bhog as of right. We have already set out the conclusions reached by the High Court on the basis of the oral and documentary evidence. (Para 32

       The High Court was considering the appeal under Section 44 of the Act and that Section did not, in any way, fetter the jurisdiction of the High Court from going into the facts and appreciating the evidence. On a careful reading of the judgment under appeal and after perusing the evidence placed before us, we are unable to hold that the findings of the High Court are perverse. The best evidence that could have been made available through the first petitioner (late Shri Harekrushana Das), both documentary and oral, was not forthcoming on a lame excuse. P.W. 7, petitioner No. 2, in his deposition has also said that it was the first petitioner who was in the know of vital things. This leads one to take an adverse inference and the High Court was right in taking such adverse inference on vital aspects such as donations raised for the construction of the temple and other structures by holding out that the institution was a public temple. We are not adverting to the various tests laid down by this Court and other High Courts separately as we are satisfied that broad­ly speaking, the features of constructions, idols and the festivals held, as noticed by the authorities and the High Court, are sufficient to hold that the institution in question falls within the definition of temple under the Act. (Paras 34, 35 & 36)