1999 Supreme(Bom) 364

IN THE HIGH COURT OF BOMBAY
Lodha R.M., J.
Gangadhar Ambadas Parashare .... Appellants.
Verses
Mahadeo Ambadas Parashare others .... Respondent.
First Appeal No. 554 of 1982, decided on 5/6-5-1999.

Headnote:Sections 2(13) and (17)Temple-Public or private trust Considerations-Building constructed on vacant lease land leased out for 99 years-Temple and owner while residing on ground-floor, tenants residing on first and second floors-On expiry of lease period land has to be restored to lessor in vacant position-These indicating nature of temple as private and not public or permanent-Dedication of temple in perpetuity is necessary attribute of public temple-Held, thus a private trust.- The dedication of the temple in perpetuity is necessary attribute of public temple. It is true that some of the circumstances for an endowment being public trust are shown in the present case which are also highlighted by the Court below but, the predominant factor that the temple forms part of residential precincts and that too a small portion of the entire property clearly indicates the nature of temple as private temple and not public temple. The Assistant Judge was not right when he observed that long lease of 99 years was sufficient to bring characteristic of permanency of the temple. It may be that the land and the property was obtained on lease for the purpose of construction but the fact, that any construction on the vacant land was liable to be removed on expiry of lease clearly demonstrates the lack of characteristic of permanency which showed that the temple was constructed for private purposes. After all the essence of the trust for public or religious purpose lies in its characteristic of permanency and if a temple is constructed on lease property though for a long duration of 99 years, it cannot be said that it has a characteristic of permanency. Moreover, the very location of the temple on the portion of the ground floor which is also used for residence and the fact that the two other floors viz., first and second floors are occupied for residential purposes by tenants are strong indicator of the fact that the temple Ganga Mandir was not public temple.

       Sections 2(13) and 2(17)Dedication of temple in perpetuity is a necessary attribute of public temple-Temple forming part of residential precincts of a small portion of entire property indicates temple to be a private one-Public Trust-Essentials relevant-Essence of the trust for public or religious purposes lies in its characteristic of permanency.- The essence of the trust for public or religious purpose lies in its characteristic of permanency and if a temple is constructed on leased property though for a long duration of 99 years it cannot be said that it has a characteristic of permanency.

       The evidence on record established that the temple was situated in the residential precincts and occupied only small portion of the entire property. The circumstances that the temple was part of the building which was constructed on the vacant land taken on lease and the lessee or for that matter, his successor in interest was liable to demolish the said temple and the construction at their cost on expiry of lease i.e., on 13th October, 2020 would indicate that there could not have been dedication of the temple in perpetuity.

       The crucial tests for determining whether a temple is intended for private worship or public worship is to find out whether the temple has been constructed within the precincts of residential quarters or in a separate building. The dedication of the temple in perpetuity is necessary attribute of public temple. The predominant factor that the temple formed part of residential precincts and that too a small portion of the entire property clearly indicated the nature of temple as private temple and not public temple. The Assistant Judge was not right when he observed that long lease of 99 years was sufficient to bring characteristic of permanency of the temple. Orders of Assistant Judge affirming the order of Joint Charity Commissioner and the order passed by Assistant Charity Commissioner quashed. Shri Ganga Godavari Mandir, Panchavati, Nasik is not a public trust under Bombay Public Trusts Act, 1950. Case law reviewed.