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2014 Supreme(Bom) 1411
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Ravi K. Deshpande, J.
Yeshwant Balwant Badave - APPELLANTS.
VERSUS.
Shri. Yogi Rajendra Shivacharya Guru - RESPONDENTS.
SECOND APPEAL NO. 937 OF 2007
Decided On : July 17, 2014
Mr. V. A. Thorat, Senior Advocate with Mrs. S. S. Gokhale for the Appellants.
Mr. V. B. Naik, Senior Advocate with Mr. R. S. Alange for the Respondent Nos. 1 & 5 to 10.
Mr. Shivshankar D. Patil for the Respondent No. 12.
Headnote:Bombay Hindu Places of Public Worship (Entry Authorisation) Act, 1956 - Section 3. - See Constitution of India, Articles 25 and 26.
Bombay Hindu Places of Public Worship (Entry Authorisation) Act, 1956 - Section 3 Customs for entry in temples. - Any custom, usage or law for purpose of entry in temples, is required to be construed strictly. A custom is a long drawn, ancient, uniform, definite continuous and compulsory usage or practice which has been accepted followed and recognised by the members of community or religion interested in it. The custom has the effect of modifying the general personal law. But it does not override the statutory law unless the custom is expressly saved by it. No custom is valid if it is illegal, immoral, unreasonable or opposed to the public policy.
The custom being in derogation of the general law, is required to be construed strictly. The party relying upon the custom is obliged to establish it by way of clear and unambiguous evidence. The evidence adduced on behalf of the party concerned, must prove the alleged custom and proof must not be unsatisfactory or conflicting. A custom cannot be extended by analogy or logical process and it also cannot be established by a priory method.
Bombay Hindu Places of Public Worship (Entry Authorisation) Act, 1956 - Section 3 Right to worship in temples. - Rights to worship in temples, prescribed by custom, convention or traditions are not covered by Section 3 of Act. Section 3 does not intend to invade the traditional, conventional or customary manner in which the actual act of worshiping of a deity is allowed to be performed only by the authorised Poojaris of the temple and by no other devotee entering the temple for darshan. The rights to enter the sanctum sanctorum, i.e., to enter the innermost sacred part of the temple where the idols are installed and to do the actual worship by touching the idols for the purpose of bathing, dressing the idols, offering the garlands and doing all other ceremonial rites prescribed by the custom, convention or tradition, are not covered by Section 3 of the said Act.
Bombay Hindu Places of Public Worship (Entry Authorisation) Act, 1956 - Sections 3 and 6 Bar of jurisdiction of Civil Courts. - If relief claimed by plaintiffs and granted by trial Court violates provision of Section 3 of Act then bar of jurisdiction of Civil Court under Section 6 of Act attracted. Section 6 bars the jurisdiction of the Civil Court to entertain or continue any suit or proceeding or to pass any decree or order, or execute wholly or partially any decree or order, if the claim involved in such suit or proceeding or if the passing of any such decree or order or if such execution would in any way be contrary to the provisions of this Act.
The language employed under Section 6 leaves no manner of doubt that if the relief claimed by the plaintiffs and granted by the trial Court violates the provisions of Section 3 of the said Act, then, the bar of the jurisdiction of the Civil Court under Section 6 would operate. It will, therefore, depend upon the averments made in the plaint, the reliefs claimed and granted by the Court and the facts and circumstances of the case, whether the bar created under Section 6 of the said Act operates or not.
Constitution of India - Articles 25 and 26 Bombay Hindu Places of Public Worship Act, 1956, Section 3 Right to worship in temples. - Law, regarding right of religious denominations to perform rights and rituals in temples, as declared by Supreme Court summarized. The law as has been developed in several decisions of the Apex Court can be summarised briefly as under :
(1) The religious denominations or organisations enjoy complete autonomy in deciding as to what rites and ceremonies are essential according to the tenets of the religion they hold and no outside authority has any jurisdiction to interfere with their decision in such matters.
(2) Article 25(2) of the Constitution of India controls the rights of the individuals and of the communities but it must necessarily be subject to some limitations and regulations and one such would be inherent in the process of harmonizing the rights conferred by Articles 25(2)(b) of the Constitution of India with that protected by Article 26(b) of the Constitution of India.
(3) If the practice is religious practice or the affairs are the affairs in the matter of religion, then, of course, the rights guaranteed by Articles 25(1) and 26(b) of the Constitution of India cannot be contravened.
(4) The protection of Articles 25 and 26 of the Constitution of India is not limited to the mattes of doctrine or belief but extend also to the acts done in pursuance of the religion and therefore contain a guarantee for rituals and observances, ceremonies and modes of worship which are integral part of the religion.
(5) Section 3 of the Bombay Hindu Places of Public Worship (Entry Authorisation) Act, 1956 does not intend to invade the traditional and conventional manner in which the actual act of worship of a deity is allowed to be performed only by the authorised poojaris of the temple and by no other devotee entering the temple for darshan.
(6) If traditionally or conventionally any one well-versed and properly trained and qualified to perform pooja in a manner conducive and appropriate to the worship of a particular deity, is appointed as Santhikaran or Poojari de hors his pedigree based on caste, no valid or legally justifiable grievance can be made in a Court of law.
(7) Any custom or usage irrespective of any proof of their existence in pre-constitutional days cannot be countenanced as a source of law to claim any rights when it is found to violate the human rights, dignity, the social equality and specific mandate of the Constitution or the law made by the Parliament.
(8) No usage which is found to be pernicious and considered to be in derogation of the law of the land or opposed to the public policy or social decency can be accepted or upheld by the Courts in the country.
(9) In judging the rival claims as guaranteed by Articles 25(1) and 26(b) of the Constitution, the Court must be satisfied that the practice is religious and the affair is in regard to the matter of religion.
(10) What constitutes an essential part of the religion or religious practice has to be decided by the Courts with reference to the doctrine of a particular religion and includes the practices which are regarded by the community as part of its religion.
Specific Relief Act, 1963 - Sections 34 and 38 Suit for declaration of right to worship in temples. Since in a suit for declaration of right to worship in temples, source of such right is pleaded as customary law hence it cannot be said that source of right is not disclosed in plaint. The plaintiffs have unambiguously averred in the plaint that they are exercising the right to perform religious rites and rituals since the time immemorial and in antiquity, recognised and accepted by all others. The source of such right is therefore pleaded as customary law. The plaintiffs have placed on record documentary as well as the oral evidence in support of their claim.
It is well established that evidence is not required to be pleaded. The question as to whether such right is established or not, shall be dealt with subsequently. Therefore, in the absence of the documents being pleaded in the plaint, the suit cannot be dismissed. The lower appellate Court has committed an error of law in holding that the source of right is not disclosed in the plaint.
It is not case of any party that for want of any claim for declaration, the evidence could not be led. The Courts below have recorded the findings also. In view of this, it cannot, be said that the suit in question is not claiming any declaration of right under Section 34 of the Specific Reliefs Act, 1963, or that the contesting defendants had no notice of the claim for declaration.
1. In Regular Civil Suit No. 167 of 1985 for grant of injunction restraining the Defendant Nos.1 to 14 perpetually from obstructing the exclusive rights of the Plaintiffs of performing puja, archa, dahibhat, abhishek and other pujas etc before the deity Shri. Shambu Mahadeo, Amruteshwar and the other deities of Shikhar Shingnapur Devsthan as priest and to take income of the same and claiming permanent injunction restraining the Defendants from using the said rights unauthorisedly, the learned Civil Judge, Junior Division, Dahiwadi has passed a decree and operative portion of the order is reproduced below :
“(1) The suit of the Plaintiffs is hereby decreed with costs.
(2) The Defendant Nos.1 to 11 and 14 are hereby restrained permanently from causing any kind of obstruction to the plaintiff's exclusive right of performing puja, archa, dahibhat pja, abhishek and other pujas etc. before deities Shri Shambhu Mahadeo, Amrutheshwar and other deities of Shikhar Shingnapur temple, Tal. Man to receive the income of the same as priests.
(3) There is no any order as against the Defendant Nos. 12 and 13 since they are dead, so also as against the Defendant Nos. 15 to 17, as no any relief has been claimed against them.”
2. In Regular Civil Appeal No.43 of 1994, the learned Ad-hoc District Judge-4, Satara has by its judgment and order dated 1st September 2007 reversed the decision of the trial Court by allowing the appeal and the suit is dismissed. Hence, this second appeal by the original Plaintiffs.
3. The Appellants are the original Plaintiffs and belong to Badave community. The original Defendant Nos.12 and 13 have died whereas no relief was claimed against the Defendant Nos.15 to 17. It is not in dispute that the Defendant No.17 Chhatrapati Udayan Raje Bhosale is the owner of the suit property and has supported the claim of the Plaintiffs. The Defendant Nos.1 to 11 and 14 belong to Lingayat community and have seriously contested the claim of the Plaintiffs. Hence, they shall be referred to hereinafter as “the contesting defendants”.
4. The dispute in this appeal is between the two communities of Hindus, namely, the Badaves who are the Plaintiffs and the contesting Defendants who are the Lingayats. I have heard Mr. V. A Thorat, the learned Senior Advocate assisted by Smt. S. S. Gokhale appearing for the Appellants and Mr. V. B. Naik, the learned Senior Advocate assisted by Mr. R. S. Alange appearing for the contesting Defendants. Both the learned Senior Advocates have repeatedly urged and it is also the finding recorded by both the Courts below that the right of the Plaintiffs to perform puja, archa, abhishek, dahibhat and other pujas at the temple [hereinafter to be referred as “religious rites and rituals”.] is not at all disputed, but it is the question of exclusive right of the Plaintiffs which is in dispute. The claim of the Plaintiffs is that except the Plaintiff – Badaves, neither the contesting Defendants, who belong to Jangam community nor any other person have any such right to perform all such religious rites and rituals for and on behalf of the members of their community, as are performed by the Plaintiffs. Since the contesting Defendants threatened to invade such rights of the Plaintiffs, this suit was filed for the relief of permanent injunction.
5. Before the trial Court, voluminous documents were placed on record. The Plaintiffs examined six witnesses whereas the contesting Defendants have examined seventeen witnesses. The Defendant Nos. 2 and 17 have examined one witness each. The trial Court has held that the documents at Exhibit Nos. 173, 174, 152, 134 to 136, 301, 138, 293, 294, 296, 208, 309, 168, 342, 154 to 158, 171, 149, 166, 170, 171 have been proved and the contents of it have been relied upon to hold that the Plaintiffs have established their exclusive right to perform all such religious rites and rituals. The trial Court recorded the finding that the documents at Exhibit Nos. 153, 165, 139 to 148, 1
