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HIGH COURT OF CALCUTTA
P. N. MUKHERJEE, P. K. SARKAR
NABADWIP BHAJAN ASRAM - Appellant
Versus
COMMISSIONERS OF NABADWIP MUNICIPALITY - Respondent
A. F. O. D. 7 Of 1953
Decided On : DECEMBER 24, 1958
BENGAL MUNICIPAL ACT - SECTION 124 (1) (B) - EXEMPTION FROM HOLDING RATES - HOLDING USED EXCLUSIVELY AS PLACE OF WORSHIP - PUBLIC RIGHT OF FREE ACCESS - INTERPRETATION.
Fact of the Case:
The appellant, Nabadwip Bhajan Ashram, a registered society, filed a suit against the Commissioners of Nabadwip Municipality seeking a declaration that certain holdings belonging to it are not liable to be assessed to rates under Section 124 (1) (h) of the Bengal Municipal Act (XV of 1932) on the ground that the said holdings are exclusively used as places of worship to which the public have the right of free access. The trial court dismissed the suit holding that the holdings were not used exclusively as places of public worship and that the suit was not maintainable as framed. The plaintiff appealed.
Finding of the Court:
The court held that the holdings in question were not used exclusively as places of worship to which the public had the right of free access and, therefore, were not entitled to exemption from holding rates under Section 124 (1) (b) of the Bengal Municipal Act. The court also held that the suit was maintainable as framed and that the notice under Section 535 of the Bengal Municipal Act was not valid and sufficient.
Issues: 1. Whether the holdings in question were used exclusively as places of worship to which the public had the right of free access? 2. Whether the suit was maintainable as framed? 3. Whether the notice under Section 535 of the Bengal Municipal Act was valid and sufficient?
Ratio Decidendi: 1. The court held that the holdings in question were not used exclusively as places of worship to which the public had the right of free access because: a. There were considerable buildings in the Ashram which were admittedly used for other purposes and could not therefore be called places of worship. b. The kirtan bhavan or the Siva temple in the main Ashram or its branch at Ramchandrapur may be considered as places used for worship, but there was no evidence as to in which Municipal holding the kirtan bhavan or the Siva temple is situated. c. The greater and more substantial portion of the holdings consisting of buildings was used for other purposes, viz., school, dispensary and residence of pilgrims and visitors. 2. The court held that the suit was maintainable as framed because: a. Rule 17 of the Society's Rules and Regulations, which authorized the Nabadwip Bhajan Ashram to sue or be sued in its own name, was not ultra vires of Section 6 of the Societies Registration Act. b. The first part of Rule 17, which authorized the Ashram to sue or be sued in its own name, was not mandatory and did not militate against a registered society suing or being sued in its registered name. 3. The court held that the notice under Section 535 of the Bengal Municipal Act was not valid and sufficient because: a. The cause of action mentioned in the notice was different from the cause of action mentioned in the plaint. b. The suit was not instituted within six months from the date of the cause of action mentioned in the notice, as required by Sub-section (2) of Section 535.
Final Decision: The appeal was dismissed with costs.
( 1 ) THE appellant, the Nabadwip Bhajan Ashram, a society registered under the Societies Registration Act (XXI of 1860) and described as a religious and charitable institution, instituted a suit against the Commissioners of the Nabadwip Municipality praying for a declaration that certain holdings belonging to it and situated in Wards I and II of the Municipality are not liable to he assessed to rates under Section 124 (1) (h) of the Bengal Municipal Act (XV of 1932) on the ground that the said holdings are exclusively used as places of worship to which the public have the right of free access. It was stated that the object of the Ashram was to promote the religious advancement of the Hindus by the installation of deities and by providing places for holding bhajan, kirtan etc. , and that congregational namkirtan to which the public had free access, was held daily at the main Ashram comprised in three holdings numbered as 18, 19 and 20 of Ward II and at its branch comprised in holdings Nos. 61, 64, 86 and 101 of Ramchandrapur Ward (No. I) of the Municipality. It was further stated that in addition to these holdings being places of worship they were used for charitable purposes and contained a charitable dispensary, a free primary school and that foodstuff and clothings were supplied free to the poor and distressed women who came to take part in the congregational nam-kirtan. Applications made to the Municipal Commissioners for exemption of these holdings from Municipal rates having been unsuccessful, the plaintiff instituted the suit out of which this appeal arises after serving notice upon the Municipal Commissioners under Section 535 of the Bengal Municipal Act of 1932.
( 2 ) THE Municipal Commissioners denied in their written statement that the holdings in question were used exclusively as places of public worship and were liable to exemption from Municipal rates and the learned Subordinate Judge accepting this view dismissed the suit with costs. He also found that the suit was not maintainable as framed and that no valid notice under Section 535 of the Bengal Municipal Act had been served on the Municipal Commissioners.
( 3 ) THE plaintiff has now appealed and challenged the findings of the learned Subordinate Judge.
( 4 ) A short history of the institution, the Nabad-wip Bhajan Ashram, may usefully be set out at this stage. It appears that this Bhajan Ashram was originally started by one Hunnal Almal who acquired certain lands and erected buildings thereon for the Ashram and that on the 8th September 1927 he executed a deel of trust (Ex. 3} in favour of certain trustees dedicating the said lands and buildings for the worship of God Siva installed in the temple therein and for the holding of kirtan free of charge to which the Hindu public should have free access and it was further provided in the trust deed that the trustees should at all times allow all Marwari and Bhatia pilgrims who might come to Nabadwip for pilgrimage to stay at the buildings of the Ashram. Subsequently on the 29th July, 1933 the institution was registered as a society under the Societies Registration Act and in the memorandum of association of the society its objects inter alia were described to be : (1) to found and maintain an Ashram or Ashrams for the Hindu widows belonging to the Vaishnab sect as might be approved by the society, (2) to promote their religious advancement and (3) to provide food-stuff, accommodation for their bhajan, kirtan, namgan, clothing, medicine etc. The names of five trustees were enumerated in the said memorandum and it was provided in the rules that all properties of the society should be deemed to be vested in the trustees for the time being and an executive committee with a president, two vice-presidents and a secretary was constituted to manage the affairs of the society. Certain rules and regulations were also incorporated in the memorandum of association. (Ex. 4 ). In 1941 one Mahadeo Prosad Alma
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