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2018 Supreme(Mad) 4404
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
C.V. KARTHIKEYAN, J.
The Commissioner Hindu Religious and Charitable Endowments Administration Department & Ors. - Appellants
Vs.
Srikanth & Ors. - Respondents
A.S. (MD) No.199 of 2006
Decided On : 26-10-2018
For the Appellants : Mr. J. Gunaseelan Muthiah Additional Government Pleader
For the Respondents: Mr. V.K. Vijayaragavan
Headnote:
Hindu Religious and Charitable Endowments Act, 22 of 1959 - Section 70 – Grant a declaration that the suit property - Challenging that judgment - Functioning in the residence of the founder –founder was an ardent devotee of as worshipped by Community to which plaintiffs and his ancestors belonged - He founded Institution for welfare of members of his family and for meditation - He kept a small deity of Sri in his house and was performing daily - He used to perform special on every day - Only the members of his family participated in - This method of is different from performed in houses of persons belonging to other sects – Held, Case of Commissioner, HR & CE Department Chennai Division Bench of this Court was concerned with and it has held as follows - Law is quite clear fact that in a Hindu temple members of the public are allowed to come and offer worship does not on that score alone makes the temple a public temple tenets of Hindu Religion which lay great emphasis on tolerance and sharing do not visualize a worshipper being turned away and refused permission to offer worship. It is therefore not factum of members of public was as of right that is crucial for purposes of deciding, in light of other circumstances of a given case, as to whether such a temple is a public temple or a private temple - It is thus seen that worship by the public is encouraged and merely because of there is public visit to temple such worship will not give Institution character of a public temple - In present case there is no dedication for benefit of Hindu community or any section there of as a place of worship - All above reasons pointed out to fact that the points framed must be answered that Institution is a private Institution and certainly not a public temple - There is also no evidence to show the dedication to the public - Consequently point one and two are answered that Institution is not a public temple and that there is no dedication for benefit of the general public - Merely because public used to worship in place it cannot be categorized as a public temple - Features of a public temple are totally absent - It is purely a private Institution points are answered accordingly - Appeal is dismissed
JUDGMENT :
PRAYER: This First Appeal is filed under Section 70(2) of the Hindu Religious and Charitable Endowments Act, 22 of 1959, to set aside the decree dated 28.04.2006 made in O.S.No.74 of 2005 on the file of the Sub Court, Thanjavur.
The defendants in O.S.No.74 of 2005 on the file of the Additional Sub Court, Thanjavur are the appellants herein. O.S.No.74 of 2005 has been filed by two plaintiffs Srikanth and R. Balachandran against the Commissioner, HR & CE, Chennai and the Joint Commissioner, HR & CE, Thanjavur under Section 70 (i) of the Hindu Religious and Charitable Endowments Act, 1959, [hereinafter referred to as ?the Act?] seeking a judgment and decree to set aside the order of the Commissioner, HR & CE, Chennai in A.P.No.13 of 1998 dated 09.11.2004 and grant a declaration that the suit property, ‘Swanandha Bhuvan Institution’ is not a religious Institution or a temple falling within the purview of the Act and consequently restrain the HR & CE Department from interfering with the Management and Administration of ‘Swanandha Bhuvan Institution’, which is a private Institution belonged to the plaintiffs and their family and also for costs of the suit. By judgment and decree dated 28.08.2006, the suit was decreed with costs. Challenging that judgment, the defendants had filed the present first appeal.
O.S.No.74 of 2005 (Additional Sub Court, Thanjavur):-
2. The suit had been filed under Section 70 (i) of the Act. It had been stated that the suit property in T.S.Nos.2324, 2325 and 2326 in Sunnambukkara Street, now known as Yakubia Street, called Swanandha Bhuvan, Thanjavur was founded by one Dabir Ramachandra Rao, the ancestor of the plaintiffs. The following genealogy table had also been given in the plaint:-
Dabir Ramachandra Rao = Gojira Bai (Wife)
I
Banu Bai (Daughter)
I
R.Santha Bai ............ Leela Bai
I
Balachandran and R.Srikanth (Sons ? Plaintiffs)
3. It was stated that originally the Institution of Swanandha Bhuvan was functioning in the residence of the founder. The founder belonged to Deshishta Maharashtra Community. The founder was an ardent devotee of Sri Heramber (Lord Vigneshwar) as worshipped by the Maharashtrian Community to which the plaintiffs and his ancestors belonged). He founded the Institution for the welfare of the members of his family and for meditation. He kept a small deity of Sri Heramber in his house and was performing daily poojas. He used to perform special poojas on every Chathurthi day. Only the members of his family participated in the poojas. This method of pooja is different from the poojas performed in the houses of persons belonging to other sects.
4. The suit property was purchased on 02.11.1923 by a registered sale deed from and out of the own funds of the founder. He then shifted the Swanandha Bhuvan to a new place and continued to do daily poojas and special poojas on Chathurthi days for Sri Heramber. He and his family members also did meditation. They installed a new Heramber Idol made of marble stone in the new premises. It was kept in a glass case. He also installed the idol of Sri Narmadha Heramber. Such installation of idols was not in accordance with any Agamasastras. It was stated that the Institution was a private one. There was no public participation. The idol was kept inside the Swanandha Bhuvan. He instructed and trained the members of his family to perform poojas in a particular manner. After his life time, his Padukas were also kept in Swanandha Bhuvan. Thereafter, his widow and daughter succeeded him and continued to do poojas. They also did poojas on his anniversary day. There was no public worship or participation by the public.
5. The Thanjavur Municipality by proceedings dated 04.08.1928 passed a resolution granting exemption to the Swanandha Bhuvan as if it was set apart for charitable purpose. Exemption was revoked later and property tax is also being paid. The electricity service connection also stands in the name of Swanandha Bhuvan. The daughter of the founder, S
