Sri Varasidhi Vinayagar Sath Sangam v. The Commissioner

For appellants in both appeals :Mr. W.C. ThiruvengadamFor respondent in A.S.No.1280/1994:Mr. V. Chandrasekaran,Spl. Government Pleader (HR & CE)For respondents in A.S.No.1395/1994:Mr.R.Murugesan,Spl. Government Pleader (HR & CE).COMMON JUDGMENTSince both the appeals relate to a common issue, they arebeing disposed of in common.2. The plaintiff, who is the appellant in A.S.No.1280 of1994, filed a statutory suit in O.S No.3988 of 1990 before the VAssistant City Civil Court, Madras under Section 70 (1) of the H.R. &C.E. Act 22 of 1959 (in short “the Act”) in order to set aside theorder dated 28.12.1989 passed by the Commissioner, H.R. & C.E. Madras –34 passed in A.P. No.107 of 1987 under Section 69(1) of the Act. Thestatutory suit was dismissed by the V Assistant Civil Court, Madras bya judgment and decree dated 25.01.1994 against which the present appealby the appellant.3.The case of the appellant is as under:a.There is a private temple dedicated to the worship ofSri Varasiddhi Vinayagar situated in Door No.E-96/A, 17, IAvenue, Besant Nagar, Madras – 600 090. An idol of SriVarasiddhi Vinayagar was first installed and worshipped by oneBalaramamoorthy Naidu of the locality in the land belonging tothe Housing Board and the said Balaramamoorthy Naidu wascontinuing his personal worship for some years and there was nodedication to the said deity either by way of any property or byway of any public worship as a matter of right. In the meantime,some residents of Besant Nagar conceived an idea of forming aSangam to construct a temple for Sri Varasiddhi Vinayagar and toperpetuate worship for ever. Accordingly, an association wasformed under the name and style of “Varasiddhi Vinayagar SathSangam” (in short “the Sath Sangam”)and the same was alsoregistered under the Societies Registration Act, XXI of 1860.Thus, the temple in question is a private temple belonging to“Varasiddhi Vinayagar Sath Sangam”, which was initially havingonly 63 members with various objects, viz.,ito build Hindu temples and suchother institutions, religious and charitableas well, minister to the religious needs ofthe Hindu residents of Besant Nagar andsurrounding areas and to arrange for their https://hcservices.ecourts.gov.in/hcservices/ proper working. The Varasiddhi VinayagarTemple shall be owned, maintained and managedby the Sath Sangam;iito arrange for the diffusion ofuseful religious knowledge through libraries,discourses and similar religious activities;iiito raise ;funds for the achievementof the above objects, to purchase and holdproperties – movable and immovable relatingthereto and to arrange for the management ofthe same; andivto do such other things as areincidental to or conducive to the attachmentof the above objects.b.After forming and registering the Sath Sangam inquestion, its members resolved to shift the idol of ShriVarasiddhi Vinayagar from its original place to a new place wherea superstructure could be constructed for the deity in questionwhich was originally worshipped by the said Balaramamoorthy Naidu.Thereafter, the Sath Sangam purchased a piece of vacant landmeasuring about 6 grounds and 425 sq. ft. at E.964/E.154, BesantNagar, Adyar for a total purchase amount of Rs.77,213.54 and alsoobtained permission for the construction of a private temple fromthe MMDA and thereupon a private temple was finally constructedand kumbabishekam was performed on 12.04.1979. Thus, theoriginal of the private temple was of a recent one and remainedwith the members belonging to the appellant-Sath Sangam.c.While so, one T.N. Venkoba Rao was elected as theSecretary of the Sath Sangam and was co-ordinating the day-to-dayaffairs of the private temple in question. The members of theSath Sangam liberally donated for the construction of theinstitution and they did not take donation from outsiders of thelocality for the founding of the private temple in question and asa matter of fact, no contribution was received from outsiders inthe locality at any point of time, either for the founding of theinstitution or for its subsequent maintenance. Accordingly, itwas founded by the members of the Sath Sangam and beingcontinuously maintained till date. The public at large are notallowed to come and have worship in the temple. The so-calledworship by the public can be a permissive possession only. Therelatives of the Sath Sangam are allowed to worship afterobtaining permission from the members of the Sath Sangam.However, the Supreme Court, took a view that a Hindu will notprevent a Co-Hindu from coming and worshipping in a Hindu templeand such a worship by a Hindu cannot be taken as a worship by https://hcservices.ecourts.gov.in/hcservices/ right.d.After kumbabishekam, the temple is in the privatecontrol and management of the appellant-Sath Sangam for whosebenefit, the institution is chiefly intended and maintained. TheSath Sangam has been paying the monthly instalments to the TamilNadu Housing Board towards the purchase amount till date and thus,the institution in question is the private property of the SathSangam, a body registered under the Society Registration Act andtherefore, that institution will not come under the purview ofthe Act 22 of 1959 and it is not a religious institution as laiddown under Section 6(18) of the Act and also will not attract thedefinition of a temple as contemplated under the provisions of theAct. The private temple is not possessed of any property of itsown and there is no hundial in the temple except an open brass potkept for the use of the members of the Sath Sangam only and thatpractice has also been stopped ever since the H.R. & C.E.Department made an attempt to interfere in the day-to-day affairsof the private temple in question. The general public at large arenot allowed to worship in the temple as a matter of right and suchworship if at all is always permissive worship only and therefore,permitting certain members of public to come and have worship in aprivate temple cannot take away the private character of suchinstitution. The founding, establishing and continuous managementshould remain in the private capacity for getting such declarationunder Section 63(a) of the Act and in the appellant's case, theprivate temple has been founded, established and maintained by themembers of the Sath Sangam and therefore, the institution as awhole will not attract the provisions of the Act. e.Further, the Inspector of the Department, all of asudden, visited the temple without notice to the appellant, madean attempt to seal the brass pot kept for the collections from andamong the members of the Association which led to the filing ofO.A. No.52 of 1980 on the file of the Deputy Commissioner, H.R. &C.E., Administration Department, Chennai–600 034 for a declarationthat Shri Varasiddhi Vinayagar Temple situated in Besant Nagar isnot a religious institution coming under the Act.f.The Deputy Commissioner, H.R. & C.E. Department, afterconducting an enquiry into the matter dismissed O.A. No.52 of 1980without properly appreciating the evidentiary value of Exs. A.1 toA.9 filed by the appellant in support of its case under Section 63(a) of the Act. Aggrieved by the order of the Deputy Commissionerpassed in O.A. No.52 of 1980, the appellant filed a statutoryappeal under Section 69 (1) of the Act before the Commissioner,H.R. & C.E. Department who is the respondent in A.P. No.107 of1987 which was also dismissed on 28.12.1989 without properlyappreciating the evidentiary value of the relevant records filedin support of the case and against the said order in the appeal,the appellant filed the present statutory suit under Section 70(1)of the Act. The various grounds raised in the suit are that: https://hcservices.ecourts.gov.in/hcservices/ ithe order of the respondent passed inA.P. No.107 of 1987 was against law, weight ofevidence and all probabilities of the case;iithe respondent-Commissioner failed tounderstand the scope of the application filed underSection 63(a) of the Act;iiithe respondent-Commissioner failed to seethat there was no contra evidence which wasforthcoming in the court below to destroy the caseof the appellant herein and in the absence of suchcontra evidence, the irresistible inference shouldbe that Shri Varasiddhi Vinayagar Temple situatedin Besant Nagar is not a religious institutioncoming under the purview of the Act;ivThe respondent-Commissioner has failed tosee that the Inspector, H.R. & C.E. Department,Madras and her report having been marked as C.W.1,has failed to examine any oral evidence toestablish the public character of the institution.The report of the Inspector simply contemplatedthat there was public worship in the temple; but,there was no evidence in that respect andaccordingly, the report of the Inspector ought notto have been relied on by the courts below fordeciding the character of the institution inquestion; vThe Inspector, in her report, hascategorically pointed out to the effect that shehas collected information from the Gurukkal inregard to the public worship in the temple. It isnot known why the Inspector has not chosen toexamine the Gurukkal of the temple as a witness inthis case. The said Gurukkal of the temple hasnever given any information to the Inspector at anytime in regard to the real character of theinstitution. Therefore, the report of the inspectoris of no use in deciding the character of theinstitution and accordingly, the Court below musthave gone into Exs.A.1 to A.9 filed by theSecretary of the Sath Sangam to decide thecharacter of the institution which has not beendone in this case; viThe respondent-Commissioner, as anappellate authority, has also simply enumerated therecords Exs.A.1 to A.9 in the Annexure to the order https://hcservices.ecourts.gov.in/hcservices/ but failed to make a legal analysis on the samewhich has led to the miscarriage of justice; viiThe respondent-Commissioner has failed tosee that the private temple is actually located ina land purchased by the Sath Sangam for a valuableconsideration and therefore, the private characterof the institution is well-established which isalso under the control and management of the SathSangam;viiiThe respondent-Commissioner has failed totake note of the establishment of the privatetemple by the Sath Sangam by properly analysingExs.A.3 to A.5 which clearly establish the originof the private temple; ixThe respondent-Commissioner has failed tosee that there was no evidence in the Court belowto establish that contribution was taken fromoutsiders for the founding of the temple or for itsestablishment and for its subsequent maintenance.In the absence of such a vital evidence, the Courtbelow ought to have come to the conclusion that SriVarasiddhi Vinayagar Temple situated in BesantNagar is not a religious institution coming underthe purview of the Act. On the other hand, therespondent-Commissioner has wrongly interpreted theevidence of P.W.2 which would clearly indicate thatdonations were accepted from the relations of themembers only and that at no point of time, P.W.2had deposed that donations were collected fromoutsiders, i.e., outside the members of the SathSangam;xThe respondent-Commissioner has furthererred in holding that P.W.2 has deposed that publicare worshipping in the temple but as a matter offact, P.W.2 has never deposed in that manner butonly deposed that public are allowed to worship inthe temple with the permission of the members ofthe Sangam and the respondent-Commissioner has nottaken note that the idol was originally in thepersonal custody of Balaramamoorthy Naidu who waspersonally worshipping the deity and later given itto the Sath Sangam for installing and making it aprivate temple of the Sath Sangam and the saidBalaramamoorthy is also a member of the Sath Sangamever since its inception;xiThe respondent-Commissioner has https://hcservices.ecourts.gov.in/hcservices/ failed to see that the definition of Section 6(20)does not attract to the private temple in questionin view of the fact that the temple in questionhas never been treated as a place of publicreligious worship and secondly, there has been nodedication for the benefit of Hindu community. Insuch circumstances, the Court below ought to havegranted the relief as prayed for under Section 63(a) of the Act. On the other hand, the respondent-Commissioner, based on Ex.A.6 series, has decidedthat the Sath Sangam has made an appeal to thepublic to donate liberally for the celebration ofconsecration ceremony. But, in fact, Ex.A.6 seriesdid not reveal such a request from the members ofthe Sangam. It is purely imaginary on the part ofthe court-below to arrive at such a conclusion;xiiThe respondent-Commissioner can come tothe conclusion on the basis of the recordsavailable in this case and therefore, the surmiseof the Commissioner to the effect that collectionswere made for the performance of kumbabishekam istotally denied besides being improper andmischievous;xiiiThe respondent-Commissioner has failed tosee that there was no public participation in theconstruction of the temple and there was noevidence to this effect and in the absence of suchan evidence, he has erred in arriving at aconclusion that the public participated in theconstruction of the temple; andxivIn any event, the records filed by theappellant in Exs.A.1 to A.9 have not been properlyappreciated and the evidentiary value has not atall been discussed in the annexure to the order ofthe respondent in A.P. No.107 of 1987 and in thecircumstances, the order of the respondent-Commissioner in A.P. No.107 of 1987 dated28.12.1989 has to be set aside and consequentlydeclare that Sri Varasiddhi Vinayagar Templesituated in Besant Nagar, Madras owned by SathSangam situated in Besant Nagar is not a temple aslaid down under Section 63 (a) of the Act.g.The cause of action for the suit arose at Madras underSection 70(1) of the Act when the Commissioner, H.R. & C.E.Department, Madras has dismissed A.P. No.107 of 1987 dated28.12.1989 and the said order having been communicated on03.01.1990 and has been received by the appellant on 06.03.1990 https://hcservices.ecourts.gov.in/hcservices/ and the suit has been valued and the appellant has prayed for adecree and judgment to declare that Sri Varasiddhi VinayagarTemple situated in Besant Nagar, Madras is not a religiousinstitution as contemplated under Section 63 (a) of the Act and toset aside the order passed by the respondent-Commissioner,H.R.&C.E. Department, Madras passed in A.P. No.107 of 1997 dated28.12.19894.The respondent has filed written statement in which it isstated that he being a public servant, the appellant ought to haveissued a statutory notice as contemplated under Section 80 of the CivilProcedure Code. Such notice is necessary even for a suit under Section70 (1) of the Tamil Nadu H.R.&C.E. Act 22/1959. Hence, the suit is notmaintainable and liable to be dismissed in limini. According to therespondent, the averments contained in paras 4 to 8 of the plaint aredenied and it is his case that the appellant has filed an applicationunder Section 63(a) of the Act before the Deputy Commissioner in O.A.No.52 of 1980 seeking a declaration to the effect that the suit templeis not a religious institution as contemplated under Section 63 (a) ofthe Act. They have filed several documents before the DeputyCommissioner, Madras which were marked as Ex.A.1 to A.8. S.Thukkaram,R. Thirumalachari, T. Balaramamoorthy and Thirumalai were examined asP.W.1 to P.W.4 respectively and S. Manomani, Inspector of theDepartment was examined as court witness and her report was marked ascourt document (C1). 5.According to the respondent, the Deputy Commissioner, Madraswho is the authority under Section 63(a) of the Act has conducted adetailed enquiry in the matter. During the course of said enquiry,Thukkaraman got himself examined as P.W.1 and Exs.A.1 to A.9 weremarked. In addition, the evidence of P.Ws.2 to 4 was also let in. TheCourt examined the Inspector of the Department as C.W.1 and report sentby her was marked as Ex.C.1. After analysing the evidence of thewitnesses and the documentary evidence produced, the DeputyCommissioner has given a finding that the institution in question is apublic religious institution and negatived the claim to the contrary inhis order dated 13.05.1986 in O.A. No.52 of 1980. Aggrieved by theorder, they filed an appeal before the Commissioner in A.P. No.107/87under Section 69(1) of the Act. The Commissioner has heard theappellant's counsel and perused the records.6.It is the specific case of the respondent that P.W.1Thukkaram deposed on the lines of the petition before the DeputyCommissioner and marked the documents. Ex.A.1 is the certificate dated05.06.1975 issued by the Registrar of Assurances, Madras South forhaving registered the Sath Sangam in the name of Varasiddhi Vinayagarunder S.No.83 of 75 as per the Societies Registration Act, 21 of 1860.This has been filed to show that the Sath Sangam was formed first andaccording to the wishes of the residents of the locality, the templewas constructed with the Arulmighu Varasiddhi Vinayagar for the worshipof the idol for ever. According to the petitioners, the idol in https://hcservices.ecourts.gov.in/hcservices/ question was already there and worshipped by one Balaramamoorthy Naiduin the land belonging to the Tamil Nadu Housing Board. Ex.A.2 is theMemorandum of Association to show the formation of the Sangam in thename of Sri Varasiddhi Vinayagar containing its objects and functions.One of the objects as specified under Rule 2(a) of the Memorandum is toown, maintain and manage the Varasiddhi Vinayagar Temple. But, in thisdocument, nowhere it is stated that the temple to be constructed is forthe exclusive worship of the members of the Sangam and denying theright of others offering worship therein. Ex.A.3 is the communicationdated 04.06.1977 of the Tamil Nadu Housing Board, Madras, addressed tothe President of Arulmighu Varasiddhi Vinayagar Temple, Besant Nagar,Madras – 90 informing the total cost of Plot No.E.96-A, Besant Nagar,measuring about 6 grounds and 425 sq. ft. as Rs.77,213.54 on hirepurchase basis. Ex.A.4 is the plan of the temple in question approvedby MMDA in their Lr.No.29274/S177 dated 07.10.1977. Ex.A.5 is theestimate dated 25.02.1978 given by P.M. Nataraja Sathapathy for theconstruction of the temple at a cost of Rs.6,300/- to the Sath Sangam.Ex.A.6 series contain invitation dated 28.02.1979 extended to thepublic inviting them for the consecration ceremony of the temple andmaking appeal to the public to contribute liberally for the celebrationof the ceremony by Sath Sangam. They have also mentioned in the noticethat the donations in the form of cheques should be sent in the name of“Sri Varasiddhi Vinayagar Sath Sangam”. Further, the allotment orderalso makes it clear that the property was allotted to VarasiddhiVinayagar Temple only and not to the Varasiddhi Vinayagar Sath Sangam.7.Further, the respondent has stated in the written statementthat Ex.C1 is the register for the enrolment of member of the Sangamunder rule 16 of the Tamil Nadu Societies Registration Rules and thereport of the Inspector, H.R. & C.E., Madras – 7. P.Ws.1, 2 and 4spoke on the lines of the petition. P.W.3, Balaramamoorthy had deposedthat he was the first member of the said Sath Sangam and donated idolto it. In cross-examination, he admitted that the public used to offerworship freely when it was located adjunct to C.P.W.D. Office compoundwall. During 1969, “Prathishtai” or installation ceremony was done bySamayapuram Ramanatha Swamigal. The Sath Sangam in the name and styleof Varasiddhi Vinayagar came to be formed in the year 1975. The landfor the construction of the temple was taken possession from the TamilNadu Housing Board by the Sath Sangam in 1976. In 1977, theconsecration was done to the temple and the idol which was already inworship was shifted and installed in the new premises. Though hedeposed that at the time of formation of the Sath Sangam, there were 36members and only with the contribution made by the members by way ofcash and kind, the temple came to be constructed. P.W.3 also deniedknowledge of the actual amount of materials contributed by the membersand about the date of performance of the kumbabishekam. He deniedknowledge to the suggestion as to the maintenance of accounts by theSecretary. He states no accounts were maintained for the contributionreceived towards the construction of the temple.8.It is further stated that the Inspector, H.R. & C.E. https://hcservices.ecourts.gov.in/hcservices/ Department who was examined as C.W.1 spoke that according to theenquiries made by her, the idol of Sri Varasiddhi Vinayagar wasoriginally in a hut in a platform belonging to C.P.W.D. Quarters evenprior to the formation of Sath Sangam and the public worship was goingon there. In 1969, “Prathishtai” was done by Samayapuram RamanathaSwamigal. After the construction of the temple, the idol was shiftedfrom its original place and installed in the temple premises afterconsecration. Public worship and offering of Abhishekam and Archanaiare said to be in practice and this fact was said to have beenascertained from the Gurukkal of the temple. The main source of theincome of the temple is from hundial and thattu kannikkai.9. To ascertain whether a temple can come within the scope ofthe definition of Section 6(2) of the Act, two conditions must becumulatively satisfied. One is that it must be a place of publicreligious worship and secondly, it must have been dedicated for thebenefit of Hindu community or any Section thereof. Further, it isstated that it is not correct to say that the respondent has passed theorder in A.P. No.107 of 87 against law, weight of evidence and allprobabilities of the case inasmuch as the respondent has passed theorder in a speaking manner.10.According to the respondent, the suit temple is a publictemple as defined under Section 6(2) of the Act and the appellantcannot claim that the temple is a private one and the respondent hasapplied his mind while passing the order impugned in the suit. It istheir case that one of the witnesses has admitted the fact that theexpenses for construction of temple was not out of the donations madeby the members of the Sath Sangam. Ex.A.2 never made any assertionthat the temple to be constructed was intended only for the welfare ofthe members of the Sath Sangam. Further, the Ex.A6 series borne outthat the Sath Sangam made appeal to the public to donate liberally forthe celebration of the consecration ceremony by the Sath Sangam and nodoubt that there was public participation in the construction of thetemple and also offer worship without any hindrance. Ex.A.8 shows thatthe temple is having hundials for the collection of offering from thepublic. Also, the allotment of 6 grounds and 425 sq. ft. by theHousing Board which is a highly developed area has been admitted by theappellant. Therefore, a Government body like Tamil Nadu Housing Boardwould not allot such a bulk area for a private purpose and all thesefacts prove that the temple is a public temple as laid down underSection 6(20) read with Section 6(18) of the Act. 11.While rebutting the averments in paragraph 9(d), it issubmitted that the report of the Inspector (C.W.1) spoke that accordingto enquiries made by her, the idol of Sri Varasiddhi Vinayagar wasoriginally in a hut in a platform belonging to C.P.W.D. quarters evenprior to the formation of the Sath Sangam and public worship was goingon there. In 1969, “Prathishtai” was done by Samayapuram RamanathaSwamigal. After the construction of the temple, the idol was shiftedfrom its original place and installed in the temple premises after https://hcservices.ecourts.gov.in/hcservices/ consecration. Public worship and offering of abishekam and archanaiwere in practice and this fact was ascertained from the Gurukkal of thetemple. The main source of income of the temple is from hundial andthattu kaanikkai. Therefore, the report of the Inspector establishedthe public character of the suit temple. 12. Further, the contentions in paragraph 9(e) also are denied andit is stated that the appellant was not prevented from examining theGurukkal as a appellant's witness before the Deputy Commissioner at thetime of enquiry and the respondent has examined all the connectedrecords and exhibits relating to this case very carefully and came to aconclusion that the appellants have not made out a case to prove thatthe temple in question is a private one and hence, the respondentdismissed the appeal petition under Section 69(1) of the Act.13. The Department has a statutory power to decide whether areligious institution is a private one or not under Section 63 of theAct. Exs.A.3 to A.5 alone are not sufficient proof to establish thecharacter of the suit temple. The Government bodies such as Tamil NaduHousing Board and MMDA did not allot a bulk area in Besant Nagar forprivate purpose. According to the respondent, the appellant hascollected public donation for the founding and maintenance of the suittemple and the Inspector in her evidence spoke that she made an enquiryand found that public worship and offering of Abishekam and Archanaiwere said to be in practice and this fact was said to have beenascertained from the Gurukkal of the suit temple. Therefore, it isclearly established that the public are allowed for worship and also tooffer their kaanikkais. According to the respondent, P.W.3 admitted inhis deposition before the Deputy Commissioner, the idol was consecratedand installed in the new building constructed over the plot purchasedfrom the Tamil Nadu Housing Board. Therefore, the respondent submitsthat the above facts clearly prove that it is a place of publicreligious worship and secondly, it has been dedicated for the benefitof the Hindu community or any section thereof. Therefore, the suittemple can come within the scope of the definition in Section 6(20) ofthe Act. Ex.A.6 shows that the public was invited for the consecrationceremony of the temple and an appeal was made to them to contributeliberally for the celebration of the ceremony by the Sath Sangam.Therefore, it is not correct to say that Ex.A.6 did not reveal such arequest from the members of the Sath Sangam. It is also proved thatthe public and the relatives of the members of the Sath Sangam in thecapacity of worshipping public have liberally donated to the temple forits construction and consecration ceremony. Therefore, the averment ofthe appellant in this regard is not correct. The evidence in theexhibits have been carefully examined and discussed by the respondentand the respondent has correctly dismissed the appeal under Section 69(1) of the Act and in such a situation, the suit is false, frivolous,bad in law and liable to be dismissed.14. Mr.Thiruvengadam, learned counsel counsel for the appellantswould contend that the learned trial Judge failed to understand the https://hcservices.ecourts.gov.in/hcservices/ scope of the application filed under Section 63 (a) of the HinduReligious and Charitable Endowments Act and also to take note of theevidence to decide the private character of the temple in question.According to him, the evidentiary value of Exs.A-1 to A-16 has not beenlooked into properly by the Court below and the respondent has notfiled any documents and also not chosen to examine anyone to establishthe public worship in the temple. The learned counsel, in hissubmissions, has pointed out that Ex.A-5 indicates the origin of theinstitution and that the institution is of a recent one and has been inexistence for the benefit of the members of the appellant Sangam andalso the evidentiary value of Ex.A-3, dated 04.08.1977 and Ex.A-4,dated 07.10.1977, with regard to the private character of theinstitution has not been looked into by the trial Court. It is pointedout by him that the Court below ought to have taken into considerationwhether there has been any dedication of any property to the temple bya third party and in the circumstances the irresistible inferenceshould be that the temple in question will not attract the provisionsof the Act and the trial Court has erroneously held that the public areallowed to run the temple and such a worship by the public will lead tothe conclusion that the institution is not a private temple. He wouldfurther contend that the trial Court ought to have arrived at aconclusion that the institution in question is not a public templeattracting the definition of Section 6 (20) of the Act and it failed totake note of the entire records filed by the appellant; the conclusionarrived at by the respondent that the main source of income of thetemple is from offerings cannot be sustained as there is no credibleevidence to that effect and, therefore, the judgment and decree of thetrial Court have to be set aside. 15. Learned counsel for the appellants has relied on thefollowing decisions :(i) A judgment of the Privy Council reported in 1934 LawWeekly Vol. XL 428 in the matter of Mundacheri Koman v. ThachangatPuthan Vittil Achuthan Nair and others:“In the greater part of the Madras Presidency, whereprivate temples are practically unknown, the presumption isthat temples and their endowments form public charitabletrusts. But this presumption does not apply in the case oftemples in Malabar. Hence, in the case of a temple inMalabar, the decision of the question whether the temple is apublic or private temple really depends on the inferences tobe derived from the evidence as to the way in which thetemple endowments have been dealt with and the evidence as tothe public user of the temple.”(ii) A judgment of this Court reported in AIR 1966 Madras 99 (V 53C 34) in the case of Sri Chidambareswara Sivagami Ambigai Temple vs.The Commissioner, Hindu Religious and Charitable Endowments, Madras(paras 7 and 9 ) https://hcservices.ecourts.gov.in/hcservices/ “. . . It will be clear from these decisions thateven if there is a temple founded by a section of theHindu community and they claim exclusive right ofworship in that temple, still the definition in S.6(17)of Act XIX of 1961 will apply as long as that particularsection of the community is clearly marked andconstitutes a considerable section of the Hindu public.In the present case, it was alleged that originallythere were 50 families of Nagarathars, but at presentthere are 300 pullis ... of the community living inNachandupatti village. But if we take the evidence ofP.W.2 also into consideration, this section of the Hindupublic is widened further and will include among thebeneficiaries Nattukkottai Chettiars belonging to 5 outof 9 temple clans in that village and also outside.This will form a group of the Hindu community adequatein number and sufficiently distinctive to constitute asection of the community for whose benefit thededication of the temple are necessarily to be inferred.Though a claim was put forward in the lower court, therewas no proof, of actual dedication. Only continued useras of right by the section of the Hindu community asaforesaid has been urged. Of course, there is areference in the judgment of the lower court, to membersof the other communities like brahmin community beingallowed to worship in the temple.Applying the above principles to the present case,it is clear that in regard to the temple inNachandupalli, even if it was founded exclusively forthe benefit of the members of the Nattukottai Chettiarcommunity belonging to 5 temple clans, the dedication ofthe temple to the community and the worship by themembers of the community as of right in the temple,would still have make it a public temple, as the membersconstitute a section of the Hindu community ascontemplated in the definition in S.6(17) of the Act.”(iii) A judgment of the Supreme Court reported in (1972) 2 SCC 329in the matter of T.D. Gopalan vs. The Commissioner of Hindu Religiousand Charitable Endowments, Madras (paras, 9, 11 and 16)“9.The High Court next proceeded to reproduce asummary of the statement of each of the witnesses producedby the respondents. No attempt whatsoever was made todiscuss the reasons which the learned District Judge hadgiven for not accepting their evidence except for a generalobservation here and there that nothing had been suggested https://hcservices.ecourts.gov.in/hcservices/ in the cross-examination of a particular witness as to whyhe should have made a false statement. We apprehend that theuniform practice in the matter of appreciation of evidencehas been that if the trial court has given cogent anddetailed reasons for not accepting the testimony of awitness the appellate court in all fairness to it ought todeal with those reasons before proceeding to form a contraryopinion about accepting the testimony which has beenrejected by the trial court. We are, therefore, not in aposition to know on what grounds the High Court disagreedwith the reasons which prevailed with the learned DistrictJudge for not relying on the evidence of the witnessesproduced by the respondents. 11.Mr Natesan who appears for the plaintiff-appellanthas assailed the whole approach of the High Court to thequestion of the character of the temple which, according tohim, had been proved to be private in origin. It has beencontended by him that the usual state of affairs to be foundin Madras as per the observations of the Privy Council couldnot be applied to the case of Saurashtra community whichmigrated from the territories which now form part of theState of Gujarat centuries ago. This community, has, apartfrom several other individual characteristics, maintained atradition of having private temples. Moreover if the originof the temple had been proved to be private then accordingto the law laid down by the Privy Council itself in BabuBhagwan Din case, dedication to the public was not to bereadily inferred. Such an inference, if made, from the factof user by the public was hazardous since it would not, ingeneral, be consonant with Hindu sentiment or practice thatworshippers should be turned away; and, as worship generallyimplied offerings of some kind, it was not to be expectedthat the managers of a private temple should in allcircumstances desire to discourage popularity. It wasfurther emphasised by Their Lordships that the value ofpublic user as evidence of dedication depends on thecircumstances which give strength to the inference that theuser was as of right. In Goswami Shri Mahalaxmi Vahuji v.Rannchhoddas Kalidas it was pointed out that the appearancethough a relevant circumstance was by no means decisive. Thecircumstance that the public or a section thereof had beenregularly worshipping in the temple as a matter of courseand they could take part in the festivals and ceremoniesconducted in that temple apparently as a matter of right wasa strong piece of evidence to establish its publiccharacter. If votive offerings were being made by the publicand the expenses were being met by public contribution, itwould be safe to presume that the temple was public. Inshort the origin of the temple the manner in which itsaffairs were managed, the nature and extent of the gifts https://hcservices.ecourts.gov.in/hcservices/ received by it, rights exercised by devotees in regard toworship therein, the consciousness of the manager and theconsciousness of the devotees themselves as to the publiccharacter of the temple were factors that went to establishwhether a temple was public or private.16.It is true that the suit temple had some physicalcharacteristics and features which are generally to be foundin a public temple. It was also established that persons whowere outsiders in the sense that they did not belong to theThoguluva family used to come and worship at the temple andmade offerings there. There were also some jewels and otherarticles in the temple. But the determination of thequestion whether the temple was public or private did notdepend on some facts or set of facts alone. The entireevidence, both documentary and oral, had to be considered asa whole keeping in view the principles already noticed byus. We are satisfied that the learned District Judge came tothe correct conclusion that the suit temple was private incharacter. (iv) AIR 1976 MADRAS 26, T.Mudaliar v. Commissioner, HR & CE.:"The other inspiring norms to decide whether atemple is a private or public temple is dependentupon the features of the institution."(v) AIR 1971 MADRAS 405 (V C 83), Pichai v. Commissioner, HR &CE :"The definition of temple is wide enough to include anyplace of public religious worship irrespective ofinstallation of idols or a building or a tower or stupi.Presence of idols is not an essential requisite of temple.The only conditions are that it must be dedicated to or forthe benefit of, Hindu community or a section thereof or usedby it as of right"(vi) 2005 (2) TLNJ 375, C.Nallasivan Pillai v. TheCommissioner, HR & CE :"Character of Temple – Tests – merely because Governmentappointed trustees cannot be sole basis to determinecharacter of temple – initial presumption that temples inTamil Nadu should be treated as public temple – usualpresumption cannot be invoked in respect of temple atTranvancore or otherwise at Kerala (on facts held) temple https://hcservices.ecourts.gov.in/hcservices/ private"(vii) 1998 (2) L.W.819, The Commissioner, HR & CE v. SriAndarvillai Mutharamman Temple :"In view of the concurrent findings of fact about thephysical features of the temple, its origin and subsequentadministration all along and the absence of any proof ofother members of the public worshipping in the temple orgiving any funds or contribution or the presence of anyhundial, no exception could be taken to the ultimatedecision arrived at that the temple in question is not apublic temple."(viii) 2003 (1) CTC 65, The Commissioner, HR & CE, v.T.S.Palanichamy :"Crucial factor for determining character of temple iswhether there is dedication to public and right if public tooffer worship is as a matter of right"(ix) 1977 (1) MLJ 125, Soundharathammal v. M.A.B.M.Sangam :"Merely because the members of the public are allowed toattend religious festivals and ceremonies, it cannot bestraightaway said that such user was due to an inherent oracquired right of the public to visit the shrine and offerworship. The mere fact that Hindu worshippers have beenfreely admitted to the temple does not prove the temple tobe a public institution, because the consonance of Hindusentiment and practice is not to turn away worshippers evenin private temples."16. On the other hand, the learned Special Government Pleaderappearing for the respondents has contended that the respondents have astatutory power to decide whether a religious institution is a privateone or not under Section 63 of the Act and when the Government bodieslike TNHB and MMDA have allotted a bulk area in Besant Nagar for apurpose, it is only for a public purpose and not for a private purpose.He has further submitted that the appellant has collected publicdonations for the founding and maintenance of the suit temple and theInspector, in her evidence, spoke that she conducted an enquiry andfound that public worship, offerings and Archanai were said to be inpractice and this fact was stated to have been ascertained from theGurukkul of the suit temple and that the public was allowed for worship https://hcservices.ecourts.gov.in/hcservices/ and also to offer their Kanikkais (offerings). The learned SpecialGovernment Pleader has further contended that the factors of the publicworship and offerings are made out and the foundation of the temple hasbeen constructed in an area allotted by TNHB and on an approval givenby MMDA and it has been dedicated for the benefit of the Hinducommunity or any section, thereby the temple in question can comewithin the scope of definition under Section 6 (20) of the Act. Thelearned Special Government Pleader has also pointed out that the publichave liberally donated to the construction and consecration ceremonyand, therefore, the conclusions arrived at by the authorities below arein no way legally infirmed and in the absence of any perversity andinfirmity in the orders of the Court below, there is no scope tointerfere with such findings. In support of his contentions, thelearned Special Government Pleader relied on the following decisions :(i) A judgment of the Supreme Court reported in 1981 (1) SCC 445in the case of T.V. Mahalinga Iyer v. State of Madras : “2.Shri Balakrishnan, appearing for the appellant, hastaken us through the details of the evidence to impress uponus that the High Court had grievously erred in holding thatthe temple was a public one. It is undisputed law that so faras Tamil Nadu is concerned, there is an initial presumptionthat a temple is a public one, it being up to the party whoclaims that it is a private temple, to establish that factaffirmatively. Of course, this initial presumption must berebutted by clinching testimony and the crucial question isas to whether the public worship in the temple is as ofright. Ordinarily, there may not be direct evidence regardingthe exercise of such right and inference has to be drawn froma wealth of circumstances. In the present case, the HighCourt has gone into great detail and taken up circumstanceafter circumstance to uphold its conclusion that theinstitution is a public temple. The dedication to the publicneed not be by a deed and may be spelt out of thecircumstances present. The right of the public to worshipagain is a matter of inference. In the present case, thefounder is no more and he died issueless with the result thathis family is extinct. A will had been executed by him andthe trustees under the will are now claiming the institutionas a private temple. The various features referred to by theappellate court and discussed at some length do not call forreiteration and we desist from doing so. It may be noted thatthe temple itself is situate on government property, thatprocessions with the deity are taken out and that offeringsare made, that the structure especially of Gopuram andMandapam also indicates the public nature of the temple. Manyother facts have been accumulated by the High Court and theevidence (Ex. B-1) in the case also supports the conclusionthat there had been contributions made by the public and the https://hcservices.ecourts.gov.in/hcservices/ temple was not a private one. We are not inclined toreappraise the evidence in this Court as we are thoroughlysatisfied that no serious error of law or perspective ormisappreciation of evidence has been pointed out in thejudgment of the High Court. We are, therefore, constrained toreject the case of the plaintiff-appellant that theinstitution is private or that the deity is a family idol. Weaccordingly dismiss the appeal.“(ii) Hindu Religious and Charitable Endowment (A) Department v.N.Sivarawajan Nadar, 2001 (2) CTC 513 :"Person alleging that temple underconsideration is private temple and not publictemple – Onus of proof is on person allegingthat it is private temple – Onus is not onDepartment to prove that it is public temple"17. I have carefully considered the contentions raised by thelearned counsel on either side and the reliance made by them and alsoperused the records.18. At this juncture, the questions that arise for considerationare : (i) whether the temple in question is having a public characteror a private character and (ii) whether the appellant has a right overthe affairs of the temple.19. Before proceeding to decide the said questions, the relevantprovisions for consideration are Sections 6 (18), 6 (20) and 63 (a) ofthe Act, which read as under :"6 (18). "religious institution" means amath, temple or specific endowment and includes,-(i) a samadhi or brindhavan; or(ii) any other institution established ormaintained for a religious purpose.""6 (20). "temple" means, a place by whateverdesignation known, used as a place of publicreligious worship and dedicated to, or for thebenefit of, or used as of right by, the Hinducommunity or of any section thereof, as a placeof public religious worship.""63. Joint Commissioner or DeputyCommissioner to decide certain disputes andmatters.-Subject to the rights of suit or appeal https://hcservices.ecourts.gov.in/hcservices/ hereinafter provided, the Joint Commissioner orthe Deputy Commissioner, as the case may be,shall have power to inquire into and decide thefollowing disputes and matters :-(a) whether an institution is a religiousinstitution."20. A thorough reading of the entire case would reveal that thetemple in question was initially located adjacent to C.P.W.D. Officecompound wall and during 1969, prathishtai was done by one SamayapuramRamanatha Swamigal and the public worship and offering of Abhishekamand Aradhanai were said to be in practice, which fact was said to havebeen ascertained by the Inspector from the Gurukkal of the temple.Further, on inspection, it was found that the main source of the incomeof the temple is from hundial and Thattukankkai. In addition, from theoral and documentary evidence of P.W.2 and C.W.1, what comes to beknown is that though the appellant had some control over the affairs ofthe temple in question, the moment they started allowing the public toworship and having hundial and permitted the offerings, the appellanthas lost the character of private nature. It could also be seen thatpurchase of the property from the Housing Board for a valuableconsideration has been given to the temple and not to the Sangam, ascould be seen from Ex.A-3, which is addressed to the President ofArulmighu Sri Varasiddhi Vinayagar temple and not to the appellantherein. 21. It is seen that the Tamil Nadu Housing Board has sent acommunication Ex.A-3 on 04.06.1977, addressing the President of SriVarasidhivinayagar temple, Besant Nagar, Madras, allotting the land tothe extent of 6 grounds and 425 sq.ft. The plan approval by MMDA underEx.A-4 dated 07.10.1977 and the estimate Ex.A-5, dated 25.02.1978, forthe construction of the temple have also been obtained. Under Ex.A-6invitation, dated 28.02.1979, it is mentioned that donations in theforms of cheques should be sent in the name of Sri Varasiddhi VinayagarSath Sangam. Further, it is clear from the allotment order that theproperty is allotted to Sri Varasiddhi Vinayagar temple only and not tothe petitioner Sangam. One of the witnesses, namely, P.W.2 hasadmitted that the expenses for the construction of the temple was notonly from the donations offered by the members of the Sath Sangam butalso from the contributions made by the public, which is evident fromthe invitation Ex.A-6 series. It is nowhere asserted in Ex.A-2 thatthe temple was intended to the welfare of the members of the SathSangam. Therefore, it has to be stated that there was a publiccontribution in the construction of the temple and also theirparticipation in offering worship without any hindrance. From Ex.A-8,it is established that the temple is having hundials for collection ofoffering from the public. It is further seen that the allotment of 6grounds and 425 sq.ft. allotted by the Housing Board in a highlydeveloped area, which has been admitted by the appellant, from which it https://hcservices.ecourts.gov.in/hcservices/ can be assumed that the Government body like Housing Board would notallot such a bulk area for a private purpose. Further, the Inspectorof HR & CE Department, Madras, conducted an inspection and her reporthas been marked as C.W.1. She collected information from the Gurukkalin regard to the public worship in the temple. She had inspected thetemple and seen hundials and offerings, based on which the report hasbeen taken into consideration for deciding the character of theinstitution whether it is public or private. All these facts wouldprove that the temple in question is having a public character. Hence,the fact finding authorities as well as the statutory and appellateauthorities have concurrently held that the temple is public incharacter, as contemplated under the provisions of Section 6 (20) readwith Sections 6 (18) and 63 (a). 22. The Supreme Court in T.D. Gopalan's case (cited supra) hasheld that the circumstance that the public or a section thereof hadbeen regularly worshipping in the temple as a matter of course and theycould take part in the festivals and ceremonies conducted in thattemple apparently as a matter of right was a strong piece of evidenceto establish its public character. The Apex Court also held thereinthat if offerings are made by the public and the expenses met by publiccontribution, it would be safe to presume that the temple was public. 23. Therefore, in the absence of any contra evidence to thateffect, when there is a clinching material to prove the participationof public and their worship with offerings and thattukanikkai, thisCourt is of the considered opinion that the temple in question is apublic temple.24. With regard to the appellant's right over the temple, theappellant claims that the temple in question has assumed only a privatecharacter and, therefore, the respondent has no control over theaffairs of the temple; the idol was worshipped by one BalaramamoorthyNaidu of the locality in the land belonging to the Housing Board and hewas continuing his personal worship and there was no dedication to thesaid deity either by way of any property or by way of any worship as amatter of right; it is a registered society and they have applied tothe Housing Board for allotment of land and one T.N.Venkoba Rao waselected as the Secretary of the Sath Sangam and he was coordinating theday-to-day affairs of the private temple in question. 25. The evidence of P.Ws.2 and 3 would reveal that the templecame to be constructed by the contributions of the members of theappellant also. However, P.W.3 denied the knowledge of the actualamount of materials contributed by the members. But, he admitted thatno accounts were maintained for the contributions received towards theconstruction of the temple. 26. Looked at from any angle at the affairs of the temple, itssubsequent maintenance, the installation of hundials and also receivingofferings (thattukanikai) and on consideration of the report of the https://hcservices.ecourts.gov.in/hcservices/ C.W.1 and the evidence of P.Ws.2 and 3, this Court, having come to adefinite conclusion that the temple in question has lost the right ofprivate character and retained the public character, holds that theappellant has no right over the affairs of the temple. 27. It is well settled that the origin of the temple, the mannerin which its affairs are managed, the nature and extent of thecontributions received by it, the rights exercised by devotees inregard to worship therein, the consciousness of the manager and theconsciousness of the devotees themselves as to the public character ofthe temple are the factors that go to establish whether a temple ispublic or private. It is also an ordained principle that the suittemple has some physical characteristics and features which aregenerally to be found in a public temple. The said principles are takennote by the Supreme Court in Goswami Mahalaxmi Vahuji v. RannchhoddasKalidas, AIR 1970 S.C. 2025, This Court also, in repeated rulings,relied upon by the learned counsel for the appellants, held that withregard to the origin and subsequent administration all along and theabsence of any proof of other members of the public worshipping in thetemple or giving any funds or contribution or the presence of anyhundial, no exception could be taken to the ultimate decision arrivedat that the temple in question is not a public temple. The initialpresumption is that temples in Tamil Nadu should be treated as publictemples. The character of the temple is to be determined based on thededication to public and right of the public to offer worship as amatter of right. The definition of temple is wide enough to include anyplace of public religious worship irrespective of installation of idolsor a building or a tower or stupi. Presence of idols is not anessential requisite of temple. The only conditions are that it must bededicated to or for the benefit of Hindu community or a sectionthereof. In the instant case, the public character assumed importance,as there are contributions, presence of hundials and the offerings. 28. All the above points have been taken into consideration by thetrial Court, while passing the impugned judgments. Therefore, thereis no sound and substantial reason to interfere with the findingsrendered by the trial Court in dismissing the suits. As such, theseappeals deserve to be dismissed and the same are dismissed accordingly,confirming the judgments and decrees of the Court below. 29. However, since it is not in dispute that the appellant hadapplied to the Tamil Nadu Housing Board for allotment of land to theextent of 6 grounds and 425 sq.ft. and the same was purchased forRs.77,213.54 ps. and they have also obtained plan approval from MMDA,it cannot be proper for this Court to leave the appellant without anyproper compensation or remedy. Therefore, the respondents are directedto find out what was the individual and collective contribution of themembers of the appellant and also as to the source of the fund towardsthe purchase of the land on verification of the statements of accountsof the temple by appointing an appropriate officer of the Department https://hcservices.ecourts.gov.in/hcservices/ and by giving the members an opportunity of being heard and if theirclaim is so established, they be compensated properly. The entireexercise shall be completed by the respondents within a period of twomonths.30. With the above direction, these appeals are dismissed. Nocosts. Sd/Asst.Registrar/true copy/Sub Asst.RegistrardixitTo 1.The Registrar,City Civil Court, Madras.2.The Section Officer,VR Section, High Court, Madras.+1cc to Mr.W.C.Thiruvengadam, Advocate Sr 38667+1cc to MR.W.C.Sridhar, Advocate Sr 38668KLT (CO)km/22.7.A.S.Nos.1280 & 1395/1994