The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK M.S.A. No. 2 of 2014 Raghunath Jew Thakur …. Appellant Mr. Anupam Rath, Advocate -Versus- The Commissioner of Endowments, Odisha, Bhubaneswar & Another …. Respondents Mr. Amit Kumar Nath, Advocate CORAM: JUSTICE R.K. PATTANAIK DATE OF JUDGMENT:02.09.2023 1. Instant appeal under Section 44(2) of the Odisha Hindu Religious Endowment Act, 1951 (herein after referred to as OHRE Act) is at the behest of the appellant assailing the correctness, legality and judicial propriety of the impugned judgment in F.A. No. 11 of 2010 passed by the learned Commissioner of Endowments, Odisha and also the decision in O.A. Case No. 38 of 2006 under Section 41 of the OHRE Act on the grounds inter alia that the same are not tenable in law. 2. The appellant questioned the findings of the learned courts below on the following grounds, such as, the learned Lower Appellate Court failed to appreciate the evidence on record which is consistent to show that there was no involvement and interference by the public in any manner whatsoever vis-à-vis the management of the deity which is not a public religious institution and hence, no such inference could have been drawn as the subject being a public deity; furthermore, when there is evidence on record to the effect that the immovable properties of the deity M.S.A. No. 2 of 2014 Page 1 of 10 Raghunath Jew Thakur Vrs. The Commissioner of Endowments, Odisha, Bhubaneswar & Another were purchased by its founder so on and so forth. The appellant
Legal Reasoning
also challenged the finding that by long passage of time, the properties of the deity have become public religious endowment is not in confirmity with the provisions of OHRE Act rather runs contrary to the very object of the law and hence, therefore, the impugned judgment in appeal so also the decision in O.A. Case No. 38 of 2006 deserve to be interfered with as there has been complete non-application of judicial mind. 3. In fact, the appellant approached the learned Additional Assistant Commissioner of Endowment, Cuttack Zone, Cuttack invoking jurisdiction under Section 41 of the OHRE Act for a declaration that the Marfatdar to be holding the office of Shree Raghunath Jew Thakur in private capacity. In the said proceeding, evidence was received from the appellant. Considering the evidence on record, the learned Additional Assistant Commissioner of Endowment, Cuttack Zone, Cuttack held that Shree Raghunath Jew Thakur is a public deity and the properties to be public religious Endowments. In other words, the relief so prayed for by the appellant was denied and as such, the application under Section 41 of the OHRE Act was dismissed. As against the judgment dated 3rd July, 2010 in O.A. Case No. 38 of 2006, the appellant preferred appeal which was disposed of by the impugned judgment dated 21st December, 2013 in F.A. No. 11 of 2010. The appeal so filed by the appellant was allowed in part with a declaration that the case institution and the deity is a public deity with the appellant as the hereditary Trustee by way of testamentary succession as per its prevailing custom. Being dissatisfied with such a finding by the learned Lower Appellate Court, the appellant has knocked the doors of this Court with the present appeal. M.S.A No. 2 of 2014 Page 2 of 10 Raghunath Jew Thakur Vrs. The Commissioner of Endowments, Odisha, Bhubaneswar & Another
Legal Reasoning
4. Heard Mr. Rath, learned counsel for the appellant and Mr. Nath, learned counsel for the Commissioner of Endowments, Odisha-respondent No.1. None has appeared for respondent No.2. 5. Mr. Rath, learned counsel for the appellant refers to a copy of the report of Inspector of Endowments, Jajpur dated 18th June, 2010 and also evidence of the appellant examined as PW 1 and another witness, namely, Sanatan Biswal as PW 2 and submits that the deity is a private deity and the properties of it are private endowments and there has been material on record that the institution has been managed and administered by the Marfatdars finally succeeded by the appellant, so therefore, the findings of the learned courts below that the deity to be a public deity is against the weight of evidence. It is further submitted that the local public never worshiped the deity nor played any part in its management and in absence of any such evidence, the learned Lower Appellate Court could not have held it as a public religious institution declaring the appellant as its hereditary Trustee. It is contended by Mr. Rath that both the learned courts below fell into serious error in law by concluding the deity as a public deity and the properties to be public religious endowments. Even though the learned Lower Appellate Court held that the court of first instance declared the case institution as a public religious institution even in absence of involvement of the general public but by considering the fact that the religious endowments have been acquired and succeeded by the appellant at the end covering a period of more than 100 years, it was held as a religious endowment, a status which was crystallized and hence, the Marfatdar is to be held as a hereditary Trustee on the strength of the Will, as according to Mr. Rath, is a finding and conclusion grossly erroneous and cannot therefore be sustained in law. M.S.A No. 2 of 2014 Page 3 of 10 Raghunath Jew Thakur Vrs. The Commissioner of Endowments, Odisha, Bhubaneswar & Another 6. On the contrary, Mr. Nath, learned counsel for the respondent No.1 justifies the findings of the learned courts below and submitted that the deity is a public deity and the properties are public religious endowments acquired by the Marfatdars from the time of its founder and thereafter succeeded by the appellant, therefore, the impugned judgment in F.A. No. 11 of 2010 suffers from no legal infirmity. 7. Mr. Rath, learned counsel for the appellant produced a copy of the deposition of PW 1, namely, appellant examined before the learned Additional Assistant Commissioner of Endowment, Odisha to satisfy the Court that the deity was privately installed by the founder and there was no contribution by the local public in any manner. The evidence of PW 2 is referred to by Mr. Rath and he submits that the evidence clearly proved the status of the deity to be private in nature. The copy of the report of the Inspector of Endowment dated 18th June, 2010 is placed reliance on and according to Mr. Rath, the same never disclosed the public character of the deity and its endowments. Thus, in absence of any evidence as a public deity and endowments to be of a public religious institution, it is contended that the decision of the learned courts below is wholly misconceived. 8. Whether the deity is a public deity or private and endowments to be of a public religious institution is required to be examined with reference to the evidence made available. It is claimed that the appellant as the Marfatdar of the deity and PW 2, an independent witness have been examined. 9. Law is well settled that whether a deity to be a private or public deity, the burden of proof lies on the person to prove the institution to be private, or the property to be other than that of a religious endowment or specific endowment in view of the M.S.A No. 2 of 2014 Page 4 of 10 Raghunath Jew Thakur Vrs. The Commissioner of Endowments, Odisha, Bhubaneswar & Another proviso to Section 41(1) of the OHRE Act. In other words, the onus lies on the appellant to establish it to be a private deity. It is also to be shown by the appellant that the religious institution is a private endowment. As per the report of the Inspector of Endowment, which has been referred to by Mr. Rath, learned counsel for the appellant, the source of endowment could not be ascertained accurately. As per the facts on record, the properties situate under Hal Khata No.576 stand recorded in the name of the deity with other properties under Hal Khata No. 291 which corresponds to Sabik Khata No. 115. All the RoRs stated to have been produced before the learned Additional Assistant Commissioner of Endowment, Odisha, Cuttack. As per the evidence of the appellant, eldest Guru acquired some lands under RSD No. 3535 dated 29th March, 1960 and he installed the deity Shree Raghunath Jew Thakur. There have been purchases of properties on couple of occasions as deposed by the Marfatdar, namely, PW 1 with the claim that management of the affairs of the deity all along remained with the Marfatdars. It has been deposed by PW 1 that none of the villagers ever attended the deity or worshiped it which is rather installed inside a residential campus and the ceremonial functions are being performed without the involvement of the public. It is claimed by PW 1 that he succeeded the Marfatdary right of the deity and its properties on account of registered Will dated 11th December, 1956 by which the predecessor nominated him as the successor to look after the seva puja and management of the deity. PW1 was cross-examined by respondent No.2, Similar is the evidence of PW 2. It is made to suggest that the learned courts below did not appreciate the evidence in its proper prospective while reaching at a conclusion that the deity to be a public deity and properties as public religious endowments. M.S.A No. 2 of 2014 Page 5 of 10 Raghunath Jew Thakur Vrs. The Commissioner of Endowments, Odisha, Bhubaneswar & Another 10. Law is well settled that presence and participation of the public if any in respect of a deity installed by a private person is a matter to be taken cognizance of. If in case, a private deity is installed but subsequently, the public attended the deity or visited the temple in which the idol of the deity is installed and be a part of the religious functions/ceremonies over a period of time, a presumption would arise against the private character of the deity or temple. If the deity remains secluded and was never visited by the public or at no point of time, after its installation, it retains a character of a private deity and is not to be treated as a public deity. If the endowment of a private deity is managed by the Marfatdars since the idol installed and there is no evidence to show that the Marfatdars as hereditary Trustees ever ousted by the public or the capacity in which they functioned was ever challenged by the local public, it has to be held as a private deity and not otherwise. There is a long line of authorities which support the aforesaid. In so far as the conclusion which has been reached at by the learned courts below even in absence of any evidence with accuracy about the installation of the deity, to hold that the deity is a public deity certainly appears to be an erroneous conclusion. The specific endowments acquired in the name of the deity have been deposed by PW 1. No evidence is on record to show that any such endowment was at the instance of the local public or an outsider. For PW 1 having failed to submit the documents to satisfy as to the line of succession cannot be a justification for the learned Additional Assistant Commissioner of Endowment, Cuttack Zone, Cuttack to hold that it is hence to be held as a public deity and the endowments as of a public religious endowment. To reiterate, if a private deity is managed by hereditary Trustees but subsequently, the public is allowed to attend and participate either in the management or otherwise or such participation is confined to religious functions, under such M.S.A No. 2 of 2014 Page 6 of 10 Raghunath Jew Thakur Vrs. The Commissioner of Endowments, Odisha, Bhubaneswar & Another circumstances, it could become a public deity with the change of character. So, therefore, it depends on the attendance of public in offering puja or participating in the religious ceremonies of the deity and such other surrounding circumstances would really determine the nature and character of the deity and its endowments. As it appears, the aforesaid aspect has not been duly examined by the learned courts below. Quite interestingly, the learned Lower Appellate Court by taking notice of the fact that the endowments have been succeeded by the Marfatdars and it has been over a period of 100 years held that the religious endowment to be public in nature or by such passage of time, it stood crystallized as a public religious endowment. In the considered view of the Court, such a view cannot be subscribed as in similar circumstances, the endowments could be of a private deity managed by the Marfatdars, who are appointed either by natural succession or testamentary. A deity could remain private deity and managed by hereditary Trustees or marfatdars appointed by any testamentary succession and it cannot become a public deity merely by long passage of time unless a case is made out for the same. Such a view expressed by the learned Lower Appellate Court as rightly pointed out by Mr. Rath, learned counsel for the appellant stands to no reason. 11. While advancing the above argument, Mr. Rath cited a decision of this Court in the case of Benudhar Hota and others Vrs. Jagannath Nayak and others 2009 (Supp.-II) OLR (NOC) 922 and contended that the learned Endowment Commissioner did not adhere to the guidelines laid down therein which is based on the principles outlined by the Supreme Court in G.S. Mahalaxmi Vrs. Shah Ram Chandra Das AIR 1970 SC 2025. In the decision of Benudhar Hota (supra), this Court while dealing with a similar question held and observed that the Courts have to address M.S.A No. 2 of 2014 Page 7 of 10 Raghunath Jew Thakur Vrs. The Commissioner of Endowments, Odisha, Bhubaneswar & Another themselves to the following questions, such as, (i) whether the temple built in such imposing manner that it may prima facie appear to be a public temple? (ii) Are the members of the public entitled to worship in that temple as of right? (iii) Are the temples expenses met from the contributions made by the public? (iv) Whether the seva and ceremonies conducted in the temple are attended and celebrated by the public? (v) Have the management as well as the devotees been treating the temple as a public temple? Applying the principles of law enunciated by the Apex Court in G.S. Mahalaxmi (supra) and taking cognizance of the judgment of the Privy Council in Lakshmana Vrs. Subramania reported in AIR 1924 PC 44, the Court finally concluded that the institution involved therein to be a public religious Endowment. In G.S. Mahalaxmi (supra), the Supreme Court has elaborately dealt with the aforesaid aspect and observed that though appearance of a temple is a relevant circumstance, it is by no means decisive. In the decision of Privy Council (supra), the Judicial Committee while considering the facts and circumstances of the case therein and the question with respect to a temple initially installed privately concluded that the conduct of the Mahant to be such that the temple has become a public temple at which all Hindus might worship and inference was, therefore, to be drawn that it had been dedicated to the public. A bare reading of the aforesaid decision leads to a logical conclusion that a decision as to whether an institution is public or private depends on the inference to be derived considering and taking it account the evidence vis-à-vis the manner in which the temple and its endowments have been managed and dealt with. In Benudhar Hota (supra), this Court has also taken judicial notice of the instances where a private deity may have become public by elucidating facts that though most of the present day Hindu public temples had been founded ages back as private temples, by efflux M.S.A No. 2 of 2014 Page 8 of 10 Raghunath Jew Thakur Vrs. The Commissioner of Endowments, Odisha, Bhubaneswar & Another of time, the same have become public in nature and some of the private temples have acquired great deal of religious reputation either because of their location or other circumstances. It has also been observed therein that the temples and deities privately installed initially having attracted large number of devotees gradually in course of time have become public temples and in such cases, it would have to be held as public religious institutions even if they had been originally private temples or where its origin are unknown or lost in antiquity. Applying the above legal standard laid down by the Judicial Committee in Lakshmana (supra), a judgment legal classicus on the point, the Court has to consider, whether, the learned Commissioner of Endowments, Odisha rightly reached at the conclusion having regard to the evidence received. In so far as the evidence on record is concerned, as it is made to appear, affidavits have been received from the petitioner. It is claimed that a report of the Inspector of Endowment, Jajpur dated 18th June, 2010 has also been considered. The affidavits filed from the side of the petitioner claimed the temple to be a private temple and never visited by the local public. A copy of the report dated 18th June, 2010 of the Inspector of Endowment does not clearly suggest that the case institution is a public deity. In fact, the Court finds absence of any such evidence to relate the deity as a public deity or for that matter, to draw any such inference. It was the bounden duty of the learned Additional Assistant Commissioner of Endowment, Cuttack Zone, Cuttack before whom an application under section 41 of O.H.R.E. Act to hold a detailed inquiry before reaching at a conclusion as the deity to be public. The said aspect has also been left out of consideration by the learned Lower Appellate Court keeping in view the settled principles of law discussed herein above. Having held so, the Court has no other option except to remand the matter for a fresh decision by the learned Additional M.S.A No. 2 of 2014 Page 9 of 10 Raghunath Jew Thakur Vrs. The Commissioner of Endowments, Odisha, Bhubaneswar & Another Assistant Commissioner of Endowment, Cuttack Zone, Cuttack on the question involved, which is with respect to the nature of deity, whether, private or public and if required, by receiving further evidence. 12. Hence, it is ordered. 13. In the result, the appeal stands allowed. As a necessary corollary, the impugned judgments under Annexure-2 in F.A. No. 11 of 2010 and Annexure-1 in O.A No.38 of 2006 are hereby set aside with a direction to the learned Additional Assistant Commissioner of Endowment, Cuttack Zone, Cuttack to deal with the matter afresh and to dispose it of keeping in view the settled principles of law and observations made herein above. (R.K. Pattanaik) Judge Kabita/Roji Signature Not Verified Digitally Signed Signed by: KABITARANI MAJHI Reason: Authentication Location: OHC, CTC Date: 02-Sep-2023 16:52:27 M.S.A No. 2 of 2014 Page 10 of 10