IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 13/07/2006
CORAM
THE HON'BLE MR. JUSTICE P.K. MISRA
AND
THE HON'BLE MR. JUSTICE M. JAICHANDREN
L.P.A. No. 170 of 2002
The Commissioner
H.R.and C.E. A Department
Madras 34 ..Appellant
-Vs-
Sri Bhagavanandhar and
Sri Dhayanandhar Matalayam
Pudupalayam, Cuddalore
represented by its
hereditary trustee
G.Arunachalam ..Respondent
Prayer: L.P.A against the judgment and decree dated 01.08.2001 passed
by this court in A.S. No.608 of 1995.
!For Appellant : Mr.V.Srikanth
AGP
^For Respondent : No Appearance
:JUDGMENT
(The judgment of the Court was made by P.K. MISRA, J)
The Commissioner, Hindu Religious and Charitable Endowment
Department has filed this appeal under the Letters Patent challenging the
order passed by the learned single Judge in A.S.No.608 of 1995 dated 1.8
.2001, under the following circumstances :-
The respondent had filed O.A.No.169 of 1996 before the Deputy
Commissioner, Hindu Religious & Charitable Endowment Board for declaration
under Section 63(a) of the Tamil Nadu Hindu Religious and Charitable
Endowments Act,1959, hereinafter referred to as the Act, that the disputed
institution is not a religious institution. It was also prayed that the
trustee was holding office as a hereditary trustee as contemplated under
Section 63(b) of the Act. The Deputy Commissioner found that the institution
is a religious institution and declared the present respondent as hereditary
trustee. Such order was challenged before the Commissioner in AP.No.214 of
1977, but the said appeal was rejected by the Commissioner. Thereafter, as
contemplated under section 70 of the Act, the respondent filed O.S.No.633 of
1979 before the Subordinate Judge for declaration that the plaintiff
institution is not a religious institution as defined under the Act and for
setting aside the order of the Commissioner, HR & CE passed in the appeal.
2. The main assertion made in such suit was to the effect
that the present hereditary trustees paternal grandfather was a great devotee
of two saints, namely, Sri Bhagavandhas Swamigal and Sri Dhayanada Swamigal,
and after such saints attained nirvana, their mortal remains were interned and
structures have been put up by such paternal grandfather of the trustee.
Regular poojas were held in the samdahis. These samadhis are being
administered by the male descendants of the founder trustee as per the
instructions and the present trustee has been recognised as the hereditary
trustee. It was further alleged that originally only Bali Peetams were put
up over the samadhis and there were no idols, but about 15 years before filing
of the suit, idols have been placed near Bali Peetams. It was further
stated that the institution was not a Hindu religious institution since it is
open to members of all religious and people of all religions are entitled to
worship and in fact worshipping.
3. A written statement was filed on behalf of the present
appellant, wherein it was contended that the suit institution was a religious
institution and has been rightly found as such by the Deputy Commissioner and
the Commissioner. It was further stated that since notice as required under
Section 80 C.P.C., has not been issued, the suit was liable to be dismissed on
that ground.
4. The trial court found that the origin of the suit
institution has been from samadhis of two swamigals and even though certain
idols have been placed near the samadhis in recent times, it cannot be said
that suit institution was a religious institution as defined under the Act.
For the aforesaid purpose, the Subordinate Judge relied upon a decision of
this Court reported in 1977 (I) MLJ 125 (SOUNDHARA AMMAL v. THE
TIRUCHIRAPALLI MAVATTAM MAHASURULI ALAYA BAKTHARGAL MADYA SANGAM), which in
its turn had relied upon an earlier decision of this Court reported in 1955(I)
MLJ 60 (BODENDRASWAMI MUTT v. PRESIDENT, H.R. & C.E. BOARD), wherein it has
been indicated that mere presence of idols of Gods and recognised deities in
the matam round the samadhi would not bring such institution within the
definition of the temple and such samadhi cannot be considered as a public
temple. On the basis of such conclusion, the trial court decreed the
plaintiffs suit with a declaration that the institution was not a religious
institution as defined under the Act. Such decision was challenged by the
Endowment Commissioner before the learned single Judge, wherein the learned
single Judge by relying upon the decision reported in 1977(I) MLJ 125 (cited
supra) confirmed the finding of the learned single Judge, giving rise to the
present appeal.
5. In the present appeal, inspite of notice, there is no
appearance on behalf of the respondent.
6. Learned counsel appearing for the appellant has submitted
that even though as per the definition at the time of decision of the suit and
the appeal the institution might not have been a religious institution under
the Act, in view of the subsequent change in law, the decision of the trial
court is required to be modified. It has been submitted by him that the
definition of religious institution has undergone a change by virtue of the
amendment effected by Tamil Nadu Act 10 of 2003.
7. Before the Act was amended as per Act 10 of 2003, the
definition of religious institution as per Section 6(18) was as follows :-
religious institution means a math, temple or specific endowment.
However, by amendment the definition is as follows :-
6(18) religious institution means a math, temple or specific
endowment and includes,-
(i) a samadhi or brindhavan; or
(ii) any other institution established or maintained for a religious
purpose.
Explanation.- For the purpose of this clause-
(1) samadhi means a place where the mortal remains of a guru, sadhu
or saint is interned and used as a place of public religious worship;
(2) brindhavan means a place established or maintained in memory of
a guru, sadhu or saint and used as a place of public religious worship, but
does not include samadhi;
8. Relying upon the aforesaid changed definition, the learned
counsel for the appellant submits that in view of such changes in law, the
judgment of the Civil Court is required to be modified and the institution
could be considered as religious institution.
9. A perusal of the definition as per the amended provision
makes it is clear that religious institution includes a samadhi. Such
amendment, which came into force on 12.6.2003, leaves no room for doubt that a
samadhi would also come under religious institution.
10. Next question is whether the suit, which was filed at a
time when such amendment was not in force can be disposed of by taking into
account such change in law.
11. In the present case, there is no dispute that worship of
the samadhi was being done by the members of the general public. In the
absence of any such dispute and in view of the amended provision, since no
other factual dispute needs to be resolved, there can be no doubt that the
institution would be now considered as religious institution as contemplated
in Section 6(18) of Act 10 of 2003.
12. Since the decisions relied upon by the trial court and
the learned single Judge were based upon the definition existing prior to such
amendment, it must be taken that the effect of such decisions has been taken
away by the amendment effected under Act 10 of 2003. From the statement of
objects and reasons of the amending Act, it is obvious that the legislature
intended to include the places of samadhi and brindhavan as religious
institutions to bring them under the control of Hindu Religious and Charitable
Endowment Department.
13. Learned counsel appearing for the appellant has also
submitted that there is no satisfactory evidence to the effect that the
trustee was a hereditary trustee. However, such contention of the appellant
cannot be accepted. Apart from the fact that in the proceedings under Section
63(b) the Deputy Commissioner has recognised the trustee as hereditary
trustee, the materials on record, which have been referred to in the present
proceedings, clearly indicate that the trustee was holding the office
hereditarily and, therefore, such contention of the appellant cannot be
accepted.
14. In such view of the matter, the decree of the trial court
as confirmed in appeal is required to be clarified. It is therefore declared
that the institution can be considered as religious institution within the
meaning of Section 6(18) with effect from the date on which Tamil Nadu Act 10
of 2003 came into force. However, it is further declared that the trustee of
the institution is a hereditary trustee and such recognition as per Section
63(b) remains untested. The appeal is accordingly allowed in part. There
would be no order as to costs so far as the present appeal is concerned.
dpk/vsl
To
1. The Sub Assistant Registrar,
High Court, Madras 104.
2. The Subordinate Judge,
Cuddalore (with records)
3. The Record Keeper,
V.R. Section,
High Court,
Madras 104.
