{"id":216233,"date":"1994-08-17T00:00:00","date_gmt":"1994-08-16T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/bala-shankar-mama-shankar-vs-charity-commissioner-gujarat-on-17-august-1994"},"modified":"2016-09-16T16:28:34","modified_gmt":"2016-09-16T10:58:34","slug":"bala-shankar-mama-shankar-vs-charity-commissioner-gujarat-on-17-august-1994","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/bala-shankar-mama-shankar-vs-charity-commissioner-gujarat-on-17-august-1994","title":{"rendered":"Bala Shankar Mama Shankar … vs Charity Commissioner, Gujarat … on 17 August, 1994"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Bala Shankar Mama Shankar … vs Charity Commissioner, Gujarat … on 17 August, 1994<\/div>\n
Bench: J.S. Verma, K. Kamaswamy<\/div>\n
           CASE NO.:\nAppeal (civil)  175 of 1973\n\nPETITIONER:\nBALA SHANKAR MAMA SHANKAR BHATTJEE AND ORS.\n\nRESPONDENT:\nCHARITY COMMISSIONER, GUJARAT STATE\n\nDATE OF JUDGMENT: 17\/08\/1994\n\nBENCH:\nJ.S. VERMA & K. KAMASWAMY\n\nJUDGMENT:\n<\/pre>\n
JUDGMENT<\/p>\n
1994 SUPPL. (2) SCR 687<\/p>\n
The Judgment of the Court was delivered by<\/p>\n
K. RAMASWAMY, J. This appeal, by leave under Article 133, granted by the
\nHigh Court, arises from the Division Bench Judgment of the Gujarat High
\nCourt in First Appeal No. 417\/64 dated August 25\/29, 1972 reversing the
\ndecision of the District Judge Panchmahal in O.M.C.A. No. 19\/1961. Near the
\ntown of Champaner in Halol taluka of Panchmahal District, there is hill
\ncalled Pavagarh hill. On its top Kalika Mataji, Bhadrakali Mataji,
\nAnnapurna Mataji and Budhia Darwajani Budhia Mataji temples are situated.
\nAnother temple by name Ranchhodji along with in Haveli is also situated in
\nthe main village which are the subject matters of these proceedings. The
\nHigh Court held that Kalika Mataji temple is a public trust and a public
\ntemple within the meaning of s.2(13) read with s.2(17) of the Bombay Public
\nTrust Act, 1950, (for short ‘the Act’) and set aside the contra declaration
\nof the district judge. The Assistant Charity Commissioner was directed to
\nconduct de nave inquiry in regard to other temples, rinding that the join
\nenquiry held by the Assistant Charity Commissioner has led to “prejudicial
\nand lopsided results”.\n<\/p>\n
The facts for our decision are as under :\n<\/p>\n
The appellants’ predecessors were called upon and under protest made an
\napplication under s. 18 of the Act for registration of the temples as
\nPublic Trust. By order dated June 6, 1958, after conducting an enquiry, the
\nAsstt. Charity Commissioner held that the five temples and Haveli as Public
\nTrust properties. On appeal the Dy. Charity Commissioner in his Order dated
\nOctober 20, 1959, remitted for fresh inquiry. Thereafter the Asstt. Charity
\nCommissioner after inquiry, by his order dated August 24, 1969, reiterated
\nthat the temples and Haveli to be public trust properties and accordingly
\nordered their registration under the Act. On appeal, the Charity
\nCommissioner in his order dated May 22, 1961 confirmed the same and
\ndismissed the appeal. On further appeal under s.72, at the instance of the
\nappellants, the district judge declared that all the five temples and
\nHaveli are private properties and directed deletion of their registration
\nunder the Act. As stated earlier, the High Court reversed and upheld the
\nregistration of Kalika Mataji temple as a public trust property and
\nremitted for fresh inquiry in respect of other four temples and Haveli.\n<\/p>\n
Sri Yogeshwar Prasad, the Learned senior counsel contended that the
\ndistrict judge had elaborately considered the entire evidence from the
\nfactual matrix to conclude that Kalika Mataji temple and other temples are
\nprivate temples and that, therefore, they are not public trust properties
\nfor being registered under Section 18 of the Act He had taken us through
\nthe entire evidence, judgments of the District Court and the High Court. He
\ncontends that the High Court had not correctly applied the legal tests laid
\nby this Court in adjudging Kalika Mataji to be public temple which was
\nrefuted by Sri Bhatt, senior counsel appearing for the respondents and Sri
\nVerma for the intervener who has been permitted to argue the matter by
\nspecific order in that behalf. We have gone through the judgment of the
\nHigh Court and that of the District Court, scanned the entire evidence on
\nrecords and given our anxious consideration to their respective
\ncontentions.\n<\/p>\n
The question emerges whether the Kalika Mataji temple is a public Trust.
\nThe High Court after exhaustively subjecting the entire material evidence
\nto close scrutiny concluded thus :\n<\/p>\n
(1)  It (Kalika Mataji temple) is very ancient temple more than thousand
\nyears old.\n<\/p>\n
(2)  It origin is lost in antiquity. It is not possible to rely upon the
\nevidence of witness Chandramukharam and witness witness- Pavinbhi that
\nabout a thousand years ago their ancestor Devshanker had the vision of
\nMataji at that place and that the had constructed that temple for his own
\nworship. They cannot have knowledge of events which took place a thousand
\nyears ago. We are, there fore, of the opinion that so far as the origin of
\nthe temple is concerned it is lost in antiquity. The temple is situated on
\na hill were there is no permanent human habitation.\n<\/p>\n
(3)  It is situated about a mile away from Champaner which is the nearest
\nvillage.\n<\/p>\n
(4) Pilgrims in thousands visit every year this temple for Darshan, for
\nperforming their individual rituals and for discharging themselves from the
\nvows (Badhas) which they take for due fulfillment of their desires, They do
\nso on account of their faith in Mataji.\n<\/p>\n
(5)  The visitors visit the temple without let or hindrance. Therefore, no
\nevidence of any one having been obstructed in his visit to temple for
\nDarshan. There is evidence on record regarding offerings from the visitors
\nto Mataji not only in small coins but also in big things, as we shall
\nshortly show.\n<\/p>\n
(6)  The temple has been shown in Govt. records as belonging to Mataji an
\nthe respondents have been described as it Vahivatdars and pujaris.\n<\/p>\n
(7) There is cash allowance paid from the State Treasury to maintain it. It
\nhas been paid to the deity. The respondents are only its recipients in
\ntheir capacities as the Pujaries or Acharyas of the temple.\n<\/p>\n
(8)  The evidence of witness Chandrakukharam shows that separate of the
\nincome of the temple have been maintained.\n<\/p>\n
(9)  Sanad No. 19 to which we have referred in the foregoing para-graphs of
\nThis judgment, shows that Seindias in their capacity as sovereign Rules had
\ninterest in that temple and that they had passed on their obligation in
\nrespect of the temple to the British Govt. by the Treaty concluded between
\nThem and the British Govt. in 1860.\n<\/p>\n
(10)  The properties attached to the temple of Kalika Mataji have been
\nshown in all Govt. records in the name of Mataji and not in the names of
\nthe respondents. Obviously this factor leads to the inference that the
\nimmovable properties standing in the name of Mataji were gifted or donated
\nto the deity.\n<\/p>\n
(11)  The evidence further discloses that the deity has three sources of
\nincome (a) Cash allowance from the State Treasury, (b) Offerings by the
\ndevotees and visitors and (c) Income from immovable properties given over
\nto and in the name of Mataji.\n<\/p>\n
In view of all these factors we have no doubt in our mind that temple of
\nKalika Mataji is ‘temple’ within the meaning of 5s2(17) of the Bombay
\nPublic Trusts Act, 1950 and is therefore, a public trust as defined in
\nSection 2(13) of the said Act. We record this conclusion on the strength of
\nthe fact that taking into account the nature of public user of the temple
\nand other attendant factors the members of the Hindu Community have been
\nusing it as of right. In a given case public user as of right may not
\namount to implied dedication. It depends upon the facts of each case. But
\nso far as the facts of the present case are concerned, no doubt it is left
\nin our mind that on an analysis of the evidence discussed by as above not
\nonly the user by the evidence discussed by us above not only the user by
\nmembers of the Hindu Community of the said temple has been as of right but
\nthat it amounts to implied dedication for the benefit of the Hindu
\nCommunity.\n<\/p>\n
The main question that needs decision is whether Kalika Mataji temple is a
\ntemple within the meaning of s.2(l7) and a Public Trust under s.2(l3) of
\nthe Act. Temple has been defined in s.2(17) of the Act, which reads thus :\n<\/p>\n
“”temple” means a place by whatever designation known and used as place of
\npublic religious worship and dedicated to or for the benefit of or used as
\nof right by the Hindu community or any section thereof as place of public
\nreligious worship.”\n<\/p>\n
and Public Trust has been defined in s.2(13) thereof which reads as under:\n<\/p>\n
“”Public trust” means an express or constructive trust for either a public
\nreligious or charitable purpose or both and includes a temple, a math, a
\nwakf, a dharmada or any other religious or charitable endowment and a
\nsociety formed either for a religious or charitable purpose or for both and
\nregistered under the Societies Registration Act, 1860.”\n<\/p>\n
A bare conjoint reading of the two definitions would show that the
\ndefinition of public trust is an inclusive one bringing within its ambit,
\nan express or constructive trust for which a public religious or charitable
\npurpose or for both which includes a temple, a math, a wakf, a charmada or
\nany other religious or charitable endowment and a society formed either for
\nreligious or charitable purpose or for both and a registered society under
\nsociety Registration Act. A public place by whatever designation is temple
\nwhen it is used as a place of public religious worship. It must be
\ndedicated to or for the benefit of or used as of right by the Hindu
\nCommunity or any section thereof, as a place of public religious worship.\n<\/p>\n
Black’s Law Dictionary 6th Edition, at page 1512 defines ‘Public Trust’ to
\nmean by one constituted for the benefit either of the public at large or of
\nsome considerable portion of it answering a particular description; public
\ntrusts and charitable trusts may be considered in general as synonymous
\nexpressions. At page 1510 ‘Charitable trust’ has been defined as ‘trusts
\ndesigned for the benefit of a class or the public generally. They are
\nessentially different from private trusts in that the beneficiaries are
\nuncertain. In general, such trust must be created for charitable,
\neducation-al, religious or scientific purposes’. In p. Ramanatha Aiyhar’s
\nThe Law Lexicon’ Reprint Edition 1987, at page 1298 ‘Public and Private
\nTrust’ has been defined as ‘in the case of a temple an idol publicly
\nconstituted and publicly accessible in which the appearance may be what one
\nmay describe a ambiguous, one would expect and ought to insist upon clear
\nevidence of permission given or license given and permission withheld
\nbecause it is equally true that a private individual may construct, out of
\nthis private purse, a private temple and idol retaining the control and
\nmanagement in his own hands and that of his family or some other selected
\nindividuals and yet so conduct himself as of provide conclusive evidence of
\ndedication by implication and by conduct. There is a broad difference when
\none comes to construe a dedication, between conduct which shows that the
\nowner of the property is giving individuals and conduct which shows that he
\nintends certain members of a class whom he desires to benefit to act
\nindiscriminately without permission that is to say, as of right. A useful
\ntest, for a judge to apply to see whether the evidence satisfies the
\nconditions of the private trust, is to ask himself whether any of the acts
\ntestified to by the witnesses could have been prevented or penalised by
\nproceedings for trespass. In private trust the beneficial interest is
\nvested absolutely in one or more individual who are, or within a given
\ntime, may be definitely ascertained. On the other hand public trust has for
\nits object the members of an uncertain and fluctuating body and the trust
\nitself is of a permanent and indefinite character and is not confined
\nwithin the limits prescribed to a settlement of a private trust.\n<\/p>\n
Deoki Nandan v. Murlidhar,<\/a> [1956] SCR 756, is a leading judgment of this
\ncourt by a Bench of four Judges. In that case the facts found were that one
\nsheo Ghulam, a pious childless Hindu, constructed Thakurdwara of Sri
\nRadhakrishnaji ii Balasia village of District Sitapur, He was in management
\nof the temple till his death. He executed a ‘Will’ bequeathing all his
\nproperties to the temple and made provisions for its proper manage-ment.
\nThe question arose whether the temple was dedicated to the public and
\nwhether the temple was a public or private temple. This court laid down
\nthat the issue whether the religious endowment is a public or a private is
\na mixed question of law and facts, the decision of which must be taken on
\nthe application of the legal concepts of public and private endowment to
\nthe facts found and it is open to consideration of this court. The
\ndistinction between a private or a public endowment is that whereas in the
\nformer the beneficiaries are specific individuals, in the letter they are
\nthe general public or a class thereof. An idol is a juristic person capable
\nof holding properties. The properties endowed for the temple yest in it,
\nbut the idol has no beneficial interest in the endowment. The true
\nbeneficiaries are its worshipers. On facts it was found that the temple was
\na public temple. In Tilkayat Shri Govindlalji Maharaj v. The State of
\nRajashihan & Ors., [1964] 1 SCR 561 the Constitution Bench of this court
\nheld, on construction of evidence, that Nathdwara temple of Udaipur is a
\npublic temple with the management of the trustee of the property belong-ing
\nto the temple vested in the trustee. In Narayan Bhagwantrao Gosavi
\nBalajiwala v, Gopal Vintryhak Gosavi & Ors,(i960] 1 SCR 773 a Bench of
\nthree Judges held that the long user by the, public as of right and grant
\nof land and cash by the Rulers, taken along with other relevant facts are
\nconsistent only with the public nature of the endowment. It was held that
\nSri Balaji Venkatesh at Nasik and its Sansthan constituted charitable and
\nreligious trusts within the meaning of the charitable and Religious Trusts
\nAct, 1920, In that contest this court also considered the question of
\nburden of proof and held it would mean one of two things, namely, (i) that
\na party has to prove an allegation before it is entitled to a judgment in
\nits favour; and (2) that the one of the other of the two contending parties
\nhad to introduce evidence on a contested issue, The question of onus is
\nmaterial only where the party on which it is place would eventually lose if
\nit failed to discharge the same. Where issues are, however, joined,
\nevidence is led and such evidence can be weighed in order to determine the
\nissues, the question of burden becomes academic.\n<\/p>\n
In Mahant Ram Saroop Dasji V. S.P. Satti, Special Officer-in-Charge of the
\nHindu Religious Trusts & Ors.,<\/a> (1959) Suppl, 2 SCR 583, another
\nConstitution Bench reiterated ‘the distinction between the public and
\nprivate trust. In the former the beneficial interest is vested in an
\nuncertain and fluctuating body of persons, either the public at large or
\nsome considerable portion of it, answering a particular description. In the
\nlatter, the beneficiaries are definite and ascertained individuals or who
\nwithin a time can be definitely ascertained. The fact that the uncertain
\nand fluctuating body of persons is a section of the public following a
\nparticular religious faith or is only a sect of persons of a certain
\nreligious persuasion would not make any difference in the matter and would
\nnot make the trust a private trust, It was held that Shri Thakur Laxmi
\nNarainji was a public trust within the meaning Of s.2(e) of the Bihar Hindu
\nReligious Trusts Act, 1950. In Goswami Shri Mahalaxmi Vahuji v. Ranchhoddas
\nKalidas & Ors.,<\/a> [1969] 2 SCC 853, relied on by the appellant, this court
\nconstruing whether a temple is a public trust or a private temple laid down
\nthe following tests :\n<\/p>\n
“(1) Is the temple built in such imposing manner that it may prima facie
\nappear to be a public temple?\n<\/p>\n
(2)  Are the members of the public entitled to worship in that temple as of
\nright?\n<\/p>\n
(3) Are the temple expenses met from the contributions made by the public?\n<\/p>\n
(4)  Whether the Sevas and Utsvas conducted in the temple are those usually
\nconducted in Public’ temples?\n<\/p>\n
(5)  Have the management as well as the devotees been treating that temple
\nas a public temple?\n<\/p>\n
On the facts of that case, it was held that Haveli at Nadiad was a public
\ntemple. In that context this court emphasized that the origin of the
\ntemple, the manner in which its affairs are managed, the nature and extent
\nof gifts received by it, rights exercised by the devotees in regard to
\nworship, the consciousness of the manager and the consciousness of the
\ndevotees them-selves as to the public character of the temple are relevant
\nfactors which would go to establish that the temple is whether a public or
\na private one. The true character of a particular temple is to be decided
\non the basis of diverse circumstances.\n<\/p>\n
In Goswami Shri Mahalaxami Vahuji v. Shah Ranchhoddas Kalidas<\/a> (dead) &
\nOrs., AIR (1970) SC 2025 while considering whether Shree Gokulnathji temple
\nat Nadiad was a public trust, this court had held that the temple belongs
\nto Vallabha sampradayees and the custom that the public are asked to enter
\nthe temple only after Goswami has finished worship in on circumstance to
\nshow that temple is private one. The power to manage temple includes the
\npower to maintain discipline within its precincts. It was held that Shree
\nGokulnathhji temple was a public trust. In State of Bihar & Ors. v. Smt
\nCharusila Dasi, AIR<\/a> (1959) SC 1002, another Constitution Bench found that
\nIshwar Shree Gopal was installed as a family deity by Smt. Charusila Dasi.
\nA trust deed was settled by her. Subsequent execution of the trust deed and
\nthe terms thereof were considered by this court and held to be a public
\nendowment. In Bihar State Board of Religious Trust v. Mahant Sri Biseshwar
\nDas, AIR<\/a> (1971) SC 2057, relied on by the appellant, while reiterating the
\ndistinction between public or private en-dowment, one of the tests laid was
\nthat user by public as of right would be a strong circumstance to give
\nstand to the inference that it was dedicated to the public and the public
\nusers were as of right. With regard to the management of the properties and
\nenjoyment thereof this court pointed out to find whether the property was
\ngiven to the Math or to the head of Math for personal benefit which has to:
\nbe decided either from the terms of the grant of from the circumstance of
\nthe case. On the terms of the deed of the gift it was held that the
\nproperties were stamped a trust properties for public purpose.\n<\/p>\n
In T.D. Gopalan v. Commissioner of Hindu Religious and Charitable
\nEndowments,<\/a>[ 1973] I SCR 584, relied on by the appellants, the facts were
\nthat the Mandapam was constructed On their own land. The Garbha Griha in
\nfront of the mandapam, stone idols called Dwarabalakas on either side and
\nimplements necessary for offering Puja in the mandapam existed. The
\nCommissioner declared it to be a public temple but in the suit the trial
\ncourt declared in to be a private temple. On appeal, the High Court
\nreversed the decree of the trial court and held that the temple was a
\npublic temple on the ground that members of the public had been worshiping
\nat the shrine without let or hindrance, and that the temple was being run
\nby contributions and by benefactions obtained from members of the public,
\nthis Court considered the nature of the temple, place of worship without
\nattaching importance of the origin of the temple, the management thereof by
\nthe members of the family and absence of any endowed property etc.,
\ndeclared it to be private temple and confirmed the decree of the trial
\ncourt; While considering those facts, this Court held that the origin of
\nthe temple, the manner in which its affairs were managed, the nature and
\nextent of the gifts received by it, the rights exercised by devotees in
\nregard to worship therein, the consciousness of the Manager or devotees
\nthemselves as to the public character of the temple are facts which go to
\nestablish whether a temple is public or private. The absence of
\nDwajasthamba or Nagara bell or Hundial in the temple were considered to be
\nfactors to declare the temple to be a private temple. In Dhaneshwarbuwa
\nGuru Purshottambuwa owner of Shri Vtthal Rukhamal Sansthan v. The Charity
\nCommissioner, [1976] 3 SCR 518, while reiterating the weft-settled
\ndistinction between private trust or public trust, this Court emphasised
\nthe deity installed in the temple was intended by the founder to be
\ncontinually worshiped by an indeterminate multitude of the Hindu public
\nwithout any hindrance or restriction in the matter of worship by the public
\nextending over a long period. Receipt of the Royal grant, gifts of the land
\nby members of the public, absence of any evidence in long history of the
\nSansthan to warrant that it had any appearance of, or that it was ever
\ntreated as, a private property were some of the features to lead to an
\ninescapable conclusion that Shri Vithal Rukhamai Sansthan was to be public
\ntrust within the meaning of $.2(13) of the Act.\n<\/p>\n
In T.V. Mahalinga Iyer v. State of Madras, AIR (1980) SC 2036, it was held
\nthat crucial question is as a whether the public worship in the temple as
\nof right. Ordinarily, there may not be direct evidence regarding the
\nexercise of such right by the general public and an inference has to be
\ndrawn from a wealth of circumstances. The dedication to the public need not
\nbe by a deed and may be spilt out of the circumstances present. The right
\nof the public to worship is also a matter of inference. The initial
\npresumption with regard to temples in South India is that they are the
\npublic temples, rebuttable by clinching testimony: The temple, in question,
\nin that case, was held to be a public temple.\n<\/p>\n
In Sri Radhakanta Deb v. Commissioner of Hindu Religious Endow-ments,<\/a>
\n[1981) 2 SCC 226, this Court was to consider whether Radhakanta Deb in
\nOrissa State is a public or private trust. This Court held that each case
\nhas to be decided with reference to the facts proved therein and it is
\ndifficult to lay down any test or tests which can be universal application.
\nWhere the origin of the endowment is lost in antiquity of shrouded in
\nmystery, there being no document or reliable entries to prove its origin,
\nthe task of the Court becomes difficult and it has to rely merely on the
\ncircumstantial evidence regarding the nature of the user of the temple. It
\nwas also further held that allowing the public to worship by itself would
\nnot make an endowment public unless it is proved that the members of the
\npublic had a right to worship in the temple: On the facts, in that case, it
\nwas held that the temple, in question was a public temple.\n<\/p>\n
In Hari Bhanu Maharaj of Baroda v. Charity Commissioner<\/a> [1986] 4 SCC 162,
\nthe triumph card of the appellant renders little assistance to them Laxman
\nMaharaj Math, build in 1835 A.D. was considered whether to be public or
\nprivate trust. In view of the size of the building, existence of Samadhi on
\nMandir in a small extent of land, location of the Mandir, using a portion
\nof it for residents were held to be important factors. In view of the
\nunimpeachable evidence of use of the Mandir for long period and the absence
\nof maths and tomb Under the Samadhi was considered to be a private temple.\n<\/p>\n
InJammi Raja Rao v. Sri Anjaneyaswami Temple Vahi & Ors.,<\/a> [1992] 3 SCC 14,
\nthe question whether Sri Anjaneyaswami temple at V.puram in Andhra Pradesh
\nis at private or a public temple. The appellant’s father claimed it to be
\nprivate temple and that he was an hereditary trustee. The trial court and
\nthe High Court held the temple to be a public temple, this Court dismissed
\nthe appeal confirming the decree of the High Court and civil court and held
\nthat the entities in the Inam Fair Register and the oral evidence establish
\nthe temple to be a public temple. Proof of user by the public without
\ninterference would be cogent that its dedication was in favour of the
\npublic. The finding that the temple is public temple is a finding of fact.
\nIt is not open to further scrutiny by this court unless it suffers from
\nerrors of law.\n<\/p>\n
In Kapoor Chand v. Ganesh Dutt,<\/a> [1993] Suppl. 4 SCC 432 this court held
\nthat dedication of private property for religious and charitable pur-pose
\nmay be proved by oral evidence or may be inferred from the conduct of the
\nparties, in a suit to set aside alienation of the temple property by its
\nmanager, this court held that the High Court committed error of law in not
\ndrawing proper inference from the proved evidence or admissions. An
\ninference of dedication of a property to the deity was drawn from the
\nConduct of the parties.\n<\/p>\n
From the aforesaid discussion the following principles of law would emerge.\n<\/p>\n
A place in order to be a temple, must be a place for public religious
\nworship used as such place and must be either dedicated to the Community at
\nlarge of any section thereof a place of public religious worship. The
\ndistinction between a private temple and public temple is now well settled.
\nIn the case of former the beneficiaries are specific individuals; in the
\nlatter they are indeterminate or fluctuating general-public or a class
\nthereof. Burden of proof would mean that a party has to prove an allegation
\nbefore he is entitled to a judgment in his favour. The one or the other of
\nthe contending parties has to introduce evidence on a contested issue. The
\nquestion of onus is material only where (he party on which it is placed
\nwould eventually lose if he failed to discharge the same. Where, however,
\nparties joined the issue, led evidence, such evidence can be weighed in
\norder to determine the issue. The question of burden becomes academic.\n<\/p>\n
An idol is a juristic person capable of holding property. The property
\nendowed to it vests in it but the idol has no beneficial interest in the
\nendowment. The beneficiaries ate the worshipers. Dedication may be made
\norally or can be inferred from the conduct or from a given set of facts and
\ncircumstances. There need not be a document to evidence dedication to the
\npublic. The consciousness of the manager of the temple or the devotees as
\nto the public character of the temple; gift of properties by the public or
\ngrant by the ruler or Govt; and long use by the public as of right to
\nworship in the temple are relevant facts drawing a presumption strongly in
\nfavour of the view that the temple is a public temple. The true character
\nof the temple may be decided by taking into consideration diverse
\ncircumstances. Though the management of a temple by the members of the
\nfamily for a long time, is a factor in favour of the view that the temple
\nis a private temple it’is not .conclusive. It requires to be considered in
\nthe light of other facts or circumstances. Internal management of the
\ntemple is a mode of orderly discipline or the devotees are allowed to enter
\ninto the temple to worship at particular time or after some duration or
\nafter the head man leaves, the temple are not conclusive. The nature of the
\ntemple and its location are also relevant facts. The right of the public to
\nworship in the temple is a matter of inference.\n<\/p>\n
Dedication to the public may be proved by evidence or circumstances
\nobtainable in given facts and circumstances. In given set of facts, it is
\nnot possible to prove actual dedication which may be inferred on the proved
\nfacts that place of public religious worship has been used as of right by
\nthe general public or a section thereof as such place without let or
\nhindrance. In a public debulter or endowment, the dedication is for the use
\nor benefit of the public, But in a private endowment when property is see
\napart: for the worship of the family idol, the public are not interested.
\nThe mere fact that the management has been in the hands of the members of
\nthe family itself is not a circumstance to conclude that the temple is
\nprivate trust.  In a given case management by the members of the family may
\ngive rise to ah inference that the temple is impressed with the character
\nof a private temple and assumes importance in the absence of an express
\ndedication through a document. As stated earlier, consciousness of the
\nmanager or the devotees in the user by the public must be as of right. If
\nthe general public have always made use of the temple for the public
\nworship and devotion in the same way as they do in other temples, it is a
\nstrong circumstance in favour of the conclusiveness of public temple. The
\norigin of the temple, when lost in antiquity, it is difficult to prove
\ndedication to public worship. It must be inferred only from the proved
\nfacts and cir-cumstances of a given case. No set of general principles
\ncould be laid.\n<\/p>\n
The contention of Sri Yogeshwar Prasad that the Asstt, Charity Commissioner
\nhas failed to prove that Kalika Mataji temple is a public trust; contrarily
\nthe evidence on records, namely the ‘Will’ of Bai Diwali, widow of N.
\nGirjashankar, establishes that the lemple and its properties Were always
\ntreated as private properties. It would get fortified and gets corroborated
\nby decrees in civil suit No. 439\/1985, one of the legatees sought to annual
\nthe Will in Exhibits 10, 59 and the decree in that behalf. The Civil Suits
\nNos. 353\/93, Ex. 24 and the Civil Suit No. 439 of 1885, Ex 26 and the Civil
\nSuit Nos. 904 of 1903 and 910 of 1903: Ex 52 and Ex. 54, Civil Suit No, 912
\nof 1903, Ex 55 would establish that the appellant’s family had always
\ntreated the temple and the lands attached to temple as private properties.
\nIt has also been further contended that the entry into the temple was
\nsubject to permission and the devotees were not allowed to have pooja, but
\nhave darshan Only. These circumstances have duly been taken into
\nconsideration by the District Judge while the High Court had not con-
\nsidered them in proper perspective. We find no force in the contention, It
\nis seen that the Gazette of the Bombay Presidency, Vol. Ill published in
\n1879 is admissible under s.35 read with s.81 of the Evidence Act, 1872. The
\nGazette is admissible being official record evidencing public affairs and
\nthe court may presume their contents as genuine. The statement contained
\ntherein can be taken into account to discover the historical material con-
\ntained therein and the facts stated therein is evidence under s.45 and the
\ncourt may inconjunction with other evidence and circumstance take into
\nconsideration in adjuding the dispute in question though may not be treated
\nas conclusive evidence. The recitals in the Gazette do establish that
\nKalika Mataji is onlhe lop of the hill. Mahakali temple and Bachra Mataji
\non the right and left to the Kalika Mataji. During Moughal rule another
\nSyed Sadar Peer was also installed there, but Kalika Mataji was the chief
\ntemple. Hollies and Bills are the main worshipers. Oh full Moon of Chaitra
\n(April) and Dussehra (in the month of October), large number of Hindus of
\nall classes gather there and worship Kalika Mataji, Mahakali, etc. After
\nthe downfall of Moughal empire, Marathas took over and His Highness
\nScindias attached great importance to the temple. One of the devotees in
\n1700 offered silver doors. The British annexed the territory pursuant to
\nthe treaty between Her Majesty’s Government of India and His Highness
\nScindia on the 12th December, I860, A condition was imposed in the treaty
\nfor continued payment of fixed cash grants to all the temples from the
\nTreasury and that British emperors accepted the condition. Regular cash
\ngrants of fixed sums were given to all the temples by Scindias and British
\nrulers, as evidence by exhibits 27, 29 and 30. The historical statement of
\nnoted historian, stated by the High Court, by name M.S. Commissionaria in
\nhis Vol. I of 1938 Edition corroborates the Gazette on the material
\nparticulars, which would established that the temple was constructed on the
\ntop of the hill around 14th century and the people congregate in thousands
\nand worship, as of right, to Kalika Mataji and other deities. R.N.
\nJogelkar’s Alienation manual brought up in 1921 in the Chapter 5 Devas-
\ntbana also corroborates the historical evidence. It is true that Bai Diwali
\nin her Will, Ex.22 treated the temple and the properties to be private
\nproperty and bequeathed to her brother and the litigation ensued in that
\nbehalf. At that time, as rightly pointed out by the High Court, the concept
\nof public trust and public temple was not very much in vogue. Therefore,
\nthe treatment meted out to these properties at that time is not conclusive.
\nOn the other hand the fixed cash grants given by a Rulers Scindias and the
\nsuccessor British emperors, the large endowment of lands given to Kalika
\nMataji temple by the devotees do indicate that the temple was treated as
\npublic temple. The appropriation of the income and the inter se disputes in
\nthat behalf are self serving evidence without any probative value. Admit-
\ntedly, at no point of time, the character of the temple was an issue in any
\ncivil proceedings. All the lands gifted to the deity stand in the name of
\nthe deities, in particular large extent of agricultural lands belong to
\nKalika Mataji. The entries in Revenue records corroborated it. The Gazette
\nand the historical evidence of the temple would show that the village is
\nthe pilgrimage centre. Situation of the temples on the top of the hill away
\nfrom the village and worshiped by the people of Hindus Community at large
\ncongregated in thousand without any let or hindrance and as of right;
\ndevotees giving their offerings in large sums in discharge of their vows,
\ndo establish that it is a public temple. It is true that there is ho proof
\nof dedication to the public. It is seen that it was lost in antiquity and
\nno documentary evidence in that behalf is available. Therefore, from the
\ntreatment meted out to the temple and aforesaid evidence in our con-sidered
\nview an irresistible inference would be drawn that the temple was dedicated
\nto the Hindu public or a section thereof and the public treat the temple as
\npublic temple and worship thereat as of right. It is true that there is
\nevidence on record to show that there was a board with inscription thereon
\nthat “no entry without permission” and that only Darshan was being had and
\ninside pooja was no permitted. But that is only internal regulation
\narranged for the orderly Darshan and that is not a circumstance to go
\nagainst the conclusion that it is a public temple. Enjoyment of the proper-
\nties and non- interference by the public in the management are not
\nsufficient to conclude mat the temple is a private temple. It is found by
\nthe District Court and the High Court that the appellants are hereditary
\npriests and when the public found that they are in the management of the
\nproperties, they obviously felt it not expedient to interfere with the
\nmanagement of the temples. It is seen that the High Court considered the
\nevidence placed on record and has drawn the necessary conclusions and
\ninferences from the proved facts that kalika Mataji temple is a public
\ntemple. It is a finding of fact. As regard the oral evidence the High Court
\nrightly appreciated the evidence and it being a question of fact, we find
\nno error in the assessment of the evidence by the High Court.\n<\/p>\n
Thus, we are of th considered view that Kalika Mataji temple is a public
\ntrust within the meaning of s.2(13); and public temple under s.2(17) of the
\nAct and the High Court rightly relegated the enquiry in respect of other
\ntemple and-we feel it not expedient to record any finding in that behalf.
\nThe appeal is accordingly dismissed with costs quantified at Rs. 20,000.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Bala Shankar Mama Shankar … vs Charity Commissioner, Gujarat … on 17 August, 1994 Bench: J.S. Verma, K. Kamaswamy CASE NO.: Appeal (civil) 175 of 1973 PETITIONER: BALA SHANKAR MAMA SHANKAR BHATTJEE AND ORS. RESPONDENT: CHARITY COMMISSIONER, GUJARAT STATE DATE OF JUDGMENT: 17\/08\/1994 BENCH: J.S. VERMA & K. KAMASWAMY JUDGMENT: JUDGMENT […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-216233","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nBala Shankar Mama Shankar ... vs Charity Commissioner, Gujarat ... on 17 August, 1994 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/bala-shankar-mama-shankar-vs-charity-commissioner-gujarat-on-17-august-1994\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Bala Shankar Mama Shankar ... vs Charity Commissioner, Gujarat ... on 17 August, 1994 - 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