Full Judgment Text
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CASE NO.:
Appeal (civil) 175 of 1997
PETITIONER:
Nallor Marthandam Vellalar & Ors.
RESPONDENT:
Vs.
The Commissioner, Hindu Religions and Charitable Endowments and Ors.
DATE OF JUDGMENT: 30/07/2003
BENCH:
SHIVARAJ V. PATIL & D.M.DHARMADHIKARI.
JUDGMENT:
J U D G M E N T
SHIVARAJ V. PATIL J.
The appellants filed suit for declaration that the
suit temple is a denominational temple and that the
defendants 1 and 2 have no jurisdiction to appoint the
third defendant as fit person. The trial court decreed
the suit. The first appellate court reversed the
judgment and decree passed by the trial court and
dismissed the suit. The High court in second appeal
upheld the judgment and decree passed by the first
appellate court.
The High Court in the impugned judgment has
narrated the facts in sufficient details based on the
pleadings of the parties and the material that was
placed on record. It is not necessary to state them
again. However, to the extent they are relevant and
necessary in the light of the contentions advanced on
behalf of the parties, we notice them hereunder.
The case of the plaintiff before the trial court
was that the first plaintiff is a denominational temple
entitled to exemption as provided under Article 26 of
the Constitution of India and Section 107 of the Tamil
Nadu Hindu Religious and charitable Endowments Act,
1959 (for short ‘the Act’); the temple is in Nalloor
village and is known as Sree Uchini Makali Amman
Temple, built on an extent of 17 cents in S.No. 1593
and that the entire extent is owned by the Vellala
Community of Marthandam. The Vellalas residing in
Marthandam are a collection of individuals professing
Hindu faith; the ancestors of the members of the
community constituting corporate body founded the
temple in the land purchased by the members of Vellala
Community. The plaintiff further claimed that the
members of Vellala Community observed special religious
practices and beliefs which are integral part of their
religion and that the front mandappam of the Sanctorium
is open to access only to members of their community
and none-else. Outsiders can offer worship from the
outer compound.
The first defendant filed written statement
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contending that the first plaintiff-temple is a public
religious institution under the control of HR&CE
Department; it was brought under the control of the
Department in the year 1965; the origin of the temple
or the name of its founder is not known; the properties
owned by the temple stand in its name; an extent in
S.No. 1593 has been leased out for a cinema theatre and
the rent due forms the main source of income for the
temple; the public also contribute in the hundiyal kept
in the temple; the temple is not a denominational as
claimed by the plaintiffs. It is the further case of
the first defendant that the Department has been
appointing non-hereditary trustees for the temple and
the management vests with the trustees so appointed
from time to time by the Department. In the year 1965
when the temple was brought under its control, the
Department called for objections for appointment of
non-hereditary trustees and there was no objection to
the proposal and regular applications were invited for
appointment of non-hereditary trustees. Five persons
including Padmanabha Pillai and Subramania Pillai
(plaintiffs 2 and 3) volunteered for the appointment;
the Area Committee by its resolution dated 31.1.1966
appointed those persons as non-hereditary trustees;
further in a special meeting convened by the Inspector
of the Department, one Manickavasakam Pillai was
elected as Chairman of the Board of trustees and the
said resolution was approved by the Assistant
Commissioner (defendant no. 2) by his order dated
7.3.66. After the expiry of the tenure of office of
those persons, fresh notices were issued calling for
applications from desiring persons to be appointed as
non-hereditary trustees to fill up vacancies in the
Board. Plaintiffs 2 to 5 were estopped by their
conduct from contending that the suit temple is a
denominational one and that the plaintiffs have no
inherent right to be in management of the said temple.
The trial court on the basis of the pleadings of
the parties and the evidence let in, in support of
their respective claims held that the suit temple is a
denominational temple entitled to protection as claimed
and it is not a public religious institution; at the
same time, it was held that Department is entitled to
exercise such powers which are conferred on them by law
in regard to the administration of the institution and
that the authorities had no power to appoint fit person
so as to interfere with the administration of the
temple by Vellala Community. The Subordinate Judge in
the first appeal held that the members of Vellala
Community do not form a religious denomination, but
they are merely a sub-caste of the Hindu religion;
their practices and observance do not lead to the
conclusion that they have common faith or they profess
certain religious tenet having common faith. He also
took the view that several features relied upon by the
plaintiffs were not sufficient to identify the
institution as a denominational one. In doing so, the
first appellate court relied upon the principles laid
down in the decisions reported in S.P.Mittal vs. Union
of India and Ors. [AIR 1983 SC 1] and The Commissioner,
Hindu Religious Endowments, Madras, vs. Sri Lakshmindra
Thirtha Swamiar of Sri Shirur Matt [AIR 1954 SC 282].
In the second appeal, the learned Judge of the High
Court by a well-considered order which is impugned in
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this appeal concurred with the views expressed by the
first appellate court. The learned Judge on a clear
analysis of the legal position expressed and explained
in various decisions, touching the question in
controversy and applying them to the facts of the
present case in the light of the rival claims, upheld
the judgment and decree passed by the first appellate
court.
Learned counsel for the appellants contended that-
(1) Under Section 1(3) of the Act, the institution
concerned should be public religious institution;
the religious institution is defined in Section
6(18) and temple is defined in Section 6(20) which
includes a sectarian temple; a sectarian temple
could be a public or private; the Act gets
attracted only to sectarian temples which are
public and not which are private.
(2) The suit temple belongs to Vellala Community and
there is one single deity, namely, the Uchini
Makali Amman and that their own distinct customs
and beliefs constitute a "religious
denomination" and as such their fundamental right
under Article 26 of the Constitution and their
right under Section 107 of the Act, cannot be
transgressed by the authorities under the Act. In
support of this submission, he placed reliance on
the decisions of this Court in Gurpur Gunni
Venkataraya Narashima Prabhu and Ors. vs. B.C.
Achia, Asstt. Commissioner, Hindu Religious and
Charitable Endowment, Mangalore and Anr. [AIR 1977
SC 1192] and K.Eranna and Ors. vs. Commissioner
for Hindu Religious and Charitable Endowments,
Bangalore & Ors. [AIR 1970 Mysore 191].
(3) The High Court committed an error in holding that
the members of Vellala Community have no distinct
name and common faith.
(4) Plaintiffs moved the court in 1976 as soon as a
non- Vellala Community man was sought to be made a
trustee; the conduct of plaintiffs between 1965 to
1976 cannot result in a waiver of fundamental
rights.
In opposition, the learned counsel for the
respondents made submissions supporting the impugned
judgment reiterating the submissions that were made
before the High court. He further contended that the
first appellate court on a re-appreciation of entire
evidence on record has recorded a finding of fact
against the plaintiffs as to nature of temple supported
by good reasons; the High Court rightly found that the
judgment and decree of the first appellate court did
not call for any interference. Under the circumstances,
according to him, the impugned judgment deserved to be
maintained.
It is settled position in law, having regard to
the various decisions of this Court that the words
"religious denomination" take their colour from the
word ‘religion’. The expression "religious
denomination" must satisfy three requirements â\200\223 (1) it
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must be collection of individuals who have a system of
belief or doctrine which they regard as conducive to
their spiritual well-being, i.e., a common faith; (2) a
common organisation; and (3) designation of a
distinctive name. It necessarily follows that the
common faith of the community should be based on
religion and in that they should have common religious
tenets and the basic cord which connects them, should
be religion and not merely considerations of caste or
community or societal status. On the basis of the
evidence placed on record, the first appellate court as
well as the High Court found that Vellala Community is
not shown to be a distinct religious denomination,
group or sect so as to be covered by Article 26 of the
Constitution. Further, it was necessary for the
plaintiffs to establish their claim in respect of the
temple that the said denomination group has established
and is maintaining and administering the suit temple to
take the protection of Article 26 of the Constitution
and Section 107 of the Act. High Court found, after
meticulous and careful consideration of material that
there was no evidence to prove that the members of the
Vellala Community have been shown to have any common
religious tenets peculiar to themselves other than
those who are common to the entire Hindu community.
The High Court in the impugned judgment has observed
that the materials placed by the appellants at best may
go to show that during certain period members of their
community were playing a major role in the
administration of temple. The learned Judge of the
High Court also found that the material on record was
not sufficient to hold that the members of Vellala
Community established the temple in question, nor was
there proof of initial establishment of the temple by
them. The first appellate court held that the
materials on record were not sufficient in law to show
that Vellala Community initially established the
temple. Thus, the first appellate court on facts
recorded finding against the plaintiffs which findings
were affirmed by the High Court and rightly so in our
opinion. Here itself, we may notice one more ancillary
submission of the learned counsel for the appellants
that there is no presumption as regards the temples in
Marthandam that they are public trusts and they must be
established so, on evidence. This submission was made
taking support from two decisions (1) Mundacheri Koman
vs. Thachangat Puthan Vittil Achuthan Nair and Others
[A.I.R. 1934 PC 230] and (2) The Commissioner, Hindu
Religious and Charitable Endowment (Administration
Deptt.), Madras vs. P.Vellappan Nair [2001 (3) L.W.
327]. The finding of fact in the case on hand is not
recorded merely by raising a presumption. On the other
hand, finding of fact is recorded on the basis of
evidence available on record. Hence, these two
decisions do not advance the case of the appellants.
In the light of finding of fact recorded by the
first appellate court as affirmed by the High Court,
the argument sought to be made that the Act gets
attracted only to sectarian temples which are public
and not to sectarian temples which are private in view
of Sections 1(3), 6(18) and 6(20), do not help the
appellants when there is a finding that it is not a
private temple. Added to this, the temple was taken
under the control of the Department in the year 1965.
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That was not challenged by the appellants; Department
called for objections for appointment of non-hereditary
trustees not restricting to members of Vellala
Community only; then also no objections were filed;
thereafter regular applications were invited for
appointment of non-hereditary trustees not from the
members of Vellala Community only; five persons
including appellants 2 and 3 who volunteered for
appointment as non-hereditary trustees were appointed
by the resolution dated 31.1.1966; further in a special
meeting conveyed by Inspector of the Department, one
Manickavasakam Pillai was elected as Chairman of the
Board and the said election was approved by the
Assistant Commissioner of the Department on 7.3.1966;
on the expiry of the tenure of office of trustees,
fresh notices were issued calling for applications from
desiring persons to be appointed as non-hereditary
trustees to fill up four vacancies in the Board. We
specifically asked learned counsel for the appellants
whether in the notices issued inviting applications for
appointment as non-hereditary trustees, any restriction
was made confining applications to the members of the
Vellala Community only. The learned counsel fairly
stated that in the notices, no such restriction was
made. Again in 1972, as noticed in the impugned order,
5th appellant was appointed as trustee. The
appellants 2, 3 and 5 were appointed by the Board and
they were not chosen representatives of the community.
Under the circumstances, the claim of the appellants
was rightly negatived looking to their conduct. Hence,
it follows that the appellants were estopped by their
conduct from contending that the suit temple is a
denominational one and that the plaintiffs have any
inherent right to be in management of the said temple.
As such they were not entitled to claim any protection
under Article 26 of the Constitution or under Section
107 of the Act.
The decision in Gurpur Gunni Venkataraya Narashima
Prabhu and Ors. (supra) in our view does not support
the case of the appellants. That decision was rendered
on the facts of that case as observed in the impugned
judgment. In that case, it was found on evidence that
the temple was founded by 37 Goud Saraswat Brahmin
families of Gurpur that the trustees managing the
temple belonged always to the said Community, the
landed properties owned by the temple had all been
endowed by members of the said community; there was no
reliable evidence of endowment of any immovable
property by any person outside the Community. Further
in that case, the Subordinate Judge found that the
defendants’ witnesses on whom the defendants relied to
prove that the temple was dedicated to the general
Hindu community did not claim right of worship in the
temple. But in the present case with which we are
concerned, facts are different and findings of the fact
recorded go against the appellants.
The learned Judge in the impugned judgment
referred to the case of K.Eranna and Ors. (supra) and
held that the observations made in that decision are
too wide and cannot be said to be in conformity with
the catena of decisions of this Court as well as the
High Court of Madras which are referred to in the
impugned judgment itself.
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Thus, viewed from any angle, we do not find any
merit in this appeal. Consequently, it is dismissed.
No costs.