PETITIONER:
HINDU PUBLIC & ANOTHER ETC.
Vs.
RESPONDENT:
RAJDHANI PUJA SAMITHEE & OTHERS ETC.
DATE OF JUDGMENT: 16/02/1999
BENCH:
M. JAGANNADHA RAO, & M.B. SHAH.
JUDGMENT
M.JAGANNADHA RAO,J.
These three Civil appeals arise out of the
same judgment of the High Court and can be disposed
of together. Civil Appeal No.2546 of 1992 has been
filed by the ‘Hindu Public’ through their
representative Sri K.C.Malla, Advocate
Bhubaneshwar, Orissa. The said Advocate also
figures as the 2nd appellant. Civil Appeals
Nos.2547-48 of 1992 have been filed by Rajdhani
Puja Samithee(hereinafter called the ‘Society’), on
behalf of itself and also representing appellants
nos. 2 to 4, the Deities Sri Bhubaneswar, Sri
Bhubaneswari and Sri Hanuman.
The following are the facts:
In 1949, a group of persons started Durga
Puja, Laxmi and Kali Puja and related festivals in
Bhubaneshwar near the Raj Mahal Chhat. Later, at
any rate from 1955, these religious festivals and
pujas were shifted to an open place belonging to
Government, opposite to the Market building. In
that year, an informal Committee came into being.
Donations were being received for the aforesaid
purposes from public as is clear from Exhibit F.
With a view to have a permanent place for these
pujas, a group of persons from among the organisers
of these festivals and pujas, formed into the Durga
Puja Samithee and registered it as a Society on
21.1.1960 under the Societies Registration Act,
1860 (Act 21 of 1860) with a Memorandum of
Association which included cultural and other
activities also besides religious activities. The
Society then applied to the Government of Orissa
for grant of land for conducting these pujas and
religious festivals. Government of Orissa granted
a lease on 17.9.1960 at Rs.1 as rent. Initially
the lease was for 30 years but it was later
extended for over a period of 90 years. In 1977, a
part of the land was acquired for road widening but
another piece of equal area was granted under a
deed Exhibit 5 dated 8.11.1977. In 1965,
construction of the Durga Mandap took place on the
leasehold property. During 1969-1970, shop rooms
were constructed and in the same year temples for
Hanuman, Radha Krishan, Durga etc. were
constructed. During this period, an appeal (Ext.F)
was issued to the public to contribute generously
for the deities and the temples. That appeal
refers to the religious activities right from 1949.
According to the appellants, this Appeal to the
public clinchingly proves that the entire leasehold
land was intended to be and was used as a religious
endowment. In 1973, it is said that a Puja Mandap
was constructed. On 28.5.1974 as per Ex.A, printed
annual report for the years 1973 and 1974 was
approved at the General Body Meeting. The members
of the Society were then 67. According to the
‘Hindu Public’, this Report also confirmed the
public nature of the temples and other
constructions on the leased land.
At that stage disputes arose between the
members of the Society. The Assistant
Commissioner, Hindu Religious Endowments, issued
notice on 27.1.1978 to the Society, to produce
records in connection with the temple. On
4.5.1978, the Vice President of the Society was
asked to appear before the authority with records
failing which non hereditary trustees under section
27 of the Orissa Hindu Religious Endowments Act,
1951 (hereinafter called the ‘Act’) would be
appointed. On 27.5.78, the Society informed him
that there was no deity, either Radha Krishan or
Durga installed in the premises. On 2.6.78,
Deities of Sri Bhubaneswar and Bhubaneswari were
installed in the constructed temples 1 and 2. On
2.8.1978, the Assistant Commissioner issued notice
(Ext.25) directing the Endowments Inspector to
inspect the premises and submit a report.
At that stage, on 30.9.78, the Governing Body
is said to have amended the byelaws (as per Ex.2A)
with the object of preventing the Endowment
Department from interfering with the Society. On
29.10.78, the Society’s Secretary wrote a letter to
the Commissioner, HRE denying that the institution
was a religious institution.
The Assistant Commissioner passed an order on
12.1.1979 appointing non-hereditary trustees under
section 27 of the Act. The Society then filed O.A.
No.49/79 under section 41 for stay of the order of
the order passed under section 27. Thereafter
there were various orders passed by the Department
and ultimately Writ petition No.774 of 1979 was
filed by the Society on 8.9.80. That writ petition
was disposed of by staying the order under section
27 and directing disposal of Society’s application
under section 41.
Thereafter, the Assistant Commissioner passed
an elaborate order on 6.3.1981 declaring the
temples in which the deities were installed, as a
public temple. The Society was declared as the
hereditary trustee. But so far as the remaining
part of the leasehold land and the buildings
thereon were concerned, it was held that they were
not part of the endowment. There were two appeals
FA No.17/84 and FA 20 of 1984 to the Deputy
Commissioner, one by the Hindu Public and the other
by the Society. The Deputy Commissioner, by order
dated 30.12.1989, allowed the appeal of the Hindu
Public and held that the temples as well as the
remaining land and buildings were part of the
endowment. The FA 17/84 was allowed and FA 20/84
was dismissed.
Against the said order of the Deputy
Comissioner the Society filed two appeals namely
Misc. Appeals 88 and 89 of 1990. The High Court
allowed the appeals in part and in effect, restored
the orders of the Assistant Commissioner stating
that:
"(i) places where deities Sri Bhubaneswar, Sri
Bhubaneswari and Hanuman are installed and puja
Mandap are religious institutions being temples;
(ii) other parts of leasehold areas are not
parts of the temple and are also not proved to be
religious endowments;
(iii) Major portion of the income including
monthly rent of the shop rooms is religious
endowment though there is no immovable property of
the religious institution;
(iv) What portion of the income and funds of
the Samity are religious endowments would be
examined afresh by the Assistant Commissioner; and
(v) the Samity is not wholly secular in
character being partly of religious character."
On these findings, the High Court remanded the
application under section 41 for the limited
purpose of determining the portion of the funds of
the Samithee which should go to the religious
endowment.
It is against the above orders of the High
Court that the ‘Hindu Public’ has filed Civil
Appeal No.2546 of 1992 while the Society has filed
Civil Appeals Nos. 2547-48 of 1992.
Learned counsel for the appellants in Civil
Appeal No.2546 of 1992 Sri JanaRanjan Das contended
that the entire leasehold property including the
Mandap, Library, shop rooms etc. constituted
endowment property and that the High Court was
wrong in confining the endowment to the temples
alone. The Society was not secular in character as
contended by the Society.
On the other hand, the learned counsel for the
Society, Sri Vinoo Bhagat contended that the
Society was secular in character, that the temples
were private temples meant for the members of the
Society, that the rest of the leasehold was, in any
event, not endowment property, that, in fact, the
registration of the Society under the Societies
Registration Act, 1860 could not be for religious
purposes. It was also contended that if a temple
is constructed on lease hold land, because of the
right of resumption at the end of the term, such a
temple cannot be a public temple.
On the above contentions, the following four
points arise for consideration:
(1) Whether a Society can be registered under
the Societies Registration Act (Act 21 of 1860) for
religious purposes treating such purposes as part
of ‘Charitable purposes’ as mentioned in the
preamble and sections 1 and 20 of the abovesaid
Act?
(2) Whether the puja and religious festivals
were being carried on in this very premises since
1949 and if so, whether the inclusion of certain
social and cultural purposes in the aims and
objects of the Society at the time of its
subsequent registration in 1960,- alongwith the
religious activities - was intended to transform
the nature of the trust from religious into one of
a secular character?
(3) Whether a temple located on lease-hold
land could not be a public temple?
(4) Whether the High Court was right in
setting aside the order of the Deputy Commissioner
in part and restricting the public trust only to
the temples and not to the library, mandap, pandal,
shops and other constructions and in virtually
restoring the order of the Assistant Commissioner?
Point 1:
Learned counsel for the Society contended in
the Society’s Appeals that no Society could be
registered under the Societies Registration Act,
1860 for ‘religious purposes’ either in whole or in
part, inasmuch as the said purposes would not be
‘charitable purposes’ falling within the preamble
to the Societies Registration Act, 1860 (Act 21 of
1860) and sections 1 and 20 of the said Act.
The Preamble to the above Act reads as
follows:
"Whereas it is expedient that provision should
be made for improving the legal condition of
societies established for the promotion of
literature, science, or the fine arts, or for the
diffusion of useful knowledge, the diffusion of
political education, or for charitable purposes, it
is enacted as follows- -"
Again, Section 1 of the Act 21/1860 reads as
follows:
"S.1--Societies formed by memorandum of
association and registration-- Any seven or more
persons associated for any literary, scientific, or
charitable purpose, or for any such purpose as is
described in section 20 of this Act, may, by
subscribing their names to a memorandum of
association, and filing the same with the Registrar
of Joint-stock Companies, form themselves into a
society under this Act."
Section 20 of the said Act reads as follows:
"S.20-To what societies Act applies--The
following societies may be registered
under this Act:--
Charitable societies, the military orphan
funds or societies established at the several
presdencies of India, societies established for the
promotion of science, literature, or the find arts
for instruction, the diffusion of useful knowledge,
the diffusion of political education, the
foundation or maintenance of libraries or
reading-rooms for general use among the members or
open to the public or public museums and galleries
of paintings and other works of art, collections of
natural history, mechanical and philosphical
inventions, instruments, or designs."
According to the learned counsel for the
Society, the words ‘charitable purposes’ used in
the Preamble and sections 1 and 20 of Act 21/1860
do not include ‘religious purposes’.
In our opinion, this contention is not well
founded. More than ninety years ago, such a
contention raised under Act 21 of 1860 was
negatived by the Allahabad High Court in Anjuman
Islamia of Muttra vs. Nasiruddin [(1906) ILR 28
All. 384]. It was contended in that case that the
registration of a society called ‘Anjuman Islamia’
under Act 21 of 1860 was not permissible as the
society was formed for ‘religious purposes only’
and not for charitable purposes. The Allahabad
High Court rejected the said contention and held
that a society for religious purposes would
ordinarily be a society for charitable purposes. A
similar question arose before the Madras High Court
in Khaji Muhammed Hussain Sahib vs. Masjiday
Mehmood Jamait Managing committee, Puddupet [AIR
1940 Madras 167]. A Division Bench consisting of
Wadsworth and Venkataramana Rao, JJ. held that the
Act 21/1860 was passed in 1860 when, according to
English law, a gift for the advancement of religion
or promotion of religious worship was treated as a
charitable purpose and, therefore, a society formed
for such a purpose would be a charitable society
under Act 21/1860. The only condition was that it
should be for the benefit of the public. No doubt,
in some statutes enacted subsequent to Act 21 of
1860, the legislature used the words ‘charitable’
and ‘religious’ but the definition of these words
was expressly stated to be for the purposes of
those Acts. The subsequent legislation, the Madras
High Court held, would not be helpful in
interpreting the words ‘charitable’ in Act 21 of
1860. The real question was: "What did the term
mean in 1860"? We are in agreement with the view
of the Allahabad and Madras High Courts. In fact,
Lord McNaughten in his celebrated judgment in
Commissioner of Income Tax vs. Pemsel [1891 AC 531
(581)] said that charitable purposes which came
within the language and spirit of the statute of
Elizabeth (43 Eliz ch 4) could be grouped into four
heads (i) relief of poverty, (ii) education, (iii)
advancement of religion and (iv) other purposes
beneficial to the community not coming under any of
the preceding heads. The words in Act 21/1860 are,
therefore, to be understood as including religious
purposes also. Point No.1 is held against the
society.
Points 2 & 3:
In the present case, the facts as found by the
Deputy Commissioner and as may be gathered from the
record are that there were religious activities
relating to Durga Puja etc. and festivals right
from 1949. Initially they were being conducted by
the members of the public of Bhubaneswar at Raj
Mahal Chhat. Later on, at any rate from the year
1955, a committee was formed and these Pujas and
festivals were being performed on government land
lying opposite to the Market building. Donations
were being collected from the public, as is clear
from Ext. F, for the purpose of the said pujas
right from 1949. Thereafter, in 1959 a public
meeting was held and it was decided that the
Government of Orissa should be approached for
assignment of the very land in which these
functions and festivals were being conducted. For
that purpose, it was decided to register a Society.
Accordingly the Society in question was registered
on 21.1.1960 and the Government was moved for lease
of this very land for religious purposes. A lease
was granted on 17.9.1960 for 30 years (later
amended as for 90 years). A part of the land was
acquired for a road and an equal extent was granted
by deed dated 8.11.1977. Thereafter these
functions were regularly going on year after year
in the leasehold land. Subsequently donations were
received. In 1965, the Durga Mandap was
constructed. During 1969-70 shop rooms were
constructed. In 1971, the Hanuman temple was
constructed. Later temples of RadhaKrishan, Durga
etc. were constructed. Then in 1973, Puja Mandap
was constructed. The evidence on record is that
they were constructed from public donations and
subscriptions. No evidence was adduced that the
members alone personally contributed.
Even so, learned counsel for the Society
submitted that the temples were not public temples
inasmuch as there was no restriction that only
Hindus would be eligible to become members of the
Society. Further, it was contended that the aims
and objects of the Society were both secular and
religious in character. The aims and objects of
the Society read as follows:
"(a) The Samittee shall, as far as
practicable, provide common place for meeting of
the members of the Samittee, for purposes of
recreation, discussion of literary, cultural and
common problems, encouragement of thrift,
advancement of social welfare ideas and protection
of the interests of its members.
(b) celebrate social festivals like Durga Puja
etc., advance other objects, provide facilities
like Mandap, Temple, Parks, Educational, Mental and
Physical Institutions, Library, Charitable
dispensary, rest rooms and comercial centres for
the interest of the members"
Learned counsel for the Society contended that
even though para (b) of the aims and objects
referred to Durga Puja etc., still para (a) dealt
with several secular activities and further, the
concluding words in para (b), namely, ‘for the
interest of the members’ meant that the Durga Puja
etc. were restricted to members only.
In our view, the fact that the membership of
the Society was not restricted to any particular
religious community makes no difference.
Membership is one thing and nature of the property
which the Society manages is another thing. In
fact, as pointed out by the Deputy Commissioner,
members professing Islam and Christianity were
never inducted from 1960 to 1980. It was only in
1980, long after the disputes started and notices
were issued by the Department, that a few members
were inducted from other communities. Even those
professing Islam were not allowed into the temple
part of the endowment. It is true that the last
part of clause (b) of the aims and objects uses the
words ‘and commercial centres for the use of the
members’. It is not clear whether the words ‘for
the use of members’ qualifies only the words
‘commercial centres’. In fact, we cannot think of
a charitable dispensary confined only to members of
the Society. In the light of the above material,
it cannot be said that the Durga puja etc. were
pujas intended only for members.
We shall approach the question from another
angle. It has been found that right from 1949,
these festivals were being conducted by the Hindu
Community and at any rate from 1955 at this very
place. Public donations and subscriptions were
being collected. Then lease for this land was
applied. Lease was granted. If that be so, can
some of the members of the public registering a
Society claim that the festivals were for members
of the Society only or that the society wanted to
use the land mainly for secular purposes and
incidentally for these pujas and festivals, merely
by addition of para (a) in the aims and objects, in
addition to these pujas in para (b).
It is in the evidence of witnesses examined on
behalf of the ‘Hindu Public’ before the Assistant
Commissioner that para (a) of the aims and objects
was introduced alongwith para (b) so as to ensure
that the request for grant of lease of this very
land was not rejected by Government on the ground
that land could not be leased exclusively for
religious purposes. On this aspect, the Assistant
Commissioner rejected the oral evidence as
inadmissible as it contradicts the recitals in the
deed of registration of the Society in view of
sections 91 and 92 of the Evidence Act. In our
view, this is not correct in law. Oral evidence
could be adduced to show that the recitals in a
deed were nominal or were not intended to be acted
upon or that they were not meant to alter the
existing state of affairs. Oral evidence could
therefore be issued to show that the Society’s main
concern was the celebration of the Durga puja
festivals etc. and that other activities were
subsidiary. Therefore, the Deputy Commissioner was
right in relying on this part of the oral evidence.
Eleven years after the Society was formed, the
appeal Ex.F was issued for donations. It reveals
that the main purpose of the Society was the
construction of temples and celebration of these
festivals. It states:
"Although for last so many days, Sri Sri Sri
Durga Puja is being performed here, yet no special
effort has been made for construction of a
permanent mandap and temples for other gods and
Goddesses. Although major population in the
capital is Hindu, yet it is regrettable that a
permanent mandap and temples of other Gods and
Goddesses have not yet been established here. On
the other hand, minority communities like Muslims,
christians and Sikhs have already constructed
beautiful permanent Mosque, Church and Gurudwara.
But it has not yet been possible for we Hindus. It
is most regrettable."
In addition, we have the Report of the General
Secretary of the year 1973 which refers to various
activities of the Society. Except the religious
activities, there is no reference to any other
activities. The report refers to puja expenditure,
construction of temples for Goddesses, for Mahadev
Temple, construction of Mandap, Kitchen, Court yard
and guest house etc. It states that almost all
religious functions like Durga puja, Kali Puja,
Laxmi Puja, Kartikeswar Puja, Rama Navami,
Astaprahari, Ganesh Puja, Dolo and Jhulana Jatra
were being performed. There is also evidence of
collection of subscription through a receipt book
from members of the public for the aforesaid
religious purposes and festivals of the Hindu
community.
As pointed by the Deputy Commissioner, though
the Hanuman temple was installed in 1971 and public
functions were being performed throughout, a board
was put up for the first time in 1976 by a
resolution dated 26.9.76, that the temple was meant
‘for members only’. This was done after dispute
stated among the members. It is, however, in the
evidence of one of the witnesses who was a Muslim
(Ext.A.P.W.5) and was engaged for some decoration
that after the decoration, he as well as other non-
Hindus, were not allowed to enter the premises of
the deity. The Deputy Commissioner held:
"This explodes the theory propounded by the
petitioners that functions like Durga Puja, Kali
Puja, and Laxmi Puja etc. are secular and social
functions."
So far as the resolutions allowing certain
other communities to use the mandap or other
buildings for performance of their functions, the
Deputy Commissioner held that from the evidence, it
was clear that the documents evidencing the said
resolutions were subsequently fabricated and were
antedated. He further pointed out that for the
first time people professing Islam or Christanity
were inducted as members during 1980 long after the
notices were issued by the Assistant Commissioner.
He also held that the Samithi ‘drasticalloy amended
the provisions of the Samithi’s constitution’,
during the pendency of the case, in an attempt to
take away the religious character of the
institution. The amendments were made with oblique
motives.
On the basis of the aforesaid facts both prior
to 1960 and after 1960, and conclusions of the
Deputy Commissioner it must be held that the
predominant purpose in the formation of the society
and grant of lease was for religious purposes. The
other purposes were not the dominant purposes and
the addition of the aims and activities in para (a)
was not intended to change the basic religious
character of the trust.
From the above material, it is clear that the
temples established were intended to be public
temples in which every member of the Hindu
community was entitled to enter as of right and
entry was not restricted to the members of the
Society. Point 2 is held against the Society.
Point 3:
It was argued for the Society, that a temple
in order to be a public temple must be constructed
in land of which the founders were owners and in
case the land was leasehold land, it must be held
that it was not intended to be a public temple.
According to him there cannot be a public trust
whose life will be coterminus with the expiry of
the term of a leasehold land.
On facts, we do not find any substance in this
contention. It is an admitted fact that the
Government granted a lease of land for 90 years in
1960. Assuming that the preposition contended for
is correct, we are of the view that the said
proposition cannot apply to land leased for as long
a period as 90 years. The point is rejected.
Point 4:
It was contended for the ‘Hindu Public’ by its
learned counsel that the High Court and the
Assistant Commissioner were wrong in thinking that
the public endowment was confined only to the
temples and did not extend to the mandap, the
library, shop-rooms and other constructions.
Apart from the evidence to which we have
already referred the contents in the public appeal
of 1971 for donations, Ex.F, proves that not only
the temples but the mandap, the shop rooms, the
library and other constructions were part of the
religious endowment. It states that the Government
granted lease of one and half acres at the central
place of the new capital in front of the market to
the Society for construction of Durga Mandap and
other constructions, 11 years before this appeal.
From 1949, every year, on this place, public
worship of Sri Durga, Laxmi and Kali were being
performed. Worship of Deity Kartikeswar started
two years before. Sri Ram Navami, Pana Sankranti,
Ekadashi, Sibaratri, Bhagabat Janma, Ganesh Puja,
Saraswati Puja etc. were to be performed. Two
years before, Hanuman temple had been established.
The appeal says that "although for the last so many
days, Sri Sri Sri Durga Puja is being performed
here, yet no special effort has been made for
construction of a permanent mandap and temples for
other Gods and Goddesses". This shows that the
Mandap was for Durga Puja and not, as contended by
the learned counsel for the Society, to be used by
all other communities for various functions like
marriages etc. The Appeal further states that all
other communities, Mohammendan and Christian
communities were having their own buildings in
Bhubaneswar. So far as the other constructions are
concerned, the Appeal states:
"Constructions have started here for a
permanent Devi Mandap, compound, 6 permanent shop
room and a garden. For this purpose, a small
amount of donation has been received. About
Rs.40,000/- has been received towards advance rent
from prospective tenants. Besides this, some
amount is collected from tenants of temporary
shops. There is proposal for construction of
temples for deities, Radhakrishna, Sita Rama, Siva
and Devi. Minimum estimated cost for each temple
has been fixed at Rs.8,000/-.
There is no library of religious books. Many
distinguished Sadhus, Sanyasis and devotees are
coming here. As there is no suitable place for
them to stay, they are staying in family houses
contrary to Sastras and in Dharmasala at
Bhubaneswar. So a small Dharmasala and a library
of religious books are essential for them......
.........there is no permanent public pandal
for religious meetings ....Those religious
institutions who need an office here, the same can
be constructed for them at their expenses."
On that basis, public donations were called
for. The above appeal, in our view, clinchingly
establishes that the mandap, shops, garden, library
and Dharmsala or guest house and office rooms etc.
were all meant for religious purposes of the Hindu
community. There is not a whisper in this appeal
of any secular purposes or purposes of other than
religious.
In our view, the Deputy Commissioner was right
in holding that the leasehold land, the temples,
the mandap, the library, the guest house or
Dharmsala, the office and shops, all of them,
formed the endowment. The Deputy Commissioner was,
right in rejecting all the contentions of the
Society and in appointing non-hereditary trustees
under section 27 of the Endowment Act.
For the aforesaid reasons, Civil Appeal
No.2546 of 1992 is allowed and the Civil Appeals
Nos. 2547-48 of 1992 are dismissed. The order of
the Deputy Commissioner is restored. There will be
no order as to costs in all the appeals.