LPA/75/1998 of INSPECTOR FIT PERSON HR & CE Vs AMIRTHAMMAL on 17 December 2002

:JUDGMENT

PRABHA SRIDEVAN,J.

The appellant was appointed as a fit person of the suitproperty by the authorities under the Hindu Religious and Endowments Act (H.R.

& C.E. Act)-respondents 2 and 3, according to whom, it was a public temple.Thereupon the first respondent filed the suit against the respondents 2 and 3and the appellant for a declaration that the suit properties are private andfamily properties and not a public temple and for permanent injunctionrestraining the defendants from interference. . In the plaint the suitproperty was referred to as ' Sundareswarar Swami Samadhi'. The question ofmaintainability of the suit was raised by the defendant in view of Section 108of the H.R. & C.E. Act. The Trial Court decided this issue in favour of thefirst respondent. The learned Single Judge also held that since the suitproperty is a 'samadhi' ,the suit was maintainable.

2. The learned Senior Counsel appearing for the appellant made his submissions with regard to the maintainability of the suit as well ason merits and referred to,(a) The Mahalakshmi Temple V. The Commissioner, H.R. & C.E.(1993 I MLJ 266)(b) Sri Venkataramanaswamy Deity V. Vadugammal (1974 I MLJ431)He also relied on State of Madras Vs. Kunnakudi Melamatamalias Annathana Matam (1966 II MLJ 13 (SC)) and Sri vedagiri Lakshmi NarasimhaSwami Vs. Induru Pattabhirami Reddi (AIR 1967 SC 781).

3. It was submitted that since the main relief sought for would depend upon whether the suit property is a public temple or not thiswould be a dispute to be decided by the Deputy Commissioner or the JointCommissioner under Section 63 of the Act. It was submitted that cleverwording of the prayer would not improve the position and that while it is truethat the Civil Court does not lose its jurisdiction with regard to reliefsthat cannot be granted by the Deputy Commissioner and for which no provisionis made under the Act, where there is a specific provision for deciding thisdispute the respondent ought to have availed of the statutory remedy.

4. The learned counsel for the respondent submitted that it has been held in various decisions that a 'samadhi' is not a religiousinstitution. The learned counsel brought to our notice the Andhra PradeshH.R. & C.E. Act, which included in its fold a 'samadhi' and a ' brindavan'.He would therefore submit that since the Tamil Nadu Act has specificallychosen not to include 'samadhis' this question could only be decided by theCivil Court.

5. On merits, it was submitted on behalf of the appellants that the documentary evidence would clearly show that the earliestdocuments have referred to the suit property only as 'Sundareswarar SwamiKoil' and only in the plaint for the first time there is reference to a'samadhi' and therefore, the oral and documentary evidence do not establishthat the suit property is a `samadhi'. On the contrary, the learned counselfor the respondent would submit that merely because some idols have beeninstalled in and around the 'samadhi' will not take away from the property theessential characteristics of a 'samadhi'.

6. A temple is defined in the H.R. & C.E. Act thus:

""Temple" means a place by whatever designation known used asa place of public religious worship, and dedicated to, or for the benefit of,or used as of right by, the Hindu community or of any section thereof, as aplace of religious worship."

and a "religious institution" is defined as a math, temple orspecific endowment.Section 63(a) reads this:"Subject to the rights of suit or appeal hereinafter provided,the Deputy Commissioner shall have the power to inquire into and decide thefollowing disputes and matters:(a) whether an institution is a religious institution;(b) whether a trustee holds or held office as a hereditarytrustee."7. In Nagammal V. Ayyavu Thevar (1973 I MLJ 266), it washeld :"The form of relief is not the sole criterion to decide thequestion of maintainability of the suit. One of the main issues that arisesfor consideration is whether the plaintiffs and defendants 3 and 4 arehereditary trustees. For deciding that issue, express provision is made inSection 63 of the Act, and the Trial Court rightly held that the suit isbarred by Section 108 of the Act."

8. And again in 1974 I MLJ 431(cited supra),it was held"It is beyond dispute that matters which strictly fell withinthe scope of Section 57 will have to be taken to the Deputy Commissioner andthe procedure prescribed in the Act followed.... There is ample authority forthe proposition that the Civil Court can decide the suit particularly when thesubstantial relief is one that cannot be granted by the Deputy Commissionereven though questions that arise incidentally may be within the jurisdictionof the Deputy Commissioner under Section 57 of the Act. ......Thus in the special enactments, the jurisdiction of thespecial Tribunals under the Act is confined only to the purposes of theActs.... A relief which cannot be granted by the Deputy Commissioner can beasked for in a Civil Court". I

9. In 1966 II MLJ 13(cited supra) the Supreme Court heldthus:"Now one of the disputes in this suit is whether theinstitution is a religious institution within the meaning of Act XIX of 1951.Specific provision is made in Sections 57, 61 and 62 of the Act fordetermination of that dispute by the Deputy Commissioner, the Commissioner andeventually by a suit instituted in a Court under Section 62. The present suitis not brought under or in conformity with Section 62 and consequently, in sofar as the suit claims the relief of injunction restraining the levy ofcontribution and audit fees under Act XIX of 1951, it is barred by Section93of the Act."

10. In V.L.N.S. Temple V. I. Pattabhirami (AIR 1967 SC781), the Supreme Court held,"Section 93 of the Act does not impose a total bar on the maintainability of a suit in a Civil Court. It states that a suit of thenature mentioned therein can be instituted only in conformity with theprovisions of the Act; that is to say, a suit or other legal proceeding inrespect of matters not covered by the section can be instituted in theordinary way. It therefore imposes certain statutory restrictions on suits orother legal proceedings relating to matters mentioned therein."In that case, the suit was for rendition of accounts and it

was held that since Chapter VII of the Act does not provide for determining ordeciding that dispute, Section 93 is not a bar to such a suit. It was urgedon behalf of the appellant that AIR 1967 SC 781(cited supra) was a judgmentdelivered by a two Judge Bench whereas the earlier one was heard and decidedby the three learned Judges and therefore, the earlier one would prevail. Areading of AIR 1967 SC 781(cited supra) would show that the learned Judgeshave considered in detail the effect of the bar of suit in the H.R. & C.E.Act and have held that insofar as the cases where the relief cannot be grantedby the authorities constituted under the Act the bar will not operate so as toprevent anyone from approaching the Civil Court. So,this judgment is in noway contrary to the earlier judgment.

11. The learned counsel for the respondent relied on the judgment of this Court in L.P.A.Nos.103 of 1994 and 266 of 1995 in which onfacts it was found that the suit property was a 'samadhi' and therefore, washeld to be not a religious institution as defined under Section 6(18) of theH.R. & C.E. Act. In that case, the plaintiff in the suit had in factapplied to the Deputy Commissioner under Section 63(a) of the H.R. & C.E.Act for a declaration that a suit institution is only a 'samadhi' and not areligious institution. That petition was allowed. The Department's challengeto this was unsuccessful and in the Letters Patent Appeal too, it was heldthat it was only a ' samadhi'. Therefore, that judgment really does not helpthe case of the respondent. On the contrary, it only reinforces theappellant's case that the respondent ought to have approached the authoritiesfirst.

12. In the present case though there is a reference in the plaint to the suit property being a 'samadhi' the relief asked is for adeclaration that the property is not a public temple. This is a dispute thatfalls under Section 63(a) of the H.R. & C.E. Act. It is not an incidentalquestion that is asked to be decided in the suit, but the only question.Therefore, this dispute ought to have been adjudicated by the authority underthe Act and as pointed out by the learned Special Government Pleader, the Actalso provides for a detailed enquiry.

13. The suit must therefore, be dismissed as not maintainable since the question of maintainability is answered in favour ofthe appellant, we are not dealing with the merits of the case. It is open tothe respondents to approach the authorities for a decision in this regard whoshall consider this dispute3 afresh and decide the same in accordance withlaw. The letters patent appeal is therefore, allowed and the suit isdismissed. No costs. The connected miscellaneous petition is closed.

17-12-2002

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