STATE OF WEST BENGAL AND ORS.versusSRI SRI LAKSHMI JANARDAN THAKUR AND ORS.

                      STATE OF WEST BENGAL AND ORS.                                    A
                                          v.
              SRI SRI LAKSHMI JANARDAN THAKUR AND ORS.

                                 AUGUST 2!, 2006

            [ARIJIT PASA YAT AND LOKESHWAR SINGH PANTA, JJ.]                           B


.        Religious and Charitable Endowments:

          Public and private endowment-Distinction between-Relevant factors
    for determining character of an endowment-Discussed-On facts, land held            c
     by deity Sri Sri Lakshmi Janardan Thakur-Question related to whether
     endowment was of a public or private nature-High Court held that
     endowment was of private nature-Held: High Court did not consider the
    factual position in proper perspective and did not refer to several relevant
    documents and materials-Matter remitted back for re-consideration-West
                                                                                 D
    Bengal Land Reforms Act, 1955-Sections 14M(5) & (6) and 14T(6) & (9).

          The Revenue Officer disposed of enquiry proceedings under Section
    14T(6) &(9) and 14M (5) & (6) of the West Bengal Land Reforms Act, 1955
    allowing the deity Sri Sri Lakshmi Janardan Thakur to retain 24.22 acres
    of land and directing vesting of rest of the land in the State. It further held    E
    that the endowment was of a public nature exclusively for charitable and
    religious purpose and therefore was entitled to retain 7 standard hectares of
    land in terms of Section 14M(6) of the Act. Appellate Authority as well as the
    Tribunal confirmed the order passed by the Revenue Officer.

          High Court however set aside the orders passed by the authorities below      F
    holding that the dedication was not made for the use or benefit of public at
    large or even a specified class of it and, therefore, the endowment was of a
    private nature. Hence the present appeal.

         Allowing the appeal and remitting the matter to High Court, the Court
                                                                                       G
          HELD: I.I. Religious endowments are of two kinds, public and private.
    In a public endowment, the dedication is for the use or benefit of the public at
    large or a specified class. But when property is set apart for the worship of

                                         841
i                                                                                      H
    842                     SUPREME COURT REPORTS [2006] SUPP. 4 S.C.R.

A a family god, in which the public are not interested, the endowment is a private       •
    one. It is a question of fact whether a temple is a private or a public one. The
    extent of properties belonging to the temple, the course of conduct of the
    devotees, the supervision exercised by the founder and his descendants whether
    the rents and profits are exclusively utilised for the temple for a long period
    are relevant factors to be taken into consideration whether a temple is a public
B   one or a private one as also public visiting the temple for Darshan and worship,
    appearance of the temple, association of members of public with the
    management and earlier statements or admission of parties.
                                                                  [846-H; 847-A, Bf

C          1.2. In order to ascertain whether a trust is private, following factors
    are relevant: (1) If the beneficiaries are ascertained individuals; (2) If the
    grantor has been made in favour of an individual and not in favour of a deity;
    (3) The temple is situated within the campus of the residence of the donor;
    (4) If the revenue records or entries suggest the land being in possession of
    an individual and not in the deity. On the other hand an inference can be drawn
D   that the temple along with the properties attached to it is a public trust: (1) If
    the public visit tht: temple as of right; (2) If the endowment is the name of the
    deity; (3) The beneficiaries are the public; (4) If the management is made
    through the agency of the public or the accounts of the temple are being
    scrutinized by the public. [847-C-FI

E         2. A bare reading ufthe High Court's judgment show that factual position
    has not been considered in its proper perspective and in fact High Court has
    not referred to several relevant documents and materials. The High Court
    does not appear to have considered all the relevant aspects and has come to
    abrupt conclusion. In the fitness of things, it would be appropriate to set aside
F   the order of the High (,ourt and remand the matter to it for consideration
    afresh. (847-G; 848-G, Hf

          CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3563 of2006.

          From the Judgment and Order dated 30.4.2003 of the High Court of
G Calcutta in W.P.L.R.T. No. IOI of2003.
          Avijit Bhattacharjee for the Appellants.

        Raj Kumar Gupta, Sheo Kumr Gupta, A.N. Bardiyar, B.K. Shahi and S.B.
    Upadhyay for the Respondents.
H
          STATE OF WEST BENGAL v. SRI SRI LAKSHMI JANARDAN THAKUR [PASAYAT,J.]   843
           The Judgment of the Court was delivered by                                   A
           ARIJIT PASA YAT, J. Leave granted.

           Appellants call in question legality of the judgment rendered by a
     Division Bench of the Calcutta High Court holding that an endowment which
     was the subject matter of controversy was private in nature. After so holding,     B
     the High Court directed the Revenue Officer and Ex-officio Deputy Land and
     Land Reforms Officer to decide afresh the matter taking note of the observations
..   made and the findings recorded. It was directed that the decision was to be
     taken after affording all concerned parties opportunity of hearing.

           The background facts in a nutshell are as follows:                           c
            Revenue officer initiated proceedings registered as 3/Hoogly of 2002
     under Section 14T(6}, 14T(9), 14M(5) and 14M(6) of the West Bengal Land
     Reforms Act, 1955 (in short the 'Act') to cause enquiry in order to ascertain
     the total extent of land held by Deity Sri Sri Lakshmi Janardan Thakur
     (hereinafter referred to as the 'Deity') and to decide the question as to D
     whether the endowment is of public or private nature and connected issues.
     It is to be noted that under the Act, the Revenue Officer is the Ex-Officio
     Deputy Land and Land Reforms officer.

           By order dated 3.12.2001, the Revenue Officer disposed of the
                                                                                    E
     proceedings allowing the Deity to retain 24.22 acres of land and directed
     vesting of rest of the land in the State. The Revenue Officer held that the
     endowment was of public nature exclusively for charitable and religious
     purpose and therefore was entitled to retain 7 standard hectares of land in
     terms of Section 14M(6) of the Act. Challenging the said order, an application
     numbered as O.A. 328 of 2002 was filed by the Shebaits of the said Deity F


-    before the West Bengal Land Reforms and Tenancy Tribunal (hereinafter
     referred to as the 'Tribunal'}claiming that the character of the Deity was
     private in nature. Aforesaid 0.A. was disposed of by the Tribunal directing
     the applicants to prefer statutory appeal under the provisions of the Act
     before the District Land and Land Reforms Officer, the designated appellate
     authority. Respondents preferred the statutory appeal in terms of Section 54
                                                                                    G
     of the Act before the appellate authority. The appeal was registered as Appeal
     Case No. 52 of2002. By order dated 31.5.2002 the appellate authority rejected
     the appeal and confirmed the order passed by the Revenue Officer.


•                                                                                       H
    844                     SUPREME COURT REPORTS (2006] SUPP. 4 S.C.R.

A        Being aggrieved by the said judgment an appeal (O.A. No. 2175/2002)
    was preferred before the Tribunal claiming properties of the Deity as absolute
    and not the personal property of its Shebaits.

          The Tribunal after hearing the parties rejected the OA holding that the
    contentions raised by the applicants before it were rightly rejected by the
B   appellate authority for cogent reasons based on solid and unassailable materials.

         Challenging the said j:idgment of the Tribunal, a Writ Petition was filed
  before the Calcutta High Court which was registered as W.P.L.R.T. No. IOI
  of 2003. A Division Bench of the Calcutta High Court by the impugned
  judgment allowed the Writ Petition, set aside the orders passed by the Revenue
C Officer, the appellate Authority and the Tribunal. As noted above certain
  directions were given. The High Court inter alia held that the dedication was
  not made for the use or benefit of the public at large or even a specified class
  of it and therefore the endowment was of private nature. It was noticed that
  neither the management nor the control over the expenditure was of the public
D and therefore set aside the orders.
        In support of the appeal, learned counsel for the appellant-State and its
  functionaries submitted that the High Court has fallen into grave errors by
  ignoring the fact that the respondents have taken different stands at c!ifferent
  points of time. They themselves have accepted that the endowment was of
E a public nature. Reference in this is made to various orders including an order
  passed by a High Court in an earlier Writ Petition and the prayer made in the
  Writ Petition filed before the High Court.

         Learned counsel for the respondents on the other hand submitted that
  the High Court has rightly taken note of the factual position in the proceeding



                                                                                        -
F under Section 44(2)(a) of the West Bengal Estates Acquisition Act, 1953 (in
  short the 'Acquisition Act'), wherein it was clearly held that Deity is entitled
  to benefits as provided under Sections 6( I)(i) and 6(2) and proviso to Section
  17 of the Acquisition Act. This order dated 24.8.1968 it is submitted, was not
  challenged. The Arpannama (religious endowment) clearly shows the character
G of the endowment.
          Per adjudication of the controversy, certain prov1S1ons and factual
    aspects need to be noted. Section 5 of the Acquisition Act deals with effect
    of Notification issued under Section 4 of the Acquisition Act. Section 6( I) is
    of significance and reads as follows :
H                                                                                       •
            STATE OF WEST BENGAL v. SRI SRI LAKSHMI JANARDAN THAKUR [PASAYA T, J.] 845

              6.   "Right of intermediary to retain certain lands-( 1) A
                   Notwithstanding anything contained in sections 4 and 5, an
                   intennediary shall, except in the cases mentioned in the proviso
                   to sub-section (2) but subject to the other provisions of that sub-
                   section, be entitled to retain with effect from the date of vesting-
                   (a) land comprised in homesteads:                                     B
                   (b) land comprised in or appertaining to buildings and structures
                   owned by the intermediary or by any person, not being a tenant,
                   holding under him by leave or license.
                   Exp/anation.-For the purpo;,es of this clause 'tenant' shall not
                   include a thika tenant as defined in the Calci;tta Thika Tenancy C
                   Act, 1949:
                   (c) non-agricultural land in his khas possession including land
                   held under him by any person, not being a tenant, by leave or
                   license, not exceeding fifteen acres in area, and excluding any
                   land retained under clause (a)                                  D
                   Provided that the total area of land retained by an intermediary
                   under clauses (a) and (c) shall not exceed twenty acres, as may
                   be chosen by him:
                   Provided further that if the land retained by an intermediary         E
                   under clause (c) or any part thereof is not utilised for a period
                   of five consecutive years from the date of vesting, for a gainful
                   or productive purpose, the land or the part thereof may be resumed
I                  by the State Government subject to payment of compensation
                   detennined in accordance with the principles laid· down in sections
                   23 and 24 of the Land Acquisition Act, 1894."                         F
                   xx       xx         xx            xx               xx

              Till 1981 there was no ceiling in respect of religious or charitable
        endowment, be private or public. In 1981 the Land Reforms Act was amended
        and provisions of Sections 14M(5) and (6) become effective and the ceiling G
        area was prescribed. For the first time distinction was made between private
        and public charitable institutions.

             Sections 14 M(5) and (6) read as follows:-
<   t          "(5) The lands owned by a trust or endowment other than that of a H
    846                     SUPREME COURT REPORTS [2006] SUPP. 4 S.C.R.

A           public nature, shall be deemed to be lands owned by the author of
            the trust or endowment and such author shall be deemed to be a raiyat
            under this Act to the extent of his share in the said lands, and the
            share of such author in the said lands shall be taken into account for
            calculating the area of lands owned and retainable by such author of
            the trust or endowment. and for determining his ceiling area for the
B           purposes of this Chapter.

            Explanation. -The expression "'author of trust or endowment" shall
            include the successors-in-interest of the author of such trust or
            endowment.

C           (6) Notwithstanding anything contained in sub-section (I), a trust or
            an institution of public nature exclusively for a charitable or religious
            purpose or both shall be deemed to be a raiyat under this Act and
            shall be entitled to retain lands not exceeding 7.00 standard hectares,
            notwithstanding the number of its centres or branches in the State".
D          In B.K. Mukherjea's The Hindu law of Religious and Charitable Trust,
    Tagore law lectures the distinction between a public and private charitable
    trust has been set out in the following terms:

               "Distinction between public and private purpose-Gifts for
           individuals-The line of distinction between a public purpose and a
E
           purpose which is not public is very thin and technical and is difficult
           ofan easy definition. Tudor in the 5th edition of his book an 'Charities'
           thus summed up the principles deducible from the cases on the
           subject:

F               "If the intention of the donor is merely to benefit specific
           individuals, the gift is not charitable, even though the motive of the
           gift may be to relieve their poverty accomplish some other purpose
           with reference to those particular individuals which would be charitable
           if not so confined; on the other hand, if the donor's object is to
           accomplish the abstract purpose of relieving poverty, advancing
G          education or religion or other purpose charitable within the meaning
           of the Statute of Elizabeth, without giving to any particular individuals
           the right to claim the funds, the gift is charitable."

          Religious endowments are of two kinds, public and private. In a public
H   endowment, the dedication is for the use or benefit of the public at large or
    a specified class. But when property is set apart for the worship of a family       ••
         STATE OF WEST BENGAL v. SRI SRI LAKSHMI JANARDAN THAKUR [PASAYA T, J.] 847

    god, in which the public are not interested, the endowment is a private one.         A
    It is a question of tact whether a temple is a private or a public one. The extent
    of properties belonging to the temple, the course of conduct of the devotees,
    the supervision exercised by the founder and his descendants whether the
    rents and profits are exclusively utilised for the temple for a long period are
    relevant factors to be taken into consideration whether a temple is a public
    one or a private one as also public visiting the temple for Darshan and              B
    worship, appearance of the temple, association of members of public with the
    management and earlier statements or admission of parties.

          In order to ascertain whether a trust is a private, following factors are
    relevant:
                                                                                         c
           (!)    If the beneficiaries are ascertained individuals;
           (2)    If the grantor has been made in favour of an individual and not
                  in favour of a deity;

          · (3)   The temple is situated within the campus of the residence of the       D
                  donor;

           (4)    If the revenue records or entries suggest the land being in
                  possession of an individual and not in the deity. On the other
                  hand an inference can be drawn that the temple along with the
                  properties attached to it is a public trust:
                                                                                         E
                  (1) If the public visit the temple as of right

                  (2) If the endowment is the name of the deity.

I                 (3) The beneficiaries are the public.

                  (4) If the management is made through the agency of the public         F
                  or the accounts of the temple are being scrutinized by the public.

           A bare reading of the High Court's judgment show that factual position
    has not been considered in its proper perspective and in fact High Court has
    not referred to several relevant documents and materials. In the earlier writ
    petition i.e. Civil Writ Petition No.4941 (W) of 1976 decided on 16. 7.1980 a G
    learned single judge after referring to the submissions made on behalf of the
    Deity noted as follows:

               "He submitted that as a matter offact out of the income of the
            Debutter properties Educational Institutions and Dispensaries are
                                                                                         H
    848                     SUPREME COURT REPORTS [2006[ SUPP. 4 S.C.R.

A           run by the Sheba its of the said Deity and the said facts unmistakably
            point out that the properties are utili:::ed for religious and charitable
            purpose of public nature. Although there is force in the contention
            of Mr. Mitra, it is not necessary for me to decide at the present stage
            as to whether the Debutter properties are really utilized for religious
            and charitable purpose of public nature."
B
                                                              (Italics for emphasis)

         In the written notes of arguments filed before the Revenue Officer, it
    was inter alia stated as follows:

C           "This endowment of the said Sri Sri Laxmi Janardan Thakur is
            absolutely debut/or deity is public in nature. In fact this is an
            absolute public Debuttor Estate with religious and charitable in nature
            and that Estate will enjoy the protection as given by W.B.L.R. Act,
            14M Sub Section 5."

D                                                             (Italics for emphasis)

          Similarly, in the writ Petition filed one of the prayers was as follows:

                 "A writ of and/or in the nature of declaration, declaring that the
            properties dedicated in favour of the deities absolutely used for
E           religious and charitable purposes, the Revenue Officer cannot tagged
            the said properties with the personal properties of the Nandis and the
            Order so passed by the Revenue Officer, Appellate Authority and the
            learned Tribunal are bad, illegal and contrary to law."

          The order on which reliance has been placed by learned counsel for the
F respondent was passed on 21.1.2003. Obviously at that time the question of
    ceiling vis-a-vis private and public institutions were not relevant.

          The High Court does not appear to have considered all the relevant
    aspects and has come to abrupt conclusion and the following findings have
    been recorded:
G
                "No material has been shown by the petitioners which satisfies
            the requirements for holding the said endowment as to public nature."

          In the fitness of things, it would be appropriate to set aside the order
    of the High Court and remand the matter to it for consideration afresh. It shall
H
     STMEOF WESTBENGAL v. SRI SRI LAKSHMI JANARDAN THAKUR [PASAYAT, J.] 849

consider the effect of the order in the earlier writ petition, effect of the A
submission made and the written statement and the prayer in the writ petition.
These aspects shall be considered along with other materials to be placed by
the parties. Needless to say on consideration of all the relevant material the
High Court shall dispose of the writ petition in accordance with law.

         In the ultimate result the appeal is allowed, with no orders as to costs.   B
B.B.B.                                                           Appeal allowed.