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PETITIONER: RAM JANKIJEE DEITIES & ORS.

       Vs.

RESPONDENT: STATE OF BIHAR AND ORS.

DATE OF JUDGMENT:       11/05/1999

BENCH: M. Jagannadha Rao, Unesh C. Banerjee

JUDGMENT:

BANERJEE, J.

     The core question that falls for consideration in this appeal,  by  the grant of special leave, is whether a  Deity being  consecrated by performance of appropriate  ceremonies having  a  visible image and residing in its abode is to  be treated  as a juridical person for the purpose of Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land)  Act, 1961 (Bihar Act XII of 1962).  On a reference to the  factual backdrop, the records depict, that one Mahanath Sukhram  Das did execute two separate deeds of dedication in December,  1950,  and  duly   registered  under  the  Indian Registration  Act, dedicating therein the landed  properties to  the  deities ‘Ram Janki Ji’ (Appellant No.1) and  Thakur Raja  (wrongly described in the records of the High Court as ‘Raja  Rani’)  (Appellant  No.2).   Both  the  deities  were separately  given the landed property to the extent of 81.14 acres of land and in fact were put in possession through the shebaits.   After however the death of the aforesaid Mahanth Sukhram  Das, Petitioner No.3 became the shebait of both the deities.   The  properties  of the deities  were  also  duly registered  and enlisted with the Religious Trust Board  and the  same  are under the control and guidance of the  Board. Be  it  noted that both ‘Ram Janki Ji’ and ‘Raja Rani’  (for convenience  sake since the High Court referred to the deity as  such  in place and stead of Thakur Raja) are located  in two  separate temples situated within the area of the  land. On  the basis of an Inquiry Report, the Deputy Collector  in the  matter  of fixation of Ceiling Area by his order  dated 18th November, 1976 in Ceiling Case No.222/76-77 allowed two units  to  the  Deities, on the ground that  there  are  two temples  to  whom  lands were gifted by  means  of  separate registered  deeds  of  Samarpan namas and  declared  only  5 acres,  as  excess land, to be vested on to the State.   The Collector  of  the  District however, came to  a  conclusion different  to the effect that mere existence of two  temples by  itself can not be said to be a ground for entitlement of two  separate units under the Act, since the entire property donated  to  the two units are being managed by a  committee formed  under the direction of the Religious Trust Board and prior  conferment of the managerial right to only one person and  there  being  no evidence on record to  show  that  the property   donated  to  the  deities   are  to  be   managed

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separately,   having   separate     account,   question   of recommendation for exemption under Section 5 and entitlement of  two  units  would not arise.  As a matter  of  fact  the Collector  passed  an  order   recording  therein  that  the entitlement  of  the  trust  would be one  unit  only.   The Revision  Petition  subsequent thereto however was  rejected though  on the ground of being hopelessly barred by the laws of limitation.  The records depict that against the order of the  Member  Board  of  Revenue,   wherein  the  rights  and contentions  of  the petitioners to hold two units  for  two separate  deities  were rejected, the petitioner  moved  the Patna  High Court in Writ Petition 5020 of 1984 for quashing of  the  orders passed by the Collector and Member Board  of Revenue.   The record further depicts that the High Court on 19th November 1984 allowed the Writ Petition and granted the relief  of  two  units as claimed by  the  petitioner.   The judgment  of the High Court became final and binding between the parties by reason of the factum of there being no appeal therefrom.   Subsequently  however, after about two years  a Writ  Petition was filed before this Court under Article  32 of the constitution being Civil Writ No.52563 of 1985 (Badra Mahato  vs.  State of Bihar) wherein one Badra Mahato prayed for  issuance of a mandatory order as regards the  allotment order  in  favour  of the petitioner  (the  aforesaid  Badra Mahato).   This  Court, however, remitted the matter to  the High  Court  with a direction that the petition before  this Court  be treated as a Review Petition before High Court and be  disposed of accordingly.  On 21st October, 1987 in terms of  the  direction of this Court the Division Bench  of  the High  Court directed that the matter should be placed before the Division Bench on 23rd November 1987 subject to any part heard  matter  and on 25th November, 1987 as the  chronology depicts  the Review Petition was allowed and the order dated 19th November, 1984, was recalled.  The matter was, however, directed  to  be listed before the appropriate Bench on  4th December,  1987.   The matter was not however placed in  the list or heard for over two years and finally the matter came up  for hearing before the learned Single Judge who in  turn has  rejected the contention of the petitioner and hence the appeal before this Court.  Before proceeding with the matter any  further, it would be convenient to note that while on a review  of  the order, the Division Bench of the High  Court has  been  pleased  to recall its earlier order  dated  19th November,  1984,  but  the observations  pertaining  to  the entitlement  of  two idols seems to be apposite.   The  High Court  in  its  order dated 19th  November,  1984  observed: "....This  aspect  of  the matter has been considered  by  a Bench  of this Court in the case of Shri Lakshmi Narain  and others  vs.  State of Bihar and others (1978 BBCJ 489) where it  has been pointed out that once endowment is separate  in the  name of separate deities the legal ownership under  the endowment  vests  in  idols;   the matter  would  have  been different  if  the endowment was to any Math in which  there were  two deities.  From the order of the learned  Collector itself  it appears that the two endowments were made by name of  the  two deities on whose behalf claims have been  made. It  is  settled  by several pronouncements of  the  Judicial Committee that under the Hindu Law images of the deities are juristic  entities  with the capacity of receiving gift  and holding  property.  As such, when the gift is directly to an idol,  each  idol or deity holds it in its own right  to  be managed either by separate managers or by a common manager.

     ..............  .............."

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     It  is on this score that Mr.  Goburdhan, the  learned Advocate  appearing  in support of the appeal very  strongly criticised  the judgment of the learned Single Judge both on the  count of not being sustainable as per the provisions of Hindu  law  as  also  on the  question  of  propriety.   Mr. Goburdhan  contended that there is a Division Bench judgment recording  therein  the  entitlement of the  Appellants  for exemption and judicial propriety requires one learned Single Judge  to follow a binding precedent of an earlier  Division Bench  judgment from the same High Court and more so, in the same matter.  The issue as a matter of fact according to Mr. Goburdhan  was  no longer res integra and open  for  further discussion  but  the learned Single Judge went on to  decide the issue once again not withstanding the earlier finding as regards  Idols’  entitlement.  We are constrained to  record that we find some justification for such a criticism.  It is true that the earlier Division Bench’s order stands recalled and  strictly  speaking  there may not be any  necessity  to refer  to the same, but when there was an existing order  of the  Division  Bench,  judicial propriety demands  that  the learned  Single Judge dealing with the matter ought to  have referred  to  the same, more so when a contra view is  being expressed  by the learned Judge.  It is a matter of judicial efficacy and propriety though not a mandatory requirement of law.   The court while deciding the issue ought to look into the  records as to the purpose for which the matter has been placed  before the court.  We are rather at pains to  record here  that  judicial discipline ought to have persuaded  the learned  Single  Judge not to dispose of the matter  in  the manner  as  has been done, there being no reference even  of the  earlier  order.  Before proceeding with the matter  any further  apropos  the  judgment under appeal,  it  would  be convenient  to note however that Hindu law recognizes  Hindu idol  as a juridical subject being capable in law of holding property  by  reason  of the Hindu  Shastras  following  the status  of  a  legal  person in the same way as  that  of  a natural  person.  The Privy Council in the case of  Pramatha Nath Mullick vs.  Pradyumna Kumar Mullick & Anr LR 52 IA 245 observed:

     "One of the questions emerging at this point, is as to nature  of  such an idol, and the services due  thereto.   A Hindu  idol  is,  according to long  established  authority, founded  upon  the religious customs of the Hindus, and  the recognition  thereof by Courts of law, a "juristic  entity." It  has a juridical status with the power of suing and being sued.   Its interests are attended to by the person who  has the  deity in his charge and who is in law its manager  with all  the  powers  which  would, in  such  circumstances,  on analogy,  be given to the manager of the estate of an infant heir.  It is unnecessary to quote the authorities;  for this doctrine, thus simply stated, is firmly established.

     A  useful  narrative of the concrete realities of  the position  is  to be found in the judgment of Mukerji J.   in Rambrahma Chatterjee vs.  Kedar Nath Banerjee [1922 (36) CLJ 478/483]  "We  need not describe here in detail  the  normal type  of  continued  worship of a consecrated  image  -  the sweeping of the temple, the process of smearing, the removal of the previous day’s offerings of flowers, the presentation of  fresh  flowers,  the respectful oblation  of  rice  with flowers  and  water,  and  other   like  practices.   It  is sufficient  to state that the deity is, in short,  conceived as  a  living  being and is treated in the same way  as  the

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master  of the house would be treated by his humble servant. The  daily  routine  of  life is gone  through  with  minute accuracy;    the   vivified  image  is  regaled   with   the necessaries  and luxuries of life in due succession, even to the changing of clothes, the offering of cooked and uncooked food, and the retirement to rest."

     The  person founding a deity and becoming  responsible for  these duties is de facto and in common parlance  called shebait.  This responsibility is, of course, maintained by a pious  Hindu,  either  by the personal  performance  of  the religious  rites  or  - as in the case of Sudras,  to  which caste  the parties belonged - by the employment of a Brahmin priest  to  do so on his behalf.  Or the founder,  any  time before  his death, or his successor likewise, may confer the office of shebait on another."

     The  only  question  that falls for  consideration  is whether  ‘Ram  Jankiji’ and ‘Raja Rani’ can be termed to  be Hindu  deities  and separate juristic entities and it is  on this  score  the learned Judge in the judgment under  appeal observed:   ".....The  image of the deity is to be found  in Shastras.   ‘Raja  Rani’  is not known to Shastras.   It  is unknown  in Hindu Pantheon.  It is a particular image  which is  a juristic person.  Idol is again an image of the deity. There  cannot  be  a  dedication to any name  or  image  not recognised  by the Shastras.  Here, in the present case, the petitioners  assert  that  the  dedication is  to  both  the deities  ‘Raja Rani’ but none of these have been  recognised by the Shastras.

     ......................

     11.   The petitioners contended that the Raja Rani are the  deities  under the Hindu Pantheon.  The Upanishads  are the  highest  sacred books of the Hindus.  It  was  admitted that  in Kaushitaki-Brahamana-Upanishad, IInd Chapter ‘sloka 1’  as translated in Hindi by Pt.  Sriram Sharma Acharya, in the  book styled as ‘108 Upnishads’, the following has  been said :  -

     "It  is the statement of Rishi Kaushitaki that soul is God  and the soul God is imagined as a king and the sound is his queen."

     12.    The  above  translation   has  been   seriously challenged by the respondents-Parcha-holders.

     It  may be noticed that Pt.  Sriram Sharma Acharya  is not an authority on the subject ....".

     We  are  afraid  the entire approach  of  the  learned Single   Judge  was  on  a  total  misappreciation  of   the principles  of  Hindu law.  Divergent are the views  on  the theme  of  images  or  idols  in  Hindu  Law.   One   school propagates God having Sayambhu images or consecrated images: the  other school lays down God as omnipotent and omniscient and  the people only worship the eternal spirit of the deity and  it  is  only the manifestation or the presence  of  the deity  by  reason  of  the charm  of  the  mantras:   Images according to Hindu authorities, are of two kinds:  the first is known as Syambhu or self-existent or self-revealed, while the  other is Pratisthita or established.  The Padma  Purana says:   "the  image of Hari (God) prepared of  stone  earth, wood,  metal  or the like and established according  to  the

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rites  laid down in the Vedas, Smritis and Tantras is called the  established images.....where the self- possessed Vishnu has placed himself on earth in stone or wood for the benefit of  mankind,  that  is   styled  the  self-revealed."  (B.K. Mukherjea  -  Hindu Law of Religious and Charitable  Trusts: 5th  Edn.) A Sayambhu or self-revealed image is a product of nature  and  it  is Anadi or without any beginning  and  the worshippers simply discover its existence and such images do not  require  consecration or Pratistha but a manmade  image requires consecration.  This manmade image may be painted on a  wall or canvas.  The Salgram Shila depicts Narayana being the  Lord of the Lords and represents Vishnu Bhagwan.  It is a  Shila - the shalagram form partaking the form of Lord  of the Lords Narayana and Vishnu.

     It is further to be noticed that while usually an idol is  consecrated  in  temple,  it does not appear  to  be  an essential  condition.  In this context reference may also be made  to a decision of the Andhra Pradesh High Court in  the case  of  Addangi  Nageswara Rao vs.   Sri  Ankamma  Devatha Temple.   [(1973) 1 A.W.R.  379] The High Court in paragraph 6 of the Report observed:-

     6.   The  next  question to be considered  is  whether there  is a temple in existence.  ‘Temple as defined means a place  by  whatever  designation known, used as a  place  of public  religious  worship,  and dedicated to,  or  for  the benefit of or used as of right by the Hindu community or any section  thereof  as  a place of public  religious  worship. That  is the definition by the Legislature to the expression ‘temple’  in  Act  (II of 1927), Act (XIX of 1951)  and  Act (XVII  of  1966).  Varadachariar, J., sitting with  Pandrang Row, J., in H.R.E.  Board vs.  Narasimham (1939 (1) MLJ 134) construing  the  expression  ‘a place  of  public  religious worship’ observed:

     "The test is not whether it conforms to any particular school of Agama Shastras.  The question must be decided with reference  to the view of the class of people who take  part in  the worship.  If they believe in its religious efficacy, in the sense that by such worship they are making themselves the  object of the bounty of some super-human power, it must be regarded as "religious worship".

     To  the  same  effect  was   the  view  expressed   by Viswanatha  Sastry,  J.,  in T.R.K.   Ramaswami  Sarvai  and another  vs.   The  Board  of  Commissioner  for  the  Hindu Religious Endowments, Madras (ILR (1950) Madras 799)

     "The  presence of an idol, though it is an  invariable feature  of Hindu temple, is not a legal requisite under the definition  of a temple in Section 9(12) of the Act.  If the public  or  that  section of the public who go  for  worship consider  that  there is a divine presence in  a  particular place  and that by offering worship there they are likely to be  the recipients of the blessings of God, then we have the essential features of a temple as defined in the Act."

     A  Division Bench of this Court consisting of  Justice Satyanarayana  Raju (as he then was) and Venkatesam, J.,  in Venkataramana  Murthi vs.  Sri Rama Mandhiram (1964 (2)  An. W.R.   457)  observed  that the existence of an idol  and  a Dhwajasthambham  are not absolutely essential for making  an institution  a  temple  and so long as the  test  of  public religious worship at that place is satisfied, it answers the

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definition of a temple.

     Their   Lordships  of  the   Supreme  Court  in   P.F. Sadavarthy  vs.   Commissioner, H.R.  & C.E.  (AIR  1963  SC 510) held:

     "A  religious  institution  will be a  temple  if  two conditions  are  satisfied.   One is that it is a  place  of public  religious  worship  and  the other  is  that  it  is dedicated  to  or  is for the benefit of, or is used  as  of right  by the Hindu Community, or any section thereof, as  a place of religious worship."

     To  constitute a temple it is enough if it is a  place of public religious worship and if the people believe in its religious efficacy irrespective of the fact whether there is an idol or a structure or other paraphernalia.  It is enough if  the  devotees  or the pilgrims feel that there  is  some super  human power which they should worship and invoke  its blessings."

     The observations of the Division Bench has been in our view  true to the Shastras and we do lend our concurrence to the  same.  If the people believe in the temples’  religious efficacy  no other requirement exists as regards other areas and  the  learned Judge it seems has  completely  overlooked this aspect of Hindu Shastras - In any event, Hindus have in Shastras  "Agni"  Devta;  "Vayu" Devta - these  deities  are shapeless  and  formless but for every ritual  Hindus  offer their  obalations before the deity.  The Ahuti to the  deity is  the  ultimate  - the learned Single  Judge  however  was pleased  not  to  put  any reliance thereon.  It  is  not  a particular  image  which is a juridical person but it  is  a particular  bent  of mind which consecrate the  image.   One cardinal principle underlying idol worship ought to be borne in  mind:  "that whichever god the devotee might choose  for purposes  of worship and whatever image he might set up  and consecrate  with  that  object,  the  image  represents  the Supreme  God  and  none else.  There is  no  superiority  or inferiority  amongst  the  different  gods.   Siva,  Vishnu, Ganapati  or  Surya  is extolled, each in its  turn  as  the creator,  preserver  and supreme lord of the universe.   The image  simply gives a name and form to the formless God  and the  orthodox Hindu idea is that conception of form is  only for  the benefit of the worshipper and nothing else."  (B.K. Mukherjea  - on Hindu Law of Religious and Charitable Trusts - 5th Edn.).

     In  this  context  reference may also be  made  to  an earlier  decision of the Calcutta High Court in the case  of Bhupatinath  vs.   Ramlal  Maitra (ILR  (37)  Calcutta  128) wherein  Chatterjee,J.   (at page 167) observed:-  "A  Hindu does  not  worship the "idol" or the material body  made  of clay  or  gold or other substance, as a mere glance  at  the mantras  and  prayers will show.  They worship  the  eternal spirit  of the deity or certain attributes of the same, in a suggestive  form,  which  is  used for  the  convenience  of contemplation  as  a  mere  symbol or  emblem.   It  is  the incantation  of  the mantras peculiar to a particular  deity that  causes  the manifestation or presence of the deity  or according to some, the gratification of the deity."

     God  is Omnipotent and Omniscient and its presence  is felt  not  by  reason of a particular form or image  but  by reason  of the presence of the omnipotent:  It is  formless,

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it is shapeless and it is for the benefit of the worshippers that  there is manifestation in images of the Supreme Being. ‘The  Supreme Being has no attribute, which consists of pure spirit and which is without a second being, i.e.  God is the only  Being existing in reality, there is no other being  in real  existence  excepting Him - (see in this context  Golap Chandra  Sarkar, Sastri’s Hindu Law:  8th Edn.).  It is  the human  concept  of the Lord of the Lords - it is  the  human vision  of  the Lord of the Lords:  How one sees the  deity: how  one  feels the deity and recognises the deity and  then establishes  the same in the temple upon however performance of the consecration ceremony.  Shastras do provide as to how to  consecrate  and  the usual ceremonies  of  Sankalpa  and Utsarga  shall have to be performed for proper and effective dedication  of  the property to a deity and in order  to  be termed as a juristic person.  In the conception of Debutter, two  essential  ideas are required to be performed:  In  the first  place,  the property which is dedicated to the  deity vests  in  an ideal sense in the deity itself as a  juristic person  and in the second place, the personality of the idol being  linked  up with natural personality of  the  shebait, being  the  manager  or being the Dharam karta  and  who  is entrusted   with  the  custody  of   the  idol  and  who  is responsible  otherwise  for preservation of the property  of the  idol.   The  Deva Pratistha Tatwa  of  Raghunandan  and Matsya  and  Devi Puranas though may not be uniform  in  its description  as  to how Pratistha or consecration  of  image does  take place but it is customary that the image is first carried to the Snan Mandap and thereafter the founder utters the  Sankalpa Mantra and upon completion thereof, the  image is  given  bath with Holy water, Ghee, Dahi, Honey and  Rose water  and  thereafter  the oblation to the sacred  fire  by which  the Pran Pratistha takes place and the eternal spirit is  infused  in that particular idol and the image  is  then taken  to  the  temple  itself and the  same  is  thereafter formally  dedicated to the deity.  A simple piece of wood or stone  may  become  the  image  or  idol  and  divinity   is attributed  to the same.  As noticed above, it is  formless, shapeless but it is the human concept of a particular divine existence which gives it the shape, the size and the colour. While  it  is true that the learned Single Judge has  quoted some  eminent  authors  but in our view the  same  does  not however,  lend any assistance to the matter in issue and the Principles  of Hindu Law seems to have been totally  misread by the learned Single Judge.  On the factual score there are temples-  In one there is ‘Jankijee’ and in the second there is  ‘Raja Rani’ but by no stretch of imagination, the  Deity can  be  termed  to  be in fake form  and  this  concept  of introduction of fake form, it appears is a misreading of the provisions  of  Hindu Law Texts.  What is required is  human consecration  and  in the event of fulfilment of rituals  of consecration,  Divinity  is presumed:  There cannot  be  any fake  deity:  whole concept of Hindu Law seems to have  been misplaced  by  the  High Court.  In more or less  a  similar situation  Patna  High  Court in the case  of  Shri  Lakshmi Narain  &  Ors  vs.  State of Bihar & Ors  (1978  BBCJ  489) observed:   .......................  "5.  In this court  Mr. Balbhadra  Pd.  Singh, learned counsel appearing in  support of  the  application,  strongly contended that  the  Revenue authorities have entirely misdirected themselves in allowing only  one  unit  to  the   petitioners  under  an  erroneous impression  that they being installed in only one temple and there  being only one document of endowment in their favour, they  could  not  get more than one unit.   Learned  counsel contended  that  as a matter of fact, all the  four  deities

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were  entitled  to  separate  units  in  their  own  rights, notwithstanding  the fact that no specified properties  were endowed  to them separately and that the endowment was  made in their favour jointly.

     9.  On consideration of the facts of this case and the relevant  position in point of law, I come to the conclusion that   all  the  four   petitioners  are  separate  jurisdic entities,  properties  being endowed to them just  like  any other  human  being.   Learned  counsel  appearing  for  the respondents rightly conceded that had it been a gift to four individuals,  they  were entitled to four  units  separately each  of  them being a ‘land-holder’ within the  meaning  of clause  (g)  of  Section  2 of the Act  and  entitled  to  a separate  unit.  If that be so, I do not see any reason  for taking  a view that the position should be different as  the beneficiaries  in  this  case are idols.  It  could  not  be conceded  that all the four petitioners would constitute one ‘family’  within  the meaning of section 2 (ee) of the  Act. The definition of ‘family’ in section 2 (ee) is as follows:-

     "  ‘  Family’ means and includes a person, his or  her spouse and minor children."

     Even  applying  the above rigid test laid down in  the Act,  the first two petitioners, namely, Shri Lakshmi Narain and  Shri Mahabirji must be treated as separate units.   And even  assuming  that  the fourth  petitioner,  namely,  Shri Parbatiji  is  considered  to  be  a  spouse  of  the  third petitioner  namely,  Shri  Shivajee, even  then  both  these petitioners  were entitled to one unit.  In that view of the matter,  the  petitioners  were entitled to at  least  three units, being in the same position of Hindu co-parceners and, therefore,  separate ‘land holder’ or "families" in the  eye of  law.   The  petitioners had, however, claimed  only  two units before the Revenue authorities.  It is, therefore, not possible  to  grant them any larger relief of more than  two units.   Their purpose also will be served if only two units are  allowed  to them as the surplus land declared  in  this case is a little over 20 acres only.

     It  is  needless  to  point   out  that  even   though admittedly there are two idols, but the learned Single Judge thought  it fit to ascribe one of them as fake, which in our view  is  wholly unwarranted an observation and the  finding devoid  of  any merit whatsoever.  Quotations  from  English Authors  unfortunately are totally misplaced and the meaning misappreciated.   The  quotes  are not appropriate  and  not apposite,  as  such  we   refrain  ourselves  from  dilating thereon.

     In  the view as above, The factum of two idols  cannot be  denied  and as such question of deprivation  of  another unit  to  the  second idol does not and  cannot  arise.   As regards  the  provisions  of the statute, be it  noted  that there is no amount of controversy involved that in the event there  are two idols capable of being ascribed of  juridical personality,  two units ought to be granted rather than  one as  has been effected by the learned Single Judge.  We  thus feel  it expedient to record that petitioner Nos.1 and 2 (or Thakur  Raja as the case may be) are entitled to  individual grant  and thus entitlement for two units to be noted in the

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records  of  the Government and exemption of 75  acres  Taal land only would be made available to the Petitioners and the balance  5 acres of land be made available to the Government and  the  State Government would be at liberty to deal  with the  above  noted five acres of land in accordance with  the law.  Since no other issue was raised before us.  The appeal is  allowed.   The order of the High Court stands set  aside and quashed.  No order however as to costs.