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CASE NO.: Appeal (civil)  3563 of 2006

PETITIONER: State of West Bengal & Ors.                              

RESPONDENT: Sri Sri Lakshmi Janardan Thakur & Ors.                                                   

DATE OF JUDGMENT: 21/08/2006

BENCH: ARIJIT PASAYAT & LOKESHWAR SINGH PANTA

JUDGMENT: J U D G M E N T (Arising Out of S.L.P. (C) No.1613 of 2004)

ARIJIT PASAYAT, 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, 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:

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 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 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 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 O.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 of the Act before the appellate authority.  The appeal was

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registered as Appeal Case No. 52 of 2002. By order dated  31.5.2002 the appellate authority rejected the appeal and  confirmed the order passed by the Revenue Officer.   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 appellate authority for cogent  reasons based on solid and unassailable materials.

Challenging the said judgment of the Tribunal, a Writ  Petition was filed before the Calcutta High Court which was  registered as W.P.L.R.T. No. 101 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  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 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 different points of  time.  They themselves have accepted that the endowment was  of 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 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(1)(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  of the endowment.   Per adjudication of the controversy, certain provisions  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(1) is of significance  and reads as follows :

6.      "Right of intermediary to retain certain  lands \026 (1) Notwithstanding anything  contained in sections 4 and 5, an  intermediary 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 \026

(a) land comprised in homesteads:

(b) land comprised in or appertaining to

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buildings and structures owned by the  intermediary or by any person, not being a  tenant, holding under him by leave or  license.

Explanation.\027For the purposes of this  clause ’tenant’ shall not include a thika  tenant as defined in the Calcutta Thika  Tenancy 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)

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 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 by the State Government  subject to payment of compensation  determined in accordance with the  principles laid down in sections 23 and 24  of the Land Acquisition Act, 1894."

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 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:-

"(5) The lands owned by a trust or endowment  other than that of 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 purposes of this  Chapter.

Explanation. \027 The expression "author of  trust or endowment" shall include the  successors-in-interest of the author of such  trust or endowment.

(6) Notwithstanding anything contained in  sub-section (1), a trust or an institution of

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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".

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 \026 The line of  distinction between a public purpose and a  purpose which is not public is very thin and  technical and is difficult of an easy definition.  Tudor in the 5th edition of his book an  ’Charities’ thus summed up the principles  deducible from the cases on the subject:

"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 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 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 god, in which  the public are not interested, the endowment is a private one.  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 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:

(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

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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 that the temple along  with the properties attached to it is a public  trust: (1)     If the public visit the 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.  

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 learned single judge after referring to the  submissions made on behalf of the Deity noted as follows:

       "He submitted that as a matter of fact out  of the income of the Debutter properties  Educational Institutions and Dispensaries are  run by the Shebaits of the said Deity and the  said facts unmistakably point out that the  properties are utilized 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."

                                       (underlined for emphasis)

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

"This endowment of the said Sri Sri Laxmi  Janardan Thakur is absolutely debuttor 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."                                                  (Underlined 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 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

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learned Tribunal are bad, illegal and contrary  to law."

The order on which reliance has been placed by learned  counsel for the 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:

"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 consider the effect of the  order in the earlier writ petition, effect of the 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.