MARUA DEI ALIAS MAKU DEI Vs. MURALIDHAR NANDA

JUDGEMENT

(1.) This appeal by special leave arises out of proceedings taken by Harekrushana Das and Ram Chandra Das, predecessors-in-interest of the appellants herein, under S. 41 of the Orissa Hindu Religious Endowments Act, 1951 (hereinafter called the 'Act') for a declaration that the institution in question is neither a public temple nor a math as defined in the Act and that it is a private spiritual institution for the worship by the applicants' family members only. The application under S. 41 was seriously contested by the respondents contending that the institution in question was a public religious worship place. The Additional Assistant Commissioner of Endowments, Orissa, Bhubaneswar, on the basis of the pleadings, oral and documentary evidence, by his order dated 27-5-1971 held that the institution in question is neither a public temple nor a math as defined in the Act but it is a private institution of the petitioners. Aggrieved by the order of the Additional Assistant Commissioner, the respondents preferred an appeal to the Commissioner of Endowments, Orissa, Bhubaneswar, in F.A. No. 20/71. The Appellate Authority by its order dated 21st December, 1976 held that though the institution has developed all the external features of a Hindu temple, the deities therein are worshipped by the public along with the Samadhis and though the members of the public have free access to the institution, the institution has been in possession, control and management of the petitioners and was not used as of right by the Hindu community as a place of public religious worship. Consequently, the Appellate Authority dismissed the appeal.

(2.) Still aggrieved, the respondents preferred a further appeal to the High Court of Orissa at Cuttack under S. 44 of the Act in M.A. No. 16/77. The High Court in its detailed judgment dated 28-11-1979 after elaborate discussions held that the institution satisfied all the essential features of a public temple; that the members of the public visit the place without restriction and are in the habit of offering worship as of right, that the petitioners themselves held out and represented to the public that the institution is a public temple and that, therefore, the institution clearly falls within the definition of "temple" as given in the Act.

(3.) Aggrieved by the said judgment of the High Court, the present appeal by special leave has been filed by the appellants.