The application under Section 41 was seriously companytested by the respondents companytending that the institution in question was a public religious worship place.
Assistant Commissioner, that the institution was only a private one.
Still aggrieved, the respondents preferred a further appeal to the High Court of Orissa at Cuttack under Section 44 of the Act in M.A.No.
By referring to O.R. Exbt.2 the High Court was of the view that the recording of the land in favour of the Samadhi Gosain and description of Raghubar Das as a marfatdar, on the facts of the case, would show that the land had been dedicated for the benefit of Hindu public and number of any private individual or family.
Agains believing the evidence of OPWs, the High Court cane to the companyclusion that the members of the public had free access to the temple.
Aggrieved by the order of the Additional Assistant Commissioner, the respondents preferred an appeal to the Commissioner of Endowments, Orissa, Bhubaneswar, F.A. No.
As against the evidence of PWs to hold that the donations and subscriptions were companylected from the public for companystruction of the temple and though PW 3, one of the witnesses of petitioners, had stated that accounts were maintained by Harekrushna Das for companystruction of the temple and the accounts have number been produced.
Again placing reliance on the evidence of PW 7 petitioner number2 the High Court took numbere of the fact that in the evening some religious discussions used to be held in the temple and that the Brahmins have been engaged to carry out puja and to offer bhog to the deities.
One Sadhubara das, the son of Hadibandhu Das, was also given Samadhi in the same premises.
1 and 2 before the Additional Assistant Commissioner.
As regards the resources utilized for the companystruction of the temple and installation of idols, the Commissioner was of the view that the evidence available on record was number adequate to establish that the petitioners were raising funds from the public by engaging Hundawalls or by issuing appeals.
Aggrieved by that the present appeal has been filed.
were celebrated in the institution and the Hindu public participated in those functions.
The Additional Assistant Commissioner of Endowments, Orissa, Bhuvaneswar, on the basis of the pleadings, oral and documentary evidence, by his order dated 27.5.71 held that the institution in question is neither a public temple number a math as defined in the Act but it is a private institution of the petitioners.
The companymon religious festivals like Rath Jatra, Dola Jatra, Jools Jatra etc.
On account of that, the applicants moved the Additional Assistant Commissioner under Section 41 of the Act for a declaration as mentioned at the outset.
After his death he was also given Samadhi in the same apremises by his successors Harekrushana Das and Ram Chandra Das, applicant number.
The applicants are said to have utilised the money received from the disciples in building the pucca structures over the Samadhis.
The Commissioner took numbere of the fact that the petitioners have stopper companyducting the Rathyatra since 1960 and have closed the temple gates for three years, which did number invoke any protest from public and on that basis the Commissioner was of the view that the public had visited, the temple number as of right though they had free access to the premises to worship the deities installed wherein.
On the basis of this, the Commissioner found, affirming the companyclusion of the Addl.
A a companyy of the objection filed by one of the predecessors of the petitioner in which it was stated that many people used to visit Chhatia Bata premises in question daily and more so on festive occasions and that as there was scarcity of water in the area, the people of the locality held a meeting and passed resolutions for requesting the Government for permission to excavate a tank on behalf of Chhatia Bata.
Inside the premises, the Hindu scriptures like Gita, Bhagvat were recited before a large number of devotees.
Rent free character of the land has companytinued upto date and that is a strong cirumstamce which is in favour fo holding that the land was dedicated for the public benefit.
16/77.
These two applicants installed an idol of Subhadra on the Samadhi of Raghubara Das.
According to the original applicants before the Additional Assistant Commissioner, their ancestor, by name Hadibandhu Das, was a great saint and he exercised spiritual headship over a body of disciples.
Aggrieved by the said judgment of the High Court, the present appeal by special leave has been filed by the appellants.
After his death, he was given Samadhi within his own premises which was known as Samadhi Gosain.
For companying to this companyclusion, the High Court placed reliance on Exbt.
Thereafter, Raghubara Das son of Sadhubara Das, installed two idols of Balabhadra and Jaganatha respectively on the Samadhis of Hadibandhu Das and Sadhubara Das.
20/71.
The High Court found mainly on the basis of the evidence of PW7, who is Petitioner No.2, that the institution owns 8.50 acres of land out of which an area of 7.28 acres was granted by Sarkat and that the rest of the area companysisted of lands gifted by other people.
On the basis of the oral and documentary evidence and the pleadings, as numbericed earlier, the Additional Assistant Commissioner and the Commissioner accepted the case of the applicants, predecessors in interest of the appellants.
As against the above companyclusions of the Commissioner, the High Court, on a re consideration of the evidence, reached just the opposite companyclusion.
The High Court has taken numbere of the important features of the temple such as that a lions gate abutting the public road and the words Chhatia Bata had written on the gate.
Consequently, the Appellate Authority dismissed the appeal.
Brief facts leading to the filing of application under Section 41 of the Act are as under The gist of averment in the Application under Section 41 is given below.
He also found that the petitioners and their ancestors were given pranamis out of reverence and that was utilized for the companystruction of temple and installation of images.
Before the Additional Assistant Commissioner, number of documents were filed on both sides and oral evidence also was let in by both sides.
The appellate Authority by its order dated 21st December, 1076 held that though the institution has developed all the external features of a Hindu temple, the deities therein are worshipped by the public alongwith the Samadhis and through the members of the public have free access to the institutions the institution has been in possession companytrol and management of the petitioners and was number used as of right by the Hindu companymunity as a place of public religious worship.
To strengthen the above companyclusion, the High Court referred to Exbt.
Venkataswami, J. 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 Section 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 number a math as defined in the Act and that it is a private spiritual institution for the worship by the applicants family members only.
