P.S. Kailasam, J.
1. This petition is filed by the President of the All India Sai Samaj for the issue of a writ of certiorari calling for the records of the Deputy Commissioner of Hindu Religious and Charitable Endowments (Administration) Department, Madras and to quash his order dated 8th September, 1965 in O.A. No. 30 of 1965.
2. The question that arises for consideration in this Writ Petition is whether the Sai Mandir, a place of worship constructed by the All India Sai Samaj is a Hindu religious institution coming within the purview of the Madras Hindu Religious and Charitable Endowments Act (XXII of 1959). The All India Sai Samaj was founded in 1941 and was registered under the Societies Registration Act in 1956. The objects of the Association are the propagation of faith in God with special reference to Sai Baba of Shirdi and His life, teachings, and mission, the diffusion of knowledge regarding Sai Baba, the arrangement of lectures, Bhajanas and Hardthis for Sai Baba and the construction of buildings for the aforesaid purposes. The Memorandum of Association of the Samaj shows that the Executive Committee, on the date of its registration consisted of a Muslim member. The membership of the Samaj included several Hindus, Christians, Parsis and Muslims who are devotees of Sai Baba. The Samaj had as its Vice President two Muslims for a number of years. It is admitted that membership of the Samaj is open to all adults irrespective of their religion. The All India Sai Samaj purchased the site in which the Sai Mandir is situated in its name and constructed the sanctum sanctorum in the year 1952. In addition to the Mandir, buildings for dispensary, reading room, library, book depot and printing press for the Samaj are also constructed. The Sai Mandir was consecrated to Sai Baba in 1953.
3. Respondents 2 and 5 became members of the Sai Samaj on 15th September, 1962, and respondents 3, 4 and 6 on 6th June, 1964. There were disputes regarding the management and in August, 1964, the respondents 2 to 6 filed an application O.A. No. 86 of 1964 before the first respondent, viz., the Deputy Commissioner for Hindu Religious and Charitable Endowments under Section 64 of the Madras Hindu Religious and Charitable Endowments Act for framing a scheme for the management of the Sai Mandir. The petitioner submitted that the Sai Mandir was cosmopolitan in its outlook and that the Mandir which is owned and administered by the Samaj is not a Hindu institution to which the provisions of the Madras Act XXII of 1959 was applicable. The petitioner prayed that the question whether the said Madras Act XXII of 1959 was applicable to the Sai Mandir may be considered as a preliminary issue in O.A. No. 86 of 1964. When the petition came up for hearing, learned Counsel for the petitioner at the instance of the first respondent added Section 63(a) of the Act as the section under which the petition may be considered. The Deputy Commissioner after considering the evidence held that the Sai Mandir is a Hindu Religious Institution to which the Madras Hindu Religious and Charitable Endowments Act will be applicable.
4. The contention on behalf of the petitioner is that the Sai Samaj is not a Hindu Religious Institution to which the Act is applicable. The learned Counsel for the respondents, apart from supporting the order of the first respondent, raised certain preliminary objections. He submitted that the petitioner had no locus standi to maintain this Writ Petition. Secondly, he contended that as the Act provides for the appeal and the filing of a suit, this petition should not be entertained. Thirdly, he submitted that as the decision of the first respondent is on an interlocutory matter, no writ petition is maintainable. In any event, it was contended that there was no error apparent on the face of the record.
5. Before considering the main question whether the Sai Mandir is a Hindu Religious Institution, the preliminary objections may be disposed of. It is common ground that the property in which the Sai Mandir is constructed was purchased in the name of Sai Samaj and under the rules of the Samaj, the properties of the Samaj and the administration and management of the affairs of the Samaj are vested in the Executive Committee of the Sai Samaj. Therefore, there can be no doubt that the All India Sai Samaj would be interested in contesting the petition filed by the respondents before the first respondent and preferring this writ petition. The objections that the petitioner has no locus standi has to be rejected.
6. The second contention is that the order of the Deputy Commissioner under Section 63 of the Act is subject to a right of appeal and suit under the Act and the alternate remedies have not been availed of. Section 69(1) of the Act provides for an appeal to the Commissioner and Section 10(1) of the Act confers on an aggrieved party, a right to file a suit. The contention on behalf of the petitioner is that the question is not one under Section 63 of the Act as to whether the institution is a religious institution or not; but the question is whether the institution is a Hindu Religious Institution to which the Act is applicable. If the Act is applicable, there can be no doubt that the petitioner should not normally be allowed to approach this Court by a writ petition before exhausting all the available remedies under the Act. But in this petition what is contended is that the provision of the Act is not applicable, as the institution is not a Hindu Religious Institution. If the contention of the petitioner is to be accepted, the first respondent will have no jurisdiction to entertain the petition. As the very applicability of the Act is questioned and as prima facie there is material to support the contention of the petitioner, the mere fact that an alternative remedy might have been pursued should not deprive the petitioner of his right to approach this Court under Article 226 of the Constitution of India. The objection that the order passed is an interlocutory order and that it should not be challenged in a writ petition is without substance because the question raised goes to the root of the matter as it involves a decision whether the Act is applicable or not.
7. The objection that there is no error apparent on the face of the record may be dealt with along with the main contention that the Act is not applicable. The All India Sai Samaj was founded in 1941. Membership was open to persons professing all faiths. It is common ground that Hindus, Parsis, Muslims and Christians are members of the Samaj. It is also not in dispute that in the Executive Committee, there was a Muslim and two Muslims acted as Vice Presidents of the Samaj for a number of years. The membership is open to all adults belonging to all faiths According to the Rules of the All India Sai Samaj, the only worship that could be carried in the Sai Mandir shall be that of Sai Baba's picture and no image of Sai Baba or of anyone also shall be admitted into the Mandir. Pictures of other Saints, Avatars or anyone else can only be kept in other parts of the Samaj, if the Executive Committee so decides. It is also found by the first respondent that at the time of the dedication of the temple, several rites which are performed in the consecration of a Hindu temple were performed. Brahmin priests perform the worship and Sahasranamam, Ashtothram and Harathi are performed. On these facts, it will have to be considered whether the finding of the first respondent that the Madras Hindu Religious and Charitable Endowments Act is applicable to this case can be sustained.
8. The preamble of Madras Act XXII of 1959 states that the Act is enacted to amend and consolidate the law relating to the administration and governance of Hindu Religious and Charitable Institutions and Endowments in the State of Madras. Section 1(3) of the Act provides that the Act is applicable to all Hindu public religious institutions and endowments except the incorporated Devaswoms and unincorporated Devaswoms. The preamble and Section 1 of the Act makes it clear that the Act is intended to govern all Hindu public religious institutions. Section 6(18) of the Act defines 'religious institution' as meaning a math, temple or specific endowment. It is not contended that the Sai Mandir is a math or a specific endowment. Section 6(20) of the Act defines 'temple' as a place by whatever designation known used as a place of public religious worship 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. In examining the scope of the definition of the word 'temple' a Bench of this Court held in State of Madras v. Seshachalam Chettiar Charities : (1960)2MLJ591 , as follows:
It seems clear to us that the very definition of temple in Section 6(17) of the Act postulates the test of exclusiveness. It will not be a temple at all as defined in Section 6(17) of the Act, if it is not dedicated for the benefit exclusively of the Hindu community or if it is not used as of right exclusively by the Hindu community. A place of public worship used as of right by members of all communities including the Hindus cannot be a temple as defined by Section 6(17).
In SRI Ramanasramam v. Commissioner, Hindu Religious and Charitable Endowments, Madras : AIR1961Mad265 , a Division Bench of this Court laid the test in the following terms:
In order to find out whether this institution falls within the scope of the Act, we must first of all determine the connotation of a temple which consists of the following componant parts, viz., firstly that it must be an exclusively Hindu institution and secondly, that it must be exclusively a place of Hindu public religious worship.
The definition of the word 'temple' as construed by the decisions cited above makes it clear that the place should be dedicated exclusively for the benefit of the Hindu Community and that it should be exclusively a place of Hindu public religious worship. It has to be considered in this case whether Sai Mandir satisfies these two tests. To reiterate the facts that All India Sai Samaj was founded in 1941 and it became a registered society in 1956. In the executive committee at it was constituted then, there was a Muslim member and two Muslims were the Vice Presidents of the Samaj for a number of years. The rules also provided that the only worship to be carried on in the Sai Mandir shall be that of Sai Baba's picture. The membership was open to all adults and in fact there were Muslims, Christians, Parsis and Hindus as members of the Samaj. The property was purchased by the All India Sai Samaj and the place was put up for propagation of faith in God with special reference to Sai Baba of Shirdi and His life, teachings, and mission. The Sai Mandir was erected by the Sai Samaj with the funds of the Samaj and the subscriptions collected by them. From the facts it is clear that the All India Sai Samaj is a cosmopolitan institution where membership is open to all communities and governed by members belonging to all communities. The purpose is for worship of Sai Baba, whose devotees belong to all religions. The inference, therefore, is irresistible that the Sai Mandir does not satisfy the two tests, viz, that it is exclusively dedicated for worship by Hindus, or that it is a place exclusively for Hindu public religious worship.
9. While accepting the facts, the Deputy Commissioner has come to the Conclusion that Sai Mandir is a Hindu Religious Institution mainly on the ground that the Mandir was dedicated to the public and that there was no evidence that Narasimhaswamiji who is a promoter of the All India Sai Samaj intended not to throw open the suit Mandir to the Hindu public. The Deputy Commissioner proceeds to discuss the evidence and concludes that the rituals conducted were in accordance with the Hindu Sastras and therefore it should be concluded that the dedication of the Mandir is to the Hindu public. The conclusion arrived at by the Deputy Commissioner is erroneous on the face of the record. The Deputy Commissioner is in error in stating that the founder of the suit Mandir is Narasimhaswamiji and not the All India Sai Samaj. The records show that the properties were purchased by the All India Sai Samaj and that the Sai Samaj constructed the Mandir and that property continues to be in the name of the Sai Samaj. The Deputy Commissioner has failed to take note of the fact that the All India Sai Samaj was a cosmopolitan institution having in its roll members belonging to all religions. From the mere fact that when the Sai Mandir was consecrated, certain rituals which are usually performed in Hindu temples were performed would not in any way establish that the Mandir is a Hindu temple. It has to be noted that there is no Prathishta as there is no idol. The worship is only of that of Sai Baba's picture and the mere fact that certain humans were performed would not prove that the Mandir was dedicated exclusively to the Hindu public. It may be noted that the Deputy Commissioner has observed that 'there is no evidence that the intention of Narasimhaswamiji then was not to throw open the suit Mandir to the Hindu public.' But in the end, he finds that it had been proved that the dedication of the Sai Mandir is to the Hindu public. This conclusion is not borne out by the record and is contrary to the facts established in this case and has to be rejected. The Deputy Commissioner also relied on the fact that the wordhip in the Mandir is conducted according to Hindu form by Brahmin priests. This would not in any way satisfy the requirements that the place should be one of worship exclusively by the Hindu public. Persons professing other religions also as of right worship in the shrine though the Hindu form of worship is conducted by Brahim priests. On the records, there is no material for the Deputy Commissioner to come to the conclusion that the Sai Mandir is a Hindu Religious Institution. The order is vitiated by a material error apparent on the face of the record. This petition is therefore allowed and the order of the Deputy Commissioner, Hindu Religious and Charitable Endowments, Madras is quashed. Respondents 2 to 6 will pay the costs of the petitioner, viz., Rs. 250.