The Deputy Commissioner Of Endowments, Hyderabad And 2 Others v. Saibaba Samsthanam .

Jagannadha Rao, J.:— The point for decision in this writ appeal is whether the Temple of Sri Sai Baba of Shirdi at Chaderghat, Hyderabad is one in respect of which the authorities under the Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act, 1987 (hereinafter called the Act) have jurisdiction? The learned single Judge had allowed W.P No. 17487 of 1987 dated 14-6-1990 following the judgments of the Madras High Court in All India Sai Samaj v. Deputy Commissioner for H.R and C.E, (1967) 2 Mad LJ 618 and another judgment of the Madras High Court in S. Kannan v. All India Sai Samaj, (1974) 1 Mad LJ 174 and held that the Act did not apply to a similar Temple of Sai Baba of Shirdi, located in another part of Hyderabad. Following his own judgment in W.P No. 17487/87, the learned Judge allowed the Writ Petition Out of which this writ appeal arises. No counter was filed in the writ petition. We have heard the learned Advocate General and the learned counsel for the respondent writ petitioner. The first contention is that against the order of the Deputy Commissioner under Ss. 45 and 87, an appeal lay under S. 88 to the District Court and that interference in writ jurisdiction is not called for. We may point out that a similar objection was raised before Kailasam, J. (as he then was) in All India Sai Samaj v. Deputy Commissioner for H.R and C.E unsuccessfully and on further appeal, the Division Bench of the Madras High Court in S. Kannan v. All India Sai Samaj, also overruled a similar objection. As the point raised in the writ petition relates to the very applicability of the Act and touches upon the jurisdiction of the authorities, we overrule the objection raised by the learned Advocate General in this case too.

2. Before going into the question as, to who Sri Shirdi, Sai Baba was and what he preached, we would refer to the provisions of the Act. The Act is called the A.P Charitable and Hindu Religious Institutions and Endowments Act, 1987, Sec. 1(3)(a) states that it applied to all public charitable institutions and endowments whether registered or not, other than Wakfs governed by the provisions of the Wakf Act, 1954. There is an explanation to this clause which says that the expression ‘public charitable institution and endowments’ shall include every charitable institution or endowment the administration of which is for the time being vested in any department of Government, or Civil Court, Zilla Parishad, Municipality or Local authority or any company, society or organisation, institution or other person. We are not concerned with S. 1(3)(a) which relates to charities. We are concerned here with S. 1(3)(b) which states that the Act applies to,

“all Hindu public religious institution and endowment whether registered or not in accordance with the provisions of the Act.”

In Urumu Seshachalam Chettiar Charities, Tiruchirapalli v. State of Madras, W.P No. 1034 of 1957, Balakrishna Aiyer, J. held that the absence of the word ‘exclusively’ in the definition in the Madras, Act, 1951 did not matter and that the word ‘Hindu Religious Institution and Endowments’ occurring in the title and the preamble meant that the religious institution or endowment must be exclusively ‘Hindu’. The judgment was affirmed instate of Madras v. Urumu Seshachalam Chettiar Charities, (1960) 2 Mad LJ 591 : (1960) 73 Mad L.W 794 by a Division Bench consisting of Rajagopalan and Srinrvasan, JJ. That view was again followed by Kailasam, J. (as he then was) in. All India Sai Samaj v. Deputy Commissioner, H.R and C.E, ((1967) 2 Mad LJ 618) and by the Division Bench in S. Kannan v. All India Sai Samaj, ((1974) Mad LJ 174) consisting of Veeraswami, C.J and V.V Raghavan, J. The view of Balakrishna Iyer, J. was also approved by another Division Bench in Ramanasramam v. Commissioner, H.R and C.E, AIR 1961 Mad 265 : (1960) 2 Mad LJ 121 which relates to the ashram of Sri Bhagwan Ramana Maharishi. We respectfully follow the above rulings and hold that the Act here applies to a religious institution or endowment provided it is an exclusively Hindu institution or endowment and not otherwise.

3. Who is Sri Sai Baba of Shirdi and what religion did he propagate is the next question. There is some discussion on this subject in the judgment of Kailasam, J. as well as the judgment of Veeraswami, C.J and V.V Ragliavan, J. but we would like to refer to some more details as stated in ‘Life of Sai Baba’ (Vols. 1 to 4) by H.H.B.V Narasirhha Swamiji; ‘Charters and Saying of Sai Baba’ by same author; ‘Jai Satcharitra’ by Anna Saheb Dhabolkar translated by Sri N.V Gunaji; ‘The Incredible Sai Baba’ by Arthur Osborne; Sai Leela Magazine published by Shirdi Samsthan; Sanathan, Sarathi published by Satya Sai Books and Publications Trust, Prashanthi Nilayarh, Puttaparthi (A.P), etc.

4. Sai Baba of Shirdi revealed to Mahlsapathi that his parents were brahmins of Patri, in Parbhani Taluk of the former State of Hyderabad, that while still a tender child, his parents handed him over to the care of a Moilarh fakir who brought him up. Sai Baba occasionally showed interest whenever people from Patri and Parthani visited Shirdi. The fakir who brought him up passed away within four or five years after Sai Baba came under his tutelage and on his; direction, his wife Handed over Baba to Sri Gopal Rao Deshmukh of Selu a saintly man who was a great devotee of Lord Venkateswara and who was the Zamindar of Jintar Pargana. Sri Gopal Rao has been described by Baba occasionally as ‘Venkusa’. Thus Sai Baba came under the influence of a Moslem fakir as well as a Hindu saint. It is said that earlier when Gopal Rao went to Ahmedabad once it was revealed to him at the tomb of Suvag Shah that he (Gopal Rao), was formerly Swami Ramanand of Benares in his previous birth and that his former devotee Kabir would corning to him soon, it was only after this that young Baba was brought to Gopal Rao by the fakir's wife (Life of Sai Baba vol. 1,) by H.H.B.V Narasimha Swamiji (Pp. 10 to 18). Once when Baba was examined on commission as a witness, he described himself as belonging to the creed or religion of ‘Kabir’. It is also stated in ‘Sai Satcharitra’ of Dhabholkar (p. 39) that Mahlsapathi, an intimate devotee of Baba, who slept by the side of Baba in the masjid and chavadi, said that Sai. Baba told him that he was brahmin of Patri and was handed over to a fakir, in his infancy (vide also Sai Leela, 1924, p. 179). According to Swami Sai Sharan Anand, (formerly known as Vaman Prangovind Patel, Solicitor who took to Sanyasa) Sai Baba told him that he (Baba) was born at Pathri in a family of Yajurvedi Brahmins and he left the household, at a tender age, travelled along the banks of Godavari, and reacted with sufis. (Sai Leela, Feb. 1990, p. 8). In Sai Leela, (Oct., 1989 p. 25 to 34) apart from a reference to the above a reference is made to certain details given by Sri Satya Sai Baba. We have a more detailed account of this in a recent speech of Sri Satya Sai Baba that Sai Baba of Shirdi was born on 28-9-1835 at Pathri village, that Lord Shankar was born as Sai Baba to Devagiramma and Gangabhava, in response to their prayers, that when they left for tapas to the forests, a Sufi. Saint protected the child from 1835 to 1839 and after the death of the Fakir, his wife handed him over to ‘Venkusa’ (Gopal Rao) where Baba remained from 1839 to 1851, then he reached Shirdi, stayed for two months, and after moving about here and, there, reached Dhupkeda and again reached Shirdi with the marriage party of Ghand Patilin 1853. Baba stayed at Shirdi till his demise in October, 1918 (Sanathan Saradhi, October, 1990 — p. 281). Thus it will be seen that from child-hood Sai Baba was guided by moslem fakirs and sufis in Koran and later by Venkusa in Hindu religion.

5. At Snirdi, Sai Baba was staying at two places, the one was called Chavadi and the other, the Mosque. The Hindus worshipped Baba in his mosque, which Baba called ‘Dwarkamayee’ and even described it as a ‘Brahmin's mosque’. Baba was a heterodox Muslim as he permitted portraits of Hindu Gods and images in the mosque Gokul Ashtami and Ram Navami were celebrated in the mosque as well as the Urs and Sandal functions. Chandan paste and scrappings were put in Thali (flat dishas) and carried with incense burning, in a procession and thrown on the Nimbar and walls of the masjid. Baba frequently recited Koran to his Moslem devotees and also referred to Hindu scriptures and puranas including Ramayan and Bhagavadgita and Vishnu Sahasranama. Just as he expounded Koran to his Muslim devotees, he explained the inner meaning of various sanskrit texts. In particular he humbled his devotee Shama who was proud of his Sanskrit and explained to him the deeper significance of the words used by Lord Krishna in Gita Ghapter IV, 34. At night, Baba went often to the takia, the resting place for visiting Muslims. He would sing songs mostly of Kabir or songs in Persian and Arabic. He however, seldom performed the five Namazes and never was bending on his knees, as moslems do. He would say ‘Alia Malik’ meaning thereby he was the servant of God. He never made any invidious distinction between Hindu, and Muslim places of worship. He used to visit the Khandoba and Maruthi temples at Shirdi and the houses of his muslim devotees as well. However, his being bedaubed with sandal-paste on his forehead by Hindu devotees struck the muslims as unorthodox but they did not object to it. Hindu's, in fact, revered him as a reincarnation of Dattatraya. Baba is also supposed to have revealed himself as Rama. Vittal of Pandaripur and so on.

6. He looked both a Hindu and a Muslim. One cannot say that he was a Mahomedan for his ears were pierced as per Hindu custom. But he advocated the practice of circumscision as Moslems do. He lived in the Masjid but yet had a perpetual sacred ‘Dhuni’ (or agnihotram) burning night and day. He allowed blowing of conch, ringing bells as in a temple, washing of his feet etc. The fusion of Hindu and Muslim in him was perfect and he propagated both religions. Baba had a large following of Moslem devotees such as Amir Shakkar Dalai, Haji Sidik Falke, Ali Mohd., Mbulana Ismu Mujavur, Imam Bhai Chote Khan, Abdul, Abdul Rahim Rangari, Adam Dalali, Abdulla Jan and others. The Parsi was one Rattonji Wadia, among Christians, one could list Chakra Narain. (See Life of Sai Baba, Vol. III by H.H Narasimha Swamiji, pp. 151 to 186; 204). Abdul's unpublished works in Urdu would reveal that Sai Baba had profound knowledge of Islamic religion, Sufism, the Koran Sira (life of Mohamed), Sunna (Code of Conduct), hadith (traditions), fakah (dharmasastra), shariat, the tarikat etc. and works of Sufi Shaiks of orders like Kadaria, Chistia, Suhrawardiya and Nakshbandietc. (Sai Leela, Feb. 1990, pp. 10-11). Baba also honoured Bade Baba whose real name was Peer Mohommed.

7. There is a strange parallel between what happened at Baba's demise and Kabir's whose incarnation he was supposed to be. After Baba's demise on Vijayadasami day in October, 1918, there was a dispute between the Hindu and Muslim devotees as to what should be done to his remains. After prolonged negotiations, a referendum was held and there was a concensus that his mortal remains should be placed in the Booty Wada, where originally a statue of Lord Krishna was to be (Sai Satcharita, Vol. XLIII and XLIV, p. 237). On the death of Kabir too Hindus and Moslems quarelled, it is said, Kabir appeared before them and asked them to lift the shroud and look at that which lay beneath. They did so and found a heap of flowers, half of which were buried by the Moslems at Maghai and the other half was carried by Hindus to Benares to be buried. (See Poems of Kabir by Tagore, Introduction, p. XIX).

8. Baba's philosophy was neither exclusively Hindu nor Moslem nor Christian. He impressed on his devotees that there was no truth other than, God and the world is God's manifestation. God is not bound by fetters of caste, creed or religion. He is not residing in the mosque nor temple alone. God is found in all human beings including the animals. He advocated service to God and kindness to animals. He disapproved fastings, rituals and rigours of religious practices. Easy way of following religion was to love and serve others. He expounded secrets of rebirth and karma. He preached harmony of all religions and his life was itself a blend of various religions. A Hindu Revenue Inspector gave Baba stones for construction of the mosque and Baba used them to construct temples at Shirdi. Then the Hindu collected thousands of rupees to construct the Mosque. The Masjid contained the ‘niche’ on the Western wall called ‘Nimbar’ representing the ‘Kaba’ of Mecca to which all muslims would turn in prayer and there was there also the Dhuni, the perpetual fire, with its sacred ashes, a platform round the sacred Tulasi for pradakshina and a garlanded portrait of Baba for pooja and Hindu scriptures were read by day and koran by the night. (Sai Leela, October, 1988 Pp. 4, 5).

9. Kabir's poem, given below, symbolised the philosophy of Sai Baba: (III-2, Jo Khoda Masjid vasat hai) (Kabir's poems, by Tagore, p. 72) (see also Sai Leela, April, 1989, p. 27).

“If God be within the mosque, then to whom does this world belong?

If Ram be within the image which you find upon your pilgrimage, then who is there to know what-happens without?

Hari is in the East: Allah is in the West — Look within your heart, for there you will find both Karim and Ram.

All the men and women of the world are His living forms,

Kabir is the child of Allah and of Ram; He is my Guru. He is my Pir.”

10. A reésumeé of Shirdi Sai Baba's birth, life and philosophy, will therefore, affirm, as noted by the Madras High Court in the decisions earlier mentioned that any temple and Mandir of his, cannot be treated as an ‘exclusive’ Hindu institution or endowment. In fact, Kailasam, J. (as he then was) said in All India Sai Samaj v. Deputy Commissioner, H.R and C.E, (1967) 2 Mad LJ 618) that the devotees of Sai Baba ‘belong to all religions’ that from the mere fact that certain rituals which are usually performed in Hindu temples by Hindu Prists are performed does not establish that the place is a Hindu temple, that ‘persons professing other religions also as of right to worship in the shrine. In the appeal, Veeraswami, C.J and V.V Raghawan, J. held in S. Kannan v. All India Sai Samaj, ((1974) 1 Mad LJ 174), that the fact that there was yantra stapanam, homam, kumbabhishekham, archana, Ashtotrams, Sahasranamams performed by Hindu Priests or flowers being offered and coconuts being broken and prasadams being given, did not make the Mandir a Hindu temple. They referred to the case of Ramanasramam v. Commissioner, H.R and C.E (AIR 1961 Mad 265), where it was held that the institution there was a ‘composite’ institution and was open to devotees of all religions and hence the corresponding Madras Act, 1959 was not applicable. It was held that though Hinduism is a pervasive creed, with a genius for the assimilation of protestant movements which sprang up from its own field, the founder's message and intention was that the institution was to be of a universal character. It was a shrine to which all were drawn by the Maharshi's teachings, whether Hindu, Christian, Parsee or Muslim. The fact that certain rituals as performed in Hindu temples did not matter.

We are of the view that the above rulings are apposite in the present context. It appears to us that to say that a temple or Mandir dedicated to Shirdi Sai Baba is to be treated as an exclusively Hindu temple would be a grave contradiction and a negation of the composite religion of universal character which the Saint had preached during his lifetime.

11. We have already stated that the Madras High Court in All India Sai Samaj's case ((1967) 2 Mad LJ 618) rejected the objection relating to there being an alter: native remedy of appeal under S. 88 of the Act. Following the same, we have already rejected the plea of alternative remedy. We are here concerned with a question of jurisdiction or the very applicability of the Act. It would of course be open to the appellant to proceed under S. 92 of the Code of Civil Procedure.

12. In the present case, the writ petitioner (respondent) is a Society registered under the A.P (Telangana Area) Public Societies Registration Act, bearing No. 1844/84 of 1984. The aims and objects of the society include the development of Shri Sai Baba Samsthanam. Originally a temporary idol of Shirdi Sai Baba was installed in the place and thereafter a group of persons started construction of the Mandir with donations. It is said that the elected body has undertaken construction of the Mandir and has ordered for a marble idol of Shri Sai Baba from Anand Kala Niketan, Jaipur for Rs. 80,000/-. In the meantime, the Assistant Commissioner, Endowments, Hyderabad issued proceedings dated 26-6-1987 appointing one G. Parameshwar Rao, Inspector, New City I, as sole trustee, as the Samsthan was notified under S. 6(c)(ii) of the A.P Act 17/1966, which preceded the present Act of 1987. In the said public notification the institution is described as ‘Gayatri Devi and Sai Baba’ Temple. Questioning the said registration and appointment of sole-trustee, the writ petitioner filed O.A 51/1987 stating that the proceedings were issued without notice to the writ petitioner. It was also contended that the Act did not apply. A declaration was sought that the Act does not apply and that the order dated 26-6-1987 may be withdrawn. An I.A was filed under S. 87(9) to declare that the Act does not apply to the Shirdi Sai Temple and that the other temple of Gayatri Devi is an independent temple to which the Act applied. While so, on 17-11-1988 the Assistant Commissioner issued notice to constitute a non-hereditary trust-board of the Samsthanam for both temples. Questioning the said notice, the writ petitioner filed another O.A and stay was granted by the Deputy Commissioner. The writ petitioner applied for copy and without giving copy, the Assistant Commissioner issued proceedings dated 8-3-1989 stating that non-hereditary trust board is constituted for the Shri Gayatri temple and Shri Sai Baba temple for a period of three years. It is said that no notice was given before constitution of the trust board. The writ petition was filed on 25-4-1989. In the writ petition, the appellants did not file any counter. After the writ petition was allowed on 29-8-1990, questioning the orders dated 8-3-1989 and granting a declaration that the Act was not applicable, the present appeal is filed on 1-10-1990, mentioning that O.A No. 51/1987 was disposed of by the Deputy Commissioner on 28-4-1990 and that the writ petitioner should have filed an appeal under S. 88. We have gone through the file and find that as per the detailed plan, the Shirdi Sai Baba Temple is a separate entity and the Gayatri Temple is an independent temple.

13. We have already considered the facts and the legal position relevant for the purpose of disposal of this case in detail in the foregoing paragraphs.

14. For all the aforesaid reasons, it is therefore declared that the Act does not apply to the Temple of Shirdi Sai Baba as the same is not an exclusive Hindu institution or endowment and accordingly, the authorities under the Act have no jurisdiction to pass any order, much less orders of appointment of a trustee or non-hereditary trust board. Accordingly all the orders passed by the authorities i.e either on 26-6-1987, 17-11-1988, 8-3-1989 of the Assistant Commissioner or 28-4-1990 of the Deputy Commissioner are declared illegal and without jurisdiction. This will not preclude initiation of action under S. 92, C.P.C These directions shall not affect the action taken so far as the Gayatri Devi Temple is concerned.

The writ appeal is dismissed. There will be no order as to costs.

Appeal dismissed.