Judicial Dictionary

Meaning of a Word or Phrase as defined by a Competent Court

Cognizance means

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In Gopal Das Sindhi and Ors. v. State of Assam and Anr. (AIR 1961 SC 986) it was observed as follows :

“When the complaint was received by Mr. Thomas on August 3, 1957, his order, which we have already quoted, clearly indicates that he did not take cognizance of the offences mentioned in the complaint but had sent the complaint under Section 156(3) of the Cr.P.C. to the Officer Incharge of Police Station Gauhati for investigation. Section 156(3) states “Any Magistrate empowered under section 190 may order such investigation as above-mentioned”. Mr. Thomas was certainly a Magistrate empowered to take cognizance under Section 190 and he was empowered to take cognizance of an offence upon receiving a complaint. He, however, decided not to take cognizance but to send the complaint to the police for investigation as Sections 147, 342 and 448 were cognizable offences. It was, however, urged that once a complaint was filed the Magistrate was bound to take cognizance and proceed under Chapter XVI of the Cr.P.C. It is clear, however, that Chapter XVI would come into play only if the Magistrate had taken cognizance of an offence on the complaint filed before him, because Section 200 states that a Magistrate taking cognizance of an offence on complaint shall at once examine the complainant and the witnesses present, if any, upon oath and the substance of the examination shall be reduced to writing and shall be signed by the complainant and the witnesses and also by the Magistrate.

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Performance bond and performance guarantee

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Supreme Court in United Commercial Bank case, (1981) 3 SCR 300 . There A.P. Sen, J. speaking for the Court, said (pages 323 and 324):

The rule is well established that a bank issuing or confirming a letter of credit is not concerned with the underlying contract between the buyer and seller. Duties of a bank under a letter of credit are created by the document itself, but in any case it has the power and is subject to the limitations which are given or imposed by it, in the absence of the appropriate provisions in the letter of credit.

It is somewhat unfortunate that the High Court should have granted a temporary injunction, as it has been done in this case, to restrain the appellant from making a recall of the amount of ` 85,84,456 from the Bank of India in terms of the letter of guarantee or indemnity executed by it. The courts usually refrain from granting injunction to restrain the performance of the contractual obligations arising out of a letter of credit or a bank guarantee between one bank and another. If such temporary injunctions were to be granted in a transaction between a banker and a banker, restraining a bank from recalling the amount due when payment is made under reserve to another bank or in terms of the letter of guarantee or credit executed by it, the whole banking system in the country would fail.

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Letter of credit

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In Tarapore & Co. Madras v. V/o Tractors Export, Moscow and Anr., (1969) 2 SCR 920 supreme Court observed that irrevocable letter of credit had a definite implication. It was independent of and unqualified by the contract of sale or other underlying transactions. It was a mechanism of great importance in international trade and any interference with that mechanism was bound to have serious repercussions on the international trade of this country. The Court reiterated that the autonomy of an irrevocable letter of credit was entitled to protection and except in very exceptional circumstances courts should not interfere with that autonomy.

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Possession Lawful in case of tenancy

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In  M. C. Chockalingam & Ors v. V. Manickavasagam 1974 (1) SCC 48, where it was held inter alia, that:

“Lawful possession cannot be established without the concomitant existence of a lawful relationship between the landlord and the tenant. This relationship cannot be established without the concomitant existence of a lawful relationship between the landlord and the tenant. This relationship cannot be established against the consent of the landlord unless, however, in view of a special law, his consent becomes irrelevant. Lawful possession is not litigious possession and must have some foundation in a legal right to possess the property which cannot be equated with a temporary right to enforce recovery of the property in case a person is wrongfully or forcibly dispossessed from it”.

In  East India Hotels Ltd. -v- Syndicate Bank, 1992 (Supl2) SCC 29, where it was held that:

“Those cases deal with tenants holding over after the expiry of the term of lease and such possession after holding over is entirely different from the case of a licensee remaining in occupation after the expiry of the term of licence. The position of such licensee is not better than a trespasser and if the true owner comes into possession of the premises without using any force or on account of fire or other act of vis major, in my view it would not be in the interest of justice to grant a decree for possession in favour of such licensee under Section 6 of the Act.”

Established means

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Article 30(1) of the Constitution of India has since long been the subject matter of scrutiny and exposition in a number of decisions of the Hon’ble Supreme Court. In Azeez Basha -vrs. Union of India : AIR 1968 SC 662, it has been held:

“(19) xx xx xx xx xx It is to our mind quite clear that Article 30 (1) postulates that the religious community will have the right to establish and administer educational institutions of their choice meaning thereby that where a religious minority establishes an educational institution, it will have the right to administer that. An argument has been raised to the effect that even though the religious minority may not have established the educational institution, it will have the right to administer it, if by some process it had been administering the same before the Constitution came into force. We are not prepared to accept this argument. The Article in our opinion clearly shows that the minority will have the right to administer educational institutions of their choice provided they have established them, but not otherwise. The Article cannot be read to mean that even if the educational institution has been established by somebody else, any religious minority would have the right to administer it because, for some reason or other, it might have been administering it before the Constitution came into force. The words “establish and administer” in the Article must be read conjunctively and so read it gives the right to the minority to administer an educational institution provided it has been established by it.

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Private vs Public Endowment

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The principles of law for determination of the question whether an endowment is public or private are fairly well-settled. This Court observed in Deoki Nandan v. Murlidhar, (1956) SCR 756 as follows:-

“The distinction between a private and a public trust is that whereas in the former the beneficiaries are specific individuals, in the latter, they are the general public or a class thereof. While in the former the beneficiaries are persons who are ascertained, or capable of being ascertained, in the latter they constitute a body which is incapable of ascertainment.”

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Idol and endowment

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An idol is a jurisitic person capable of holding property. The property endowed to it vests in it but the idol has no beneficial interest in the endowment. The beneficiaries are the worshippers. Dedication may be made orally or can be inferred from the conduct or from a given set of facts and circumstances. There need not be a document to evidence dedication to the public. The consciousness of the manager of the TEMPLE or the devotees as to the public character of the TEMPLE; gift of properties by the public or grant by the ruler or Govt.; and long use by the public as of right to worship in the TEMPLE are relevant facts drawing a presumption strongly in favour of the view that the TEMPLE is a public TEMPLE.

The true character of the TEMPLE may be decided by taking into consideration diverse circumstances Though the MANAGEMENT of a TEMPLE by the members of the family for a long time, is a factor in favour of the view that the TEMPLE is a private TEMPLE it is not conclusive. It requires to be considered in the light of other facts or circumstances. Internal MANAGEMENT of the TEMPLE is a mode of orderly discipline or the devotees are allowed to enter into the TEMPLE to worship at particular time or after some duration or after the head man leaves, the TEMPLE are not conclusive. The nature of the TEMPLE and its location are also relevant facts. The right of the public to worship in the TEMPLE is a matter of inference.

Dedication to the public may be proved by evidence or by circumstances obtainable in given facts and circumstances. In given set of facts, it is not possible to prove actual dedication which may be inferred on the proved facts that place of public religious worship has been used as of right by the general public or a section thereof as such place without let or hindrance. In a public debutter or endowment, the dedication is for the use or benefit of the public. But in a private endowment when property is set apart for the worship of the family idol, the public are not interested. The mere fact that the MANAGEMENT has been in the hands of the members of the family itself is not a circumstance to a conclude that the TEMPLE is a private trust.

In a given case MANAGEMENT by the members of the family may give rise to an inference that the TEMPLE is impressed with the character of a private TEMPLE and assumes importance in the absence of an express dedication through a document. As stated earlier, consciousness of the manager or the devotees in the user by the public must be as of right. If the general public have always made use of the TEMPLE for the public worship and devotion in the same way as they do in other TEMPLEs, it is a strong circumstance in favour of the conclusiveness of public TEMPLE. The origin of the TEMPLE, when lost in antiquity it is difficult to prove dedication to public worship. It must be inferred only from the proved facts and circumstances of a given case. No set of general principles could be laid.[AIR 1995 SC 167 : (1994) 2 Suppl. SCR 687 : (1995) 1 Suppl. SCC 485 : JT 1994 (5) SC 152 : (1994) 3 SCALE 796]

 

Public temple or private temple test

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Deoki Nandan v. Murlidhar, (1956) SCR 756, is a leading judgment of Supreme Court by a Bench of four Judges. In that case the facts found were that one Sheo Ghulam, a pious childless Hindu, constructed Thakurdwara of Sri Radhakrishnaji in Balasia village of District Sitapur. He was in MANAGEMENT of the TEMPLE till his death. He executed a ‘Will’ bequeathing all his properties to the TEMPLE and made provisions for its proper MANAGEMENT. The question arose whether the TEMPLE was dedicated to the public and whether the TEMPLE was a public or private TEMPLE. supreme court laid down that the issue whether the religious endowment as a public or a private is a mixed question of law and facts, the decision of which must be taken on the application of the legal concepts of public and private endowment to the facts found and it is open to consideration of apex Court. The distinction between a private or a public endowment is that whereas in the former the beneficiaries are specific individuals, in the latter they are the general public or a class thereof. An idol is a juristic person capable of holding properties. The properties endowed for the TEMPLE vest in it, but the idol has no beneficial interest in the endowment. The true beneficiaries are its worshipers. On facts it was found that the TEMPLE was a public TEMPLE.

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Temple and Public trust

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The main question that needs decision is whether Kalika Mataji TEMPLE is a TEMPLE within the meaning of S.2(17) and a Public Trust under S.2(13) of the Act. TEMPLE has been defined in S.2 (17) of the Act, which reads thus:

“TEMPLE” means a place by whatever designation known and used as place of public religious worship and dedicated to or for the benefit of or used as of right by the Hindu community or any section thereof as place of public religious worship.” and Public Trust has been defined in S.2(13) thereof which reads as under:

“ “Public trust” means an express or constructive trust for either a public religious or charitable purpose or both and includes a TEMPLE, a math, a wakf, a dharmada or any other religious or charitable endowment and a society formed either for a religious or charitable purpose or for both and registered under the Societies Registration Act, 1860.”

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Public interest and Temple Management

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The scope and ambit of a public interest litigation in the matter of MANAGEMENT of a TEMPLE, governed by the provisions of a statutory enactment, came up for consideration of this Court in Guruvayoor Devaswom Managing Committee vs. C. K. Rajan, (2003) 7 SCC 546. It was, inter alia, held as follows :

“When the administration of the TEMPLE is within its control and it exercises the said power in terms of a statute, the State, it is expected, normally would itself probe into the alleged irregularities. If the State through its machinery as provided for in one Act can arrive at the requi-site finding of fact for the purpose of remedying the defects, it may not find it necessary to take recourse to the remedies provided for in another statute. It is trite that recourse to a provision to another statute may be resorted to when the State finds that its powers under the Act governing the field is inadequate. The High Courts and the Supreme Court would not ordinarily issue a writ of mandamus directing the State to carry out its statutory functions in a particular manner. Normally, the Courts would ask the State to perform its statutory functions, if necessary within a time frame and undoubtedly as and when an order is passed by the State in exercise of its power under the Statute, it will examine the correctness or legality thereof by way of judicial review.”