1. This case comes before me on a difference of opinion between Khan. J. and Shiv Dayal, J. on the construction of Section 30 of Riyasat Gwalior Ki Paristishgabori Aur Mazhabi Aukaf Ki Imdad Aur Niggrani Ka Quanoon of Samvat 1983 (hereinafter called the Gwalior Act) and the interpretation of the Durbar Order, dated 10th August 1939.
2. The facts of the case, briefly stated, arc these. There is a temple of Kali Mata at village Basaiya in Morena district which is famous as Basaiya Mata Temple. It was established in the year 1903 by Mahant Rajpuri who, upon his death, was succeeded by his Chela Kundanpuri. On the death of Kundanpuri in 1919, his Chela Tejpuri succeeded him as the Mahant, Since there were disputes between him and the Pujaris of the temple, he made on 1st July 1930 an application requesting that, as in the case of the Nagardevla Temple, the administration of the Basaiya Mata Temple be taken over by the Gwalior Government. By an order, dated 1st December 1932 (Ex. P-48), the Gwalior Government (which was carried on by a Council of Regency) took over the administration under Section 30 of the Gwalior Act, appointed a Special Committee as provided by that section and directed that a report showing the effect of inking over the administration of the temple be submitted after two years. After about seven years, on 10th August 1939 to be more precise, the Ruler of Gwalior passed the following operative orders:
^^bl fy;s ;g nsoLFkku egUr iqtkfj;ku dh gkyr [kkfrj[ckg gksus rd o eqd;ekr QSly gksus rd csgLrwj ukdkQ dh fuxjkuh esa jguk equkflcgksxkA fygktk is'kxkg njckj ls gqDe gksus ds fy;s xqjkfj'k gktk is'k gSA**
When the litigation between Tejpuri and Pujaris finally ended in favour of the former, he applied to the Madhya Bharat Government that the temple be restored to him. The Government took the view that the Basaiya Mata Temple was a public temple and there was no question of restoring it to Tejpuri. Thereupon, Tejpuri brought the suit, out of which this appeal arises, claiming inter alia a declaration of his right to manage the temple and also an injunction requiring the State Government to remove the control which it had been exercising over the administration of the temple, During the pendency of the suit, Tejpuri died and was succeeded by his Chela Kamalpuri.
3. The Court of first instance decreed the plaintiff's claim. Being agrrieved, the State Government has now come up in appea). Having regard to the facts of this case, it appears to me that the impact of the Madhya Pradesh Public Trusts Act, 1951, which was extended to the Madhya Bharat region, has not been considered. If this is a public trust as defined in Section 2 (4) of the Act, Section 32 (1) thereof enacts that no suit to enforce a right on behalf of a public trust, which has not been registered, shall be heard or decided in any Court. Secondly, the question is whether, in consequence of Section 6 (1) of the Madhya Pradesh Extension of Laws Act, 1958, the Gwalior Act, being a law corresponding to the Madhya Pradesh Public Trusts Act, 1951 stands repealed. Since these questions have not been referred to me, I would merely state them without expressing any opinion.
4. Shiv Dayal, J. is of the view that the Gwalior Government took over the administration of the temple only temporarily, that it did so at the instance of Tejpuri and that the conduct of the parties contraindicated that Tejpuri had permanently surrendered his right of managing the temple or that the Gwalior Government had permanently taken over the management. Section 30 of the Gwalior Act is, according to Shiv Dayal J., not a law of acquisition of property and it cannot justify the refusal to restore the temple to the person entitled to administer it. In regard to the Durbar Order tlated 10 August 1939, Shiv Dayal J. is of opinion that it is only an administrative order and not law. On the other hand, Khan J. thinks that, since there is no provision either in Section 30 or any other section of the Gwalior Act, the administration of the temple cannot be restored back to the person entitled and that, if it can be restored at all, that can be done only after the preconditions laid down in the order dated 10th August 1939 are fulfilled.
5. Having heard the counsel, I agree with the opinion expressed by Shiv Dayal J. on the two questions. The relevant Section 30 of the Gwalior Act reads:
^^fdlh ifjLr'kxkg vkSj etgch oDQ dh fuxjkuh obUrtke ds fy;s tks rkjh[kh gkykr ds ,rckj ls ;k d'ker dh otg ls e'kgwj gks ;kftldh fuLcr vxjkt vkEek ds fy;s ;k fdlh [kkl ctg ls t:jh [;ky fd;k tk; rksxouZesUV dks bf[r;kj gksxk fd ,d Lis'ky desVh eqdjZj djs ;k ;g gqDe lkfnj Qjek;sfd mldks ljdkjh ,greke esa fy;k tk;A**
It is quite true that neither section 30 nor any other section of the Gwalior Act expressly provides for restoration of any temple and its property the administration of which has been taken over by the State. Even so, I am of opinion that the language employed in the section must be construed in its appropriate setting and, if necessary, limited to the object which the legislature had in view. So, the meaning of the words of a statute is found not so much in a strictly grammatical construction or etymological propriety of language, nor even in its popular use, as in the subject or in the occasion in which they arc used, and the object to the attained. In order, therefore, to come to a decision as to the true meaning of a word used in a statute, one has to enquire as to the subject matter of the enactment and the object which the Legislature had in view. Workmen of Dimakuchi Tea Estate v. Management of Dimakuchi Tea Estate, 1958 SCR 1156: (AIR 1958 SC 353) and State of Uttar Pradesh v. C. Tobit, 1958 SCR 1275: (AIR 1958 SC 414). The preamble of a statute has been said to be a good means of finding out its meaning and, as it were, a key to the understanding of it; A. Thangal Kunju Musaliar v. N. Venkitachalam Potti, (1955) 2 SCR 1196: (AIR 1956 SC 246). Indeed, the preamble may now be regarded, like the title, as part of the statute for the purpose of explaining, restraining or even extending enacting words, but not for the purpose of qualifying or limiting express provisions couched in clear and unambiguous terms: Halsbury's Laws of England, 2nd Edn., Vol. 31, Para 558 (p. 461). The preamble of the Gwalior Act reads:
'Whereas it is expedient that places of worship which are established or may be established in future in Gwalior State are maintained in a state which fulfils the object of their founders and do not remain without worship and the properties and assets which may have been endowed for the aid, management and maintenance of such places of worship, or which may be so endowed in future may be administered according to the desire of the donors and be properly supervised, the Council of Regency, on behalf of the Ruler, hereby enact as follows:......'
In my opinion, having regard to the object of the Gwalior Act as indicated by its preamble, the appointment of a special committee or chatmam (management) contemplated by Section 30, which does not by clear and unambiguous language show that it was to be undertaken on a permanent footing, is limited to the time required for restoring proper management of a place of worship and its properly necessary for fulfilling the objects of the founder.
6. Even apart from the construction of Section 30 of the Gwalior Act, the position in law is not different. Being an 'existing law', the Gwalior Act will not offend Article 31 of the Constitution but, if Section 30 is interpreted as authorising the taking over of management of the temple and its property permanently, it will be inconsistent with Article 26 of the Constitution and will, to the extent of such inconsistency, be void. So, in The Commissioner, Hindu Religious Endowments, Madras v. Lakshmin-dra Thirtha Swamiar of Sri Shrirur Mutt, 1954 SCR 1005: (AIR 1954 SC 282) the Supreme Court observed at p. 1029 (of SCR): (at p. 291 of AIR) as follows;
'It should be noticed, however, that under Article 26(d), it is the fundamental right of a religious denomination or its representative to administer its properties in accordance with law; and the law, therefore, must leave the right of administration to the religious denomination itself subject to such restrictions and regulations as it might choose to impose. A law which takes away the right of administration from the hands of a religious denomination altogether and vests it in any other authority would amount to a violation of the right guaranteed under Clause (d) of Article 26.'
Again in Ratilal Panachand Gandhi v. State of Bombay, 1954 SCR 1055: (AIR 1954 SC 388) the Supreme Court observed at pp. 1063-64 (of SCR): (at pp. 391-392 of AIR) as under:
'In regard to affairs in mailers of religion, the right of management given to a religious body is a guaranteed fundamental right which no legislation can take away. On the other hand, as regards administration of property which a religious denomination is entitled to own and acquire, it has undoubtedly the right to administer such property but only in accordance with law. This means' that the State can regulate the administration of trust properties by means of laws validly enacted; but here again it should be remembered that under Article 26(d), it is the religious denomination itself which has been given the right to administer its property in accordance with any law which the State may validly impose. A law, which takes away the right of administration altogether from the religious denomination and vests it in any other or secular authority, would amount to violation of the right which is guaranteed by Article 26(d) of the Constitution.'
It is thus obvious that the contention that, in the absence of any provision in the Gwalior Act, the State Government cannot be compelled to restore the temple and its property is clearly untenable. In order to make the position clear I would like to add that this is not a case where any property had already been acquired and taken over under a pre-Constitutional law. The ownership of the temple and its property remained vested, as before, in the person in whom they were vested. It was only the administration of the temple and its property that had been taken over under Section 30 of the Gwalior Act. In this situation, Clause (d) of Article 26 of the Constitution entities the mahant for the time being to administer the property of the temple.
7. On the second question, having regard to the nature of the order dated 10th August 1939 as one passed in relation to a matter, which was the subject matter of an earlier order under Section 30 of the Gwalior Act, I am of opinion that it is an adminis trative order. The decision of the Gwalior Govern ment to take over the administration of the Basaiya Mata Temple under Section 30 of the Gwalior Act is clearly an administrative or executive order and theone dated 10th August 3939, deciding to continue to retain such control until the position was improved in certain respects is also likewise an executive order and not law. In this connection, I may point out that the Ruler of Gwalior had, for making laws, adopted a particular form similar to the one found in the case of the Gwalior Act. So, boththe form and the substance show that the order is not law. Maharaja Shree Umaid Mills Ltd. v.Union of india, AIR 1963 SC 953 and The State of Gujarat v. Vora Fiddali Badruddin MithibarwalaCivil Appeals Nos. 182 to 182 of 1963 dated 30-1-1964: (AIR 1961 SC 1043).