1. This group of seven cross-appeals arises from three writ petitions fieldin the High Court of Judicature for Rajasthan, in which the validity of theNathdwara Temple Act, 1959 (No. XIII of 1959) (hereinafter called the Act) hasbeen challenged. The principal writ petition was Writ Petition No. 90 of 1959;it was filed by the present Tilkayat Govindlalji (hereinafter called theTilkayat) on February 28, 1959. That Petition challenged the validity of theNathdwara Ordinance, 1959 (No. II of 1959) which had been issued on February 6,1959. Subsequently this Ordinance was repealed by the Act which, afterreceiving the assent of the President, came into force on March 28, 1959.Thereafter, the Tilkayat was allowed to amend his petition and after itsamendment, the petition challenged the vires of the Act the provisions of whichare identical with the provisions of its predecessor Ordinance. Along with thispetition Writ Petition No. 310 of 1959 was filed on August 17, 1959, by tenpetitioners who purported to act on behalf of the followers of thePushtimargiya Vaishnava Sampradaya. This petition attacked the validity of theAct on behalf of the Denomination of the followers of Vallabha. On November 3,1960, the third Writ Petition (No. 421 of 1960) was filed on behalf of GoswamiShri Ghanshyamlalji who as a direct descendant of Vallabha, set up an interestin himself in regard to the Nathdwara Temple, and as a person having interestin the said Temple, he challenged the validity of the Act. These threepetitions were heard together by the High Court and have been dealt with by acommon judgment. In substance, the High Court has upheld the validity of theAct, but it has struck down as ultra vires a part of the definition of 'temple'in s. 2(viii), a part of s. 16 which refers to the affairs of the temple; s.28, sub-ss. (2) and (3); s. 30(2)(a); Sections 36 and 37. The petitioners as well asthe State of Rajasthan felt aggrieved by this decision and that has given riseto the present cross-appeals. The Tilkayat has filed Appeal No. 652 of 1962,whereas the State has filed appeals Nos. 653 and 757 of 1960. These appealsarise from Writ Petition No. 90 of 1959. The Denomination has filed Appeal No.654 of 1962, whereas the State has filed Appeals Nos. 655 and 758 of 1962.These appeals arise from Writ Petition No. 310 of 1959. Ghanshyamlalji whoseWrit Petition No. 421 of 1960 has been dismissed by the High Court on theground that it raises disputed questions of fact which cannot be tried underArt. 226 of the Constitution, has preferred Appeal No. 656 of 1962. SinceGhanshyamlalji's petition has been dismissed in limine on the ground justindicated, it was unnecessary for the State to prefer any cross-appeal. Besidesthese seven appeals, in the present group has been included Writ Petition No.74 of 1962 filed by the Tilkayat in this Court under Art. 32. By the said writpetition the Tilkayat has challenged the vires of the Act on some additionalgrounds. That is how the principal point which arises for our decision in thisgroup is in regard to the Constitutional validity of the Act.
2. At this stage, it is relevant to indicate broadly the contentions raisedby the parties before the High Court and the conclusions of the High Court onthe points in controversy. The Tilkayat contended that the idol of ShriShrinathji in the Nathdwara Temple and all the property pertaining to it werehis private properties and as such, the State Legislature was not competent topass the Act. In the alternative, it was urged that even if the NathdwaraTemple is held to be a public temple and the Tilkayat the Mahant or Shebait incharge of it, as such Mahant or Shebait he had a beneficial interest in theoffice of the high priest as well as the properties of the temple and it is onthat footing that the validity of the Act was challenged under Art. 19(1)(f) ofthe Constitution. Incidentally the argument for the Tilkayat was that the idolsof Shri Navnit Priyaji and Shri Madan Mohanlalji were his private idols and theproperty pertaining to them was in any case not the property in which thepublic could be said to be interested. The Denomination substantially supportedthe Tilkayat's case. In addition, it urged that if the temple was held to be apublic temple, then the Act would be invalid because it contravened thefundamental rights guaranteed to the denomination under Art. 25(1) and Art.26(b) and (c) of the Constitution. Ghanshyamlalji pleaded title in himself andchallenged the validity of the Act on the ground that it contravened his rightsunder Art. 19(1)(f).
3. On the other hand, the State of Rajasthan urged that the Nathdwara Templewas a public temple and the Tilkayat was no more and no better than itsmanager. As such, he had no substantial benefical interest in the property ofthe temple. The contention that the Tilkayat's fundamental rights under Art.19(1)(f) have been contravened by the Act was denied; and the plea of theDenomination that the fundamental rights guaranteed to it under Art. 25(1) and26(b) and (c) had been infringed was also disputed. It was urged that the lawwas perfectly valid and did no more than regulate the administration of theproperty of the temple as contemplated by Art. 26(c) of the Constitution. TheTilkayat's claim that the two idols of Navnit Priyaji and Madan Mohanlalji werehis private idols was also challenged. Against Ghanshyamlalji's petition, itwas urged that it raised several disputed questions of fact which could not beappropriately tried in proceedings under Art. 226.
4. The High Court has upheld the plea raised by the State against thecompetence of Ghanshyamlalji's petition. We ought to add that the State hadcontended that the Tilkayat's case about the character of the temple was also amixed question of fact and law and so, it could not be properly tried in writproceedings. The High Court, however, held that it would be inexpedient toadopt a technical attitude in this matter and it allowed the merits of thedispute to be tried before it on the assurance given by the learned counselappearing for the Tilkayat that the character of the property should be dealtwith on the documentary evidence adduced by him. Considering the documentaryevidence, the High Court came to the conclusion that the temple is a publictemple. It examined the several Firmans and Sanads on which reliance was placedby the Tilkayat and it thought that the said grants supported the plea of theState that the temple was not the private temple of the Tilkayat. It has,however, found that the Tilkayat is a spiritual head of the Denomination aswell as the spiritual head of the temple of Shrinathji. He alone is entitled toperform 'Seva' and the other religious functions of the temple. In its opinion,the two minior idols of Navnit Priyaji and Madan Mohanlalji were the privateidols of the Tilkayat and so, that part of the definition which included themwithin the temple of Shrinathji was struck down as invalid. In this connection,the High Court has very strongly relied on the Firman issued by the Maharana ofUdaipur on December 31, 1934, and it has observed that this Firman clearlyestablished the fact that the temple was a public temple, that the Tilkayat wasno more than a Custodian, Manager and Trustee of the property belonging to thetemple and that the State had the absolute right to supervise that the propertydedicated to the shrine was used for legitimate purposes of the shrine. Havingfound that the Tilkayat was the head of the denomination and the head priest ofthe temple, the High Court conceded in his favour the right of residence, theright to distribute Prasad and the right to conduct or supervise the worshipand the performance of the Seva in the temple. In the light of these rights theHigh Court held that the Tilkayat had a beneficial interest in the propertiesof the temple and as such, was entitled to contend that the said rights wereprotected under Art. 19(1)(f) and could not be contravened by the Legislature.The High Court then examined the relevant provisions of the Act and held that,on the whole, the major operative provisions of the Act did not contravene thefundamental rights of the Tilkayat under Art. 19(1)(f); Sections 16 and 28, sub-ss.(2) and (3), s. 30(2)(a), Sections 36 & 37, however, did contravene theTilkayat's fundamental rights according to the High Court, and so, the saidsections and the part of the definition of 'temple' in s. 2(viii) were struckdown by the High Court as ultra vires. The plea that the fundamental rightsunder Art. 25(1) and Art. 26(b) and (c) were contraveneisd did not appeal tothe High Court to be well-founded. In the result, the substantial part of theAct has been held to be valid. It appears that before the High Court a plea wasraised by the Tilkayat that his rights under Arts. 14 and 31(2) had beencontravened by the Act. These pleas have been rejected by the High Court andthey have been more particularly and specifically urged before us by theTilkayat in his Writ Petition No. 74 of 1962. That, in brief, is the nature ofthe findings recorded by the High Court in the three writ petitions filedbefore it.
5. Before dealing with the merits of the present dispute, it is necessary toset out briefly the historical background of the temple of Shrinathji atNathdwara and the incidents in relation to the management of its propertieswhich ultimately led to the Act. The temple of Shrinathji at Nathdwara holds avery high place among the Hindu temples in this country and is looked upon withgreat reverence by the Hindus in general and the Vaishnav followers of Vallabhain particular. As in the case of other ancient revered Hindu temples, so in thecase of the Shrinathji temple at Nathdwara, mythology has woven an attractiveweb about the genesis of its construction at Nathdwara. Part of it may behistory and part may be fiction, but the story is handed down from generationto generation of devotees and is believed by all of them to be true. Thistemple is visited by thousands of Hindu devotees in general and by thefollowers of the Pushtimargiya Vaishnava Sampradaya in particular. Thefollowers of Vallabha who constitute a denomination are popularly known assuch. The denomination was founded by Vallabha (1479 - 1531 A.D.) (Somescholars think that Vallabha was born in 1473 A.D. vide The Cultural Heritageof India vol. III at p. 347.).
6. He was the son of a Tailanga Brahmin named Lakshmana Bhatt. On oneoccasion, Lakshmana Bhatt had gone on pilgrimage to Banaras with his wifeElamagara. On the way, she gave birth to a son in 1479 A.D. That son was knownas Vallabha. It is said that God Gopala Krishna manifested himself to Vallabhaon the Govardhana Hill by the name of Devadamana, also known as Shrinathji.Vallabha saw the vision in his dream and he was commanded by God Gopala Krishnato erect a shrine for Him and to propagate amongst his followers the cult ofworshipping Him in order to obtain salvation (Bhandarkar on 'Vaishnavism,S'aivism & Minor Religious systems at p. 77.). Vallabha then went to thehill and he found the image corresponding to the vision which he had seen inthis dream. Soon thereafter, he got a small temple built at Giriraj andinstalled the image in the said temple. It is believed that this happened in1500 A.D. A devotee named Ramdas Chowdhri was entrusted with the task ofserving in the temple. Later on, a rich merchant named Pooranmal was asked byGovardhannathji to build a big temple for him. The building of the temple tookas many as 20 years and when it was completed, the Image was installed there byVallabha himself and he engaged Bengali Brahmins as priests in the said temple(Bhai Manilal C. Parekh's 'A Religion of Grace'.),.
7. In course of time, Vallabha was succeeded by his son Vithalnathji who wasboth in learning and in saintly character a worthy son of a worthy father.Vithalnath had great organising capacity and his work was actuated bymissionary zeal. In the denomination, Vallabha is described as Acharya or MahaPrabhuji and Vithalnath is described as Gosain or Goswamin. It is said that Vithalnathremoved the idol of Shrinathji to another temple which had been built by him.It is not known whether any idol was installed in the earlier temple.Vithalnath lived during the period of Akbar when the political atmosphere inthe country in Northern India was actuated by a spirit of tolerance. It appearsthat Akbar heard about the saintly reputation of Vithalnath and issued a Firmangranting land in Mowza of Jatipura to Vithalnathji in order to build buildings,gardens, cowsheds and workshops for the temple of Govardhannathji. This Firmanwas issued in 1593 A.D. Later, Emperor Shahajahan also issued another Firman onOctober 2, 1633, which shows that some land was being granted by the Emperorfor the use and expenses of Thakurdwara exempt from payment of dues.
8. Goswami Vithalnath had seven sons. The tradition of the denominationbelieves that besides the idol of Shrinathji Vithalnathji received from hisfather seven other idols which were also 'Swaroops' (manifestations)of Lord Krishna. Before his death, Vithalnathji entrusted the principal idol ofShrinathji, to his eldest son Girdharji and the other idols were given over toeach one of his other sons. These brothers in turn founded separate shrines atvarious places which are also held by the members of the denomination in highesteem and reverence.
9. When Aurangzeb came on the throne, the genial atmosphere of tolerancedisappeared and the Hindu temples were exposed to risk and danger ofAurangzeb's intolerant and bigoted activities. Col. Todd in the first volume ofhis 'Annals of Rajasthan' at p. 451 says that 'when Aurangzeb prescribedKanaya and rendered his shrines impure throughout Vrij, Rana Raj Singh offeredthe heads of one hundred thousand Rajpoots for his service, and the God was conductedby the route of Kotah and Rampoora to Mewar. An omen decided the spot of hisfuture residence. As he journeyed to gain the capital of the Sessodias, thechariot-wheel sunk deep into the earth and defied extrication; upon which theSookuni (augur) interpreted the pleasure of the deity that he desired to dwellthere. This circumstance occurred at an inconsiderable village called Siarh, inthe fief of Dailwara, one of the sixteen nobles of Mewar. Rejoiced at thisdecided manifestation of favour, the chief hastened to make a perpetual gift ofthe village and its lands which was speedily confirmed by the patent of theRana. Nathji (the god) was removed from his car, and in due time a temple waserected for his reception, when the hamlet of Siarh became the town ofNathdwara. This happened about 1671 A.D.' This according to the tradition,is the genesis of the construction of the temple at Nathdwara. Since then, thereligious reputation of the temple has grown by leaps and bounds and today itcan legitimately claim to be one of the few leading religious temples of theHindus. Several grants were made and thousands of devotees visiting the templein reverence made offerings to the temple almost everyday throughout the year.No wonder that the temple has now become one of the richest religiousinstitutions in the country.
10. The succession to the Gaddi of the Tilkayat has, from the beginning,been governed by the rule of Primogeniture. This succession receivedrecognition from the rulers of Mewar from time to time. It appears that in 1813A. D. Tilkayat Govindlalji was adopted by the widow of Tilkayat Damodarji andthe ruler of Mewar recognised the said adoption. Later, the relations betweenthe ruler of Mewar and the Tilkayat were strained during the time of TilkayatGirdharlalji. It seems that the Tilkayat was not content with the position of aspiritual leader of the denomination but he began to claim special secularrights, and when the Darbar of Udaipur placed the villages belonging to theNathdwara Temple under attachment, a protest was made by the members of thedenomination on behalf of the Tilkayat. It was as a result of this strainedrelationship between the Darbar and the Tilkayat that in 1876 TilkayatGirdharlalji was deposed and was deported from Nathdwara by the order passed bythe Rana of Mewar on May 8, 1876....... The reason given for this drastic stepwas that the Tilkayat disobeyed the orders of the ruling authority and so,could not be allowed to function as such. In place of the deposed Tilkayat, hisson Gordhanlalji was appointed as Tilkayat. Girdharlalji then went to Bombayand litigation started between him and his Tilkayat son in respect of extensiveproperties in Bombay. Girdharlalji claimed the properties as his own whereashis Tilkayat son urged that the fact that Girdharlalji had been deposed by theRana of Udaipur showed that the properties no longer vested in him. It appearsthat the Bombay High Court consistently took the view that the order passed bythe Rana of Udaipur on May 8, 1876, was an act of a foreign State and did noteffect his right to property in Bombay. It was observed that Girdharlalji wasregarded as owner of the property, he had not lost his right as such to thesaid property in consequence of his deposition, and if he was merely a trustee,he had not been removed from his office by any competent Tribunal vide Nanabaiv. Shriman Goswami Girdharji (12 Bom. 331.). Goswami Shri Girdharji MaharajShri Govindraiji Maharaj Tilkayat v. Madhowdas Premji and Goswami ShriGovardhanlalji Girdharji Maharaj (17 Bom. 600.) and Shriman Goswami Shri 108Shri Govardhanlalji Girdharlalji v. Goswami Shri Girdharlalji Govindrajji (17Bom. 620.). So far as the Nathdwara temple and the properties situated in Mewarwere concerned, the Tilkayat Gordhanlalji who had been appointed by the Rana ofUdaipur continued to be in possession and management of the same.
11. Unfortunately, in 1933, another occasion arose when the Rana of Udaipurhad to take drastic action. After the death of Govardhanlalji on September 21,1933, his grand son Damodarlalji became the Tilkayat. His conduct however,showed that he did not deserve to be a spiritual leader of the denomination andcould not be left in charge of the religious affairs of the Shrinathji templeat Nathdwara. That is why on October 10, 1933, he was deposed and his sonGovindlalji, the present Tilkayat, was appointed the Tilkayat of the temple.Before adopting this course, the Rana had given ample opportunities toDamodarlalji to improve his conduct, but despite the promises made by himDamodarlalji persisted in the course of behavior which he had adopted and so,the Darbar was left with no other alternative but to depose him. That is howthe present Tilkayat's regime began even during the lifetime of his father.
12. As on the occasion of the deposition of Girdharlalji in 1833, so on theoccasion of the deposition of Damodarlalji, litigation followed in respect ofBombay properties. On January 6, 1934, Damodarlalji filed a suit in the BombayHigh Court (No. 23 of 1934) against the Tilkayat and other persons representingthe denomination. In this suit, he claimed a declaration that he was entitledto and had become the owner of all the properties mentioned in the plaint andthat he was the owner of all the rights, presents, offerings, and emolumentsarising in and accruing from the ownership of the idols, Shrinathji and ShriNavnit Priyaji as well as his position as the Tilkayat Maharaj in due course ofhis succession. In the said suit, the idols of Shrinathji and Shri NavnitPriyaji were added as defendants. At that time, the Tilkayat was a minor.Written statements were filed on his behalf and on behalf of the two idols. Acounter claim was preferred on behalf of the idols that the properties belongedto them. Subsequently, the suit filed by Damodarlalji was withdrawn; but thecounterclaim made by the idols was referred to the sole arbitration and finaldetermination of Sir Chimanlal H. Setalvad, a leading Advocate of the BombayHigh Court. On April 10, 1942, the arbitrator made his award and in due course,a decree was passed in terms of the said award on September 8, 1942. Thisdecree provided that all the properties, movable and immovable, and allofferings and Bhents donated to the idol of Shrinathji or for its worship orbenefit belonged to the said idol, whereas properties donated, dedicated oroffered to the Tilkayat Maharaj for the time being, or at the Krishna BhandarPedhis if donated, dedicated or offered for the worship or benefit of the idolbelonged to the said idol. It also provided that the Tilkayat Maharaj for thetime being in actual charge at Nathdwara is entitled to hold, use and managethe 'properties of the said idol according to the usage of the VallabhiSampradaya.' The said award and the decree which followed in terms of itwere naturally confined to the properties in the territories which thencomprised British India and did not include any properties in the territorieswhich then formed part of princely India or Native States as they were thenknown.
13. Meanwhile, after Damodarlalji was deposed and his son Govindlalji wasappointed the Tilkayat, the Rana of Udaipur issued a Firman on December 31,1934. By this Firman it was laid down that the shrine of Shrinathji had alwaysbeen and was a religious institution for the followers of the VaishnavasSampradayak and all the properties offered at the shrine were the property ofthe shrine and that the Tilkayat Maharaj was merely a Custodian, Manager andTrustee of the said property for the shrine. It also provided that the UdaipurDarbar had absolute right to supervise that the property dedicated to theshrine is used for legitimate purpose of the shrine. It also made certain otherprovisions to which we shall have occasion to return later.
14. When he was appointed the Tilkayat, Govindlalji was a minor and so, themanagement of the temple and the property remained with the Court of Wards,till April 1, 1948. On that date, the management of the Court of Wards waswithdrawn and the charge of the property was handed over to the Tilkayat. Itappears that the management of affairs by the Tilkayat was not very happy orsuccessful and the estate faced financial difficulties. In order to meet thisdifficult situation the Tilkayat appointed a committee of management consistingof 12 members belonging to the denomination some time in 1952. This wasfollowed by another committee of 21 members appointed on June 11, 1953. Whilstthis latter committee was in charge of the management, some valuables storedand locked in the room in the premises of the Temple of Shrinathji were removedby the Tilkayat in December, 1957. This news created excitement amongst themembers of the public in general and the followers of the denomination inparticular, and so, the Rajasthan Government appointed a Commission of Enquiry.In the preamble to the notification by which the Commission of Enquiry wasappointed, it was stated that the State of Rajasthan as the successor of thecovenanting State of Mewar had a special responsibility to supervise that theendowments and properties dedicated to the shrine are safeguarded and used forthe legitimate purposes of the shrine. The Commission of the Enquiry made itsreport on October 11, 1959. This report passed severe strictures against theconduct of the Tilkayat. At this stage, we ought to add that the disputebetween the Tilkayat and the Rajasthan Government as to the ownership of thevaluable articles removed from the temple was later referred to the solearbitration of Mr. Mahajan, the retired Chief Justice of this Court. Thearbitrator made his award on September 12, 1961, and held that except in regardto the items specified by him in his award, the rest of the property belongedto the Tilkayat; and he found that when the Tilkayat removed the properties, hebelieved that they were his personal properties.
15. It was in the background of these events that the State of Rajasthanthought it necessary that a scheme should be drafted for the management of theTemple and this proposal received the approval of the Tilkayat. In order togive effect to this proposal it was agreed between the parties that a suitunder, s. 92, Code of Civil Procedure should be filed in the Court of theDistrict Judge at Udaipur. The parte then thought that the suit would benon-contentious and would speedily end in a scheme of management being draftedwith the consent of parties. Accordingly, suit No. 1 of 1956 was filed in theDistrict Court at Udaipur, and in accordance with the agreement which he hadreached with the authorities, the Tilkayat filed a non contentious writtenstatement. However, before the suit could make any appreciable progress,Ghanshyamlalji and Baba Rajvi, the son of Tilkayat, applied to be made partiesto the suit and it became clear that these added parties desired to raisecontentions in the suit and that entirely changed the complexion of thelitigation. It was then obvious that the litigation would be a long-drawn outaffair and the object of evolving a satisfactory scheme for the management ofthe affairs of the temple would not be achieved until the litigation wentthrough a protracted course.
16. It was under these circumstances that the Governor of Rajasthanpromulgated an Ordinance called the Nathdwara Ordinance, 1959 (No. II of 1959)on February 6, 1959. The Tilkayat immediately filed his Writ Petition No. 90 of1959 challenging the validity of the said Ordinance. The Ordinance was in duecourse replaced by Act 13 of 1959 and the Tilkayat was allowed to amend hisoriginal writ petition so as to challenge the vires of the Act. Shortly stated,this is the historical background of the present dispute.
17. The first question which calls for our decision is whether the tenets ofthe Vallabh denomination and its religious practices postulate and require thatthe worship by the devotees should be performed at the private temple owned andmanaged by the Tilkayat, and so, the existence of public temples isinconsistent with the said tenets and practices. In support of this argument,the learned Attorney-General has placed strong reliance on the observationsmade by Dr. Bhandarkar in his work on Vaisnavism, Saivism and Minor ReligiousSystems, ti 80. In the section dealing with Vallabh and his school, the learnedDoctor has incidentally observed that the Gurus of this sect ordinarily calledMaharajs are descendants of the seven sons of Vithalesa. Each Guru has a templeof his own, and there are no public places of worship. He has also added thatthe influence exercised by Vallabh and his successors over their adherents iskept up by the fact that God cannot be worshipped independently in a publicplace of worship, but in the house and temple of the Guru or the Maharaj which,therefore, has to be regularly visited by the devotees with offerings. Thesetemples are generally described as Havelis and the argument is that the saiddescription also brings out the fact that the temples are private temples ownedby the Tilkayat of the day. It is true that the observations made by Dr.Bhandarkar lend support to the contention raised before us by the learnedAttorney-General on behalf of the Tilkayat, but if the discussion contained inDr. Bhandarkar's work in the section dealing with Vallabh is considered as awhole, it would be clear that these observations are incidental and cannot betaken to indicate the learned Doctor's conclusions after a careful examinationof all the relevant considerations bearing on the point. Since, however, theseobservations are in favour of the plea raised by the Tilkayat, it is necessaryvery briefly to enquire whether there is anything in the tenets or thereligious practices of this denomination which justifies the claim made by thelearned Attorney-General.
18. What then is the nature of the philosophical doctrines of Vallabh ?According to Dr. Radha Krishnan ('Indian Philosophy' by Dr. RadhaKrishnan, pp. 756 and 758.), Vallabh accepts the authority not only of theUpanishads, the Bhagvad-gita and the Brahma Sutras, but also of the BhagavataPurana. In his works, Anubhasya, Siddhantarahasya and Bhagavata-Tikasubodhini,he offers a theistic interpretation of the Vedanta, which differs from those ofSankara and Ramanuja. His view is called Suddhadvaita, or pure non-dualism, anddeclares that the whole world is real and is subtly Brahman. The individualsouls and the inanimate world are in essence one with Brahman. Vallabha looksupon God as the whole and the individual as part. The analogy of sparks of fireis employed by Him to great purpose. The Jiva bound by maya cannot attainsalvation except through the grace of God, which is called Pushti. Bhakti isthe chief means of salvation, though Jnana is also useful. As regards the fruitof Bhakti, there are diverse opinions, says Dasgupta (A history on 'IndianPhilosophy' by Das Gupta, pp. 355-356.). Vallabha said in hisSevaphala-vivrti that as a result of it one may attain a great power of experiencingthe nature of God, or may also have the experience of continual contact withGod, and also may have a body befitting the service of God. Vallabha, however,is opposed to renunciation after the manner of monistic sanyasa, for this canonly bring repentance, as being inefficacious. Thus, it will be seen thatthough Vallabha in his philosophical theories differs from Sankara andRamanuja, the ultimate path for salvation which he has emphasised is that ofBhakti and by Bhakti the devotee obtains Pushti (divine grace). That is why thecult of Vallabha is known as Pushtimarg or the path for obtaining divine grace.
19. Dr. Bhandarkar points out that according to Vallabha, Mahapushti, or thehighest grace, is that which removes great obstacles and conduces to theattainment of God himself. Thus Pushtibhakti is of four kinds : (1)Pravaha-Pushtibhakti, (2) Maryada-Pushtibhakti, (3) Pushti-Pushtibhakti and (4)Sudha-Pushtibhakti. The first is the path of those who while engaged in aworldly life with its me and mine, do acts calculated to bring about theattainment of God. The second is of those who, withdrawing their minds fromworldly enjoyments, devote themselves to God by hearing His praise andlistening to discourses about Him. The third is of those who already enjoyedGod's grace and are made competent to acquire knowledge useful for adorationand thus come to know all about the ways of God. The fourth is of those whothrough mere love devote themselves to the singing and praising of God as if itwere a haunting passion. Thus, it would be seen that the tenets of the cultemphasised the importance of Bhakti, and the religious practices accordinglycentered round this doctrine of Bhakti.
20. The practical modes of worship adopted by the members of this cult bringout the same effect. Lord Krishna as a child is the main object of worship. Hisworship consists of several acts of performance every day in the prescribedorder of ceremonies. These begin with the ringing of the bell in the morningand putting the Lord to bed at night. After the Lord is awakened by the ringingof the bell, there is a blowing of the conch-shell, awakening of the Lord andoffering morning refreshments; waving of lamps; bathing; dressing; food;leading the cows out for grazing; the mid-day meal; waving of lamps again; theevening service; the evening meal and going to bed. These rituals performedwith meticulous care from day to day constitute the prescribed items of Sevawhich the devotees attend every day in the Vallabh temple. In order to be ableto offer Bhakti in a proper way, the members of this denomination are initiatedinto this cult by the performance of two rites; one is Sharana Mantropadesh andthe other is Atma Nivedan. The first gives the devotee the status of aVaishnava and the second confers upon him the status of an Adhikari entitled topursue the path of service of devotion. At the performance of the first rite,the mantra which is repeated in the ears of the devotee is 'Shree KrishnaSharanam Mamah' and on the occasion a 'tulsi Kanthi' is put around theneck of the devotee. At the second initiation, a religious formula is repeated,the effect of which is that the devotee treats himself and all his propertiesas belonging to Lord Krishna. We have already referred to the original imagewhich Vallabha installed in the temple built in his time and the seven idolswhich Vithalnathji gave to his sons. These idols are technically described as'Nidhi Swaroops'. Besides these idols, there are several other idols which areworshipped by Vaishnava devotees after they are sanctified by the Guru. It isthus clear that believing in the paramount importance and efficacy of Bhakti,the followers of Vallabha attend the worship and services of the Nidhi Swaroopsor idols from day to day in the belief that such devotional conduct wouldultimately lead to their salvation.
21. It is significant that this denomination does not recognise theexistence of Sadhus or Swamis other than the descendants of Vallabha and itemphasises that it is unnecessary to adopt ritualistic practices or to repeatSanskrit Mantras or in cantations in worshipping the idols. Besides, anothersignificant feature of this cult is that it does not believe in celibacy anddoes not regard that giving up worldly pleasures and the ordinary mode of ahouse-holder's life are essential for spiritual progress. In fact Vallabhahimself lived a house-holder's life and so have all his descendants. This cultdoes not, therefore, glorify poverty and it teaches its followers that a normalhouse-holder's life is quite compatible with the practice of Bhakti, providedof course, the devotee goes through the two ceremonies of initiation and livesup to the principles enunciated by Vallabha.
22. The question which we have to decide is whether there is anything in thephilosophical doctrines or tenets or religious practices which are the specialfeatures of the Vallabha school, which prohibits the existence of publictemples or worship in them. The main object underlying the requirement that devoteesshould assemble in the Haveli of the Guru and worship the idol obviously was toencourage collective and congregational prayers. Presumably it was realised byVallabha and his descendants that worship in Hindu public temples is apt toclothe the images worshipped with a formal and rigid character and the elementof personality is thereby obliterated; and this school believes that in orderthat Bhakti should be genuine and passionate, in the mind of the devotee theremust be present the necessary element of the personality of God. It is truethat Vaishnava temples of the Vallabha sect are generally described as Havelisand though they are grand and majestic inside, the outside appearance is alwaysattempted to resemble that of a private house. This feature can, however, beeasily explained if we recall the fact that during the time when Vithalnathjiwith his great missionary zeal spread the doctrine of Vallabha, Hindu templeswere constantly faced with the danger of attack from Aurangzeb. In fact, the traditionalstory about the foundation of the Srinathji temple at Nathdwara itselfeloquently brings out the fact that owing to the religious persecutionpractised during Aurangzeb's time, Srinathji himself had to give up his abodenear Mathura and to start on a journey in search of a place for residence inmore hospitable and congenial surroundings. Faced with this immediate problemVithalnathji may have started building the temples in the form of Havelis sothat from outside nobody should know that there is a temple within.
23. It may also be true historically that when the first temple was built inthe life time of Vallabha it may have been a modest house where the originalimage was installed and during the early years just a few devotees may havebeen visiting the said temple. Appropriately enough, it was then called aHaveli. Later, even when the number of devotees increased and the temples builtby the Vallabha sect began to collect thousands of visitors, traditionaladherence to time-honoured words described all subsequent temples also asHavelis however big and majestic they were. Therefore, we are satisfied thatneither the tenets nor the religious practices of the Vallabha schoolnecessarily postulate that the followers of the school must worship in a privatetemple. Some temples of this cult may have been private in the past and some ofthem may be private even today. Whether or not a particular temple is a publictemple must necessarily be considered in the light of the relevant factsrelating to it. There can be no general rule that a public temple is prohibitedin Vallabha School. Therefore, the first argument urged by the learnedAttorney-General in challenging the finding of the High Court that theSrinathji temple at Nathdwara is a public temple, cannot be accepted.
24. The question as to whether a Hindu temple is private or public has oftenbeen considered by judicial decisions. A temple belonging to a family which isa private temple is not unknown to Hindu law. In the case of a private temple itis also not unlikely that the religious reputation of the founder may be ofsuch a high order that the private temple founded by him may attract devoteesin large numbers and the mere fact that a large number of devotees are allowedto worship in the temple would not necessarily make the private temple a publictemple. On the other hand, a public temple can be built by subscriptions raisedby the public and a deity installed to enable all the members of the public tooffer worship. In such a case, the temple would clearly be a public temple.Where evidence in regard to the foundation of the temple is not clearlyavailable, sometimes, judicial decisions rely on certain other facts which aretreated as relevant. Is the temple built in such an imposing manner that it mayprima facie appear to be a public temple The appearance of the temple ofcourse cannot be a decisive factor; at best it may be a relevant factor. Arethe members of the public entitled to an entry in the temple Are theyentitled to take part in offering service and taking Darshan in the temple ?Are the members of the public entitled to take part in the festivals andceremonies arranged in the temple Are their offerings accepted as a matter ofright The participation of the members of the public in the Darshan in thetemple and in the daily Acts of worship or in the celebrations of festivaloccasions may be a very important factor to consider in determining thecharacter of the temple. In the present proceedings, no such evidence has beenled and it is, therefore, not shown that admission to the temple is controlledor regulated or that there are other factors present which indicate clearlythat the temple is a private temple. Therefore, the case for the Tilkayatcannot rest on any such considerations which, if proved, may have helped toestablish either that the temple is private or is public.
25. There are, however, certain ancient documents which show that the templecannot be a private temple. We have already referred to the Firmans issued byAkbar and Shahjahan. These Firmans are strictly not material for the purpose ofthe present dispute because they have no relation to the temple at Nathdwara.However, as a matter of history, it may be worthwhile to recall that the Firmanissued by Akbar on May 31, 1593 A.D. shows that Vithalrai had represented tothe Darbar that he had purchased on paying its price land from the ownersthereof in the Mowzah of Jatipura, situated in the Paraganah, adjoining Gordhanand had caused to be built thereon buildings, gardens, cowsheds and karkhanas(workshops) for the temple of Gordhan Nath and that he was residing there.Having received this representation, Akbar issued an order that theabove-mentioned Mowzah had been given over tax-free into the possession of theabove-mentioned Goswami from descendant to descendant. It would thus be seenthat though the grant by which the land in question was exempted from paymentof taxes is in the name of the Goswami, there can be no doubt that it was sonamed on the representation made by the Goswami that he had purchased the landand built structures on it for the temple of Gordhan Nath. Thus, in substance,the grant was made to the Goswami who was managing the temple of Gordhan Nath.The grant of Shah Jahan made in 1633 A.D. is to the same effect. These grantsare in reference to the temple built by Vithalrai in Jatipura. We have alreadyseen that the idol of Shrinathji was removed from the said temple and broughtto Nathdwara in about 1671.
26. The earliest document in regard to Siarh is of the year 1672 A.D. Thedocument has been issued by the Rana of Udaipur and it says that 'Be itknow that Shrinathji residing at Sihod Let uncultivated land as may desire becultivated till such time. When Shrinathji goes back to Brij the land of thoseto whom it belongs will be returned to them. If any one obstructs in any way hewill be rebuked.' The next document is of 1680 A.D. It has been issued byRana of Udaipur and is in similar terms. It says that when Shrinathji goes backto Brij from Singhad Brahmins will get the land which is of the Brahmins. Theywill get the land as is entered in previous records. So long as Shrinathjistays here, no Brahmin shall cultivate towards the West of Shah Jagivan's wallup to and across the foot of the hillock. If any one cultivates a fine of Rs.225/- shall be realised collectively. Fortunately, for Nathdwara, the templewhich was then built for Shrinathji for a temporary abode has turned out to beShrinathji's permanent place of residence. These two documents clearly showthat after Shrinathji was installed in what is now known as Nathdwara, the landoccupied for the purpose of the temple was given over for that purpose and theactual occupants and cultivators were told that they would get the land backwhen Shrinathji goes back to Brij.
27. We have already cited the extract from Col. Todd's 'Annals of Rajasthan'in which he has graphically described the traditional belief in regard to thechoice of Siarh for the abode of Shrinathji. That extract shows that as soon asthe chariot wheel of Shrinathji stopped and would not move, the chief hastenedto make a perpetual gift of the village and its lands which was speedilyconfirmed by the patent of the Rana. Nathji was removed from his car and in duecourse of time a temple was erected for his reception. That is how the hamletof Siarh became the town of Nathdwara. This assurance given by the chief wasconfirmed by the two grants to which we have just referred. Thus, there can beno doubt that the original grants were for the purpose of the temple.
28. A deed of dedication executed by Maharana Shri Bhim Singhji in favour ofGusainji in Sambat 1865 also shows that the lands therein described had beendedicated to Shriji and Shri Gusainji and that all the income relating to thoselands would be dedicated to the Bhandar of Shriji.
29. A letter written by the Maharana on January 17, 1825, speaks to the sameeffect. 'Our ancestors,' says the letter, 'kept the ThakurjiMaharaj and the Gosainji Maharaj at the village of Shinhad which is nearUdaipur and presented that village to the Thakurji. After this, our ancestorsbecame followers of that religion and agreed to obey orders. They all grantedlands and villages for the expenses of the God. Besides these certain landswere granted for the grazing of the cows belonging to the Thakurji.' Thisletter contains certain orders to the officers of the State to respect therights of the temple and Gosainji.
30. Consistently with this record, we find a declaration made by TilkayatGordhanji in 1932 in which he stated that 'the money of Shri Thakurji asis the practice now, that it is not spent in our private expenditure the samewill be followed', though along with this declaration he added that theproprietary right was his own from the time of the ancestors. In conformitywith the same, the entry will continue as usual in the accounts of credit anddebit as is the continuing mutation. Even though the Tilkayat set up the claimthat the temple was private, it is consistently adhered to that the incomederived from the properties of the temple is not intended to be and has neverbeen used for the personal requirements of the Tilkayat.
31. It is true that there are other grants which have been produced on therecord by the Tilkayat for the purpose of showing that some gifts of immovableproperty were made in favour of the Tilkayat. Such grants may either show thatthe gifts were made to the Tilkayat because he was in the management of thetemple, or they may have been made to the Tilkayat in his personal character.Grants falling in the former category would constitute the property of thetemple, whilst those falling in the latter category would constitute theprivate property of the Talikayat. These grants, however, would not affect thenature of the initial grants made to the temple soon after Shrinathji came toNathdwara. Therefore in our opinion, having regard to the documentary evidenceadduced in the present proceedings, it would be unreasonable to contend thatthe temple was built by the Tilkayat of the day as his private temple and thatit still continues to have the character of a private temple. From outside itno doubt has the appearance of a Haveli, but it is common ground that themajestic structure inside is consistent with the dignity of the idol and withthe character of the temple as a public temple.
32. We have referred to these aspects of the matter because they wereelaborately argued before us by the learned Attorney-General. But as we willpresently point out, the Firman issued by the Udaipur Darbar in 1934 reallyconcludes the controversy between the parties on these points and it shows thatthe Shrinathji Temple at Nathdwara is undoubtedly a public temple. It istherefore, now necessary to consider this Firman. This Firman consists of fourclauses. The first clause declares that according to the law of Udaipur, theshrine of Shrinathji has always been and is a religious institution for thefollowers of the Vaishnava Sampradaya and that all the property immovable andmovable dedicated, offered or presented to or otherwise coming to the DeityShrinathji has always been and is the property of the shrine and that theTilkayat Maharaj for the time being is merely a Custodian, Manager and Trusteeof the said property for the shrine of Shrinathji and that the Udaipur Darbarhas absolute right to supervise that the property dedicated to the shrine isused for legitimate purpose of the shrine. The second clause deals with thequestion of succession and it provides that the law of Udaipur has always beenand is that the succession to the Gaddi of Tilkayat Maharaj is regulated by thelaw of Primogeniture, and it adds that the Udaipur Darbar has the absoluteright to depose any Tilkayat Maharaj for the time being if in its absolutediscretion such Maharaj is considered unfit and also for the same reason and inthe same way to disqualify any person who would otherwise have succeeded to theGaddi according to the law of primogeniture. The third clause provides that in casethe Tilkayat Maharaj is a minor, the Darbar always had and has absoluteauthority to take any measures for the management of the shrine and itsproperties during such minority. The last clause adds that in accordance withthe said law of Udaipur, the Rana had declared Shri Domodarlalji unfit tooccupy the Gaddi and had approved of the succession of Goswami Govindlalji tothe Gaddi of Tilkayat Maharaj, and it ends with the statement that the orderissued in that behalf on October 10, 1933, was issued under his authority andis lawful and in accordance with the law of Udaipur.
33. In appreciating the effect of this Firman, it is first necessary todecide whether the Firman is a law or not. It is matter of common knowledgethat at the relevant time the Maharana of Udaipur was an absolute monarch inwhom vested all the legislative, judicial and executive powers of the State. Inthe case of an absolute Ruler like the Maharana of Udaipur, it is difficult tomake any distinction between an executive order issued by him or a legislativecommand issued by him. Any order issued by such a Ruler has the force of lawand did govern the rights of the parties affected thereby. This position iscovered by decisions of this Court and it has not been disputed before us, VideMadhaorao Phalke v. The State of Madhya Bharat ( 1 S.C.R. 957.).Ammer-un-Nisa Begum v. Mahboob Begum : AIR1955SC352 , and Director ofEndowments, Government of Hyderabad v. Akram Ali : AIR1956SC60 .
34. It is true that in dealing with the effect of this Firman, the learnedAttorney-General sought to raise before us a novel point that under Hindu laweven absolute monarch was not competent to make a law affecting religiousendowments and their administration. He suggested that he was in a position torely upon the opinions of scholars which tended to show that a Hindu monarchwas competent only to administer the law as prescribed by Smritis and the oathwhich he was expected to take at the time of his coronation enjoined him to obeythe Smritis and to see that their injunctions were obeyed by his subject. We donot allow the learned Attorney-General to develop this point because we holdthat this novel point cannot be accepted in view of the well-recognisedprinciples of jurisprudence. An absolute monarch was the fountain-head of alllegislative, executive and judicial powers and it is of the very essence ofsovereignty which vested in him that he could supervise and control theadministration of the public charity. In our opinion, there is no doubtwhatever that this universal principle in regard to the scope of the powersinherently vesting in sovereignty applies as much to Hindu monarchs as to anyother absolute monarch. Therefore, it must be held that the Firman issued bythe Maharana of Udaipur in 1934 is a law by which the affairs of the Nathdwaratemple and succession to the office of the Tilkayat were governed after itsissue.
35. Then the learned Attorney-General contended that in judging about theeffect of this Firman we should not ignore the background of events whichnecessitated its issue. Damodarlalji had been deposed by Maharana and it wasmore in anger that the Firman was issued to meet the challenge of the saidincident. Damodarlalji had filed certain suits in the Bombay High Court and itappeared as if a doubt would arise in the minds of the followers and devoteesof the temple as to whether the deposition of Damodarlalji was valid or not. Itwas with a view to meet this specific particular situation that the Firman wasissued and so, it need not be treated as a law binding for all times. In ouropinion, this argument is clearly misconceived. Whatever may be the genesis ofthe Firman and whatever may be the nature of the mischief which it was intendedto redress, the words used in the Firman are clear and as provisions containedin a statute they must be given full effect. There can be little doubt thatafter this Firman was issued, it would not be open to anyone to contend thatthe Shrinathji temple was a private temple belonging to the Tilkayat Maharaj ofthe day. This law declares that it has always been and would always be a publictemple. The validity of this law was not then and is not now open to anychallenge when it seeks to declare that the temple in question has always beena public temple. We have already seen that the original grants amply bear outthe recital in clause 1 of the Firman about the character of this temple. TheFirman then clearly provides that the Tilkayat Maharaj is merely a Custodian,Manager and Trustee of the said property and that finally determines the natureof the office held by the Tilkayat Maharaj. He can claim no better and nohigher rights after the Firman was issued. The said clause also declares thatthe Darbar has absolute right to see to it that the property is used forlegitimate purpose of the shrine. This again is an assertion which is validlymade to assert the sovereign's rights to supervise the administration of publiccharity. Clause 2 lays down the absolute right of the Darbar to depose theTilkayat and to disqualify anyone from claiming the succession to the Gaddi. Itshows that succession to the Gaddi and continuing in the office of the Tilkayatare wholly dependent on the discretion of the Darbar. The Right of the Darbar todepose the Tilkayat and to recognise a successor or not is described by thisclause as absolute. The third and the fourth clauses are consistent with thefirst two clauses. Reading this Firman as a whole, there can be no doubt thatunder the law of Udaipur, this temple was held to be a public temple and theTilkayat was held to be no more than the Custodian, Manager and Trustee of theproperty belonging to the said temple. It is on the basis of this law that thevires of the Act must inevitably be determined.
36. The learned Attorney-General has invited our attention to some decisionsin which the temples of this cult were held to be private temples. We would nowvery briefly refer to these decisions before we proceed to deal with the otherpoints raised in the present appeals. In Gossamee Sree Greedhareejee v.Rumanlolljee Gossamee (16 I.A. 137.), the Privy Council held that when theworship of a Thakoor has been founded under Hindu law, the shebaitship is heldto be vested in the heirs of the founder, in default of evidence that he hasdisposed of it otherwise, or that there has been some usage, course of dealing,or circumstances to show a different mode of devolution. Greedhareejee who asthe plaintiff appeared before the Privy Council as the appellant had beendeposed by the Rana of Udaipur in 1876. He claimed the rights of shebaitship ofa certain consecrated idol and as incident thereto to the things which had beenoffered to the idol. This claim was based on the allegation that by the rule ofprimogeniture he had preferential right and not his opponent RumanlolljeeGossamee. The High Court of Calcutta by a majority judgment had held thatGreedhareejee's title as a founder had been established and that the bar oflimitation pleaded by the respondent applied to the temple and the land onwhich it was built but not to the image and the movable property connected withit. In the result, Greedhareejee got a decree for so much of his claim as wasnot barred by lapse of time. This conclusion was confirmed by the PrivyCouncil. It would be noticed that since the dispute was between two rivalclaimants neither of whom was interested in pleading that the temple was apublic temple, that aspect of the matter did not fall to be considered in thesaid litigation, and so, this decision can be regarded as an authority only forthe proposition which it laid down in regard to the succession of theShebaitship. The learned Attorney-General no doubt invited our attention to thefact that in the course of his judgment, Lord Hobhouse has mentioned that allthe male members of the Vallabh's family are in their lifetime esteemed bytheir community as partaking of the Divine essence, and as entitled toveneration and worship. This observation, however, can be of little help to theTilkayat in the present proceedings where we have to deal with the matter onthe basis of the Firman to which we have just referred. Besides, we mayincidentally add that the Tilkayat's claims to property rights in the presentproceedings based on the allegation that the members of the denomination regardall successors of Vallabha with the same respect which they had for Vallabhahimself, sounds incongruous with the essential tenets of Vallabha's philosophy.
37. In Mohan Lalji v. Gordhan Lalji Maharaj (40 I.A. 97.), the dispute whichwas taken before the Privy Council was in regard to the right claimed by thesons of a daughter to the shebaitship of the temple of Vallabha sect, and insupport of the said right the sons of the daughter relied upon the earlierdecision of the Privy Council in the case of Gossamee Sree Girdhareejee (16I.A. 137.). In rejecting the plea made by the said sons, the Privy Councilobserved that the principle laid down in the earlier case cannot be applied soas to vest the shebaitship in persons who, according to the usages of theworship, cannot perform the rites of the office. In that case it was found thatthe sons of the daughter who were Bhatts and who did not belong to the GosainKul were incompetent to perform the 'diurnal rites for the deityworshipped by the sect' and so, the decision of the High Court which hadrejected their claim was confirmed. In this case again neither party wasinterested in pleading the public character of the temple and so, that pointdid not arise for decision.
38. The same comment falls to be made about the decision of the AllahabadHigh Court in Gopal Lalji v. Girdhar Lalji (A.I.R. 1915 All. 44.). It is truethat in that case the plaintiff challenged a gift deed executed by one Goswamiof the Vallabha sect in favour of another Goswami and in doing so he allegedthat the donor Goswami was a Trustee and not the owner of the property. But inthe course of the evidence, it was virtually conceded by him that the propertybelonged to the donor Goswami, and so, the case was decided on that basis. Inits judgment, the High Court observed that there can be no doubt that if wemust regard the property as 'trust property' in the strict sense,dedicated for a charitable or religious purpose in the hands of dulyconstituted trustees of the charitable or religious object, one or more of suchtrustees would have no power to alienate the trust property or delegate theirpowers and duties contrary to the trust. But the High Court found that theevidence adduced conclusively established that the property in question wasprivate property and so, the challenge to the validity of the gift wasrepelled. This decision also cannot be of any assistance in deciding thequestion as to whether the temple with which the present proceedings concernedis a private or a public temple. Besides, as we have already indicated, thisquestion is really concluded by the Firman of 1934 and so, the temple must beheld to be a public temple and in consequence the challenge to the validity ofthe Act on the basis that the Act has interfered with the Tilkayat's rights ofownership over his private property cannot succeed.
39. Let us now examine the material provisions of the Act before dealingwith the contentions of the Tilkayat that the said provisions contravene hisfundamental rights under Art. 19(1)(f) and Arts. 14 and 31(2) even on the basisthat the temple is a public temple. The Act was passed to provide for thebetter administration and governance of the temple of Shri Shrinathji, at Nathdwara.It consists of 38 sections. Section 2 is a definition section; under s. 2(i)'Board' means the Nathdwara Temple Board established and constitutedunder the Act, and s. 2(ii) defines 'Endowment' as meaning allproperty, movable or immovable belonging to or given or endowed in any name forthe maintenance or support of the temple or for the performance of any serviceor charity connected therewith or for the benefit, convenience or comfort ofthe pilgrims visiting the temple, and includes -
(a) the idols installed in thetemple.
(b) the premises of the temple.
(c) all jagirs, muafis and otherproperties, movable or immovable, wherever situate and all income derived fromany source whatsoever and standing in any name, dedicated to the temple or placedfor any religious, pious or charitable purposes under the Board or purchasedfrom out of the temple funds and all offerings and bhents made for and receivedon behalf of the temple.
but shall not include anyproperty belonging to the Goswami personally although the same or incomethereof might hitherto have been utilised in part or in whole in the service ofthe temple.
40. Section 2(viii) defines 'temple' as meaning the temple of ShriShrinathji at Nathdwara in Udaipur District and includes the temple of ShriNavnitpriyaji and Shri Madan Mohanlalji together with all additions thereto orall alterations thereof which may be made from time to time after thecommencement of the Act.
41. Sections 3 and 4 are important provisions of the Act. Section 3 providesthat the ownership of the temple and all its endowments including all offeringswhich have been or may hereafter be made shall vest in the deity of ShriShrinathji and the Board constituted under the Act shall be entitled to theirpossession. In other words, all property of the temple vests in the temple andthe right to claim possession of it vests in the Board. As a corollary to theprovisions of s. 3, s. 4(1) provides that the administration of the temple andall its endowments shall vest in the Board constituted in the mannerhereinafter provided. Sub-section (2) lays down that the Board shall be a bodycorporate by the name of the Nathdwara Temple Board and shall have perpetualsuccession and a common seal with power to acquire and hold property, bothmovable and immovable, and may sue or be sued in the said name. The compositionof the Board has been prescribed by s. 5 : it shall consist of a President, theCollector of Udaipur District and nine other members. The proviso to thesection is important : it says that the Goswami shall be one of such members ifhe is not otherwise disqualified to be a member and is willing to serve assuch. Section 5(2) prescribes the disqualifications specified in clauses (a) to(g) - unsoundness of mind adjudicated upon by competent Court, convictioninvolving moral turpitude; adjudication as an insolvent or the status of anundischarged insolvent; minority, the defect of being deaf-mute or leprosy;holding an office or being a servant of the temple or being in receipt of anyemoluments or perquisites from the temple; being interested in a subsistingcontract entered into with the temple; and lastly, not professing the Hindureligion or not belonging to the Pushti-Margiya Vallabhi Sampradaya. There canbe no doubt that 'or' in clause (g) must mean 'and', forthe context clearly indicates that way. There is a proviso to s. 5(2) whichlays down that the disqualification as to the holding of an office or anemployment under the temple shall not apply to the Goswami and thedisqualification about the religion will not apply to the Collector; that is tosay, a Collector will be a member of the Board even though he may not be aHindu and a follower of the denomination. Section 5(3) provides that thePresident of the Board shall be appointed by the State Government and shall forall purposes be deemed to be a member. Under s. 5(4) the Collector shall be anex-officio member of the Board. Section 5(5) provides that all the othermembers specified in sub-clause (1) shall be appointed by the State Governmentso as to secure representation of the Pushti-Margiya Vaishnavas from all overIndia. This clearly contemplates that the other members of the Board should notonly be Hindus, but should also belong to the denomination, for it is in thatmanner alone that their representation can be adequately secured. Section 6gives liberty to the President or any member to resign his office by giving anotice in writing to the State Government. Under s. 7(1), the State Governmentis given the power to remove from office the President or any member, otherthan the ex-officio member, including the Goswami on any of the three groundsspecified in clauses (a), (b) & (c); ground (a) refers to thedisqualification specified by s. 5(2), ground (b) refers to the absence of themember for more than four consecutive meetings of the Board without obtainingleave for absence; and ground (c) refers to the case where a member is guiltyof corruption or misconduct in the administration of the endowment. Section7(2) provides a safeguard to the person against whom action is intended to betaken under sub-clause (1) and it lays down that no person shall be removedunless he has been given a reasonable opportunity of showing cause against hisremoval. It would be noticed that by operation of s. 7(1), the Goswami isliable to be removed, but that removal would, in a sense, be ineffectivebecause the proviso to s. 5 requires that the Goswami has to be a member of theBoard so that even though he is removed for causes (b) and (c), he wouldautomatically be deemed to be a member under the proviso to s. 5. It would be adifferent matter if the Goswami is removed by reason of the fact that he isdisqualified on any of the grounds described in s. 5(2). Such adisqualification may presumably necessitate the appointment of a successor,Goswami in lieu of the disqualified one and then it would be the successorGoswami who will be a member of the Board under the proviso to s. 5(1). Thisposition is made clear if we look at s. 11 which provides that any personceasing to be a member shall, unless disqualified under s. 5(2) be eligible forre-appointment, whereas other members who are removed under s. 7(1) for causesspecified in clauses (b) and (c) may not be eligible for re-appointment, theGoswami would be entitled to such re-appointment. Section 8 prescribes the termof office at 3 years. Section 9 provides for the filling up of casualvacancies. Section 10 empowers the State Government to dissolve the Board andreconstitute it if it is satisfied that the existing Board is not competent toperform or persistently makes default in performing the duties imposed on itunder this Act, or exceeds or abuses its powers; and this power can beexercised after due enquiry. This section further provides that if a Board isdissolved, immediate action should be taken to reconstitute a fresh Board inaccordance with the provisions of this Act. Section 10(2) provides a safeguardto the Board against which action is proposed to be taken under sub-s. (1)inasmuch as it requires that before the notification of the Board's dissolutionis issued, Government will communicate to the Board the grounds on which itproposes so to do, fix a reasonable time for the Board to show cause andconsider its explanation or objections, if any. Section 10(3) empowers theState Government, as a provisional and interim measure, to appoint a person toperform the functions of the Board until a fresh Board is reconstituted, andunder s. 10(4), the State Government is given the power to fix the remunerationof the person so appointed. Section 12 makes every member of the Board liablefor loss, waste or misapplication of any money or property belonging to thetemple, provided such loss, waste or misapplication is a direct consequence ofhis wilful act or omission, and it allows a suit to be instituted to obtainsuch compensation. Under s. 13, members of the Board as well as the Presidentare entitled to draw travelling and halting allowances as may be prescribed.Section 14 deals with the office and meetings of the Board and s. 15 providesthat any defect or vacancy in the constitution of the Board will not invalidatethe acts of the Board. Section 16 is important. It lays down that subject tothe provisions of this Act and of the rules made thereunder, the Board shallmanage the properties and affairs of the temple and arrange for the conduct ofthe daily worship and ceremonies and of festivals in the temple according tothe customs and usage of the Pushti-Margiya Vallabhi Sampradaya. Section 17(1)provides that the jewelleries or other valuable moveable property of anon-perishable character the administration of which vests in the Board shallnot be transferred without the previous sanction of the Board, and if the valueof the property to be transferred exceeds ten thousand rupees, the previousapproval of the State Government has to be obtained. Section 17(2) requires theprevious sanction of the State Government for leasing the temple property formore than five years, or mortgaging, selling or otherwise alienating it.Section 18 imposes a ban on the borrowing power of the Board. Section 19(1)provides for the appointment of the Chief Executive Officer of the temple, andthe remaining four sub-sections of s. 19 deal with his terms and conditions ofservice. Section 20 speaks of the powers and duties of the Chief ExecutiveOfficer which relate to the administration of the temple properties. Section 21provides that the Board may appoint, suspend, remove, dismiss or reduce in rankor in any way punish all officers and servants of the Board other than theChief Executive Officer, in accordance with rules made by the State Government.Section 22 is very important. It provides that save as otherwise expresslyprovided in or under this Act, nothing herein contained shall affect anyestablished usage of the temple or the rights, honours, emoluments andperquisites to which any person may, by custom or otherwise, be entitled in thetemple. Section 23 deals with the budget, s. 24 with accounts and s. 25 withthe Administration Report. Section 26 confers on the State Government power tocall for such information and accounts as may, in its opinion, be reasonablynecessary to satisfy it that the temple is being properly maintained, and itsadministration carried on according to the provisions of this Act. Under thissection, the Board is under an obligation to furnish forthwith such informationand accounts as may be called for by the State Government. Under s. 27, theState Government may depute any person to inspect any movable or immovableproperty, records, correspondence, plans, accounts and other documents relatingto the temple and endowments, and the Board and its officers and servants shallbe bound to afford all facilities to such persons for such inspection. Section28(1) specifies the purposes for which the funds of the temple may be utilisedand s. 28(2) provides that without prejudice to the purposes referred to insub-s. (1), the Board may, with the previous sanction of the State Government,order that the surplus funds of the temple be utilised for the purposesmentioned in clauses (a) to (e). Section 28(3) requires that the order of theBoard under sub-s. (2) shall be published in the prescribed manner. Section 29 deals with the duties of trustee ofspecific endowment; s. 30(1) confers the power on the State Government to makerules for carrying out all or any of the purposes of the Act; s. 30(2) providesthat in particular and without prejudice to the generality of the foregoingpower, the State Government shall have power to make rules with reference tomatters covered by clauses (a) to (i). Under sub-section (3) it is providedthat the rules made under this Act shall be placed before the House of theState Legislature at the session thereof next following. Section 31 providesthat the State Government or any person interested may institute a suit in theCourt of District Judge to obtain a decree for the reliefs mentioned in clauses(a) to (e). These reliefs correspond to the relief which may be obtained in asuit under s. 92 Code of Civil Procedure. In consequence, s. 31(2) providesthat Sections 92 and 93 and O. I, r. 8, of the First Schedule to the Code of CivilProcedure shall have no application to any suit claiming any relief in respectof the administration or management of the temple and no suit in respectthereof shall be instituted except as provided by this Act. In other words, asuit which would normally have been filed under Sections 92 and 93 and O. I, r. 8,of the Code has now to be filed under s. 31. Section 32 deals with theresistance or obstruction in obtaining possession and it provides that theorder which may be passed by the Magistrate in such matters shall, subject tothe result of any suit which may be filed to establish the right to thepossession of the property, be final. Section 33 deals with the costs of thesuit, etc. Section 34 provides that this Act shall have effect notwithstandinganything to the contrary contained in any law for the time being in force or inany scheme of management framed before the commencement of this Act or in anydecree, order, practice, custom or usage. Section 35 contains a transitionalprovision and it empowers the State Government to appoint one or more personsto discharge all or any of the duties of the Board after the Act comes intoforce and before the first Board is constituted. Under s. 36 it is providedthat if any difficulty arises in giving effect to any of the provisions of thisAct, the State Government may, by order, give such directions and make suchprovisions as may appear to it to be necessary for the purpose of removing thedifficulty. Section 37 prescribes a bar to suit or proceeding against the StateGovernment for anything done or purported to be done by it under the provisionsof this Act. The last section deals with repeal and savings. The RajasthanOrdinance No. 2 of 1959 which had preceded this Act has been repealed by thissection. That in brief, is the scheme of the Act.
42. Later, we will have occasion to deal with the specific sections whichhave been challenged before us, but at this stage, it is necessary to considerthe broad scheme of the Act in order to be able to appreciate the points raisedby the Tilkayat and the denomination in challenging its validity. For thepurpose of ascertaining the true scope and effect of the scheme envisaged bythe Act it is necessary to concentrate on sections 3, 4, 16, 22 and 34. Thescheme of the Act, as its preamble indicates is to provide for the betteradministration and governance of the temple of Shri Shrinathji at Nathdwara. Itproceeds on the basis that the temple of Shrinathji is a public temple andhaving regard to the background of the administration of its affairs in thepast, the legislature thought that it was necessary to make a more satisfactoryprovision which will lead to its better administration and governance. In doingso, the legislature has taken precaution to safeguard the performance ofreligious rites and the observance of religious practices in accordance withtraditional usage and custom. When the validity of any legislative enactment isimpugned on the ground that its material provisions contravene one or the otherof the fundamental rights guaranteed by the Constitution, it is necessary tobear in mind the primary rule of construction. If the impugned provisions ofthe Statute are reasonably capable of a construction which does not involve theinfringement of any fundamental rights, that construction must be preferredthough it may reasonably be possible to adopt another construction which leadsto the infringement of the said fundamental rights. If the impugned provisionsare reasonably not capable of the construction which would save its validity,that of course is another matter; but if two constructions are reasonablypossible, then it is necessary that the Courts should adopt that constructionwhich upholds the validity of the Act rather than the one which affects its validity.Bearing this rule of construction in mind, we must examine the five sections towhich we have just referred. Section 3 no doubt provides for the vesting of thetemple property and all its endowments including offerings in the deity ofShrinathji, and that clearly is unexceptionable. If the temple is a publictemple, under Hindu Law the idol of Shrinathji is a juridical person and so,the ownership of the temple and all its endowments including offerings madebefore the idol constitute the property of the idol. Having thus stated what isthe true legal position about the ownership of the temple and the endowments,s. 3 proceeds to add that the Board constituted under this Act shall beentitled to the possession of the said property. If the legislature intended toprovide for the better administration of the temple properties, it wasabsolutely essential to constitute a proper Board to look after the saidadministration, and so, all that s. 3 does is to enable the Board to take careof the temple properties and in that sense, it provides that the Board shall beentitled to claim possession of the said properties. In the context thisprovision does not mean that the Board would be entitled to dispossess personswho are in possession of the said properties : it only means that the Boardwill be entitled to protect its possession by taking such steps as in law maybe open to it and necessary in that behalf. Section 4 is a mere corollary to s.3 because it provides that the administration of the temple and all itsendowments shall vest in the Board. Thus, the result of reading Sections 3 and 4 isthat the statute declares that the properties of the temple vest in the deityof Shrinathji and provides for the administration of the said properties byappointing a Board and entrusting to the Board the said administration.
43. The true scope and effect of these provisions can be properlyappreciated only when they are correlated to Sections 16 and 22. Section 16prescribes the duties of the Board; it requires that subject to the provisionsof the Act and the rules framed under it, the Board has to manage theproperties and affairs of the temple and arrange for the conduct of the dailyworship and ceremonies and of festivals in the temple according to the customsand usages of the Pushtimargiya Vallabhi Sampradaya. It would be noticed thattwo different categories of duties are imposed upon the Board. The first dutyis to manage the properties and secular affairs of the temple. This naturallyis a very important part of the assignment of the Board. Having thus providedfor the discharge of its important function in the matter of administering theproperties of the temple, the section adds that it will be the duty of theBoard to arrange for the religious worship, ceremonies and festivals in thetemple, but this has to be done according to the customs and usages of thedenomination. It is thus clear that the duties of the Board in so far as theyrelate to the worship and other religious ceremonies and festivals, it is thetraditional customs and usage which is of paramount importance. In other words,the legislature has taken precaution to safeguard the due observance of thereligious ceremonies, worship and festivals according to the custom and usageof the denomination. Section 22 makes this position still clearer; it providesthat save as otherwise expressly provided in or under the Act, nothing hereincontained shall affect any established usage of the temple or the rights,honours, emoluments and perquisites to which any person may, by custom orotherwise, be entitled in the temple. The saving provisions of s. 22 are verywide; unless there is an express provision to the contrary in the Act, allmatters which have been saved by s. 22 will be governed by the traditionalusage and custom. If only we consider the very wide terms in which the savingclause under s. 22 has been drafted, it will be clear that the legislature wasanxious to provide for the better administration of the temple properties andnot to infringe upon the traditional religious ceremonies, worship andfestivals in the temple and the rights, honours, emoluments and the perquisitesattached thereto. Section 34 which provides for the over-riding effect of theAct must be read along with s. 22 and so, when it provides that the Act shallhave effect notwithstanding practice, custom or usage, it only means thatpractice, custom and usage will not avail if there is an express provision tothe contrary as prescribed by s. 22.
44. Reading these five sections together, it seems to us clear that theLegislature has provided for the appointment of a Board to look after theadministration of the property of the temple and manage its secular affairs aswell as the religious affairs of the temple, but in regard to these religiousaffairs consisting of the worship, services, festivals and other ceremonies,the custom prevailing in the temple consistently with the tenets of Vallabhaphilosophy are to be respected. The learned Attorney-General no doubt attemptedto read Sections 3 and 4 in a very wide manner and he sought to place a narrowconstruction on s. 22, thereby indicating that even religious ceremonies andrites and festivals would remain within the exclusive jurisdiction of the Boardwithout reference to the traditional custom or usage. We do not think that itwould be appropriate to adopt such an approach in construing the relevantprovisions of the Act. We have no doubt that when rules are framed under s. 30of the Act, they would be framed bearing in mind these essential features ofthe material provisions of the Act and will help to carry out the object of theAct in keeping the religious part of the services and worship at the templeapart from the secular part of the administration of the temple properties.Broadly stated, the former will be carried out according to the traditionalusage and custom and the latter according to the provisions of the Act.
45. On behalf of the Tilkayat, the main contention which has been raisedbefore us by the learned Attorney-General is that his right of property hasbeen infringed under Art. 19(1)(f) and Mr. Pathak has added that the relevantprovisions infringed the Tilkayat's rights under Art. 31(2) of theConstitution. As we have already indicated this latter contention is raised inthe writ petition filed by the Tilkayat in this Court. Now in deciding thevalidity of these contentions it is necessary to revert to the Firman issued bythe Rana of Udaipur in 1934, because the rights of the Tilkayat have to bejudged in the light of the said Firman. We have already noticed that the saidFirman clearly declares that the Tilkayat is merely a Custodian, Manager andTrustee of the property of the shrine Shrinathji and that the Udaipur Darbarhas the absolute right to supervise that the property dedicated to the shrineis used for legitimate purpose of the shrine. Having regard to the unambiguousand emphatic words used in clause 1 of the Firman and having regard to otherdrastic provisions contained in its remaining clauses, we are inclined to thinkthat this Firman made the Tilkayat for the time being a Custodian, Manager andTrustee, and nothing more. As a Custodian or Manager, he had the right tomanage the properties of the temple, subject, of course, to the overallsupervision of the Darbar, the right of the Darbar in that behalf beingabsolute. He was also a Trustee of the said property and the word'trustee' in the context must mean trustee in the technical legalsense. In other words, it is not open to the Tilkayat to claim that he hasrights of a Mahant or a Shebait; his rights are now defined and he cannot claimany higher rights after the Firman was issued. There can be no doubt that theright to have the custody of the property such as the Custodian has, or theright to manage the property such as the Manager possesses, or the right toadminister the trust property for the benefit of the beneficiary which theTrustee can do, cannot be regarded as a right to property under Art. 19(1)(f)and for the same reason, it does not constitute property under Art. 31(2). Ifit is held that the Tilkayat was no more than a Custodian, Manager and Trusteeproperly so called, there can be no doubt that he is not entitled to relyeither on Art. 19(1)(f) or on Art. 31(2). Therefore, on this construction of clause1 of the Firman, the short answer to the pleas raised by the Tilkayat underArts. 19(1)(f) and 31(2) is that the rights such as he possesses under the saidclause cannot attract Art. 19(1)(f) or Art. 31(2).
46. It has, however, been strenously urged before us that the words'Custodian, Manager or Trustee' should be liberally construed and theposition of the Tilkayat should be taken to be similar to that of a Mahant of aMath or a Shebait of a temple. Under Hindu Law, idols and Maths are bothjuridical persons and Shebaits and Mahants who manage their properties arerecognised to possess certain rights and to claim a certain status. A Shebaitby virtue of his office is the person entitled to administer the propertyattached to the temple of which he is a Shebait. Similarly a Mahant who is aspiritual head of the Math or religious institution is entitled to manage thesaid property for and on behalf of the Math. The position of the Mahant underHindu law is not strictly that of a Trustee. As Mr. Ameer Ali delivering thejudgment of the Board observed in Vidya Varuthi Thirtha v. Balusami Ayyar((1921) L.R. 48 I.A. 302, 311.), 'called by whatever name he is only themanager and custodian of the idol or the institution.' When the gift isdirectly to an idol or a temple, the seisin to complete the gift is necessarilyeffected by human agency. In almost every case the Mahant is given the right toa part of the usufruct, the mode of enjoyment and the amount of the usufructdepending again on usage and custom. In no case was the property conveyed to orvested in him, nor is he a 'trustee' in the English sense of theterm, though in view of the obligations and duties resting on him, he isanswerable as a trustee in the general sense for mal-administration.
47. This position has been accepted by this Court in The Commissioner, HinduReligious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri ShirurMutt. ( S.C.R. 1005.). Speaking for the unanimous Court in that case,Mukherjea, J., observed, 'Thus in the conception of Mahantship, as inShebaitship, both the elements of office and property, of duties and personalinterest are blended together, and neither can be detached from the other. Thepersonal or beneficial interest of the Mahant in the endowments attached to aninstitution is manifested in his large powers of disposal and administrationand his right to create derivative tenures in respect to endowed properties;and these and other rights of a similar character invest the office of theMahant with the character of proprietary right which, though anomalous to someextent, is still a genuine legal right.' On this view, this Court heldthat the right of this character vesting in a Mahant is a right to propertyunder Art. 19(1)(f) of the Constitution. Relying on this decision, it is urgedthat the Firman should be construed to make the Tilkayat a Mahant or a Shebaitand as such, clothed with rights which amount to a right to property under Art.19(1)(f) and which constitute property under Art. 31(2).
48. Assuming that the construction of clause 1 of the Firman suggested bythe learned Attorney-General is possible, let us examine the position on thebasis that the Tilkayat can, in theory, be regarded as a Mahant of the temple.What then are the rights to which, according to the relevant evidence producedin this case, the Mahant is entitled in respect of the temple As a Tilkayat,he has a right to reside in the temple; as such Mahant he has a right toconduct or arrange for and supervise the worship of the idol in the temple andthe services rendered therein in accordance with the traditional custom andusage. He has also the right to receive bhents on behalf of the idol anddistribute Prasad in accordance with the traditional custom and usage. So far asthese rights are concerned, they have not been affected by the Act, and so, noargument can be raised that in affecting the said rights the Act hascontravened either Art. 19(1)(f) or Art. 31(2). It is, however, argued that asa Mahant, the Tilkayat had the right to manage the properties of the temple, tolease them out and in case of necessity, to alienate them for the purpose ofthe temple; and it is suggested that these rights constitute a right toproperty under Art. 19(1)(f) and property under Art. 31(2). The learnedAttorney-General fairly conceded that there was no evidence to show that theright to alienate had ever been exercised in this case, but he contends thatthe existence of the right cannot be denied. It is also conceded that the rightto manage the properties was subject to the strict and absolute supervision ofthe Darbar, but it is suggested that even so, it is a right which must beregarded as a right to property. In dealing with this argument, it is necessaryto bear in mind that the extent of the rights available to the Tilkayat underclause 1 of the Firman cannot be said to have become larger by virtue of thefact that the Constitution came into force in 1950. It is only the rights toproperty which subsisted in the Tilkayat under the said Firman that would beprotected by the Constitution, provided, of course, they are rights whichattract the provisions of Art. 31(2) or Art. 31(2).
49. This branch of the argument urged on behalf of the Tilkayat naturallyrests on the decision of this Court in the case of the Commissioner, HinduReligious Endowments, Madras ( S.C.R. 1005.), that right of a Mahant doesamount to 'a genuine legal right' and that the said right must beheld to fall under Art. 19(1)(f) because the word 'property' used inthe said clause ought to receive a very liberal interpretation. It will berecalled that in the said case, this Court in terms and expressly approved ofthe decision of Mr. Ameer Ali in Vidya Viruthi Thirtha's case ((1921) L.R. 48I.A. 302, 311.), which exhautively dealt with the position of the Mahant or theShebait under Hindu law. We have already quoted the relevant observations madein that judgment and it would be relevant to repeat one of those observationsin which the Privy Council stated that in almost every case the Mahant is giventhe right to a part of the usufruct, the mode of enjoyment and the amount ofusufruct depending again on usage and custom. It is true that in the passage inMr. Justice Mukherjea's judgment in the case of the Commissioner, HinduReligious Endowments, Madras ( S.C.R. 1005.), this particular statementhas not been cited; but having referred to the rights which the Mahant canclaim, the learned Judge has added that these and other rights of a similarcharacter invest the office of the Mahant with the character of proprietaryright which, though anomalous to some extent, is still a genuine legal right.It is clear that when this Court held that the rights vesting in the Mahant asa manager of the Math amount to a genuine legal right to property, this Courtundoubtedly had in mind the fact that usually, the Mahant or Shebait isentitled to be maintained out of the property of the Math or the temple andthat the extent of the right to a part of the usufruct and the mode ofenjoyment and the amount of the usufruct always depended on usage and custom ofthe Math or the temple. It is in the light of these rights, includingparticularly the right to claim a part of the usufruct for his maintenance thatthis Court held that the totality of the rights amount to a right to propertyunder Art. 19(1)(f).
50. That takes us to the question as the nature and extent of the Tilkayat'srights in regard to the temple property. It is clear that the Tilkayat neverused any income from the property of the temple for his personal needs orprivate purpose. It is true that the learned Attorney-General suggested thatthis consistent course of conduct spreading over a large number of years wasthe result of what he described as self-abnegation on the part of the Tilkayatsfrom generation to generation and from Tilkayat's point of view, it can be soregarded because the Tilkayat thought and claimed that the temple and hisproperties together constituted his private property. But once we reach theconclusion that the temple is a public temple and the properties belonging toit are the properties of the temple over which the Tilkayat has not title orright, we will have to take into account the fact that during the long courseof the management of this temple, the Tilkayat has never claimed anyproprietary interest to any part of the usufruct of the properties of thetemple for his private personal needs, and so, that proprietary interest ofwhich Mr. Ameer Ali spoke in dealing with the position of the Mahant and theShebait and to which this Court referred in the case of Commissioner, HinduReligious Endowments, Madras ( S.C.R. 1005.), is lacking in the presentcase. What the Tilkayat can claim is merely the right to manage the property, tocreate leases in respect of the properties in a reasonable manner andtheoretical right to alienate the property for the purpose of the temple; andbe it noted that these rights could be exercised by the Tilkayat under theabsolute and strict supervision of the Darbar of Udaipur. Now, the right tomanage the property belonging to the temple, or the right to create a lease ofthe property on behalf of the temple, or the right to alienate the property forthe purpose of the temple under the supervision of the Darbar cannot, in ouropinion, be equated with the totality of the powers generally possessed by theMahant or even the Shebait, and so, we are not prepared to hold that havingregard to the character and extent of the rights which can be legitimately claimedby the Tilkayat even on the basis that he was a Mahant governed by the terms ofthe Firman, amount to a right to property under Art. 19(1)(f) or constituteproperty under Art. 31(2).
51. Besides, we may add that even if it was held that these rightsconstituted a right to hold property their regulation by the relevantprovisions of the Act would undoubtedly be protected by Art. 19(5). The templeis a public temple and what the legislature has purported to do is to regulatethe administration of the properties of the temple by the Board of which theTilkayat is and has to be a member. Having regard to the large estate owned bythe Tilkayat and having regard to the very wide extent of the offerings made tothe temple by millions of devotees from day to day; the legislature was clearlyjustified in providing for proper administration of the properties of thetemple. The restrictions imposed by the Act must, therefore, be treated asreasonable and in the interests of the general public.
52. Turning to Mr. Pathak's argument that the rights constitute propertyunder Art. 31(2) and the Act contravenes the said provision because nocompensation had been provided for, or no principles have been prescribed inconnection therewith, the answer would be the same. The right which theTilkayat possesses cannot be regarded as property for the purpose of the Art.31(2). Besides, even if the said rights are held to be property for the purposeof Art. 31(2), there are some obvious answers to the plea which may be briefly indicated.
53. After Art. 31(2) was amended by the Constitution (Fourth Amendment) Act,1955, the position with regard to the scope and effect of the provisions ofArt. 31(1) and 31(2) is no longer in doubt. Article 31(2) deals with thecompulsory acquisition or requisition of a citizen's property and it providesthat a citizen's property can be compulsorily acquired or requisitioned onlyfor a public purpose and by authority of law which provides for compensationand either fixes the amount of the compensation or specifies the principles onwhich and the manner in which, the compensation is to be determined and given;and it adds that no such law shall be called in question in any court on theground that the compensation provided by that law is not adequate. Art. 31(2A)which is expressed in a negative form really amounts to this that where a lawprovides for the transfer of the ownership or right to possession of anyproperty to the State or to a corporation owned or controlled by the State, itshall be deemed to provide for the compulsory acquisition or requisition ofproperty. If, on the other hand, the transfer of the ownership or the right topossession of any property is not made to the State or to a corporation ownedor controlled by the State, it would not be regarded as compulsory acquisitionor requisition of the property, notwithstanding that it does deprive any personof his property. In other words, the power to make a compulsory acquisition orrequisition of a citizen's property provided for by Art. 31(2) is what theAmerican lawyers described as 'eminent domain'; all other cases wherea citizen is deprived of his property are covered by Art. 31(1) and they canbroadly be said to rest on the police powers of the State. Deprivation ofproperty falling under the latter category of cases cannot be effected save byauthority of law; this Court has held that the expression 'save byauthority of law' postulates that the law by whose authority suchdeprivation can be effected must be a valid law in the sense that it must notcontravene the other fundamental rights guaranteed by the Constitution.
54. The argument which has been urged before us by Mr. Pathak is that theright to administer the properties of the temple which vested in the Mahant hasbeen compulsorily acquired and transferred to a Board constituted under the Actwhich Board is controlled by the State. We will assume that the Board inquestion is controlled by the State; but the question still remains whether theright which is allowed to vest in the Tilkayat has been compulsorily acquiredand has been transferred to the Board. In our opinion, what the Act purports todo is to extinguish the secular office vesting in the Tilkayat by which he wasmanaging the properties of the temple. It is well-known that a Mahant combinesin himself both a religious and a secular office. This latter office has beenextinguished by the Act, and so, it cannot be said that the rights vesting inthe Tilkayat to administer the properties have been compulsorily acquired.Acquisition of property, in the context, means the extinction of the citizen'srights in the property and the conferment of the said rights in the State orthe State owned corporation. In the present case, the Act extinguishes theMahant's rights and then creates another body for the purpose of administeringthe properties of the temple. In other words, the office of one functionary isbrought to an end and another functionary has come into existence in its place.Such a process cannot be said to constitute the acquisition of the extinguishedoffice or of the rights vesting in the person holding that office.
55. Besides, there is another way in which this question may perhaps beconsidered. What the Act purports to do is not to acquire the Tilkayat's rightsbut to require him to share those rights with the other members of the Board.We have already seen that the Act postulates that the Mahant for the time beinghas to be a member of the Board and so, the administration of the propertieswhich was so long carried on by the Mahant alone would here after have to becarried on by the Mahant along with his colleagues in the Board. This againcannot, we think, be regarded as a compulsory acquisition of the Tilkayat'srights. It is not suggested that the effect of the relevant provisions of theAct is to bring about the requisitioning of the said rights. Therefore, even ifit is assumed that the rights claimed by the Tilkayat constitute property underArt. 31(2), we do not think that the provisions of Art. 31(2) apply to the Act.But as we have already held, the rights in question do not amount to a right tohold property under Art. 19(1)(f) or to property under Art. 31(2).
56. That takes us to the argument that the Act is invalid because itcontravenes Art. 14. In our opinion, there is no substance in this argument. Wehave referred to the historical background of the present legislation. At thetime when Ordinance No. II of 1959 was issued, it had come to the knowledge ofthe Government of Rajasthan that valuables such as jewelleries, ornaments, goldand silver-ware and cash had been removed by the Tilkayat in the month ofDecember 1957, and as the successor of the State of Mewar, the State ofRajasthan had to exercise its right of supervising the due administration ofthe properties of the temple. There is no doubt that the shrine at Nathdwarahold a unique position amongst the Hindu shrines in the State of Rajasthan andno temple can be regarded as comparable with it. Besides, the Tilkayat himselfhad entered into negotiations for the purpose of obtaining a proper scheme forthe administration of the temple properties and for that purpose, a suit unders. 92 of the Code had in fact been filed. A Commission of Enquiry had to beappointed to investigate into the removal of the valuables. If the temple is apublic temple and the legislature thought that it was essential to safeguardthe interests of the temple by taking adequate legislative action in thatbehalf, it is difficult to appreciate how the Tilkayat can seriously contendthat in passing the Act, the legislature has been guilty of unconstitutionaldiscrimination. As has been held by this Court in the case of Shri Ram KrishnaDalmia v. Shri Justice S. R. Tendolkar ( S.C.R. 279, 297.), that a lawmay be constitutional even though it relates to a single individual if, onaccount of some special circumstances or reasons applicable to him and notapplicable to others, that single individual may be treated as a class byhimself. Therefore, the plea raised under Art. 14 fails.
57. The next point to consider is in regard to the pleas raised more by thedenomination than by the Tilkayat himself under Arts. 25 and 26 of theConstitution. The attitude adopted by the denomination in its writ petition isnot very easy to appreciate. In the writ petition filed on behalf of thedenomination, it was urged that the Tilkayat himself is the owner of all theproperties of the temple and as such, was entitled to manage them in hisdiscretion and as he liked. This plea clearly supported the Tilkayat's standthat the temple in question was a private temple belonging to himself and assuch, all the temple properties were his private properties. The denominationwas clearly in two minds. It was inclined more to support the Tilkayat's casethan to put up an alternative case that the denomination was interested in themanagement of these properties. Even so, some allegations have been made in thewrit petition filed on behalf of the denomination from which it may perhaps beinferred that it was the alternative case of the denomination that the templeand the properties connected therewith belonged to the denomination accordingto its usages and tradition, and therefore, the management of the said templeand the properties cannot be transferred to the Board. It is this latteralternative plea which is based on Art. 25(1) and Art. 26(b) of theConstitution. The argument is that the Act contravenes the right guaranteed tothe denomination by Art. 25(1) freely to practise its religion and that it alsocontravenes the denomination's right guaranteed under Art. 26(b) and (d) tomanage its own affairs in matters of religion, and to administer its propertyin accordance with law. For the purpose of dealing with these arguments, wewill assume that the denomination has a beneficial interest in the propertiesof the temple.
58. Articles 25 and 26 constitute the fundamental rights to freedom ofreligion guaranteed to the citizens of this country. Article 25(1) protects thecitizen's fundamental right to freedom of conscience and his right freely toprofess, practise and propagate religion. The protection given to this rightis, however, not absolute. It is subject to public order, morality and healthas Art. 25(1) itself denotes. It is also subject to the laws, existing orfuture, which are specified in Art. 25(2). Article 26 guarantees freedom of thedenominations or sections thereof to manage their religious affairs and theirproperties. Article 26(b) provides that subject to public order, morality andhealth, every religious denomination or any section thereof shall have theright to manage its own affairs in matters of religion; and Art. 26(d) laysdown a similar right to administer the property of the denomination inaccordance with law. Article 26(c) refers to the right of the denomination toown and acquire movable and immovable property and it is in respect of suchproperty that clause (d) makes the provision which we have just quoted. Thescope and effect of these articles has been considered by this Court on severaloccasions. 'The word 'religion' used in Art. 25(1),'observed Mukherjea, J., speaking for the Court in the case of the Commissioner,Hindu Religious Endowments, Madras ( S.C.R. 1005.), 'is a matter offaith with individuals and communities and it is not necessarily theistic. Itundoubtedly has its basis in a system of beliefs or doctrines which areregarded by those who profess that religion as conducive to their spiritualwell being, but it is not correct to say that religion is nothing else but adoctrine or belief. A religion may not only lay down a code of ethical rulesfor its followers to accept, it might prescribe rituals and observances,ceremonies and modes of worship which are regarded as integral parts of religionand these forms and observances might extend even to matters of food anddress.'
59. In Shri Venkataramana Devara v. The State of Mysore ( S.C.R. 895,909.), Venkatarama Aiyar, J., observed 'that the matter of religion inArt. 26(b) include even practices which are regarded by the community as partsof its religion.' It would thus be clear that religious practice to whichArt. 25(1) refers and affairs in matters of religion to which Art. 26(b)refers, include practices which are an integral part of the religion itself andthe protection guaranteed by Art. 25(1) and Art. 26(b) extends to suchpractices.
60. In deciding the question as to whether a given religious practice is anintegral part of the religion or not, the test always would be whether it isregarded as such by the community following the religion or not. This formulamay in some cases present difficulties in its operation. Take the case of apractice in relation to food or dress. If in a given proceeding, one section ofthe community claims that while performing certain rites while dress is anintegral part of the religion itself, whereas another section contends thatyellow dress and not the white dress is the essential part of the religion, howis the Court going to decide the question Similar disputes may arise inregard to food. In cases where conflicting evidence is produced in respect ofrival contentions as to competing religious practices the Court may not be ableto resolve the dispute by a blind application of the formula that the communitydecides which practice is an integral part of its religion, because thecommunity may speak with more than one voice and the formula would, therefore,break down. This question will always have to be decided by the Court and indoing so, the Court may have to enquire whether the practice in question isreligious in character and if it is, whether it can be regarded as an integralor essential part of the religion, and the finding of the Court on such anissue will always depend upon the evidence adduced before it as to theconscience of the community and the tenets of its religion. It is in the lightof this possible complication which may arise in some cases that this Courtstruck a note of caution in the case of The Durgah Committee, Ajmer v. SyedHussain Ali : 1SCR383 , and observed that in order that thepractices in question should be treated as a part of religion they must beregarded by the said religion as its essential and integral part; otherwiseeven purely secular practices which are not an essential or an integral part ofreligion are apt to be clothed with a religious form and may make a claim forbeing treated as religious practices within the meaning of Art. 25(1).
61. In this connection, it cannot be ignored that what is protected underArts. 25(1) and 26(b) respectively are the religious practices and the right tomanage affairs in matters of religion. If the practice in question is purelysecular or the affair which is controlled by the statute is essentially andabsolutely secular in character, it cannot be urged that Art. 25(1) or Art.26(b) has been contravened. The protection is given to the practice of religionand to the denomination's right to manage its own affairs in matters ofreligion. Therefore, whenever a claim is made on behalf of an individualcitizen that the impugned statute contravenes his fundamental right to practisereligion or a claim is made on behalf of the denomination that the fundamentalright guaranteed to it to manage its own affairs in matters of religion iscontravened, it is necessary to consider whether the practice in question isreligious or the affairs in respect of which the right of management is allegedto have been contravened are affairs in matters of religion. If the practice isa religious practice or the affairs are the affairs in matters of religion,then, of course, the rights guaranteed by Art. 25(1) and Art. 26(b) cannot becontravened.
62. It is true that the decision of the question as to whether a certainpractice is a religious practice or not, as well as the question as to whetheran affair in question is an affair in matters of religion or not, may presentdifficulties because sometimes practices, religious and secular, areinextricably mixed up. This is more particularly so in regard to Hindu religionbecause as is well known, under the provisions of ancient Smritis, all humanactions from birth to death and most of the individual actions from day to dayare regarded as religious in character. As an illustration, we may refer to thefact that the Smritis regard marriage as a sacrament and not a contract. Thoughthe task of disengaging the secular from the religious may not be easy, it mustnevertheless be attempted in dealing with the claims for protection under Arts.25(1) and 26(b). If the practice which is protected under the former is areligious practice, and if the right which is protected under the latter is theright to manage affairs in matters of religion, it is necessary that in judgingabout the merits of the claim made in that behalf the Court must be satisfiedthat the practice is religious and the affair is in regard to a matter ofreligion. In dealing with this problem under Arts. 25(1) and 26(b), Latham,C.J.,'s. observation in Adelaide Company of Jehovah's witnesses Incorporated v.The Commonwealth (67 C.L.R. 116, 123.), that 'what is religion to one issuperstition to another', on which Mr. Pathak relies, is of no relevance.If an obviously secular matter is claimed to be matter of religion, or if anobviously secular practice is alleged to be a religious practice, the Courtwould be justified in rejecting the claim because the protection guaranteed byArt. 25(1) and Art. 26(b) cannot be extended to secular practices and affairsin regard to denominational matters which are not matters of religion, and so,a claim made by a citizen that a purely secular matter amounts to a religiouspractice, or a similar claim made on behalf of the denomination that a purelysecular matter is an affair in matters of religion, may have to be rejected onthe ground that it is based on irrational considerations and cannot attract theprovisions of Art. 25(1) or Art. 26(b). This aspect of the matter must be bornein mind in dealing with the true scope and effect of Art. 25(1) and Art. 26(b).
63. Let us then enquire what is the right which has been contravened by therelevant provisions of the Act. The only right which, according to thedenomination, has been contravened is the right of the Tilkayat to manage theproperty belonging to the temple. It is urged that throughout the history ofthis temple, its properties have been managed by the Tilkayat and so, suchmanagement by the Tilkayat amounts to a religious practice under Art. 25(1) andconstitutes the denomination's right to manage the affairs of its religionunder Art. 26(b). We have no hestitation in rejecting this argument. The rightto manage the properties of the temple is a purely secular matter and itcannot, in our opinion, be regarded as a religious practice so as to fall underArt. 25(1) or as amounting to affairs in matters of religion. It is true thatthe Tilkayats have been respected by the followers of the denomination and itis also true that the management has remained with the Tilkayats, except on occasionslike the minority of the Tilkayat when the Court of Wards stepped in. If thetemple had been private and the properties of the temple had belonged to theTilkayat, it was another matter.
64. But once it is held that the temple is a public temple, it is difficultto accede to the argument that the tenets of the Vallabha cult require as amatter of religion that the properties must be managed by the Tilkayat. Infact, no such tenet has been adduced before us. So long as the denominationbelieved that the property belonged to the Tilkayat like the temple, there wasno occasion to consider whether the management of the property should be in thehands of anybody else. The course of conduct of the denomination and theTilkayat based on that belief may have spread for many years, but, in ouropinion, such a course of conduct cannot be regarded as giving rise to areligious practice under Art. 25(1). A distinction must always be made betweena practice which is religious and a practice in regard to a matter which ispurely secular and has no element of religion associated with it. Therefore,we, are satisfied that the claim made by the denomination that the Act impingeson the rights guaranteed to it by Art. 25(1) and 26(b) must be rejected.
65. That leaves one more point to be considered under Art. 26(d). It isurged that the right of the denomination to administer its property hasvirtually been taken away by the Act, and so, it is invalid. It would benoticed that Art. 26(d) recognises the denomination's right to administer itsproperty, but it clearly provides that the said right to administer theproperty must be in accordance with law. Mr. Sastri for the denominationsuggested that law in the context is the law prescribed by the religious tenetsof the denomination and not a legislative enactment passed by a competentlegislature. In our opinion, this argument is wholly untenable. In the context,the law means a law passed by a competent legislature and Art. 26(d) providesthat though the denomination has the right to administer its property, it mustadminister the property in accordance with law. In other words, this clauseemphatically brings out the competence of the legislature to make a law inregard to the administration of the property belonging to the denomination. Itis true that under the guise of regulating the administration of the propertyby the denomination, the denomination's right must not be extinguished oraltogether destroyed. That is what this Court has held in the case of theCommissioner, Hindu Religious Endowments Madras ( S.C.R. 1005.) andRatilal Panachand Gandhi v. The State of Bombay ( S.C.R. 1055.).
66. Incidentally, this clause will help to determine the scope and effect ofthe provisions of Art. 26(b). Administration of the denomination's propertywhich is the subject-matter of this clause is obviously outside the scope ofArt. 26(b). Matters relating to the administration of the denomination'sproperty fall to be governed by Art. 26(d) and cannot attract the provisions ofArt. 26(b). Article 26(b) relates to affairs in matters of religion such as theperformance of the religious rites or ceremonies, or the observance ofreligious festivals and the like; it does not refer to the administration ofthe property at all. Article 26(d) therefore, justifies the enactment of a lawto regulate the administration of the denomination's property and that isprecisely what the Act has purported to do in the present case. If the clause'affairs in matters of religion' were to include affairs in regard toall matters, whether religious or not the provisions under Art. 26(d) forlegislative regulation of the administration of the denomination's propertywould be rendered illusory.
67. It is however, argued that the constitution of the Board in which theadministration of the property now vests is not the denomination, and since theadministration is now left to the Board, the denomination has been whollydeprived of its right to administer the property. It is remarkable that thisplea should be made by the representatives of the denomination who in theirwrit petition were prepared to support the Tilkayat in his case that the templeand the properties of the temple were his private property. That apart, wethink that the constitution of the Board has been deliberately so prescribed bythe legislature as to ensure that the denomination should be adequately andfairly represented on the Board. We have already construed s. 5 and we haveheld that s. 5(2)(g) requires that the members of the Board other than theCollector of Udaipur District should not only profess Hindu religion but mustalso belong to the Pushti-Margiya Vallabhi Sampradaya. It is true that thesemembers are nominated by the State Government, but we have not been told how elsethis could have been effectively arranged in the interests of the templeitself. The number of the devotees visiting the temple runs into lacs; there isno organisation which comprehensively represents the devotees as a class; thereis no register of the devotees and in the very nature of things, it isimpossible to keep such a register. Therefore, the very large mass of Vallabh'sfollowers who constitute the denomination can be represented on the Board ofmanagement only by a proper nomination made by the State Government, and so, weare not impressed by the plea that the management by the Board constitutedunder the Act will not be the management of the denomination. In thisconnection, we may refer to clause 1 of the Firman which vested in the Darbar absoluteright to supervise the management of the property. As a successor-in-interestof the Darbar, the state of Rajasthan can be trusted to nominate members on theBoard who would fairly represent the denomination. Having regard to all therelevant circumstances of this case; we do not think that the legislature couldhave adopted any other alternative for the purpose of constituting the Board.Therefore, we must hold that the challenge to the validity of the Act on theground that it contravenes Arts. 25(1), 26(b) and 26(d) must be repelled.
68. It still remains to consider the provisions of the Act which have beenchallenged by the Tilkayat and the denomination as well as those which havebeen struck down by the High Court and in respect of which the State haspreferred appeals. We will take these sections in their serial order. We haveconsidered Sections 3, 4, 16, 22 and 34 and have held that these sections are validbecause the scheme envisaged by the said sections clearly protects thereligious rites, ceremonies and services rendered in the temple and theTilkayat's status and powers in respect thereof. The said scheme merely allowsthe administration of the properties of the temple which is a purely secularmatter to be undertaken by the Board, and so, it is not necessary to refer tothe said sections again.
69. Section 2(viii) which defines a temple as including the temple of ShriNavnitpriyaji and Shri Madan Mohanlalji has been struck down by the High Courtin regard to the said two subsidiary deities. The High Court has held that thetwo deities Navnitpriyaji and Madan Mohanlalji are the private deities of theTilkayat and it was not competent to the legislature to include them within thedefinition of the temple under s. 2(viii). It was urged before the High Courtthat the said two idols had been transferred by the Tilkayat to the publictemple and made a part of it, but it has held that there was no gift or trustdeed by the Tilkayat divesting himself of all his rights in those two idols andits property and so, the validity of the section could not be sustained on theground of such transfer. The correctness of this conclusion is challenged bythe learned Solicitor-General on behalf of the State. In dealing with thisquestion, the conduct of the Tilkayat needs to be examined. On October 15, 1956a report was made by Mr. Ranawat to the Tilkayat in respect of these two idols.It appears that the grant of some villages in respect of these idols stood inthe name of the Tilkayat and after the said villages were resumed by the State,a question arose as to the compensation payable to the owner of the saidvillages. In that connection, Mr. Ranawat reported to the Tilkayat that itwould be to the advantage of the two idols if the said lands along with theidols were treated as a part of the public temple. He cited the precedent ofthe lands belonging to the Nathdwara Temple in support of his plae. Onreceiving this report, the Tilkayat was pleased to transfer the ownership ofShri Thakur Navnitpriyaji, Shri Madan Mohanji and Bethaks to the principaltemple of Shri Shrinathji. Of course, he retained to himself the right andprivilege of worship over those temples and Bethaks as in the case ofShrinathji temple. The Tilkayat also expressed his concurrence with theproposal made in this report and signed in token of his agreement. It appearsthat after orders were issued in accordance with the decision of the Tilkayat,the two temples were treated as part of the bigger temple of Shrinathji. Thisis evidenced by the resolution which was passed at the meeting of the Power ofAttorney Holders of the Tilkayat on the same day i.e., 15-10-1956. One of theresolutions passed at the said meeting shows that the proposal regarding thetemples and Bethaks owned by His Holiness stating therein that His Holiness hadbeen pleased to transfer the ownership thereof to Shrinathji, was considered.The proposal along with the list of temples and Bethaks was produced before theCommittee. The Tilkayat was present at the meeting and he confirmed theproposal and put his signature thereon before the Committee. Thereupon, theCommittee accepted the proposal with thanks and instructed the ExecutiveOfficer to do the needful in that behalf. Thus, the Tilkayat proposed to theCommittee of his Power of Attorney Holders that the two idols and their Bethaksshould be transferred from his private estate to the principal temple ofShrinathji and that proposal was accepted and thereafter the two idols weretreated as part of the principal temple.
70. After this transfer was thus formally completed it appears that theTilkayat was inclined to change his mind and so, in submitting to the Committeea list of temples and Bethaks transferred by him to the principal temple ofShrinathji, he put a heading to the list which showed that the said transferhad been made for management and administration only and was not intended to bean absolute transfer. This was done on or about November 23, 1956.
71. This conduct on the part of the Tilkayat was naturally disapproved bythe Committee and the heading of the list was objected to by it in a letterwritten on December 31, 1956. To this letter the Tilkayat gave a reply onJanuary 7, 1957, and he sought to explain and justify the wording adopted inthe heading of the list. It is thus clear that the heading of the list forwardedby the Tilkayat to the Committee must be ignored because that heading clearlyshows a change of mind on the part of the Tilkayat and the question as towhether the two idols form part of the principal temple of Shrinathji must bedecided in the light of what transpired on October 15, 1956. Judged in thatway, there can be no doubt that the Tilkayat solemnly transferred the two idolsto the principal temple and in that sense, gave up his ownership over the idolsand a formal proposal made in that behalf was accepted by the Committee. In ouropinion, the High Court was in error in not giving effect to this transfer onthe ground that no gift or trust deed had been duly executed by the Tilkayat inthat behalf. A dedication of private property to a charity need not be made bya writing : it can be made orally or even can be inferred from conduct. In thepresent case, there is much more than conduct in support of the State's pleathat the two idols had been transferred. There is a formal report made by the Managerto the Tilkayat which was accepted by the Tilkayat; it was followed by a formalproposal made by the Tilkayat to the Committee and the Committee at its meetingformally accepted that proposal and at the meeting when this proposal wasaccepted, the Tilkayat was present. Therefore, we must hold that the two idolsnow form part of the principal temple and have been properly included withinthe definition of the word 'temple' under s. 2(viii). We shouldaccordingly set aside the decision of the High Court and uphold the validity ofs. 2(viii).
72. The proviso to s. 5(2)(g) has been attacked by the learnedAttorney-General. He contends that in making the Collector a statutory memberof the Board even though he may not be a Hindu and may not belong to thedenomination, the legislature has contravened Arts. 25(1) and 26(b). We havealready dealt with the general plea raised under the said two articles. We donot think that the provision that the Collector who is a statutory member ofthe Board need not satisfy the requirements of s. 5(2)(g), can be said to beinvalid. The sole object in making the Collector a member of the Board is toassociate the Chief Executive Officer in the District with the administrationof the property of the temple. His presence in the Board would naturally helpin the proper administration of the temple properties and in that sense, mustbe treated as valid and proper. This provision is obviously consistent with theState's right of supervision over the management of the temple properties asspecified in the Firman of 1934.
73. Sections 5, 7 and 11 have already been considered by us with particularreference to the possible removal of the Tilkayat under s. 7 and itsconsequences. It may be that in view of the fact that even if the Tilkayat isremoved under s. 7(1)(b) and (c) he has to be again nominated to the Board, thelegislature may well have exempted the Tilkayat from the operation of s.7(1)(b) and (c). That, however, cannot be said to make the said provisioninvalid in law.
74. Sections 10 and 35 have been attacked on the ground that they empowerthe State Government to leave the administration of the temple property to anon-Hindu. It will be noticed that s. 10 contemplates that if a Board isdissolved for the reasons specified in it, the Government is required to directthe immediate reconstitution of another Board and that postulates that theinterval between the dissolution of one Board and the constitution of a freshBoard would be of a very short duration. If the legislature thought itnecessary to provide for the management of the temple properties for such ashort period on an ad hoc basis, the provision cannot be seriously challenged.What is true about this provision under s. 10, is equally true about thetransitional provision in s. 35.
75. A part of s. 16 has been struck down by the High Court in so far as itrefers to the affairs of the temple. This section authorises the Board tomanage the properties and affairs of the temple. The High Court thought thatthe expression 'affairs of the temple' is too wide and may includereligious affairs of the temple; and since in managing these affairs of thetemple, the section does not require that the management should be according tothe customs and usages of the denomination, it came to the conclusion that theclause 'affairs of the temple' is invalid and should, therefore, bestruck down.
76. We are not satisfied that this view is correct. In the context theexpression 'affairs of the temple' clearly refers to the purely secularaffairs in regard to the administration of the temple. Clearly, s. 16 cannot beconstrued in isolation and must be read long with s. 22. That is why it hasbeen left to the Board to manage the properties of the temple as well as thepurely secular affairs of the temple, and so, this management need not begoverned by the custom and usage of the denomination. If the expression'affairs of the temple' is construed in this narrow sense as it isintended to be, then there is no infirmity in the said provisions. We may addthat the expression 'affairs of the temple' has been used in s. 28(1)of the Madras Hindu Religious and Charitable Endowments Act No. 22 of 1959 inthe same sense. Therefore, we would hold that the High Court was in error in strikingdown the clause 'affairs of the temple' occurring in s. 16.
77. The next section to consider is s. 21. This section gives to the Boardcomplete power of appointment, suspension, removal, dismissal, or imposition ofany other punishment on the officers and servants of the temple or the Board,the Chief Executive Officer being exempted from the operation of this section.It has been urged before us that this section might include even the Mukhia andthe Assistant Mukhia who are essentially religious officers of the templeconcerned with the performance of religious rites and services to the idols;and the argument is that if they are made the servants of the Board and are notsubjected to the discipline of the Tilkayat, that would be contrary to Art.25(1) and 26(b) of the Constitution. In considering this argument, we must haveregard to the fact that the Mukhia and the Assistant Mukhia are not onlyconcerned with the religious worship in the temple, but are also required tohandle jewellery and ornaments of a very valuable order which are put on theidol and removed from the idol every day, and the safety of the said valuablejewellery is a secular matter within the jurisdiction of the Board. That is whyit was necessary that the Board should be given jurisdiction over thoseofficers in so far as they are concerned with the property of a temple. We haveno doubt that in working out the Act, the Board will act reasonably and fairlyby the Tilkayat and nothing will be done to impair his status or to affect hisauthority over the servants of the temple in so far as they are concerned withthe religious part of the worship in the temple. Since the worship in thetemple and the ceremonies and festivals in it are required to be conductedaccording to the customs and usages of the denomination by s. 16, the authorityof the Tilkayat in respect of the servants in charge of the said worship andceremonies and festivals will have to be respected. It is true that soon afterthe Act was passed and its implementation began, both parties appeared to haveadopted unhelpful attitudes. We were referred at length to the correspondencethat passed between the Tilkayat and the Committee in respect of some of thesematters. We do not think it necessary to consider the merits of that controversybecause we are satisfied that once the Act is upheld, it will be implemented bythe Board consistently with the true spirit of the Act without offending thedignity and status of the Tilkayat as a religious head in charge of the templeand the affairs in matters of religion connected with the temple. Therefore, wedo not think it would be right to strike down any part of s. 21 as suggested bythe learned Attorney-General.
78. The validity of s. 27 has been challenged by the learnedAttorney-General on the ground that it empowers the State Government to deputeany person to enter the premises of the temple, though, in a given case, such aperson may not be entitled to make such an entry. Even a non-Hindu person maybe appointed by the State Government to inspect the properties of the templeand if he insists upon making an entry in the temple, that would contravene theprovisions of Art. 25(1) and 26(b) of the Constitution; that is the argumenturged in support of the challenge to the validity of s. 27. We do not thinkthere is any substance in this argument. All that the section does is toempower the State Government to depute a person to inspect the properties ofthe temple and its records, correspondence, plans, accounts and other relevantdocuments. We do not think that the section constitutes any encroachment of therights protected by Art. 25(1) or Art. 26(b). If the administration of theproperties of the temple has been validly left to the Board constituted underthe Act, then the power of inspection is necessarily incidental to the power toadminister the properties, and so in giving the power to the State Governmentto depute a person to inspect the properties of the temple, no effectivecomplaint can be made against the validity of such a power. The fear expressedby the learned Attorney-General that a non-Hindu may insist upon entering thetemple in exercise of the authority conferred on him by the State Governmentunder s. 27 is, in our opinion, far-fetched and imaginary. We are satisfied thatthe power of inspection which the State Government may confer upon any personunder s. 27 is intended to safeguard the proper administration of theproperties of the temple and nothing more. Therefore, we do not think that s.27 suffers from any constitutional infirmity. In this connection, we may addthat a similar provision contained in the Madras Religious Endowments Act hasbeen upheld by this Court in the case of The Commissioner, Hindu ReligiousEndowments, Madras [ S.C.R. 1005.].
79. That takes us to s. 28(2) and (3). These two sub-sections have beenstruck down by the High Court because it thought that they were inconsistentwith the view expressed by this Court in the case of Ratilal Panachand Gandhi[ S.C.R. 1005.]. While discussing the validity of these two sub-sections,the High Court has observed 'that without entering into an elaboratediscussion on the point, we may point out that such provision has been held tobe invalid by the Supreme Court in the case of Ratilal Panachand Gandhi'[ S.C.R. 1055.]. The learned Solicitor-General contends and we think,rightly, that the observations on which the High Court has relied support thevalidity of the two sub-sections and are inconsistent with the decision of theHigh Court itself. In the case of Ratilal Panachand Gandhi [ S.C.R.1005.], this Court was dealing with the validity of Sections 55 and 56 of the BombayPublic Trusts Act, 1950 (No. 29 of 1950). Section 55 of the said Act purportedto lay down the rule of cy pres in relation to the administration of religiousand charitable trust; and s. 56 dealt with the powers of the courts in relationto the said application of cy pres doctrine. This Court observed that these twosections purported to lay down how the doctrine of cy pres is to be applied inregard to the administration of public trust of a religious or charitablecharacter; and then it proceeded to examine the doctrine of cy pres as it wasdeveloped by the Equity Courts in England and as it had been adopted by ourIndian Courts since a long time past. In the opinion of this Court, theprovisions of Sections 55 and 56 extended the said doctrine much beyond itsrecognised limits and further introduced certain principles which ran counterto well-established rules of law regarding the administration of charitabletrusts. It is significant that what the impugned sections purported toauthorise was the diversion of the trust property or funds for purposes whichthe Charity Commissioner or the court considered expedient or proper althoughthe original objects of the founder could still be carried out and that was anunwarrantable encroachment on the freedom of religious institutions in regardto the management of their religious affairs. In support of this view, thetenets of the Jain religion were referred to and it was observed that apartfrom the tenets of the Jain religion, it would be a violation of the freedom ofreligion and of the right which a religious denomination has, to manage its ownaffairs in matters of religion, to allow any secular authority to divert thetrust money for purposes other than those for which the trust was created. Onthis view, s. 55(3) which contained the offending provision, and thecorresponding provision relating to the powers of the Court occurring in thelatter part of s. 56(1) were struck down. In this connection, it is, however,necessary to bear in mind that in dealing with this question, this Court hasexpressly observed that the doctrine of cy pres can be applied where there is asurplus left after exhausting the purposes specified by the settler. In otherwords, the decision of this Court in the case of Ratilal Panachand Gandhi( S.C.R. 1055.), cannot be applied to the provisions of s. 28(2) and (3)which deal with the application of the surplus in fact after this decision waspronounced, the relevant provision of the Bombay Act has been amended and theapplication of the doctrine of cy pres is now confined to the surplus availableafter the purposes of the trust have been dealt with. The High Court has notnoticed the fact that s. 28(2) and (3) dealt with the application of thesurplus funds and that postulates that these two sub-sections can be invokedonly if and after the main purposes of the public temple have been dulysatisfied. Therefore, we hold that the High Court was in error in striking downs. 28(2) and (3) on the ground that they are inconsistent with the decision ofthis Court in the case of Ratilal Panachand Gandhi ( S.C.R. 1055.). Wemay add that this position was not seriously disputed before us by the learnedAttorney-General.
80. The next section is 30(2)(a). It confers on the State Government thepower to make rules in respect of the qualifications for holding the office ofand the allowances payable to the Goswami. This sub-section has been struckdown by the High Court and the learned Solicitor-General does not quarrel withthe conclusion of the High Court. He has, however, fairly conceded that thoughthe first part of s. 30(2)(a) may be struck down, the latter part need not bestruck down. This latter part allows rules to be framed by the State Governmentin regard to the allowances payable to the Goswami. We think it is but fairthat this part should be upheld so that a proper rule can be made by the StateGovernment determining the quantum of allowances which should be paid to theGoswami and the manner in which it should be so paid. We would, thereforestrike down the first part of s. 30(2)(a) and uphold the latter part of itwhich has relation to the allowances payable to the Goswami. The two parts ofthe said sub-section are clearly severable and so, one can be struck downwithout affecting the other.
81. In regard to s. 36, the High Court thought that it gives far toosweeping powers to the Government and so, it has struck it down. Section 36merely empowers the Government to give such directions as may be necessary tocarry out the objects of the Act in case a difficulty arises in giving effectto the provisions of the Act. We may, in this connection, refer to the factthat a similar provision is contained in s. 36 of the Jagannath Temple Act(Orissa 11 of 1955). The object of s. 36 in the Act is merely to removedifficulties in the implementation of the Act. It is in that sense that thesection must be narrowly construed and the scope and ambit of the powerconferred on the State Government be circumscribed. If the section is soconstrued, it would not be open to any serious objection. Therefore, we aresatisfied that the High Court was in error in striking down this section on theground that the powers conferred on the State Government are too wide.
82. That takes us to s. 37 which has been struck down by the High Court onthe ground that it can be utilised as a defence to a suit under s. 31. We havealready noticed that s. 31 empowers a person having an interest to institute asuit for obtaining any of the reliefs prescribed in clauses (a) to (e) of thatsection. The High Court thought that s. 37 may introduce an impediment againsta suit brought by a private individual under s. 31. We are satisfied that theHigh Court was in error in taking this view. All that this section purports todo is to provide for a bar to any suits or proceedings against the StateGovernment for any thing done or purported to be done by it under provisions ofthe Act. Such provisions are contained in many Acts, like, for instance, Actsin regard to Local Boards and Municipalities. It is true that s. 37 does notrequire that the act done or purported to be done should be done bona fide, butthat is presumably because the protection given by s. 37 is to the StateGovernment and not to the officers of the State. The effect of the sectionmerely is to save acts done or purported to be done by the State under theprovisions of the Act; it cannot impinge upon the rights of a citizen to file asuit under s. 31 if it is shown that the citizen is interested within themeaning of s. 31(1). We are inclined to hold that the High Court has, withrespect, misjudged the true scope and effect of the provisions of s. 37 when itstruck down the said section as being invalid. We must accordingly reverse thesaid conclusion of the High Court and uphold the validity of s. 37.
83. The result is that the appeals preferred by the Tilkayat, thedenomination and Ghanshyamlalji fail and are dismissed. So does the writpetition filed by the Tilkayat fail and the same is dismissed. The appealspreferred by the State substantially succeed and the decision of the High Courtstriking down as ultra vires part of s. 2(viii) in relation to the idols ofNavnitpriyaji and Madan Mohanlalji; part of s. 16 in so far as it refers to theaffairs of the temple; s. 28(2) and (3), s. 36 and s. 37 is reversed. Wehowever, confirm the decision of the High Court in so far as it has struck downs. 30(2)(a) in regard to the qualifications for holding the office of theGoswami but we reverse its decision in so far as it relates to the latter partof s. 30(2)(a) which deals with the allowances payable to the Goswami. In thecircumstances of this case, we direct that parties should bear their own coststhroughout.
84. Appeal dismissed.