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Tilkayat Govindlalji and ors. Vs. State and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtRajasthan High Court
Decided On
Case NumberCivil Writ Petn. Nos. 90 and 310 of 1959 and 421 of 1960
Judge
Reported inAIR1962Raj196
ActsConstitution of India - Articles 14, 19(1), 25, 26 and 226; Nathdwara Temple Act, 1959 - Sections 2, 16, 28, 28(2), 28(3), 30, 30(2), 36 and 37; Hindu Law; Constitutional Law; Evidence Act, 1872 - Sections 23
AppellantTilkayat Govindlalji and ors.
RespondentState and ors.
Appellant Advocate S.T. Desai and; V.P. Tyagi, Advs. for Civil Writ Petn. No. 310/59,;
Respondent Advocate C.K. Daphtary, Solicitor General of India,; G.C. Kasliwal, Adv.-General,;
Cases ReferredOrs. v. State of Rajasthan and
Excerpt:
- - according to the traditions of the sampradaya lord krishna manilested himself in the form of an image called 'swaroop' in the hills of girraj vrij near mathura and this idol was installed by shri vallabhacharya in a temple built by a rich merchant pooran mal. the brothers of girdhariji also founded separate shrines at various places which are also held in high veneration by the followers of the 'sampradaya'.during the time of aurangzeb, it was not considered safe by the then tilkayat girdhariji to keep the idol of shrinathji at gokul and the idol was removed to the state of mewar. the preamble says that the act was made 'to provide for the better administration and governance of the temple of shrinathji at nathdwara. (d) the construction and maintenance of a poor-home for destitute.....bhandari, j.1. the three writ petitions referred to above seek to challenge the vires of the nathdwara temple act (act no. 13 of 1959) (hereinafter called 'the act') passed by the rajasthan state legislature. this act received the assent of the president on the 28th of march, 1959.2. writ petition no. 90 of 1959, has been filed by shri tilkayat govindlalji maharaj of nathdwara (hereinafter called 'the tilkayat').3. writ petition no. 310 of 1959 has been filed by triyambak lal and nine others who are the followers of the vallabh sampradaya and are hereinafter called 'the vaighnavas'.4. the third writ petition no. 420 of 1960 has been filed by goswami shri ghanshiam lal, head of the shrine of the vallabh sampradaya at kamban (district bharatpur). the respondents to all these writ petitions.....
Judgment:

Bhandari, J.

1. The three Writ Petitions referred to above seek to challenge the vires of the Nathdwara Temple Act (Act No. 13 of 1959) (hereinafter called 'the Act') passed by the Rajasthan State Legislature. This Act received the assent of the President on the 28th of March, 1959.

2. Writ Petition No. 90 of 1959, has been filed by Shri Tilkayat Govindlalji Maharaj of Nathdwara (hereinafter called 'the Tilkayat').

3. Writ Petition No. 310 of 1959 has been filed by Triyambak Lal and nine others who are the followers of the Vallabh Sampradaya and are hereinafter called 'the Vaighnavas'.

4. The third Writ Petition No. 420 of 1960 has been filed by Goswami Shri Ghanshiam Lal, head of the Shrine of the Vallabh Sampradaya at Kamban (District Bharatpur). The respondents to all these Writ Petitions are the state of Rajasthan and the members of the Temple Board constituted under the Act and the executive officer of the Board appointed under the Act.

5. Before we refer to the contentions of the petitioners in these Writ Petitions, it is both necessary and convenient to refer to the historical background of the temple of Shrinathji at Nathdwara and also to the circumstances under which the impugned Act was passed. This temple is of the denomination known as Pushti Margiya Vaishnav Sampradaya', more popularly known as 'Vallabh Sampradaya' (hereinafter for the sake of brevity called 'the Sampradaya'). This Sampradaya was founded by Shri Vallabhaharya, who, according to Dr. Bhandarkar, was born in 1479 A. D. According to some other authorities, he was born in 1473 A. D. He belonged to a Brahmin family of Andhra. As a boy, he was extraordinarily in elligent and soon acquired deep knowledge of Hindu Philosophy. He preached the gospel of divine grace which, according to him, could only be acquired by whole-hearted devotion to the service of Lord Krishna.

According to the traditions of the Sampradaya Lord Krishna manilested himself in the form of an image called 'swaroop' in the hills of Girraj Vrij near Mathura and this idol was installed by Shri Vallabhacharya in a temple built by a rich merchant Pooran Mal. The tradition is that it is this idol which is installed at present in the temple of Nathdwara and is known as Shri Shrinathji. Shri Vallabhacharya was succeeded by his son Shri Vithalnath, who was the illustrious son of his illustrious father. He gave colour and shape to the Sampradaya which his worthy father had founded. He was a great organiser and an enthusiastic missionary. He removed the idol of Shrinathji to another temple built by him. What became of the temple built by Shri Vallabhacharya is not known.

Those were the days of Emperor Akbar and with his characteristic tolerance he issued a firman granting Vithal Raiji land in the Mowazh of Jatipura on which he had built the buildings, gardens, cowsheds and workshops for the temple of Goverdhan Nath. This firman is of the year 1593 A. D. In this firman Vithal Nathji is described as Gosain Vithal Rai and it appears that thereafter the descendants of Vallabhacharya came to be known as Goswami ('Gosain'). Emperor Shah jehan also issued on the 9th of October, 1633 a firman mentioning that on a petition received by His Majesty from Goswami Vithal Nath Tilkayat of Gordhan Nath that he had purchased some land from zamindars in Mauza Jatipura the said land was being granted by His Majesty for the use and expenses of Thakurdwar exempt from payment of dues. Goswami Vithalnath had seven sons. According to the tradition of the Sampradaya besides the idol of Shrinathji, Vithalnathji also got from his father seven other idols which were also 'swaroops' (manifestations) of Lord Krishna.

Before his death, Vithalnathji made an arrangement by which the idol of Shrinathji was given to his eldest son Girdharji who became the Tilkayat and the other idols were given over one each to his sons. The brothers of Girdhariji also founded separate shrines at various places which are also held in high veneration by the followers of the 'sampradaya'. During the time of Aurangzeb, it was not considered safe by the then Tilkayat Girdhariji to keep the idol of Shrinathji at Gokul and the idol was removed to the State of Mewar. It is said that Rana Raj Singh of Mewar offered the heads of 100,000 of Rajputs for the protection of the idol and deity was conducted through Kotah, Marwar, to Mewar.

When the chariot wheel sunk deep into the earth and defied extrication; upon which the Sookuni (Augur) interpreted the pleasure of the god, that he desired to dwell there.' (Tod's Annal and Antiquities of Rajasthan, Vol. 1, p. 451). A temple was built at that place and since that time the idol of Shrinathji is installed in that temple which is known as 'Shrinathdwara'. This place has become a place of pilgrimage of Hindus in general and for the followers of Vallabhacharya in particular. It is held in high veneration and numerous grants have been made by the ruling princes from time to time to the shrine. Lavish gifts are made by the followers of the Sampradaya to this temple and it has become one of the richest shrines of Hindus in India.

6. The succession to the gaddi of the Tilkayat is governed by the rule of primogeniture. This succession used to receive recognition by the rulers of Mewar from time to time. In the year 1813 A. D. Tilkayat Govindlalji was adopted by the widow of Tilkayat Damodarji and the ruler of Mewar gave recognition to that adoption. In the year 1876 Tilkayat Girdharilalji was deposed and deported from Nathdwara by the order dated the 8th of May, 1876 of the Rana of Udaipur and the Political Agent of Mewar for the alleged misconduct of disobeying the orders of the Ruling authority, and in his place his son Gordhan Lalji was appointed as Tilkayat. Girdharilalji then went away to Bombay and there took place litigation between the father and the son about the properties belonging to the temple in the. British India. For this litigation reference may be made to the following cases :-

1. Goswami Shri Girdhariji v. Madhowdas Premji, ILR 17 Bom 600.

2. Nanabhai v. Shriman Goswami Girdhariji, ILR 12 Bom 331.

3. Gossami Sri Girdhariji v. Romanlalji Gossami, ILR 17 Cal 3 (PC).

These cases show that the Courts in British India refused to give effect to the order passed by the Maharana and the Political Agent deposing Girdharilalji so far as it affected the property in the then British India.

7. Gordhanji's grandson Damodarlalji who was to succeed Girdharilalji proved to be not worthy of this illustrious family. On the death of Gordhanlalji, Damodarlalji was declared unfit to occupy the gaddi of Tilkayat by Maharana Bhopal Singh and his son Shri Govindlalji, the present Tilkayat, who was a minor at that time was declared entitled to succeed as Goswami to the gaddi. In this connection, a firman was issued by the Maharana of Udaipur on the 31st of December, 1934, defining the rights of the Tilkayat in the property of the temple. This firman has assumed great importance in the course of the arguments before us and we would refer to it in detail later on. The property of the shrine was also taken under the Court of Wards by order of His Highness the Maharana on account of the minority of the present Tilkayat and remained under the management of the Court of Wards until 1st April, 1948, when the Udaipur Durbar made the order withdrawing the management of the Court of Wards. The charge of the property of the shrine was handed over t the Tilkayat.

It appears that soon after on account of the mismanagement of the affairs of the shrine the Tilkayat was compelled to constitute a committee of 12 members belonging to the Sampradaya sometime in the year 1952 for the management of the shrine. Another committee of 21 members was constituted on the 11th of June, 1953. During the time when this committee was in the management of the affairs of the temple some valuables stored and locked in a room in the premises of the Temple of Shrinathji at Nathdwara were removed by the Tilkayat in December 1937.

A Commission of Inquiry was appointed for the purpose of making inquiry into this, matter by the Rajasthan Government on the 12th of March 1958 with Shri K. N. Wanchoo, the then Chief Justice of the Rajasthan High Court as its sole member. On his elevation to the Supreme Court, another Commission was appointed by Notification No. F. 1(c) (145)/Dev/Udper./57, dated 2-3-1959. The Treatable to that notification says that:-

'..The State of Rajasthan as the successor of the Covenanting State of Mewar has a special responsibility to supervise that the endowments and properties dedicated to the shrine are safeguarded and used for the legitimate purposes of the shrine.'

Shri Sarjoo Prosad, the ex-Chief Justice of Rajasthan High Court was the sole member of that Commission and he submitted his report to the Government on the 11th of October 1959. In this report, the conduct of the present Tilkayat in the management of the affairs of the temple was seriously criticised.

8. Then, the Rajasthan Government thought it necessary to prepare a scheme for the management of the temple to which it appears the Tilkayat agreed. In order to give a judicial recognition to this scheme, the Collector, Udaipur, exercising the powers of the Advocate General instituted a suit in the court of the District Judge, Udaipur under Section 92, C.P.C. for settling a scheme for the management of this temple of Shrinathji at Nathdwara. It was envisaged that this matter would prove non-contentious as Tilkayat had already shown his agreement to the settlement of the scheme, and had executed powers of attorney in favour of the members of the committee of management which was to work under the scheme and had entrusted the management of the temple to that committee, but the suit took a different turn inasmuch as Shri Chanshiamlalji and Baba Rajvi son of the Tilkayat, filed applications for being made parties which were granted.

9. It is under these circumstances that the Governor of Rajasthan was pleased to make and promulgate the Nathdwara ordinance, 19,59 on the 6th of February 1959. Tilkayat filed Writ Petition No. 90 of 1959 on the 28th February 1959 challenging the provisions of this ordinance. This ordinance was replaced by the Nathdwara Temple Act, 1959 (Act No. 13 of 1959) which repealed the ordinance but is on the same lines as the ordinance. The Tilkayat in the Writ petition filed by Mm sought permission of this Court to treat his application for challenging the ordinance as one for challenging the Act and this permission was granted. Thereafter, the other two Writ petitions were also filed challenging the Act one by the Vaishnavas and the other by Shri Chanshiamlalji.

10. Now, we may refer to some of the important provisions of the Act. The Preamble says that the Act was made 'to provide for the better administration and governance of the temple of Shrinathji at Nathdwara.' Temple' has been defined in Section 2(viii) as follows:-

''temple' means the temple of Shri Shrinathji at Nathdwara in udaipur District and includes the temple of Shri Navanitpriyaji and Shri Madan Mohanlalji together with all additions thereto or all alterations thereof which may be made from time to time after the commencement of this Act.'

11. By Section 3, the ownership of the temple and all its endowments including all offerings which have been and may be made are to vest in the deity of Shri Shrinahthji and the Board to be constituted under the Act is entitled to their possession.

12. Section 4 (1) provides for the administration of the temple to vest in the Board.

13. These sections run, as follows:-

'3. Vesting of property--The ownership of the temple and all its endowments including all offerings which have been or may hereafter be made shall vest in the deity of Shri Shrinathji and the Board constituted under 'this Act shall be entitled to their possession.'

'4. Administration to vest in Board.

(1), The administration of the temple and all its endowments shall vest in the Board constituted in the manner hereinafter provided.

(2) The Board shall be a body corporate by the name of the Nathdwara Temple Board and shall have perpetual succession and a common seal with power to acquire and hold property, both movable and immovable, and may sue or be sued in the Said name.''

14. Section 5 provides for the composition of the Board which is to consist of a president, the Commissioner of Udaipur Division and nine other members of these nine members, the Tilkayat is to be a member if ho is not otherwise disqualified to be a member and is willing to Serve as such. The Commissioner is to be ex-officio member of the Board.

15. Section 16 defines the duties of the Board and runs, as follows:-

'Subject to the provisions of this Act and of the rules made thereunder, the Board shall manage the properties and affairs of the temple and arrange for the conduct of the daily worship and ceremonies and of festivals in the temple according to the customs and usages of the Pushti-Margiya vallabhi Sampradaya.'

16. Sections 19 and 20 relate to the appointment and the duties and powers of the Chief Executive Officer. Section 21 grants to the, Board the power of appointment, suspension, removal and the dismissal of the officers and servants other than the Chief Executive Officer in accordance with the rules made by the State Government. Section 22 saves the established usages and customs and runs, as follows:-

'Save as otherwise expressly provided in or under this Act nothing herein contained shall affect any established usage of the temple or the rights, honours, emoluments and perquisites to which any person may, by custom or otherwise, be entitled in the temple.'

17. Section 28 refers to the purposes for which the funds of the temple may be utilised. Section 28 (2) and (3) run, as follows:-

''(2) Without prejudice to the purposes referred to in Sub-section (1), the Board may, with the previous sanction of the State Government, order that the surplus funds of the temple be utilised for-

(a) the establishment of a university or a college in which special provision is made for the study of the Hindu religion, philosophy and Shastras generally or of the tenets of the Pushtimarg faith in particular and for promoting the cultivation of Indian arts and architecture;

(b) promoting the study of Sanskrit and Hindi;

(c) the establishment and maintenance of a hospital or a leper asylum for the benefit of Hindus generally;

(d) the construction and maintenance of a poor-home for destitute persons professing the Hindu religion who are physically disabled and helpless; and

(e) any charitable, religious or educational purposes not inconsistent with the objects of the temple.

(3) The order of the Board under Sub-section (2) shall be published in the prescribed manner.'

18. Under Section 30 the State Government is given the power to make rules for carrying out all or any of the purposes of the Act.

19. Section 30 (2) (a) gives the State Government power to make rules with reference to the qualifications of the Goswami for holding the office and the allowances payable to him.

20. The other important provisions are Sections 31, 35 and 37 which run, as follows:-

'31. Suits. (1) The State Government or any other person having interest may institute a suit in the Court of district Judge to obtain a decree-

(a) vesting any property in the Board, or

(b) declaring what portion of an endowment or of the interest therein shall be allocated to any particular subject, or

(c) removing any member of the Board or the Trustee of a specific endowment, and directing the appointment of a new member of the Board or a new trustee for the specific endowment, or

(d) directing accounts and enquiries, or

(e) granting such further or other relief as the nature of the case may require.

(2) Sections 92 and 93 and Rule 8 of Order I of the First Schedule to the Code of Civil Procedure, 1908 (Central Act V of 1908) shall have no application to any suit claiming any relief in respect of the administration or management of the temple and no suit in respect of such administration or management shall be instituted except as provided by this Act.'

''35. Transitional provision.--The StateGovernment may, after the commencement ofthis Act and before the constitution of theBoard, appoint one or more persons to dischargeall or any of the duties of the Board.'

* * * * '37. Bar to suit or . proceeding. No suit or proceeding shall lie in any Court against the State Government for anything done or purported to be done by it under the provisions of this Act.'

21. Now we proceed to deal with the contentions in the Writ petitions.

22. In Writ Petition No. 90 of 1959 the Tilkayat has traced the history of the institution and claimed that the entire property of the temple was the private property of the Tilkayat. particular reference is made to the Temple of Navnit Priyaji and Shri Madan Mohanlalji which are included within the definition of the 'temple' in the Act and it is alleged that they at any rate are the private and personal deities of the Tilkayat and properties of the petitioner as distinct from the deity of Shrinathji and the property allocated to seva of Shrinathji or otherwise connected in any manner with the aforesaid high shrine. It is said that the public has no right to these two deities.

The various provisions of the Act are challenged on the ground that they are repugnant to Part III of the Constitution, and particularly to Articles 14, 19, 25, 26 and 31 and are also beyond the legislative competence of the State Legislature. The Tilkayat has prayed for directing the respondents by a Writ of Mandamus not to implement the provisions of the aforesaid Ordinance and not to interfere with in any manner in the management of the said temples of Shrinathji, Shri Madan Mohanlalji and Shri Navnit Priyaji and the properties relating thereto by the petitioner.

23. In Writ Petition No. 310 of 1959, it has been stated by the Vaishnavas that by immemorial custom, usage and the established tradition of the Sampradaya, the eldest male descendant of the said Shrimat Vallabh Acharya has been throughout the centuries in full charge, control and possession of the said shrine and deities therein as well as of properties both movable and immovable, connected therewith as the ''acharya' thereof. He had been and was also in charge of seva and worship of the deities. It is alleged that there is no substantial or real complaint regarding the management of the temple, and the temple has fallen a prey to the political intrigues of some political leaders and the State of Rajasthan was making efforts to wrongfully interfere with the said temple and to acquire it and run its management by its nominees.

Reference was made to the suit filed by the Collector under Section 92 Civil Procedure Code and it is stated that the Government's efforts to take immediate control over the said temple having failed in the judicial proceeding and the State Legislature of Rajasthan enacted the law. In paragraphs 23 and 24 of this Writ Petition which are quoted below the basic grounds for challenging the provisions of the Act are mentioned.

'23. By Immemorial custom, usage and the established tradition of the said Sampradaya the administration and management of the said shrine should and must vest In the Tilkait Maraj for the time being in office and apart from him no one else is entitled to in any way interfere with the management or administration of the said shrine. The seva, and worship of the said deities in the said shrine should and must be subject to the absolute control and authority of the Tilkait Maharaj. The properties whether immovable or movable and connected with the said shrine and/or deities should and must vest in the Tilkait Maharaj for the time being in office as the owner thereof. In fact until and unless the Tilkait Maharaj for the time being in office or the person authorised by him for the purpose presides over the various forms of worship there is no worship at all in accordance with the tenets, usages and customs of the said Sampradaya.'

'24. By imposing upon the said Sampradaya a statutory Board and by divesting the Tilkait Maharaj for the time being in office from the administration of the said Act has seriously infringed Articles 19, 25, 26 and 31 of the Constitution of India and is ultra vires and void.'

It is further alleged in the Writ Petition that the Act was discriminatory inasmuch as the shrine of Shrinathji has been singled out for the administration and management of its property without sufficient reason to differentiate its case with the conditions and circumstances of other temples existing in Rajasthan, i.e. Temple at Kankroli, Temple of Shri Govind Deoji and other temples. The prayers in this Writ petition are also more or less on the same lines as the prayers in the application of the Tilkait.

24. The third Writ Petition on behalf of Shri Ghanshyam Lalji is practically on the same lines as that of the Tilkayat and need not be mentioned in detail. In this petition the petitioner claims an interest in the temple of Shrinathji on the ground that Shri Vithal Nathji son of Shrimat Vallabhacharya gave one swaroop of the seven swaroops to each of the seven sons while at the same time the management of seva and properties of Shrinathji was given charge to his eldest son reserving to the other branches the right to perform Seva of Shrinathji as the family deity of all the sons. One of the prayers on behalf of the petitioner is that the respondents may be restrained from obstructing or interfering with the removal of swaroop of Shrinathji by the members of Shri Vallabhacharya from Nathdwara to Girraj in Jatipura or to any other suitable place as was done by their ancestors in the past. The other prayers are on the same lines as the prayers to the other Writ Petitions.

25. These Writ petitions are contested by the Respondents. It was denied that the idol of Shrinathji was family deity of the Tilkayat or of the Vallabh Kul. In the affidavit filed by Mr. Ranjeet Singh, Deputy Secretary to the Government of Rajasthan, it is stated that the Temple of Shrinathji was a public religious institution of which the Tilkayat was merely a high priest which office did not confer upon him any title to the property, all property being vested in the idol of Shrinathji. Reliance is placed on the firman issued by the Maharana in 1934. It is stated that the Maharana of Mewar declared the Tilkayat as merely a trustee, manager and custodian of the idol and the property to be the property of Shrinathji. It is further stated that the provisions of the Act did not violate any of the rights of the Tilkayat. Reliance was also placed on the award of Sir Chiman Lal Setalvad and the decree of the High Court of Bombay passed on the basis of that award. Reliance was also placed on the admissions contained in the written statement filed by the Tilkayat in the suit under Section 92 Civil Procedure Code filed by the Collector.

It was also stated that the impugned Act was not discriminatory and did not offend the provisions of Article 14 of the Constitution as the Temple of Nathdwara was the only religious endowment of the Pushtya Margiya Sampradaya in Rajasthan. It had is own tenees, customs and usages as distinguished from any other public, religious endowment. It owned vast movable and immovable properties in all parts of India valued at several crores of rupees. The followers of this Sampradiya numbered several lakhs. The impugned Act was passed for a public purpose to ensure the safety and continuance of the institution which otherwise was in great peril. For all these reasons the endowment was a class by itself and the provisions of Article 14 were contravened in making the impugned Act.

With respect to the idols of Shrinathji, Shri Navnit Priyaji and Shri Madan Mohanlalji it was stated that historically the Tilkayat used to perform the personal worship of these two idols but the temple of these two idols was situated within the precincts of the temple of Shrinathji and the Tilkayat could not claim these idols as his personal property. It is further stated in this connection that if the Tilkayat had any right in the said idols or their properties, he had surrendered the same to the committee of management of Shrinathji in 1953. Objection was also taken to the maintainability of the writ petition on the ground that the petition raised several disputed questions of fact, the determination of which demanded a lengthy enquiry and recording of evidence and that the writ petition should be dismissed on that ground.

26. The position taken up by the respondents in the other two petitions is more or less the same. In reply to Writ Petition No. 310 of 1959 filed on behalf of the Vaishnavas, it was admitted that the Tilkayat had the authority to preside and perform the seva pooja according to customs and tenets of the Sampradaya but it was denied that the Tilkayat or his ancestors bad absolute ownership, management and authority over the shrine. In this reply it is conceded that Shri Navnit Priyaji and Shri Madan Mohanlalji were once the family deities of Tilkayat Maharaj but it is asserted that the Tilkayat Maharaj surrendered all his rights relating to the aforesaid deities and their properties to the committee of management of Shrinathji on the 15th of October, 1956 and since then the aforesaid deities and their properties are public endowments and the Tilkayat Maharaj had no proprietary interest therein.

The Vaishnavas had filed Annexure 'A' with their Writ petition, which gives particulars with regard to the origin and usages of the Sampradaya, the duties and functions of Tilkayat Maharaj and customs and usages and practice and rituals of the Sampradaya, and to this Annexure they made reference in Paragraph 15 of their application. In the reply it was stated that it was generally admitted except in so far as it related to the proprietary rights over the properties of the temple.

27. To the Writ petition filed on behalf of Ghanshyam Lalji, the reply is on the same lines as mentioned in other two Writ petitions and the right of the petitioner Ghanshyam Lalji to any interest in the property is denied.

28. A number of documents and affidavits have been filed in these Writ petitions and at the time of arguments, it was prayed that the documents filed in all the Writ petitions should be taken to have been filed in, and be treated as part of the record of each of the Writ petitions and this prayer was allowed.

29. From what we have said hereinbefore, it becomes apparent that it is necessary for us to determine-

(1) Whether the temple of Shrinathji is a public temple or a private temple?

(2) Whether the idols of Navnit Priyaji and Madan Mohanlalji are the family idols and the properties pertaining to them are the private properties of the Tilkayat?

(3) Whether the petitioner Shri Ghanshyam Lalji has any interest in the Temple of Shrinathji?

30. The learned Solicitor-General on behalf of the Respondents urged that the determination of these questions would require an elaborate enquiry and in the circumstances of the case it would be proper if this Court directed the parties to go to a competent Court for their determination and these Writ petitions should all be dismissed on the ground. The contention of the petitioners is that as there is infringement of Fundamental Rights of the petitioners, the matter should be decided by this Court. At the initial stage of the arguments we had to point out to the learned counsel for the Tilkayat whether it will no; be to his advantage to get the matter decided in a regular suit after an elaborate enquiry. Mr. Achru Ram on behalf of the Tilkayat however seated that he mainly relied on the documents filed in these Writ petitions and would prefer the matter to be decided by this Court.

31. In support of his argument, the learned Solicitor General has relied on the observations of their Lordships of the Supreme Court in Moti Das v. S.P. Sahi, AIR 1959 SC 942 wherein their Lordships have approved of the view taken by the High Court of Patna that the questions whether the trusts are public or private trusts or the properties are private or trust properties are questions which involve investigation of complicated facts and recording of evidence and such investigation could not be done in Writ proceedings. He has also relied on Sohan Lal v. Union of India (S) AIR 1957 SC 529 and Kavalappara Kottarathil Kochunni v. State of Madras, AIR 1959 SC 725.

We may say at once that so far as the case of Goswami Ghanshyamlal is concerned, his interest in the temple of Shri Shrinathji apart from his being Vaishnav is based on allegations which require a thorough examination after taking full evidence. It has to be determined whether the descendants of Shrimat Vallabhacharya were ever granted any rights in the worship of the deity Shrinathji in the said temple and whether they ever exercised these rights during this period of about 400 years. It would be proper for us to leave him to seek his remedy in competent Court of law if he feels aggrieved on account of the infringement of his alleged rights. We would, therefore, dismiss his petition on this ground.

32. So far as the Tilkayat is concerned, no doubt his claim is mainly based on the ground that the idol of Shri Shrinathji and the property pertaining to it are his private properties but we find that there is also an assertion on his part that his rights as a shebait are also infringed. The learned Solicitor General has strongly urged that the case of the Tilkayat is altogether based on his right to own the temple of Shri Shrinathji and it is no part of his case that he has any other right in the temple except that of an owner thereof. This criticism is justified to some extent. However, we find that there is reference in para 24 of the Writ petition that Section 3 of the Act takes away the right of the petitioner to manage and possess the properties of Shri Shrinathji, Shri Navnit Priyaji and Shri Madan Mohanlalji and therefore it constituted an unreasonable restriction on the rights of the Tilkayat to hold and dispose of the property. In the affidavit filed in the rejoinder, the alternative case is brought out in this form.

'The petitioner denies that he is merely the trustee or that there is any public religious institution in connection with idol Shrinathji or the properties.

'Assuming without conceding for the sake of argument that I, the petitioner am only a high priest and trustee, still my profession, status and rights in property are protected and guaranteed by Part 3 of the Constitution and my fundamental rights have been infringed by the impugned Act.'

The alternative case is brought out with much more clarity in the petition filed by the Vaishnavas. After giving our earnest consideration, we are of the opinion that we should not be top technical and throw out the alternative case of the Tilkayat solely on the ground that he has not asserted these rights in a very precise form in his Writ petition. We must, however, observe that the Writ petition is not so framed as to place in the forefront the alternative case of the Tilkayat.

33. Now if we deal with the rights of the Tilkayat as a Shebait, we have to go into the history and tenets of the Sampradaya as also in the history of Shri Shrinathji at Nathdwara. The claim of private ownership of the temple put forward by the Tilkayat is also mainly based on these very considerations. On behalf of the Tilkayat, it has been conceded that it is mainly on the documents filed by him that he bases his claim of the private ownership of the temple of Shri Shrinathji. These very documents will have to be considered to determine the rights of the Tilkayat as a shebait. Thus, the material for determining the public or private character of the temple of Shri Shrinathji is practically the same on which the rights of the Tilkayat as a shebait are to be determined. Again, this is a case in which the Tilkayat has alleged that there has been infringement of his Fundamental Rights.

There is also the consideration that the case relates to a religious institution which is unique in its importance in Rajasthan and it would not be proper that the institution be dragged in protracted litigation. We may also mention that the Tilkayat has expressly invited us to give a finding whether the temple is a private temple of the Tilkayat or a public temple of the Sampradaya on the documents on record. For all these reasons we think it proper in the circumstances of this case to determine whether the temple is a private or a public temple and we proceed at once to take this matter into consideration.

34. Great emphasis is laid on behalf of the Tilkayat and also by the Vaishnava on the tenets of the Sampradaya to support their case on this point. We do not deem it proper to enter into an elaborate discussion on the philosophy of this Sampradaya, nor do we feel ourselves fully competent to do so. The doctrine propounded by Vallabha has been referred to by Dr. Bhandarkar in Vashnavism, Saivism and Minor Religious Systems (1928) on pages 112-113. We may quote the following passages:-

'Pusti is the grace (Anugraha) of Godwhich is to be inferred from its fruit or theresults, which are ordinary, or of this world,and extraordinary, or of the next world.'

* * * * 'The fourth (form of Pusti) is of those who through mere love devote themselves to the singing and praising of God as if it were a haunting passion. This Bhakti is generated by God himself and does not depend upon man's will as the third, mentioned above, does. First a liking for himself is generated by God in the mind of a man to whom his grace extends. Then a man sets about acquiring knowledge about God, and all this is called Premabhakti (love adoration). Now the stages in the development of this are as follows: (1) love or liking (Preman). (2) attachment or addictedness (Asakti), (3) a haunting passion, which is the mature condition of the first two (Vyasana).'

'The haunting passion leads to attainment of the end, that is, the highest bliss. Those in whom Bhakti has attained to this pitch reject with scorn the four kinds of Mukti and choose the eternal service of Har, as noticed in the section on the Pancaratra system. By the haunting passion about Hari he is seen everywhere, and therefore everything becomes an object of love, and the devotee identified himself with everything. Then the inner and the outer world is, for the devotee, full of Purushottama, or the highest soul.'

Shrimat Vallabhacharya laid emphasis on the devotion of Lord Krishna represented as a child 'Bal Gopal. An elaborate system for worshipping Lord Krishna in this form grew up in this Sampradaya. We need not give the details of this worship. Suffice it to say that the idol of Lord Krishna as 'Bal Gopal' is to be worshipped eight times a day. The daily life of Krishna was divided into eight parts and the darshan of the deity after appropriate service was made available to the followers. Reference In this connection may be made to Wilson's Religions Sects of the Hindus--1958 Edition--wherein the eight daily ceremonies are given at pages 72-73.

35. For the initiation as a member of the Sampradaya two ceremonies are considered necessary. The first ceremony takes place early in the childhood when the child is taken to the Maharaj, who is one of the descendants of Vallabhacharya and the Maharaj chants the Mantra '.k 'kj.ka ee% in the ear of the child. The second ceremony takes place when the child is about 12 years old. This ceremony is called Brahman sambodh and the follower dedicates his rueu and /ku (body, mind and all belongings) to Lord Krishna. This ceremony is also performed through the Guru. Having thus surrendered himself to the god, the devotee is then entitled to seva or worship of the idol. It would thus appear that the guru or Maharaj occupies a central place in the doctrine of this Sampradaya. It is he who initiates a follower, giving him entrance in the Sampradaya and it is he who entitles him to perform 'seva'. Again, the 'seva' cannot be performed but through him. In short, the access to Lord Krishna can lie had only through the Maharaj.

In this Sampradaya it is only the descendant of Vallabhacharya who can claim the right of being the 'acharya'. The essence of religion in this Sampradaya being total surrender of oneself with all his worldly belongings to the seva of Lord Krishna, it can be easily understood that the followers of the Sampradaya put no restraint upon themselves in presenting lavish offerings to the deity, who, as already mentioned, is to be worshipped as a child by making all necessary arrangements for the comfort of the child. It is the tradition of this Sampradaya that Lord Krishna manifested himself in the form of the idol of Shri Shrinathji and this belief in the followers is so intense and deeply rooted that the place where the idol of Shri Shrinathji is installed is a place of pilgrimage for every devout follower of this Sampradaya. We have already pointed out that the Tilkayat for the time being has the right to perform the 'seva' of Shri Shrinathji in this Sampradaya. Thus the Tilkayat by himself commands great reverence from his followers.

Shri Vallabhacharya did not believe in Sanyas. He repudiated the doctrine of Shanker in this respect. According to Shri Vallabhacharya, it is enough if a man gives himself up to the service of the God--Lord Krishna as a child. The devotee must feel intense and earnest love and attachment for Lord Krishna in that form and should seek to provide all comforts to the idol. He must give himself and all his belongings to the idol, though he is permitted to use the same after thus offering them to the God. This robust attitude towards the worldly objects attracted a large number of followers to this sect mainly from the merchant classes in Rajasthan.

The ruling chiefs, Jagirdars and other members of the class also either became adherents of Shri Shrinathji, or at least showed marked respect and veneration for the idol and the temple. It was but natural under these circumstances that the worshippers of Shri Shrinathji should make munificent presents and offerings to the deity. Rajas, noblemen and merchants have vied with one another in this matter. The ruling chiefs of Rajasthan assigned villages for the 'seva' of the deity and the merchants made costly presents in the shape of ornaments, jewellery and other articles.

36. In this background we proceed to consider whether the temple of Shri Shrinathji is a public temple or a private temple of the Tilkayat. It is vehemently urged on behalf of the petitioners that the temples of this Sampradaya are not public temples but are private properties of the guru. Reliance is placed on the following passages of various writers on the subject:-

''Each Guru has a temple of his own, and there are no public places of worship. The devotee should visit the temple of his Guru at stated intervals, which are eight in number during the day. '(Article 64 in Vaisnavism, Savism and Minor Religious Systems by Bhandarkar--1928 Edn. p. 114).

* * * * 'The practices of the sect are of a similar character with those of other regular worshippers; their temples and houses have images of Gopal, of Krishna and Radha, and other divine forms connected with this incarnation, of metal chiefly, and not infrequently of gold ....'

(Religious Sects of the Hindus by H.H. Wilson Edited by Earnst R. Rost--1958 Edn. page 72).

'This service is sharply contrasted from the worship of other bodies in several features, both outward and inward.

A very notable difference lies in the fact that Vallabha's Church has no Mandirs or temples proper. The place of these has been taken by what are called Havelis, i. e., houses. Many of these are private houses belonging to the members of the family of Vallabha and are open to the public at certain fixed periods of the day.'

(Page 247, Sri Vallabhacharya, Life Teaching and Movement (A religion of Grace) by Bhai Manilal C. Parekh--1943 Edn.)

'Due to several reasons the Vallabhites have no public temples for worship. The descendants of Vallabhacharya worship one image or another in their homes. And the followers are allowed to a certain extent, to join in any of the eight services performed daily.'

('Vaishnavas of Gujarat' by M. A. Thoothi, 1935 Edn. : p. 94)

The Division Bench judgment of the Bombay High Court in Ranchhoddas Kalidas v. Goswami Shri Mahalaxmi Vahuji, AIR 1953 Bom 153 at p. 159-60 has also been relied upon. Gajendragadkar, J., referred to the statements of Dr. Bhandarkar and also to the tenets of the Sampradaya and proceeded to observe, as follows:-

'In the ordinary course, when the devotees gathered round these descendants and worshipped the idols brought by them, the places of residence of these descendants were treated as holy places, which were known as 'havelis' or temples and the private idols brought by them were worshipped by the devotees congregationally.'

But we may take the liberty to quote the learned Judge at some length. The learned Judge further observed-

'That no doubt is the feature of some of the temples of this cult. The observations made by Dr. Phandarkar are undoubtedly entitled to the respect which is due to the writings of that great oriental scholar on a subject like this. But it must be remembered that, in his thesis on Vallabh, Dr. Bhandarkar was not interested in the legalistic aspect of these temples; he was not addressing himself to the question as to whether those temples and the properties acquired by them or by their Worshippers could never be treated as public charitable trust. He was relying upon evidence of repute, and, with respect, his conclusion that the majority of these temples may be private temples, having regard to the historical genesis of the spread and growth of this cult, may be right. But we do not think it would be possible to treat these statements of Dr. Bhandarkar as laying down the inexorable and unexceptionable proposition that, amongst the Vaishnava devotees of the Vallabha cult, there can be no public temples for worship.

Whether a temple and the idol which is worshipped by the Vaishnava devotees of this cult was a private or public temple would always, in our opinion, be a question of fact. At best, it may be said that, if nothing else is known about a temple, it may prima facie be assumed that the idol worshipped by the Vaishnava devotees of this cult was brought by the descendant of Vallabha, and that the temple which was grown around this idol may be the private temple of such descendant. But even this prima facie view will have to be examined in every case in the light of the other evidence available on the record.'

37. We have given our earnest consideration to this matter. Shrimat Vallabhacharya never denounced the building of a temple. His doctrines laid emphasis on image worship. In fact the tradition goes that the idol of Shri Shrinathji which is installed at Nathdwara appeared in a dream to him and commanded him to take it out of the cave in the hillock. Sometime after the idol was taken out, Lord Krishna had commanded Pooran Mal, a rich merchant to build a temple and the temple was built. In the popular literature of this Sampradaya, this is admitted that the building which was constructed during the lifetime of Vallabhacharya was a magnificent temple. We may in this connection refer to the following books:-

In 'Shrinathji ki Parktaya Varta' by Goswami Shri Hari Rai Mahanubhavkrit (2018 Sambat Edn.), Hari Rai has referred to the construction of the temple by Pooran Mal at p. 21, and it is mentioned that the foundation of the temple was laid on Baisakh Sudi 3, Sambat 1556 and the idol was installed in that temple. Again, in this very book at page 78, it is mentioned that when Shrinathji reached Mewar, Shri Govindji, the then Tilkayat ordered for the construction of a temple and the work of the construction of the temple was undertaken night and day and the temple was complete within some months and the idol was installed in that temple on phagun Badi 7, Sambat 1728.

Shri Vithal Nath, the disciple of Shri Hari Harnath, has written a book in poetry called 'Sampradaya Kalipudram'. At page 41 of the book there is a reference that Shri Vallabhacharya got a temple constructed for the deity and the deity was installed in that temple on an auspicious day.

38. It appears that during the lifetime of Shri Vallabhacharya, he got a big temple built and installed the idol in that temple but during the time of his son Vithal Nathji this idol was taken away from the temple built by Vallabhacharya and was placed in another temple built by him. Vithal Nathji had his own reasons for not giving the place where the idol was built the shape of a temple. Here again, the popular literature prevalent in this Sampradaya mentions the place to be a temple though it might be that it was constructed in the form of a house and not in the form of a temple according to the old Shastric rites and injunctions.

39. In the Firman of Emperor Akbar dated 31-5-1593, the reference is to the temple of Gordhan Nath. In the Firman of Emperor Shah Jehan dated 29-9-1633, the reference is that

'Goswami Vithal Nathji caused buildings, sheds for cows, gardens, workshop for God Gordhan Nath ............ and that the lands of that mauza have been granted by His Majesty for his use and for expenses of Thakurdwar and exempted from the payment of dues.'

Thus, these documents clearly refer to the places where the idol of Shrinathji was installed as temples. Whatever may have been the attitude of the acharyas of the Sampradaya with respect to the other idols, this much cannot be denied that so far as the idol of Shrinathji was concerned, the place or places where it was installed, was always taken to be a temple. We are, therefore, reluctant to concede that the temple of Shrinathji at Nathdwara is not a temple but a private house of the Tilkayat.

40. Whether the present building at Nathdwara is in the form of a haveli or a temple is not so material as the question whether it is a public endowment or a private one. On this point we do not entertain any doubt. The village Siarh at which the chariot carrying Shri Shrinathji got stuck and which came later on to be known as Nathdwara was in the jagir of one of the noblest of Mewar Darbar. As he came to know that the God had decided to reside in his jagir area, he gave the village in the name of Shri Shrinathji. This was confirmed by the ruling prince of Mewar who also granted the Sanad. A copy of the Sanad is mentioned in Tod's Annals and Antiquities of Ra-jasthan, Vol. 1--Appendix VIII, page 695, and in the sanad it is clearly mentioned that the village of Siarh in the hills having been chosen by Nathji (the god) for his residence, was given up by Rinna Raghudu.

41. The Sanad of 1805 by Maharana Bhim Singhji Annexure No. 5/22 also speaks that the aunt of the ruler, Shrimat Ratan Kunwer, granted to Thakurji Shri Gordhan Nathji the village sirot and the ruler confirmed the grant by the Sanad. Again, there is another sanad of 1802 of the same Maharana by which he bestowed village Ghusiar on Thakurji Shri Gordhan Nathji. The same ruler again in 1809 bestowed several villages on Shrinathji. Then, later on a number of grants were made by various nobles and rulers of Mewar and other States and in most of these grants it is clearly mentioned that they were made to Shri Shrinathji. Reference in this connection may be made to Annexures 9 to 39 in Writ Petition No. 421 of 1960.

42. He may also refer to Kharita from the Maharaja of udaipur to the Governor General of India--dated the 17th of January, 1825, the opening part of which runs, as follows:-

''In the time of Maharana Rajsinghjee the God Shri Govurdhunnathjee and the ancestors of the Gossainjee or High Priest of the Vaishnavas, came from Brij to Mewar in the month of Falgoon Sumbat 1735. Our ancestors kept the Thakoorjee Maharaj (God) and the Gossainjee Maharaj at the village of Shihad which is near Oodeypoor and presented that village to the Thakoorjee. After this our ancestors and all other Rajas great or little i.e., Jaypore, Jodhpore, Boondee, Kotah etc., became followers of that religion and agreed to obey orders. They all granted lands and villages for the expenses of the god. ......'

43. There are far too many grants to be mentioned in detail but the significance fact is that the grants were made to the deity or for the worship of the deity and the reference to the Tilkayat is that he may utilize the income for the purposes of worship. If any grants are made personally to the Tilkayat, this is specifically so mentioned.

44. Let us now see what happened to the income so derived from these various grants and the presents made to the deity. In the letter dated 5-9-1932 by the then Tilkayat to the then ruler of the Mewar State:--Annexure No. 5/6, in Civil Writ Petition No. 90 of 1959, it is clearly mentioned by the Tilkayat that 'the money of the deity shall not be used, on our personal expenses as at present'. This is practically conceded by the Tilkayat during the course of arguments. Thus the income derived from the endowments to the temple were never utilized by the Tilkayat for his personal expenses. This is a significant circumstance which definitely indicates that the temple was a public temple. We may in this connection refer to the following observations of their Lordships of the Privy Council in Mundancheri Koman v. Achuthan Nair, 61 Ind App 405 at p. 411 : (AIR 1934 PC 230 at p. 232)-

'In their Lordships' opinion, the decision in this case really depends on the inferences to be derived from the evidence as to the way in which the temple endowments have been dealt with and the evidence as to the public user of the temples'

45. Along with these circumstances are the facts that the temple is held in high veneration by about five million people and they make lavish offerings to the deity and that whenever offerings are intended for the Tilkayat, they are separately made and that the temple is open to all the Hindus for darshan, of course, according to the tenets of the Sampradaya. All these facts and circumstances clearly establish that the temple is a public temple and all property of this temple is public property.

46. The matter is placed beyond any pale of doubt by the Firman of Maharana Udaipur dated the 31st of December, 1934, which we quote in extenso on account of its importance.

'I declare that according to the Law of Udaipur the shrine of Shrinathji has always been and is a religious institution for the followers of the Vaishnavas Sampradayak and that all the properties immovable and movable dedicated, offered or presented to or otherwise coming to the deity Shrinathji has always been and is the property of the shrine and that the Tilkayat Maharaj for the time being is merely a Custodian, Manager and Trustee of the said property for the shrine of Shrinathji and that the Udaipur Durbar have absolute right to supervise that the property dedicated to the shrine is used for legitimate purpose of the Shrine.

Further the law of Udaipur has always been and is that the succession to the Gadi of Tilkayaj Maharaj regulated by the Law of primogeniture but that the Udaipur Darbar has the absolute right to depose any Tilkayat Maharaj for the time being if in .. its absolute discretion such Maharaj is considered unfit and also for the same reason and in the same way to disqualify any person who would otherwise have succeeded to the Gadi according to the law of primogeniture.

Further that in the event of the Tilkayat Maharaj being a minor, the Udaipur Darbar always had and has absolute authority to take any measures for the management of the shrine and its properties during such minority.

I further declare that in accordance with the said law of Udaipur, I declared Shri Damodarlalji unfit to occupy the Gadi and I approved of the succession of Goswami Govindlalji to the Gadi of Tilkayat, Maharaj and I further declare that the order dated the 10th day of October, 1933, was issued under my authority and in lawful and in accordance with the law of Udaipur.

(Sd.) M. R. Bhupal Singh'

47. In the opening part of the Firman the declaration is made by the sovereign power that according to the Law of Udaipur the shrine of Shrinathji has always been and is a religious institution and that all the properties, movable and immovable, have always been and are the properties of the shrine. The learned Solicitor General has rightly pointed out that this Firman is a declaration of the sovereign power and must be taken to be the law and must be treated as binding on all. Reference may be made to-

1. Ameer-ul-Nissa Begum v. Mehboob Begum, (S) AIR 1955 SC 352.

2. Madhaorao Phalke v. State of Madhya Bharat, AIR 1961 SC 298. Mr. Achru Ram on behalf of the Tilkayat has tried to minimise the effect of the aforesaid declaration by pointing out that the Ruler's object in issuing that firman was to approve the succession of Govindlalji to the Gadi of the Tilkayat Maharaj as mentioned in the concluding portion of the firman and that the opening part of the firman was merely a preamble and the facts contained in the preamble cannot be taken to be necessarily true. He has relied on the following passage from Craies on Statute Law.--p. 40:

'But so far as a preamble recites facts in pais, other considerations apply. It is incontrovertible in law that the recitals motived the enactment, but it does not therefore follow that the recitals are true or conclusive in fact upon individuals: for the omnipotence of Parliament does not extend to facts, nor imply its infallibility.' The same author has however noticed that the case of Labrador Co. v. R. 1893 AC 104. Lord Hannen in delivering the opinion of the Judicial Committee, said: 'Even if it could be proved that the Legislature was deceived, it would not be competent for a court of law to disregard its enactments. If a mistake has been made, the Legislature alone can correct it. The Act of Parliament has declared that there was a seignevrie of Mingan, and that thenceforward its tenure shall be changed into that of france alleu. The Courts of law cannot sit in judgment on the Legislature, but must obey and give effect to its determination.'

In our opinion, the firman embodies the declarations of the Maharana and every declaration is as operative as the other. Every declaration is law.

48. Mr. Achru Ram referred to the litigation which took place from time to time la the Bombay High Court, the cases relating to which have been referred to in the opening part of the judgment, to show that Tilkayat Girdharilalji asserted his right to take possession of the property but in none of these cases it has been decided that the properties were the personal properties of the Tilkayat and not that of the temple. On the other hand, on 10th April 1942 an award was given by Shri Chiman Lal Setalvad in the counter-claim filed by the idol of Shrinathji and the idol of Shri Navnit Priyaji against Shri Govindlalji.

This award clearly mentioned that all properties, movable and immovable and all offerings and bhaits donated, dedicated, offered or presented to the idol of Shri Nathji or for its worship or benefit belonged to the idol of Shri Nathji who is the owner thereof. No doubt this award refers to the properties of the idol at Bombay, yet it is significant that that property was held to be that of Shri Nathji and a decree in terms of an award was passed on the 8th September 1942 by the Bombay High Court.

49. A number of affidavits have been filed on behalf of the Tilkayat--all stereotyped--in which it is said that Shri Nathji is the family deity of the Tilkayat and he had private ownership over it and the idol was not a public idol but these affidavits are of no value in face of the un-impeachable documentary evidence to which we have made reference. Even the Tilkayat himself admitted in the written statement filed in the suit under Section 92 C. P. C. the public character of the institution. Mr. Achru Ram has contended that this admission of the Tilkayat was made for the purpose of that suit and cannot be looked into for other purposes. He has relied on the authority of the Bombay High Court in Ramabai Shriniwas v. Govt. of Bombay, AIR 1941 Bom 144. It has been observed that:

'A party is not bound by an admission in his pleading except for the purposes of the suit in which the pleading is delivered ..........'

With great respect to the learned Judges, we are of the opinion that this proposition is too widely stated. Whatever may be the rule of the English Law, the provisions of the Evidence Act do not contain any such exception. Under Section 23 of the Evidence Act, however, in a civil case, no admission if it is made either upon an express condition that evidence of it is not to be given or under circumstances from which, court can infer that there is such an agreement between the parties, is relevant. In this case the written statement was the result of a compromise arrived at earlier and we think we ought not to rely on such, an admission of the Tilkayat. Even if we ignore this admission, it is established beyond any manner of doubt that the idol of Shri Nathji and the temple where it is installed at Nathdwara and all the properties belonging to the idol of the temple are public and not private.

50. Now we come to the idols of Shri Navnit Priyaji and Shri Madan Mohanlalji. In the reply filed in Writ Petition No. 310 of 1959, the contesting respondents have taken up the position that they were no doubt family idols of the Tilkayat but the worship as well as the properties of these idols have been transferred by the Tilkayat to the Managing Committee appointed by him. Reference in this connection is made to the report dated the 15th of October 1956 of Shri Kesri Singh Ranawat wherein he has mentioned that His Holiness had been pleased to transfer the ownership of the temple and the baithaks (as per the attached list).

In the proceedings of the meeting of the Board of Attorney Holders held on the same date it is stated that the proposal of His Holiness to transfer the ownership of the aforesaid properties to Shrinathji was accepted and the Tilkayat who was presiding over the meeting also confirmed the proposal. It may be mentioned that the transfer was to the committee of Attorney Holders which had been appointed by the Tilkayat himself. This committee was the creation of the Tilkayat and it cannot be contended that he could not have dissolved that Committee and taken all the management of the temple of Shri Nathji and of the temple of Shri Madan Lalji and Shri Navnit Priyaji in his own hands.

There is no gift or Trust deed by the Tilkayat divesting himself of all his rights in these two Idols and its property and vesting it in the Committee of Management. According to the law of the country there should have been such a deed and it should have been registered. Thus, there is no legal document creating trust in favour of the committee Under these circumstances, we do not find any ground for holding that the Tilkayat had permanently divested himself of his rights with regard to these idols and the properties pertaining to them. We, therefore, hold that these two idols are the family deities of the Tilkayat and the temple of Shri Madan Mohan Lalji and Shri Navnit Priyaji is his private temple.

51. Now we come to the question whether the Tilkayat has any right in the temple of Shri Nathji,

52. The history of the Sampradaya and of the Temple of Shrinathji clearly shows that it was the Tilkayat who managed the property belonging to the temple and performed the 'seva' and other religious ceremonies and incurred expenditure on 'seva'. In para 15 of Civil Writ Petition No. 310 of 1959--Annexure 'A' is specifically mentioned and it is to be taken as part of the Writ Petition. Paragraph 7 of that Annexure is as follows:

'Since the time of Shri Vithal Nathji through centuries, the eldest male descendant whether natural or adopted has been inheriting the premier seat and office of Acharyaship of the said Sampradaya and the right and title to hold and be in possession of and have full and absolute authority and control in respect of the said temple and the deity therein and properties movable and immovable connected therewith.'

The reply on behalf of the contesting respondents is that the allegations in Paragraph 15 are generally admitted. Again, in Paragraph 28 (x) it is mentioned that by an immemorial tradition of the said denomination, the Tilkayat is the head acharya in whom vests the office of Principal acharyaship and the religious and temporal power of managing other affairs of the temple and administering the properties and presiding over the worship and determining the existing rites, practices and usages and the reply is that Section 22 of the Act did not affect any established usages, the rights, honours, emoluments and perquisites to which any person by custom or otherwise be entitled to.

53. The petitioners have extolled the position of the Tilkayat very high. Their contention is that according to the tenets of the Sampradaya he is a manifestation of god. The observations of their Lordships of the Privy Council in ILR 17 Cal 3 (PC) that:

'All the male members of the family are in their lifetime esteemed by their community as partaking of the Divine essence, and as entitled to veneration and worship;'

are relied upon in this connection.

It may, however, be mentioned that these observations of their Lordships were made while stating the case of the plaintiff who was himself a Tilkayat. Whatever may be the professions or the beliefs of the Sampradaya in this respect, this can be taken that the Tilkayat occupied with regard to the temple of Shri Nathji a position in no way inferior to that of a shebait in a Hindu temple. The contention of the learned Solicitor General is that the firman of 1934 declared the Tilkayat Maharaj merely a custodian, manager and trustee of the said property for the shrine of Shri Nathji and thus he could no more claim any rights analogous to the rights of a shebait. He has emphasised the use of the word 'merely' to point out that whatever might have been the position of the Tilkayat before the firman was issued, he was no more than a mere manager after the firman had been issued.

54. There is no room for doubt that before the firman was issued the Tilkayat in office used to administer the properties of the endowment of the temple of Shri Nathji and used to collect and keep the income of the properties and spend it on the seva of Shri Nathji. He had also beneficial interest in the said property inasmuch as he had the right of residence and right to receive 'prasad' and to distribute it. The tenets of the religious also make him the spiritual head of this Sampradaya, the premier deity of which is Shri Nathji and in that capacity he had to perform the various religious duties and functions. Even the Udaipur Darbar recognised this position of the Tilkayat though it was asserted from time to time that the whole property being religious endowment was under the supervision of the State and the State had the right to supervise the affairs of the temple and to safeguard the property. When Girdhari Lalji was deposed, Gordhanlalji was installed to the gaddi as Tilkayat.

In the firman that was issued in that connection (Annexure is in Writ petition No. 90 of 1959) by Maharana Sajjan Singh, it is clearly mentioned that the income from movable and immovable property pertaining to the temple of Nathdwara was to be enjoyed by Goswami Gordhanlalji and it belonged to him and Girdharilalji had no connection with it. In the letter dated 5-9-1932--Annexure No. 56, written by Tilkayat Gordhan Lalji to the Maharana of udaipur, it has been mentioned that the Tilkayat had appointed an Advisory Committee for the secular affairs of the Thikana and that seva etc. would continue to be performed according to the old tradition and there was to be no breach thereof and the committee had the right to make necessary reforms which would be assented to by the Tilkayat and that the wealth of Shrinathji was not to be utilized over the personal expenses of the Tilkayat as hereinbefore but the ownership thereof would remain of the Tilkayat and the accounts were to be maintained on that basis.

After the demise of Tilkayat Gordhanlalji, an order was issued by Mahakma Khas on the 10th of April 1932--Annexure 21-A, that Thikana Nathdwara was founded by Udaipur Durbar and was under it since the day of its foundation and that Damodar Lalji in spite of his promise had not reformed himself and that Gordhan Lalji was being appointed as Tilkayat and that the Thikana was taken over under the Court of Wards and an Executive Committee of 3 members and two Munsarims was being appointed to manage the Thikana. To put the matter be-yond any legal controversy, the Udaipur Durbar issued the fireman of 1934--Ex. 8--in which the position of the shrine, its properties and of the Tilkayat are defined. We have already made reference to the opening part of this firman in which all the properties, movable and immovable, dedicated, offered and presented to or otherwise coming to the deity of Shrinath was treated as the property of the shrine.

Then follow the words defining the status of the Tilkayat and he was declared to be merely a custodian, manager and trustee of the said property for the shrine of Shrinathji. The Udaipur Durbar maintained the absolute right to supervise that the property dedicated to the shrine was used for the legitimate purpose of the shrine. It was further provided that succession to the gaddi of the Tilkayat Maharaj was to be regulated by the Law of Primogeniture. On the basis of these provisions of the firman, the learned Solicitor-General has contended that though the office of the Tilkayat was hereditary, he could not be said to be enjoying any beneficial interest in the property. He held merely an office unaccompanied by any emoluments and his right cannot be deemed to be property within the meaning of Articles 19 and 31 of the Constitution. We are not prepared to go so far with the Solicitor General with regard to the status of the Tilkayat even after the firman was issued.

The words 'Custodian, Manager and Trustee' have been used by their Lordships of the Privy Council with regard to the status of a shebait of a debuttor property in some cases, for example, in Vidya Varuthi Thirtha v. Balusami Ayyar, 48 Ind App 802 : (AIR 1922 PC 123) it is observed with respect to the legal status of shebait that 'called by whatever name he is only the manager and custodian of the institution', but it is now well settled that the office of shebaitship is property within the meaning of Articles 19 and 31 of the Constitution. In this connection, we may refer to the decision of their Lordships of the Supreme Court in:

1. Sm. Angurbala Mullick v. Debabrata Mullick, AIR 1951 SC 293,

2. Commr., Rindu Religious Endowments, Madras v. Lakshmindra Thirtha Swamiar, AIR 1954 SC 282 and

3. AIR 1959 SC 942.

In spite of the use of such words as 'trustee' 'manager', or 'custodian' or all of them put together, shebaitship has both the elements of office and property and 'of duties and personal interest'. The use of the word 'merely' in the firman was only to emphasise that all the properties, movable and immovable of the temple belonged to the deity and not to the Tilkayat. It cannot be said that this firman took away alt the rights of the shebait or of the Tilkayat Which belonged to him by virtue of his office. The firman enunciated the correct position by declaring that the Tilkayat was not the owner of property but was merely trustee, manager or custodian. As observed by their Lordships of the Privy Council in Bhabatarani Debi v. Ashalata Debi, 70 Ind App 57 at p. 65 : (AIR 1943 PC 89 at p. 93) :

'The shebait has certainly a right of property in his office, and it may be correct to say that the has some sort of beneficial interest in the debuttor property, the idol is the owner of the property, and the limit set to the sebait's power of disposition is set not to preserve the interest of the next sebait but to maintain and preserve by proper management endowment or religious institution.'

In the firman the use of the word 'merely' was only to emphasise that all the properties, movable and immovable, of the temple belonged to the deity and not to the Tilkayat. It is no doubt true that in one respect the rights of shebait have been curtailed by the firman, it being declared that the Udaipur Durbar had the absolute right to supervise that the property dedicated to the shrine was used for legitimate purpose of the shrine. This right which vested in the Udaipur Durbar devolved on the State of Rajasthan, None-the-less it cannot be said that the Tilkayat had lost all his rights of property and he had merely the right of superintendence and management in the affairs of the temple.

fn this very firman there is reference to the rule of succession by primogeniture to the gaddi of Tilkayat Maharaj and there is further declaration that his succession to the gaddi of the Tilkayat Maharaj was approved. The concept of the gaddi of the Tilkayat carries with it some beneficial rights in the property of Shrinathji. Even in the Act the definition of 'Goswami' is taken to mean ''the occupant for the time being of the gaddi of Shri Tilkayat Maharaj of Nathdwara.' The most important aspects of the secular rights in this case are the right to receive 'prasad' and the right of residence. It is not denied that after the firman was issued, the right of the Tilkayat to receive the 'prasad' or his right of residence was in no way affected. But these two rights are sufficient to make the rights of the Tilkayat in the temple of Shrinathji a property within the meaning of Articles 31 and 19 of the Constitution.

For all these reasons we are of the view that it cannot be said that the Tilkayat had no beneficial interest in the property of the Temple of Shrinathji and was merely a superintendent with a right of hereditary succession. The petitioners have placed the status of the Tilkayat very high. So far as his personality is concerned, it is said that he is God incarnated. So far as his spiritual and religious duties are concerned, it is said that he is spiritual head of the Sampradaya and the sole authority to perform religious duties and ceremonies in the Temple of Shrinathji. So far as his secular functions are concerned, the petitioners claim that he is the sole authority to administer the property of Shrinathji.

The learned Solicitor General has no quarrel over the religious beliefs of the followers of the Sampradaya with regard to the personality and spiritual functions of the Tilkayat, it is also not necessary for us to make any pronouncement in this matter because we are concerned with the secular functions of the Tilkayat and his rights in the property of Shrinathji. We are of the opinion that the Tilkayat has some rights, which are of course anomalous in nature, in the property of the Temple. The learned counsel for the petitioners has claimed that the secular functions of the Tilkayat are inextricably wound up with his religious functions and duties that it will not be possible to draw a dividing line between the two functions. It is no doubt true to a certain extent, but broadly speaking the matter is not very difficult in this case. According to the tenets of this Sampradaya, the income from the endowments or offerings is utilized for the 'seva' or worship of Shrinathji and for arranging various functions in connection with that 'seva' and the performance of 'seva' can be carried on only by the Tilkayat or his nominees. The 'seva' consists in adorning the deity with costly clothes and jewellery and offering the choicest food to the deity and also to provide amenities worthy of a king.

In doing all these the Tilkayat must have his prominent part to play and these may be taken to be his religious duties and functions. The secular aspect of the matter is to collect the income whether from the endowments or from the offerings made to the deity and to arrange for the samagri for the pooja and various other religious functions and to spend the income in accordance with the usage and wishes of the persons who make the presents or offerings. Thus it cannot be said that there can be no line of demarcation between the spiritual functions and secular functions of the Tilkayat.

55. The picture that emerges in relation to the Tilkayat may be summed up, as follows:

(1) That the Tilkayat is the spiritual head of the Sampradaya and is also the spiritual head of the temple of Shrinathji. He alone is entitled to perform seva and the other religious functions of the temple;

(2) That the Tilkayat had also the secular function of collecting the income of the endowments of Shrinathji and offerings made to the deity but this income was always kept separate for the purpose of 'seva' and was never and could never be used by the Tilkayat for his person;

(3) That the State had the absolute right to supervise that the property dedicated to the shrine was used for the purposes of the shrine.

56. Now a stage has arrived when we may examine how far the rights of the Tilkayat and of the Vaishnavas are affected by the provisions of the Act and how far such provisions go contrary to the Fundamental Rights enjoyed by them.

57. Obviously, Sections 3 and 4 are the key sections in the Act. By first part of Section 3, the ownership of the temple and all its endowments including all offerings vest in the deity of Shri Shrinathji. The definition of 'temple' in Section 2 (viii) has been widened by including in it the temple of Shri Navnit Priyaji and Shri Madan Mohan Lalji. We have already held that the temple of Shri Navnit Priyaji and Shri Madan Mohanlalji is the private property of the Tilkayat and the offerings, if any, made to these deities must naturally go to the Tilkayat and be his personal property. So far as the Temple of Shri Navnit Priyaji and Shri Madan Mohanlalji is concerned, there is an obvious Infringement of the right of ownership of the Tilkayat of this temple and the offerings made to these idols and this cannot' be sustained in view of Article 19(1)(f) of the Constitution which guarantees to all citizens the right to acquire, hold and dispose of property.

We, therefore, hold that the Temple of Navnit Priyaji and Shri Madan Mohan Lalji cannot be included in the definition of the temple given in Section 2 (viii) of the Act. This provision is, however, severable and we therefore order that the words 'and includes the temple of Shri Navnitpriyaji arid Shri Madan Mohanlalji' in the definition of 'temple' in Section 2 (viii) of the Act be declared ultra vires. So far as the temple of Shri Shrinathji and offerings made to Shri Shrinathji are concerned, our finding is that they always vested in the deity of Shri Shrinathji. First part of Section 3 merely recognises and ordains this to be the position. It would have been better had it been worded in a declaratory form as the firman of 1934 issued by the Maharana was but in spite of the defective wording it cannot be said that there has been any infringement of the right of the Tilkayat.

58. It is argued on behalf of the Tilkayat that the words 'all offerings' are comprehensive enough to cover the offerings made even to the Tilkayat' personally but there is no room for taking this view as in the definition of the 'Endowment' in Section 2 (ii) any property belonging to the Tilkayat personally has been excluded. Learned Solicitor General has also frankly conceded this.

59. By second part of Section 3 the Board constituted under the Act is entitled to the possession of the temple and all its endowments. Section 4 (1) vests the administration in the Board. Administration of the temple and its endowments conveys the sense of administering the secular affairs of the temple and is properties. The word 'administer' has been used in Article 26 (d) in this sense and it is in this sense that we interpret this word when it is used in Section 4 (1) of the Act.

60. The argument of the petitioners is that even when the word is taken to be used in this sense, the rights of the Tilkayat and of the Sampradaya to administer the property of Shri Shrinathji are taken away. It is urged that this provision is bad as it offends Article 19(1)(f) and Article 26(d). Learned counsel for the petitioners had relied on AIR 1954 SC 282 and Ratilal Panachand Gandhi v. The State of Bombay, 1954 SCR 1055 : (AIR 1954 SC 388) in support of their contentions. In the Shirur Matt case, AIR 1954 SC 282, the provisions of the Madras Hindu Religious and Charitable Endowments Act, 1951 were challenged by the Mathadhipati of Shirur Math. Their Lordships pointed out that :

''......... in the conception of Mahantship, as in Shebaitship, both the elements of office and property, of duties and personal interest are blended together and neither can be detached from the other. The personal or beneficial interest of the Mahant in the endowments attached to an institution is manifested in his large powers of disposal and administration and his right to create derivative tenures in respect to endowed properties; and these and other rights of a similar character invest the office of the Mahant with the character of proprietary right which, though anomalous to some extent, is still a genuine legal right.'

Their Lordships further observed that:

'There is no reason why the word 'property' as used in Article 19(1)(f) of the Constitution should not be given a liberal and wide connotation and should not be extended to those well recognised types of interest which have the insignia or characteristics of proprietary right.'

In this connection, their Lordships held that Article 19(1)(f) applied equally to concrete as well as abstract rights of property. Thus there is no room for doubt that Article 19(1)(f) is applicable and can be invoked by the Tilkayat to Safeguard his rights of shebaitship in the temple. The question, however, is how far the Act invades this right of the Tilkayat and which of the provisions of the Act should be held invalid by holding that they lay down unreasonable restrictions on his rights and these restrictions are not in the interest of general public. In this connection we are referred to the following observations in the Shirur Mutt's case, AIR 1954 SC 282,

'As said above, the ingredients of both office and property, of duties and personal interest are blended together in the rights of a Mahant and the Mahant has the right to enjoy this property or beneficial interest so long as he is entitled to hold his office. To take away this beneficial interest and leave him merely to t-he discharge of his duties would be to destroy his character as a Mahant altogether'

61. At first we were disposed to draw a distinction between the rights of a Mahant and that of a Shebait generally but we consider that it would be better for us to confine our attention to the institution which is under our consideration, as it would not serve any useful purpose if we discuss the subject generally. After all it is the custom, usage, history and tradition of this temple which, define the rights of the Tilkayat in the temple. We have already pointed out that in this temple the endowments and the offerings belong to the deity and no part of the income can be spent by the shebait on his own person but he should spend the income from the endowments and the offerings on the temple and the deity. As a matter of custom and tradition he is entitled to several rights which in our view are all safeguarded by Section 22 which expressly says that 'Nothing in the Act shall affect any established usage of the temple or the rights, honours, endowments and perquisites to which any person may, by custom or otherwise, be entitled in the temple.' The beneficial rights of the Tilkayat are thus amply protected under Section 22. His right of residence, his right to receive the 'prasad' and the other customary rights are not at all affected. Needless to say that the Act does not infringe his religious rights to perform all the ceremonies in the temple and to do any other thing incidental thereto.

This being the position what is curtailed by the Act only his right to administer the property of the endowments including the offerings which is more in the nature of a duty in this particular case than a right Borrowing the language of their Lordships of the Supreme Court we may say that it does not take away his beneficial interest and leave him merely to the discharge of his duties. Rather the Act takes away part of his secular duties leaving his beneficial interest altogether intact. We may also point out that the administration of the secular affairs of this temple had always been subject to the Supervision of the Ruling power. We may further mention that right from 1934 the Tilkayat has always associated with him a committee of Vaishnavas to manage the affairs of the temple. It must also be kept in mind that this temple is one of the richest temples in India and there are a number of valuable ornaments and other articles the cost of which goes into lakhs of rupees and which are used for the seva of the temple,

It may also be noted that the Jilkayat has asserted 'time and again his right of private ownership in all these articles and in the endowments of the temple which are also of a very high order. Then happened the incident of the removal of some costly jewellery from Gehnaghar for which the State had to appoint a Commission and the finding of the Commission contains a scathing criticism of the Tilkayat. The State therefore naturally thought it proper that a scheme of the management of affairs of the temple should be taken in hand and important personalities took interest in drawing up a concrete scheme. Thereafter proceedings were taken Under Section 92 C. P. C. These also proved abortive.

In this state of affairs the Legislature thought it necessary that the secular administration of the temple must be taken out of the hands of the Tilkayat and an Act be passed providing the scheme for the management of the secular affairs of the temple. The rights of the Tilkayat are not infringed so far as spiritual aspect of the matter is concerned. They are not infringed so far as his beneficial interest in the properties is concerned. The right is only infringed, if at all, so far as the administration of the secular affairs of the temple is concerned. What could have been achieved by proceedings under Section 92 C. P. C. has been achieved by the Legislature by enacting the Act. In Shirur Matt's case, AIR 1954 SC 282 Section 58 of the Madras Hindu Religious Endowments Act was held to be valid.

Under that section the Deputy Commissioner appointed under that Act has the power to frame schemes. The scheme settled by him could provide for removing any existing trustee whether hereditary or non-hereditary and appointing a new trustee or trustees in the place of or in addition to any existing trustee or trustees and could also define the powers and duties of the trustee or trustees. Under Section 61 of that Act, any person aggrieved by any order passed by the Deputy commissioner under that section is appealable to the Commissioner. There is a further right of suit under Section 62 in a Court of law, the Court being competent to modify or cancel the order of the Commissioner, There is a further right of appeal to the High Court. Their Lordships of the Supreme Court while considering these provisions observed as follows :-

'We find nothing wrong in Section 58 of the Act which relates to the framing of the scheme by the Deputy Commissioner. It is true that it is a Government officer and not the Court who is given the power to settle the scheme, but we think that ample safeguards have been provided in the Act to rectify any error or unjust decision made by the Deputy Commissioner. Section 61 provides for an appeal to the Commissioner against the order of the Deputy Commissioner and there is a right of suit given to a party who is aggrieved by the order of the Commissioner with a further right of appeal to the High Court.'

In the case before us also the power of review by a Judicial Court is given under Section 31. Any person having interest, that person being defined in Section 2 (iv) as a person who is entitled to attend at the performance of worship or service in the temple including the Board and the Chief Executive 'officer, could institute a suit in the Court of the District Judge to obtain a decree for removing any member of the Board and directing the appointment of a new member of the Board and further for declaring what portion of an endowment or of the interest therein shall be allocated to any particular subject, in AIR 1959 SC 942, the provisions of the Bihar Hindu Religious Trusts Act were under consideration and it was observed by their Lordships of the Supreme Court that-

'...... with regard to the settling of a schema under Section 32 there is a safeguard under Sub-section (3) thereof, which says that the trustee or any person interested in the trust may within three months of the publication of the scheme make an application to the District Judge for varying, modifying of setting aside the scheme.'

and this safeguard was considered to make the restrictions placed under that Act on the shebaitship as reasonable. It cannot be said in this case that there, is no right to approach a judicial tribunal as was the case in Sri Jagannath Ramanuj Das v. State of Orissa, AIR 1954 SC 400 where it was observed that-

'The settling of a scheme under Sections 38 and 39 in regard to a religious institution by an executive officer without the intervention of any judicial tribunal amounts to an unreasonable restriction upon the right of property of the superior of the religious institution which is blended with his office......'

62. We are, therefore, of the opinion that there is no infringement of the right of the Tilkayat in the property. We may point out that the Tilkayat was asserting his ownership right in respect of the property of Shri Shrinathji and thus it was thought necessary that restrictions must be placed on his handling trust property otherwise there was a manifest danger of his appropriating the property of Shri Shrinathji to himself. This the Legislature has done by appointing a committee in which the Tilkayat himself, if he so like, can be member. This restriction in administer the property of Shri Shrinathji without touching beneficial interest in the property is a reasonable restriction for a. public purpose and we must uphold this restriction in the larger interest of the public.

63. On behalf of the Sampradaya, one argument is that the acharya or the Tilkayat alone had the right to hold the property of Shri Shrinathji and that the right of acharya to bold the property is curtailed, thus affecting the right of the Sampradaya. At one place it has been mentioned that the acharya had the right to hold it as an owner. This argument is nothing but the repetition of the argument addressed on behalf of the Tilkayat in another form. For the very same reasons which we have advanced above while discussing this plea as put forth by the Tilkayat, we would hold that the rights of Vaishnavas have also not been infringed.

64. The petitioners also contend that Article 31 is infringed. There is no substance fn this contention. As held by us all the property belonged to Shri Shrinathji and Shri Shrinathji has not been deprived of the property. Rather it has been mentioned to clear any ambiguity that the property vested in Shri Shrinathji. No one has been deprived of the property, nor has the property been taken possession of and acquired for public purpose by the State. It is contended that the Tilkayat is deprived of the property, that is, his right to administer the properties of the Temple of Shri I Shrinathji but there is no substantial deprivation of the property and even if it is considered that there is deprivation, it is by authority of law.

65. Now we lake into consideration Articles 25 and 26. Article 25 grants right to freedom of religion and taking it that free exercise of religion also includes outward manifestation of religious beliefs and religious practices and performance of acts in pursuance of these religious beliefs, we do not find anything in the Act which affects this right of the petitioners. Section 16 of the Act casts a duty on the Board to arrange for the conduct of the daily worship and ceremonies and festivals in the temple according to the customs and usages of the Pushti Margiya Vallabhi Sampradaya. Section 22 says that established usage of the temple shall not be affected. We are, therefore, of the opinion that the Act cannot be challenged on the ground that Article 25 is infringed in any mariner.

66. The main argument, however, of the petitioners is based on Article 26. On behalf of the Tilkayat, the argument is that he as the head of the Sampradaya is not allowed to manage its affairs in matters of religion and the temple Board has been installed over and above him. On behalf of the Vaishnavas the argument is that the Sampradaya or the denomination in this casa has several essential components of which the Vaishnavas, the acharya, the idol of Shri Shrinathji and the members of the Vallabhi Kul are the most important. The rights of all these components are affected in managing affairs in the matter of religion. We are definitely of the opinion that the Act does not touch the management of the affairs in matters of religion.

Learned counsel for the petitioners have pointedly referred to Section 16 wherein a duty has been cast on the Board to manage the properties and affairs of the temple. It is urged that the affairs of the temple may include religious practices of the temple. It is pointed out that the use of the word 'affairs' in Section 16 is bound to create this apprehension as this very word is used in Article 26(b). In order to leave no room for ambiguity on this point, we think it proper that the provision in this section which relates to the affairs of the temple should be declared ultra vires. This again is a severable-portion and can be easily severed without affecting the whole piece of legislation. It is also urged that a duty has been cast on the Board to arrange for the conduct of daily worship and ceremonies and festivals but we see no harm in it for it is for the secular body to make necessary arrangement by providing samagri and funds for the same and these ceremonies are to be performed according to the customs and usages of the Sampradaya and not contrary to it.

We do not find that there is any cause of complaint in this provision in Section 16 of the Act. Objection is taken to the words 'Seva as otherwise expressly provided in or under this Act,' in Section 22 and it is urged that these words make nugatory the guarantee contained in that section in the matter of saying of established usages and customs. We do not find in the other provisions of the Act anything doing away with or affecting the established usages and customs in the matter of religion and thus these words are harmless. Then it is urged that the denomination's right to own movable and immovable property is taken away. We have already mentioned that the endowments and the offerings all belong to Shri Shrinathji. Under the Hindu Law, the deity is a juristic person, as has been held in a number of cases by their Lordships of the Supreme Court'. But it is only in the ideal sense of the terms that the idol is a juristic person. Mukherjea in his learned Treatise of Hindu Law of Religious and Charitable: Trust (p. 45) has observed, as follows:-

'You should remember however that the juridical person in the idol is not the material image, and it is an exploded theory that the image itself develops into a legal person as soon as it is consecrated and vivified by the Pran Pratishtha ceremony, it is not also correct that the Supreme Being of which the idol is a symbol is the recipient and owner of the dedicated property. The idol as representing and embodying the spiritual purpose of the donor is the juristic person recognised by law and in this juristic person the dedicated property vests.''

Thus the right of the denomination to own the property is in no way affected if it is held that the property belongs to Shri Shrinathji. It is, however, vehemently contended that the right of the denomination to administer the property is altogether taken away and the following observations of their Lordships of the Supreme Court in AIR 1954 SC 388, have been relied on in this connection:-

''The language of the two Clauses (b) and (d) of Article 26 would at once bring out the difference between the two. In regard to affairs in matters of religious, the right of management given to a religious body is a guaranteed Fundamental Right which no legislation can take away. On the other hand, as regards administration of property which a religious denomination is entitled to own and acquire, it has undoubtedly the right to administer such property but only in accordance with law. This means that the State can regulate the administration of trust properties by means of laws validly enacted; but here again it should be remembered that under Article 26(d), it is the religious denomination itself which has been given the right to administer its property in accordance with any law which the State may validly impose. A law, which takes away the right of administration altogether from the religious denomination and vests it in any other or secular authority, would amount to violation of the right which is guaranteed by Article 26(d) of the Constitution.'

We may emphasise that their Lordships of the Supreme Court have advisedly used the word 'altogether' while saying that the law should not take away the right of administration altogether from the religious denomination. It must be conceded that a law may provide that a particular trustee or trustees be removed on account of mismanagement by them of the trust property or for some other justifiable reason and another set of trustees be appointed. Under Section 92 of the Civil Procedure Code this can be done by the order of the Court. Article 26(d) does not take away the power of the Court to remove the trustees in a suit filed under Section 92 Civil Procedure Code in the case before us the attempt of the State to remove the Tilkayat on account of mis-management proved abortive in the Court and the Legislature stepped in.

It cannot be said that Article 26(d) is in any way affected if the administration is kept in the denomination itself though the old trustees are removed. When we examine the provisions of the Act, we find that the temple Board is to consist of a President, the Commissioner of Udaipur Division and nine other members. Except for the Commissioner, all the other members must profess Hindu religion and belong to the Pushti Margiya Vallabhi Sampradaya as provided in Section 5 (2) (g). Under Section 5 (5), the members of the Board are to be appointed by the State so as to secure representation of the Pushti Margiya Vaishnavas from all Over India. Thus it cannot be said that the administration of the secular affairs of the Temple of Shrinathji is being taken away from the denomination.

Exception is taken to the provision that the Commissioner of Udaipur Division may be a non-Hindu and yet he is to remain a member of the Temple Board. It would have been better if the Commissioner of Udaipur Division was not made an ex-officio member of the Board. However, in view of the overwhelming majority of the Vaishnavas, by his being a member it cannot be said that the administration is being taken away altogether from the denomination Criticism is also made that the Goswami who occupies such an exalted position in the eyes of the followers is made merely a member and that too only if he is otherwise not disqualified to be a member.

It is also urged that the State Government is given the power to make rules under Section 30 (2) (a) providing the qualifications for holding the office of and the allowance payable to the Goswami. We have decided to strike out Section 30 (2) (a) for reasons which we shall discuss presently. We may, however, mention that we would have felt happy and satisfied if the Goswami who occupies such an exalted and venerable position in the eyes of his followers should have been made the President of the Board. We may mention that the learned Solicitor General also shared our feelings and undertook to advise the Government to set matter right. But all the same the legality of Section 5 is in no wav affected by the Goswami not being made the President.

67. At this stage we may point out that there are some provisions in the Act which cannot be allowed to stand. For example, Section 28 empowers the Board to utilize the surplus funds of the temple for purposes other than of the temple. Without entering into an elaborate discussion on the point, we may point out that such provision has been held to be invalid by their Lordships of the Supreme Court in AIR 1954 SC 388. We, therefore, strike out Section 28 (2). The State Government is also given power under Section 36 to remove difficulties which may arise in giving effect to any of the provisions of the Act. It is contended that this power is too sweeping and difficulties of all sorts may creep in and the State Government may pass any order even though it may affect the affairs of religion. We find that there is some force in this contention and we think it proper that Section 36 be struck off.

Section 37 is also challenged that it will abridge the right of a person having interest to institute a suit against the State Government for anything done or purported to be done under the provisions of this Act. Learned Solicitor General has argued that this section is meant as a protection to the State Government against any proceedings being taken against it. This section is too widely worded and is capable of being utilised on a defence in a suit under Section 31 and for this reason must be struck off. Objection was also taken by the petitioners with regard to Section 31.

In our opinion, this section makes a salutary provision for judicial review of the activities of the trustees and their removal if there is mis-management This is necessary especially when Sections 92 and 93 Civil procedure Code are declared by Section 31(2) as not applicable to any suit claiming any relief in respect of the administration of the temple. Exception was also taken to Section 21 which gives full power to the Board for appointment, suspension, removal, dismissal or reduction in rank all officers and the servants of the Board. It is urged that even persons' who are performing such religious functions in the temple as preparation of 'prasad' and other articles for seva will also come under the control of the Board. We understand that certain officers and other persons who take part in 'seva' and the preparation of 'prasad' are nominees of the Tilkayat. If this is so, they are essentially persons employed by the Tilkayat for the performance of religious ceremonies and they cannot be designated to be the officers and servants of the Board.

Section 21 applies only to officers and servants of the Board and not to the persons employed by the Tilkayat in the performance of 'seva'. We do not think that Section 21 should be struck off. Exception is also taken to Section 35 by which the State Government is empowered to appoint one or more persons irrespective of their religion to discharge all or any of the duties of the, Board pending the constitution of the Board. In our opinion this is merely a transitional provision to be utilized by the State as a temporary measure and it does not in any way affect the Fundamental Rights of the petitioners.

68. Another provision of the Constitution which remains to be examined is Article 14. Here the, argument of the petitioners is that there is no reason for singling out this temple for making a law for the administration of its secular affairs while there are other Hindu temples in Rajasthan having the same chrematistics. Without elaboration, we may point out that the temple of Shri Shrinathji is the foremost temple in Rajasthan from the point of vastness of endowments and offerings and also from the point of its present wealth in the form of ornaments and other valuable articles. It is highly venerated by all the Hindus all over India and espicially by the followers of the Pushtiya Margiya Vallabhi Sampradaya who are scattered all over India.

Then there are serious allegations against the Tilkayat with regard to the management of the affairs of the temple and for removal of the Ornaments under circumstances which were not free from suspicion causing a great uproar amongst the members of the Sampradaya and the other Hindus leading to the appointment of an Enquiry Commission which has cast serious aspersions on the position of the Tilkayat The danger with which the entrustment of the jewellery and the other ornaments and the collection of income from endowments and offerings is always attended when the Tilkayat claims his private ownership over these things makes it all the more necessary that he alone should not have the right to manage the secular affairs of the temple.

The failure of the attempts of the State to settle a scheme through a Court of law and other similar circumstances made it incumbent for the Legislature to make a law relating to the better administration of the temple of Shri Shrinathji at Nathdwara. The objects and reasons for enacting the Act also bear out this position. Under these circumstances, we do not think that Article 14 is offended in any way. Reference in this connection may be made to the case of Charanjit Lal Chowdhury v. Union of India, AIR 1951 SC 41 and Mahant Jagannath Ramanuja Das v. B.K. Patra, AIR 1959 Orissa 117.

69. We may, however, mention that the Legislature has entrusted the State Government with power to make rules with reference to disqualifications for holding the office of and the allowance payable to the Goswami. It has been delegated only with reference to the Goswami of this particular temple. This provision is discriminatory and the learned Solicitor General concedes that it should be struck off we order accordingly.

70. We are of the opinion that the following provisions of the Act should be declared Ultra vires and invalid for reasons mentioned above;-

(1) In the definition of 'temple' in Section 2 (viii), the words 'and includes the temple of Shri Navnit Priyaji and Shri Madan Mohanlalji' are ultra vires:

(2) In Section 16, the words 'and affairs of the temple' are ultra vires;

(3) In Section 28, Sub-clauses (2) and (3) are ultra vires;

(4) In Section 30, Sub-clause (2) (a) is ultra vires;

(5) Sections 36 and 37 are ultra vires.

The other provisions of the Act are intra vires and do not offend any of the Fundamental Rights of the petitioners.

71. As a result of the aforesaid discussion,--

Writ Petition No. 421 of 1960--Goswami Ghanshiamlalji v. The State of Rajasthan and 12 Ors. is dismissed with costs;

Writ Petition No. 90 of 1959--Tilkayat Govindlalji v. State andWrit Petition No. 310 of 1959-Triyambak Lal and 9 Ors. v. State of Rajasthan and 6Ors. are partly allowed and the provisions referred to above are declared ultra vires and invalid. The other provisions of the Act are heldvalid. The Respondents are directed to restoreto the Tilkayat the possession of the Temple ofShri Navnitpriyaji and Shri Madan Mohanlaljitogether with all endowments relating to thesetwo idols. In these two Writ Petitions, the parties will bear their own costs.


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