TMI Blog1973 (12) TMI 93X X X X Extracts X X X X X X X X Extracts X X X X ..... gement of Jain Shasan, and has been recognized as such in official documents as well as in the firmans issued by the erstwhile State of Mewar. Notwithstanding the position it was averred that the management of the said temple has been illegally usurped by the State of Rajasthan through the Devasthan Department for some years, and that the State, of Rajasthan had applied certain provisions of the Rajasthan Public Trusts Act, 1959- hereinafter called 'the Act-to the said temple which contravened the fundamental rights of the respondents guaranteed under Arts. 25 and 26 of the Constitution of India. The respondents, therefore, prayed that the Court should refrain the State from enforcing provisions of the Act specified in the petition and declare them void being in contravention of the fundamental rights of the respondents guaranteed under Arts. 14, 19, 25, 26 and 31 of the Constitution of India. They also challenged s. 17(3) of the Act on the ground that the fee levied along with the application for registration of the public trust is a tax, and therefore beyond the competence of the State Legislature. The case of the State of Rajasthan, however, was that the temple in question w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion the question is what relief the petitioners (respondents) are entitled to. Since we have come to the conclusion that the management of the temple is with the State Government the case falls within section 52(1) ('a) or (c) of the Act which have been held valid by us. Therefore, no question of depriving the denomination of the management of the temple arises in this case. But the Act contains a provision for the transfer of the management even for those public trusts which fall under sub-section (1)(a), (b) and (c) of section 52 and the Government should therefore act accordingly and take early steps to transfer the management to a committee as envisaged by section 53 of the Act and in doing so we hope the Government while constituting the committee shall have due regard to the wishes of the denomination as was done in the past by the Maharana of Udaipur in Sambat Year 1934. In this view the High Court partly allowed the writ petition holding that the temple of Shri Rikhabdevji is a Swetamber Jain temple and is at present being managed by the State of Rajasthan and since it was being managed by the State of Rajasthan the High Court directed the State to constitute a Comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se contained in the Bombay Public Trusts Act, 1950-hereinafter called 'the Bombay Act'- which provisions regarding registration of public trusts were held to be valid by this Court in Ratilal Panachand ,Gandhi v. State of Bombay(T19541 S.C.R. 1055). The High Court, however, allowed the writ petition filed by the respondent as in its view proper safeguards were not provided in s. 53 of the Act for leaving the administration of the property in the hands of the denomination and that ss. 17(3) and 52 (1) (d) and (e) of the Act being ultra.vires the State Legislature were invalid. The rest of the provisions of the Act were held constitutional and valid. Against this judgment, both parties have ..appealed as pointed out earlier. The fifth appeal is Civil Appeal No. 1647(N) of 1967 arising out ,of a writ petition filed by one Pandit Ram Dayal against the State of Rajasthan challenging the constitutional validity of the Act and the Rules framed thereunder on the ground, inter alia, that they contravened his fundamental rights enshrined in Arts. 25 and 26 of the Constitution, as they take away, limit or abridge his right to manage the affairs of , the two temples known as Thakurj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of appeals, held the provisions of the Act to be valid except those mentioned in sub-s. (3) of s. 17 and clauses (d) and (e) of sub-s. ( 1 ) of s. 52 of the Act, which were, as already noticed, struck down as being ultra vires the State Legislature. The question whether the temples were private temples or public religious trusts does not seem, to have been urged, as on the petitioner's contention in view of the decision in Surajmal Singhvi's case the State should be directed not to take any action the Court granted the relief referred to above. This appeal is against this judgment. In the first set of appeals. three questions arise for determination1 ) whether the petitioners/respondents who claim to represent the, Swetamber Jain sect can challenge the right of the State to manage Shri Rikhabdevji temple; (2) whether the provisions of the Act in any way infringe their fundamental rights to manage their own affairs in matters of religion and to administer such property in accordance with, the law under clause (b) or (d) of Art. 26; and (3) if they have a right to manage and administer the temple whether any of tile provisions of the Act offend their fundamental rights guar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct which was not a party before the High Court had applied for being allowed to intervene in these appeals. It appears that after the respondents filed the writ petition on November 17, 1962, a notice was given by the solicitors of the interveners to the respondents on March 12, 1963, requiring them to implead the interveners in the writ petition failing which they would themselves apply to the Court for being made a party. It is, therefore, contended that since the interveners did not apply to make them a party, they cannot now be allowed to intervene. This contention is no longer available to the respondents, as the learned Chamber Judge after giving notice to the respondents allowed the petition and permitted them to intervene. Accordingly we have allowed the interveners to represent their point of view. The learned Advocate for the interveners submits that Digamber Jain sect did not get themselves impleaded even though they had intended to do so, because at that time the respondents did not pray that the management of the temple should be given to them, but had only challenged the right of the State to manage the temple and to restrain it from doing so,. As the prayer then was, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re are other documents from which it appears indisputable, even as was represented by the State and its predecessors that Shri Rikhabdevji temple is a Jain temple. Annexure 26-The Imperial Gazetteer of India, Vol. XXI (New Edition 1908 pp. 168169) describes it as The famous Jain temple sacred to Adinath or Rikhabnath. It further states that it is annually visited by thousands of pilgrims from all parts of Rajputana and Gujarat, and that it is difficult to determine the age of this building, but three inscriptions mention that it was repaired in the- fourteenth. and fifteenth centuries. There can be no doubt that it is an ancient temple, though it is not possible to say when and by whom the idols were consecrated. We, find as late as in 1958 that Annexure 30-a Calendar printed and published by the Government of Rajasthan-has a photo of Shri Rikhabdevji temple-- under which there is a caption UDAIPUR KE PAS RIKHABDEVJI KA PRASIDH JAIN MANDIR i.e. famous Jain temple of Rikhabdevji near Udiapur. Annexure 17 is a notification issued by the. Mewar Government on Chait Sukla 7 Monday 1982 corresponding to April 19, 1926 A.D. with the heading Unique Angi Utsav in Shri Dhulevnagar . In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n for purification of the temple and the reply given by the said Muni. Annexure 28 dated Kartik Sudi 10 Samvat 1979 (1922 A.D.) is a copy of the report of the Devasthan Department to Mahkama Khas, Udaipur State, stating that 'Naivedya' should not be offered to the deity Shri Rikhabdevji as neither the Committee nor the Jain Sangh nor the Acharyas of the Jain Sangh are in favour of it, and that the new practice of offering 'Naivedya for the first time is uncalled for. On this report, the Mahkama Khas ordered that the Devasthan be informed that there is no necessity of offering 'Naivedya'. Annexure 29 dated Samvat 1889 (Sak 1759) (1833 A.D.) is a copy of inscriptions engraved on the main gate in which there is a reference to the performance of the ceremony of Dhawja-Danda on the temple of Shri Rikhabdevji Maharaj. All these documents, there being no document to the contrary filed by the State of Rajasthan, clearly show that Shri Rikhabdevji temple is a Jain temple. The next question is whether the management of the temple had been taken over prior to the Constitution by the erstwhile Udaipur State under a law,: and whether that management continued to be vested ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rties and funds for the purposes specified therein. The constitution of the Devasthan Nidhi, its powers and duties have been set out in Paragraph 4 to 10 of Article 11 of the Constitution. Shree Rikhabdevji temple at Dhulve and its properties are set Out in item 32 of Schedule 1 of the List of Devasthan Temples. To this Constitution certain amendments were made by the Ruler on October 11, 1947, the main object of which was to deal with the objections to the formation of Devasthan Nidhi and allocation of its funds on other grounds also. Paragrphs 2 to 10 of Article II were replaced and it was ordered by him that all shrines, temples and other religious and charitable institutions forming part of Devasthan describe( in Schedule 1 etc. were vested in Shriji (the Ruler) to be administered by him with the assistance of an advisory body, in which representatives from different sections of worshipers at the temples were to be included; that the income of these institutions was to be used for the purposes for which the institutions have been founded; and that the surplus income after meeting those purposes was to be made available for other like or similar purposes. The Article further sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n its management was lost in the pre-Constitution period and is now vested in the State of Rajasthan. It is, however, contended that even after the Constitution, the respondents have a right to get back the management as the continued management of the temple transgresses their rights under Art. 26(b). This contention in our view is not tenable. The Constitution under which the properties and management of the temple had vested in the Ruler and thereafter in the State continued to be law by virtue of Art. 372 of the Constitution till it was repealed by the impugned Act. Since the respondents lost the right to manage and administer the temple and its. properties ,Prior to the Constitution by a valid law, they cannot now regain that right on the plea that law contravenes the right guaranteed under Art. 26(d) of the Constitution. In Durgah Committee, Ajmer v. Syed Hussain Ali(1), it was observed at p. 414 that if the right to administer the properties never vested in the denomination or had been validly surrendered by it or has otherwise been effectively and irretrievably lost to it, Art. 26 cannot be successfully invoked. To the contention that the right to manage the temple a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... #39;s property would be rendered illusory. (Tilkayat Sri Govindlalji Maharaj v. The State of Rajasthan and others) ([1954] i S.C.R. 561 at p. 621 ). Earlier in The Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swaimar of Sri Shirur MUtt([1954] S.C.R. 1005.) (to which a reference was made by Gajendragadkar J. in Tilkayat's case(1), Mukherjea, J., as he then was considered the scope of Art. 26(b), the language of which according to him undoubtedly suggests that there can be other affairs of religious denomination or a section thereof which are not matters of religion and to which the guarantee given by this clause would not apply. (After pointing out that clauses (c) and (d) of Art. 26 guaranteed to a religious denomination the right to acquire and own property and to administer such property in accordance with law, that administration of its property by a religious denomination had been placed on a different footing from the right to manage its own affairs in matters of religion, and that whereas the latter is a fundamental right which no Legislature can take away, the former can be regulated by laws which the Legislature can validly enact he o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ertained by reference not only to the impugned provisions of the Act but also to the tenets and in junctions of the Jain religion applicable to the Jain endowments. Though many of the provisions of the Act had been challenged as unconstitutional, the main attack before the High Court was confined only to sections 30, 31, 38 to 43, 52. and 53 of the Act on the ground that 'they infringed the, petitioners' rights guaranteed under Arts. 25 and 26 of the Constitution. The contention of the writ petitioners before that Court were that the administration and management of the, religious trusts was a part of the Jain religion and that contributions to the particular funds must be utilised for the purposes for which the funds existed and 'cannot be utilised for other purposes, and that according to the tenets of the Jain religion the funds of the temples or- religious institutions have to be invested and utilised for the maintenance, upkeep and worship of the idols for the purposes of different religious ceremonies, for the propagation of Jain faith and religion etc. and the State has no right to interfere with those tenets which are an integral part of their religion except on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not provide for proper safeguards of leaving the administration of the property in the hands of the denomination. Though the validity of ss. 77 and 80 of Chapter XIII was challenged in the petition, it appears this contention was not pressed at the time of the arguments before the High Court., We have already referred to the contention of the petitioners/ respondents while dealing with the first set of appeals which has also been urged in these appeals as to what constitutes the essential part of a religion and the fundamental right which a person has under Article 26 of the Constitution. We have held that what is an essential part of a religion has primarily to be ascertained with reference to the doctrines of that religion. In Ratilal Panachand Gandhi's case (supra) it was observed that : Every person has a fundamental right under our Constitution not merely to entertain such religious belief as may be approved of by his judgment or conscience but to exhibit his belief and ideas in such overt acts as are enjoined or sanctioned by his religion and further to propagate his religious views for the edification of others . and that Religious practices or performances of acts in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amount so as to be utilized later in a more effective manner on objects for which the funds are intended. Generally the purposes in the Kshetra are perennial in character. They do not fail nor do they become incapable of fulfillment. There is, therefore, no question of exhausting the object for which donations in the Jain religion are made. It is also stated that Jain tenets do not recognize any cognate purpose in the secular since of the word. The purposes looking alike are not cognate. They are different with different characteristics. In paragraph- 11 it was observed that the guiding principle in the utili- zation of funds of a particular Kshetra is the special religious merit. The person receiving the benefit of the funds is a secondary consideration. Thus, the fund for one place or for a particular group of persons can be used for another place and for other persons anywhere in the world, but for the same identical object. Paragraph-12 states that by and large Jain trusts are public trusts, the beneficial interest being vested in an uncertain and fluctuating body of persons, either the public at large or a considerable section of it answering a particular description. The trus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of these prohibited methods exceptions have been permitted. The State can, therefore, by law relating to the administration of public trusts direct the investment of properties of the trust in a specified manner and in specific investments so as to protect the corpus from being dissipated or depreciated and to assure a regular income. It was, however, contended in the High Court as well as before us that is the funds belonging to a Jain religious trusts cannot be invested for earning interest with such persons or institutions which may utilise them for causing Hinsa or for other purposes prohibited by the Jain religion, there can be no interference by the State in the exercise OF that right except on the grounds of public order, morality or health. In our view this contention has no validity, What was injuncted was that investments will not be made by the trustees themselves for the Purposes forbidden in the scriptures. From this it cannot be inferred that the Jain religion has forbidden the deposit in banks or any institution mentioned in s 30 of the Act. We, think that such an argument is far fetched. In a similar case of the Jains, this Court had in Ratilal Panachand Gandhi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r to apply, an application can be made under s. 39 to the Commissioner. Section 40 empowers the Court on an application made either under s. 39 or s. 39 to pass such order thereon as it may consider proper. Sections 41 to 43 also make similar provisions which are applicable when the working trustee disclaims or dies, is absent for six months, is declared insolvent, desires to be discharged from the trust, or refuses to act as a trustee or is not available to administer the trust. under s. 43 it is the Court which after making such inquiry as it thinks fit, appoints a new working trustee having regard to the facts enumerated therein. These provisions appear unexceptionable and do not in any way conflict with any of the tenets of the Jain religion. The Assistant Commissioner or the Commissioner has not been given any power to pass orders by themselves, except in the matter of presentation of an application to the Court, so as to invite a charge of arbitrariness or capriciousness. It is the Court which has been empowered to pass such orders as it considers fit according to the circumstances of the case, which it can only do after hearing the parties and their objections, if any, urged ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the benefit of whom the trust was founded, In accordance with the general wishes of the persons so interested so far as such wishes can be ascertained in the prescribed manner. Provided that in the case of a public trust having a hereditary trustee, such trustee, and in the case of a Math, the head thereof, shall be the Chairman of the Committee of management, if he is willing to serve as such. It may be observed from the above provisions that S. 52(1) (d) which has also been struck down by the High Court has no application in this case, because it deals with a public trust which is under the superintendence of the Court of Wards. This part of the judgment is, therefore, clearly wrong. We will now have to only consider the validity of s. 52(1)(e) which concerns a public trust of which the gross annual income is ₹ 10,000/ or more. It is alleged that Nakodaji Parasnath temple is a public trust of which the gross annual income exceeds ₹ 10,000/ and is, therefore, governed by clause (e) of sub-s. (1) of s. 52 of the Act. Whether this is so or not cannot be determined by us merely on the allegations in the petition. It is for the State Government, if it intend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch is dealt with in clause (d) of Art. 26. What we have to decide is whether the provisions of sub-s. (1) read with sub-ss. (4) and (5) of s. 53 authorise the vesting of the administration of a public religious trust in a Committee of management which does not represent the religious denomination and which is entitled to manage and administer that religious trust. The Committee of management that the State Government is empowered to constitute under sub-s. (5) of s. 53 has to be from amongst the two categories specified therein in accordance with the general wishes of the persons so interested so far as such wishes can be ascertained in the prescribed manner. The State Government has prescribed the manner of ascertaining the wishes of the persons interested in the endowment in r. 36 of the Rajasthan Public Trust Rules, 1962. This rule provides that for the purpose of ascertaining the wishes of the persons interested under sub-s. (5) of s. 53, the State Government shall direct the Assistant Commissioner to issue a public notice in such manner as he may think proper for inviting suggestions for the constitution of the Committee of management. The Assistant Commissioner, shall forward ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... management of which is being transferred to the Committee of management. In our view, the hypothesis on which the High Court has based its conclusions is not. warranted by the provisions of sub-s. (5) of S. 53 of the Act. In the first category, apart from the Committee being, constituted from amongst the trustees of public trusts representing the same religion, the Committee can also be constituted from amongst the trustees of the same persuasion. The significance of the word 'persuasion' and what it connotes does not seem to have been considered by the High Court. The word 'persuasion' is a synonym of faith, creed, denomination, religion etc. Webster's Third New International Dictionary Vol. II, p. 1688, gives the meaning of persuasion among others (a) as a system of religious or. other beliefs (the several Protestants. s. (b) a group, faction, sect, or party that adheres to a particular system of beliefs or ideas or pro- motes a particular view, theory, or cause . The same dictionary in Vol. I gives the meaning of denomination at p. 602 as a religious group of a community of believers called by the same name . In other words, in the first category al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appoint a Committee from the two categories specified in that clause, it does not mean that the Government will appoint or can appoint persons who are not constitutionally entitled to be appointed to that particular trust. If the temple is a Swetamber temple, merely because the Digambars, like Swetambers, are also Jains, it does not empower the Government to appoint them as a Chairman and members of the Committee of management. The very fact that the, Legislature has provided for the ascertainment of the general wishes of the persons interested is a positive direction to the State Government to take those wishes into consideration in the manner to be prescribed by the Rules framed under the Act. This provision furnishes, in our view, a safeguard against the appointment of the Chairman and the members of the Committee to manage the trusts, who do not subscribe or adhere to the tenets of a particular religion or denomination to which the trust belongs. No such appointment can be made which contravenes the fundamental rights guaranteed under Arts. 25 and 26 of the Constitution, and if any such appointment is made, those who have a right to challenge it can do so and have the appointme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lege which the individual receives. It is regarded as a sort of a return or consideration for services rendered and should on the face of the legislative provision be co-related to the expenses in curved by Government in rendering the services. In that case s. 76 (1) of the Madras Hindu Religious and Charitable Endowmen's Act, 1951 (Madras Act XIX of 1951) which related to the payment of annual contribution stated that it was for the purpose of properly administering the religious trusts and institutions wherever they existed. In determining whether that levy was a tax or a fee one of the material facts taken into consideration to negative the theory that it was a fee was that the money raised by levy of the contribution was not earmarked or specified for defraying the expenses that the Government bad to incur in performing the services. All the collections went to the Consolidated Fund of the State and all the expenses bad to be met not out of those collections but out of the general revenues by a proper method of appropriation as was done in case of other Government expenses. Though this was so it was nonetheless observed at p. 1044 : That in itself might not be conclusive . ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 715/- as against the income of only ₹ 3,000/- for the same year from the registration fee. This averment in the reply of the Commissioner, Devasthan Department, was not controverted by the petitioners either by a reply thereto or by any other material produced by them. In these circumstances, the mere fact that the amount was paid under r. 18 into the Consolidated Fund is by itself not sufficient to hold that the levy under s. 17(3) of the Act is tax. As the income by way of fees is far below the expenditure incurred on the Devasthan Department, the levy would be a fee. In this view, s. 17(3) cannot be held to be invalid and ultra vires the powers of State Legislature. We express no opinion on the question whether s. 17(3) can be declared to be invalid on account of Rule 18 requiring the fee to be deposited in the State Consolidated Fund, In Civil Appeal No. 1647 of 1967 the Act has been challenged on the grounds similar to these in the other appeals and no separate arguments were addressed, except those advanced by the respondents' Advocate in the other appeals. This appeal also will be decided accordingly The question whether the two temples which the State contended we ..... X X X X Extracts X X X X X X X X Extracts X X X X
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