TMI Blog1963 (1) TMI 54X X X X Extracts X X X X X X X X Extracts X X X X ..... o. 654/62), the Board and its members (in C. A. No. 655/62), respondents Nos. 3-12 (in C. A. No. 656/62) and the appellants (in C. A. Nos. 757 and 758 of 1962.) A.V. Viswanatha Sastri Balkrishna Acharya and M. V. Goswami for the appellants (in C. A. No. 654162), respondents Nos. 1-10 (in C. A No. 655 /62 and respondents Nos. 1-10 (in C. A. No. 758/62). P.K. Chakravarty, for the appellant (in C. A. No. 656/62). G.S. Pathak, B. Datta and B. P. Maheshwari, for the petitioner (in W. P. No. 74/62). C.K. Daphtary, Solicitor-General of India, G. S. Kasliwal, Advocate-General for the State of Rajasthan, M. M. Tewari, S. K. Kapur, B. R. L. Iyengar, Kan Singh, V. N. Sethi and P. D. Menon, for respondents Nos. 1 and 2 (in W.P. No. 74/62). Sarjoo Prasad, S. B. L. Sexena and K. K. Jain, for respondents Nos. 3-12 GAJENDRAGADKAR, J.-- This group of seven cross-appeals arises from three writ petitions field in the High Court of judicature for Rajasthan, in which the validity of the Nathdwara Temple Act, 1959 (No. XIII of 1959) (hereinafter called the Act) has been challenged. The principal writ petition was Writ Petition No. 90 of 1959; it was filed by the present Tilkaya ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refer any cross-appeal. Besides these seven appeals, in the present group has been included Writ Petition No. 74 of 1962 filed by the Tilkayat in this Court under Art. 32. By the said writ petition the Tilkayat has challenged the vires of the Act on some additional grounds. That is how the principal point which arises for our decision in this group is in regard to the Constitutional validity of the Act. At this stage, it is relevant to indicate broadly the contentions raised by the parties before the High Court and the conclusions of the High Court on the points in controversy. The Tilkayat contended that the idol of Shri Shrinathji in the Nathdwara Temple and all the property pertaining to it were his private properties and as such, the State Legislature was not competent to pass the Act. In the alternative, it was urged that even if the Nathdwara Temple is held to be a public temple and the Tilkayat the Mahant or Shebait in charge of it, as such Mahant or Shebait he had a beneficial interest in the office of the high priest as well as the properties of the temple and it is on that footing that the validity of the Act was challenged under Art. 19 (1) (f) of the Constitution. Incid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evidence, the High Court came to the conclusion that the temple is a public temple. It examined the several Firmans and Sanads on which reliance was placed by the Tilkayat and it thought that the said grants supported the plea of the State that the temple was not the private temple of the Tilkayat. It has, however, found that the Tilkayat is a spiritual head of the Denomination as well as the spiritual head of the temple of Shrinathji. He alone is entitled to perform 'Seva' and the other religious functions of the temple. In its opinion, the two minor idols of Navnit Priyaji and Madan Mohanlalji were the private idols of the Tilkayat and so, that part of the definition which included them within the temple of Shrinathji was struck down as invalid. In this connection, the High Court has very strongly relied on the Firman issued by the Maharana of Udaipur on December 31, 1934, and it has observed that this Firman clearly established the fact that the temple was a public temple, that the Tilkayat was no more than a Custodian, Manager and Trustee of the property belonging to the temple and that the State had the absolute right to supervise that the property dedicated to the sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... active web about the genesis of its construction at Nathdwara. Part of it may be history and part may be fiction, but the story is handed down from generation to generation of devotees and is believed by all of them to be true. This temple is visited by thousands of Hindu devotees in general and by the followers 'of the Pushtimargiya Vaishnava Sampradaya in particular. The followers of Vallabha who constitute a denomination are popularly known as such. The denomination was founded by Vallabha (1479-1531 A. D.)* He was the son of a Tailanga Brahmin named Lakshmana Bhatt. On one occasion, Lakshmana Bhatt had gone on pilgrimage to Banaras with his wife Elamagara. On the way, she gave birth to a son in 1479 A. D. That son was known as Vallabha. It is' said that God Gopala Krishna manifested himself to Vallahha on the Govardhana Hill by the name of Devadamana, also known as Shrinathji. Vallabha saw the vision in his dream and he was commanded by God Gopala Krishna to erect a shrine for Him and to propagate amongst his followers the cult of worshiping Him in order to obtain salvation (1). Vallabha then went to the hill and he found the image corresponding to the vision which he h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... parate shrines at various places which are also held by the members of the denomination in high esteem and reverence. When Aurangzeb came on the throne, the genial atmosphere of tolerance disappeared and the Hindu temples were exposed to risk and danger of Aurangzeb's intolerant and bigoted activities. Col. Todd in the first volume of his 'Annals of Rajasthan' at p. 451 says that when Aurangzeb prescribed Kanaya and rendered his shrines impure throughout Vrij, Rana Raj Singh offered the heads of one hundred thousand Rajpoots for his service, and the God was conducted by the route of Kotah and Rampoora to Mewar. An omen decided the spot of his future residence. As he journeyed to gain the capital of the Sessodias, the chariot-wheel sunk deep into the earth and defied extrication; upon which the Sookuni (augur) interpreted the pleasure of the deity that he desired to dwell there. This circumstance occurred at an inconsiderable village called Siarh, in the fife of Dailwara, one of the sixteen nobles of Mewar. Rejoiced at this decided manifestation of favour, the chief hastened to make a perpetual gift of the village and its lands which was speedily confirmed by the pat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the order passed by the Rana of Udaipur on May 8, 1876, was an act of a foreign State and did not effect his right to property in Bombay. It was observed that Girdharlalji was regarded as owner of the property, he had not lost his right as such to the said property in consequence of his deposition, and if he was merely a trustee, he had not been removed from his office by any competent Tribunal vide Nanabai v. Shriman Goswami Girdharji (12 Bom. 331.). Goswami Shri Girdharji Maharaj Shri Govindraiji Maharaj Tilkayat v. Madhowdas Premji and Goswami Shri Govardhanlalji Girdharji Maharaj (17 Bom. 600,) and Shriman Goswami Shri 108 Shri Govardhanlalji Girdharlalji v. Goswami Shri Girdharlalji Govindrajji (17 Bom, 620). So far as the Nathdwara temple and the properties situated in Mewar were concerned, the Tilkayat Gordhanlalji who had been appointed by the Rana of Udaipur continued to be in possession and management of the same. Unfortunately, in 1933, another occasion arose when the Rana of Udaipur had to take drastic action. After the death of Goverdhanlalji on September 21, 1933, his grand son Damodarlalji became the Tilkayat. His conduct. however, showed that he did not deserve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he worship or benefit of the idol belonged to the said idol. It also provided that the Tilkayat Maharaj for the time being in actual charge at Nathdwara is entitled to hold, use and manage the Properties of the said idol according to the usage of the Vallabhi Sampradaya. The said award and the decree which followed in terms of it were naturally confined to the properties in the territories which then comprised British India and, did not include any properties in the territories which then formed part of princely India or Native State as they were then known. Meanwhile, after Damodarlalji was deposed and his son Govindlalji was appointed the Tilkayat, the Rana of Udaipur issued a Firman on December 31, 1934. By this Firman it was laid down that the 'Shrine of Shrinathji had always been and was a religious institution for the followers of the Vaishnavas Sampradayak and all the properties offered at the shrine were the property of the-shrine and that the Tilkayat Maharaj was merely a Custodian, Manager and Trustee of the said property for the shrine. It also provided that the Udaipur Darbar had absolute right to supervise that the property dedicated to the shrine is used for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and this proposal received the approval of the Tilkayat. In order to give effect to this proportion was agreed between the parties that a suit under, s. 92, Code of Civil Procedure, should be filed in the Court of the District judge at Udaipur. The paste then thought that the suit would be non-contentious and would speedily end in a scheme of maegans ment being drafted with the consent of parties Accordingly, suit No. 1 of 1956 was filed in the District Court at Udaipur, and in accordance with the agreement which he had reached with the authorities, the Tilkayat filed a non contentious written statement. However, before the suit could make any appreciable progress, Ghanshyamlalji and Baba Rajvi, the son of Tilkayat, applied to be made parties to the suit and it became clear that these added parties desired to raise contentions in the suit and that entirely changing the complexion of the litigation. It was then obvious that the litigation would be a long-drawn out affair and the object of evolving a satisfactory scheme for the management of the affairs of the temple would not be achieved until the litigation went through a protracted course. It was under these circumstances that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lkayat, it is necessary very briefly to enquire whether there is anything in the tenets or the religious practices of this denomination which justifies the claim made by the learned Attorney-General. What then is the nature of the philosophical doctrines of Vallabh? According to Dr. Radha Krishnan (1), Vallabh accepts the authority not only of the Upanishads, the Bhagvad gita and the Brahma Sutras, but also of the Bhagavata Purana. In his works, Anubhasya, Siddhantarahasya and Bhagavata Tikasubodhini, he offers a theistic interpretation of the Vedanta, which differs from those or Sankara and Ramanuja. His view is called Suddhadvaita, or (1) Indian Philosophy by Dr. Radha Krishnan, pp. 756 and 758. pure non-dualism, and declares that the whole world is real and is subtly Brahman. The individual souls and the inanimate world are in essence one with Brahman. Vallabha looks upon God as the whole and the individual as part. The analogy of sparks of fire is employed by Him to great purpose. The Jiva bound by maya cannot attain salvation except through the grace of God, which is called Pushti. Bhakti is the chief means of salvation, though Jnana is also useful. As regards the fruit o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Lord and offering morning refreshments; waving of lamps; bathing; dressing; food; leading the cows out for grazing; the mid- day meal; waving of lamps again; the evening service; the evening meal and going to bed. These rituals performed with meticulous care from day to day constitute the prescribed items of Siva which the devotees attend every day in the Vallabh temple. In order to be able to offer Bhakti in a p way, the members of this denomination are initiated into this cult by the performance of two rites; one is Sharana Mantropadesh and the other is Atma Nivedan. The first gives the devotee the status of a Vaishnava and the second confers upon him the status of an Adhikari entitled to pursue the path of service of devotion. At the performance of the first rite, the mantra which is repeated in the ears of the devotee is Shree Krishna Sharanam Mamah and on the occasion a tulsi Kanthi' is put around the neck of the devotee. At the second initiation, a religious formula is repeated, the effect of which is that the devotee treats himself and all his properties as belonging to Lord Krishna. We have already, referred to the original image which Vallabha installed in the tem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lis and though they are grand and majestic inside, the outside appearance s always attempted to resemble that of a privates. This feature can, however, be easily explained if we recall the fact that during the time when vithalnathji with his great missionary zeal spread he doctrine of Vallabha, Hindu temples were constantly faced with the danger of attack from Aurangzeb. In fact, the traditional story about the foundation of the Srinathji temple at Nathdwara itself eloquently brings out the fact that owing to the religious persecution practiced during Aurangzeb's time, Srinathji himself bad to give up his abode near Mathura and to start on a journey in search of a place for residence in more hospitable and congenial surroundings. Faced with this immediate problem Vithalnathji may have started building the temples in the form of Havelis so that from outside nobody should know that there is a temple within. It may also be true historically that when the first temple was built in the life time of Vallabha it may have been a modest house where the original image was installed and during the early years just a few devotees may have been visiting the said temple. Appropriately eno ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s and ceremonies arranged in the temple ? Are their offerings accepted as a matter of right ? The participation of the members of the public in the Darshan in the temple and in the daily Acts of worship or in the celebrations of festival occasions may be a very important factor to consider in determining the character of the temple. In the present proceedings, no such evidence has been led and it is. therefore, not shown that admission to the temple is controlled or regulated or that there are other factors present which indicate clearly that the temple is a private temple. Therefore, the case for the Tilkayat cannot rest on any such considerations which, if proved., may have helped to establish either that the temple is private or is public. There are, however, certain ancient documents which show that the temple cannot be a private temple. We have already referred to the Firmans issued by Akbar and Shahjahan. These Firmans are strictly not material for the purpose of the present dispute because they have no relation to the temple at Nathdwara. However, as a matter of history, it may be worthwhile to recall that the Firman issued by Akbar on May 31, 1593 A. D. shows that Vithalraj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... land occupied for the purpose of the temple was given over for that purpose and the actual occupants and cultivators were told that they would get the land back when Shrinathji goes back to Brij. We have already cited the extract from Col. Todd's 'Annals of Rajasthan' in which he has Graphically described the traditional belief in regard to the choice of Siarh for the abode of Shrinathji. That extract shows that as soon the chariot wheel of Shrinathji stopped and would not move, the chief hastened to make a perpetual gift of the village and its lands which was speedily confirmed by the patent of the Rana. Nathji was removed from his car and in due course of time a temple was erected for his reception. That is how the hamlet of Siarh became the town of Nathdwara. This assurance given by the chief was confirmed by the two grants to which we have just referred. Thus, there can be no doubt that the original grants were for the purpose of the temple. A deed of dedication executed by Maharana Shri Bhim Singhji in favour of Gusainji in Sambat 1865 also shows that the lands therein described had been dedicated to Shriji and Shri Gusainji and that all the income relating to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rivate temple. From outside it no doubt has the appearance of a Haveli, but it is common ground that the majestic structure inside is consistent with the dignity of the idol 'and with the character of the temple as a public temple. We have referred to these aspects of the matter because they were elaborately argued before us by the learned Attorney-General. But as we will presently point out, the Firman issued by the Udaipur Darbar in 1934 really concludes the controversy between the parties on these points and it shows that the Shrinathji Temple at Nathdwara is undoubtedly a public temple. It is therefore, now necessary to consider this Firman. This Firman consists of four clauses. The first clause declares that according to the law of Udaipur, the shrine. of Shrinathji has always been and is a religious institution for the followers of the Vaishnava Sampradaya and that all the property 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ven absolute monarch was not competent to make a law affecting religious endowments and their administration. He suggested that he was in a position to rely upon. the opinions of scholars which tended to show that a Hindu monarch was competent only to administer the law as prescribed by Smritis and the oath which he was expected to take at the time of his coronation enjoined him to obey the Smritis and to see that their injunctions were obeyed by his subject. We do not allow the learned Attorney General to develop this point because we hold that this novel point cannot be accepted in view of the well-recognised principles of jurisprudence. An absolute monarch was the fountain-head of all legislative, executive and judicial powers and it is of the very essence of sovereignty which vested in him that he could supervise and control the administration of the public charity. In our opinion, there is no doubt whatever that this universal principle in regard to the scope of the powers inherently vesting in sovereignty applies as much to Hindu monarchs as to any other absolute monarch. Therefore, it must be held that the Firman issued by the Maharana of Udaipur in 1934 is a law by which th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i and continuing in the office of the Tilkayat are wholly dependent on the discretion of the Darbar. The Right of the Darbar to depose the Tilkayat and to recognise a successor or not is described by this clause as absolute. The third and the fourth clauses are consistent with the first two clauses. Reading this Firman as a whole, there can be no doubt that under the law of Udaipur, this temple was held to be a public temple and the Tilkayat was held to be no more than the Custodian, Manager and Trustee of the property belonging to the said temple. It is on the basis of this law that the vires of the Act must inevitably be determined. The learned Attorney General has invited our attention to some decisions in which the temples of this cult were held to be private temples. 'We would now very briefly refer to these decisions before we proceed to deal with the other points raised in the present appeals. In Gossamee Sree Greedhareejee v Rumanlolljee Gossantee, (40 1. A. 97.), the Privy Council held that when the worship of a Thakoor has been founded under Hindu law, the shebaitship is held to be vested in the heirs of the founder, in default of evidence that he has disposed of it o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the shebaitship of the temple of Vallabha sect, and in support of the said right the sons of the daughter relied upon the earlier decision of the Privy Council in the-case of Gossammee Sree Girdharejee (16 I.A. 137.) In rejecting the plea made by the said sons, the Privy Council observed that the principle laid down in the earlier case cannot be applied so as to vest the shebaitship in persons who, according to the usages of the worship, cannot perform the rites of the office. In that case it was found that the sons of the daughter who were Bhats and who did not belong to the Gosain Kul were incompetent to perform the 'diurnal rites for the deity worshipped by the sect and so, the decision of the High Court which had rejected their claim was confirmed. In this case again neither party was interested in pleading the public character of the temple and so, that point did not arise for decision. The same comment falls to be made about the decision of the Allahabad High Court in Gopal Lalji v. Girdhar Lalji (A.I.R 1915 All. 44.). It is true that in that case the plaintiff challenged a gift deed executed by one Goswami of the Vallabha sect in favour of another Goswami and in doi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wherever situate and all income derived from any source whatsoever and standing in any name, dedicated to the temple or placed for any religious, pious or charitable purposes under the Board or purchased from out of the temple funds and all offerings and bhents made for and received on behalf of the temple but shall not include any property belonging to the Goswami personally although the same or income thereof might. hitherto have been utilised in part or in whole in the service of the temple. Section 2 (viii) defines temple as meaning the temple of Shri Shrinathji at Nathdwara in Udaipur District and includes the temple of Shri Navnitpriyaji 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 the Act. Sections 3 and 4 are important provisions of the Act. Section 3 provides that 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 the Act shall be entitled to their possession. In other words, all property of the temple vests in the temple ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e other members of the Board should not only be Hindus, but should also belong to the denomination, for it is in that manner alone that their representation can be adequately secured. Section 6 gives liberty to the President or any member to resign his office by giving a notice in writing to the State Government. Under s. 7 (1), the State Government is given the power to remove from office the President or any member, other than the ex- officio member, including the Goswami on any of the three grounds specified in clauses (a), (b) (c) ; ground (a) refers to the disqualification specified by s. 5 (2), ground (b) refers to the absence of the member for more than four consecutive meetings of the Board without obtaining leave for absence ; and ground (c) refers to the case where a member is guilty of corruption or misconduct in the administration of the endowment Section 7 (2) provides a safeguard to the person against whom action is intended to be taken under sub-cl. (1) and it lays down that no person shall be removed unless he has been given a reasonable opportunity of showing cause against his removal. It would be noticed that by operation of s. 7 (1), the Goswami is liable to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isapplication of any money or property belonging to the temple, provided such loss, waste or misapplication is a direct consequence. of his wailful act or omission, and it allows a suit to be instituted to obtain such compensation. Under s. 13, members of the Board as well as the President are entitled to draw travelling and halting allowances as may be prescribed. Section 14 deals with the office and meetings of the Board and s. 15 provides that any defect or vacancy in the constitution of the Board will not invalidate the acts of the Board. Section 16 is important. It lays down that 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 usage of the Pushti-Margiya Vallabhi Sampradaya. Section 17 (1) provides that the jewelleries or other valuable moveable property of a non-perishable character the administration of which vests in the Board shall not be transferred without the previous sanction of the Board, and if the value of the property to be transferred exceeds ten thousand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uires that the order of the Board under sub-s. (2) shall be published in the prescribed manner. Section 29 deals with the duties of trustee of specific endowment; s. 30(1) confers the power on the State Government to make rules for carrying out all or any of the purposes of the Act ; s. 30(2) provides that in particular and without prejudice to the Generality of the foregoing power, the State Government shall have power to make rules with reference to matters covered by clauses (a) to (i). Under sub-section (3) it is provided that the rules made under this Act shall be placed before the House of the State Legislature at the session thereof next following. Section 31 provides that the State Government or any person interested may institute a suit in the Court of District judge to obtain a decree for the reliefs mentioned in clauses (a) to (e). These reliefs correspond to the relief which may be obtained in a suit under s. 92 Code of Civil Procedure. In consequence, s. 31(2) provides that ss. 92 and 93 and 0. I r. 8, of the First Schedule to the Code of Civil Procedure shall have no application to any suit claiming any relief in respect of the administration or management of the tem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rd to the background of the administration of its affairs in the past, the legislature thought that it was necessary to make a more satisfactory provision which will lead to its better administration and governance. In doing so, the legislature has taken precaution to safeguard the performance of religious rites and the observance of religious practices in accordance with traditional usage and custom. When the validity of any legislative enactment is impugned on the ground that its material provisions contravene one. or the other of the fundamental rights guaranteed by the Constitution, it is necessary to bear in mind the primary rule of construction. If the impugned provisions of the Statute are reasonably capable of a construction which does not involve the infringement of any fundamental rights, that construction must be preferred though it may reasonably be possible to adopt another construction which leads to the infringement of the said fundamental rights. If the impugned provisions are reasonably not capable of the construction which would save its validity, that of course is another matter; but if two constructions are reasonably possible, then it is necessary that the Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... customs and usages of the Pushtimargiya Vallabhi Sampradaya. It would be noticed that two different categories of duties are imposed upon the Board.The first duty is to manage the properties and secular affairs of the temple.This naturally is a very important part of the assignment of the Board. Having thus provided for the discharge of its important function in the matter of administering the properties of the temple, the section adds that it Will be the duty of the Board to arrange for the religious worship, ceremonies and festivals in the temple but this has to be done according to the customs and usages of the denomination. It is thus clear that the duties of the Board in so far as they relate to the worship and other religious ceremonies and festivals, it is the traditional customs and usage which' is of Paramount importance. In other words, the legislature has taken precaution to safeguard the clue observance of the religious ceremonies, worship and festivals according to the custom and usage of the denomination. Section 22 makes this position still clearer; it provides that save as otherwise expressly provided in or under the Act, nothing herein contained shall affect an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted, the former will be carried out according to the traditional usage and custom and the latter according to the provisions of the Act. On behalf of the Tilkayat, the main contention which has been raised before us by the learned Attorney-General is that his right of property has been infringed under Art. 19 (1) (f) and Mr. Pathak has added that the relevant provisions infringed the Tilkayat's rights under Art. 31 (2) of the Constitution. As we have already indicated, this latter contention is raised in the writ petition filed by the Tilkayat in this Court. Now in deciding the validity of these contentions it is necessary to revert to the Firman issued by the Rana of Udaipur in 1934, because the rights of the Tilkayat have to be judged in the light of the said Firman. We have already noticed that the said Firman clearly declares that the Tilkayat is merely a Custodian, Manager and Trustee of the property of the shrine Shrinathji and that the Udaipur Darbar has the absolute right to supervise that the property dedicated to the shrine is used for legitimate purpose of the shrine. Having regard to the unam biguous and emphatic words used in clause 1 of the Firman and having re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Ameer Ali delivering the judgment of the Board observed in Vidya Varuthi Thirtha v. Balusami Ayyar ((1921) L, R. 48 I.A. 302, 311.), called by whatever name he is only the manager and custodian of the idol or the institution. When the gift is directly to an idol or a temple, the scisin to complete the gift is necessarily effected by human agency. In almost every case the Mahant is given the right to a part of the usufruct, the mode of enjoyment and the amount of the usufruct depending again on usage and custom. In no case was the property conveyed to or vested in him, nor is he a 'trustee in the English sense of the term, though in view of the obligations and duties resting on him, he is answerable as a trustee in the general sense for maladministration. This position has been accepted by this Court in The Commissioner, Hindu Religious Endowements, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur-Mutt. ([1954] S.C.R. 1005.). Speaking for the unanimous Court in that case, Mukherjea J., observed, Thus 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the properties was subject to the strict and absolute supervision of the Darbar, but it is suggested that even so, it is a right which must be regarded as a right to property. In dealing with this argument, it is necessary to bear in mind that the extent of the rights available to the Tilkayat under clause I of the Firman cannot be said to have become larger by virtue of the fact that the Constitution came into force in 1950. It is only the rights to property which subsisted in the Tilkayat under the said Firman that would be protected by, the Constitution, provided of course, they are rights which attract the provisions of Art. 19(1)(f) or Art. 31(2). This branch of the argument urged on behalf of the Tilkayat naturally rests on the decision of this Court' in. the case of the Commissioner, Hindu Religious Endowments, Madras ([1954] S.C.R. 1005.), that right of a Mahant does amount to a genuine legal right and that the said right must be held to fall under Art. 19(1)(f) because the word property used in the said clause ought to receive a very liberal interpretation. It will be recalled that in the said case, this Court in terms and expressly approved of the decision of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the conclusion that the temple is a public temple and the properties belonging to it are the properties of the temple over which the Tilkayat has no title or right, we will have to take into account the fact that during the long course of the management of this temple, the Tilkayat has never claimed any proprietary interest to any part of the usufruct of the properties of the temple for his private personal needs, and so, that proprietary interest of which Mr. Ameer Ali spoke in dealing with the position of the Mahant and the Shebait and to which this Court referred in the case of Co- mmisioner, Hindu Religious Endowments Madras ([1954] S.C.R. 1005.), is lacking in the present case. What the Tilkayat can claim is merely the right to manage the property, to create leases in respect of the properties in a reason. able manner and the theoretical right to alienate the property for the purpose of the temple; and be it noted that these rights could be exercised by the Tilkayat under the absolute and strict supervision of the Darbar of Udaipur. Now, the right to manage the property belonging to the temple, or the right to create a lease of the property on behalf of the temple, or the righ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r specifies the principles on which and the manner in -which, the compensation is to be determined and given; and it adds that no such law shall be called in question in any court on the ground that the compensation provided by that law is not adequate. Art. 31 (2A) which is expressed in a negative form really amounts to this that where a law provides for the transfer of the ownership or right to possession of any property to the State or to a corporation owned or controlled by the State, it shall be deemed to provide for the compulsory acquisition or requisition of property. If, on the other hand, the transfer of the ownership or the right to possession of any property is not made to the State or to a corporation owned or controlled by the State, it would not be regarded as compulsory acquisition or requisition of the property, notwithstanding that it does deprive any person of his property. In other words, the power to make a compulsory acquisition or requisition of a citizen's property provided for by Art. 31(2) is what the American lawyers described as eminent domain all other cases where a citizen is deprived of his property are covered by Art. 31.(1) and they can broadl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed on by the Mahant alone would here after have to be carried on by the Mahant along with his colleagues in the Board. This again cannot, we think, be regarded as a compulsory acquisition of the Tilkayat's rights. It is not suggested that the effect of the relevant provisions of the Act is to bring about the requisitioning of the said rights. Therefore, even if it is assumed that the rights claimed by the Tiikayat constitute property under Art. 31(2), we do not think that the provisions of Art. 31(2) apply to the Act. But as we have already held, the rights in question do not amount to a right to hold property under Art. 19(l)(f) or to property under Art. 31(2). That takes us to the argument that the Act is invalid because it: contravenes Art. 14. In our opinion, there is no substance in this argument. We have referred to the historical background of the present legislation. At the time when Ordinance No. 11 of 1959 was issued, it had come to the knowledge of the Government of Rajasthan that valuables such as jewelleries, ornaments, gold and silver- ware and cash had been removed by the Tilkayat in the month of December 1957, and as the successor of the State of Mewar, the Stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the alternative case of the denomination that the temple and the properties connected therewith belonged to the denomination according to its usages and tradition, and therefore, the management of the said temple and the properties cannot be transferred to the Board. It is this latter alternative plea which is based on Art. 25 (1) and Art. 26(b) of the Constitution. The argument is that the Act contravenes the right guaranteed to the denomination by Art. 25(1) freely to practise its religion and that it also contravenes the denomination's right guaranteed under Art. 26(b) and (d) to manage its own affairs in matters of religion and to administer its property in accordance with law. For the purpose of dealing with these arguments, we will assume that the denomination has a beneficial interest in the properties of the temple. Articles 25 and 26 constitute the fundamental rights to freedom of religion guaranteed to the citizens of this country. Article 25 (1) protects the citizen's fundamental right to freedom of conscience and his right freely to profess, practise and propagate religion. The protection given to this right is, however, not absolute. It is subject to publi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rded as such by the community following the religion or not. This formula may in some cases present difficulties in its operation. Take the case of a practice in relation to food or dress. If in a given proceeding, one section of the community claims that while performing certain rites while dress is an integral part of the religion itself, whereas another section contends that yellow dress and not the white dress is the essential part of the religion, how is the Court going to decide the question? Similar disputes may arise in regard to food. In cases where conflicting evidence is produced in respect of rival contentions as to competing religious practices the Court may not be able to resolve the dispute by a blind application of the formula that the community decides which practice is an integral part of its religion, because the community may speak with more than one voice and the formula would, therefore, break down. This question will always have to be decided by the Court and in doing so, the Court may have to enquire whether the practice in question is religious in character and if it is, whether it can be regarded as an integral or essential part of the religion, and the fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ticularly so in regard to Hindu religion because as is well known, under the provisions of ancient Smritis, all hurman actions from birth to death and most of the individual actions from day to day are regarded as religious in character. As an illustration, we may refer to the fact that the Smritis regard marriage as a sacrament and not a contract. Though the task of disengaging the secular from the religious may Dot be easy, it must nevertheless be attempted in dealing with the claims for protection under Arts. 25 (1) and 26(b). If the practice which is protected under the former is a religious practice, and if the right which is protected under the latter is the right to manage affairs in matters of religion, it is necessary that in judging about the merits of the claim made in that behalf the Court must be satisfied that the practice is religious and the affair is in regard to a matter of religion. In dealing with this problem under Arts. 25(1) and 26(b), Latham, C. J.,'s. observation in Adelaide Company of Jehovah's witnesses Incorporated v. The Commonwealth (67 C.L.R. 116, 123.), that what is religion to one is superstition to another , on which Mr. Pathak relies, is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roperty belonged to the Tilkayat like the temple, there was no occasion to consider whether the management of the property should be in the hands of anybody else. The course of conduct of the denomination and the Tilkayat based on that belief may have spread for many years, but, in our opinion, such a course of conduct cannot be regarded as giving rise to a religious practice under Art. 25(1). A distinction must always be made between a practice which is religious and a practice in regard to a matter which is purely secular and has no element of religion associated with it. Therefore, we, are satisfied that the claim made by the denomination that the Act impinges on the rights guaranteed to it by Art. 25(1) and 26(b) must be rejected. That leaves one more point to be considered under Art. 26(d). It is urged that the right of the denomination to administer its property has virtually been taken away by the Act, and so, it is invalid. It would be noticed that Art. 26(d) recognises the denomination's right to administer its property, but it clearly provides that the said right to administer the property must be in accordance with law. Mr. Sastri for the denomination suggested th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this plea should be made by the representatives of the denomination who in their writ petition were prepared to support the Tilkayat in his case that the temple and the properties of the temple were his private property. That apart, we think that the constitution of the Board has been deliberately so prescribed by the legislature as to ensure that the denomination should be adequately and fairly repre- sented on the Board. We have already construed s. 5 and we have held that s. 5 (2) (g) requires that the members of the Board other than the Collector of Udaipur District should not only profess Hindu religion but must also belong to the Pushti-Margiya Vallabhi Sampradaya. It is true that these members are nominated by the State Government, but we have not been told how else this could have been effectively arranged in the interests of the temple itself. The number of the devotees visiting the temple runs into lacs ; there is no Organisation which comprehensively represents the devotees as a class there is no register of the devotees and in the very nature of things, it is impossible to keep such a register. Therefore, the very large mass of Vallabh's followers who constitute th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts property and so, the validity of the section could not be sustained on the ground of such transfer. The correctness of this conclusion is challenged by the learned Solicitor-General on behalf of the State. In dealing with this question, the conduct of the Tilkayat needs to be examined. On October 15, 1956 a report was made by Mr. Ranawat to the Tilkayat in respect of these two idols. It appears that the grant of some villages in respect of these idols stood in the name of the Tilkayat and after the said villages were resumed by the State, a question arose as to the compensation payable to the owner of the said villages. In that connection, Mr. Ranawat reported to the Tilkayat that it would be to the advantage of the two idols if the said lands along with the idols were treated as a part of the public temple. He cited the precedent of the lands belonging to the Nathdwara Temple in support of his plae. On receiving this report, the Tilkayat was pleased to transfer the ownership of Shri Thakur Navnitpriyaji, Shri Madan Mohanji and Bethaks to the principal temple of Shri Shrinathji. of course, he retained to himself the right and privilege of worship over those temples and Bethaks a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of Shrinathji must be decided in the light of what transpired on October 15, 1956. judged in that way, there can be no doubt that the Tilkayat solemnly transferred the two idols to the principal temple and in that sense, gave up his ownership over the idols and a formal proposal made in that behalf was accepted by the Committee. In our opinion, the High Court was in error in not giving effect to this transfer on the ground that no gift or trust deed had been duly executed by the Tilkayat in that behalf. A dedication of private property to a charity need not be made by a writing: it can be made orally or even can be inferred from conduct. In the present case, there is much more than conduct in support of the State's plea that the two idols had been transferred. There is a formal report made by the Manager to the Tilkayat which was accepted by the Tilkayat ; it was followed by a formal proposal made by the Tilkayat to the Committee and the Committee at its meeting formally accepted that proposal and at the meeting when this. proposal was accepted, the Tilkayat was present. Therefore, we must hold that the two idols now form part of the principal temple and have been properly in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is equally true about the transitional provision in s. 35. A part of s. 16 has been struck down by the High Court in so far as it refers to the affairs of the temple. This section authorises the Board to manage the properties and affairs of the temple. The High Court thought that the expression 'affairs of the temple is too wide and may include religious affairs of the temple; and since in managing these affairs of the temple, the section does not require that the management should be according to the customs and usages of the denomination, it came to the conclusion that the clause affairs of the temple is invalid and should, therefore, be struck down. We are not satisfied that this view is correct. In the context the expression affairs of the temple clearly refers to the purely secular affairs in regard to the administration of the temple. Clearly, s. 16 cannot be construed in isolation and must be read long with s. 22. that is why it has been left to the Board to manage the properties of the temple as well as the purely secular affairs of the temple, and so, this management need not be governed by the custom and usage of the denomination. If the expression affairs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plementation began, both parties appeared to have adopted unhelpful attitudes. We were referred at length to the correspondence that passed between the Tilkayat and the Committee in respect of some of these matters. We do not think it necessary to consider the merits of that controversy because we are satisfied that once the Act is upheld, it will be implemented by the Board consistently with the true spirit of the Act without offending the dignity and status of the Tilkayat as a religious head in charge of the temple and the affairs in matters of religion connected with the temple. Therefore, we do not think it would be right to strike down any part of s. 21 as suggested by the learned Attorney-General. The validity of s. 27 has been challenged by the learned Attorney-General on the ground that it empowers the State Government to depute any person to enter the premises of the temple, though, in a given case, such a per-son may not be entitled to make such an entry. Even a non-Hindu person may be appointed by the State Government to inspect the properties of the temple and if he insists upon making an entry in the temple, that would contravene the provisions of Art. 25 (1) and 26 ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the case of Ratilal Panachand Gandhi ([1953] S.C.R. 1055.), this Court was dealing with the validity of ss. 55 and 56 of the Bombay Public Trusts Act. 1950 (No. 29 of 1930). Section 55 of the said Act purported to lay down the rule of cy pres in relation to the administration of religious and charitable trust; and s. 56 dealt with the powers of the courts in relation to the said application of cy pres doctrine. This Court observed that these two sections purported to lay down how the doctrine of cy pres is to be applied in regard to the administration of public trust of a religious or charitable character; and then it proceeded to examine the doctrine of cy pres as it was developed by the Equity Courts in England and as it had been adopted by our Indian Courts since a long time past. 'La the opinion of this Court, the provisions of ss. 55and 56 extended the said doctrine much beyond its recognised limits and further introduced certain principles which ran counter to well established rules of law regarding the administration of charitable trusts. It is significant that what the impugned sections purported to authorise was the diversion of the trust property or funds for purpos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n struck down by the High Court and the learned Solicitor-General does not quarrel with the conclusion of the High Court. He has, however, fairly conceded that though the first part of s. 30 (2) (a) may be struck down, the latter part need not be struck down. This latter part allows rules to be framed by the State Government in regard to the allowances payable to the Goswami. We think it is but fair that this part should be upheld so that a proper rule can be made by the State Governmernt determining the quantum of allowances which should be paid to the Goswami and the manner in which it should be so paid. We would, therefore strike down the first part of s. 30 (2) (a) and uphold the latter part of it which has relation to the allowances payable to the Goswami. The two parts of the said sub-section are clearly severable and so, one can be struck down without affecting the other. In regard to s. 36, the High Court thought that it gives far too sweeping powers to the Government and so, it has struck it down. Section 36 merely empowers the Government to give such directions as may be necessary to carry out the objects of the Act in case a difficulty arises in giving effect to the prov ..... X X X X Extracts X X X X X X X X Extracts X X X X
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