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PETITIONER: STATE OF RAJASTHAN AND ORS.

       Vs.

RESPONDENT: SAJJANLAL PANJAWAT & ORS.

DATE OF JUDGMENT14/12/1973

BENCH: REDDY, P. JAGANMOHAN BENCH: REDDY, P. JAGANMOHAN DWIVEDI, S.N. GOSWAMI, P.K.

CITATION:  1975 AIR  706            1974 SCR  (2) 741  1974 SCC  (1) 500  CITATOR INFO :  R          1975 SC1069  (23)  RF         1981 SC1863  (29)  RF         1992 SC1256  (13)

ACT: Rajasthan Public Trusts Act 1959-ss, 17(3); 52(1) and  53-If violative of Art. 25 and 26 of the Constitution.

HEADNOTE: The  respondents alleged before the High Court that  certain provisions   of  the  Rajasthan  Public  Trusts  Act,   1959 contravened their fundamental rights guaranteed under  Arts. 25 and 26 of the Constitution.  In the first set of  appeals (C.A. Nos. 1083 and 1092 of 1967) the respondents, in  their writ  petition, claimed that the temple of Shri  Rikhabdevji (also known as Keshariyanathji temple) was a Swetamber  Jain temple which was under the ownership and management of  Jain Sashan and had been recognised as such in official documents as  well as in the firmans issued by the erstwhile State  of Mewar and that the State usurped the management and  applied the  provisions of Rajasthan Public Trusts Act  and  thereby contravened their fundamental rights.  In the second set  of appeals  (C.As. Nos. 1119 and 1087 of 1967) the Chairman  of the  Trust  Committee  of  Shri  Nakodaji  Parasnath  Tirath alleged that the administration and management of the temple was  being  carried on by the Trust Committee on  behalf  of Swetamber   Jain  temple  and  that  interference   in   the management  of the temple and other  religious  institutions envisaged  by  the Act was against the usages  and  customs, principles and tenets of the Jain religion. The High Court struck down s. 17(3) of the Act on the ground that  under the rules made under the Act the sum charged  as registration fee goes to the consolidated fund and was  thus not  a  fee but a tax which the State  Legislature  was  not competent  to  levy.  Section 52(1)(d) and (e)  were  struck down  as  invalid  as  B. 53 had  not  provided  for  proper safeguards of leaving the administration of the property  in the hands of the denomination.  But since the management  of the   temple   had  vested  in  the  State  prior   to   the constitution, the case of Rikhabdevji was held to have  been covered  by s. 52(1) (a) or (c) of the Act.  Section 53  was

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struck  down on the ground that since Art.  26  contemplates not  only a denomination but a section of the  denomination, the  trustees  of  a  public  trust  representing  the  same religion  may not necessarily be members of that section  of the  denomination managing the property even if such  public trust  has the same object as that of the public trust,  the management of which is being transferred to the Committee of Management. In  the  first set of appeals the High Court held  that  the temple  was a Swetamber Jain temple which was being  managed by  the  State.   It  directed the  State  to  constitute  a Committee for its management as provided in the Act. Section  17(3) provides that an application to be  presented under  sub-S.(1)  of that section "shall be  accompanied  by such  fee.  if  any, not exceeding five rupees,  and  to  be utilised for such purposes, as may be- prescribed".  Rule 18 of the Rules specifies the rates of fee payable on different values  of  the  trust  property  enumerated  the-rein,  and further  provides  that  the fee shall be  credited  to  the Consolidated  Fund of the State.  Section 52(1) of  the  Act enacts  that  the provisions contained in  Chapter  X  shall apply  to  every  public  trust which  vests  in  the  State Government (cl. a) or which is managed directly by the State Government (cl. c); or which is under the superintendence of the Court of Wards (cl. d); & Aid of which the gross  annual income  is ten thousand rupees or more (cl. e).  Section  53 provides that the management of a public trust shall vest in a  Committee  of Management to be constituted by  the  State Government.  Sub-section (5) provides that the Chairman  and Members  of the Committee of Management shall  be  appointed from amongst (a) trustees of public trusts representing  the same religion or persuasion and having the same objects  and (b)  persons  interested  in such public trusts  or  in  the endowments thereof or belonging to the denomination 742 for  the  purpose of which or 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. Allowing the appeals, HELD : Section 17(3) cannot be held to be invalid and  ultra vires  the Dower ,of the State Legislature.  The  mere  fact that  the amount was paid into the consolidated fund  is  by itself  not sufficient to hold that the levy under s.  17(3) of the Act is a tax.  It was held in the Commissioner of  H. R.  E.  Madras  v. Sri Lakshmindra Tirtha  Swamiar  of  Shri Shirur  Mutt that the essence of taxation is compulsion  and imposition made for public purpose without reference to  any special  benefit  to be conferred on the payer of  the  tax, that is to say, that the levy of tax is for the purposes  of general  revenue  which, when collected, forms part  of  the public  revenues of the State.  A fee on the other  hand  is payment  for  a  special  benefit  or  privilege  which  the individual receives.  It is regarded as a sort of return  or consideration for services rendered and should be correlated to  the  expenses incurred by Government  in  rendering  the services.   In  the Secretary, Government  of  Madras,  Home Department  v.  Zenith  Lamp  &  Electrical  Ltd.,  it   was reiterated  that the fact that the collections went  to  the Consolidated  Fund was not in itself conclusive  though  not much  stress  could be laid on this point because  Art.  266 requires  that all revenues raised by the State  shall  form part of the Consolidated Fund, [765D-H; 76.6A] In the instant case the expenditure on Devasthan  Department was  much more than the income from registration.  The  mere

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fact that the amount was paid into the Consolidated Fund  is by itself not sufficient to hold that the levy was a tax. Section  52 (1) (d) has no application in this case  because it   deals   with  a  public  trust  which  is   under   the superintendence  of the Court of Wards and this part of  the judgment of the High Court was clearly wrong. [761 D] It  is for the State Government, if it intends to apply  the provisions of Chapter X of the Act, if it is satisfied  that the  gross  annual  income exceeds ten  thousand  rupees  to include it in the list of public trusts Published under sub- section  (2) of s. 52 in the official gazette.,  Section  53 postulates   the  application  of  Chapter  X   before   the management of the temple can be said to vest in a  Committee of  Management to be constituted by the State Government  in the manner provided in that section.  Until the notification is published under sub-s. (2) of 8. 52 the respondents could not claim that their rights were affected. [761E-G) 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  ELI  Court.  The word persuasion is  a  synonym  of faith,  creed,  denomination, religion etc.   In  the  first category  also a Committee can be appointed from persons  of the denomination to which the trust belongs as in the second category with this difference that in the first category  if the  State  Government chooses, it can appoint it  from  the trustees representing that denomination or persuasion  while in  the second category from amongst the persons who  belong to  tire said denomination who may not be trustees as  such. Even  where the Persons interested satisfy the  requirements of  s. 2(9) the additional requirement of cl. (b) of  sub-s. (5)  of s. 53 is that such persons must be also persons  for whose benefit the trust was founded.  A reading of cl.(a) of sub-s.   (5)  clearly  indicates  that  the  trustees   Must represent  the  concerned  religion  or  persuasion,   which includes  a  denomination.  it  could  not  have  been   the intention  to appoint a Committee of  management  comprising trustees  of  a  public trust of a  particular  religion  or persuasion  who  do not to that religion  or  persuasion  or denomination.   Nor  does cl. (b) or subs-s (5)  ,of  s.  53 empower  persons who do not belong to a denomination  to  be appointed  to a public trust of that  denomination.   Again, the  word "denomination" is wide enough to include  sections thereof, and it cannot therefore be said. as the High  Court seems to assume, that a section of the denomination managing the  property  may  not be the same as  trustees  of  public trusts  representing  the same religion even  management  of which is being transferred to the Committee.  If s. 53(5)(a) is read in the manner suggested the difficulties pointed out by the High Court would not arise at all. [763D-H, 764A-C] 743 On a consideration of all the documents admitted, which  the State  had not, and could not challenge, there was no  doubt that Shri Rikhabdevji temple was a Jain temple and the State of  Rajasthan  had produced no evidence to the  contrary  to show that it was a Hindu temple where Jains of all sects  as well as Hindus of all sects were allowed to worship. [749F] There  was  no doubt that the management of  the  temple  of Rikhabdevji  with its properties had validly vested  in  the Ruler  of  Udaipur, and thereafter in  the  successor  State

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before the Constitution of India came into force.  There can be  no doubt that any right which the Jams or anyone of  the two Jain denominations, namely, the Swetambars or  Digambars or  both, might have had in the temple or in its  management was lost in the pre-Constitution period and is now vested in the State of Rajasthan. [753A] Director  of Endowments, Govt. of Hyderabad & Ors. v.  Akram Ali,  A.I.R. 1956 S.C. 60 and Sarwartal & Ors. v. The  State of Hyderabad [1960] 3 S.C.R. .311, referred to. The  constitution under which the properties and  management of  the templ 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 contravened the right guaranteed under Art. 26(d) of the Constitution. [753C] Durgah Committee Ajmer v. Syed Hussain Ali, [1962] 1  S.C.R. 383, followed. Tilakayat Shri Govindlalji Maharaj v. The State of Rajasthan JUDGMENT: Religious  Endowments,  Madras, v. Sri  Lakshmindra  Thirtha Swamiar  of  Sri Shirur Mutt. [1954] S.C.R.  1005,  and  Sri Venkataramana  Devaru v. The State of Mysore, [1958]  S.C.R. 895, referred to. The  High  Court  was  in  error  in  giving  the   impugned directions in view of the fact that the right of  management of Rikhabdevji temple was lost as it was vested in the State and  the respondents could not complain of any  infringement of  their  fundamental rights to manage and  administer  its affairs.

& CIVIL  APPELLATE JURISDICTION : Civil Appeal Nos.  1083  and 1092 of 1967. From  the judgment and order dated the 30th March,  1966  of the  High Court of Rajasthan at Jodhpur in D.B.  Civil  Writ Petition No. 501 of 1962. Civil Appeals Nov. 1087 and 1119 of 1967 From  the judgment and order dated the 30th Match,  1966  of the  High Court of Rajasthan at Jodhpur in D.B. Civil  Misc. Writ Petition No. 407 of 1962 and vice versa. Civil Appeal No. 1647 of 1967 From  the judgment and order dated the 4th August,  1966  of the  Rajasthan  High  Court at Jodhpur in  D.B.  Civil  Writ Petition No. 197 of 1963. D.  V.  Patel,  G.  C. Kasliwal and  S.  M.  Jain,  for  the appellants (in C.   A.  Nos. 1083 & 1119/67 and  respondents (in C. A. Nos. 1087  & nT092/67) 744 M.   C. Chagla, S. S. Khanduja, Pukhraj Singhvi, D. N. Misra and I.B. Dadachanli, for the respondents (in C.A. No.  1083) and sole respondent in C.A. No. II 19/67 and appellants  (in C.A. Nos. 1087 & 1092/67). S.   M. lain for the appellants (in C.A. No. 1647/67) S.C.  Agrawala,  B.  K.  Garg and Y.  J.  Francis,  for  the respondents. (in C. A. No. 1647/67) The Judgment of the Court was delivered by JAGANMOHAN  REDDY, J.-These five appeals are by  certificate under Art. 1 3 3 (1) (a) & (c) of the Constitution and  have been  heard together as common questions of law were  raised in all these appeals.

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Civil  Appeal No. 1083 of 1967 is an appeal by the State  of Rajasthan  against the respondents, while Civil  Appeal  No. 1092  of 1967 is the appeal by the respondents  against  the State  of Rajasthan.  These two appeals, which we  may  also refer  as  the  first set of appeals, arise out  of  a  writ petition  filed  by  the respondents against  the  State  of Rajasthan alleging that the temple of Shri Rikhabdevji, also known  as  Keshariyanathji temple, situated about  40  miles from Udaipur, is a Swetamber Jain temple which is under  the ownership  and  management  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 was not a Jain temple,  but is a Hindu temple where Jains of all sects as well as Hindus of  all beliefs and sects including the Bhils  worship.   It denied that the provisions of the Act which had been enacted to   regulate  and  to  make  better  provisions   for   the administration of public religious and charitable trusts  in the State of Rajasthan were in any way violative of Arts. 25 and  26  or  any other article  of the  Constitution.   It asserted  that  the management of the temple  was  with  the State  of  Rajashan  which had a valid and  legal  right  to manage it, and that s. 17(3) of the Act was valid.  The High Court  held  that  Rikhabdevji temple is  a  Swetamber  Jain temple and is at present managed by the State of Rajas.than, that s. 17(3) of the Act is invalid because under the Rules 745 that  have  been framed under the Act an amount of  Rs.  51. charged  as registration fee goes to the Consolidated  Fund, and is thug not a fee but a tax which the State  Legislature was  not  competent  to levy.   Following  the  decision  in another  writ petition, which is the subject matter  of  the second set of appeals to which we shall refer presently, the High Court struck down S. 52(1) (d) & (e) of the Act, but as the  management of the temple had vested in the State  prior to  the  Constitution, the case of Rikhabdevji was  held  to have  been covered by s. 52(1) (la) or (c) of the  Act.   In the petition relating to the second set of appeals the  High Court had held that cases of trust as are mentioned in  sub- ss.  (1)  (a), (b) and (c) a secular State may not  like  to keep  the management of public trusts belonging to  various, denominations  with it and may like to transfer it to  those who  might be better equipped for managing it in  accordance with  the  wishes  of  the  founder  or  of  the   religious denomination to which the trust belongs.  But that would not be  violative of Art. 26(b) and (d) of the  Constitution  in any way.  It was of the view that S. 52(1) (d) & (e) of  the

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Act  was  invalid  as  s. 53 had  not  provided  for  proper safeguards for the administration of the property being left in  the  hands of the denomination.  Even so  it  held  that these  clauses were not applicable to that case.  In so  far as  the  challenge to ss. 30, 31, 38 to 43 of  the  Act  was concerned,  it  held them to be valid.  In, the  result  the High  Court gave the directions which are contained  in  the following conclusion now impugned:               "This  being  our conclusion 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 Committee  for  its management as provided in the  Act.   As seen  earlier S. 17(3) of the Act was held ultra  vires  the State Legislature.  Both the parties, being aggrieved,  have filed separate appeals as aforesaid. Civil  Appeals  Nos.  1119(N) of 1967 is  by  the  State  of Rajasthan  while  Appeal  No. 1087(N) of  1967  is  by  Shri Surajmal Singhvi.  These 746 arise  out  ,.of  a writ petition filed  by  the  respondent Surajmal Singhvi who claims .to be the Chairman of the Trust Committee  of Shri Nakodaji Parasnath Tirath  alleging  that the  administration and management of that temple was  being carried on by the Trust Committee on behalf of the Swetamher Jain  Sangh  in which is vested the entire property  of  the temple  .,consisting  of buildings, cash, ornaments  of  the idol  and all other mov able and immovable  properties.   It was  claimed  that  according to the  .religious  faith  and belief of Jains, the properties of the said temple can  only be  utilised for the maintenance, upkeep and worship of  the idol and for the purpose of different religious  ceremonies, propagation  of Jain  faith and  religion  and  for  other analogous   purposes   which  are   pious,   religious   and charitable.   It was, therefore, averred that  inas.much  as the  administration  and management of the said  temple  and worship  of  the  idol and other  religious  ceremonies  are carried  on ,according to the scriptures and tenets of  Jain religion  they do not brook ..any outside interference,  and consequently  the  interference  in the  management  of  the temples  and other religious institutions envisaged  by  the Act  was  against  the usages and  customs,  principles  and tenets of Jain religion.  On these allegations the  various

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provisions  of the Act were challenged on the  ground  that they  were in direct and flagrant breach of the  fundamental right  of religious freedom and freedom of  ;.conscience  of the  Jains and their right to freely profess,  practice  and propagate religion.  It was also contended that the impugned provisions   imposed   unreasonable  restrictions   on   the religious  denomination  to maintain  and  manage  religious institutions  and to manage their own ,-Hairs in the  matter of religion and to administer the property according .to the Jain Shasan. The  High  Court  held that Chapters V, VI and  VII  of  the Act .deal with the registration of public trusts and provide certain safeguards ,to protect them from dissipation.  These provisions are analogous to ,those 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(1).  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 (1)  T19541 S.C.R. 1055, 747 the  two  temples  known  as  Thakurji  Vijay  Govindji  and Thakurji Shri.  Sireh Behariji in accordance with the tenets of  the  religion and the. traditions of  his  family.   The respondents  case  was  that the temple  of  Thakurji  Vijay Govindji is situated within the residential premises of  the respondent in Ramganj Bazar, Jaipur City, and the temple  of Thakurji  Shri  Sireb Behariji is situated  near  the  first temple.   Both  these temples, according to  him,  were  his family  temples  and neither the public in  general  visited those  temples for worship nor any offerings, were  made  to the  deities.   Nevertheless it was  admitted  that  certain properties  were granted by the then Maharaja of  Jaipur  to his great grand father for the maintenance and for providing Bhog,   Pooja  etc.  of  those  temples.   The   respondent, therefore,  challenged the constitutional, validity  of  the several  provisions  of the Act specified  therein  on.  the ground   that   they  contravene  his   fundamental   rights guaranteed by Arts. 25 and 26 of the Constitution to  freely profess,  practice,  propagate his religion and  has  placed unreasonable restrictions on his fundamental right to manage the  affairs  and  to carry on the  administration.  of  the aforesaid  temples  in  accordance with the  tenets  of  his religion  and the traditions of his family.  He,  therefore, prayed  that  the  High Court should declare  that  the  two temples  in question were private temples and that  the  Act was not applicable to them. The appellant contested the claim of the respondent that the temples  were his private temples.  According to  the-State, these  temples were public temples, that Shri Anandilal  the

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great  grand-father of the respondent was put in  charge  of Sewa-Pooja  of the temples and that the land was granted  by the Rulers of the former State of Jaipur for the maintenance of  the  temples, for the performance of  Sewa-Poojaand  for making  offerings to the deities, and, therefore, they  were public  religious trusts within the meaning of s.  2(11)  of the  Act.  It denied’ that the respondent would be  deprived of   any  of  the  fundamental  right  guaranteed   by   the Constitution,  nor in its view do any of the  provisions  of the  Act interfere with the religious freedom of any  person much  less  the respondent, nor do any of  those  provisions impose  unreasonable  restrictions on the  respondent.   The High  Court,  following the decision in  Surajmal  Singhvi’s case,  which  is  the subject-matter of the  second  set  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, 748 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 guaranteed under Arts. 25)  26   and   27   of    the Constitution. If  the  temple is a Hindu temple the  respondents  have  no locus  standi  to  ask for the reliefs  prayed  for  in  the petition.   But  if  it  is not a  Hindu  temple,  then  the question whether it is a Swetamber Jain temple or a Digamber Jain  temple  will become relevant only if we were  to  hold that the management of the temple was not validly vested  in the  State  prior  to the Constitution. or even  if  it  had vested  in the State, any of the fundamental rights  of  the worshipers  of the temple guaranteed, under Arts. 25 and  26 are infringed.  In our view, the question whether the temple is  a  Swetamber Jain temple or a Digamber  Jain  temple  as contended by the interveners does not arise for-decision  in these appeals, firstly because, if the management had vested in  the State of Rajasthan under a pre-Constitution law  and that  law cannot be challenged under the  Constitution,  the right  of the State to administer and manage the  temple  is unassailable;  secondly, even if the right of the  State  to manage the temple after the Constitution came into force can be  successfully challenged as offending the  provisions  of Arts.  25 and 26 of the Constitution, the management of  the temple  by  the  State will be held to be  ultra  wires  and illegal.   And in that event the Court need not go  further. The learned Advocate, for the respondents, however, contests this reasoning, because according to him as the  respondents in their petition have categorically stated that they repre- sent  the Swetamber Jain sect entitled to the management  of the  temple  and have accordingly prayed that not  only  the

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State  of  Rajasthan  be restrained from  carrying  out  the management of the temple but that they be allowed to  manage it  and continue the said management, it is  incumbent  upon this  Court  to give a finding as to  whether  the  Keshari- yanathji  temple is a Swetamber Jain temple.  It is  further contended that even if the management of the temple had been taken over prior to the Constitution under a valid law,  the right  of  the  respondents  to  follow  their  religion  in accordance   with   the  tenets  of  that   religion   would nevertheless continue after the Constitution, and  therefore they  can challenge the right of the State to  continue  the management  as being in contravention of the  provisions  of Arts. 25 and 26 of the Constitution. We  may here mention that the Digamber Jain sect  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 749 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, which did not in any way conflict  with  their rights, they did not apply  for  being made  a  party to the petition, but filed  a  separate  writ petition  of  their own. it was only after  the  notice  was given  to  implead  the  interveners  that  the  respondents applied on April 3, 1963, for an amendment praying that they be  allowed to manage the said temple which  amendment was granted.   The application was granted on July 29, 1963  and accordingly the proposed amendment was effected in the  writ petition.  The contention of the interveners is that as  the High  Court-has  now  given  directions  to  the  State   of Rajasthan for appointing a Committee of Swetamber Jain  sect on  the  assumption  that the temple was  a  Swetamber  Jain temple,  the Digamber Jain sect worshipers are affected  and have,  therefore,  applied for and  obtained  permission  to intervene. As  we  have said earlier, in this case we do  not  wish  to determine  the  question whether the temple is  a  Swetamber temple  or a Digamber temple, not only because the  Digamber sect was not a party, but because the State of Rajasthan was not  interested in contesting the claim of  the  respondents that  it  was  a  Swetamber  temple.   What  the  State  was interested in was to non-suit the petitioners/respondents on the  ground that they had no right to the management of  the temple, as, that right had vested in the State prior to  the Constitution, and even if that right can be challenged after the Constitution. the temple being a Hindu temple where  all sects  including  the Jains and the , Bhils  worshiped,  the respondents would have no locus standi. In  our  view,  however, without  going  into  the  question

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whether  the  temple  is  a Swetamber  or  a  Digamber  Jain temple’,  it will be sufficient for us to  consider  whether the temple. is a Jain temple, or as- alleged by the State  a Hindu  temple.   On  a consideration of  all  the  documents admitted, which the State has not, and cannot challenge,  we have no doubt that Shri Rikhabdevji temple is a Jain  temple and  the State of Rajasthan has produced no evidence to  the contrary  to show that it is a Hindu temple where  Jains  of all sects as well as Hindus of all sects including the Bhils are allowed to worship. Apart  from  a  copy  of the firman  of  the  Emperor  Akbar produced  by the respondents to show that  Shri  Rikbabdevji temple is a Swetamber Jain temple, the authenticity of which has  been disputed by the State, there 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 750 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  it  Shri Keshariyanathji  Maharaj is described as a holy Jain  Tirath which was managed previously by Udiapur Nagar Seth and  Seth Jorawarmalji.  We are not for the present concerned with the statement  contained therein about the  misappropriation  of the  money  of  the deity in Samvat  Year  1934.   But  this document also shows that the State of Mewar describes it  as a  holy  Jain Tirath.  Annexures 2, 3, 4, 6, 7A, 7B  and  7C show  that  some  embezzlement  of  the  temple  funds   was suspected in Samvat Year 1933 (about year 1875-76 A.D.) as a result- of which one Molvi Abdul Rehman Khan was deputed  by the State of Udaipur to make enquiry and check the accounts. It  appears  proceeding,  one  Bhandari  Jawanji  Molvi  for forcibly  breaking  open away the account  books  and  other papers. described the temple of Shri Rekhabdebji Maharaj  as belonging  to the,  that while this enquiry was  pro.   Khem Raj  complained  against that the lock of  the  Bhandar  and taking  In that connection he Jain Sangh.  Annexure 9  dated January  27,  1878, is a notification of the  Government  of Udiapur  State for the information of the pilgrims  and  the devotees  of Shri Rikhabdevji stating that  Bhandaries  were removed  due to their mismanagement of the,  temple  affairs and  that a Committee consisting of five. respectable  Oswal Mahajan   devotees  of  Shri  Rikhabdevji   was   appointed. Annexure  10 dated November 22, 1878, is a notice issued  by the  members  of the Committee to dispel  doubts  about  the action  taken  by  the Ruler of the State  in  appointing  a Committee  for  the  management of the  temple,  It  also  a mentions  that  the  management  has  been  assigned  to   a Committee  of  five or seven big Sahukars  who  follow  Jain

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religion  and lead a religious life.  Annexure 24 dated  May 29,  1886, is a copy of the report  made by  Mehta.   Govind Singh  Hakim  Magra  (an office  having  both  judicial  and magisterial   powers)  to  Mahkama  Khas,  Udaipur,  on   an application submitted by some Digamber Jams objecting to the raising  of  Dhawaja i.e. flag over the ’Jainalaya’  by  the Swetamber  Jains.   In that report it was  stated  that  the temple was a Swetamber Jain temple.  Annexure 21 dated  July 19,  1907,  shows that on a complaint that some  people  had allowed low caste people to Perform Puja of Shri Rikhabdevji by  taking  some  illegal  gratification,  the  matter   was referred  by  the Officer of the Devasthan Bhandar  to  Jain Muni  Paniyas  Nem Kushalji as to what steps  be  taken  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 751 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   even   after   the Constitution  in  its successor State, namely the  State  of Rajasthan,  and if so, whether the respondents’  fundamental rights, guaranteed under Arts. 25 and 26 are affected.   The High Court has held that the Ruler of the erstwhile  Udaipur State,  by virtue, of his sovereign power  always  exercised general superintendence over the temples and on finding that there   was  mismanagement  of  the  temple   affairs,   the management which was till then vested in the Nagar Seth  was transferred  to  a Committee and the President of  the  "Sel Kantar Sabha" (a Department of the erstwhile State of Mewar) was  appointed its Manager.  The Sel Kantar Sabha  took  the keys  of  the Bhandar from the Nagar Seth  on  November  29, 1877, after the management was transferred to the Committee. It also held that vacancies in the Committee occurring  from time to time were being filled up by the orders of the Ruler of  the  State and whenever there was a  dispute  about  the affairs of the temple it was referred to the Government  and its  decision was obtained.  In 1948  when-mismanagement  of the  temple was again reported, the Government  appointed  a Tribunal  to make an enquiry and report about the  state  of mismanagement  and  ordered that the affairs of  the  temple should be managed according to the report of Shri Tej  Singh Kothari  until a final decision was taken by the  Government on the report of the Tribunal.  These findings, in our view, are supported by Annexures 6, 7A, 33, 41 and 42. It also appear s that a Constitution was promulgated by  the Maharana of Udaipur on May 23, 1947, which was  subsequently amended  on  October  11,  1947.  It  is  evident  from  the preamble  that  the Rulers of Mewar claimed that  they  were

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ruling  the  State  as the Dewans on behalf  of  Lord  Shiva represented  by  Eklingji  Maharaj.  The  Ruler  was  always referred  to as Shriji.  In paragraph 2 of Article 11 it  is stated  that "All shrines, temples and other  religious  and charitable institutions forming part of Devasthan  described in Schedule 1 or which may hereafter be found to have formed part   thereof  or  which  form  part  there-of  by   future dedication  and all property and funds appertaining  thereto are  hereby declared to be vested in Devasthan Nidhi  hereby constituted in law as a Corporation with a seal of its own.’ By  paragraph-3  of  Article 11 it  was  provided  that  the Devasthan Nidhi shall hold all the said institutions,  their properties  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 L748 SupCI/74 752 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  stated that in the administration  of  the Devasthan  Shriji (Ruler) shall have all  powers  necessary, proper and incidental to carry out the administration of the Devasthan  and  may invest its funds in  securities,  lands, business  or  industrial  undertakings  and  may  vary   the investments as he may think fit. The  relevant  portions  of these  Constitutions  have  been furnished to us by agreement of counsel for parties. The learned advocate for the respondents, however,  contends that the Constitution was never promulgated in so far as the taking over of the shrines, temples and other religious  and charitable institutions was concerned.  This submission,  in our  view,  is  not  justified.  because  not  only  was  it specifically  proclaimed  that the  Constitution  was  being promulgated, but by the notification of October 11, 1947, it was   further  declared  that  the  Constitution  that   was proclaimed on May 23, 1947, was amended that day. namely  on October  11,  1947.   It may further  be  pointed  out  that pursuant  to the amendment an Advisory Body was  constituted on  March 20 1948, with the Maharana as its resident,  Major General  Rao  Manohar Sinhaji as Vice  President  and  eight other members named therein.  From evidence it appears clear that  for quite some time before the promulgation  of  these Constitutions the management of Shri Rikhabdevji temple  had been taken over by the erstwhile Ruler of Udaipur State, and by virtue of the Constitutions it had finally vested in  the State  and  was  being  managed by  the  Maharana  with  the Advisory  Body.   This Court has in several  decisions  held that  the  Rulers of the erstwhile Indian  States  exercised sovereign  powers,  legislative,  executive  and   judicial.

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Their  firmans were law which could not be challenged  prior to   the   Constitution.   See   Director   of   Endowments. Government  of  Hyderabad and others v.  Akram  Ali(1);  and Sarwarlal and others v. The State of Hyderabad(2) . In  view of  these decisions, we have no hesitation in  holding  that the  management  of  the  temple  of  Rikhabdevji  with  its properties  had validly vested in the Ruler of Udaipur,  and thereafter in the successor State before the Constitution of India  came  into force on January  26-1-1950.   There  can, therefore, be no doubt that any (1) A.I.R. 1956 S.C. 30 (2) [1960] 3 S.C.R. 31 1, 753 right   which  the  Jains  or  any  one  of  the  two   Jain denominations,  namely,  the Swetambers or.   Digambers  or both,  may have had in the temple or in 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 and its properties  fall under Art. 26(b) and not under Art. 26(d), the answer may be two-fold : (1) the Jains, whether Swetamber or Digamber. had lost the right before the Constitution and Art. 26 would not reinvest  the  right  in them;  (2)  the  administration  of property being dealt with in Art. 26(d), should be deemed to be  excluded from the purview of Art. 26(d).   Dealing  with the first matter, Gajendragadkar said : "It is obvious  that Art. 26 (c) and (d) do not create rights in any denomination or its section which it never had; they merely safeguard and guarantee the continuance of rights which such  denomination or its section had. in other words if the denomination never had the right to manage the, properties endowed in favour of a  denominational institution as for instance by  reason  of the  terms on which the endowment was created it  cannot  be heard  to  say that  it has acquired the, said rights  as  a result  of  Art. 26(c) and (d) 1 and that the  practice  and custom   prevailing  in  that  behalf  which  obviously   is consistent with the terms of the endowment should be ignored or treated as invalid and the administration and  management should  now be given to the denomination.  Such a  claim  is plainly  inconsistent  with  the  provisions  of  Art.  26." (Durgah Committee of Ajmer at p. 414). Dealing with the second matter the learned Judge said :  "If the  practice in question is purely secular or  the  affairs which  is  controlled  by the  statute  is  essentially  and absolutely  secular in Character, it cannot be,  urged  that Art.  25(1)  or  Art.  26(b)  has  been  contravened.    The

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protection  is given to the practice of religion and to  the denomination’s right to manage its own affairs in matters of religion." Again at p. 625 he said : "Art. 26(b) relates  to affairs 754 in  matters  of  region  such as,  the  performance  of  the religious   rites  or  ceremonies,  or  the  observance   of religious  festivals and the like it does not refer  to  the administration  of  the  property at  all.   Article  26(d), therefore, justifies the enactment of a law to regulate  the administration  of the denomination’s property and  that  is precisely  what the Act has purported to do in  the  present case.   If. the clause affairs in matters of religion’  were to  include  affairs  in  regard  to  all  matters,  whether religious  or  not  the  provisions  under  Art.  26(d)  for legislative   regulation  of  the  administration   of   the denomination’s   property  would  be   rendered   illusory." (Tilkayat Sri Govindlalji Maharaj v. The State of  Rajasthan and others) (1). Earlier  in  The Commissioner, Hindu  Religious  Endowments, Madras  v.  Sri Lakshmindra Thirtha Swaimar  of  Sri  Shirur MUtt(2) (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 observed  : "It  is clear, therefore, that questions merely relating  to administration of properties belonging to a religious  group or  institution are not matters of religion to which  clause (b) of the article applies." To the, question "what then are matters of religion ?" his answer was "Religion is certainly a matter of faith with individuals or communities and it  is not necessarily theistic.  There are well known religions in India like Buddhism and Jainism which do not believe in  God or in any Intelligent First Cause.  "A religion  undoubtedly has its basis in a system of beliefs or doctrines which  are regarded by those who profess that religion as conducive  to their  spiritual well being, but it would not be correct  to say that religion is nothing else but a doctrine or  belief. A religion may not only lay down a code of ethical rules for its  followers  to accept, it might  prescribe  rituals  and observances,  ceremonies  and  modes of  worship  which  are regarded as integral parts of religion, and these forms  and observances might extend even to matters of food and dress." The   observations   of  Venkatarama  Aiyar,  J.,   in   Sri Venkataramana  Devaru v. The State of Mysore(3) were to  the same effect. Bearing in mind the scope of clauses (b) and (d) of Art.  26 as, expounded in the decisions of this Court. if, as we have held, the right of management of Rikhabdevji temple is  lost as it is vested in (1) [1954] i S.C.R. 561 at p. 621 (2) [1954] S.C.R. 1005. (3)  [1958] S.C.R. 895.

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755 the   State,  the  respondents’  cannot  complain   of   any infringement  of  their  fundamental  right  to  manage  and administer  its affairs, and as such the High  Court  was-an error  in  giving the impugned directions.  In the  view  we have taken, the validity of the provisions of the Act  which have been challenged does not fall for consideration in  the first  ’set of appeals and it has also been so held by  the, High Court. In the second set of a peals it is not denied that  Nakedaji Parasnath  temple is a Swetamber Jain temple  coming  within the definition of a public trust under s. 2(11) of the  Act. It   is   the  contention  of  the  respondents   that   the establishment  of a trust or a temple is a part of the  Jain religion  and, therefore, the administration and  management of  Nakedaji  Parasnath  temple  is also  a  part  of  their religion.  Whether this is a valid claim or not, and whether the  impugned  provisions of the Act contravene any  of  the tenets  of  the  Jain  religion has  to  be  ascertained  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 grounds of  public order,  morality or health.  The High Court,  while  holding sections  30, 31, 38 to 43 and clauses (a), (b) and  (c)  of sub-s.  (1) of s. 52 valid, struck down sub-s. (3) of s.  17 and  clauses (d) and (e) of sub-s. (1) of s. 52 as  invalid. As the, correctness of this conclusion has been  challenged, we will examine the scheme and the provisions of the Act  to see   whether  any  of  them  infringe  the  right  of   the respondents guaranteed under Art. 26 of the Constitution. Chapters 11, HI, IV and V of the Act deal with public trusts not being void on the ground of uncertainty; the appointment of  officers and servants by the  Government;  establishment and  functions of the Board and Committees; registration  of public  trusts.  Of these provisions. as we  have  mentioned earlier,  s. 17(3) for payment of registration fee has  been declared  by  the High Court to be ultra vires  as  the  fee leviable thereunder was in fact a tax which the State Legis- lature  has no power to levy.  Section 30 and 31 of  Chapter VI  relate  to  the investment of public  trust  moneys  and obtaining  of previous sanction for certain  transfers  of trust property.  Sections 32 to 36 of Chapter VII deal  with accounts, auditing of accounts and 756 budget of public trusts.  Sections 37 to 46 of Chapter VIII, of  which ss. 38 to 43 were seriously challenged on  various grounds, relate to the power of the District Court to remove

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any  trustee  or appoint a new trustee;  to  determine  what portion  ’of  trust  property  shall  be  allocated  to  any particular object of the trust and for providing a scheme of management  of the trust property.  The District  Court  was also empowered to direct how the funds of the public  trust, the original object of which has failed, shall be spent  and issue further directions as it thinks fit.  Sections 47 to 5  1  of  Chapter IX provide for the  general  control  over public  trusts, of which s. 51 particularly deals  with  the filling  of the vacancy in the Board on trustees.  The  writ petition  challenged ss. 48 and 51(2) but during the  course of  the  arguments before the High Court  objection  to  the validity of s. 48 was not seriously pressed.  Sections 52 to 65  of  Chapter IX were the main subject of  controversy  of which  ss.  52  and 53 were seriously  challenged  and  that challenge  found favour with the High Court, which,  as  we have  seen  earlier, struck down s 52(d) and  (e)  for-being ultra vires as they did 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 pursuance of religious belief are as "much  a part of religion as faith or belief  in  particular doctrines". What  are  those religious practices in  the  Jain  religion which  are  regarded as essential and integral part  of  the religion  will  be a matter which has to  be  considered  by reference,  to  the  tenets  of  the  Jain  religion.    The petitioners/respondents  in this case had  filed  Schedule-A List of Shashtrapath which deals with Greatness of religion; JainShansana Samstha; Sampati-Dharma-Dravya; Performance  of ’Vahivat’ or Management of religious property; what type  of person  a Manager should be etc.  We have also a  report  of the Hindu Religious Endowments Commission (1960-62) in which Chapter IX deals with Jain endowments of which paragraphs  7 to 13 were admitted by the parties before the High Court  to be  relevant  as  serving a useful guide  for  deciding  the matters in issue.  These paragraphs have been given in  that judgment and we do not propose to extract them again in 757 extenso.  In paragraph 7 it is. stated that Jain  scriptures have   made  meticulous  rules  and  regulations   for   the utilization  of funds and management of the trusts and  have enunciated  seven types of funds called "Sat  Kshetras"  and have also dictated the uses to which each type of fund could be put.  These seven funds Were then enumerated.  Paragraph- 8 refers to the Jiva-Daya Fund which is apart from the seven Kshetras  which can be used for the care and maintenance  of

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birds,  animals etc.  In paragraph-9 it is stated  that  the funds donated to one Kshetra cannot be utillsed for  another Kshetra.   Even in the same Kshetra, funds allocated  for  a particular purpose can be utilized only for that purpose and for  no  other.   However,  if the  purpose  for  which  the donation  was  made  becomes  extinct or  if  by  reason  of circumstances  the  purpose cannot be  carried  into  effect either in whole or in part of where there is a surplus  left after  exhausting the purposes of the trust, the funds in  a Kshetra, for the lower purposes can be taken to higher  ones but not vice-versa.  Similarly funds of a lower Kshetra  can be  transferred  to any higher Kshetra but  not  vice-versa. The  application  of  the doctrine of cypress  may  thus  be allowed to a limited extent.  In paragraph-10 it was  stated that  income  not spent in any one year is  not  necessarily surplus.  Such balance, may have been kept from year to year to accumulate to a larger 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 trusts which come into existence on account of Dravyadan  to Kshetras  belong to the Jain Sangh.  There is no  individual ownership.   The possession is always of the  Sangh  through the trustees.  In so far as Digamber Jains are concerned, it is  stated in paragraph-13 that they do not have Dev  Dravya or  Gyani  Dravya  as such.  The funds are  donated  to  the Bhandar  Fund and money from that Fund can be used  for  the purpose of that temple or for any institution that is run by that  temple or for any good object.  The money can also  be utilized  for  teaching the principles  of  Jain  philosophy exclusively or along with secular learning. It  is also contended before us that according to  the  Jain tenets,  earning  of  income  from  religious  property   or increasing  it is prohibited. but we find that there  is  no warrant for this submission.  What 758 is  prohibited  is only certain methods for  increasing  the religious properties.  In the Shashtrapath Dravya Sapatali : Tika  :8  under  the  heading  "The  Method  of   increasing religious property" and the caption "How to earn  interest", it is stated :               "Generally,  the  following are  some  of  the               Methods of increasing religious property which               are strictly prohibited in the scriptures :-               "(1) For example giving away of the money  out               of the religious property on interest, with  a               view to increasing it to the following  people               :-

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             (1)   Butcher. (2) Fisherman, (3)  Prostitute,               (4)  Cobbler  Giving of money to these  people               is not proper.               (2)   Earning  rent out of "Deve  Dravya"  and               building houses etc with a view to  increasing               it (i.e. Deva Dravya).               (3)   Hoarding  of  foodgrains with  the  Deva               Dravya  with an intent to sell it  during  the               time  when  prices to high thinking  that  the               "Deva Dravya" would thereby increase.               (4)   Digging   of   impulium   (Bewadi)   and               building  on  fields etc.  earmarked  for  the               idol.               (5)   Charigina of any kind of tax in the name               of the idol on the goods even when the  excise               or custom duty has already     been charged by               the State’s Customs Department.               These  are  vicious Practices  and  the  "Deva               Dravya"  should be increased  after  forsaking               them." It  is further stated therein that there can  be  exceptions also.  From a perusal of the  above  text it appears  to  us clear that there is no prohibition from increasing the  Deva Dravya.  On the other hand it permits the increase  of  Deva Dravva  though  not by the methods  specifically  enumarated therein   Even  in  respect  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  insti- tution mentioned in s 30 of the Act.  We, think that such an argument is far fetched. 759 In  a similar case of the Jains, this Court had  in  Ratilal Panachand  Gandhi’s case (supra) upheld the validity of  the provisions  of ’the Bombay Act analogous to those  contained in  Chapters  V,  VI, and vII of  the  Act.   The  analogous provisions of s. 17(3) of the Act were somewhat different in the  Bombay  Act  and  consequently  the  High  Court  on  a consideration  of s. 17(3) held it to be invalid.  We  shall deal  with this aspect later.  It was, however, observed  in Ratilal panach and Gandhi’s case (supra) that the provisions relating  to registration undoubtedly have been made with  a view to ensure due supervision, of the trust properties  and the exercise of proper control over them, and that these are matters  relating  to administration of  trust  property  as contemplated  by Art. 26(d) of the Constitution and  cannot, by  any stretch of imagination, be held to be an attempt  at interference  with the rights of religious  institutions  to manage their own affairs it was further pointed out that the provisions  of the Bombay Act also cast a duty on  a  public

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trust  to  keep  accounts and to get  them  audited  and  to prepare  balance-sheet and to report irregularities, if  any which  certainly  were  not  matters  of  religion  and  the objections  raised  with  regard to the  validity  of  those provisions  seem to be a‘together baseless.  Section  35  of the  Bombay  Act which is similar to s. 30 of  the  Act  was upheld  on  the  ground  that  "It  is  a   well-established principle of law that trustees in charge of trust properties should  not  keep cash money in their hands  which  are  not necessary  for  immediate expenses; and a list  of  approved securities  upon  which  trust money could  be  invested  is invariably laid down in every legislation on the subject  of trust."  Section 36 of the Bombay Act which is analogous  to s.  31 of the Act was also considered to be salutary.  aimed it  protecting  the property of the trust.   Section  38  in Chapter  VIll requires that the Assistant Commissioner  when be  is satisfied that (a) the original object of the  public trust  has  failed,  (b) the trust  property  is  not  being properly  managed or administered; or (c) the  direction  of the court is necessary for the administration of the  public trust; may direct the working trustee or any other  trustees or person having interest in the trust to apply to the court for direction.  In case these persons fail to do so. he  may himself  make an application to the court.  When there is  a refusal   by  the  Assistant  Commissioner  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 760 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 before it.  The Court should be expected to  have regard  for  the rights of the parties and if any  of  their fundamental  rights  is infringed, they have  remedies  both under the law by an appeal or under the Constitution. The  High Court, as we have already noticed, struck down  S. 52,  (1)  (d) & (e) as the provisions of s. 53 did  not  lay down proper safeguards for leaving the administration of the properties in the hands of a denomination.  What we have now to  consider is whether this decision is justified.  It  is, therefore,  necessary to examine the relevant provisions  of ss. 52 and 53 of Chapter X of the Act which are as under :               "52.  (1)  The provisions  contained  in  this               Chapter shall apply to every public trust               (,a) which vests in the State Government, or               (b)   which  is maintained at the  expense  of               the State Government or               (c)   which  is managed directly by the  state               Government, or

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             (d)   which  is under the  superintendence  of               the Court of Wards, or               (e)   of which the gross annual income is  ten               thousand rupees or more.               "(2)  The State Government shall, as  soon  as               may be after the commencement of this Chapter,               publish in the official Gazette a list of  the               public  trusts to which this  Chapter  applies               and  may  by  like notification  and  in  like               manner add or vary such list."               "53.  (1)  As  from such  date  as  the  State               Government  may  appoint in  this  behalf  the               management  of  a public trust to  which  this               Chapter applies shall notwithstanding anything               contained  in any provision of this Act or  in               any law, custom or usage, vest in a  Committee               of  management to be constituted by the  State               Government in the manner hereinafter  provided               and the State Government may appoint different               dates  for  different public  trusts  for  the               purpose of this section.  (2) x     x    x  (3) x     x    x  (4)  A Committee of management shall  consist               of a Chairman and such even number of  members               not exceeding ten and not less than two as the               State Government may determine.               761               (5)   The Chairman and members of a  Committee               of management shall be appointed by the  State               Government  by  notification in  the  official               Gazette from amongst               (a)   trustees  of public trusts  representing               the same religion or persuasion and having the               same objects, and               (b)   persons interested in such Public trusts               or  in the endowments thereof or belonging  to               the  denomination for the purpose of which  or               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 Rs. 10,000/  or more. It  is  alleged that Nakodaji Parasnath temple is  a  public trust  of which the gross annual income exceeds Rs.  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 intends to apply  the provisions  of Chapter X of the Act to the said  temple,  to include it in the list of public trusts published under sub- s.  (2)  of  s.  52 in the  official  Gazette.   Section  53

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postulates   the  application  of  Chapter  X   before   the management of the temple can be said to vest in a  Committee of  management to be constituted by the State Government  in the  manner provided in that section.  Until a  notification is  published  under  sub-s. (2) of s.  52  the  respondents cannot  claim that their rights are affected.   The  learned Advocate for the respondents. however, submits that when  it is  apprehended that the Act may be made applicable  to  the Nakodaji  Parasnath  temple, the,  denomination  or  persons interested  in that temple could challenge the vires of  the Act  or  of any of its provisions.  Even assuming  that  the provisions of Chapter X are made applicable to the temple or to other similar religious trusts, though these have not yet been  made  applicable,  the question will  be  whether  the provisions of sub-s. (5) of s. 53 empower the Government  to take  away from a religious denomination the  management  of that  public  religious trust not already vested in  it,  as specified in clauses (a) to (d) of sub-s. (1) of s. 52,  and vest  it  in a Committee to be constituted under  that  sub- section  and  whether  such  vesting  would  contravene  the fundamental  rights guaranteed under clauses (b) and (d)  of Art. 26. 762 We  have  already referred to the decisions  of  this  Court which deal with matters to which clauses (b) and (d) of Art. 26  apply.   It was pointed out in those  cases  that  under clause   (d)  of  Art.  26  a  religious  denomination   has undoubtedly a right to administer its properties but only in accordance with law.  While the State has power to  regulate the  administration  of trust properties, it cannot  by  law take   away  the  right  to  administer   those   properties altogether and to vest it in any other authority which  does not  comprise  that  denomination.   To do  so  would  be  a violation  of  the right guaranteed under that  clause.   We have also noticed that the administration of the property of the  denomination is obviously outside the scope  of  clause (b)  because that clause only relates to affairs in  matters of  religion such as the performance of the religious  rites or  ceremonies or the observance of religious festivals  and the like and does not at all refer to the administration  of the  property which 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 the suggestions so received along with his comments, to  the State  Government  through  the  Commissioner.   The   State Government  may thereafter vest the management of  a  public religious trust under sub-s. (1) of s. 53 in a Committee  so

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appointed  under  sub-s. (5) of that section.   We  are  not relying on this rule for testing the constitutionality of s. 53(5). It  is  contended on behalf of the State of  Rajasthan  that clauses  (a)  and  (b) of sub-s. (5) of s. 53  may  be  read reasonably  in such a way as to presume their validity,  for as  these provisions are applicable to trusts  of  different hues,   the  Government  will  be  expected  to   call   for suggestions  from those denominations who may represent  the religion  to  which the public trust  belongs  from  persons interested  in a public trust or endowment belonging to  the denomination,  and only after considering their wishes  that the  Chairman  and  the members of the  Committee  would  be appointed.  It is apparent that s. 53 makes it obligatory to appoint  the  Chairman  and members of  the  Committee  from amongst-(a) trustees of public trusts representing the  same religion or persuasion and having the same objects, and  (b) persons   interested  in  such  public  trusts  or  in   the endowments thereof or be 763 longing to the denomination for the purpose of which or  for the benefit of whom the trust was founded.  These provisions enable  the  Government to appoint two sets  of  persons  as Chairman  and  members  of the Committee,  namely,  one  set representing  trustees  of public trusts  of  the  concerned religion  or  persuasion  and having the  same  object,  the second set is of persons interested in such public trusts or in   the  endowments  thereof,  persons  belonging  to   the denomination for the purpose of which and for the benefit of whom the trust was founded.  The High Court thought that  if the State Government appoints persons of the first  category or  second category they may not necessarily be of the  same denomination  which manages the trust.  According to  it  is only  the persons in the second category who may be  of  the same  denomination.   It  was observed that  since  Art.  26 contemplates  not only a denomination but a section  of  the denomination.,  the trustees of a public trust  representing the  same  religion may not necessarily be members  of  that section  of the denomination managing the property  even  if such public trust has the same object as that of the  public trust  the 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  also a Committee can be appointed from persons  of the denomination to which the trust belongs as in the second category with this difference that in the first category  if the  State  Government chooses, it can appoint it  from  the

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trustees. representing that denomination or persuasion while in the third category from amongst the persons who belong to the  said denomination who may not be trustees as such.   It is significant to note that ’persons interested’ falling  in the second category have been defined by sub-s. (19) of s. 2 as including for the purposes of temples and maths in clause (a)  and (b) namely; (a) in the case of a temple,  a  person who  is entitled to attend or is in the habit  of  attending the  performance of worship or service in the temple or  who is entitled to partaking or is in the habit of partaking  in the  distribution  of gifts thereof, (b) in the  case  of  a math,  a disciple of the math or a person of  the  religious persuasion to which the math belongs".  Even where 764 the  persons interested satisfy the above  requirements  the additional  requirement of clause (b) of sub-s.(5) of s.  53 is that such persons must be also persons for whose  benefit the  trust was founded.  A reading of clause (a)  of  sub-s. (5)  clearly indicates that the trustees must represent  the concerned   religion   or  persuasion,  which   includes   a denomination.   It  could  not have been  the  intention  to appoint  a Committee of management comprising trustees of  a public  trust of a particular religion or persuasion who  do not  belong to that religion or persuasion or  denomination. Nor  does clause (b) of sub-s. (5) of s. 53 empower  persons who  do  not belong to a denomination to be appointed  to  a public   trust  of  that  denomination.   Again   the   word "denomination"  is wide enough to include sections  thereof, and it cannot therefore be said, as the High Court seems  to assume,  that  a section of the  denomination  managing  the property  may not be the same as trustees of  public  trusts representing  the, same religion, even if the  public  trust has the same object as that of the public trust the  manage- ment of which is being transferred to the Committee.  If  s. 5  3  (5) (a) is read in the manner suggested by us,  as  it should  be, the difficulties pointed out by the  High  Court would not arise at all. It  appears  to  us,  therefore,  that  merely  because  the provisions  of sub-s. (5) of s. 53 enable the Government  to 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 appointment struck down.  In this view clause (e) of  sub-s. (.1)  of s. 52 read with sub-s. (5) of s. 53 as  interpreted by us cannot be held to be invalid. Lastly we will consider the validity of sub-s. (3) of s.  17 which  provides  that an application to be  presented  under

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sub-s.  (1)  of that section "shall be accompanied  by  such fee,  if any, not exceeding five rupees. and to be  utilised for  such  purposes. as may be prescribed" Rule  18  of  the Rules specifies the rates of fee payable on different values of  the  trust  property  enumerated  therein.  and  further provides that the fee shall be credited to the  Consolidated Fund  of the State.  The High Court seems to  have  accepted the contention of the learned 765 Advocate for the petitioners that for the levy to be a  fee, there  must  at  least be a provision  that  the  amount  so collected  should not be paid into the Consolidated Fund  of the  State  or should state that it  should  be  utilization separately for the upkeep of the machinery for  registration and since the Act does not specify for what purpose the  fee would be, utilised and has left it to the, State  Government to denote the purposes in the Rules sub-s. (3) of S. 17 does not  levy a fee but a tax, which the State  Legislature  has not  the  power  under  List if  of  Schedule  VII  to.  the Constitution to levy. Under the Constitution a distinction has been made between a tax and a fee and in each of the legislative lists power has been given for levy of various forms of taxes.  There is  an entry in each of the three lists as regards fees which could be levied in respect of any of the matters dealt with in the list.  As was observed by Latham, C.J. of the High Court  of Australia in Matthews v. Chicory Marketing Board(1): "A  tax is  a compulsory exaction of money by public  authority  for public  purposes enforceable by law and is not  payment  for services  rendered".   These observations were  approved  by this Court in Sri Lakshmindra Thirtha Swamiar of Sri  Shirar Mutt’s  case, (supra) where Mukherjea, J., as he  then  was, said  that  the  essence  of  taxation  is  compulsion   and imposition made for public purpose without reference to  any special  benefit  to be conferred on the payer of  the  tax. that is to say, that the levy of tax is for the purposes  of general  revenue,  which when collected forms  part  of  the public  revenues of the State.  A fee on the other  hand  is payment  for  a  special  benefit  or  privilege  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".  But as there was total absence of  any co-relation between the expenses incurred by the  Government and the amount raised by contribution under the provision of s.  76.  it  was observed that the theory  of  a  return  or counter-payment or quid pro quo could not have any  possible application  to that case.  Thus case was considered in  The

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Secretary,  Government of Madras, Home Department &  Another v. Zenith Lamp & Electrical Ltd. (2) by 60  C.L.R.  263, 276. (2) C.A. No. 293 of  1967  decided  on November. 11, 1972. 766 the,  Constitution Bench of this Court, of which one  of  us (Dwivedi,  J.) was a party.  Sikri, C.J., referring  to  the observations  of Mukherjea, J., in Sri  Lakshmindra  Thirtha Swamiar  of  Shri Shirur Mutt’s case (supra) that  the  fact collections went to the Consolidated Fund was not in  itself conclusive thought that not much stress can be laid on  this point,  because Art. 266 of the Constitution  requires  that all  revenues  raised by the State shall form  part  of  the Consolidated  Fund.  He considered the observations  of  the Privy  Council in Attorney-General for British  Columbia  v. Esquimalt   and   Nanimo  Railway  Company   Others(1)   and distinguished it, because the Privy Council did not have  to deal with fees and taxes but interpreted the word "taxation" in s. 22 of the Act therein considered, to mean a compulsory levy  by  the  State.  Whether it was fee  or  tax  did  not matter.   The  only question was whether it  was  compulsory levy, In the Zenith Lamp & Electrical Ltd’s case (supra)  it was  found that there was not enough material  to  determine whether  the fees taken in Courts under Entry No. 3 of  list II  of Schedule VII to the Constitution were taxes  or  fees namely,  whether  the State was making a profit out  of  the administration  of civil justice or whether the  amounts  so collected  from those fees were spent on the  administration of civil justice.  In that view the case was remanded to the High  Court to decide whether the impugned fees  were  court fees or taxes on litigants or litigation. The  case  of the State, in this case is that the fee  is  a sort of contribution levied on public trusts towards meeting the  expenses incurred by the State Government in  rendering services  to  the public trusts through the  agency  of  the Devasthan  Department  and  that  according  to  the  budget provision  for  the  year 1964-65  the  expenditure  on  the Devasthan  Department  was  Rs. 2,76,715/-  as  against  the income  of  only  Rs. 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 were public trusts and the  petitioner  averred were his private property  was  not agitated  before the High Court, as the petitioner was  then content  to have the matter disposed of. in accordance  with the (1)  I.L.R. 43 Bom. 507 767

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decision in the Writ Petition which is the subject matter of the  second  set  of appeals.  It was open to  him  to  have invited  the  High Court to give a finding on  the  question whether the two temples were his private property but  since he  has  not done so the question cannot be gone  into  this appeal.   The  appropriate  authority  under  the  Act  will however  decide  this question before applying  the  Act  to these temples. In  the  result the appeals of the State are  allowed.   The direction given in the Writ Petition No. 50 of 1962, out  of which Appeal No. 1083 of 1967 arises, that Rikhabdevji is  a Swetamber  temple  and that the State  of  Rajasthan  should constitute a Committee for its management as provided  under the  Act  is set aside.  In this appeal as also  in  appeals Nos.  1119 and 1647 of 1967, the decision of the High  Court that  s.  17(3)  and  s. 52(1) (d)  and  (e)  are  void  and unconstitutional  is also set aside.  Appeals Nos. 1092  and 1087  of  1967  filed  by  the  respective  respondents  are dismissed.   In the circumstances, each party will bear  its own costs. P.B.R. Appeals  No. 1092 and 1087 of 1967 dismissed. Appeals Nos. 1119 and 1647 of 1967 allowed. 9-L 748 Sup CI/74 768