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PETITIONER: RAJA BIRAKISHORE

       Vs.

RESPONDENT: THE STATE OF ORISSA

DATE OF JUDGMENT: 05/03/1964

BENCH: WANCHOO, K.N. BENCH: WANCHOO, K.N. GAJENDRAGADKAR, P.B. (CJ) SHAH, J.C. AYYANGAR, N. RAJAGOPALA SIKRI, S.M.

CITATION:  1964 AIR 1501            1964 SCR  (7)  32  CITATOR INFO :  R          1971 SC 891  (11,12)  RF         1983 SC   1  (168)

ACT: Fundamental  rights-Interference with religious  affairs  of Temple-Constitution of India, Art.  31(2)-Applicability-Shri Jagannath Temple Act, 1954 (No.  11 of 1955), ss. 8, 11, 18, 21, 21A and 30-Validity-Constitution of India, Arts. 13, 19, 26(d), 27 and 28.

HEADNOTE: A  writ petition was filed in the Orissa, High Court by  the father  of  the appellant challenging the validity  of  Shri Jagannath  Temple Act, 1954.  The petition was dismissed  by High   Court  which  held  that  the  Act  was   valid   and constitutional  except s. 28(2)(f).  The High  Court  struck down that provision and upheld the constitutionality of  the rest  of  the Act.  The appellant came to this  Court  after obtaining  a  certificate of fitness to  appeal  to  Supreme Court. The  contentions raised before this Court were that the  Act was  discriminatory as the Jagannath Temple alone  had  been -singled  out  for special treatment as  compared  to  other temples in the State of Orissa.  The Act took away the  sole management of the Temple which had so far been vested in the appellant or his ancestors.  S. 15 (1) of the Act interfered with  the religious affairs of the temple.  The validity  of ss.  11,  19, 21, 21A and 30 of the Act was  also  attacked. Dismissing the appeal, Held:     There   is  no  violation  of  Art.  14   of   the Constitution.   The  Jagannath  Temple  occupies  a   unique position in the State of Orissa, and is a temple of national importance  and  no other temple in that State  can  compare with it.  It stands in a class by itself and considering the fact that it attracts pilgrims from all over India in  large numbers, it could be the subject of special consideration by the  State  Government.  A law may  be  constitutional  even though  it related to a single individual if on  account  of special  circumstances or reasons applicable to him and  not

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applicable to others, that single individual may be  treated as a class by himself. (ii) There was no violation of Art. 19(1) (f) or Art. 31 (2) of  the Constitution.  All that the Act has done is that  it has taken away the sole right of the appellant to manage the property  of the Temple and another body has been set up  in its  place  with  the appellant as  its  Chairman.   Such  a process cannot be said to constitute the acquisition of  the extinguished  office or of the vesting of the rights in  the person  holding that office.  The appellant occupied a  dual position as Superintendent and Adya Sevak.  His position  as Superintendent hers gone and in that place he has become the Chairman of the Committee set up under s. 6. The position of the  applicant as Adya Sevak is safeguarded by s. 8  of  the Act  inasmuch  as the rights and privileges  in  respect  of Gajapati  Maharaja  Seva axe protected even  though  he  may cease  to  be  Chairman on account of  his  minority  or  on account of some other reason. (iii)     S.  15(1) of the Act does not interfere  with  the religious,  affairs of the Temple.  Sevapuja of  the  Temple has  two aspects.  One aspect is the provision of  materials and that is a secular, 33 function.  The  second  aspect is  the  performance  of  the Sevapuja and other rights as required by religion.  S. 15(1) has  nothing  to  do with the second  aspect  which  is  the religious aspect of Seva- -Raj puja.  While s. 15(1) imposes a duty on the committee to look after the secular aspect  of the Sevapuja, it leave the religious part entirely untouched. (iv)  Ss. 11, 19 and 21 were valid provisions and could  not be attacked ss. 5 and 6 constituting the committee in  place of the Raja, were valid.  Ss. 21A and 30 were also valid. Arts.  27  and. 28 had nothing to do with the  matter  dealt with  under Act.  It was not open to the appellant to  argue that the Act was bad as it was hit by Art. 26(d).  No  -such contention was _properly raised in the High Court. Tilkayat,  Shri Govindlal ji v. State of  Rajasthan,  A.I.R. (1963) S.C. 1638, referred to.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 135 of 1962. Appeal from the judgment and order dated April 30, 1958,  of the Orissa High Court in O.J.C. No. 321 of 1955. M.   C.  Setalvad, Sarjoo Prasad and A. D. Mathur,  for  the appellant. S.   V. Gupta, Additional Solicitor-General, M. S. K. Sastri and R. N. Sachthey, for the respondent. March 5, 1964.  The Judgment of the Court was delivered by- WANCHOO,  J.--This  appeal on a certificate granted  by  the Orissa  High  Court  raises the question  of  the  constitu- tionality of the Shri Jagannath Temple Act, 1954, No. 11  of 1955,  (hereinafter referred to as the Act).  The  challenge to  the Act was made by the father of the present  appellant by  a writ petition filed in the High Court of Orissa.   The appellant was substituted for his father on the death of the latter  while  the  writ petition was pending  in  the  High Court.   The  case put forward in the petition  firstly  was that  the Shri Jagannath Temple (hereinafter referred to  as the Temple) was the private property of the petitioner, Raja of  Puri, and the Act, which deprived the appellant  of  his property  was  unconstitutional in view of Art.  19  of  the Constitution.  In the alternative it was submitted that  the

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appellant   had  the  sole  right  of  superintendence   and management  of the Temple and that that right could  not  be taken  away  without payment of compensation,  and  the  Act inasmuch as it took away that right without any compensation was  hit  by Art. 31 of the Constitution.   It  was  further pleaded  that  the  right of  superintendence  was  property within  the meaning of Art. 19 (1) (f) and inasmuch  as  the appellant had been deprived of that property by the Act,  it was an unreasonable provision which was not L/P(D)1SCI-2 ... 34 saved under Art. 19(5). The Act was further attacked on  the ground that it was  was discriminatory and was therefore hit by  Art.  14  of the Constitution, as the  Temple  had  been singled  out  for special legislation, though  there  was  a general  law  in  force  with  respect  to  Hindu  religious endowments,  namely, the Orissa Hindu  Religious  Endowments Act No. 11 of 1952.  Reliance was placed on Arts. 26, 27 and 28  of  the Constitution to invalidate the Act,  though  the appellant  did  not  indicate  in  the  petition  how  those Articles  hit  the  Act.   Lastly, it  was  urged  that  the utilisation  of the Temple funds for purposes alien  to  the interest of the deity as proposed under the Act was  illegal and ultra vires. The  petition was opposed on behalf of the State and it  was urged  that the Temple was not the private property  of  the appellant.   The case of the State was that it was a  public temple and the State always had the right to see that it was properly administered.  Before the British conquered  Orissa in  1803,  the Temple had for a long time  been  managed  by Muslim  Rulers  directly, though  through  Hindu  employees. After  1803, the Temple began to be managed directly by  the British  Government,  though by Regulation IV  of  1809  the management  was made over to the Raja of Khurda (who is  now known as the Raja of Puri), who was appointed as  hereditary superintendent  in  view of his family’s connection  in  the past   with  the  Temple.   Even  so,  whenever  there   was mismanagement  in the Temple during the course of  the  last century  and  a half, the Government always  intervened  and many  a time administered the secular affairs of the  Temple directly  through  one of its officers in whose  favour  the then Raja was made to execute a power of attorney  divesting himself completely of all powers of management.  The case of the  State  further  was  that  in  view  of  the   reported mismanagement  of the Temple, the State  legislature  passed the  Puri Shri Jagannath Temple (Administration)  Act,  (No. XIV  of 1952) for the appointment of a Special  Officer  for the  preparation  of a record pertaining to the  rights  and duties  of  different  sevaks and  pujaris  and  such  other persons  connected with the seva, puja or management of  the Temple and its endowments in order to put the administration of  the Temple on a suitable basis.  A Special  Officer  was accordingly appointed who submitted his report on March  15, 1954,  which disclosed serious mismanagement of the  affairs of the Temple and in consequence the Act was passed in 1955. The  State  contended that the Act was perfectly  valid  and constitutional   and  did  not  offend  any   constitutional provision. When the matter came to be argued before the High Court, the appellant  gave up the plea that the Temple was his  private property  and it was conceded that it was a  public  temple, the properties of which were the properties of the deity 35 and not the private properties of the Raja of Puri.  In view of  this concession, the attack on the constitutionality  of

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the  Act  was based mainly on the ground that it  took  away the,  Raja’s perquisites which had been found to  belong  to him in the record of rights prepared under the Act of  1952. It  may  be  mentioned that the Raja of  Puri  had  two-fold connection with the Temple.  In the first place, the Raja is the adya sevak, i.e., the chief servant of the Temple and in that  capacity  he has certain rights  and  privileges.   In addition  to  that, he was the sole  superintendent  of  the Temple  and  was incharge of the management of  the  secular affairs of the Temple.  The main contention of the appellant before  the High Court was that the Act not only  took  away the management of the secular affairs of the Temple from the appellant but also interfered with his rights as adya  sevak and was therefore unconstitutional.  The High Court repelled all  the  submissions ,on behalf of the appellant  and  held that  the  Act was valid and constitutional except  for  one provision contained in s. 28(2)(f) thereof.  The High  Court therefore   struck  down  that  provision  and  upheld   the constitutionality  of  the rest of the Act.   Thereupon  the appellant  applied for a certificate which was granted;  and that is how the appeal has come up before us. Before  we consider the attack on the  constitutionality  of the  Act we should like to indicate briefly what the  scheme ,of  the  Act is and what it provides with  respect  to  the management  of  the  Temple.  Section  I  provides  for  its commencement.   Section  2  provides  for  certain  repeals. Section 3 provides that the Orissa Act XIV of 1952 shall  be deemed  to  be  a  part of the  Act  and  delegates  to  the committee  constituted under s. 6 of the Act all  powers  of the  State Government under the 1952-Act from such  date  as the   State  Government  may  notify.   Section  4  is   the definition section.  Section 5 vests the administration  and the  governance  of  the  Temple and  its  endowments  in  a committee   called  the  Shri  Jagannath   Temple   Managing Committee.  The Committee shall be a body corporate,  having perpetual  succession and a common seal and may by the  said name   sue  and  be  sued.   Section  6  provides  for   the constitution  of the committee with the Raja of Puri as  its chairman.  No person who does not profess the Hindu religion shall  be  eligible for membership.  Besides  providing  for some ex officio members, the other members of the  committee are  all nominated by the State Government, one  from  among the persons entitled to sit on the mukti-mandap, three  from among  the  sevaks  of the Temple recorded as  such  in  the record  of  rights, and seven from among those  who  do  not belong to the above two classes. 36 The  Collector  of  the district of Puri is  an  ex  officio member  and  is  designated  as  the  vice-chairman  of  the committee.   Section  7 provides for the  appointment  of  a chairman  during the minority of the Raja of Puri or  during the  time  when  the  Raja is  suffering  from  any  of  the disabilities  mentioned in s. 10(1) clauses (a) to  (e)  and (g) thereof.  Section 8 lays down that nothing in s. 7 shall be deemed to affect the rights and privileges of the Raja of Puri  in respect of the Gajapati Maharaj Seva merely on  the ground that the Raja has ceased to perform the duties of the chairman  for  the time being.  Section 9 provides  for  the terms  of  office of members and s. IO gives  power  to  the State Government to remove any member of the committee other than the ex officio members on the -rounds specified in cls. (a)  to  (g)  thereof.  No member can be  removed  from  his membership unless he has been given a reasonable opportunity of  showing cause against his removal.  Section 11  provides for dissolution and supersession of the committee in certain

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contingencies,  such as incompetence to perform  the  duties imposed  upon  it  by’  the Act ’or  making  of  default  in performing   such  duties.   The  committee  is   given   an opportunity to show cause against any such action before  it is   taken,  and  provision  is  made  for  continuing   the management  during the time the committee is  superseded  or has   been  dissolved.   Section  12  provides  for   casual vacancies, s. 13 for the meetings of the committee and s. 14 for allowances to the members of the committee payable  from the  Temple fund, but no member of the committee other  than the  administrator  is to be paid any salary  or  other  re- muneration  from the Temple fund except such travelling  and daily allowances as may be prescribed.  Section 15  provides for the duties of the committee and it may be quoted in full as it is the main target of attack: -               "  15.  Subject to the provisions of this  Act               and the rules               made  thereunder, it shall be the duty of  the               Committee--               (1)   to arrange for the proper performance of               sevapujah  and  of the  daily  and  periodical               Nitis  of  the Temple in accordance  with  the               Record-of-Rights;               (2)   to  provide  facilities for  the  proper               performance of worship by the pilgrims;               (3)   to ensure the safe custody of the funds,               valuable  securities and jewelleries  and  for               the   preservation  and  management   of   the               properties vested in the Temple;               (4)   to  ensure  maintenance  of  order   and               discipline  and proper hygienic conditions  in               the   Temple   and  of  proper   standard   of               cleanliness  and purity in the offerings  made               therein;               37               (5)   to ensure that funds of the specific and                             religious endowments are spent accordi ng to the               wishes, so far as may be known, of the donors;               (6)   to  make  provision for the  payment  of               suitable emoluments to its salaried staff; and               (7)   to   do  all  such  things  as  may   be               incidental  and  conducive  to  the  efficient               management  of the affairs of the  Temple  and               its  endowments  and the  convenience  of  the               pilgrims." Section  16  provides  a ban on  the  alienation  of  Temple properties  subject to certain conditions.  Section 17  lays down that the committee shall have no power to borrow  money from  any  person except with the previous sanction  of  the State  Government.   Section  18  provides  for  an   annual administration  report  to be submitted to  the  Government. Section  18-A  gives power to the committee with  the  prior approval  of the State Government to delegate its  functions to the Collector of the district or, as the case may be,  to the  officer who happens to be a member of the committee  in place  of  such Collector.  Section  9 gives  power  to  the State Government to appoint an administrator for the Temple. Section 20 provides for the qualifications and conditions of service  of the administrator and s. 21 for the  powers  and duties  of the administrator.  As this section is  specially attacked we quote it here in full.               "S.21.   (1)   The  Administrator   shall   be               Secretary  of  the  Committee  and  its  chief               executive  officer  and shall subject  to  the

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             control of the committee have powers to  carry               out  its  decision  in  accordance  with   the               provisions of this act.               (2)   Notwithstanding anything in  sub-section               (1)  or in section 5, the Administrator  shall               be responsible for the custody of all  records               and  properties  of  the  Temple,  and   shall               arrange  for proper collections  of  offerings               made in the Temple and shall have power-               (a)   to appoint all officers and employees of               the Temple;               (b)   to lease out for a period not  exceeding               one year at a time the lands and buildings  of               the Temple which are ordinarily leased out-,               (c)   to   call  for  tenders  for  works   or               supplies  and  accept such  tenders  when  the               amount  or value thereof does not  exceed  two               thousand rupees;               (d)   to order for emergency repairs;               (e)   to   specify,  by  general  or   special               orders,  such conditions and safeguards as  he               deems fit, subject to which any sevak, office-               holder or servant               38               shall  have the right to be in  possession  of                             jewels  or  other valuable  belongings   of  the               temple;               (f)   to  decide  disputes  relating  to   the               collection,  distribution or apportionment  of               offerings, fees and other receipts in cash  or               in  kind  received  from the  members  of  the               public;               (g)   to  decide  disputes  relating  to   the               rights, privileges, duties and obligations  of               sevaks, office-holders and servants in respect               of  sevapuja  and nitis, whether  ordinary  or               special in nature;               (h)   to  require  various  sevaks  and  other               persons to do their legitimate duties in  time               in accordance with the Record-of-Rights; and               (i)   in  the  absence  of any  sevak  or  his               substitutes  or on the failure on the part  of               any such person to perform his duties, to  get               the niti or seva performed in accordance  with               the record-ofrights by any other person.               (3)   The  administrator may subject  to  such               conditions,  if any, as the committee may,  by               general   or  special  order  impose,   afford               facilities  on  payment of  fees  for  special               darshan or for any special service, ritual  or               ceremony,  such  darshan, service,  ritual  or               ceremony  not  being  inconsistent  with   the               custom  and usage of the Temple and  he  shall               have  power to determine the portion, if  any,               of  such  fees  which shall  be  paid  to  the               sevaks,  office-holders  or  servants  of  the               Temple." Section  21-A provides that all sevaks,  office-holders  and servants attached to the Temple or in receipt of any  emolu- ments  or perquisites therefrom shall, whether such  service is  hereditary  or  not, be subject to the  control  of  the administrator who may, subject to the provisions of the  Act and  the regulations made by the committee in  that  behalf, after  giving the person concerned a reasonable  opportunity

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of  being  heard  withhold  the  receipt  of  emoluments  or perquisites,  impose a fine, suspend or dismiss any of  them for  breach  of trust, incapacity,  disobedience  of  lawful orders,  neglect of or wilful absence from duty,  disorderly behaviour or conduct derogatory to the discipline or dignity of the temple or for any other sufficient cause: Section  22 provides  for extraordinary powers of the administrator  who is directed to take action in emergency and report forthwith to the committee the action taken and the reasons  therefor. Section 23 provides for the establishment schedule and s. 24 provides for an appeal to, the committee against an order of the  administrator  under s. 21 (2)(f) or (g)  or  s.  21-A. Sections  25  to, 27 provide for the preparation  of  annual budget and audit.  Section 28 provides for a Temple fund and how it is to be utilised.  Section 29 bars suits against 39 the  State  Government  or  against  the  committee  or  the administrator  for anything done or purported to be done  by any  of them  under the provisions of the Act.   Section  30 gives power of general superintendence of the Temple and its endowments to the State Government which may pass any orders for  the proper maintenance or administration of the  Temple or  its endowments or in the interest of the general  public worshipping in the Temple.  It also gives power to the State Government to examine the records of the administrator or of the  committee in respect of any proceedings with a view  to satisfy  itself as to the regularity of such  proceeding  or the  correctness, legality or propriety of any  decision  or order  made  therein; and if in any case it appears  to  the State  Government that any such decision or order should  be modified,    annulled,    reversed    or    remitted,    for reconsideration, it may pass orders accordingly.  The  State Government is also given the power to stay the execution  of any  such decision or order in the meantime.   Section  30-A creates  an offence which is punishable on  conviction  with fine which may extend to Rs. 500 whenever any person  having duties  to perform in respect of the nitis of the Temple  or sevapuja of the deity raises any claim or dispute and  fails or refuses to perform such duties, knowing or having reasons to believe that the non-performance of the said duties would cause  delay in the performance of the niti or  sevapuja  or inconvenience  or  harassment to the public or  any  section thereof  entitled  to  worship in the  Temple  and  wilfully disobeys  or  fails  to  comply  with  the  orders  of   the administrator  directing him to perform his  duties  without prejudice  to the results of a proper adjudication  of  such claim  or dispute.  Section 31 gives power to the  committee to  frame  regulations as to the conditions  of  service  of office  bearers and employees of the Temple,  procedure  for transfer  of  sevapuja,  chuli  or  panti  in  the   Temple, observance  of nitis and other usages in the Temple  in  the absence of specific mention in the record of rights; and any other matters for which regulations are required to be  made for the purposes of the Act.  Section 32 gives power to  the State Government to frame rules.  Section 33 lays down  that "the  committee  shall  be  entitled  to  take  and  be   in possession   of  all  movable  and   immovable   properties, including  the Ratna Bhandar and funds and jewelleries,  re- cords,  documents and other assets belonging to the  Temple" and  also lays down the procedure to be followed in case  of resistance  in obtaining such possession.  Section  34  lays down that "all public officers having custody of any record, register,  report or other documents relating to the  Temple or  any movable or immovable property thereof shall  furnish such copies of or extracts from the same as may be  required

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by the administrator".  Section 35 lays down that "no act or proceeding  of  the committee or of any person acting  as  a member  of  the committee shall be deemed to be  invalid  by reason only 40 of  a  defect in the establishment or  constitution  of  the commitee  or on the ground that any member of the  committee was  not  entitled  to hold or continue in  such  office  by reason   of  any  disqualification  or  by  reason  of   any irregularity  or illegality in his appointment or by  reason of such act having been done or proceeding taken during  the period  of  any  vacancy  in the office  of  member  of  the committee."  Similar  protection  is  given  to  an  act  or proceeding  of the administrator.  Section 36  provides  for the removal of difficulties by the State Government so  long as the order passed in that behalf is not inconsistent  with the Act or the rules made thereunder. This review of the provisions of the Act shows that  broadly speaking the Act provides for the management of the  secular affairs  of  the  Temple and does not  interfere,  with  the religious  affairs  thereof,  which  have  to  be  performed according to the record of rights prepared under the Act  of 1952  and  where  there  is no  such  record  of  rights  in accordance  with custom and usage obtaining in  the  Temple. It is in this background that we have to consider the attack on  the constitutionality of the Act.  We may first  dispose of  the attack based on Art. 14.  It is urged that  inasmuch as this special Act has been passed for this Temple and  the general  Act, namely, the Orissa Hindu Religious  Endowments Act  No. 11 of 1952 no longer applies to this Temple,  there has  been  discrimination inasmuch as the  Temple  has  been singled  out  for  special treatment as  compared  to  other temples in the State of Orissa.  There is no doubt that  the Act  is in many respects different from Act 11 of  1952  and substitutes  the  committee  for the Raja of  Puri  for  the purpose  of management of the Temple, and there would  prima facie  be  discrimination unless it can be  shown  that  the Temple  stands  in a class by itself  and  required  special treatment.  As to that the affidavit on behalf of the  State Government is that the Temple is a unique institution in the State  of Orissa and is in a class by itself and that  there is no comparison between the Temple and other temples in the State.   The  averment on behalf of the State  is  that  the Temple  has been treated as a special object throughout  the centuries because of its unique importance and that there is no  other temple which occupies the unique place which  this Temple  occupies  in the whole of India.  Also there  is  no other  temple  in  Orissa with such  vast  assets  or  which attracts such a large number of pilgrims which pour into  it from  the  whole of India.  It is also averred  that  it  is absolutely incorrect that there are other temples in  Orissa which are equal to it from the standpoint of assets or  from the  standpoint  of their all-India character  or  from  the standpoint  of the complicated nature of nitis and  sevapuja affecting  the lives, religious susceptibilities and  senti- ments  of millions of people spread all over  India.   There can  be no doubt after this averment on behalf of the  State that  the Temple occupies a unique position in the State  of Orissa and 41 is  a temple of national importance and no other  temple  in that  State can compare with it stands in a class by  itself and considering the fact that it attracts pilgrims from  all over India in large numbers it must be a subject of  special consideration  by the State Government.  In reply  to  these

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averments  on  behalf of the State, all that  the  appellant stated  in his rejoinder was that these averments  were  not admitted.  There was no denial of the special importance  of the Temple as averred on behalf of the State and we have  no doubt therefore that this Temple stands in a class by itself in  the  State  of Orissa  and  therefore  requires  special treatment.  We may in this connection refer to the  decision of  the  Court  in Tilkayat Shri  Govindlalji  v.  State  of Rajasthan(1)  where in relation to the temple  at  Nathdwara with  respect to which a special Act had been passed by  the State  of Rajasthan, this Court observed that "a law may  be constitutional even though it relates to a single individual if,  on  account of some special  circumstances  or  reasons applicable to him and not applicable to others, that  single individual  may  be  treated as a class  by  himself".   The attack  under  Art. 14 on the constitutionality of  the  law with respect to the temple at Nathdwara was repelled on  the ground  that the temple had a, unique position  amongst  the Hindu Shrines in the State of Rajasthan and no temple  could be regarded as comparable with it.  The same reasons in  our opinion apply to the Temple in the present case and the  Act cannot  be struck down under Art. 14 because the  Temple  in the  present case holds a unique position amongst the  Hindu temples  in the State of Orissa and no other temple  can  be regarded as comparable with it. Next  we come to the attack on the constitutionality of  the Act on the ground that it has taken away the sole management of the temple which had so far been vested in the  appellant or his ancestors.  The reasons why the Act was passed are to be  found in the preamble thereof.  The preamble  says  that the ancient Temple of Lord Jagannath of Puri has ever  since its  inception  been an institution of unique  and  national importance, in which millions of Hindu devotees from regions far  and wide have reposed their faith and belief  and  have regarded  it as the epitome of their tradition and  culture. It  further  says that long prior to and after  the  British conquest the superintendence, control and management of  the affairs  of  the  Temple have been  the  direct  concern  of successive rulers, governments and their officers and of the public exchequer. it then says that by Regulation IV of 1809 and thereafter by other laws and regulations in pursuance of arrangements  entered into with the Raja. of  Khurda,  later designated  as  the Raja of Puri, the said Raja came  to  be entrusted hereditarily with the management of the affairs of the  Temple and its properties as superintendent subject  to the  control and supervision of the ruling power.   It  then goes on to say that in view of grave (1)  [1964] 1 S.C.R. 561. 42 and serious irregularities thereafter the Government had  to intervene  on  various occasions in the past.   Finally  the preamble   says   that   the   administration   under    the superintendent has further deteriorated and a situation  has arisen  rendering it expedient to reorganise the  scheme  of management  of the affairs of the Temple and its  properties and provide better administration and governance therefor in supersession   of   all  previous  laws,   regulations   and arrangements,  having  regard  to the  ancient  customs  and usages  and  the unique and traditional  nitis  and  rituals contained  in the record of rights prepared under  the  1952 Act.   So  for all these reasons the appellant  was  removed from the sole superintendence of the Temple and a  committee was appointed by s. 6 of the Act for its management.   These statements  in the preamble are not seriously in dispute  as will  be clear from the reports by G. Grome dated  June  10,

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1905 and by the Special Officer appointed under the 1952 Act dated  March  15, 1954 and the correspondence  which  passed from time to time between the officers of the Government and the  predecessors of the appellant.  In these  circumstances if the secular management of the Temple was taken away  from the sole control of the appellant and vested in a  committee of  which he still remains the chairman, it cannot  be  said that  the provisions contained in the Act for  that  purpose are hit either by Art. 31(2) or by Art. 19(f).  There is  in our  opinion a complete parallel between the  provisions  of the  Act and the Act relating to the temple at Nathdwara  in Rajasthan, which came up for consideration before this Court in Tilkayat Govindlalji’s case(1).  If anything, the case of the  appellant is weaker than that of Shri Govindlalji,  for the  appellant  in the present case was conferred  with  the power of superintendence by Regulation IV of 1809 after  the British  conquered  Orissa.   Whatever  may  have  been  his connection prior to 1809 with the Temple, the history of the Temple shows that the Muslim Rulers had removed him and were carrying  on the management of the Temple  directly  through Hindu  officers appointed by them.  The right of  management was conferred on the appellant’s ancestor after the  British conquest by virtue of the Regulation of 1809 and other  laws passed thereafter.  All that the Act has done is to  replace his  sole right of management by appointing a, committee  of which  he  is  the chairman.  Further there can  be  in  the circumstances  no question of the application of Art.  31(2) in  the  present  case.  In the first  place  the  right  of superintendence is not property in this case for it  carried no beneficial enjoyment of any property with it, and in  the second  case, that right has not been acquired by the  State which  Art. 31(2) requires.  As was pointed out in  Tilkayat Govindlalji’s case.(1), all that has happened in the present case is that the sole right of the appellant to (1) 1964 1 S.C.R. 561. 43 manage  the property has been extinguished and in its  place another  body for the purpose of the administration  of  the property of the Temple has been created.  In other words the office  of one functionary is brought to an end and  another functionary  has come into existence in its place.   Such  a process cannot be said to constitute the acquisition of  the extinguished  office  or the vesting of the  rights  in  the person  holding  that office:  (see  Tilkayat  Govindlalji’s case(1). As  we  have  already pointed out,  the  appellant  and  his predecessors always had two distinct rights with respect  to this Temple.  In the first place, they were the adya  sevaks and   as  such  had  certain  rights  and   privileges   and perquisites.   The  rights as adya sevak as  we  shall  show later  have not been touched by the Act.  The Act  has  only deprived  him of the second right i.e., the sole  management of  the Temple which carried no beneficial enjoyment of  any property  with  it and has conferred that  management  on  a committee  of which he still remains the chairman.  In  view of  this clear dichotomy in the rights of the appellant  and his predecessors there is no question of Art. 31(2) applying in  the  present  case  at all, insofar  as  this  right  of superintendence  of the appellant is concerned.  The  attack on  the constitutionality of the Act on the ground that  the sole  right of superintendence has been taken away from  the appellant  and  that is hit by Art. 19(1)(f) or  Art.  31(2) must therefore fail. This  brings  us to the other aspect of the  rights  of  the appellant  as adya sevak, and it is urged that those  rights

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have been taken away by the Act, and insofar as the Act  has done that it is unconstitutional in that the provisions with respect  to  those  rights are unreasonable  and  cannot  be protected under Art. 19(5).  Now we have already referred to the  provisions  of  the  Act, and if  one  looks  at  those provisions  one finds nothing in them which takes  away  the rights  of the appellant as adya sevak.  If anything,  there are  indications in the Act to show that his  rights,  other than  those of superintendence remain intact.  When  we  say this  we are not to be understood as saying that any  rights which  the appellant might have had in the capacity of  adya sevak but which were of the nature of secular management  of the Temple would still remain in him.  Because the appellant and  his  predecessors  were  holding  a  dual  position  of superintendent and adya sevak, there was in the past a  mix- up of his rights flowing from being an adya, sevak with  his rights as a superintendent.  But apart from the rights which vested in him as the sole manager of the Temple with respect to  its management and which have only been taken away  from him by the Act, we find nothing in the Act which takes  away his rights as an adya sevak (i.e. the chief servant) of Lord Jagannath  in  the  matter of sevapuja,  nitis  etc.   These rights flow from his position as adya sevak, they (1) [1964] 1 S.C.R. 561........ 44 are  religious in character and are referable to his  status and  obligations as sevak.  We may in this connection  refer to  s.  8 of the Act which lays down that nothing  in  s.  7 shall  be deemed to affect the rights and privileges of  the Raja  in  respect of Gajapati Maharaja Seva  merely  on  the ground that the Raja has ceased to perform the duties of the chairman  for the time being.  This provision clearly  shows that  even though the appellant may -not be able to  act  as chairman of the committee because of his minority or because of certain disqualifications mentioned in s. 7 read with  s. 10(1), his rights and privileges in respect of the  Gajapati Maharaja  Seva (i.e., the daily sevapuja of Lord  Jagannath) remain unaffected, and these were the rights which he had as adya  sevak.   Therefore  s. 8  preserves  by  the  clearest implication  the  rights of the appellant as adya  sevak  in connection  with  the sevapuja of Lord Jagannath.   In  this connection  our  attention was drawn to s. 14  of  the  Act, which  provides  that it shall be within the  power  of  the State  Government by order to direct from time to  time  the payment from out of the Temple fund to the chairman of  such allowances  at  times  and  in  such  manner  as  the  State Government  may consider reasonable and proper.  It is  said that in view of s. 14, the appellants rights and  privileges as  adya, sevak have gone.  We are of opinion that  this  is not  so.   As  we have already said,  the  position  of  the superintendent   and  of  adya  sevak  were  two   different positions, which the appellant and his predecessors held  in this Temple.  His position as a Superintendent has gone  and in  place of it he has become the chairman of the  committee constituted  under s. 6. When s. 14 speaks of allowances  to him, it refers to his position as a chairman, which replaces his  position  as  superintendent before the  Act.   It  has nothing  to do with his position as an adva sevak, which  is safeguarded  by  s.  8 of the Act  inasmuch  as  rights  and privileges  in  respect of the Gajapati  Maharaja  Seva  are protected,  even though he may cease to be the  chairman  on account of his minority or on account of some other  reason. Therefore, the provisions of s. 14 refer to allowances  only as  a  chairman  and have nothing to  do  with  the  rights, privileges and perquisites as an adya sevak, for he  remains

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as  adya  sevak even though he may not for  certain  reasons remain  a chairman.  His rights, privileges and  perquisites as  adya sevak will remain protected under s. 8 even  though he may not be entitled to anything under s. 14 if he  ceases to be the chairman in view of s. 7. No provision in the  Act has  been pointed out to us, which expressly takes away  his rights,  privileges  and perquisites as adya sevak;  on  the other hand there are other provisions which seem to indicate that even the rights and privileges of sevaks have not  been affected  by  the  Act.  If so it is hardly  likely  in  the absence of any specific provision, that the Act would affect the privileges of the appellant as adya sevak.  For example, s. 21 (2) (g) gives power to the 45 administrator  to  decide disputes relating to  the  rights, privileges,  duties  and  obligations of  sevaks  ,  office- holders  and  servants  in respect of  sevapuja  and  nitis, whether  ordinary  or  special  in  nature.   This   clearly postulates  that the rights and privileges of sevaks  remain intact,  and  if  there  is  any  dispute  about  them,  the administrator has to decide it.  Again s. 21(2)(f)  provides that  the administrator shall have power to decide  disputes relating to the collection, distribution or apportionment of offerings,  fees  and  other receipts in  cash  or  in  kind received  from  the  members  of  the  public.   This  again postulates a right in some persons who could only be  sevaks etc.  to a share of the offerings, fees and other  receipts, and  if  there  is any dispute  about  its  distribution  or apportionment, the administrator has been given the power to decide it.  Reading these two clauses together, there can be no  manner  of doubt that the Act does not affect  even  the rights,  privileges and perquisites of sevakas.  If  so,  in the  absence  of express provision, it  cannot  possibly  be argued   that  the  Act  affects  rights,   privileges   and perquisites  of adya sevak.  As we have  already  indicated, those rights, privileges and perquisities of adya sevak have also been safe ,guarded under s. 8 of the Act.  Then we  may refer  to s. 21 (3) which provides that  "the  administrator may  subject  to such conditions, if any, as  the  committee may, by general or special order ’Impose, afford  facilities on  payment of fees for special darshan or for  any  special service, ritual or ceremony such darshan, service, ritual or ceremony not being inconsistent with the custom and usage of the Temple and he shall have power to determine the portion, if  any,  of  such fees which shall  paid  to  the  sevakas, office-holders  or  servants  of the  Temple  "  This  again postulates  that the rights, privileges and  perquisites  of the sevaks are not to be affected by the Act but have to  be governed by the record of rights or, as the case may be,  by the  order of the committee.  The argument that the  Act  is ultra vires because it takes away the rights, privileges and perquisites  of the appellant as adya sevak, some  of  which may be property must therefore fail in view of the  specific provision in s.     8 and indications in other provisions of the Act to which we have referred. Clause (1) of s. 15 of the Act is however specially attacked as   interfering  with the religious affairs of the  Temple. The rest of    the  provisions  of  that  section  deal   so obviously  with  secular  matters that they  have  not  been challenged.  This clause provides that it shall be the  duty of  the committee to arrange for the proper  performance  of sevapuja and of the daily and periodical nitis of the Temple in  accordance with the record of Tights.  As we  read  this clause  we see no invasion of the religious affairs  of  the Temple  therein.  All that it provides is that it  shall  be

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the  duty  of  the  committee  to  arrange  for  the  proper performance  of  sevapuja etc. of the Temple  in  accordance with 46 the record of rights. Sevapuja etc. have always two aspects. One  aspect is the provision of materials and so on for  the purpose  of the sevapuja.  This is a secular function.   The other  aspect  is  that  after  materials  etc.  have   been provided, the sevaks or other persons who may be entitled to do  so, perform the sevapuja and other rites as required  by the  dictates of religion.  Clause (1) of s. 15 has  nothing to do with the second aspect, which is the religious  aspect of  sevapuja;  it  deals  with the  secular  aspect  of  the sevapuja and enjoins upon the committee the duty to  provide for the proper performance of sevapuja, and that is also  in accordance with the record of rights.  So that the committee cannot  deny materials for sevapuja if the record of  rights says  that certain materials are necessary.  We are  clearly of the opinion that cl. (1) imposes a duty on the  committee to  look after the secular part of the sevapuja  and  leaves the  religious  part thereof  entirely  untouched.   Further under  this clause it will be the duty of the  committee  to see  that those who are to carry out the religious  part  of the  duty  do their duties properly.  But this  again  is  a secular  function  to, see that sevaks and  other  servants, carry out their duties properly; it does not interfere  with the performance of religious duties themselves.  The  attack on  this  provision that it interferes  with  the  religious affairs of the Temple must therefore fail. We  may now briefly refer to some other sections of the  Act which  were attacked.  Apart from the main sections 5 and  6 by which the appellant was divested of the sole  management, the first section so attacked is s. 11 which deals with  the dissolution and supersession of the committee.  We have  not been  able  to understand how this section can  be  attacked once it is held that ss. 5 and 6, constituting the committee in  place of the Raja, are valid, as we have held that  they are for they are the main provisions by which the management has  been transferred from the sole control of the  Raja  to the  control  of the committee.  The next  section  in  this group  is s. 19.  That section provides for the  appointment of   an   administrator  to  carry  on  the   day   to   day administration  of  the secular part of the affairs  of  the Temple.   We  cannot  see how this provision  is  liable  to attack  once  ss. 5 and 6 are held good, for  the  committee must  have some officer under it to carry on the day to  day administration.  The next provision that is attacked in this group  is s. 21, which deals with powers and duties  of  the administrator.   Again we cannot see how this provision  can be  attacked  once it is held that the  appointment  of  the administrator  under s. 19 is good, for s. 21 only  delimits the  powers and duties of the administrator, and all  powers and duties therein specified are with respect to the secular affairs  of  the Temple, and have no direct  impact  on  the religious  affairs thereof.  The next section in this  group is  s.  21-A.  That section is clearly  concerned  with  the secular management of the Temple, for the disciplinary 47 powers conferred thereby on the administrator are  necessary in  order  to  carry on the administration  of  the  secular affairs  of the Temple.  The next section which is  attacked is  s.  30, which gives over all supervisory  power  to  the State  Government.  We cannot see how the control which  the State Government is authorised to exercise by s. 30 over the committee  can  be  attacked once  the  appointment  of  the

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committee is held to be ,good.  The last section under  this group is s. 30A, which creates a criminal offence and  makes sevaks  etc. liable to a fine on ,conviction.  We  think  it unnecessary for present purposes to consider the validity of this section.  The matter can be decided if and when a  case of prosecution under that section ever arises. This  brings us to the contention relating to Arts.  26,  27 and  28 of the Constitution, which were referred to  in  the petition.  Articles 27 and 28 in our opinion have nothing to do  with  the matters dealt with under the  Act.   The  main reliance  has however been placed on Art. 26(d)  which  lays down  that  subject to public order,  morality  and  health, every  religious denomination or any section  thereof  shall have the right to administer its property in accordance with law.  In the first place besides saying in the petition that the Act was bit by Art. 26 there was no indication  anywhere therein as to which was the denomination which was concerned with  the Temple and whose rights to administer  the  Temple have been taken away.  As a matter of fact the petition  was filed  on the basis that the appellant was the owner of  the Temple  which was his private property.  There was no  claim put  forward on behalf of any denomination in the  petition. Under  these circumstances we are of opinion that it is  not open to the appellant to argue that the Act is bad as it  is hit  by Art. 26(d).  The argument addressed before the  High Court  in this connection was that the worshippers  of  Lord Jagannath  constitute  a  distinct  religious   denomination within  the meaning of Art. 26 and that they had a right  to administer the Temple and its endowments in accordance  with law and that such administration should be only through  the Raja of Puri as superintendent of the Temple assisted by the innumerable  sevaks attached thereto.  But inasmuch  as  the Act  has  taken  away  this right  of  management  from  the religious  denomination,  i.e.,  the  worshippers  of   Lord Jagannath,  and  entrusted it to the nominees of  the  State Government,  there  had been a contravention of  the  funda- mental  rights  guaranteed under cl. (d) of  Art  26.   This argument was met on behalf of the State with the  contention that the Temple did not pertain to any particular sect, cult or creed of Hindus but was a public temple above all  sects, cults  and,  creeds, therefore, as the temple  was  not  the temple of any particular domination no question arose of the breach  of cl.(d) of Art. 26.  The foundation for  all  this argument which was 48 urged  before  the  High  Court was not  laid  in  the  writ petition. In these circumstances we think it was unnecessary for  the High Court to enter into this question on  a,  writ petition of this kind.  The High Court however went into the matter  and  repelled the argument on the  ground  that  the Temple in the present case was meant for all Hindus, even if all  Hindus were treated as a denomination for  purposes  of Art.  26, the management still remains with Hindus, for  the committee  of management consists entirely of  Hindus,  even though  a  nominated committee.  In view  of  the  defective state of pleadings however we are not prepared to allow  the argument  under Art. 26(d) to be raised before us  and  must reject  it  on the sole ground that no such  contention  was properly raised in the High Court. For  these reasons we find there is no force in this  appeal and it is hereby dismissed with costs. Appeal dismissed. 49

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