http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 45  

PETITIONER: TILKAYAT SHRI GOVINDLALJI MAHARAJ

       Vs.

RESPONDENT: THE STATE OF RAJASTHAN AND OTHERS

DATE OF JUDGMENT: 21/01/1963

BENCH: GAJENDRAGADKAR, P.B. BENCH: GAJENDRAGADKAR, P.B. SINHA, BHUVNESHWAR P.(CJ) WANCHOO, K.N. GUPTA, K.C. DAS SHAH, J.C.

CITATION:  1963 AIR 1638            1964 SCR  (1) 561  CITATOR INFO :  R          1964 SC1043  (132)  R          1964 SC1501  (5,6)  R          1964 SC1793  (13)  R          1965 SC 906  (8)  R          1970 SC2025  (9)  R          1971 SC 891  (11,12)  R          1975 SC 706  (19)  R          1975 SC2299  (587)  R          1976 SC 871  (35)  RF         1983 SC   1  (17,128)  R          1984 SC  51  (11)  RF         1986 SC2094  (10,16)  R          1987 SC2064  (14)  RF         1992 SC1277  (22,34,88)

ACT: Nathdwara Temple-Private or public temple-Tests--Validity of enactment  providing  for proper administration  of  temple- Constitutionality-Nathdwara  Temple Act, 1959 (Rajasthan  13 of  1959) ss. 2 (viii), 3, 4, 5, 7, 1O, 11, 16, 21, 22,  27, 28,  30, 35, 36, 37-Constitution of India, Arts. 14, 19  (1) (f), 25, 26, 31 (2).

HEADNOTE: The  history  of  the Nathdwara Temple in  the  District  of Udaipur  showed  that Vallabha, who was the founder  of  the denomination  known as Pushtimargiya  Vaishnava  Sampradaya, installed  the idol of Srinathji in a temple and that  later on his descendants built the Nathdwara Temple in 1761.   The religious  reputation of the temple grew in  importance  and several grants were made and thousands of devotees  visiting the  temple made offering to the temple.  The succession  to the  Gaddi  of the Tilkayat received  recognition  from  the Rulers  of  Mewar,  but  on  several  occasions  the  Rulers interfered  whenever  it was found that the affairs  of  the temple  were  not managed properly.  In 1934  a  Firman  was issued  by the Udaipur Darbar, by which, inter alia, it  was declared  that  according  to the law  of  Udaipur  all  the property  dedicated or presented to or otherwise  coming  to

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 45  

the  Deity Shrinathji was property of the shrine,  that  the Tilkayat Maharaj for the time being was merely a  custodian, Manager  and  Trustee  of the said  property  and  that  the Udaipur Darbar had absolute right to supervise that the 562 property dedicated to the shrine was used for the legitimate purposes  of the shrine.  The management of the affairs’  by the  appellant  Tilkayat was not successful  and  it  became necessary that a scheme should be framed for the  management of  the  Temple.   On  February 6,  1939,  the  Governor  of Rajasthan promulgated an Ordinance, which was in due  course replaced  by the Nathdwara Temple Act, 1939.  The  appellant challenged  the  validity of the Act on the  grounds,  inter alia,  that the idol of Shrinathji in the  Nathdwara  Temple and  all  the  property pertaining to it  were  his  private properties  and,  as  such, the State  Legislature  was  not competent to pass the Act, that even if the Nathdwara Temple was held to be a public temple, he as Mahoney or Shebait had a  beneficial interest in the office of the high  priest  as well  as  the  properties of the temple  and  that  on  that footing, his rights under Arts. 14, 19 (1) (f) and 31 (2) of the  Constitution of India had been contravened by the  Act. it  was also urged that the provisions of the Act  infringed the fundamental rights guaranteed to the Denomination  under Art.  55  (1) and 26 (b) and (c) of the  Constitution.   The question  was  also raised as to Whether the tenets  of  the Vallablia denomination and its religious practices  required that the worship by the devotees should be performed at  the private  temple and so the existence of public  temples  was inconsistent with the said tenets and practices. Held,  (1) that neither that tenets nor the religious  prac- tices  of the’ Vallablia school necessarily  postulate  that the  followers  of  the school must  worship  in  a  private temple. (2)that in view of the documentary evidence in the case it could not be held that the temple was built by the  Tilkayat of the day as his private temple or that it still  continues to have the character of a private temple; that though  from the outside it had the  of a Haveli, the majestic  structure inside was consistent with the dignity of the idol and  with the character of the temple as a public temple. (3)that ail absolute monarch was the fountain-head of  all legislative,  executive and judicial powers, that it was  of the very essence of sovereignty which vested in him that  he could  supervise arid control the administration  of  public charity,  and that this principle applied as much  to  Hindu monarchs as to ,my other absolute monarch. Any order  issued by  such a Ruler would have the force of law and govern  the rights   of  the  parties  affected  there  by   and   that, accordingly, the Firman issued by the Maharana of Udaipur in 1934 was a law by which the affairs of the Nathdwara  Temple were governed after its issue,  563 Madhaorao Phalke v. The State of Madhya Bharat, [1961] 1  S. C. R. 957, relied on. (4)that under the law of Udaipur the Nathdwara Temple  was a  public temple and that the Tilkayat was no more than  the Custodian, Manager and Trustee of the property belonging  to the temple. (5)that  having regard to the terms of the Firman of  1934 the  right  claimed by the Tilkayat could not  amount  to  a right  to  property  under Art. 19  (1)  (f)  or  constitute property  under Art. 31 (2) of the Constitution,; that  even if it were held that this right constituted a right to  hold property,  the  restrictions  imposed by  the  Act  must  be

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 45  

considered as reasonable and in the interests of the  public under Art. 19 (5). Vidya Varuthi Thirtha v. Balusami Ayyar, (1921) L. R. 48  1. A. 302 and the Commissioner Hindu Reliqious Endowment,Madras v.Sri  Lakshmindra  Tirtha Swamiar of  Sri  Shirur  Mutt, [1954] S.C. R. 1005, considered. (6)  that  the  Act  was  not  invalid  on  the  ground   of discrimination under Art. 14. Shri  Ram  Krishna Dalmia v. Shri Justice S.  R.  Tendolkar, [1959] S. C. R. 279, relied on. (7)that the right to manage the properties of a temple was a  purely  secular  matter and could not be  regarded  as  a religious  practice  under Art. 25 (1) or  as  amounting  to affairs   in  matters  of  religion  under  Art.   26   (b). Consequently,  the  Act in so fit, as it  provided  for  the management of the properties of the Nathdwara Temple  tinder the  provisions of the Act, did not contravene Arts. 25  (1) and 26 (b). The Durgah Committee, Ajmer v. Syed Hussain Ali, [1962] 1 S. C. R. 333, referred to. (8)that  the expression "Law" in Art. 26 (d) meant  a  law passed by a competent legislature and under that Article the legislature was competent to make a law in regard to the ad. ministration  of the property belonging to the  denomination and  that  the  provisions  of the  Act  providing  for  the constitution  of  a Board to administer  the  property  were valid. Ratilal Panachand Candhi v. The State of Bombay,      [1934] S.   C, R. 1035, referred to. 564 (9)that the scheme envisaged by ss. 3, 4, 16, 22 and 34 of the Act merely allowed the administration of the  Properties Of  the  temple  which was a purely  secular  matter  to  be undertaken by the Board and that the sections were valid. (10)that  under  s.  5 (2) (g) it was  necessary  that  the members  of  the Board other than the Collector  of  Udaipur District  should  not only profess Hindu religion  but  must also  belong to the Pushti Margiya Vallabhi Sampradaya;  and that  the proviso to s. 5 (2) (g) which enabled a  Collector to be a statutory member of the Board even though he may not be  a Hindu and may not belong to the denomination, did  not contravene Arts. 25 (1) and 26 (b). (11)  that the expression "affairs of the temple" in  s.  16 referred  only the purely secular affairs in regard  to  the administration of the temple and that the section was valid. (12)that  s.  30 (2) (a) in so far as it conferred  on  the State  Government  power  to make rules in  respect  of  the qualifications  for holding the office of the  Goswami,  was invalid. (13)that  ss. 5, 7, 10, 11, 21, 27. 28, 35, 36 and 37  were valid.

JUDGMENT: CIVIL  APPELLATE JURISDICTION: Civil Appeals Nos.  652,  653 and 757 of 1962. Appeals from the judgment and order dated january 31,  1962, of the Rajasthan High Court in D.  B.  Civil  Writ  Petition No. 90 of 1959.                             AND                          VICE VERSA (b)  Civil Appeals Nos. 654, 655 and 758 of 1962. Appeals from the judgment and order dated january 31,  1962, of the Rajasthan High Court in D.B. Civil Writ Petition  No.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 45  

3 10 of 1959.                             AND                          VICE VERSA (c)  Civil Appeal No. 656 of 1962.  565 Appeal  from the judgment and order dated January 31,  1962, of the Rajasthan High Court in D.  B.  Civil  Writ  Petition No. 421 of 1960. (d) Writ Petition No. 74 of 1962. Petition  under Article 32 of the Constitution of India  for the enforcement of fundamental rights. M.   C. Setalvad, Attorney-General for India G.   S. Pathak, B.  B. Desai, V. A. Seyid Muhammad and B. C. Misra, for  the appellant  (in C. A. No. 652 of 1962) and respondent  No.  1 (in C. As.  Nos. 653 and 757 of 1962). C.   K. Daphtary, Solicitor-General of India, G.  C. Kasliwal Advocate-General for the State of Rajasthan, M.  M. Tewari,  S.  K. Kapur, B. R. L. lyengar, Kan  Singh,  V.  N. Sethi,  B. R. C. K. Achar and P. D. Menon,  for  respondents Nos.  1 and 2 (in C.     A. Nos. 652 and 656/62)  respondent No. 1 (in C.   A. No. 654/62), respondents Nos. 2 and 3  (in C.   A. No. 757/62), respondent No. 11 (in C. A.No.  758/62) and appellants (in C. A. Nos. 653, and 655/62). Sarjoo  Prasad,  S.  B.  L. Saxena  and  K.  K.  Jai,&,  for respondents  Nos. 3 to 5 (in C. A. No.  652/62)  respondents Nos. 2-4 (in ’C.  A. No. 653 /62), respondents Nos. 2, 3, 5, 6 and 7 (in C. A. No. 654/62), the Board and its members (in C.  A.  No.  655/62), respondents Nos. 3-12 (in  C.  A.  No. 656/62)  and  the appellants (in C. A. Nos. 757 and  758  of 1962.) A.V.  Viswanatha  Sastri  Balkrishna Acharya  and  M.  V. Goswami   for  the  appellants  (in  C.  A.   No.   654162), respondents  Nos. 1-10 (in C. A No. 655 /62 and  respondents Nos. 1-10 (in C. A. No. 758/62). P.K.  Chakravarty,  for  the  appellant  (in  C.  A.  No. 656/62). 566 G.S.  Pathak,  B.  Datta and B. P.  Maheshwari,  for  the petitioner (in W. P. No. 74/62). C.K.   Daphtary,  Solicitor-General  of  India,   G.   S. Kasliwal, Advocate-General for the State of Rajasthan, M. M. Tewari,  S.  K. Kapur, B. R. L. Iyengar, Kan  Singh,  V.  N. Sethi  and  P. D. Menon, for respondents Nos.  1 and  2  (in W.P. No. 74/62). Sarjoo  Prasad,  S.  B.  L.  Sexena  and  K.  K.  Jain,  for respondents Nos. 3-12 (in W. P. No.,74/62). 1963.  January 21.  The judgment of the Court was  delivered by GAJENDRAGADKAR, J.--This group of seven cross-appeals arises from  three  writ  petitions  field in  the  High  Court  of judicature  for  Rajasthan,  in which the  validity  of  the Nathdwara Temple Act, 1959 (No.  XIII of 1959)  (hereinafter called  the Act)  has been challenged.  The  principal  writ petition was Writ Petition No. 90 of 1959 ; it was filed  by the  present  Tilkayat Govindlalji (hereinafter  called  the Tilkayat)  on February 28, 1959.  That  Petition  challenged the  validity  of the Nathdwara Ordinance, 1959 (No.  11  of 1959)   which   had  been  issued  on  February   6,   1959. Subsequently  this Ordinance was repealed by the Act  which, after receiving the assent of the President, came into force on March 28, 1959.  Thereafter, the Tilkayat was allowed  to amend  his  petition and after its amendment,  the  petition challenged the vires of the Act the provisions of which  are identical with the provisions of its predecessor  Ordinance. Along  with this petition Writ Petition No. 310 of 1959  was

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 45  

filed  on August 17, 1959, by ten petitioners who  purported to  act  on  behalf of the followers  of  the  Pushtimargiya Vaishnava  Sampradaya.  This petition attacked the  validity of the Act on behalf of the Denomination of the followers of Vallabha.  On November 3, 1960,  567 the  third  Writ  Petition (No. 421 of 1960)  was  filed  on behalf  of  Goswami  Shri Ghanshyamlalji  who  as  a  direct descendant  of  Vallabha, set up an interest in  himself  in regard  to  the  Nathdwara Temple, and as  a  person  having interest in the said Temple, lie challenged the validity  of the Act.  These three petitions were heard together by-  the High  Court and have been dealt with by a  common  judgment. In  substance, the.  High Court has upheld the  validity  of the Act, but it has struck down as ultra vires a part of the definition of temple’ in s. 2 (viii) , a part of s. 16 which refers to the affairs of the-temple; s. 28, sub-ss. (2)  and (3);  s. 30 (2)(a); ss. 36 and 37.  The petitioners as  well as  the State of Rajasthan felt aggrieved by  this  decision and  that has given rise to the present cross-appeals.   The Tilkayat has filed Appeal No. 652 of 1962, whereas the State has filed appeals Nos. 653 and 75 7 of 1960.  These  appeals arise  from Writ Petition No. 90 of 1959.  The  Denomination has filed Appeal No 654 of 1962, whereas the State has filed Appeals Nos. 655 and 758 of 1962.  These appeals arise  from Writ  Petition No. 310 of 1959.  Ghanshyamlalji  whose  Writ Petition  No.  421 of 1960 has been dismissed  by  the  High Court  on  the ground that it raises disputed  questions  of fact   which  cannot  be  tried  under  Art.  226   of   the Constitution, has preferred Appeal No. 656 of 1962).   Since Ghanshyamlalji’s  petition has been dismissed in  limine  on the ground just indicated, it was unnecessary for the  State to prefer any cross-appeal.  Besides these seven appeals, in the present group has been included Writ Petition No. 74  of 1962 filed by the Tilkayat in this Court under Art. 32.   By the said writ petition the Tilkayat has challenged the vires of  the  Act on some additional grounds.  That  is  how  the principal point which arises for our decision in this  group is in regard to the Constitutional validity of the Act. At  this  stage,  it is relevant  to  indicate  broadly  the contentions raised by the parties before the High 568 Court and the conclusions of the High Court on the points in controversy.   The Tilkayat contended that the idol of  Shri Shrinathji  in  the Nathdwara Temple and  all  the  property pertaining  to it were his private properties and  as  such, the State Legislature was not competent to pass the Act.  In the  alternative,  it was urged that even if  the  Nathdwara Temple  is held to be a public temple and the  Tilkayat  the Mahant or Shebait in charge of it, as such Mahant or Shebait he  had  a  beneficial interest in the office  of  the  high priest as well as the properties of the temple and it is  on that  footing  that the validity of the Act  was  challenged under Art. 19 (1) (f) of the Constitution.  Incidentally the argument for the Tilkayat was that the idols of Shri  Navnit Priyaji and Shri Madan Mohanlalji were his private idols and the  property  pertaining to them was in any  case  not  the property in which the public could be said to be interested. The  Denomination  substantially supported  the  Trilkayat’s case.  In addition, it urged that if the temple was held  to be a public temple, then the Act would be invalid because it contravened   the  fundamental  rights  guaranteed  to   the denomination  under Art. 25 (1) and Art. 26 (b) and  (c)  of the  Constitution.  Ghanshyamlalji pleaded title in  himself and challenged the validity of the Act on the ground that it

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 45  

contravened his rights under Art. 19 (1) (f). On  the  other hand, the State of Rajasthan urged  that  the Nathdwara Temple was a public temple and the Tilkayat was no more  and  no better than its manager.  As such, he  had  no substantial  beneficial  interest  in the  property  of  the temple.   The  contention that  the  Tilkayat’s  fundamental rights  under Art. 19 (1) (f) have been contravened  by  the Act  was denied; and the plea of the Denomination  that  the fundamental  rights guaranteed to it under Arts. 25 (1)  and 26 (b) and (c) had been infringed was also disputed.  It was urged that the law was prefectly valid and  569 did no more than regulate the administration of the property of  the  temple  as  contemplated  by  Art.26  (c)  of   the Constitution.   The Tilkayat’s claim that the two  idols  of Navnit  Priyaji and Madan Mohanlalji were his private  idols was also challenged.  Against Ghanshyamlalji’s petition,  it was urged that it raised several disputed questions of  fact which could not be appropriately tried in proceedings  under Art. 226.  The  High  Court has upheld the plea raised  by  the  State against  the  competence of Ghanshyamlalji’s  petition.   We ought  to  add  that  the  State  had  contended  that   the Tilkayat’s case about the character of the temple was also a mixed  question  of  fact and law and so, it  could  not  be properly  tried  in  writ  proceedings.   The  High   Court, however’,  held  that it would be ’inexpedient  to  adopt  a technical attitude in this matter and it allowed the  merits of the dispute to be tried before it on the assurance  given by  the learned counsel appearing for the Tilkayat that  the character  of  the  property should be  dealt  with  on  the documentary  evidence  adduced  by  him.   Considering   the documentary evidence, the High Court came to the  conclusion that the temple is a public temple.  It examined the several Firmans  and  Sanads  on which reliance was  placed  by  the Tilkayat  and it thought that the said grants supported  the plea of the State that the temple was not the private temple of  the Tilkayat.  It has, however, found that the  Tilkayat is  a  spiritual  head of the Denomination as  well  as  the spiritual  head  of the temple of Shrinathji.  He  alone  is entitled to perform ’Seva’ and the other religious functions of  the  temple.   In its opinion, the two  minor  idols  of Navnit  Priyaji and Madan Mohanlalji were the private  idols of  the Tilkayat and so, that part of the  definition  which included  them  within the temple of Shrinathji  was  struck down  as  invalid.  In this connection, the High  Court  has very strongly relied on the Firman issued by the Maharana of Udaipur on December 31, 1934, and it 570 has  observed that this Firman clearly established the  fact that  the temple was a public temple, that the Tilkayat  was no  more  than  a  Custodian, Manager  and  Trustee  of  the property belonging to the temple and that the State had  the absolute  right to supervise that the property dedicated  to the  shrine was used for legitimate purposes of the  shrine. Having  found  that  the  Tilkayat  was  the  head  of   the denomination  and  the head priest of the temple,  the  High Court  conceded  in his favour the right of  residence,  the right  to  distribute  Prasad and the right  to  conduct  or supervise  the worship and the. performance of the  Seva  in the  temple.   In the light of these rights the  High  Court held  that  the Tilkayat had a beneficial  interest  in  the properties  of  the  temple and as  such,  was  entitled  to contend  that the said rights were protected under  Art.  19 (1)  (f)  and could not be contravened by  the  Legislature.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 45  

The High Court then examined the relevant provisions of  the Act  and  held  that,  on the  whole,  the  major  operative provisions  of  the Act did not contravene  the  fundamental rights of the Tilkayat under Art. 19 (1) (f); ss. 16, s. 28, sub-ss.  (2) and (3), s. 30 (2) (a), ss. 36 &  37,  however, did  contravene the Tilkayat’s fundamental rights  according to the High Court, and so, the said sections and the part of the definition of ’temple’ in s. 2 (viii) were struck  down by the High Court as ultra vires.The plea  that        the fundamental rights under Art.25 (1) and     Art. 26 (b) and (c) were contraveneisd didnot appeal     to   the   High Court to be well-founded.In the    result,          the substantial part of the Act hasbeen  held to  be  valid. It  appears that before the High Court a plea was raised  by the  Tilkayat that his rights under Arts. 14 and 31 (2)  had been contravened by the Act.  These pleas have been rejected by  the High Court and they have been more particularly  and specifically  urged  before us by the Tilkayat in  his  Writ Petition No. 74 of 1962.  That, in brief, is the  571 nature  of  the findings recorded by the High Court  in  the three writ petitions filed before it. Before dealing will the merits of the present dispute, it is necessary  to set out briefly the historical  background  of the  temple of Shrinathji at Nathdwara and the incidents  in relation   to  the  management  of  its   properties   which ultimately  led  to the Act.  The temple  of  Shrinathji  at Nathdwara holds a very high place among the Hindu temples in this country and is looked upon with great reverence by  the Hindus in general and the Vaishnav followers of Vallabha  in particular.   As in the case of other ancient revered  Hindu temples,  so  in  the  case  of  the  Shrinathji  temple  at Nathdwara,  mythology has woven an attractive web about  the genesis of its construction at Nathdwara.  Part of it may be history  and  part may be fiction, but the story  is  handed down  from  generation  to generation  of  devotees  and  is believed by all of them to be true.  This temple is  visited by  thousands  of  Hindu  devotees in  general  and  by  the followers  ’of  the Pushtimargiya  Vaishnava  Sampradaya  in particular.   The  followers of Vallabha  who  constitute  a denomination are popularly known as such.  The  denomination was founded by Vallabha (1479-1531 A. D.)* He was the son of a Tailanga Brahmin named Lakshmana Bhatt.  On one  occasion, Lakshmana  Bhatt had gone on pilgrimage to Banaras with  his wife Elamagara.  On the way, she gave birth to a son in 1479 A. D. That son was known as Vallabha.  It is’ said that  God Gopala  Krishna  manifested  himself  to  Vallahha  on   the Govardhana  Hill  by the name of Devadamana, also  known  as Shrinathji.  Vallabha saw the vision in his dream and he was commanded  by God Gopala Krishna to erect a shrine  for  Him and   to  propagate  amongst  his  followers  the  cult   of worshiping  Him in order to obtain salvation (1).   Vallabha then  went to the hill and he found the image  corresponding to  the  vision  which  he had seen  in  this  dream..  Soon thereafter, lie got a small *Some  scholars  think that Vallabha was born in  1473  A:D. vide The Cultural Heritage of India vol.  III at p. 347. (1)  Bhandarkar on ’Vaishnavism, S’aivism & Minor  Religious systems a 572 temple  built at Giriraj and installed the image in the  aid temple.   It is believed that this happened in 500 A.  D.  A devotee named Ramdas Chowdhri was entrusted with the task of serving  in  the temple.  Later on, a  rich  merchant  named Pooranmal was asked by Govardhannathji to build a big temple

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 45  

for  him.   The building of the temple took as  many  as  10 years  and  when it was completed, the Image  was  installed there by Vallabha himself and he engaged Bengali Brahmins as priests in the said temple, (1). In  course  of  time,  Vallabha was  succeeded  by  his  son Vithalnathji  who  was  both  in  learning  and  in  saintly character  a worthy son of a worthy father.  Withalnath  bad great  organising  capacity  and his work  was  actuated  by missionary zeal.  In the denomination, Vallabha is described as Achilles or Maha Prabhuji and Vithalnath is described  as Gosain or Goswamin.  It is said that Vithalnath removed  the idol of Shrinathji to another temple which had been built by him.  It is not known whether any idol was installed in  the earlier temple.  Vithalnath lived luring the period of Akbar when  the  political atmosphere in the country  in  Northern India  was  actuated by a spirit of tolerance.   It  appears that Akbar heard about the saintly reputation  of Vithalnath and  issued a Firman granting land in Mowza of  Jatipura  to Vithalnathji in order to build buildings, gardens,  cowsheds and workshops for the temple of Govardhannathji This  Firman was  issued  in  1593 A.D. Later,  Emperor  Shahajahan  also issued  another Firman on October 2, 1633, which shows  that some  land was being granted by the Emperor for the use  and expenses of Thakilrdwara exempt from payment of dues. Goswami  Vithalnath  had seven sons.  The tradition  of  the denomination  believes that besides the idol  of  Shrinathji Vithalnathji received from his father (1)  Bhai Manilal C. Parekh’s ’A Religion of Grace’.  573 seven   other  idols  which  were  also  "Swaroops"   (mani- festations) of Lord Krishna.  Before his death, Vithalnathji entrusted  the principal. idol of Shrinathji, to his  eldest son  Girdharji and the other idols were given over  to  each one  of  his  other sons.  These brothers  in  turn  founded separate  shrines at various places which are also  held  by the   members  of  the  denomination  in  high  esteem   and reverence. When Aurangzeb came on the throne, the genial atmosphere  of tolerance disappeared and the Hindu temples were exposed  to risk  and  danger  of  Aurangzeb’s  intolerant  and  bigoted activities.   Col.  Todd in the first volume of his  ’Annals of Rajasthan’ at p. 451 says that "when Aurangzeb prescribed Kanaya and rendered his shrines impure throughout Vrij, Rana Raj Singh offered the heads of one hundred thousand Rajpoots for  his service, and the God was conducted by the route  of Kotah  and Rampoora to Mewar.  An omen decided the  spot  of his  future residence.  As he journeyed to gain the  capital of the Sessodias, the chariot-wheel sunk deep into the earth and  defied  extrication;  upon which  the  Sookuni  (augur) interpreted  the  pleasure of the deity that he  desired  to dwell    there.    This   circumstance   occurred   at    an inconsiderable   village  called  Siarh,  in  the  fife   of Dailwara,  one of the sixteen nobles of Mewar.  Rejoiced  at this decided manifestation of favour, the chief hastened  to make a perpetual gift of the village and its lands which was speedily  confirmed by the patent of the Rana.  Nathji  (the god) was removed from his car, and in due time a temple  was erected  for his reception, when the hamlet of Siarh  became the town of Nathdwara.  This happened about 1671 A.    D." This  according  to  the tradition, is the  genesis  of  the construction  of the temple at Nathdwara.  Since  then,  the religious  reputation of the temple has grown by  leaps  and bounds and today it can legitimately claim to be one of  the few leading religious temples of the Hindus.  Several 574

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 45  

grants  were  made and thousands of  devotees  visiting  the temple  in  reverence made offerings to  the  temple  almost everyday throughout the year.  No wonder that the temple has now become one of the richest religious institutions in  the country. The  succession to the Gaddi of the Tilkayat has,  from  the beginning, been governed by the rule of Primogeniture.  This succession  received  recognition from the rulers  of  Mewar from  time to time: It appears that in 1813 A.  D.  Tilkayat Govindlalji  was adopted by the widow of Tilkayat  Damodarji and the ruler of Mewar recognised the said adoption.  Later, the  relations between the ruler of Mewar and  the  Tilkayat were strained during the time of Tilkayat Girdharlalji.   It seems that the Tilkayat Was not content with the position of a spiritual leader of the denomination but he began to claim special  secular  rights,  and when the  Darbar  of  Udaipur placed the villages belonging to the Natbdwara Temple  under at  Lachment,  a  protest was made by  the  members  of  the denomination on behalf of the Tilkayat.  It was as a  result of  this  strained relationship between the Darbar  and  the Tilkayat that in 1876 Tilkayat Girdharlal i was deposed  and was deported from Nathdwara by the order passed by the  Rana of  Mewar  on May 8, 1876...... The reason  given  for  this drastic  step was that the Tilkayat disobeyed the orders  of the  ruling  authority  and  so, could  not  be  allowed  to function as such.  In place of the deposed Tilkayat, his son Gordhanlalji  was appointed as Tilkayat.  Girdharlalji  then went  to Bombay and litigation started between him  and  his Tilkayat  son in respect of extensive properties in  Bombay. Girdharlalji  claimed the properties as his own whereas  his Tilkayat son urged that the fact that Girdharlalji had  been deposed by the Rana of Udaipur showed that the properties no longer vested in him.  It appears that the Bombay High Court consistently took the view that the order passed by  575 the Rana of Udaipur on May 8, 1876, was an act of a  foreign State  and did not effect his right to property  in  Bombay. It  was observed that Girdharlalji was regarded as owner  of the property, he had not lost his right as such to the  said property  in  consequence of his deposition, and if  he  was merely a trustee, he had not been removed from his office by any  competent  Tribunal  vide Nanabai  v.  Shriman  Goswami Girdharji   (1).   Goswami  Shri  Girdharji   Maharaj   Shri Govindraiji Maharaj Tilkayat v. Madhowdas Premji and Goswami Shri  Govardhanlalji  Girdharji Maharaj ( 2  )  and  Shriman Goswami Shri 108 Shri Govardhanlalji Girdharlalji v. Goswami Shri  Girdharlalji Govindrajji (3). So far as the  Nathdwara temple and the properties situated in Mewar were  concerned, the Tilkayat Gordhanlalji who had been appointed by the Rana of  Udaipur continued to be in possession and management  of the same. Unfortunately, in 1933, another occasion arose when the Rana of  Udaipur had to take drastic action.  After the death  of Goverdhanlalji   on  September  21,  1933,  his  grand   son Damodarlalji  became  the Tilkayat.  His  conduct.  however, showed  that he did not deserve to be a spiritual leader  of the  denomination  and could not be left in  charge  of  the religious  affairs  of the Shrinathji temple  at  Nathdwara. That is why on October 10, 1933, he was deposed and his  son Govindlalji,   the  present  Tilkayat,  was  appointed   the Tilkayat  of the temple.  Before adopting this  course,  the Rana  had  given  ample  opportunities  to  Damodarlalji  to improve  his conduct, but despite the promises made  by  him Damodarlalji  persisted in the course of behavior  which  he had  adopted  and  so, the Darbar was  left  with  no  other

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 45  

alternative  but  to  depose him That  is  how  the  present Tilkayat’s  regime  began even during the  lifetime  of  his father. (1) 12 Bom. 331. (2) 17 Bom. 600, (3)  17 Bom, 620 576 As  on  the occasion of the deposition  of  Girdharlalji  in 1833, so on the occasion of the deposition of  Damodarlalji, litigation  followed  in respect of Bombay  properties.   On January  6,  1934, Damodarlalji filed a suit in  the  Bombay High  Court (No. 23 of 1934) against the Tilkayat and  other persons  representing  the denomination, In  this  suit,  he claimed a declaration that he was entitled to and had become the owner of all the properties mentioned in the plaint  and that  he  was  the  owner  of  all  the  rights,   presents, offerings,  and emoluments arising in and accruing from  the ownership  of the idols, Shrinathji and Shri Navnit  Priyaji as  well  as  his position as the Tilkayat  Maharaj  in  due course  of his succession.  In the said suit, the  idols  of Shrinathji and Shri Navnit Priyaji were added as defendants. At that time, the Tilkayat was a minor.  Written  statements were filed on his behalf and on behalf of the two idols.   A counter claim was preferred on behalf of the idols that  the properties  belonged to them.  Subsequently, the suit  filed by Damodarlalji was withdrawn; but the counterclaim made  by the  idols  was referred to the sole arbitration  and  final determination  of  Sir  Chimanlal  H.  Setalvad,  a  leading Advocate  of the Bombay High Court.  On April 10, 1942,  the arbitrator  made his award and in due course, a  decree  was passed  in  terms of the said award on  September  8,  1942. This  decree provided that all the properties, movable,  and immovable, and all offerings and Bhents donated to the  idol of Shrinathji or for its worship or benefit belonged to  the said idol, whereas properties donated, dedicated or  offered to  the  Tilkayat  Maharaj for the time  being,  or  at  the Krishna Bhandar Pedhis if donated, dedicated or offered  for the  worship  or benefit of the idol belonged  to  the  said idol.   It also provided that the Tilkayat Maharaj  for  the time  being  in actual charge at Nathdwara  is  entitled  to hold,  use  and  manage the "Properties  of  the  said  idol according to the 577 usage  of the Vallabhi Sampradaya." The said award  and  the decree which followed in terms of it were naturally confined to  the properties in the territories which  then  comprised British  India  and, did not include any properties  in  the territories  which  then formed part of  princely  India  or Native State as they were then known.  Meanwhile,  after  Damodarlalji  was deposed  and  his  son Govindlalji was appointed the Tilkayat, the Rana of  Udaipur issued a Firman on December 31, 1934.  By this Firman it was laid  down that the ’Shrine of Shrinathji  had  always  been and  was  a religious institution for the followers  of  the Vaishnavas Sampradayak and all the properties offered at the shrine were the property of the-shrine and that the Tilkayat Maharaj  was merely a Custodian, Manager and Trustee of  the said  property  for the shrine.  It also provided  that  the Udaipur  Darbar  had absolute right to  supervise  that  the property  dedicated  to the shrine is  used  for  legitimate purpose   of  the  shrine.   It  also  made  certain   other provisions to which we shall have occasion to return later. When he was, appointed the Tilkayat, Govindlalji was a minor and  so,  the  management of the  temple  and  the  property remained  with the Court of Wards, till April 1,  1948.   On

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 45  

that  date,  the  management  of  the  Court  of  Wards  was withdrawn and the charge of the property was handed over  to the Tilkayat.  It appears that the management of affairs  by the Tilkayat was not very happy or successful and the estate faced  financial  difficulties.   In  order  to  meet   this difficult  situation the Tilkayat appointed a  committee  of management  consisting  of  12  members  belonging  to   the denomination  some  time  in 1952.   This  was  followed  by another committee of 21 members appointed on June 11,  1953. Whilst this latter committee was in charge of the 578 management, some valuables stored and locked in the room  in the premises of the Temple of Shrinathji were removed by the Tilkayat  in December, 1957.  This news  created  excitement amongst  the  members  of  the public  in  general  and  the followers  of  the denomination in particular, and  so,  the Rajasthan Government appointed a Commission of Enquiry.   In the preamble to the notification by which the Commission  of Enquiry  was  appointed,  it was stated that  the  State  of Rajasthan as the successor of the covenanting State of Mewar had   a  special  responsibility  to  supervise   that   the endowments  and  properties  dedicated  to  the  shrine  are safeguarded  and  used for the legitimate  purposes  of  the shrine.   The Commission of the Enquiry made its  report  on October  11,  1959.  This report  passed  severe  strictures against  the  conduct of the Tilkayat.  At  this  stage,  we ought  to add that the dispute between the Tilkayat and  the Rajasthan  Government  as to the ownership of  the  valuable articles  removed from the temple was later referred to  the sole  arbitration of Mr. Mahajan, the retired Chief  justice of  this Court.  The arbitrator made his award on  September 12,  1961,  and  held that except in  regard  to  the  items specified  by  him in his award, the rest  of  the  property belonged  to  the  Tilkayat;  and he  found  that  when  the Tilkayat removed the properties, he believed that they  were his persona I properties. It  was in the background of these events that the State  of Rajasthan  thought  it  necessary that a  scheme  should  be drafted  for the management of the Temple and this  proposal received  the  approval of the Tilkayat.  In order  to  give effect  to  this proportion was agreed between  the  parties that a suit under, s. 92, Code of Civil Procedure, should be filed  in the Court of the District judge at  Udaipur.   The paste  then thought that the suit would  be  non-contentious and  would  speedily end in a scheme of maegans  ment  being drafted with the consent of parties 579 Accordingly,  suit No. 1 of 1956 was filed in  the  District Court at Udaipur, and in accordance with the agreement which he  had reached with the authorities, the Tilkayat  filed  a non contentious written statement.  However, before the suit could make any appreciable progress, Ghanshyamlalji and Baba Rajvi,  the son of Tilkayat, applied to be made  parties  to the  suit  and  it became clear  that  these  added  parties desired  to raise contentions in the suit and that  entirely changing  the  complexion of the litigation.   It  was  then obvious that the litigation would be a long-drawn out affair and  the  object of evolving a satisfactory scheme  for  the management  of  the  affairs  of the  temple  would  not  be achieved  until  the litigation went  through  a  protracted course. It  was  under  these circumstances  that  the  Governor  of Rajasthan  promulgated  an Ordinance  called  the  Nathdwara Ordinance, J959 (No. 11 of 1959)   on February 6, 1959.  The Tilkayat immediatelyfiled  his Writ Petition No. 90  of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 45  

1959 challengingthe validity of the said Ordinance.  The Ordinance  was in due course replaced by Act 13 of 1959  and the Tilkayat was allowed to amend his original writ petition so  as to challenge the vires of the Act.   Shortly  stated, this is the historical background of the present dispute. The  first question which calls for our decision is  whether the  tenets  of the Vallabh denomination and  its  religious practices  postulate  and require that the  worship  by  the devotees should be performed at the private temple owned and managed  by  the Tilkayat, and so, the existence  of  public temples is inconsistent with the said tenets and  practices. In  support of this argument, the learned  Attorney  General has  placed strong reliance on the observadons made  by  Dr. Bhandarkar  in  his work on Vaisnavism,  Saivism  and  Minor Religious  Systems,  ti  80.  In the  section  dealing  with Vallabh and his 580 school,  the learned Doctor has incidentally  observed  that the  Gurus  of  this sect  ordinarily  called  Maharajs  are descendants of the seven sons of Vithalesa.  Each Guru has a temple  of  his  win,  and there are  no  public  places  of worship.  He has also added that the influence exercised  by Vallabh  and his successors over their adherents is kept  up by the fact that God cannot be worshipped independently in a public place of worship, but in the house and temple of  the Guru  or the Maharaj which, therefore, has to  be  regularly visited  by the devotees with offerings.  These temples  are generally described as Havelis and the argument is that  the said  description also brings out the fact that the  temples are private temples owned by the Tilkayat of the day.  It is true  that  the  observations made by  Dr.  Bhandarkar  lend support  to the contention raised before us by  the  learned Attorney-General  on  behalf of the Tilkayat,  but  if’  the discussion contained in Dr. Bhandarkar’s work in the section dealing  with Vallabh is considered as a whole, it would  be clear  that these observations are incidental and cannot  be taken  to indicate the learned Doctor’s conclusions after  a careful  examination  of  all  the  relevant  considerations bearing  on the point.  Since, however,  these  observations are  in  favour of the plea raised by the  Tilkayat,  it  is necessary very briefly to enquire whether there is  anything in   the   tenets  or  the  religious  practices   of   this denomination  which justifies the claim made by the  learned Attorney-General. What  then is the nature of the philosophical  doctrines  of Vallabh?   According  to  Dr. Radha  Krishnan  (1),  Vallabh accepts  the  authority  not only  of  the  Upanishads,  the Bhagvad  gita  and  the  Brahma  Sutras,  but  also  of  the Bhagavata Purana.  In his works, Anubhasya, Siddhantarahasya and   Bhagavata   Tikasubodhini,  he   offers   a   theistic interpretation  of the Vedanta, which differs from those  or Sankara and Ramanuja.  His view is called Suddhadvaita, or (1)  "Indian Philosophy" by Dr. Radha Krishnan, pp. 756  and 758.  581 pure non-dualism, and declares that the whole world is  real and  is  subtly  Brahman.   The  individual  souls  and  the inanimate  world are in essence one with Brahman.   Vallabha looks upon God as the whole and the individual as part.  The analogy  of  sparks  of fire is employed  by  Him  to  great purpose.   The  Jiva bound by maya cannot  attain  salvation except  through  the grace of God, which is  called  Pushti. Bhakti is the chief means of salvation, though Jnana is also useful.   As regards the fruit of Bhakti, there are  diverse opinions,   says  Dasgupta  (1).   Vallabha  said   in   his

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 45  

Sevaphala-vivrti  that  as a result of it one may  attain  a great  power of experiencing the nature of God, or may  also have the experience of continual contact with God, and  also may  have  a body befitting the service of  God.   Vallabha, however,  is  opposed to renunciation after  the  manner  of monastic  sanyasa,  for this can only bring  repentance,  as being  inefficacious.   Thug, it will be  seen  that  though Vallabha in his philosophical theories differs from  Sankara and  Ramanuja, the ultimate path for salvation which he  has emphasised  is  that  of Bhakti and by  Bhakti  the  devotee obtains  Pushti  (divine grace).  That is why  the  cult  of Vallabha  is known as Pushtimarg or the path  for  obtaining divine grace. Dr.  Bhandarkar  points  out  that  according  to  Vallabha, Mahapushti,  or  the highest grace, is  that  which  removes great  obstacles  and  conduces to  the  attainment  of  God himself.   Thus Pushtibhakti is of four kinds: (1)  Pravaha- Pushtibhakti,   (2)   Maryada  Pushtibhakti,   (3)   Pushti- Pushtibhakti  and (4) Sudha Pushtibhakti.  The first is  the path  of those who while engaged in a worldly life with  its me  and  mine,  do  acts  calculated  to  bring  about   the attainment  of God’ The second is of those who,  withdrawing their  minds from worldly enjoyments, devote  themselves  to God by hearing His praise and listening to discourses  about Him.  The third is of those who already enjoyed God’s  grace and are made competent (1)  A history on "Indian Philosophy" by Das Gupta, pp. 355- 356. 582 to  aquire knowledge useful for adoration and thus  come  to know all about the ways of God.  The fourth is of those  who through  mere  love  devote themselves to  the  singing  and praising of God as if it were a haunting passion.  Thus,  it would  be  seen that the tenets of the cult  emphasised  the importance   of   Bhakti,  and   the   religious   practices accordingly centered round this doctrine of Bhakti. The  practical  modes of worship adopted by the  members  of this  cult  bring out the same effect.  Lord  Krishna  as  a child  is the main object of worship.  His worship  consists of  several acts of performance every day in the  prescribed order  of ceremonies.  These begin with the ringing  of  the bell  in the morning and putting the Lord to bed  at  night. After  the  Lord is awakened by the ringing.  of  the  bell, there is a blowing of the conch-shell, awakening of the Lord and offering morning refreshments; waving of lamps; bathing; dressing;  food; leading the cows out for grazing; the  mid- day  meal; waving of lamps again; the evening  service;  the evening meal and going to bed.  These rituals performed with meticulous  care from day to day constitute  the  prescribed items  of  Siva which the devotees attend every day  in  the Vallabh temple.  In order to be able to offer Bhakti in a  p way,  the  members of this denomination are  initiated  into this  cult by the performance of two rites; one  is  Sharana Mantropadesh and the other is Atma Nivedan.  The first gives the devotee the status of a Vaishnava and the second confers upon  him the status of an Adhikari entitled to  pursue  the path  of  service of devotion.  At the  performance  of  the first rite, the mantra which is repeated in the ears of  the devotee  is  "Shree  Krishna  Sharanam  Mamah"  and  on  the occasion  a  "tulsi Kanthi’ is put around the  neck  of  the devotee.   At the second initiation, a religious formula  is repeated,  the  effect of which is that the  devotee  treats himself and all his properties as belonging to Lord Krishna. We have already,  583

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 14 of 45  

referred  to the original image which Vallabha installed  in the  temple  built  in his time and the  seven  idols  which Vithalnathji gave to his sons.  These idols are  technically described  as "Nidhi Swaroops’.  Besides these idols,  there are  several other idols which are worshipped  by  Vaishnava devotees after they are sanctified by the Guru.  It is  thus clear  that  believing  in  the  paramount  importance   and efficacy  of  Bhakti, the followers of Vallabha  attend  the worship and services of the Nidhi Swaroops or idols from day to  day  in the belief that such  devotional  conduct  would ultimately lead to their salvation. It is significant that this, denomination does not recognise the existence of Sadhus or Swamis other than the descendants of  Vallabha  and it emphasises that it  is  unnecessary  to adopt ritualistic practices or to repeat Sanskrit Mantras or in  cantations in worshipping the idols.   Besides,  another significant feature of this cult is that it does not believe in  celibacy  and does not regard that  giving  up’  worldly pleasures and the ordinary mode of a house-holder’s life are essential for spiritual progress.  In fact Vallabha  himself lived a house-holder’s life and so have all his descendants. This  cult  does  not, therefore,  glorify  poverty  and  it teaches  its followers that a normal house-holder’s life  is quite  compatible with the practice of Bhakti,  provided  of course,  the  devotee  goes through the  two  ceremonies  of initiation  and  lives up to the  principles  enunciated  by Vallabha. The  question which we have to decide is whether  there  ’is anything  in  the  philosophical  doctrines  or  tenets   or religious  practices which are the special features  of  the Vallabha  school,  which prohibits the existence  of  public temples or worship in them.  The main object underlying  the requirement  that devotees should assemble in the Haveli  of the  Guru  and worship the idol obviously was  to  encourage collective and congregational prayers.  Presumably 584 it  was  realised  ’by Vallabha  and  his  descendants  that worship in Hindu public temples is apt to clothe the  images worshipped with a formal and rigid character and the element of  personality  is thereby Obliterated ;  and  this  school believes  that  in order that Bhakti should be  genuine  and passionate, in the mind of the devotee there must be present the necessary element of the personality of God.  It is true that  Vaishnava temples of the Vallabha sect  are  Generally described as Havelis and though they are grand and  majestic inside,  the  outside  appearance  s  always  attempted   to resemble that of a privates.  This feature can, however,  be easily explained if we recall the fact that during the  time when  vithalnathji with his great missionary zeal spread  he doctrine  of Vallabha, Hindu temples were  constantly  faced with  the  danger of attack from Aurangzeb.   In  fact,  the traditional  story  about the foundation  of  the  Srinathji temple  at Nathdwara itself eloquently brings out  the  fact that  owing  to the religious persecution  practiced  during Aurangzeb’s time, Srinathji himself bad to give up his abode near Mathura and to start on a journey in search of a  place for residence in more hospitable and congenial surroundings. Faced  with  this immediate problem  Vithalnathji  may  have started building the temples in the form of Havelis so  that from  outside  nobody  should know that there  is  a  temple within. It may also be true historically that when the first  temple was  built in the life time of Vallabha it may have  been  a modest  house  where the original image  was  installed  and during  the  early years just a few devotees may  have  been

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 15 of 45  

visiting the said temple.  Appropriately enough, it was then called  a Haveli.  Later, even when the number  of  devotees increased  and the temples built by the Vallabha sect  began to  collect thousands of visitors, traditional adherence  to time-honoured words described all subsequent temples also as Havelis however big and majestic  585 they  were.   Therefore, we are satisfied that  neither  the tenets  nor the religious practices of the  Vallabha  school necessarily postulate that the followers of the school  must worship in a private temple.  Some temples of this cult  may have  been  private  in the past and some  of  them  may  be private even today.  Whether or ’not a particular temple  is a public temple must necessarily be considered in the  light of  the  relevant  facts relating to it.  There  can  be  no general rule that a public temple is prohibited in  Vallabha School.  Therefore, the first argument urged by the  learned Attorney-General  in  challenging the finding  of  the  High Court  that  the Srinathji temple at Nathdwara is  a  public temple, cannot be accepted. The  question  as to whether a Hindu temple  is  private  or public  has often been considered by judicial decisions.   A temple  belonging to a family which is a private  temple  is not ’Unknown to Hindu law.  In the case of a private  temple it is also not unlikely that the religious reputation of the founder may be of such a high order that the, private temple founded by him may attract devotees in large numbers and the mere  fact  that A large number of devotees are  allowed  to worship in the temple would not necessarily make the private temple a public temple.  On the other hand, a public  temple can  be  built by subscriptions raised by the public  and  a deity  installed to enable all the members of the public  to offer worship.  In such a case, the temple would clearly  be a public temple.  Where evidence in regard to the foundation of the temple is not clearly available, sometimes,  judicial decisions  rely on certain other facts which are treated  as relevant.   Is the temple built in such an  imposing  manner that it may prima facie appear to. be a public temple ?  The appearance  of  the temple of course cannot  be  a  decisive factor;  at  best  it may be a  relevant  factor.   Are  the members of the public entitled to an entry 586 in  the temple ? Are they entitled to take part in  offering service and taking Darshan in the temple ?  Are the  members of  the  public entitled to take part in the  festivals  and ceremonies  arranged  in the temple ?  Are  their  offerings accepted  as  a matter of right ? The participation  of  the members  of the public in the Darshan in the temple  and  in the daily Acts of worship or in the celebrations of festival occasions  may  be a very important factor  to  consider  in determining  the  character of the temple.  In  the  present proceedings,  no  such  evidence has been  led  and  it  is. therefore,  not  shown  that  admission  to  the  temple  is controlled  or  regulated or that there  are  other  factors present which indicate clearly that the temple is a  private temple.  Therefore, the case for the Tilkayat cannot rest on any  such considerations which, if proved., may have  helped to establish either that the temple is private or is public. There  are,  however, certain ancient documents  which  show that the temple cannot be a private temple.  We have already referred  to  the  Firmans issued by  Akbar  and  Shahjahan. These  Firmans are strictly not material for the purpose  of the  present  dispute because they have no relation  to  the temple  at Nathdwara.  However, as a matter of  history,  it may be worthwhile to recall that the Firman issued by  Akbar

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 16 of 45  

on  May 31, 1593 A. D. shows that Vithalraj had  represented to the Darbar that he had purchased on paying its price land from the owners thereof in the Mowzah of Jatipura,  situated in  the  Paraganah, adjoining Gordhan and had caused  to  be built  thereon  buildings, gardens, cowsheds  and  Karkhanas (workshops)  for the temple of Gordhan Nath and that he  was residing there.  Having received this representation,  Akbar issued  an  order that the above-mentioned Mowzah  had  been given  over  tax-free  into the  possession  of  the  above- mentioned  Goswami from descendant to descendant.  It  would thus be seen that though the grant by which the land  587 in  question  was exempted from payment of taxes is  in  the name  of the Goswami, there ’can be no doubt that it was  so named on the representation made by the Goswami that he  had purchased the land and built structures on it for the temple of Gordhan Nath.  Thus, in substance, the grant was made  to the  Goswami  who was managing the temple of  Gordhan  Nath. The  grant of Shah Jahan made in 1633 A. D. is to ’the  same effect.’  These grants are in reference to the temple  built by  Vithalrai  in Jatipura.  We have already seen  that  the idol  of  Shrinathji was’ removed from the said  temple  and brought to Nathdwara in about 1671. The earliest document in regard to Siarh is of the year 1672 A.D. The document has been issued by the Rana of Udaipur and it  says that "Be it know that Shrinathji residing at  Sihod Let uncultivated land as may desire be cultivated till  such time.   When Shrinathji goes back to Brij the land of  those to  whom  it belongs will be returned to them.  If  any  one obstructs in any way he will be rebuked." The next  document is  of 1680 A. D. It has been issued by Rana of Udaipur  and is  in  similar terms.  It says that when  Shririathji  goes back  to Brij from Singhad Brahmins will get the land  which is of the Brahmins.  ’I hey will get the land as is  entered in  previous records.  So long as Shrinathji stays here,  no Brahmin  shall cultivate towards the West of Shah  Jagivan’s wall  up to and across the foot of the hillock.  If any  one cultivates a fine of Rs. 225/shall be realised collectively. Fortunately, for Nathdwara, the temple which was then  built for  Shrinathji for a temporary abode has turned out  to  be Shrinathji’s  permanent  place  of  residence.   These   two documents  clearly show that after Shrinathji was  installed in what is now known as Nathdwara, the land occupied for the purpose  of the temple was given over for that  purpose  and the  actual  occupants and cultivators were told  that  they would get the land back when Shrinathji goes back to Brij. 588 We have already cited the extract from Col.  Todd’s  ’Annals of  Rajasthan’  in which he has  Graphically  described  the traditional belief in regard to the choice of Siarh for  the abode  of Shrinathji.  That extract shows that as  soon  the chariot wheel of Shrinathji stopped and would not move,  the chief  hastened to make a perpetual gift of the village  and its lands which was speedily confirmed by the patent of  the Rana.  Nathji was removed from his car and in due course  of time  a temple was erected for his reception.  That  is  how the  hamlet  of Siarh became the town  of  Nathdwara.   This assurance given by the chief was confirmed by the two grants to which we have just referred.  Thus, there can be no doubt that the original grants were for the purpose of the temple. A deed of dedication executed by Maharana Shri Bhim  Singhji in  favour  of Gusainji in Sambat 1865 also shows  that  the lands  therein  described had been dedicated to  Shriji  and Shri  Gusainji  and that all the income  relating  to  those lands would be dedicated to the Bhandar of Shriji.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 17 of 45  

A letter written by the Maharana on January 17, 1825, speaks to the same effect.  "Our ancestors," says the letter, "kept the Thakurji Maharaj and the Gosainji Maharaj at the village of Shinhad which is near Udaipur and presented that  village to the Thakurji.  After this, our ancestors became followers of  that  religion  and agreed to  obey  orders.   They  all granted  lands  and villages for the expenses  of  the  God. Besides these certain lands were granted for the grazing  of the  cows belonging to the Thakurji." This  letter  contains certain  orders to the officers of the State to respect  the rights of the temple and Gosainji. Consistently with this record, we find a declaration made by Tilkayat Gordhanji in 1932 in which he  589 stated  that "the money of Shri Thakurji as is the  practice now,  that  it is not spent in our private  expenditure  the same  will be followed", though along with this  declaration he  added that the proprietary right was ’his own  from  the time  of  the ancestors.  In conformity with the  same,  the entry  will continue as usual in the accounts of credit  and debit  as  is  the continuing  mutation.   Even  though  the Tilkayat set up the claim that the temple was private, it is consistently  adhered  to that the income derived  from  the properties of the temple is not intended to be and has never been used for the personal requirements of the Tilkayat. It  is  true  that there are other grants  which  have  been produced  on the record by the Tilkayat for the  purpose  of showing that some gifts oil immovable property were made  in favour  of the Tilkayat.  Such grants may either  show  that the  gifts were made to the Tilkayat because he was  in  the management of the temple, or they may have’ been made to the Tilkayat  in his personal character.  Grants falling in  the former category would constitute the property of the temple, whilst those falling in the latter category would constitute the  private  property  of  the  Talikayat.   These  grants, however,  would not affect the nature of the initial  grants made to the temple soon after Shrinatliji came to Nathdwara. Therefore  in our opinion, having regard to the  documentary evidence  adduced  in the present proceedings, it  would  be unreasonable  to  contend that the temple was built  by  the Tilkayat of the day as his private temple and that it  still continues  to have the character of a private temple.   From outside  it no doubt has the appearance of a Haveli, but  it is  common  ground  that the majestic  structure  inside  is consistent  with  the  dignity of the  idol  ’and  with  the character of the temple as a public temple. We have referred to these aspects of the matter because they were elaborately argued before us by 590 the  learned  Attorney-General.  But as  we  will  presently point  out, the Firman issued by the Udaipur Darbar in  1934 really  concludes  the controversy between  the  parties  on these  points  and it shows that the  Shrinathji  Temple  at Nathdwara is undoubtedly a public temple.  It is  therefore, now necessary to consider this Firman.  This Firman consists of  four clauses.  The first clause declares that  according to the law of Udaipur, the shrine. of Shrinathji has  always been and is a religious institution for the followers of the Vaishnava Sampradaya and that all the property immovable and movable  dedicated,  offered or presented  to  or  otherwise coming  to the Deity Shrinathji has always been and  is  the property  of the shrine ;and that the Tilkayat  Maharaj  for the time being is merely a Custodian, Manager and Trustee of the said property for the shrine of Shrinathji and that  the Udaipur  Darbar  has absolute right to  supervise  that  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 18 of 45  

property  dedicated  to the shrine is  used  for  legitimate purpose  of  the shrine.  The second clause deals  with  the question  of  succession  and it provides that  the  law  of Udaipur  has always been and is that the succession  to  the Gaddi  of  Tilkayat  Maharaj  is regulated  by  the  law  of Primogeniture,  and it adds that the Udaipur Darbar has  the absolute  right to depose any Tilkayat Maharaj for the  time being  if  in  its  absolute  discretion  such  Maharaj   is considered  unfit  and also for the same reason and  in  the same  way to disqualify any person who would otherwise  have succeeded   to   the   Gaddi  according  to   the   law   of primogeniture.   The third clause provides that in case  the Tilkayat  Maharaj is a minor, the Darbar always had and  has absolute’ authority to take any measures for the  management of’ the shrine and its properties during such minority.  The last  clause  adds that in accordance with the said  law  of Udaipur,  the Rana had declared Shri Domodarlalji  unfit  to occupy  the  Gaddi  and had approved of  the  succession  of Goswami Govindlalji to the Gaddi of Tilkayat,  591 Maharaj,  and  it  ends with the statement  that  the  order issued in that behalf on October 10, 1933, was issued  under his  authority and is lawful and in accordance with the  law of Udaipur. In  appreciating  the ’effect of this Firman,  it  is  first necessary to decide whether the Firman is a law or not.   It is matter of common knowledge that at the relevant time  the Maharana  of Udaipur was an absolute monarch in whom  vested all  the legislative, judicial and executive powers  of  the State.   In the case of an absolute Ruler like the  Maharana of Udaipur, it is difficult to make any distinction  between an  executive order issued by him or a  legislative  command issued  by ’him.  Any order issued by such a Ruler  has  the force  of  law  and did govern the  rights  of  the  parties affected thereby.  This position is covered by decisions  of this  Court  and it has not been disputed  before  us,  Vide Madhaorao Phalke v. The State of Madhya Bharat (1).   Ammer- un-Nisa   Begam  v.  Mahboob  Begum  (2)  and  Director   of Endowments, Government of Hyderabad v. Akram Ali It  is true that in dealing with the effect of this  Firman, the  learned  Attorney-General sought to raise before  us  a novel  point that under Hindu law even absolute monarch  was not  competent to make a law affecting religious  endowments and  their  administration.  He suggested that he was  in  a position to rely upon. the opinions of scholars which tended to  show  that  a  Hindu  monarch  was  competent  only   to administer  the  law as prescribed by Smritis and  the  oath which he was expected to take at the time of his  coronation enjoined  him  to  obey the Smritis and to  see  that  their injunctions were obeyed by his subject. We do not allow  the learned  Attorney General to develop this point  because  we hold that this novel point cannot be accepted in view of the well-recognised principles of jurisprudence.  An (1) [1960] 1 S.C.R. 957. (2) A.I.R. 1955 S.C. 352. (3) A.I.R. 1956 S.C. 60. 592 absolute  monarch was the fountain-head of all  legislative, executive and judicial powers and it is of the very  essence of  sovereignty which vested in him that he could  supervise and  control the administration of the public  charity.   In our opinion, there is    no   doubt   whatever   that   this universal  principle  in regard to the scope of  the  powers inherently  vesting in sovereignty applies as much to  Hindu monarchs  as to any other absolute monarch.   Therefore,  it

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 19 of 45  

must  be  held  that the Firman issued by  the  Maharana  of Udaipur  in  1934  is  a law by which  the  affairs  of  the Nathdwara  temple  and  succession  to  the  office  of  the Tilkayat were governed after its issue. Then the learned’ Attorney-General contended that in judging about  the  effect of this Firman we should not  ignore  the background   of   events  which  necessitated   its   issue. Damodarlalji had been deposed by Maharana and it was more in anger  that the Firman was issued to meet the  challenge  of the  said incident.  Damodarlalji had filed certainsuits  in the  Bombay High Court and it appeared as if a  doubt  would arise  in  the minds of the followers and  devotees  of  the temple  as  to whether the deposition  of  Damodarlalji  was valid  or  not.  It was with a view to  meet  this  specific particular  situation that the Firman was issued and so,  it need not be treated as a law binding for all times.  In  our opinion,  this argument is clearly  misconceived.   Whatever may  be  the genesis of the Firman and whatever may  be  the nature of the mischief which it was intended to redress, the words  used  in  the  Firman are  clear  and  as  provisions contained  in  a  statute they must be  given  full  effect. There can be little doubt that after this Firman was issued, it  ’would  not  be  open to  anyone  to  contend  that  the Shrinathii  temple  was a private temple  belonging  to  the Tilkayat Maharaj of the day.  This law declares that it  has always  been  and  would always be  a  public  temple.   The validity of this law was not then and is not now open to any  593 challenge  when  it  seeks to declare  that  the  temple  in question  has always been a public temple.  We have  already seen that the original grants amply bear out the recital  in cl.   1  of the Firman about the character of  this  temple. The  fIrman then clearly provides that the TilkayaT  Maharaj is  merely  a  Custodian, Manager and Trustee  of  the  said property  and  that  finally determines the  nature  of  the office held by the Tilkayat Maharaj.  He can claim no better and no higher rights after the Firman was issued.  The  said clause  also declares that the Darbar has absolute right  to see  to it that the property is used for legitimate  purpose of the shrine.  This again is an assertion which is  validly made  to  assert  the sovereign’s rights  to  supervise  the administration  of public charity.  Clause 2 lays  down  the absolute  right of the Darbar to depose the Tilkayat and  to disqualify anyone from claiming the succession to the Gaddi. It shows that succession to the Gaddi and continuing in  the office   of  the  Tilkayat  are  wholly  dependent  on   the discretion of the Darbar.  The Right of the Darbar to depose the  Tilkayat  and  to  recognise  a  successor  or  not  is described  by  this clause as absolute.  The third  and  the fourth  clauses are consistent with the first  two  clauses. Reading  this Firman as a whole, there can be no doubt  that under  the  law  of Udaipur, this temple was held  to  be  a public  temple and the Tilkayat was held to be no more  than the Custodian, Manager and Trustee of the property belonging to the said temple.  It is on the basis of this law that the vires of the Act must inevitably be determined. The  learned Attorney General has invited our  attention  to some  decisions in which the temples of this cult were  held to be private temples.  ’We would now very briefly refer  to these  decisions  before we proceed to deal with  the  other points  raised  in the present appeals.   In  Gossamee  Sree Greedhareejee  v  Rumanlolljee  Gossantee,  (1),  the  Privy Council held that when the worship of a Thakoor has been (1)16 1. A. 137. 594

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 20 of 45  

founded  under  Hindu  law, the shebaitship is  held  to  be vested  in the heirs of the founder, in default of  evidence that he has disposed of it otherwise, or that there has been some  usage, course of dealing, or circumstances to  show  a different  mode  of devolution.  Greedhareejee  who  as  the plaintiff     appeared  before  the  Privy  Council  as   the appellant  had been deposed by the Rana of Udaipur in  1876. He   claimed  the  rights  of  shebaitship  of  a   certain. consecrated idol and as incident thereto to the things which had  been offered to the idol.  This claim was based on  the allegation  that  by  the  rule  of  primogeniture  he   had preferential   right  and  not  his  opponent   Rumanlolijee Gossamee.  The High Court of Calcutta by a majority judgment had  held that Greedhareejee’s title as a founder  had  been established  and that the bar of limitation pleaded  by  the respondent  applied to the temple and the land on  which  it was  built  but not to the image and  the  movable  property connected  with  it.   In the result,  Greedhareejee  got  a decree  for so much of his claim as was not barred by  lapse of  time.   This  conclusion  was  confirmed  by  the  Privy Council.   It  would be noticed that since the  dispute  was between  two rival claimants neither of whom was  interested in pleading that the temple was a public temple, that aspect of  the  matter did not fall to be considered  in  the  said litigation, and so, this decision can be regarded as an  au- thority  only  for  the proposition which it  laid  down  in regard  to the succession of the Shebaitship.   The  learned Attorney-General no doubt invited our attention to the  fact that  in  the  course of his  judgment,  Lord  Hobhouse  has mentioned that all the male members of the Vallabh’s  family are  in  their  lifetime  esteemed  by  their  community  as partaking  of  the  Divine  essence,  and  as  entitled   to veneration  and worship.  This observation, however, can  be of  little help to the Tilkayat in the  present  proceedings where  we have to deal with the matter on the basis  of  the Firman to which we have just referred.  Besides, we  595 may incidentally add that the Tilkayat’s claims to  property rights  in the present proceedings based on  the  allegation that the members ’of the denomination regard all  successors of  Vallabha  with  the  same respect  which  they  had  for Vallabha  himself,  sounds incongruous  with  the  essential tenets of Vallabha’s philosophy. In  Mohan Lalji v. Gordihan Lalji Maharaj the dispute  which was  taken  before the Privy ’Council was in regard  to  the right  claimed by the sons of a daughter to the  shebaitship of  the temple of Vallabha sect, and in support of the  said right  the  sons  of the daughter relied  upon  the  earlier decision of the Privy Council in the-case of Gossammee  Sree Girdharejee  (2)   In rejecting the plea made  by  the  said sons,  the  Privy Council observed that the  principle  laid down in the earlier case cannot be applied so as to vest the shebaitship  in persons who, according to the usages of  the worship,  cannot perform the rites of the office.   In  that case  it  was found that the sons of the daughter  who  were Bhats  and  who  did  not belong  to  the  Gosain  Kul  were incompetent  to  perform the "’diurnal rites for  the  deity worshipped  by  the sect" and so, the decision of  the  High Court which had rejected their claim was confirmed.  In this case  again  neither party was interested  in  pleading  the public  character of the temple and so, that point  did  not arise for decision. The same comment falls to be made about the decision of  the Allahabad  High Court in Gopal Lalji v. Girdhar  Lalji  (3). It is true that in that case the plaintiff challenged a gift

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 21 of 45  

deed executed by one Goswami of the Vallabha sect in  favour of  another  Goswami and in doing so he at  leged  that  the donor  Goswami  was  a  Trustee and not  the  owner  of  the property.   But  in  the  course of  the  evidence,  it  was virtually conceded by him that the property belonged to  the donor Goswami, and so, the case was, (1) 40 1. A. 97. (2) 16 I.A. 137. (3)  A.I.R 1915 All. 44. 596 decided  on  that basis.  In its judgment,  the  High  Court observed  that there can be no doubt that if we must  regard the  property  as  "trust property"  in  the  strict  sense, dedicated  for  a charitable or religious  purpose  in,  the hands  of  duly constituted trustees of  the  charitable  or religious object, one or more of such trustees would have no power  to  alienate  the trust property  or  delegate  their powers and duties contrary to the trust.  But the High Court found  that  the evidence adduced  conclusively  established that  the property in question was private property and  so, the  challenge  to the validity of the  gift  was  repelled. This  decision also cannot be of any assistance in  deciding the question as to whether the temple with which the present proceedings  concerned  is  a private or  a  public  temple. Besides,  as  we have already indicated,  this  question  is really  concluded by the Firman of 1934 and so,  the  temple must  be held to be a public temple and in  consequence  the challenge to the validity of the Act on’ the basis that  the Act  has interfered with the Tilkayat’s rights of  ownership over his private property cannot succeed. Let us now examine the material provisions of the Act before dealing  with the contentions of the Tilkayat that the  said provisions  contravene his fundamental rights under Art.  19 (1)  (f) and Arts. 14 and 31(2) even on the basis  that  the temple  is a public temple.  The Act was passed  to  provide for  the better administration and governance of the  temple of  Shri  Shrinathii,  at  Nathdwara.   It  consists  of  38 sections.  Section 2 is a definition section; under s.  2(i) "Board"  means  the Nathdwara Temple Board  established  and constituted under the Act, and s. 2 (ii) defines "Endowment" as  meaning all property, movable or immovable belonging  to or  given  or  endowed in any name for  the  maintenance  or support of the temple or for the performance of any  service or   charity  connected  therewith  or  for   the   benefit, convenience or comfort of the pilgrims visiting the  temple, and   597 includes-               (a)   the idols installed in the temple.               (b)   the premises of the temple.               (c)   all jagirs, muafis and other properties,               movable or immovable, wherever situate and all               income derived from any source whatsoever  and               standing in any name, dedicated to the  temple               or   placed  for  any  religious,   pious   or               charitable   purposes  under  the   Board   or               purchased from out of the temple funds and all               offerings and bhents made for and received  on               behalf of the temple.               but  shall not include any property  belonging               to the Goswami personally although the same or               income  thereof  might.  hitherto  have   been               utilised in part or in whole in the service of               the temple. Section  2 (viii) defines "temple" as meaning the temple  of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 22 of 45  

Shri  Shrinathji  at  Nathdwara  in  Udaipur  District   and includes  the  temple of Shri Navnitpriyaji and  Shri  Madan Mohanlalji  together  with  all  additions  thereto  or  all alterations  thereof  which may be made from  time  to  time after the commencement of the Act. Sections  3  and  4 are important  provisions  of  the  Act. Section 3 provides that the ownership of the temple and  all its  endowments including- all offerings which have been  or may  hereafter  be  made shall vest in  the  deity  of  Shri Shrinathji and the Board constituted under the Act shall  be entitled to their possession.  In other words, all  property of  the  temple vests in the temple and the right  to  claim possession of it vests in the Board.  As a corollary to 598 the  provisions  of s. 3, s. 4(1) provides  that  the  admi- nistration  of the temple and all its endowments shall  vest in the Board constituted in the manner hereinafter provided. Sub-section  (2)  lays down that the Board shall be  a  body corporate  by  the name of the Nathdwara  Temple  Board  and shall have perpetual succession and a common seal with power to  acquire and hold property, both movable  and  immovable, and may sue or be sued in the said name.  The composition of the Board has been prescribed by s. 5: it shall consist of a President, the Collector of Udaipur District and nine  other members.   The proviso to the section is important: it  says that  the Goswami shall be one of such members if he is  not otherwise  disqualified  to be a member and  is  willing  to serve    as   such.    Section   5   (2)   prescribes    the disqualifications    specified    in    clauses    (a)    to (g)--unsoundness  of  mind  adjudicated  upon  by  competent Court, conviction involving moral turpitude; adjudication as an  insolvent  or the status of an  undischarged  insolvent; minority, the defect of being deaf-mute or leprosy;  holding an  office  or  being a servant of the temple  or  being  in receipt  of any emoluments or perquisites from the temple  ; being interested in a subsisting contract entered into  with the  temple ; and lastly, not professing the Hindu  religion or not belonging to the Pushti-margiya Vallabhi  Sampradaya. There  can  be no doubt that "or" in clause  (g)  must  mean "and", for the context clearly indicates that way.  There is a   proviso   to  s.  5  (2)  which  lays  down   that   the disqualification  as  to  the holding of  an  office  or  an employment  under the temple shall not apply to the  Goswami and  the disqualification about the religion will not  apply to  the  Collector ; that is to say, a Collector will  be  a member of the Board even though he may not be a Hindu and  a follower  of the denomination.  Section 5 (3) provides  that the  President of the Board shall be appointed by the  State Government  and  shall for all purposes be deemed  to  be  a member.  Under s. 5 (4) the  599 Collector  shall  be  an ex-officio  member  of  the  Board. Section 5 (5) provides that all the other members  specified in  sub-cl. (1) shall, be appointed by the State  Government so  as  to  secure  representation  of  the   Pushti-Margiya Vaishnavas  from all over India.  This clearly  contemplates that  the  other  members of the Board should  not  only  be Hindus,  but should also belong to the denomination, for  it is  in  that manner alone that their representation  can  be adequately   secured.   Section  6  gives  liberty  to   the President  or  any member to resign his office by  giving  a notice in writing to the State Government.  Under s. 7  (1), the  State  Government  is given the power  to  remove  from office  the  President  or any member, other  than  the  ex- officio  member, including the Goswami on any of  the  three

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 23 of 45  

grounds  specified  in clauses (a), (b) & (c) ;  ground  (a) refers to the disqualification specified by s. 5 (2), ground (b)  refers to the absence of the member for more than  four consecutive  meetings of the Board without  obtaining  leave for  absence  ; and ground (c) refers to the  case  where  a member  is  guilty  of  corruption  or  misconduct  in   the administration  of  the endowment Section 7 (2)  provides  a safeguard  to the person against whom action is intended  to be  taken under sub-cl. (1) and it lays down that no  person shall  be  removed  unless he has been  given  a  reasonable opportunity of showing cause against his removal.  It  would be  noticed  that by operation of s. 7 (1), the  Goswami  is liable to be removed, but that removal would, in a sense, be ineffective  because the proviso to s. 5 requires  that  the Goswami has to be a member of the Board so that even  though he is removed for causes (b) and (c), he would automatically be deemed to be a member under the proviso to s. 5. It would be  a different matter if the  Goswami is removed by  reason of  the fact that he is disqualified on any of  the  grounds described  in  s.  5  (2).   ’Such  a  disqualification  may presumably  necessitate  the  appointment  of  a  successor, Goswami in lieu of the disqualified’ 600 one and then it would be the successor Goswami who will be a member  of  the Board under the proviso to s. 5  (1).   This position  is made clear if we look at s. 11  which  provides that  any  person  ceasing  to be  a  member  shall,  unless disqualified under s. 5 (2) be eligible for re  appointment, whereas  other  members who are removed under s. 7  (1)  for causes specified in clauses (b) and (c) may not be  eligible for reappointment, the Goswami would be entitled to such re- appointment.   Section 8 prescribes the term of office at  3 years.   Section  9 provides for the filling  up  of  casual vacancies.   Section  10 empowers the  State  Government  to dissolve  the Board and reconstitute it if it  is  satisfied that  the  existing  Board is not competent  to  perform  or persistently makes default in performing the duties  imposed on  it under this Act, or exceeds or abuses its powers;  and this power can be exercised after due enquiry.  This section further  provides  that if a Board is  dissolved,  immediate action  should  be taken to reconstitute a  fresh  Board  in accordance with the provisions of this Act.  Section 10  (2) provides  a safeguard to the Board against which  action  is proposed  to  be  taken  under sub-s.  (1)  inasmuch  as  it requires  that  before  the  notification  of  the   Board’s dissolution  is issued, Government will communicate  to  the Board  the  grounds  on which it proposes so to  do,  fix  a reasonable time for the Board to show cause and consider its explanation or objections, if any.  Section 10 (3)  empowers the State Government, as a provisional and interim  measure, to  appoint a person to perform the functions of  the  Board until  a fresh Board is reconstituted, and under s. 10  (4), the State Government is given the power to fix the remunera- tion  of  the person so appointed.  Section 12  makes  every member of the Board liable for loss, waste or misapplication of  any money or property belonging to the temple,  provided such loss, waste or misapplication is a direct  consequence. of  his wailful act or omission, and it allows a suit to  be instituted to  601 obtain such compensation.  Under s. 13, members of the Board as well as the President are entitled to draw travelling and halting  allowances as may be prescribed.  Section 14  deals with the office and meetings of the Board and s. 15 provides that any defect or vacancy in the constitution of the  Board

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 24 of 45  

will  not invalidate the acts of the Board.  Section  16  is important.   It lays down that subject to the provisions  of this  Act and of the rules made thereunder, the Board  shall manage the properties and affairs of the temple and  arrange for  the conduct of the daily worship and ceremonies and  of festivals  in the temple according to the customs and  usage of  the Pushti-Margiya Vallabhi Sampradaya.  Section 17  (1) provides  that  the jewelleries or other  valuable  moveable property of a non-perishable character the administration of which  vests in the Board shall not be  transferred  without the previous sanction of the Board, and if the value of  the property to be transferred exceeds ten thousand rupees,  the previous  approval  of  the  State  Government  has  to   be obtained.  Section 17 (2) requires the previous sanction  of the  State  Government for leasing the temple  property  for more than’ five years, or mortgaging selling or    otherwise alienating it. Section 18     poses a ban    on   the borro- wing  power of the Board.  Section 19 (1) provides  for  the appointment of the Chief.  Executive Officer of the  temple, and  the remaining four subsections of s. 19 deal  with  his terms  and conditions of service.  Section 20 speaks of  the powers  and  duties  of the Chief  Executive  Officer  which relate  to  the  administration of  the  temple  properties. Section  21  provides that the Board may  appoint,  suspend, remove,  dismiss or reduce in rank or in any way punish  all officers  and  servants of the Board other  than  the  Chief Executive  Officer,  in accordance with rules  made  by  the State  Government.   Section  22  is  very  important.    It provides  that  save as otherwise expressly provided  in  or under this Act, nothing 602 herein  contained shall affect any established usage of  the temple or the rights, honours, emoluments and perquisites to which any person may, by custom or otherwise, be entitled in the  temple.  Section 23 deals with the budget, s.  24  with accounts and s. 25 with the Administration Report.   Section 26  confers on the State Government power to call  for  such information  and  accounts  as  may.,  in  its  opinion,  be reasonably necessary to, satisfy it that the temple is being properly  maintained,  and  its  administration  carried  on according  the provisions of this Act.  Under this  section, the  Board is under an obligation to furnish forthwith  such information  and accounts as may be called for by the  State Government.   Under s. 27, the State Government  may  depute any  person  to inspect any movable or  immovable  property, records, correspondence, plans, accounts and other documents relating to the temple and endowments, and the Board and its officers   and  servants  shall  be  bound  to  afford   all facilities  to  such persons for such  inspection.   Section 28(1)  specifies  ’the purposes for which the funds  of  the temple  may be utilised and s. 28(2) provides  that  without prejudice  to  the purposes referred to in sub-s.  (1),  the Board   may,  with  the  previous  sanction  of  the   State Government,  order that the surplus funds of the  temple  be utilised  for the purposes mentioned in clauses (a) to  (e). Section  28(3)  requires that the order of the  Board  under sub-s.  (2)  shall be published in  the  prescribed  manner. Section  29  deals with the duties of  trustee  of  specific endowment;   s.  30(1)  confers  the  power  on  the   State Government to make rules for carrying out all or any of  the purposes  of the Act ; s. 30(2) provides that in  particular and  without  prejudice to the Generality of  the  foregoing power,  the State Government shall have power to make  rules with  reference  to matters covered by clauses (a)  to  (i). Under  sub-section  (3) it is provided that the  rules  made

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 25 of 45  

under  this  Act" shall be placed before the  House  of  the State  603 Legislature at the session thereof next following.   Section 31  provides  that  the  State  Government  or  any   person interested  may  institute a suit in the Court  of  District judge  to  obtain  a decree for  the  reliefs  mentioned  in clauses (a) to (e).  These reliefs correspond to the  relief which  may be obtained in a suit under s. 92 Code  of  Civil Procedure.   In consequence, s. 31(2) provides that  ss.  92 and  93 and 0. I r. 8, of the First Schedule to the Code  of Civil  Procedure  shall  have no  application  to  any  suit claiming  any  relief in respect of  the  administration  or management  of  the temple and no suit  in  respect  thereof shall  be  instituted except as provided by  this  Act.   In other  words,  a suit which would normally have  been  filed under  ss. 92 and 93 and 0. 1, r. 8, of the Code has now  to be filed under s. 31.  Section 32 deals with the  resistance or obstruction in obtaining possession and it provides  that the  order  which may be passed by the  Magistrate  in  such matters  shall, subject to the result of any suit which  may be  filed  to establish the right to the possession  of  the property, be final.  Section 33 deals with the costs of  the suit,  etc.  Section- 34 provides that this Act  shall  have effect  notwithstanding anything to. the contrary  contained in  any law for the time being in force or in any scheme  of management framed before the commencement of this Act or  in any  decree, order, practice, custom or usage.   Section  35 contains a transitional provision and it empowers the  State Government  to appoint one or more persons to discharge  all or any of. the duties of the Board after the Act comes  into force  and before the first Board is constituted.  Under  s. 36  it is provided that if any difficulty arises  in  giving effect  to  any  of the provisions of this  Act,  the  State Government may, by order, give such directions and make such provisions  as  may appear to it to be  necessary  for  the, purpose of removing the difficulty.  Section 37 prescribes a bar to suit or proceeding against the.  State Government for anything done or purported to be done by 604 it under the provisions of this Act.  The last section deals with  repeal and savings.  The Rajasthan Ordinance No. 2  of 1959  which had preceded this Act has been repealed by  this section.  That in brief, is the scheme of the Act. Later,  we  will  have occasion to deal  with  the  specific sections  which have been challenged before us, but at  this stage,  it is necessary to consider the broad scheme of  the Act  in order to be able to appreciate the points raised  by the  Tilkayat  and  the  denomination  in  challenging   its validity.   For the purpose of ascertaining the  true  scope and  effect  of  the  scheme envisaged  by  the  Act  it  is necessary  to concentrate on sections 3, 4, 16, 22  and  34. The  scheme  of the Act, as its preamble  indicates,  is  to provide for the better administration and governance of  the temple of Shri Shrinathji at Nathdwara.  It proceeds on  the basis  that the temple of Shrinathji is a public temple  and having regard to the background of the administration of its affairs  in  the past, the legislature thought that  it  was necessary  to make a more satisfactory provision which  will lead to its better administration and governance.  In  doing so,  the legislature has taken precaution to  safeguard  the performance  of  religious  rites  and  the  observance   of religious practices in accordance with traditional usage and custom.   When the validity of any legislative enactment  is impugned   on  the  ground  that  its  material   provisions

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 26 of 45  

contravene  one.  or  the other of  the  fundamental  rights guaranteed  by the Constitution, it is necessary to bear  in mind  the  primary rule of construction.   If  the  impugned provisions  of  the  Statute are  reasonably  capable  of  a construction which does not involve the infringement of  any fundamental  rights,  that construction  must  be  preferred though  it  may  reasonably be  possible  to  adopt  another construction  which  leads to the infringement of  the  said fundamental rights.  If the impugned  605 provisions  are reasonably not capable of  the  construction which  would  save its validity, that of course  is  another matter;  but if two constructions are  reasonably  possible, then  it  is  necessary that the Courts  should  adopt  that construction  which upholds the validity of the  Act  rather than the one which affects its validity.  Bearing this  rule of  construction in mind, we must examine the five  sections to which we have just referred.  Section 3 no doubt provides for  the  vesting  of  the  temple  property  and  all   its endowments  including offerings in the deity of  Shrinathji, and  that  clearly is unexceptionable.  If the temple  is  a public  temple, under Hindu Law the idol of Shrinathji is  a juridical  person and so, the ’ownership of the  temple  and all it-, endowments including offerings made before the idol constitute  the  property of the idol.  Having  thus  stated what  is the true legal position about the ownership of  the temple  and  the endowments, s. 3 proceeds to add  that  the Board  constituted under this Act shall be entitled  to  the possession  of  the  said  property.   If  the   legislature intended  to  provide for the better administration  of  the temple properties, it was absolutely essential to constitute a  proper Board to look after the Said  administration,  and so,  all that s. 3 does is to enable the Board to take  care of the temple properties and in that sense, it provides that the Board shall be entitled to claim possession of the  said properties.   In the context. this provision does  not  mean that  the Board would be entitled to dispossess persons  who are  in posses-;ion of the said properties : it  only  means that the Board will be entitled to protect its possession by taking such steps as in -law may be open to it and necessary in  that  behalf.   Section 4 is a mere corollary  to  s.  3 because  it provides that the administration of  the  temple and  all its endowments shall vest in the Board.  Thus,  the result  of reading ss. 3 and 4 is that the statute  declares that  the  properties  of the temple vest in  the  deity  of Shrinathji and provides for the administration of the said 606 properties by appointing a Board and entrusting to the Board the said administration. The  true  scope  and  effect of  these  provisions  can  be properly appreciated only when they are corelated to ss.  16 and  22  section 16 prescribes the duties of the  Board;  it requires  that subject to the provisions of the Act and  the rules  framed  under  it,  the  Board  has  to  manage   the properties  and  affairs of the temple and arrange  for  the conduct of the daily worship and ceremonies and of festivals in  the  temple according to the customs and usages  of  the Pushtimargiya Vallabhi Sampradaya.  It would be noticed that two  different  categories of duties are  imposed  upon  the Board.The first duty is to manage the properties and secular affairs of the temple.This naturally is a    very  important part of the assignment of the Board.    Having thus provided for the discharge of its important function in the matter of administering the properties of the temple, the section adds that  it  Will be the duty of the Board to arrange  for  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 27 of 45  

religious  worship, ceremonies and festivals in  the  temple but this has to be done according to the customs and  usages of  the denomination.  It is thus clear that the  duties  of the Board in so far as they relate to the worship and  other religious  ceremonies and festivals, it is  the  traditional customs  and  usage which’ is of Paramount  importance.   In other  words,  the  legislature  has  taken  precaution   to safeguard  the clue observance of the religious  ceremonies, worship  and festivals according to the custom and usage  of the  denomination.   Section 22 makes  this  position  still clearer;  it  provides  that  save  as  otherwise  expressly provided in or under the Act, nothing herein contained shall affect  any established usage of the temple or  the  rights, honours, emoluments and perquisites to which any person may, by  custom  or otherwise, be entitled in  the  temple.   The saving provisions of s. 22 are very wide; unless there is an express provision to the contrary in the  607 Act,  all  matters which have been saved by s.  22  will  be governed  by the traditional usage and custom.  If  only  we consider  the  very wide terms in which  the  saving  clause under  s.  22 has been drafted, it will be  clear  that  the legislature   was   anxious  to  provide  for   the   better administration of the temple properties and not to  infringe upon  the  traditional  religious  ceremonies,  worship  and festivals in the temple and the rights, honours,  emoluments and  the  perquisites attached thereto.   Section  34  which provides for the over-riding effect of the Act must be  read along with s. 22 and so, when it provides that the Act shall have  effect notwithstanding practice, custom or  usage,  it only means that practice, custom and usage will not avail if there is an express provision to the contrary as  prescribed by s. 22. Reading  these five sections together, it seems to us  clear that  the Legislature has provided for the appointment of  a Board  to look after the administration of the  property  of the  temple  and manage its secular affairs as well  as  the religious  affairs  of the temple, but in  regard  to  these religious    affairs    consisting    of    the     worship, services,  .festivals  and  other  ceremonies,  the   custom prevailing  in  the temple consistently with the  tenets  of Vallabha  philosophy  are  to  be  respected.   The  learned Attorney-General no doubt attempted to read ss. 3 and 4 in a very   wide  manner  and  he  sought  to  place   a   narrow construction   on  s.  22,  thereby  indicating  that   even religious  ceremonies and rites and festivals  would  remain within  the  exclusive  jurisdiction of  the  Board  without reference  to  the traditional custom or usage.  We  do  not think that it would be appropriate to adopt such an approach in  construing the relevant provisions of the Act.  We  have no  doubt that when rule are framed under s. 30 of the  Act, they  would  be  framed  bearing  in  mind  these  essential features of the material provisions of the Act and will help to carry out the object of the Act in keeping the  religious part of the services and wor- 608 ship  at  the  temple apart from the  secular  part  of  the administration  of the temple properties.  Broadly  .stated, the former will be carried out according to the  traditional usage and custom and the latter according to the  provisions of the Act. On  behalf  of the Tilkayat, the main contention  which  has been  raised  before us by the learned  Attorney-General  is that his right of property has been infringed under Art.  19 (1)  (f)  and  Mr.  Pathak  has  added  that  the   relevant

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 28 of 45  

provisions infringed the Tilkayat’s rights under Art. 31 (2) of  the  Constitution.  As we have already  indicated,  this latter  contention is raised in the writ petition  filed  by the Tilkayat in this Court.  Now in deciding the validity of these  contentions it is necessary to revert to  the  Firman issued by the Rana of Udaipur in 1934, because the rights of the  Tilkayat  have to be judged in the light  of  the  said Firman.   We  have  already noticed  that  the  said  Firman clearly  declares that the Tilkayat is merely  a  Custodian, Manager and Trustee of the property of the shrine Shrinathji and  that  the  Udaipur Darbar has  the  absolute  right  to supervise that the property dedicated to the shrine is  used for legitimate purpose of the shrine.  Having regard to  the unam  biguous  and emphatic words used in clause  1  of  the Firman  and  having  regard  to  other  drastic   provisions contained in its remaining clauses, we are inclined to think that  this  Firman made the Tilkayat for the  time  being  a Custodian,  Manager  and Trustee, and nothing  more.   As  a Custodian  or  Manager,  he  had the  right  to  manage  the properties of the temple, subject, of course, to the overall supervision  of the Darbar, the right of the Darbar in  that behalf  being absolute.  He was also a Trustee of  the  said property  and the word "’trustee" in the context  must  mean trustee in the technical legal sense.  In other words, it is not  open to the Tilkayat to claim that he has rights  of  a Mahant  or  a  Shebait; his rights are now  defined  and  he cannot claim any higher rights after the Firman was  issued. There can be no doubt that the right to  609 have the custody of the property such as the Custodian  has, or  the  right  to manage the property such  as  the  Manger possesses, or the right to administer the trust property for the  benefit  of the beneficiary which the Trustee  can  do, cannot  be  regarded as a right to property  under  Art.  19 (1)(f)  and  for  the same reason, it  does  not  constitute property under Art. 31(2).  If it is held that the  Tilkayat was  no more than a Custodian, Manager and Trustee  properly so called, there can be no doubt that he is not entitled  to rely  either on Art. 19(1)(f) or on Art. 31(2).   Therefore, on  this construction of clause 1 of the Firman,  the  short answer  to  the  pleas raised by the  Tilkayat  under  Arts. 19(1)(f)  and 31(2) is that the rights such as he  possesses under  the said clause cannot attract Art. 19(1)(f) or  Art. 31(2). It  has, however, been strenously urged before us  that  the words  "Custodian, Manager or Trustee" should  be  liberally construed  and the position of the Tilkayat should be  taken to be similar to that of a Mahant of a Math or a Shebait  of a  temple.   Under  Hindu  Law, idols  and  Maths  are  both juridical persons and Shebaits and Mahants who manage  their properties  are recognised to possess certain rights and  to claim  a certain status.  A Shebait by virtue of his  office is  the person entitled to administer the property  attached to the temple of which he is a Shebait.  Similarly a  Mahant who is a spiritual head of the Math or religious institution is  -entitled to manage the said property for and on  behalf of the Math.  The position of the Mahant under Hindu law  is not strictly that of a Trustee.  As Mr. Ameer Ali delivering the judgment of the Board observed in Vidya Varuthi  Thirtha v.  Balusami Ayyar (1), "called by whatever name he is  only the  manager and custodian of the idol or the  institution." When the gift is directly to an idol or a temple, the scisin to  complete  the  gift is  necessarily  effected  by  human agency.  In almost every case the Mahant is given the  right to a

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 29 of 45  

(1)  (1921) L, R. 48 I.A. 302, 311. 610 part of the usufruct,the mode of enjoyment and the amount of the  usufruct  depending again on usage and custom.   In  no case  was the property conveyed to or vested in him, nor  is he a "’trustee" in the English sense of the term, though  in view  of  the obligations and duties resting on him,  he  is answerable   as   a  trustee  in  the  general   sense   for maladministration. This  position  has  been  accepted by  this  Court  in  The Commissioner,  Hindu  Religious Endowements, Madras  v.  Sri Lakshmindra   Thirtha  Swamiar  of  Sri  Shirur-Mutt.   (1). Speaking for the unanimous Court in that case, Mukherjea J., observed,  "Thus  in  the conception of  Mahantship,  as  in Shebaitship,  both the elements of office and  property,  of duties  and  personal  interest are  blended  together,  and neither  can  be detached from the other.  The  personal  or beneficial interest of the Mahant in the endowments attached to  an  institution  is manifested in his  large  powers  of disposal   and  administration  and  his  right  to   create derivative  tenures  in respect to endowed  properties;  and these  and  other rights of a similar character  invest  the office of the Mahant with the character of proprietary right which,  though anomalous to some extent, is still a  genuine legal  right." On this view, this Court held that the  right of this character vesting in a Mahant is a right to property under  Art. 19(1) (f) of the Constitution.  Relying on  this decision, it is urged that the Firman should be construed to make the Tilkayat a Mahant or a Shebait and as such, clothed with  rights which amount to a right to property under  Art. 19(1)(f) and which constitute property under Art. 31(2). Assuming  that  the construction of clause I of  the  Firman suggested  by the learned Attorney-General is possible,  let us  examine the position on the basis that the Tilkayat  can in theory, be regarded as a Mahant of the temple.  What then are the rights to which, according to the relevant  evidence produced in this case, the Mahant is entitled in respect  of the temple?  As a Tilkayat, he has a right to reside in (1)  [1954] S.C.R. 1005.  611 the  temple  as  such Mahant he has a right  to  conduct  or arrange  for  and supervise the worship of the idol  in  the temple and the services rendered therein in accordance  with the traditional custom and usage.  He has also the right  to receive  bhents on behalf of the idol and distribute  Prasad in accordance with the traditional custom and usage.  So far as  these rights are concerned, they have not been  affected by the Act, and so, no argument can be raised that in affec- ting  the  said rights the Act has contravened  either  Art. 19(1)(f)  or Art. 31(2).  It is, however, argued that  as  a Mahant, the Tilkayat had the right to manage the  properties of  the temple, to lease them out and in case of  necessity, to  alienate them for the purpose of the temple; and  it  is suggested  that these rights constitute a right to  property under  Art.  19(1) (f) and property under Art.  31(2).   The learned  Attorney-General fairly conceded that there was  no evidence  to show that the right to alienate had  ever  been exercised  in this case, but he contends that the  existence of the right cannot be denied.  It is also conceded that the right to manage the properties was subject to the strict and absolute supervision of the Darbar, but it is suggested that even so, it is a right which must be regarded as a right  to property.  In dealing with this argument, it is necessary to bear in mind that the extent of the rights available to  the Tilkayat under clause I of the Firman cannot be said to have

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 30 of 45  

become  larger by virtue of the fact that  the  Constitution came into force in 1950.  It is only the rights to  property which  subsisted in the Tilkayat under the said Firman  that would be protected by, the Constitution, provided of course, they  are  rights  which  attract  the  provisions  of  Art. 19(1)(f) or Art. 31(2). This branch of the argument urged on behalf of the  Tilkayat naturally rests on the decision of this Court’ in. the  case of the Commissioner, Hindu Religious Endowments, Madras (1), that right of a Mahant (1)  [1954] S.C.R. 1005. 612 does  amount  to "a genuine legal right" and that  the  said right  must be held to fall under Art. 19(1)(f) because  the word  "property" used in the said clause ought to receive  a very  liberal interpretation.  It will be recalled  that  in the said case, this Court in terms and expressly approved of the  decision  of Mr. Ameer Ali in Vidya  Viruthi  Thirtha’s case  (1), which exhautively dealt with the position of  the Mahant  or  the Shebait under Hindu law.   We  have  already quoted  the relevant observations made in that judgment  and it would be relevant to repeat one of those observations  in which the Privy Council stated that in almost every case the Mahant  is  given the right to a part of the  usufruct,  the mode of enjoyment and the amount of usufruct depending again on usage and custom.  It is true that in the passage in  Mr. justice   Mukherjea’s   judgment   in  the   case   of   the Commissioner,  Hindu Religious Endowments, Madras (2),  this particular statement has not been cited; but having referred to the rights which the Mahant can claim, the learned  judge has added that these and other rights of a similar character invest  the  office  of the Mahant with  the  character,  of proprietary right which, though anomalous to some extent, is still  a  genuine legal right.  It is clear that  when  this Court  held  that  the rights vesting in  the  Mahant  as  a manager  of  the  Math amount to a genuine  legal  right  to property,  this Court undoubtedly had in mind the fact  that usually, the Mahant or Shebait is entitled to be  maintained out  of the property of the Math or the temple and that  the extent  of the right to a part of the usufruct and the  mode of employment and the amount of the usufruct always depended on usage and custom of the Math or the temple.  It is in the light  of these rights, including particularly the right  to claim  a part of the usufruct for his maintenance that  this Court held that the totality of the rights amount to a right to property under Art. 19 (1) (f). (1) (1921) L.R. 48 I.A. 302, 311.  (2) [1954] S.C.R. 1005.  613 That  takes us to the question as the nature and  extent  of the Tilkayat’s rights in regard to the temple property.   It is  clear that the Tilkayat never used any income  from  the property  of  the temple for his personal needs  or  private purpose.   It  is  true  that  the  learned  AttorneyGeneral suggested  that this consistent course of conduct  spreading over  a  large  number of years was the result  of  what  he described  as self-abnegation on the part of  the  Tilkayats from  generation to generation and from Tilkayat’s point  of view, it can be so regarded because the Tilkayat thought and claimed   that  the  temple  and  his  properties   together constituted  his  private property.  But once we  reach  the conclusion  that  the  temple is a  public  temple  and  the properties belonging to it are the properties of the  temple over which the Tilkayat has no title or right, we will  have to take into account the fact that during the long course of the  management  of  this temple,  the  Tilkayat  has  never

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 31 of 45  

claimed any proprietary interest to any part of the usufruct of  the  properties of the temple for his  private  personal needs, and so, that proprietary interest of which Mr.  Ameer Ali spoke in dealing with the position of the Mahant and the Shebait and to which this Court referred in the case of  Co- mmisioner, Hindu Religious Endowments Madras (1), is lacking in the present case.  What the Tilkayat can claim is  merely the  right  to  manage the property,  to  create  leases  in respect  of the properties in a reason. able manner and  the theoretical  right to alienate the property for the  purpose of  the temple; and be it noted that these rights  could  be exercised  by  the Tilkayat under the  absolute  and  strict supervision  of  the Darbar of Udaipur.  Now, the  right  to manage the property belonging to the temple, or the right to create  a lease of the property on behalf of the temple,  or the  right to alienate the property for the purpose  of  the temple  under the supervision of the Darbar cannot,  in  our opinion,  be  equated  with  the  totality  of  the   powers generally possessed by the Mahant or (1)  [1954] S.C.R. 1005. 614 even  the Shebait, and so, we are not prepared to hold  that having  regard  to the character and extent  of  the  rights which  can be legitimately claimed by the Tilkayat  even  on the basis that he was a Mahant governed by the terms of  the Firman, amount to a right to property under Art. 19 (1)  (f) or constitute property under Art. 31 (2.). Besides,  we  may add that even if it was  held  that  these rights constituted a right to hold property their regulation by  the relevant provisions of the Act would  undoubtedy  be protected by Art. 19 (5).  The temple is a public temple and what the legislature has purported to do is to regulate  the administration of the properties of the temple by the  Board of  which  the Tilkayat is and has to be a  member.   Having regard to the large estate owned by the Tilkayat and  having regard to the very wide extent of the offerings made to  the temple  by  millions  of  devotees  from  day  to  day;  the legislature  was clearly justified in providing  for  proper administration  of  the  properties  of  the  temple.    The restrictions imposed by the Act must, therefore, be  treated as reasonable and in the interests of the general public. Turning to Mr. Pathak’s argument that the rights  constitute property under Art. 31 (2) and the Act contravenes the  said provision because no compensation had been provided for,  or no principles have been prescribed in connection  therewith, the answer would be the same.  The right which the  Tilkayat possesses cannot be regarded as property for the purpose  of Art.  31 (2).  Besides, even if the said rights are held  to be -property for the purpose of Art. 31 (2), there are  some obvious answers to the plea which may be briefly indicated. After  Art. 31 (2) was amended by the  Constitution  (Fourth Amendment) Act, 1955, the position with regard to the  scope and effect of the provisions of 615 Art.  31 (1) and 31 (2) is no longer in doubt.   Article  31 (2) deals with the compulsory acquisition or requisition  of a  citizen’s  property  and it  provides  that  a  citizen’s property can be compulsorily acquired or requisitioned  only for a public purpose and by authority of law which  provides for  compensation  and  either  fixes  the  amount  of   the compensation  or specifies the principles on which  and  the manner  in -which, the compensation is to be determined  and given;  and  it  adds that no such law shall  be  called  in question  in any court on the ground that  the  compensation provided by that law is not adequate.  Art. 31 (2A) which is

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 32 of 45  

expressed  in  a negative form really amounts to  this  that where  a law provides for the transfer of the  ownership  or right  to  possession of any property to the State or  to  a corporation  owned or controlled by the State, it  shall  be deemed   to  provide  for  the  compulsory  acquisition   or requisition  of  property.   If,  on  the  other  hand,  the transfer of the ownership or the right to possession of  any property is not made to the State or to a corporation  owned or  controlled  by the State, it would not  be  regarded  as compulsory  acquisition  or  requisition  of  the  property, notwithstanding  that  it  does deprive any  person  of  his property.   In other words, the power to make  a  compulsory acquisition or requisition of a citizen’s property  provided for by Art. 31(2) is what the American lawyers described  as "eminent domain" all other cases where a citizen is deprived of  his  property are covered by Art. 31.(1)  and  they  can broadly  be said to rest on the police powers of the  State. Deprivation of property falling under the latter category of cases  cannot  be effected save by authority  of  law;  this Court  has  held that the expression "save by  authority  of law"  postulates  that  the  law  by  whose  authority  such deprivation can be effected must be a valid law in the sense that  it  must not contravene the other  fundamental  rights guaranteed by the Constitution. 616 The argument which has been urged before us by Mr. Pathak is that  the right to administer the properties of  the  temple which  vested in the Mahant has been  compulsorily  acquired and  transferred to a Board constituted under the Act  which Board  is controlled by the State.  We will assume that  the Board in question is controlled by the State; but the  ques- tion  still  remains whether the right which is  allowed  to vest in the Tilkayat has been compulsorily acquired and  has been transferred to the Board.  In our opinion, what the Act purports  to do is to extinguish the secular office  vesting in  the Tilkayat by which he was managing the properties  of the  temple.   It is well-known that a  Mahant  combines  in himself both a religions and a secular office.  This  latter office  has been extinguished by the Act, and so, it  cannot be  said  that  the  rights  vesting  in  the  Tilkayat   to administer  the properties have been compulsorily  acquired. Acquisition   of  property,  in  the  context,   means   the extinction  of the citizen’s rights in the property and  the conferment  of  the said rights in the .State or  the  State owned   corporation.    In  the  present   case,   the   Act extinguishes  the Mahant’s rights and then  creates  another body for the purpose of administering the properties of  the temple.  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  of the rights vesting in (he person holding that office. Besides,  there  is another way in which this  question  may perhaps  be considered.  What the Act purports to do is  not to acquire the Tilkayat’s rights but to require him to share those  rights with the other members of the Board.  We  have already seen that the Act postulates that the Mahant for the time  being  has  to be a member of the Board  and  so,  the administration  of the properties which was so long  carried on by the Mahant alone would here after  617 have  to  be  carried  on  by  the  Mahant  along  with  his colleagues  in the Board.  This again cannot, we  think,  be regarded  as  a  compulsory acquisition  of  the  Tilkayat’s rights.  It is not suggested that the effect of the relevant

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 33 of 45  

provisions  of the Act is to bring about the  requisitioning of  the said rights.  Therefore, even if it is assumed  that the rights claimed by the Tiikayat constitute property under Art.  31(2),  we do not think that the  provisions  of  Art. 31(2)  apply to the Act.  But as we have already  held,  the rights in question do not amount to a right to hold property under Art. 19(l)(f) or to property under Art. 31(2). That  takes  us  to the argument that  the  Act  is  invalid because  it: contravenes Art. 14.  In our opinion, there  is no  substance  in this argument.  We have  referred  to  the historical  background of the present legislation.   At  the time  when Ordinance No. 11 of 1959 was issued, it had  come to  the  knowledge  of  the  Government  of  Rajasthan  that valuables  such as jewelleries, ornaments, gold and  silver- ware and cash had been removed by the Tilkayat in the  month of  December  1957,  and as the successor of  the  State  of Mewar,  the State of Rajasthan had to exercise its right  of supervising the due administration of the properties -of the temple.   There  is no doubt that the  shrine  at  Nathdwara holds  a  unique position amongst the Hindu shrines  in  the State  of Rajasthan and no temple can be regarded as  compa- rable  with it.  Besides, the Tilkayat himself  had  entered into  negotiations  for the purpose of  obtaining  a  proper scheme  for the administration of the temple properties  and for that purpose, a suit under s. 92 of the Code had in fact been filed.  A Commission of Enquiry had to be appointed  to investigate  into  the  removal of the  valuables.   If  the temple  is a public temple and the legislature thought  that it was essential to safeguard the interests of the temple by taking  adequate  legislative action in that behalf,  it  is difficult to appreciate how the Tilkayat can seriously 618 contend  that in passing the Act, the legislature  has  been guilty of unconstitutional discrimination.  As has been held by this Court in the case of Shri Ram Krishna Dalmia v. Shri Justice   S.   R.  Tendolkar  (1),  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.  Therefore, the plea raised under Art. 14 fails. The next point to consider is in regard to the pleas  raised more by the denomination than by the Tilkayat himself  under Arts.  25 and 26 of the Constitution.  The attitude  adopted by the denomination in its writ petition is not very easy to appreciate.   In  the writ petition filed on behalf  of  the denomination, it was urged that the Tilkayat himself is  the owner  of all the properties of the temple and as such,  was entitled  to manage them in his discretion and as he  liked. This  plea clearly supported the Tilkayat’s stand  that  the temple in question was a private temple belonging to himself and  as  such, all the temple properties were  his  private. properties.  The denomination was clearly in two minds.   It was inclined more to support the Tilkayat’s case than to put up an alternative case that the denomination was  interested in  the  management  of these  properties.   Even  so,  some allegations  have  been made in the writ petition  filed  on behalf  of  the denomination from which it  may  perhaps  be inferred   that   it  was  the  alternative  case   of   the denomination  that the temple and the  properties  connected therewith  belonged  to the denomination  according  to  its usages  and tradition, and therefore, the management of  the said temple and the properties cannot be transferred to  the Board.  It is this latter alternative plea which is based on Art. 25 (1) and Art. 26(b) of the Constitution. The argument

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 34 of 45  

is  that  the Act contravenes the right  guaranteed  to  the denomination by (1)  [1949] S.C.R. 279, 297.  619 Art. 25(1) freely to practise its religion and that it  also contravenes  the denomination’s right guaranteed under  Art. 26(b)  and  (d)  to manage its own  affairs  in  matters  of religion  and to administer its property in accordance  with law.   For the purpose of dealing with these  arguments,  we will assume that the denomination has a beneficial  interest in the properties of the temple. Articles  25  and 26 constitute the  fundamental  rights  to freedom  of  religion  guaranteed to the  citizens  of  this country.  Article 25 (1) protects the citizen’s  fundamental right  to  freedom  of conscience and his  right  freely  to profess,  practise and propagate religion.   The  protection given  to  this  right is, however,  not  absolute.   It  is subject to public order, morality and health as Art. 25  (1) its-elf  denotes.  It is also subject to the laws,  existing or  future, which are specified in Art. 25 (2).  Article  26 guarantees freedom of the denominations or sections  thereof to  manage  their religious affairs  and  their  properties. Article  26  (b)  provides that  subject  to  public  order, morality  and  health, every religious denomination  or  any section  thereof  shall  have the right to  manage  its  own affairs in matters of religion ; and Art. 26 (d) lays down a similar right to administer the property of the denomination in accordance with law.  Article 26 (c) refers to the  right of   the  denomination  to  own  and  acquire  movable   and immovable,  property and it is in respect of  such  property that  clause  (d)  makes the provision which  we  have  just quoted.   The  scope and effect of these articles  has  been considered  by this Court on several occasions.   "The  word "religion"  used  in Art. 25 (1)," observed  Mukherjea,  J., speaking  for  the Court in the case  of  the  Commissioner, Hindu  Religious  Endowments, Madras (1).  "is a  matter  of faith  with  individuals  and  communities  and  it  is  not necessarily  theistic.   It undoubtedly has its basis  in  a system of beliefs or doctrines which are regarded by.  those who profess (1)  [1954] S.C.R. 1OO5. 620 that  religion as conducive to their spiritual  well  being, but  it is not 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." In  Shri  Venkataramana Devara v. The State of  Mysore  (1), Venkatarama  Aiyar,  J.,  observed  "’that  the  matter   of religion  in  Art. 26 (b) include even practices  which  are regarded  by  the community as parts of  its  religion."  It would thus be clear that religious practice to which Art. 25 (1) refers and affairs in matters of religion to which  Art. 26 (b) refers, include practices which are an integral  part of the religion itself and the protection guaranteed by Art. 25 (1) and Art. 26 (b) extends to such practices. In  deciding  the question as to whether a  given  religious practice  is  an integral part of the religion or  not,  the test  always would be whether it is regarded as such by  the community  following the religion or not.  This formula  may in  some cases present difficulties in its operation.   Take the case of a practice in relation to food or dress.  If  in

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 35 of 45  

a given proceeding, one section of the community claims that while  performing certain rites while dress is  an  integral part  of  the  religion  itself,  whereas  another   section contends  that yellow dress and not the white dress  is  the essential  part of the religion, how is the Court  going  to decide  the question ? Similar disputes may arise in  regard to food.  In cases where conflicting evidence is produced in respect  of  rival  contentions as  to  competing  religious practices  the Court may not be able to resolve the  dispute by  a  blind application of the formula that  the  community decides which (1)  [1958] S.C.R. 895, 909.  621 practice  is an integral part of its religion,  because  the community may speak with more than one voice and the formula would,  therefore,  break down.  This question  will  always have  to be decided by the Court and in doing so, the  Court may  have  to enquire whether the practice  in  question  is religious  in  character  and if it is, whether  it  can  be regarded  as an integral or essential part of the  religion, and  the finding of the Court on such an issue  will  always depend  upon  the  evidence  adduced before  it  as  to  the conscience of the community and the tenets of its  religion. It  is in the light of this possible complication which  may arise in some cases that this Court struck a note of caution in  the case of the Durgah Committee, Ajmer v. Syed  Hussain Ali  (1), and observed that in order that the  practices  in question should be treated as a part of religion they  ’must be  -regarded  by  the said religion as  its  essential  and integral  part  ; otherwise even  purely  secular  practices which  are not an essential or an integral part of  religion are  apt to be clothed with a religious form and may make  a claim  for being treated as religious practices  within  the meaning of Art. 25 (1). In  this  connection,  it cannot be  ignored  that  what  is protected under Arts. 25 (1) and 26 (b) respectively are the religious  practices  and  the right to  manage  affairs  in matters of religion.  If the practice in question is  purely secular or the affair 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  protection is given to the  practice  of religion  and to the denomination’s right to manage its  own affairs in matters of religion.  Therefore- whenever a claim is made on behalf of an individual citizen that the impugned statute  contravenes  his  fundamental  right  to   practise religion  or a claim is made on behalf of  the  denomination that  the fundamental right guaranteed to it to  manage  its own affairs in (1)  [1962] 1 S.C.R. 383,411. 622 matters  of  religion  is contravened, it  is  necessary  to consider  whether the practice in question is  religious  or the  affairs in respect of which the right of management  is alleged  to have been contravened are affairs in matters  of religion.   If the practice is a religious practice  or  the affairs  are  the affairs in matters of religion,  then,  of course, the rights guaranteed by Art. 25 (1) and Art. 26 (b) cannot be contravened. It is true that the decision of the question. as to  whether a  certain practice is a religious practice or not, as  well as  the question as to whether an affair in question  is  an affair   in  matters  of  religion  or  not,   may   present difficulties  because  sometimes  practices,  religious  and secular,   are   inextricably  mixed  up.   This   is   more

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 36 of 45  

particularly  so in regard to Hindu religion because  as  is well  known,  under the provisions of ancient  Smritis,  all hurman  actions  from  birth  to  death  and  most  of   the individual actions from day to day are regarded as religious in character.  As an illustration, we may refer to the  fact that  the Smritis regard marriage as a sacrament and  not  a contract.   Though the task of disengaging the secular  from the  religious  may  Dot be easy, it  must  nevertheless  be attempted  in dealing with the claims for  protection  under Arts. 25 (1) and 26(b).  If the practice which is  protected under  the former is a religious practice, and if the  right which  is protected under the latter is the right to  manage affairs  in  matters of religion, it is  necessary  that  in judging  about the merits of the claim made in  that  behalf the  Court must be satisfied that the practice is  religious and  the  affair is in regard to a matter of  religion.   In dealing  with  this  problem under Arts.  25(1)  and  26(b), Latham,  C.  J.,’s.  observation  in  Adelaide  Company   of Jehovah’s  witnesses Incorporated v. The  Commonwealth  (1), that  "what is religion to one is superstition to  another", on  which  Mr.  Pathak relies, is of no  relevance.   If  an obviously (1)  67 C.L.R. 116, 123.  623 secular matter is claimed to be matter of religion, or if an obviously  secular  practice is alleged to  be  a  religious practice,  the  Court would be justified  in  rejecting  the claim  because the protection guaranteed by Art.  25(1)  and Art.  26(b)  cannot  be extended to  secular  practices  and affairs  in regard to denominational matters which  are  not matters of religion, and so, a claim made by a citizen  that a purely secular matter amounts to a religious practice,  or a  similar claim made on behalf of the denomination  that  a purely  secular matter is an affair in matters of  religion, may  have to be rejected on the ground that it is  based  on irrational considerations and cannot attract the  provisions of Art. 25(1) or Art. 26(b).  This aspect of the matter must be  borne in mind in dealing with the true scope and  effect of Art. 25(1) and Art. 26(b). Let  us  then  enquire  what is the  right  which  has  been contravened by the relevant provisions of the Act.  The only right   which  according  to  the  denomination,  has   been contravened  is  the  right of the Tilkayat  to  manage  the property  belonging  to  the  temple.   It  is  urged   that throughout  the history of this temple, its properties  have been managed by the Tilkayat and so, such management by  the Tilkayat  amounts to a religious practice under  Art.  25(1) and  constitutes  the  denomination’s right  to  manage  the affairs  of  its  religion under Art.  26(b).   We  have  no hestitation in rejecting this argument.  The right to manage the properties of the temple is a purely secular matter  and it  cannot,  in  our  opinion be  regarded  as  a  religious practice  so as to fall under Art. 25(1) or as amounting  to affairs  in  matters  of  religion.  It  is  true  that  the Tilkayats  have  been  respected by  the  followers  of  the denomination  and  it is also true that the  management  has remained  with the Tilkayats, except on occasions  like  the minority of the Tilkayat when the Court of Wards stepped in. If  the  temple had been private and the properties  of  the temple had belonged to the Tilkayat, it was another matter. 624 But  once it is held that the temple is a public temple,  it is  difficult to accede to the argument that the  tenets  of the  Vallabha cult require as a matter of religion that  the properties  must  be managed by the Tilkayat.  In  fact,  no

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 37 of 45  

such  tenet  has  been adduced before us.  So  long  as  the denomination  believed  that the property  belonged  to  the Tilkayat like the temple, there was no occasion to  consider whether  the  management of the property should  be  in  the hands  of  anybody  else.   The course  of  conduct  of  the denomination and the Tilkayat based on that belief may  have spread for many years, but, in our opinion, such a course of conduct  cannot  be regarded as giving rise to  a  religious practice  under  Art. 25(1).  A distinction must  always  be made between a practice which is religious and a practice in regard  to  a  matter which is purely  secular  and  has  no element of religion associated with it.  Therefore, we,  are satisfied  that the claim made by the denomination that  the Act  impinges on the rights guaranteed to it by  Art.  25(1) and 26(b) must be rejected. That  leaves  one  more point to be  considered  under  Art. 26(d).   It is urged that the right of the  denomination  to administer its property has virtually been taken away by the Act,  and so, it is invalid.  It would be noticed that  Art. 26(d) recognises the denomination’s right to administer  its property,  but  it clearly provides that the said  right  to administer the property must be in accordance with law.  Mr. Sastri  for  the  denomination suggested  that  law  in  the context is the law prescribed by the religious tenets of the denomination  and  not a legislative enactment passed  by  a competent  legislature.   In our opinion, this  argument  is wholly untenable.  In the context the low means a law passed by  a  competent legislature and Art.  26(d)  provides  that though the denomination has the right to administer its pro- perty,  it must administer the property in  accordance  with law.  In other words, this clause emphatically  625 brings  out the competence of the legislature to make a  law in regard to the administration of the property belonging to the  denomination.   It  is true that  under  the  guise  of regulating  the  administration  of  the  property  by   the denomination,   the   denomination’s  right  must   not   be extinguished  or  altogether destroyed.  That is  what  this court has held in the case of the Commissioner, Hindu  Reli- gious Endowments Madras (1) and Ratilal Panachand Gandhi  v. The State of Bombay (2). Incidentally,  this clause will help to determine the  scope and effect of the provisions of Art. 26(b).   Administration of  the denomination’s property which is the  subject-matter of  this  clause is obviously outside the scope of  Art.  26 (b).    Matters  relating  to  the  administration  of   the denomination’s  property fall to be governed by  Art.  26(d) and cannot attract the provisions of Art. 26(b).  Article 26 (b)  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; 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 provision under Art. 26 (d) for legislative   regulation  of  the  administration   of   the denomination’s property would be rendered illusory. It is however, argued that the constitution of the Board  in which  the administration of the property now vests  is  not the  denomination, and since the administration is now  left to  the Board, the denomination has been wholly deprived  of its right to administer the property.  It is remarkable that

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 38 of 45  

this plea should be made by the representatives of the (1) [1954] S.C.R. 1005. (2) [1954] S.C.R. 1055. 626 denomination  who  in their writ petition were  prepared  to support  the  Tilkayat in his case that the temple  and  the properties  of the temple were his private  property.   That apart, we think that the constitution of the Board has  been deliberately  so prescribed by the legislature as to  ensure that the denomination should be adequately and fairly repre- sented on the Board.  We have already construed s. 5 and  we have held that s. 5 (2) (g) requires that the members of the Board  other than the Collector of Udaipur  District  should not only profess Hindu religion but must also belong to  the Pushti-Margiya  Vallabhi Sampradaya.  It is true that  these members  are nominated by the State Government, but we  have not  been  told how else this could  have  been  effectively arranged in the interests of the temple itself.  The  number of  the devotees visiting the temple runs into lacs ;  there is  no  Organisation which  comprehensively  represents  the devotees as a class there is no register of the devotees and in the very nature of things, it is impossible to keep  such a  register.   Therefore, the very large mass  of  Vallabh’s followers who constitute the denomination can be represented on the Board of management only by a proper nomination  made by the State Government, and so, we are not impressed by the plea that the management by the Board constituted under  the Act will not be the management of the denomination.  In this connection,  we  may refer to clause I of the  Firman  which vested  in  the  Darbar  absolute  right  to  supervise  the management  of the property.  As a successor-in-interest  of the  Darbar,  the  state  of Rajasthan  can  be  trusted  to nominate members on the Board who would fairly represent the denomination.    Having   regard   to   all   the   relevant circumstances  of  this  case;  we do  not  think  that  the legislature could have adopted any other alternative for the purpose of constituting the Board.  Therefore, we must  hold that the challenge to the validity of the Act on the  627 ground  that it contravenes Arts. 25 (1), 26 (b) and 26  (d) must be repelled. It still remains to consider the provisions of the Act which have been challenged by the Tilkayat and the denomination as well as those which have been struck down by the High  Court and in respect of which the State has preferred appeals.  We will  take  these sections in their serial order.   We  have considered ss. 3, 4, 16, 22 and 34 and have held that  these sections are valid because the scheme envisaged by the  said sections  clearly protects the religious  rites,  ceremonies and  services  rendered  in the temple  and  the  Tilkayat’s status  and  powers  in respect thereof.   The  said  scheme merely  allows the administration of the properties  of  the temple which is a purely secular matter to be undertaken  by the Board, and so, it is not necessary to refer to the  said sections again. Section  2  (viii) which defines a temple as  including  the temple  of Shri Navnitpriyaji and Shri Madan Mohanlalji  has been struck down by the High Court in regard to the said two subsidiary  deities.  The High Court has held that  the  two deities  Navnitpriyaji and Madan Mohanlalji are the  private deities  of  the Tilkayat and it was not  competent  to  the legislature  to  include them within the definition  of  the temple  under s. 2 (viii).  It was urged before  -the  High. Court  that the said two idols had been transferred  by  the Tilkayat to the public temple and made a part of it, but  it

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 39 of 45  

has  held  that  there  was no gift or  trust  deed  by  the Tilkayat  divesting himself of all his rights in  those  two idols  and its property and so, the validity of the  section could not be sustained on the ground of such transfer.   The correctness of this conclusion is challenged by the  learned Solicitor-General  on behalf of the State.  In dealing  with this  question,  the  conduct of the Tilkayat  needs  to  be examined.  On October 15, 1956 a report 628 was made by Mr. Ranawat to the Tilkayat in respect of  these two  idols.  It appears that the grant of some  villages  in respect of these idols stood in the name of the Tilkayat and after  the  said  villages  were resumed  by  the  State,  a question  arose as to the compensation payable to the  owner of  the  said  villages.  In that  connection,  Mr.  Ranawat reported  to the Tilkayat that it would be to the  advantage of the two idols if the said lands along with the idols were treated  as  a  part of the public  temple.   He  cited  the precedent of the lands belonging to the Nathdwara Temple  in support of his plae.  On receiving this report, the Tilkayat was  pleased  to  transfer  the  ownership  of  Shri  Thakur Navnitpriyaji,  Shri  Madan  Mohanji  and  Bethaks  to   the principal temple of Shri Shrinathji.  of course, he retained to  himself  the right and privilege of worship  over  those temples  and  Bethaks as in the case of  Shrinathji  temple. The  Tilkayat  also  expressed  his  concurrence  with   the proposal  made  in this report and signed in  token  of  his agreement.   It  appears that after orders  were  issued  in accordance  with  the  decision of  the  Tilkayat,  the  two temples  were  treated  as  part of  the  bigger  temple  of Shrinathji.   This is evidenced by the resolution which  wag passed  at the meeting of the Power of Attorney  Holders  of the  Tilkayat on the same day i.e., 15-10-1956.  One of  the resolutions  passed  at  the said  meeting  shows  that  the proposal  regarding  the temples and Bethaks  owned  by  His Holiness stating therein that His Holiness had been  pleased to  transfer  the  ownership  thereof  to  Shrinathji,   was considered.   That proposal along with the list  of  temples and Bethaks was produced before the Committee.  The Tilkayat was present at the meeting and he confirmed the proposal and put his signature thereon before the Committee.   Thereupon, the   Committee  accepted  the  proposal  with  thanks   and instructed  the Executive Officer to do the needful in  that behalf.  Thus, the Tilkayat proposed to the Committee of his Power of Attorney  629 Holders  that  the  two idols and their  Bethaks  should  be transferred from his private estate to the principal  temple of Shrinathji and that proposal was accepted and  thereafter the two idols were treated as part of the principal temple. After  this transfer was thus formally completed it  appears that the Tilkayat was inclined to change his mind and so, in submitting  to the Committee a list of temples  and  Bethaks transferred by him to the principal temple of Shrinathji, he put  a  heading  to  the list which  showed  that  the  said transfer  had  been made for management  and  administration only and was not intended to be an absolute transfer.   This was done on or about November 23, 1956. This  conduct  on  the part of the  Tilkayat  was  naturally disapproved by the Committee and the heading of the list was objected to by it in a letter written on December 31,  1956. To this letter the Tilkayat gave a reply on January 7, 1957, and he sought to explain and justify the wording adopted  in the heading of the list.  It is thus clear that the  heading of the list forwarded by the Tilkayat to the Committee  must

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 40 of 45  

be  ignored because that heading clearly shows a  change  of mind  on  the part of the Tilkayat and the  question  as  to whether  the two idols form part of the principal temple  of Shrinathji  must be decided in the light of what  transpired on  October  15, 1956. judged in that way, there can  be  no doubt  that the Tilkayat solemnly transferred the two  idols to  the  principal  temple and in that sense,  gave  up  his ownership over the idols and a formal proposal made in  that behalf  was accepted by the Committee.  In our opinion,  the High  Court  was  in  error in not  giving  effect  to  this transfer  on the ground that no gift or trust deed had  been duly executed by the Tilkayat in that behalf.  A  dedication of  private  property  to a charity need not be  made  by  a writing: it can be made orally or even can 630 be  inferred  from conduct.  In the present case,  there  is much  more than conduct in support of the State’s plea  that the  two  idols  had been transferred.  There  is  a  formal report  made  by  the  Manager to  the  Tilkayat  which  was accepted  by  the  Tilkayat ; it was followed  by  a  formal proposal  made  by  the Tilkayat to the  Committee  and  the Committee at its meeting formally accepted that proposal and at  the  meeting  when  this.  proposal  was  accepted,  the Tilkayat was present.  Therefore, we must hold that the  two idols  now form part of the principal temple and  have  been properly included within the definition of the word "temple" under  s.  2 (viii).  We should accordingly  set  aside  the decision  of the High Court and uphold the validity of s.  2 (viii). The proviso to s. 5 (2) (g) has been attacked by the learned Attorney-General.  He contends that in making the  Collector a statutory member of the Board even though he may not be  a Hindu   and  may  not  belong  to  the   denomination,   the legislature  has  contravened Arts. 25 (1) and 26  (b).   We have  already dealt with the general plea raised  under  the said two articles.  We do not think that the provision  that the  Collector who is a statutory member of the  Board  need not satisfy the requirements of s. 5 (2) (g), can be said to be  invalid.   The  sole object in making  the  Collector  a member  of  the Board is to associate  the  Chief  Executive Officer  in  the  District with the  administration  of  the property  of  the temple.  His presence in the  Board  would naturally  help in the proper administration of  the  temple properties  and in that sense, must be treated as valid  and proper.   This  provision is obviously consistent  with  the State’s  right  of supervision over the  management  of  the temple properties as specified in the Firman of 1934. Sections 5, 7 and 11 have already been considered by us with particular reference to the possible  631 removal of the Tilkayat under s. 7 and its consequences.  It may be that in view of the fact that even if the Tilkayat is removed  under  s.  7 (1) (b) and (c) he  has  to  be  again nominated  to  the  Board, the  legislature  may  well  have exempted the Tilkayat from the operation of s. 7 (1) (b) and (c).   That,  however,  cannot  be said  to  make  the  said provision invalid in law. Sections  10  and 35 have been attacked on the  ground  that they   empower   the   State   Government   to   leave   the administration  of the temple property to a  non-Hindu.   It will  be noticed that s. 10 contemplates that if a Board  is dissolved for the reasons specified in it. the Government is required  to direct the immediate reconstitution of  another Board  and  that postulates that the  interval  between  the dissolution  of  one Board and the constitution of  a  fresh

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 41 of 45  

Board would be of a very short duration.  If the legislature thought  it necessary to provide for the management  of  the temple  properties  for  such a short period on  an  ad  hoc basis,  the provision cannot be seriously challenged.   What is  true about this provision under s. 10, is  equally  true about the transitional provision in s. 35. A part of s. 16 has been struck down by the High Court in so far as it refers to the affairs of the temple.  This section authorises the Board to manage the properties and affairs of the  temple.   The High Court thought  that  the  expression "’affairs  of  the  temple"  is too  wide  and  may  include religious affairs of the temple; and since in managing these affairs of the temple, the section does not require that the management should be according to the customs and usages  of the denomination, it came to the conclusion that the  clause "affairs of the temple" is invalid and should, therefore, be struck down. We  are  not satisfied that this view is  correct.   In  the context the expression ""affairs of the temple" 632 clearly  refers to the purely secular affairs in  regard  to the administration of the temple.  Clearly, s. 16 cannot  be construed  in  isolation and must be read long with  s.  22. that  is  why it has been left to the Board  to  manage  the properties  of  the  temple as well as  the  purely  secular affairs  of the temple, and so, this management need not  be governed  by the custom and usage of the  denomination.   If the expression "affairs of the temple" is construed in  this narrow  sense  as  it is intended to be, then  there  is  no infirmity  in the said provisions.  We may add that the  ex- pression "affairs of the temple" has been used in i. 28  (1) of the Madras Hindu Religious and Charitable Endowments  Act No. 22 of 1959 in the same sense.  Therefore, we would  hold that the High Court was in error in striking down the clause "affairs of he temple" occuring in s. 16. The  next section to consider is s. 21.  This section  gives to  the  Board complete power  of  appointment,  suspension, removal,  dismissal, or imposition of Lily other  punishment on the officers and servants of .he temple or the Board, the Chief Executive Officer being exempted from the operation of this section.  It has been urged before us that this section might  include even the Mukhia and the Assistant Mukhia  who are  essentially religious officers of the temple  concerned with the performance of religious rites and services to  the idols;  and  the  argument  is that if  they  are  made  the servants  of  the  Board  and  are  not  subjected  to   the discipline  of the Tilkayat, that would be contrary to  Art. 25 (1) and 26 (b) of the Constitution.  In considering  this argument,  we must have regard to the fact that  the  Mukhia and  the  Assistant Mukhia are not only concerned  with  the religious  worship in the temple, but are also  required  to handle  jewellery  and ornaments of a  very  valuable  order which  are put on the idol and removed from the  idol  every day,  and  the safety of the said valuable  jewellery  is  a secular matter within  633 the jurisdiction of the Board.  That is why it was necessary that  the  Board  should be given  jurisdiction  over  those officers  in so far as they are concerned with the  property of a temple.  We have no doubt that in working out the  Act, the Board will act reasonably and fairly by the Tilkayat and nothing  will be done to impair his status or to affect  his authority over the servants of the temple in so far as  they are concerned with the religious part of the worship in  the temple.  Since the worship in the temple and the  ceremonies

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 42 of 45  

and  festivals in it are required to be conducted  according to the customs and usages of the denomination by s. 16,  the authority  of  the Tilkayat in respect of  the  servants  in charge of the said worship and ceremonies and festivals will have  to be respected.  It is true that soon after  the  Act was  passed  and  its  implementation  began,  both  parties appeared  to  have  adopted unhelpful  attitudes.   We  were referred at length to the correspondence that passed between the  Tilkayat and the Committee in respect of some of  these matters.   We  do  not think it necessary  to  consider  the merits  of  that controversy because we are  satisfied  that once the Act is upheld, it will be implemented by the  Board consistently  with  the  true  spirit  of  the  Act  without offending  the  dignity  and status of  the  Tilkayat  as  a religious  head in charge of the temple and the  affairs  in matters  of religion connected with the temple.   Therefore, we do not think it would be right to strike down any part of s.   21 as suggested by the learned Attorney-General. The  validity  of s. 27 has been challenged by  the  learned Attorney-General  on the ground that it empowers  the  State Government to depute any person to enter the premises of the temple,  though, in a given case, such a per-son may not  be entitled to make such an entry.  Even a non-Hindu person may be  appointed  by  the  State  Government  to  inspect   the properties  of the temple and if he insists upon  making  an entry in the temple, that would contravene the provisions 634 of  Art. 25 (1) and 26 (b) of the Constitution; that is  the argument  urged in support of the challenge to the  validity of  s. 27.  We do not think there is any substance  in  this argument.  All that the section does is to empower the State Government  to depute a person to inspect the properties  of the temple and its records, correspondence, plans,  accounts and  other  relevant documents.  We do not  think  that  the section constitutes any encroachment of the rights protected by Art. 25 (1) or Art. 26 (b).  If the administration of the properties of the temple has been validly left to the  Board constituted  under the Act, then the power of inspection  is necessarily  incidental  to  the  power  to  administer  the properties,  and  so  in  giving  the  power  to  the  State Government  to depute a person to inspect the properties  of the  temple, no effective complaint can be made against  the validity of such a power.  The fear expressed by the learned Attorney-General  that a non-Hindu may insist upon  entering the temple in exercise of the authority conferred on him  by the  State Government under s. 27 is, in our  opinion,  far- fetched  and imaginary.  We are satisfied that the power  of inspection  which the State Government may confer  upon  any person  under  s.  27 is intended to  safeguard  the  proper administration  of the properties of the temple and  nothing more.   Therefore, we do not think that s. 27  suffers  from any  constitutional infirmity.  In this connection,  we  may add  that  a  similar  provision  contained  in  the  Madras Religious  Endowments Act has been upheld by this  Court  in the  case of The Commissioner, Hindu  Religious  Endowments, Madras (1). That takes us to s. 28 (2) and (3).  These two  sub-sections have been struck down by the High Court because it  thought, that they were inconsistent with the view expressed by  this Court  in the case of Ratilal Panachand Gandhi  (2).   While discussing the validity of these two sub-sections, the  High Court has observed "that without entering into an elaborate (1) [1954] S.C.R. 1005. (2) [1954] S.C.R.1055,  635

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 43 of 45  

discussion  on  the  point,  we  may  point  out  that  such provision  has been held to be invalid by the Supreme  Court in the case. of Ratilal Panachand Gandhi" (1).  The  learned Solicitor-General  contends and we think, rightly, that  the observations on which the High Court has relied support  the validity  of the two subsections and are  inconsistent  with the  decision  of  the High Court itself.  In  the  case  of Ratilal  Panachand Gandhi (1), this Court was  dealing  with the  validity of ss. 55 and 56 of the Bombay  Public  Trusts Act.  1950  (No. 29 of 1930).  Section 55 of  the  said  Act purported to lay down the rule of cy pres in relation to the administration of religious and charitable trust; and s.  56 dealt with the powers of the courts in relation to the  said application  of cy pres doctrine.  This Court observed  that these two sections purported to lay down how the doctrine of cy pres is to be applied in regard to the administration  of public  trust  of a religious or charitable  character;  and then  it proceeded to examine the doctrine of cy pres as  it was developed by the Equity Courts in England and as it  had been  adopted by our Indian Courts since a long  time  past. ’La the opinion of this Court, the provisions of ss. 55  and 56  extended  the said doctrine much beyond  its  recognised limits  and further introduced certain principles which  ran counter  to  well  established rules of  law  regarding  the administration of charitable trusts.  It is significant that what  the impugned sections purported to authorise  was  the diversion of the trust property or funds for purposes  which the  Charity Commissioner or the court considered  expedient or proper although the original objects of the founder could still   be  carried  out  and  that  was  an   unwarrantable encroachment  on  the freedom of religious  institutions  in regard  to  the management of their religious  affairs.   In support  of this view, the tenets of the Jain religion  were referred  to and it was observed that apart from the  tenets of the Jain religion, it would be a violation of the freedom of religion and of the right which a religious (1)  [1953] S.C.R. 1055. 636 denomination  has, to manage its own affairs in  matters  of religion, to allow any secular authority to divert the trust money for purposes other than those for which the trust  was created.   On  this  view, s. 55  (3)  which  contained  the offending   provision,  and  the   corresponding   provision relating to the. powers of the Court occurring in the latter part of s. 56 (1) were struck down.  In this connection,  it is, however, necessary to bear in mind that in dealing  with this  question, this Court has expressly observed  that  the doctrine of cy pres can be applied where there is a  surplus left after exhausting the purposes specified by the settler. In  other words, the decision of this Court in the  case  of Ratilal  Panachand  Gandhi  (1), cannot be  applied  to  the provisions  of  s.  28  (2) and  (3)  which  deal  with  the application  of the surplus in fact after this decision  was pronounced,  the relevant provision of the Bombay  Act  has- been amended and the application of the doctrine of cy  pres is now confined to the surplus available after the  purposes of, the trust have been dealt with.  The High Court has  not noticed  the  fact  that s. 28 (2) and (3)  dealt  with  the application  of the surplus funds and that  postulates  that these two sub-sections can be invoked only if and after  the main purposes of the public temple have been duly satisfied. Therefore,  we  hold  that the High Court was  in  error  in striking  downs. 28 (2) and (3) on the ground that they  are inconsistent with the decision of this Court in the case  of Ratilal Panachand Gandhi (1).  We may add that this position

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 44 of 45  

was not seriouly disputed before us by the learned Attormey- General. The  next  section is 30 (2) (a).  It confers on  the  State Government  the  power  to  make rules  in  respect  of  the qualifications for holding the office of and the  allowances payable  to the Goswami.  This sub-section has  been  struck down  by  the High Court and the  learned  Solicitor-General does  not quarrel with the conclusion of the High Court.  He has, however, fairly conceded that though the first part of (1)  [1954] S.C.R. 1055.  637 s.   30 (2) (a) may be struck down, the latter part need not be struck down.  This latter part allows rules to be  framed by the State Government in regard to the allowances  payable to  the  Goswami.  We think it is but fair  that  this  part should  be upheld so that a proper rule can be made  by  the State  Governmernt  determining the  quantum  of  allowances which should be paid to the Goswami and the manner in  which it  should be so paid.  We would, therefore strike down  the first part of s. 30 (2) (a) and uphold the latter part of it which has relation to the allowances payable to the Goswami. The two parts of the said sub-section are clearly  severable and so, one can be struck down without affecting the other. In regard to s. 36, the High Court thought that it gives far too sweeping powers to the Government and so, it has  struck it down.  Section 36 merely empowers the Government to  give such directions as may be necessary to carry out the objects of  the Act in case a difficulty arises in giving effect  to the  provisions  of the Act.  We may,  in  this  connection, refer  to the fact that a similar provision is contained  in s. 36 of the jagannath Temple Act (Orissa 11 of 1955).   The object of s. 36 in the Act is merely to remove  difficulties in the implementation of the Act.  It is in that sense  that the  section  must be narrowly construed and the  scope  and ambit  of  the power conferred on the  State  Government  be circumscribed.  If the section is so construed, it would not be  open  to  any  serious  objection.   Therefore,  we  are satisfied that the High Court was in error in striking  down this section on the ground that the powers conferred on  the State Government are too wide. That take us to s. 37 which has been struck down by the High Court on the ground that it can be utilised as a defence  to a  suit  under s. 31.  We have already noticed  that  s.  31 empowers a person having an interest to institute a suit for obtaining any of the 638 reliefs  specified  in clauses (a) to (e) of  that  section. The  High  Court  thought  that  s.  37  may  introduce   an impediment  against a suit brought by a  private  individual under  s. 31.  We are satisfied that the High Court  was  in error  in taking this view.  All that this section  purports to  do is to provide for a bar to any suits  or  proceedings against the State Government for any thing done or purported to  be  done by it under the provisions of  the  Act.   Such provisions  are contained in many Acts, like, for  instance, Acts  in regard to Local Boards and Municipalities.   It  is true  that  s.  37 does not require that the  act  done  -or purported  to be done should be done bona fide, but that  is presumably  because the protection given by s. 37 is to  the State Government and not to the officers of the State.   The effect  of  the  section  merely is to  save  acts  done  or purported  to ’be done by the State under the provisions  or the  Act; it cannot impinge upon the rights of a citizen  to file  a suit under s. 31 if it is shown that the citizen  is interested within the meaning of s. 31 (1).  We are inclined

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 45 of 45  

to hold that the High Court has, with respect, misjudged the true  scope  and effect of the provisions of s. 37  when  it struck  down  the said section as being  invalid.   We  must accordingly  reverse the said conclusion of the  High  Court and uphold the validity of s. 37. The  result is that the appeals preferred by  the  Tilkayat, the denomination and Ghanshyamlalji fail and are  dismissed. So does the writ petition filed by the Tilkayat fail and the same  is  dismissed.   The appeals preferred  by  the  State substantially  succeed  and the decision of the  High  court striking down as ultra vires part of s. 2 (viii) in relation to the idols of Navnitpriyaji and Madan Mohanlalji; part  of s.  16 in so far as it refers to the affairs of the  temple; s. 28 (2) and (3), s. 36 and s. 37 is reversed.  We however, confirm  the decision of the High Court in so far as it  has struck down s. 30 (2) (a) in regard to  639 the qualifications for holding the office of the Goswami but we  reverse  its  decision in so far as it  relates  to  the latter part of s. 30 (2) (a) which deals with the allowances payable to the Goswami.  In the circumstances of this  case, we   direct  that  parties  should  bear  their  own   costs throughout.                     Appeal dismissed.