Singh & Ors Vs. Rajendra Pd. Ardevi & Ors  Insc 4 (4 January 2007)
Sinha & Markandey Katju with Civil Appeal Nos. 4076-4079 of 2002 Civil Appeal
Nos. 4081-4084 of 2002 Civil Appeal Nos. 4086-4089 of 2002 S.B. Sinha, J.
of a temple known as Shri Rikhabdevji situated in the village Dhulev near 40
miles away from Udaipur in Rajasthan is involved in these
appeal which arise out of judgments and orders dated 18.09.1997 and 06.02.2002
passed by the High Court of Rajasthan.
the matter came up for consideration on an earlier occasion before this Court
in State of Rajasthan and Others v. Shri Sajjanlal Panjawat and Others since
reported in [(1974) 1 SCC 500].
furthermore not in dispute that at one point of time the management of the said
temple was taken over by the Maharana of Mewar.
need not go into the history of the said temple, as the same has been noticed
by this Court in the earlier round of litigations,. The properties of the said
temple vested in the State of Rajasthan as
the State of Mewar merged with other princely States
forming the United State of Rajasthan on 18.04.1948. Various directions were
issued by the Government of Rajasthan in relation to the management of the said
temple from time to time.
of the State of Rajasthan enacted Rajasthan Public Trust Act,
1959 (for short "the Act"). Chapter I to IV thereof came into force
on 22.10.1959. In exercise of its rule making power contained in Section 76 of
the Act, the State of Rajasthan framed Rules known as the Rajasthan
Public Trusts Rules, 1962 which came into force on and from 11.06.1962. Chapter
V to X and XII of the Act as also the Rules applicable in relation thereto were
brought into operation with effect from 1.07.1962.
the validity of some of the provisions of the Act including Sections 52(1)(d)
and 53 thereof, some members belonging to Swetambers Jain sect filed a writ
petition before the Rajasthan High Court which was marked as writ petition No.
501 of 1962 praying inter alia for the following reliefs:
The State of
Rajasthan and its officers be restrained from enforcing certain provisions of
the Act and declare those provisions void,
Restrain the State and its
officers from selling gold and silver ornaments of temple and advancing loan
from temple fund,
Restrain the respondents from carrying out management
of the temple and allow the petitioners to manage the temple according to
declaration of Samwat 1934.
filed an intervention application therein inter alia contending that the said
temple was a Digamber temple.
stand of the State of Rajasthan therein inter alia was that the
temple in question was a Hindu temple and not a Jain temple although the Jains
have the right of worship. It was furthermore contended that the temple
belonged to the erstwhile State of Mewar and as such its management vested in the State.
of some of the provisions of the Act were also questioned in the said
proceedings. The High Court of Rajasthan, however, in its judgment dated
Temple of Shri Rikhabdevji is a Jain Temple of Shwetamber Jain sect.
After merger of State of Mewar, the management of temple was
carried on by the Devasthan Deptt. of State and Committee constituted by the
erstwhile Ruler of Mewar became defunct.
vested in the State under Section 52(1) (a) and (c) of the Act.
The State should
take early steps to transfer the management to a Committee as envisaged under
Section 53 of the Act.
The matter came up before this Court, as noticed
hereinbefore, wherein this Court opined:
Shri Rikhabdevji Temple is a Jain temple not a Hindu Temple.
of the temple is vested in the State of Rajasthan.
If the State
intends to apply Chapter X to the temple, it is for it to include it in the
list under Section 52(2) of the Act. Section 53 postulates the application of
Chapter X for the vesting of management in a Committee to be constituted by the
members in the Committee of Management should be appointed from the trustees or
persons of the section of denomination to which trust belongs.
direction to constitute a Committee from Management set aside.
the Committee of Management, however, was not constituted within a reasonable
time, Swetambers again filed a writ petition bearing No.
Civil Writ Petition No. 21 of 1981 before the Rajasthan High Court inter alia
contending that as the State having regard to the provisions contained in
Sections 52 and 53 of the Act exercises power coupled with duties, the failure
to publish the list and to constitute a Committee would amount to dereliction
of duties on its part. In the said writ petition it was prayed for:
To issue a
Mandamus directing the State Government to issue a list of public trusts under
Section 52(2) of the Act and to constitute a Committee for management in terms
of Section 53 of the Act.
To issue a
suitable writ or direction to quash the order dated 29.9.1979 restraining the
State from changing the denominational character of the temple.
State in its affidavit in opposition filed in the said proceedings reiterated
its position that the temple was a Hindu temple.
it had not been brought to the notice of the High Court but now it stands
admitted that the State in exercise of its power conferred upon it under
Section 52 of the Act notified the said temple vested in the State as a
self-supporting temple by a notification dated 25.06.1981 in the following
F.8 (12) General/Dev/79/8550 :- In pursuance to State Governments order no
21/781/R/JU/1/79, dated 14-03-80 and same numbered page dated 17- 5-80 and
letter no. 14 (3) Khan/Group 2/80 dated 7-1-81, the general public is hereby
notified with, list of temples and institutions managed and controlled by Devasthanam
Department, Rajasthan, is being classified under those which are in direct
management, those which are self sufficient and those which are handed
over(committed) to the State, on the basis of available records and survey done
till date. All properties of above classified temples and institutions have
vested in the State Government.
person or institutions, without the sanction of the State Government, takes
possession in any manner or transfers or sells or mortages or gets registered
under the provisions of the Rajasthan Public trusts Act, 1959 any temple or
institutions notified under this notification will be deemed to be illegal. If
any person has any information in respect of any temple or institutions, other
than notified but belonging to the State may inform the Devastaham Commissioner
in that regard, because enquiry in respect of the temples belonging to the
erstwhile State of Jaipur and Jodhpur is in progress.
*** *** Schedule B List of self sufficient temples and institutions managed
and controlled by Devasthanam Department C Name of temple Address Place
District 1 2 3 4 5 *** *** *** 30.
of Shri Rikhabdevji Vill-Dhuleva Vill-Dhuleva Udaipur" It appears that
thereafter Digambers also filed a writ petition on 19.04.1983 which was marked
as S.B. Civil Writ Petition No. 2247 of 1983 for the following reliefs:
To declare that Shri
Rikhabdevji temple is a Digamber Jain temple.
The State be
directed to publish a list of trusts under Section 52 (2) of the Act and
consequently constitute a Committee for management of Digambers.
counter-affidavit, however, the State agreed to carry out its obligations under
the Act as also the directions of this Court and the High Court.
judgment and order dated 5.02.1997, a learned Single Judge of the High Court
inter alia directed the State:
to publish list
of trusts under 52(2) of the Act.
to hold inquiry
under Rule 36 to determine denominational character of the temple.
of inquiry within 3 months, to constitute Committee for management under
Section 53 of the Act.
Division Bench of the High Court by reason of the impugned judgment dated
18.09.1997 while affirming the said directions made certain modifications in
regard to constitution of Committee leaving the matter at the discretion of the
State Government opining Sections 52 and 53 of the Act confers such discretion
petitions filed thereagainst have been dismissed by judgment and order dated
are four sets of appeals before us.
first set of appeals, viz., Civil Appeal Nos. 4092-4095, has been filed by the Swetamber
Jain sect and is directed against the judgment of the Division Bench of the
High Court dated 18.09.1997. The second set of appeals, viz., Civil Appeal Nos.
4086-4089 of 2002, has also been filed by the Swetamber Jain sect and is
directed against the order of the Division Bench of the High Court dismissing
the review petitions filed against the judgment and order dated 18.09.1997.
third set of appeals, viz., Civil Appeal Nos. 4081-4084 of 2002, is at the
instance of the State Government against the judgment and order dated
18.09.1997. The fourth set of appeals, viz., Civil Appeal Nos. 4076-4079 of
2002, is filed by the Digamber Jain sect against the judgment and order dated
furthermore not in dispute that another notification has been issued on
5.12.1997 by the State under Section 52 of the Act in obedience of the order of
the Division Bench of the High Court stating:
F 14(17)Dev/82: Pursuant to the judgment dated 18.9.97 passed by the Hon'ble
Rajasthan High Court, Jodhpur in DB (Civil) Special Appeal No. 663/97 State
versus Veerchand Seroiya and 513/97 State versus Shrieyas Prasad and others
and under Section 52 of Chapter X of the Rajasthan Public Trust Act, 1959, it
is necessary that a list of registered public trusts having a gross annual
income of Rs. 10,000 or more have to be published in the Rajasthan Gazette
within a period of three months.
the list of such Registered Public Trusts and Trusts Managed and Controlled by
the Devasthan Department under direct charge, self- supporting, supurgisreni
which are handed over to the Government is published under:
*** *** Chapter KA Temples controlled and managed by the Devastan
Department C Name of temple Address Place District *** *** *** 30.
Gram Dhule Gram Dhule Udaipur" Although, as noticed hereinbefore, the High
Court directed the State of Rajasthan to issue notifications in terms of
Section 52 of the Act, having regard to the fact that such notifications have
since been issued and published in the official gazette, in our opinion, it is
not necessary to dilate on the question as to whether the judgment of the High
Court to the aforementioned effect was correct or not.
Act was enacted to regulate and to make better provision for the administration
of public religious and charitable trusts in the State of Rajasthan. The management of the said trust
is to be vested in the Devasthan Commissioner constituted under Section 7 of the
Act which is in the following terms:
Government shall, by notification in the official Gazette, appoint an officer
to be called the Devasthan Commissioner who, in addition to other duties and
functions imposed on him by or under the provisions of this Act or any other
law for the time being in force, shall, subject to the general and special
orders of the State Government, superintend the administration and carry out
the provisions of this Act throughout the territories to which this Act
shall be a corporation sole by the name of "Devasthan Commissioner of the
State of Rajasthan", shall as such have perpetual
succession and a common seal and may sue and be sued in his corporate
name." Section 17 provides for registration of public trusts. Section 18
provides for inquiry about registration. Sections 52 and 53 of the Act read as
"Application of chapter.-
contained in this Chapter shall apply to every public trust-
which vests in
the State Government, or
maintained at the expense of the State Government, or
which is managed
directly by the State Government, or
which is under
the superintendence of the Court of Wards, or
of which the
gross annual income is ten thousand rupees or more.
Government shall, as soon as may be after the commencement of this chapter,
publish in the official Gazette a list of the public trusts to which this
Chapter applies and may by like notification and in like manner add to or vary
public trusts to which this Chapter applies :-
As from such
date as the State Government may appoint in this behalf, the management of a
public trust to which this Chapter applies shall notwithstanding any thing contained
in any provision of this Act or in any law, custom or usage, vest in a
committee of management to be constituted by the State Government in the manner
hereinafter provided and the State Government may appoint different dates for
different public trusts for the purpose of this section.
On or before the
date fixed under sub- section (1) in respect of a public trust, the State
Government shall, subject to the provision contained in section 54 constitute
by notification in the official Gazette a committee of management thereof under
such name as may be specified in the notification; and such committee shall be
deemed to be the working trustee of the said public trust and its endowment:
that upon the combined request of the trustees of, and persons interested in
several public trusts representing the same religion or persuasion, the State
Government may constitute a committee of management for all of them, of their
endowments are situated in the same city, town or locality.
of management constituted under sub-section (2) shall be a body corporate
having perpetual succession and a common seal, with power to acquire, hold and
dispose of property subject to such conditions and restrictions as may be
prescribed and may by the name specified in the notification under sub section
(2) sue and be sued.
A committee of
management shall consist of a chairman and such even number of members, not
exceeding ten and not less than two as, the State Government may determine.
The Chairman and members of a committee of management shall be appointed by the
State Government by notification in the Official Gazette from amongst-
trustees of public trusts representing the same religion or persuasion and
having the same objects, and
persons interested in such public trusts or in the endowments thereof or
belonging to the denomination for the purpose of which or for the benefit of
whom the trust was founded, in accordance with the general wishes of the persons
so interested so far as such wishes can be ascertained in the prescribed manner
that in the case of a public trust having a hereditary trustee, such trustee,
and in the case of a math, the head thereof, shall be the Chairman of the
committee of management, if he is willing to serve as such." Section 77
provides for exemption from the application of the provisions of the Act in the
contained in this Act shall apply to a public trust administered by any agency
acting under the control of the State Government or by any local authority.
Government may exempt, by notification specifying the reasons for such
exemption, any public trust or class of public trusts from all or any of the
provisions of this Act, subject to such conditions, if any, as the State
Government may deem fit to impose." Rule 36 of the said Rules reads as
"Manner of ascertaining the wishes of persons interested:-
For the purpose
of ascertaining the wishes under sub-section (5) of Section 53, of the persons
interested, the State Government shall direct the Assistant Commissioner to
issue a public notice in such manner as he may think proper, for inviting
suggestions for the constitution of the Committee of management.
Commissioner shall forward suggestions so received along with his comments, to
the State Government through the Commissioner." The core question involved
in these appeals is:
the State Government is obligated to constitute a committee of management of a
public trust to which Chapter X of the Act applies? Or Whether the constitution
of such a committee of management falls within the discretionary jurisdiction
of the State Government? Chapter X comprises of 14 sections beginning from
Sections 52 to 65.
52 contemplates fixation of a date. Section 52(1) contemplates that Chapter X
shall apply inter alia to the public trusts:-
which vests in
the State Government;
which is managed
directly by the State Government, and
of which the
gross annual income is ten thousand rupees or more.
Chapter X applies in terms of Sub-section (2) of Section 52, the State
Government is obligated to publish a list of public trusts to which the said
Chapter applies. Such publications have been made in two notifications, viz.,
dated 25.06.1981 and 5.12.1997. In the first notification, it had not been
stated that the same had been issued either in terms of Section 52 of the Act
or under Chapter X thereof. In the notification dated 5.12.1997, not only the
provisions of the statute have been mentioned, it has specifically been stated
that the notification was issued in terms of the directions of the Division
Bench of the High Court of Rajasthan.
53 of the Act provides for management of trusts to which Chapter X applies.
Once application of Chapter X is conceptualized by issuance of a notification
in terms of Section 52 of the Act, indisputably Section 53 would be attracted.
As indicated hereinbefore, whereas the learned Single Judge was of the opinion
that it is imperative on the part of the State Government to issue an
appropriate notification constituting a committee of management in respect of
the temple in question, the Division Bench opined that some element of
discretion exists in the State Government.
plain reading of the provisions of Section 53 of the Act would show that it
contemplates vesting of public trust in the State Government.
dates may be appointed for different purposes. Once Chapter X is found to be
applicable, subject to fixation of an appointed date, the management vests in a
committee. Such a committee of management is to be constituted by the State
Government in the manner provided therein. The said provision contains a non-obstante
clause and, therefore, the same would prevail over anything contained in any
provision of the Act or in any law, custom or usage in force.
State Government, in our opinion, does not have any discretionary jurisdiction
to exercise in the matter of appointment of a committee of management. It is
imperative in nature. The expression "shall" used in Sub-sections (1)
and (2) of Section 53 of the Act indicates that the natural and ordinary
meaning of the words used by the legislature require that a committee of
management must be constituted. The expression "shall" ordinarily
implies the imperative character of the law.
if the expression "shall" is read as "may" although there
does not exist any reason therefor, the statute provides for a power coupled
with a duty. It is a well-settled principle of interpretation of statutes that
where discretion is conferred upon a public authority coupled with discretion,
the word "may" which denotes discretion, should be construed to mean
Commissioner of Police, Bombay v. Gordhandas Bhanji [1952 SCR
135], it is stated:
have held that the Commissioner did not in fact exercise his discretion in this
case and did not cancel the license he granted. He merely forwarded to the
respondent an order of cancellation which another authority had purported to
pass. It is evident from these facts that the Commissioner had before him
objections which called for the exercise of the discretion regarding
cancellation specifically vested in him by Rule 250. He was therefore bound to
exercise it and bring to bear on the matter his own independent and unfettered
judgment and decide for himself whether to cancel the license or reject the
objections. That duty he can now be ordered to perform under section 45."
In State of Uttar
Pradesh v. Jogendra
Singh [(1964) 2 SCR 197], this Court observed:
4(2) deals with the class of gazetted government servants and gives them the
right to make a request to the Governor that their cases should be referred to
the Tribunal in respect of matters specified in clauses (a) to (d) of sub-rule
(1). The question for our decision is whether like the word "may" in
rule 4(1) which confers the discretion on the Governor, the word
"may" in sub- rule (2) confers discretion on him, or does the word
"may" in sub-rule (2) really mean "shall" or "must"?
There is no doubt that the word "may" generally does not mean
"must" or "shall". But it is well-settled that the word
"may" is capable of meaning "must" or "shall" in
the light of the context. It is also clear that where a discretion is conferred
upon a public authority coupled with an obligation, the word "may"
which denotes discretion should be construed to mean a command. Sometimes, the
legislature uses the word "may" out of deference to the high status
of the authority on whom the power and the obligation are intended to be
conferred and imposed. In the present case, it is the context which is
decisive. The whole purpose of rule 4(2) would be frustrated if the word "may"
in the said rule receives the same construction as in the sub- rule (1). It is
because in regard to gazetted government servants the discretion had already
been given to the Governor to refer their cases to the Tribunal that the
rule-making authority wanted to make a special provision in respect of them as
distinguished from other government servants falling under rule 4(1) and rule
4(2) has been prescribed, otherwise rule 4(2) would be wholly redundant. In
other words, the plain and unambiguous object of enacting rule 4(2) is to
provide an option to the gazetted government servants to request the Governor
that their cases should be tried by a Tribunal and not otherwise.
rule-making authority presumably thought that having regard to the status of
the gazetted government servants, it would be legitimate to give such an
opinion to them" In State (Delhi Admn.) v. I.K. Nangia and Another [(1980)
1 SCC 258], this Court opined:
are clear that the Explanation to Section 17(2), although in terms permissive,
imposes a duty upon such a company to nominate a person in relation to
different establishments or branches or units. There can be no doubt that this
implies the performance of a public duty, as otherwise, the scheme underlying
the section would be unworkable. The case, in our opinion, comes within the
dictum of Lord Cairns in Julius v. Lord Bishop of Oxford:
may be something in the nature of the thing empowered to be done, something in
the object for which it is to be done, something in the conditions under which
it is to be done, something in the title of the person or persons for whose
benefit the power is to be exercised, which may couple the power with a duty,
and make it the duty of the person in whom the power is reposed to exercise
that power when called upon to do so.
Explanation lays down the mode in which the requirements of Section 17 (2)
should be complied with. Normally, the word 'may' implies what is optional, but
for the reasons stated, it should in the context in which it appears, mean
'must'. There is an element of compulsion. It is power coupled with a duty. In
Maxwell on Interpretation of Statutes, llth Edn. at p. 231, the principle is
which authorise persons to do acts for the benefit of others, or, as it is
sometimes said, for the public good or the advancement of justice, have often
given rise to controversy when conferring the authority in terms simply
enabling and not mandatory. In enacting that they "may" or
"shall, if they think fit", or, "shall have power", or that
"it shall be lawful" for them to do such acts, a statute appears to
use the language of mere permission, but it has been so often decided as to
have become an axiom that in such cases such expressions may have-to say the
least-a compulsory force, and so could seem to be modified by judicial
supplied) Though the company is not a body or authority, there is no reason-why
the same principle should not apply. It is thus wrong to suggest that the
Explanation is only an enabling provision, when its breach entails in the
consequences indicated above. It is not left to one's choice, but the law makes
it imperative. Admittedly, M/s. Ahmed Oomer Bhoy had not at the material time,
nominated any person, in relation to their Delhi branch. The matter is, therefore, squarely covered by Section 17 (1)
(a) (ii)." Although there is no ambiguity, even if there be any, the
marginal note may be taken into consideration for the purpose of proper
construction of the provision. [See N.C. Dhoundial v. Union of India, (2004)
2 SCC 579] Once it is held that Chapter X of the Act applies, the court must
bear in mind that the provisions contained in the said Chapter provide for a
set of provisions in regard to the management of trust. There does not exist
any other provisions providing for the same.
Rohtagi, learned senior counsel appearing on behalf of the State of Rajasthan,
however, would submit that in view of the fact that the management of the
temple is vested in the Devasthan Commissioner, the provisions of the Act, far
less Chapter X, will apply to the temple in question.
exemption provision, as is well-known, must be strictly construed.
(1) of Section 77 of the Act exempts only those trusts which are administered
by any agency under the control of the State Government or by any local
authority. Whether the Devasthan Commissioner would be the agency of the State
is, therefore, the question. Devasthan Commissioner is a statutory authority.
He is an officer of the State. He exercises various functions under the Act.
The Act postulates constitution of Advisory Boards and Advisory Committee.
Their duties and functions are prescribed. In regard to various provisions of
the Act, Devasthan Commissioner indisputably has statutory duties to perform.
The Act does not provide that he may be put in charge of the management of any
trust falling under Section 52 of the Act. As indicated hereinbefore, Section
53 of the Act contains a non-obstante clause. It is of wide import.
statutory authority, as is well-known, must act within the four corners of the
statute. [See Taylor v. Taylor, (1875) 1 Ch D 426] Any action by a statutory authority
contrary to or inconsistent with the provisions of the statute, thus, would be
void. In the matter of construction of a statute, therefore, the court shall
not take recourse to a principle which would render the acts of a statutory
authority void in law.
statutory authority cannot, in absence of the provisions of a statute, be
treated to be an agency of the State. It is one thing to say that the State
exercises statutory control over the functions of a statute but it is another
thing to say that thereby an agency is created which would be separate in
entity over which the State exercises control. Agency of a State would
ordinarily mean an instrumentality of a State. It must be a separate legal
entity. A statutory authority does not answer the description of an agency
under the control of the State.
expression agency in the context of the statutory scheme would not mean that
there would exist a relationship of principal and agent between it and the
State. Agency of a State would mean a body which exercises public functions. It
would itself be a 'State' within the meaning of Article 12 of the Constitution
of India. The concept of an agency in the context of Section 77 of the Act must
be considered having regard to the fact that the statute contemplates grant of
exemption to a public trust, management whereof vests inter alia in a local
authority. A "local authority" is defined in Section 3(31) of the
General Clauses Act to mean "a municipal committee, district board, body
of port commissioners or other authority legally entitled to, or entrusted by
the Government with, the control or management of a municipal or local
fund." It, thus, ordinarily would be a statutory authority.
golden rule of interpretation, viz., literal rule should be given effect to, if
it is to be held that the Devasthan Commissioner appointed under Section 7 of
the Act would be an agency of the State, the same would lead to an absurdity or
anomaly. It is a well-known principle of law that where literal interpretation
shall give rise to an anomaly or absurdity, the same should be avoided. [See Ashok
Lanka v. Rishi Dixit, (2005) 5 SCC 598 and M.P. Gopalakrishnan Nair v. State of
Kerala,(2005) 11 SCC 45] It is also
well-settled that the entire statute must be first read as a whole then section
by section, clause by clause, phrase by phrase and word by word. [See Reserve
Bank of India v. Peerless General Finance and
Investment Co. Ltd. and Others, (1987) 1 SCC 424] The relevant provisions of
the statute must, thus, be read harmoniously. [See Bombay Dyeing (supra) and
Secretary, Department of Excise & Commercial Taxes and Others v. Sun Bright
Marketing (P) Ltd., Chhattisgarh and Another [(2004) 3 SCC 185]. It would,
therefore, not be possible to give literal interpretation to Section 77 of the
provisions contained in different Chapters of the Act must, as far as possible,
receive harmonious construction. With a view to give harmonious construction,
the effect of an exemption clause must be borne in mind. It has not been denied
or disputed that keeping in view the different clauses contained in Section 52
of the Act, public trusts which had vested in the State would come within the
purview of the Chapter X. Once it is held that all those trusts would also go
out of the statute, the provisions of Chapter X would become otiose in a large
number of cases. Application of such principle of interpretation is not
therefore, incumbent for us to take recourse to harmonious construction. If
principle of harmonious construction is applied, in a case of this nature,
particularly, when the State itself has acted upon the directions of the court
and had issued notifications in terms of Section 52 of the Act, the State
cannot now be permitted to contend that Chapter X shall not apply.
could not approbate and reprobate at the same time.
is another aspect of the matter which cannot also be lost sight of. The State
not only in the earlier round of litigation but also before the High Court had
taken a categorical stand that it had all along been ready and willing to act
in terms of the provisions of Chapter X of the Act and appoint a Committee; it
cannot take a different stand now.
Jethabhai Somayya v. State of Bombay (now Maharashtra) [AIR 1964 SC 1714], this Court stated the law, thus:
Apart from the fact that the appellant asked for the production of all the
relevant documents, the Government, being the defendant in this case, should
have produced the documents relevant to the question raised. While it is the
duty of a private party to a litigation to place all the relevant matters
before the Court, a higher responsibility rests upon the Government not to
withhold such documents from the court..." In Cooke v. Rickman [(1911) 2
KB 1125] , it was held that the rule of estoppel could not be restricted to a
matter in issue, stating :
rule laid down in Hawlett v. Tarte (10 C.B.
813 was that if the defendant in a second action attempts to put on the,
record a plea which is inconsistent with any traversable allegation in a former
action between the same parties there is an estoppel" [See also Humphries
v. Humphries 1910 (2) KB 531] In Jai Narain Parasrampura (Dead) and Others v. Pushpa
Devi Saraf and Others [(2006) 7 SCC 756], this Court held :
applying the procedural law like principle of estoppel or acquiescence, the
court would be concerned with the conduct of a party for determination as to
whether he can be permitted to take a different stand in a subsequent
proceeding, unless there exists a statutory interdict." It was further held
doctrine of estoppel by acquiescence was not restricted to cases where the representor
was aware both of what his strict rights were and that the representee was
acting on the belief that those rights would not be enforced against him.
Instead, the court was required to ascertain whether in the particular
circumstances, it would be unconscionable for a party to be permitted to deny
that which, knowingly or unknowingly, he had allowed or encouraged another to
assume to his detriment. Accordingly, the principle would apply if at the time
the expectation was encouraged." The stand of the State in the earlier
round of ligitation was that the temple in question was a Hindu temple. This
Court categorically opined that it is a Jain temple. The principles of res judicata,
thus, would come into play. The State, therefore, cannot still contend that the
temple in question is a Hindu temple. Before us, the Respondent Nos. 1 to 4 in
Civil Appeal No.
of 2002 have raised a contention that it is a Hindu temple but we cannot permit
the State or the said respondents to raise such a contention before us. We are
bound by the earlier judgment. The issue cannot be permitted to be reopened nor
we have any jurisdiction in these matters to do so.
must, however, observe that the question as to whether the temple in question
is Swetambers' or Digambers' does not fall for our consideration. Both parties
have staked their own claims. It is for the State to act in terms of the
statute. While doing so, it indisputably would have to give effect to the
directions issued by the High Court.
implementing the said directions, the incidental or ancillary questions which
may arise for consideration before the State Government must also be determined
in accordance with law.
the reasons aforementioned, we are of the opinion that the modifications made
by the Division Bench of the High Court are not sustainable. They are set aside
accordingly. The judgment of the learned Single Judge is upheld. The judgment
of the High Court may be complied within four months from date. Civil Appeal
Nos. 4092-4095, 4086-4089 and 4076-4079 of 2002 are allowed and Civil Appeal
Nos. 4081-4084 of 2002 are dismissed with costs. Counsel's fee is assessed at Rs.
50,000/- for each set of appeals.