Tilkayat Shri Govindlalji Maharaj Vs.
The State of Rajasthan & Ors  INSC 5 (21 January 1963)
21/01/1963 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
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
Nathdwara Temple-Private or public
temple-Tests--Validity of enactment providing for proper administration of
templeConstitutionality-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).
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 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 practices 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,  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 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, 
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,  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,  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,  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.
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. 3
10 of 1959.
AND VICE VERSA (c) Civil Appeal No. 656 of
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
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
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
Along with this petition Writ Petition No.
310 of 1959 was 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
bythe 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
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
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 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
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.
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
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 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 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
573 seven other idols which were also
"Swaroops" (manifestations) 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 grants were made and
thousands of devotees visiting the temple in reverence made offerings to the
temple almost every day 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 grandson 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 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
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 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 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
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 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) PravahaPushtibhakti, (2) Maryada Pushtibhakti, (3) PushtiPushtibhakti
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. 355356.
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 midday 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 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
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
Faced with this immediate problem
Vithalnathji may have started building the temples in the form of Havelis so
that from outside nobody should know that there is a temple within.
It may also be true historically that when
the first temple was built in the life time of Vallabha it may have been a
modest house where the original image was installed and during the early years
just a few devotees may have been visiting the said temple. Appropriately
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
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 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 abovementioned 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
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
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
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
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). Ammerun-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)  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 monarchy. Therefore, it 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
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 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
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
authority 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
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
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 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 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
Section 3 provides that the ownership of the
temple and all its endowments includingall 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 administration of the temple and all its
endowments shall vest in the Board constituted in the manner hereinafter
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 exofficio member, including the Goswami on any of the three grounds
specified in clauses (a), (b) & (c) ; ground (a) refers to the
disqualification specified by s. 5 (2), ground (b) refers to the absence of the
member for more than four consecutive meetings of the Board without obtaining
leave for absence ; and ground (c) refers to the case where a member is guilty
of corruption or misconduct in the administration of the endowment Section 7
(2) provides a safeguard to the person against whom action is intended to be
taken under sub-cl. (1) and it lays down that no person shall be removed unless
he has been given a reasonable opportunity of showing cause against his
removal. It would be noticed that by operation of s. 7 (1), the Goswami is
liable to 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 reappointment. 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 remuneration
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 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 borrowing
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
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 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. Section34
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 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 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 wor608 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 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.
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 (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
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)  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 affecting 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 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)  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) 
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
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 Commisioner, 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)  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 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 question
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 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 silverware 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 comparable 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 is that the Act contravenes the right guaranteed to the denomination
by (1)  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
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)  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
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 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)  S.C.R.
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. Thereforewhenever 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)
 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
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 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 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
That leaves one more point to be considered
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 property, 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 Religious 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 this plea should be made by the representatives of the
(1)  S.C.R. 1005.
(2)  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
represented 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
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
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 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 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 expression "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 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
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, farfetched 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
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)  S.C.R. 1005.
(2)  S.C.R.1055, 635 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)  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 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)  S.C.R.
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 Government 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 anything 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 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.