Raja Birakishore Vs. The State Of
Orissa [1964] INSC 56 (5 March 1964)
05/03/1964 WANCHOO, K.N.
WANCHOO, K.N.
GAJENDRAGADKAR, P.B. (CJ) SHAH, J.C.
AYYANGAR, N. RAJAGOPALA SIKRI, S.M.
CITATION: 1964 AIR 1501 1964 SCR (7) 32
CITATOR INFO:
R 1971 SC 891 (11,12) RF 1983 SC 1 (168)
ACT:
Fundamental rights-Interference with
religious affairs of Temple-Constitution of India, Art.
31(2)-Applicability-Shri Jagannath Temple Act, 1954 (No. 11 of 1955), ss. 8,
11, 18, 21, 21A and 30-Validity-Constitution of India, Arts. 13, 19, 26(d), 27
and 28.
HEADNOTE:
A writ petition was filed in the Orissa, High
Court by the father of the appellant challenging the validity of Shri Jagannath
Temple Act, 1954. The petition was dismissed by High Court which held that the
Act was valid and constitutional except s. 28(2)(f). The High Court struck down
that provision and upheld the constitutionality of the rest of the Act. The
appellant came to this Court after obtaining a certificate of fitness to appeal
to Supreme Court.
The contentions raised before this Court were
that the Act was discriminatory as the Jagannath Temple alone had been -singled
out for special treatment as compared to other temples in the State of Orissa.
The Act took away the sole management of the Temple which had so far been
vested in the appellant or his ancestors. S. 15 (1) of the Act interfered with
the religious affairs of the temple. The validity of ss. 11, 19, 21, 21A and 30
of the Act was also attacked.
Dismissing the appeal, Held: There is no
violation of Art. 14 of the Constitution. The Jagannath Temple occupies a
unique position in the State of Orissa, and is a temple of national importance
and no other temple in that State can compare with it. It stands in a class by
itself and considering the fact that it attracts pilgrims from all over India
in large numbers, it could be the subject of special consideration by the State
Government. A law may be constitutional even though it related to a single
individual if on account of special circumstances or reasons applicable to him
and not applicable to others, that single individual may be treated as a class
by himself.
(ii) There was no violation of Art. 19(1) (f)
or Art. 31 (2) of the Constitution. All that the Act has done is that it has
taken away the sole right of the appellant to manage the property of the Temple
and another body has been set up in its place with the appellant as its
Chairman. Such a process cannot be said to constitute the acquisition of the
extinguished office or of the vesting of the rights in the person holding that
office. The appellant occupied a dual position as Superintendent and Adya
Sevak. His position as Superintendent hers gone and in that place he has become
the Chairman of the Committee set up under s. 6. The position of the applicant
as Adya Sevak is safeguarded by s. 8 of the Act inasmuch as the rights and
privileges in respect of Gajapati Maharaja Seva axe protected even though he
may cease to be Chairman on account of his minority or on account of some other
reason.
(iii) S. 15(1) of the Act does not interfere
with the religious, affairs of the Temple. Sevapuja of the Temple has two
aspects. One aspect is the provision of materials and that is a secular, 33
function. The second aspect is the performance of the Sevapuja and other rights
as required by religion. S. 15(1) has nothing to do with the second aspect
which is the religious aspect of Seva-Raj puja. While s. 15(1) imposes a duty
on the committee to look after the secular aspect of the Sevapuja, it leave the
religious part entirely untouched.
(iv) Ss. 11, 19 and 21 were valid provisions
and could not be attacked ss. 5 and 6 constituting the committee in place of
the Raja, were valid. Ss. 21A and 30 were also valid.
Arts. 27 and. 28 had nothing to do with the matter
dealt with under Act. It was not open to the appellant to argue that the Act
was bad as it was hit by Art. 26(d). No -such contention was _properly raised
in the High Court.
Tilkayat, Shri Govindlal ji v. State of
Rajasthan, A.I.R.
(1963) S.C. 1638, referred to.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 135 of 1962.
Appeal from the judgment and order dated
April 30, 1958, of the Orissa High Court in O.J.C. No. 321 of 1955.
M. C. Setalvad, Sarjoo Prasad and A. D.
Mathur, for the appellant.
S. V. Gupta, Additional Solicitor-General, M.
S. K. Sastri and R. N. Sachthey, for the respondent.
March 5, 1964. The Judgment of the Court was
delivered byWANCHOO, J.--This appeal on a certificate granted by the Orissa
High Court raises the question of the constitutionality of the Shri Jagannath
Temple Act, 1954, No. 11 of 1955, (hereinafter referred to as the Act). The
challenge to the Act was made by the father of the present appellant by a writ
petition filed in the High Court of Orissa. The appellant was substituted for
his father on the death of the latter while the writ petition was pending in
the High Court. The case put forward in the petition firstly was that the Shri
Jagannath Temple (hereinafter referred to as the Temple) was the private property
of the petitioner, Raja of Puri, and the Act, which deprived the appellant of
his property was unconstitutional in view of Art. 19 of the Constitution. In
the alternative it was submitted that the appellant had the sole right of
superintendence and management of the Temple and that that right could not be
taken away without payment of compensation, and the Act inasmuch as it took
away that right without any compensation was hit by Art. 31 of the
Constitution. It was further pleaded that the right of superintendence was
property within the meaning of Art. 19 (1) (f) and inasmuch as the appellant
had been deprived of that property by the Act, it was an unreasonable provision
which was not L/P(D)1SCI-2 ...
34 saved under Art. 19(5). The Act was
further attacked on the ground that it was was discriminatory and was therefore
hit by Art. 14 of the Constitution, as the Temple had been singled out for
special legislation, though there was a general law in force with respect to
Hindu religious endowments, namely, the Orissa Hindu Religious Endowments Act
No. 11 of 1952. Reliance was placed on Arts. 26, 27 and 28 of the Constitution
to invalidate the Act, though the appellant did not indicate in the petition
how those Articles hit the Act. Lastly, it was urged that the utilisation of
the Temple funds for purposes alien to the interest of the deity as proposed
under the Act was illegal and ultra vires.
The petition was opposed on behalf of the
State and it was urged that the Temple was not the private property of the
appellant. The case of the State was that it was a public temple and the State
always had the right to see that it was properly administered. Before the
British conquered Orissa in 1803, the Temple had for a long time been managed
by Muslim Rulers directly, though through Hindu employees.
After 1803, the Temple began to be managed
directly by the British Government, though by Regulation IV of 1809 the
management was made over to the Raja of Khurda (who is now known as the Raja of
Puri), who was appointed as hereditary superintendent in view of his family's
connection in the past with the Temple. Even so, whenever there was
mismanagement in the Temple during the course of the last century and a half,
the Government always intervened and many a time administered the secular
affairs of the Temple directly through one of its officers in whose favour the
then Raja was made to execute a power of attorney divesting himself completely
of all powers of management. The case of the State further was that in view of the
reported mismanagement of the Temple, the State legislature passed the Puri
Shri Jagannath Temple (Administration) Act, (No.
XIV of 1952) for the appointment of a Special
Officer for the preparation of a record pertaining to the rights and duties of
different sevaks and pujaris and such other persons connected with the seva,
puja or management of the Temple and its endowments in order to put the
administration of the Temple on a suitable basis. A Special Officer was
accordingly appointed who submitted his report on March 15, 1954, which
disclosed serious mismanagement of the affairs of the Temple and in consequence
the Act was passed in 1955.
The State contended that the Act was
perfectly valid and constitutional and did not offend any constitutional provision.
When the matter came to be argued before the
High Court, the appellant gave up the plea that the Temple was his private
property and it was conceded that it was a public temple, the properties of
which were the properties of the deity 35 and not the private properties of the
Raja of Puri. In view of this concession, the attack on the constitutionality
of the Act was based mainly on the ground that it took away the, Raja's
perquisites which had been found to belong to him in the record of rights prepared
under the Act of 1952.
It may be mentioned that the Raja of Puri had
two-fold connection with the Temple. In the first place, the Raja is the adya
sevak, i.e., the chief servant of the Temple and in that capacity he has
certain rights and privileges. In addition to that, he was the sole
superintendent of the Temple and was incharge of the management of the secular
affairs of the Temple. The main contention of the appellant before the High
Court was that the Act not only took away the management of the secular affairs
of the Temple from the appellant but also interfered with his rights as adya
sevak and was therefore unconstitutional. The High Court repelled all the
submissions ,on behalf of the appellant and held that the Act was valid and
constitutional except for one provision contained in s. 28(2)(f) thereof. The
High Court therefore struck down that provision and upheld the
constitutionality of the rest of the Act. Thereupon the appellant applied for a
certificate which was granted; and that is how the appeal has come up before
us.
Before we consider the attack on the
constitutionality of the Act we should like to indicate briefly what the scheme
,of the Act is and what it provides with respect to the management of the
Temple. Section I provides for its commencement. Section 2 provides for certain
repeals.
Section 3 provides that the Orissa Act XIV of
1952 shall be deemed to be a part of the Act and delegates to the committee
constituted under s. 6 of the Act all powers of the State Government under the
1952-Act from such date as the State Government may notify. Section 4 is the
definition section. Section 5 vests the administration and the governance of
the Temple and its endowments in a committee called the Shri Jagannath Temple
Managing Committee. The Committee shall be a body corporate, having perpetual
succession and a common seal and may by the said name sue and be sued. Section
6 provides for the constitution of the committee with the Raja of Puri as its
chairman. No person who does not profess the Hindu religion shall be eligible
for membership. Besides providing for some ex officio members, the other
members of the committee are all nominated by the State Government, one from
among the persons entitled to sit on the mukti-mandap, three from among the
sevaks of the Temple recorded as such in the record of rights, and seven from
among those who do not belong to the above two classes.
36 The Collector of the district of Puri is
an ex officio member and is designated as the vice-chairman of the committee.
Section 7 provides for the appointment of a chairman during the minority of the
Raja of Puri or during the time when the Raja is suffering from any of the
disabilities mentioned in s. 10(1) clauses (a) to (e) and (g) thereof. Section
8 lays down that nothing in s. 7 shall be deemed to affect the rights and
privileges of the Raja of Puri in respect of the Gajapati Maharaj Seva merely
on the ground that the Raja has ceased to perform the duties of the chairman
for the time being. Section 9 provides for the terms of office of members and
s. IO gives power to the State Government to remove any member of the committee
other than the ex officio members on the -rounds specified in cls.
(a) to (g) thereof. No member can be removed
from his membership unless he has been given a reasonable opportunity of
showing cause against his removal. Section 11 provides for dissolution and
supersession of the committee in certain contingencies, such as incompetence to
perform the duties imposed upon it by' the Act 'or making of default in
performing such duties. The committee is given an opportunity to show cause
against any such action before it is taken, and provision is made for
continuing the management during the time the committee is superseded or has
been dissolved. Section 12 provides for casual vacancies, s. 13 for the
meetings of the committee and s. 14 for allowances to the members of the
committee payable from the Temple fund, but no member of the committee other
than the administrator is to be paid any salary or other remuneration from the
Temple fund except such travelling and daily allowances as may be prescribed.
Section 15 provides for the duties of the committee and it may be quoted in
full as it is the main target of attack: " 15. Subject to the provisions
of this Act and the rules made thereunder, it shall be the duty of the
Committee-(1) to arrange for the proper performance of sevapujah and of the
daily and periodical Nitis of the Temple in accordance with the
Record-of-Rights;
(2) to provide facilities for the proper
performance of worship by the pilgrims;
(3) to ensure the safe custody of the funds,
valuable securities and jewelleries and for the preservation and management of
the properties vested in the Temple;
(4) to ensure maintenance of order and
discipline and proper hygienic conditions in the Temple and of proper standard
of cleanliness and purity in the offerings made therein;
37 (5) to ensure that funds of the specific
and religious endowments are spent accordi ng to the wishes, so far as may be
known, of the donors;
(6) to make provision for the payment of
suitable emoluments to its salaried staff; and (7) to do all such things as may
be incidental and conducive to the efficient management of the affairs of the
Temple and its endowments and the convenience of the pilgrims." Section 16
provides a ban on the alienation of Temple properties subject to certain
conditions. Section 17 lays down that the committee shall have no power to
borrow money from any person except with the previous sanction of the State
Government. Section 18 provides for an annual administration report to be
submitted to the Government.
Section 18-A gives power to the committee
with the prior approval of the State Government to delegate its functions to
the Collector of the district or, as the case may be, to the officer who
happens to be a member of the committee in place of such Collector. Section 9
gives power to the State Government to appoint an administrator for the Temple.
Section 20 provides for the qualifications
and conditions of service of the administrator and s. 21 for the powers and
duties of the administrator. As this section is specially attacked we quote it
here in full.
"S.21. (1) The Administrator shall be
Secretary of the Committee and its chief executive officer and shall subject to
the control of the committee have powers to carry out its decision in
accordance with the provisions of this act.
(2) Notwithstanding anything in sub-section
(1) or in section 5, the Administrator shall be responsible for the custody of
all records and properties of the Temple, and shall arrange for proper
collections of offerings made in the Temple and shall have power(a) to appoint
all officers and employees of the Temple;
(b) to lease out for a period not exceeding
one year at a time the lands and buildings of the Temple which are ordinarily
leased out-, (c) to call for tenders for works or supplies and accept such
tenders when the amount or value thereof does not exceed two thousand rupees;
(d) to order for emergency repairs;
(e) to specify, by general or special orders,
such conditions and safeguards as he deems fit, subject to which any sevak,
officeholder or servant 38 shall have the right to be in possession of jewels
or other valuable belongings of the temple;
(f) to decide disputes relating to the
collection, distribution or apportionment of offerings, fees and other receipts
in cash or in kind received from the members of the public;
(g) to decide disputes relating to the
rights, privileges, duties and obligations of sevaks, office-holders and
servants in respect of sevapuja and nitis, whether ordinary or special in
nature;
(h) to require various sevaks and other
persons to do their legitimate duties in time in accordance with the
Record-of-Rights; and (i) in the absence of any sevak or his substitutes or on
the failure on the part of any such person to perform his duties, to get the
niti or seva performed in accordance with the record-ofrights by any other
person.
(3) The administrator may subject to such
conditions, if any, as the committee may, by general or special order impose,
afford facilities on payment of fees for special darshan or for any special
service, ritual or ceremony, such darshan, service, ritual or ceremony not
being inconsistent with the custom and usage of the Temple and he shall have
power to determine the portion, if any, of such fees which shall be paid to the
sevaks, office-holders or servants of the Temple." Section 21-A provides
that all sevaks, office-holders and servants attached to the Temple or in
receipt of any emoluments or perquisites therefrom shall, whether such service
is hereditary or not, be subject to the control of the administrator who may,
subject to the provisions of the Act and the regulations made by the committee
in that behalf, after giving the person concerned a reasonable opportunity of
being heard withhold the receipt of emoluments or perquisites, impose a fine,
suspend or dismiss any of them for breach of trust, incapacity, disobedience of
lawful orders, neglect of or wilful absence from duty, disorderly behaviour or
conduct derogatory to the discipline or dignity of the temple or for any other
sufficient cause: Section 22 provides for extraordinary powers of the
administrator who is directed to take action in emergency and report forthwith
to the committee the action taken and the reasons therefor.
Section 23 provides for the establishment
schedule and s. 24 provides for an appeal to, the committee against an order of
the administrator under s. 21 (2)(f) or (g) or s. 21-A.
Sections 25 to, 27 provide for the
preparation of annual budget and audit. Section 28 provides for a Temple fund
and how it is to be utilised. Section 29 bars suits against 39 the State
Government or against the committee or the administrator for anything done or
purported to be done by any of them under the provisions of the Act. Section 30
gives power of general superintendence of the Temple and its endowments to the
State Government which may pass any orders for the proper maintenance or
administration of the Temple or its endowments or in the interest of the
general public worshipping in the Temple. It also gives power to the State
Government to examine the records of the administrator or of the committee in
respect of any proceedings with a view to satisfy itself as to the regularity
of such proceeding or the correctness, legality or propriety of any decision or
order made therein; and if in any case it appears to the State Government that
any such decision or order should be modified, annulled, reversed or remitted,
for reconsideration, it may pass orders accordingly. The State Government is
also given the power to stay the execution of any such decision or order in the
meantime. Section 30-A creates an offence which is punishable on conviction
with fine which may extend to Rs. 500 whenever any person having duties to
perform in respect of the nitis of the Temple or sevapuja of the deity raises
any claim or dispute and fails or refuses to perform such duties, knowing or
having reasons to believe that the non-performance of the said duties would
cause delay in the performance of the niti or sevapuja or inconvenience or
harassment to the public or any section thereof entitled to worship in the
Temple and wilfully disobeys or fails to comply with the orders of the
administrator directing him to perform his duties without prejudice to the
results of a proper adjudication of such claim or dispute. Section 31 gives
power to the committee to frame regulations as to the conditions of service of
office bearers and employees of the Temple, procedure for transfer of sevapuja,
chuli or panti in the Temple, observance of nitis and other usages in the
Temple in the absence of specific mention in the record of rights; and any
other matters for which regulations are required to be made for the purposes of
the Act. Section 32 gives power to the State Government to frame rules. Section
33 lays down that "the committee shall be entitled to take and be in
possession of all movable and immovable properties, including the Ratna Bhandar
and funds and jewelleries, records, documents and other assets belonging to the
Temple" and also lays down the procedure to be followed in case of
resistance in obtaining such possession. Section 34 lays down that "all public
officers having custody of any record, register, report or other documents
relating to the Temple or any movable or immovable property thereof shall
furnish such copies of or extracts from the same as may be required by the
administrator". Section 35 lays down that "no act or proceeding of
the committee or of any person acting as a member of the committee shall be
deemed to be invalid by reason only 40 of a defect in the establishment or
constitution of the committee or on the ground that any member of the committee
was not entitled to hold or continue in such office by reason of any
disqualification or by reason of any irregularity or illegality in his
appointment or by reason of such act having been done or proceeding taken
during the period of any vacancy in the office of member of the
committee." Similar protection is given to an act or proceeding of the
administrator. Section 36 provides for the removal of difficulties by the State
Government so long as the order passed in that behalf is not inconsistent with
the Act or the rules made there under.
This review of the provisions of the Act
shows that broadly speaking the Act provides for the management of the secular
affairs of the Temple and does not interfere, with the religious affairs
thereof, which have to be performed according to the record of rights prepared
under the Act of 1952 and where there is no such record of rights in accordance
with custom and usage obtaining in the Temple.
It is in this background that we have to
consider the attack on the constitutionality of the Act. We may first dispose
of the attack based on Art. 14. It is urged that inasmuch as this special Act
has been passed for this Temple and the general Act, namely, the Orissa Hindu
Religious Endowments Act No. 11 of 1952 no longer applies to this Temple, there
has been discrimination inasmuch as the Temple has been singled out for special
treatment as compared to other temples in the State of Orissa. There is no
doubt that the Act is in many respects different from Act 11 of 1952 and
substitutes the committee for the Raja of Puri for the purpose of management of
the Temple, and there would prima facie be discrimination unless it can be
shown that the Temple stands in a class by itself and required special
treatment. As to that the affidavit on behalf of the State Government is that
the Temple is a unique institution in the State of Orissa and is in a class by
itself and that there is no comparison between the Temple and other temples in
the State. The averment on behalf of the State is that the Temple has been
treated as a special object throughout the centuries because of its unique
importance and that there is no other temple which occupies the unique place
which this Temple occupies in the whole of India. Also there is no other temple
in Orissa with such vast assets or which attracts such a large number of
pilgrims which pour into it from the whole of India. It is also averred that it
is absolutely incorrect that there are other temples in Orissa which are equal
to it from the standpoint of assets or from the standpoint of their all-India
character or from the standpoint of the complicated nature of nitis and
sevapuja affecting the lives, religious susceptibilities and sentiments of
millions of people spread all over India. There can be no doubt after this
averment on behalf of the State that the Temple occupies a unique position in
the State of Orissa and 41 is a temple of national importance and no other
temple in that State can compare with it stands in a class by itself and
considering the fact that it attracts pilgrims from all over India in large
numbers it must be a subject of special consideration by the State Government.
In reply to these averments on behalf of the State, all that the appellant
stated in his rejoinder was that these averments were not admitted. There was
no denial of the special importance of the Temple as averred on behalf of the
State and we have no doubt therefore that this Temple stands in a class by
itself in the State of Orissa and therefore requires special treatment. We may
in this connection refer to the decision of the Court in Tilkayat Shri
Govindlalji v. State of Rajasthan(1) where in relation to the temple at
Nathdwara with respect to which a special Act had been passed by the State of
Rajasthan, this Court observed that "a law may be constitutional even
though it relates to a single individual if, on account of some special
circumstances or reasons applicable to him and not applicable to others, that
single individual may be treated as a class by himself". The attack under
Art. 14 on the constitutionality of the law with respect to the temple at
Nathdwara was repelled on the ground that the temple had a, unique position
amongst the Hindu Shrines in the State of Rajasthan and no temple could be
regarded as comparable with it. The same reasons in our opinion apply to the
Temple in the present case and the Act cannot be struck down under Art. 14
because the Temple in the present case holds a unique position amongst the
Hindu temples in the State of Orissa and no other temple can be regarded as
comparable with it.
Next we come to the attack on the
constitutionality of the Act on the ground that it has taken away the sole
management of the temple which had so far been vested in the appellant or his ancestors.
The reasons why the Act was passed are to be found in the preamble thereof. The
preamble says that the ancient Temple of Lord Jagannath of Puri has ever since
its inception been an institution of unique and national importance, in which
millions of Hindu devotees from regions far and wide have reposed their faith
and belief and have regarded it as the epitome of their tradition and culture.
It further says that long prior to and after
the British conquest the superintendence, control and management of the affairs
of the Temple have been the direct concern of successive rulers, governments
and their officers and of the public exchequer. it then says that by Regulation
IV of 1809 and thereafter by other laws and regulations in pursuance of arrangements
entered into with the Raja. of Khurda, later designated as the Raja of Puri,
the said Raja came to be entrusted hereditarily with the management of the
affairs of the Temple and its properties as superintendent subject to the
control and supervision of the ruling power. It then goes on to say that in
view of grave (1) [1964] 1 S.C.R. 561.
42 and serious irregularities thereafter the
Government had to intervene on various occasions in the past. Finally the
preamble says that the administration under the superintendent has further
deteriorated and a situation has arisen rendering it expedient to reorganise
the scheme of management of the affairs of the Temple and its properties and
provide better administration and governance therefor in supersession of all
previous laws, regulations and arrangements, having regard to the ancient
customs and usages and the unique and traditional nitis and rituals contained
in the record of rights prepared under the 1952 Act. So for all these reasons
the appellant was removed from the sole superintendence of the Temple and a
committee was appointed by s. 6 of the Act for its management. These statements
in the preamble are not seriously in dispute as will be clear from the reports
by G. Grome dated June 10, 1905 and by the Special Officer appointed under the
1952 Act dated March 15, 1954 and the correspondence which passed from time to
time between the officers of the Government and the predecessors of the
appellant. In these circumstances if the secular management of the Temple was
taken away from the sole control of the appellant and vested in a committee of
which he still remains the chairman, it cannot be said that the provisions
contained in the Act for that purpose are hit either by Art. 31(2) or by Art.
19(f). There is in our opinion a complete parallel between the provisions of
the Act and the Act relating to the temple at Nathdwara in Rajasthan, which
came up for consideration before this Court in Tilkayat Govindlalji's case(1).
If anything, the case of the appellant is weaker than that of Shri Govindlalji,
for the appellant in the present case was conferred with the power of
superintendence by Regulation IV of 1809 after the British conquered Orissa.
Whatever may have been his connection prior to 1809 with the Temple, the
history of the Temple shows that the Muslim Rulers had removed him and were
carrying on the management of the Temple directly through Hindu officers
appointed by them. The right of management was conferred on the appellant's
ancestor after the British conquest by virtue of the Regulation of 1809 and
other laws passed thereafter. All that the Act has done is to replace his sole
right of management by appointing a, committee of which he is the chairman.
Further there can be in the circumstances no question of the application of
Art. 31(2) in the present case. In the first place the right of superintendence
is not property in this case for it carried no beneficial enjoyment of any
property with it, and in the second case, that right has not been acquired by
the State which Art. 31(2) requires. As was pointed out in Tilkayat
Govindlalji's case.(1), all that has happened in the present case is that the
sole right of the appellant to (1) 1964 1 S.C.R. 561.
43 manage the property has been extinguished
and in its place another body for the purpose of the administration of the
property of the Temple has been created. In other words the office of one
functionary is brought to an end and another functionary has come into
existence in its place. Such a process cannot be said to constitute the
acquisition of the extinguished office or the vesting of the rights in the
person holding that office: (see Tilkayat Govindlalji's case(1).
As we have already pointed out, the appellant
and his predecessors always had two distinct rights with respect to this
Temple. In the first place, they were the adya sevaks and as such had certain
rights and privileges and perquisites. The rights as adya sevak as we shall
show later have not been touched by the Act. The Act has only deprived him of
the second right i.e., the sole management of the Temple which carried no
beneficial enjoyment of any property with it and has conferred that management
on a committee of which he still remains the chairman. In view of this clear
dichotomy in the rights of the appellant and his predecessors there is no
question of Art. 31(2) applying in the present case at all, insofar as this
right of superintendence of the appellant is concerned. The attack on the
constitutionality of the Act on the ground that the sole right of
superintendence has been taken away from the appellant and that is hit by Art.
19(1)(f) or Art. 31(2) must therefore fail.
This brings us to the other aspect of the
rights of the appellant as adya sevak, and it is urged that those rights have
been taken away by the Act, and insofar as the Act has done that it is
unconstitutional in that the provisions with respect to those rights are
unreasonable and cannot be protected under Art. 19(5). Now we have already
referred to the provisions of the Act, and if one looks at those provisions one
finds nothing in them which takes away the rights of the appellant as adya
sevak. If anything, there are indications in the Act to show that his rights,
other than those of superintendence remain intact. When we say this we are not
to be understood as saying that any rights which the appellant might have had
in the capacity of adya sevak but which were of the nature of secular
management of the Temple would still remain in him. Because the appellant and
his predecessors were holding a dual position of superintendent and adya sevak,
there was in the past a mix up of his rights flowing from being an adya, sevak
with his rights as a superintendent. But apart from the rights which vested in
him as the sole manager of the Temple with respect to its management and which
have only been taken away from him by the Act, we find nothing in the Act which
takes away his rights as an adya sevak (i.e. the chief servant) of Lord
Jagannath in the matter of sevapuja, nitis etc. These rights flow from his
position as adya sevak, they (1) [1964] 1 S.C.R. 561........
44 are religious in character and are
referable to his status and obligations as sevak. We may in this connection
refer to s. 8 of the Act which lays down that nothing in s. 7 shall be deemed
to affect the rights and privileges of the Raja in respect of Gajapati Maharaja
Seva merely on the ground that the Raja has ceased to perform the duties of the
chairman for the time being. This provision clearly shows that even though the
appellant may -not be able to act as chairman of the committee because of his
minority or because of certain disqualifications mentioned in s. 7 read with s.
10(1), his rights and privileges in respect of the Gajapati Maharaja Seva
(i.e., the daily sevapuja of Lord Jagannath) remain unaffected, and these were
the rights which he had as adya sevak. Therefore s. 8 preserves by the clearest
implication the rights of the appellant as adya sevak in connection with the
sevapuja of Lord Jagannath. In this connection our attention was drawn to s. 14
of the Act, which provides that it shall be within the power of the State
Government by order to direct from time to time the payment from out of the
Temple fund to the chairman of such allowances at times and in such manner as
the State Government may consider reasonable and proper. It is said that in
view of s. 14, the appellants rights and privileges as adya, sevak have gone.
We are of opinion that this is not so. As we have already said, the position of
the superintendent and of adya sevak were two different positions, which the
appellant and his predecessors held in this Temple. His position as a
Superintendent has gone and in place of it he has become the chairman of the
committee constituted under s. 6. When s. 14 speaks of allowances to him, it
refers to his position as a chairman, which replaces his position as
superintendent before the Act. It has nothing to do with his position as an
adva sevak, which is safeguarded by s. 8 of the Act inasmuch as rights and
privileges in respect of the Gajapati Maharaja Seva are protected, even though
he may cease to be the chairman on account of his minority or on account of
some other reason.
Therefore, the provisions of s. 14 refer to
allowances only as a chairman and have nothing to do with the rights,
privileges and perquisites as an adya sevak, for he remains as adya sevak even
though he may not for certain reasons remain a chairman. His rights, privileges
and perquisites as adya sevak will remain protected under s. 8 even though he
may not be entitled to anything under s. 14 if he ceases to be the chairman in
view of s. 7. No provision in the Act has been pointed out to us, which
expressly takes away his rights, privileges and perquisites as adya sevak; on
the other hand there are other provisions which seem to indicate that even the
rights and privileges of sevaks have not been affected by the Act. If so it is
hardly likely in the absence of any specific provision, that the Act would
affect the privileges of the appellant as adya sevak. For example, s. 21 (2)
(g) gives power to the 45 administrator to decide disputes relating to the
rights, privileges, duties and obligations of sevaks , officeholders and
servants in respect of sevapuja and nitis, whether ordinary or special in
nature. This clearly postulates that the rights and privileges of sevaks remain
intact, and if there is any dispute about them, the administrator has to decide
it. Again s. 21(2)(f) provides that the administrator shall have power to
decide disputes relating to the collection, distribution or apportionment of
offerings, fees and other receipts in cash or in kind received from the members
of the public. This again postulates a right in some persons who could only be
sevaks etc. to a share of the offerings, fees and other receipts, and if there
is any dispute about its distribution or apportionment, the administrator has
been given the power to decide it. Reading these two clauses together, there
can be no manner of doubt that the Act does not affect even the rights,
privileges and perquisites of sevakas. If so, in the absence of express
provision, it cannot possibly be argued that the Act affects rights, privileges
and perquisites of adya sevak. As we have already indicated, those rights,
privileges and perquisities of adya sevak have also been safe ,guarded under s.
8 of the Act. Then we may refer to s. 21 (3) which provides that "the
administrator may subject to such conditions, if any, as the committee may, by
general or special order 'Impose, afford facilities on payment of fees for
special darshan or for any special service, ritual or ceremony such darshan,
service, ritual or ceremony not being inconsistent with the custom and usage of
the Temple and he shall have power to determine the portion, if any, of such
fees which shall paid to the sevakas, office-holders or servants of the Temple
" This again postulates that the rights, privileges and perquisites of the
sevaks are not to be affected by the Act but have to be governed by the record
of rights or, as the case may be, by the order of the committee. The argument
that the Act is ultra vires because it takes away the rights, privileges and
perquisites of the appellant as adya sevak, some of which may be property must
therefore fail in view of the specific provision in s. 8 and indications in
other provisions of the Act to which we have referred.
Clause (1) of s. 15 of the Act is however
specially attacked as interfering with the religious affairs of the Temple.
The rest of the provisions of that section
deal so obviously with secular matters that they have not been challenged. This
clause provides that it shall be the duty of the committee to arrange for the
proper performance of sevapuja and of the daily and periodical nitis of the
Temple in accordance with the record of Tights. As we read this clause we see
no invasion of the religious affairs of the Temple therein. All that it
provides is that it shall be the duty of the committee to arrange for the
proper performance of sevapuja etc. of the Temple in accordance with 46 the
record of rights. Sevapuja etc. have always two aspects.
One aspect is the provision of materials and
so on for the purpose of the sevapuja. This is a secular function. The other
aspect is that after materials etc. have been provided, the sevaks or other
persons who may be entitled to do so, perform the sevapuja and other rites as
required by the dictates of religion. Clause (1) of s. 15 has nothing to do
with the second aspect, which is the religious aspect of sevapuja; it deals
with the secular aspect of the sevapuja and enjoins upon the committee the duty
to provide for the proper performance of sevapuja, and that is also in
accordance with the record of rights. So that the committee cannot deny
materials for sevapuja if the record of rights says that certain materials are
necessary. We are clearly of the opinion that cl. (1) imposes a duty on the
committee to look after the secular part of the sevapuja and leaves the
religious part thereof entirely untouched. Further under this clause it will be
the duty of the committee to see that those who are to carry out the religious
part of the duty do their duties properly. But this again is a secular function
to, see that sevaks and other servants, carry out their duties properly; it
does not interfere with the performance of religious duties themselves. The
attack on this provision that it interferes with the religious affairs of the
Temple must therefore fail.
We may now briefly refer to some other
sections of the Act which were attacked. Apart from the main sections 5 and 6
by which the appellant was divested of the sole management, the first section
so attacked is s. 11 which deals with the dissolution and supersession of the
committee. We have not been able to understand how this section can be attacked
once it is held that ss. 5 and 6, constituting the committee in place of the
Raja, are valid, as we have held that they are for they are the main provisions
by which the management has been transferred from the sole control of the Raja
to the control of the committee. The next section in this group is s. 19. That
section provides for the appointment of an administrator to carry on the day to
day administration of the secular part of the affairs of the Temple. We cannot
see how this provision is liable to attack once ss. 5 and 6 are held good, for
the committee must have some officer under it to carry on the day to day
administration. The next provision that is attacked in this group is s. 21,
which deals with powers and duties of the administrator. Again we cannot see
how this provision can be attacked once it is held that the appointment of the
administrator under s. 19 is good, for s. 21 only delimits the powers and
duties of the administrator, and all powers and duties therein specified are
with respect to the secular affairs of the Temple, and have no direct impact on
the religious affairs thereof. The next section in this group is s. 21-A. That
section is clearly concerned with the secular management of the Temple, for the
disciplinary 47 powers conferred thereby on the administrator are necessary in
order to carry on the administration of the secular affairs of the Temple. The
next section which is attacked is s. 30, which gives over all supervisory power
to the State Government. We cannot see how the control which the State
Government is authorised to exercise by s. 30 over the committee can be
attacked once the appointment of the committee is held to be ,good. The last
section under this group is s. 30A, which creates a criminal offence and makes
sevaks etc. liable to a fine on ,conviction. We think it unnecessary for
present purposes to consider the validity of this section. The matter can be
decided if and when a case of prosecution under that section ever arises.
This brings us to the contention relating to
Arts. 26, 27 and 28 of the Constitution, which were referred to in the
petition. Articles 27 and 28 in our opinion have nothing to do with the matters
dealt with under the Act. The main reliance has however been placed on Art.
26(d) which lays down that subject to public order, morality and health, every
religious denomination or any section thereof shall have the right to
administer its property in accordance with law. In the first place besides
saying in the petition that the Act was bit by Art. 26 there was no indication
anywhere therein as to which was the denomination which was concerned with the
Temple and whose rights to administer the Temple have been taken away. As a
matter of fact the petition was filed on the basis that the appellant was the
owner of the Temple which was his private property. There was no claim put
forward on behalf of any denomination in the petition.
Under these circumstances we are of opinion
that it is not open to the appellant to argue that the Act is bad as it is hit
by Art. 26(d). The argument addressed before the High Court in this connection
was that the worshippers of Lord Jagannath constitute a distinct religious
denomination within the meaning of Art. 26 and that they had a right to administer
the Temple and its endowments in accordance with law and that such
administration should be only through the Raja of Puri as superintendent of the
Temple assisted by the innumerable sevaks attached thereto. But inasmuch as the
Act has taken away this right of management from the religious denomination,
i.e., the worshippers of Lord Jagannath, and entrusted it to the nominees of
the State Government, there had been a contravention of the fundamental rights
guaranteed under cl. (d) of Art 26. This argument was met on behalf of the
State with the contention that the Temple did not pertain to any particular
sect, cult or creed of Hindus but was a public temple above all sects, cults
and, creeds, therefore, as the temple was not the temple of any particular
domination no question arose of the breach of cl.(d) of Art. 26. The foundation
for all this argument which was 48 urged before the High Court was not laid in
the writ petition. In these circumstances we think it was unnecessary for the
High Court to enter into this question on a, writ petition of this kind. The
High Court however went into the matter and repelled the argument on the ground
that the Temple in the present case was meant for all Hindus, even if all
Hindus were treated as a denomination for purposes of Art. 26, the management
still remains with Hindus, for the committee of management consists entirely of
Hindus, even though a nominated committee. In view of the defective state of
pleadings however we are not prepared to allow the argument under Art. 26(d) to
be raised before us and must reject it on the sole ground that no such
contention was properly raised in the High Court.
For these reasons we find there is no force
in this appeal and it is hereby dismissed with costs.
Appeal dismissed.
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