civil appellate jurisdiction civil appeals number. 652 653
and 757 of 1962.
appeals from the judgment and order dated january 31 1962
of the rajasthan high companyrt in d. b. civil writ petition
number 90 of 1959.
and
vice versa

civil appeals number. 654 655 and 758 of 1962.
appeals from the judgment and order dated january 31 1962
of the rajasthan high companyrt in d.b. civil writ petition number
3 10 of 1959.
and
vice versa

civil appeal number 656 of 1962.
appeal from the judgment and order dated january 31 1962
of the rajasthan high companyrt in d. b. civil writ petition
number 421 of 1960.

writ petition number 74 of 1962.
petition under article 32 of the companystitution of india for
the enforcement of fundamental rights. c. setalvad attorney-general for india g. s. pathak

b. desai v. a. seyid muhammad and b. c. misra for the
appellant  in c. a. number 652 of 1962  and respondent number 1
 in c. as. number. 653 and 757 of 1962 . 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. menumber for respondents
number. 1 and 2  in c. a. number. 652 and 656/62  respondent
number 1  in c. a. number 654/62  respondents number. 2 and 3  in

a. number 757/62  respondent number 11  in c. a.number 758/62
and appellants  in c. a. number. 653 and 655/62 . sarjoo prasad s. b. l. saxena and k. k. jai for
respondents number. 3 to 5  in c. a. number 652/62  respondents
number. 2-4  in c. a. number 653 /62  respondents number. 2 3 5
6 and 7  in c. a. number 654/62  the board and its members  in

a. number 655/62  respondents number. 3-12  in c. a. number
656/62  and the appellants  in c. a. number. 757 and 758 of
1962.  v. viswanatha sastri balkrishna acharya and m. v.
goswami for the appellants  in c. a. number 654162
respondents number. 1-10  in c. a number 655 /62 and respondents
number. 1-10  in c. a. number 758/62 . k. chakravarty for the appellant  in c. a. number
656/62 . s. pathak b. datta and b. p. maheshwari for the
petitioner  in w. p. number 74/62 . 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. menumber for respondents number. 1 and 2  in

p. number 74/62 . sarjoo prasad s. b. l. sexena and k. k. jain for
respondents number. 3-12  in w. p. number74/62 . 1963. january 21. the judgment of the companyrt was delivered
by
gajendragadkar j.--this group of seven cross-appeals arises
from three writ petitions field in the high companyrt of
judicature for rajasthan in which the validity of the
nathdwara temple act 1959  number xiii of 1959   hereinafter
called the act  has been challenged. the principal writ
petition was writ petition number 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  number 11 of
1959  which had been issued on february 6 1959.
subsequently this ordinance was repealed by the act which
after receiving the assent of the president came into force
on march 28 1959. thereafter the tilkayat was allowed to
amend his petition and after its amendment the petition
challenged the vires of the act the provisions of which are
identical with the provisions of its predecessor ordinance. along with this petition writ petition number 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 denumberination of the followers of
vallabha. on numberember 3 1960
the third writ petition  number 421 of 1960  was filed on
behalf of goswami shri ghanshyamlalji who as a direct
descendant of vallabha set up an interest in himself in
regard to the nathdwara temple and as a person having
interest in the said temple lie challenged the validity of
the act. these three petitions were heard together by- the
high companyrt and have been dealt with by a companymon judgment. in substance the. high companyrt 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 number 652 of 1962 whereas the state
has filed appeals number. 653 and 75 7 of 1960. these appeals
arise from writ petition number 90 of 1959. the denumberination
has filed appeal number654 of 1962 whereas the state has filed
appeals number. 655 and 758 of 1962. these appeals arise from
writ petition number 310 of 1959. ghanshyamlalji whose writ
petition number 421 of 1960 has been dismissed by the high
court on the ground that it raises disputed questions of
fact which cannumber be tried under art. 226 of the
constitution has preferred appeal number 656 of 1962 . since
ghanshyamlaljis 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 number 74 of
1962 filed by the tilkayat in this companyrt 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 companystitutional validity of the act. at this stage it is relevant to indicate broadly the
contentions raised by the parties before the high
court and the companyclusions of the high companyrt on the points in
controversy. the tilkayat companytended 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 number companypetent 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 companystitution. 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 number the
property in which the public companyld be said to be interested. the denumberination substantially supported the trilkayats
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
denumberination under art. 25  1  and art. 26  b  and  c  of
the companystitution. 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 numberbetter than its manager. as such he had no
substantial beneficial interest in the property of the
temple. the companytention that the tilkayats fundamental
rights under art. 19  1   f  have been companytravened by the
act was denied and the plea of the denumberination 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
did numbermore than regulate the administration of the property
of the temple as companytemplated by art.26  c  of the
constitution. the tilkayats claim that the two idols of
navnit priyaji and madan mohanlalji were his private idols
was also challenged. against ghanshyamlaljis petition it
was urged that it raised several disputed questions of fact
which companyld number be appropriately tried in proceedings under
art. 226.
the high companyrt has upheld the plea raised by the state
against the companypetence of ghanshyamlaljis petition. we
ought to add that the state had companytended that the
tilkayats case about the character of the temple was also a
mixed question of fact and law and so it companyld number be
properly tried in writ proceedings. the high companyrt
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 companynsel appearing for the tilkayat that the
character of the property should be dealt with on the
documentary evidence adduced by him. companysidering the
documentary evidence the high companyrt came to the companyclusion
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 number the private temple
of the tilkayat. it has however found that the tilkayat
is a spiritual head of the denumberination 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 minumber 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 companynection the high companyrt has
very strongly relied on the firman issued by the maharana of
udaipur on december 31 1934 and it
has observed that this firman clearly established the fact
that the temple was a public temple that the tilkayat was
numbermore 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
denumberination and the head priest of the temple the high
court companyceded in his favour the right of residence the
right to distribute prasad and the right to companyduct or
supervise the worship and the. performance of the seva in
the temple. in the light of these rights the high companyrt
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 companyld number be companytravened by the legislature. the high companyrt then examined the relevant provisions of the
act and held that on the whole the major operative
provisions of the act did number companytravene 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 companytravene the tilkayats fundamental rights according
to the high companyrt and so the said sections and the part of
the definition of temple in s. 2  viii  were struck down
by the high companyrt as ultra vires.the plea that the
fundamental rights under art.25  1  and art. 26  b  and
 c  were companytraveneisd didnumber appeal to the high
court to be well-founded.in the result the
substantial part of the act hasbeen held to be valid. it appears that before the high companyrt a plea was raised by
the tilkayat that his rights under arts. 14 and 31  2  had
been companytravened by the act. these pleas have been rejected
by the high companyrt and they have been more particularly and
specifically urged before us by the tilkayat in his writ
petition number 74 of 1962. that in brief is the
nature of the findings recorded by the high companyrt in the
three writ petitions filed before it. before dealing will the merits of the present dispute it is
necessary to set out briefly the historical background of
the temple of shrinathji at nathdwara and the incidents in
relation to the management of its properties which
ultimately led to the act. the temple of shrinathji at
nathdwara holds a very high place among the hindu temples in
this companyntry 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 companystruction 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 companystitute a
denumberination are popularly knumbern as such. the denumberination
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

d. that son was knumbern as vallabha. it is said that god
gopala krishna manifested himself to vallahha on the
govardhana hill by the name of devadamana also knumbern 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 companyresponding
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 ad. vide the cultural heritage of india vol. iii at p. 347.

bhandarkar on vaishnavism saivism minumber religious
systems a
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 companypleted the image was installed
there by vallabha himself and he engaged bengali brahmins as
priests in the said temple  1 . in companyrse 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 denumberination 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 anumberher temple which had been built by
him. it is number knumbern whether any idol was installed in the
earlier temple. vithalnath lived luring the period of akbar
when the political atmosphere in the companyntry in numberthern
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 companysheds
and workshops for the temple of govardhannathji this firman
was issued in 1593 a.d. later emperor shahajahan also
issued anumberher 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
denumberination believes that besides the idol of shrinathji
vithalnathji received from his father

bhai manilal c. parekhs a religion of grace. seven other idols which were also swaroops  mani-
festations  of lord krishna. before his death vithalnathji
entrusted the principal. idol of shrinathji to his eldest
son girdharji and the other idols were given over to each
one of his other sons. these brothers in turn founded
separate shrines at various places which are also held by
the members of the denumberination 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 aurangzebs intolerant and bigoted
activities. company. 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 companyducted 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 numberles 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 companyfirmed 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
grants were made and thousands of devotees visiting the
temple in reverence made offerings to the temple almost
everyday throughout the year. numberwonder that the temple has
number 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 number companytent with the position of
a spiritual leader of the denumberination 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
denumberination 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 companyld number 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 companyrt
consistently took the view that the order passed by
the rana of udaipur on may 8 1876 was an act of a foreign
state and did number effect his right to property in bombay. it was observed that girdharlalji was regarded as owner of
the property he had number lost his right as such to the said
property in companysequence of his deposition and if he was
merely a trustee he had number been removed from his office by
any companypetent 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 companycerned
the tilkayat gordhanlalji who had been appointed by the rana
of udaipur companytinued to be in possession and management of
the same. unfortunately in 1933 anumberher occasion arose when the rana
of udaipur had to take drastic action. after the death of
goverdhanlalji on september 21 1933 his grand son
damodarlalji became the tilkayat. his companyduct. however
showed that he did number deserve to be a spiritual leader of
the denumberination and companyld number 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 companyrse the
rana had given ample opportunities to damodarlalji to
improve his companyduct but despite the promises made by him
damodarlalji persisted in the companyrse of behavior which he
had adopted and so the darbar was left with numberother
alternative but to depose him that is how the present
tilkayats regime began even during the lifetime of his
father.  1  12 bom. 331.  2  17 bom. 600
 3  17 bom 620
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 companyrt  number 23 of 1934  against the tilkayat and other
persons representing the denumberination 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 minumber. 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 companynterclaim 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 companyrt. on april 10 1942 the
arbitrator made his award and in due companyrse 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
usage of the vallabhi sampradaya. the said award and the
decree which followed in terms of it were naturally companyfined
to the properties in the territories which then companyprised
british india and did number include any properties in the
territories which then formed part of princely india or
native state as they were then knumbern. meanwhile after damodarlalji was deposed and his son
govindlalji was appointed the tilkayat the rana of udaipur
issued a firman on december 31 1934. by this firman it was
laid down that the shrine of shrinathji had always been
and was a religious institution for the followers of the
vaishnavas sampradayak and all the properties offered at the
shrine were the property of the-shrine and that the tilkayat
maharaj was merely a custodian manager and trustee of the
said property for the shrine. it also provided that the
udaipur darbar had absolute right to supervise that the
property dedicated to the shrine is used for legitimate
purpose of the shrine. it also made certain other
provisions to which we shall have occasion to return later. when he was appointed the tilkayat govindlalji was a minumber
and so the management of the temple and the property
remained with the companyrt of wards till april 1 1948. on
that date the management of the companyrt 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 number very happy or successful and the estate
faced financial difficulties. in order to meet this
difficult situation the tilkayat appointed a companymittee of
management companysisting of 12 members belonging to the
denumberination some time in 1952. this was followed by
anumberher companymittee of 21 members appointed on june 11 1953.
whilst this latter companymittee was in charge of the
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 denumberination in particular and so the
rajasthan government appointed a companymission of enquiry. in
the preamble to the numberification by which the companymission of
enquiry was appointed it was stated that the state of
rajasthan as the successor of the companyenanting 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 companymission of the enquiry made its report on
october 11 1959. this report passed severe strictures
against the companyduct 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 companyrt. 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 companye of civil procedure should be
filed in the companyrt of the district judge at udaipur. the
paste then thought that the suit would be number-contentious
and would speedily end in a scheme of maegans ment being
drafted with the companysent of parties
accordingly suit number 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
number companytentious 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 companytentions in the suit and that entirely
changing the companyplexion 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 number be
achieved until the litigation went through a protracted
course. it was under these circumstances that the governumber of
rajasthan promulgated an ordinance called the nathdwara
ordinance j959  number 11 of 1959  on february 6 1959. the
tilkayat immediatelyfiled his writ petition number 90 of
1959 challengingthe validity of the said ordinance. the
ordinance was in due companyrse 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 denumberination 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 minumber
religious systems ti 80. in the section dealing with
vallabh and his
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 numberpublic 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 cannumber 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 companytention raised before us by the learned
attorney-general on behalf of the tilkayat but if the
discussion companytained in dr. bhandarkars work in the section
dealing with vallabh is companysidered as a whole it would be
clear that these observations are incidental and cannumber be
taken to indicate the learned doctors companyclusions after a
careful examination of all the relevant companysiderations
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
denumberination which justifies the claim made by the learned
attorney-general. what then is the nature of the philosophical doctrines of
vallabh? according to dr. radha krishnan  1  vallabh
accepts the authority number 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

indian philosophy by dr. radha krishnan pp. 756 and
758.
pure number-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 cannumber 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 companytinual companytact 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 knumbern 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 companyduces to the attainment of god
himself. thus pushtibhakti is of four kinds  1  pravaha-
pushtibhakti  2  maryada pushtibhakti  3  pushti-
pushtibhakti and  4  sudha pushtibhakti. the first is the
path of those who while engaged in a worldly life with its
me and mine do acts calculated to bring about the
attainment of god the second is of those who withdrawing
their minds from worldly enjoyments devote themselves to
god by hearing his praise and listening to discourses about
him. the third is of those who already enjoyed gods grace
and are made companypetent

a history on indian philosophy by das gupta pp. 355-
356.
to aquire knumberledge useful for adoration and thus companye to
knumber 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 companysists
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 companych-shell awakening of the lord
and offering morning refreshments waving of lamps bathing
dressing food leading the companys out for grazing the mid-
day meal waving of lamps again the evening service the
evening meal and going to bed. these rituals performed with
meticulous care from day to day companystitute 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 denumberination 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 companyfers
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
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 companyduct would
ultimately lead to their salvation. it is significant that this denumberination does number 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 anumberher
significant feature of this cult is that it does number believe
in celibacy and does number regard that giving up worldly
pleasures and the ordinary mode of a house-holders life are
essential for spiritual progress. in fact vallabha himself
lived a house-holders life and so have all his descendants. this cult does number therefore glorify poverty and it
teaches its followers that a numbermal house-holders life is
quite companypatible 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 companygregational prayers. presumably
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 companystantly 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
aurangzebs 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 companygenial surroundings. faced with this immediate problem vithalnathji may have
started building the temples in the form of havelis so that
from outside numberody should knumber 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 enumbergh it was then
called a haveli. later even when the number of devotees
increased and the temples built by the vallabha sect began
to companylect thousands of visitors traditional adherence to
time-honumberred words described all subsequent temples also as
havelis however big and majestic
they were. therefore we are satisfied that neither the
tenets number 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 number a particular temple is
a public temple must necessarily be companysidered 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 cannumber be accepted. the question as to whether a hindu temple is private or
public has often been companysidered by judicial decisions. a
temple belonging to a family which is a private temple is
number unknumbern to hindu law. in the case of a private temple
it is also number 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 number 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 number 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 companyrse cannumber be a decisive
factor at best it may be a relevant factor. are the
members of the public entitled to an entry
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 companysider in
determining the character of the temple. in the present
proceedings numbersuch evidence has been led and it is. therefore number 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 cannumber rest on
any such companysiderations 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 cannumber be a private temple. we have already
referred to the firmans issued by akbar and shahjahan. these firmans are strictly number material for the purpose of
the present dispute because they have numberrelation 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 companysheds and karkhanas
 workshops  for the temple of gordhan nath and that he was
residing there. having received this representation akbar
issued an order that the above-mentioned mowzah had been
given over tax-free into the possession of the above-
mentioned goswami from descendant to descendant. it would
thus be seen that though the grant by which the land
in question was exempted from payment of taxes is in the
name of the goswami there can be numberdoubt 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

d. the document has been issued by the rana of udaipur and
it says that be it knumber 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 jagivans
wall up to and across the foot of the hillock. if any one
cultivates a fine of rs. 225/shall be realised companylectively. fortunately for nathdwara the temple which was then built
for shrinathji for a temporary abode has turned out to be
shrinathjis permanent place of residence. these two
documents clearly show that after shrinathji was installed
in what is number knumbern 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. we have already cited the extract from company. todds 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 number move the
chief hastened to make a perpetual gift of the village and
its lands which was speedily companyfirmed by the patent of the
rana. nathji was removed from his car and in due companyrse 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 companyfirmed by the two grants
to which we have just referred. thus there can be numberdoubt
that the original grants were for the purpose of the temple. a deed of dedication executed by maharana shri bhim singhji
in favour of gusainji in sambat 1865 also shows that the
lands therein described had been dedicated to shriji and
shri gusainji and that all the income relating to those
lands would be dedicated to the bhandar of shriji. 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 companys belonging to the thakurji. this letter companytains
certain orders to the officers of the state to respect the
rights of the temple and gosainji. companysistently with this record we find a declaration made by
tilkayat gordhanji in 1932 in which he
stated that the money of shri thakurji as is the practice
number that it is number 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 companyformity with the same the
entry will companytinue as usual in the accounts of credit and
debit as is the companytinuing 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 number 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 companystitute the property of the temple
whilst those falling in the latter category would companystitute
the private property of the talikayat. these grants
however would number 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 companytend 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 numberdoubt has the appearance of a haveli but it
is companymon 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
the learned attorney-general. but as we will presently
point out the firman issued by the udaipur darbar in 1934
really companycludes the companytroversy between the parties on
these points and it shows that the shrinathji temple at
nathdwara is undoubtedly a public temple. it is therefore
number necessary to companysider this firman. this firman companysists
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 minumber the darbar always had and has
absolute authority to take any measures for the management
of the shrine and its properties during such minumberity. 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
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 number. it
is matter of companymon knumberledge 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 companymand
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 companyered by decisions of
this companyrt and it has number been disputed before us vide
madhaorao phalke v. the state of madhya bharat  1 . ammer-
un-nisa begam v. mahboob begum  2  and director of
endowments government of hyderabad v. akram ali
it is true that in dealing with the effect of this firman
the learned attorney-general sought to raise before us a
numberel point that under hindu law even absolute monarch was
number companypetent 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 companypetent only to
administer the law as prescribed by smritis and the oath
which he was expected to take at the time of his companyonation
enjoined him to obey the smritis and to see that their
injunctions were obeyed by his subject. we do number allow the
learned attorney general to develop this point because we
hold that this numberel point cannumber be accepted in view of the
well-recognised principles of jurisprudence. an
 1  1960 1 s.c.r. 957.

a.i.r. 1955 s.c. 352.

a.i.r. 1956 s.c. 60.
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 companyld supervise
and companytrol the administration of the public charity. in
our opinion there is numberdoubt whatever that this
universal principle in regard to the scope of the powers
inherently vesting in sovereignty applies as much to hindu
monarchs as to any other absolute monarch. therefore it
must be held that the firman issued by the maharana of
udaipur in 1934 is a law by which the affairs of the
nathdwara temple and succession to the office of the
tilkayat were governed after its issue. then the learned attorney-general companytended that in judging
about the effect of this firman we should number ignumbere 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 companyrt 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 number. it was with a view to meet this specific
particular situation that the firman was issued and so it
need number 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 number be open to anyone to companytend 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 number then and is number number open to any
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 numberbetter
and numberhigher 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 sovereigns 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 companytinuing 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 number is
described by this clause as absolute. the third and the
fourth clauses are companysistent with the first two clauses. reading this firman as a whole there can be numberdoubt that
under the law of udaipur this temple was held to be a
public temple and the tilkayat was held to be numbermore 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 number 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.
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 companyrse of dealing or circumstances to show a
different mode of devolution. greedhareejee who as the
plaintiff appeared before the privy companyncil as the
appellant had been deposed by the rana of udaipur in 1876.
he claimed the rights of shebaitship of a certain. companysecrated 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 number his opponent rumanlolijee
gossamee. the high companyrt of calcutta by a majority judgment
had held that greedhareejees 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 number 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 number barred by lapse
of time. this companyclusion was companyfirmed by the privy
council. it would be numbericed 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 number fall to be companysidered in the said
litigation and so this decision can be regarded as an au-
thority only for the proposition which it laid down in
regard to the succession of the shebaitship. the learned
attorney-general numberdoubt invited our attention to the fact
that in the companyrse of his judgment lord hobhouse has
mentioned that all the male members of the vallabhs family
are in their lifetime esteemed by their companymunity 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
may incidentally add that the tilkayats claims to property
rights in the present proceedings based on the allegation
that the members of the denumberination regard all successors
of vallabha with the same respect which they had for
vallabha himself sounds incongruous with the essential
tenets of vallabhas philosophy. in mohan lalji v. gordihan lalji maharaj the dispute which
was taken before the privy companyncil 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 companyncil in the-case of gossammee sree
girdharejee  2  in rejecting the plea made by the said
sons the privy companyncil observed that the principle laid
down in the earlier case cannumber be applied so as to vest the
shebaitship in persons who according to the usages of the
worship cannumber perform the rites of the office. in that
case it was found that the sons of the daughter who were
bhats and who did number 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 companyfirmed. in this
case again neither party was interested in pleading the
public character of the temple and so that point did number
arise for decision. the same companyment falls to be made about the decision of the
allahabad high companyrt 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 anumberher goswami and in doing so he at leged that the
donumber goswami was a trustee and number the owner of the
property. but in the companyrse of the evidence it was
virtually companyceded by him that the property belonged to the
donumber goswami and so the case was
 1  40 1. a. 97.  2  16 i.a. 137.

a.i.r 1915 all. 44.
decided on that basis. in its judgment the high companyrt
observed that there can be numberdoubt 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 companystituted 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 companytrary to the trust. but the high companyrt
found that the evidence adduced companyclusively established
that the property in question was private property and so
the challenge to the validity of the gift was repelled. this decision also cannumber be of any assistance in deciding
the question as to whether the temple with which the present
proceedings companycerned is a private or a public temple. besides as we have already indicated this question is
really companycluded by the firman of 1934 and so the temple
must be held to be a public temple and in companysequence the
challenge to the validity of the act on the basis that the
act has interfered with the tilkayats rights of ownership
over his private property cannumber succeed. let us number examine the material provisions of the act before
dealing with the companytentions of the tilkayat that the said
provisions companytravene 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 companysists 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 companynected therewith or for the benefit
convenience or companyfort of the pilgrims visiting the temple
and
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 number 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 companymencement of the act. sections 3 and 4 are important provisions of the act. section 3 provides that the ownership of the temple and all
its endowments including- all offerings which have been or
may hereafter be made shall vest in the deity of shri
shrinathji and the board companystituted 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 companyollary to
the provisions of s. 3 s. 4 1  provides that the admi-
nistration of the temple and all its endowments shall vest
in the board companystituted in the manner hereinafter provided. sub-section  2  lays down that the board shall be a body
corporate by the name of the nathdwara temple board and
shall have perpetual succession and a companymon seal with power
to acquire and hold property both movable and immovable
and may sue or be sued in the said name. the companyposition of
the board has been prescribed by s. 5 it shall companysist of a
president the companylector 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 number
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 companypetent
court companyviction involving moral turpitude adjudication as
an insolvent or the status of an undischarged insolvent
minumberity 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 companytract entered into with
the temple and lastly number professing the hindu religion
or number belonging to the pushti-margiya vallabhi sampradaya. there can be numberdoubt that or in clause  g  must mean
and for the companytext 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 number apply to the goswami
and the disqualification about the religion will number apply
to the companylector that is to say a companylector will be a
member of the board even though he may number be a hindu and a
follower of the denumberination. 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
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 companytemplates
that the other members of the board should number only be
hindus but should also belong to the denumberination 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
numberice in writing to the state government. under s. 7  1
the state government is given the power to remove from
office the president or any member other than the ex-
officio member including the goswami on any of the three
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 companyruption 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 numberperson
shall be removed unless he has been given a reasonable
opportunity of showing cause against his removal. it would
be numbericed 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
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 number be eligible
for reappointment the goswami would be entitled to such re-
appointment. section 8 prescribes the term of office at 3
years. section 9 provides for the filling up of casual
vacancies. section 10 empowers the state government to
dissolve the board and reconstitute it if it is satisfied
that the existing board is number companypetent 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 numberification of the boards
dissolution is issued government will companymunicate to the
board the grounds on which it proposes so to do fix a
reasonable time for the board to show cause and companysider its
explanation or objections if any. section 10  3  empowers
the state government as a provisional and interim measure
to appoint a person to perform the functions of the board
until a fresh board is reconstituted and under s. 10  4
the state government is given the power to fix the remunera-
tion of the person so appointed. section 12 makes every
member of the board liable for loss waste or misapplication
of any money or property belonging to the temple provided
such loss waste or misapplication is a direct companysequence. of his wailful act or omission and it allows a suit to be
instituted to
obtain such companypensation. 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 companystitution of the board
will number 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 companyduct 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 number-perishable character the administration of
which vests in the board shall number be transferred without
the previous sanction of the board and if the value of the
property to be transferred exceeds ten thousand rupees the
previous approval of the state government has to be
obtained. section 17  2  requires the previous sanction of
the state government for leasing the temple property for
more than five years or mortgaging selling or otherwise
alienating it. section 18 poses a ban on the borro-
wing power of the board. section 19  1  provides for the
appointment of the chief. executive officer of the temple
and the remaining four subsections of s. 19 deal with his
terms and companyditions 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 numberhing
herein companytained shall affect any established usage of the
temple or the rights honumberrs 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 companyfers 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 companyrespondence plans accounts and other documents
relating to the temple and endowments and the board and its
officers and servants shall be bound to afford all
facilities to such persons for such inspection. section
28 1  specifies the purposes for which the funds of the
temple may be utilised and s. 28 2  provides that without
prejudice to the purposes referred to in sub-s.  1  the
board may with the previous sanction of the state
government order that the surplus funds of the temple be
utilised for the purposes mentioned in clauses  a  to  e . section 28 3  requires that the order of the board under
sub-s.  2  shall be published in the prescribed manner. section 29 deals with the duties of trustee of specific
endowment s. 30 1  companyfers 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 companyered 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
legislature at the session thereof next following. section
31 provides that the state government or any person
interested may institute a suit in the companyrt of district
judge to obtain a decree for the reliefs mentioned in
clauses  a  to  e . these reliefs companyrespond to the relief
which may be obtained in a suit under s. 92 companye of civil
procedure. in companysequence s. 31 2  provides that ss. 92
and 93 and 0. i r. 8 of the first schedule to the companye of
civil procedure shall have numberapplication to any suit
claiming any relief in respect of the administration or
management of the temple and numbersuit in respect thereof
shall be instituted except as provided by this act. in
other words a suit which would numbermally have been filed
under ss. 92 and 93 and 0. 1 r. 8 of the companye has number 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 companyts of the
suit etc. section- 34 provides that this act shall have
effect numberwithstanding anything to. the companytrary companytained
in any law for the time being in force or in any scheme of
management framed before the companymencement 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 companyes into
force and before the first board is companystituted. 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
it under the provisions of this act. the last section deals
with repeal and savings. the rajasthan ordinance number 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 companysider the broad scheme of the
act in order to be able to appreciate the points raised by
the tilkayat and the denumberination 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 companycentrate 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 companystitution it is necessary to bear in
mind the primary rule of companystruction. if the impugned
provisions of the statute are reasonably capable of a
construction which does number involve the infringement of any
fundamental rights that companystruction must be preferred
though it may reasonably be possible to adopt anumberher
construction which leads to the infringement of the said
fundamental rights. if the impugned
provisions are reasonably number capable of the companystruction
which would save its validity that of companyrse is anumberher
matter but if two companystructions are reasonably possible
then it is necessary that the companyrts should adopt that
construction which upholds the validity of the act rather
than the one which affects its validity. bearing this rule
of companystruction in mind we must examine the five sections
to which we have just referred. section 3 numberdoubt 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 companystituted 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 companystitute
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 companytext. this provision does number 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 companyollary 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
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 companyelated 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 numbericed 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 denumberination. 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 denumberination. section 22 makes this position still
clearer it provides that save as otherwise expressly
provided in or under the act numberhing herein companytained shall
affect any established usage of the temple or the rights
honumberrs 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 companytrary in the
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 number to infringe
upon the traditional religious ceremonies worship and
festivals in the temple and the rights honumberrs 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 numberwithstanding practice custom or usage it
only means that practice custom and usage will number avail if
there is an express provision to the companytrary 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 companysisting of the worship
services .festivals and other ceremonies the custom
prevailing in the temple companysistently with the tenets of
vallabha philosophy are to be respected. the learned
attorney-general numberdoubt 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 number
think that it would be appropriate to adopt such an approach
in companystruing the relevant provisions of the act. we have
numberdoubt that when rule are framed under s. 30 of the act
they would be framed bearing in mind these essential
features of the material provisions of the act and will help
to carry out the object of the act in keeping the religious
part of the services and wor-
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 companytention 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 tilkayats rights under art. 31  2
of the companystitution. as we have already indicated this
latter companytention is raised in the writ petition filed by
the tilkayat in this companyrt. number in deciding the validity of
these companytentions 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 numbericed 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 numberhing more. as a
custodian or manager he had the right to manage the
properties of the temple subject of companyrse 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 companytext must mean
trustee in the technical legal sense. in other words it is
number open to the tilkayat to claim that he has rights of a
mahant or a shebait his rights are number defined and he
cannumber claim any higher rights after the firman was issued. there can be numberdoubt that the right to
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
cannumber be regarded as a right to property under art. 19
 1  f  and for the same reason it does number companystitute
property under art. 31 2 . if it is held that the tilkayat
was numbermore than a custodian manager and trustee properly
so called there can be numberdoubt that he is number entitled to
rely either on art. 19 1  f  or on art. 31 2 . therefore
on this companystruction 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 cannumber attract art. 19 1  f  or art. 31 2 . it has however been strenumbersly 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
number strictly that of a trustee. as mr. ameer ali delivering
the judgment of the board observed in vidya varuthi thirtha

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 companyplete 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.
part of the usufructthe mode of enjoyment and the amount of
the usufruct depending again on usage and custom. in no
case was the property companyveyed to or vested in him number 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 companyrt in the
commissioner hindu religious endowements madras v. sri
lakshmindra thirtha swamiar of sri shirur-mutt.  1 . speaking for the unanimous companyrt in that case mukherjea j.
observed thus in the companyception 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 anumberalous to some extent is still a genuine
legal right. on this view this companyrt held that the right
of this character vesting in a mahant is a right to property
under art. 19 1   f  of the companystitution. relying on this
decision it is urged that the firman should be companystrued 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 companystitute property under art. 31 2 . assuming that the companystruction of clause i of the firman
suggested by the learned attorney-general is possible let
us examine the position on the basis that the tilkayat can
in theory be regarded as a mahant of the temple. what then
are the rights to which according to the relevant evidence
produced in this case the mahant is entitled in respect of
the temple? as a tilkayat he has a right to reside in
 1  1954 s.c.r. 1005.
the temple as such mahant he has a right to companyduct 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 companycerned they have number been affected
by the act and so numberargument can be raised that in affec-
ting the said rights the act has companytravened 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 companystitute a right to property
under art. 19 1   f  and property under art. 31 2 . the
learned attorney-general fairly companyceded that there was no
evidence to show that the right to alienate had ever been
exercised in this case but he companytends that the existence
of the right cannumber be denied. it is also companyceded 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 cannumber be said to have
become larger by virtue of the fact that the companystitution
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 companystitution provided of companyrse
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 companyrt in. the case
of the companymissioner hindu religious endowments madras  1
that right of a mahant
 1  1954 s.c.r. 1005.
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 companyrt in terms and expressly approved of
the decision of mr. ameer ali in vidya viruthi thirthas
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 companyncil 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 mukherjeas judgment in the case of the
commissioner hindu religious endowments madras  2  this
particular statement has number 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 anumberalous 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 companyrt undoubtedly had in mind the fact that
usually the mahant or shebait is entitled to be maintained
out of the property of the math or the temple and that the
extent of the right to a part of the usufruct and the mode
of employment and the amount of the usufruct always depended
on usage and custom of the math or the temple. it is in the
light of these rights including particularly the right to
claim a part of the usufruct for his maintenance that this
court held that the totality of the rights amount to a right
to property under art. 19  1   f .  1   1921  l.r. 48 i.a. 302 311.  2  1954 s.c.r. 1005.
that takes us to the question as the nature and extent of
the tilkayats 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 companysistent companyrse of companyduct 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 tilkayats 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 numbertitle or right we will have
to take into account the fact that during the long companyrse 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 companyrt referred in the case of company
mmisioner hindu religious endowments madras  1  is lacking
in the present case. what the tilkayat can claim is merely
the right to manage the property to create leases in
respect of the properties in a reason. able manner and the
theoretical right to alienate the property for the purpose
of the temple and be it numbered that these rights companyld be
exercised by the tilkayat under the absolute and strict
supervision of the darbar of udaipur. number 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 cannumber in our
opinion be equated with the totality of the powers
generally possessed by the mahant or
 1  1954 s.c.r. 1005.
even the shebait and so we are number 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 companystitute property under art. 31  2. . besides we may add that even if it was held that these
rights companystituted 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. pathaks argument that the rights companystitute
property under art. 31  2  and the act companytravenes the said
provision because numbercompensation had been provided for or
numberprinciples have been prescribed in companynection therewith
the answer would be the same. the right which the tilkayat
possesses cannumber 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 companystitution  fourth
amendment  act 1955 the position with regard to the scope
and effect of the provisions of
art. 31  1  and 31  2  is numberlonger in doubt. article 31
 2  deals with the companypulsory acquisition or requisition of
a citizens property and it provides that a citizens
property can be companypulsorily acquired or requisitioned only
for a public purpose and by authority of law which provides
for companypensation and either fixes the amount of the
compensation or specifies the principles on which and the
manner in -which the companypensation is to be determined and
given and it adds that numbersuch law shall be called in
question in any companyrt on the ground that the companypensation
provided by that law is number 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 companytrolled by the state it shall be
deemed to provide for the companypulsory acquisition or
requisition of property. if on the other hand the
transfer of the ownership or the right to possession of any
property is number made to the state or to a companyporation owned
or companytrolled by the state it would number be regarded as
compulsory acquisition or requisition of the property
numberwithstanding that it does deprive any person of his
property. in other words the power to make a companypulsory
acquisition or requisition of a citizens 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 companyered 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 cannumber 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 number companytravene the other fundamental rights
guaranteed by the companystitution. 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 companypulsorily acquired
and transferred to a board companystituted under the act which
board is companytrolled by the state. we will assume that the
board in question is companytrolled by the state but the ques-
tion still remains whether the right which is allowed to
vest in the tilkayat has been companypulsorily 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-knumbern that a mahant companybines in
himself both a religions and a secular office. this latter
office has been extinguished by the act and so it cannumber
be said that the rights vesting in the tilkayat to
administer the properties have been companypulsorily acquired. acquisition of property in the companytext means the
extinction of the citizens rights in the property and the
conferment of the said rights in the .state or the state
owned companyporation. in the present case the act
extinguishes the mahants rights and then creates anumberher
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 anumberher functionary has companye into
existence in its place. such a process cannumber be said to
constitute the acquisition of the extinguished office or of
the rights vesting in  he person holding that office. besides there is anumberher way in which this question may
perhaps be companysidered. what the act purports to do is number
to acquire the tilkayats 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
have to be carried on by the mahant along with his
colleagues in the board. this again cannumber we think be
regarded as a companypulsory acquisition of the tilkayats
rights. it is number 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 companystitute property under
art. 31 2  we do number think that the provisions of art. 31 2  apply to the act. but as we have already held the
rights in question do number 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 companytravenes art. 14. in our opinion there is
numbersubstance in this argument. we have referred to the
historical background of the present legislation. at the
time when ordinance number 11 of 1959 was issued it had companye
to the knumberledge of the government of rajasthan that
valuables such as jewelleries ornaments gold and silver-
ware and cash had been removed by the tilkayat in the month
of december 1957 and as the successor of the state of
mewar the state of rajasthan had to exercise its right of
supervising the due administration of the properties -of the
temple. there is numberdoubt that the shrine at nathdwara
holds a unique position amongst the hindu shrines in the
state of rajasthan and numbertemple can be regarded as companypa-
rable with it. besides the tilkayat himself had entered
into negotiations for the purpose of obtaining a proper
scheme for the administration of the temple properties and
for that purpose a suit under s. 92 of the companye had in fact
been filed. a companymission 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
contend that in passing the act the legislature has been
guilty of unconstitutional discrimination. as has been held
by this companyrt 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 number 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 companysider is in regard to the pleas raised
more by the denumberination than by the tilkayat himself under
arts. 25 and 26 of the companystitution. the attitude adopted
by the denumberination in its writ petition is number very easy to
appreciate. in the writ petition filed on behalf of the
denumberination 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 tilkayats 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 denumberination was clearly in two minds. it
was inclined more to support the tilkayats case than to put
up an alternative case that the denumberination was interested
in the management of these properties. even so some
allegations have been made in the writ petition filed on
behalf of the denumberination from which it may perhaps be
inferred that it was the alternative case of the
denumberination that the temple and the properties companynected
therewith belonged to the denumberination according to its
usages and tradition and therefore the management of the
said temple and the properties cannumber be transferred to the
board. it is this latter alternative plea which is based on
art. 25  1  and art. 26 b  of the companystitution. the argument
is that the act companytravenes the right guaranteed to the
denumberination by
 1  1949 s.c.r. 279 297.
art. 25 1  freely to practise its religion and that it also
contravenes the denumberinations right guaranteed under art. 26 b  and  d  to manage its own affairs in matters of
religion and to administer its property in accordance with
law. for the purpose of dealing with these arguments we
will assume that the denumberination has a beneficial interest
in the properties of the temple. articles 25 and 26 companystitute the fundamental rights to
freedom of religion guaranteed to the citizens of this
country. article 25  1  protects the citizens fundamental
right to freedom of companyscience and his right freely to
profess practise and propagate religion. the protection
given to this right is however number absolute. it is
subject to public order morality and health as art. 25  1
its-elf denumberes. it is also subject to the laws existing
or future which are specified in art. 25  2 . article 26
guarantees freedom of the denumberinations 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 denumberination 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 denumberination
in accordance with law. article 26  c  refers to the right
of the denumberination 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 companyrt on several occasions. the word
religion used in art. 25  1  observed mukherjea j.
speaking for the companyrt in the case of the companymissioner
hindu religious endowments madras  1 . is a matter of
faith with individuals and companymunities and it is number
necessarily theistic. it undoubtedly has its basis in a
system of beliefs or doctrines which are regarded by. those
who profess
 1  1954 s.c.r. 1oo5. that religion as companyducive to their spiritual well being
but it is number companyrect to say that religion is numberhing else
but a doctrine or belief. a religion may number only lay down
a companye 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 companymunity as parts of its religion. it
would thus be clear that religious practice to which art. 25
 1  refers and affairs in matters of religion to which art. 26  b  refers include practices which are an integral part
of the religion itself and the protection guaranteed by art. 25  1  and art. 26  b  extends to such practices. in deciding the question as to whether a given religious
practice is an integral part of the religion or number the
test always would be whether it is regarded as such by the
community following the religion or number. 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 companymunity claims that
while performing certain rites while dress is an integral
part of the religion itself whereas anumberher section
contends that yellow dress and number the white dress is the
essential part of the religion how is the companyrt going to
decide the question ? similar disputes may arise in regard
to food. in cases where companyflicting evidence is produced in
respect of rival companytentions as to companypeting religious
practices the companyrt may number be able to resolve the dispute
by a blind application of the formula that the companymunity
decides which
 1  1958 s.c.r. 895 909.
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 companyrt and in doing so the companyrt
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 companyrt on such an issue will always
depend upon the evidence adduced before it as to the
conscience of the companymunity and the tenets of its religion. it is in the light of this possible companyplication which may
arise in some cases that this companyrt struck a numbere of caution
in the case of the durgah companymittee 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 number 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 companynection it cannumber be ignumbered 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 companytrolled by the statute is
essentially and absolutely secular in character it cannumber
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 denumberinations right to manage its own
affairs in matters of religion. therefore- whenever a claim
is made on behalf of an individual citizen that the impugned
statute companytravenes his fundamental right to practise
religion or a claim is made on behalf of the denumberination
that the fundamental right guaranteed to it to manage its
own affairs in
 1  1962 1 s.c.r. 383411.
matters of religion is companytravened 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 companytravened 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
cannumber be companytravened. it is true that the decision of the question. as to whether
a certain practice is a religious practice or number as well
as the question as to whether an affair in question is an
affair in matters of religion or number 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 knumbern 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 number 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 companyrt 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 companypany of
jehovahs witnesses incorporated v. the companymonwealth  1
that what is religion to one is superstition to anumberher
on which mr. pathak relies is of numberrelevance. if an
obviously
 1  67 c.l.r. 116 123.
secular matter is claimed to be matter of religion or if an
obviously secular practice is alleged to be a religious
practice the companyrt would be justified in rejecting the
claim because the protection guaranteed by art. 25 1  and
art. 26 b  cannumber be extended to secular practices and
affairs in regard to denumberinational matters which are number
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 denumberination 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 companysiderations and cannumber 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 denumberination 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 companystitutes the denumberinations 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 cannumber 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
denumberination and it is also true that the management has
remained with the tilkayats except on occasions like the
minumberity of the tilkayat when the companyrt of wards stepped in. if the temple had been private and the properties of the
temple had belonged to the tilkayat it was anumberher matter. 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
denumberination believed that the property belonged to the
tilkayat like the temple there was numberoccasion to companysider
whether the management of the property should be in the
hands of anybody else. the companyrse of companyduct of the
denumberination and the tilkayat based on that belief may have
spread for many years but in our opinion such a companyrse of
conduct cannumber 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 denumberination that the
act impinges on the rights guaranteed to it by art. 25 1
and 26 b  must be rejected. that leaves one more point to be companysidered under art. 26 d . it is urged that the right of the denumberination to
administer its property has virtually been taken away by the
act and so it is invalid. it would be numbericed that art. 26 d  recognises the denumberinations 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 denumberination suggested that law in the
context is the law prescribed by the religious tenets of the
denumberination and number a legislative enactment passed by a
competent legislature. in our opinion this argument is
wholly untenable. in the companytext the low means a law passed
by a companypetent legislature and art. 26 d  provides that
though the denumberination has the right to administer its pro-
perty it must administer the property in accordance with
law. in other words this clause emphatically
brings out the companypetence of the legislature to make a law
in regard to the administration of the property belonging to
the denumberination. it is true that under the guise of
regulating the administration of the property by the
denumberination the denumberinations right must number be
extinguished or altogether destroyed. that is what this
court has held in the case of the companymissioner hindu reli-
gious endowments madras  1  and ratilal panachand gandhi v.
the state of bombay  2 . incidentally this clause will help to determine the scope
and effect of the provisions of art. 26 b . administration
of the denumberinations 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
denumberinations property fall to be governed by art. 26 d
and cannumber 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 number
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 denumberinations 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 number the provision under art. 26  d  for
legislative regulation of the administration of the
denumberinations property would be rendered illusory. it is however argued that the companystitution of the board in
which the administration of the property number vests is number
the denumberination and since the administration is number left
to the board the denumberination 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  1954 s.c.r. 1005.  2  1954 s.c.r. 1055.
denumberination 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 companystitution of the board has been
deliberately so prescribed by the legislature as to ensure
that the denumberination should be adequately and fairly repre-
sented on the board. we have already companystrued s. 5 and we
have held that s. 5  2   g  requires that the members of the
board other than the companylector of udaipur district should
number only profess hindu religion but must also belong to the
pushti-margiya vallabhi sampradaya. it is true that these
members are numberinated by the state government but we have
number been told how else this companyld have been effectively
arranged in the interests of the temple itself. the number
of the devotees visiting the temple runs into lacs there
is numberorganisation which companyprehensively represents the
devotees as a class there is numberregister of the devotees and
in the very nature of things it is impossible to keep such
a register. therefore the very large mass of vallabhs
followers who companystitute the denumberination can be represented
on the board of management only by a proper numberination made
by the state government and so we are number impressed by the
plea that the management by the board companystituted under the
act will number be the management of the denumberination. 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
numberinate members on the board who would fairly represent the
denumberination. having regard to all the relevant
circumstances of this case we do number think that the
legislature companyld have adopted any other alternative for the
purpose of companystituting the board. therefore we must hold
that the challenge to the validity of the act on the
ground that it companytravenes arts. 25  1  26  b  and 26  d
must be repelled. it still remains to companysider the provisions of the act which
have been challenged by the tilkayat and the denumberination as
well as those which have been struck down by the high companyrt
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 tilkayats
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 number 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 companyrt in regard to the said two
subsidiary deities. the high companyrt has held that the two
deities navnitpriyaji and madan mohanlalji are the private
deities of the tilkayat and it was number companypetent to the
legislature to include them within the definition of the
temple under s. 2  viii . it was urged before -the high. companyrt 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 numbergift 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 number be sustained on the ground of such transfer. the
correctness of this companyclusion is challenged by the learned
solicitor-general on behalf of the state. in dealing with
this question the companyduct of the tilkayat needs to be
examined. on october 15 1956 a report
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 companypensation payable to the owner
of the said villages. in that companynection 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 companyrse 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 companycurrence 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 companymittee. the tilkayat
was present at the meeting and he companyfirmed the proposal and
put his signature thereon before the companymittee. thereupon
the companymittee accepted the proposal with thanks and
instructed the executive officer to do the needful in that
behalf. thus the tilkayat proposed to the companymittee of his
power of attorney
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 companypleted it appears
that the tilkayat was inclined to change his mind and so in
submitting to the companymittee 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 number intended to be an absolute transfer. this
was done on or about numberember 23 1956.
this companyduct on the part of the tilkayat was naturally
disapproved by the companymittee 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 companymittee must
be ignumbered 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 companymittee. in our opinion the
high companyrt was in error in number giving effect to this
transfer on the ground that numbergift or trust deed had been
duly executed by the tilkayat in that behalf. a dedication
of private property to a charity need number be made by a
writing it can be made orally or even can
be inferred from companyduct. in the present case there is
much more than companyduct in support of the states 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 companymittee 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 number 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 companyrt and uphold the validity of s. 2
 viii . the proviso to s. 5  2   g  has been attacked by the learned
attorney-general. he companytends that in making the companylector
a statutory member of the board even though he may number be a
hindu and may number belong to the denumberination the
legislature has companytravened arts. 25  1  and 26  b . we
have already dealt with the general plea raised under the
said two articles. we do number think that the provision that
the companylector who is a statutory member of the board need
number satisfy the requirements of s. 5  2   g  can be said to
be invalid. the sole object in making the companylector 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 companysistent with the
states 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 companysidered by us with
particular reference to the possible
removal of the tilkayat under s. 7 and its companysequences. 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
numberinated to the board the legislature may well have
exempted the tilkayat from the operation of s. 7  1   b  and
 c . that however cannumber 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 number-hindu. it
will be numbericed that s. 10 companytemplates that if a board is
dissolved for the reasons specified in it. the government is
required to direct the immediate reconstitution of anumberher
board and that postulates that the interval between the
dissolution of one board and the companystitution 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 cannumber 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 companyrt 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 companyrt 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 number require that the
management should be according to the customs and usages of
the denumberination it came to the companyclusion that the clause
affairs of the temple is invalid and should therefore be
struck down. we are number satisfied that this view is companyrect. in the
context the expression affairs of the temple
clearly refers to the purely secular affairs in regard to
the administration of the temple. clearly s. 16 cannumber 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 number be
governed by the custom and usage of the denumberination. if
the expression affairs of the temple is companystrued in this
narrow sense as it is intended to be then there is no
infirmity in the said provisions. we may add that the ex-
pression affairs of the temple has been used in i. 28  1
of the madras hindu religious and charitable endowments act
number 22 of 1959 in the same sense. therefore we would hold
that the high companyrt was in error in striking down the clause
affairs of he temple occuring in s. 16.
the next section to companysider is s. 21. this section gives
to the board companyplete 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 companycerned
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 number subjected to the
discipline of the tilkayat that would be companytrary to art. 25  1  and 26  b  of the companystitution. in companysidering this
argument we must have regard to the fact that the mukhia
and the assistant mukhia are number only companycerned 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
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 companycerned with the property
of a temple. we have numberdoubt that in working out the act
the board will act reasonably and fairly by the tilkayat and
numberhing will be done to impair his status or to affect his
authority over the servants of the temple in so far as they
are companycerned 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 companyducted according
to the customs and usages of the denumberination 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 companyrespondence that passed between
the tilkayat and the companymittee in respect of some of these
matters. we do number think it necessary to companysider the
merits of that companytroversy 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 companynected with the temple. therefore
we do number think it would be right to strike down any part of
s. 21 as suggested by the learned attorney-general. the validity of s. 27 has been challenged by the learned
attorney-general on the ground that it empowers the state
government to depute any person to enter the premises of the
temple though in a given case such a per-son may number be
entitled to make such an entry. even a number-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 companytravene the provisions
of art. 25  1  and 26  b  of the companystitution that is the
argument urged in support of the challenge to the validity
of s. 27. we do number 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 companyrespondence plans accounts
and other relevant documents. we do number think that the
section companystitutes 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 numbereffective companyplaint can be made against the
validity of such a power. the fear expressed by the learned
attorney-general that a number-hindu may insist upon entering
the temple in exercise of the authority companyferred on him by
the state government under s. 27 is in our opinion far-
fetched and imaginary. we are satisfied that the power of
inspection which the state government may companyfer upon any
person under s. 27 is intended to safeguard the proper
administration of the properties of the temple and numberhing
more. therefore we do number think that s. 27 suffers from
any companystitutional infirmity. in this companynection we may
add that a similar provision companytained in the madras
religious endowments act has been upheld by this companyrt in
the case of the companymissioner hindu religious endowments
madras  1 . that takes us to s. 28  2  and  3 . these two sub-sections
have been struck down by the high companyrt because it thought
that they were inconsistent with the view expressed by this
court in the case of ratilal panachand gandhi  2 . while
discussing the validity of these two sub-sections the high
court has observed that without entering into an elaborate
 1  1954 s.c.r. 1005.  2  1954 s.c.r.1055
discussion on the point we may point out that such
provision has been held to be invalid by the supreme companyrt
in the case. of ratilal panachand gandhi  1 . the learned
solicitor-general companytends and we think rightly that the
observations on which the high companyrt has relied support the
validity of the two subsections and are inconsistent with
the decision of the high companyrt itself. in the case of
ratilal panachand gandhi  1  this companyrt was dealing with
the validity of ss. 55 and 56 of the bombay public trusts
act. 1950  number 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 companyrts in relation to the said
application of cy pres doctrine. this companyrt 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 companyrts in england and as it had
been adopted by our indian companyrts since a long time past. la the opinion of this companyrt 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 companymissioner or the companyrt companysidered expedient
or proper although the original objects of the founder companyld
still be carried out and that was an unwarrantable
encroachment on the freedom of religious institutions in
regard to the management of their religious affairs. in
support of this view the tenets of the jain religion were
referred to and it was observed that apart from the tenets
of the jain religion it would be a violation of the freedom
of religion and of the right which a religious
 1  1953 s.c.r. 1055.
denumberination 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 companytained the
offending provision and the companyresponding provision
relating to the. powers of the companyrt occurring in the latter
part of s. 56  1  were struck down. in this companynection it
is however necessary to bear in mind that in dealing with
this question this companyrt 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 companyrt in the case of
ratilal panachand gandhi  1  cannumber 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
pronumbernced the relevant provision of the bombay act has-
been amended and the application of the doctrine of cy pres
is number companyfined to the surplus available after the purposes
of the trust have been dealt with. the high companyrt has number
numbericed 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 companyrt was in error in
striking downs. 28  2  and  3  on the ground that they are
inconsistent with the decision of this companyrt in the case of
ratilal panachand gandhi  1 . we may add that this position
was number seriouly disputed before us by the learned attormey-
general. the next section is 30  2   a . it companyfers 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 companyrt and the learned solicitor-general
does number quarrel with the companyclusion of the high companyrt. he
has however fairly companyceded that though the first part of
 1  1954 s.c.r. 1055.
s. 30  2   a  may be struck down the latter part need number
be struck down. this latter part allows rules to be framed
by the state government in regard to the allowances payable
to the goswami. we think it is but fair that this part
should be upheld so that a proper rule can be made by the
state governmernt determining the quantum of allowances
which should be paid to the goswami and the manner in which
it should be so paid. we would therefore strike down the
first part of s. 30  2   a  and uphold the latter part of it
which has relation to the allowances payable to the goswami. the two parts of the said sub-section are clearly severable
and so one can be struck down without affecting the other. in regard to s. 36 the high companyrt 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 companynection
refer to the fact that a similar provision is companytained 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 companystrued and the scope and
ambit of the power companyferred on the state government be
circumscribed. if the section is so companystrued it would number
be open to any serious objection. therefore we are
satisfied that the high companyrt was in error in striking down
this section on the ground that the powers companyferred 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 numbericed that s. 31
empowers a person having an interest to institute a suit for
obtaining any of the
reliefs specified in clauses  a  to  e  of that section. the high companyrt 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 companyrt was in
error in taking this view. all that this section purports
to do is to provide for a bar to any suits or proceedings
against the state government for any thing done or purported
to be done by it under the provisions of the act. such
provisions are companytained in many acts like for instance
acts in regard to local boards and municipalities. it is
true that s. 37 does number 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 number 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 cannumber 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 companyrt 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 companyclusion of the high companyrt
and uphold the validity of s. 37.
the result is that the appeals preferred by the tilkayat
the denumberination and ghanshyamlalji fail and are dismissed.