P.N.BHAGWATI - (1.) The petitioners in these petitions are trustees or managers in charge of different religious institutions holding Devasthan Inams and they challenge the constitutional validity of the Gujarat Devasthan Inams Abolition Act 1969 (hereinafter referred to as the Act). The Act came into force on 15th November 1969 and in its territorial operation it extends to the Bombay area of the State of Gujarat. sec. 2 enacts the definition clause:- sub-sec. (1) defines appointed day to mean the date on which the Act came into force namely 15 November 1969. Assessment in relation to any land means according to sub-sec. (2) the assessment fixed on the land under the Code immediately before the appointed day and where no assessment was so fixed on the land the amount which would have been fixed as assessment on the land under sec. 52 of the Code sub-sec. (3) says that authorised holder in relation to Devasthan land means a person in whom the ownership of such land vests permanently whether by virtue of the operation of the tenancy law or of any kind of valid transfer made otherwise than under the tenancy law. Devasthan Inam is defined in sub-sec. (6) to mean:- an inam consisting of a grant or recognition as a grant (a) of a village portion of a village or land whether such grant be (i) of soil with or without exemption from payment of land revenue or (ii) of assignment of the whole of the land revenue of the village portion of the village or as the case may be land or of a share of such laid revenue or (iii) of total or partial exemption from payment of land revenue in respect of any land; or (b) of cash allowance or allowance in kind by whatever name called by the ruling authority for the time being for a religious or charitable institution and entered as such in the alienation register kept under sec 53 of the Code or in any other revenue record or public record maintained in respect of alienations or determined as such by a decision under sec 5 of the Gujarat surviving alienations Abolition Act 1963 but does not include xxxx xxxx xxxx xxxx Sub-sec. (7) defines Devasthan land:- it means a villages portion of a village or land held under a Devasthan Inam hell follow definitions of inferior holder inamdar tenancy law and unauthorised holder in sub-secs. (9) (10) (13) and (14) which read as follows:- (9) inferior holder means a person who is in possession of a Devasthan land whether by inheritance or succession or valid transfer under the tenancy law or otherwise and who being liable to pay assessment in cash or kind holds such land whether on payment of assessment or not; (10) `inamdar means the religious or charitable institution for which a Devasthan inam is held whether such inam is actually entered in the relevant revenue record in the name of such institution or of any person in charge of such institution or having the management thereof; (13) tenancy law means the Bombay Tenancy and Agricultural Lands Act 1948 (14) unauthorised holder means a person in possession of a Devasthan land under any kind of alienation thereof which is null and void under the law applicable to such land immediately before the appointed day; Sec. 4 entrusts the determination of certain questions arising under the Act to the State Government and prescribes the machinery for such determination. sec. 5 which is the principal section provides for abolition of Devasthan inams and their incidents in these terms:- 5 Notwithstanding any usage or custom settlement grant agreement sanad or order or anything contained in any decree or order of a Court or any law for the time being applicable to any Devasthan inam with effect on and from the appointed day (a) all Devasthan inams except in so far as they consist of a grant or recognition as a grant of cash allowance or allowance in kind shall be and are hereby abolished:- (b) save as expressly provided by or under this Act all rights legally subsisting immediately before the said day in the Devasthan inams so abolished and all other incidents of such inams shall be and are hereby extinguished; and (c) subject to the other provisions of this Act all Devasthan lands shall be and are hereby made liable to the payment of land revenue in accordance with the provisions of the Code and the rules made thereunder and accordingly the provisions therein relating to unalienated land shall apply to all Devasthan lands. On abolition of the Devasthan Inam tenure what shall be the consequences is provided in secs. 6 7 and 8 which are very material and of which the relevant portions are as follows:- 6 In the case of a Devasthan land the person deemed to be the occupant primarily liable to the State Government for payment of land revenue in respect of such land in accordance with the provisions of the Code and the rules made thereunder shall be (a) where such land is in possession of the inamdar and had been cultivated on behalf of the inamdar immediately before the appointed day the inamdar (b) where such land is in the possession of an authorised holder or an inferior holder such authorised holder or inferior holder as the case may be and (c) where such land is in possession of a person other than the inamdar authorised holder unauthorised holder or inferior holder the inamdar. 7 (1) Where any Devasthan land is in the possession of an unauthorised holder it shall be resumed and such unauthorised holder shall be summarily evicted therefrom by the Collector in accordance with the provisions of the Code:- xxx xxx xxx xxx xxx 8 All public roads lanes and paths the bridges ditches dikes and fences on or beside the same beds of creeks below high water mark and beds of rivers streams and nallas lakes wells tanks canals and water courses and all standing and flowing water and all lands (excluding lands used for building or other non-agricultural purposes) in respect of which no person is deemed to be an occupant under this Act and all mines whether being worked or not and minerals whether discovered or not and all quarries which are situate within the limits of any Devasthan land shall except in so far as any rights of any person other than the inamdar may be established in or over the same and except as may otherwise be provided by any law for the time being in force vest in and shall be deemed to be with all rights in or over the same or appertaining thereto the property of the State Government and all rights held by an inamdar in such property shall be deemed to have been extinguished and it shall be lawful for the Collector subject to the general or special orders of the State Government to dispose of them as he deems fit subject always to the rights of way and other rights of the public or of individuals legally subsisting Secs. 9 and 11 provide for compensation and omitting portions immaterial they run as follows:- 9 In the case of a Devasthan inam not consisting of a grant or recognition as a grant of cash allowance or allowance in kind there shall be paid to the inamdar as compensation for the abolition of all his rights in Devasthan inam in the form of an annuity in perpetuity (a) a sum of money equal to an average of the full assessment lawfully leviable on all the lands comprised in such inam during a period of three years immediately preceding the appointed day if the grant consisted of grant of soil with or without exemption from payment of land revenue (b) a sum of money equal to an average of the amount of land revenue or as the case may be the share in such land revenue received or due to the inamdar during a period of three years immediately preceding the appointed day if the grant consisted of assignment of land revenue or a share in such land revenue. 11 (1) If any person is aggrieved by the provisions of this Act as abolishing extinguishing or modifying any of his rights to or interest in property and if compensation for such abolition extinguishments or modification has not been provided for in the other provisions of this Act such person may apply to the Collector for compensation. (2) The application under sub-sec. (1) shall be made to the Collector in the prescribed form within the prescribed period. The Collector shall after holding a formal inquiry in the manner provided by the Code make an award determining the compensation in the manner and according to the method provided for in subsec. (1) of sec. 23 and sec. 24 of the Land Acquisition Act 1894 (3) Nothing in this section shall entitle any person to compensation on the ground that any Devasthan land which was wholly or partially exempt from payment of land revenue has been under the provisions of this Act made subject to the payment of full assessment in accordance with the provisions of the Code. Then comes sec. 19 which invalidates certain actions taken or things done after 18th March 1968 but before the appointed day in relation to Devasthan land so as to affect the rights of the tenant in respect of such land or to evict the tenant from such land. Lastly sec. 31 amends the Bombay Tenancy and Agricultural Land 1948 and the Gujarat Agricultural Lands Ceiling Act 1960 It removes the exemption from applicability of certain provisions of the Tenancy Act given under sec. 88B in respect of lands which are the property of an institution for public religious worship and inserts the following sec. 88E after sec. 88D:- 88 (1) Notwithstanding anything contained in sec. 88B with effect on and from the specified date lands which are the property of an institution for public religious worship shall cease to be exempted from those provisions of the Act except secs. 31 to 31D (both inclusive) from which they were exempted under sec. 88B and all certificates granted under that section in respect of such lands shall stand revoked. (2) Where any such land ceases to be so exempted then in the case of a tenancy subsisting immediately before the specified date the tenant shall be deemed to have purchased the land on the specified date and the provisions of secs. 32 to 32 (both inclusive) shall so far as may be applicable apply. Explanation:--In this section specified date means the date of the commencement of the Gujarat Devasthan Inams Abolition Act 1969 It also introduces sub-sec. (3) in sec. 3 of the Ceiling Act in the following terms:- (3) The Devasthan lands which immediately before the date of the commencement of the Gujarat Devasthan Inams Abolition Act 1969 were exempted under clause (d) of sub-sec. (1) shall with effect on and from the said date cease to be exempted lands. The constitutional validity of these provisions is challenged before us on various grounds taken in one or the other petition.
(2.) The main ground of challenge is based on infraction of Article 26(c) which confers on every religious denomination or any section thereof the fundamental right to own and acquire movable and immovable property subject to public order morality and health. The petitioners contend that the Devasthan lands owned by religious institutions of which they are managers or trustees belong to religious denominations or sections thereof and the provisions of the Act in so far as they abolish the rights in Devasthan inams (sec. 5) make the authorised holders and inferior holders occupants of Devasthan lands in their possession (sec. 6 clause (b)) provide for resumption of Devasthan lands in possession of unauthorised holders (sec. 7) and vest certain specific kinds of properties in the State (sec. 8) are therefore violative of Article 26(c) and must be held to be void. If these provisions are void sec. 19 being an ancillary provision must also fall with them; but independently of the challenge to these provisions the validity of sec. 19 is also assailed before us on the ground that the date 18th March 1968 being an artificial date arbitrarily fixed by the Legislature the provision enacted in sec. 19 imposes an unreasonable restriction on the right of religious denominations to deal with their lands and is hence violative of Article 26(c). so also the amendment of sec. 88B and the introduction of sec. 88E in the Tenancy Act and the withdrawal of exemption in respect of Devasthan lands from the provisions of the Ceiling Act (sec. 31) are challenged as void as being in conflict with the right of religious denominations to own Devasthan lands under Article 26(c). To this argument several answers are made on behalf of the State. In the first place the State contends that Article 26(c) has no application in the case of Devasthan lands since Devasthan lands are owned either by religious institutions like Maths deities etc. which are juristic entities or by trustees for the benefit of religious institutions and not by religious denominations or sections thereof. Even if Article 26(c) can be invoked in relation to Devasthan lands argues the State it would not avail the petitioners since the Act barring the amendment of sec. 88B and the introduction of sec. 88E in the Tenancy Act constitutes acquisitional legislation and if it satisfies the constitutional guarantee in Article 31(2) it does not have to meet the challenge of Article 26(c). The fundamental right under Article 26(c) is delimited by Article 31(2) which recognises the power of the State to compulsory acquire properly subject only to two conditions namely existence of public purpose and specification of an appropriate or relevant principle of compensation and therefore if a law of compulsory acquisition complies with these two conditions prescribed by Article 31(2) it is not required to stand the scrutiny of Article 26(c). A law falling within Article 31(2) does not have to be tested by reference to Article 26(c) for Article 26(c) is subject to Article 31(2). It is also argued by the State that in any event Articles 25 and 26 form part of a single pattern and therefore though the words subject to the other provisions of this Part do not occur in the opening part of Article 26 as they do in the opening part of Article 25(1) the qualification introduced by these words in Article 25(1) must be carried into Article 26 and Article 26(c) must be read as conferring a right on religious denominations subject to the other provisions of Part III which would include Article 31(2):- Article 31(2) must accordingly prevail over Article 26(c). The State also contends in the alternative that even if Article 26(c) is not subject to Article 31(2) the right of property it confers is abstract right and not concrete right and since no provision of the Act interferes with the general right or capacity of religious denominations to own and acquire property the Act does not offend Article 26(c). The position is no different even if Article 26(c) is considered as conferring a concrete right of property. The right to own and acquire property guaranteed under Article 26(c) is not an absolute right:- it is subject to reasonable regulation by the State so long as the substance of it is not impaired. The impugned provisions of the Act do not affect the substance of the right to own and acquire property:- they merely regulate the right by substituting one form of property for another. For these reasons the State contends there is no violation of Article 26(c).
(3.) The first question which arises for consideration on these arguments is whether Article 26(c) can be invoked at all in respect of Devasthan lands. It is apparent that under Article 26(n) the right to own and acquire property is conferred on a religious denomination or a section thereof and therefore unless it can be shown that Devasthan lands are owned by a religious denomination or a section of it the petitioners cannot invoke Article 26(c). Now Devasthan lands being lands held under a Devasthan inam granted for a religious institution the legal ownership of Devasthan lands would vest either in the religious institution if like a Math or a deity it is a juristic entity or in the trustees for the benefit of the religious institution and the State therefore contends that no part of the Devasthan lands could be said to be owned by a religious denomination or a section thereof so as to attract the applicability of Article 26(c). This contention plausible though it may seem is based on a misconception of the true scope and ambit of Article 26(c). It proceeds on a wrong hypothesis that the word own in Article 26(c) connotes legal ownership and it is only when legal ownership of property is vested in a religious denomination or a section thereof that the constitutional guarantee in Article 26(c) is attracted. A little reflection will show how insupportable is this hypothesis. If accepted as correct it would reduce the fundamental right under Article 26(c) to futility. It is obvious that a religious denomination not being a juristic entity legal ownership of property cannot be vested in it. It can own property only through the agency of some other natural person or legal entity. But in such a case the legal ownership of the property would be vested in such other person or entity and the religious denomination would only have beneficial interest in it. If therefore Article 26(c) is to have any meaning or content it must be held to refer to beneficial ownership of property. The word own must be construed in a broad and liberal sense to mean the substance of ownership which would include beneficial ownership. That is the only way we can give meaning and force to Article 26(c) and save it from being a futile exercise of constituent power. It would therefore be sufficient to invoke the applicability of Article 26(c) if it can be shown that a religious denomination or a section thereof is the beneficial owner of Devasthan lands. Now it is clear and indisputable that even where property is vested in a religious institution such as a Math or a deity which is a juristic entity or in trustees for the benefit of a religious institution it is not the religious institution which is the real beneficiary but the real beneficiaries are the worshippers or followers of the particular religious denomination to which the religious institution belongs. This was settled long ago by the Supreme Court in Deoki Nandan v. Murlidhar A.I.R. 1957 S.C. 133. The question which arose for consideration in that case was whether a certain temple namely. Thakurdwara of Sri Radhakrishnaji was a public endowment or a private one. Dealing with this question Venkatarama Ayyar J. speaking on behalf of the Supreme Court pointed out :- The distinction between a private and a public trust is that whereas in the former the beneficiaries are specific individuals in the latter they are the general public or a class thereof. While in the former the beneficiaries are persons who are ascertained or capable of being ascertained in the latter they constitute a body which is incapable of ascertainment..A religious endowment must therefore be held to be private or public according as the beneficiaries thereunder are specific persons or the general public or sections thereof. Then the question is who are the beneficiaries when a temple is built idol installed therein and properties endowed therefore ? Under the Hindu Law an idol is a juristic person capable of holding property and the properties endowed for the institution vest in it. But does it follow from this that it is to be regarded as the beneficial owner of the endowment ? Though such a notion had a vogue at one time and there is an echo of it in these proceedings (vide para 15 of the plaint) it is now established beyond all controversy that this is not the true position. It has been repeatedly held that it is only in an ideal sense that the idol is the owner of the endowed properties. It cannot itself make use of them it cannot enjoy them or dispose of them or even protect them. In short the idol can have no beneficial interest in the endowment. The learned Judge then after referring to certain Sanskrit texts proceeded to add:- Thus according to the texts the Gods have no beneficial enjoyment of the properties and they can be described as their owners only in a figurative sense (Gaunartha) and the true purpose of a gift of properties to the idol is not to confer any benefit on God but to acquire spiritual benefit by providing opportunities and facilities for those who desire to worship.....Thus it was observed by Sir Lawrence Jenkins C.J. at p. 138 that the pious purpose is still the legatee the establishment of the image is merely the mode in which the pious purpose is to be effected and that the dedication to a deity may be a compendious expression of the pious purposes for which the dedication is designed . . .In Hindu Religious Endowments Board v. Veeraraghavacharlu A.I.R. 1938 Mad. 750 Varadachariar J. dealing with this question referred to the decision in I.L.R. 37 Cal. 128 and observed:- As explained in the case that purpose of making a gift to a temple is not to confer a benefit on God but to confer a benefit on those who worship in that temple by making it possible for them to have the worship conducted in a proper and impressive manner. This is the sense in which temple and its endowments are regarded as a public trust. When once it is understood that the true beneficiaries of religious endowments are not the idols but the worshippers and that the purpose of the endowment is the maintenance of that worship for the benefit of the worshippers the question whether a endowment is private or public presents no difficulty. It is clear from these observation that even where Devasthan lands vest in a Math or a deity or a religious institution or in trustees for the benefit of a religious institution the true beneficiaries of Devasthan lands are not the Math idol or religious institution but the worshippers or followers and since they belong to one or the other religious denomination or a section thereof it is not incorrect or inappropriate to say that Devasthan lands are beneficially owned by a religious denomination or a section thereof and the condition for the applicability of Article 26(c) is satisfied.;