BHARGAVA, J. - (1.) IN village Dhulev in the erstwhile State of Udaipur in Rajasthan there is an ancient temple of Shri Keshriyanathji.
(2.) THE petitioners on behalf of Swetamber Jain Sangh and the members of Murtipujak Swetamber Jain Sangh of Udaipur claim that this temple is a Jain temple and has always been recognised as such in official documents and Farmans issued by the erstwhile State of Mewar and assert that it was under the ownership and management of Jain Shashan. It is said that it is a 'Bavan Jainalaya' with a main idol in the centre and 51 Devries around it. THE main idol is that of Shri Rikhabdeoji, the first Tirathankar of Jains and the idols in the said Devries are those of other Tirathankars and footprints of some deities, that Sewa Puja in the temple is performed according to Swetamber Murtipujak Jain tenets, that this temple is a famous of place worship for Swetamber Murtipujak Jains from all parts of India. THEy come in large numbers. THEy donate large funds for the religious worship in the temple and for other religious and charitable activities. THEre are people of other faiths also who worship therein on account of Prabhartik idol but this they do so out of religious tolerance and grace on the part of Swetamber Murtipujak Jains. Even these people in matter of worship follow the same mode and rituals which are required for the worship of Jain idol in a Jain temple. THE very name of the temple deity Shri Keshariyanathji denotes its Swetamber character as no Keshar is offered to any other religious deities, that this temple has religious and charitable activities in which pilgrims donate large funds. THEse are provided in Khatas out of which pilgrims select items of their choice and donate therein. THEse Khatas are 13 in number and as follows and are according to Jain Swetamber religious tenets. 1. THE Bhandar Khata, 2. Sadavrat Khata, 3. Snatra Khata, 4. Angi Khata, 5. Bhala Khata, 6. Jirnodhar Khata, 7. Dada Sahib Khata, 8. Dharamshala Khata, 9. Jivadaya Khata, 10. Manibhaderji Khata, 11. Sat Kshetra Khata 12. Sadharan Khata, 13. Pagla Khata. Besides the above items there are certain lump sum amounts donated by persons in the past to the temple to invest the same and to use its interest, and other returns for specific religious purposes, that in the temple staff there are persons known by the name of Bhandaries and Pujaries (Sewaks). THEy are brahmins and non-jains and are the old employees of the temple. THEy are not paid salaries out of temple funds, but are allowed share from certain incomes of the temple. THE Bhandaries are paid a share out of the gifts made to the temple and Pujaries (Sewaks) are given out of the income from bids (Bolis) in respect of Pakshal (bathing ceremony) and Puja (worship) of the idol if Shri Keshriyanath. According to the tenets of Jain religion the management of Jain temple itself earns religious merits and is enjoined in the religious books and is thus a part of their religion. THEir grievance is that the management of the said temple has been illegally usurped by the Government of Rajasthan through the Devasthan Department for some years and that the State Government was attempting to dispose of the gold and silver ornaments of the said temple. Further the State of Rajasthan has promulgated the Rajasthan Public Trusts Act, 1959 (Act No. 42 of 1959) (hereinafter called the Act) and has also made rules under it. Chapters 1 to 4 and rules connected therewith of the said Act have come into force from 22nd October, 1959 while Chapters 5 to 10, 12 and 13 and rules connected therewith have also come into force from 1st July, 1962 and that certain provisions of the Act which apply to the said temple conflict with the fundamental rights of the petitioners guaranteed under Art.25 and 26 of the Constitution of India. THE petitioners have therefore, filed this writ application u/Art. 226 of the Constitution of India for a writ of mandamus or any other order or direction of that nature against the State of Rajasthan, the Commissioner Devasthan Department Government of Rajasthan and the Assistant Commissioner Devasthan to refrain them from enforcing certain provisions of the Act and to declare them void being in contravention of the fundamental rights of the petitioners embodied under Arts.14, 19, 25, 26 and 31 of the Constitution of India. It is further prayed that the respondents be restrained from selling the gold and silver ornaments belonging to the said temple and advancing loans from the funds of the temple without the consent of the religious denomination. THEy have also prayed for an appropriate writ restraining the respondents from carrying out the management of the said temple and to allow the petitioners to have the management of the said temple and its continuance by them and the religious denomination according to the declaration of Smt. 1934 made by the Ruler of Udaipur State. Sec. 17(3) of the Act has been challenged on the ground that the fee levied along with the application for registration of the public trusts is a tax which is beyond the competence of the State Legislature to impose. The respondents have contested in the writ petition and their case shortly stated is that the said temple is not a Jain temple but it is a Hindu temple where Jains of all sects as well as Hindus of all sects including Bhils are allowed to go and worship. According to the respondents this temple of Shri Keshriyanathji was built by Maharana Kumbha a Hindu ruler of Mewar in the 15th Century A.D. and ever since then it continued to be managed by the rulers of the Mewar State and thereafter the successor State of Rajasthan through the Devasthan Department of the Government of Rajasthan. It is stated that there are several other idols in the temple including the idol of Charbhujaji, Shri Mahadevji, Shri Saraswatiji, Shri Laxmiji and of other Hindu Gods and Goddesses in the premises of the temple. The respondents have denied that the provisions of the Act which has been enacted to regulate and to make better provision for the administration of public religious and charitable trust in the State of Rajasthan are in any way violative of the provisions of Arts.25 and 26 or any other article of the Constitution of India. It is stated that the management of the temple is with the State of Rajasthan and it has a valid and legal right to do so. As regards the nature of the amount leviable under sec. 17(3) of the Act it is stated that it is a fee and not a tax. Thus the main controversy between the parties is confined to the following questions: 1. whether the temple of Shri Rikhabdeoji is a Jain Swetamber temple or a Hindu temple. 2. whether the management of the temple has been illegally usurped by the State of Rajasthan from the denomination. 3. whether the provisions of the Act of 1959 particularly secs. 30 and 31, 38 to 43 and Chapter X are void being in conflict with the fundamental rights of the petitioners granted under Arts. 25 and 26 of the Constitution and the fee payable under sec. 17(3) is a tax which is beyond the competence of the State Legislature to impose. Before examining the impugned provisions of the Act we would like to clear the ground whether the temple of Shri Rikhabdeoji or Keshriyanathji as it is also called, is a Jain temple or a Hindu temple. The petitioners in support of their claim have filed a number of annexures showing that during the last several centuries this temple has been recognised by the rulers of Udaipur State as a Jain Swetamber temple and has been recorded as such in the official records of the State. It was pointed out that the claim of the respondents that the temple was built by Maharana Kumbha of Mewar State was simply preposterous. The respondents on the other hand did not produce any documentary evidence in support of their contention. It is not disputed that the temple is an ancient one and its history goes to remote antiquity. Although the annexures filed by the petitioners afford no evidence as to when and by whom the idols were consecrated or the temple was built, we know this much at least that this temple was repaired in the 14th and 15th Centuries vide extract from the Imperial Gazetteer of India Volume XXI (New Edition 1908) pages 168-169 (Annexure 26). In the Gazetteer the temple has been described as "a famous Jain temple sacred to Adinath or Rikhabnath which is annually visited by thousands of pilgrims from all parts of Rajputana and Gujrat." Annexure (1) is the Farman of Mughal Emperor Akbar issued in the 7th year of his reign in favour of Heerbijoy Soori the preceptor of the Jain Swetamber religion bestowing upon him the mountains of Siddhachal, Girnar, Rarunga, Kesrianath and Aboo lying in the then province of Gujrat and five mountains of Rajgiree, Somad Shikhar alias Parsunath lying in the then province of Bengal together with all the places of worship and pilgrimage below the mountains. It is said in the Farman that "these mountains and the places of worship and pilgrimage which are the places of the (followers of the) Jain Swetamber religion are given to Heer-bijoy Soori. They are followers of Jain religion". It was ordained that no animal should be killed on, below or about the mountains and the places of worship and pilgrimage. Annexures 2, 3, 4, 6, 7A, 7B and 7C show that some embezzlement of the temple funds was suspected in Smt. year 1933 and Molvi Abdul Rahman Khan was deputed by the State of Udaipur to make enquiry and check the accounts. In this connection a complaint Annexure (3) was made by one Bhandari Jawanji Khemraj to Col. Infi that Molvi Abdul Rehman Khan had forcibly broken open the lock of the Bhandar and took away the account books and other papers which has caused humuliation of the Seth Sahukars. In this application the temple has been described as belonging to the Jain Sangh. Eventually it was ordered by the Government of Udaipur State (Annexure 6) that a committee of management be appointed. The committee was to consist of the President of Sel Kantar Sabha' as its manager and four other members whose names are mentioned therein. This is dated Magsar Budi 9, Smt. 1934 corresponding to 29th November, 1877. Annexure (9) dated 27th January, 1878 is a notification of the Government of Udaipur State for the information of the pilgrims and the devotees of Shri Rikhabdeoji regarding the removal of Bhandaries due to their mismanagement of the temple affairs and the appointment of a committee consisting of five respectable Oswals Mahajans devotees of Shri Rikhabdeoji. Annexure (10) dated 22.11.1878 is a notice issued by members of the committee to dispel doubts about the action taken by the Ruler of the State in appointing a committee for the management of the temple. It also mentions that the management has been assigned to a committee of five or seven big Sahukars who follow Jain religion and lead a religious life. Annexure (24) dated 29th May, 1886 is a copy of the report made by Mehta Govind Singh Hakim Magra (an officer having both judicial and magisterial powers) to Mahkama Khas, Udaipur wherein this temple has been stated to be of Swetamber sect. This report was made in connection with the application of some Digambar Jains objecting to the raising of Dhawaja i.e., flag over the 'Jainalaya'. In Smt. year 1963 some people had allowed low caste people to perform Puja of Shri Rikhab Deoji by taking some illegal gratification. The matter was referred by the Officer of the Devasthan Bhandar to Jain Muni Paniyai Nem Kushalji as to what steps should be taken for purification of the temple (Annexure 21 dated 19.7.1907) and Paniyai Nem Kushalji replied that "according to Jain Shastras when an idol is stolen or weighed in a scale or it is touched with a weapon or when it remains underground Bhandar without Puja or is touched by a low caste, then a Pratishtha ceremony should be performed which is of three kinds; lowest, middle and highest. At this time it is difficult to perform Utkrastha or Madhayam (Highest and Middle) Pratishtha. Hence lowest Pratishtha with Suatra and Shanti Puja may be performed." This shows that in this matter too advice of Jain Muni was taken. Annexure (18) is a receipt issued from the temple of Shah Mithanlal Chordia showing the different Khatas in which the offerings could be made by the devotees. Annexure (23) dated 20.5.1917 is a report by Mehta Takhat Singh to the Mahakma Khas, Udaipur State regarding the appointment of members to the committee in place of those who had died and the order of Mahkama Khas dated Bhado Badi 12, Smt. 1974 appointing Foujmal Bordiya and Pannalal Prajawat as members of the committee. Annexure (19) dated 19.8.1925 is an application by Jain Murtipujak Sangh to the members of the Managing Committee of the temple complaining that silver ornaments and other articles of the temple were being brought for sale which also included Sidha Chakra Gattas and the committee expressed its opinion that Gattas of Sidh Chakraji should not be sold. Annexure (28) dated Kartik Sudi 1 Smt. 1979 (1922 A. D.) is a copy of the order of Mahkama Khas Udaipur State directing the Devasthan Department not to offer Naivedya' to the deity Shri Rikhabdeoji as neither the committee nor the Jain Sangh nor the Acharyas of the Jain Sangh are in favour of it. Annexure (20) is another order dated 14.3.1906 about the appointment of members to the managing committee by the Mahakama Khas Udaipur State. Annexure (33) is a copy of the report of the Devesthan Department in the Mahkama Khas dated 16th March, 1926 to the effect that according to the intention of the order of Smt. year 1934, members of the managing committee have always been appointed from the Swetamber sect. This was in connection with an application of Panchas of Digamber sect of Dhulev that the temple is of Digamber sect and so the members of the committee who belong to Swetamber sect be removed and in their place members from Digamber sect be appointed. After the above report no action was taken on it and the papers were filed by the order of Mahkama Khas. Annexure (17) (a Gazette Notification of Udaipur State) dated 19th April, 1926 shows that the main idol was adorned with Angi (a robe made of gold and jewellery worth three and a half lakhs of rupees) and a festival was held in that connection. For the preparation of Nem Angi a fund was opened and the then Her Highness also donated a sum of Rs. 5000/- in it. The expenses of the festival were borne by Maharaj Kumar Sahib and the Jain Sangh expressed their thankfulness for this act. It is urged on behalf of the petitioners that it is a further proof of the temple being a Jain temple because idols of Swetamber Jains only adore Angis. Annexures (35 to 39) are notifications in the Mewar Gazette wherein the temple has been described as Jain Tirath of Shri Keshriyanathji. Annexure 11 is a notification published in the Extra-ordinary Gazette of the former United State of Rajasthan dated 22nd May, 1948 wherein the temple has been described as Shri Keshriya Nathji Jain Tirath. Annexure (11) dated 21st May, 1948 shows that when Smt. Jabal Behar had started a hunger strike against the mismanagement in the temple the Government appointed Shri Tej Singh Kothari to make enquiry and report about the said mismanagement and how it could be removed. It was further notified that the affairs of the temple would be managed according to the report of Shri Tej Singh until a final decision was taken by the Government on the report of the aforesaid tribunal Annx. (27) is a copy of the inscription in the temple (Shila Lekh) of Samvat year 1431 which shows that the temple was in existence in that year and could not have been built by Rana Kumba who was enthroned in Smt. year 1490. Annexure (30) is a pictorial calendar of the Rajasthan State of the year 1958 where a picture of the temple is given and it has been mentioned as a famous Jain temple. In the booklet published by the Government of India Information and Broadcasting Department for the tourists the temple has been mentioned as a Jain temple (Annexure 31). In Annexure (32) this temple has been described as a Jain temple by the present Director of Archeology and Research of Rajasthan. As against the above documentary evidence, no evidence was produced on behalf of the State to show that this temple was a Hindu temple. Our attention was drawn to a passage from 'Bhagwat' to show that Shri Rikhabdeo is recognised as a Hindu Avtar and therefore, the temple in dispute is a Hindu temple. We way however, point out that it is a well known fact that Shri Rikhabdeoji was the first Tirathankar of Jains and at many places there are temples of Shri Rikhabdeo which are indisputably recognised as Jain temples. It was then argued that in the premises of the temple there are images of Hindu gods and not only Jains but Hindus of all sects had been freely admitted into the temple for worship. It may be true that Hindus of all sects go for worship in the temple but that fact alone cannot prove that the temple is a Hindu temple, because in neither Hindu nor Jain temples entry of persons belonging to the other communities for the purpose of worship is prohibited. Therefore, on the evidence which has been produced before us, in these proceedings we have no hesitation in coming to the conclusion that the temple of Shri Rikhabdeoji is a Jain temple of Swetambar Jain sect. Even in the official records of the State of Udaipur it has been described as a Jain temple. We now turn to the second question whether the management of the temple has been illegally usurped by the State of Rajasthan and the petitioners are entitled to its restoration to the managing committee as constituted by the order of the Ruler of Udaipur State in Smt. year 1934. In this connection the case of the petitioners is that upto 1877 A. D. the temple was managed by Nagar Seth of Udaipur. Thereafter embezzlement and misappropriation by the Bhandaries of the temple was reported and an enquiry into the matter was held as a result of which. the Maharana of Udaipur as a devotee of Keshriyanathji dismissed the Bhandaries and on 29th November, 1877 transferred the management of the temple from Nagar Seth to a committee of management of which the Hakim of 'Sel Kantra Sabha' was made the executive member who was subsequently replaced by Hakim of Devasthan Department. This was done by the Maharana not as a ruler but as a devotee of Jain Tapgachha Sangh in his personal capacity This committee managed the affairs of the temple in its own right as an independent body and the management of the temple did not vest in the Maharana as trustee or in any other capacity. That on 23rd May, 1947, the erstwhile State of Mewar promulgated the Constitution known as Constitution of Mewar. Art. 2 of the said Constitution provided about Pratap Vishwa Vidyalaya and Devasthan Nidhi. The former was to be run by the assets of the latter. The Devasthan Nidhi was a corporation and was to consist of all shrines, temples and other religious and charitable institutions described in Schld. 1 of the said Constitution. Art.2 was later on amended and the following was substituted. "All shrines, temples and other religious and charitable institutions forming part of Devasthan described in Schedule 1 or which hereafter be found to form part thereof, or which may form part thereof by future dedication and all property and funds appertaining thereto are hereby declared to be vested in Shriji to be administered by him with the assistance of an advisory body, in which representation shall be included for the different sections of worshippers at the temples. The income of these institutions shall be used for the purposes for which the institutions have been founded, the surplus income after meeting such purpose being made available for other like or similar purposes." By this amendment the Maharana himself was to manage the temple affairs with the committee of worshippers i.e., Udaipur Jain Swetamber Sangh on behalf of Jain Sangh. But the Maharana as well as the Devesthan Department did not convene the temple committee and the said provisions never came into force. Soon-after this the Mewar State merged with the other States and formed the United State of Rajasthan. The United State of Rajasthan assumed the management of the temple and the committee did not function. In 1949 the present State of Rajasthan was formed and attempts were made by the Government through Devasthan Department to auction gold and silver belonging to the temple. But this was later on stopped because of the protests made on behalf of the Jain Sangh. The management of the temple has however, been illegally usurped by the Government of Rajasthan through the Devasthan Department for some years without the consent of the Jain Swetamber Sangh. We have given our careful consideration to the above matter and we are of the view that the ruler of the erstwhile Udaipur State by virtue of its sovereign power always exercised the power of general superintendence over the temple. This power of superintendence by the rulers was not peculiar with this temple alone but was in vogue even before the advent of the British rule in India. Hindu rulers had generally exercised powers of a visitatorial character over religious and charitable institutions and foundations. After the advent of the British rule the said power vested in the Board of Revenue and thereafter to the temple committees constituted under different enactments. In the present case we feel fortified in this view by the various annexures which have been produced on behalf of the petitioners themselves. It clearly emerges from the annexures that the ruler of Mewar finding that there was mismanagement in the temple ordered an enquiry into the matter and the enquiry officer checked accounts and the Bhandar and submitted his report to the Maharana as a result of which Bhandaries were removed and the management was transferred from the Nagar Seth to a committee and the President of the 'Sel Kantar Sabha' (a department of the erstwhile State of Mewar) was appointed its manager. 'The Sel Kantra Sabha' took the keys of the Bhandar from the Nagar Seth in Smt. year 1934 after the management of the temple was transferred to a committee vide annexures 6 and 7-A. It also appears that from time to time vacancies in the committee were filled up by the orders of the ruler of the State. Whenever any dispute arose about the affairs of the temple it was referred to the Government and its decision was obtained. (See Annexure 33). In 1948 when mismanagement of the temple was again reported the Government appointed a tribunal to make an enquiry and report about the state of mismanagement and ordered that the affairs of the temple should be managed according to the report of Shri Tej Singh Kothari until a final decision is taken by the Government on the report of the tribunal. Annexures (41 and 42) also show that on different occasions the Bhandars containing cash and jewellery were opened by the officers of the State for checking though the keys of Bhandar at Udaipur were given back to the same persons who had them before. On the other hand it seems that the committee appointed by the Ruler became defunct and the management of the temple was carried on by the Devesthan of the State. In the writ petition itself it has been admitted that management of the temple was with the former State of Rajasthan after the State of Udaipur had merged in it and thereafter devolved on the present State of Rajasthan. In these circumstances we are unable to hold that the management of the temple is still carried on by the committee of the Jain Swetambar Sangh and not by the State of Rajasthan. The next question is whether the provisions of the Act conflict with the fundamental rights of the petitioners guaranteed under Arts. 25 and 26 of the Constitution of India. There is no dispute that the temple of Rikhabdeo falls within the definition of public trust, religious institution and temple and its property is religious endowment within the meaning of that expression. It may be mentioned here that though in the writ petition many sections of the Act had been challenged being violative of the provisions of the Constitution of India, but Shri Amin learned counsel for the petitioners confined his attack mainly to secs. 30, 31, 38 to 43 and the provisions of Chapter X on the ground that they were in conflict with the fundamental rights guaranteed under Arts. 25 and 26 of the Constitution. We do not consider it necessary to repeat the contentions raised on behalf of the petitioners in this case and our answers to them in detail because identical questions were raised for consideration before us by Mr. Amin in Writ Petition No. 407 of 62 which was heard along with the present petition and we have discussed all those contentions in detail in our judgment in that case which is also being delivered today. It would be sufficient to refer briefly the conclusions at which we have arrived in that case. The contention of the learned counsel for the petitioners here as well as in that case was that the administration and management of the religious trusts was a part of the Jain religion and that contributions to the particular funds must be utilised for the purpose for which the funds exist and cannot be utilised for other purposes, and that for the investment of particular fund certain rules are to be followed and the fund belonging to the Jain Religious Trust cannot be invested with such persons or institutions which may utilise them for causing 'hinsa' or keeping brothel etc. It was urged that all the aforesaid matters are matters of Jain religion and are integral parts of it and there can be no interference by the State in them except on grounds of public order, morality or health. After examining the impugned provisions of the Act we have come to the conclusion that the provisions of the Act do not in any way interfere with the freedom of conscience and the right to practise profess freely and propagate Jain religion guaranteed under Art.25 of the Constitution. Secs.30 and 31 of the Act have been held to be valid in that case.
(3.) SECS.38 to 43 of the Act have also been held to be valid by us in that case, and we have held in this connection that ultimately it is the court of law which is to pass orders under secs. 40 and 43 of the Act and that being so there can be no question of any encroachment on the fundamental rights of the petitioners because the court is to act in accordance with law as embodied in the Constitution. When the machinery of the court is introduced for taking action in the matter there cannot arise any question of a breach of fundamental rights. In regard to the provisions of Chapter X of the Act sec.52 (1)(a), (b) and (c) has been held valid by us on the ground that in such cases there is no divesting of the management from one body to another so as to contravene cls.(b) and (d) of Art.26 of the Constitution. We have already held that in the present case the management of the temple is with the State and the case therefore is covered by sec. 52(1) (a) or (c) of the Act. In such cases of Trust as are mentioned in sub-sees.1 (a), (b) and (c) a secular State may not like to keep the management of public trusts belonging to various denominations with it and may like to transfer it to those who might be better equipped for managing it in accordance with the wishes of the founder or of the religious denomination to which the trust belongs. But that would not be violative of Art.26 (b) and (d) of the Constitution in any way. We have however, struck down sec. 52(l)(d) and (e) of the Act holding that in sec. 53 no proper safeguards have been provided for leaving the administration of the property in the hands of the denomination. But in view of our above finding sub-sec. (1) (d) and (e) are not applicable in this case. We have further held sec.17 (3) of the Act to be invalid, because under the rules that have been framed, the amount of Rs. 5/- charged as registration fee goes to the consolidated fund and is thus not a fee but a tax which is beyond the competence of the State Legislature to levy. This being our conclusion the question is what relief the petitioners are entitled to. Since we have come to the conclusion that the management of the temple is with the State Government the case falls within sec. 52(1)(a) or (c) of the Act which have been held valid by us. Therefore, no question of depriving the denomination of the management of the temple arises in this case. But the Act contains a provision for the transfer of the management even for those public trusts which fall under sub-sec. 1(a), (b) and (c) of sec. 52 and the Government should therefore, act accordingly and take early steps to transfer the management to a committee as envisaged by sec. 53 of the Act and in doing so we hope the Government while constituting the committee shall have due regard to the wishes of the denomination as was done in the past by the Maharana of Udaipur in Smt. year 1934. Accordingly we partly allow the writ petition and holding that the temple of Shri Rikhabdeoji is a Swetambar Tain temple and is at present being managed by the State of Rajasthan we direct the State of Rajasthan to constitute a committee for its management as provided in the Rajasthan Public Trust Act, 1959 (Act No. 42 of 1959). We further hold sub-sec. 3 of sec. 17 ultra vires the State Legislature. In the circumstances of the case we direct the parties to bear their own costs of this writ petition. ;