TaxTMI 
TaxTMI 
1997 (2) TMI 602
X X X X Extracts X X X X
X X X X Extracts X X X X
....r X applies as required under Section 52(2) of the Act and specially to include the temple of Shri Rikhabdevji, which is directly managed by the State and to appoint a Committee of Management in terms of Section 53 of the Act; (iii) to quash the judgment of the Devasthan Commissioner, dated 25-3-80 and direct registration of the trust under the Act. Certain persons have been permitted as intervenors by the Court who claim the right of management of the temple on the ground that the temple does not belong only to two sects of Jain Swetamber or Digamber but the Hindu public and they are the persons interested in the public trust. At the very outset, it is made clear that neither of the parties pressed for nor I feel it necessary to determine at this stage the question whether the temple is a Swetambar temple or a Digamber temple which would be a question of fact and will require appreciation of evidence. 3. In village Dhulev nearly 40 miles from Udaipur in Rajasthan, there exists a very ancient Jain temple of Shri Rikhabdevji also known as temple of Shri Keshariya Nathji. The main idol is that of Shri Rikhabdevji, the first Tirthanker of Jains and other idols in the said Devrie....
X X X X Extracts X X X X
X X X X Extracts X X X X
....agement of the said temple as provided in the Act. 7. In D. B. Civil Writ Petition No, 407/ 1962, the petitioners had also contended that the administration and management of Nakodaji Parasnath Temple (another temple) was being carried on by the Trust Committee on behalf of the Swetamber Jain Sangh in which the entire property of the temple vested. It was further contended that in view of the powers vested in the State Govt. in Sub-clause 2 of Section 52 of the Act, there was an imminent danger of the State Govt. taking over the management and administration of the Trust and that the provisions of the Act, if enforced would go contrary to the religious faith of the petitioners. Accordingly, the petitioners contended th,at certain provisions of the Act were unconstitutional. The High Court, inter alia, held that the provisions of Section 52, Sub-clause (1)(d) and (e) of the Act were ultra vires (inasmuch as Section 53(5) empowered the State Govt. to appoint persons on the Committee of the Management, who might not necessarily be of the same denomination which managed the Trust. The High Court rejected other contentions of the petitioners. Against the judgment of the High Court....
X X X X Extracts X X X X
X X X X Extracts X X X X
....erties and management of the temple had vested in the Ruler, and thereafter in the State continued to be law by virtue of Article 372 of the Constitution till it was repealed by the impugned Act. Since the respondents lost the right to manage and administer the temple and its properties prior to the Constitution by a valid law, they cannot now regain that right on the plea that that law contravenes the right guaranteed under Article 26(d) of the Constitution. In Durgah Committee, Ajmer v. Syed Hussain Ali AIR 1961 SC 1402:(1962) 1 SCR 383 it was observed at p. 414 that -- "If the right to administer the properties never vested in the denomination or had been validly surrendered by it or has otherwise been effectively and irretrievably lost to it. Article 26 cannot be successfully invoked." To the contention that the right to manage the temple and its properties falls under Article 26(b) and not under Article 26(d), the answer may be two-fold; (1) the Jains, whether Swetamber or Digamber, had lost the right before the Constitution and Article 26 would not re-invest the right in them; (2) the administration of property, being dealt with in Article 26(d), should be deemed to be exclud....
X X X X Extracts X X X X
X X X X Extracts X X X X
....of the math or a person of the religious persuasion to which the math belongs". Even where the persons interested satisfy the above requirements the additional requirement of Clause (b) of Sub-section (5) of Section 53 is that such persons must be also persons for whose benefit the trust was founded. A reading of Clause (a) of Sub-section (5) clearly indicates that the trustees must represent the concerned religion or persuasion, which includes a denomination. It could not have been the intention to appoint a Committee of Management comprising trustees of a public trust of a particular religion or persuasion who do not belong to that religion or persuasion or denomination. Nor does Clause (b) of Sub-section (5) of Section 53 empower persons who do not belong in a denomination to be appointed to a public trust of that denomination. Again the word "denomination" is wide enough to include sections thereof, and it cannot therefore be said as the High Court seems to assume, that a section Of the denomination managing the property may not be the same as trustees of public trusts representing the same religion, even if the public trust has the same object as that of the public trust the m....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e same name or from amongst the persons who are not trustees but belong to the denomination to which trust belongs or/ and the person interested, i.e. a person who is entitled to attend or is in the habit of attending the performance of worship or service in the temple or who is entitled to partaking or is in the habit of partaking in the distribution of gifts thereof and who do subscribe or adhere to the tenets of the particular religion or denomination to which the trust belongs. 12. Sub-section (1) of Section 53 which applies to the temple of Shri Rikhabdevji, a public trust, authorises the State Govt. to appoint a Committee to manage the public trust from such date as the State Govt. may appoint. Under Sub-section (2) of Section 53 on or before such date is fixed in respect of a public trust, the State shall constitute, by notification in the Official Gazette a Committee of Management and such Committee shall be deemed to be working trustee of the said public trust and its endowment. Under sub section (5) of Section 53 the Chairman and members of a Committee of Management shall be appointed by the State Govt. by notification in 'the Official Gazette from amongst -- (a) t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ikihab-devji, Dhulev. The Assistant: Devasthan Commissioner has dismissed the application filed, by the petitioners by his judgment in matter No. 1 dated 30-9-76. The petitioners preferred an appeal to the Devasthan Commissioner and the same has been dismissed vide his judgment dated 25-3-1980. Thus, the Devasthan Commissioner has: held that the registration cannot be made under the Act. However, he has further held that the appellants could not be given any relief under Section 52/53- This order of the Devasthan Commissioner is under challenge. The trust cannot be registered as a public trust Under Section 17 of the Act because the management of the trust is vested in the State Govt. and Section 77 of the Act excludes the application of the provisions of the Public Trust Act if the public trust is administered by any agency under the control of the State Govt. and thus, the finding recorded by the Devasthan Commissioner as regards registration of the trust is correct and does not require any interference. The other finding that the petitioners could not be given any relief Under Section 52/53 is contrary to the decision of the Supreme Court and is, therefore, set aside. 15. Cha....