judgement:
Appeals Nos. 2024 and 2025 of 1972.
786 C. K. Daphtary, R. C. Misra, Advocate General for the State of Orissa, Santosh Chatterjee and G. section Chatterjee, for the appellants (in both the appeals).
M. C. Setalvad and Vinoo Bhagat, for respondent No. 1 (in C.A. No. 2024 of 1971).
Vinoo Bhagat, for respondent No. 1 (in C.A. No. 2025 of 1971).
The Judgment of the, Court was delivered by Hegde, J.
These appeals by certificate raise common questions of law for decision.
The questions of law arising for decision can be more conveniently brought out if the material facts are first set out.
It is sufficient, if we refer to the facts in Civil Appeal No. 2024 of 1971.
The 1st respondent in Civil Appeal No. 2024 of 1971 is carrying on the business of selling country liquor. 'In pursuance of the order made by the State of Orissa, the Excise Commissioner notified on January 8, 1971 that the exclusive privilege of selling by retail the country liquor in the eight specified shops in the Cuttack District for the period from April 1, 1971 to March 31, 1972 will be sold by public auction on February 15, 1971 and on the following days.
The auction was accordingly held on the notified day.
The 1st respondent was the highest bidder for those eight shops.
His bids were provisionally accepted by the Collector subject to confirmation by the Government.
The Government rejected those bids being of the view that inadequate price had been offered as a result of collusion between the bidders.
It ordered the Excise Commissioner to call for tenders in respect of those shops.
After the tenders were duly received, the Government accepted the tender in respect of one shop and rejected the other tenders as it was again of the opinion that the price offered was inadequate.
Thereafter it sold the seven shops by negotiating with some of the tenderers.
The price ultimately fetched was substantially more than that offered either at the auction or as per tenders.
Thereafter the 1st respondent moved the, High Court of Orissa under article 226 of the Constitution for a direction to the Government to confirm his bids and cause the necessary licences to be issued to him.
Various pleas were taken in support of the relief asked for.
Such of them that were pressed before us will be referred to later.
The Government resisted that application.
The High Court came to the conclusion that the Government had no power to refuse to confirm the bids of the highest bidders except on good grounds and the ground that had commended itself to the Government for refusing to confirm the bids were irrelevant.
It 787 also opined that the absolute power conferred on the Government to confirm or refuse to confirm the highest bids without giving any reason was an unguided power and consequent by violative of articles 14 and 19 (1) (g) of the Constitution.
The High Court was further of the opinion that monetary considerations were irrelevant for 'deciding the question whether the highest bid should be confirmed or not.
Aggrieved by that decision, the State of Orissa has come up in appeal.
Before proceeding to pronounce on the contentions advanced at the hearing, it is convenient to set out the relevant provisions of law as well as the orders passed by the Government under section 29 of the Bihar and Orissa Excise Act, 1915 (as amended upto October 6, 1970) (to be hereinafter referred to as the Act).
The preamble to the Act reads "Whereas it is expedient to amend and reenact the law in the Province of Bihar and Orissa relating to the import, export, transport, manufacture, possession, and sale of certain kinds of liquor and intoxicating drugs; And whereas the previous sanction of the Governor General has been obtained,, under section 5 of the Indian Councils Act, 1892, to the passing of this Act; It is hereby enacted as follows Section 22 deals with the grant of exclusive privilege of manufacture and sale of country liquor or intoxicating drugs.
To the extent it is material for our present purpose, it reads : "The State Government may grant to any person, on such conditions and for such period as it may think fit, the exclusive privilege (a). . . . . . (b). . . . . . (c). . . . . . (d). . . . . . (e) of manufacturing and supplying wholesale and selling retail, any country liquor or intoxicating drug within any specified local area : Provided that public notice shall be given of the intention to grant any such exclusive privilege, and that any objections made by any person residing within the area affected shall be considered before an exclusive 788 privilege is granted." Sub section
(2) says : "No grantee of any privilege under sub section
(1) shall exercise the same unless or until he has received a license in that behalf from the Collector or the Excise Commissioner.
" Section 29 deals with payment for grant of exclusive privilege.
It reads : "(1) Instead of or in addition to, any duty leviable under this Act, the State Government may accept payment of a sum in consideration of the grant.
of any exclusive privilege under section 22.
(2) The sum payable under sub section
(1) shall be determined as follows : (a) by calling tenders or by auction or otherwise as the State Government may, by general or special order direct; and (b) by such authority and subject to such control as may be specified in such order." Excise revenue is defined in section 2(9) : " "Excise revenue" means revenue derived or derivable from any duty, fee, tax, payment other than a fine imposed by a Criminal Court or confiscation imposed or ordered under this Act or any other law for the time being in force relating to liquor or intoxicating drugs and includes any payment to be made to the State Government under section 29.
" In exercise of the powers conferred by section 29(2) of the Act, the State Government issued an order on January 6, 1971 directing that any sum payable under the aforesaid section for grant of the exclusive privilege of manufacturing and selling by retail of country liquor shall, unless otherwise directed by the State Government, in any particular case or cases for any reason, 'be determined by auction to be held in accordance with the procedure specified below: "(i) the dates and centers for the auction shall be fixed and notified by the Excise Commissioner with the prior approval of Government and the Collector shall then issue notice for auction and give wide publicity to the same in such manner as ' he considers necessary, 15 days before the date fixed for commencement of the auction; (ii) the auction shall determine the amount of monthly consideration money and shall ordinarily 789 be conducted by the Collector and in his absence by the Additional District Magistrate; Provided that the State Government in by depute an officer from head quarters to aid and advise the officer conducting such sales; (iii) the officer conducting the auction may satisfy himself as to the solvency of any bidder and may not allow a person of doubtful solvency or a person to whom grant of a licence for retail sale of any intoxicant is prohibited under Orissa Excise Rules, 1965 to offer bids in the auction; (iv) the officer conducting the auction shall be at liberty to close the auction if he is satisfied that, there has not been sufficient or fair competition in which case he may publicly adjourn the auction, to a specified hour on the following day or on ' some other convenient day to be notified by him in the auction hall; (v) the highest bid in an auction shall ordinarily be, accepted provisionally by the Collector subject to confirmation by the State Government and in case where the officer conducting the auction, refuses to accept the highest bid as offered, he shall record the reasons for such non acceptance and shall report forthwith the same to the Excise Commissioner for further action after receipt of advances from the highest bidder; (vi) when any bid in an auction for an exclusive privilege or privileges is provisionally accepted by the Collector, the bidder shall deposit two months ' consideration money as an advance deposit which will be refunded in case the provisional acceptance is not confirmed by the State Government.
No sale shall be deemed to be final unless confirmed by the State Government who shall be at liberty to accept or reject any bid without assig ning any reason therefore; (vii) no licence for any exclusive privilege shall be granted until acceptance of the bid is confirmed by the State Government; (viii) when any bid in an auction for any exclusive privilege is provisionally accepted but the advance deposit is not paid, the exclusive privilege shall 790 be put to reauction as soon as possible at the risk and loss of the defaulter; (ix) all bids in an Auction shall be offered by the bidder in person or by his agent legally authorised for the purpose.
" As mentioned earlier in pursuance of the above order, the Collector held an auction in respect of the shops mentioned earlier.
The highest bidder had made the necessary deposits.
the Government did not accept his bids.
On March 7, 1971, the Government issued the following order "Whereas for determining the sums payable for the grant of exclusive privilege of manufacturing and selling by retail of country liquor auction had been held in the district of Cuttack in accordance with the procedure laid down in the order of the Government of Orissa in the Excise Department No. S.R.O. 12/71, dated the 6th January 1971; Whereas due to collusive bids among the bidders at the said auction it is not possible to determine the said sums in the aforesaid manner; Now, therefore, in exercise of the powers conferred by sub section (2) of Section 29 of the Bihar and Orissa Excise Act, 1915 (Bihar and Orissa Act 2 of 1915) read with the Order No. S.R.O. 12/71, dated the 6th January, 1971, the State Government do hereby direct that the procedure for determining the aforesaid sum in respect of the grant of exclusive privilege of manufacturing and selling by retail of country liquor in the local areas specified in the Schedules I for the year 1971 72 shall be as laid down in Schedule II hereof SCHEDULE I . .
SCHEDULE II 1.
The sum payable under sub section (1) of Section 29 of the said Act for grant of exclusive privilege of manufacturing and selling by retail of country liquor in the aforesaid local areas shall be determined by the Excise Commissioner by calling tenders which may be 791 for individual local area or for lots of such area as the Excise Commissioner may consider proper; 2.
Tender notice shall be issued by the Excise Com missioner and published in the Notice Board of his office the C uttack Collectorate and the offices of Sub Divisional Officers in that district and shall also be widely published in such manner as the Excise Commissioner considers necessary.
The tender notice shall, among other things,, mention that it is open to the State Government not to accept any tender or to order for calling fresh tenders or otherwise for such reason as they deem proper in the public interest; 4 to 8. . . . . . . 9.
The Excise Commissioner shall prepare a list of all the tenders received and submit the list with his recommendations of any particular tender with sufficient reasons alongwith the tender papers to the State Government for approval.
The tenderers whose tenders have been recommended for acceptance shall deposit two month 's consideration money as an advance deposit which will be refunded in case their tenders are not approved by Government.
10. . . . . . . " As mentioned earlier, the Government accepted the tender in respect of only one shop and sold the exclusive privilege to sell country liquor in other shops by negotiation.
Before us the writ petitioners did not challenge the validity of any of the provisions in the Act; possibly in their own interest.
They are not interested in raising any contention which might vitiate the auctions held.
The contentions urged on behalf of the writ petitioners have to be examined, in the background that the provisions of the Act are not contended to be invalid.
One of the contentions taken on behalf of the writ petitioners was that the power retained by the Government "to accept or to reject any bid without assigning any reason therefore" in cl.
(6) of the order made by the Government on January 6, 1971 in exercise of its powers under section 29(2) of the Act was an arbitrary power and therefore it is violative of articles 14 and 1 9 ( 1 (g).
This contention has been upheld by the High Court.
It was urged on behalf of the writ petitioners that they have a fundamental right to carry on trade or business in country liquor.
That right can 792 be regulated only by imposing reasonable restrictions in the interest of the general public.
Restrictions imposed by the order in question cannot be considered as reasonable restrictions in the interest of the general public.
It was further urged that the power retained by the Government to accept or to reject the highest bid without assigning any reason is an unguided power and hence it is violative of article 14.
These contentions were accepted by the High Court.
To us, none of these contentions appear to be well founded.
As seen earlier section 22 of the Act confers power on the Government to grant to any person on such conditions and for such period as it may think fit the exclusive privilege of selling in retail any country liquor.
Section 29 empowers the Government to accept payment of a sum in consideration for the grant of any exclusive privilege under section 22 either by calling tenders or by auction or otherwise as it may by general or special order direct.
The, powers conferred on the State Government by section 22 and section 29 are absolute powers.
As seen earlier, the validity of those provisions has not been challenged before us.
Under section 29(2) the Government had power to dispose of any of the exclusive privileges mentioned in section 22 either by calling for tenders or by auction or otherwise as it may by general or special order direct.
That being the amplitude of the power of the Government, we fail to see how the Government can be said to have conferred on itself arbitrary power under clause (6) of its order made on January 6, 1971, when it provided that : " No sale shall be deemed to be final unless confirmed by the State Government who shall be at liberty to accept or reject any bid without assigning any reason therefore.
" The power that the government reserved for itself under that clause is nothing more than what was conferred on it by the legislature under section 22 and section 29 of the Act.
It is not possible to challenge the validity of the order made without challenging the validity of section 29 itself.
It is true that this Court has ruled that the right to trade in intoxicating drugs is also a right to carry on any trade or business within the meaning of article 19 (1) (g) see Krishna Kumar Narula vs Jammu Kashmir State and ors(1).
At the same time, it was held by this Court in Cooverjee B. Bharucha vs The Excise Commissioner and the Chief Commissioner, Ajmer and ors.(2) that for determining reasonable restrictions within the meaning of Art ' 19 (6) of the Constitution on the right given under cl.
19 (1) (g) regard must be had to the nature of the business and the conditions prevailing in a particular trade; State has power to prohibit trades which are illegal or immoral or injurious to the health and (1) ; (2) ; 793 welfare of the public and there is no inherent right in a citizen to sell intoxicating liquors by retail.
In that case the court held that the provisions in the Excise Regulation 1 of 1915 purporting to regulate trade in liquor in all its different spheres are not invalid.
It was further held in that case that the charge of licence fee by public auction is more in the nature of a tax than a licence fee though it is described as a licence fee.
One of the purposes of the Regulation is to raise revenue.
Revenue is collected by the grant of contracts to carry on trade in liquor and these contracts are sold by auction.
The grantee is given a licence on payment of the auction price.
The Regulation specially authorises this.
The decision in Lala Harichand Sarda vs Mizo District Council and anr.
(1) relied on by the writ petitioner does not bear on the point under consideration.
it deals with power to grant or refuse to grant licence to trade in some ordinary commodity under Lushai Hill Distt.
Regulation.
Even apart from the power conferred on the Government under sections 22 and 29, we fail to see how the power retained by the Government under cl.
(6) of its order dated January 6, 1971 can be considered as unconstitutional.
As held by this Court in Cooverjee Bharucha 's case (supra), one of the important purpose of selling the exclusive right to sell liquor in wholesale or retail is to raise revenue.
Excise revenue forms an important part of every State 's revenue.
The Government is the guardian of the finances of the State.
It is expected to protect the financial interest of the State.
Hence quite naturally, the legislature has empowered the Government to see that there is no leakage in its revenue.
It is for the.
Government to decide whether the price offered in an auction sale is adequate.
While accepting or rejecting a bid, it is merely performing an executive function.
The correctness of its conclusion is not open to judicial review.
We fail to see how the plea of contravention of article 19(1)(g) or article 14 can arise in these cases.
The Government 's power to sell the exclusive privileges set out in section 22 was not denied.
It was also not disputed that those privileges could be sold by public auction.
Public actions are held to get the best possible price. 'Once these aspects are recognised, there appears to be, no basis for contending that the owner of the privileges in question who had offered to sell them cannot decline to accept the highest bid if he thinks that the price offered is inadequate.
There is no concluded contract till the bid is accepted.
Before there was a concluded contract, it was open to the bidders to withdraw their bids see Union of India and ors.
vs M/s. Bhimsen Walaiti Ram (2) .
By merely giving bids, the bidders had not acquired any vested rights.
The fact that the Government was the seller (1) ; (2) ; 794 does not change legal position once its exclusive right to deal with those privileges is conceded.
If the Government is the exclusive owner of those privileges, reliance on article 19(1)(g) or article 14 becomes irrelevant.
Citizens cannot have any fundamental right to trade or carry on business in the properties or rights belonging to the Government, nor can there be any infringement of article 14, if the Government tries to get the best available price for its valuable rights.
The High Court was wholly wrong in thinking that purpose of sections 22 and 29 of the Act was not to raise revenue.
Raising revenue as held by this Court in Cooverjee Bharucha 's case (supra) was one of the important purposes of such provisions.
The fact that the price fetched by the sale of country liquor is an excise revenue does not change the nature of the right.
The sale in question is but a mode of raising revenue.
Assuming that the question of arbitrary or unguided power can arise in a case of this nature, it should not be forgotten that the power to accept or reject the highest bid is given to the highest authority in the State i.e. the Government which is expected to safeguard the finances of the State.
Such a power cannot be considered as an arbitrary power.
If that power is exercised for any collateral purposes, the exercise of the power will be struck down.
It may also be remembered that herein we are not dealing with a delegated power but with a power conferred by the legislature.
The High Court erroneously thought that the Government was bound to satisfy the Court that there was collusion between the bidders.
The High Court was not sitting on appeal against the order made by the Government.
The inference of the Government that there was a collusion among the bidders may be right or wrong.
But that was not open to judicial review so long as it is not proved that it was a make believe one.
The real opinion formed by the Government was that the price fetched was not adequate.
That conclusion is taken on the basis of Government expectations.
The conclusion reached by the.
Government does not affect any one 's rights.
Hence, in our opinion the High Court misapplied the ratio of the decision of this Court in Barium Chemicals Ltd. and anr.
vs Company Law Board and ors.(1) and Rohtas Industries Ltd. vs section T. Agarwal (2) .
It was next urged that having had recourse to the auction method once, the Government was precluded from either calling for tenders or to sell by negotiation.
The High Court has accepted that contention.
We are unable to agree with the High Court in its conclusion.
Neither the provisions of the Act nor the order issued by the Government lend any support to such a conclusion.
(1) (2) ; 795 Once the Government declines to accept the highest bid, the auction held became useless.
Similar is the effect when the Government refused to accept the highest tender.
That left the Government free to have recourse to other methods.
The power given to the Government by the Act to sell the exclusive privilege in such other manner as it thinks fit is a very wide power.
That power is unrestricted.
It undoubtedly includes the power to sell the privileges in question by private negotiation.
It was urged that before adopting the method of selling the privileges by private negotiation.
The Government is required by section 29 (2) (a) to make an order that the, privileges in question will be sold by private negotiation.
The Government has failed to make such an order.
Hence the sales effected are invalid.
We, are, unable to accept these contentions.
In the cases of public auctions or in the case of calling for tenders, orders from the Government directing its subordinates to notify or hold the auctions or call for tenders is understandable.
Public auctions as well as calling for tenders are done by subordinate officials.
Further due publicity is necessary in adopting those methods.
TOP require the Government to make an order that it is going to sell one or more of the privileges in question by negotiating with some one is to make a mockery of the law.
If the Government can enter into negotiation with any person, as we think it can, it makes no sense to require it to first make an order that it is going to negotiate with that person.
We must understand a provision of law reasonably.
Section 29 (2) (a) does not speak of any order.
It says that "the State Government may by general or special order direct".
The direction contemplated by that provision is a direction to subordinate officials.
It is meaningless to say that the Government should direct itself.
In the result these appeals are allowed and the writ petitions dismissed.
No costs.
V.P.S. Appeals allowed.

summary:
The first respondent was carrying on business of selling country liquor.
In exercise of the powers conferred by section 29(2) of the Bihar and Orissa Excise Act, 1915, the appellant issued an Order and in pursuance of that Order a date was notified for selling by public auction the exclusive privilege.
of selling by retail, country liquor in 8 shops.
The respondent was the highest bidder but his bid was rejected because the Government was of the view that inadequate prices had been offered as a result of collusion between the bidders.
Thereafter, tenders were called for and the appellant accepted the tender in respect of one shop and rejected the others as it was again of the opinion that the price offered was inadequate.
Thereafter, the remaining 7 shops were ' sold by private negotiation for substantially higher prices.
A writ petition filed by the respondent in the High Court was allowed mainly on the ground that the power centered on the Government by cl.
(vi) of the Order, that no sale shall be deemed to be final unless confirmed by the State who shall be at liberty to accept or reject without assigning any reason, was an unguided power violative of articles 14 and 19(1) (g).
Allowing the appeal to this Court, HELD : (1) Section 22 of the Act confers power on the Government to grant to any person on such conditions and for such period as it may think fit the exclusive privilege of selling in retail country liquor; and section 29 empowers the Government to accept payment in consideration of the grant either by calling tenders or by auction or otherwise as it may by general order direct.
The powers conferred on the State Government by sections 22 and 29 are absolute.
The Government cannot be said to have conferred on itself arbitrary power under cl.
(vi) of its Order, passed under section 29(2), because, the power that the Government reserved for itself under that clause is nothing more than what was conferred on it by the Legislature under the sections.
Since the validity of the sections was not challenged the validity of the Order could not also be challenged.
[792 B F] (2) Even otherwise, one of the important purposes of selling the exclusive right to sell liquor in wholesale or retail is to raise revenue; and excise 'revenue forms an important part of every State 's revenue.
The Government is a guardian of the finances of the State and is expected to protect its financial interests.
The fact that the prices fetched by the sale of the privilege to sell country liquor is an excise revenue does not change the nature of the right in the Government.
Therefore, the 785 Legislature has empowered the Government to see that there is no leakage in the revenue.
It was for the Government to decide whether the price offered in an auction is adequate and the conclusion reached by the Government does not affect anyone 's rights.
[793 D F; 794 F G] (3) Public auctions are held to get the best possible price and there is no completed contract till the bid is accepted.
There is, therefore, no basis for, contending that the owner of the privileges who had offered to sell them cannot decline to accept the highest bid if he thinks that the price offered is inadequate, and, it makes no difference that the Government was the seller.
[793 G H; 794 A] (4) If the Government is exclusive owner of the privileges, the respondent could not rely on article 14 and 19(1)(g), because, citizens cannot have any fundamental right to trade or carry on business in the properties or rights belonging to Government, nor can there be any infringement of article 14 if Government tries to get the best available price for its valuable, rights.
Further there is no inherent right in a citizen to sell intoxicating liquor by retail.
[793 A; 794 A B] Coverjee B. Bharucha vs The Excise Commissioner and the Chief Commissioner, Ajmer and Ors., ' ; and Union of India and Ors.
vs M/s. Bhimsen Walait Ram, ; , followed.
(5) Assuming that the question of arbitrary or unguided power can be raised it should be remembered that the power to accept or reject the highest bid is given to the highest authority in the State, namely, the Government, which is expected to safeguard the finances of the State and it is not a case of delegated power but of power conferred by the Legislature.
While accepting or rejecting a bid Government is performing an executive function and the correctness of its conclusion is not open to Judicial review where the power is not used for any collateral purpose.
[793 F , 794 C E] (6) The real conclusion.
of the Government was that the price fixed was inadequate and hence High Court erred in thinking that the Government was bound to satisfy the Court that there was collusion between the bidders.
[794 E F] Barrium Chemicals Ltd. and Anr.
vs Company Law Board and Ors.
[1966] Supp.
S.C.R. 311 and Rohtas Industries Ltd. vs section T. Agarwal; , referred to.
(7) The Government was not precluded, having had recourse to the auction method once, from either calling for tender or selling by negotiations.
Once the Government declines to accept the highest bid or the tender price offered, the government was free to have recourse to other methods.
The pow(* given to the Government to sell in such other manner as it thinks fit is a very wide and unrestricted power and includes within it the power to; sell the privilege by private negotiation.
[795 A B] (8) The Government is not required by section 29 (2) (a) to make an order that the privilege will be sold by private negotiation, since, it makes no sense to require Government to first make an order that it is going to negotiate.
The section only says that the State Government 'may by general or special order direct ' and the direction contemplated is one to subordinate officials and not to itself.
[795 D F]


judgement:
ns Nos. 13, 14, 70, 83, 437, 438, 439, 440, 441, 442, 443 and 444 of 1971.
Under Article 32 of the Constitution of India for the enforce, ment of the Fundamental Rights.
R. Gopalakrishnan, for the petitioners (in W.Ps.
Nos. 13 and 14 of 1971).
K. Parasaran and K. Jayaram, for the petitioners (in W.P. No. 70.of 1971).
M. Natesan and K. Jayaram, for the petitioners in (W.P. No. 83 of 1971).
K. Parasaran and M. Narasimhan, for the petitioners (in W.P. No. 437 of 1971).
V. G. Ramchandran and M. section Narasimhan, for the petitioners (in W.P. Nos. 438 and 444 of 1971).
M. Natesan and M. section Narasimhan, for the petitioners (in W.Ps.
Nos. 439 and 443 of 1971).
section Annadurai Ayyangar and M. section Narasimhan, for the petitioners (in W.P. No. 441 of 1971).
N. A. Palkhiwala, A. J. Rana and M. section Narasimhan, for the petitioners (in W.P. No. 442 of 1971).
M. section Narasimhan, for the petitioner (in W.P. No. 440 of 1971).
818 S Govind Swaminadhan, Advocate, General for the State of Tamil Nadu, section Mohan, N. section Sivan and A. V. Rangam, for the respondent (in all the petitions).
The Judgment of the Court was delivered by Palekar, J.
In these 12 petitions under Article 32 of the Constitution filed by the hereditary Archakas and Mathadhipatis of some ancient Hindu Public temples in Tamil Nadu the validity of the Tamil Nadu Hindu Religious and Charitable Endowments (Amendment) Act, 1970 (hereinafter referred to as the Amendment Act, 1970) is called in question, principally, on the ground that it violates their freedom of religion secured to them under Articles 25 and 26 of the Constitution.
The validity of the Amendment Act had been also impugned on the ground that it interfered with certain other fundamental rights of the petitioners but that ease was not pressed at the time of the hearing.
The temples with which we are concerned are Saivite and Vaishnavite temples in Tamil Nadu.
Writ Petitions 70, s3, 437, 438, 439, 440 441, 442, 445 and 444/71 are filed by the Archakas, and I Writ Petitions 13 and 14/1971 are filed by the Mathadhipatis to whose Math some temples are attached.
As, common questions were involved in all these petitions, arguments were addressed principally in Writ Petitions 13/1971 and 442/ 1971, and we are, assured by counsel for both sides that they cover the points involved In all the other petitions.
The State Legislature of Tamil Nadu enacted The Tamil Nadu Hindu religious and Charitable Endowments Act, 1959 being (Tamil Nadu Act xxii of 1959) hereinafter referred to as the principle Act.
It came into force on December 2, 1959.
It was an Act to amend and consolidate the law relating, to the administration and governance of Hindu Religious an Charitable Institutions and Endowments in the State of Tamil Nadu.
it applied to all Hindu religious public institutions and endowments in the we of Tamil Nadu and repeated several Acts which had previously governed the administration of Hindu Public Religious Institutions.
It is sufficient to say here that the provisions of the Principal Act applied to the temples in the present Petitions and the petitioners have no complaint against any of its provisions.
Section 55 of that Act provided for the appointment of office holders and servants in such temples, and section 56 provided for ;he, punishment of office holders kind servants.
Section 55, broadly speaking, gave the trustee of the temple the power to appoint the office holders or servants of the temple and ;also provided that where the office or service is hereditary the person next in the line of succession shall be entitled to succeed.
In only 819 exceptional cases the trustee was entitled to depart from the, principles of next in the line of succession, but even so, the, trustee was under an obligation to appoint a fit person to perform the functions of the office or perform the service after having due, regard to the claims of the members of the family, Power to make rules was given to Government by section 116 (2) (xxiii) and it was open to the Government to make rules providing for the qualifications to be possessed by the Officers and servants for appointment to non hereditary offices in religious institutions, the qualifications to be possessed by hereditary 'servants for succession to office and the conditions of service of all such officers and servants.
Under this rule making power the State Government made the Madras Hindu Religious Institutions (Officers and Servants) Service Rules, 1964.
Under these rules an Archak or Pujari of the deity came under the definition of 'Ulthurai servant '. 'Ulthurai servant ' is define as, a servant whose duties relate mainly to the performance of rendering assis tance in the performance, of pujas, rituals and other services to the deity, the recitation of mantras, vedas, prabandas, the varams and similar invocations and the performance of duties connected with such performance of recitation.
Rule 12 provided that every 'ulthurai servant ', whether hereditary or nonhereditary whose duty it is to perform pujas and recite mantras, vedas, prabandams, thevarams and other invocations shall, before succeeding, or appoint to an office, obtain a certificate of fitness for performing his office, from the head of an institution imparting instructions in Agamas and ritualistic matters and recognised by the Commissioner, by general or special order or from the head of, a math recognised by the Commissioner, by general or special order, or such other person as may be designated by the Commissioner, from time to time, for the purpose.
By this rule the proper worship in the temple, was secured whether the Archaka or Pujari was a hereditary Archaka or Pujari or not.
Section 107 of the Act emphasized that nothing contained in the Act shall, save as otherwise provided in section 106 and in clause (2) of Article 25 of the Constitution, be deemed to confer any power or impose any duty in contravention of the rights conferred on any religious denomination or any section thereof by Article 26 of the Constitution.
Section 106 deals with the removal of discrimina tion in the matter of distribution of prasadam or theertham to the Hindu worshippers.
That was a reform in the right direction and there is no challenge to it.
The Act as a whole, it is conceded, did not interfere with the religious usages and practices of the temples.
The Principal Act of 1959 was amended in certain respects by the Amendment Act of 1970 which came into, force on January 820 8, 1971.
Amendments were made to sections 55, 56 and 116 of the Principal Act and some consequential provisions were made in view of those amendments.
The Amendment Act was enacted as a step towards social reform on the recommendation of the Committee on Untouchability, Economic and Educational Development of the Scheduled Castes.
The Statement of Objects and Reasons which are reiterated in the counter affidavit filed on behalf of the State of Tamil Nadu is as follows : "In the year 1969 the committee on untouchability, Economic and Educational Development of the Scheduled Castes has suggested in its report that the hereditary priesthood in the Hindu Society should be abolished, that the system can be replaced by an ecclesiastical Organisation of men possessing the requisite educational qualifications who may be trained in recognised institutions in priesthood and that the line should be open to all candidates irrespective of caste, creed or race.
In Tamil Nadu Archakas, Gurukkals and Poojaries are all Ulthurai servants in Hindu temples.
The duties of Ulthurai servants relate mainly to the performance of poojas, rituals and other services to the deity, the recitation of mantras, vedas, prabandas, the varams and similar invocations and the performance of duties connected with such performance and recitations.
Sections 55 and 56 of the Tamil Nadu Hindu Religious and Charitable, Endowments Act, 1959 (Tamil Nadu Act 22 of 1959) provide for appointment of office holders and servants in the religious institutions by the trustees by applying the rule of hereditary succes sion also.
As a step towards social reform Hindu temples have already been thrown open to all Hindus irrespective of caste. .
In the light of the recommendations of the Committee and in view of the decision of this Court in Gazula Dasaratha Rama Rao vs State of Andhra Pradesh & Ors.(1) and also as a further step towards social reform the Government considered that the here ditary principle of appointment of all office holders in the Hindu temples should be abolished and accordingly it proposed to amend sections 55, 56 and 116 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 (Tamil Nadu Act XXII of 1959).
It is the complaint of the petitioners that by purporting to introduce social reform in the matter of appointment of Archakas and Pujaris, the State has really interfered with the religious (1) ; 821 practices of Saivite and Vaishnavite temples, and instead of introducing social reform, taken measures which would inevitably lead to defilement and desecration of the temples.
To appreciate the effect of the Amendment Act, it would be more convenient to set out the original sections 55, 56 and 116 of the Principal Act and the same sections as they stand after the amendment.
Unamended Section Sec.
55 Appointment of office holders and servants in religious institutions.
(1) Vacancies, whether permanent or temporary, among the office holders or servants of a religious institution shall be filled up by the trustee in cases where the office or service is not here ditary.
(2)In cases where the office or service is hereditary, the person next in the line of succession shall be entitled to succeed.
(3) Where, however, there is a dispute respecting the right of succession, or where such vacancy cannot be filled up immediately or where the person entitled to succeed is a minor without a guardian fit and willing to act as such or there is a dispute respecting the person who is entitled to act as guardian, or where the hereditary officeholder or servant is on account of incapacity illness or otherwise unable to perform the functions of the office or perform the service, or is suspended from his office under sub section (1) of section 56, the trustee may appoint a fit person to perform the functions of the office or perform the service, until the disability of the office holder or servant ceases or another person succeeds to the office or service, as the case may be.
Amended Section Sec.
55 Appointment of office holders and servants in religious institutions.
(1) Vacancies, whether permanent or temporary among the office holders or servants of a religious institution shall be filled up by the trustee in all cases.
Explanation: The expression 'Office holders or servants shall include archakas and poojaris. ' (2) No person shall be entitled to appointment to any vacancy referred to in sub section (1) merely on the ground that he is next in the line of succession to the last holder of office.
(3) Omitted.
822 Explanation : In making any appointment under this subsection, the trustee shall have due regard to the claims of members of the family, if any, entitled to the succession.
(4) Any person aggrieved by an order of the trustee under sub section (3) may, within one month from the date of the receipt of the order by him, appeal against the order to the Deputy Com missioner.
56 Punishment of office holders and servants in religious institutions.
(1) All Office holders and servants attached to a religious institution or in receipt of any emolument or prequisite therefrom shall, whether the office or service is hereditary or not, be controlled by the trustee; and the trustee may, after following the prescribed procedure, if any, fine, suspend, remove or dismiss any of them for the breach of trust incapacity, disobedience of orders: neglect of duty, misconduct or other sufficient cause.
(2) Any office holder or servant punished by a trustee under sub section(1) may, within one month from the date of the receipt of the order by him, appeal against the order to the Deputy Commissioner.
(3) A hereditary officeholder or servant may, within one month from the date of the receipt by him of the order of the Deputy Commissioner under sub section (2), prefer an appeal to the Commissioner against such order.
116 (xxiii) (1) The Government may, by notification, make rules to carry out the purposes of this act.
(2) Without prejudice to the generality of the foregoing power, such rules may provide for (Xxiii) The qualifications to be possessed by the officers and servants ' for appointment to nonhereditary offices in religious in stitutions, the qualifications to be possessed by hereditary servants for succession to office and the conditions of service of all such officers and servants.
(4) Any person aggrieved by an order of trustee under section (1) may within one month from the date of receipt of the order by him appeal against the order of the, Deputy Commissioner.
56 Punishment of office holders and servants in religious institutions (1) All office holders and servants attached to a religious institution or in receipt of any emolument or perquisite therefrom shall be controlled by the Trustee and the trustee may after following the prescribed procedure, if any, fine, suspend, remove or dismiss any of them for breach of trust, incapacity, disobedience of orders, neglect of duty, misconduct or other sufficient cause.
(2) Any office holder or servant Punished by a trustee under sub section (1) may within one month from the date of receipt of order by him appeal against the order to the Deputy Commissioner.
(3) Omitted.
II 6 (xxiii) (xxiii) The qualifications to be possessed by the officers and servants for appointment to offices in religious institution and the conditions of service of all such officers and servants.
823 It is clear from a perusal of the above provisions that the Amendment Apt does away with the hereditary right of succession to the Office of Archaka even if the, Archaka was qualified under Rule 12 of the Madras Hindu Religious Institutions (Officers and Servants) Service Rules, 1964.
It is claimed on behalf of the petitioners that as a result of the Amendment Act, their fundamental rights under Article 25(1) and Article 26(b) are violated since the effect of the amendment is as follows : (a) The freedom of hereditary succession to the office of Archaka is abolished although succession to it is an essential and integral part of the faith of the Saivite and Vaishnavite worshippers.
(b) It is left to the Government in power to prescribe or not to prescribe such qualifications as they may choose to adopt for applicants to this religious office while the Act itself gives no indication whatever of the principles on which the, qualifications should be based.
The statement of Objects and Reasons which is adopted in the counter affidavit on behalf of the State makes it Clear that not only the scope but the object of the Amendment Act is to over ride the exclusive right of the denomination to manage their own affairs in the matter of religion by appointing Archakas belonging to a specific denomination for the purpose of worship (c) The Amendment Act gives the right of appoint ment for the first time to the trustee who is under the control of the Government under the provisions of the Principal Act and this is the very negation of freedom of religion and the principle of non interferance by the State as regards the practice of religion and the right of a denomination to manage its own affairs in the matter of religion.
Before we turn to these questions, it will be necessary to refer to certain concepts of Hindu religious faith and practices to understand and appreciate, the position in law.
The temples with which we are concerned are public religious institutions established in olden times.
Some of them are Saivite temples and the others are Vaishnavite temples, which means, that in these temples God Shiva and Vishnu in their several manifestations are Worshipped.
The image of Shiva is worshipped by his worshippers who are called Saivites and the image of Vishnu is worshipped by his worshippers who are known as Vaishnavites.
The institu 824 tion of temple worship has an ancient history and, according to Dr. Kane, temples of deities had existed even in the 4th or 5th century B.C. (See : History of Dharmasastra Vol.
II Part II page 710. ) With the construction of temples the institution of Archakas also came into existence, the Archakas being professional men who made their livelihood by attending on the images.
Just when the cult of worship of Siva and Vishnu started and developed into two distinct cults is very difficult to say, but theme can be no doubt that in the times of the Mahabharata these cults were separately developed and there was keen rivalary between them to such an extent that the Mahabharata and some of the Puranas endeavoured to inculcate a spirit of synthesis by impressing that there was no difference between the two deities.
(See page 725 supra.) With the establishment of temples and the institution of Archakas, treatises on rituals were compiled and they are known as 'Agamas '.
The authority of these Agamas is recognised in several decided cases and by this Court in Sri Venkataramana Devaru vs The State of Mysore(1).
Agamas are described in the last case as treatises of ceremonial law dealing with such matters as the construction of temples, installation of idols therein and conduct of the worship of the deity.
There are 28 Aganias relating to the Saiva temples, the important of them being the Kamikagama, the Karanagama and the Suprabedagama.
The Vaishnavas also had their own Agamas.
Their principal Agamas were the Vikhanasa and the Pancharatra.
The Agamas contain ela borate rules as to how the temple is to be constructed, where the principal deity is to be consecrated, and where the other Devatas are to be installed and where the several classes of worshippers are to stand and worship.
Where the temple was constructed as per directions of the Agamas the idol had to be consecrated in accordance with an elaborate and complicated ritual accompanied by chanting of mantras and devotional songs appropriate to the deity.
On the consecration of the image in the temple the Hindu worshippers believe that the Divine Spirit has descended into the image and from then on the image of deity is fit to be worshipped.
Rules with regard to daily and periodical worship have been laid down for securing the continuance of the Divine Spirit.
The rituals have a two fold object.
One is to attract the lay worshipper to participate in the worship carried on by the priest or Archaka.
It is believed that when a congregation of worshippers participates in the worship a particular attitude of aspiration and devotion is developed and confers great spiritual benefit.
The second object is to preserve the image from pollution, defilement or desecration.
It is part of the religious belief of a Hindu worshipper that when the image is polluted or defiled the Divine Spirit in the image diminishes or even vanishes.
That is a situation (1) ; 825 which every devotee or worshipper looks upon with horror.
Pollution or defilement may take place in variety of ways.
According to the Agarnas, an image becomes defiled if there is any departure or violation of any of the rules relating to worship.
In fact, purificatory ceremonies have to be performed for restoring the sanctity of the shrine ; (910)].
Worshippers lay great, store by the rituals and whatever other people,.
not of the faith, may think about these rituals and ceremonies, they are a part of the Hindu Religious faith and cannot be dismissed as either irrational or superstitious.
An illustration of the importance attached to minor details of ritual is found in the case of His Holiness Peria Kovil Kelvi Appan Thiruvenkata Ramanuja Pedda Jiyyangarlu Varlu vs Prathivathi Bhayankaram Venkatachrlu and others(1) which went up to the Privy Council.
The contest was between two denominations of Vaishnava worshippers of South India, the Vadagalais and Tengalais.
The temple was a Vaishnava temple and the controversy between them involved the question as to how the invocation was to begin at the time of worship and which should be the concluding benedictary verses.
This gives the measure of the importance attached by the worshippers to certain modes of worship.
The idea most prominent in the mind of the worshipper is that a departure from the traditional rules would result in the pollution or defilement of the image which must be avoided at all costs.
That is also the rationale for preserving the sanctity of the Garbhangriha or the sanctum sanctorum.
In all these temples in which the images are consecrated, the Agamas insist that only the qualified Archaka or Pujari step inside the sanctum sanctorum and that too after observing the daily disciplines which are imposed upon him by the Agamas.
As an Archaka he has to touch the image in the course of the worship and it is his sole right and duty to touch it.
The touch of any body else would defile it.
Thus under the ceremonial law pertaining to temples even the question as to who is to enter the Garbhagriha or the sanctum sanctorum and who is not entitled to enter it and who can worship and from which Place in the temple are all matters of religion as shown in the above decision of this Court.
The Agamas have also rules with regard to the Archakas.
In Saivite temples only a devotee of Siva, and there too, one belonging to a particular denomination or group or sub group is entitled to be the Archaka.
If he is a Saivite, he cannot possibly be an Archaka in a Vaishnavite Agama temple to whatever caste he may belong and however learned he may be.
Similarly, a Vaishnavite Archaka has no place as an Archaka in a Saivite temple.
Indeed there is no bar to a Saivite worshipping in a Vaishnavite temple as a lay worshipper or vice versa.
What the Agamas pro (1) 73 Indian Appeals 156.
826 hibit is his appointment as an Archaka in a temple, of a different denomination ' DR.
Kane has quoted the Brahmapurana on the topic of Punah pratistha (Re consecration of images in temples) at page 904 of his History of Dharmasastra referred to above.
The Brahmapurana says that "when an image is broken into two or is reduced to particles, is burnt, is removed from its pedestal, is insulted, has ceased to be worshipped, is touched by beasts like donkeys or falls on impure ground or is worshipped with mantras of other detities or is rendered impure by the touch of outcastes and the like in these ten contingencies, God ceases to indwell therein.
" The Agamas appear to be more severe in this respect.
Shri R. Parthasarthy Bhattacharya, whose authority on Agama literature is unquestioned, has filed his affidavit in Writ Petition No. 442 of 1971 and stated in his affidavit, with special reference to the Vaikhanasa Sutra to which he belongs, that according to the texts of the Vaikhansa Shastra (Agama), persons who are the followers of the four Rishi traditions of Bhrigu, Atri, Marichi and Kasyapa and born of Vaikhanasa parents are alone competent to do puja in Vaikhanasa temples of Vishnavites.
They only can touch the idols and perform the ceremonies and rituals.
None others, however, high placed in society as pontiffs or Acharyas, or even other Brahmins could touch the idol, do puja or even enter the Garbha Griha.
Not even a person belonging to another Agama is competent to do puja in Vaikhanasa temples.
That is the general rule with regard to all these sectarian denominational temples.
It is, therefore, manifest that the Archaka of such a temple besides being proficient in the rituals appropriate to the worship of the particular deity, must also belong, according to the Agamas, to a particular denomination.
An Archaka of a different denomination is supposed to defile the image by his touch and since it is of the essence of the religious faith of all worshippers that there should be no pollution or defilement of the image under any circumstances, the Archaka undoubtedly occupies in important place in the matter of temple worship.
Any State action which permits the defilement or pollution of the image by the touch of an Archaka not authorised by the Agamas would violently interfere with the religious faith and practices of the Hindu worshipper in a vital respect, and would, therefore, be prima facie invalid under Article 25(1) of the Constitution.
This Court in Sardar Syadna Taher Saifuddin Saheb vs The State of Bombay(1) has summrised the position in law as follows (pages 531 and 532).
"The content of articles 25 and 26 of the Constitution came up for consideration before this Court in the Commissioner, Hindu Religious Endowments Madras (1) ; 827 vs Sri Lakshmindra Thirtha Swamiar of Sri Shirur Matt(1); Mahant Jagannath Ramanuj Das vs The State of Orissa(2); Sri Venkatmona Devaru vs The State of Mysore(3); Durgah Committee, Ajmer vs Syed Hussain Ali(4) and several other cases and the main principles underlying these provisions have by these decisions been placed beyond controversy.
The first is that the protection of these articles is not limited to matters of doctrine or belief they extend also to acts done in pursuance of religion and therefore contain a guarantee for rituals and observances, ceremonies and modes of worship which are integral parts of religion.
The second is that what constitutes an essential part of a religious or religious practice has to be decided by the courts with reference to the doctrine of a particular religion and include practices which are regarded by the community as a part of its religion.
" Bearing these principles in mind, we have to approach the controversy in the present case.
Section 55 of the Principal Act as it originally stood and Rule 12 of the Madras Hindu Religious Institutions (Officers and Servants) Service Rules, 1964 ensured, so far as temples with hereditary Archakas were concerned, that there would be no defilement of the image.
By providing in sub section (2) of section 55 that "in cases, where the office or service is hereditary, the person next in the line of succession shall be entitled to succeed", it ensured the personal qualification of the Archaka that he should belong to a particular sect or denomination as laid down in the Agamas.
By Rule 12 it also ensured that the Archaka would be proficient in the mantras, vedas, prabandams, thevarams etc.
and thus be fit for the preformance of the puja, in other words, that he would be a person sufficiently qualified for performing the rituals and ceremonies.
As already shown an image becomes defiled if there is any departure or violation of any of the rules relating to worship, and this risk is avoided by insisting that the Archaka should be an expert in the rituals and the ceremonies.
By the Amendment Act the principle of next in the line of succession is abolished.
Indeed it was the claim made in the statement of Objects and Reasons that the hereditary principle of appointment of office holders in the temples should be abolished and that the office of an Archaka should be thrown open to all candidates trained in recognised institutions in priesthood irrespective of caste.
creed or race.
The trustee, so far as the amended section 55 went, was authorized to appoint any body as an Archaka in (1) ; (2) ; , (3) ; (4) [1962] 1 S.C.R,.
828 any temple whether Saivite or Vaishnavite as long.
as he possessed a fitness certificate from one of the institutions referred to in rule 12.
Rule 12 was a rule made by the Government under the Principal Act.
That rule is always capable of being varied or changed.
It was also open to the Government to make no rule at all or to prescribe a fitness certificate issued by an institution which did not teach the Agamas or traditional rituals.
The result would, therefore, be that any person, whether he is a Saivite or Vaishnavite or not, or whether he is proficient in the rituals appropriate to the temple or not, would be eligible for appointment as an Archaka and the trustee 's discretion in appointing the Archaka without reference to personal and other qualifications of the Archaka would be unbridled.
The trustee is to function under the control of the State, because under section 87 of the Principal Act the trustee was bound to obey all lawful orders issued under the provisions of the Act by the Government, the Commissioner, the Deputy Commissioner or the Assistant Commissioner.
It was submitted that the innocent looking amendment brought the State right into the sanctum sanctorum through the agency of the trustee and the Archaka.
It has been recognised for a long time that where the ritual in a temple cannot be performed except by a person belonging to a denomination, the purpose of worship will 'be defeated : See Mohan Lalji vs Gordhan Lalji Maharaj(1).
In that case the claimants to the temple and its worship were Brahmins and the daughter 's sons of the founder and his nearest heirs under the Hindu law.
But their claim was rejected on the, ground that the temple was dedicated to the sect following the principles of Vallabh Acharya in whose temples only the Gossains, of that sect could perform the rituals and ceremonies and, therefore, the claimants had no right either to the temple or to perform the worship.
In view of the Amendment Act and its avowed object there was nothing, in the petitioners submissions to prevent the Government from prescribing a standardized ritual in all temples ignoring the Agamic requirements, and Archakas being forced on temples from denominations unauthorised by the Agamas.
Since such a departure, as already shown, would inevitably lead to the defilement of the image, the powers thus taken by the Government under the Amendment Act would lead to interference with religious freedom guaranteed under Articles 25 and 26 of the Constitution.
The force of the above submissions made on behalf of the petitioners was not lost on the learned Advocate General of Tamil Nadu who appeared on behalf of the State.
He, however, side tracked the issue by submitting that if we, were to consider in (1) 35 Allahabad (p.c) 283 at page 289.
829 isolation only the changes introduced in section, 55 by the Amendment Act the situation as described on behalf of the, petitioners could conceivably arise.
He did not also admit that be was bound by either the statement of Objects and Reasons or the reiteration of the same in the counter affidavit filed on behalf of the State.
His submission was that we have to take the Principal Act as it now stands after the amendment and see what is the true effect of the same.
He contended that the power given to, the trustee under the amended section 55 was not an unqualified power because, in his submission, that power had to be read in the context of section 28 which controlled it.
Section 28(1) provides as follows : "Subject to the provisions of the Tamil Nadu Temple Entry Authorization Act 1947, the trustee of every religious institution is bound to administer its affairs and to apply its funds and properties in accordance with the terms of the trust, the usage of the institution and all lawful directions which a competent authority may issue in respect thereof and as carefully as a man of ordinary prudence would deal with such affairs, funds and properties if they were his own.
" The learned Advocate General argued that the, trustee was bound under this provision to administer the affairs of the temple in accordance with the terms of the trust and the usage of the institution.
If the usage of the institution is that the Archaka or Pujari of the temple must be of a particular denomination then the usage would be binding upon him and he would be bound to make the appointment under section 55 in accordance with the usage of appointing one from the particular denomination.
There was nothing in section 55, in his submission, which released him from his liability to make the appointment in accordance with the said usage.
It was true that the principle of the next in line of succession was not binding on him when making the appointment of a new Archaka, but in his submission, that principle is no part of the usage, the real usage being to appoint one from the deno mination.
Moreover the amended section, according to him, does not require the trustee to exclude in every case the hereditary principle if a qualified successor is available and there was no reason why the trustee should not make the appointment of the next heir, if found competent.
He, however, agreed, that there was no such legal obligation on the trustee under that section.
He further contended that if the next in line of succession principle is regarded as a usage of any particular temple it would be merely a secular usage on which legislation was, competent under Article 25 (2) (a) of the Constitution.
Going further, he contended that if the hereditary principle was regarded as a religious 7 L1061Sup CT/72 830 practice that would be also amenable to legislation under Article 25 (2) (b) which permits legislation for the purpose of social welfare and reform.
He invited attention to the report of the Hindu Religious Endowments Commission ( 1 960 1962) headed by Dr. C. P.Ramaswami Aiyar and submitted that there was a crying need for reform in this direction since the hereditary principle of appointment of Archakas had led to grave malpractices Practically destroying the sanctity of worship in various religious institutions.
We have found no difficulty in agreeing with the learned Advocate General that section 28( 1 ) of.
the Principal Act which directs the trustee to administer the affairs of the temple in accordance with terms of the trust or the usage of the institution, would control the appointment of the Archaka to be made by him under the amended section 55 of the Act.
In a Saivite or a Vaishnavite temple the appointment of the Archaka will have to be made from a specified, denomination, sect or group in accordance with the directions of the Agamas governing those temples.
Failure to do ski would not only be contrary to section 28 (1) but would also interfere with a religious practice the inevitable result of which would be to defile the image.
The question, however, remains whether the trustee, while making appointment from the specified denomination, sect or group in accordance with the Agamas, will be bound to follow the hereditary principle as a usage peculiar to the temple.
The learned Advocate General contends that there is no such invariable usage.
It may be that, as a matter of convenience, an Archaka 's son being readily available to perform the worship may have been selected for appointment as an Archaka from times immemorial.
But that, in his submission, was not a usage.
The principle of next in line of succession has failed when the successor was a female or had refused to accept the appointment or was under some disability.
In all such cases the Archaka was appointed from the particular denomination, sect or group and the worship was carried on with the help of such a substitute.
It, however, appears to us that it is now too late in the day to contend that the hereditary principle in appointment was not a usage.
For whatever reasons, whether of convenience or otherwise, this hereditary principle might have been adopted, there can be no doubt that the principle had been accepted from antiquity and had also been fully recognised in the unamended section 55 of the Principal Act.
Sub section (2) of section 55 provided that where the office or service is hereditary, the person next in the line of succession shall be entitled to succeed and only a limited right was given under sub section (3) to the trustee to appoint a substitute.
Even in such cases the. explanation to sub section (3) provided that in making the appointment of the substitute the trustee should have, due regard to the claims.of the members of the family, if any.
entitled to the succession.
Therefore, it cannot be denied as a 831 fact that there are several temples in Tamil Nadu where the appointment of an Archaka is governed by the. usage of hereditary succession.
The real question, therefore, is whether such a usage should be regarded either as a secular usage or a religious usage.
If it is a secular usage, it is obvious,legislation would be permissible under Article 25(1) (a) and if it is a religious usage it would be, permissible if it falls squarely under sub section 25 (1) (b).
Palkhivala on behalf of the petitioners insisted that the appointment of a person to a religious office in accordance with the hereditary principle is itself a, religious usage and amounted to a vital religious practice, and, hence falls within Articles 2 5 .
and 26.
In his submission, priests, who are to perform religious ceremonies may be chosen by a temple on such basis as the temple chooses to adopt.
It may be election, selection, competition.
nomination or hereditary succession.
He, therefore, contended that any law which interferes with the aforesaid basis of appointment would violate religious freedom guaranteed by Articles 25 and 26 of the Constitution.
In his submission the right to select a priest has an immediate, bearing on religious practice and the eight of a denomination to manage its own affairs in matters of religion.
The priest is more important than the ritual and nothing could be more vital than chosing the priest.
Under the pretext of social reform.
he contended, the State cannot reform a religion out of existence and if any denomination has accepted the hereditary principle.for chosing its priest that would be a religious practice vital to the religious faith and cannot be changed on the ground ,that it leads to social reform.
Mere substitution of one method of appointment of the, priest by another was, in his submission no social reform.
It is true that a priest or an Archaka when appointed has to perform some religious functions but the question is whether the appointment of a priest is by, itself a secular function or a religious practice.
Mr. Palkhivala gave the illustration of the spiritual head of a math belonging to a denomination of a Hindu sect like the Shankaracharaya and expressed horror at the idea that such a spiritual head could be, chosen by a method recommended by the State though in conflict with,the usage and the traditions of the particular institution.
Where, for example, a successor of a Mathadhipati is, chosen by the Mathadhipati by giving hit" mantra deeksha or where the Mathadhipati is chosen by his immediate disciples, it would be, he contended, extra ordinary for the State to interfere and direct that some other mode of appointment should be followed on the ground of social reform.
Indeed this may strike one as an instrusion in the matter of religion.
But, we are affraid such an illustration is inapt when we. are considering the appointment of an Archaka of a temple.
The Archaka has 832 never been regarded as a spiritual head of any institution.
He may be, an accomplished person, well versed in the Agamas and rituals necessary to be performed in a temple but he does not have the status of a spiritual head.
Then again the assumption made that the Archaka may be chosen in a variety of ways is not correct.
The Dharam karta or the Shebair makes the appointment and the Archaka is a servant of the temple.
It has been held in K., Seshadri Aiyangar v, Ranga Bhattar(1) that even the position of the hereditary Archaka of a temple is that of a servant subject to the disciplinary power of the trustee.
The trustee can enquire into the conduct of such a servant and dismiss him for misconduct.
As a servant he is subject to the discipline and control of the trustee as recognised by the unamended section 56 of the Principal Act which provides "all office holders and servants attached to a religious institution or in receipt of any emolument or perquisite therefrom shall, whether the office or service is hereditary or not, be.
controlled by the trustee, and the trustee may, after following the prescribed procedure, if any, fine, suspend, remove or dismiss any of them for breach of trust, incapacity, disobedience of orders, neglect of duty, misconduct or other sufficient cause.
" That being the position of an Archaka, the act of his appointment by the trustee is essentially secular.
He owes his appointment to a secular authority.
Any lay founder of a temple may appoint the Archaka.
The Shebaits and Managers of temples exercise essentially a secular function in choosing and appointing, the Archaka.
That the son of an Archaka or the son 's son has been continued in the office from generation to generation does not make any difference to the principle of appointment and no such hereditary Archaka can claim any right to the office.
See : Kali Krishna Ray vs Makhan Lal Mookerjee(2); Nanabhai Narotamdas vs Trimbak Balwant Bhandare(3) and Maharanee Indurjeet Keoer vs Chundemun Misser(4).
Thus the appointment of an Archaka is a secular act and the fact that in some temples the hereditary principle was followed in making the appointment would not make the successive appointments anything but secular.
It would only mean that in making the appointment the trustee is limited in respect of the sources of recruitment.
Instead of casting his net wide for selecting a proper candidate, he appoints the next heir Of the last holder of the office.
That after his appointment the Archaka performs worship is no ground for holding that the appointment is either a religious Practice or a matter of religion.
In view of sub section (2) of section 55, as it now stands amended, the choice of the trustee in the matter of appointment of (1) I.L.R. 35 Madras 631.
(2) I.L.R. (3) 87 80) Vol.
4 Unreported Printed Judgments of the Bombay High Court page 169.
(4) XVI Weekly Reporter, 99. 833 an Archaka is no longer limited by the operation of the rule of next in line of succession in temples where the usage was to appoint the Archaka on the hereditary principle.
The trustee is not bound to make, the appointment on the sole ground that the candidate is the next in line of succession to the last holder of Office.
To that extent, and to that extent alone, the trustee is released from the obligation imposed on him by section 28 of the Principal Act to administer the affairs in accordance with that part of the usage of a temple which enjoined hereditary appoint ments.
The legislation in this respect, as we have shown, does not interfere with any religious practice or matter of religion and, therefore, is not invalid.
We shall now take separately the several amendments which were challenged as invalid.
Section 2 of the Amendment Act amended section 55 of the Principal Act and the important change which was impugned on behalf of the petitioners related to the abolition of the hereditary principle in the appointment of the Archaka.
We have shown for reasons already mentioned that the change effected by the Amendment is not invalid.
The other changes effected in the other provisions of the Principal Act appear to us to be merely consequential.
Since the hereditary principle was done away with the words "whether the office or service is hereditary or not" found in section 56 of the Principal Act have been omitted by section 3 of the Amendment Act.
By section 4 of the latter Act clause (xxiii) of subsection (2) in section 116 is suitably amended with a view to deleting the reference to 'the qualifications of hereditary and non hereditary offices which was there in clause (xxiii) of the Principal Act.
The change is only consequential on the amendment of section 55 of the Principal Act.
Sections 5 and 6 of the Amendment Act are also consequential on the amendment of sections 55 and 56.
These are all the sections in the Amendment Act and in our view the Amendment Act as a whole must be regarded as valid.
It was, however.
submitted before us that the State had taken power under section 116(2) clause (xxiii) to prescribe qualifica tions to be possessed by the Archakas and, in view of the avowed object of the State Government to create a class of Archakas irrespective of caste, creed or race, it would be open to the Government to prescribe qualifications for the office of an Archaka which were in conflict with Agamas.
Under Rule 12 of the Madras Hindu Religious Institutions (Officers and Servants) Service Rules, 1964 proper provision has been made for qualifications of the Archakas and the petitioners have no objection to that rule.
The rule still continues to be in force.
But the petitioners.
apprehend that it is open to the Government to substitute any other rule for rule 12 and prescribe qualifications which were in conflict with 834 Agamic injunction.
For example at present the Ulthurai servant whose duty it, is to, perform, pujas and recite vedic mantras etc.
has to obtain the fitness certificate for his Office from the head of, institutions which impart instructions in Agamas and ritualistic mattors.
The; Government,, however, it is submitted, may hereafter change its mind, and prescribe qualifications which take no note "of Agamas and Agamic rituals and direct that the Archaka candidate? should produce a fitness certificate from an institution which, does not specialize in teaching Agamas and rituals.
It is submitted, that the Act does, not provide guidelines to the Government in; the matter of prescribing qualifications.
with regard to the fitness of an Archaka for performing the rituals and ceremonies in these temples and it will be open to the Government to prescribe a simple standardized curriculum for pujas in the several temples ignoring the tradition pujas and rituals followed in those temples.
In our opinion the, apprehensions ;of the petitioners are unfounded;, Rule 12 referred to above still holds the field and there is no good reason to think that the State Government wants to revolutinise temple worship by introducing methods of worship not current in the several temples.
The rule making power con ferred on the .
Government by section 116, is only intended with a view to carry out the purposes of the Act which are essentially secular.
The Act no where gives the indication that one of the purposes of the Art is to effect change in the rituals and cere monies: followed in the terms.
On the other hand, section 107 of the Principal Act emphasizes that nothing contained in the Act would be deemed to confer any power or impose any duty in con travention of 4th rights conferred on any religious denomination or any section there of by Article 26 of the Constitution.
Simi larly section 105 provides that nothing contained in the Act shall (a) save as otherwise expressly provided in the Act or the , rules made thereunder, affect any honour emolument or perquisite to which any person is entitled by custom or otherwise in any religious institution, or its established usage in regard to any other matter.
Moreover, if any rule is framed by the Government which purports to interfere with the rituals and ceremonies of the temples the same will be liable to be challenged by those who are interested in the temple worship.
In out opinion, therefore, the apprehensions now expressed by the petitioners are groundless and premature.
In the result these Petitions fail but in the circumstances of the case there shall be no order as to costs.
V.I.P.S. Petitions dismissel.

dataset_name: IN-Abs

summary:
Section 55 of the Tamil Nadu Hindu Religious.
and Charitable En dowments Act, 1959, gave the trustee of a temple the power to appoint the officer holders or servants of the temple and also provided that where the office or service is hereditary, the person next in the line of succession shall be entitled to succeed.
In only exceptional cases the trustee was entitled to depart from the principle of next in the line of succesion, but even so, the trustee was under an obligation to appoint a fit person to perform the service after having due regard to the claims of the members of the family.
Section II 6 (2) (xxiii) of the Act gave power to the Government to make rules providing for the qualifications to be possessed by the officers and servants and their conditions of service.
The State Government framed the Madras Hindu Religious Institutions (Officers and Servants) Service Rules, 1964.
Rule 12 provided that an Archaka, whether hereditary or nonhereditary whose duty it is to perform Pujas, shall, before succeeding to the office or appointment to the Office, obtain a certificate of fitness for performing the duties of his office from the head of an institution imparting, instructions in Agamas or from the ' head of a math recognised by the 'Commissioner or front such other person as may be designated by the Commissioner.
The Act was amended by the Amending Act of 1970.
The Amending Act did away with the hereditary right of succession to the office of Archaka.
The petitioners who were Archakas of saivite and Vaishnavite temples and Mathadhipatis to whose Maths temples are attached firm writ petitions in this Court contending that the amendments violated articles 25 and 26 of the Constitution.
Dismissing the petition HELD : (1) The protection of Arts, 25 and 26 of the Constitution is not limited to matters of, doctrine or believe, they extend also to ' 'acts done in pursuance of religion and therefore contain a guarantee for rituals and observances etc.
which are the integral parts of religion.
What constitutes aft essential part of a religion or religious practice has to be decided by the Courts with reference to the doctrine of at particular teli including practices which are regarded by the community as a part of its religion.
[8271] Sardar Syedna Taher Saifuddin Saheb vs The State of Bombay, [1962] *pp. 2 S.C.P. 490, referred to.
(2) With the establishment of temples and the, institution of Archakas in the temples, treatises on rituals were compiled known as Agamas .
The rituals have a two fold aspect, to attract the lay worshippers and to 816 preserve the image of the Deity from pollution, defilement or desecration.
Pollution or desecration may take place in a variety of ways and according to the Agamas, an image becomes defiled if there is any departure or violation of the rules relating to worship.
Further, in all the temples in which images are consecrated the Agamas insisted that only the qualified Archaka shall step inside the sanctum sanctorum after observing certain disciplines imposed by the Agamas.
Hence the Archaka of such a temple, besides being proficient in the rituals appropriate to the worship of the particular Deity, must also belong to a particular denomination; because, an Archaka of a different denomination would defile the image by his touch.
[825 F H; 826 E G] Sri Venkataramana Devaru vs The State of Mysore, [1958] S.C.R. 895, His Holiness Peria Kovil Kelvi Appean Thiruvenkata Ramanuja Pedda Jiyyangarlu Varlu vs Prathivathi Bhayankaram Venkatacharlu, 73 I.A. 156 and Mohan Lalji vs Gordhan Lalji Maharaj, 35 Allahabad P.C. 283, referred to.
(3) The hereditary principle in the appointment of an Archaka had been adopted and accepted from antiquity and had also been fully recognised in the unamended section 55.
But the change effected by the amendment to section 55, namely, the, abolition of the principle of next in the line of succession is however, not invalid, because, the usage is a secular and not a religious usage.
[833 A C] (a) An archaka has never been regarded as a spiritual head however accomplished and well versed in the agamas and rituals he may be.
He is a servant of the temple subject to the discipline and control of the trustee as recognised by the unamended section '56 of the Act.
That being his position the act of his appointment by the trustee is essentially secular, 'though after appointment he performs some religious functions.
That after his appointment he performs worship is no ground for holding that his appointment is either a religious Practice or a matter of religion.
He owes his appointment to a secular authority.
Any lay founder of a temple may appoint him and the She baits and Managers of temples .exercise an essentially secular function in choosing and appointing the Archaka.
The fact that in some temples the hereditary principle was followed in making the appointment would not make the successive appointments anything but secular.
[832 A G] K. Syedna Taher Saifuddin Saheb vs Ranga Bhattar, I.L.R. , Kali Krishna Ray vs Makhan Lal Mookerjee, I.L.R. , Nanabhai Narotamdas vs Trimbak Balwant Bhandare, (1878 80) Vol. 4 (Unreported printed judgments of the Bombay High Court p. 169) and Maharanee Indurjeet Koer vs Chundemun Misser, XVI Weekly Reporter, :89, referred to.
(b) The power given to the trustee under the amended section to appoint any body as an Archaka so long as he possessed a fitness certificate under r. 12 was not an unqualified power, because the power had to be read with section 28 of the Act which controlled it.
Section 28 directs the trustee to administer the affairs of the temple, in accordance with the terms of the trust or usage of the institution.
Therefore, the appointment of the Archaka ' will have to be made from the specified denomination, sect or group in accordance with the directions of the Agamas governing the temple.
In view of.
the amended section 55(2).
, the choice of the trustee in .the matter of appointment of an archaka is no longer limited by the Operation of next in line of succession in temples where the usage was 817 to appoint the Archaka on the hereditary principle.
To that extent the trustee is released from the obligation imposed on him by section 28 to administer the affairs in accordance with that part of the usage of a temple which enjoined hereditary appointments.
But the legislation in this fact does not interfere with any religious practice.
[832 H 833 C] (4) The other changes effected in the other provisions of the Act are merely consequential, and therefore, the Amendment Act as a whole must be regarded as valid.
[833 F] (5) The rule making power is conferred by section 116 on the Govern ment with a view to carry out the purposes of the Act which are essentially secular.
The Act nowhere gives the indication that one of its purposes is to effect a change in the rituals and ceremonies followed in the temples.
Section 105 and 107, on the contrary, emphasize that there shall not be any contravention of the rights conferred on any religious denominations of any section thereof, by article 26 of the Constitution.
Rule 12 still holds the field and there is no reason to think that the State Government would frame rules to revolutionise temple worship by introducing methods of worship not current in the several temples.
If any such rule is framed by Government which purports to interfere with the rituals and ceremonies of the temples, it will be liable to be challenged by those who are interested in the temple worship.
[834 C G]