judgement:
Civil Appeal No. 1784 of 1966.
Appeal from the judgment and decree dated March 17, 1952 of the Bombay High Court in Appeal No. 385 of 1948 from original decree.
276 D. Narsaraju, .4.
K. Sen, Balkrishan Acharya and S.S. Shukla, for respondents Nos. 3 and 4.
K. K, Jain, M.K. Garg and H.K. Puri, for respondents Nos.
13(a) to 13(f).
The judgment of the Court was delivered by Hegde J.
The main question for decision in this appeal is whether the Haveli at Nadiad in which the idol of Shree Gokulnathji is installed as well as the other properties detailed in plaint schedules A & B are the properties of a public religious trust created by the followers of Vallabh cult, residing at Nadiad.
The history of the suit institution and its management as also the various pleas taken by the parties have been elaborately set out by the High Court in a well considered judgment.
Hence we shall refer only to such pleas as are necessary to decide the contentions advanced before us.
The plaintiffs are the residents of Nadiad.
They are Vaishnavites.
They belong to the Vallabh Sampradaya.
They sued for a declaration that the properties mentioned in S.chs.
A & B of the plaint are properties oF the ownership of the trust ,mentioned earlier.
They are suing on behalf of the Vallabha Sampradayees residing at Nadiad.
According to their case as finally evolved that even during the last quarter of the 18th century, the Mandir of the Gokulnathji existed at Nagarwad in Nadiad Prant but in about 1821 a new Mandir was constructed by the followers of the Vallabha School at Santh Pipli, Nadiad and the idol of Gokulnathji which was previously worshiped at Nagarwad was taken and consecrated there.
In about 1831 they invited Goswami Mathuranathji, a direct descendant of Shree Vallabhacharya to come over to Nadiad and take up the management of the Mandir as its Maha Prabhu.
According to the plaintiffs the Mandir in question was constructed by the Vallabha Sampradayees and the expenses of the sevas as well as the utsavas performed in the Mandir were contributed by them.
They ,further say that the properties belonging to the trust were purchased from the contributions made by the devotees of that temple.
They assert that the persons belonging to the Vallabha Sampradaya have a right to have darshan of the deities in the Mandir, according to usage, as of right.
In short their case is that the Mandir in question is a place of public religious worship by the persons belonging to Vallabh Sampradaya and the Maha 'Prabhuji is ' only a trustee.
He has a right to reside in the upstair portion of the Mandir and further he can utilise a reasonable portion of the income of the trust, after meeting the requirements of the trust for his maintenance as well as the maintenance of the members of his family.
They contend that the suit properties were dedicated to Shri Gokulgathji 277 and the Maha Prabhu has no independent right of his own in those properties.
It is further said that the management of the temple was carried on efficiently by Mathuranathji and his descendants till about the time Annirudhalalji became the Maha Prabhu in Samy 1955.
Annirudhalalji under evil advice sought to.
secure the Jamnagar Gadi and for that purpose spent enormous sums of money from out of the funds belonging to the suit temple.
He also incurred considerable debts in that connection.
He died in Samy.
Thereafter defendant No. 1, his widow took over the management of the suit temple and its properties.
During her management she began to.
assert that she was the absolute owner of the suit properties including the suit temple.
She alienated several items out of the suit properties.
Hence they were constrained to bring the suit under appeal for the declaration mentioned earlier and also for a further declaration that the alienations effected by her are illegal, improper and unauthorised and not binding on the deity.
They also sought a mandatory injunction against defendants Nos. 2, 7 to 14 to restore lot No. 2 property in Sch.
A to defendant No. 1 for the benefit of the deity Shree Gokulnathji after declaring that the sale deed dated 19th April 1953 passed by defendant No. 1 to defendant No. 2 in respect of it is illegal, improper, unauthorised and without consideration and the same is not binding on the deity.
They have also asked for a permanent injunction against defendants 3, 4, 5 and 6 restraining them from enforcing the mortgages dated 4 3 1939, 27 1 1942, 12 1 1942 and 17 12 1941 passed by defendant No. 1 in their favour.
The suit was mainly contested by defendant No. 1 According to her Goswami Mathuranathji Maharaj was the owner of the idol Shri Gokulnathji.
It is he who established the Haveli at Nadiad and rounded his Gadi there; he was not only the owner of the Haveli but he.
was also the owner of the deities that were being worshiped in that Haveli.
She further pleaded that as per the tenets ,and usages of the Vallabha school, it is not possible for the members of that cult to found a temple.
They can only worship through the Acharya (Maha Prabhu) in his house known as Haveli.
According to.
their cult the Goswami Maharaj otherwise known as Maha Prabhu is the emblem of God head and the living representative of divinity.
She went further and took up the plea that according to the.
Vallabha Sampradaya no deity can own any property.
She further averred that Mathuranathji Maharaj and his descendants received from time to time presents and gifts made by his followers.
Those presents were made to them as a mark of reverence and respect to them and with a view to receive their grace.
They were the absolute owners of the idols they worshiped, the presents and gifts made to them and of the properties acquired by them.
She denied that the Haveli in which Shree Gokulnathji is worshiped is a public temple.
She also denied that the Vallabh Sampradayees were entitled L2Sup.
CI/70 6 278 to have the Darshana of that deity in that Haveli as of right.
She denied the plaint averments that all or any portion of the suit properties were acquired from the funds raised by the devotees or that the sevas or festivals were conducted from out of the contributions made by them.
She justified the impugned alienations mainly on the ground that she had absolute right to deal with the suit properties as she pleased.
The other defendants supported the defence taken by the Ist defendant.
They further pleaded that the alienations effected in their favour were supported by consideration and they were bona fide alienees and therefore those alienations they are not open to challenge.
The trial court dismissed the plaintiffs ' suit principally on the ground that as per the tenets and usages of Vallabha School it is impermissible for Vallabh Sampradayees to found a public temple and therefore, it is not possible to uphold the pleas advanced on behalf of the plaintiffs.
In appeal the High Court reversed the judgment and decree of the trial court.
It accepted the plaintiffs case that suit properties were the properties of a public religious trust and the alienations impeached were not valid and binding on the trust.
This appeal has been brought by the I st defendant.
The alienees have not appealed against the decree of the High Court.
In this Court they merely supported the pleas taken by the Ist defendant.
In this case voluminous evidence both oral and documentary has been led by the parties.
Fiftyone witnesses were examined in court and two on commission.
The oral evidence mainly relates to the tenets and beliefs of the devotees of the Vallabh Cult and the usages that prevail in their places of worship.
Before proceeding to examine the issues arising for decision in the case it is necessary to mention certain circumstances which have a bearing on those issues.
At the stage of pleadings it was common ground between the parties that Mathuranathji was the first person to be recognised as their Mahraj by the Vallabh Sampradayees of Nadiad.
The plaintiffs ' case as mentioned earlier, was that there was a temple of Shree Gokulnathji at Nagarwad in Nadiad even before Mathuranathji arrived ,at that place and according to them Mathuranathji had in fact been invited by the Vallabh Sampradayees of Nadiad to take over the manage ment of the temple that was already existing.
In her written statement defendant No.1 admitted that Mathuranathji was the first descendant of Vallabha to settle down in Nadiad.
According to her he brought with him the idol of Shree Gokulnathji and started worshiping that idol in his Haveli.
At a later stage the 1st defendant changed her version and put forward the theory that the ancestors of Mathuranathji had brought the idol of Shree 279 Gokulnathji to Nadiad and installed the same there long before Mathuranathji came to that place.
This significant deviation in the Ist defendant 's case has evidently been introduced to meet the evidence led on behalf of the plaintiffs about the existence of Gokulnathji temple even before Mathuranathji was born in 1806.
Yet another circumstance that has to be borne in mind in appreciating the evidence adduced by the parties is about the manner in which Mathuranathji and his descendants were managing the Haveli.
They had maintained regular and systematic accounts.
It is obvious they were maintaining two sets of accounts, one relating to.
the income and expenses of the deity and another relating to the personal income 'and expenses of the Maharaj.
But when the I st defendant was summoned to produce those accounts, the accounts relating to certain important periods were not produced and no satisfactory explanation is forthcoming for their non production.
From this omission the High Court has drawn the inference that those account books have been kept back as the evidence which those books would have afforded was not favorable to the 1st defendant 's case.
We agree with that conclusion.
Similarly certain important documents have been kept back by the 1st defendant.
Some of those documents were available at the time of the inventory but when the I st defendant was summoned to produce them she failed to do so.
This circumstance has again led the High Court to infer that those documents were deliberately kept back in order to suppress material evidence supporting the plaintiffs ' case.
Two of the important documents produced into court namely Exhs.
501 and 503 were found to have been tampered with.
501 appears to be a register of the temple properties but the title page of that book has been mutilated.
The top portion of that page had been clearly cut and removed.
It is reasonable to assume that the portion that has been removed contained the title of the register.
Possibly it mentioned that it is the property register of Shree Gokulnathji 's temple.
It is reasonable to draw this inference from the surrounding circumstances.
503 is the register relating to the expenses incurred for repairs of Shree Gokulnathji 's temple.
That register was also tampered with.
The original book was not made available to us for examination but the High Court which had the opportunity of examining that book has made the following remarks.
in its judgment: "a new slip was affixed to this document, and the heading which showed that the properties belonged to Shree Gokulnathji 's temple was torn out.
" The High Court has also held that Exh. 633, which evidences the sale of section No. 1840, was torn in such a way as to justify the plaintiffs complaint that in the torn portion was the description 280 of the Maharaj as the Vahiwatdar of the temple.
The High Court observed: "We have looked at all these three documents (Exhs. 501,503 and 633) and we are satisfied that the complaint made by the plaintiffs against the advisers of defendant No. 1 cannot be said to be without substance.
It seems to us clear, on examining these documents that the advisers of defendant No. 1 have unscrupulously tampered with the documents.
This conduct naturally raises suspicion against the defence, and we would be justified in drawing an inference against defendant No. 1 by holding that, if the books of account which have been kept back by her had been produced they would have supported the plaintiffs ' case.
We agree with these observations.
We may now proceed to examine the material on record for finding out 'the true character of the suit properties viz. whether they are properties of a public trust arising from their dedication of those properties in favour of the deity Shree Gokulnathji or whether the deity as well as the suit properties are the private properties of Goswami Maharaj.
In her written statement as noticed, earlier, the Ist defendant took up the specific plea that the idol of Shree Gokulnathji is the private property of the Maharaj the Vallabh Cult does not permit any dedication in favour of an idol and in fact there was no dedication in favour of that idol.
She emphatically denied that the suit properties were the properties of the deity Gokulnathji but in this Court evidently because of the enormity of evidence adduced by the plaintiffs, a totally new plea was taken namely that several items of the suit properties had been dedicated to Gokulnathii but the deity being the family deity of the Maharaj, the resulting trust is only a private trust.
In other words the plea taken in the written statement is that the suit properties were the private properties of the Maharaj and that there was no trust, private or public.
But the case argued before this Court is a wholly different one viz. the suit properties were partly the properties of a private trust and partly the private properties of the Maharaj.
The Ist defendant cannot be permitted to take up a case which is wholly inconsistent with that pleaded.
This belated attempt to bypass the evidence adduced appears to be more a manor than a genuine explanation of the documentary evidence adduced.
It is amply proved that ever since Mathuranathji took over the management of the shrine, two sets of account books have been maintained, one relating to the income and expenses of the shrine and the other relating to that of the Maharaj.
These account books and other documents show that 281 presents and gifts used to.
be made to the deity as well as to the Maharaj.
The two were quite separate and distinct.
Maharaj himself has been making gifts to the deity.
He has been, at times utilising the funds belonging to.
the deity and thereafter reimbursing the same.
The account books which have been produced clearly go.
to show that the deity and the Maharaj were treated as two different and distinct legal entities.
The evidence afforded "by the account books is tell tale.
In the trial court it was contended on behalf of the I st defendant that none of the account books produced relate exclusively to the affairs of the temple.
They all record the transactions of the Maharaj, whether pertaining to.
his personal dealings or dealings in connection with the deity.
This is an obviously untenable contention.
That contention was given up in the High Court.
In the High Court it was urged that two sets of account books were kept, one relating to the income and expenditure of the deity and the other of the Maharai, so.
that the Maharai could easily find out his financial commitments relating to the affairs of the deity.
But in this Court Mr. Narasaraju, learned Counsel for the appellant realising the untenability of the contention advanced in the courts below presented for our consideration a totally new case and that is that Gokulnathji undoubtly is a legal personality; in the past the properties had been dedicated in favour of that deity; those properties are the properties of a private trust of which the Maharaj was the trustee.
On the basis of this newly evolved theory he wanted to explain away the effect of the evidence afforded by the account books and the documents.
We are unable to accept this new plea.
It runs counter to the case pleaded in the written statement.
This is not a purely legal contention.
The I st defendant must have known whether there was any dedication in favour of Shri Gokulnathji and whether any portion of the suit properties were the properties of a private trust.
She and her adviser 's must have known at all relevant times the true nature of the accounts maintained.
Mr. Narasaraju is not right in his contention that the plea taken by him in this Court is a purely legal plea.
It essentially relates to questions of fact.
Hence we informed Mr. Narasaraju that we will not entertain the plea in question.
We shall now proceed to assess the evidence adduced in this case to find whether the plaintiffs have succeeded in establishing that the suit temple and the properties annexed thereto constitute a public trust.
Before doing so, it is necessary to examine certain basic contentions advanced on behalf of the appellant.
It is the case of the appellant that Vallabh Sampardaees cannot worship in a public temple; according to their cult they can have the Darshan of one or the other swaroops of Lord Krishna in the house of their Maharaj.
In Other words their cult prohibits public 282 worship.
They can only worship through their Maharaj and that too in his Haveli.
In support of this contention great deal of reliance was placed in the High Court and the trial court on the views expressed by Dr. Bhandarkar in his Works on 'Vaishnavism, S 'aivism and Minor Religous systems '.
The views expressed by Dr. Bhandarkar had greatly weighed with the trial court and it is mainly o.n the basis of those views, the trial court rejected the plaintiff 's suit.
The High Court after examining the doctrines of Vallabha School, its tenants and usages as well as the views expressed by eminent writers like Dr. Radhakrishanan and Dasgupta came to.
the conclusion that it would not be correct to.
say that worship.
in public temple is prohibited by the Vallabh cult though in the absence of any positive evidence it may be taken that the place where the Vallabha Sampardaees worship is a private temple.
It is not necessary for us to go into that controversy in view of the decision of this Court in Tilkavat Shri Govindlalji Maharaj vs The State of Rajasthan and ors.(1) In that case this Court was.
called upon to consider whether Nathdwara Temple in Udaipur, a temple rounded by the Vallabha Sampardaees is a public temple or not.
After examining the various treatises on the subject including Dr. Bhandarkar 's book on 'Vaishnavism, S 'aivism and Minor Religious Systems ', this Court observed (at p.585): "Therefore, we are satisfied that neither the tenets nor the religious practices of the Vallabha school necessarily postulate that the followers of the school must worship in a private temple.
Some temples of this cult may have been private even today.
Whether or not a particular temple is a public temple must necessarily be considered in the light of the relevant facts relating to it.
There can be No. general rule that a public temple is prohibited in Vallabha School.
" In view of this decision Mr. Narasaraju, learned Counsel for the appellant did not press forward the contention that the Vallabha School prohibits worship in public temple.
Yet another contention taken on behalf of the appellant is that the architecture of the building in which Gokulnathji is housed and the nature of that building is such as to show that it is not a public temple.
It was urged that building does not possess any of the characteristics of a Hindu temple.
It has not even a dome.
This contention again has lost much of its force in view of the decision of this Court referred to earlier.
Evidence establishes that Ballabha 's son and his immediate successor Vithaleshwar had laid down a plan for the construction of temples (1) [1964] 1 S.C.R. 561.
283 by the Vallabha Sampardaees.
He did not approve the idea of constructing rich and costly buildings.
for temples.
Evidently he realised that religious temple buildings were not safe under the Mohommedan rule.
For this reason he advised his followers to construct temples of extremely simple type.
The external view of those temples gave the appearance of dwelling houses.
It appears to be a common feature of the temples belonging to the Vallabha Sampardaees that the ground floor is used as the place of worship and the first floor as the residence of Goswami Maharaj, therefore the fact that Gokulnathji temple at Nadiad had the appearance of a residential house does not in 'any manner militate against the contention that the temple in question is a public temple.
It was said that according to the usage prevailing in that temple, the public are asked to enter the temple only after the Maharaj had finished his worship.
This circumstance again is of no consequence.
Each sect nay each temple has its own customs.
The usage pleaded by the appellant is not inconsistent with that temple being a public temple.
The appellant attempted to prove that on two occasions certain individuals were forbidden from entering the temple.
In the first place this plea has not been satisfactorily established.
Further according to the evidence adduced on behalf of the appellant those individuals were kept out of the temple because of some act of indiscipline on their part.
The power to manage a temple includes within itself the power to maintain discipline within the precincts of that temple.
The only other circumstance relied on by the appellant to establish that the temple in question is not a public temple is that the sale proceeds of Nagarwad Haveli were credited to the account of the Maharaj.
The learned judges of the High Court have carefully looked into that aspect.
After examining the relevant evidence on record they arrived at the conclusion that though initially the amount in question was credited to the account of the Maharaj, at a subsequent stage it was transferred to the account of the temple by means of adjustment entries.
The learned Counsel for the appellant was unable to satisfy us that this conclusion of the High Court was incorrect.
We shall now see how far the plaintiffs have succeeded in establishing that Gokulnathji Mandir is a public Mandir.
The burden of establishing that fact is undoubtedly on them.
Though most of the present day Hindu public temples have been found as public temples, there are instances of private temples becoming public temples in course of time.
Some of the private temples have acquired great deal of religious reputation 284 either because of the eminence of its founder or because of other circumstances.
They have attracted large number of devotees.
Gradually in course of time they have become public temples.
Public temples are generally built or raised by the public and the deity installed to enable the members of the public or a section thereof to.
offer Worship.
In such a case the temple would clearly be a public temple.
If a temple is proved to have originated as a .public temple, nothing more is necessary to be proved to show that it is a public temple but if a temple is proved to have originated as a private temple or its origin is unknown or lost in antiquity then there must be proof to show that it is being used as a public temple.
In such cases the true character of the particular temple is decided on the basis of various circumstances.
In those cases the courts have to.
address themselves to various questions such as : (1 ) Is the temple built in such imposing manner that it may prima facie appear to be a public temple? (2) Are the members of the public entitled to worship in that temple as of right ? (3 ) Are the temple expenses met from the contributions made by the public ? (4) Whether the sevas and utsavas conducted in the temple are those usually conducted in public temples ? (5) Have the management as well as the devotees been treating that temple as a public temple ? Though the appearance of a temple is a relevant circum stance, it is by no means.
a decisive one.
The architecture of temples differs from place to place.
The circumstance that the public or a section thereof have been regularly worshiping in the temple as a matter of course and they can take part in the festivals and ceremonies conducted in that temple apparently as a matter of fight is a strong piece of evidence to establish the public character of the temple.
If votive offerings are being made by the public in the usual course and if the expenses of the temple are met by public contribution, it is safe to presume that the temple in question is a public temple.
In brief the origin of the temple, the manner in which its affairs are managed, the nature and extent of gifts received by it, rights exercised by the devotees in regard to worship therein, the consciousness of the manager and the consciousness of the devotees themselves as to the public character of the temple are factors that go to establish whether a temple is a public temple or a private temple.
In 285 Lakshmana vs Subramania(1) the Judicial Committee was dealing with a temple which was initially a private temple.
The Mahant of this, temple opened it on certain days in each week to the Hindu public free to worship in the greater part of the temple, and on payment of fees in one part only.
The income thus received by the Mahant was utilised by him primarily to meet the expenses of the temple and the balance went to support the Mahant and his family.
The Privy Council held that the conduct of the Mahant showed that he had held out and represented to the Hindu public that the temple was a public temple at which all Hindus might worship and the inference was, therefore, that he had dedicated it to the public.
In Mundancheri Koman vs Achutan Nair,(2) the Judicial Committee again observed that the decision of the case would depend on the inferences to be derived from the evidence as to the way in which the temple endowments had been dealt with and from the evidence as to the public user of the temples.
Their Lordships were satisfied that the documentary evidence in the case conclusively showed that the properties standing in the name of the temples belonged to the temples and that the position of the manager of the temples was that of a trustee.
Their Lordships further, added that if it had been shown that the temples had originally been private temples they would have been slow to hold that the admission of the public in later times possibly owing to altered conditions would affect the private character of the trusts.
In Deoki Nandan vs Murlidar(3), this Court observed that the issue whether a religious endowment is a public.
or a private one is a mixed question of law and fact, the decision of which must depend on the application of legal concepts of a public and private endowment to the facts found.
Therein it was further observed that the distinction between a public and private endowment is that whereas in the former the beneficiaries, which means the worshipers are specific individuals and in the later the general public or class thereof.
In that case the plaintiff sought to establish the true scope of the dedication from the user of the temple by the public.
In Narayan Bhagwant Rao Gosavi Balajiwale vs Gopal Vinayak Gosavi and Ors.(4), this Court held that the vastness of the temple, the mode of its construction, the long user of the public as of right, grant of land and cash by the Rulers taken along with other relevant factors in that case were consistent only with the public nature of the temple.
In examining the evidence adduced by the plaintiffs in proof of the fact that the temple in question is a public.
temple we have to bear in mind the tests laid down by the courts for determining whether a given temple is a public temple or not.
(1) [1923] A.I.R. 1924 PC.
44 (2) (3) ; (4) ; 286 The case for the plaintiffs is that this temple originated as a public temple.
According to them it was rounded long before Mathuranathji was born; the idol of Gokulnathji was originally worshiped at Nagarwad and later on the suit temple was built and that idol installed therein.
We have earlier seen that the case of the I st defendant on this point was that the idol of Gokulnathji was the private property of Mathuranathiji.
Mathuranathji brought that idol alongwith him when he came to Nadiad and worshiped the same as his private deity.
This part of her case was given up at a later stage, and she put forward a new case to the effect that the idol Gokulnathji was brought by the ancestors of Mathuranathii to: Nadiad and it is they who started worshiping that idol at Nadiad.
From this it is clear that the appellant has no consistent case as to the origin of the worship of Gokulnathji at Nadiad.
The new plea put forward by her was evidently intended to meet the evidence adduced to show that the idol of Gokulnathji was being worshiped at Nadiad even before Mathuranathji was born.
In order to show that the idol of Gokulnathji was being worshiped in Nadiad even in the 18th century, oral evidence of local repute has been adduced by the plaintiffs.
In the very nature of things that evidence cannot, but be inconclusive.
In this connection the plaintiffs have also placed reliance on Exh.791, an extract showing the list of Devasthans in the Pargana of Nadiad to.
which the former Baroda State was making contributions, one of such Devasthan is the "Shree Gokulnathji".
This extract relates to Fasli Samvat 1833 (i.e. 1781 82 A.D.).
On the basis of this exhibit, we are asked to conclude that the suit temple was in existence even before 1781 82 A.D. The. evidence afforded by this document undoubtedly probabilises the version of the plaintiffs but it cannot be said with any definiteness that the entry in question relates to the suit temple.
Therefore it is not possible to come to a positive conclusion that the suit temple originated as a public temple nor there is any conclusive evidence before us to determine the date of its origin.
All that we can say is that the origin of this temple is lost in antiquity.
Therefore for determining whether it is a public temple or not we must depend on other circumstances.
It is established by the evidence on record that Gokulnathji is neither the Nidhi Swaroop nor Seva Swaroop of Mathuranathji 's branch.
Therefore it is unlikely that Mathuranathji branch would have installed the idol of Shree Gokulnathji for their private worship though the idol of Shree Gokulnathji is one of the Swaroops of Lord Krishna.
The plea taken by the appellant that Gokulnathji was one of the Nidhi Swaroop given to the branch of Mamuranathji by Vallabha is opposed to the documentary evidence produced by herself.
That plea has not been pressed before us for our acceptance.
287 From the account books produced in this case, it is clear that ever since 1965 two sets of accounts had been maintained by the Maharai, one relating to the temple and another relating to him.
The temple accounts are referred to as "Nichena Khata" and Maharaj 's accounts as "Uparna Khata".
At this stage we may emphasize that the evidence discloses that the entire ground floor is being used as the place of worship of Gokulnathji and upstairs portion as the residence of the Maharaj.
For the years 187 '7 to 1892, no books of account have been produced.
The appellant has stated that these books are not with her.
But this is not a satisfactory explanation for their disappearance.
The temple accounts for the years 1892 to 1894 have been produced but the personal accounts of the Maharaj for those years have not been produced.
Again for the years 1900 to 1907, only the temple accounts have been produced but for the period from 1908 and 1934 both the sets have been produced.
Again for the period 1935 to 1943, only the temple account books have been produced and not the personal account books of the Maharaj.
This pick and choose method adopted in the matter of producing account books unmistakably indicate that the appellant was deliberately keeping back unfavorable evidence.
Evidence on record establishes that some of the documents.
which were there at the time of the inventory were not produced when summoned.
Under those circumstances the High Court was justified in drawing an adverse inference against the appellant.
The existence of two sets of accounts ' clearly goes to indicate that the Maharajas had always considered the temple as an entity different from themselves.
That circumstance goes to negative the contention of the appellant that the deity was owned by the Maharaj and therefore the deity as well as the suit properties are his private properties.
Right back in 1861 under a gift deed executed by a devotee by name Bai Jasubai, two fields and a house were gifted in favour of the temple of Gokulnathji Maharaj at Nadiad.
The properties gifted by Jasubai were sold in 1865 and the sale proceeds credited in the 'Nichen Khata '.
In 1865 when Sri Vrairatna Maharaj left Nadiad he made a present of Rs. 5 to the idol of Shree Gokulnathii.
This was also.
credited in the 'Nichen Khata '.
Then we come to Exh.
593, an application made by several merchants and other residents of Nadiad to the Collector of Kaira in the year 1866.
That application recites that the ancestors of the applicants had voluntarily levied a cess known as Laga on several articles four the benefit of the suit temple.
Originally this Laga was separately recovered from the devotees by the Maharaj but later on at the request of the merchants the same 288 used to be recovered by the Government alongwith the custom duty and made over to Maharaj for the benefit of the temple.
Therein it was prayed that the newly established municipality should be directed to collect the Laga alongwith its dues and make up over to the Maharaj.
That application was signed by a large number of persons.
That application inter alia states : "There is a temple of Shree Gokulnathji at Nadiad.
A son of our preceptor, Shree Goswami Mathuranathji performs the seva in the said temple.
Our ancestors have granted for his expenses from the town a laga on several articles which may be received, a list whereof is enclosed herewith.
" The signatories to that application must have been familiar with the history of the suit temple.
We can reasonably assume that the facts stated therein are correct.
Those facts support the case ,of the plaintiffs.
We next go to the entries in the account books.
In the temple accounts for the year 1870, there is a credit entry of Rs. 27/4/It is in respect of the fine imposed by the Mahajan on three persons who appear to have played mischief at the time of darshan.
This entry clearly shows that the supervision of the 'temple, in a general sense, vested in the Mahajan of the place.
It appears from the accounts that in 1874, the Mahajan examined the account books of the temple see Exh.
This conduct on the part of the Mahajan would be inconsistent with the appellant 's claim that Gokulnath 's shrine is her private property.
In 1881 one Bai Harkore under her will made certain bequests in the name of the Gokulnathji Maharaj at Nadiad for providing Samagri for Shree Gokulnathii.
This is a bequest to.
the idol. 'Therein the.there is no refere.nce to the Maharaj.
Then we come to Exh.
534, under which a substantial portion of lot No. 1 of the :suit properties wherein the temple is situated was purchased on April 4, 1885.
The sale deed was taken in the name of Pari Pranvallabh Vrajlal and others on behalf of Shree Gokulnathji of Nadiad.
This is a clear indication that the deity of Gokulnathji was treated by the devotees as an independent legal entity.
Further the importance of this document is that it is taken in the name of the representatives of the public and not in the name of the Maharaj.
Under Exh. 691, a gift was made in 1888 in the name of Vrajratnalalji for and on behalf of Shree Gokulnathji temple.
The donor paid Rs. 1,200 and desired that a meal of six breads every day should be given till the temple exists to the person whom the Mabaraj would name and if the person named by the Maharai does not come to take the meal the same should be given to any visitor to the temple.
Still more significant is the bequest contained in Exh.
512, the will executed by one Bai 289 Vasant.
Under this will two bequests were made, one in favour of the temple of Shree Gokulnathji and the other in favour of the Maharani Vahuji who was then the Maharani of .the temple.
This will was executed on September 20, 1897.
Under a prior will executed by the same devotee (Exh. 189), the same distinction between the Maharaj and the temple is to.
be found.
That document was executed in 1888.
Similarly when bhets (presents) were made by .the devotees to the idol as well as to the Maharaj, they were separately credited in the respective account books.
As an illustration, we may refer to entries in the accounts books for the year 1896.
Therein Rs. 22 was credited to the temple accounts and Rs. 5 to the Maharaj 's personal account.
The account books clearly show the various presents made to the temple as well as to the Maharaj.
It is established by evidence that in 1896 when the question of taxing the income of the Maharaj came up for consideration, the Maharaj pleaded that the income of the temple cannot be treated as his income.
The balance sheets prepared in that connection showed the income of the temple separately from that of the Maharaj.
The correspondence that passed between the Maharaj and the authorities in that connection establishes beyond doubt that the Maharaj did not treat the income of the temple as his income.
The contention that the admission in question was made under wrong advice receives No. support from the evidence on record.
Similarly with regard to the payment of the municipal tax, the properties of the Maharaj had been treated separately from that of the temple.
In 1907 one Shah Chaganlal made a gift of some property to the temple.
That property was subject to a mortgage.
The donor directed that the Maharaj of the temple should divide the annual income of the mortgaged property into nine shares, out of which one share should be given for the samagri of Shree Gokulnathji Maharaj on posh vad 3rd of every year and eight shares of the income should be given for the samagri of the said Gokulnathji every year on Vaishakh Sud 8th.
In that document the Maharai was shown as the agent of the temple.
property was subsequently sold and the sale proceeds were credited to.
the temple accounts.
The: accounts show numerous other instances of receipts and expenses relating to the temple as distinguished from that of the Maharaj.
The High Court has enumerated those receipts and expenses with elaborate fullness.
It would be superfluous to.
refer to them.
The above mentioned instances go to falsify the contension of the appellant that the idol of Shree Gokulnathji was the private property of the.
Maharaj.
On the other hand they establish that the temple in question was treated by all concerned as a public temple.
290 In proof of her case that the suit temple and the properties are individual properties of the Maharaj, the appellant relied on the wills executed by Vrajratanlalji in 1882 and Maharani Vahuji in 1898.
Under the former the testator provided for the management of the properties mentioned therein after Iris death.
Therein he asserted his right to make vahivat according to his pleasure of movable and immovable properties shown in the will during his.
life time.
One of the stipulations in the will was that if he dies leaving no son, natural or adopted, those properties should go to his wife, as owner subject to the condition that the expenses of worship of "his Shree Thakorji" according to usage should come out of its income.
There are similar assertion in the will executed by Maharani Vahuji .in 1898.
These statements are at best self serving statements.
They have little evidentiary value.
They are likely to. have been made by the executants of those wills under a misconception as to their rights.
If the account books for the years 1877 to 1892 had been produced we would have been able to find out how Vrajratanlalji himself dealt with the properties of the temple.
There is clear, consistent and reliable evidence to show that Vallabha Sampardaees have been worshiping in the suit temple as of right.
There is also evidence to show that the temple has all along been primarily maintained from the contributions made by the devotees belonging to the Vallabha School.
The suit temple appears to be an important temple attracting a large number of devotees.
Utsavas and other festivals are performed in that temple in a reasonably grand scale.
The devotees as well as the Maharaj were treating that temple as a public temple.
From the facts proved we have no hesitation in agreeing with the High Court that the temple in question is a public.
temple.
This takes us to the question whether all or any of the properties detailed in the plaint schedule are proved to.
be that of the temple.
We have earlier come to the conclusion that the temple has been getting substantial contributions from its devotees in diverse ways.
It was also.
the recipient of several gifts.
It had adequate resources to make the acquisitions with which we are concerned in this case.
The temple is exclusively managed by the Goswamiji Maharaj.
It maintains regular accounts.
Maharaj also maintains his separate accounts.
Therefore it was easy for the appellant to.
prove the source from which the acquisitions in question were made and how their income was treated.
The appellant has led no evidence to show that they were her own properties.
She has failed to produce some of the accounts relating to the relevant periods.
In this background let us proceed to examine the title to the suit properties.
291 Lot No. 1 is.
the site in which the suit temple is situate.
It was conceded on behalf of the appellant that if we come to the conclusion that the suit temple is a public temple that item of property will have to. be considered as the property of the temple.
Lot No. 2 is.
the garden land in Survey No. 2031.
It is used for raising flowers for worship in the temple.
That land appears to have been granted to Mathuranathji but the appellant admitted in her deposition that that item of property was at all time managed by the Haveli and whoever is the owner of the Haveli is the owner of the garden.
This admission is corroborated by considerable other evidence.
Vaishnav merchants of Nadiad contributed for the expenses of installation of an electric pump in that garden and for its subsequent repairs.
All expenses incurred for that garden have always been debited and all income received therefrom credited to the temple accounts.
That garden is included in the Patriks of the temple property, prepared long before the present dispute arose.
When a part of that property was compulsorily acquired on three different occasions, the compensation received was credited to.
the temple account.
These circumstances.
conclusively establish that lot No. 2 is temple property.
Lot No. 3 is the building known as Goshala.
Its Survay survey No. is 994.
It is used for the purpose of tethering the cows reared for supplying milk and butter for the worship of Balkrishnalalji, one of the deities installed in the temple.
This property is included in Exh. 500 and 501.
It is shown in the property register as the property belonging to the Devasthan Charity.
The balance sheet prepared in 1896 treats the rent of the shops and houses in that site as the income from temple properties see Exh.
We think the High Court was right in concluding on the basis of this evidence that that item belongs to the temple.
Lot No. 4 is a shop bearing city survey No. 720.
This property was gifted by Kuber Jetha Vashram as per his will Exh. 673 for the samagri of the temple.
The bequest is made in favour of Shree Gokulnathji Maharai.
Hence this is clearly an item of property belonging to the suit temple.
Lot No. 5 is survey No. 121.
It is gifted under Exh.
610 dated June 29, 1868.
The gift is purported to have been made in favour of the Maharaj but the income from this property has always been credited to the temple accounts, the earliest entry being that of the year 1870.
In the property register, this property is shown as temple property and the rent note Exh.
535 is taken in the name of the Vahivatdar of Shree Gokulnathji.
Hence this item of the property should also be held to be that of the temple.
292 Lot No. 6 consists of 14 small items.
of property.
They are all agricultural fields.
They have been shown in the property register as the properties of the temple.
Out of 14 items in this lot, items No.s. 6, 9, 11, 12 and 14 originally belonged to the Maharaj but they have been all along dealt with by the Maharaj as temple property.
Item No. 1 in lot No. 6 belongs to the temple.
The mortgage Exh. 608 relates to this item and the same was executed in favour of the, temple on May 17, 1897.
A rent note in respect of this property was taken on April 22, 1915 in the name of the Vahivatdar of the temple.
Items 2, 3 and 4 of that lot are shown in the record of rights in the name of the Maharaj but the income from those properties and the expenses incurred for the same have always been entered in the temple accounts.
Item 5 of this lot had been gifted to the temple under Exh.
Item 8 of this lot had bee.n purchased in the name of the Maharani Vahuji on June; 2, 1897 for Rs. 1150.
The income of this property has been shown in the temple accounts.
far as item 10 is.
concerned though the record of rights stands in the name of the.
Maharaj personally, its sale p.rice (Rs. 800 0 6) has been credited to the temple accounts.
From all this it is clear that the temple is the owner of lot No. 6.
Now coming to.
lot No. 7, the entries in the account books clearly show that this is temple property.
The consideration for the purchase of a portion of it was paid from the temple funds.
A portion of that property had been gifted to the temple under Exh.
Lot No. 8 was purchased in 1877 from the temple funds and lot No. 13 was gifted to the temple.
Lo.t No. 9 was received by the temple under will Exh. 512 and lot No. 10 was always treated as temple property in the account books.
So also lot Nos. 11 and 12.
Similarly lots Nos. 13 and 14 were always being treated as temple properties.
We are in agreement with the learned judges of the High Court that the properties detailed in the plaint schedule are all temple properties.
For the reasons mentioned above this appeal must fail.
But before we conclude we should like to clarify one aspect which undoubtedly is implicit in the judgment of the High Court.
The Goswami Maharais o.r Maharanis are not mere managers.
In the temples belonging to the Vallabha School they have an important place.
The Maharaj is the Maha Prabhu.
The Vallabh devotees worship their deity through him.
It is true that the income from temple properties.
has to be primarily used for the expenses of the sevas and utsavas in the temple, the upkeep renovation and improvements of the temple premises but subject to these demands, the Maharaj has a right to utilise the temple income in 293 maintaining himself and his family in a reasonably comfortable manner.
The learned Counsel for the plaintiffs conceded this position.
This suit has been brought by the plaintiffs with the sole purpose of preserving the temples assets and maintaining its dignity.
They do not want to undermine the position or prestige of their Maha Prabhu.
In the circumstances of the case we see no useful purpose in directing the: appellant to pay the costs of the plaintiffs in this appeal.
She can only pay the same from temple funds.
The alienees have not appealed against the judgment of the High Court.
When we mentioned this aspect to Mr. S.T. Desai, learned Counsel for the plaintiffs he indicated that the parties may be left to bear their own costs in this appeal.
For the reasons mentioned above this appeal is dismissed but we make no order as to costs.

summary:
In deciding whether a temple is private or public, Courts have to address themselves to various questions such as: (1) Is the temple built in such imposing manner that it may prima facie appear to be a public temple ? (2) Are the members of the public entitled to worship in that temple as of right ? (3) Are the temple expenses met from the. contributions made by the public ? (4) Whether the sevas and utsavas conducted in the temple are those usually conducted in public temples ? (5) Have the management as well as the devotees been treating the temple as a public temple.
Though the appearance of a temple is a relevant circumstance, it is by no means 'a decisive one.
The architecture of temples differs from place to place.
The circumstance that the public or a section thereof have been regularly worshiping in the. temple as a matter of course and they can take part in the festivals 'and ceremonies conducted in that temple apparently as a matter of right is a strong piece of evidence to establish the public character of the temple.
If votive offerings are being made by the public in the usual course and if the expenses of the temple are met by public contribution, it is safe to presume that the temple question is a public temple.
In brief the origin of the temple.
, the manner in which its affairs are managed, the nature and extent of gifts received by it, rights exercised by the devotees in regard to worship therein, the consciousness of the manager and the consciousness of the devotees themselves as to the public character of the temple are factors that go to establish whether a temple is public temple or a private temple.
[286 H H] Tilkayat Shri Govindlalji Mahraj vs The State of Rajasthan and Ors.
,[1964] 1 S.C.R. 561; Lakshmana vs Subramania, (1923) A.I.R. 1924 P.C. 44; Mundancheri Koman vs Achutan Nair (1934) 61 I.A. 405; Deoki Nandan vs Murlidar, ; ; Narayan Bhagwant Rao Gosavi Balajiwle vs Gopal Vinayak Gosavi and Ors.
[1960] I S.C.R. 773; referred to.


judgement:
309 of 1953.
Under article 32 of the Constitution of India for the enforcement of Fundamental Rights.
K. C. Jain and B. P. Maheshwari for the petitioners.
K. B. Asthana and C. P. Lal for the respondents.
October 18.
The Judgment of the Court was delivered by DAS J.
This is a petition made under article 32 of the Constitution by the Chamber of Commerce, Hapur and three individual persons praying for a writ in the nature of mandamus directing the State of Uttar Pradesh and two of its officers in the Food Department to abstain from enforcing the Uttar Pradesh Food Grains (Futures and Options Prohibition) Order, 1945, or any orders or directions contained in the letters issued by the respondents copies whereof are annexed to the petition and marked B and D.
The facts and circumstances leading up to this application may be shortly stated at the outset.
The Chamber of Commerce, Hapur, is a company incorporated under the Indian Companies Act with its registered office at Hapur.
There are about 200 members of this Chamber of Commerce including petitioners Nos.
2 to 4.
Petitioner No. 3 is also its ?resident and Petitioner No. 2 is also a member of its Executive Committee.
The members of the Chamber carry on business in foodgrains including pulses both on ready and forward basis.
The Chamber acts as a clearing agent for a commission and guarantees the performance of forward contracts by its members upon payment of margin money according to the rules.
841 On or about the 1st September, 1945, the U. P. Government, in exercise of powers conferred on it by rule 81 (2) of the Defence of India Rules, issued Notification No. 8071/c.s.
promulgating the United Provinces Food Grains (Futures and Options Prohibition) Order, 1945, (hereinafter called "the 1945 Order").
Section 2 (a) of that Order defined " foodgrains" as meaning any of the foodgrains mentioned in the schedule thereto.
Arhar, peas, urd and moong were mentioned as items 6, 7, 8 and 9 of that schedule.
Section 3 provided as follows " 3.
No person shall (a)enter into any futures in foodgrains or pay or receive or agree to pay or receive any margin relating to any such futures; (b) enter into any options in foodgrains.
The Defence of India Rules expired on the 30th September, 1946, and consequently all orders made thereunder were also due to expire on the same date.
On the 1st October, 1946, however, there came into force the Essential Supplies (Temporary Powers) Ordinance, 1946 (hereinafter referred to as "the 1946 Ordinance") promulgated by the Governor General and published in the Gazette of India on the 25th September, 1946.
Section 3 of that Ordinance conferred on the Central Government extensive powers to control production, supply, distribution of and trade and commerce in, essential commodities as defined in section 2(a) thereof.
Section 4 authorised the Central Government to direct by notified order that the power to make orders under section 3 should, in relation to such matters and subject to such conditions as might be specified in the direction, be excercisable also by such officer subordinate to it or by such Provincial Government or such officer thereof as might be specified in the direction.
Section 5 of that Ordinance ran as follows : " 5.
Continuance in force of existing orders.
Until other provisions are made under this Ordinance, any order, whether notified or not, made by whatever authority under rule 80 B, or sub rule (2) or sub rule (3) of rule 81 of the Defence of India Rules, in respect 842 of any matter specified in section 3, which was in force immediately before the commencement of this Ordinance shall, notwithstanding the expiration of the said rules, continue in force so far as consistent with this Ordinance and be deemed to be an order made under section 3; and all appointments made, licenses or permits granted and directions issued under any such order and in force immediately before such commencement shall likewise continue in force and be deemed to be made, granted or issued in pursuance of this Ordinance.
" The 1945 Order, therefore, continued in force until other provisions were made under the 1946 Ordinance.
In exercise of powers conferred on it by section 4 of the 1946 Ordinance the Government of India, on the 21st October, 1946, made the notified order No. C.G.603(2) IIl(1) directing that the powers conferred on it by section 3(1) of that Ordinance should, in relation to foodstuffs, be exercisable also by any Provincial Government, subject to certain conditions therein set out.
In November, 1946, was passed the Essential Supplies (Temporary Powers) Act, 1946 (hereinafter called "the Act").
Section 3 of the Act reproduced section 3 of the 1946 Ordinance with certain modifications not material for our present purpose.
Section 4 of the Act corresponds to section 4 of the 1946 Ordinance.
The relevant portions of section 17 of the Act provide as follows : " 17.
Repeal and savings. (1) The Essential Supplies (Temporary Powers) Ordinance, 1946 (XVIII of 1946), is hereby repealed.
(2)Any order made or deemed to be made under the said Ordinance and in force immediately before the commencement of this Act shall continue in force and be deemed to be an order made under this Act; and all appointments made, licences or permits granted and directions issued under any such order and in force immediately before such commencement shall likewise continue in force and be deemed to be made, granted or issued in pursuance of this Act.
843 (3). . . . . . . . . (4). . . " In exercise of powers conferred on it by section 4 of the Act the Central Government, by Notification No. C. G. 603(2) III(1), dated the 5th March, 1947, amended the abovementioned notified order No. PY 603(2) I, dated the 21st October, 1946, by inserting after the word "foodstuff" the words "including cocoanut oil but excluding other edible oils and oilseeds. " The net result of this notification was that "edible oils and oilseeds" were excluded from the scope or operation of the delegated power.
In other words, the power delegated to the Provincial Government was withdrawn in respect of "edible oils and oilseeds" so that the Provincial Government could not thenceforth make any order controlling the production, supply and distribution of or trade and commerce in "edible oils and oilseeds".
On the same day another Notification, being Notification No. C. G. 603(2) III(2), was issued by the Central Government in exercise of powers conferred on it under section 3 of the Act directing that no order made or deemed to be made by a Provincial Government under the Act should have effect from that date so as to prohibit or restrict the movement of edible oilseeds or oils other than cocoanut oil from any place in a Province to any other place within or outside the Province, or so as to regulate or control the price, production or distribution thereof in any way.
Therefore, the 1945 Order ceased to have effect so as to prohibit or restrict the movement of edible oilseeds or oils other than cocoanut oil or so to regulate or control the price, production or distribution thereof in any way.
On the 15th November, 1947, two Notifications were issued by the Central Government.
By Notification No. PY.
603(2) VI(1) made under section 4 of the Act the Central Government made a further amendment in Notification No. PY.
603(2) 1 dated the 21st October, 1946.
by inserting after the word "oil seeds" the words "and pulses other than gram".
The effect of this amendment was that "pulses other than gram" were 844 also excluded from the operation of the power delegated to the Provincial Governments.
In other words, the power delegated to the Provincial Governments was withdrawn in respect also of "pulses other than gram", so that the Provincial Governments could not thenceforth make any order controlling the production, supply and distribution of or trade or commerce in edible oils and oilseeds and pulses other than gram.
Simultaneously by Notification No. PY.
603 (2) VI(2) made on the 15th November, 1947, under section 3 of the Act the Central Government directed that no order made or deemed to be made under the Act by a Provincial Government should have effect from that date so as to prohibit or restrict the movement of pulses other than gram from any place in a Province to any other place within or outside the Province or so as to regulate or control the price, production or distribution thereof in any way.
As a result of this Notification the 1945 Order also ceased to have effect so as to prohibit or restrict the movement of pulses other than gram or so as to regulate or control the price, production or distribution thereof in any way.
Then came the Uttar Pradesh Foodgrains (Futures and Options Prohibition) Order, ' 1951.
It was promulgated by the State of Uttar Pradesh on the 20th September, 1951.
By section 2(a) this Order defined "foodgrains" as meaning any of the foodgrains specified in the schedule thereto.
Arhar, peas, urd and moong were items Nos. 6, 7, 8 and 9 of that schedule.
Section 3 of the Order ran as follows " No person shall (a)enter into any "futures in foodgrains" or pay or receive any margin relating to any such futures; (b) enter into any options in foodgrains.
" Section 8 made a contravention of any provision of the.
Order or any order issued thereunder punishable under sections 7 and 7 A of the Act of 1946.
By section 9 of this Order the 1945 Order was withdrawn.
As the Uttar Pradesh Foodgrains (Futures and Options Prohibition) Order, 1951 directly made it illegal and a punishable offence for any person to enter into any futures in, amongst others, arhar, peas, urd and moong or to pay or receive or to agree to pay or receive any margin relating to any such futures.
IO members of the Chamber of Commerce, Hapur, including the ' present petitioners Nos. 2 to 4, on the 29th October, 1951, made an application to this Court under article 32 of the Constitution for enforcement of their fundamental right under article 19(1)(g) to carry on their business and prayed for the issue of a mandamus restraining the State of Uttar Pradesh from enforcing the Uttar Pradesh Foodgrains (Futures and Options Prohibition) Order, 195 1, in so far as it related to pulses other than gram and from exercising any power there.
under and for a declaration that section 2(a) read 'with items 6, 7,8 and 9 of the schedule thereto was illegal and ultra vires the powers of the State Government.
That application succeeded and the offending Notification to the extent it dealt with arhar, peas, urd and moong was declared invalid and the State of Uttar Pradesh was directed to abstain from giving effect to it.
As will appear from the judgment pronounced by this Court on the 15th May, 1952, on that application, it was not seriously disputed that the effect of the amendments referred to above was that the power to control and regulate trade originally delegated to the Provincial Government by Notification No. PY.
603(1) I, dated the 21st October, 1946, was modified so as to exclude from the scope of such delegation pulses other than gram".
On the 10th June, 1953, a letter (exhibit B to the petition) was addressed by the Deputy Commissioner, Food, Uttar Pradesh, to all Regional Food Controllers and Deputy Regional Food Controllers and all District Magistrates in Uttar Pradesh instructing them to regard all futures in foodgrains mentioned in the schedule to the 1945 Order including pulses other than gram as punishable.
The reasoning advanced was that the Uttar Pradesh Foodgrains (Futures and Options Prohibition) Order, 1951, having been declared ultra vires by the judgment pronounced by this Court on the 15th May, 1952, that Order became unenforceable and 108 846 consequently the 1945 Order continued in force.
A copy of this letter was forwarded, amongst others, to the Chamber of Commerce, Hapur, for information and guidance.
By its letter dated the 25th June, 1953, the Chamber pointed out that the earlier Order of 1945 had been withdrawn by section 9 of the Order of 1951 and as the last mentioned section had not been declared ultra vires by the Supreme Court the 1945 Order could not be regarded as continuing in force.
On the 17th September, 1953, the Regional Food Controller of Uttar Pradesh wrote a letter (exhibit D to the petition) to the President, Chamber of Commerce, Hapur, asking the latter to immediately stop all future transactions pertaining to the foodgrains mentioned in the schedule to the 1945 Order in which delivery was contemplated within the State of Uttar Pradesh and threatening action to be taken against the Chamber.
This threat of action necessitated the present petition for the reliefs mentioned above.
Learned advocate appearing for the State seeks to justify the attitude of the State on two grounds.
It is urged that section 3 of the 1946 Act which reproduced with certain modifications section 3 of the 1946 Ordinance, conferred on the Central Government extensive powers to control production, supply, distribution of and trade and commerce in essential commodities.
This power was delegated by the Central Government to the Provincial Governments by Notifi cation No. PY.
603(2) 1 issued on the 21st October, 1946, under section 4 of the 1946 Ordinance.
The subsequent amendments made by Notification No. C.G. 603(2) III(1) dated the 5th March, 1947, and Notification No. PY.
603(2) VI(1) dated the 15th November, 1947, withdrew the power so delegated only with respect to "edible oils and oilseeds and pulses other than gram" and such withdrawal was only with regard to the production, supply and distribution of those commodities but not with regard to trade and commerce therein.
The second ground advanced is that the Order of 1951 having been declared ultra vires the Order of 1945, which was continued first by section 5 of the 1946 Ordinance and then by section 17 of the Act, remained 847 in full force.
In our judgment there is no substance in either of the two arguments.
As we have already pointed out, two Notifications were published on the 5th March, 1947,and two Notifications were issued on the 15th November 1947.
By Notification No. C. G. 603(2) III(1) dated the 5th March, 1947, and Notification No. PY.
603 (2) VI (1), dated the 15th November, 1947, the earlier Notification No. 603(2) I, dated the 21st October, 1946, was amended by inserting therein the words "edible oils and oilseeds" and "pulses other than gram" and thereby excluding those commodities from the scope of the delegation.
As a result of these amendments the Provincial Governments could not, from and after the respective dates of those amending Notifications, make any order controlling production, supply, distribution of or trade and commerce in those commodities.
These Notifications did not puport to affect Notifications that had been previously made.
But simultaneously with these amending Notifications two more Notifications were issued, namely, Notification No. C.G. 603(2) III(2), dated the 5th March, 1947, and Notification No. PY.
603(2) VI(2), dated the 15th November, 1947.
By these Notifications the Central Government directed that no order made or deemed to be made under the Act by a Provincial Government should have effect so as to prohibit or restrict the movement of edible oils and oilseeds and pulses other than gram or to regulate or control the price, production or distribution of those commodities in any way.
As a result of the joint operation of these Notifications the 1945 Order ceased to have effect so as to prohibit or restrict the movement of edible oils and oilseeds and pulses other than gram or to regulate or control the price, production or distribution of those commodities.
As that Order of 1945 ceased to have effect with regard to the price, production, distribution and movement of those commodities, it is not easy to comprehend how that Order could continue to regulate or control trade or commerce in those commodities.
Trade or commerce in any commodity cannot be controlled unless the price, production, distribution and movement of that commodity can also be controlled.
848 It follows, therefore, contrary to the contentions of the State, that these two Notifications of 1947 quite effectively superseded the 1945 Order so far as it purported to regulate or control the price, production, distribution and movement of or trade and commerce in edible oils and oilseeds and pulses other than gram.
The second branch of the argument is equally fallacious.
It is wholly incorrect to say that the judgment pronounced by this Court on the 15th May, 1952, declared the Uttar Pradesh Foodgrains (Futures and Options Prohibition) Order, 1951, ultra vires and invalid in its entirety.
That judgment only declared it invalid to the extent of the restrictions complained of by the then petitioners, namely, in so far as it purported to restrict dealings in edible oils and oilseeds and pulses other than gram.
The rest of that Order of 1951 and in particular section 9 by which the 1945 Order had been withdrawn remained unaffected by that judgment of this Court.
It is quite difficult to appreciate how, in the circumstances, the Order of 1945 can be regarded as having been revived by the judgment in respect of edible oils and oilseeds and pulses other than gram in spite of the express withdrawal of that Order by section 9 of the Order of 1951 which otherwise remains operative.
In our judgment there is no substance whatever in either of the two branches of argument advanced before us and this application must succeed.
Accordingly we grant prayers (a), (b), (c) and (d) of the petition.
Before concluding we desire to express our strong disapproval of the wholly unwarranted attitude adopted by the officers of the State of Uttar Pradesh.
Assuming there was any substance in their contentions, the same should have been advanced before this Court on the previous occasion, for the contentions, if wellfounded, would have been a complete answer to that application.
If the contentions were subsequently discovered, then the same should have been brought before the Court by way of review, if any review lay.
849 Instead of adopting that straightforward course the officers of the State have sought to circumvent the decision of this Court on a flimsy pretext and covertly, to challenge its correctness on an obviously untenable plea which has not even the merit of a seeming plausibility.
This conduct verges dangerously on a contempt of this Court.
We desire to make it quite clear that we view with great disfavour such unworthy attempt to get round the decision of this Court.

dataset_name: IN-Abs

summary:
Uttar Pradesh Food grains (Futures and Options Prohibition) Order, 1951, made it illegal and a punishable offence for any person to enter into any futures in pulses other than gram, or to pay or receive or to agree to pay or receive any margin relating to such futures.
By section 9 of that Order the Order of 1945 containing similar provisions was repealed.
An application under article 32 of 839 the Constitution presented by several persons (including the present petitioners) for the enforcement of their fundamental right under article 19(1)(g) of the Constitution to carry on their business and restraining the State from enforcing the Order of 1951 in so far as it related to pulses other than gram and for a declaration that section 2(a) of the Order read with items 6, 7, 8 and 9 of the schedule thereto was illegal and ultra vires the State Government ' succeeded in the Supreme Court and the State of Uttar Pradesh was directed by the Supreme Court by its judgment dated the 15th 'day, 1952, to abstain from giving effect to it.
On the 10th June, 1953, a letter (Exhibit B to the petition) was addressed by the Deputy Commissioner, Food, Uttar Pradesh, to all Regional Food Controllers and Deputy Food Controllers and all District Magistrates in Uttar Pradesh instructing them to regard all futures in foodgrains mentioned in the Schedule to the 1945 Order including pulses other than gram as punishable.
It was contended on behalf of the State (1) that section 3 of 1946 Act which reproduced section 3 of the 1946 Ordinance conferred on the Central Government extensive powers to control production, supply, distribution of and trade and commerce in essential commodities and this power was delegated by the Central Government to the Provincial Government by notification dated 21st October, 1946, under section 4 of the 1946 Ordinance.
The subsequent amendments made by two Notifications dated 5th March, 1947, and dated 15th November, 1947, withdrew the power so delegated only with respect to "edible oils and oil seeds and pulses other than gram" and such withdrawal was only with regard to production, supply, and distribution of those commodities but was not with regard to trade and commerce therein; (ii) that the Order of 1951 having been declared ultra vires, the Order of 1945 which was continued by section 5 of the Ordinance of 1946 and then by section 17 of the Act of 1946 was still in force.
Held, (repelling the contentions) (i) that as the Order of 1945 ceased to have effect with regard to the price, production, distribution and movements of those commodities, that Order could not in any way continue to regulate or control trade or commerce in those commodities and the two Notifications of 1947 quite effectively superseded the Order of 1946 so far as it purported to regulate or control the price, production, distribution and movement of or trade and commerce in edible oils and oil seeds and pulses other than gram; (ii) that the Order of 1951 was not declared ultra vires and invalid in its entirety by the judgment of the Supreme Court dated 15th May, 1952.
The Order was declared invalid in so far as it purported to restrict the dealings in edible oils and oil seeds and pulses other than gram.
The rest of the Order of 1951 and in particular section 9 thereof by which the Order of 1945 had been withdrawn, remained unaffected by the judgment of the Supreme Court.
840 Strong disapproval was expressed by the Supreme Court of the wholly unwarranted attitude adopted by the officers of the State of Uttar Pradesh in circumventing the decision of the Supreme Court on a flimsy pretext.
The contentions advanced on behalf of the State Government should have been advanced before the Supreme Court on the previous occasion when it delivered its judgment dated 15th May, 1952, or the matter should have been brought before the Supreme Court by way of review if any review was competent.


judgement:
Appeal No. 1424 of 1966.
Appeal from the order dated February 11, 1965 of the Punjab High Court, Circuit Bench at Delhi in Civil Writ No. 3 D of 1963.
H.R. Gokhale, D.R. Thadani and A.N. Goyal, for the.
appellant.
Jagdish Swarup, Solicitor General, L.M. Singhvi and R.N. Sachthey, for the respondents.
The Judgment of the Court was delivered by Grover, J.
This is an appeal from a judgment of the Punjab High Court (Circuit Bench, Delhi) involving the question of the validity of Rule 7 read with Rule 5 and its Schedule of the Delhi Factories Rules 1950 made under section 112 of the , hereinafter called the Act.
The impugned Rules relate to the grant of a licence for a factory and renewal thereof, the fees.
being prescribed by the Schedule to.
Rule 5.
The Delhi Cloth and General Mills Co. Ltd. operates within the Delhi area a number of industrial establishments which are factories within the meaning of section 2(m) of the Act.
The company has to pay a total sum of Rs. 12,775.00 as annual licence.
fee for all its factories in Delhi, the fees being calculated according to the Horse Power and the maximum in number of workers to be employed on any day during the year as given in the Schedule.
The maximum fee that is payable is Rs. 2,000/ for a factory.
The factories can be run only after registration and under a licence granted under the Act and the Rules on payment of the prescribed fee.
The licence is renewed every year under R. 7 on payment of the same fee which is paid at the time of the granting of the licence.
Every licence granted or renewed remains in force up to December 31, of the year for which it is granted or 350 renewed.
In January 1963 the company filed a petition under articles 226 and 227 o,f the Constitution in the High Court challenging the validity of the Rules under which the licence fee for renewal of the licence for each of its factories in Delhi was being levied and collected i.e.R. 7 read with R. 5 and its, Schedule.
This petition was dismissed by a division bench on February 11, 1965.
The company then filed the present appeal by certificate.
The principal point which has been canvassed on behalf of the appellant company is that the payment made ' for renewal of the licence was and is only to endorse the licence as valid ,for the next year and the amount charged for the renewal thereof cannot and does not entail services which can reasonably be regarded to be commensurate with the amount so charged.
In other words the element of quid pro quo which distinguishes a fee from a tax is absent and lacking.
The Act, it is pointed out; contains specific provisions for rendering of benefit and service to the workmen by the owners of the factories.
The Inspectors who are .appointed under the Act to ensure that its provisions are complied with by the factory owners constitute a policing agency and it is not possible to say that the power and duties of the Inspectors when exercised and carried out amount to services rendered for the benefit of the factory owners or the workmen.
Falshaw C.J., who delivered the judgment of the division bench was of the view that the work carried out by the Inspectors under the Act of seeing that all its beneficient provisions for the health and welfare of the workers employed in the factories were fully implemented must definitely be regarded as services rendered in return for the fee levied for the annual renewal of the licence for the factory.
It was further observed on an examination of 'the affidavit which had been placed before the court that at least 60.% of the amount realised as licence fee was being utilised on running the department.
Mr. H.R. Gokhale for the appellant company has contended that the High Court failed to apply the principles which are settled by certain decisions of this Court for determining whether a fee for a licence or a renewal thereof in circumstances similar to the present case is in substance and effect a tax.
He has relied largely on Corporation of Calcutta & Another vs Liberty Cinema(1).
In that case the licence fee had been raised from Rs. 400/ to Rs. 6,000/ per year.
It was observed in the majority judgment that the provision under which the licence had to be taken out for a cinema did not refer to the rendering of any service by the Corporation of Calcutta.
It was also.
not obligatory on the Corporation to make any bye law under which (1) [1955] 2S.C.R.477.
351 services were to be rendered.
If the bye laws were not made there would be no service to render.
It was further pointed out that inspection by the authorities concerned could not be regarded as a service to the licence as it was meant only to make sure that the licensee carried out the conditions on which the licence had been granted to him.
Some of the earlier decisions were considered as also the pronouncement in H.H. Sudhundra Thirtha Swamiar vs Commissioner for Hindu Religious & Charitable Endowments, Mysore(1) and with regard to the latter case it was said that a service resulting in the control of the Math adipathi conferred special benefit on the institution which alone paid the levy.
As far back as 1954 it was laid down in Mahant Sri Jagannath Ramanui Das & Anr.
vs The State of Orissa & Another(2)that the contributions levied for the. expenses of the Commissioner and his staff who were to.
exercise effective control over the trustees of the Maths and the temples was to.
be regarded as a fee and not a tax.
Two reasons were given for this: (1) The payment was demanded only for the purpose of meeting the expenses of the Commissioner and his staff which is the machinery. set up for due administration of the affairs of the religious institution.
(2) The collections made were no.t merged in the general public revenue.
Similarly in Ratilal Panachand Gandhi vs The State of Bombay & Others(3) the contribution imposed under the Bombay Public Trusts Act was held to: be fee and not tax.
it was stated that in the first place these contributions were to be credited to the Public Trusts Administration Fund which was a special fund land were not to be merged in the general revenue.
Secondly, it was not necessary that services should be rendered only at the request of particular people and it was enough that payments were demanded for rendering services which the State considered beneficial in the public interest and which the people had to accept whether they were willing or not.
The following observations in H.H. Sudhundra Thirtha Swamiar case(1) may be referred to with advantage: "A levy in the nature of a fee does not cease to be of that character merely because there is an element of compulsion or coerciveness present in it, nor is it a postulate of a fee that it must have direct relation to the actual services rendered by the authority to individual who obtains the benefit of service.
If with a view to provide a specific service, levy is imposed by law and expenses for maintaining the service are met out of the amounts collected there being a reasonable relation between the levy and the expenses incurred for render (1) [1963] Supp. 2 S.C.R. 302.
(2) ; (3) [1954] S.C.R. 1055.
352 ing the service, the levy would be in the nature of a fee and not in the nature of a tax.
" According to Mr. H.R. Gokhale the present case is of the type which would fall squarely within the decision in Liberty Cinema case(1).
It is difficult to agree.
In each case where the question arises whether the levy is in the nature of a fee the entire scheme of the statutory provisions, the duties and obligations imposed on the inspecting staff and the nature of work done by them will have to be examined for the purpose of determining the rendering of the services which would make the levy a ,fee.
It is quite apparent that in the Liberty Cinema case it was found that no service of any kind was being or could be rendered and for that reason the levy was held to be a tax and not a fee.
In our judgment the present case falls within the other class of cases to which reference has been made in which contributions for the purpose of maintaining an authority and the staff for supervising and controlling public institutions like Maths etc.
were held to be fee and not tax.
We may now look at the provisions of the Act.
Chapter II provides for the inspecting staff.
Section 9 gives the powers of the Inspectors.
They can enter any factory and inter alia make examination of the premises, plant and machinery.
Under section 10 qualified medical practitioners can be appointed to.
be certifying surgeons for the purpose of the Act.
The certifying surgeon has to.
carry out such duties as may be prescribed in connection with the examination and ,certification of young persons under the Act.
the examination of persons.
engaged in factories in dangerous occupation or process as also the exercising of medical supervision.
Chapter III deals with health.
Section Il contains detailed provisions about cleanliness.
Sections 12 to 14 relate to disposal of waste and effluents, ventilation and temperature, and dust and fume.
Sections 17 to 20 concern lighting, drinking water, latrines and urinals, and spittoons.
Chapter IV contains the provisions relating to safety.
Section 21 deals with fencing of machinery.
Section 22 with work on or near machinery in motion and section 23 with employment of young persons on dangerous machines.
The other sections which may be noticed in this Chapter are section 27 containing the prohibition of employment of women and children near cotton openers; section 35 in the matter of protection of eyes, section 36 dealing with precautions against dangerous fumes, section 37 relating to explosive or inflammable dust, gas etc., and section 38 relating to precautions in case of fire.
Under section 39 if it appears to the Inspector that any building or part of a building or any part of the ways, machinery or plant in a factory is in such a condition that it may be dangerous to human life and safety he may serve on the manager of the factory an order in writing ; 353 requiring him to.
furnish the particulars for determining whether the building, machinery, plant etc., can be used with safety or to carry out such tests as may be specified and convey the result thereof to the Inspector.
Under section 40 if it appears to the Inspector that any building or part of a building is in such a condition that it is dangerous to human life or safety he can serve an order on the manager of the factory specifying the measures which should be adopted and requiring him to carry out the same before a specified date.
Shnilarly if it 'appears to him that the use of any building or machinery or plant involves imminent danger to human life or safety he can serve an order prohibiting its use until it has been properly repaired or altered.
Chapter V deals with welfare and provisions are made therein ,for such amenities as washing facilities for storing and drying clothing, for sitting, first aid appliances, canteens and creches and every factory is required under section 49 wherein 500 or more workers are ordinarily employed to have such number of welfare officers as may be prescribed.
The Rules also contain various provisions where the Inspector has to be consulted and his approval obtained for doing certain things.
For instance R. 65(3) says that the manager of a factory shall submit for the approval of the Chief Inspector plans of the building to be constructed or adapted for use as a canteen.
It is unnecessary to refer to several other provisions contained in the Act and the Rules which show that the Chief Inspector and his staff play a very important role in the working of the factory.
In the return which was filed in the High Court to the writ petition it was stated in paragraph 8 that the fees were being charged for the running of the whole establishment including the Factory Inspectorate which in its turn "provides free inspection and expert technical advice etc., to factory owners in matters connected with safety, health welfare and the allied matters in respect of compliance with the provisions of the ".
It has further been stated that in our country matters relating to health, safety, welfare and employment have to be looked after and the desired results have been sought to be achieved by the legislature by providing statutory inspection service.
According to Mr. Gokhale the Inspectors only carry out the duties laid on them under the Act and all that they have to do is to ensure that the statutory provisions and the rules are carried out properly and launch prosecutions against factory owners under the provisions of Chapter X of_ the Act in case of any breach or default on the part of the factory owners.
We do not consider that the functions and duties of the Inspectorate are confined only to the limited task which has been suggested on behalf of the appellant company.
A large number of provisions to which reference has been made, particularly in the Chapter dealing with 354 safety, involve a good deal of technical knowledge and in the course of discharge of their duties and obligations the Inspectors are expected to give proper advice and guidance so that there may be due compliance with the provisions of the Act.
It can well be said that on certain occasions factory owners are bound to receive a good deal of benefit by being saved from the consequences of the working of dangerous machines or employment of such processes as involve danger to human life by being warned at the proper time as to the defective nature of the machinery or of the taking of precautions which are enjoined under the Act.
Similarly if a building or a machinery or a plant is in such a condition that it is dangerous to human life or safety the Inspector by serving a timely notice on the manager saves the factory owner from all the consequences of proper repairs not being done in time to the building or the machinery.
Indeed it seems to us that the nature of the work of the Inspector is such that he is to render as much.
if not more, service than a Commissioner would, in the matter of supervision, regulation and control over the way in which the management of the trustees of religious and charitable endowment was conducted.
The High Court further found, which finding being of fact, must be considered as final that 60 '% of the amount of licence fees which were being realized was actually spent on services rendered to the factory owners.
It can, therefore, hardly be contended that the levy of the licence fee was wholly unrelated to the expenditure incurred out of the total realisation.
Before the High Court the appellant company never made out any case that the collections on .account of the licence fee were merged in the general public revenue and were not appropriated in the manner laid down for the appropriation of expenses for the department concerned.
There can be no manner of doubt that the amount which the appellant company has to pay as licence fee is not in the nature of a tax but is a fee which could be properly levied.
The appeal fails and it is dismissed with costs.
G.C. Appeal dismissed.

summary:
The appellant company had a number of industrial establishments in Delhi.
These establishments were factories within the meaning of section 2Ira) of the .
The factories could be run only after registration and under a licence granted under the Act and the Rules on payment of a prescribed fee.
The licensee was renewable every year under R. 7 on payment of the same.
fee as for grant of the licence.
The company filed a writ petition under articles 226 and 227 of the Constitution challenging the validity of the Rules under which the fee for renewal of the licence for each of its factories in Delhi was being levied and collected i.e.R. 7 read with R. 5 and its Schedule.
The petition being dismissed by the High Court, an appeal was filed in this Court with certificate.
The contention on behalf of the appellant was that there was no quid pro quo for the fee paid for renewal of the licence and that the maintenance of a team of Inspectors under the Act did not amount to such quid pro quo.
Reliance.
was placed on the Liberty Cinema case.
HELD: In each case when the question arises whether the levy is the nature of a fee, the entire scheme of the statutory provisions, the duties and obligations imposed on the inspecting staff 'and the nature of tire work done by them wilt have to be examined for the purpose of determining the rendering of the services which would make the levy of a fee.
In the Liberty Cinema case it was found that no service of any kind was being and could be rendered and for that reason the levy was held to.
be a tax and not a fee.
The present case however fell within the other class of cases in which contributions for the purpose of maintaining an authority and the staff for supervising and controlling public institutions were held to be fee and not tax.
[354 B C] A large number of provisions of the Act, particularly in the chapters dealing with safety, involve a good deal of technical knowledge and in the course of discharge of their duties and obligations the Inspectors are expected to give proper advice and guidance so that there may be due compliance with the provisions of the Act.
On certain occasions the factory owners are bound to receive a good deal of benefit by being saved from the consequences of the working of dangerous machines or employment of such processes as involve danger to human life by being warned at the proper time as to the defective nature of the machinery or of the taking of precautions which are enjoined under the Act.
Similarly if a building or a machinery or plant is in such a condition that it is dangerous to human life or safety the Inspector by serving a timely notice on the manager saves the factory owner from all the consequences of proper repairs not being done in time to the building.
or machinery.
349 The High Court found that 60% of the amount of licence fees which were being realized was actually spent on services rendered to the. factory owners.
The finding being one of fact must be considered final.
[355 H 356, D] .
It could therefore hardly be contended that the levy of the licence fee was wholly unrelated to the expenditure incurred out of the total realization.
The appeal must accordingly fail.
[356 D El Corporation of Calcutta & Anr.
vs Liberty Cinema, ; ,distinguished.
H.H. Sudhundra Thirtha Swamiar vs Commissioner for Hindu Religious & Charitable Endowments, Mysore, [1963] Supp. 2 S.C.R. 302, Mahant Sri Jagannath Ramanuj Das & Anr.
vs State of Orissa & Anr ; and Ratilal Panachand Gandhi vs State of Bombay & Ors, [1954] S.C.R. 1055, applied.