Full Judgment Text
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CASE NO.:
Appeal (civil) 4092-4095 of 2002
PETITIONER:
Deewan Singh & Ors. \005Appellants
RESPONDENT:
Rajendra Pd. Ardevi & Ors. \005Respondents
DATE OF JUDGMENT: 04/01/2007
BENCH:
S.B. Sinha & Markandey Katju
JUDGMENT:
J U D G M E N T
WITH
CIVIL APPEAL NOs. 4076-4079 OF 2002
CIVIL APPEAL NOs. 4081-4084 OF 2002
CIVIL APPEAL NOs. 4086-4089 OF 2002
S.B. SINHA, J.
Management of a temple known as Shri Rikhabdevji situated in the
village Dhulev near 40 miles away from Udaipur in Rajasthan is involved in
these appeal which arise out of judgments and orders dated 18.09.1997 and
06.02.2002 passed by the High Court of Rajasthan.
Indisputably, the matter came up for consideration on an earlier
occasion before this Court in State of Rajasthan and Others v. Shri Sajjanlal
Panjawat and Others since reported in [(1974) 1 SCC 500].
It is furthermore not in dispute that at one point of time the
management of the said temple was taken over by the Maharana of Mewar.
We need not go into the history of the said temple, as the same has been
noticed by this Court in the earlier round of litigations,. The properties of
the said temple vested in the State of Rajasthan as the State of Mewar
merged with other princely States forming the United State of Rajasthan on
18.04.1948. Various directions were issued by the Government of Rajasthan
in relation to the management of the said temple from time to time.
The legislature of the State of Rajasthan enacted Rajasthan Public
Trust Act, 1959 (for short "the Act"). Chapter I to IV thereof came into
force on 22.10.1959. In exercise of its rule making power contained in
Section 76 of the Act, the State of Rajasthan framed Rules known as the
Rajasthan Public Trusts Rules, 1962 which came into force on and from
11.06.1962. Chapter V to X and XII of the Act as also the Rules applicable
in relation thereto were brought into operation with effect from 1.07.1962.
Questioning the validity of some of the provisions of the Act
including Sections 52(1)(d) and 53 thereof, some members belonging to
Swetambers Jain sect filed a writ petition before the Rajasthan High Court
which was marked as writ petition No. 501 of 1962 praying inter alia for the
following reliefs:
(i) The State of Rajasthan and its officers be restrained from enforcing
certain provisions of the Act and declare those provisions void,
(ii) Restrain the State and its officers from selling gold and silver
ornaments of temple and advancing loan from temple fund,
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(iii) Restrain the respondents from carrying out management of the
temple and allow the petitioners to manage the temple according to
declaration of Samwat 1934.
Digambers filed an intervention application therein inter alia
contending that the said temple was a Digamber temple.
The stand of the State of Rajasthan therein inter alia was that the
temple in question was a Hindu temple and not a Jain temple although the
Jains have the right of worship. It was furthermore contended that the
temple belonged to the erstwhile State of Mewar and as such its
management vested in the State.
Validity of some of the provisions of the Act were also questioned in
the said proceedings. The High Court of Rajasthan, however, in its judgment
dated 30.03.1966 held:
(i) Temple of Shri Rikhabdevji is a Jain Temple of Shwetamber Jain
sect.
(ii) After merger of State of Mewar, the management of temple was
carried on by the Devasthan Deptt. of State and Committee
constituted by the erstwhile Ruler of Mewar became defunct.
(iii) The temple vested in the State under Section 52(1) (a) and (c) of
the Act.
(iv) The State should take early steps to transfer the management to a
Committee as envisaged under Section 53 of the Act.
The matter came up before this Court, as noticed hereinbefore,
wherein this Court opined:
(i) Shri Rikhabdevji Temple is a Jain temple not a Hindu Temple.
(ii) The management of the temple is vested in the State of Rajasthan.
(iii) If the State intends to apply Chapter X to the temple, it is for it to
include it in the list under Section 52(2) of the Act. Section 53
postulates the application of Chapter X for the vesting of
management in a Committee to be constituted by the State
Government.
(iv) Chairman and members in the Committee of Management should
be appointed from the trustees or persons of the section of
denomination to which trust belongs.
(v) High Court’s direction to constitute a Committee from
Management set aside.
When the Committee of Management, however, was not constituted
within a reasonable time, Swetambers again filed a writ petition bearing No.
S.B. Civil Writ Petition No. 21 of 1981 before the Rajasthan High Court
inter alia contending that as the State having regard to the provisions
contained in Sections 52 and 53 of the Act exercises power coupled with
duties, the failure to publish the list and to constitute a Committee would
amount to dereliction of duties on its part. In the said writ petition it was
prayed for:
(i) To issue a Mandamus directing the State Government to issue a list
of public trusts under Section 52(2) of the Act and to constitute a
Committee for management in terms of Section 53 of the Act.
(ii) To issue a suitable writ or direction to quash the order dated
29.9.1979 restraining the State from changing the denominational
character of the temple.
The State in its affidavit in opposition filed in the said proceedings
reiterated its position that the temple was a Hindu temple.
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Although it had not been brought to the notice of the High Court but
now it stands admitted that the State in exercise of its power conferred upon
it under Section 52 of the Act notified the said temple vested in the State as a
self-supporting temple by a notification dated 25.06.1981 in the following
terms:
"No. F.8 (12) General/Dev/79/8550 :- In pursuance
to State Governments order no 21/781/R/JU/1/79,
dated 14-03-80 and same numbered page dated 17-
5-80 and letter no. 14 (3) Khan/Group \026 2/80 dated
7-1-81, the general public is hereby notified with,
list of temples and institutions managed and
controlled by Devasthanam Department,
Rajasthan, is being classified under those which
are in direct management, those which are self
sufficient and those which are handed
over(committed) to the State, on the basis of
available records and survey done till date. All
properties of above classified temples and
institutions have vested in the State Government.
If any person or institutions, without the sanction
of the State Government, takes possession in any
manner or transfers or sells or mortages or gets
registered under the provisions of the Rajasthan
Public trusts Act, 1959 any temple or institutions
notified under this notification will be deemed to
be illegal. If any person has any information in
respect of any temple or institutions, other than
notified but belonging to the State may inform the
Devastaham Commissioner in that regard, because
enquiry in respect of the temples belonging to the
erstwhile State of Jaipur and Jodhpur is in
progress.
*
Schedule \026 B
List of self sufficient temples and institutions
managed and controlled by Devasthanam
Department
C
Name of
temple
Address
Place
District
1
2
3
4
5
*
30.
Temple of
Shri
Rikhabdevji
Vill-Dhuleva
Vill-Dhuleva
Udaipur"
It appears that thereafter Digambers also filed a writ petition on
19.04.1983 which was marked as S.B. Civil Writ Petition No. 2247 of 1983
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for the following reliefs:
(i) To declare that Shri Rikhabdevji temple is a Digamber Jain temple.
(ii) The State be directed to publish a list of trusts under Section 52
(2) of the Act and consequently constitute a Committee for
management of Digambers.
In its counter-affidavit, however, the State agreed to carry out its
obligations under the Act as also the directions of this Court and the High
Court.
By a judgment and order dated 5.02.1997, a learned Single Judge of
the High Court inter alia directed the State:
(i) to publish list of trusts under 52(2) of the Act.
(ii) to hold inquiry under Rule 36 to determine denominational
character of the temple.
(iii) after completion of inquiry within 3 months, to constitute
Committee for management under Section 53 of the Act.
The Division Bench of the High Court by reason of the impugned
judgment dated 18.09.1997 while affirming the said directions made certain
modifications in regard to constitution of Committee leaving the matter at
the discretion of the State Government opining Sections 52 and 53 of the Act
confers such discretion to it.
Review petitions filed thereagainst have been dismissed by judgment
and order dated 06.02.2002.
There are four sets of appeals before us.
The first set of appeals, viz., Civil Appeal Nos. 4092-4095, has been
filed by the Swetamber Jain sect and is directed against the judgment of the
Division Bench of the High Court dated 18.09.1997. The second set of
appeals, viz., Civil Appeal Nos. 4086-4089 of 2002, has also been filed by
the Swetamber Jain sect and is directed against the order of the Division
Bench of the High Court dismissing the review petitions filed against the
judgment and order dated 18.09.1997.
The third set of appeals, viz., Civil Appeal Nos. 4081-4084 of 2002, is
at the instance of the State Government against the judgment and order dated
18.09.1997. The fourth set of appeals, viz., Civil Appeal Nos. 4076-4079 of
2002, is filed by the Digamber Jain sect against the judgment and order
dated 18.09.1997.
It is furthermore not in dispute that another notification has been
issued on 5.12.1997 by the State under Section 52 of the Act in obedience of
the order of the Division Bench of the High Court stating:
"No. F 14(17)Dev/82: Pursuant to the judgment
dated 18.9.97 passed by the Hon’ble Rajasthan
High Court, Jodhpur in DB (Civil) Special Appeal
No. 663/97 \026 State versus Veerchand Seroiya and
513/97 \026 State versus Shrieyas Prasad and others
and under Section 52 of Chapter X of the
Rajasthan Public Trust Act, 1959, it is necessary
that a list of registered public trusts having a gross
annual income of Rs. 10,000 or more have to be
published in the Rajasthan Gazette within a period
of three months.
Therefore the list of such Registered Public Trusts
and Trusts Managed and Controlled by the
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Devasthan Department under direct charge, self-
supporting, supurgisreni which are handed over to
the Government is published under:
*
Chapter KA
Temples controlled and managed by the Devastan
Department
C
Name of
temple
Address
Place
District
*
30.
Shri
Rikhabdevji
Gram Dhule
Gram Dhule
Udaipur"
Although, as noticed hereinbefore, the High Court directed the State
of Rajasthan to issue notifications in terms of Section 52 of the Act, having
regard to the fact that such notifications have since been issued and
published in the official gazette, in our opinion, it is not necessary to dilate
on the question as to whether the judgment of the High Court to the
aforementioned effect was correct or not.
The Act was enacted to regulate and to make better provision for the
administration of public religious and charitable trusts in the State of
Rajasthan. The management of the said trust is to be vested in the
Devasthan Commissioner constituted under Section 7 of the Act which is in
the following terms:
"7. Devasthan Commissioner-(1) The State
Government shall, by notification in the official
Gazette, appoint an officer to be called the
Devasthan Commissioner who, in addition to other
duties and functions imposed on him by or under
the provisions of this Act or any other law for the
time being in force, shall, subject to the general
and special orders of the State Government,
superintend the administration and carry out the
provisions of this Act throughout the territories to
which this Act extends.
(2) The Commissioner shall be a corporation
sole by the name of "Devasthan Commissioner of
the State of Rajasthan", shall as such have
perpetual succession and a common seal and may
sue and be sued in his corporate name."
Section 17 provides for registration of public trusts. Section 18
provides for inquiry about registration. Sections 52 and 53 of the Act read
as under:
"52. Application of chapter.-(1) The provisions
contained in this Chapter shall apply to every
public trust-
(a) which vests in the State Government, or
(b) which is maintained at the expense of the
State Government, or
(c) which is managed directly by the State
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Government, or
(d) which is under the superintendence of the
Court of Wards, or
(e) of which the gross annual income is ten
thousand rupees or more.
(2) The State Government shall, as soon as may
be after the commencement of this chapter, publish
in the official Gazette a list of the public trusts to
which this Chapter applies and may by like
notification and in like manner add to or vary such
list.
53. Management of public trusts to which this
Chapter applies \026
(1) As from such date as the State Government
may appoint in this behalf, the management of a
public trust to which this Chapter applies shall
notwithstanding any thing contained in any
provision of this Act or in any law, custom or
usage, vest in a committee of management to be
constituted by the State Government in the manner
hereinafter provided and the State Government
may appoint different dates for different public
trusts for the purpose of this section.
(2) On or before the date fixed under sub-
section (1) in respect of a public trust, the State
Government shall, subject to the provision
contained in section 54 constitute by notification in
the official Gazette a committee of management
thereof under such name as may be specified in the
notification; and such committee shall be deemed
to be the working trustee of the said public trust
and its endowment:
Provided that upon the combined request of the
trustees of, and persons interested in several public
trusts representing the same religion or persuasion,
the State Government may constitute a committee
of management for all of them, of their
endowments are situated in the same city, town or
locality.
(3) Every committee of management constituted
under sub-section (2) shall be a body corporate
having perpetual succession and a common seal,
with power to acquire, hold and dispose of
property subject to such conditions and restrictions
as may be prescribed and may by the name
specified in the notification under sub \026section (2)
sue and be sued.
(4) A committee of management shall consist of
a chairman and such even number of members, not
exceeding ten and not less than two as, the State
Government may determine.
(5) The Chairman and members of a committee
of management shall be appointed by the State
Government by notification in the Official Gazette
from amongst-
(a) trustees of public trusts representing the
same religion or persuasion and having the same
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objects, and
(b) persons interested in such public trusts or in
the endowments thereof or belonging to the
denomination for the purpose of which or for the
benefit of whom the trust was founded,
in accordance with the general wishes of the
persons so interested so far as such wishes can be
ascertained in the prescribed manner :
Provided that in the case of a public trust having a
hereditary trustee, such trustee, and in the case of a
math, the head thereof, shall be the Chairman of
the committee of management, if he is willing to
serve as such."
Section 77 provides for exemption from the application of the
provisions of the Act in the following terms:
"Exemption-(1) Nothing contained in this Act
shall apply to a public trust administered by any
agency acting under the control of the State
Government or by any local authority.
(2) The State Government may exempt, by
notification specifying the reasons for such
exemption, any public trust or class of public trusts
from all or any of the provisions of this Act,
subject to such conditions, if any, as the State
Government may deem fit to impose."
Rule 36 of the said Rules reads as under:
"36. Manner of ascertaining the wishes of persons
interested \026
(1) For the purpose of ascertaining the wishes
under sub-section (5) of Section 53, of the persons
interested, the State Government shall direct the
Assistant Commissioner to issue a public notice in
such manner as he may think proper, for inviting
suggestions for the constitution of the Committee
of management.
(2) The Assistant Commissioner shall forward
suggestions so received along with his comments,
to the State Government through the
Commissioner."
The core question involved in these appeals is:
Whether the State Government is obligated to constitute a committee
of management of a public trust to which Chapter X of the Act applies? Or
Whether the constitution of such a committee of management falls within
the discretionary jurisdiction of the State Government?
Chapter X comprises of 14 sections beginning from Sections 52 to 65.
Section 52 contemplates fixation of a date. Section 52(1) contemplates that
Chapter X shall apply inter alia to the public trusts \026 (i) which vests in the
State Government; (ii) which is managed directly by the State Government,
and (iii) of which the gross annual income is ten thousand rupees or more.
Once Chapter X applies in terms of Sub-section (2) of Section 52, the State
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Government is obligated to publish a list of public trusts to which the said
Chapter applies. Such publications have been made in two notifications,
viz., dated 25.06.1981 and 5.12.1997. In the first notification, it had not
been stated that the same had been issued either in terms of Section 52 of the
Act or under Chapter X thereof. In the notification dated 5.12.1997, not
only the provisions of the statute have been mentioned, it has specifically
been stated that the notification was issued in terms of the directions of the
Division Bench of the High Court of Rajasthan.
Section 53 of the Act provides for management of trusts to which
Chapter X applies. Once application of Chapter X is conceptualized by
issuance of a notification in terms of Section 52 of the Act, indisputably
Section 53 would be attracted. As indicated hereinbefore, whereas the
learned Single Judge was of the opinion that it is imperative on the part of
the State Government to issue an appropriate notification constituting a
committee of management in respect of the temple in question, the Division
Bench opined that some element of discretion exists in the State
Government.
A plain reading of the provisions of Section 53 of the Act would show
that it contemplates vesting of public trust in the State Government.
Different dates may be appointed for different purposes. Once Chapter X is
found to be applicable, subject to fixation of an appointed date, the
management vests in a committee. Such a committee of management is to
be constituted by the State Government in the manner provided therein. The
said provision contains a non-obstante clause and, therefore, the same would
prevail over anything contained in any provision of the Act or in any law,
custom or usage in force.
The State Government, in our opinion, does not have any
discretionary jurisdiction to exercise in the matter of appointment of a
committee of management. It is imperative in nature. The expression
"shall" used in Sub-sections (1) and (2) of Section 53 of the Act indicates
that the natural and ordinary meaning of the words used by the legislature
require that a committee of management must be constituted. The
expression "shall" ordinarily implies the imperative character of the law.
Even if the expression "shall" is read as "may" although there does
not exist any reason therefor, the statute provides for a power coupled with a
duty. It is a well-settled principle of interpretation of statutes that where
discretion is conferred upon a public authority coupled with discretion, the
word "may" which denotes discretion, should be construed to mean a
command.
In Commissioner of Police, Bombay v. Gordhandas Bhanji [1952
SCR 135], it is stated:
"We have held that the Commissioner did not in
fact exercise his discretion in this case and did not
cancel the license he granted. He merely forwarded
to the respondent an order of cancellation which
another authority had purported to pass. It is
evident from these facts that the Commissioner
had before him objections which called for the
exercise of the discretion regarding cancellation
specifically vested in him by Rule 250. He was
therefore bound to exercise it and bring to bear on
the matter his own independent and unfettered
judgment and decide for himself whether to cancel
the license or reject the objections. That duty he
can now be ordered to perform under section 45."
In State of Uttar Pradesh v. Jogendra Singh [(1964) 2 SCR 197], this
Court observed:
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"Rule 4(2) deals with the class of gazetted
government servants and gives them the right to
make a request to the Governor that their cases
should be referred to the Tribunal in respect of
matters specified in clauses (a) to (d) of sub-rule
(1). The question for our decision is whether like
the word "may" in rule 4(1) which confers the
discretion on the Governor, the word "may" in sub-
rule (2) confers discretion on him, or does the
word "may" in sub-rule (2) really mean "shall" or
"must"? There is no doubt that the word "may"
generally does not mean "must" or "shall". But it is
well-settled that the word "may" is capable of
meaning "must" or "shall" in the light of the
context. It is also clear that where a discretion is
conferred upon a public authority coupled with an
obligation, the word "may" which denotes
discretion should be construed to mean a
command. Sometimes, the legislature uses the
word "may" out of deference to the high status of
the authority on whom the power and the
obligation are intended to be conferred and
imposed. In the present case, it is the context
which is decisive. The whole purpose of rule 4(2)
would be frustrated if the word "may" in the said
rule receives the same construction as in the sub-
rule (1). It is because in regard to gazetted
government servants the discretion had already
been given to the Governor to refer their cases to
the Tribunal that the rule-making authority wanted
to make a special provision in respect of them as
distinguished from other government servants
falling under rule 4(1) and rule 4(2) has been
prescribed, otherwise rule 4(2) would be wholly
redundant. In other words, the plain and
unambiguous object of enacting rule 4(2) is to
provide an option to the gazetted government
servants to request the Governor that their cases
should be tried by a Tribunal and not otherwise.
The rule-making authority presumably thought that
having regard to the status of the gazetted
government servants, it would be legitimate to give
such an opinion to them\005"
In State (Delhi Admn.) v. I.K. Nangia and Another [(1980) 1 SCC
258], this Court opined:
"We are clear that the Explanation to Section
17(2), although in terms permissive, imposes a
duty upon such a company to nominate a person in
relation to different establishments or branches or
units. There can be no doubt that this implies the
performance of a public duty, as otherwise, the
scheme underlying the section would be
unworkable. The case, in our opinion, comes
within the dictum of Lord Cairns in Julius v. Lord
Bishop of Oxford:
There may be something in the nature of the thing
empowered to be done, something in the object for
which it is to be done, something in the conditions
under which it is to be done, something in the title
of the person or persons for whose benefit the
power is to be exercised, which may couple the
power with a duty, and make it the duty of the
person in whom the power is reposed to exercise
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that power when called upon to do so.
The Explanation lays down the mode in which the
requirements of Section 17 (2) should be complied
with. Normally, the word ’may’ implies what is
optional, but for the reasons stated, it should in the
context in which it appears, mean ’must’. There is
an element of compulsion. It is power coupled
with a duty. In Maxwell on Interpretation of
Statutes, llth Edn. at p. 231, the principle is stated
thus:
Statutes which authorise persons to do acts for the
benefit of others, or, as it is sometimes said, for the
public good or the advancement of justice, have
often given rise to controversy when conferring the
authority in terms simply enabling and not
mandatory. In enacting that they "may" or "shall,
if they think fit", or, "shall have power", or that "it
shall be lawful" for them to do such acts, a statute
appears to use the language of mere permission,
but it has been so often decided as to have become
an axiom that in such cases such expressions may
have-to say the least-a compulsory force, and so
could seem to be modified by judicial exposition.
(Emphasis supplied)
Though the company is not a body or authority,
there is no reason-why the same principle should
not apply. It is thus wrong to suggest that the
Explanation is only an enabling provision, when its
breach entails in the consequences indicated
above. It is not left to one’s choice, but the law
makes it imperative. Admittedly, M/s. Ahmed
Oomer Bhoy had not at the material time,
nominated any person, in relation to their Delhi
branch. The matter is, therefore, squarely covered
by Section 17 (1) (a) (ii)."
Although there is no ambiguity, even if there be any, the marginal
note may be taken into consideration for the purpose of proper construction
of the provision. [See N.C. Dhoundial v. Union of India, (2004) 2 SCC 579]
Once it is held that Chapter X of the Act applies, the court must bear
in mind that the provisions contained in the said Chapter provide for a set of
provisions in regard to the management of trust. There does not exist any
other provisions providing for the same.
Mr. Mukul Rohtagi, learned senior counsel appearing on behalf of the
State of Rajasthan, however, would submit that in view of the fact that the
management of the temple is vested in the Devasthan Commissioner, the
provisions of the Act, far less Chapter X, will apply to the temple in
question.
An exemption provision, as is well-known, must be strictly construed.
Sub-section (1) of Section 77 of the Act exempts only those trusts which are
administered by any agency under the control of the State Government or by
any local authority. Whether the Devasthan Commissioner would be the
agency of the State is, therefore, the question. Devasthan Commissioner is a
statutory authority. He is an officer of the State. He exercises various
functions under the Act. The Act postulates constitution of Advisory Boards
and Advisory Committee. Their duties and functions are prescribed. In
regard to various provisions of the Act, Devasthan Commissioner
indisputably has statutory duties to perform. The Act does not provide that
he may be put in charge of the management of any trust falling under
Section 52 of the Act. As indicated hereinbefore, Section 53 of the Act
contains a non-obstante clause. It is of wide import.
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A statutory authority, as is well-known, must act within the four
corners of the statute. [See Taylor v. Taylor, (1875) 1 Ch D 426] Any
action by a statutory authority contrary to or inconsistent with the provisions
of the statute, thus, would be void. In the matter of construction of a statute,
therefore, the court shall not take recourse to a principle which would render
the acts of a statutory authority void in law.
A statutory authority cannot, in absence of the provisions of a statute,
be treated to be an agency of the State. It is one thing to say that the State
exercises statutory control over the functions of a statute but it is another
thing to say that thereby an agency is created which would be separate in
entity over which the State exercises control. Agency of a State would
ordinarily mean an instrumentality of a State. It must be a separate legal
entity. A statutory authority does not answer the description of an agency
under the control of the State.
The expression agency in the context of the statutory scheme would
not mean that there would exist a relationship of principal and agent between
it and the State. Agency of a State would mean a body which exercises
public functions. It would itself be a ’State’ within the meaning of Article
12 of the Constitution of India. The concept of an agency in the context of
Section 77 of the Act must be considered having regard to the fact that the
statute contemplates grant of exemption to a public trust, management
whereof vests inter alia in a local authority. A "local authority" is defined in
Section 3(31) of the General Clauses Act to mean "a municipal committee,
district board, body of port commissioners or other authority legally entitled
to, or entrusted by the Government with, the control or management of a
municipal or local fund." It, thus, ordinarily would be a statutory authority.
Although golden rule of interpretation, viz., literal rule should be
given effect to, if it is to be held that the Devasthan Commissioner appointed
under Section 7 of the Act would be an agency of the State, the same would
lead to an absurdity or anomaly. It is a well-known principle of law that
where literal interpretation shall give rise to an anomaly or absurdity, the
same should be avoided. [See Ashok Lanka v. Rishi Dixit, (2005) 5 SCC
598 and M.P. Gopalakrishnan Nair v. State of Kerala,(2005) 11 SCC 45]
It is also well-settled that the entire statute must be first read as a
whole then section by section, clause by clause, phrase by phrase and word
by word. [See Reserve Bank of India v. Peerless General Finance and
Investment Co. Ltd. and Others, (1987) 1 SCC 424] The relevant provisions
of the statute must, thus, be read harmoniously. [See Bombay Dyeing
(supra) and Secretary, Department of Excise & Commercial Taxes and
Others v. Sun Bright Marketing (P) Ltd., Chhattisgarh and Another [(2004)
3 SCC 185]. It would, therefore, not be possible to give literal interpretation
to Section 77 of the Act.
Different provisions contained in different Chapters of the Act must,
as far as possible, receive harmonious construction. With a view to give
harmonious construction, the effect of an exemption clause must be borne in
mind. It has not been denied or disputed that keeping in view the different
clauses contained in Section 52 of the Act, public trusts which had vested in
the State would come within the purview of the Chapter X. Once it is held
that all those trusts would also go out of the statute, the provisions of
Chapter X would become otiose in a large number of cases. Application of
such principle of interpretation is not permissible.
It is, therefore, incumbent for us to take recourse to harmonious
construction. If principle of harmonious construction is applied, in a case of
this nature, particularly, when the State itself has acted upon the directions
of the court and had issued notifications in terms of Section 52 of the Act,
the State cannot now be permitted to contend that Chapter X shall not apply.
It could not approbate and reprobate at the same time.
There is another aspect of the matter which cannot also be lost sight
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of. The State not only in the earlier round of litigation but also before the
High Court had taken a categorical stand that it had all along been ready and
willing to act in terms of the provisions of Chapter X of the Act and appoint
a Committee; it cannot take a different stand now.
In Karamshi Jethabhai Somayya v. State of Bombay (now
Maharashtra) [AIR 1964 SC 1714], this Court stated the law, thus:
"\005 Apart from the fact that the appellant asked for
the production of all the relevant documents, the
Government, being the defendant in this case,
should have produced the documents relevant to
the question raised. While it is the duty of a private
party to a litigation to place all the relevant matters
before the Court, a higher responsibility rests upon
the Government not to withhold such documents
from the court..."
In Cooke v. Rickman [(1911) 2 KB 1125] , it was held that the rule of
estoppel could not be restricted to a matter in issue, stating :
"\005The rule laid down in Hawlett v. Tarte (10 C.B.
(N.S.) 813 \026 was that if the defendant in a second action
attempts to put on the, record a plea which is inconsistent
with any traversable allegation in a former action
between the same parties there is an estoppel\005"
[See also Humphries v. Humphries 1910 (2) KB 531]
In Jai Narain Parasrampura (Dead) and Others v. Pushpa Devi Saraf
and Others [(2006) 7 SCC 756], this Court held :
"While applying the procedural law like principle
of estoppel or acquiescence, the court would be
concerned with the conduct of a party for determination
as to whether he can be permitted to take a different stand
in a subsequent proceeding, unless there exists a statutory
interdict."
It was further held :
"The doctrine of estoppel by acquiescence was not
restricted to cases where the representor was aware both
of what his strict rights were and that the representee was
acting on the belief that those rights would not be
enforced against him. Instead, the court was required to
ascertain whether in the particular circumstances, it
would be unconscionable for a party to be permitted to
deny that which, knowingly or unknowingly, he had
allowed or encouraged another to assume to his
detriment. Accordingly, the principle would apply if at
the time the expectation was encouraged."
The stand of the State in the earlier round of ligitation was that the
temple in question was a Hindu temple. This Court categorically opined that
it is a Jain temple. The principles of res judicata, thus, would come into
play. The State, therefore, cannot still contend that the temple in question is
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a Hindu temple. Before us, the Respondent Nos. 1 to 4 in Civil Appeal No.
4086-4089 of 2002 have raised a contention that it is a Hindu temple but we
cannot permit the State or the said respondents to raise such a contention
before us. We are bound by the earlier judgment. The issue cannot be
permitted to be reopened nor we have any jurisdiction in these matters to do
so.
We must, however, observe that the question as to whether the temple
in question is Swetambers’ or Digambers’ does not fall for our
consideration. Both parties have staked their own claims. It is for the State
to act in terms of the statute. While doing so, it indisputably would have to
give effect to the directions issued by the High Court.
While implementing the said directions, the incidental or ancillary
questions which may arise for consideration before the State Government
must also be determined in accordance with law.
For the reasons aforementioned, we are of the opinion that the
modifications made by the Division Bench of the High Court are not
sustainable. They are set aside accordingly. The judgment of the learned
Single Judge is upheld. The judgment of the High Court may be complied
within four months from date. Civil Appeal Nos. 4092-4095, 4086-4089
and 4076-4079 of 2002 are allowed and Civil Appeal Nos. 4081-4084 of
2002 are dismissed with costs. Counsel’s fee is assessed at Rs. 50,000/- for
each set of appeals.