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PETITIONER:

NAR HARI SASTRI AND OTHERS

Vs.

RESPONDENT:

SHRI BADRINATH TEMPLE COMMITTEE.

DATE OF JUDGMENT:

09/05/1952

BENCH:

MUKHERJEA, B.K.

BENCH:

MUKHERJEA, B.K.

FAZAL ALI, SAIYID

DAS, SUDHI RANJAN

CITATION:

1952 AIR 245 1952 SCR 849

CITATOR INFO :

R 1971 SC2540 (16)

RF 1987 SC2064 (7)

ACT:

Hindu law--Religious Endowments--Right to worship--Right

of Pandas to accompany worshippers to temple--Bye-law of

temple committee to prohibit taking of gifts within temple

precincts --Validity--Badrinath Temple Act, 1939, ss. 3, 4.

HEADNOTE:

The right of the Deoprayagi Pandas to enter the Badri-

nath Temple along with their Yajmans is not a precarious or

permissive right depending for its existence on the arbi-

trary discretion of the temple authorities; it is a legal

right in the true sense of the expression, but it can be

exercised only subject to the restrictions which the temple

committee may impose in good faith for maintenance of order

and decorum within the temple and for ensuring proper per-

formance of customary worship.

There is nothing in the Badrinath Temple Act, 1 939,

which vests in the temple committee or the idol, gifts made

to Pandas within the precincts of the temple. But bye-law

(8) of the Puja Bye-laws framed by the temple committee

which forbids the acceptance of gifts by any person within

the precincts of the temple unless he comes within the

category of persons specifically authorised by the committee

to receive the same is a valid bye-law, which it was quite

competent for the committee to enact under the terms of

clauses (m) and (n) of sec. 25 of the Act and in view of

this bye-law the Pandas are not entitled to a declaration by

the Court that they have a right to take, within the pre-

cincts of the temple, whatever they receive as gifts at the

time of worship.

JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 105 of

1951.

On appeal from the judgment and decree dated the 22nd

November, 1946, of the High Court of Judicature at Allahabad

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(Verma c.J. and Mathur J.) in First Appeal No. 310 of 1941

arising out of judgment and decree dated the 4th March,

1941, of the Court of the Senior Civil Judge of Pauri,

Garhwal, in Original Suit No. 1 of 1934.

K.S. Krishnaswamy lyengar (R. C. Ghatak and N.C. Sen,

with him) for the appellants.

S.K. Dar (D. D. Unival, with him) for the respondent.

850

1952 May 9. The Judgment of the Court was delivered by

MUKHERJEA J.--The sanctity which orthodox Hindu

thought and feeling attribute to visiting of sacred places

is nowhere better illustrated than in the vast concourse of

pilgrims, who are attracted every year, from all parts of

India, to the mountain shrines at Badrinath, situated, high

up in the Himalayas, in the District of Garhwal. The place

to which the appellation of 'Puri' is given, contains a

number of temples but the principal temple is the one where

the idol Badrinath along with some other subsidiary idols

is installed. This main temple is divided into three por-

tions or apartments, and to the innermost portion which is

considered to be the holiest and where the deities are

located, no pilgrim is allowed access. The pilgrims gather

in the middle room; they have 'darshan' or look at the deity

from this place and there also they make their offerings and

perform other rites of individual worship. The last room is

an outer apartment which is used as a sort of waiting place

for the worshippers. Outside the temple and at a short

distance from it, there is a hot spring known as Tapta Kundu

where the worshippers take ceremonial bath before they enter

into the temple and to the Tapta Kundu they come back again

after the ceremonies are over.

The temple at Badrinath is an ancient institution and is

admittedly a public place of worship for the Hindus. The

chief priest or ministrant of the temple is known by the

name of 'Rawal' who originally looked after both the spirit-

ual and temporal affairs of the idol subject to certain

rights of supervision and control exercisable by the Tehri

Durbar which, however, were not very clearly defined.

It appears that there was a scheme for the management of

the temple framed by the Commissioner of Kumaun Division,

within whose jurisdiction Badrinath is situated, some time

in the year 1899. Under this scheme, the 'Rawal' was to be

the sole

851

trustee of the Badrinath temple and its properties, and

the entire management was entrusted to him subject to his

keeping accounts, which he had to submit for approval by the

Tehri Durbar, and making arrangements for the disposal and

safe custody of cash receipts and other non-perishable

valuables. This scheme apparently did not work well and led

to constant friction between the 'Rawal' on the one hand and

the Tehri Durbar on the other. This unsatisfactory state of

affairs led to public agitation and demand for reforms, and

in 1939, the U.P.Legislature passed the Sri Badrinath Temple

Act, the object of which was to remove the chief defects in

the existing system of management. The Act restricts the '

Rawal' to his priestly duties and the secular management is

placed in the hands of a small committee, the members of

which are partly elected and partly nominated, powers being

reserved to the Government to take steps against the commit-

tee itself, if it is found guilty of mismanagement. The Act

preserves the traditional control of the Tehri Durbar.

The appellants before us, who were the plaintiffs in the

trial Court, claim to be Pandas associated with the Badri-

nath temple. The Pandas are Brahmans belonging to the

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priestly class and are found to exist in almost all impor-

tant public places of worship in India. They are not temple

priests in the proper sense of the expression and have

nothing to do with the regular worship of the idol which is

carried on by the Shebayat, the High Priest or the manager

as the case may be. Their chief duty consists in acting as

guides or escorts of the pilgrims, and taking them to var-

ious places of worship acquainting them at the same time

with detailed information regarding the reputed sanctity of

each. They look after the comforts of the pilgrims and make

arrangements for their boarding and lodging and also act as

Tirtha Purohits, in which capacity they assist the pilgrims

in the performance of various acts of individual worship as

distinguished from the general worship which is conducted by

or on behalf of the temple authorities.

852

It is admitted that there are several classes of Pandas

in Badrinath and the Deoprayagi Pandas to which category the

plaintiffs belong get normally the charge of all the pil-

grims that come from the plains, whereas the Pandas of

the 'Dimri' class act as attendants on all hill people. the

people coming to Badrinath from the plains generally follow

the pilgrim's route from. Hardwar to Badrinath and in this

route, at a distance of about 58 miles from Hardwar, stands

the place known as Deoprayag where all the Deoprayagi Pandas

reside.

It is in the light of these few introductory facts that

we propose to follow the history of this litigation and deal

with the points in controversy that it has given rise to.

The suit was commenced by the appellants in the Court of

the Senior Civil Judge of Garhwal on 16th April, 1934, and

the only defendant in the suit, as it was filed originally,

was the 'Rawal' who was at that time in entire charge of the

Badrinath institution, both as Trustee and High Priest. The

suit was a representative one and purported to be brought on

behalf of all the Deoprayagi Pandas, and permission of the

Court under Order I, rule 8, of the Civil Procedure Code was

duly taken. The allegations in the plaint in substance are

that the plaintiffs who are a body of Brahman Purohits

residing at Deoprayag and also at Badrinath have the right,

by immemorial custom, to act as Pandas and 'Tirtha Purohits'

of the pilgrims at Badrinath. It is said that in performance

of their duties they meet the pilgrims at Hardwar and con-

duct them throughout the pilgrimage to different places of

sanctity and finally to Badrinath itself. Besides looking to

their creature comforts, they assist the pilgrims, while

they stay at Badrinath, in having their ceremonial ablutions

in the 'Tapta Kundu' and then conduct them into the pre-

cincts of the temple and assist them in having

853

'darshan' of the idols and making offerings to them. The

plaintiffs aver that because of the support that they lent

to the transfer of the management of the temple from the

'Rawal' to the Tehri Durbar, the defendant 'Rawal' was

displeased with them and in August 1933, wrongfully and

without any just cause or excuse. obstructed and threatened

to obstruct the plaintiffs from entering the precincts of

the temple along with their Yajmans or clients and unlawful-

ly restrained them from assisting the pilgrims in the usual

way at the time of 'darshan' and worship of the deities

inside the temple. The reliefs prayed for in the plaint

after it was amended stand as follows :--

(1) That a declaration be granted that the plaintiffs are

the Pandas of Badrinath temple and that they have a right to

personally go into the precincts of the Badrinath temple at

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all times and on all occasions without obstruction when the

said temple is open for doing 'darshan', worship etc.

(2) That the plaintiffs have the right freely to go into

the precincts of the said temple with their Yajmans or

clients whenever it is open for assisting them in the matter

of 'darshan' or worship of God Badrinarayan and other dei-

ties and in the matter of making offerings to them.

(3) That the plaintiffs have the right to take within the

precincts of the said temple whatever is put into their

hands as gift by their clients at the time of worship etc.

(4) That a perpetual injunction be issued restraining

the defendant 'Rawal' from interfering with the immemorial

rights of the plaintiffs.

The defendant, in his written statement, admitted that

the Pandas did sometimes accompany rich pilgrims as their

guides and receive presents from them for the services they

rendered. It was also admitted that the plaintiffs in their

individual capacity as Hindus had the right to enter the

temple of Badrinath for purposes of worship. It was assert-

ed, however,

854

that it was neither necessary nor desirable that the

plaintiffs should. be allowed to accompany their Yajmans or

clients into the temple, as the defendant himself made

adequate arrangements for 'darshan' and worship by

the.pilgrims; and he, as the sole trustee and manager of the

temple, had the right to regulate entry into the temple so

that over-crowding might be avoided and order maintained

inside it. It was further pleaded that the suit of the

plaintiffs was barred by res judicata and the law of limita-

tion.

On these pleadings, two issues of a preliminary nature

were framed by the Civil Judge, one of them being, whether

the plaintiffs' suit was barred by res judicata. This issue

was decided against the plaintiff and the Civil Judge dis-

missed the suit on 18-9-1934 holding that the suit was

barred by the rule of res judicata, as an earlier suit

brought by five of the Deoprayagi Pandas and claiming iden-

tical reliefs against the 'Rawal' was dismissed by the

Commissioner of the Kumaun Division in the year 1896.

Against this order of dismissal, an appeal was taken by the

plaintiffs to the High Court of Allahabad and a Division

Bench of the High Court, by its judgment dated 23rd May,

1938, reversed the decision of the Civil Judge on this

preliminary point and remanded the case for hearing of the

suit on its merits. The case then went back before the

Civil Judge and while it was still pending, the Sri

Badrinath Temple Act was passed. A temple committee being

formed in accordance with the provisions of this Act. the

said committee through its Secretary, was impleaded as

Defendant No. 2 in the suit. The committee filed a fresh

written statement in which certain additional grounds were

taken. It was contended primarily that the suit as framed,

was not maintainable by reason of the provisions of Sri

Badrinath Temple Act of 1939, which abrogated all previous

rights and customs and vested the ownership of the temple

and its endowments in the temple committee. It was asserted,

further, that all gifts made within the precincts of the

temple would vest in the temple

855

committee under section 3(b) of the Act and that the commit-

tee had the absolute right to regulate entry of persons

inside the temple.

A number of issues were framed after this written state-

ment was filed, and on hearing the evidence adduced by the

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parties, the Civil Judge disposed of the suit by his judg-

ment dated 4th March, 1941. The suit was decreed in part

and the plaintiffs were given a declaration in their favour

on one of the points in an attenuated and restricted form.

Besides certain pleas in bar which were raised by the de-

fendants in their written statements and in regard to which

the trial judge's decision was in favour of the plaintiffs,

the substantial controversy between the parties centred

round the two following points:

(1) Whether the Deoprayagi Pandas could accompany

their Yajmans or clients inside the temple and assist them

in the 'darshan' and worship of the deities

(2) Whether the Pandas would have the right to accept

within the precincts of the temple whatever was paid by the

pilgrims as gifts or presents to them and not to the temple

?

As regards the first point, the learned Civil Judge

reviewed the entire evidence relating to the practice of

admitting the Pandas along with their Yajmans inside the

temple, as it obtained from very early times down to the

date of the institution of the suit. It appears that in 1892

certain rules were framed by the then 'Rawal' for regulation

of pilgrims in the Badrinath temple, and to these rules the

Commissioner of Kumaun Division accorded his sanction on 4th

July, 1892. One of these rules, namely Rule (3), expressly

laid down that "at the time of 'darshan' by the pilgrims, no

other persons and Pandas shall be allowed to go inside the

temple along with the pilgrims". On 22nd October, 1894, an

application was filed before the Commissioner of Kumaun

Division by some residents of Deoprayag complaining of

unjust prohibition from entering the temple by the new

manager and it was prayed that directions might

111

856

be given to the said Manager to desist from encroaching upon

the time-honoured rights of the Pandas. On 28th October

1894, the Commissioner ordered that a copy of the petition

might be sent to the Manager. for report and in the body of

the order he recorded his opinion that "the duty of the

Pandas consists normally in escorting the pilgrims to

the temple precincts. Their entering the temple can be

permitted when they did so as pilgrims." The petition was

eventually rejected, and on 19th August, 1895. five Deopray-

agi Pandas filed a suit in the Court of the Deputy Collec-

tor, Garhwal, who was invested with the powers of a Civil

Court, praying for a declaration of their right to go

inside the temple with their Yajmans which the 'Rawal' was

not willing to allow unless he gave special permission. The

trial court allowed the plaintiffs' prayer but, on appeal,

the judgment was reversed and the suit was dismissed. This

order of dismissal was affirmed on Second Appeal by the

Commissioner of Kumaun Division who had the powers of a High

Court in regard to this area, by his order dated 9th

March, 1896. This is the earlier decision on the strength

of which the plea of res judicata was taken by the defend-

ant in the present suit. According to the learned Civil

Judge, after the rules as mentioned above were

framed in 1892 and the judgment of the Commissioner, Kumaun

Division, in the Civil Suit was given in 1896, it was

the 'Rawal' who decided whether or not he would give

permission to any particular Panda to go inside the temple

as an escort of his Yajmans and practice was almost

uniform on this point down to the year 1903. The same

practice prevailed, according to the learned Judge, from

1903 to 1920. From 1921, however, the practice became lax

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to a great extent and from the evidence of respectable

witnesses examined on behalf of the plaintiffs, the learned

Judge was of opinion that in many cases the Pandas

were able to go inside the temple without any let or

hindrance and without seeking any express permission from

the 'Rawal'. A definite challenge to the rights of the

Pandas occurred again in 1933 which led

857

to the institution of the present suit. After reviewing

this evidence, the learned Civil Judge discussed the provi-

sions of the Shri Badrinath Temple Act bearing on this point

,and summed up his conclusions as follows: -

"In my view under the scheme of the Shri Badrinath Act,

the Pandas or pilgrims have no absolute right to go inside

the temple, regardless of the conditions imposed by the

Committee about entry into the temple, but ordinarily in the

entry of the pilgrims or Pandas is in accordance with the

rules or bye-laws framed by the Committee the pilgrims can

always go inside accompanied by their Pandas, who are enti-

tled as devout Hindus to go inside the temple, and perform

worship there, and can assist their Yajmans also. In other

words, there is no right of the plaintiffs which has to be

recognised, and can be recognised, on the grounds of custom,

usage, or otherwise, that they can without any let or hin-

drance and regardless of the conditions imposed by the

Committee, enter the temple with the pilgrims whenever they

like. Like other pilgrims, and persons who are all subject

to the control of the conditions that may be imposed by the

Committee, the Deoprayagi Pandas can also enter the temple,

perform worship there, and even help their Yajmans who

happen to be inside the temple. To lay down an absolute

prohibition against them would not be in accordance with the

provisions of Shri Badrinath Temple Act, and similarly to

recognise that they have an absolute right to enter the

temple with the pilgrims, would also nullify a number of

provisions in the Shri Badrinath Temple Act. Issue No. 2 is

decided accordingly in the negative, but subject to recogni-

tion of the conditional right of the plaintiffs to accompany

their pilgrims and help them in the 'darshan', as mentioned

above subject to the control of the Committee."

In spite of this finding, which is certainly not very

definite the Court dismissed in toto the plaintiffs' prayer

No. 2 in the plaint, the reason given being that

858

no absolute right as was claimed by the plaintiffs was

established on the footing of a custom or otherwise.

As regards the other point, the learned Judge was of opin-

ion that although a Panda had no absolute right to go

inside the temple along with his clients, yet if the commit-

tee or the temple authorities allowed him to do so, there

was nothing in law or custom which could prevent him from

accepting a gift which any pilgrim might desire to make in

his favour. The result was that the learned Judge gave the

plaintiffs a declaration in the following terms :--

"The plaintiffs' suit is decreed for a declaration that

they have a right to accept within the precincts of the

temple whatever was put into their hands as gifts (Dan or

Dakshina or Shankalp) by the pilgrims, for the benefit of

the plaintiffs and not the temple, and to retain such gifts

for their personal benefit. This right is however subject to

the administrative control of the temple committee so far as

the maintenance of order and decency and the enforcement of

proper behaviour within the temple are concerned. The

exercise of this right will further be restricted by any

special or general conditions imposed by the Committee of

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management under any bye-law framed by it in accordance with

the provisions of Shri Badrinath Temple Act or any other

special law that may hereafter be applicable to the temple."

The rest of the plaintiffs' claim was dismissed.

Against this judgment, the plaintiffs took an appeal to the

High Court of Allahabad. The defendants also preferred

cross-objections challenging the propriety of that part of

the trial Court's decree which was in favour of the plain-

tiffs. The appeal was heard by a Division Bench consist-

ing of Varma C.J. and Mathur J. and, by their judgment

dated 22nd November, 1946, the learned Judges dismissed the

plaintiffs' appeal and allowed the cross objections filed by

the defendants. Thus, the decision resulted in a total

dismissal of the plaintiffs' suit. It is from this judgment

that the present appeal has come before us,

859

It was held by the High Court that the plaintiffs failed

miserably to establish that there was any immemorial usage

in existence under which they were entitled to accompany the

pilgrims, as of right, inside the precincts of the temple.

It was held also that even if any such usage existed, that

must be deemed to have been abrogated by the provisions of

Shri Badrinath Temple Act, and reference was made in this

connection to section 25 (1)(m) of the Act, which empowers

the temple committee to frame bye-laws not inconsistent with

the provisions of the Act for the "maintenance of order

inside the temple and regulating the entry of persons there-

in."

It is to be noted that after the judgment of the trial

court was delivered and the appeal came up for hearing

before the High Court, the Badrinath Temple Committee passed

a resolution which was approved of by the Governor of the

U.P. State, and was to the following effect :-

"Subject to the provision of bye-laws and any direction

given by the committee, the Pandas can accompany their

Yajmans within the temple."

This resolution was communicated to the plaintiffs by

the 2nd defendant by a letter dated 29th May, 1942, and

undoubtedly after passing of this resolution, the grievance

of the plaintiffs in regard to temple entry disappeared to a

large extent. The High Court however, refused to give the

plaintiffs a declaration of their right in this respect even

in a limited form as, in its opinion, the plaintiffs could

not claim such declaration as a matter of right. The view

taken by the High Court seems to be that it is entirely for

the committee to decide, whether the Pandas should be al-

lowed to enter the temple at all, and, if so, to what extent

and under what conditions.

On the other question relating to the right of the

plaintiffs to accept gifts made in their favour by the

pilgrims within the precincts of the temple, it was held by

the High Court that under section 3 (b) of the Shri Badri-

nath Temple Act, such gifts would become part of the endow-

ment,. and the donees would be

860

incapable of laying any claim to the same. It was further,

held that bye-law (8) of the Puja Bye-laws framed by the

temple committee which prevents a person other than

those whose rights have been specifically recognised by the

Committee, from receiving any gifts within the precincts of

the temple, was quite a legitimate provision the making of

which was within the rule-making authority of the committee

of management. It was held, therefore, that in view of this

rule, the plaintiffs' claim in regard to receiving of gifts

within the temple was not maintainable in law.

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Mr.Iyengar, appearing in support of the appeal before

us, has assailed the propriety of the High Court's decision

on both these points.

The first point that requires consideration is whether

the plaintiffs can, on the facts admitted and found in this

case, claim a declaration of their right to accompany the

Yajmans or clients inside the Badrinath temple and assist

them in having 'darshan' of the deities and in performing

such ceremonies as individual worshipers may perform. Mr.

Dar, who appears on behalf of the respondents, draws our

attention to the fact that this right has practically been

conceded by the temple committee in their resolution passed

in March, 1942, referred to already, The learned counsel has

very fairly stated. to us that he would have no objection if

the plaintiffs are given a declaration of their rights in

this respect in some suitable form as might safeguard their.

interest, without in any way trenching upon the rights of

temple committee and thereby obviate all disputes in the

future.

It seems to us that the approach of the court below to

this aspect of the case has not been quite proper, and, to

avoid any possible misconception, we would desire to state

succinctly what the correct legal position is. Once it is

admitted, as in fact ha.s been admitted in the present case,

that the temple is a public place of worship of the Hindus,

the right of entrance into the temple for purposes of

'darshan' or worship is a right

861

which flows from the nature of the institution itself, and

for the acquisition of such rights, no custom or in memorial

usage need be asserted or proved. As the Panda as well as

his client are both Hindu worshippers. there can be

nothing wrong in the one's accompanying the other inside

the temple and subject to what we will state presently,

the fact that the pilgrim, being a stranger to the spot,

takes the assistance of the Panda in the matter of 'darshan'

or worship of the deities or that the landa gets remunera-

tion from his client for the services he renders, does not

in any way affect the legal rights of either of them. In

law, it makes no difference whether one performs the act of

worship himself or is aided or guided by another in the

performance of them. If the Pandas claim any special right

which is not enjoyed ordinarily by members of the Hindu

public, they would undoubtedly have to establish such rights

on the basis of custom, usage or otherwise.

This right of entry into a public temple is, however,

not an unregulated or unrestricted right. It is open to the

trustees of a public temple to regulate the time of public

visits and fix certain hours of the day during which alone

members of the public would be allowed access to the shrine.

The public may also be denied access to certain particularly

sacred parts of the temple, e.g., the inner sanctuary or as

it is said the Holy of Holies' where the deity is actually

located. Quite apart from these, it is always competent to

the temple authorities to make and enforce rules to ensure

good order and decency of worship and prevent overcrowding

in a temple. Good conduct or orderly behaviour is always an

obligatory condition of admission into a temple (1), and

this principle has been accepted by and recognised in the

Shri Badrinath Temple Act, section 25 of which provides for

framing of bye-laws by the temple committee inter alia for

maintenance of order inside the temple and regulating the

entry of persons within it(2).

(1) Vide Kalidas Jivram v. Gor Parjaram, I.L.R. 15 Bom. p.

309; Thackeray v. Harbhum, I.L.R. 8 Bom. p. 432.

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(2) Vide Section 25 (1)(m).

862

The true position, therefore, is that the plaintiffs' right

of entering the temple along with their Yajmans is not a

precarious or a permissive right depending for its existence

upon the arbitrary discretion of the temple authorities; it

is a legal right in the true sense of the expression but it

can be exercised subject to the restrictions which the

temple committee may impose in good faith for maintenance of

order and decorum within the temple and for ensuring proper

performance of customary worship. In our opinion, the

plaintiffs are entitled to a declaration in this form.

We now come to the other point which is the real bone

of contention between the parties to this appeal, and the

question for consideration is whether the plaintiffs are

entitled to a declaration that they have a right to take,

within the precincts of the temple, whatever is put into

their hands as gifts by their clients at the time of wor-

ship. The trial court, as pointed out above, gave the

plaintiffs a qualified declaration on this point, though

the High Court rejected this claim altogether. Mr. Iyengar

has vehemently assailed the propriety of the grounds

upon which the decision of the High Court rests, whereas

Mr. Dar has contended inter alia that the claim of the

plaintiffs under this head is wholly untenable in view of

the provision of bye-law (8) of the Puja Bye-laws framed by

the temple committee.

It may be stated at the outset that as the gift, if

any, which a pilgrim might choose to make within the temple

precincts is entirely a voluntary act on his part and as he

could not be compelled to make a gift either in favour of

the Pandas or anybody else, there could strictly speaking,

be no legal right in the plaintiffs to receive any gift from

his client which can be declared by a court of law. The

plaintiffs do accept the position that the pilgrims are not

bound' to give anything to the Pandas by way of Dakshina or

sacrificial fee at the conclusion of the ceremonies in the

temple; but what they say is this that if the pilgrims

choose to make any gift to them, the temple committee could

863

not, in law, prevent the latter from accepting the same and

treat such gifts as part of the temple property. It is

argued that bye-law (8) of the Puja Bye-laws is illegal and

ultra vires and cannot take away the legal right of the

donee to the gifted property under the ordinary law which

has not been and cannot be affected in any way by the provi-

sions of the Sri Badrinath

Temple Act.

A number of respectable witnesses examined on behalf of

the plaintiffs do say that when they went on pilgrimage to

Badrinath they made gifts to their Pandas inside the temple

at the close of the ceremony of darshan and worship. But

the evidence taken, even at its face value, does not estab-

lish that the practice of making gifts to Pandas within the

temple is a general one or that the pilgrims ,regard it as

an indispensable part of the ceremony of worship; many of

the witnesses plainly admit that they do not remember to

have made any gifts at all within the temple precincts and

others say that they paid dakshina or sacrificial fees to

all the Brahmans who were found inside the temple at that

time and not exclusively to their Pandas. It is also stated

that suphal or final blessing is Obtained from the Pandas by

the pilgrims after making presents to them at the place

called Tapta Kundu where the hot spring lies which is

outside the temple. Mr. Iyengar has drawn our attention

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to certain texts from the Kedar Kanda of Skanda Purana

which describe the glory of the deity Badrinath, to show

that it is a religious duty enjoined by the Hindu scriptures

that a worshipper who goes to Badrikasram should make gifts

to Brahmans after the darshan of the idol is obtained and

offerings are made to it. An English rendering of the

passages relied upon by the learned counsel would read

thus:-

"After having bathed in the Ganges, in the Narada Hrada

(Kund) and others (Hradas), one (worshipper) shall bathe in

the Vahni Tirth ( Tapta Kunda) after performing the obliga-

tory duties and with his mind

112

864

kept under control, he shall go into the temple of Badri-

nath with his. mind concentrated on Shri Hari. He shall make

offerings to the best of his capacity and with utmost devo-

tion. Then he shall look at the All Pervading Narayana from

crown to foot, and HERE make gifts to Brahmans to the best

of his capacity. Thereafter, he shall do PRADAKSHINA (go-

round) with the utmost devotion. Then he shall come back to

the Tirthas (Vahni Tirtha etc.) and make gifts according to

his means"(1).

It cannot and is not disputed that according to ortho-

dox Hindu ideas, gift to Brahmans is considered as a merito-

rious act and there are texts, to some of which Mr. Iyengar

drew our attention, which extol the merits of such gifts

when made at a sacred place or within a temple or on the

banks of a holy river. It may be as Mr. Iyengar suggests

that the idea of making gifts within the temple had its

origin in the religious texts to which the learned counsel

drew our attention. But, the point that requires considera-

tion in the present case is a different and much narrower

one. The question is whether under the powers of making

bye-laws which are conferred by the Sri Badrinath Temple Act

upon the managing committee, the latter could make a rule as

they have done, by which all persons other than those whose

rights are specifically recognised are disabled from receiv-

ing gifts within the precincts of the temple.

It is perfectly true that under the general law, nobody

can be prevented from accepting a gift which another person

may be inclined to make in his favour, and it is immate-

rial in such cases at what place the gift is actually

made. One has to enquire, therefore, on what grounds the

committee can interdict the taking of any gifts

within the temple precincts. The High Court seems to be of

opinion--and this view is sought to be supported on behalf

of the respondents before us--that the Sri Badrinath Temple

Act itself has in express

(1) Skanda purana, Kedar Khand, Badri Mahatma, Chapter

VI, Verses 46-49.

865

terms abrogated the rights of the donee in regard to a gift

made to him within the ,temple and as such gifts come

within the definition of 'endowment' as given in the Act,

the temple committee gets a controlling hand over them and

can make any regulations in relation thereto. Reliance is

placed in this connection upon section a (b) of the Sri

Badrinath Temple Act which lays down that the expression

"endowment" in relation to the Act "means all property

moveable or immoveable belonging to or given or endowed for

the maintenance or improvement of, or additions to, or

worship in the temple, or for the performance of any service

or charity connected therewith and includes the idols in-

stalled therein, the premises of the said temple and gifts

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of property made to anyone within the precints of the tem-

ple." The definition is undoubtedly couched in very wide

language but it is to be noted that under section 4 of the

Act which deals with the vesting of property, a gift does

not vest in the temple at all unless it is made for the

benefit of the temple or for the convenience, comfort or

benefit of the pilgrims.

It is conceded by Mr. Dar that a gift intended for the

personal benefit of the Pandas cannot vest in the temple

and this is quite in accordance with the existing

principles of Hindu law. He contends, however, that such

gifts could not vest in the donee, as well, in accordance

with the definition of ''endowment" given in section a (b)

of the Sri Badrinath Temple Act. In other words, according

to the interpretation which he would like to put upon sec-

tion 3 (b) of the Act, such gifts should be regarded as

totally void after the passing of the Act and consequently

title to the thing given would still remain in the donor

even after the gift is made. This does not seem to us to be

a sound view to take. If a legislation wants to take away

the proprietary right which a person acquires under the

ordinary law, it must express its intention in clear and

unambiguous terms. We are unable to spell any such intention

out of the language used in section 3 (b) of the Sri

866

Badrinath Temple Act. It may be that the wording of this

sub-section is defective and that there is an apparent

conflict between the provision of this sub-section and that

of section 4 of the Act. It is an arguable point whether

the expression "gifts of property made to any one" should

not be construed to mean grits made to any one for the

benefit of the temple or for other purposes as are specified

in section 4. But it is not necessary for our purpose to

express any opinion on that point in the present case. All

that we desire to say is that there is nothing in the Sri

Badrinath Temple Act which lays down that a gift made to any

person inside the temple and intended for the benefit of

that person shall not belong to him.

But, even if the gifts made within the temple and intend-

ed for the benefit of the donee personally cannot vest in

the temple under section 4 04 the Sri Badrinath Temple Act,

the question still remains whether the committee in exercise

of their powers to make bye-laws, can frame a rule that no

such gifts should be allowed to be made within the temple

and whatever gifts the pilgrims might choose to make in

favour of any person which is unconnected with offerings to

the deity must be made outside the temple precincts.

Section 25 of the Act empowers the committee to make

bye-laws not inconsistent with the Act or the rules made

thereunder or-any other law for a variety of purposes

which are enumerated in the different clauses of the sec-

tion; and clauses (m) and (n) run as follows:

(m) The maintenance of order within the temple or

inside the temple and regulating the entry of persons there-

in; and

(n) The performance of duties prescribed in section

2:3.

Section 23 lays down the duties of the committee and

sub-section (9)prescribes it to be duty of the committee to

do all such things as may be incidental and conducive to the

efficient management of the temple and endowments and the

convenience of the

867

pilgrims. In our opinion, bye-law (8) of the Puja Bye-laws

referred to above,' which forbids the acceptance of the

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gifts by any person within the temple, unless he comes

within the category of persons specifically authorised by

the committee to receive the same, is a perfectly legiti-

mate bye-law which it was quite competent for the committee

to enact under the terms of clauses (m)and (n)of 25 referred

to above. It will be remembered that the religious duty to

make gifts within the temple or at sacred places which is

enjoined on Hindu worshippers by the texts relied upon by

Mr. Iyengar has no particular reference to the Pandas who

accompany the worshipper. The injunction is to make gifts

in favour of Brahmans generally and the Pandas, because

they are Brahmans and happen to be available at the spot,

naturally become recipients of such gifts.It is a thing too

well known to require mention that in many of the Hindu

temples of renown in India, the pilgrims after their worship

is finished, or even before that, are literally beseiged by

an army of mendicants including many Sadhus or ascetics, the

begging Brahmans who abound in all sacred places, and even

people who are associated with various duties in the temple

itself. The presence of a large number of such persons who

certainly do not come inside the temple as worshippers is

positively detrimental to the maintenance of good order,

decency and solemnity in the temple and not unoften it is a

source of very great annoyance and discomfort to the pil-

grims themselves.It seems to us that one of the objects

which the temple committee had in view in framing these

byelaws was to prevent this religious mendicancy showing it

itself in an unseemly manner within the precincts of the

temple itself, Bye-law 8 of the Puja Bye-laws referred to

above, which prevents taking of a gift by any person within

the temple, lays down, further,that the permanent employees

of the temple shall not receive or solicit for any remunera-

tion, reward or Dakshina in any form from the pilgrims.

This prohibition is not confined to the temple but extends

also

868

to places outside it. Then again, bye-law 15 specifi-

cally provides that no Sadhu or beggar shall beg or sit for

begging for alms within the temple. We think, therefore,

that for the purpose of preventing overcrowding within the

temple and to ensure order, decency and worshipful behaviour

on the part of those who enter into it, the committee was

quite justified in framing this bye-law which lays down in

substance that whatever gifts a pilgrim might be desirous of

making and which is unconnected with the offerings to the

deity shall be made outside the temple precincts and not

inside it. In our opinion, the Pandas do not stand. to lose

anything by reason of this regulation and their grievance is

more or less a sentimental one.

As we have said already, the gift intended for the

Pandas can under no circumstances vest in the temple, but

a regulation of this character could certainly be deemed to

be necessary as conducive to efficient management of the

temple and endowments, the convenience of the pilgrims and

the maintenance of order and decent behaviour within the

temple precincts. We do not see how such bye-law can be said

to be, in any way, inconsistent with the provisions of the

Act. It is certainly confined to the circumstances contem-

plated by the Statute itself and is not repugnant to the

general principles of Hindu law which we have referred to

already. It does not, in our opinion, take away the proprie-

tary right of any person which is recognised under ordinary

law. Thus, although we cannot agree with the High Court of

Allahabad regarding the interpretation that it has put upon

sections 3 (b) and 4 of the Act, we think that bye-law 8 of

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the Puja Bye-laws is perfectly valid and is within the ambit

of the powers conferred upon the committee by section 25 of

the Act.

The appeal is thus allowed only in part. The plain-

tiffs shall have a declaration that they are entitled to

accompany their Yajmans inside the temple subject to any

bye-law or rule made by the committee in proper exercise of

their powers under section 25 of

869

the Sri Badrinath Temple Act. The other prayer of the

plaintiffs is rejected.

As the appeal succeeds in part and as it raised ques-

tions of general importance with regard to which there were

longstanding disputes between the parties, we think that

the proper order should be to direct each party to bear his

own costs in all the Courts. The costs of the defendant

shall come out of the temple funds.

Appeal allowed in part.

Agent for the appellants: C.P. Lal.

Agent for the respondent :S. S. Sukla.