Case: Nar Hari Sastri And Others Vs. Shri Badrinath Temple Committee

1. 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 temple as 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 portions 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 thespiritual 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 yearUnder this Scheme, the Rawal was to be the sole 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 committee itself, if it is found guilty of mis management. 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 Badrinath temple. The Pandas are Brahmans belonging to the priestly class and are found to exist in almost all important 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 various 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.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 pilgrims 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 pilgrims 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.6. 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.7. 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 O.1, R.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 Brahma 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 conduct them throughout the pilgrimage of 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 Taptha Kundu and then conduct them into the precincts of the temple and assist then in having 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 unlawfully 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 followsThat 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 all times and on all occasions without obstruction when the said temple is open for doing darshans, 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 deities 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 asserted, however, 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 Limitation.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 dismissed 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 identical 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 DivisionBench 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 committee under S.3(b) of the Act and that the committee had the absolute right to regulate entry of persons inside the temple.10. A number of issues were framed after this written statement was filed, and on hearing the evidence adduced by the parties, the Civil Judge disposed of the suit by his judgment dated 4th MarchThe 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 defendants in their written statements and in regard to which the trial Judges decision was in favour of the plaintiffs, the substantial controversy between the parties centered 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 theAs 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 time 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 JulyOne of these rules, namely, R. (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 the22nd 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 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 Deoprayagi Pandas filed a suit in the Court of the Deputy Collector, 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 defendant 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 the practice was almost uniform on this point down to the yearThe same practice prevailed according to the learned Judge, from 1903 to 1920. From 1921, however, the practice, became lax 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 to the institution of the present suit. After reviewing this evidence, the learned Civil Judge discussed the provisions of the Shri Badrinath Temple Act bearing on this point and summed up his conclusions asmy 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 if 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, entitled 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 hindrance 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 happened 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 recognition of the conditional right of the plaintiff 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 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 opinion that although a Panda had no absolute right to go inside the temple along with his clients, yet if the committee 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 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 Courts decree which was in favour of the plaintiffs. The appeal was heard by a Division Bench consisting 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.

Reasoning: 2. 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.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 immaterial 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 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 S.3 (b) of the Sri Badrinath Temple Act which lays down that the expression endowment in relation to the Act means"all property movable or immovable 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 installed therein, the premises of the said Temple and gifts of property made to anyone within the precincts of thedefinition is undoubtedly couched in very wide language but it is to be noted that under S.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 theother words, according to the interpretation which he would like to put upon S.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 unambigous terms. We are unable to spell any such intention out of the language used in S.3 (b) of the Sri 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 S.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 gifts madeto any one for the benefit of the temple or for other purposes as are specified in S.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 toseems to us that one of the objects which the Temple Committee had in view in framing these bye laws was to prevent this religious mendicancy showing 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 the 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 remuneration, reward or Dakshina in any form from the pilgrims. This prohibition is not confined to the temple but extends also to places outside it. Then again, Bye law 15 specifically provides that no Sadhu or beggar shall bag or sit for begging for alms within the temple. We think, therefore, that for the purpose of preventing over crowding 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 gift 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 contemplated 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 proprietary 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 S.3 (b) and 4 of the Act, we think that Bye law 8 of the Puja Bye laws is perfectly valid and is within the ambit of the powers conferred upon the committee by S.25 of the Act.