Judgment:
P.C. Misra, Actg. C.J.
1. The writ application has been filed by two groups of sevaks of Lord Jagannath at Puri challenging the constitutional validity of Sections 28-B(5) and 28-C(5)(a) and 28-C(9) inserted to the Jagannath Temple Act by Jagannath Temple (Amendment) Act, 1983 (hereinafter called 'the Amendment Act') and for declaring the same as ultra vires being hit by Articles 14, 25, 26 and 300A of the Constitution of India.
2. There are different groups of sevaks called. 'Nijogs' who perform different sevas of the Lord. The petitioners 1 and 2 are khuntia sevayats of Lord Jagannath and belong to the association of sevaks called 'Khuntia Nijogs'. Similarly petitioners 3 and 4 are mekap sevayats of Lord Jagannath and are called as 'Mekap Mijogs'. The aforesaid petitioners purport to represent the members of respective Nijogs and have prayed for the aforesaid declaration being affected by the restrictions imposed on them by the introduction of the aforesaid sections in the Amendment Act.
3. In order to provide and consolidate the rights and duties of the sevaks and Nijogs and such other persons connected with the seva puja and management of the temple of Lord Jagannath, 'Puri Shri Jagannath Temple (Administration) Act, 1952' (Orissa Act XIV of 1952) (hereinafter called 'the 1952 Act) was enacted and became operative with effect from 31st July, 1951 and record of rights consolidating and recording the rights and duties of different sevaks and 'such other persons connected with the sevapuja and management of the temple and its endowments was prepared in accordance with the provisions of the said Act. The rights and duties of khuntia sebayats and that of mekap sebayats have been classified under Seva Nos. 13 and 15 respectively in the record of rights. The petitioners claim that they are entitled to a portion of the offerings called 'Bheta' and 'Pindika' collected in the premises of the temple which rights stands recognised and recorded in the said record of rights. After the record of rights was- prepared and published. Sri Jagannath Temple Act, 1954 (Orissa Act 11 of 1955) (hereinafter called as the 1955 Act) was passed and came into force on 15-10-1955. The said Act contained the provisions for management of the aforesaid temple and its properties. Under the said Act, a Committee called 'Sri Jagannath Temple Managing Committee' was constituted and an Administrator was appointed. He was given certain powers including the power to decide disputes relating to collection, distribution and apportionment of offerings to the deity and also to decide disputes relating to rights, privileges, duties and obligations of sevaks, office bearers and servants in respect of seva puja and nities of the Lord and to supervise and regulate the due performance of nities by various groups of sevaks and other persons in accordance with their respective duties in time as recorded in the record of rights. The petitioner's case is that not only the record of rights prepared under the 1952 Act was recognised by the latter 1955 Act, but their rights, privileges and customary right to receive a portion of the offerings to the Lord were protected and they continued to enjoy such rights as emoluments which they claim as inseparable part of their seva. It is alleged that by the Sri Jagarmath Temple Amendment Act, 1983 (Orissa Act 10 of 1983) in which some new sections were inserted the details of which shall be enumerated later on the aforesaid right of these groups of sevaks to appropriate a portion of the offerings has been taken away which is sought to be declared as ultra vires in this writ petition being hit by Articles 14, 25, 26 and 300A of the Constitution.
3A. According to the petitioners they are entitled to one anna share in Bheta and Pindita, the meaning of which terms is not disputed in this case. The word 'Bheta' mean 'presents given to the deity by pilgrims while paying darshan. The word 'Pindika' means 'the presents given to the deity at the pedestal while paying darshan to the deity'. 'Puma Chandra Oriya Bhasakosh' complied by late Gopal Chandra Praharaj defines the same terms as above. Among the sevaks, as already stajed, the nature of seva of 'Khuntias' and 'Palia Mekaps' has been mentioned in serial Nos. 13, and 15 respectively in Part III of Record of Rights. Incidence of service of Khuntias has been described at pages 88 to 91 of the said record of rights. Similarly the incidence of service rendered by Mekaps has been described at pages 116 to 119 of the said record of rights. At page 117 it has been specifically noted that during 'Sahanamela' (which refers to the period of time when the pilgrims are allowed to go near the 'Ratna Sinhasan' of Lord Jagannath to pay darshan and make offerings) whatever is offered on the pedestal to the Lord, the Mekap sevaks shall collect the offerings standing near the pedestal to the extent their hand reaches (which is called as 'Pochha') and they are also entitled to collect the Pindika which is fallen on the ground. It also mentions that this collection along with the collections made for Lord Jagannath at various places inside the premises such as 'Sinhadwara', 'Aruna Stambha', 'Garuda Stambha', 'Jaya-Bijaya Dwara' etc, shall be collected by them and they shall appropriate one anna out of a Rupee along with Khuntia sevaks. At some other places in the record of rights such entitlement of the Khuntias and Mekaps also finds mention.
4. It is undisputed that originally receptacles in which Bheta and Pindika were being collected were called as 'Thalis' and 'Jharis'. In course of time these receptacles were changed to wooden boxes and then to iron boxes at certain places inside the temple premises. Section 28-B(i) introduced by the 1983 Act provides for installation of one or more receptacles called 'Hundis' at such place or places in the temple for placing offerings by the pilgrims and devotees visiting the temple. Section 28-B provides that notwithstanding anything to the contrary contained in any law, custom, usage or agreement or in the record of rights, no sevak shall be entitled to any share in the offerings placed in the Hundi installed after the commencement of Sri Jagannath Temple (Amendment) Act (Act 10 of 1983) (hereinafter called '1983 Amendment Act'). The 1983 Amendment Act also provides for constituting a 'Foundation Fund' and Section 28-C(9) makes similar restrictions for appropriation of any share credited in such fund by any of the sevaks notwithstanding anything to the contrary in any custom, usage or aggreement or in the record of rights etc. During the course of argument the petitioners submitted that they have no objection to the constitution of Foundation Fund and they do not claim any share out of the same. Thus, their challenge has now been confined to insertion of Section 28-B(5) to the said 1983 Amendment Act by which their right to a share in the collection in the Hundi has been taken away.
5. The stand of the petitioner is that the offerings made by the devotees of Lord Jagannath and collected at any place inside the temple constitute 'Bheta' and 'Pindika' irrespective of the change in the nomenclature of the receptacle and they have got 1/16 the share therein. According to them, their share in the offerings made by the pilgrims constitute 'property' and is an integral part of the religious rite of performing the seva to the Lord which can neither be separated from each other nor can be interferred with in the manner as has been done in the 1983 Amendment Act. They also allege that interference with such right is violative of Articles 25 & 26 of the Constitution of India. They have referred to Annexure-2 (letters Nos. 1162/ con. dt. 12-11-84 and No. 1967/c dt. 13-9-85 respectively from the Collector, Puri to the Secretary to Government in Law Department) and contended that similar right of the Daitas (who are also another category of sevaks of Lord Jagannath described in Seva No. 20 in Form 'D' of the record of rights) has been preserved by giving them a compensatory reward by which Article 14 of the Constitution is said to have been contravened. Another limb of argument of the petitioners is that right to receive a share out of 'Bheta' and 'Pindika' is a right to property and the same cannot be taken away without payment of compensation and in that view of the matter the aforesaid amended provision of the 1983 Amendment Act is hit by Article 300A of the Constitution of India.
6. The stand of the State of Orissa (opp. party No. 1) shortly stated is that the petitioners' claim for a share in the offerings made to Lord Jagannath is not a right nor the same constitute 'property'. But it was merely a privilege given to them and the legislation restricting or withdrawing such privilege is not violative of Articles 25 & 26 of the Constitution. They also contended that each and every offerings made to the Lord which are enumerated in the record of rights cannot be termed as 'Bheta' and 'Pindika' and the record of rights does not create any enforceable legal right in their favour. According to them, the aforesaid sevayats were being given a portion of the offerings as their remuneration for watching and guarding the receptacles which is a secular right unconnected with religious performances which the petitioners are required to perform for the seva-puja of the deity and the same can be taken away by the State for the benefit and better management of the religious institution. It is also contended that the provisions of the 1983 Amendment Act are not hit by Article 300A of the Constitution.
7. The Administrator of Sri Jagannath Temple (O.P. No. 3) has filed a counter affidavit and has taken identical pleas as that of the State of Orissa. He further asserts that similar claim was made in an earlier litigation (O. S. No. 190 of 1957-I) filed by Khuntia Nijogs and Mekap Nijogs in a representative capacity challenging the powers of the Administrator of the temple, to direct placing of sealed boxes near 'Bhitar Katha' and 'Bahar Katha' for collection of offerings in place of open receptacles and in the said suit their right to share from such offerings was also an issue. The said issue was finally disposed of by this Court in Second Appeal No. 183/67 on 14-5-1971 in the case of Bairagi Mekap v. Sri Jagannath Temple Managing Committee (reported AIR 1972 Orissa 10) in which it was decided that collection of Bheta and Pindika has nothing to do with the sevapuja of the deity and their share in the offerings was merely remuneration for the secular act of guarding the receptacles and they have no right in the share of such collection in the closed receptacle opp. party No. 3 has referred to the aforesaid judgment as binding between the parties and contended that the same would operate as res judicata so far as the present claim is concerned. According to opp. party No. 3, the note in the record of rights as to the entitlement of share out of the offerings made to the Lord is confined to the work of guarding the receptacles as different types of remuneration is payable to such sevaks for other religious duties assigned to them and, therefore, this part of the remuneration may be withdrawn in the event the guarding of the receptacles is no more necessary because of substitution of close boxes termed as 'Hundi' placed inside the premises of the temple. Their contention is that a rational view has to be taken in interpreting the relevant entries in the record of rights which, according to him, should not be extended to mean that these sevaks should be paid from out of any donation or contribution made to the Lord irrespective of their participation in the process.
7.1 As already stated the essential prayer made in the writ application is to declare Section 28-B(5) and Section 28-C(5)(a) and Section 28-C (9) introduced by way of amendment in the Shri Jagannath Temple Act as ultra vires being hit by Articles 14, 25, 26 and 300A of the Constitution of India. The allegation of the petitioners as explained earlier is that they are entitled to get a share out of 'Bheta' and 'Pindika' (offerings madeto Lord Jagannath inside the temple premisesand near the Ratna Singhasan). The questionfor consideration is if it is a legitimate right ofthe petitioners of which they have beendeprived by the aforesaid amendment of theAct. It has to be further determined as towhether such right, if any, of the petitionerscan be taken away by amendment of the Act.To put it differently the further questionwhich arises for consideration is that assuming that the petitioners have a right to receivea share out of the offerings made to the Lord,the deprivation of such right by the amendment of the Act is violative of any of theaforesaid constitutional provisions.
8. The sevapuja of Lord Jagannath is managed by several groups of Sevaks who perform different sevas to the Lord. The record of rights prepared under the 1952 Act and the rules made thereunder enumerate and record the different sevas of the Lord and the sevaks who are to perform which sevas. Seva No. 13 and Seva No. 15 are Khuntia Seva and Mekap Seva respectively described at pages 98 and 123 in the said record of rights. The said sevas have also been described as hereditary in nature. The petitioners represent these two groups of sevaks who claim a share in 'Bheta' and 'Pindika' both of which are offerings to Lord Jagannath, The record of rights explains 'Bheta' as offerings made to Lord Jagannath inside the temple premises beginning from Aruna Stambha (situated near the entry to the temple through the main Eastern Gate) up to Bahara Katha (the wooden Bar placed for restricting the entry of the devotees of the Lord to the inner precinct of the temple where the Lord Jagannath, Balabhadra and Subhadra have been placed over a pedestal called 'Ratna Singhasan'). The offerings made to Lord Jagannath near Ratna Singhasan is called 'Pindika'. There is no dispute that record of rights makes a categorical mention that these sevaks together are entitled to one anna from 'Bheta' and 'Pindika'. The question now arises whether the claim of these sevaks to get a share out of the aforesaid offerings can be taken away by amendment of the Act.
9. The learned counsel for the petitioners has argued that right to receive a share out of the said offerings to the Lord by the petitioner-sevaks is a part of the seva being the beneficial enjoyment for performance of sevapuja. According to him, it is both as an emolument for the service as well as an honour attached to seva which is not severable. As argued by Mr. Mohapatra, learned counsel for the petitioners, neither the seva nor the beneficial enjoyment of the emolument arising therefrom can be abolished by law. According to Mr. Mohapatra, interference with such right would be violative of the right to freedom of religion guaranteed under Articles 25 & 26 of the Constitution of India. In this context it has been argued by the opp. parties that right to receive a part of the offerings to the Lord, by these sevayats is not a part of the religion within the meaning of Articles 25 & 26 of the Constitution and at the most the act of appropriation of a portion of the offerings to the deity by these two groups of sevaks is secular in character which can be abolished by law.
10. In this connection record of rights is a valuable record to find out the nature of seva performed by these sevaks on their rights and entitlements for performance of seva. So for as the Khuntia seva is concerned, column 3 of the record of rights enumerates different types of Khuntia Sevas such as Palia Khuntia, Behera Khuntia. Bilei Jagaa Khuntia etc. Column 4 mentions the names of different classes of Khuntias and column 5 describes the incidence of the service offered by them and also their entitlement for performance of such service. Palia Khuntia as per the record of rights is required to perform several duties every day as well as some special service during festive occasions, such as; Pausa Purnima, Chandan Yatra, Makara, Dasahara etc. This includes co-ordinating and assisting other sevaks during decoration of the Lord with flower, sandal paste and camphor etc. as well as guarding the receptacles inside the temple. For all such services they get a portion of certain Bhoga daily offered to the deity as well as offered on festive occasions together with a portion out of offerings collected on the receptacles placed at different places of the temple beginning from 'Aruna Stambha' up to 'Ratna Singhasan' which collections have been termed as 'Bheta' and/or 'Pindika' which they share with the Mekaps. Similarly there are several sub-categories of Mekaps and their incidence of service has been given in column 5 of the record of rights. At page 117 of the record of rights it has been specifically mentioned that from the 'Bheta' and 'Pindika' collected at the Lions Gate, Aruna Stambha Garuda Stambha, Jay Bijay Dwar and also on the Ratna Singhasan so far as it can be collected by hand standing on the ground, these sevaks together with the Khuntia Sevaks take one anna per rupee. Apart from their other entitlements, they also get portions of different Bhogas on different festive occasions as per the details mentioned therein. Different sevas which are performed by these sevaks are not referable to different emoluments which they are entitled to as per the record of rights. In other words, from the record of rights, it cannot be ascertained as to what is the employment or entitlement of the sevaks for performance of a particular item of seva. To put it differently, what a particular group of sevaks are entitled to for the entire seva required to be performed by them as mentioned in the record of rights is a package of emoluments and none of the items of the 'sevas' is referable to any particular item of the beneficial interest mentioned in column 5.
11. It is recorded in the record of rights and the position is not disputed that the sevas performed by these sevaks are hereditary. Their Lordships of the Privy Council in the decision reported in AIR 1943 PC 89 Bhabatarini Debi v. Ashalata Debi examining the incidences of sebayati right expressed that the sebayati right involves both (the two elements of office and property) and neither element is to be discarded. In the case of Sm. Angurbala Mullick v. Debabrata Mullick, AIR 1951 SC 293 their Lordships of the Supreme Court accepted the above position and further clarified the legal conception as follows at page 296 :
'The exact legal position of a shebait may not be capable of precise definition but its implications are fairly well established. It is settled by the pronouncement of the Judicial Commitee in Vidya Varuti v. Balusami, 48 TA 302 that the relation of a Shebait in regard to debutter property is not that of a trustee to trust property under the English Law. In English Law the legal estate in the trust property vests in the trustee who holds it for the benefit of cestui que trust. In a Hindu religious endowment on the other hand the entire ownership of the dedicated property is transferred to the deity or the institution itself as a juristic person and the Shebait or Mahat is a mere manager. But though a Shebait is a manager and not a trustee in the technical sense, it would not be correct to describe the shebaitship as mere office. The Shebait has not only duties to discharge in connection with the endowment, but he has a beneficial interest in the debutter property. As the Judicial Committee observed in the above case, in almost all such endowments the Shebait has a share in the usufruct of the debutter property which depends upon the terms of the grant or upon custom or usage. Even where no emoluments are attached to the office of the Shebait, he enjoys some sort of right or interest in the endowed property which partially at least has the character of a proprietary right. Thus, in the conception of Shebaiti both the elements of office and property, of duties and personal interest, are mixed up and blended together; and one of the elements cannot be detached from the other.'
The view expressed in the aforesaid decision was approved and relied in a later decision of the Supreme Court reported in AIR 1959 SC 942 Mahant Mahabir Das v. S. P. Sahi. The special Officer incharge of Hindu Religious Trust. In the present case, as already stated, certain emoluments are attached to the office of the groups of sevaks to which the petitioners belong. Such emolument has its origin either upon some grant or at least upon custom and usage which is accepted and recognised in the record of rights prepared for the temple. We have, therefore, no hesitation to hold that the emoluments/beneficial interest attached to the office of the Khuntias and Mekaps cannot be detached from the office as they are mixed up and blended together. The ageold customs and practices by which the different sevas of the Lord are being performed by several groups of sevaks cannot be altered by any change in the performance of the sevas or in the emoluments which the sebayats are entitled to. Their duties to perform the seva and right to receive the enoluments as per the record of rights are blended together and have to be followed for all times to come without under going any change either in reduction or enhancement of their duties or that of the emoluments attached to their office as sebayats.
12. The position of Raja of Puri was examined by this Court in AIR 1959 Orissa 5 Ram Chandra Dev v. The State of Orissa in connection with the validity of Shri Jagan-nath Temple Act (11 of 1955). This Court in clear words observed that at page 8 :
'The rights and duties of the Raja of Puri as Adya Sevak should be carefully distinguished from his rights and duties as the hereditary superintendent of the Jagannath Temple. The former are based on ancient custom and usage as recorded in Madala Panji and Miladri Mahoday and as permitted by Tradition. But the latter are derived solely from the grant made by the ruling power by Regulation No. IV of 1809. The position of the Raja of Puri so far as his right to superihtendentship of the Temple is concerned, is merely that of a hereditary, manager or trustee with no beneficial or personal interest in the endowments. It is mere hereditary office to which no emoluments were attached. The perquisites, Khai, and other income that he used to derive from the temple were based on his position as Adya Sevak in charge of Gajapati Mahseba, which right is however distinct from his right as Superintendent.'
As in the case of Raja, the petitioner-sevaks are entitled to the perquisites such as a portion of different Bhogas and the offerings to the Lord called as 'Bheta' and 'Pindika' in their capacity as sevaks based on ancient customs and usages on the basis of which the record of rights was prepared. Such perquisites are incidence of seba itself and cannot be severed from the seba.
13. In the context of Articles 25 & 26 of the Constitution of India religion is not confined to religious belief, but includes practices which are regarded by the community as part of its religion. Their Lordships of the Supreme Court in the case reported in AIR 1963 SC 1638 Tilkayat Shri Govindlalii Maharaj etc. v. State of Rajasthan, observed that religious practice to which Article 25(1) refers and affairs in the matters of religion to' which Article 26(b) refers, include practices which are integral parts of the religion itself and the protection guaranteed by Article 25(1) and Article 26(b) of the Constitution extends to such practices.
14. Before examining further the constitutionality of the amended provisions of Shri Jagannath Temple Act to which challenge has been made in the writ application. It is, necessary to take note of the argument advanced on behalf of the opp. parties. Basing on the earlier decision of this Court with regard to the rights of the Mekap Nijogs and Khuntia Nijogs to collect 'Bheta' and 'Pindika' offered to the deity, in Thalis, Parakhas and Jharis near Bhitar Katha, Bahara Katha and Ratna Singhasan, a suit was filed on behalf of the Mekap Nijogs and Khuntia Nijogs for declaration of theif right to collect 'Bheta' and: 'Pindika' and for a permanent injunction restraining the Administrator of Shri Jagannath Temple or his agent from interfering with their rights of collection in the aforesaid receptacles. They alleged that they are sevaks of the deity and the collection of the offerings made by the pilgrims in Thalis. Parakhas and Jharis is a religious function performed by them which has been recognised in the record of rights prepared by the Special Officer under Shri Jagannath Temple Act, 1954. The Administrator of the temple issued an order on 23-11-1962 to the effect that henceforth Thalis, Parakhas and Jharis for collection of 'Bheta' and 'Pindika' are to be substituted by sealed boxes at the appropriate places of collection. Alleging that this has interferred with their religious rites, the aforesaid suit was filed with the abovementioned prayers. The Managing Committee of Shri Jagannath Temple resisted the claim of the plaintiffs alleging that use of the receptacles such as Thalis, Parakhas and Jharis has nothing to do with the performance of religious rites of the deity and for the purpose of safety and convenience and to prevent pilferage closed receptacles were introduced. According to the Managing Committee, providing receptacles for the offerings is purely secular in nature unconnected with the religious rites of the deity. They also contended that the duties performed by them in connection with collection 'Bheta' and 'Pindika' are not religious in nature as they more or less remain as guards at the places of collections for which service they get certain percentage of the collections as remuneration. They, therefore, contended that the Administrator was quite competent to regulate and alter the receptacles for convenience and prevention of pilferage in exercise of his powers u/s. 21 of the 1955 Act. The trial court as well as the appellate court accepted the contention of the defendants and dismissed the suit of the Nijogs. The plaintiff-Nijogs challenged the confirming judgment of the appellate court before this Court in a Second Appeal. As argued by the learned counsel for the opp. parties, this Court in the aforesaid second appeal came to hold that the duties performed by these Nijogs are purely secular in nature and are not associated in any manner with rites and rituals or nities performed before the deity. It is, therefore, argued by the opp, parties that the aforesaid decision reported in AIR 1972 Ori 10 (supra) would operate as res judicata and, therefore, it is not available to be argued that withdrawal of their right to receive a portion of 'Bheta' and 'Pindika' by the amendment of the Act impugned in this writ application would amount to interference with the religious rites and performances in violation of the guarantee under Articles 25 and 26 of the Constitution of India.
15. Referring to the decision in AIR 1972 Ori 10 (supra) it has been contended by the learned counsel appearing for the opp. parties that the finding recorded therein is that duties of Khuntias and Mekaps are purely secular and their duties cannot in any manner be associated with the rites and rituals and nities performed of the deity. The relevant part of the said judgment is quoted below for ready reference (at page 11):--
'A perusal of the description of the incidents of service shows that it includes both religious as well as secular duties. So far as Bheta and Pindika are concerned, the duties of the Khuntia are mentioned as follows : 'During Sahana Mela, three of them are to guard the Jhari. They also guard Thali collections at the Bahar Khata. These duties of the Khuntias are purely secular, inasmuch as, they are confined to watching or guarding the places of collection. With no ingenuity it can be said that watchmen by performing their duties as watchers or guards can be deemed to be performing any religious or spiritual rites or rituals. So far as mekaps are concerned, it is stated that during Sahana Mela, three of them remain at three badas holding the receptacle described as Gadu, the receptacle. Similar are their duties with regard to Bheta and Pindika out on Thali and Parakha near the Khatas. Thus, their duties are also purely of secular nature, inasmuch as, they are either required to hold the receptacles or collect the offerings thrown on the ground and put them in the receptacles. For such services, they are given a certain percentage as remuneration. It is difficult to agree with learned Counsel for appellants that these duties can in any manner be associated with the rites and rituals or the nitis performed before the deity. The fact remains that once the offerings are made, the religious part is over. The mekaps and Khuntias are required either to guard the places or gather the offerings strewn on the floor and put them in the receptacles. These being the duties of the plaintiff-sevaks, so far as Bheta and Pindika are concerned, I have no hesitation in agreeing with the view taken by the Courts below that they are unconnected with the religious rites. They are purely of secular nature.'
The question which arises for consideration is as to whether the conclusion reached in the aforesaid Second Appeal would operate as res judicata in the present case. There is no dispute at the bar that even though Section 11 of the Civil Procedure Code does not in term apply to this case, the general principles of res judicata would apply which means that if a controversy between the parties has been decided and set at rest by a competent Court, the same should hot be allowed to be re-agitated and re-adjudicated in a fresh litigation. In this connection it may be noted that the only point which arose for consideration in the aforesaid appeal was whether under Section 21 of the 1955 Apt the Administrator was entitled to alter the receptacles for collection of 'Bheta' and 'Pindika' at Ratna Singha-san, Bhitar Katha and Bahar Katha. Section 21 of the 1955 Act defines the powers and duties of the Administrator which included deciding disputes relating to collection, dis-tribution or apportionment of offerings, fees and other receipts in cash or in kind received from the members of public. Sub-section (2) of the said Section among other things empowers the Administrator to arrange proper collection of offerings Made in the temple. It was contended in the said appeal on behalf of the Managing Committee of Sri Jagannath Temple that the .order of the Administrator dated 23-11-1962 to the effect that thenceforth Thali, parakha and Jhari for collecting 'Bheta' and 'Pindika' are to be substituted by sealed boxes at the appropriate places of collection was passed in exercise of powers of making arrangement for proper collection of offerings like 'Bheta' and 'Pindika' which is purely a secular act totally unconnected with the nities or rituals of the deity. On the other hand, it was Contended on behalf of the Mekaps and Khuntias (the appellants) that these duties cannot be dis-spciated from the religious nities, but must be treated as part of rituals connected with the offerings made by the pilgrims to the deity. In this context the Court examined as to whether the Administrator of the temple was within his powers in passing the order challenged in the said suit, which was alleged to.be interfering with the rights of collection of 'Bheta' and 'Pindika' in receptacles as mentioned in the record of rights. As already stated, one of the duties of the Khuntias and Mekaps is to guard the receptacles for collection of 'Bheta' and 'Pindika'. But there are various other duties which they are required to perform as per the record of rights. Guarding the receptacles in which the 'Bheta' and 'Pindika' were being collected is not the sole duty which the Khuhtias and Mekaps are required to perform and the same cannot be said to be the only seva for which a portion of the offerings is being given as remuneration. As stated earlier, neither the record of rights so records nor there is any other material to support the c6ntention that appropriation of a portion of the offerings out of 'Bheta' and 'Pindika' by these sevaks is relatable only to watching the receptacles. We have already held in the earlier paragraphs that appropriation of a portion of the offerings made to the deities by these sevaks is one of the beneficial enjoyments for performance of sevas taken together and the emoluments they receive for performance of the sevas or their duties as sevaks is not separable from each other. The sevas and nities have been distributed among different groups of the sevaks to be performed in Lord Jagannath Temple and the rituals are so arranged that performance of one niti is dependant on the other.
16. In order to appreciate the scope of the decision in Bairagi Mekap's case the distinction between religious and secular duties in the context of Articles 25 and 26 of the Constitution of India has to be kept in mind. The Supreme Court in the case of the Commissioner, Hindu Religious Endowments, Madras v. Sri LakshmindraThirthaSwamiar of Sri Shirur Mutt reported in AIR 1954 SC 282 explained the concept of 'religion' with the following words (at page 290) :--
'Religion is certainly a matter of faith with individuals or communities and it is not necessarily theistic. There are well known religions in India like Buddhism and Jaihism which do not believe in God or in any Intelligent, First Cause. A religion undoubtedly has its basis in a system of beliefs or doctrines which are regarded by those who profess that religion as conducive to their spiritual well being, but it would not be correct to say that religion is nothing else but a doctrine or belief. A religion may not only lay down a code of ethical rules for its followers to accept, it might prescribe rituals and observances, ceremonies and modes of worship which are regarded as integral parts of religion and these forms and observances might extend even to matters of food and dress.
The guarantee under our Constitution not only protects the freedom of religious opinion but it protects also acts done in pursuance of a religion and this is made clear by the use of the expression 'practice of religion' in Article 25.'
Their Lordships have emphasized that administration of its property by a religious denomination has thus been placed on a different footing from the right to manage its own. affairs in matters of religion. The latter is a fundamental right which no legislature can take away, whereas the former can be regulated by laws which the legislature can validly impose. Examining the question as to what constitutes matters of religion, their Lordships in the case of Durgah Committee, Ajmer v. Syed Hussain Ali, reported in AIR 1961 SC 1402 observed that matter of religion in Article 26(b) of the Constitution of India include even practices which are regarded by the community as part of its religion. Their Lordships also observed that in order that the practices in question should be treated as part of religion, they must however be regarded by the said religion as its essential are integral part; otherwise even purely secular practices which are not an essential or an integral part of religion are apt to be clothed with a religious form and may make a claim for being treated as religious practices within the meaning of Article 26. Thus whether a particular ritual or observance of a ceremony is an essential part of the religion and religious practices is a question which cannot be decided without referring to the doctrine of a particular religion including the practices which have been regarded by the community as a part of its religion. Rationality of a particular religious practice or its reasonableness are doubtful tests to lay down a formula as to whether a particular religious practice or ritual is an essential part of the religion or not. Justice B. K. Mukherjee on the Hindu Law of Religious and Charitable Trusts cautioned by saying :--
'If Courts started enquiring and deciding the rationality of a particular religious practice then there might be confusion and the religious practice would become what the Courts wish the practice to be. The attempt of the Courts to determine judicially what are or are not the essential parts of a religion may raise difficult questions whose justiciability is doubtful. It is all the more doubtful when judicial dicta try to lay down the formula that whether a particular religious practice is an essential part of the religion or not is an objective question to be determined by the Court by looking to the tenets of the religion itself. The usual classification of objective and subjective tests is beset with many difficulties in this area.'
It is, therefore, apparent that matters of religion may include matters like who are entitled to enter into a temple for worship, where they are entitled to stand and worship and how and in what manner the worship is to be conducted, and sequences of different rituals are to be observed in the matter of worship. Referring to the case in hand, we may mention that the record of rights defining the incidence of service of these sevaks, clearly shows that it includes both religious as well as secular duties. This fact has atso been observed by his Lordship in the decision reported in AIR 1972 Orissa 12 (Upendra Das v. Krushna Sahu). Out of several incidences of seva, guarding the receptacles meant for collection of 'Bheta' and 'Pindika' has been held to be secular duty of the sevaks. But the question which arises to be decided in the present litigation is not as to whether the duties of these sevaks in guarding the receptacles for collection of Bheta and Pindika are of religious or secular character. But the question which is under examination in this case is as to whether the beneficial enjoyments attached to the religious duties assigned to these sevaks are separable or integral parts of the religion.
17. In Bairagi Mekap's case his Lordship proceeded on the footing which was conceded by both parties that if the duties in question of the plaintiff-sevaks are secular in nature, the suit must fail as the Administrator will have the power to regulate the procedure of performance of secular part of the service. The Court in the aforesaid case held that their duties are purely of secular nature inasmuch as they are either required to hold the receptacles or collect the offerings thrown on the ground and put them in the receptacles. We do not find any material disclosed in the judgment for coming to the further conclusion that for such services they are given a certain percentage as remuneration. As already stated by us, the record of rights which has been relied upon for the aforesaid conclusion by the learned Judge nowhere mentions that appropriation of a portion of such offerings is relatable to the aforesaid service alone. The Hon'ble Judge in the said case was called upon to decide the only question as to whether the Administrator of the temple was competent to alter the receptacles for collection of 'Bheta' and 'Pindika' which he did in purported exercise of his powers under Section 21 of the 1955 Act in substituting the Thalis, Parkhas and Jharis by close boxes placed at appropriate places for collection of offerings to the deity. In the ultimate con-elusion, the Court held that it was within the powers of the Administrator to arrange for appropriate collection of offerings by providing suitable receptacles to prevent pilferage by substituting Thalis, Parathas and Jharis and such substitutions to the receptacles in no manner affect the performance of the rites of the plaintiff-sevaks. The further question which arises in this case as to whether the said sevaks would be entitled, as of right, to get a share out of offerings did not arise in the said case for consideration nor in fact the same was considered. There is nothing on record to assume that after substitution of open receptacles by close boxes the secular part of guarding the same by sevaks has been completely dispensed with. Even assuming that watching the receptacles would no more be necessary, the beneficial enjoyment which the sevaks are entitled to for the sevas to be rendered as a whole cannot be split up and a portion of such beneficial enjoyment cannot be withdrawn as we have already mentioned earlier that it is an integral part of the seva to be performed by sevaks. Thus, the earlier case reported in AIR 1972 Orissa 10 (supra) was confined to the question of substitution of receptacles by the Administrator and, therefore,' its scope was different from that of the present litigation. We, therefore, conclude that the said case would not operate as res judicata so far as the question which arises for consideration in this case.
18. We would now examine the validity of the amendment to Section 28 of the Act. By the Amendment Act of 1983 among other things, Sections 28-B and 28-C were introduced. For ready reference the aforesaid insertions are quoted below :
'28-B. (1) The Committee may, with the approval of the State Govt. instal one or more receptacles (hereinafter referred to as 'Hundi') at such place or places in the Temple as it may think fit for placing of offerings by the pilgrims and devotees visiting the Temple.
(2) The Hundi shall be operated by such persons and in such manner as the State Government may, from time to time, determine.
(3) Such portion of the offerings placed in a Hundi as the State Government may, from time to time, direct shall be credited to the Foundation Fund.
(4) No person shall, without being authorised by the Administrator in that behalf, go near or interfere in any manner with any Hundi installed in the Temple.
Provided that no such authorisation shall be required for going near any Hundi for the bona fide purpose of placing any offering therein.
(5) Notwithstanding anything to the contrary contained in any law, custom, usage or agreement or in the record of rights, no sevak shall be entitled to any share in the offerings placed in any Hundi installed after the commencement of Shri Jagannath Temple (Amendment) Act, 1983.
28-C. (l)There shall be constituted a fund called 'Shri Jagannath Temple Foundation Fund' (hereinafter referred to as the Foundation Fund) which shall vest in and be administered by the Foundation Fund Committee constituted under Sub-section (6).
(2) The Foundation Fund shall consist of all donations and contributions of an amount exceeding five hundred rupees made by any person to the Temple or in the name of any deity installed therein, other than those made for any specific purpose, and such other amount as may be directed by the State Government.
(3) All amounts credited to the Foundation Fund shall be invested in long term fixed deposits with such bank or banks as the State Government may approve and shall always be kept so invested and no such fixed deposit shall be pledged or otherwise encumbered;
Provided that the State Government may permit such sum of the Foundation Fund as they may fix to be utilised for any purpose of the Temple as they may specify.
(4) All amounts accruing by way of interest on such fixed deposits shall be credited to and -form part of Shri Jagannath Temple Fund constituted under Section 28.
(5) Out of the amount so credited to Shri Jagannath Temple Fund :--
(a) such percentage not exceeding fifty as the State Govt. may determine, shall be paid to Shri Jagannath Sanskrit Viswavidyalaya, Puri and;
(b) Such percentage not exceeding five as may be determined by the State Government, shall be utilised for the welfare of the sevaks.
(6) The Foundation Fund Committee shall consist of the following members :--
(a) The Chief Minister of the State of Orissa who shall be the Vice-Chairman;
(b) The Minister in charge of law who shall be the Vice-Chairman;
(c) The Secretary to the Government in Law Department;
(d) The Secretary to the Government in the Finance Department or his nominee who shall not be below the rank of a Joint-Secretary;
(e) The Collector of the district of Puri; and
(f) The Administrator of the Temple who shall be the Secretary.
(7) The Committee shall conduct its business in such manner as they may determine.
(8) During the absence of the Chairman, the Vice-Chairman shall act as and perform the functions of the Chairman;
Provided that the Secretary to the Government in the Law Department shall act as and perform the functions of the Chairman during any period when both the offices of the Chief Minister and the Minister, Law remain vacant.
(9) Notwithstanding anything to the contrary contained in any law, custom, usage or agreement or in the record of rights, no sevak shall be entitled to any share out of the amount of donations or contributions to the Foundation Fund made under Sub-section (2) after the commencement of Shri Jagannath Temple (Amendment) Act, 1983.'
By Sub-section (1) of Section 28-B the Committee (Shri Jagannath Temple Managing Committee constituted under Sections 5 and 6 of the Act) may with the approval of the State Government instal one or more receptacles (hereinafter referred to as 'Hundi') at such place or places in the temple as it may think fit for placing of offerings by the pilgrims and devotees visiting the temple. The effect of change of receptacles was considered in the earlier case referred to above and it is argued that this sub-section does not really bring about any change except giving, a new nomenclature to the collections as 'Hundi'. The mere change in the nomenclature of the offerings made to the deity would not, . according to the learned counsel for the petitioners, affect the right of the sevaks if they are entitled to a share out of it. It was further argued that this is more so because their right to receive a portion of the offerings which is customary has been recognised in the record of rights statutorily prepared. By changing the nomenclature of the offerings so made, the 'Bheta' and 'Pindika' mentioned in the record of rights must, according to the learned counsel for the petitioner, now refer and correspond to what is called 'Hundi' by virtue of the amendment. Sub-sections (2), (3) and (4) of the said Section prescribe the mode of operation and deposit of the said offerings. The petitioners are aggrieved by the provisions contained in Sub-section (5) of Section 28-B of the Act which takes away the right of the sevaks to appropriate a share out of the said offerings, notwithstanding any law, custom, usage or agreement or on account of its being mentioned in the record of rights. In other words, by virtue of Sub-section (5) these sevaks would not be entitled to any portion out of the 'Hundi' collected after commencement of Amended Law.
19. Similar is the restriction imposed by Sub-section (9) of Section 28-C which is to the effect that no sevak shall be entitled to any share out of the amount of donations or contributions to the Foundation Fund made under subsection (2) after the commencement of the Amendment Act. Sub-section (2) of Section 28-C provides that the Foundation Fund shall consist of all donations and contributions of amount exceeding Rs. 500/- made by any person to the temple or in the name of the deity installed therein other than made for any specific purposes and such other amount as may be directed by the State Government. Sub-section (1) of Section 28-C provides for constitution of funds called 'Sri Jagannath Temple Foundation Fund' which shall vest in and be administered by Foundation Committee constituted under Sub-section (6). Out of the collections in Hundi a portion of it shall be credited to the Foundation Fund as per the direction of the State Government from time to time as stated in Sub-section (3) of Section 28-B. It is, therefore, clear that the amended provisions of the Act in question prohibit the sevaks from getting any share out of the offerings in Hundi or after any portion thereof is credited to the Foundation Fund. In our view, the beneficial enjoyment attached to the office of the sevaks includes appropriation of a portion of the offerings be it in the form of money or in the shape of Bhoga as both are honour and perquisites attached to the office, besides being the remuneration for rendering such service. It is not a secular activity which is associated with religious practices, but an integral part of the seva which cannot be separated from seva itself.
19.1 There is an interesting feature in connection with the appropriation of 'Bheta' and 'Pindika', which is relevant in this connection. Daitapatis are a class of sevaks whose seva to the Lord Jagannath is confined during the period of car festival which begins from Yestha Sukla Trayodashi till Niladri Bije when Lord Jagannath, Balabhadra and Subhadf a return to temple. As per the record of rights these sevaks are entitled to appropriate the entire collection in the form of 'Bheta' and 'Pindika' during this period. By virtue of introduction of Section 28-B and Section 28-C by the Amendment Act of 1983 these sevaks were also deprived of appropriating the 'Bheta' and 'Pindika' collected during this period. They made a representation to the Government before the car festival of 1984 that the collection of 'Bheta' and 'Pindika' in Hundi (closed boxes) should be stopped from the date of their entry inside the temple till the return car festival. The aforesaid claim was made on the ground that the total income of the temple during this period on account of gift etc. deposited in different boxes were payable to the Daitas as per the record of rights. The Government after considering their claim decided that it would not be possible to close the Hundi during this period, but the Government would grant an amount equal to the receipts made in Hundi during this period to the Daitapatis. Such payment was decided to be made in the shape of special reward to the Daitapatis. Thus what was prohibited in the Amendment Act was given to the Daitapatis in the shape of a special reward and we are told that the aforesaid arrangement is being continued from year to year till date. In other words, though the Daitapatis who were similarly affected by the amendment have been compensated to the extent of their deprivation by way of a special reward, it is the Khuntias and Mekaps who had been enjoying the same kind of emolument have been deprived of their share out of 'Bheta' and 'Pindika'.
20. It has been next argued by the learned counsel for the petitioners that assuming that the beneficial enjoyment of the sevaks are severable from the religious services rendered by them, their right to appropriate a share out of the 'Bheta' and 'Pindika' would constitute 'property' and, therefore, the same cannot be taken away or abolished by 1983 Amendment Act, which would be hit by Article 300A of the Constitution of India. This question involves examination of two aspects, namely : (1) if the rights/privileges/ perquisites of the Khuntias and Mekaps constituted 'property', and; (ii) if the State Government has the authority in law to deprive these sevaks of such right to property. The learned counsel for the petitioners has referred to a decision of the Supreme Court reported in AIR 1964 SC 1501, Raja Bira Kishore Deb. Hereditary Superintendent, Jagannath Temple, P.O. & Dist, Puri v. State of Orissa, in which constitutionality of Sri Jagannath Temple Act, 1954 (Act 11 of 1955) was challenged by the Raja of Puri.
21. The beneficial interest enjoyed by a sevayat has been held to be 'property' within the meaning of Article 19(1)(f) of the Constitution as decided by their Lordships in AIR 1954 SC 282 (supra). Their Lordships expressed the conception of 'property' in the following words (at page 288) :--
'There is no reason why the word 'property' as used in Article 19(1)(f) of the Constitution should not be given a liberal and wfde connotation and should not be extended to these well recognised types of interest which have the insignia or characteristics of proprietary right. Thus, Article 19(1)(f) applies equally to concrete as well as abstract rights of property. The ingredients of both office and property, of duties and personal interest are blended together in the rights of a Mahant. The Mahant has the right to enjoy this property or beneficial interest so long as he is entitled to hold his office. To take away this beneficial interest and leave him merely to the discharge of his duties will be to destroy his character as a Mahant altogether.'
In a latter decision reported in AIR 1959 SC 942 (supra) their Lordships of the Supreme Court reiterated the same view. While considering the constitutionality of Sri Jagannath Temple Act of 1954 their Lordships of the Supreme Court in the case of Raja Bira Kishore Dev v. The State of Orissa, AIR 1964 SC 1501, held that the said Act did not interfere with the religious affairs of the temple which have to be perforated according to the record of rights prepared under the Act of 1952 and where there is no such record of rights, in accordance with the custom and usage maintained in the temple. Examining the constitutionality of this Act in this background their Lordships observed that there is nothing in the Act which takes away his rights as Adya Sevak (i.e. the Chief servant) of Lord Jagannath in the matter of sevapuja, nitis etc. Their Lordships further observed that these rights flow from his position as Adya Sevak, they are religious in character and are referable to his status and obligations as sevak. It has been further observed that nothing in Section 7 of the 1955 Act shall be deemed to affect his rights and privileges in respect of Gajapati Maharaja Seva merely on the ground that the Raja has ceased to perform the duties of the Chairman for the time being, inasmuch as his rights, privileges and perquisites as Adya sevak will remain protected under Section 8 of the said Act even though he may not be entitled to anything under Section 14 if he ceases to be Chairman in view of Section 7. Illustrating the position further their Lordships referred to Section 21(2}(g) which gives power to the administrator to decide disputes relating to the rights, privileges, duties and obligations of sevaks, office-holders and servants in respect of sevapuja and nitis, whether ordinary or special in nature. This clearly postulates that the rights and privileges of sevaks remain intact and if there is any dispute about them, the administrator has to decide it. Looking to the provisions of Section 21(2)(f) in which the administrator has the power to decide disputes relating to the collection, distribution or apportionment of offerings, fees and other receipts in cash or in kind received from the members of the public, their Lordships were of the view that there can be no manner of doubt that the Act does not affect even the rights, privileges and perquisites of sevaks.
This decision, therefore, is clear and unambiguous language tends to preserve the rights and privileges and perquisites of the sevaks which constituted 'property' within the meaning of Article 19(1)(f) of the Constitution of India. It is for the first time these rights of the sevaks have been taken away by insertion of some provisions to Sections 28-B and 28-C of the 1983 Amendment Act.
22. It is now to be examined as to whether the right to property can be taken away without making any provision for compensation and if so whether the said provisions are hit by Article 14 of the Constitution as being arbitrary and unreasonable. It has been argued by the learned Additional Government Advocate that by 44th Amendment of the Constitution, the right to hold a property has ceased to be a fundamental right by omitting Sub-clause (f) of Clause (1) from Article 19. By the same amendment right to property which has guaranteed by Article 31 has been shifted from Part III of Article 300A, Clause (2) of that Article which deals with compulsory acquisition of property has been repealed. According to the Additional Government Advocate the aforesaid change has the effect of leaving it to the legislature to deprive a person, by authority of law, of his property. If such law takes away the property of a citizen without payment of any compensation he shall have no remedy before a Court of law and the validity of law cannot be challenged before a superior Court on the ground that no compensation is payable under such law. The corollary of the aforesaid argument is that assuming that the petitioners have right to share in the offerings made to the Lord which right if assumed to be a 'property' can now be legitimately taken away by Sections 28-B and 28-C, as they have been so deprived by authority of law. According to the argument advanced by the learned Additional Government Advocate there is no constitutional obligation to pay compensation.
23. The learned Additional Government Advocate further argued that after 44th Amendment of the Constitution there is no express provision in the Constitution requiring the State to pay compensation to an expropriated owner. By the 25th Amendment of 1971 the Parliament rooted away the very word 'compensation' from Article 31(2) of the Constitution by substituting the word 'amount'. The 44th Amendment took away the fundamental right to compensation after repealing Article 31(2). As argued by the learned Additional Government Advocate the expropriated owner would be entitled to get compensation from the State only if it is allowed by law which provides for acquisition of the right. In the absence of such provision the Act taking away the right cannot be challenged. Referring to Calcutta Gas Company case, AIR 1962 SC 1044, the learned Additional Government Advocate argued that the power to legislate is given to the appropriate legislatures by Article 246 of the Constitution and the entries in the three Lists are only three legislative heads or fields of legislation. They demarcate the area over which the appropriate legislation can operate. This decision was relied upon in reply to the argument of the learned counsel for the petitioners that constitutional obligation to pay compensation still subsists by virtue of legislative entry No. 52 of Schedule VII.
24. Learned counsel for the petitioners has argued that although the 44th Amendment of the Constitution has repealed Article 19(1)(f) and the entire Article 31, it has, however, been re-introduced as Article 300A precisely in the same words. According to him, though on the face of it this amendment creates an impression that the State is not free from any kind of restriction on the enjoyment of property whether reasonable or otherwise without giving compensation to the expropriated owner, but in reality, it is not so. The effect of 44th Amendment has given rise to some controversial questions and attempts have also been made for explaining the correct position by eminent jurists and learned Judges of the country. Professor P. K. Tripathi, Visiting Professor, South School, University of New South Wales, Australia in his article 'Right of Property After Forty-Fourth Amendment' has expressed that it is better protected than ever before. After indicating the amendments made to the Constitution Prof. Tripathi has expressed his views as follows:--
'On the surface this amendment might create the impression that the State (as comprehensively defined in Article 12) is now free to impose any kind of restrictions on the enjoyment of property, whether reasonable or otherwise, and to acquire private property compulsorily for any purpose it chooses whether such purpose is regarded by the Courts a public purpose or not, and without paying anything to the expropriated owner in return of the property taken away from him. Nothing, however, could be farther from the true constitutional position. The reality is that now the right to property of both, the citizen as well as the non-citizen, is more firmly and comprehensively secured under the Constitution than ever before. It is secured more firmly than before because any significant amendment in the existing position will now require not only the procedure laid down in the main part of Article 368, but also the consent of the States as prescribed in the proviso to that Article. It is secured more comprehensively because the State will now be able to acquire private property without showing public purpose and without paying full compensation or market value of the property. Also, the State may now be required to pay compensation when it is merely regulating the use or enjoyment of property without actually transferring to itself the ownership or possession of the property. In other words, the Courts in India will now be free to give the same quality and extent of protection to private property as the Courts in the United States give under the 'due process' clause, and the American doctrines of 'eminent domain' and 'police powers' may again be found to be relevant for India.'
It has been further explained by Prof. Tripathi that Parliament as well as the legislatures of the States have the powers, as before to legislate on 'acquisition or requisitioning of property'. Irrespective of any fundamental right or other express limitation anywhere else in the Constitution, this power cannot be used arbitrarily. One limitation or condition inherent in this power is that it cannot be used for acquiring property otherwise than for a public purpose. Referring to the case of State of Bihar v. Kameshwar Singh, AIR 1952 SC 252, and quoting the language of Mr. Justice Mahajan (as he then was) Prof. Tripathi has opined that existence of a public purpose is part and parcel of a law and is inherent. In his opinion the other inherent condition for the exercise of the power to acquire property compulsorily is that provision must be made for the payment of compensation to the expropriated owner. This shows that the power granted by Entry 42 of the concurrent list is the power to 'acquire' and not the power to 'confiscate'. As explained by Prof. Tripathi as long as these two conditions, namely, that acquisition can be for a public purpose only and that acquisition must be accompanied by compensation -- were expressly incorporated in the provision of Article 31(2), it was not necessary, and perhaps not even permissible, to invoke them as inherent parts of the grant itself. However, now that the express provision of the article is gone the inherent condition will resume operation. After a learned discussion on the subject Prof. Tripathi has expressed that the 44th Amendment of the Constitution has given 'property' the kind of protection it never enjoyed before either under the Government of India Act, 1935 or under the Constitution. Putting it differently it would mean that the new Article 300A which says that 'no person shall be deprived of his property save by authority of law' must be construed to mean that the law must be a valid law and no law of acquisition or requisitioning property can be valid unless there is provision therein for commensating the expropriated owner as it is an inherent condition attached to the exercise of the power 'eminent domain or compulsory acquisition of private property by State.'
25. H. M. Seervai in his book 'Constitutional Law of India' (3rd Edition, Vol-II) in paragraph 14,27 has stated--
'Coming to deprivation of property by acquisition and requisition under the power of eminent domain, we have seen that even in the absence of an express grant of power, the power of eminent domain inheres in sovereignty as held by our Supreme Court in State of W. B. v. Union of India, (1964) 1 SCR 371 : (AIR 1963 SC 1241). And it is a part of the definition of the power of eminent domain (or compulsory acquisition of property) that its exercise is called for by public purpose or benefit. As we have seen, public purpose or benefit is a condition for the exercise of all the three powers inherent in sovereignty. No doubt in the Government of India Act, 1935 and in our Constitution before the 44th Amendment, the legislative power of eminent domain was put in the legislative lists and the . two inseparable conditions of its exercise --public purpose and compensation -- were put in the body of the Government of India Act, 1935 and the Constitution respectively. But that was a matter of drafting, and did not alter the nature of the power. Now that Article 300A and Entry 42, List III ('entry 42') contain the power of eminent domain, the requirement of public purpose must be read into the words 'acquisition and requisition' in Entry 42, in the absence of any indication in the 44th Amendment that conditions necessary for the exercise of an inherent sovereign power were to be excluded, and a radical alteration in a well recognized concept was intended.'
Carrying the discussion further the learned author continues in paragraph 14.28 as follows :--
'In the result there was no dispute at any time that the requirement of a public purpose was essential to the exercise of the power of compulsory acquisition. It is reasonable to conclude that a requirement of compulsory acquisition which had caused no dispute, and the existence of which alone called forth the exercise of the power to acquire private property, was not intended to be excluded by the 44th Amendment. This conclusion is supported by the further consideration that a law for the acquisition for a private and not a public purpose would be automatically void as to the acquisition of a citizen's business guaranteed by Article 19(1)(g). And a person can be deprived of that right only by a law which puts reasonable restrictions in the public interest; but ex concessis, there is no public interest in acquiring property for a private purpose. And the same would be true of any fundamental right or any constitutional right which is inextricably tied up with the holding of property.
xxx xxx xxxA law for the 'acquisition' of private property of persons ('the owners') for the benefit of private persons ('the recipients') without compensation would be a law unknown to our jurisprudence. In substance it would be a confiscation of the owner's property accompanies by a gift of the confiscated property to the recipients. Confiscation or forfeiture of property is known to our law as punishment for a crime, and the property confiscated vests in the State. As we have seen, deprivation of property by confiscation is part of the sovereign police power of the State and subserves a public purpose -- to deter people from committing crime or to take the profit out of crime. Confiscation of private property of innocent people for the benefit of private persons is a kind of confiscation unknown to our law. Whatever meaning the word 'acquisition' may have, it does not cover 'confiscation', for to confiscate means 'appropriate to the public treasury (by way of penalty)'. Consequently, a law taking private property for a private purpose without compensation would fall outside Entry 42, List III and cannot be supported by another entry in List III. It is clear therefore that the requirement of a public purpose and the payment of compensation must be read into Entry 42, List III.
25A. The Bombay High Court in the decision reported in AIR 1984 Bombay 366, Basantibai Fakirchand Khetan v. State of Maharashtra, held as follows (at page 379) :--
'It would be difficult to conclude that by deletion of Article 31 from Part III of the Constitution the Parliament intended to confer absolute right on the Legislature to deprive the citizen of his property by mere passing of a legislation without complying with the requirement that the deprivation is for a public purpose and on payment of amount which is not illusory. The doctrine of. eminent domain really recognises the natural right of a person to hold property, and if that right can be taken away by the legislation without satisfying the two requirements, then the entire concept of rule of law would be redundant. The introduction of Article 300A in the Constitution while deleting Article 31 clearly indicates that the Parliament intended to confer a right on the citizen to hold property and which could not be deprived without authority of law in spite of deletion of Article 31, the constitutional obligation to pay adequate amount to the expropriated owner is not taken away.'
In the said case, examining the constitutionality of certain provisions of MaharashtraHousing and Area Development Act, 1976their Lordships held that Sub-sections (3) &(4) of Section 44 of the said Act are unreasonableand discriminatory and therefore, ultra viresArticle 14 of the Constitution. They also heldthat the impugned provisions of legislationare unjust, unreasonable and unfair and thedeprivation of the property under Sections 41 & 42of the said Act is not by authority of law. Thatjudgment was challenged in the SupremeCourt and the apex Court though reversed theconclusion as regards the unconstitutionalityof certain provisions of the said Act did notcomment upon the effect of the 44th Amendment as explained by their Lordships of theHigh Court.
26. Apart from the doctrine of 'eminent domain', the authority of law under Article 300A must be construed to be the law which is just, fair and reasonable. The Supreme Court in the celebrated decision of Smt. Maneka Gandhi v. Union of India, AIR 1978 SC 597, also held that the legislation providing for deprivation of property must satisfy the requirement of fair, just and reasonable. Their Lordships examining the facts of the case in AIR 1986 SC 1466, State of Maharashtra v. Basantibai Mohanlal Khetan, held that all the requirements of a valid exercise of power of eminent domain even in the sense in which it is understood in the United States of America where property rights are given greater protection than what is required to be done in our country are fulfilled by the impugned Act.
27. However, reliance was placed upon a Full Bench decision of the Kerala High Court reported in AIR 1991 Kerala 162, Smt. Elize-bath Samuel Aaron v. State of Kerala, which has taken a different view, but the same does not disclose the doctrine of eminent domain and with great respect we fail to pursuade ourselves to accept the view of their Lordships in the said judgment.
28. Our conclusion, therefore, would be that the Forty-Fourth Amendment of the Constitution does not authorise the State to make a law depriving the property right to a citizen without payment of compensation and the law taking away such right must conform to the basic and fundamental requirements as indicated earlier. The amendment to Shri Jagannath Temple Act, 1954 is, therefore, hit by Article 300A of the Constitution.
29. Before concluding, one aspect of the dispute deserves clarification. In this writ petition we have examined the right of the petitioner-sevaks to a share in 'Bheta' and 'Pindika' and if the deprivation thereof by Act 10 of 1983 can be supported in law. In the concluded provision in Section 28-B the receptacles for placing of offerings by the pilgrims and devotees visiting the temple has been termed as 'Hundi'.
30. During the course of hearing it was brought to our notice that the petitioner-sevaks in a representative capacity filed a suit (O.S. No. 11/160 of 1991/1979-1) which was disposed of by the Addl. Subordinate Judge, Puri for a declaration that the plaintiffs are entitled to a share, as per the record of rights prepared for the Temple, in the collection of offerings made by the pilgrims inside the temple of Lord Jagannath known as 'Bheta' and 'Pindika'. In that litigation the said plaintiffs alleged that 'Bheta' and 'Pindika' are offered to Lord at places, such as, Arunastambha, Garudasthambha, Bhitarka-tha, Jaya-Bijaya Dwara, Ratna Sinhasans, Baisi Pabachha Mandira Bedha and other places inside the temple. The temple administration placed the sealed boxes at the Lions Gate and on the top of Baisi Pabachha in February, 1977 and January, 1979 and what was collected in the said boxes was termed by them as 'Bheta' and 'Pindika'. They demanded share out of the collections made in the boxes specified in the plaint, but since their demand was refused on the ground that the collections made in the said boxes are not 'Bheta' and 'Pindika' the plaintiffs filed the aforesaid suit. The temple administration in the said suit denied the claim of the plaintiffs alleging that the collections made in the suit boxes are not 'Bheta'and 'Pindika'. Their case is that 'Bheta' and 'Pindika' constitute 'presents given to the deity on the pedestal or before the Lord', but the suit boxes are 'Hundi' and no 'Bheta' and 'Pindika' are collected therein. They, therefore, contended that the plaintiffs are not entitled to any share out of the said collections. The Additional Subordinate Judge, Puri in his judgment dated 11-4-1983 declared that the plaintiffs are entitled to all the coins of the denomination below 10 paise collected in the suit boxes less Rs. 2/ - (two) and 1 / 6th of the other collections made in the suit boxes. The defendants in the said suit carried up the matter in appeal (T.A. No. 9/61 of 1985/83) which has since been disposed of by the Second Additional District Judge, Puri in which the appellate Court reversed the decree and dismissed the plaintiffs' suit. The plaintiffs have preferred Second Appeal No. 280/ 85 which is pending in this Court. One of the questions which was the subject-matter of the suit and is likely to be decided in the said Second Appeal, is as to whether whatever is collected in the receptacles named as 'Hundi' in the amended provisions of the Act can be called as 'Bheta' and 'Pindika'. It is for that reason the learned counsel for both parties were asked as to whether it would be more appropriate for this Court to decide the said dispute in the Second Appeal along with this writ application. But having taken time to examine the question each of the parties did not like the Second Appeal to be heard along with this case. We, therefore, express no opinion as to whether the entire collections made in the 'Hundi' constitute 'Bheta' and 'Pindika' and leave the said question open to be decided in the Second Appeal.
31. We have already held that the right of the petitioner-sevaks to get a share out of 'Bheta' and Pindika' is apart and parcel of the seva rendered by them according to the record of rights statutorily prepared and the same cannot be separated from the performance of their religious duties. We have also held that deprivation of these sevaks from appropriating a share in the offerings amounts to interference of religious practices and as such is hit by Article 25(1) of the Constitution of India. Our conclusion from the aforesaid analysis would be that Sub-section (5) of Section 28-B and Sub-section (9) of Section 28-C as introduced by Act 10 of 1983 prescribing that these sevaks shall not be entitled to any share in the offerings which can be termed as 'Bheta' and 'Pindika' ultra vires the Constitution of India and we further direct that they be paid their legitimate share in accordance with the record of rights.
32. The writ application is allowed. There shall be no order as to costs.
A.K. Padhi, J.
33. I agree.