CIVIL APPELLATE JURISDICTION : Civil Appeals Nos 746-748, 756, 760, 778, 800, 802, 826, 789, 790, 798, 799, 1035 & 1303 of 1971. Appeals from the Judgment & Order dated the 31st August/1st/ 2nd/ and 3rd September, 1970 of the Gujarat High Court in Special Civil Applns. Nos. 60, 168, 169, 173, 63, 87, 154, 869, 167, 123, 337, 606, 119 and 604 of 1970 respectively. V. M. Tarkunde (In CA. No. 746/71) P. C. Bhahtari, C.S. Rao, B.Dadachanji, O. C. Mathur and.Ravinder Narain for the appellants, (In Case. Nos. 746-748, 754, 760 & 826/71). Vimal Dave and Kalidas Mehta, for the appellants. (In CAs Nos. 778, 798-799/71). P. C. Kapur for the appellants (In C. No. 802/71). R. M. Mehta and S. K. Dholkia for the appellants ’(In CAS Nos.800 & 1303/71). I. N. Shroff and H. S. Parihar, for the appellants (In CAs Nos. 789-790/71). C.C. Patel, Ambrish Kumar and M. V. Goswami for the appellants (In CAs Nos. 1035/71). S.T. Desai, R. H. Dhebar and M. N. Shroff, for the respondents.(In all the appeals). The Judgment of the Court was delivered by Goswami, J. These appeals are by certificate granted by the High Court of Gujarat. Since a common question of law arises for consideration in all these appeals and the learned counsel in all the appeals adopted the arguments of Mr. Tarkunde, the learned counsel for the appellant (in Civil Appeal No. 746 of 1971) the facts of that appeal alone need be stated and this judgment will govern all the appeals. The appellant is the Managing Trustee of the Trust of the Temples of Laxminarayan Deo of Vadtal and is the Acharya of the Gadi of the Swaminarayan Sampraday at Vadtal which is a public trust registered under the Bombay Public Trust Act. Under the scheme of the Trust the appellant is authorised to look after the management of the properties of the Trust. It is not disputed that the Swaminarayan Sampraday is a religious denomination which believes in Lord Krishna and Radha. The Institution holds Devasthan Inam lands and the appellant challenges the constitutional validity of the Gujarat Devasthan Inams Abolition Act, 1969 (hereinafter referred to as the Act). The Act came into force on November 15, 1969 and it extends to the Bombay area of the State of Gujarat. The preamble shows that it is an Act "to abolish inams held by religious or charitable institution in the Bombay area of the State of Gujarat and to provide for matters consequential and incidental thereto". Section 2 contains the definitions. By section 2(6) "Devasthan inam’ means an inam consisting of a grant or recognition as a grant-
(a) of a village, portion of a village or
land, whether such grant be-
(i) of soil with or without exemption from
payment of
land revenue or
(ii) of assignment of the whole of the land
revenue of the village, portion of the
village, or as the case may be, land, or of a
share of such land revenue, or
(iii) of total or partial exemption from
payment of land
revenue in respect of any land, or
(b)of cash allowance or allowance in kind
by whatever name called, by the ruling
authority for the time being for a religious
or charitable institution and entered as such
in the alienation register kept under section
53 of the Code or in any other revenue record
or public record maintained in respect of
alienations or determined as such by a
decision under section 5 of the Gujarat
Surviving Alienations Abolition Act, 1963
(Gujarat XXXIII of 1963) but does not include-
* * * * By section 2(7) " ’Devasthan land, means a village, portion of a village or land held under a Devasthan inam". By section 2(9) " inferior holder’ means a person who is in possession of a Devasthan land whether by inheritance, or succession or valid transfer under the tenancy law or otherwise and who, being liable to pay assessment in cash or kind hold such land, whether on payment of assessment or not". By section 2 (10) " Inamdar’ means in the religious or charitable institution for which a Devasthan inam is held, whether such inam is actually entered in the relevant revenue record in the name of such institution or of any person in charge of such institution or having the management thereof". By section 2(12) " ,religious institution’ means any institution belonging to any religion". By section 2(14) " unauthorised holder’ means a person in possession of a Devasthan land under any kind of alienation thereof which is null and void under the law applicable to such land immediately before the appointed day". Section 5 provides for "abolition of certain Devasthan inams together with their incidents and ’Devasthan lands to be liable to payment of land revenue-Notwithstanding any usage or custom, settlement, grant, agreement, sanad or order or anything contained in any decree or order of a court or any law, for the time being applicable to any Devasthan inam, with effect on and from the appointed,day-
(a)all Devasthan inams except in so far as
they consist of a grant or recognition as a
grant of cash allowance or allowance in kind
shall be and are hereby abolished;
(b)save as expressly provided by or under
this Act all rights legally subsisting
immediately before the said day, in the
Devasthan inams so abolished and all other
incidents of such inams shall be and are
hereby extinguished; and
(c)subject to the other provisions of this
Act, all Devasthan lands shall be and are
hereby made liable to the payment of land
revenue in accordance with the provisions of
the Code and the rules made thereunder, and
accordingly the provisions therein relating to
unalienated land shall apply to all Devasthan
lands".
Sections 6 and 7 say also be quoted
6."Occupancy rights in respect of
Devasthan land.-In the case of a Devasthan
land, the person deemed to be the occupant
primarily liable to the State Government for
payment of land revenue in respect of such
land in accordance with the provisions of the
Code and the rules made thereunder shall be-
(a)where such land is in possession of the
inamdar and had been cultivated on behalf of
the inamdar immediately before the appointed
day, the inamdar,
(b)where such land is in the possession of
an authorised holder or an inferior holder,
such authorised holder or inferior holder, as
the case may be, and
(c)where such land is in possession of a
person other than the inamdar, authorised
holder, unauthorised holder or inferior
holder, the inamdar".
7."Eviction of unauthorised holder and
regrant of Devasthan land to him in cretain
circumstances and disposal of land
not regranted.-
(1) Where any Devasthan land is in the
possession of an unauthorised holder, it shall
be resumed and such unauthorised holder shall
be summarily evicted there from by the
Collector in accordance with the provisions of
the Code :
Provided that where in the case of any
unauthorised holder the State Government is of
opinion that in view of the investment by such
holder in the development of the land or in
the non-agricultural use of the land or
otherwise, the eviction of such holder from
the land will involve undue hardship to him,
the State Government may direct the Collector
to regrant the land to such holder on payment
of such amount and subject to such terms and
conditions as the State Government may
determine and the Collector shall regrant the
land to such holder accordingly.
(2)Devasthan land which is not regranted
under subsection (1) shall be disposed of in
accordance with the provisions of the Code and
the rules made thereunder applicable to the
disposal of unoccupied unalienated land". Section 8 vests all public roads, lanes and tracks, bridges, ditches, dikes and fences, etc. and various things mentioned therein situated in Devasthan lands in Government and all rights held by an inamdar in such property shall be deemed to have been extinguished and it shall be lawful for the Collector, subject to the general or special orders of the State Government, to dispose of them as he deems fit, subject always to the rights of way and other rights of the public or of individuals legally subsisting.
Section 9 reads as follows
"Compensation in form of cash annuity,-In the
case of a Devasthan inam not consisting of a
grant or recognition as a grant of cash
allowance or allowance in kind, there shall be
paid to the inamdar as compensation for the
abolition of all his rights in Devasthan inam,
in the form of an annuity in perpetuity--
(a)a sum of money equal to an average of
the full assessment lawfully leviable on all
the lands comprised in such inam during a
period of three years immediately preceding
the appointed day, if the grant consisted of
grant of soil with or without exemption from
payment of land revenue.
(b)a sum of money equal to an average of
the amount of land revenue or, as the case may
be, the share in such land revenue received or
due to the inamdar during a period of three
years immediately preceding the appointed day,
if the grant consisted of assignment of land
revenue or a share in such land revenue.
Section 10 provides for the method of awarding
compensation to inamdar.
Section 11 may be set out
" Method of awarding compensation for
abortion etc. of rights of other person in
property.-
(1)If any person is aggrieved by the
provisions of this Act as abolishing,
extinguishing or modifying any of his rights
to or interest in, property and if
compensation for such abolition,
extinguishment or modification has not been
provided for in the other provisions of this
Act, such person may apply to the Collector
for compensation.
(2) The application under sub-section (1)
shall be made to the Collector in the
prescribed form within the prescribed
period.The Collector shall, after holding a
formal inquiry in the manner provided by
the Code, make an award determining the
compensation in the manner and according to
the method provided for in subsection (1) of
section 23 and section 24 of the Land
Acquisition Act, 1894 (1 of 1894).
(3)Nothing in this section shall entitle
any person to compensation on the ground that
any Devasthan land which was wholly or
partially exempt from payment of land revenue
has
-M255SupCI/75
been under the provisions of this Act made
subject to the payment of full assessment in
accordance with the provisions of the Code".
By section 12, "Provisions of Land Acquisition
Act, applicable to awards-
(1)Every award made under section II shall
be in the form prescribed in section 26 of the
Land Acquisition Act, 1894 (1 of 1894) and the
provisions of the said Act, shall, so far as
may be, apply to the making of such award".
x x x
Section 13 provides for appeal against
Collector’s award to the Gujarat Revenue
Tribunal. Section 19 makes actions taken or things done after 18th March, 1968, but before the appointed day, in relation to ’Devasthan lands so as to affect the rights of the tenant from such land or to evict the tenant therefrom, void.
By section 31, the following Acts have been
amended
1.Inter-alia, a new section 88E is
inserted in the Bombay Tenancy and
Agricultural Lands Act, 1948 and the same may
be quoted :
88E. "Cessor of exemption in respect of
certain public trust lands-
(1)Notwithstanding anything contained in
section 88B, with effect on and from the
specified date lands which are the property of
an institution for public religious worship
shall cease to be exempted from those
provisions of the Act except sections 31 to 3
ID (both inclusive) from which they were
exempted under section 88B and all
certificates granted under that section in
respect of such lands shall stand revoked.
(2)Where any such land ceases to be so
exempted, then in
the case of tenancy subsisting immediately
before the specified date thetenant shall be
deemed to have purchased the land on the
specified date and the provisions of section
32 to 32R (both inclusive) shall so far as may
be applicable, apply".
x x x
2.Similarly under section 3 of the Gujarat
Agricultural Lands Act, 1960, after sub-
section (2) a new-sub-section (3) has been
inserted which reads as under :
"(3) The Devasthan lands which immediately
before the date of the commencement of the
Gujarat Devasthan Inams Abolition Act, 1969
(Gujarat 16 of 1969) were exempted under
clause (d) of sub-section (1) shall with
effect on and from the said date cease to be
exempted lands" From the foregoing provisions of the Act set out above it is clear that the Act is passed in furtherance of agrarian reforms and that is not disputed before us. According to the appellant as a consequence of the enforcement of the Act his rights in respect of 729 bighas of Devasthan inam lands will be extinguished. Action was also taken under the Bombay Land Revenue Code in order to effect changes in the record of rights imposing liability to land revenue in view of the abolition of Devasthan Inams under the Act. Some other notices under the Act have also been served on the appellant to hand over his record as inamdar. That led to the application under article 226 of the Constitution in the High Court challenging the validity of the Act without success. Hence this appeal by certificate. Mr. Tarkunde, learned counsel, whose arguments have been adopted by the appellants in all other appeals before us makes the following submissions : (1)The Act violates Articles 26(c) of the Constitution since it deprives religious denomination of their ownership of property.
(2)Tile Act in so far as it is concerned
with compulsory acquisition of property
fulfils- the requirements of Article 31(2). it
has, however, to fulfil in addition the
requirements of Article 26(c) also. It is
submitted that the observations to the
contrary in Khajamian Wakf Estates etc. v.
State of Madras & Anr.(1) are inconsistent
with the ratio of the Bank Nationalisation
case [Rustom Cavasjee Cooper v. Union of
India(2)] which was decided by a larger Bench.
He further submits that the compulsory
acquisition of property limits the substance
of the right of ownership guaranteed by
Article 26(c).
(3)The Act is not saved by the provisions
of Article 31A since the operation of Article
26(c) is not excluded under the former
Article.
(4)At any rate section 31 of the Act is
violative of Article 26(c) since the
compensation available to religious
denominations for the lands covered by the
Bombay Tenancy and Agricultural Lands Act,
1948 and the Gujarat Agricultural Lands Ceil-
ing Act, 1960 is grossly inadequate. Mr. S. T. ’Desai, learned counsel for the respondent on the other hand submits that there is nothing in Article 26(c) and (d) to debar the State from acquiring the properties owned by the religious denominations under Article 31(2) of the Constitution. Secondly, he submits that the right of property embodies in Article 26(c) is not an absolute right but is subject to reasonable regulation by the State. He further submits that the reasonable regulation must depend, in a large measure, on the Directive Principles enumerated in Part IV of the Constitution (1) [1971] 2 S.C.R. 790. (2) [1970] 3 S.C.R. 530. and the socioeconomic structure envisaged by the Constitution. Thirdly, he sub.-nits that if under any law a property is compulsorily acquired for public purpose and the law satisfies the requirements of Article 31 A the Court should readily permit the imposition of a reasonable restriction on the exercise of the right to hold property in the interest of the general public. With regard to the first objection the learned counsel submits that the Act violates Article 26(c) of the Constitution which offers to every religious denomination the fundamental right "to own and acquire movable and immovable property" subject only to "public order, morality and health". He submits that the Act aims at agrarian reform but is not concerned with "public order, morality and health". Since it deprives religious denominations of their ownership of property, it transgresses Article 26(c) and is invalid. He also draws our attention to Article 25(1) which has subjected the rights therein not only to public order, morality and health, but also to "the other provisions of Part III". Ho, therefore, submits that the right guaranteed under Article 26(c) is Rot subject to "the other pro visions of Part III" and therefore, there cart be no acquisition of property under Article 31 of the Constitution. Articles 25 to 28 in Part III of the Constitution are placed under a sub-title "Right to Freedom of Religion" and deal with matters in the background of that freedom. It is true that Article 25 is made subject to "public order, morality and health" and also "to the other provisions of this Part" while Article 26 is only subject to "public order, morality and health". Insertion of the expression "the other provisions of this Part" in Article 25 is understandable when we find the particular rights which are taken care of in this Article, namely, the right to freedom of conscience and the right freely to profess, practice and propagate religion. Bearing in mind the overlapping nature of the sensitive rights, in Article 19(1) (a) with reference to citizens and in Article 25(1) with reference to- all persons the founders of the Constitution left no room for doubt in expressly subjecting Article 25(1) to the other provisions of Part III. Not only so sub-Article 2 of Article 25 provides that ".nothing in this Article shall affect the operation of any existing law or prevent the State from making any law regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice". The same considerations are, however, not exactly necessary while dealing with "freedom to manage religious affairs" which is the rubric of Article 26. We may now read Article 26 :
Freedom to 26. "Subject to public order,
morality and health
manage every religious denomination or any
section
religious thereof shall have the right-
affairs.
(a)to establish and maintain institutions
for religious and charitable purposes;
(b)to manage its own affairs in matters of
religion;
(c)to own and acquire movable and immovable
property; and
(d)to administer such property in accordance
with law". While Article 25, as stated earlier, confers the particular rights on all persons, Article 26 is confined to religious denominations or any section thereof. Article 19(1) confers the various rights specified therein from (a) to (g) on citizens. A religious denomination or a section thereof as such is not a citizen. In that sense the fields of the two Articles may be to sonic extent different. Again while Article 26(c) refers to the right "to own and acquire movable and immovable property", Article 19(1)(f) confers the right on citizens "to acquire, hold and dispose of property". We are not required to consider in this case why the same expression is not used in the said two clauses of the two Articles. One. thing is, however, clear that Article 26 guarantees intervals the right to own and acquire movable and immovable property for managing religious affairs. This right, however, cannot take away the right of the State to compulsorily acquire property in accordance with the provisions of Article 31(2). If, on the other hand, acquisition of property of a religious denomination by the State can- be proved to be such as to destroy or completely negative its right to own and acquire movable and immovable property for even the survival of a religious institution the question may have to be examined in a different light. That kind of a factual position, however, is not taken in these appeals before us. When, however, property is acquired by the State in accordance with law and with the provisions of Article 31(2) and the acquisition cannot be assailed on any valid ground open to the person concerned, be it a religious institution, the right to own that property vanishes as that right is transferred to the State. Thereafter there is no question of any right to own the particular property subject to public order, morality and health and Article 26 will in the circumstances be of no relevance. This being the legal position, there is no conflict between Article 26 and Article 31. In Khajamian Wakf Estates’ case (at page 797) a Constitutional Bench of this Court dealing with Article 26(c) and (d) observed as follows :
"It was next urged that by acquiring the
properties belonging to religious
denominations the legislature violated Art.
26(c) and (d) which provide that religious
denominations shall have the right to own and
acquire movable and immovable property and
administer such property in accordance with
law. These provisions do not take away the
right of the State to acquire property
belonging to religious denominations. Those
denominations can own acquire properties and
administer them in accordance with law. That
does not mean that the property owned by them
cannot be acquired. As a result of
acquisition they cease to own that property.
Thereafter their right to administer that
property ceases because it is no longer their
property. Art. 26 does not interfere with the
right of the State to acquire property." It is submitted by Mr. Tarkunde that the above observations of this Court are inconsistent with the ratio of the decision in Rustom Cavasjee Cooper’s case, popularly known as the Bank Nationalisation case, which was decided by a larger Bench. It is difficult to accept the submission that the views expressed in Khajamian Wakf Estates’ case are contrary to Rustom Cavasjee Cooper’s case. Apart from that this Bench cannot pass upon the correctness or otherwise of the views expressed in Khajaraian Wakf Estate’s case. Besides, we do not even think that the submission is wellfounded even to merit reconsideration of the Khajamian Wakf Estates’ case. The learned counsel also strenuously relied upon the following passage in the Commissioner, Hindu Religious Endowments, Madras v. Shri Lakshmindra Thiratha Swamiar of Sri Shirur Mutt.(1)
"Under article 26(b), therefore, a religious
denomination or organisation enjoys complete
autonomy in the matter of deciding as to what
rites and ceremonies are essential according
to the tenets of the religion they hold and no
outside authority has any jurisdiction to
interfere with their decision in such
matters .... A law which takes away the right
of administration from the hands of a
religious denomination altogether and vests it
in any other authority would amount to a
violation of the right guaranteed under clause
(d) of article 26." We do not think that the above opinion of the Court in that case is of any assistance to the appellants. The first and the second submissions of the learned counsel are, therefore, of no avail. When we look at the object of the Act and of the various provisions enacted in furtherance of agrarian reform, the Act is squarely protected under the saving provision of Article 31A. But it is then submitted that Article 31A does not provide against the vice of contravention of Article 26 while Articles 14, 19 and 31 are expressly mentioned in Article 3 1 A. The question, therefore, arises whether the right under Article 26(c) is an absolute and unqualified right to the extent that no agrarian reform can touch upon the lands owned by the religious de. nominations. No rights in an organised society can be absolute. Enjoyment of one’s rights must be consistent with the enjoyment of rights also by others. Where in a free play of social forces it is not possible to bring about a voluntary harmony, the State has to step in to set right the imbalance between competing interests and there the Directive Principles of State Policy, although not enforceable in courts, have a definite and positive role introducing an obligation upon the State under Article 37 in making laws to regulate the conduct of men and their affairs. In doing so, a distinction will have to be made between those laws which directly infringe the freedom of religion and others, although indirectly, affecting some secular activities or religious institutions or bodies. For example if a religious institution owns large areas of land far exceeding the coiling under relevant laws and indulges in activities detrimental to the interest of the agricultural (1) [1954] S.C.R. 1005,1028-1029. tenants, who are at their mercy, freedom of religion or freedom to manage religious affairs cannot be pleaded as a shield against regulatory remedial measures adopted by the State to put a stop to exploitation and unrest in other quarters in the interest of general social welfare. The core of religion is not interfered with in providing for amenities for sufferers of any kind. We take the view that the Act and its provisions do no violence to the rights guaranteed under Article 26(c). In the view we have taken it is also not necessary to mention Article 26 in Article 3 1 A and its omission therein is not at all of any consequence. Right guaranteed under Article 26(c) not being absolute and unqualified is consistent with reasonable replacements made by the State provided the substance of the freedom is riot affected. The Act does not make any inroad in such a way as to affect directly the substance of that freedom. A particular fundamental right cannot exist in isolation in a watertight compartment. One fundamental right of a person may have to co-exist in harmony with the exercise of another fundamental right by others and also with reasonable and valid exercise of power by the State in the light of the Directive Principles in the interests of social welfare as a whole. The Court’s duty is to strike a balance between competing claims of different interests. So far as the fourth submission is concerned, the objection is on the score of adequacy of compensation which cannot be agitated against a legislation which admittedly relates to agrarian reform and is, therefore, under the canopy of protection of Article 31A of the Constitution and objection on the score of violation of Articles 14, 19 and 31 is not entertainable. Hence this submission also fails. in the result all the appeals arc dismissed with costs. P.H.P. Appeals dismissed