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