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It was under these circumstances that the Governor of Rajasthan promulgated an Ordinance called the Nathdwara Ordinance, J959 (No. 11 of 1959) on February 6, 1959. The Tilkayat immediatelyfiled his Writ Petition No. 90 of 1959 challengingthe validity of the said Ordinance. The Ordinance was in due course replaced by Act 13 of 1959 and the Tilkayat was allowed to amend his original writ petition so as to challenge the vires of the Act. Shortly stated, this is the historical background of the present dispute. The first question which calls for our decision is whether the tenets of the Vallabh denomination and its religious practices postulate and require that the worship by the devotees should be performed at the private temple owned and managed by the Tilkayat, and so, the existence of public temples is inconsistent with the said tenets and practices. In support of this argument, the learned Attorney General has placed strong reliance on the observadons made by Dr. Bhandarkar in his work on Vaisnavism, Saivism and Minor Religious Systems, ti 80. In the section dealing with Vallabh and his school, the learned Doctor has incidentally observed that the Gurus of this sect ordinarily called Maharajs are descendants of the seven sons of Vithalesa. Each Guru has a temple of his win, and there are no public places of worship. He has also added that the influence exercised by Vallabh and his successors over their adherents is kept up by the fact that God cannot be worshipped independently in a public place of worship, but in the house and temple of the Guru or the Maharaj which, therefore, has to be regularly visited by the devotees with offerings. These temples are generally described as Havelis and the argument is that the said description also brings out the fact that the temples are private temples owned by the Tilkayat of the day. It is true that the observations made by Dr. Bhandarkar lend support to the contention raised before us by the learned Attorney-General on behalf of the Tilkayat, but if' the discussion contained in Dr. Bhandarkar's work in the section dealing with Vallabh is considered as a whole, it would be clear that these observations are incidental and cannot be taken to indicate the learned Doctor's conclusions after a careful examination of all the relevant considerations bearing on the point. Since, however, these observations are in favour of the plea raised by the Tilkayat, it is necessary very briefly to enquire whether there is anything in the tenets or the religious practices of this denomination which justifies the claim made by the learned Attorney-General.

The question as to whether a Hindu temple is private or public has often been considered by judicial decisions. A temple belonging to a family which is a private temple is not 'Unknown to Hindu law. In the case of a private temple it is also not unlikely that the religious reputation of the founder may be of such a high order that the, private temple founded by him may attract devotees in large numbers and the mere fact that A large number of devotees are allowed to worship in the temple would not necessarily make the private temple a public temple. On the other hand, a public temple can be built by subscriptions raised by the public and a deity installed to enable all the members of the public to offer worship. In such a case, the temple would clearly be a public temple. Where evidence in regard to the foundation of the temple is not clearly available, sometimes, judicial decisions rely on certain other facts which are treated as relevant. Is the temple built in such an imposing manner that it may prima facie appear to. be a public temple ? The appearance of the temple of course cannot be a decisive factor; at best it may be a relevant factor. Are the members of the public entitled to an entry in the temple ? Are they entitled to take part in offering service and taking Darshan in the temple ? Are the members of the public entitled to take part in the festivals and ceremonies arranged in the temple ? Are their offerings accepted as a matter of right ? The participation of the members of the public in the Darshan in the temple and in the daily Acts of worship or in the celebrations of festival occasions may be a very important factor to consider in determining the character of the temple. In the present proceedings, no such evidence has been led and it is. therefore, not shown that admission to the temple is controlled or regulated or that there are other factors present which indicate clearly that the temple is a private temple. Therefore, the case for the Tilkayat cannot rest on any such considerations which, if proved., may have helped to establish either that the temple is private or is public. There are, however, certain ancient documents which show that the temple cannot be a private temple. We have already referred to the Firmans issued by Akbar and Shahjahan. These Firmans are strictly not material for the purpose of the present dispute because they have no relation to the temple at Nathdwara. However, as a matter of history, it may be worthwhile to recall that the Firman issued by Akbar on May 31, 1593 A. D. shows that Vithalraj had represented to the Darbar that he had purchased on paying its price land from the owners thereof in the Mowzah of Jatipura, situated in the Paraganah, adjoining Gordhan and had caused to be built thereon buildings, gardens, cowsheds and Karkhanas (workshops) for the temple of Gordhan Nath and that he was residing there. Having received this representation, Akbar issued an order that the above-mentioned Mowzah had been given over tax-free into the possession of the above- mentioned Goswami from descendant to descendant. It would thus be seen that though the grant by which the land in question was exempted from payment of taxes is in the name of the Goswami, there 'can be no doubt that it was so named on the representation made by the Goswami that he had purchased the land and built structures on it for the temple of Gordhan Nath. Thus, in substance, the grant was made to the Goswami who was managing the temple of Gordhan Nath. The grant of Shah Jahan made in 1633 A. D. is to 'the same effect.' These grants are in reference to the temple built by Vithalrai in Jatipura. We have already seen that the idol of Shrinathji was' removed from the said temple and brought to Nathdwara in about 1671.

Consistently with this record, we find a declaration made by Tilkayat Gordhanji in 1932 in which he stated that "the money of Shri Thakurji as is the practice now, that it is not spent in our private expenditure the same will be followed", though along with this declaration he added that the proprietary right was 'his own from the time of the ancestors. In conformity with the same, the entry will continue as usual in the accounts of credit and debit as is the continuing mutation. Even though the Tilkayat set up the claim that the temple was private, it is consistently adhered to that the income derived from the properties of the temple is not intended to be and has never been used for the personal requirements of the Tilkayat. It is true that there are other grants which have been produced on the record by the Tilkayat for the purpose of showing that some gifts oil immovable property were made in favour of the Tilkayat. Such grants may either show that the gifts were made to the Tilkayat because he was in the management of the temple, or they may have' been made to the Tilkayat in his personal character. Grants falling in the former category would constitute the property of the temple, whilst those falling in the latter category would constitute the private property of the Talikayat. These grants, however, would not affect the nature of the initial grants made to the temple soon after Shrinatliji came to Nathdwara. Therefore in our opinion, having regard to the documentary evidence adduced in the present proceedings, it would be unreasonable to contend that the temple was built by the Tilkayat of the day as his private temple and that it still continues to have the character of a private temple. From outside it no doubt has the appearance of a Haveli, but it is common ground that the majestic structure inside is consistent with the dignity of the idol 'and with the character of the temple as a public temple.

Then the learned' Attorney-General contended that in judging about the effect of this Firman we should not ignore the background of events which necessitated its issue. Damodarlalji had been deposed by Maharana and it was more in anger that the Firman was issued to meet the challenge of the said incident. Damodarlalji had filed certainsuits in the Bombay High Court and it appeared as if a doubt would arise in the minds of the followers and devotees of the temple as to whether the deposition of Damodarlalji was valid or not. It was with a view to meet this specific particular situation that the Firman was issued and so, it need not be treated as a law binding for all times. In our opinion, this argument is clearly misconceived. Whatever may be the genesis of the Firman and whatever may be the nature of the mischief which it was intended to redress, the words used in the Firman are clear and as provisions contained in a statute they must be given full effect. There can be little doubt that after this Firman was issued, it 'would not be open to anyone to contend that the Shrinathii temple was a private temple belonging to the Tilkayat Maharaj of the day. This law declares that it has always been and would always be a public temple. The validity of this law was not then and is not now open to any challenge when it seeks to declare that the temple in question has always been a public temple. We have already seen that the original grants amply bear out the recital in cl. 1 of the Firman about the character of this temple. The fIrman then clearly provides that the TilkayaT Maharaj is merely a Custodian, Manager and Trustee of the said property and that finally determines the nature of the office held by the Tilkayat Maharaj. He can claim no better and no higher rights after the Firman was issued. The said clause also declares that the Darbar has absolute right to see to it that the property is used for legitimate purpose of the shrine. This again is an assertion which is validly made to assert the sovereign's rights to supervise the administration of public charity. Clause 2 lays down the absolute right of the Darbar to depose the Tilkayat and to disqualify anyone from claiming the succession to the Gaddi. It shows that succession to the Gaddi and continuing in the office of the Tilkayat are wholly dependent on the discretion of the Darbar. The Right of the Darbar to depose the Tilkayat and to recognise a successor or not is described by this clause as absolute. The third and the fourth clauses are consistent with the first two clauses. Reading this Firman as a whole, there can be no doubt that under the law of Udaipur, this temple was held to be a public temple and the Tilkayat was held to be no more than the Custodian, Manager and Trustee of the property belonging to the said temple. It is on the basis of this law that the vires of the Act must inevitably be determined. The learned Attorney General has invited our attention to some decisions in which the temples of this cult were held to be private temples. 'We would now very briefly refer to these decisions before we proceed to deal with the other points raised in the present appeals. In Gossamee Sree Greedhareejee v Rumanlolljee Gossantee, (1), the Privy Council held that when the worship of a Thakoor has been (1)16 1. A. 137.