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Civil Appeal No. 1083 of 1967 is an appeal by the State of Rajasthan against the respondents, while Civil Appeal No. 1092 of 1967 is the appeal by the respondents against the State of Rajasthan. These two appeals, which we may also refer as the first set of appeals, arise out of a writ petition filed by the respondents against the State of Rajasthan alleging that the temple of Shri Rikhabdevji, also known as Keshariyanathji temple, situated about 40 miles from Udaipur, is a Swetamber Jain temple which is under the ownership and management of Jain Shasan, and has been recognized as such in official documents as well as in the firmans issued by the erstwhile State of Mewar. Notwithstanding the position it was averred that the management of the said temple has been illegally usurped by the State of Rajasthan through the Devasthan Department for some years, and that the State, of Rajasthan had applied certain provisions of the Rajasthan Public Trusts Act, 1959- hereinafter called 'the Act-to the said temple which contravened the fundamental rights of the respondents guaranteed under Arts. 25 and 26 of the Constitution of India. The respondents, therefore, prayed that the Court should refrain the State from enforcing provisions of the Act specified in the petition and declare them void being in contravention of the fundamental rights of the respondents guaranteed under Arts. 14, 19, 25, 26 and 31 of the Constitution of India. They also challenged s. 17(3) of the Act on the ground that the fee levied along with the application for registration of the public trust is a tax, and therefore beyond the competence of the State Legislature. The case of the State of Rajasthan, however, was that the temple in question was not a Jain temple, but is a Hindu temple where Jains of all sects as well as Hindus of all beliefs and sects including the Bhils worship. It denied that the provisions of the Act which had been enacted to regulate and to make better provisions for the administration of public religious and charitable trusts in the State of Rajasthan were in any way violative of Arts. 25 and 26 or any other article of the Constitution. It asserted that the management of the temple was with the State of Rajashan which had a valid and legal right to manage it, and that s. 17(3) of the Act was valid. The High Court held that Rikhabdevji temple is a Swetamber Jain temple and is at present managed by the State of Rajas.than, that s. 17(3) of the Act is invalid because under the Rules that have been framed under the Act an amount of Rs. 51. charged as registration fee goes to the Consolidated Fund, and is thug not a fee but a tax which the State Legislature was not competent to levy. Following the decision in another writ petition, which is the subject matter of the second set of appeals to which we shall refer presently, the High Court struck down S. 52(1) (d) & (e) of the Act, but as the management of the temple had vested in the State prior to the Constitution, the case of Rikhabdevji was held to have been covered by s. 52(1) (la) or (c) of the Act. In the petition relating to the second set of appeals the High Court had held that cases of trust as are mentioned in sub- ss. (1) (a), (b) and (c) a secular State may not like to keep the management of public trusts belonging to various, denominations with it and may like to transfer it to those who might be better equipped for managing it in accordance with the wishes of the founder or of the religious denomination to which the trust belongs. But that would not be violative of Art. 26(b) and (d) of the Constitution in any way. It was of the view that S. 52(1) (d) & (e) of the Act was invalid as s. 53 had not provided for proper safeguards for the administration of the property being left in the hands of the denomination. Even so it held that these clauses were not applicable to that case. In so far as the challenge to ss. 30, 31, 38 to 43 of the Act was concerned, it held them to be valid. In, the result the High Court gave the directions which are contained in the following conclusion now impugned:

(e) of the Act being ultra.vires the State Legislature were invalid. The rest of the provisions of the Act were held constitutional and valid. Against this judgment, both parties have ..appealed as pointed out earlier. The fifth appeal is Civil Appeal No. 1647(N) of 1967 arising out ,of a writ petition filed by one Pandit Ram Dayal against the State of Rajasthan challenging the constitutional validity of the Act and the Rules framed thereunder on the ground, inter alia, that they contravened his fundamental rights enshrined in Arts. 25 and 26 of the Constitution, as they take away, limit or abridge his right to manage the affairs of (1) T19541 S.C.R. 1055, the two temples known as Thakurji Vijay Govindji and Thakurji Shri. Sireh Behariji in accordance with the tenets of the religion and the. traditions of his family. The respondents case was that the temple of Thakurji Vijay Govindji is situated within the residential premises of the respondent in Ramganj Bazar, Jaipur City, and the temple of Thakurji Shri Sireb Behariji is situated near the first temple. Both these temples, according to him, were his family temples and neither the public in general visited those temples for worship nor any offerings, were made to the deities. Nevertheless it was admitted that certain properties were granted by the then Maharaja of Jaipur to his great grand father for the maintenance and for providing Bhog, Pooja etc. of those temples. The respondent, therefore, challenged the constitutional, validity of the several provisions of the Act specified therein on. the ground that they contravene his fundamental rights guaranteed by Arts. 25 and 26 of the Constitution to freely profess, practice, propagate his religion and has placed unreasonable restrictions on his fundamental right to manage the affairs and to carry on the administration. of the aforesaid temples in accordance with the tenets of his religion and the traditions of his family. He, therefore, prayed that the High Court should declare that the two temples in question were private temples and that the Act was not applicable to them.

It may be observed from the above provisions that S. 52(1)

(d) which has also been struck down by the High Court has no application in this case, because it deals with a public trust which is under the superintendence of the Court of Wards. This part of the judgment is, therefore, clearly wrong. We will now have to only consider the validity of s. 52(1)(e) which concerns a public trust of which the gross annual income is Rs. 10,000/ or more.

It is alleged that Nakodaji Parasnath temple is a public trust of which the gross annual income exceeds Rs. 10,000/ and is, therefore, governed by clause (e) of sub-s. (1) of s. 52 of the Act. Whether this is so or not cannot be determined by us merely on the allegations in the petition. It is for the State Government, if it intends to apply the provisions of Chapter X of the Act to the said temple, to include it in the list of public trusts published under sub- s. (2) of s. 52 in the official Gazette. Section 53 postulates the application of Chapter X before the management of the temple can be said to vest in a Committee of management to be constituted by the State Government in the manner provided in that section. Until a notification is published under sub-s. (2) of s. 52 the respondents cannot claim that their rights are affected. The learned Advocate for the respondents. however, submits that when it is apprehended that the Act may be made applicable to the Nakodaji Parasnath temple, the, denomination or persons interested in that temple could challenge the vires of the Act or of any of its provisions. Even assuming that the provisions of Chapter X are made applicable to the temple or to other similar religious trusts, though these have not yet been made applicable, the question will be whether the provisions of sub-s. (5) of s. 53 empower the Government to take away from a religious denomination the management of that public religious trust not already vested in it, as specified in clauses (a) to (d) of sub-s. (1) of s. 52, and vest it in a Committee to be constituted under that sub- section and whether such vesting would contravene the fundamental rights guaranteed under clauses (b) and (d) of Art. 26.

The case of the State, in this case is that the fee is a sort of contribution levied on public trusts towards meeting the expenses incurred by the State Government in rendering services to the public trusts through the agency of the Devasthan Department and that according to the budget provision for the year 1964-65 the expenditure on the Devasthan Department was Rs. 2,76,715/- as against the income of only Rs. 3,000/- for the same year from the registration fee. This averment in the reply of the Commissioner, Devasthan Department, was not controverted by the petitioners either by a reply thereto or by any other material produced by them. In these circumstances, the mere fact that the amount was paid under r. 18 into the Consolidated Fund is by itself not sufficient to hold that the levy under s. 17(3) of the Act is tax. As the income by way of fees is far below the expenditure incurred on the Devasthan Department, the levy would be a fee. In this view, s. 17(3) cannot be held to be invalid and ultra vires the powers of State Legislature. We express no opinion on the question whether s. 17(3) can be declared to be invalid on account of Rule 18 requiring the fee to be deposited in the State Consolidated Fund, In Civil Appeal No. 1647 of 1967 the Act has been challenged on the grounds similar to these in the other appeals and no separate arguments were addressed, except those advanced by the respondents' Advocate in the other appeals. This appeal also will be decided accordingly The question whether the two temples which the State contended were public trusts and the petitioner averred were his private property was not agitated before the High Court, as the petitioner was then content to have the matter disposed of. in accordance with the (1) I.L.R. 43 Bom. 507 decision in the Writ Petition which is the subject matter of the second set of appeals. It was open to him to have invited the High Court to give a finding on the question whether the two temples were his private property but since he has not done so the question cannot be gone into this appeal. The appropriate authority under the Act will however decide this question before applying the Act to these temples.