# SASTRI Y AGNAPURUSHADJI AND OTHERS v. MULDAS BHUDARDAS V AISllY A AND AN0111ER

- **Citation:** [1966] 3 S.C.R. 242
- **Court:** Supreme Court of India
- **Decided:** 1966-01-14
- **Case number:** Civil Appeal No. s 17 of 1964
- **Bench:** P. B. Gajendragadkar, K. N. Wanchoo, M. Hidayatullah, V. Ramaswami, P. Satyanarayana Raju
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/sastri-y-agnapurushadji-and-others-v-muldas-bhudardas-v-aislly-a-and-an0111er-3701
- **Pages:** 33

## Headnote

Bon1bay Jlb1du Places of l'ublic lVorsliip (Entry A11rhorisa1io11) Act
(31 of 1956), s._ 3-Valldity.
Hindu-Who is.
l'racticL"--VakalaJrhw1a in
fa\'Ollr of lln
Advocate-J>rr.~·cnf(Jtion of
apptal by another ad1·ocare ·working in his clzambers-Jf \'a/id presentation.
'The appellants, who are the followers of the Swaminarayan sect and
known at Satsanjlis, filed a repre\Cntative suit: (i) for a d.claiallon that
the relevant provisions of the Bombay Harijan Temple Entry Act, 1947,
as amended by Act 77 of 1948, did not apply to their tcn1plcs. because,
the religion of the Swaminarayan sect was dLStinct and different from Hindu
religion and becau~e. ihc relevant provisions of the Act,
\l..'Cre ultru ,·irer;
and (ii) for an injunc1ion restraining the Isl respondent and other nonSatsangi
Harijan~ from entering the S\vaminarayan temple.
The Trial
Court decreed the suit.
Pending the !st respondent's appeal in tho Hi&h
Court, the Bombay Hindu Places of Public Worship (Entry Au:hori•ation)
Act, 1956, was passed, and since theh 1947 Act gave place to the 1956
Act, it became necessary 10 con!iider whether the 1956 Act \\'as intra \lirts.
The High Court allowed the appeal and dismi<Sed the suit holding that
the followers of the Sv.·aminarayan sect pro(es!-'.ed Hindu relig:on and thal
the Act or 1956 \\.'3S constitutionally vatto.
Jn appeal to thi> Court it was contended that: (i) the Hi~h Court
erred in treating the lsi respondent's appeal as competent 1,1,·hen the \akaiatnama filed on his behalf \Vas invalid (ii) s. 3 of the 1956 Act v.·as
ultra vires as it cont:avened Art. 26(b) of the Con .. titu'ion; and (iii)
the religion of the Swaminarayan sect was distinct and separate from
Hindu religion and that therefore the temples belonging to that sect did
not fall within the ambit of the 1956 Act.
HELD: (i) The appeal to the High Court was properly pre-cnted.
Technically the memorandum of appeal presented by the Assistant
Go.,.,mmcnt Pleader on behalf of the !st respondent suffered from ao
infirmity, because, the 1st respondent signed the vakalatnama in favour
of the Government Pleader. But. since tho Registry had not returned the
appeal for correcfing the irregularity, and since r. 95 of the A\ll'ellate
Side Rules of the High Court authorises an advocate to appear even without initially filing a vakalatnama. the High Court was right in allowing
the Government Pleader to sign the memorandum of appeal and the vakaIatnama, in order to remove the irregularity. (251 E-G; 252 A-CJ
(ii) There is no substance in the contention that s. 3 contra\'Cnes Art.
26(h) or the Constitution and i• therefore ultra vi"'·
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YAGNAPURUSHADJI V. MULDAS
243
The right to enter temples which bas been vouchsafed to the H.arijans
by the impugned Ac_t. in substance symbolises ~he. n~t of Han1ans to
enjoy all social ame01t1!"' and nghts, for, social .Justice IS the. main foundation of the democratic way of hfe eoshnned m the prov1S1ons of the
Indian CorISlitution. Aft.er the Constitution came into force, the whole
social and religious outlook of the Hindu community has undergone a
fundamental change as a result of the message of social. eq':'"lity and justice
proclaimed by the .CorIStitution; and the solem~ prolllise m Art. 17, abolishing untouchab1hty has been gradually, but mes1stibly enforced by tho
proceiss of law assisted by enlightened public conscience. All that s. 3 of
the 1956 Act purports to do is to give the Harijans the same right to enter
tho temple for darshan of the deity as can be claimed by the other Hindus.
The act of actual worship of the diety is allowed to be performed onl)'. by the
authorised poojaris of the temple and by no other devotee entering the
temple for darslum.
Therefore, it was nont int.entled to invade the tradition and conventional manner of performing the actual worship of the
idol.
(iii) The High O>urt was right in coming to the conclusion that the
religion of the Swaminarayan sect is not

## Text

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SASTRI Y AGNAPURUSHADJI AND OTHERS
v.
MULDAS BHUDARDAS V AISllY A AND AN0111ER
January 14, 1966
[P. B. GAJENDRAGADKAR, C.J., K. N. WANCHOO,
M. HIDAYATULLAH, V. RAMASWAMI AND
P. SATYANARAYANA RAJU, JJ.)
Bon1bay Jlb1du Places of l'ublic lVorsliip (Entry A11rhorisa1io11) Act
(31 of 1956), s._ 3-Valldity.
Hindu-Who is.
l'racticL"--VakalaJrhw1a in
fa\'Ollr of lln
Advocate-J>rr.~·cnf(Jtion of
apptal by another ad1·ocare ·working in his clzambers-Jf \'a/id presentation.
'The appellants, who are the followers of the Swaminarayan sect and
known at Satsanjlis, filed a repre\Cntative suit: (i) for a d.claiallon that
the relevant provisions of the Bombay Harijan Temple Entry Act, 1947,
as amended by Act 77 of 1948, did not apply to their tcn1plcs. because,
the religion of the Swaminarayan sect was dLStinct and different from Hindu
religion and becau~e. ihc relevant provisions of the Act,
\l..'Cre ultru ,·irer;
and (ii) for an injunc1ion restraining the Isl respondent and other nonSatsangi
Harijan~ from entering the S\vaminarayan temple.
The Trial
Court decreed the suit.
Pending the !st respondent's appeal in tho Hi&h
Court, the Bombay Hindu Places of Public Worship (Entry Au:hori•ation)
Act, 1956, was passed, and since theh 1947 Act gave place to the 1956
Act, it became necessary 10 con!iider whether the 1956 Act \\'as intra \lirts.
The High Court allowed the appeal and dismi<Sed the suit holding that
the followers of the Sv.·aminarayan sect pro(es!-'.ed Hindu relig:on and thal
the Act or 1956 \\.'3S constitutionally vatto.
Jn appeal to thi> Court it was contended that: (i) the Hi~h Court
erred in treating the lsi respondent's appeal as competent 1,1,·hen the \akaiatnama filed on his behalf \Vas invalid (ii) s. 3 of the 1956 Act v.·as
ultra vires as it cont:avened Art. 26(b) of the Con .. titu'ion; and (iii)
the religion of the Swaminarayan sect was distinct and separate from
Hindu religion and that therefore the temples belonging to that sect did
not fall within the ambit of the 1956 Act.
HELD: (i) The appeal to the High Court was properly pre-cnted.
Technically the memorandum of appeal presented by the Assistant
Go.,.,mmcnt Pleader on behalf of the !st respondent suffered from ao
infirmity, because, the 1st respondent signed the vakalatnama in favour
of the Government Pleader. But. since tho Registry had not returned the
appeal for correcfing the irregularity, and since r. 95 of the A\ll'ellate
Side Rules of the High Court authorises an advocate to appear even without initially filing a vakalatnama. the High Court was right in allowing
the Government Pleader to sign the memorandum of appeal and the vakaIatnama, in order to remove the irregularity. (251 E-G; 252 A-CJ
(ii) There is no substance in the contention that s. 3 contra\'Cnes Art.
26(h) or the Constitution and i• therefore ultra vi"'·
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YAGNAPURUSHADJI V. MULDAS
243
The right to enter temples which bas been vouchsafed to the H.arijans
by the impugned Ac_t. in substance symbolises ~he. n~t of Han1ans to
enjoy all social ame01t1!"' and nghts, for, social .Justice IS the. main foundation of the democratic way of hfe eoshnned m the prov1S1ons of the
Indian CorISlitution. Aft.er the Constitution came into force, the whole
social and religious outlook of the Hindu community has undergone a
fundamental change as a result of the message of social. eq':'"lity and justice
proclaimed by the .CorIStitution; and the solem~ prolllise m Art. 17, abolishing untouchab1hty has been gradually, but mes1stibly enforced by tho
proceiss of law assisted by enlightened public conscience. All that s. 3 of
the 1956 Act purports to do is to give the Harijans the same right to enter
tho temple for darshan of the deity as can be claimed by the other Hindus.
The act of actual worship of the diety is allowed to be performed onl)'. by the
authorised poojaris of the temple and by no other devotee entering the
temple for darslum.
Therefore, it was nont int.entled to invade the tradition and conventional manner of performing the actual worship of the
idol.
(iii) The High O>urt was right in coming to the conclusion that the
religion of the Swaminarayan sect is not distinct and separate from Hindu
religion. and corISequently, tho temples belonging to the sect did fall
within the ambit of s. 2 of the Act.
The Indian mind has consistently through the ages, been exercised
over the problem of the nature of godhead, the problem that faces the
spirit at the end of life, and the interrelation between the individual
and the universal soul. According to Hindu religion the ultimato eoal of
humanity is release and freedom from the unceasing cycle of births and
rebirths and a state of absorption and assimilation of the individual soul
with the infinite. On the meal!S to attain this end there is a great divergence of views; some emphasise the importance of Gyana, while others
extol the virtue of Bhakti or devotion, and yet others insist upon the
paramount importance of the performance of duties with a heart full ol
devotion and in mind irISpired by knowledge.
Naturally it was realised
by Hindu religion from the very beginning of its career that truth was
many-sided and different views contained different aspects of truth which
no one could fully express.
This know1edge inevitably bred a spirit of
tolerance and willingnc<;;s to understand and appreciate the opponent's point
of view.
Because of this broad sweep of Hindu philosophic concepts
under Hindu philosophy,
there is no scope for excommunicating any
notion or principle as heretical and rejecting it as such.
The development of Hindu religion and philosophy shows that from time to time saints
and religious reformers attempted to remove from Hindu thought and
practices, elements of corruption and superstition, and revolted against
the dominance of rituals and the power of the priestly class with which it
came to be associated; and that led to the formation of different sects. In
the teaching of these saintns and religious reformers is noticeable a certain
amount of divergence in their respective views; but underneath
that
divergence lie certain broad concepts which can bo treated as basic, and
there is a kind of subtle indescribable unity which keeps them within
the sweep of broad and progressive Hindu religion.
The first among
these basic concepts is the acceptance of the Vedas as the highest authority in refigious and philosophic matters. This concept necessarily implies
that all the systems claim to have drawn their principles from a common
reservoir of thought enshrined in the Vedas. Unlike other religions in the
world, the Hindu religion does not claim any one prophet; it does not
wor.;hip any one God; it does not subscribe to any one dogma; it do':S
244
SUPREME COURT
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(1906]3SCR
not believe in any one philosophic concept; it doe~ not follow any one
act ol. rclrgious rites or performances; in fact, it does not ~atisfy the
traditional features of a religion or creed. It is a way of life
and
nothing more.
The Conslitution-makers were fully conscious of the
broad and comprehensive character of Hindu religion;
an<l \\'hilc guaran1ecing the fundan1cntal right to freedom of religion n1adc it clear
that reference to Hindus sbaJl be construed as including a reference to
persons professing the Sikh, Jaina or Buddhist religion.
Philosophically, Swaminarayan was a follower of Ramanuja and the
essence of his teachings.is acceptance of the Vedas \Vith reverence, recognition of the fact that the path of Blwkti or devotion leads to Mohlza.
insistence or demtion to Lord Krishna and a determination to remove
corrupt practice3 and restore Hindu Religion to its original glory and
purity.
This shows unambiguously and unequivocally that Swaminarayan
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was a Hindu saint. Further, the facts that initiation is necessary to become
a Satsangi, that persons of other religions could join the sect by initiaC
tion without any process of proselylisiog on such occasions, and that
Swaminarayan himself is treated as a God, are not inconsistent with
the basic Hindu religious and philosophic theory.
CIVIL APPELLATE JURISDICTION : Civil Appeal No. s 17 of
1964.
Appeal from the judgment and decree, dated October 3, 1958
of the Bombay High Court in First Appeal No. 107 of 52.
Vasant I. Desai, M. L. Bha/ja and A.G. Ratnaparkhi, for the
appellants.
C. K. Daphtary, Attorney-Genera/, Atiqur Rehman and K. L.
Hathi, for respondent No. I.
C. K. Daphtary, Attorney-Genera/, N. S. Bindra and B. R. G. K.
Achar, for respondent No. 2.
S. V. Gupte, Solicitor-General, and B. R. G. K. Achar, for
the intervener.
The Judgment of the Court was delivered by
GajendrnJ!lldkar, C.J. The principal question which
arises
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in this appeal is whether the Bombay High Court was right in
holding that the Swaminarayan Sampradaya (sect) to which the
appellants belong, is not a religion distinct and separate from the
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Hindu religion, and that the temples belonging to the said sect do
come within the ambit of the provisions of the Bombay Hindu
Places of Public Worship
(Entry-Authorisation)
Act,
1956
(No. 31 ·of 1956) (hereinafter called 'the Act'). The suit from
which the present appeal arises was instituted by the appellants
on the 12th January, 1948, in the Court of the Joint Civil Judge,
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Senior Division, Ahmedabad.
Before the suit was instituted, the
Bombay Harijan Temple Entry Act, 1947 (No. 35 of 1947)
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YAGNAPURUSHADJI V. MULDAS (Gajendragadkar. C.J.)
245
(Hereinafter called 'the former Act') had come into force on the
23rd November, 1947.
The appellants are the followers of the
Swaminarayan sect, and are known as Satsangis.
They have filed
the present suit on behalf of themselves and on behalf of the
Satsangis of the Northern Diocese of the sect at Ahmedabad.
They apprehended that respondent No. 1, Muldas Bhudardas
B Vaishya, who is the President of the Maha Gujarat Dalit Sangh
at Ahmedabad, intended to assert the rights of the non-Satsangi
Harijans to enter the temples of the Swaminarayan sect situated
in the Northern Diocese at Ahmedabad in exercise of the legal
rights conferred on them by s. 3 of the former Act of 1947.
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Section 3 of the said Act had provided, inter alia,
that every
temple to which the Act applied shall be open to Harijans for
worship in the same manner and to the same extent as other
Hindus in general.
To this suit the appellants had impleaded
five other respondents, amongst whom was included the Province
of Bombay as respondent No. 4, under the order of the Court
at a later stage of the proceedings on the 18th July, 1949.
In
their plaint, the appellants had alleged that the Swaminarayan
temple of Sree Nar Narayan Dev of Ahmedabad and all the
temples subordinate thereto are not temples within the meaning of
the former Act.
Their case was that the Swaminarayan sect
represents a distinct and separate religious sect unconnected with
the Hindus and Hindu religion, and as such, their temples were •
outside the purview of the said Act.
On the basis of this main
allegation, the appellants claimed a declaration to the effect that
the relevant provisions of the said Act did not apply to their
temples.
In the alternative, it 'ltas urged that the said Act was
ultra vires.
As a consequence of these two declarations,
the
appellants asked for an injunction restraining respondent No. 1
and other non-Satsangi Harijans from entering the Swaminarayan
temple of the Northern Diocese of the Swaminarayan sect; and
they prayed that an appropriate injunction should be issued
directing respondents 2 and 3 who are the Mahants of the said
temples to take steps to prevent respondent No. 1 and the other
non-Satsangi Harijans from entering and worshipping in the said
temples.
Pending these proceedings between the parties, the former
Act was amended by Bombay Act No. 77 of 1948; and later, the
Constitution of India came into force on the 26th January, 1950.
H As a result of these events, the appellants applied for an amendment
of the plaint on the 30th November, 1950, and the said application was granted by the learned trial Judge.
In consequence of
24 f;
St "PRD1E COURT
REPORTS
[1966] 3 SC R
this amendment, the appellants took the plea that their temples
were not temples within the meaning of the former
Act as
amended by Act No. 77 of 1948; and they urged that the former
Act was ultra vires the powers of the State of Bombav inasmuch
as it was inconsistent with the Constitution and the f~ndamental
rights guaranteed therein.
It was contended by them that the
Swaminarayan sect was an institution distinct and different from
Hindu religion, and, therefore, the former Act as amended could
not apply to or affect the temples of the said
sect.
On this
additional ground, the appellants supported the original claim for
declarations and injunctions made by them in their plaint a> it
was originally filed.
This suit was resisted by respondent No. 1.
It was urged
on his behalf that the suit was not tenable at law, on the ground
that the Court had no jurisdiction to entertain the suit under s. 5
of the fonncr Act.
Respondent No. I disputed the
appellants
right to represent the Satsangis of the Swaminarayan sect, and
he averred that many Satsangis were in favour of the Harijans'
entry into the Swaminarayan temples, even though such Harijans
were not the followers of the Swaminarayan sect.
According to
him, the suit temples were temptcs within the meaning of the
former Act as amended and that non-Satsangi Harijans had a
legal right of entry and worship in the said temples. The appel-
~ants' case that the fom1er Act was ultra vir~s. was also challenged
by respondent No. !.
Respondents 2 and 3, the Mahants of the
temples, filed purshis that they did not object to the appellants'
claim, while respondent No. 4. the State of Bombay, and respondents 5 and 6 filed no written stafements.
On these pleadings, the learned trial Judge framed several
issues, and parties led voluminous documentary and oral evidence
in support of their respective contentions.
After considering this
evidence, the learned trial Judge held that the suit was maintainable and was not barred under s. 5 of the former Act.
He found
that the fonner Act was intra vires the legislative powers of the
Bombay State and did not infringe any fundamental rights of the
appellants.
According to him, the Swarninarayan sect was not
distinct and different from Hindu religion and as such, the suit
temples were temples which were used as places of religious worship
by the congregation of the Satsang which formed a section of the
Hindu community.
111e learned trial Judge, however, came to
the conclusion that it had not been established that the suit temples
were used by non-Satsangi Hindus as places of religious worship
by custom, usage or otherwise, and consequently, they did not
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YAGNAPURUSHADJI v. MULDAS (Gajendragadkar, C.I.)
247
come within the meaning of the word "temple" as defined by the
former Act.
Thus, the conclusion of the learned trial Judge on
this part of the appellants' case decided the fate of the suit in their
favour, though findings were recorded by the trial Judge in favour
of respondent No. 1 on the other issues.
In the result, the trial
court passed a decree in favour of the appellants giving them
declarations and injunctions as claimed by them.
This judgment
was pronounced on the 24th September, 1951.
The proceedings in the trial court were protracted and lasted
for nearly three years, because interim proceedings which Jed to
certain interlocutory orders, were contested between the parties
and were taken to the High Court on two occasions before the
suit was finally determined.
The decision of the trial court on the merits was challenged
by Respondent No. 4 and respondent No. 1 who joined in filing
the appeal.
The appeal thus presented by the two respondents
was heard by the High Court on the 8th March, 1957. At this
D hearing, two preliminary objections were raised by the appellants
against the. competence and maintainability of the appeal itself.
It was urged that the appeal preferred by respondent No. 4 was
not competent inasmuch as respondent No. 4 had no locus standi
to prefer the appeal in view of the fact that the former Act in
the validity of which respondent No. 4 was vitally interested had
E been held to be valid. This objection was upheld and the appeal
preferred by respondent No. 4 was dismissed.
In regard to the appeal preferred by respondent No. l, the
appellants contended that the Vakalatnama filed on his behalf
was invalid and as such, the appeal purported to have been preF ferred on his behalf was incompetent. It appears that respondent
No. 1 had authorised the Government Pleader to file an appeal
on his behalf, whereas the appeal had actually been filed by Mr.
Daundkar who was then the Assistant Government Pleader. The
High Court rejected this objection and held that the technical
irregularity on which the objection was founded could be cured
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by allowing the Government Pleader to sign the memorandum of
appeal presented on behalf of respondent No. 1 and endorse
acceptance of his Vakalatnama.
Having thus held that the appeal preferred by respondent No. 1
was competent, the High Court proceeded to consider the merits
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of the said appeal.
It was urged before the High Court by respondent No. 1 that the declarations and injunctions granted to the
appellants could not be allowed to stand in view of the UntouchIOSup.Cl/63-3
248
SUPRBM! COURT
REPORTS
[1966) 3 S.C.R.
ability (Offences) Act, 1955 (Central Act 22 of 1955) which
had come into force on the 8th May, 1955
and which
had
repealed the former Act.
This contention did not find favour
with the High Court, because it took the view that the decl:irations and injunctions granted by the trial court were not based en
the provisions of the former Act, but were based on the view that
the rights of the appellants were not affected by the said Act.
The High Court observed that in dealing with
the objections
raised by respondent No. 1, it was
unnecessary
to
consider
whether on the merits, the view taken by the trial court was right
or not.
The only point which was relevant for disposing of the
said objectiol! was to consider whether any relief had been granted
to the appellants under the provisions of the former Act or not;
and since the reliefs granted to the appellants were not under any
of the said provisions, but were in fact based on the view that
the provisions of the said Act did not apply to the temples in suit,
it could not be said that the said reliefs could not survive the
passing of the Untouchability (Offences) Act, 1955. The Higb
Ccurt, however, noticed that after the trial court pronounced its
judgments, the Bombay Legislature had passed the Act (No. 31
of 1956) and respondent No. 1 naturally relied upon the material
provisions of this Act contained in s. 3.
Thus, though the substance of the controversy between the parties remained the same,
the field of the dispute was radically altered.
Th former Act had
given place to the Act and it now became necessary to consider
whether the Act was intra vires, and if yes, whether it applied to
the temples in suit.
Havi1,1g regard to this altered position, the
High Court took the view that it was necessary to issue a notice
to the Advocate-General under 0.27 A of the Code of Civil Procedure.
Accordingly, a notice was issued
to
the
AdvocateGeneral and the appeal was placed before the High Court on the
25th March, 1957 again.
At this hearing, the High Court sent
the case back to the trial court for recording a finding on the issue
"whether the Swaminarayan temple at
Ahmedabad
and the
temples subordinate thereto are Hindu religious institutions within
the meaning of Art. 25(2) (b) of the Constitution".
Both parties
were allowed liberty to lead additional evidence on this issue.
After remand, the appellants did not lead any oral evidence,
but respondent No. 1 examined two witnesses Venibhai and
Kcshavlal.
Keshavlal failed to appear for
his
final
cross·
examination despite adjournments even thougb the trial court had
appointed a Commission to record his evidence. Nothing, however, turned upon this oral evidence. In the remand proceedings,
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YAGNAPURUSHADJI V. MULDAS (Ga;endragadkar, C.l.)
249
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it was not disputed before the trial court that the temples in suit
were public religious institutions.
The only question which was
argued before the court was whether they could be regarded as
Hindu temples or not.
The appellants contended that the suit
temples were meant exclusively for the followers of the Swaminarayan sect; and these followers, it was urged, did not profess
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the Hindu religion. The learned trial Judge, however, adhered to
the view already expressed by hls predecessor before remand that
the congregation of Satsang constituted a section of the Hindu
community; and so he found that it was not open to the appellants
to contend before rum that the followers of the Swaminarayan sect
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were not a section of the Hindu community.
In regard to the
nature of the temples, the learned trial Judge considered
the
evidence adduced on the record by both the parties and came to
the conclusion that the Swaminarayan temples at Ahmedabad and
the temples subordinate thereto were Hindu religious institutions
within the meaning of Art. 25(2) (b) of the Constitution. This
D finding was recorded by the trial Judge on the 24th March 1958.
After this finding was Sl)bmitted by th« learned trial Judge to
the High Court, the Appeal was taken up for final disposal.
On
this occasion, it was urged before the High Court on behalf of
the appellants that the members belonging to the Swaminarayan
E sect did not profess the Hindu religion and, therefore, their temples
could not be said to be Hindu temples.
It was, however, conceded on their behalf that in case the High Court came to the
conclusion that the Swaminarayan sect was not a different religion
from Hinduism, the conclusion could not be resisted that the
temples in suit would be Hindu religious institutions and also
F
places of public worship within the me-aning of s. 2 of the Act.
That is how the main question which was elaborately argued
before the High Court was whether the followers of the Swaminarayan sect could be said to profess Hindu religion and be
regarded as Hindus or not.
It was urged by the appellants that
the Satsangis who worship at the Swaminarayan temple may be
(; Hindus for cultural and social purposes, but they are not persons
professing Hindu religion, and as such they do not form a section,
class or sect or denomination of Hindu religion. Broadly stated,
the case for the appellants was placed before the High Court on
four grounds.
It was argued that Swaminarayan, the founder of
the sect, considered himself as the Supreme God, and as such, the
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sect that believes in the divinity of Swaminarayan cannot be
assimilated to the followers of Hindu religion.
It was also urged
that the temples in snit had been established for the worship of
250
SUPREME COURT
REPORTS
[1966] 3 S.C.R.
Swaminarayan himself and not for the worship of the traditional
A
Hindu idols, and that again showed that the Satsangi sect was
d~tinct and separate from Hindu religion.
It was funher contonded that the sect propagated the ideal that worship of any God
other than Swaminarayan would be a betrayal of his faith, and
lastly, that the Acharyas who had b~en appointed
by Swaminarayan adopted a procedure of "Initiation"
( diksha)
which
B
showed that on initiation, the devotee became a Satsangi and
a~umed a distinct and separate character as a follower of the
sect.
The High Coun has carefully examined these contentions in
the light of the teachings of Swaminarayan, and has come to the
C
conclusion that it was impossible to hold that the followers of the
Swaminarayan sect did not profess Hindu religion and did not
form a pan of the Hindu community.
In coming to this conclusion, the High Court has also examined the oral evidence on
which the parties relied.
While considering this aspect of the
matter, the High Court took into account the fact that in their
D
plaint itself, the appellants had described themselves as Hindus
and that on the occasion of previous censuses prior to 1951 when
religion and community used to be indicated in distinct columns
in the treatment of census data, the followers of the sect raised
no objection to their being described as belonging to a sect proE
fessing Hindu religion.
Having thus rejected the main contention raised by
the
appellants in challenging their status as Hindus, the High Court
examined the alternative argument which was urged on their
behalf in regard to the constitutional validity of the Act.
The
argument was that the material provision of the Act was inconsistent with the fundamental rights guaranteed by Articles 25 and
26 of the Constitution and as such was invalid.
The High Court
did not feel impressed by this argument and felt no difficulty in
rejecting it.
In the result, the finding recorded by the trial Judge
F
in favour of the appellants in regard to their status and character
G
as followers of the Swaminarayan sect was upheld; inevitably the
decree passed by the trial Judge was vacated and the suit instituted
by the appellants was ordered to be dismi~sed. It is against this
decree that the present appeal has been brought to this Court on
a certificate issued by the High Court.
Before dealing with the principal point which has been posed
11
at the commencement of this Judgment, it is necessary to dispose
of two minor contentions raised by Mr. V. J. Desai who appeared
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YAGNAPURUSHADJI v. MULDAS (Gajendragadkar, C.J.)
251
A for the appellants before us.
Mr.· Desai contends that the High
Court was in error in treating as competent the appeal preferred
by respondent No. 1.
His case is that since the said appeal had
not been duly and validly filed by an Advocate authorised by
respondent No. 1 in that behalf, the High Court should have dismissed the said appeal as being incompetent.
It will be recalled
B that the appeal memo as well as the Vakalatnama filed along with
it were signed by Mr. Daundkar who was then the Asst!. Government Pleader; and the argument is that since the Vakalatnama had
been signed by respondent No. 1 in favour of the Government
Pleader, its acceptance by the Assistant Government Pleader was
invalid and that rendered the presentation of the appeal by the
C Assistant Government Pleader on behalf of respondent No. 1 incompetent. 0.41, r. 1 of the Code of Civil Procedure requires,
inter alia, that every appeal shall be preferred in the form of a
memorandum signed by the appellant or his Pleader and presented to the Court or to such officer as it appoints in that behalf.
D
0. 3, r. 4 of the Code relates to the appointment of a Pleader.
Sub-r. (I) of the said Rule provides, inter alia that no Pleader
shall act for any person in any court unless he has been appointed
for the purpose by such person by a document in writing signed
by such person.
Sub-r. (2) adds that every such appointment
shall be filed in court and shall be deemed to be in force until
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determined with the leave of the Court in the manner indicated by
it.
Technically, it may be conceded that the memorandum of
appeal presented by Mr. Daundkar suffered from the infirmity
that respondent No. I had signed his Vakalatnama in favour of
the Government Pleader and Mr. Daundkar could not have
accepted it, though he was working in the Government Pleader's
office as an Assistant Government Pleader.
Even so, the said
memo was accepted by the office of the Registrar of the Appellate
Side of the High Court, because the Registry regarded the presentation of the appeal to be proper, the appeal was in due course
admitted and it finally came up for hearing before the High Court.
The failure of the Registry to invite the attention of the Assistant
Government .Pleader to the irregularity committed in the presentation of the said appeal cannot be said to be irrelevant in dealing
with the validity of the contention raised by the appellants. If
the Registry had returned the appeal to Mr. Daundkar as irregularly presented, the irregularity could have been immediately
corrected and the Government Pleader would have signed both the
memo of appeal and the Vakalatnama.
It is an elementary rule
of justice that no party should suffer for the mistake of the court
or its office.
Besides, one of the rules fq1med by the High Court
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SUPREME COURT
REPORTS
(1966] 3 S.C.R.
on its Appellate Side-Rule 95-seems to authorise an Advocate
A
practising on the Appellate Side of the High Court to appear even
without initially filing a Vakalatnama in that behalf. If an
appeal is presented by an Advocate without a Vakalatnama duly
signed by the appellant, he is required to produce the Vakalatnama
authorising him to present the appeal or to file a statement signed
B
by himself that such V akalatnama has been duly signed by the
appellant in time.
In this case, the Vakalatnama had evidently
been signed by respondent No. 1 in favour of the Government
Pleader in time; and so, the High Court was plainly right in
allowing the Government Pleader to sign the memo of appeal
and the Vakalatnama in order to remove the irregularity committed
in the presentation of the appeal.
We do not think that Mr. Desai
is justified in contending that the High Court was in error in overruling the objection raised by the appellants before it that the
appeal preferred by respondent No. 1 was incompetent. ..
c
The next contention which Mr. Desai has urged before us is
D
that s. 3 of the Act is ultra vires. Before dealing with this contention, it is relevant to refer to the series of Acts which have been
passed by the Bombay Legislature with a view to remove the
disabilities from which the Harijans suffered.
A brief resume of
the legislative history on this topic would be of interest not only
in dealing with the contention raised by Mr. Desai about the
E
invalidity of s. 3, but in appreciating the sustained and deliberate
efforts which the Legislature has been making to meet the challenge
of untouchability.
In 1958, the Bombay Harijans Temple Worship (Removal of
Disabilities) Act (No. 11 of 193 8) was passed.
This Act represented a somewhat cautious measure adopted by the Bombay
Legislature to deal with the problem of untouchability.
It made
an effort to feel the pulse of the Hindu community in general and
to watch its reactions to the efforts which the Legislature may
make, to break through the citadel of orthodoxy, and conquer
traditional prejudices against Harijans.
This Act did not purport to create any statutory right which Harijans could enforce
by claiming an entry into Hindu temples; it only purported to
make some enabling provisions which would encourage the progressive element~ in the Hindu community to help the Legislature
in combating the evil of untouchability.
The basic scheme of
this Act was contained in sections 3, 4 & 5.
The substance of
the provisions contained in these sections was that in regard to
temples, the trustees could by a majority make a declaration that
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YAGNAPURUSHADJI v. MULDAS ( Gaiendragadkar, C.J.)
2 5 3
their temples would be open to Harijans notwithstanding the terms
of instrument of trust, the terms of dedication or decree or order
of any competent court or any custom, usage or law for the time
· being in force to the contrary.
Section 3 dealt with making of
these declarations.
Section 4 required the publication of the said
declarations in the manner indicated by it, and section 5 authorised
B
persons interested in the temple in respect of which a declaration
had been published under s. 4 to apply to the court to set aside
the said declaration. If such an application is received, the jurisdiction has been conferred on the court to deal with the said
application.
Section 5 ( 5) provides that if the court is satisfied
c
that the applicant was a person interested in the temple and that
the impugned declaration was shown not to have been validly
made, it shall set aside the declaration; if the court is not so
satisfied, it shall dismiss the application.
Section 5(7) provides
that the decision of the Court under sub-s. ( 5) shall be final and
conclusive for $e purposes of this Act.
The court specially
D empowered to deal with these applications means the court of a
District Judge and includes the High Court in exercise of its
ordinary Original Civil jurisdiction. . The jurisdiction thus conferred on the court is exclusive with the result that s. 6 bars any
Civil Court to entertain any complaint in respect of the matters
E
decided by the court of exclusive jurisdiction purporting to act
under the provisions of this Act.
This Act can be regarded as
the first step taken by the Bombay Legislatilre to remove the disability of untouchability from which Harijans had been suffering.
The object of this Act obviously was to invite cooperation from
the majority of trustees in the respective Hindu temples in making
it possible for the Harijans to enter the said temples and offer
F
prayers in them.
Then followed Act No. 10 of 1947 which was passed by the
Bombay Legislature to provide for the removal of social disabilities
of Harijans.
This Act was passed with the object of removing
the several disabilities from which Harijans suffered in regard to
G
the enjoyment of social, secular amenities of life.
Section 3 of
this Act declared that notwithstanding anything contained in any
instrument or any law, custom or usage to the contrary,
no
Harijan shall merely on the ground that he is a Harijan, be
ineligible for office under any authority constituted under any
law or be prevented from enjoying the amenities described by
H clauses (b) (i) to (vii).
The other sections of this
Act made
suitable provisions to enforce the statutory right conferred on the
Harijans by s. 3.
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SUPREME COURT
REPORTS
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Next we come to the former Act-No. 35 of 1947. We have
already seen that when the present plaint was filed by the appellants, they challenged the right of the non-satsangi Harijans to
enter the temples under s. 3 of this Act, and alternatively, they
challenged its validity.
This Act was passed to entitle the
Harijans to enter and perfonn worship in the temples in the Province of Bombay.
Section 2(a) of this Act defines a "Harijan"
as meaning a member of a caste, race or tribe deemed to be a
Scheduled caste under the Government of India (Scheduled
Castes) Order, 1936.
Section 2(b) defines "Hindus" as includA
B
ing Jains; s. 2(c) defines "temples" as meaning a place by whatever designation known which is used as of right by, dedicated
to or for the benefit of the Hindus in general other than Harijans C
as a place of public religious worship;
and s.
2(b)
defines
"Worship" as including attendance at a temple for the purpose of
'darshan' of a deity or deities installed in or within the precincts
thereof.
Section 3 which contains the main operative provision
of this Act reads thus :-
"Notwithstanding anything contained in the terms of
any instruments of trust, the terms of dedication, the
tenns of a sanad or a decree or order of a competent
court or any custom, usage or law, for the time being in
force to the contrary evefl' temple shall be open to
Harijans for worship in the same manner and to the
same extent as to any member of the Hindu community or any section thereof and the Harijans shall be
entitled to bathe in, or use the waters of any sacred
tank, well, spring or water-course in the same manner
and to the same extent as any member of the Hindu
Community or any section thereof."
Section 4 provides for penalties. Section 5 excludes the jurisdiction of Civil Courts to deal with any suit or proceeding if it involves
a claim which if granted would in any way be inconsistent with
the provisions of this Act.
Section 6 authorises the police officer
not below the rank of Sub-Inspector to arrest without warrant any
person who is reasonably suspected of
having committed an
offence punishable under this Act.
Section 2 ( c) of the fonner Act was later amended by Act 77
of 1948.
The definition of the word "temple" which was thus
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inserted by the amending Act reads thus :-
II
"Temple" means a place by whatever name known
and to whomsoever belonging, which is used as a place
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YAGNAPURUSHADJI v. MULDAS (Gajendragadkar, C.J.)
255
of religious worship by custom, usage or otherwise by
the members of the Hindu community or any section
thereof and includes all land appurtenant thereto and
subsidiary shrines attached to any such place."
It will be recalled that after this amended definition was introduced in the former Act, the appellants asked for and obtained
permission to amend their plaint, and it is the claim made in the
amended plaint by relation to the new definition of the word
"temple" that parties led evidence before the trial court. This
act shows that the Bombay Legislature took the next step in 1947
and made a positive contribution to the satisfactory solution of
c the problem of untouchability. It conferred on the Harijans a
right to enter temples to which the Act applied and to offer
worship in them; and we have already seen that worship includes
attendance at the temple for the purpose of darshan of a deity or
deities in the precincts thereof.
On the 26th January, 1950 the Constitution of India came
D into force, and Art. 17 of the Constitution categorically provided
that untouchability is abolished and its practice in any form is
forbidden.
The enforcement of any disability arising out of
"Untouchability" shall be an offence punishable in accordance
with law.
In a sense, the fundamental right declared by Art. 17
E
afforded full justification for the policy underlying the provisions
of the former Act.
After the Constitution was thus adopted, the Central Legislature passed the Untouchability (Offences) Act, 1955 (No. 22
of 1955). This Act makes a comprehensive provision for giving
effect to the solemn declaration made by Art. 17 of the ConstituF tion.
It extends not only to places of· public worship, but to
hotels, places of public entertainment. and shops as defined by
s. 2(a), (b), (c) and (e). Section 2(d) of this Act defines a
"place of public worship" as meaning a place by whatever name
known which is used as a place of public religious worship or
which is dedicated generally to, or is used generally by, persons
professing any religion or belonging to any religious denomination
or any section thereof, for the performance of any religious
service, or for offering prayers therein; and includes all lands and
subsidiary shrines appurtenant or attached to any such
place.
The sweep of the definitions prescribed by section 2 indicates the
very broad field of socio-religious activities over which the mandaG
H tory provisions of this Act are intended to operate. It is not
necessary for our purpose to refer to the provisions of this Act
in detail.
It is enough to state that ss. 3 to 7 of this Act provide
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REPORTS
(1966] 3 S.C.R.
different punishments for contravention of
the constitutional
A
guarantee for the removal of untouchability in any shape or form.
Having thus prescribed a comprehensive statutory code for the
removal of untouchability, s. 17 of this Act repealed twentyone
State Acts which had been passed by the several State Legislatures
with the same object.
Amongst the Acts
thus
repealed are
Bombay Acts IO of 1947 and 35 of 1947.
B
That takes us to the Act No. 31 of 1956-with which we
are directly concerned in the present appeal.
After the Central
Act 22 of 1955 was passed and the relevant Bombay statutes of
1947 had been repealed by s.