Namdhari Gurudwara vs Nakbinoo and Others

I.D. Dua, C.J.

(1) The only question raised in this appeal relates to the virus of section 11 of the Himachal Pradesh Abolition of Big Landed Estates and Land Reforms Act, 1953 and the challenge is centered round Article 26 of the Constitution. Section 11 reads as under :-

"RIGHT of tenant to acquire interests of land owner, 11. (1) Not with standing any law, custom or contract to the contrary

"(8) Where compensation is paid in Installments the unpaid amount of compensation shall he a charge upon the land." Article 26 which guarantees freedom to manage religious affairs, provides that subject to public older, morality and health, every religious denomination or any section thereof shall have the right- (a) to establish and maintain institutions for religious and charitable purposes; (b) to manage its own affairs in matters of religion; (c) to own and acquire movable and immovable property, and (d) to administer such property in accordance with law. The contention raise is that the appellant Sri Namdhari Gurudwara. Mohal Ropa is a religious institution of Namdhari sect of Sikhs and the operation of section 11 in regard to the property belonging to this institution in the possession of the tenants, offends article 26. To take away this property from the appellant and to hand it over to the tenants, according to the learned counsel for the appellant, would affect the appellant''s right to establish and maintain the institution in question, to manage the affairs of Namdhar is in matters of religion and to own and acquire property and also to administer such property in accordance with law. The argument is bold and its sweep very wide. According to the submission all property owned by a religious institution must be completely protected for being interfered with in pursuance of all socio-economic legislation which has recently been enacted in this country. In support of the challenge, reliance has been placed by the learned counsel for the appellant mainly on a judgment of the Supreme Court in The Commissioner Hindu Religious Endowments v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt-. The passage specifically relied upon is contained in paragraph 22 of the report at P. 291, which reads as under :- It is to be noted that both in the American as well as in the Australian Constitution the right to freedom of religion has been declared in unrestricted terms without any limitation whatsoever. Limitations, Therefore, have been introduced by courts of law in these countries on grounds of morality, order and social protection. An adjustment of the competing demands of the interests of Government and constitutional liberties is always a delicate and difficult task and that is why we find difference of judicial opinion to such an extent in cases decided by the American courts where questions of religious freedom were involved Our Constitution makers however have embodied the limitations which have been evolved by judicial pronouncements in America or Australia in the Constitution itself and the language of Arts. 25 and 26 is sufficiently clear to enable us to determine without the aid of foreign authorities as to what matters come within the purview of religion and what do not. As we have already indicated, freedom of religion in our Constitution is not confined to religious beliefs only; it extends to religious practices as well subject to the restrictions which the Constitution itself has laid down. Under Art. 26(b), Therefore, a religious denomination or organization enjoys complete autonomy in the matter of deciding as to what rites and ceremonies are essential according to the tenets of the religion they hold and no outside authority has any jurisdiction to interfere with their decision in such matters. of course, the scale of expenses to be incurred in connection with these religious observances would be a matter of administration of property belonging to the religious denomination and can be controlled by secular authorities in accordance with any law laid down by a competent Legislature: for it could not be the injunction of any religion to destroy the institution and its endowments by incurring wasteful expenditure on rite- and ceremonies. It should be noticed, however, that under Art. 26(d). It is the fundamental right of a religious denomination or its representative to administer its properties in accordance with law; and the law, Therefore, must leave the right of administration to the religious denomination itself subject to such restrictions and regulations as it might chose to impose. A law which takes away the right of administration from the hands of a religious denomination altogether and vests it in any other authority would amount to a violation of the right guaranteed under cl. (d) of Art. 26." This passage, construed in the context of the problem which the Supreme Court was called upon to solve in the reported case, clearly shows that these observations are of little assistance to the counsel in striking down section 11 on the basis of Article 26 of the Constitution. Reference has next been made to a Bench decision of the Patna High Court in Acharaj Singh v State of Bihar. The following passage from this judgment has been pressed into service on behalf of the appellant in support of the submission :- "6 It was then urged that in respect of religious institutions the provisions of the order would violate Articles 25 and 26 which guaranteed freedom of religion and the right of religious institution to administer its property in accordance with law and to manage its own affairs in matters of religion (Clauses (b) and (d) of Article 26). In the well-known The Commissioner, Hindu Religious Endowments, Madras Vs. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt., , their Lordships interpreted the word religion, occurring in Articles 25 and, 26, to include not only the philosophical tenets of a religious sect but also the rituals to be followed in a religious institution according to well established usage or custom : A religion may not lay down a code of ethical rules for its followers to accept it might prescribe rituals and observances, ceremonies and modes of worship which arc regarded as integral parts of religion, and these forms and observances "might extend even to matters of food and dress. If the tenets of any religious sect of the Hindus prescribe that offerings of food should be given to the idol at particular I ours of the day that periodical ceremonies should be performed in a certain way at certain periods of the year or that there should be daily recital or sacred texts or oblations to the sacred fire, all these would be regarded as parts of religion within the meaning of Article 26(b) Hence, if it could be established that in a particular religious institution, whether Math or temple, a certain quantity of food should be offered as Bhog to the deity or feeding the Athithi and Abhyagats as a part of the well established ritual of the institution, this practice should be held to be part of the religion guaranteed under 0 Article 26(b) and if there is any provision in the order which materially impairs the continuance of that practices, that provision will be unconstitutional to that extent. Whether the levy at the rate of 60 kilograms per acre in .Bihar Plains and 40 kilograms per acre in Bihar Plateau will have the effect of impairing the continuance of the said religions practice in a particular religious institution can be tested, only in the light of the evidence of actual practice prevalent in the institution. reliance has next been placed on Azeiz Basha v. Union of India". In this decision, the property vesting in the Aligarh University was held not to be covered by Article 26(a) of the Constitution It was however, observed that the words "establish and maintain" in Article 26(a) must be read conjunctively and it is only those institutions which a religious denomination establishes which it can claim to maintain. the right to maintain institutions for religious and charitable purposes was held to include the right to administer them. But the right under clause (a) of Article 26 would only arise where the institution is established by a religious denomination.

(2) The respondents'' learned counsel has in reply placed reliance on a Full Bench decision of the Allahabad High Court in Raja Swyapal Singh v. The UP. Government at p. 690 of the report, it has been observed as follows:- "Arguments have been advanced by the learned counsel on behalf of certain waqfs and Hindu religious institutions, based on Arts. 25(1) and 26, Cl. (c) of the Constitution. Art. 25(1) provides that :- ''Subject to public order morality and health and to the other provisions of this part, all persons are equally entitled to freedom of conscience and the right freely to process, practice and propagate religion.'' It is said that a mutawalli''''s right to profess his religion is infringed if the waqf property is compulsorily acquired, but the acquisition of that property under Art. 31 (to which the right conferred by Art. 25 is expressly subject) has nothing to do with such rights and in no way interferes with this exercise.

(3) ARTIC. 26, Cl. (c) provides that Subject to public order, morality and health, every religious denomination or any section thereof shall have the right to own and acquire movable and immovable property and the argument is that as such institutions have been thereby guaranteed the right to own property, any acquisition of their property is a contravention of the provisions of the Art. Art. 19(1)(f) is distinguished from Art. 26, Cl. (c) on the ground that ownership of property is guaranteed under the latter but not under the former. This argument we think to be wholly fallacious. Art. 26, Cl. (c), confers on every religious denomination the right to own and acquire property but it does no more than this, and we can see no ground for holding that it prevents, or was intended to prevent property belonging to a religious body being acquired by authority of law. The second decision cited on behalf of the respondents is Chintamoni Prathilri v. The State of Orissa, in which acquisition of Devadayam inam u/s 3 of the Orissa Estates Abolition Act was held not to interfere with the fundamental rights guaranteed under Article 26, Lastly, my attention has been invited to the State of Bihar v. Kameshwar Singh, In that decision, the State Legislature''s power to acquire trust properties was upheld and it was added that a charity created by a private individual is not immune from the sovereign''s power to compulsorily acquire that property for public purposes. Mahajan, J. (as he then was) continued to observe that it was incorrect to say that the vesting of these properties in the State under the provisions of the U. P. Zamindari Abolition and Land Reforms Act in any way affected the charity adversely because the net income that the institutions were deriving from the properties had been made the basis of compensation awarded to them.

(4) Articles 25 to 28 have been grouped together under the heading "Right to Freedom of Religion" and they must, Therefore, be read and construed together in the background of their heading. Articles 25 and 26, dealing respectively with freedom of conscience and free profession, practice and propagation of religion, and freedom to manage religious affairs, deserve to be read together and their marginal notes seem to throw helpful light on their scope and meaning. All that they appear to me to guarantee to the people in this secular Republic is that there should be no religious compulsion or disability and every citizen in this country is free to profess, practice and propagate whatever religion he likes. Full freedom to manage religious affairs is secured by these Articles and there is a taboo against legal obstacles being placed by the State ill the way of any religious denomination acquiring or owing property or administering the same. Article 26, on which alone reliance has been placed by the appellant, does not in any way extend to these denominations any protection in the matter of acquiring and owing secular property greater than is extended to a citizen. My attention has not been drawn to any principle or precedent which would induce me to hold to the contrary and extend to the secular properties held by religious denominations more extensive protection than is permissible to the citizens as such. The scheme of the Constitution does not support such approach. After all, a denomination contemplated by Article 26 is only a collection of individuals classed together under the same, name having common faith and organization designed by distinctive name. The plain language of clause(c) of this Article, which seems to me to be of a purely enabling nature, does not purport to attach greater sanctity to the ownership right in the property possessed by a religious denomination than is attached to the rights possessed by a citizen in respect of similar property. The decisions cited, in my opinion, do not extent protection beyond regions practices, rites and ceremonies which are essential and an integral part of religion and they do not construe Article 26 to create any special secular privilege or right in the property in favor of religious denominations. Certain passages taken in isolation and detached from their context from the judgment in the case of Laknhmindra Thirtha Swamiar were relied upon by the learned counsel for the appellant, but I am unable to take those observations in isolation as convening the true ratio decidendi of the decision. It may be remembered that Judges do not always formulate in their judgments a rule with the precision expected of a draftsman and the formulation in indicial pronouncements are invariably embedded in the rest of the judgment and the passages elsewhere may often reveal the Judge''s intended meaning more clearly than even his cartful formulation taken in isolation Considered as a whole, Therefore, the judgment in the said case does not. seem to me to lay down any ratio decidendi which would advance the appellant''s submission. The contention that Article 26 extends an absolute immunity to the religious denominations as against all valid laws affecting the property rights of the citizens generally. has neither the support of the constitutional scheme nor of the plain statutory language of this Articles, which is apparently designed to place such denominations at par with citizens in the matter of acquiring and owing property and no more. Keeping in view the Preamble of the Constitution which provides the key to open the mined of the Constitution makers, we have to construe its provisions in the background of the objection enshrined in the Preamble. Principles of social and economic justice and equality of status and opportunity cannot be ignored while construing Article 26 and religious denominations cannot be held to have been intended to be clothed with greater constitutional guarantees and privileges than the individual citizens in respect of ownership of signaler property. To accede to the appellant''s sweeping submission, would in my opinion, give rise to far-reaching consequences and is sure to disturb the balance and equilibrium of the much desired secular and egalitarian set-up of our Constitution, and I am myself wholly enable to sustain it.

(5) For top reasons foregoing, I repel the appellant''s challenge to the constitutionality of action 11 of the Himachal Pradesh Abolition of Big landed Estates and Land reforms Act on this ground. This appeal accordingly fails and is dismissed but with no order as to costs. Before closing it may be pointed out that the constitutionality of section 11 has already been up held by the supreme court though its applicability to the property owned by religious denominations was not considered on that occasion

(6) Since the matter has been brought to this Court at a preliminary stage of proceedings before the Compensation Officer, who has only decided three out or a large number of issues, the case will have to go'' back to the said officer for further proceedings in accordance with law and in the light of the observations made above. Parties are directed to appear before the Compensation Officer, Mandi district, on 4th November, 1968.