Holding

The State Government has no discretion and is mandatorily required to constitute a committee of management under Section 53 of the Rajasthan Public Trusts Act, 1959.

Summary

The Supreme Court examined whether the Rajasthan Government must, as a matter of law, constitute a committee of management for a Jain temple that falls under Chapter X of the Rajasthan Public Trusts Act, 1959, or whether it retains discretionary power. The Court held that Section 53 uses the word "shall," indicating an imperative duty, and that the non‑obstante clause overrides any contrary provision, leaving no discretion to the State. It also rejected the Division Bench's view that the State could exercise discretion, setting aside those modifications and upholding the Single Judge’s order directing the State to form the committee. The Court further clarified that the exemption provision of Section 77 does not apply to the Devasthan Commissioner and that the State cannot change its earlier stance on the temple’s religious character due to res judicata. Consequently, the appeals seeking to overturn the Single Judge’s direction were allowed in part, while others were dismissed.

Issues considered

Whether the State Government is obligated to constitute a committee of management for a public trust under Chapter X of the Rajasthan Public Trusts Act, 1959, or whether it has discretionary authority.
Interpretation of the word "shall" versus "may" in Section 53 of the Act.
Whether Section 77 exemption applies to the Devasthan Commissioner as an agency of the State.
Whether the State can alter its earlier position on the temple’s religious denomination in light of res judicata.

Legislation cited

General Clauses Acts. 3(31)

Subjects

public trustcommittee of managementstatutory interpretationshall vs mayRajasthan Public Trusts Actexemption clauseres judicataJain temple

Judgment

.-

A DEEWAN SINGH AND ORS. ><
v.
RAJENDRA PD. ARDEVI AND ORS.

JANUARY 4,2007

B [S.B. SINHA AND MARKANDEY KATJU, JJ.]

Public Trusts:
... !':

Rajasthan Public Trusts Act, 1959-Chapter X-Sections 52 & 53-
c State Government obligated to constitute a Committee of management of
a public trust to which Chapter X of the Act applies-Constitution of
such a Committee of management does not fall within discretionary
jurisdiction of the State Government-Expression "shall" used in
sub-sectionS (1) and (2) of s.53 implies imperative character of law-
Rajasthan Public Trusts Rules, 1962-Rule 36-lnterpretation of Statutes-
D Harmonious construction.

The temple in question in the present appeals is situated in Rajasthan.
Management of the temple is in issue. In an earlier round of litigation, this
Court had held that the temple in question is a Jain temple and not a Hindu
E Temple and that the management of the temple is vested in the State of
Rajasthan.
t-
In the present round oflitigation, the Single Judge of the High Court
}-
held that it is imperative on the part of the State Government to issue an
appropriate notification constituting a Committee of management in respect
F of the temple in question. The Division Bench however held that some A

element of discretion exists i11 the State Government. It 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 /

Rajasthan Public Trusts Act, 1959 confers such discretion to it. )"-9

G
The question which arose for consideration in the present 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.
H 30
DEEWAN SINGH v. RAJENDRAPD. ARDEVI 31

Disposing of the appeals, the Court A
HELD: 1. The modifications made by the Division Bench of the High
Court are not sustainable. They are set aside accordingly. The judgment
of the Single Judge is upheld. (Para 55) (52-C-D)

2. A plain reading of the provisions of Section 53 of the Act would B
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. C
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. [Para 30) [45-A-B]

State of Rajasthan and Others v. Shri Sajjanlal Panjawat and Others, D
[1974) 1 sec 500, referred to.

3.1. The State Government 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 ordinary E
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. [Para 31) [45-C-D]

3.2. Even if the expression "shall" is read as "may" although there
F
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 power is conferred upon a public authority coupled with discretion,
the word "may" which denotes discretion, should be construed to mean a
command. (Para 32) (45-D-E]
G
Commissioner of Police, Bombay v. Gordhandas Bhanji, [1952) SCR
135; State of Uttar Pradesh v. Jogendra Singh, (1964] 2 SCR 197; State
(Delhi Admn.) v. l.K. Nangia and Another (1980) 1 SCC 258 and NC.
Dhoundial v. Union of India, [2004) 2 SCC 579, referred to.
H
.....
32 SUPREME COURT REPORTS [2007] I S.C.R.
...
;

A 4.1. Section 77 of the Act provides for exemption from the application
of the provisions of the Act. 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. (Para 39) (48-E-G]

B 4.2. A statutory authority, as is well-known, must act within the four l
'
corners of the statute. 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
c void in law. [Para 40] (48-G-H, 49-A]
c
4.3. 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
D separate in entity over which the State exercises control. Agency ofa 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. [Para 41) [49-B)

E 4.4. 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
F .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 '
G control or management of a municipal or local fund." It, thus, ordinarily r
would be a statutory authority. [Para 42] (49-C-E]

4.5. Although golden rule of interpretation, viz., literal rule should be
given effect to, if it is to be held that the Devasthan Commissioner appointed 'rr

H under Section 7 of the Act would be an agency of the State, the same would
• DEEWAN SINGH v. RAJENDRAPD. ARDEVI

lead to an absurdity or anomaly. It is a well-known principle of law that
33

A
,..
where literal interpretation shall give rise to an anomaly or absurdity, the
same should be avoided. [Para 43) (49-F)

4.6. 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
B
word by word. The relevant provisions of the statute must, thus, be read
harmoniously. It would, therefore, not be possible to give literal interpretation
to Section 77 of the Act. [Para 44) [49-G-H, 50-A)
..__ ,,
Ashok Lanka v. Rishi Dixit, (2005) 5 SCC 598; MP. Gopalakrishnan
Nair v. State of Kera/a, [2005) 11 SCC 45; Reserve Bank of India v. c
Peerless General Finance and Investment Co. Ltd and Others, (1987) 1
SCC 424) and Secretary, Department of Excise & Commercial Taxes and
Others v. Sun Bright Marketing (P) Ltd., Chhattisgarh and Another, (2004)
3 sec 185, relied on.
D
Taylor v. Taylor, (1875) 1 Ch D 426, referred to.

5.1. 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
E
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 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. [Para 45) (50-B-C) F

5.2. It is, therefore, incumbent for this Court 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 G
Section 52 of the Act, the State cannot now be permitted to contend that
Chapter X shall not apply. It could not approbate and reprobate at the same
II!' time. [Para 46) (50-D)
-I

6.1. There is another aspect of the matter which cannot also be lost
H
-~
34 SUPREME COURT REPORTS [2007] 1 S.C.R

A 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. [Para 47)
[50-E)

B 6.2. 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 principl~s of res j~dicata,
, thus, would come
into play. The State, therefore, cannot still cdntend that the temple in _,
question is a Hindu temple. [Para 52) [51-F-GJ
c
Karamshi Jethabhai Somayya v. State of Bombay (now Maharashtra)
AIR (1964) SC 1714 and Jai Narain Parasrampura (Dead) and Others v.
Pushpa Devi Saraf and Others, [2006) 7 SCC 756, referred to.

Cooke v. Rickman, [1911] 2 KB 1125 and Humphries v. Humphries
D [1910) 2 KB 531, referred to.

CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 4092-4095 of
2002.

E From the final Judgment and Order dated 18.9.1997 oHhe High Court
of Judicature for Rajasthan at Jodhpur in b.B. Civil Special Appeal Nos. 456,
502,513,663/1997.

Shyam Divan, Mukul Rohtagi, Ashok H. Desai, Ashok Kumar Jain, P.R
Porwal, Ravindra Bana, P.K. Manohar, Manoj Goel, D.K. Jain, Shuvodeep
F
Roy, Wajeeh Shafiq, Sushi! Jain, Manoj Goel, Sushil Kumar Jain, Mrs.
"'-
Pratibha Jain and Surya Kant for the appearing parties.

The Judgment and of the Court was delivered by

G S.B. SINHA, J. : 1. 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 appeals which arise out of judgments and orders dated
18.09.1997 and 06.02.2002 passed by the High Court of Rajasthan. .,..
'r
H 2. Indisputably, the matter came up for consideration on an earlier
DEEWAN SINGH v. RAJENDRAPD. ARDEVI [SINHA, J.] 35

occasion before this Court in State of Rajasthan and Others v. Shri A
Sajjanlal Panjawat and Others since reported in [(1974) I SCC 500].

3. 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 B
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. I 948. Various directions were issued by the Government of Rajasthan
in relation to the management of the said temple from time to time.
c
4. 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
D
thereto were brought into operation with effect from 1.07.1962.

5. 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 E
which was marked as writ petition No. 50 I of 1962 praying inter alia for the
following reliefs:

(i) The State ofRajasthan and its officers be restrained from enforcing
certain provisions of the Act and declare those provisions void, F

(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 petitioner~ to manage the temple according G
to declaration of Samwat 1934.

~ 6. Digambers filed an intervention application therein inter afia
contending that the said temple was a Digamber temple.
H
36 SUPREME COURT REPORTS [2007] 1 S.C.R.

A 7. ·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 ofMewar and as such its management
vested in the State.

B 8. 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
c sect.

(ii) After merger of State of Mewar, the mani'gement of temple was
carried on by the Devasthan Deptt. of State and Committee
constituted by the erstwhile Ruler of Mewar became defunct.

D (iii) The temple vested in the State under Section 52(1) (a) and (c) of
the Act.

(iv) The State should take early steps to transfer the management to
a Committee as envisaged under Section 53 of the Act.
E
9. 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.
F
(ii) The management of the temple is vested in the State ofRajasthan.

(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
G management in a Committee to be constituted by the State
Government.

(iv) Chairman and members in the Committee of Management should
be appofo.ted from the trustees or persons of the section of
H denomination to which trust belongs.
DEEWAN SINGH v. RAJENDRAPD. ARDEVI [SINHA, J.] 37

(v) High Court's direction to constitute a Committee from Management A
set aside.

10. 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 B
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 C
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 A~t.

(ii) To issue a suitable writ or direction to quash the order dated
29.9.1979 restraining the State from changing the denominational
D
character of the temple.

11. The State in its affidavit in opposition filed in the said proceedings
reiterated its position that the temple was a Hindu temple.
E
12. 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: F
"No. F.8 (12) General/Dev/79/8550 :- In pursuance to State
Governments order no 21/781/R/JU/I/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 G
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 H
"'(·.

38 SUPREME COURT REPORTS [2007] l S.C.R.

A 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
B 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.

c *** *** ***

Schedule - B·

List of self sufficient temples and institutions managed and
controlled by Devasthanam Department
D
c Name of Address Place District
temple
l 2 3 4 5
*** *** ***
E 30. Temple of Vill-Dhuleva Vill-Dhuleva Udaipur''
Shri
Rikhabdevji

13. It appears that thereafter Digambers also filed a writ petition on
F 19.04.1983 which was marked as S.B. Civil Writ Petition No. 2247of1983 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
G (2) of the Act and consequently constitute a Committee for
management of Digambers.

14. 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 High
H Court.
DEEWAN SINGH v. RAJENDRAPD. ARDEVI [SINHA, J.] 39

15. By a judgment and order dated 5.02.1997, a learned Single Judge A
of the High Court inter alia directed the State:

(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 .
B
•
(iii) after completion of inquiry within 3 months, to constitute
Committee for management under Section 53 of the Act.

16. The Division Bench of the High Court by reason of the impugned .C
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.
D
17. Review petitions filed thereagainst have been dismissed by judgment
and order dated 06.02.2002. \ ·_

18. There are four sets of appeals before us.

19. The first set of appeals, viz., Civil Appea!Nos. 4092-4095, has been E
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 of2002, 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 11. F
and order dated 18.09.1997.

20. The third set of appeals, viz., Civil Appeal Nos. 4081-4084 of2002,
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- G
4079 of 2002, is filed by the Digamber Jain sect against the judgment and
order dated 18.09.1997 .
..
21. 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
H
40 SUPREME COURT REPORTS [2007] l S.C.R.

A of the oroer 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 v. Veerchand Seroiya and 513/
97 State v. Shrieyas Prasad and others and under Section 52 of
B 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.
-
c 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:

D *** *** ***

Chapter KA

Temples controlled and managed by the Devasthan Department

E c Name of Address Place District
temple
I 2 3 4 5

*** *** ***
F 30. Shri · GramDhule GramDhule Udaipur"
Rikhabdevji

22. 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
G published in the official gazette, in our opihion, it is not nece~sary to dilate
on the question as to whether the judgment of the High Court to the
aforementioned effect was correct or not.

23. The Act was enacted to regulate and to make better provision for
H the administration of public religious and charitable trusts in the State of
}

DEEWAN SINGH v. RAJENDRAPD. ARDEVI [SINHA, J.] 41

Rajasthan. The management of the said trust is to be vested in the A
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 B
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. c
(2) The Commissioner shall be a corporation sole by the name of
"Devasthan Commissioner of the State ofRajasthan", shall as such
have perpetual succession and a common seal and may sue and be
sued in his corporate name." D
24. 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.-(!) The provisions contained in this E
Chapter shall apply to every public trust-

(a) which vests in the State Government, or

(b) which is maintained at the expense of the State Government,
F
or

(c) which is managed directly by the State Government, or
-
(d) which is under the superintendence of the Court of Wards, or
G
(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 H
42 SUPREME COURT REPORTS [2007] l S.C.R

A a list of the public trusts to which this Chapter applies and
may by like notification and in like manner add to or vary such
list.

53. Management of public trusts to which this Chapter applies-

B (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
c 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 (l) in respect of
a public trust, the State Government shall, subject to the provision
D 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:
E
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.
F
(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
G 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
H two as, the State Government may determine.
DEEWAN SINGH v. RAJENDRA PD. ARDEVI [SINHA, J.] 43

(5) The Chairman and members of a committee of management A
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
(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 C
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
D
willing to serve as such."

25. Section 77 provides for exemption from the application of the
provisions of the Act in the following terms:
E
"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 F
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."

26. Rule 36 of the said Rules reads as under: G

"36. Manner of ascertaining the wishes of persons interested -

(I) For the purpose of ascertaining the wishes under sub-section
(5) of Section 53, of the persons interested, the State Government H
44 SUPREME COURT REPORTS [2007] 1 S.C.R.

A 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
B the Commissioner."

The core question involved in these appeals is:

27. Whether the State Government is obligated to constitute a committee
C 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?

28. Chapter X comprises of 14 sections beginning from Sections 52 to
D 65. Section 52 contemplates fixation ofa 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
E 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,
F 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.

29. 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 notificati6n in terms of Section 52 of the Act,
G 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 Divisiol' Bench opined that some element of discretion exists in the State
H Government.
DEEWAN SINGH v. RAJENDRA PD. ARDEVI [SINHA, J.] 45

30. A plain reading of the provisions of Section 53 of the Act would A
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
B
would prevail over anything contained in any provision of the Act or in any
law, custom or usage in force.

31. The State Government, in our opinion, does not have any
discretionary jurisdiction to exercise in the matter of appointment of a C
committee of management. It is imperative in nature. The expression "shall"
used in Sub-sections (l) and (2) of Section 53 of the Act indicates that the
natural and ordinary 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. D

32. Even ifthe 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 E
command.

33. In Commissioner of Police, Bombay v. Gordhandas Bhanji, [I 952]
SCR 135, it is stated:

F
"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 G
specifically vested in him by Rule 250. He was therefore bound to
exercise it and bring to bear on 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." H
·~

46 SUPREME COURT REPORTS [2007] 1 S.C.R. -
...,__

A 34. 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
B 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
c "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
D
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 (I). It is because
E 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,
F 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
G legitimate to give such an opinion to them.... "

35. In State (Delhi Admn.) v. I.K. Nangia and Another, [1980] 1 SCC
,>·
258, !his Court opined:
....
.,.
H "We are clear that the Explanation to Section 17(2), although in
DEEWAN SINGH v. RAJENDRAPD. ARDEVI [SINHA, J.] 47

terms permissive, imposes a duty upon such a company to nominate A
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:
B
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 c
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'
D
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, 11th Edn. at p. 231, the principle is stated
thus:
E
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 F
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.
G
(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 H
48 SUPREME COURT REPORTS [2007] 1 S.C.R.

A .its breach entails in the consequences indicated above. It is not left
to one's choice, but the law makes it imperative. Admittedly, Mis.
Ahmed Oomer Bhoy had not at the material time, nominated any
person, in relation to their Delhi branch. The matter is, therefore,
squarely covered by Section 17 (I) (a) (ii)."

B 36. 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 ofIndia, [2004] 2 SCC 579]

37. Once it is held that Chapter X of the Act applies, the court must
C 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.

38. Mr. Mukul Rohtagi, learned senior counsel appearing on behalf of
the State of Rajasthan, however, would submit that in view of the fact that
D 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.

39. An exemption provision, as is well-known, must be strictly construed.
E 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. Devast:1an Commissioner
is a statutory authority. He is an officer of the State. He exercises various
F 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 r-
G contains a non-obstante clause. It is of wide import. 1

40. A statutory authority, as is well-known, must act within the four
comers of the statute. [See Taylor v. Taylor, [1875] l Ch D 426] Any action
by a statutory authority contrary to or inconsistent with the provisions of ¥
H the statute, thus, would be void. In the matter of construction of a statute,
DEEWANSINGHv. RAJENDRAPD.ARDEVI[SINHA,J.] 49

therefore, the court shall not take recourse to a principle which would render A
the acts of a statutory authority void in Jaw.

41. 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 B
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.

42. The expression agency in the context of the statutory scheme
c
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 D
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 E
control or management of a municipal or local fund." It, thus, ordinarily
would be a statutory authority.

43. 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 F
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 sec
598 and MP. Gopalakrishnan Nair v. State of Kera/a, [2005] 11 SCC 45].

44. It is also well-settled that the entire statute must be first read as G
a whole then section by section, clause by clause, phrase by phrase and
word by word. [See Reserve Bank ofIndia v. Peerless General Finance and
Investment Co. Ltd and Others, [1987] I 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 H
50 SUPREME COURT REPORTs [2007] l S.C.R.

A Others v. Sun Bright Marketing (P) Ltd, Chhattisgarh and Another, [2004]
3 sec 185]. It would, therefore, not be possible to give literal interpretation
to Section 77 of the Act. •

45. Different provisions contained in different Chapters of the Act
must, as far as possible, receive harmonious construction. With a view to
B 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
c of Chapter X would become otios.e in a large number of cases. Application
of such principle of interpretation is not permissible.

46. 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
D 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 apply. It could not approbate and reprobate at the same time.

4 7. There is another aspect of the matter which cannot also be lost
E sight of. The State not only in the earlier round of litigation but also before
the High Court had taken a categodcal 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.

48. In Karamshi Jethabhai Somayya v. State of Bombay (now
F Maharashtra), AIR (1964) SC 1714, this Court stated the law, thus:

" .......Apart from the fact thatthe appellantasked 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
G to place all the relevant matters before the Court, a higher
responsibility rests upon the Government not to withhold such
documents from the court... "

49. In Cooke v. Rickman, [1911] 2 KB 1125, it was held that the rule
H of estoppel could not be restricted to a matter in issue, stating:
}

DEEWAN SINGH v. RAJENDRA PD. ARDEVI [SINHA, J.] 51

" .... The rule laid down in Hawlettv. Tarte, (10 C.B. (N.S.) 813 was A
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].
B
50. 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 C
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."

51. It was further held :
D
"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, E
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."
F
52. 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 ofres 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. G
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.
H
52 SUPREME COURT REPORTS [2007) I S.C.R.

A 53. 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.

B 54. 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.

55. For the reasons aforementioned, we are of the opinion that the
c 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 of2002 are allowed and Civil Appeal Nos. 4081-4084 of2002 are
dismissed with costs. Counsel's fee is assessed at Rs. 50,000 for each set
D of appeals.

B.B.B. Appeals disposed of.