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Wednesday, July 15, 2015

Sri Sri Ma Kamakhya= The present group of matters concerns the Sri Sri Maa Kamakhya Devalaya, which is one of the most significant amongst the 51 Shaktipeethas. The temple and the site are referred to in the Sanskrit text “Kalikapurana” which is one of the eighteen upapurana. The Diety of Shri Shri Kamakhya is one of the most venerated Goddesses. The main Kamakhya temple and the subsidiary temples in and around the three Hills of Nilachal are collectively known under the general name of “Kamakhya”. It may be mentioned that the subsidiary temples are also known in Assames as “Nanan Devalayas”. The families of the priests of the main temple call themselves “Bordeuris”. The families of the priests of the subsidiary temples are known as “Deuris”. The head priest is called the “Doloi”. “Shebait” means and includes all the community of persons who are directly connected to the performance of any kind of duty associated with the temple complex and thus, includes the Bordeuris, Deuris and other Brahamin and non Brahmin persons directly connected to the performance of any kind of duty associated with the temple complex. =Since the Debutter Board is occupying some part of the premises in the temple of Sri Sri Maa Kamakhya temple on account of interim orders of this court, all those interim orders are now vacated. The District administration is directed to ensure that those premises are vacated by the members or representatives of the Debutter Board at the earliest and in any case within four weeks. The premises and other properties of Sri Sri Maa Kamakhya Temple shall, if required, be placed back within the same time in possession of the Bordeories Samaj through the last elected Dolois against receipts which shall be retained in the office of Deputy Commissioner, Guwahati. The parties representing the Debutter board are also directed to hand over the vacant and peaceful possession of the concerned premises and other properties of the temple, if any, within four weeks. There shall be no order as to costs.

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                    CIVIL APPELLATE/ORIGINAL JURISDICTION

                     CIVIL APPEAL NOS.3276-3278 OF 2013

Riju Prasad Sarma etc. etc.                   …..Appellants

      Versus

State of Assam & Ors.                             …..Respondents


                                   W I T H

                      W.P.(C)Nos.72; 91 and 140 of 2012
                                     AND
            S.L.P.(C)Nos.18070-18072 of 2015 [CC 8089-8091/2012]

                               J U D G M E N T



SHIVA KIRTI SINGH, J.

The Civil Appeals arise out of three writ petitions, two of  the  year  2000
and one of the year 2002 which were heard together  and  disposed  of  by  a
learned Single Judge of Guwahati High Court by a common judgment  and  order
dated 06.08.2004.  That judgment was challenged before  the  Division  Bench
through two writ appeals bearing W.A.Nos.311 and 312 of  2004  preferred  by
the appellants who confined the scope of the appeals only to the  width  and
scope of Section 25A of the Assam State Acquisition of  Lands  Belonging  to
Religious or  Charitable  Institutions  of  Public  Nature  Act,  1959  (for
brevity referred to as ‘the Act’).  Admittedly neither the State  Government
nor the private respondents preferred any cross appeal.  However, there  was
a fresh writ petition filed directly before the Division Bench bearing  Writ
Petition No.923/2005 preferred  in  the  name  of  The  Deity,  Sri  Sri  Ma
Kamakhya claimed to be represented by appellant  –  Riju  Prasad  Sarma  who
further described himself as  the  Administrator,  Kamakhya  Debutter.   The
said writ petition  sought  to  challenge  the  constitutional  validity  of
Section 25A of the Act.  The writ appeals and the Writ  Petition  No.923  of
2005 were finally disposed  of  by  a  common  judgment  and  order  of  the
Division Bench of Guwahati  High  Court  dated  25.10.2011  which  is  under
challenge in the principal matter  –  Civil  Appeal  Nos.3276-3278  of  2013
filed by Sri Riju Prasad Sarma & Ors. claiming  to  represent  The  Kamakhya
Debutter Board.
Along with the Civil Appeals three writ petitions bearing No.72, 91 and  140
of 2012 have also been heard together  as  connected  matters  because  they
either throw a challenge to the validity of the Section 25A of  the  Act  or
the Rules framed thereunder or to the actual  election  of  Dolois  held  on
16.11.2011 on account of  this  Court  not  staying  the  direction  of  the
Division Bench to hold such election governed by custom.  The  same  dispute
covered by the Civil Appeals noticed above is  sought  to  be  raised  again
through S.L.P.(C) Nos.18070-18072 of 2015  [CC  8089-8091/2012]  which  have
been filed along with an application for permission to  prefer  the  special
leave petitions by those who were not parties earlier, Hiten Sarma and  some
others, against the same very common judgment of the  Division  Bench  dated
25.10.2011.  This judgment shall govern all the matters noticed above.   For
the sake of convenience the facts have been noted from the records of  civil
appeals except where indicated otherwise.
It is necessary to have a look at the nature of  the  three  writ  petitions
decided by the learned single judge.  But before that it will be  useful  to
notice the background  facts  which  led  to  those  writ  petitions.    The
appellants  have,  in  one  of  their  written  submissions,  furnished  the
introduction, it reads as follows:-
                       “INTRODUCTION

      The present group  of  matters  concerns  the  Sri  Sri  Maa  Kamakhya
Devalaya,  which  is  one  of  the   most   significant   amongst   the   51
Shaktipeethas.  The temple and the site are  referred  to  in  the  Sanskrit
text “Kalikapurana” which is one of the eighteen upapurana.   The  Diety  of
Shri Shri Kamakhya  is  one  of  the  most  venerated  Goddesses.  The  main
Kamakhya temple and the subsidiary temples in and around the three Hills  of
Nilachal are collectively known under the general name  of  “Kamakhya”.   It
may be mentioned that the subsidiary temples are also known  in  Assames  as
“Nanan Devalayas”.  The families of the priests  of  the  main  temple  call
themselves “Bordeuris”.  The families  of  the  priests  of  the  subsidiary
temples are known as “Deuris”.  The  head  priest  is  called  the  “Doloi”.
“Shebait” means and includes all the community of persons  who are  directly
connected to the performance of any kind of duty associated with the  temple
complex and thus, includes the Bordeuris, Deuris and other Brahamin and  non
Brahmin persons directly connected to the performance of any  kind  of  duty
associated with the temple complex.

       There  are  before  this  Hon’ble  Court  four  proceedings   raising
different aspects of the matter.

The principal matter is C.A. No.3276-3278/2013 filed  by  Shri  Riju  Prasad
Sarma & Ors. (representing the  Kamakhya  Debuttar  Board)  challenging  the
final judgment and order of 25.10.2011 passed by the Division Bench  of  the
Hon’ble Guhati High Court.   In the said matter, the  Learned  Single  Judge
had upheld the locus standi of the appellants on the  ground  that  it  does
not lie in  the  mouth  of  the  State  Respondents/Private  Respondents  to
challenge the authority  of  the  Kamakhya  Debuttar  Board  to  manage  the
affairs of the temple as they have not made any attempt to  de-recognize  or
question its authority in any court of law. (pg.216).   The  learned  Single
Judge had  also  upheld  the  vires  of  Section  25A  of  the  Assam  State
Acquisition of Lands belonging to Religious or  Charitable  Institutions  of
Public Nature (Amendment) Act, 1987 (pg.218-225).  The appellants  preferred
a limited Writ Appeal confined to the scope of Section 25A of the said  Act.
 There was no cross appeal preferred by the State Government or the  Private
Respondents.  The Division Bench of the Hon’ble  Guwahati  High  Court  vide
impugned judgment has held that  Section  25A  of  the  said  Act  has  very
limited scope confined to the language used in the said  provision  and  has
held as follows:
      “117…..Section 25A, as would be apparent on its  face,  only  engrafts
the enjoinment of  the  legislature  for  the  constitution  of  a  Managing
Committee to exercise control over the matter of utilization of annuity  and
verification of the proper maintenance of the institution…..”

      It may be mentioned that all the  parties  have  stated  on  Affidavit
before this Hon’ble Court that  the  said  interpretation  rendered  by  the
Division Bench of  the  Hon’ble  Guwahati  High  Court  is  correct.   Thus,
interpretation of Section 25A of the Act is not in issue any more.

      However, the Division Bench of the Hon’ble  Guwahati  High  Court  has
erroneously reversed the finding of the Learned Single Judge  on  the  issue
of the locus standi of the appellants  and  has  further  held  without  any
basis whatsoever that the Kamakhya  Debutter  Regulations/Kamakhya  Debutter
Board has no sanctity in law (pg.34-36).  This was not an issue before  them
as it was not even the subject matter of the writ appeal.   In  fact,  there
was no cross appeal against the finding of  the  Ld.  Single  Judge  on  the
issue of locus standi in favour of the appellants.   Moreover, the  Division
Bench of the Hon’ble Guwahati High Court has  gone  into  and  examined  the
issue of election of Doloi (Head Priest) which was not  the  subject  matter
of the writ  proceedings  and  thereafter,  rendered  an  erroneous  finding
solely  on  the  basis  of  the  purported  customary  practices  that   the
electorate for the said election to the post of  Doloi  should  be  confined
only to the male members of the four Bordeurie families (pag.89-90).

      In terms of the order dated  13.5.2002  passed  by  the  Hon’ble  High
Court and the orders dated 11.11.2011 and 21.11.2011 passed by this  Hon’ble
Court, the  administration  of  the  temple  has  been  carried  on  by  the
appellants, the Kamakhya Debuttar Board.  Further, the two Dolois  has  been
given exclusive monopoly in religious affairs by  this  Hon’ble  Court  vide
its order dated 21.11.2011.  Thus as stated above, Section 25A of  the  said
Act is confined to “control over the matter of utilization  of  annuity  and
verification   of   proper   maintenance   of   the   institution.”      The
interpretation of Section 25 of the Act is not in  issue  here.   The  State
Government has paid only Rs.80,500/- and further deposited Rs.50,000/-  with
the Hon’ble High Court till date for acquisition of the  land  belonging  to
the  temple.   The  issue  regarding  the   administration   of   non-ritual
activities other than those covered by Section  25A  of  the  said  Act  was
never and is not the subject matter of these proceedings.

      It may be mentioned that when the matter was heard at some  length  on
an earlier occasion, this  Hon’ble  Court  had  observed  that  parties  may
consider initiating proceedings under Section 92 C.P.C.   Pursuant  thereto,
the appellants have filed a Title Suit being T.S. No.2 of  2013  before  the
Ld. District Judge, Kamrup (Metro)  under   Section  92(g)  C.P.C.  with  an
application  seeking  leave  of  the  Court  as  required  under  the   said
provision.  The District  Judge,  Kamrup  has  issued  notice  on  the  said
application on 7.1.2013 and the matter is now kept on 8th August, 2014.

2.  Writ Petition (C) No.72 of 2012 filed by Shri Shailen Sarma  challenging
the validity of Assam State Acquisition of Lands belonging to  Religious  or
Charitable Institutions of Public Nature (Election of Managing Committee  of
Sri Sri Maa Kamakhya Temple) Rules framed under  Section  25A  of  the  said
Act.  Though the electoral college under Section 25A  of  the  Act  for  the
post of ex-officio Secretary to the managing  committee  to  be  constituted
under the said provision of the Act  includes  “deuris/Bordeuris,  the  said
Rules have illegally excluded the Deuris (both  male  and  female)  and  the
female bordeuris of their voting rights as well as  the  right  to  contest.
It may be mentioned that this Hon’ble Court in its  order  dated  21.11.2011
had stated that the State Government shall take steps  to  frame  rules  and
any objection to the rules should be  challenged only before this Court.

3.    Writ Petition (C) No. 140 of 2012 filed by  Shri  Shailen  Sharma  and
others challenging the actual election of Dolois held on 16.11.2011  on  the
ground that confining the electoral college and right to vote  to  only  the
male Bordeuris to the exclusion of Deuris  (both male and  female)  and  the
female Bordeuris is illegal, arbitrary and unconstitutional in law.

4.  Writ Petition No. 91 of 2012 filed  by  Nanan  Bordeuris  regarding  the
validity of Section 25A of the said Act and the rights of the shebaits.”

From the above introduction furnished by the appellants, it is evident  that
according to the appellants the Division Bench erred in deciding  the  issue
relating to administration  of  non-religious  activities  of  Maa  Kamakhya
Temple (other than  those  which  relate  to  scope  and  interpretation  of
Section 25A of the Act).  To same effect was the first and  main  submission
advanced by learned senior counsel Sri Ashok H.  Desai,  appearing  for  the
appellants.  According to Mr. Desai, the issue relating to  customary  right
of Bordeuris represented by the two Dolois who are  elected  by  adult  male
Bordeuris belonging at present to four specified priest  families  vis-à-vis
the rights and the status of the Debutter Board was never and is  still  not
the subject matter of the present proceedings and hence the judgment of  the
Division Bench deciding the above said issue in  favour  of  the  Bordeuries
and the Dolois must be set aside.  Further stand of the appellants  is  that
even if the issue did arise before the Division Bench,  the  same  has  been
wrongly decided by ignoring break in the  old  custom  since  1970/1973  and
thereafter through creation of Debutter Board in 1998.   The  stand  of  the
appellants is that essential religious  rites  of  Maa  Kamakhya  Temple  is
still left in the hands of the Dolois as per custom and the  Debutter  Board
is  governing  and  entitled  to  govern  only  the  secular/non   religious
activities of  the  temple  and  its  properties  because  for  that  it  is
empowered by the Debutter Board Regulation of 1998.
On behalf of the appellants, as an alternative it  was  highlighted  in  the
oral as well as in the written submissions that no observations be  made  by
this Court which may have any impact in the pending proceeding initiated  by
the appellants under Section 92 of  the  Code  of  Civil  Procedure  pending
before the learned District Judge, Kamrup, Guwahati.
On the other hand, it  is  the  categorical  stand  of  private  respondents
except the State of Assam that there is no dispute between the parties  with
respect to amplitude of Section 25A of the Act.  All except State  of  Assam
are in agreement that it has to be given a narrow meaning in the context  of
the Act and the various provisions  contained  therein  which  restrict  the
functions of the Statutory Managing Committee conceptualized  thereunder  to
exercise control  only  over  the  matter  of  utilization  of  annuity  and
verification of the proper maintenance of the  institution.    According  to
respondents, the Debutter Board represented by the appellants has used  writ
petitions filed before the learned single  judge  for  the  clandestine  and
concealed object of grabbing control over the properties and affairs of  the
Maa Kamakhya temple ater its attempt to get recognition  from  the  District
Judge failed.   According to respondents only the two Dolois whose term  has
expired and who did not want holding of elections  to  elect  Dolois  for  a
further term of five years, went in collusion with  the  Deuries/priests  of
other subsidiary temples known as Nanan Devalayas to support  the  formation
of a body which describes itself as Debutter  Board  and  its  self  serving
constitution  as  Debutter  Board  Regulation  1998,   which  has  no  legal
sanctity.
Dr. Rajeev Dhavan, learned senior counsel for the private  respondents  took
great pains to take us through the pleadings and prayers in the  three  writ
petitions decided by the learned single judge to show that in writ  petition
Nos. 6184 and 5385 of 2000,  while  challenging  the  Deputy  Commissioner’s
Committee, the Debutter Board cleverly raised the issue  of  its  status  in
several paragraphs.  In addition, in writ petition No.2955 of 2002 Mr.  Riju
Prasad Sarma as petitioner went on to describe himself as the  administrator
of  Maa Kamakhya Debutter with a further claim that as an  administrator  he
is responsible and authorized to represent the grievances of  Brahamins  and
non-Brahamins Shebaits as well as devotees of  the  Maa  Kamakhya  Debutter.
In Paragraph 34 the appellant Riju Prasad Sarma made a specific prayer  that
the annuity which is payable under the Act  be  paid  to  the  Maa  Kamakhya
Debutter Board.
The contents of the writ appeal No. 311 of 2004 were  similarly  highlighted
to show that at various places the Debutter Board had claimed a  status  for
itself even in the writ appeals.   The writ petition No. 923 of  2005  filed
by appellant Riju Prasad Sarma was heard originally by  the  Division  Bench
along with writ appeals.   In this writ petition the petitioner  claimed  to
represent the Deity. In their counter affidavits the  State  Authorities  as
well as the private respondents strongly disputed  such  claim.    According
to learned senior counsel Mr. Dhavan, the issue was though loosely  referred
to and argued as an issue of locus but it was actually an issue relating  to
status and/or rights of the appellants and the Debutter Board;  whether  the
Board had any established right to claim a share in the management  of  even
secular affairs  of  Maa  Kamakhya  temple.   According  to  learned  senior
counsel, the Debutter Regulation of 1998 is a self  serving  document  which
does not have any sanctity of law and  did  not  create  any  right  in  the
Debutter Board to take over the religious  endowment  of  Maa  Kamakhya  and
represent the deity.
On behalf of the appellants, a  number  of  judgments  have  been  cited  in
course of reply to the aforesaid stand of  the  respondents  in  respect  of
locus/status. No doubt, the concept of locus was seriously  diluted  in  the
majority of cited cases which  were  noticeably  in  the  nature  of  Public
Interest Litigation.  But  the  writ  petitions  filed  before  the  learned
single judge or even  before  the  Division  Bench  claimed  rights  in  the
petitioners as  administrator  or  as  lawful  representative  of  religious
endowment or the deity and were not in the nature of PIL.   In any case,  in
view of strong and categorical denial made by the respondents to  the  right
of the Debutter Board to  represent  the  deity  of  Maa  Kamakhya  in  writ
petition No. 923 of 2005, the Division Bench  could  not  have  ignored  the
issue of rights and status. Hence, in our considered view it  was  necessary
for the Division Bench on being called upon  through  pleadings,  to  decide
the locus or status of the appellants representing the Debutter  Board.   In
its wholesome writ jurisdiction, the Division Bench could not have shut  its
eyes and ears to such a serious dispute arising in the context of  a  public
religious endowment relating to Maa Kamakhya temple in  the  Nilachal  hills
of Assam at Guwahati,  which  is  highly  revered  by  the  Hindus  residing
anywhere since several centuries.
In view of above, the foremost contention of appellants advanced by  learned
senior counsel Mr. Desai that the  Division  Bench  erred  in  deciding  the
locus or status of the Debutter Board represented by the  appellants  cannot
be accepted.   This  brings  us  to  the  next  contention,  which  is  more
intricate and challenging;  whether  the  findings  of  the  Division  Bench
upholding the control of Bordeuries  and their representatives,  the  Dolois
over the religious and secular affairs of Maa Kamakhya temple and  endowment
as per customs is correct or not.
Before adverting to the above issue, it will be useful to notice  some  past
disputes, their adjudication by courts as also the recent  events,  disputes
and consequent three writ petitions decided by the learned single Judge.
A title suit bearing no.45 of 1919 under Section 92 of the  Civil  Procedure
Code was filed against the then two  Dolois,  seeking  a  fresh  scheme  for
management of endowment known collectively as Kamakhya  Endowment  inclusive
of Maa Kamakhya Temple or Devalaya.  The suit was finally decided in  favour
of the Dolois by judgment dated 25.2.1931.  Both the parties  have  referred
to the said judgment in detail not only  to  demonstrate  the  custom  which
empowered the four Bordeori families to  elect  Dolois  which  is  the  main
issue decided by the judgment  but  also  to  highlight  the  claim  of  the
Bordeoris and the Dolois that they being the sole trustees of the  endowment
were alone competent to elect the Dolois to supervise  the  affairs  of  the
temple.  The judgment reveals that the bordeoris  who  earlier  belonged  to
five principal families of priests attached to the main temple at  Kamakhya,
now reduced to four families, were found to be not only  the  de  facto  but
also de jure trustees of the  entire  concern  in  the  Kamakhya  Scheme  of
Endowment and the Dolois were really their agents or managers.   The  object
of that suit was held to be an  attempt  to  supersede  the  Bordeoris  from
their exclusive management and control  and  substitute  them  with  a  body
consisting of all  subordinate  Shebaits  belonging  to  Brahmins  of  Nanan
Devalayas as well as non  Brahmins.   The  word  ‘Bordeori’  or  ‘Panda’  in
relation to five families of Bordeoris was found used in  old  copper  plate
dated 1686 Saka era which was in force in Assam at that time and also  in  a
parwana issued by the Commissioner of Assam  to  the  Managing  Bordeori  in
1827 A.D.  which  used  the  expression  ‘five  pandas  of  Kamakhya  Dham’.
Decrees in old suits of the year 1838 and 1855 were also noted by the  Civil
Court along with several old agreements  between  Bordeoris  and  Dolois  to
come to a conclusion that five distinctive families of priests known by  the
names of Brahma, Bura, Deka, Hota  and  Bidhipathak  originally  constituted
the five families of Bordeoris out of which Brahmas  later  became  extinct.
The judgment also indicates that  descendents  of  the  five  principal  and
leading families of priests who were originally appointed for  the  Kamakhya
temple  were  also  sometimes  called  collectively  as   five  Pandas   and
sometimes as five Deoris.
It is interesting to note that in the 1931 judgment the Civil  Court  looked
into an old decree of the Sadar Diwani Adalat of Calcutta  dated  1838  made
in appellate jurisdiction in connection with a dispute  over  the  Doloiship
at Kamakhya.  The Sadar Diwani Adalat judgment contained several  references
to the five ancient families of priests and made  it  clear  that  save  and
except those five houses, the work of the Doloiship and Sebayati  could  not
be conferred on anyone else; that none of the other Brahmins at Kamakhya  or
elsewhere had any right, power or authority of  even  touching  or  handling
the Goddess at Nilachal Kamakhya Temple proper for conducting  the  Sevapuja
(Rajaki puja) at the temple.  Such rights and privileges  were  held  to  be
hereditary ancestral rights of the Bordeori families and  hence  the  Dolois
elected by them were restored to possession and management  of  Kamakhya  by
replacing another person who was put in as Doloi by  an  independent  agency
during the chaos and disorder  of  the  Burmese  occupation.   The  Judicial
Commissioner’s findings in 1873 have been summarised in  the  said  judgment
as follows :

“(1)  That the office of the Doloi is not a hereditary office, but  elective
and the right of election is in the hands of the Bordeoris;

That as the Government will no longer take any steps, as of  old,  to  guard
the Temple funds from misappropriation by the Dalois,  the  power  to  guard
them must be held to have developed upon the Elective Body;

That the power of guarding is clearly a power some one must exercise, as  it
would be  in  the  highest  degree  wrong  to  have  left  the  uncontrolled
management to the Dolois.

That the Bordeoris as a class fall within the description of ‘Zaminders  and
other recipients of the rent of lands’, according to the spirit of  the  law
and that they do fall within that description;

That  the  Bordeoris,  as  a  class,  have  a  right  to  watch   over   the
administration of the temple lands, and protect such funds from  waste,  and
that the Dolois are, so to speak,  their  (the  Bordoris’)  agents  in  that
matter.”

Another judgment in the case of Baroda Kanta v.  Bangshi  Nath  reported  in
AIR 1940 Cal. 269 is a judgment of  Calcutta  High  Court  dated  30.11.1939
which again clearly recognized the custom of  exclusive  control  of  Dolois
elected by Bordeori families to be incharge of religious as well as  secular
affairs of Kamakhya temple and endowment.  It is also not  in  dispute  that
in the Act of 1959 which came into force on 11.1.1963 and in  the  Rules  of
1963 framed thereunder, there are provisions  requiring  the  identification
of the Head of a religious or charitable institution as defined  in  Section
2(d)  in  whom  the  control  and  management  of  the  properties  of  that
institution is vested.  The notification of acquisition under  Section  3(2)
has to be served on such Head in the manner  prescribed.   The  consequences
of such notification take place as per  Sections  4  to  6  leading  to  the
payment of compensation which is determined under Section 8 and as per  sub-
section (5) thereof the net income as per calculations  is  required  to  be
paid in cash annually as perpetual annuity as compensation to  the  Head  of
the institution for lands acquired under  the  Act.   The  proviso  to  sub-
section (5) of Section 8 takes care of entitlement of any person to a  share
of the income of any such institution or to a lump sum allowance  under  the
terms of any grant or  endowment  relating  to  that  institution  which  is
required to be determined in  the  prescribed  manner.   Besides  containing
provisions  for  appeal,  as  per  Section  18  the  Head  of  religious  or
charitable institution is obliged to submit to  the  Deputy  Commissioner  a
return giving the particulars of all his lands including the lands  selected
for retention under Section 5, etc.  Admittedly, the  Dolois  as  agents  of
Bordeoris are recognized as the Head of the public  religious  endowment  of
Kamakhya including the Maa Kamakhya Temple.
The Act was amended by Assam Act No.XIX of 1987 which  received  the  assent
of the Governor on 19.10.1987.  Inter alia, this Amendment Act introduced  a
new Section 25A which reads as follows :

“25A. Constitution of the Managing Committee.-For each of the  Religious  or
Charitable Institution of Public  Nature,  a  Managing  Committee  shall  be
constituted with the following members to have a control over the matter  of
utilization of the annuity and verification of  the  proper  maintenance  of
the Institution.

(a) The Deputy Commissioner or  Sub-divisional  Officer  or  his  nominee  –
President.

(b) An Ex-Officio Secretary to be elected by the Deuries/ Bor Deuries.

(c) 5 (five) elected members – to be elected from amongst the devotees.

      The term of the Committee shall be for three years from  the  date  of
its constitution.”

The Statement of Objects  &  Reasons  of  the  Amending  Act  are  noted  in
paragraph 111 of the impugned judgment under appeal as follows :

“111. The statement of objects and reasons of  the  Amending  Act  discloses
the following impelling factors therefor:-

i) certain religious or  charitable  institutions  of  public  nature  whose
lands had been acquired did neither take proper steps  for  finalization  of
compensation nor did they file appeal within the stipulated time;

ii) it was felt necessary to enhance the annuity payable to the  institution
due to rise of market price of essential  commodities  for  its  maintenance
and upkeep;

iii) it was felt imperative to have control over the annuity and  to  verify
and audit the accounts to the satisfaction of the concerned authority.”

The last election of Dolois by the members of Bordeori families or  bordeori
samaj was made in 1991-1992 in accordance  with  the  custom.   Sri  Jnanada
Prasad Sarma and Sri Paran Chandra Sarma were elected as the Doloi and  Saru
Doloi  respectively.   The  constitutional  validity  of  Section  25A   was
challenged by head of another religious institution through a Writ  Petition
bearing No.3118 of 1994 before the Guwahati High Court.

17.   Pendency of that writ petition could not have posed any  hindrance  to
election of successor Dolois after five years, in 1996-1997.  But  that  did
not happen. An attempt was made by the  shabiats,  brahamins  as  well  non-
brahmins including priests/Deories of Nanan  Devalayas  to  democratize  the
management of Kamakhya temple by diluting the control of Bordeori Samaj  and
the Dolois by framing a new scheme of management described as  the  Kamakhya
Debutter Regulation, 1998 providing for constitution  of  a  Board  for  the
superintendence, management and administration of all  the  affairs  of  the
main Kamakhya temple and also the temples  of  Dasa  Mahavidyalaya  and  all
other temples and places of religious significance in and around  the  three
hills of Nilachal described as temples’ complex.


18. The Board as defined under the Regulation means  the  general  Board  of
members of Kamakhya Debutter or the Kamakhya Temple Trust Board  constituted
under the Regulation.  The regulation also ordained that the Board shall  be
the head of the institution for the purpose of  Section  2(d)  of  the  Act.
Doloi of the Kamakhya Temple as per Regulation means the person  elected  by
the brahamin shabaits and not only by Bordeori Samaj. The  regulation  vests
women also with the right to vote but not the right to contest for the  post
of Doloi because the Doloi  is  the  head  priest  or  poojari.  Though  the
Debutter  regulation  and  the  Board  contemplated  therein  claimed  their
existence from 1998 but according to the list of dates and events  given  by
the appellants in the course of arguments and from the list of  dates  filed
as a document in the course of arguments on behalf of the  State  of  Assam,
it appears that when the two elected Dolois did not hold the elections  even
after the expiry of their term of five years, Bordeori Samaj approached  the
district Judge Kamrup for holding of elections. Before  the  District  Judge
an attempt was made by other shebiats to include themselves in the  list  of
voters for electing the Dolois but their claim was rejected by the  District
Judge by an order passed on 12.6.1998. By another  order  dated  21.10.1998,
the District Judge Kamrup, Guwahati in file No.D9/ K/KT/6/95  maintained  in
connection with Kamakhya temple, disposed of the petition filed by  Bordeori
samaj of the Kamakhya temple seeking election of the managing  Committee  of
Kamakhya temple against which the then Dolois  and  some  others  had  filed
objections.


19.    In that Order the District Judge has noted that there was  a  defacto
Managing Committee described as “the present Managing  Committee”  supported
by the then two dolois who took the  stand  that  there  was  no  scheme  of
holding election nor there was any term  of  office  of  managing  committee
fixed  in  Constitution.  Such  defacto  Committee   also   challenged   the
jurisdiction of the District Judge to  impose  any  election.  The  District
Judge was not impressed with zerox copy of the so-called Constitution  which
as per arguments was of the year 1970-1971 and after perusing  the  judgment
and decree rendered by the Civil Court long back, the District  Judge  found
that the shebaits had not been given any power of voting in the election  of
Dolois and their prayer to include them in the voters list had already  been
rejected on 12.6.1998 but even thereafter the present committee had filed  a
Constitution wherein Shebiats had been  included  as  voters.  The  District
Judge therefore, did not accept the Constitution as  a  valid  document.  On
the issue of jurisdiction of the District Judge, the order reveals that  the
entire records relating to the management of the Kamakhya  temple  disclosed
that earlier also on many occasions the Managing  Committee  of  even  those
very persons who had challenged the jurisdiction of the District  Judge  had
accepted notices and directions regarding proper management  of  the  temple
without raising any challenge to the exercise of such power by the  District
Judge. Since the District Judge noticed that there  was  a  Public  Interest
Litigation  pending  before  the  Guwahati  High  Court,  hence  instead  of
ordering for election of Dolois  he  directed  to  get  a  Committee  formed
through the Deputy Commissioner, Kamrup, Guwahati under Section 25A  of  the
Act by dissolving the present committee or to form an ad-hoc Committee  from
amongst the Bordeori Samaj till regular election is held after  disposal  of
Public Interest Litigation.


20.  Against such direction the then Dolois preferred writ petition  No.6221
of 1998 which was heard and disposed of by the Division Bench  of  the  High
Court of Guwahati along with writ  Petition  No.3118  of  1994  relating  to
vires of Section 25A of the Act.  By  a  common  judgment  and  order  dated
2.5.2000, the Division Bench upheld the vires of Section 25A. It also  noted
the stand on behalf of the then  Dolois  who  had  preferred  Writ  Petition
No.6221 of 1998, that there were no instructions to  challenge  Section  25A
and they had challenged only the  jurisdiction  of  the  District  Judge  in
passing the order dated 21.10.1998. The Division Bench  did  note  that  the
District Judge had passed the order not in any judicial  proceeding  but  in
accordance with the past practice whereunder parties used  to  approach  the
Court of District Judge for making arrangement  for  constituting  Committee
to manage the affairs of the Kamakhya temple. That Division  Bench  did  not
go further into the issue because it concluded that it may not be  necessary
to do so because the vires of Section 25A of the Act  had  been  upheld  and
that would take care of any remaining controversy between  the  parties.  To
the same effect was the submission made on behalf of the  writ  petitioners,
hence Writ Petition No.6221 of 1998 was dismissed as infructuous.

21.  In the  light  of  above  noted  Division  Bench  judgment  the  Deputy
Commissioner issued an order dated 15.9.2000 in which he  also  took  notice
of some other judgments including one by the High  Court  in  PIL  No.35  of
1997 decided on 12.1.2000 and ordered for immediate dissolution of the  then
Managing Committee of Kamakhya Devalaya headed by the then two Dolois  whose
tenure was noted to have expired.  They were directed to  hand  over  charge
of office to the Deputy Commissioner, Kamrup, Guwahati  within  three  days.
Further, to look after the management of  the  Kamakhya  Temple,  an  ad-hoc
Managing  Committee  of  six  members  along  with  Deputy  Commissioner  as
Chairman was also ordered.   It  was  clarified  that  the  ad-hoc  Managing
Committee will look after the  management  of  the  Kamakhya  Devalaya  till
regular election is held or till the constitution of Managing  Committee  as
per Section 25A of the Act, for  which  a  period  of  one  month  only  was
indicated.  The appellants challenged that order by filing a  writ  petition
in September 2000 itself bearing W.P.(C)No.5385  of  2000  before  the  High
Court.  By an order dated 25.9.2000, a learned Single Judge issued rule  and
stayed  the  operation  of  order  dated  15.9.2000.   However  an   interim
arrangement was made  by  ordering  that  the  Deputy  Commissioner  or  his
nominee shall discharge the  functions  of  the  Managing  Committee  to  be
constituted under  Section  25A,  till  it  is  constituted.   It  was  also
clarified that in respect  of  religious  functions,  status  quo  shall  be
maintained.  Against the  same  very  order  dated  15.9.2000  another  writ
petition bearing W.P.(C)No.6184 of 2000 was preferred by Sri  Kamal  Chandra
Sarma, a member of the Kamakhya Debutter Board and Sri Paran Chandra  Sarma,
one of the then Dolois.  In this writ petition also  similar  interim  order
was made.
22.  On 20.03.2002 the Deputy Commissioner passed an order whereby in  terms
of the Court’s interim orders he appointed one S.K. Roy,  Additional  Deputy
Commissioner, Kamrup to discharge the functions of  the  Managing  Committee
till a Committee under Section 25A could  be  constituted.   In  that  order
also it  was  made  clear  that  so  far  as  the  religious  functions  are
concerned, the status quo shall  be  maintained.   Through  a  notice  dated
25.4.2002 Sri Roy communicated that he would take  over  the  management  of
the Temple as per order of the Deputy Commissioner  and  by  another  notice
dated 6.5.2002 he notified that he had taken over the responsibility of  the
Managing  Committee  on  27.4.2002.   Against  the  order  of   the   Deputy
Commissioner as well as the orders  and  notices  issued  by  Sri  Roy,  the
appellants filed another writ petition bearing W.P.(C)No.2955 of  2002.   In
this third writ petition also an  interim  order  was  passed  on  13.5.2002
restraining the respondents therein not to use  the  main  Bharal,  existing
office of the  Kamakhya  Debutter  Board  and  not  to  interfere  with  the
functioning of “Peethas” of the  “Jal  Kuber”  and  “Dhan  Kuber”  and  also
religious functions of  the  Kamakhya  Temple.   By  another  interim  order
passed in that case on 16.10.2003,  the  Kamakhya  Debutter  Board  and  its
office bearers were restrained from preparing draft  voters  list  and  also
from holding or conducting any general election of the Board  without  prior
permission of the Court.  The aforesaid three writ  petitions,  two  of  the
year 2000 and third of the year 2002 were disposed of by the learned  Single
Judge, as noted at the outset, by a common judgment dated 6.8.2004.
23.   The judgment of the  learned  Single  Judge  is  mainly  founded  upon
earlier Division Bench judgment upholding the constitutionality  of  Section
25A of the Act.  Learned  Single  Judge  noted  the  arguments  advanced  on
behalf of the rival parties that Section 25A must be given a narrow  meaning
so as to confine the Committee constituted  under  that  provision  only  to
matters concerning the utilization of annuity.  But in paragraph 14  of  the
judgment it fell back upon judgment of the  Division  Bench  dated  2.5.2000
for holding that since Section 25A was held to  be  constitutionally  valid,
“there will hardly be  any room to consider the argument advanced on  behalf
of the petitioners and the supporting respondents to the effect that  having
regard to the object of 1959 Act, the Managing Committee  constituted  under
Section 25A of the Act must be ascribed a limited  role  restricted  to  the
annuity paid”.
24.   While dealing with the objection that the writ  petitioners  were  not
competent and had no right to maintain the writ petitions, in  paragraph  12
of the judgment the learned Single Judge actually decided not to  go  deeper
into that issue and preferred to dispose of the writ  petitions  on  merits.
The reasons indicated for adopting such a course are recorded thus :

“…….What appears to be of significance is that though in the writ  petitions
filed, it has been clearly stated that the writ petitioners have  approached
this Court as Administrators/Members of the Board of  Trustees.   In  course
of the oral  arguments,  advanced,  Mr.  DK  Bhattacharyya,  learned  Senior
Counsel for the Petitioners in WP© 5385/2000, has made  it  clear  that  the
approach to this Court by the Petitioners is in their capacity  as  Shebaits
of the Temple.  Notwithstanding  the  slightly  contradictory  stand  taken,
this Court has noticed that though the Debutter Board had  been  constituted
in the year 1998 and though the Deputy Commissioner  in  his  affidavit  has
given no  credence  or  recognition  to  the  said  Board  and  the  private
Respondents Nos.4 to 8 in WP© 2955/02 represented by Shri KN  Chaudhary  has
also disowned the Board, yet surprisingly no attempt was made either by  the
Deputy Commissioner to derecognize the Debutter  Board  or  by  the  private
Respondents 4 to 8 to challenge the authority of the Debutter Board even  to
claim to have a right to  manage  the  affairs  of  the  Temple  before  any
competent Court of law……”

25.  Out of the two main reasons given above by  the  learned  Single  Judge
for not  pursuing  the  issue  of  locus  seriously,  the  first  cannot  be
questioned.  Once the petitioners gave up their claim of  having  approached
in the capacity of administrators/members of the Board of  Trustees,  relief
of action in terms of Section 25A of the Act could  have  been  granted  for
the benefit of the religious institution even on the asking  of  petitioners
in their capacity as Shebaits of the Temple.  The other reason however  does
not merit acceptance and must be treated only as  an  obiter  or  a  passing
reference.  At no point  of  time  the  State  or  Deputy  Commissioner  had
recognized the Debutter Board as Head of  the  institution  and  in  such  a
situation there was no need for even the private  respondents  to  challenge
the authority of the Debutter Board.  The issue as to  who  could  be  voter
for electing the Dolois and who could stand for that post had not arisen  at
that stage because election of the Dolois had not been ordered by any  court
till then.
26.  It appears that at least for a brief period  the  District  Judge,  the
District  Administration  as  well  as  the  High  Court  had  acted   under
misconception and confusion to equate the limited supervisory  role  of  the
statutory Committee under Section 25A of the Act  with  the  rights  of  the
Bordeoris and their representative, the Dolois to manage  the  religious  as
well as secular activities  of  the  Kamakhya  Temple,  a  public  religious
institution.
27.   The scope and amplitude of Section 25A was wrongly  not  touched  upon
by the learned Single Judge. The earlier Division Bench Judgment had  merely
affirmed the constitutionality of this provision at the instance of  another
religious institution but had  no  occasion  to  weigh  the  powers  of  the
statutory Committee vis-à-vis the customary rights  of  Bordeori  Samaj  and
its elected representatives,  the  Dolois.  The  Division  Bench,  therefore
rightly examined the width and scope of powers of customary trustees  –  The
Bordeories and their elected agent, the Dolois considering all the  relevant
materials and custom, it committed no error  in  upholding  their  right  to
take care of management of secular as  well  as  religious  affairs  of  the
Kamakhya Temple.
28.    The powers of the Bordeories and Dolois has not been  taken  away  or
adversely affected by the Act as it stood earlier or even after Section  25A
was  inserted.  The  reasons  and  objects  of  introducing  the   statutory
Committee under Section 25A as noted by the Division Bench in paragraph  111
of the  judgment  under  appeal  and  extracted  earlier  in  this  judgment
categorically clarify that it was (i) “to have  control  over  the  annuity”
and (ii) “to verify and audit  the  accounts  to  the  satisfaction  of  the
concerned  authority.”  The  statutory  Committee  under  Section   25A   is
therefore concerned only with the annuity payable or paid under the  Act  to
the Head of the Institution and not with its ownership  or  management.  The
words – “….. and verification of the proper maintenance of Institution.”  in
Section 25A have to be understood in the background of all other  provisions
of the Act including the objects and reasons for the Amending  Act  No.  XIX
of 1987. In that light, the power of the Committee is indeed  quite  limited
to verification of the proper maintenance of  accounts  of  the  Institution
concerned and that too relating only  to  utilization  of  the  annuity  and
other government grants under the  Act,  if  any.  Favouring  the  statutory
Committee with powers to manage or oversee even only the secular  aspect  of
management of the Institution will not only run counter to the  objects  and
reasons for the Amending  Act  of  1987,  it  shall  create  an  undesirable
diarchy when the Act does not divest the  Bordeories  and  Dolois  of  their
customary  powers,  roles  and  rights.  Hence  we  have  no  difficulty  in
accepting the contention of most of the parties that Section 25A  postulates
a Committee with limited role - only to exercise control over  annuity   and
other grants under the Act and its proper accounting, if and when  utilized,
through  the  power  of  verification  of  relevant  accounts   for   proper
maintenance of Institutions.
29.   We hasten to make it clear that the above  inference  is  in  view  of
peculiar features of the Act dealing mainly with  acquisition  of  lands  of
certain types of Institutions.  There  can  be  no  doubt  that  within  the
constitutional scheme guaranteeing freedom of religion, the legislature  has
to exercise restraints in matters essentially religious  but  still  it  has
ample powers  to  legislate  for  better  management  of  any  religious  or
charitable Institution of public nature.   However,  in  the  present  case,
there is no such legislation.
30.   Submissions have been  advanced  on  behalf  of  the  appellants  that
Kamakhya Debutter  Regulation  is  a  perfect  solution  for  all  the  ills
allegedly  affecting  proper  management  of  the   Kamakhya   Temple;   its
provisions do not interfere with the customary rights of the Dolois  in  the
religious matters and in secular matters its  provisions  promote  democracy
to  the  satisfaction  of  large  number  of  concerned  persons   including
Deuris/priests looking after the other temples  known  as  Nanan  Devalayas.
Hence, it is pleaded that no interference  is  required  with  the  Kamakhya
Debutter Regulation.  From the discussions made earlier, we find that  there
has been no interruption in the essential  custom  whereunder  the  Bordeori
Samaj consisting of all adult males of Bordeori  families  enjoys  exclusive
monopoly over the power to elect Dolois. We also find no merit in  the  plea
of appellants that if there was a custom in favour  of  Bordeori  Samaj,  it
stood discontinued by agreement or by framing of some sort  of  Constitution
in 1970 and/or 1973 such plea is vague and  not  backed  by  any  acceptable
evidence.  So far Dolois have always been elected as per the old custom,  by
the Bordeori Samaj.   The  custom  of  electing  the  Dolois  was  no  doubt
attempted to  be  changed  by  a  group  of  persons  who  claimed  to  have
formulated and adopted the Kamakhya Debutter Regulation but such  Regulation
does not have acceptance of the Bordeori Samaj and the  dispute  on  account
of the Kamakhya Debutter Regulation is now before this court by way  of  the
present proceedings.
31.   For the reasons assigned by the Division  Bench  of  the  High  Court,
with which we are in agreement, it has to be  held  that  Kamakhya  Debutter
Regulation, 1998 is not a valid instrument and has no sanction  of  law  for
depriving the customary rights of the Bordeori Samaj  to  elect  the  Dolois
who have been customarily exercising the right to manage  the  religious  as
well as secular affairs of the Kamakhya Temple.  Admittedly, the  appellants
have now taken recourse to provisions of Section 92 of  the  Code  of  Civil
Procedure for seeking whatever relief they want against the  Bordeori  Samaj
and the Dolois elected by the Bordeori Samaj.  In view of their  categorical
submissions that this Court may not make any observation which might  affect
either of the parties in Section 92 CPC proceeding, we leave the  matter  at
rest without commenting on the provisions of Kamakhya Debutter  Regulations.
 However, in the light of discussions and findings made earlier,  except  to
clarify, as pleaded on behalf of the appellants that Section 25A of the  Act
provides for a Committee having only a narrow and limited role, we  find  no
merit in the Appeals and no scope to interfere with  the  impugned  judgment
of the Division Bench.  The Appeals are therefore dismissed along with  SLP…
cc 8089-8091/2012.  This order, however, shall not  prejudice  the  case  of
the appellants and similarly placed persons in the proceeding under  Section
92 of the CPC pending before the District Judge, Kamrup, Guwahati.
32.   Having taken note of the background facts and expressed our  views  on
merits of the Appeals, now we shall take note of some interim orders  passed
by this Court after the Division Bench judgment dated 25.10.2011 came  under
challenge through Special Leave Petitions filed  in  2011  itself.  This  is
necessary to understand the real controversy  between  the  parties  in  the
three writ petitions which have been preferred directly before  this  Court.
 In the SLP preferred by the appellants, an order was passed  on  11.11.2011
to direct that the interim arrangement made by the  High  Court  vide  order
dated 13.5.2002 shall remain  operative.   As  a  consequence  the  official
respondents continued under an obligation not to use  the  main  Bharal  and
the existing office of Kamakhya Debutter Board and  not  to  interfere  with
the religious affairs of the temple.   In view of  twin  directions  by  the
Division Bench in the impugned order, to hold elections  of  Dolois  as  per
custom and to hold elections for constituting the  Committee  under  Section
25A of the Act, the State  Authorities  issued  a  notice  for  election  of
Doloies and that election was held on  16.11.2011.   On  21.11.2011  further
interim order was passed by this Court for framing of rules for election  of
members of Managing Committee as per Section 25A of the  Act  and  also  for
holding of  such  elections.   It  was  clarified  that  till  the  Managing
Committee is constituted the administration of the temple  will  be  as  per
order of the High Court dated 13.5.2002.   No  interference  was  made  with
the elections of Dolois held on 16.11.2011  and  hence  the  elected  Dolois
were left with the power  to  carry  out  all  religious  functions  of  the
temple.   It was also observed that any challenge to  the  validity  of  the
Rules for constitution of the Managing Committee under Section 25A could  be
raised before this Court.  On 3rd  February,  2012  this  Court  by  another
interim order directed Deputy  Commissioner  to  take  control  of  precious
articles belonging to the deity and prepare an inventory.  The  Dolois  were
permitted to perform worship but the  office  complex  was  directed  to  be
handed over to the Kamakhya Debutter  Board  and  such  arrangement  was  to
remain operative until the constitution of Managing Committee under  Section
25A.  Admittedly, the  said  Committee  has  not  been  constituted  as  yet
because the rules framed for the purpose  and  notified  on  27.1.2012  have
been challenged before this Court in Writ Petition No. 72 of  2012  as  well
as in Writ Petition No.91 of 2012.  The other writ petition  bearing  No.140
of 2012 filed by Sailen Sharma, petitioner of Writ Petition No. 72  of  2012
seeks to challenge the election of Dolois as well as  the  legality  of  the
electoral college prepared for that election,  mainly  on  the  ground  that
women Bordeories and other  Deuris,  both  male  and  female,  were  wrongly
excluded from the same.   We shall first take up the challenge to the  Rules
framed under Section 25A of the Act, i.e. Writ Petition Nos. 72  and  91  of
2012.
33.    The  rules  notified  on  27.1.2012  are  called  The   Assam   State
Acquisition of Lands Belonging to Religious  or  Charitable  Institution  of
Public Nature (Election of  managing  committee  of  Sri  Sri  Maa  Kamakhya
Temple) Rules, 2012 (hereinafter referred to as ‘The Rules  of  2012’).  The
notification clearly mentions that the Rules are pursuant to order  of  this
Court  dated  21.11.2011  for  carrying  out  the  elections  of  ex-officio
secretary and elected members of the managing committee as  contemplated  by
Section 25A of the Act in respect of Sri Sri Maa  Kamakhya  Temple.  Rule  2
defines various definitions such as  Devotee,  Temple  and  Bordeories.  The
term ‘Devotee’ is wide  enough  to  include  all  worshippers,  priests  and
shebaits or  persons  associated  with  the  Maa  Kamakhya  Temple  residing
permanently  in  Revenue  Village  Kamakhya  either  directly   or   through
ancestors since last 50 years or more. But Temple has been defined  to  mean
only the Temple of Sri Sri Maa Kamkhya situated on the  Nilachal  Hill  near
the  city  of  Guwahati.  Bordeories  mean  the  devotees  constituting  the
traditional Bordeori Samaj of the temple. There are two  electoral  colleges
under Rule 3, one for the election to  the  post  of  ex-officio  secretary,
restricted to the  Bordeories of the temple and the other for  the  election
of five members of the managing committee, consisting of the ‘Devotees’.
34.   Rule 6 requires the Deputy Commissioner to treat the list of  electors
already prepared by the Bordeories and  published  in  connection  with  the
election of Dolois as the electoral rolls for  the  election  of  ex-officio
secretary. Claims and objections on the basis of  such  tentative  electoral
rolls are to be entertained from the Bordeories only. It is not  in  dispute
that the traditional list of electors for election of Dolois  includes  only
adult male Bordeories and hence women members of Bordeori families  did  not
find place  in the draft electoral rolls  which  were  published  under  the
Rules. It goes without saying that Deuries and priests  of  other  Devalayas
known as Nanan Devalayas are  also  not  included  in  this  electoral  roll
because  for  election  to  the  post  of  ex-officio  secretary  only   the
Bordeories are qualified to be in the electoral college and be  a  candidate
also. Hence a strong grievance has  been  raised  by  the  Dolois  of  Nanan
Devalayas, both male and female as well as female members  of  the  Bordeori
families that their exclusion by virtue  of  Rules  notified  by  the  State
Government  is  unconstitutional  being  violative  of  Article  14  of  the
Constitution of India.
35.   On behalf of State of Assam a categorical stand has  been  taken  that
the Rules do not debar the female members of the  Bordeori  families  rather
the nomination form in Schedule II of the Rules requires  the  candidate  to
declare that their names as well as that of their father/mother/husband  has
been correctly spelt out. Hence the  State  has  no  objection  in  allowing
claims by female members of Bordeories family if they want  their  names  to
be included in the electoral rolls. However, on  behalf  of  the  State  Mr.
Jaideep Gupta learned senior counsel took a categorical stand  that  Deories
cannot claim equality with Bordeories for the purpose  of  election  of  ex-
officio secretary because, according to State, in the Temple of Sri Sri  Maa
Kamakhya, which does not include the  Nanan  Devalayas,  the  four  Bordeori
families occupy the status of trustees whose representatives are the  Dolois
elected for the purpose of looking after the secular as  well  as  religious
affairs of the temple. He submitted that the Deories  are  priests  only  in
the Nanan Devalayas and for the main temple of Sri Sri  Maa  Kamakhya  which
alone is covered by the Rules of 2012, they can  only  be  included  in  the
definition of ‘Devotees’ and in that capacity they are  entitled  to  be  in
the electoral college for the purpose of electing the other five members  of
the Managing Committee. Hence, according to him the State has not  committed
any discrimination or perpetrated any illegality in creating  two  electoral
colleges, one for the single post of ex-officio secretary  confined  to  the
Bordeori families on account of their de jure as well  as  de  facto  status
since long and another electoral college for the five other members  of  the
Managing Committee, consisting of  the  Devotees  which  shall  include  all
other Dolois, Shebaits/Worshippers etc.  He  made  it  clear  that  for  the
purpose of statutory Managing Committee under Section 25A of  the  Act,  the
State shall not discriminate between the male  and  female  members  of  the
Bordeori families or the male and female Devotees, as the case may be.
36.   In view of discussions made earlier it is evident  that  the  Bordeori
families enjoy a distinct status and monopoly in matters connected with  the
religious as well as secular  management  of  the  temple  of  Sri  Sri  Maa
Kamakhya and hence the claim of equality  on  behalf  of  Deoris  associated
with the Nanan Devalayas or even with Maa Kamakhya Temple does not have  any
merit. In view of such clear and categorical legal  distinction,  the  State
cannot be blamed for creating two electoral colleges and confining  election
rolls for the post of ex-officio  secretary  only  to  the  members  of  the
Bordeori families including females. The  alleged  discrimination  vis-à-vis
Deoris has no foundation.   Fair  treatment  to  others  interested  in  the
temple is assured by permitting the ‘Devotees’ to  elect  as  many  as  five
members of the Managing Committee.  Hence  the  challenge  to  the  impugned
provisions in the Rules on ground of Article 14 fails.  The plea that  Rules
must cover not only the  temple  and  endowment  of  Sri  Sri  Maa  Kamakhya
Devalaya but the entire complex including Nanan Devalayas has no support  or
basis in law.  The Act permits the State to constitute a Managing  Committee
for each of the Institution covered by Section 25A of the Act.  It  has  not
been pleaded or proved that Sri Sri Maa Kamakhya  temple  and  endowment  is
not so covered.   In fact the lands acquired under the Act appear mainly  of
main temple of Sri Sri Maa  Kamakhya.   Submissions  were  advanced  but  no
pleading or proof  was  placed  before  us  to  show  that  lands  of  Nanan
Devalayas have also been acquired.   Moreover,  it  is  discretionary  power
under Section 25A under which the State may choose not to have any  Managing
Committee separately for the Nanan Devalayas.
37.   On behalf of writ petitioners the same  very  impugned  provisions  of
the Rules have been challenged also on the ground that they are contrary  to
the mandate of Section 25A of the Act which under Clause (b)  requires  that
an ex-officio secretary be elected by the Deories/Bordeories.  According  to
petitioners, the Kamakhya Temple Complex enjoys the services  of  Dolois  as
well as Bordeories hence the Act requires both the groups to be  treated  as
equal and the Rules must be declared to be against the Act inasmuch as  they
run counter to the Act by giving recognition only to Bordeories at the  cost
of Deories.
38.  To meet the aforesaid contention, Mr.  Jaideep  Gupta,  ;earmed  senior
counsel referred to the various provisions of the Act to highlight that  the
scheme was to recognize the Head of the Institution in whom the control  and
management of the properties is vested under any enactment, grant or  usages
relating to the Institution or any scheme of management framed  by  a  court
under Section 92 of the CPC. Such a Head, upon notice  has  to  deliver  the
possession of the acquired property and is entitled to receive  compensation
in the form of annuity. In this background he  laid  stress  upon  the  fact
that Section 25A was inserted not for  constitution  of  a  common  Managing
Committee for all the religious or charitable institutions in the State  but
for constitution of a Managing  Committee  for  each  of  the  religious  or
charitable institutions of public  nature.   In  this  context,  considering
that some of the religious institutions have only Deories whereas some  like
the Kamakhya Temple have their control vested  totally  in  Bordeories,  the
legislature provided for election of  ex-officio  secretary  either  by  the
Deories or by Bordeories as the case may be. According to him,  the  use  of
‘slash’ (/) between the  word  Deories  and  the  word  Bordeories,  in  the
background of scheme and provisions of the Act connotes the  option  to  act
as per factual situation obtaining in a particular institution. His  further
submission was to the effect that factually the  claim  of  the  petitioners
that the temple of Shri Shri Maa Kamakhya requires  daily  worship/puja  not
only by the Bordeories but also by atleast  two  families  of  Deories,  the
Chandi Pathaks and the Supakars has been controverted   by  explaining  that
the daily worship/puja is under the management of Dolois who  represent  the
Bordeories and it is only on some special occasions,  once  or  twice  in  a
year that the Chandi Pathaks  and  the  Supakars  participate  as  Shebaits.
Thus, on facts it has been seriously contested that the temple  of  Sri  Sri
Maa Kamakhya requires services of Deories for daily worship/puja.
39.   After considering the rival  submissions  and  on  going  through  the
pleadings as well as provisions in the Act, we are  in  agreement  that  the
submission advanced on behalf of the State  of  Assam  that  Clause  (b)  in
Section 25A gives a choice or option for electing the  ex-officio  secretary
either  by  the  Deories  or  Bordeories  depending  upon  the  facts  of  a
particular religious or charitable institution has merits  and  deserves  to
be accepted. It is not the case of petitioners that all the institutions  in
the State have both Deories and Bordeories. In that view of  the  matter  it
would be inevitable to get the ex-officio secretary elected  either  by  the
Deories  or  the  Bordeories,  whosoever  may  be  managing  the   concerned
institution.
40.   It is important to notice that the terms  ‘Deories’  and  ‘Bordeories’
is not defined under the Act.  Under  Section  30  of  the  Act,  the  State
Government has the power to make rules for carrying out the purposes of  the
Act. Such rules are  required  to  be  laid  before  the  Assam  Legislative
Assembly as soon as  possible  after  they  are  made,  for  not  less  than
fourteen days and are subject  to  such  modifications  as  the  Legislative
Assembly may make. Clearly the task of  defining  or  explaining  the  terms
‘Deories’ or ‘Bordeories’ in the context of  a  particular  institution  has
been left to be done by making of rules. The Rules of 2012 seek  to  provide
for a Managing Committee in terms of Section 25A only for the temple of  Sri
Sri Maa Kamakhya. Under  statutory  powers,  the  State  Government  in  the
context of this particular institution has  recognized  only  Bordeories  by
referring to the  traditional  Bordeori  Samaj  of  the  temple.  The  other
Devotees, Shebaits and Deories, if any, have been included in  the  category
of ‘Devotee’ with a right to participate in   the  election  of  other  five
members of the Managing Committee. The Rules of  2012  thus  supplement  the
provisions of the Act and do  not  run  counter  to  the  intention  of  the
legislature which has accepted the Rules  of  2012  without  exercising  its
power to make modifications. Such Rules must be treated as part of  the  Act
and in absence of any conflict it has to be held  that  the  Rules  of  2012
only explain the real intention of the legislature  in  using  the  sign  of
slash (/) between the words Deories and the Bordeories in Clause (b) of  the
Section 25A. The second ground of assailing the rules, therefore, must  also
fail. Accordingly Writ Petition Nos. 72 and 91 of  2012  are  dismissed  for
lack of any merits.
41.   As already noticed earlier the third Writ Petition bearing No. 140  of
2012 has also been filed by the same person -  Shailen  Sharma  who  is  the
petitioner in Writ Petition No. 72 of 2010 - to challenge  the  election  of
Dolois  held  on  16.11.2011.  The  only  ground  urged  on  behalf  of  the
petitioners is denial of equality or in other words,  violation  of  Article
14 of Constitution of India. According to petitioners even if the  electoral
college was required to be confined by tradition only to  Bordeories  Samaj,
the custom of depriving women members of such families  the  right  to  vote
and to stand as candidate for the post  of  Dolois  is  obnoxious,  immoral,
discriminatory  and  against  Public  policy.  It  is  also  the   case   of
petitioners that another class of  priests  known  as  Dolois  play  equally
important role as the Bordeories and hence the male and  female  members  of
Deories families have also been subjected to hostile discrimination  by  the
customs that are archaic and must be struck down  as  law  contrary  to  the
fundamental  right  of  equality  guaranteed  by  the  Article  14  of   the
Constitution of India.
42.   It is not in dispute that the impugned custom is not in  existence  on
account of any State  action.  The  temple  in  question  is  admittedly  an
ancient religious institution of public nature. The temple of  Sri  Sri  Maa
Kamakhya occupies a place of pride among  Hindu  temples,  especially  as  a
Shakti Peeth. No doubt there are other smaller temples which have sprung  up
on or around the same hill of Neelachal near the town of Guwahati  in  Assam
under the belief that there are secret  Peethas  which  may  be  discovered/
found by the enlightened persons gradually in due course of time.  From  the
judgments referred in earlier litigations of old times it  is  evident  that
the monopolistic control  of  Bordeories  over  the  religious  and  secular
spheres of the temple has been resented and challenged by the other  priests
including Deories of Nanan Devalayas but without  success.  It  has  already
been noticed that the appellants before this Court have now taken resort  to
a proceeding under Section 92 of CPC which is pending  before  the  District
Judge, Kamrup, Guwahati. The appellants and the petitioners  have  evidently
spared no efforts to break the power and control of the Bordeories  and  the
Dolois but so far without success. The aforesaid facts have  been  noted  in
view of strong objection by Mr. Rajiv Dhawan, learned  senior  advocate  for
the respondents that the writ petitions including No. 140 of  2012  are  not
bonafide petitions because they have been filed only to support the case  of
the appellants and the Debuttar Board of 1998.
43.   On going through the pleadings in the said petition we find as a  fact
that writ petitioners have at places taken contradictory stand to  challenge
the custom granting rights to the Bordeories and Dolois and at  places  they
have praised the Debuttar  Board  which  recognizes  the  supremacy  of  the
Dolois atleast in  matters  relating  to  the  religious  practices  in  the
temple. However, it would not be proper to decide the writ  petition  merely
on such technical pleas when it has been heard at quite some length.
44.   The plea of the petitioners is that no doubt fundamental rights  under
Articles 14  and  15  unlike  rights  such  as  against  untouchability  are
guaranteed only against State action and  not  against  private  customs  or
practices but Judiciary is as much a part of State as the Executive and  the
Legislature and hence it cannot permit  perpetuation  of  discrimination  in
violation of Article  14,  particularly  in  view  of  Article  13(1)  which
mandates that all pre Constitution Laws in the territory  of  India  to  the
extent  they  are  inconsistent  with  the  provisions  of   part   III   of
Constitution shall, to the extent of such inconsistency, be void.
45.   Part III of the Constitution contains fundamental  rights  and  begins
with Article 12 which defines ‘the State’ for the purposes of part III.  For
better  appreciation  of  the  issues  involved,  Articles  12  and  13  are
extracted here in below:

“12. Definition - In this part, unless the context otherwise requires,  “the
State” includes the Government and Parliament of India  and  the  Government
and  the  Legislature  of  each  of  the  States  and  all  local  or  other
authorities within the territory of  India  or  under  the  control  of  the
Government of India.

13. Laws inconsistent with or in derogation of the fundamental rights

(1) All laws in force in the  territory  of  India  immediately  before  the
commencement of this Constitution, in so far as they are  inconsistent  with
the provisions of this Part, shall, to the extent of such inconsistency,  be
void

(2) The State shall not make any  law  which  takes  away  or  abridges  the
rights conferred by this Part and any law  made  in  contravention  of  this
clause shall, to the extent of the contravention, be void

(3) In this article, unless the context otherwise requires,--

“law”  includes  any  Ordinance,   order,   bye   law,   rule,   regulation,
notification, custom or usages having in the territory of  India  the  force
of law;
“laws in force” includes  laws  passed  or  made  by  Legislature  or  other
competent authority in the territory of India  before  the  commencement  of
this Constitution and not  previously  repealed,  notwithstanding  that  any
such law or any part thereof may not be then in operation either at  all  or
in particular areas.

(4) Nothing  in  this  article  shall  apply  to  any  amendment   of   this
Constitution made under Article 368.”

46.   Since the controversy at hand  embraces  Articles  25  and  26,  these
also, must be noted in extenso:
“25. Freedom of conscience and free profession, practice and propagation  of
religion

(1) 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 profess, practise and propagate religion

(2) Nothing in this article shall affect the operation of any  existing  law
or prevent the State from making any law

(a) regulating or restricting any economic, financial,  political  or  other
secular activity which may be associated with religious practice;

(b) providing for social welfare and reform or the throwing  open  of  Hindu
religious institutions of a public character to all classes and sections  of
Hindus.


26. Freedom to manage religious affairs - Subject to public order,  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.”

47.   It is the  case  of  the  petitioners  that  the  custom  relating  to
election of the Dolois to  the  extent  it  violates  Article  14,  must  be
treated as void and this Court should grant relief to the women  members  of
Bordeories families and also to the Deories by  ordering  for  inclusion  of
their names in the electoral college.
48.   On the other hand, the respondents have taken a firm  stand  that  for
the purpose of part III of the Constitution  Article  12  defines  the  term
“the State” to include the Government as well  as  Parliament  of  India  as
well as Government and legislature of the States but  conspicuously  it  has
left out the Judiciary and  hence  the  Judiciary  cannot  be  included  and
treated as ‘the State’ when  it  performs  strictly  judicial  functions  in
contradistinction to administrative powers. It is  also  the  stand  of  the
respondents that personal laws and religious practices are  not  covered  by
the sweep of Article 13(1).  Lastly  it  was  submitted  on  behalf  of  the
respondents that Articles 25  and  26  guarantee  freedom  to  practice  and
propagate  religion  of  choice  as  well  as  to  establish  and   maintain
institutions for religious and charitable purposes with  further  rights  to
manage its own affairs in matters  of  religion;  to  own  and  acquire  all
moveable and immoveable property and administer such property in  accordance
with law. Such rights being in part III of the Constitution itself, must  be
respected and read in harmony with each other and other provisions  in  Part
III. With this stand the respondents have supported their plea that  Article
13 will have no application in respect of personal laws based  on  Shastaras
and Scriptures and also in respect of essential  religious  practices  which
are matters of faith based upon religious  scriptures  that  are  inviolable
for the believers.
49.   Before referring to the  various  judgments  by  Mr.  Shanti  Bhushan,
learned senior counsel for the petitioners and the judgments relied upon  by
Mr.  Rajiv  Dhawan  and  Mr.  Jaideep  Gupta,  senior  advocates   for   the
respondents, the basic facts pleaded by the parties  may  be  noted  with  a
view to find out whether the factual  foundation  has  been  laid  down  and
established for claiming equality with Bordeories  Samaj  which  elects  the
Dolois as per customs. In the pleadings, petitioners have  highlighted  that
in the several kinds of pujas the women  Bordeories  take  active  part  and
hence  are  equally  aware  of  all  the  rituals  and  have  the  necessary
qualification to be treated as equal of men Bordeories for  the  purpose  of
electing the Dolois and also  for  being  a  candidate.  The  reply  of  the
respondents in essence is a complete denial of aforesaid  assertion  with  a
counter plea that women participate only as worshippers and not  as  priests
and they have no say in the matter of management of  the  temple  so  as  to
claim same knowledge and consequent equality with the male Bordeories.  Such
dispute of facts may be resolved only on basis of a  detailed  proper  study
of the customs and practices in the temple  of  Sri  Sri  Maa  Kamakhya  but
there is no authoritative textual commentary or report which may  help  this
Court in coming to a definite  finding  that  women  belonging  to  Bordeori
families are equally adapt in religious or secular matters relating to  that
temple. The relevant scriptures have also not been disclosed to  this  Court
which could have helped in ascertaining whether the basic  religious  tenets
governing the  Shakti  Peethas  in  the  Kamakhya  Temple  would  not  stand
violated by permitting female Bordeories to  elect  or  to  get  elected  as
Dolois. Hence on facts we are not in  a  position  to  come  to  a  definite
finding on the issue of equality for the purpose at hand as claimed  by  the
petitioners. The same logic is equally, if not more  forcefully,  applicable
in the case of claim of the Deories that they are equally  situated  as  the
Bordeories Samaj in the matter of election of Dolois. The  petitioners  have
also not explained at all as to why equality  be  extended  only  to  female
Bordeories and Deories and not to all and sundry.
50.   In the aforesaid situation it is always with  a  heavy  heart  that  a
Writ Court has to deny relief. It may not always be safe for  a  Writ  Court
to decide issues and facts having great impact on the general  public  or  a
large part of it only on the basis of oath against oath. Where the right  is
admitted  and  well  established,  the  Writ  Court  will  not  hesitate  in
implementing such a right especially a fundamental  right.  But  enforcement
of established rights is a different matter than the  establishment  of  the
right itself. When there is a serious dispute between  two  private  parties
as to the expertise, experience and qualification for a particular job,  the
prime task before the Court is first to analyse the facts for  coming  to  a
definite conclusion whether the right stands established and only  when  the
answer is in affirmative, the Court may  have  no  difficulty  in  enforcing
such   an   established   right,   whether   statutory,    fundamental    or
constitutional. In the present  case,  as  indicated  above,  it  is  indeed
difficult for  this  Court  to  come  to  a  definite  conclusion  that  the
petitioners claim to equality for the purpose at hand is  well  established.
Hence we have no option but to deny relief to the petitioners.
51.   Coming to the issues of law, on behalf of the petitioners  Mr.  Shanti
Bhushan placed reliance upon judgment  in  case  of  Sant  Ram  versus  Labh
Singh, 1964 (7) SCR 756 in support of his  submission  that  any  law  which
includes customs, as per Article 13 must be declared void to the  extent  it
is inconsistent with fundamental rights in part  III  of  the  Constitution.
For the same purpose he also placed reliance upon the case of Bhau  Ram  vs.
B. Baijnath Singh, 1962 (Suppl.) 3 SCR 724 and Atam  Prakash  vs.  State  of
Haryana & Ors., (1986) 2 SCC 249.
52.   On the aforesaid issue Mr. Rajiv Dhavan has pointed out a  categorical
distinction that in all those three cases the concerned right  was  a  right
of pre-emption claimed by a land holder on account of vicinage and  not  any
personal or   religious  right  flowing  out  of  religious  scriptures  and
believes.  In Bhau Ram the pre-emption right arose out of a statute  and  it
was found to be against Article 19(1)(f).  Only a reference  was  also  made
to Article 15.  In the case of Atam Prakash also the right  was  based  upon
Punjab Pre-emption Act, 1913.  In the case  of  Sant  Ram  on  which  strong
reliance has been placed, the custom based right of  pre-emption  was  found
invalid on the ground of infringing Article 19(1)(f).
53.   Mr. Dhavan has referred to as many as  13  cases  as  per  list  given
below:
Shirur Math (The Commissioner, Hindu Religious Endowments,  Madras  vs.  Sri
Lakshmindra Thirtha Swamiar of Sri Shirur Mutt.), 1954 SCR 1005

Tilkayat (Tilkayat Shri Govindlalji Maharaj vs. The  State  of  Rajasthan  &
Ors.), 1964 1 SCR 561

Raj Bira Kishore Deb vs. State of Orissa, 1964 7 SCR 32

Seshammal and Others etc. etc. vs. State of Tamil Nadu; 1972, 2 SCC 11

State of Rajasthan vs. Sajjanlal Panjawat, 1974 (1) SCC 500


Pannalal Bansilal Pitti and Ors. vs. State of Andhra Pradesh  &  Anr.,  1996
(2) SCC 498

A.S. Narayana Deekshitulu vs. State of A.P. and Ors.; 1996 9 SCC 548

Sri Adi Visheshwara of Kashi Vishwanath Temple, Varanasi and Ors. vs.  State
of U.P. & Ors. 1997 (4) SCC 606.

Bhuri Nath Vs. State of J & K, 1997 (2) SCC 745.


Sri Kanyaka Parameswari Anna Satram Committee  and  Ors.  vs.  Commissioner,
Hindu Religious & Charitable Endowments Deptt. and Ors; 1999 7 SCC 666

N. Adityam v. Travancore Devaswrom Board (2002) 8 SCC 106

M.P. Gopalkrishnan Nair v. State of Kerala, 2005 (11) SCC 45

Durgah Committee v. Syed Hussain Ali, 1962 (1) SCR 383


54.   It is highlighted that  in  all  these  cases  relating  to  religious
endowment and institution, under challenge were changes in customs that  had
been brought about by Statutes enacted by  the  legislature.   According  to
the respondents while granting right  to  profess,  practice  and  propagate
religion under Article 25(1), by sub-clause (ii) of  the  same  Article  the
Constitution has saved the operation of any existing  law  and  also  vested
power in the State to make  laws  for  “(a) regulating  or  restricting  any
economic, financial, political  or  other  secular  activity  which  may  be
associated with religious practice; and  (b) providing  for  social  welfare
and reform or the throwing open of Hindu religious institutions of a  public
character to all classes and sections of Hindus.”  In  contrast  Article  26
does not envisage any restriction through a statute made  by  the  State  so
far as freedom to manage religious affairs  is  concerned.   But  the  right
under Article 26 has also been made subservient to  public  order,  morality
and health, the same  three  factors  that  also  control  the  right  under
Article 25(1) which has been made subject to the other  provisions  of  Part
III also.
55.   There is no need to go into all the case laws in respect  of  Articles
25 and 26 because by now it  is  well  settled  that  Article  25(2)(a)  and
Article 26(b) guaranteeing the right  to  every  religious  denomination  to
manage its own affairs in matters of religion are  subject  to  and  can  be
controlled by  a  law  contemplated  under  Article  25(2)(b)  as  both  the
articles  are  required  to   be  read  harmoniously.    It  is  also   well
established that social reforms or the need for regulations contemplated  by
Article 25(2) cannot  obliterate  essential  religious  practices  or  their
performances and what would constitute the essential part of a religion  can
be ascertained with reference to the doctrine of that religion  itself.   In
support  of  the  aforesaid  established  propositions,   respondents   have
referred to and relied upon the judgment in the case  of  Shirur  Math  (The
Commissioner Hindu Religious Endowments, Madras vs. Sri Lakshmindra  Thirtha
Swamiar of Sri Shirur Mutt, 1954 SCR 1005 and also upon  Shri  Venkataramana
Devaru and Ors. Vs. State of Mysore and Ors. 1958 (SCR) 895.
56.   An interesting situation arose in the case of Bijoe  Emmanuel  &  Ors.
v. State of Kerala & Ors., (1986) 3 SCC 615. School  children  having  faith
in Jehovah’s Witnesses Sect refused to sing national anthem in their  school
for which  they  were  expelled  on  the  basis  of  executive  instructions
contained in circulars which obliged singing of national anthem in  schools.
 Such action against the children was challenged with the  help  of  defence
based upon Articles 25(1) and 19(1)(a).  In  the  aforesaid  judgment,  this
court upheld the defence of the children on both counts.  In  Paragraphs  19
and 20, Article 25 was considered with a view  to  find  out  the  duty  and
function  of  the  Court  whenever  the  fundamental  right  to  freedom  of
conscience and to profess, practice and propagate religion is invoked.   The
answer given in the  judgment  in  a  concise  and  succinct  manner  is  as
follows:
“….Therefore, whenever the Fundamental Right to freedom  of  conscience  and
to profess, practise and propagate religion is invoked, the  act  complained
of as offending the Fundamental Right must be examined to  discover  whether
such act is to protect public order, morality and health, whether it  is  to
give effect to the other provisions of  Part  III  of  the  Constitution  or
whether it is  authorised  by  a  law  made  to  regulate  or  restrict  any
economic, financial, political or secular activity which may  be  associated
with religious practise or to provide for social welfare and reform.  It  is
the duty and function of the court so to do.  Here  again  as  mentioned  in
connection with Article 19(2) to (6), it must be a law having the  force  of
a statute and not a mere executive or a departmental instruction.”

57.   Respondents have also relied upon judgment of this Court in  the  case
of Pannalal Bansilal Pitti & Ors. v. State of Andhra Pradesh  &  Anr.,  1996
(2) SCC 498. The challenge in this case  was  to  the  constitutionality  of
certain provisions of an Andhra Pradesh  Act  bringing  certain  reforms  in
respect of  Hindu  Religious  Institutions.   At  the  behest  of  adversely
affected   hereditary   trustees   of   Hindu   Religious   and   Charitable
Institutions, this Court considered  the  argument  that  by  confining  the
reforms only to Institutions maintained by Hindus,  the  provisions  of  the
Act had violated Article 14.  Paragraph 12, made it  clear  that  though  an
uniform law may be highly desirable, in a democracy the  legislature  should
have the freedom to bring about gradual progressive changes and the  process
may start where the need is most acute.  This Court  further  held  that  it
would be inexpedient and incorrect to think  that  all  laws  must  be  made
uniformly  applicable  to  all  people  in  one  go.   In  other  words  the
legislature has to be trusted for bringing about necessary  changes  by  way
of reforms in matters relating to faith and  religion  which  at  times  may
include personal laws flowing from religious scriptures.   In  the  case  of
Seshammal & Ors. etc. etc. vs.  State  of  Tamil  Nadu,  1972  (2)  SCC  11,
paragraphs 11 and 12 exhibit a detailed discussion relating  to  the  Agamas
which contain elaborate rules relating to construction of temple as well  as
 consecration  of the idol. It is the religious belief of Hindu  worshippers
that once the image of the deity is consecrated, it is fit to be  worshipped
in accordance with the detailed rituals only  by  a  competent  and  trained
priest.  The religious belief extends to protecting any  defilement  of  the
idol and if the image of the deity is defiled on  account  of  violation  of
any of the rules  relating  to  worship,  purificatory  ceremonies  must  be
performed for restoring the sanctity of the shrine.   The  worshipers  value
the rituals  and  ceremonies  as  a  part  of  Hindu  religious  faith.   In
paragraph 12, the Court concluded that “any State action which  permits  the
defilement or pollution of  the  image  by  the  touch  of  an  Archaka  not
authorised by the Agamas would violently interfere with the religious  faith
and practices of the  Hindu  worshipper  in  a  vital  respect,  and  would,
therefore, be prima facie invalid under Article 25(1) of the Constitution”.
58.   In the aforesaid  judgment  it  was  also  held  that  the  matter  of
appointment of a competent Archaka i.e. the priest is a secular  matter  and
therefore can be regulated by a State action.  However,  the  situation  may
be different and  more  complicated  if,  like  in  the  present  case,  the
Bordouries are the trustees as well as the  priest  and  the  management  of
religious and secular activities  have  been  entrusted  by  the  Bordouries
themselves to their elected representatives, the  Dolois.   The  element  of
appointment stands substituted by the  action  of  the  trustees  themselves
performing the necessary rituals.  This  aspect  need  not  be  pursued  any
further because there is no statute framed by the State so far  to  regulate
even the secular affairs of the temple.  Only when such State  action  takes
place, there may arise an occasion to  examine  the  related  issues  as  to
whether interference with the  custom governing appointment of Dolois  would
amount to regulating only the secular affairs of  the  temple  or  it  shall
obliterate the essential religious practices of the institution.
59.   On considering the rival submissions and the relevant  case  laws,  we
are inclined to agree with the submissions  on  behalf  of  the  respondents
that Article 13(1) applies only  to  such  pre-constitution  laws  including
customs which are inconsistent with  the  provisions  of  Part  III  of  the
Constitution and not to such religious customs and personal laws  which  are
protected by the fundamental rights such as Articles 25 and  26.   In  other
words, religious believes, customs and practices based upon religious  faith
and scriptures cannot be treated to be void.  Religious  freedoms  protected
by Articles 25 and 26 can be curtailed only by  law,  made  by  a  competent
legislature to the permissible extent.   The Court can  surely  examine  and
strike down a State action or law on the grounds  of  Articles  14  and  15.
But in a pluralist society as existing in India, the task  of  carrying  out
reforms affecting religious believes has to be left  in  the  hands  of  the
State.   This line of thinking  is  supported  by  Article  25(2)  which  is
clearly reformist in nature.  It also provides scope for the State to  study
and understand all the  relevant  issues  before  undertaking  the  required
changes and reforms in an area relating to religion which  shall  always  be
sensitive. While performing judicial functions stricto-sensu, the  Judiciary
cannot and should not be equated with other organs of state – the  executive
and the  legislature.  This  also  fits  in  harmony  with  the  concept  of
separation  of  powers  and  spares  the  judiciary   or   the   courts   to
dispassionately examine the  constitutionality  of  State  action  allegedly
curbing or curtailing the fundamental rights including those under  Articles
25 and 26.
60.   On the related issue of the scope of Article 12 and  whether  for  the
purposes of issuance of writ, judicial decisions by  the  judiciary  can  be
included in State action, we are in agreement with the submissions  advanced
by Mr. Rajiv Dhavan that definition of  ‘the  State’  under  Article  12  is
contextual  depending  upon  all  relevant  facts  including  the  concerned
provisions in Part III  of  the  Constitution.  The  definition  is  clearly
inclusive  and  not  exhaustive.   Hence  omission  of  judiciary  when  the
government and Parliament of India as well as government and legislature  of
each of the State has been included is conspicuous but not  conclusive  that
judiciary must be excluded. Relevant case laws cited  by  Mr.  Dhavan  are:-

(i)   Pradeep   Kr.   Biswas    vs.    Indian    Institute    of    Chemical
Biology & Ors., (2002) 5 SCC 111

(ii) Naresh Shridhar Mirajkar And Ors vs.  State  of        Maharashtra  And
Anr, (1966) 3 SCR 744

(iii)       Triveniben vs. State of Gujarat, (1989) 1 SCC 678
(iv)    Poonam vs. Sumit Tanwar, (2010) 4 SCC 460

61.   Hence, in accordance with such judgments  holding  that  judgments  of
High Court and Supreme Court cannot be subjected to  writ  jurisdiction  and
for want of requisite governmental control,  Judiciary  cannot  be  a  State
under Article 12, we also hold that while acting on the  judicial  side  the
courts are not included in the definition of the State. Only when they  deal
with their employees or  act  in  other  matters  purely  in  administrative
capacity, the courts may  fall  within  the  definition  of  the  State  for
attracting writ jurisdiction against their administrative actions  only.  In
our view, such a contextual interpretation  must  be  preferred  because  it
shall promote justice, especially through impartial adjudication in  matters
of  protection  of  fundamental  rights  governed  by  Part   III   of   the
Constitution.
62.   On the aforesaid issue Mr. Shanti Bhushan  has  placed  reliance  upon
the judgment of this Court in Harjinder Singh vs. Punjab  State  Warehousing
Corporation, 2010 (3) SCC 192 and Indira Nehru Gandhi vs.  Raj  Narain  1975
(Suppl.) SCC 1,  The aforesaid judgments do not require  us  to  change  our
view because the issues in both the cases  were  quite  different.   In  the
case of Harjinder Singh this Court while considering the  proper  parameters
for the exercise of writ jurisdiction, held that there was no  justification
in entertaining a new plea raised by the employer for the first time  before
the High  Court.   The  context  in  which  some  minority  views  that  the
judiciary is a State within the meaning of Article 12  of  the  Constitution
were noted in Paragraphs 40 and 41 of the judgment was quite  different  and
such  exercise  was  undertaken  only  to  highlight   that   judiciary   is
essentially one of the three arms of the State and as such it must  also  be
aware of its responsibilities flowing from the Preamble and  Article  38  of
the Constitution. At best, those observations are clearly an obiter.
63.   In order to fully appreciate the implication  of  including  judiciary
within ‘the State’ as defined under Article 12 it may be recapitulated  that
in catena of judgments it has been held that  writ  petitions  will  not  be
entertained against purely private parties.  Further, elaborate  tests  have
been laid down for finding out when an authority can be treated  to  be  the
State for the purposes of Part III of the Constitution.
64.   If the submission of Mr. Shanti Bhushan is  accepted  that  by  simply
hearing a writ petition the Court becomes  a  party  with  same  duties  and
responsibilities as the State, then the rights which  can  be  claimed  only
against the State can also be claimed against all  private  parties  because
judiciary has to hear and decide almost all cases. Such plea is required  to
be noticed  only  for  rejection  otherwise  all  disputes  against  private
persons will have to be  treated  as  a  dispute  against  the  State  also,
because  it  is  primary  responsibility  of  the  judiciary  to  hear   and
adjudicate  all  disputes.  The  judicial  forum   will   then   loose   its
impartiality because petitioners, like in the  present  case,  will  make  a
demand that court itself should act as the State and deliver all reliefs  in
a dispute where the executive or the legislature is not at all  involved  as
a party. For the aforesaid reasons we find no merit in the  contention  that
while acting in judicial capacity the judiciary acts as the State and  hence
it must, as a corollary, entertain a writ petition  against  purely  private
parties only because the matter has been brought before the court.
65.   The writ petitions are, therefore, liable to be dismissed for want  of
merits.  In some of the Writ Petitions,  there  is  a  prayer  to  accord  a
narrow scope to Section 25A of the Act and powers of the Managing  Committee
contemplated thereunder.   Since that relief has  already  been  granted  in
the Appeals, the same  does  not  require  fresh  consideration.  With  this
clarification the writ petitions are dismissed.
66.   Since the Debutter Board is occupying some part  of  the  premises  in
the temple of Sri Sri Maa Kamakhya temple on account of  interim  orders  of
this court,  all  those  interim  orders  are  now  vacated.   The  District
administration is directed to ensure that those premises are vacated by  the
members or representatives of the Debutter Board at the earliest and in  any
case within four weeks.  The premises and other properties of  Sri  Sri  Maa
Kamakhya Temple shall, if required, be placed back within the same  time  in
possession of the Bordeories Samaj through the last elected  Dolois  against
receipts which shall be retained  in  the  office  of  Deputy  Commissioner,
Guwahati. The parties representing the Debutter board are also  directed  to
hand over the vacant and peaceful possession of the concerned  premises  and
other properties of the temple, if any, within four weeks.  There  shall  be
no order as to costs.
67.   Before parting with the order we would like to direct  in  the  larger
interest of Justice, that  like  in  the  past  if  there  is  any  need  of
mediation or intervention of an authority for election  of  Dolois  at  five
years interval etc. or for smooth functioning of affairs of the Sri Sri  Maa
Kamakhya Devalaya, the concerned affected parties can approach the  District
Judge, Kamrup, Guwahati who shall try and settle such  disputes  as  in  the
past, till a specific law is enacted for this purpose. In such  matters  the
decisions of the District Judge shall be of course  subject  to  supervisory
writ jurisdiction of the High Court.

                ..………………..…………………………………….J.
      [FAKKIR MOHAMED IBRAHIM KALIFULLA]



..………………..…………………………………….J.
      [SHIVA KIRTI SINGH]

New Delhi.
July 07, 2015.

ITEM NO.1A               COURT NO.11               SECTION XIV
(For Judgment)
               S U P R E M E  C O U R T  O F  I N D I A
                       RECORD OF PROCEEDINGS

                  Civil Appeal  Nos. 3276-3278/2013

RIJU PRASAD SARMA ETC.ETC.                         Appellant(s)
                                VERSUS
STATE OF ASSAM & ORS.                             Respondent(s)
WITH
W.P.(C) No. 72/2012
W.P.(C) No. 91/2012
W.P.(C) No. 140/201
S.L.P.(C)Nos.18070-18072 @ CC No. 8089-8091/2012

Date : 07/07/2015 These appeals/Petitions were called on for
            Judgment today.

For the parties:  Mr. Arunabh Chowdhury, Adv.
                        Mr. Parthiv Goswami, Adv.
                        Mr. Vaibhav Tomar, Adv.
                        Mr. Karma Dorjee, Adv.
                     Mr. Anupam Lal Das,Adv.

                     Mr. Vikash Singh,Adv.

                     Mr. Hrishikesh Baruah,Adv.

                     Mr. Rameshwar Prasad Goyal,Adv.

                     M/s Corporate Law Group,Adv.

                     Mr. Ajay Bansal, Adv.
                        Mr. Gaurav Yadava, Adv.
                        Mr. Ansar Ahmad Chaudhary,Adv.

                     Mr. Puneet Taneja,Adv.

            Hon'ble Mr. Justice  Shiva Kirti Singh pronounced  the  Judgment
of  the  Bench  comprising  Hon'ble  Mr.  Justice  Fakkir  Mohamed   Ibrahim
Kalifulla and His Lordship.

            Delay condoned.
             The  Civil  Appeals,  Writ  Petitions  and  the  Special  Leave
Petitions are dismissed.


|   (USHA BHARDWAJ)                |          (SAROJ SAINI)            |
|AR-cum-PS                         |COURT MASTER                       |


            (Signed Reportable Judgment is placed on the file)

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