Supreme Court of India
RIJU PRASAD SARMA ETC. ETC.versusSTATE OF ASSAM & ORS.
- Citation
- 2015 INSC 487
- Decided
- 7 July 2015
- Disposal
- Dismissed
Holding
Section 25A confers only a narrow, account‑verification role on the statutory committee and does not curtail the customary rights of the Bordeori families and Dolois, and the 2012 Rules are constitutionally valid.
Summary
The case concerned the management of the Sri Sri Maa Kamakhya Temple in Assam, where the traditional custom allowed only male members of the four Bordeori families to elect the head priest (Doloi), excluding women and Deuris. Petitioners challenged the constitutionality of Section 25A of the Assam State Acquisition of Lands Belonging to Religious or Charitable Institutions of Public Nature Act, 1959 (as amended) and the 2012 Rules made under it, alleging violation of Articles 14, 25 and 26. The Supreme Court held that Section 25A creates a limited statutory committee whose sole function is to verify annuity payments and accounts, and does not affect the customary powers of the Bordeori Samaj and the Dolois. The 2012 Rules were found to be a valid exercise of the State’s rule‑making power and not inconsistent with the Constitution. Consequently, the custom of Bordeori‑only election of Dolois was upheld, and the appeals and writ petitions were dismissed.
Issues considered
- The scope and constitutional validity of Section 25A of the Assam State Acquisition of Lands Act, 1959.
- The validity of the 2012 Rules framing the electoral college for the managing committee, particularly the exclusion of Deuris and female Bordeoris.
- Whether the custom of restricting the election of Dolois to male Bordeori members violates Articles 14, 25 and 26 of the Constitution.
- Whether Article 13(1) applies to religious customs and personal laws.
- Whether the judiciary can be treated as "the State" under Article 12 for writ jurisdiction.
- The locus standi of the appellants claiming to represent the deity.
Legislation cited
Subjects
religious endowmentcustomary lawSection 25AArticle 14Article 25Article 26Kamakhya TempleDoloi electionBordeori SamajDeuristatutory committeewrit jurisdictionArticle 12
Judgment
[2015) 11 S.C.R. 599
RIJU PRASAD SARMA ETC. ETC. A
v.
STATE OF ASSAM & ORS.
(Civil Appeal Nos. 3276-3278 of 2013)
B
JULY07,2015
[FAKKIR MOHAMED· IBRAHIM KALIFULLA AND
SHIVA KIRTI SINGH, JJ.]
Trust and Charities: c
Assam State Acquisition of Lands Belonging to
Religious or Charitable Institutions of Public Nature Act, 1959:
s. 25A - Scope of - Public religious endownment
relating to Maa Kamakhya Temple - Custom pertaining to a D
temple where women barred from voting to elect thff temple
priest - Challenge to - Single Judge upheld the vires of s.
25A - Division Bench held thats. 25A has very limited scope;
and on the basis of the purported customary practices, the
electorate for the election to the post of Doloi (Head Priest) E
should be confined only to the male members of the four
Bordeurie families - Interference with - Held: Not called for
• - Division Bench rightly upheld the right of the trustees-
Bordeories, their elected agent, the Dolois to take care of F
management of secular as well as religious affairs of the
Kamakhya Temple - Powers of Bordeories and Dolois has
not been taken away or adversely affected by the Act -
Statutory Comfflittee uls.25A is concerned only with the
annuity payable or paid under the Act to trye Head of the G
Institution and not with its ownership or management- There
is no legislation to exercise restraints in matters essentially
religious - 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 H
599
600 SUPREME COURT REPORTS [2015] 11 S.C.R.
A the power to elect Dolois - Custom of electing the Dolois
was attempted to be changed by the Kamakhya Debutter
Regulation but such Regulation does not have acceptance
of the Bordeori Samaj - Regulation, 1998 is not a valid
instrument and has no sanction of law for depriving the
8 customary rights of the Bordeori Samaj to elect the Dolois.
s. 25A - Assam State Acquisition of Lands belonging
to Religious or Charitable Institutions of Public Nature
(Election of Managing Committee of Sri Sri Maa Kamakhya
C Temple) Rules, 2012 - Validity of - Challenge to, on the
ground that though the electoral college for the post of eJ?-
officio Secretary to the Managing Committee includes
"deuris/Bordeuris, but the said Rules exclude the Deuris
(both male and female) and the female bordeuris of their
D voting rights as well as the right to contest- Held: CJ (b) ins.
25A gives a choice or option for electing the ex-officio
secretary either by Dearies or Bordeories depending upon
the facts of a particular religious or charitable institution -
Rules of 2012 seek to provide for a Managing Committee in
E terms of s. 25A only for Maa Kamakhya temple - State
Government in the context of this particular institution has
recognized only Bordeories - Other Devotees, Shebaits and
Dearies, have a right to participate in. the election of other •
F five members of the Managing Committee - Thus, the Rules
supplem~nt the provisions of the Act and do not run counter
to the intention of the lecislature- Such Rules must be treated
as part of the Act and in absence of any conflict, the Rules
only explain the real intention of the legislEfture in using the
G sign of slash (/) between the words Dearies and Bordeories
in Cl (b) of s. 25A.
s. 25A - Nanan Bordeuris filing writ petition regarding
the validity of s. 25A and the rights of the shebaits - Held:
H Bordeori families enjoy a distinct status and monopoly in
RIJU PRASAD SARMA ETC. ETC. v. STATE OF ASSAM 601
&ORS.
matters connected with the religious as well as secular A
management of Maa Kamakhya temple and hence, the claim
of equality on behalf of Deoris associated w11h the Nanan
Devalayas or even with Maa Kamakhya Temple cannot be
accepted - State cannot be blamed for creating two electoral
colleges and confining election rolls for the post of ex-offieio B
secretary only to the members of the Bordeori families
including females - Alleged discrimination vis-a-vis Deoris
has no foundation - Plea that Rules must cover not only the.
temple and endowment of Maa Kamakhya Devalaya but the
entire complex including Nanan Devalayas has no support C
or basis in law - Thus, their exclusion by virtue of Rules
notified by the State Government is not unconstitutional.
Actual election of. Dolois as also electoral college
prepared for that election - Challenge to - On the ground of D
exclusion of women Bordeories and other Deuris, both male
and fem{Jle - Held: Custom confining the right to vote to only
the male Bordeuris to the exclusion of Deuris (both male
and female) and the female Bordeuris is not in existence on
account of any State action - Maa Kamakhya Temple is an E
ancient religious institution of public nature and occupies a
place of pride among Hincfu temples - Monopolistic control
of Bordeories over the religious and secular spheres· of the
temple had been resented and challenged by the other F
priests including Dearies Of Nanan Devalayas bui without
success -Appellants have taken resort to a proceeding u/s.
92 CPC before the District Judge - There is no authoritative
textual commentary or report to help this Court in coming to
a definite finding that women belonging to Bordeori families G
·are equally a{:lapt in religious or secular matters relating to
that temple - Relevant scriptures have also not been
disclosed to this Court - 1hus, there cannot be a definite
finding on the issue of equality- Constitution of India, 1950.
H
602 SUPREME COURT REPORTS [2015] 11 S.C.R.
A Constitution of/ndia, 1950:
Arts. 25(2)(a) and 26(b)-Religious endownments and
religious institutions - Right to manage affairs in the matter ,
of religion - Held: Social reforms or the need for regulations
s cpntemplated by_JJ,rt. 25(2) cannot obliterate essential
religious practices or their performances - Essential part of
a religion can be ascertained with reference to the doctrine
of that religion itself- On facts, Bordouries are the trustees
as well as the priest and they have entrusted the
C management of religious and secular activities to their
elected representatives, the Dolois - Element of appointment
stands substituted by the action of the trustees themselves-
There is no statute framed by the State so far to regulate
even the secular affairs of the temple - Only when such State
D action takes place, examination of whether interference with
the custom governing appointment of Dolois would amount
to regulating only the secular affairs of the temple or it would
obliterate the essential religious practices would arise.
E Arts. 13(1), 25(2)(a) and 26(b) - Personal laws and
religious practice - Whether covered by Art. 13(1) - Held:
Article 13(1) applies only to such pre-constitution laws
including customs inconsistent with the provisions of Part Ill
of the Constitution and not to religious customs and personal
F laws protected by the fundamental rights such as Arts. 25
and 26 - Religious freedoms protected by Arts. 25 and 26
can be curtailed only by law, made by a competent legislature
to the permissible extent-Art. 25(2) provides scope for the
State to study and understand all the relevant issues before
G undertaking the changes and reforms relating to religion
which are sensitive - Court can examine and strike down a
State action or law on the grounds of Arts. 14 and 15.
Article 12- Definition of State under - Courts, if included
H in the definition of State - For purposes of issuance of writ, if
RIJU PRASAD SARMA ETC. ETC. v. STATE OF ASSAM 603
&ORS.
judicial decisions by the judiciary can be included in State A
action - Held: Judiciary cannot be a State u!Art. 12- 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 B
for attracting writ jurisdiction against their administrative
actions only - It cannot be said 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 C
court.
Locus standi - Public religious endownment relating
to Maa Kamakhya Temple - Locus standi of administrator
of Kamakhya Debuttar Board-appellantto represent the deity D
of the temple - Single Judge upheld the locus standi of the
appellants - Division Bench held that the Kamakf)ya
Debutter Regulations/Board has no sanctity in Jaw - On
appeal, held: Writ petitions before the Single Judge or the
Division Bench claimed rights in the petitioners as E
administrator or as lawful representative of religious
endowment or the deity and were not in the nature of PIL - In
view of strong and categorical denial made by respondents
to the right of the Debutter Board to represent the deity of F
temple in writ petition, the Division Bench could not have
ignored the issue of rights and status - On being called upon
through pleadings, it was necessary for the Division Bench
to decide the locus of appellants representing the Debutter
Board - It cannot be said that the Division Bench erred in G
deciding the locus of the Debutter Board represented by the
appellants.
Dismissing.the appeals and the writ p"etitions, the
Court
H
604 SUPREME COURT REPORTS (2015] 11 S.C.R.
A HELD: 1.1 The Division Bench rightly examined the
width and scope of the 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
B of management of secular as well as religious affairs of
the Kamakhya Temple. The powers of the Bordeories
and Dolois has not been taken away or adversely
affected by the Assam State Acquisition of Lands
Belonging to Religious or Charitable Institutions of
C Public Nature Act, 1959 as it stood earlier or even after
Section 25A was inserted. The statutory power of the
Committee under Section 25A is quite limited to
verification of the proper maintenance of accounts of the
Institution concerned and that too relating only to
0
utilization of the annuity and. other government grants
under the Act, if any. Favouring the statutory Committee
with powers to manag~ or oversee even only the secular
aspect of management of the Institution will not only run
E counter to the objects and reasons for the Amending Act
of 1987, it would create an undesirable diarchy when the
Act does not divest the Bordeories and Dolois of their
customary powers, roles and rights. Hence, Section 25A
postulates a Committee with limited role - only to
F 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. The said inference
is in view of peculiar features of the Act dealing mainly
G with acquisition of lands of certain types of Institutions.
Within the constitutional scheme guaranteeing freedom
of religion, the legislature has to exercise restraints in
matters essentially religious but still it ~as ample powers
to legislate for better management of any religious or
H charitable Institution of public nature. However, in the
RIJU PRASAD SARMA ETC. ETC. v. STATE OF ASSAM 605
&ORS.
instant case, there is no such legislation. [Paras 27 - 29] A
[637-D-H; 638-A-G]
1.2 There has been no interruption in the essential
custom whereunder the Bordeori Samaj consisting of
all adult males of Bordeori families enjoys exclusive B
monopoly over the power to elect Dolois. There is no
merit in the plea 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 C
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 D
Deb utter Regulation but such Regulation does not have
acceptance of the Bordeori Samaj. [Para 30] [639-8-E]
1.3 Kamakhya Debutter Regulation, 1998 is not a
valid instrument and has no sanction of law for depriving E
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 CPC for F
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, the matter is G
left· 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 H
25A of the Act provides for a Committee having only a
606 SUPREME COURT REPORTS [2015) 11 S.C.R.
A narrow and limited role, there is no merit in the appeals
and no scope to interfere with the impugned judgment
of the Division Bench. This order, however, would not
prejudice the case of the appellants and similarly placed
persons in the proceeding under Section 92 CPC
B pending before the District Judge. [Para 31] [639-F-H;
640-A-C]
1.4 The rules "Assam State Acquisition of Lands
Belonging to Religious or Charitable Institution of Public
C Nature (Election of managing committee of Sri Sri Maa ·
Kamakhya Temple) Rules, 2012 are pursuant to order of
this Court for carrying out the elections of ex-officio
secretary and elected members of the managing
committee as contemplated by Section 25A in respect
D 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
E 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, Guwahati. Bordeories mean the devotees
F constituting the traditional Bordeori Samaj of the temple.
There are two electoral colleges u/r. 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
G of the 'Devotees'. 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
H on the basis of such tentative electoral rolls are to be
RIJU PRASAD SARl\i1A ETC. ETC. v. STATE OF ASSAM 607 .
&ORS.
entertained from the Bordeories only. The traditional list A
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. Deuries and priests of
other Devalayas are also not included in this electoral B
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. [Para 33, 34]
[641-G-H; 642-A-H]
c
1.5 The Bordeori familie)> 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 D
with Maa Kamakhya Temple does not have any merit. In
view thereof, 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 E
discrimination vis-a-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 F
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 G
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 H
608 SUPREME COURT REPORTS . (2015] 11 S.C.R.
A main temple of Sri Sri Maa Kamakhya. It is discretionary
power under Section 25A under which the State may
choose not to have any Managing Committee separately
for the Nanan Devalayas. [Para 36) [644-B-G)
B 1.6 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. It is not the
· case of petitioners that all the institutions in the State
C have both Deories and Bordeories. In that view, 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. [Para 39) [646-D-E]
D 1. 7 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. Clearly the tas.k of
defining or explaining the terms 'Deories' or 'Bordeories'
E 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
F 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
G members of the Managing Committee. The Rules of2012
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
H to make modifications. Such Rules must be treated as
part of the Act and in absence of any conflict it has to be
RIJU PRASAD SARMA ETC. ETC. v. STATE OF ASSAM 609
&ORS.
held that the Rules of 2012 only explain the real intention A
of the legislature in using the sign of slash (/) between
the words Deories and the Bordeories in Clause (b) of .
the Section 25A. [Para 40] [646-G-H; 647-A-D]
1.8 The impugned custom confining the right to vote B
to only the male Bordeuris to the exclusion of Deuris
(both male and female) and the female Bordeuris is not
in existence on account of any State action. The temple
of Sri Sri Maa Kamakhya is an ancient religious
institution of public nature and occupies a place of pride C
among Hindu temples, especially as a Shakti Peeth. 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. The D
appellants have now taken resort to a proceeding u/s.
92 CPC which is pending before the District Judge. The
appellants and the petitioners evidently spared no efforts
to break the power and control of the Bordeories and
the Dolois but so far without success. [Para 42] [648-B- E
F]
1.9 The dispute of treating women Bordeories equal
of men Bordeories for the purpose of electing the Dolois
· may be resolved only on basis of a detailed proper study F
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 G
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 H
Temple would not stand violated by permitting female
610 SUPREME COURT REPORTS [2015] 11 S.C.R.
A Bordeories to elect or to get elected as Dolois. Hence,
on facts there cannot be a definite finding on the issue
of equality. 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
B 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. [Para 49] [652-F-H; 653-A-C]
C 1.10 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 would not hesitate in
D implementing s·uch 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
E particular job, the prime task before the Court is first to
analyse the facts for coming to a definite conclusion
wheth!'!r the right stands established and only when the
answer is in affirmative, the Court may have no difficulty
F in enforcing such an established right, whether
statutory, fundamental or constitutional. In the instant
case, 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, there
G is no option but to deny relief to the petitioners. [Para
50] [653-D-G]
1.11 Article 25(2)(a) and 26(b) guaranteeing the right
to every religious denomination to manage its own affairs
H in matters of religion are subject to and can be controlled
RIJU PRASAD SARMA ETC. ETC. v. STATE OF ASSAM 611
&ORS.
by a law contemplated under Article 25(2)(b) as both.the A
Articles are required to be read harmoniously. The 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 B
ascertained with reference to the doctrine of that religion
itself. [Para 55] [656-C-D]
1.12 The matter of appointment of a competent
priest is a secular matter and therefore can be regulated C.
by a State action. However, the situation may be different
and more complicated if, like in the instant 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 D
elected representatives, the Dolois. The element of
appointment stands substituted by the action of the
trustees themselves performing the necessary ritl!als.
There is no statute framed by the State so far to regulate
even the secular affairs of the temple. Only when such E
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 F
temple or it shall obliterate the essential religious
practices of the institution. [Para 58] [658-F-H; 659-A-B]
1.13 Article 13(1) applies only to such pre-
constitution laws including customs which are
inconsistent with the provisions of Part Ill of the G
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 H
612 SUPREME COURT REPORTS [2015] 11 S.C.R.
A 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 .
B Articles 14 and 15. But in 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
C 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
0
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
E curtailing the fundamental rights including those under
Articles 25 and 26. [Para 59] [659-C-H; 660-A]
Baroda Kanta vs. Bangshi Nath AIR 1940 Cal. 269;
Sant Ram vs. Labh Singh 1964 (7) SCR 756;
Bhau Ram vs. B. Baijnath Singh 1962 (Suppl.) 3
F SCR 724; Atam Prakash vs. State of Haryana &
Ors. (1986) 2 SCC 249: 1986 (1) SCR 399; Shirur
Math (The Commissioner, Hindu Religious
Endowments, Madras vs. Sri Lakshmindra Thirtha
Swamiar of Sri Shirur Mutt.) 1954 SCR 1005;
G
Ti/kayat (Tilkayat Shri Govindlalji Maharaj vs. The
State of Rajasthan & Ors.) 19641SCR561; Raj
Bira Kishore Deb vs. State ofOrissa 1964 7 SCR
32; State ofRajasthan vs. Sajjanlal Panjawat1974
H (1) SCC 500: 1974 (2) SCR 741; Pannalal
RIJU PRASAD SARMA ETC. ETC. v. STATE OF ASSAM 613·' .
&ORS ..
Bansila/ Pitti and Ors. vs. State of Andhra Pradesh A
&Anr. 1996 (2) sec 498: 1996 (1) SCR 603; A.S.
Narayana Deekshitulu vs. State of A.P and
Ors.1996 9 SCC 548: 1996 (3) SCR 543; Sri Adi
. Visheshwara of Kashi Vishwa!"ath Temple,
Varanasi and Ors. vs. State of U.P & Ors. 1997 B
(4) sec 606: 1997 (2) SCR 1086; Bhuri Nath
vs. State of J & K 1997 (2) SCC 745: 1997 (1)
SCR 138; Sri Kanyaka Parameswari Anna Sa tram
Committee and Ors. vs. Commissioner, Hindu
Re1igious & Charitable Endowments Deptt. and c
Ors; 1999 7 SCC 666; N. Adityam v. Travancore
Devaswrom Board (2002) 8 SCC 106: 2002 (3)
Suppl. SCR 76; M.P Gopalkrishnan Nair vs. State
of Kera/a 2005 (11) SCC 45: 2005 (3) SCR 712;
D
Durgah Committee vs. Syed Hussain Ali 1962 (1)
SCR 383; Shri Venkataramana Devaru and Ors.
v. State of Mysore and Ors. 1958 (SCR) 895; Bijoe
Emmanuel & Ors. vs. State of Kera/a &Ors. (1986)
3 SCC 615: 1986 (3) SCR 518- referred to. E
Seshamma/ & Ors. etc. etc. vs. State of Tamil
Nadu 1972 (2) sec 11: 1972 (3) SCR 815 -
. distinguished.
1.14 The definition of 'the State' under Article 12 is F
contextual depending upon all relevant facts including
the concerned provisions in Part Ill 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 G
of each of the State has been included is conspicuous
but not conclusive that judiciary must be excluded .
. 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 H
614 SUPREME COURT REPORTS [2015] 11 S.C.R.
A governmental control, Judiciary cannot be a State under
Article 12, it is held 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
B fall within the definition of the State for attracting writ
jurisdiction against their administrative actions only.
Such a contextual interpretation must be preferred
because it shall promote justice, especially through
impartial adjudication in matters of protection of
C fundamental rights governed by Part Ill of the
Constitution. [Para 60, 61] [660-C, F-H; 661-A]
1.15 If the submission is accepted that by simply
hearing a writ petition the Court becomes a party with
D 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 rejected otherwise all disputes against private
E persons would 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 would then loose its impartiality because the
F . instant petitioners, would 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. Thus, there is no merit in the contention that
while acting in judicial capacity the judiciary acts as the
G 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. [Para 64] [661-
H; 662-A-D]
Pradeep Kr. Biswas vs. Indian Institute of
H Chemical Biology & Ors. (2002) 5 SCC 111 : 2002
RIJU PRASAD SARMA ETC. ETC. v. STATE OF ASSAM 615
&ORS.
(3) SCR 100; Naresh Shridhar Mirajkar And Ors A
vs. State of Maharashtra And Anr. (1966) 3 SCR
7 44; Triveniben vs. State of Gujarat (1989) 1 SCC
678: 1989 (1) SCR 509; Poonam vs. Sumit
Tanwar(2010) 4 SCC 460: 2010 (3) SCR 557-
relied on. B
Harjinder Singh vs. Punjab State Warehousing
Corporation 2010 (3) SCC 192: 2010 (1) SCR
591; Indira Nehru Gandhi vs. Raj Narain 1975
(Suppl.) SCC 1: 1976 SCR 347 - distinguished.
c
Case Law Reference
AIR 1940 Cal. 269 referred to Para 14
1964 (7) SCR 756 referred to Para 51
1962 (Suppl.) 3 SCR 724 referred to Para 51 D
1986 (1) SCR 399 referred to Para 51
1954 SCR 1005 I
referred to Para 53
19641 SCR 561 referred to Para 53
1964 7 SCR 32 referred to Para 53
E
1996 (1) SCR 603 referred to Para 53
1996 (3) SCR 543 referred to Para 53
1997 (2) SCR1086 referred to Para 53
1997 (1) SCR 138 referred to Para 53
F·
1999 1 sec 666 referred to Para 53
2002 (3) Suppl. SCR 76 referred to Para 53
2005 (3) SCR 712 referred to Para 53
1962 (1) SCR 383 referred to Para 53
1954 SCR 1005 referred to Para 55 G
1958 (SCR) 895 referred to Para 55
1986 (3) SCR 518 referred to Para 56
1972 (3) SCR 815 distinguished. Para 57
2002 (3) SCR 100 relied on. Para 60 H
616 SUPREME COURT REPORTS [2015] 11 S.C.R.
A (1966) 3 SCR 744 relied on. Para 60
1989 (1) SCR 509 relied on. Para 60
2010 (3) SCR 557 relied on. Para 60
2010 (1) SCR 591 distinguished Para 62
B 1976 SCR 347 distinguished Para 62
CIVILAPPELLATE JURISDICTION : Civil Appeal Nos.
3276-3278 of 2013
WITH
c WP. (C) No. 72/2012
W.P. (C) No. 91/2012
W.P. (C) No. 140/2012
S.L.P. (C) No.18070-18072/2015
D
Shanti Bhushan, Jayant Bhushan, Bhasker P. Gupta, Dr.
Rajeev Dhavan, Jaideep Gupta Parthiv K. Goswami, Vaibhav
Tamar, Karma Dorjee, Gainilung Panmei, Sanjeeb Kr. Deka,
Anirudh Singh,Anupam Lal Das,Arunabh Choudhury, Kartik
E Seth, Diksha Rai, Vikash Singh, S. Hari Haran, Hrishikesh
Baruah, Nishant Das, lshant Das, Manish Goswami,
Rameshwar Prasad Goyal, Avijit Roy, Kankana Arandhara,
Apeksha Sharan (for Corporate Law Group), Ajay Bansal,
Ansar Ahmad Chaudhary, Gaurav Yadava, Puneet Taneja for
F the appearing parties.
The Judgment of the Court was delivered by
SHIVA KIRTI SINGH, J. 1. ThEl Civil Appeals arise out
G 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
H W.A.Nos.311 and 312 of 2004 preferred by the appellants who
RIJU PRASAD SARMA ETC. ETC. v. STATE OF ASSAM 617
&ORS. [SHIVA KIRTI SINGH, J.]
confined the scope of the appeals only to the width and scope A
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 B
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 C
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 D
25.10.2011 which is under challenge in the principal matter-.
Civil Appeal Nos.3276-3278 of 2013 filed by Sri Riju Prasad
Sa rm a & Ors. claiming to represent The Kamakhya Debutter
Board.
2. Along with the Civil Appeals three writ petitions bearing E
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 25Aof the Act or the Rules framed
thereunder or to the actual election of Dolois held on F
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 .............. of
2015[CC 8089-8091/2012] which have been filed along with G
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 H
618 SUPREME COURT REPORTS [2015] 11 S.C.R.
A convenience the facts have been noted from the records of
civil appeals except where indicated otherwise.
3. It is necessary to have a look at the nature of the three
writ petitions decided by the learned single judge. But before
B 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·
c 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
D 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 ;;ilso known
E inAssames as "Nanan Devalayas". The families of the
priests of the main temple call themseives "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
F 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
Braham in and non Brahm in persons directly connected
to the performance of any kind of duty associated with ·
G
the temple complex.
There are before this Hon'ble Court four proceedings
raising different aspects of the matter.
1. The principal matter is C.A. No.3276-3278/2013 filed
H
RIJUPRASADSARMAETC.ETC. v. STATEOFASSAM 619
& ORS. [SHIVA KIRT! SINGH, J.]
by Shri Riju Prasad Sarma & Ors. (representing the A
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. ln the said
matter, the Learned Single Judge had upheld the locus
standi of the appellants on the ground that it does not lie B
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 oflaw. (pg.216). The .C
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
0
preferred a l!mited 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· E
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 2.5A, as would be apparent on its face,
only engrafts the enjoinment of the legislature for the F
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 G
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
anymore. H
620 SUPREME COURT REPORTS [2015] 11 S.C.R.
A 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 Deb utter Regulations/
B 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
c 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
D
purported customary practices that the electorate. for the
said election to the post of Doloi shouli:t be confined only
to the male members of the four Bordeurie families
(pag.89-90).
E 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
F two Dolois has been given exclusive monopoly in
religious affairs by th.is 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
G 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
H
RIJU PRASAD SARMAETC. ETC. v. STATE OF ASSAM · 621
& ORS. [SHIVAKIRTI SINGH, J.]
administration of non-ritual activities other than those A
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
8
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 beforethe Ld. District Judge, Kamrup (Metro) under
Section 92(g) C.P.C. with an application seeking leave c
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
81hAugust, 2014.
2. Writ Petition (C) No.72 of 2012 filed by Shri Shailen D
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
E
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 F
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 G
only before this Court.
3. WritPetition (C) No. 140 of 2012 filed by Shri Shailen
Sharma and others challenging the actual election of
Delois held on 16.11.2011 on the ground that confining
H
622 SUPREME COURT REPORTS (2015] 11 S.C.R.
A 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. Wr.it Petition No. 91 of 2012 filed by Nanan Bordeuris
B
regarding the validity of Section 25A of the said Act and
the rights of the shebaits."
4. From the above introduction furnished by the
appellants, it is evident that according to the appellants the
C 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
D 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
E priest families vis-a-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
F 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 th rough creation
of Debutter Board in 1998.· The stand of the appellants is that
essential religious rites of Maa Kamakhya Temple is still left in
G 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.
H
RIJU PRASAD SARMA ETC. ETC. v. STATE OF ASSAM 623
& ORS. [SHIVA KIRTI SINGH, J.)
5. On behalf of the appellants, as an alternative it was A
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. B
· 6. 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 C
has to be given a narrow meaning in the contextoftheActand
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 D
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 after its attempt to get· E
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. F
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.
7. Dr. Rajeev Dhavan, learned senior counsel for the G
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 H
624 SUPREME COURT REPORTS (2015) 11 S.C.R.
A 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
B 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. ln
Paragraph 34 the appellant Riju Pra~ad Sarma made a
specific prayer thatthe annuity which is payable under the Act
C be paid to the Maa Kamakhya Debutter Board.
8. 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.
D The writ petition No. 923 of 2005 filed by appellant Riju Prasad
Sa rm a 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
E 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
F 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
G to take over the religious endowment of Maa Kamakhya and
rep resent the deity.
9. On behalf of the appellants, a number of judgments
have been cited in course of reply to the aforesaid stand of the
H respondents in respect of locus/status. No doubt, the concept
RIJU PRASAD SARMA ETC. ETC. v. STATE OF ASSAM 625
& ORS. [SHIVA KIRT! SINGH, J.]
of locus was seriously diluted in the majority of cited cases A
which were noticeably in the nature of Public Interest Litigation.·
But the writ petitions filed before the learned single jud.ge or
even before the Division Bench claimed rights in the petitioneis
as administrator or as lawful representative of religious
. endowment or the.deity and were not in the nature of PIL. In B
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 C
forthe 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 D
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.
10. In view of above, the foremost contention of appellants E
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 F
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.
G
11. 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.
H
626 SUPREME COURT REPORTS [2015] 11 S.C.R.
A 12. 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
B 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
C 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
D 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
E 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
F 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
AD. which used the expression 'five pandas of Kamakhya
Dham'. Decrees in old suits of the year 1838 and 1855 were
G 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
H later became extinct. ·The judgment also indicates that
RIJU PRASAD SARMA ETC. ETC. v. STATE OF ASSAM 627
&ORS. [SHIVA KIRTI SINGH, J.]
descendents of the five principal and leading families of priests A
who were originally appointed for the Kamakhya temple were
also sometimes called collectively as five Pandas and
sometimes as five Deoris.
13. It is interesting to note thatin the 1931 judgmentthe B
Civil Court looked into an old decree of the Sadar Diwani
Ada lat 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 C
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 D
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 E
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:
F
"(1) Thatthe office of the Doloi is ncit a hereditary office,
but elective and the right of election is in the hands of the ·
Bordeoris;
(2) That as the Government will no longer take any steps, G
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;
(3) That the power of guarding is clearly a power some
one must exercise, as it would be in the highest degree H
628 SUPREME COURT REPORTS (2015] 11 S.C.R.
A wrong to have left the uncontrolled management to the
Dolois.
(4) Thatthe 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
B
that description;
(5) 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
c speak, their (the Bordoris') agents in that matter."
14. 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 .
o 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
E · 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
F 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
G 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
H grant or endowment relating to that institution which is required
to be determined in the prescribed manner. Bes,ides
RIJU PRASAD SARMA ETC. ETC. v. STATE OF ASSAM 629
& ORS. [SHIVA KIRT! SINGH, J.]
containing provisions for appeal, as per Section 18 the Head A
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 B
Kamakhya including the Maa Kamakhya Temple.
15. The Act was amended by Assam Act No.XIX of 1987
which received the assent of the Governor on 19.10.1987. Inter
alia, th is Amendment Act intr9duced a new Section 25Awhich C
reads as follows :
"25.A. Constitution of the Managing Committee.-For
each of the Religious or Charitable Institution of Public
Nature, a Managing Committee shall be constituted with D
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-divi.sional Officer
or his nominee - President. E
(b) An Ex-Officio Secretary to be elected by the Deuries/
Bor Deuries.
(c) --e-ffive) elected members - to be elected from
amongst the devotees. F
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 G
under appeal as follows :
"111. The. statement of objects and reasons of the
Amending Act discloses the following impelling factors
therefor:- H ·
630 SUPREME COURT REPORTS [2015] 11 S.C.R.
A 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;
B 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
C verify and audit the accounts to the satisfaction of the
concerned authority."
16. 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
D 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.3118of1994 before the
Guwahati High Court.
E
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
F priests/Dearies 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
G 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
. H described as t~mples' complex.
RIJU PRASAD SARMAETC. ETC. v. STATE OF ASSAM 631
& ORS. [SHIVA KIRTI SINGH, J.]
18. The Board as defined under the Regulation means A
the general Board of members of Kamakhya De butter 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 R·egulation B
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 C
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 D
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 E
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 F
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.
I
19. In that Order the District Judge has noted that there G
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_
rior there was any term of office of managing committee fixed
in Constitution. Such defacto Committee also challenged the H
632 SUPREME COURT REPORTS [2015) 1'1 S.C.R.
A 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
B 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
C therefore, did not accept the Constitution as a vcilid document.
On the issue of jurisdiction of the District Judge, the order
reveals that the entire records relating to the management of
the Kamakhya tempie disclosed that earlier also on many
D 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
E 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
f 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 ihe then Dolois preferred writ
G petition No.6221of1998 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 vi res 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.
H It also noted the stand on behalf of the then Dolois who had
RIJU PRASAD SARMA ETC. ETC. v. STATE OF ASSAM 633
& ORS. [SHIVA KIRTI SINGH, J.]
preferred Writ Petition No.6221 of 1998, that there were no A
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 B
to approach the Gou rt 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 C
- do so because the vi res 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.6221of1998was dismissed as infructuous.
D
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 E
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, F
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 G
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 WP.(C)No.5385
of 2000 before the High Court. By an order dated 25.9.2000, H
634 SUPREME COURT REPORTS [2015] 11 S.C.R.
A a learned Single Judge issued rule and stayed the operation
of order dated 15.9.2000. However an interim arrangement
was made oy 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
B 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 Deb utter Board and Sri
C 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
D 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.
E 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
F 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
G respondents therein not to use the main Bharal, existing office
of the K,amakhya Debutter Board and not to interfere with the
functioning of"Peethas" of the "Jal Kuber" and "Ohan Kuber"
and also religious functions of the Kamakhya Temple. By
another interim order passed in that case on 16.10.2003, the
H Kamakhya Debutter Board and its office bearers were
RIJU PRASAD SARMA ETC. ETC. v. STATE OF ASSAM 635
& ORS. [SHIVAKIRTI SINGH, J.]
restrained from preparing draft voters list and also from holding A
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. B
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 C
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 D
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 E
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 F
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:
G
" ....... 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 H
636 SUPREME COURT REPORTS [2015] 11 S.C.R.
A Bhattacharyya, learned Senior Counse' 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
B 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
• c also disowned the Board, yet surprisingly no attempt was
made either by the Deputy Commissioner to derecognize
the Deb utter 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
D
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
E 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 Ol'l'the
asking of petitioners in their capacity as Shebaits of the
F 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 Deb utter Board as Head of the institution and
in such a situation there was no need for even the private
G respondents to challenge the authority of the Deb utter 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
H court till then.
RIJU PRASAD SARMA ETC. ETC. v. STATE OF ASSAM 637
& ORS. [SHIVA KIRT! SINGH, J.]
26. It appears that at least for a brief period the District A
Judge, the District Administration as well as theHigh 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 B
as secular activities of the Kamakhya Temple, a public religious
institution. · ·
27. The scope and amplitude of Section 25A was wrongly
not t~uched upon by the learned Single Judge. The earlier C
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-a-vis the customary rights of
Bordeori Samaj and its elected representatives, the Dolois. D
The Division Bench, therefore rightly examined the width and
scope of powers of customary trustees - The Bordeories and
their elected agent, the Dolois c.onsidering all the relevant
materials and custom, it committed no error in upholding their
right to take care of management of secular as well as r~ligious E
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 F
and objects of introducing the statutory Committee under
Section 25Aas 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 G
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 H
638 SUPREME COURT REPORTS [2015) 11 S.C.R.
A - " ..... and verification of the proper maintenance of Institution."
in Section 25A have to be understood in the background of all
other provisions·oftheAct 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
B 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
C 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
0
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.
E 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
F · 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.
G 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
H the customary rights of the Dolois in the religious matters and
in secular matters its provisions promote democracy to the
RIJU PRASAD SARMA ET.C. ETC. v. STATE OF ASSAM 639
& ORS. [SHIVAKIRTI SINGH, J.]
satisfaction of large number of concerned persons including A
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 where under the Bordeori B
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 so:rc; Eort of Constitution in 1970 C
and/or 1973 such plea is vagu'2 and not backed by any
acceptable evidence. So far Dolr11s 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
0
a group of persons who claimed to have formulated and
adopted the Kamakhya Debutter Regulation but such
Regulation does not have accGptance of the Bordeori Samaj
and the dispute on accuunt of the Kamakhya Debutter
Regulation is now beb e ~his court by way of the present E
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 F
instrument and has no sanction of law for depriving the
custorriary 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 G
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 H
640 SUPREME COURT REPOHTS [2015) 11 S.C.R.
A 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
B 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
C 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
D 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
E directly before this Court. In the SLP preferred by the
appellan~s. 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
F the official respondents continued under an obligation not to
use the main Sharai 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
G 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
H Managing Committee as per Section 25A of the Act and also
RIJU PRASAD SARMA ETC. ETC. v. STATE OF ASSAM 641
&ORS. [SHIVA KIRTI SINGH, J.]
for holding of such elections. It was clarified that till the A
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 B
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 3'° February, 2012 this
Court by another interim order directed Deputy Commissioner
to take control of precious articles belonging to the deity and C
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 D
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 E
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 F
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 of2012.
33. The rules notified on 27.1.2012 are called TheAssam G
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 H
642 SUPREME COURT REPORTS (2015] 11 S.C.R.
A 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
B 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
C 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
D 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
E 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
F 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
G 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
H and female as well as female members of the Bordeori families
RIJU PRASAD SARMA ETC. ETC. v. STATE OF ASSAM · 643
& ORS. [SHIVA KIRTI SINGH, J ]
that their exclusion by virtue of Rules notified by the State A
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· s
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 C
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 Dearies cannot claim equality with .
Bordeories for the purpose of election of ex-officio secreta.ry
because, according to State, in the Temple of Sri Sri Maa D
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 Dearies are priests only in the E
Nanan Devalayas arid 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 'De'votees' and in that
capacity they are entitled to be in the electoral college for the F
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 G
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 H
644 SUPREME COURT REPORTS [2015] 11 S.C.R.
A 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
B 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
C 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-a-
D 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
E 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
F . 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
G · 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.
H 37. On behalf of writ petitioners the same very impugned
provisions of the Rules have been challenged also on the
RIJU PRASAD SARMA ETC. ETC. v. STATE OF ASSAM 645
&ORS. [SHIVAKIRTI SINGH, J.]
ground that they are contrary to the mandate of Section 25A of A
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 B
declared to be against the Act inasmuch as they run counter to
the Act by giving recognition only to Bordeories at the cost of
Dearies.
38 .. To meet the aforesaid contention, Mr. Jaideep Gupta, C
learned senior counsel referred to the various provisions of
theActto 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 D
by a court under Sectiqn 92 of the CPC. Such a Head, upon
notice has to deliver the possession of the acquired property
and is entitled to receive compensatioh 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 E
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 F
have only Dearies 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
Dearies or by Bordeories as the case may be. According to ·
him, the use of 'slash' (/)between the word Dearies and the G
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/ H
646 SUPREME COURT REPORTS [2015] 11 S.C.R.
A puja not only by the Bordeories but also by atleast two families
of Decries, 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
B 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
Dearies for daily worship/puja.
C 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
D Dearies 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 Dearies and Bordeories. In
that view of the matter it would be inevitable to get the ex-officio
E secretary elected either by the Dearies or the Bordeories,
whosoever may be managing the concerned institution.
40. It is important to notice that the terms 'Dearies' and
'Bordeories' is not defined under the Act. Under Section 30 of
F 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
G Assembly may make. Clearly the task of defining or explaining
the terms' Dearies' 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
H terms of Section 25A only for the temple of Sri Sri Maa
RIJU PRASAD SARMAETC. ETC. v. STATE OF ASSAM 647
&ORS. [SHIVA KIRTI SINGH, J.]
Kamakhya. Under statutory powers, the State Government in A
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 Dearies, if any,
.have been included in the category of 'Devotee' with a right to
participate in the election of other five members of the. B
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 C
has to be held that the Rules of 2012 only explain the real
intention of the legislature in using the sign of slash (f) between
the words Dearies and the Bordeories in Clause (b) of the
Section 25A. The second ground of assailing the rules, D
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
bear-ing No. 140 of 2012 has also been filed by the same
person - Shailen Sharma who is the petitioner in Writ Petition. E
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 F
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 G
petitioners that another class of priests known as Dolois play
equally important role as the Bordeories and hence the male
and female members of Dearies families have also been
subjected to hostile discrimination by the customs that are
archaic and must be struck down as law contrary to the H
648 SUPREME COURT REPORTS [2015] 11 S.C.R.
A 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
B 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
C 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 th&
monopolistic control of Bordeories over the religious and
D secular spheres of the temple has· been resented and
challenged by the other priests including Decries 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
E 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
F view of strong objection by Mr. Rajiv Dhawan, learned senior
advocate for the respondents that the writ petitions including
No. 140 of2012 are not bonafide petitions because they have
been filed only to support the case of the appellants and the
Debuttar Board of 1998.
G 43. On going through the pleadings !n 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
H Dolois atleast in matters relating to the religious practices in
RIJU PRASAD SARMA ETC. ETC. v. STATE OF ASSAM 649
& ORS. [SHIVA KIRTI SINGH, J.]
the temple. However, it would not be proper to decide the writ A
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 8
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 c
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 Ill of Constitution shall, to the extent of such.·
inconsistency, be void.
D
45. Part HI of the Constitution contains fundamental rights
and begins with Article 12 which defines 'the State' for the
purposes of part Ill. 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 E
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 F
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 G
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 H.
650 SUPREME COURT REPORTS [2015] 11 S.C.R.
A made in contravention of this clause shall, to the extent
of the contravention, be void
(3) In this article, unless the context otherwise requires,-
(a) "law" includes any Ordinance, order, bye law, rule,
B regulation, notification, custom or usages having in the
territory of India the force of law;
(b) "laws in force" includes laws passed or made by
Legislature or other competent authority in the territory
c 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
D
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:
E "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
F profess, practise and propagate religion
(2) Nothing in this article shall affect the operation of any
existing law or prsvent the State from making any law
(a) regulating or restricting any economic, financial,
G political or other secular activity which may be associated
with religious practice;
(b) providing for social welfare and reform pr the throwing
open of Hindu religious institutions of a public character
H to all classes and sections of Hindus.
RIJU PRASAD SARMA ETC. ETC. v. STATE OF ASSAM 651
& ORS. [SHIVA KIRTI SINGH, J.]
26. Freedom to manage religious affairs - Subject to A
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
(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." . c
47. It is the case of the petitioners thatthe 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
0
Deories by ordering for inclusion of their names in the electoral
college.
48. On the other hand, the respondents have taken a firm
stand thatfor the purpose of part Ill of the Constitution Article E
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 penorms strictly judicial functions F
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 G
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 Ill of H
652 SUPREME COURT REPORTS [2015) 11 S.C.R.
A the Constitution itself, must be respected and read in harmony
with each other and other provisions in Part Ill. 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
B 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
C 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
D 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
E 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
F 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
G 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
H whether the basic religious tenets governing the Shakti
RIJU PRASAD SARMA ETC. ETC. v. STATE OF ASSAM · 653
&ORS. [SHIVAKIRTI SINGH, J.]
Peethas in the Kamakhya Temple would not stand violated by A
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 Dearies B
that they are equ'ally 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 Dearies and not to all and sundry.
c
50. In the aforesaid situation i.t 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 D
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 E
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 F
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 G
the p~titioners.
51. Coming to the issues of law, on behalf of the
petitioners Mr. Shanti Bhushan placei!l reliance upon judgment
in case of Sant Ram versus Labh Singh, 1964 (7) SCR H
/
654 SUPREME COURT REPORTS [2015) 11 S.C.R.
A 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 Ill of the
Constitution. For the same purpose he also placed reliance
upon the case of Bhau Ram vs. B. Baijnath Singh, 1962
B (Suppl.) 3 SCR 724 and Atam Prakash vs. State of Haryana
& Ors., (1986) 2 sec 249.
52. On the aforesaid issue Mr. Rajiv Dhavan has pointed
out a categorical distinction that in all those three cases the
C 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 Shau
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
D 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). ·
E
53. Mr. Dhavan has· referred to as many as 13 cases as
per list given below:
1. Shirur Math (The Commissioner, Hindu Religious
F Endowments, Madras vs. Sri Lakshmindra Thirtha
Swamiar of Sri Shirur Mutt.), 1954 SCR 1005
2. Tilkayat (Tilkayat Shri Govindlalji Maharaj vs. The
State of Rajasthan & Ors.), 1964 1 SCR 561
..
3. Raj Bira Kishore Deb vs. State of Orissa, 1964 7
G
SCR32
4." Seshammal and Others etc. etc. vs. State of Tamil
Nadu; 1972, 2 SCC 11
5. State of Rajasthan vs. Sajjanlal Panjawat, 1974
H
(1) sec 500
RIJU PRASAD SARMA ETC. ETC. v. STAT~ OF ASSAM 655
& ORS. [SHIVA KIRTI SINGH, J.)
6. Pannalal Bansilal Pitti and Ors. vs. State of A
Andhra Pradesh & Anr., 1996 (2) SCC 498
7. A.S. Narayana Deekshitulu vs. State of A.P. and
Ors.; 1996 9 sec 548
8. Sri Adi Visheshwara of Kashi Vishwanath B
Temple, Varanasi and Ors. vs. State of U.P. & Ors.
1997 (4) sec 606.
9. Bhuri Nath Vs. State of J & K, 1997 (2) SCC 745.
10. Sri Kanyaka Parameswari Anna Satram c
Committee and Ors. vs. Commissioner, Hindu
Religious & Charitable Endowments Deptt. and
Ors; 1999 7 SCC 666
. 11. N. Adityam v. Travancore Devaswrom Board
0
(2002) 8 sec 106
12. M.P. Gopalkrishnan Nair v. State of Kera la, 2005
(11) sec 45
13. Durgah Committee v. Syed Hussain Ali, 1962.
(1) SCR 383 E
54. It is highlighted that in all these cases relating to
religious endowment a~d institution, under challenge were
changes in customs that had been brought about by Statutes
enacted by the legislature. According to the respondents while F
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"@} regulating
or restricting any economic, financial, political or other secular G
activity which may be associated with religious practice; and
.{Ql 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 H
656 SUPREME COURT REPORTS [2015) 11 S.C.R.
A so far as freedom to manag8 relig,ous affair;; is conci3roed.
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 Ill also.
B
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
C 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 cohtemplated
by Article 25(2) cannot obliterate essential religious practices
D 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
E 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.
F 56. An interesting situation arose in the case of Bijoe
Emmanuel & Ors. v. State of Kera/a & 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
G 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
H children on both counts. In Paragraphs 19 and 20, A.rticle 25
was considered with a view to find out the duty and function of
RIJU PRASAD SARMA ETC. ETC. v. STATE OF ASSAM . 657
&ORS. [SHIVA KIRT! SINGH, J.)
the Court whenever the fundamental right to freedom of A
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 8
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 c
provisions of Part Ill 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 associateJ with religious practise or to provide for
social welfare and reform. It is the duty and function of D
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."
E
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
anAndhra Pradesh Act bringing certain reforms in r.espect of F
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, G
made it clear that though ari uniform law may be highly
desirable, in a democracy the legislature should have the
freedom to bring about gradual progressive chnnges and the
process may start where the need is most acute. This Court
further held that it would be inexpedient and incorrect to think H
658 SUPREME COURT REPORTS [2015] 11 S.C.R.
A 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
B Seshammal & Ors. etc. etc. vs. State of Tamil Nadu, 1972
(2) sec 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
C 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 ima!ie of the
deity is defiled on account of violation of any of the rules relating
0
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
E 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".
F
58. In the aforesaid judgment it was also held that the
matter of appointment of a competentArchaka 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
G 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
H action of the trustees themselves performing the rn~cessary
RIJU PRASAD SARMA ETC. ETC. v. STATE OF ASSAM 659
& ORS. [SHIVA KIRTI SINGH, J.]
rituals. This aspect need not be pursued any further because A
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 B
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 C
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 Ill of the
Constitution and not to such religious customs and personal
laws which are protected by the fundamental rights such as D
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 E
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 F
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 G
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 H
660 SUPREME COURT REPORTS [2015] 11 S.C.R.
A 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
s by the judiciary can be included in State action, we. are in
agreement with the submissions advanced by Mr. Raj iv Dhavan
that definition of 'the State' under Article 12 is contextual
depending upon all relevant facts including the concerned
provisions in Part Ill of the Constitution. The definition is clearly
C 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:-
D
(i) Pradeep Kr. Biswas vs. Indian Institute of Chemical
Biology & Ors., (2002) 5 SCC 111
(ii) Naresh Shridhar Mirajkar And Ors vs. State of
E 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
F 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
G are not included in the definition ofthe 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
H interpretation must be preferred because it shall promote
RIJU PRASAD SARMAETC. ETC. v. STATE OF ASSAM 661
&ORS. [SHIVA KIRTI SINGH, J.]
justice, especially through impartial adjudication in matters of A
protection of fundamental rights governed by Part Ill of the
Constitution.
62. On the aforesaid issue Mr. Shanti Bhushan has
placed reliance upon the judgment of this. Court in Harjinder B
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 C
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 D
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 E
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 F
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 Ill of the Constitution. · G
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 H
662 SUPREME COURT REPORTS (2015] 11 S.C.R.
A 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
B 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
C reasons we find no merii 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
, D 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 2SA of
the Act and powers of the Managing Committee contemplated
E 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
F of the premises in the temple of Sri Sri Maa Kamakhya tern pie
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 Deb utter Board at the earliest and in
G 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
H shall be retained in the office of Deputy Commissioner,
RIJU PRASAD SARMA ETC. ETC. v. STATE OF ASSAM 663
& ORS. [SHIVA KIRTI SINGH, J.]
Guwahati. The parties representing the Debutter board are A
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 B
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, C
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 supervisorywritjurisdiction of the High Court.
D
Nidhi Jain Appeals and Writ Petitions dismissed.
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