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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE/ORIGINAL JURISDICTION

CIVIL APPEAL NOS.3276-3278 OF 2013

Riju Prasad Sarma etc. etc.        …..Appellants

Versus

State of Assam & Ors.             …..Respondents

W I T H

W.P.(C)Nos.72; 91 and 140 of 2012 AND

S.L.P.(C)Nos.18070-18072 of 2015 [CC 8089-8091/2012]

J U D G M E N T

SHIVA KIRTI SINGH, J.

1. The Civil Appeals arise out of three writ petitions, two of the year 2000

and one of the year 2002 which were heard together and disposed of by a

learned Single Judge of Guwahati High Court by a common judgment and

order dated 06.08.2004.  That judgment was challenged before the Division

Bench through  two  writ  appeals  bearing  W.A.Nos.311  and  312  of  2004

preferred by the appellants who confined the scope of the appeals only to

the width and scope of Section 25A of the Assam State Acquisition of Lands

Belonging to Religious or Charitable Institutions of Public Nature Act, 1959

(for  brevity  referred  to  as  ‘the  Act’).   Admittedly  neither  the  State

Government  nor  the  private  respondents  preferred  any  cross  appeal.

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However, there was a fresh writ petition filed directly before the Division

Bench bearing  Writ  Petition  No.923/2005  preferred  in  the  name of  The

Deity, Sri Sri Ma Kamakhya claimed to be represented by appellant – Riju

Prasad  Sarma  who  further  described  himself  as  the  Administrator,

Kamakhya  Debutter.   The  said  writ  petition  sought  to  challenge  the

constitutional validity of Section 25A of the Act.  The writ appeals and the

Writ  Petition  No.923  of  2005  were  finally  disposed  of  by  a  common

judgment and order of the Division Bench of Guwahati High Court dated

25.10.2011 which is under challenge in the principal matter – Civil Appeal

Nos.3276-3278 of 2013 filed by Sri Riju Prasad Sarma & Ors. claiming to

represent The Kamakhya Debutter Board.

2. Along with the Civil Appeals three writ petitions bearing No.72, 91 and

140 of 2012 have also been heard together as connected matters because

they either throw a challenge to the validity of the Section 25A of the Act or

the Rules framed thereunder or to  the actual  election of  Dolois  held on

16.11.2011  on  account  of  this  Court  not  staying  the  direction  of  the

Division  Bench  to  hold  such  election  governed  by  custom.   The  same

dispute covered by the Civil Appeals noticed above is sought to be raised

again  through S.L.P.(C)  Nos.18070-18072 of  2015 [CC 8089-8091/2012]

which have been filed along with an application for permission to prefer the

special leave petitions by those who were not parties earlier, Hiten Sarma

and some others, against the same very common judgment of the Division

Bench  dated  25.10.2011.   This  judgment  shall  govern  all  the  matters

noticed above.  For the sake of convenience the facts have been noted from

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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 that it will  be useful to

notice  the  background  facts  which  led  to  those  writ  petitions.    The

appellants  have,  in  one  of  their  written  submissions,  furnished  the

introduction, it reads as follows:-

“INTRODUCTION

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

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

1. The principal matter is C.A. No.3276-3278/2013 filed by Shri Riju Prasad Sarma & Ors. (representing the Kamakhya Debuttar Board) challenging the final judgment and order of 25.10.2011  passed  by  the  Division  Bench  of  the  Hon’ble Guhati High Court.   In the said matter, the Learned Single Judge had upheld the locus standi of the appellants on the ground  that  it  does  not  lie  in  the  mouth  of  the  State Respondents/Private Respondents to challenge the authority of the Kamakhya Debuttar Board to manage the affairs of the

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temple as they have not made any attempt to de-recognize or question  its  authority  in  any  court  of  law.  (pg.216).   The learned Single Judge had also upheld the vires of Section 25A of  the  Assam  State  Acquisition  of  Lands  belonging  to Religious  or  Charitable  Institutions  of  Public  Nature (Amendment)  Act,  1987  (pg.218-225).   The  appellants preferred  a  limited  Writ  Appeal  confined  to  the  scope  of Section  25A  of  the  said  Act.   There  was  no  cross  appeal preferred  by  the  State  Government  or  the  Private Respondents.  The Division Bench of the Hon’ble Guwahati High Court vide impugned judgment has held that Section 25A of  the said Act has very limited scope confined to the language used in the said provision and has held as follows:

“117…..Section 25A, as would be apparent on its face, only engrafts the enjoinment of the legislature for the constitution of a Managing Committee to exercise control over the matter of  utilization  of  annuity  and  verification  of  the  proper maintenance of the institution…..”

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

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

In  terms  of  the  order  dated  13.5.2002  passed  by  the Hon’ble  High  Court  and  the  orders  dated  11.11.2011  and 21.11.2011 passed by this Hon’ble Court, the administration of  the  temple  has  been  carried  on  by  the  appellants,  the

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

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

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

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

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

4. From  the  above  introduction  furnished  by  the  appellants,  it  is

evident  that  according  to  the  appellants  the  Division  Bench  erred  in

deciding the issue relating to administration of  non-religious activities of

Maa  Kamakhya  Temple  (other  than  those  which  relate  to  scope  and

interpretation of Section 25A of the Act).  To same effect was the first and

main submission advanced by learned senior counsel Sri Ashok H. Desai,

appearing for the appellants.  According to Mr. Desai, the issue relating to

customary right of Bordeuris represented by the two Dolois who are elected

by  adult  male  Bordeuris  belonging  at  present  to  four  specified  priest

families vis-à-vis the rights and the status of the Debutter Board was never

and is still not the subject matter of the present proceedings and hence the

judgment of the Division Bench deciding the above said issue in favour of

the Bordeuries and the Dolois  must be set aside.   Further stand of  the

appellants is that even if the issue did arise before the Division Bench, the

same has been wrongly decided by ignoring break in the old custom since

1970/1973 and thereafter through creation of Debutter Board in 1998.  The

stand of the appellants is that essential religious rites of Maa Kamakhya

Temple  is  still  left  in  the  hands  of  the  Dolois  as  per  custom  and  the

Debutter Board is governing and entitled to govern only the secular/non

religious activities of  the temple and its properties  because for that it  is

empowered by the Debutter Board Regulation of 1998.

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5. On behalf of the appellants, as an alternative it was highlighted in

the oral as well as in the written submissions that no observations be made

by  this  Court  which  may  have  any  impact  in  the  pending  proceeding

initiated by the appellants under Section 92 of the Code of Civil Procedure

pending before the learned District Judge, Kamrup, Guwahati.

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 has to be given a narrow meaning in the

context  of  the  Act  and  the  various  provisions  contained  therein  which

restrict the functions of the Statutory Managing Committee conceptualized

thereunder to exercise control only over the matter of utilization of annuity

and verification of the proper maintenance of the institution.   According to

respondents, the Debutter Board represented by the appellants has used

writ petitions filed before the learned single judge for the clandestine and

concealed object of grabbing control over the properties and affairs of the

Maa Kamakhya temple ater its attempt to get recognition from the District

Judge failed.   According to respondents only the two Dolois whose term has

expired and who did  not  want  holding of  elections  to  elect  Dolois  for  a

further  term of  five  years,  went in  collusion with  the Deuries/priests  of

other  subsidiary  temples  known  as  Nanan  Devalayas  to  support  the

formation of a body which describes itself as Debutter Board and its self

serving constitution as Debutter  Board Regulation 1998,   which has no

legal sanctity.

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7. Dr.  Rajeev  Dhavan,  learned  senior  counsel  for  the  private

respondents took great pains to take us through the pleadings and prayers

in the three writ petitions decided by the learned single judge to show that

in writ petition Nos. 6184 and 5385 of 2000, while challenging the Deputy

Commissioner’s Committee, the Debutter Board cleverly raised the issue of

its status in several paragraphs.  In addition, in writ petition No.2955 of

2002 Mr. Riju Prasad Sarma as petitioner went on to describe himself as

the administrator of  Maa Kamakhya Debutter with a further claim that as

an  administrator  he  is  responsible  and  authorized  to  represent  the

grievances of Brahamins and non-Brahamins Shebaits as well as devotees

of the Maa Kamakhya Debutter.   In Paragraph 34 the appellant Riju Prasad

Sarma made a specific prayer that the annuity which is payable under the

Act be paid to the Maa Kamakhya Debutter Board.

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.   The writ petition No. 923 of

2005  filed  by  appellant  Riju  Prasad  Sarma was  heard  originally  by  the

Division Bench along with writ appeals.   In this writ petition the petitioner

claimed  to  represent  the  Deity.  In  their  counter  affidavits  the  State

Authorities as well as the private respondents strongly disputed such claim.

According  to  learned  senior  counsel  Mr.  Dhavan,  the  issue  was  though

loosely referred to and argued as an issue of locus but it was actually an

issue relating to status and/or rights of the appellants and the Debutter

Board; whether the Board had any established right to claim a share in the

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management of even secular affairs of Maa Kamakhya temple.  According to

learned senior counsel, the Debutter Regulation of 1998 is a self serving

document which does not have any sanctity of law and did not create any

right in the Debutter Board to take over the religious endowment of Maa

Kamakhya and represent the deity.

9. On behalf of the appellants, a number of judgments have been cited

in course of reply to the aforesaid stand of the respondents in respect of

locus/status. No doubt, the concept of locus was seriously diluted in the

majority of cited cases which were noticeably in the nature of Public Interest

Litigation.  But the writ petitions filed before the learned single judge or

even  before  the  Division  Bench  claimed  rights  in  the  petitioners  as

administrator  or  as  lawful  representative  of  religious  endowment  or  the

deity and were not in the nature of PIL.   In any case, in view of strong and

categorical  denial  made by the respondents to  the right  of  the Debutter

Board to represent the deity of Maa Kamakhya in writ petition No. 923 of

2005, the Division Bench could not have ignored the issue of rights and

status.  Hence,  in  our  considered  view it  was  necessary  for  the  Division

Bench on being called upon through pleadings, to decide the locus or status

of the appellants representing the Debutter Board.  In its wholesome writ

jurisdiction, the Division Bench could not have shut its eyes and ears to

such  a  serious  dispute  arising  in  the  context  of  a  public  religious

endowment relating to Maa Kamakhya temple in the Nilachal hills of Assam

at Guwahati, which is highly revered by the Hindus residing anywhere since

several centuries.

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10. In view of above, the foremost contention of appellants advanced by

learned senior counsel Mr. Desai that the Division Bench erred in deciding

the locus or status of  the Debutter Board represented by the appellants

cannot be accepted.  This brings us to the next contention, which is more

intricate  and  challenging;  whether  the  findings  of  the  Division  Bench

upholding the control of Bordeuries  and their representatives, the Dolois

over  the  religious  and  secular  affairs  of  Maa  Kamakhya  temple  and

endowment as per customs is correct or not.

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.

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

finally decided in favour of the Dolois by judgment dated 25.2.1931.  Both

the  parties  have  referred  to  the  said  judgment  in  detail  not  only  to

demonstrate  the custom which empowered the four  Bordeori  families  to

elect Dolois which is the main issue decided by the judgment but also to

highlight the claim of the Bordeoris and the Dolois that they being the sole

trustees  of  the  endowment  were  alone  competent  to  elect  the  Dolois  to

supervise the affairs of the temple.  The judgment reveals that the bordeoris

who earlier  belonged to  five  principal  families  of  priests  attached to  the

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main temple at Kamakhya, now reduced to four families, were found to be

not only the de facto but also de jure trustees of the entire concern in the

Kamakhya Scheme of Endowment and the Dolois were really their agents or

managers.  The object of that suit was held to be an attempt to supersede

the Bordeoris from their exclusive management and control and substitute

them  with  a  body  consisting  of  all  subordinate  Shebaits  belonging  to

Brahmins  of  Nanan  Devalayas  as  well  as  non  Brahmins.   The  word

‘Bordeori’ or ‘Panda’ in relation to five families of Bordeoris was found used

in old copper plate dated 1686 Saka era which was in force in Assam at that

time and also in a parwana issued by the Commissioner of Assam to the

Managing Bordeori in 1827 A.D. which used the expression ‘five pandas of

Kamakhya Dham’.  Decrees in old suits of the year 1838 and 1855 were

also noted by the Civil  Court along with several old agreements between

Bordeoris and Dolois to come to a conclusion that five distinctive families of

priests known by the names of Brahma, Bura, Deka, Hota and Bidhipathak

originally constituted the five families of Bordeoris out of which Brahmas

later became extinct.  The judgment also indicates that descendents of the

five principal and leading families of priests who were originally appointed

for the Kamakhya temple were also sometimes called collectively as  five

Pandas and sometimes as five Deoris.

13. It is interesting to note that in the 1931 judgment the Civil Court

looked into an old decree of the Sadar Diwani Adalat of Calcutta dated 1838

made  in  appellate  jurisdiction  in  connection  with  a  dispute  over  the

Doloiship  at  Kamakhya.   The  Sadar  Diwani  Adalat  judgment  contained

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several references to the five ancient families of priests and made it clear

that  save  and  except  those  five  houses,  the  work  of  the  Doloiship  and

Sebayati  could not  be  conferred on anyone else;  that  none of  the other

Brahmins at Kamakhya or elsewhere had any right, power or authority of

even  touching  or  handling  the  Goddess  at  Nilachal  Kamakhya  Temple

proper for conducting the Sevapuja (Rajaki puja) at the temple.  Such rights

and privileges were held to be hereditary ancestral rights of the Bordeori

families and hence the Dolois elected by them were restored to possession

and management of Kamakhya by replacing another person who was put in

as Doloi by an independent agency during the chaos and disorder of the

Burmese occupation.  The Judicial Commissioner’s findings in 1873 have

been summarised in the said judgment as follows :  

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

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

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

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

(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 speak, their (the Bordoris’) agents in that matter.”

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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 recognized the custom of exclusive control

of Dolois elected by Bordeori families to be incharge of religious as well as

secular  affairs  of  Kamakhya  temple  and  endowment.   It  is  also  not  in

dispute that in the Act of 1959 which came into force on 11.1.1963 and in

the Rules of  1963 framed thereunder,  there are provisions requiring the

identification of the Head of a religious or charitable institution as defined

in Section 2(d) in whom the control and management of the properties of

that institution is vested.  The notification of acquisition under Section 3(2)

has  to  be  served  on  such  Head  in  the  manner  prescribed.   The

consequences of such notification take place as per Sections 4 to 6 leading

to the payment of compensation which is determined under Section 8 and

as per sub-section (5) thereof the net income as per calculations is required

to be paid in cash annually as perpetual annuity as compensation to the

Head of the institution for lands acquired under the Act.  The proviso to

sub-section (5) of Section 8 takes care of entitlement of any person to a

share of the income of any such institution or to a lump sum allowance

under  the  terms of  any  grant  or  endowment  relating  to  that  institution

which is  required  to  be  determined in  the  prescribed  manner.   Besides

containing provisions for appeal, as per Section 18 the Head of religious or

charitable institution is obliged to submit to the Deputy Commissioner a

return giving the particulars of all his lands including the lands selected for

retention  under  Section  5,  etc.   Admittedly,  the  Dolois  as  agents  of

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Bordeoris are recognized as the Head of the public religious endowment of

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, this Amendment Act

introduced a new Section 25A which reads as follows :

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

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

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

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

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

The  Statement  of  Objects  & Reasons  of  the  Amending Act  are  noted  in

paragraph 111 of the impugned judgment under appeal as follows :

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

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

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

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

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 and Sri Paran Chandra Sarma were elected as the

Doloi and Saru Doloi respectively.  The constitutional validity of Section 25A

was  challenged  by  head  of  another  religious  institution  through  a  Writ

Petition bearing No.3118 of 1994 before the Guwahati High Court.

17. Pendency of that writ petition could not have posed any hindrance

to election of successor Dolois after five years, in 1996-1997. But that

did not happen. An attempt was made by the shabiats, brahamins as

well  non-brahmins  including  priests/Deories  of  Nanan  Devalayas  to

democratize the management of Kamakhya temple by diluting the control

of  Bordeori  Samaj  and  the  Dolois  by  framing  a  new  scheme  of

management  described  as  the  Kamakhya  Debutter  Regulation,  1998

providing  for  constitution  of  a  Board  for  the  superintendence,

management and administration of all the affairs of the main Kamakhya

temple  and  also  the  temples  of  Dasa  Mahavidyalaya  and  all  other

temples and places of religious significance in and around the three hills

of Nilachal described as temples’ complex.

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18. The Board as defined under the Regulation means the general Board

of members of Kamakhya Debutter or the Kamakhya Temple Trust Board

constituted under the Regulation.  The regulation also ordained that the

Board shall be the head of the institution for the purpose of Section 2(d)

of the Act. Doloi of the Kamakhya Temple as per Regulation means the

person elected by the brahamin shabaits and not only by Bordeori Samaj.

The regulation vests women also with the right to vote but not the right

to contest for the post of Doloi because the Doloi is the head priest or

poojari.  Though the  Debutter  regulation and the  Board  contemplated

therein claimed their existence from 1998 but according to the list  of

dates and events given by the appellants in the course of arguments and

from the list of dates filed as a document in the course of arguments on

behalf of the State of Assam, it appears that when the two elected Dolois

did not hold the elections even after the expiry of their term of five years,

Bordeori Samaj  approached  the  district  Judge  Kamrup for  holding  of

elections.  Before  the  District  Judge  an  attempt  was  made  by  other

shebiats to include themselves in the list of voters for electing the Dolois

but their claim was rejected by the District Judge by an order passed on

12.6.1998.  By  another  order  dated  21.10.1998,  the  District  Judge

Kamrup, Guwahati in file No.D9/ K/KT/6/95 maintained in connection

with Kamakhya temple, disposed of the petition filed by Bordeori samaj of

the Kamakhya temple  seeking election of  the managing Committee  of

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Kamakhya temple against which the then Dolois and some others had

filed objections.  

19.    In that Order the District Judge has noted that there was a defacto

Managing  Committee  described  as  “the  present  Managing  Committee”

supported by the then two dolois who took the stand that there was no

scheme of holding election nor there was any term of office of managing

committee fixed in Constitution. Such defacto Committee also challenged

the jurisdiction of the District Judge to impose any election. The District

Judge was not impressed with zerox copy of the so-called Constitution

which as per arguments was of the year 1970-1971 and after perusing

the  judgment  and decree  rendered  by  the  Civil  Court  long  back,  the

District Judge found that the shebaits had not been given any power of

voting in the election of Dolois and their prayer to include them in the

voters list had already been rejected on 12.6.1998 but even thereafter the

present committee had filed a Constitution wherein Shebiats had been

included  as  voters.  The  District  Judge  therefore,  did  not  accept  the

Constitution as a  valid document.  On the issue of  jurisdiction of  the

District Judge, the order reveals that the entire records relating to the

management of the Kamakhya temple disclosed that earlier also on many

occasions the Managing Committee of even those very persons who had

challenged the jurisdiction of  the District  Judge had accepted notices

and  directions  regarding  proper  management  of  the  temple  without

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raising any challenge to the exercise of such power by the District Judge.

Since  the  District  Judge  noticed  that  there  was  a  Public  Interest

Litigation  pending  before  the  Guwahati  High  Court,  hence  instead  of

ordering for  election of  Dolois he directed to get  a  Committee  formed

through the  Deputy  Commissioner,  Kamrup,  Guwahati  under  Section

25A of the Act by dissolving the present committee or to form an ad-hoc

Committee from amongst the Bordeori Samaj till regular election is held

after disposal of Public Interest Litigation.

20.  Against  such  direction  the  then  Dolois  preferred  writ  petition

No.6221 of 1998 which was heard and disposed of by the Division

Bench of the High Court of Guwahati along with writ Petition No.3118

of  1994 relating  to  vires  of  Section 25A of  the  Act.  By  a  common

judgment and order dated 2.5.2000, the Division Bench upheld the

vires of  Section 25A. It  also noted the stand on behalf  of  the then

Dolois who had preferred Writ Petition No.6221 of 1998, that there

were no instructions to challenge Section 25A and they had challenged

only the jurisdiction of the District Judge in passing the order dated

21.10.1998. The Division Bench did note that the District Judge had

passed the order not in any judicial proceeding but in accordance with

the past practice whereunder parties used to approach the Court of

District Judge for making arrangement for constituting Committee to

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manage the affairs of the Kamakhya temple. That Division Bench did

not go further into the issue because it concluded that it may not be

necessary to do so because the vires of Section 25A of the Act had

been upheld and that would take care of any remaining controversy

between the parties. To the same effect was the submission made on

behalf of the writ petitioners, hence Writ Petition No.6221 of 1998 was

dismissed as infructuous.  

21.  In  the  light  of  above  noted  Division  Bench  judgment  the  Deputy

Commissioner issued an order dated 15.9.2000 in which he also took notice

of some other judgments including one by the High Court in PIL No.35 of

1997 decided on 12.1.2000 and ordered for immediate dissolution of the

then Managing Committee of Kamakhya Devalaya headed by the then two

Dolois whose tenure was noted to have expired.  They were directed to hand

over  charge  of  office  to  the  Deputy  Commissioner,  Kamrup,  Guwahati

within three days.  Further, to look after the management of the Kamakhya

Temple, an ad-hoc Managing Committee of six members along with Deputy

Commissioner  as  Chairman was  also  ordered.   It  was  clarified  that  the

ad-hoc  Managing  Committee  will  look  after  the  management  of  the

Kamakhya Devalaya till  regular election is held or till  the constitution of

Managing Committee as per Section 25A of the Act, for which a period of

one month only was indicated.  The appellants challenged that order by

filing a writ  petition in September 2000 itself  bearing W.P.(C)No.5385 of

2000 before the High Court.  By an order dated 25.9.2000, a learned Single

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Judge  issued  rule  and  stayed  the  operation  of  order  dated  15.9.2000.

However an interim arrangement was made by ordering that the Deputy

Commissioner or his nominee shall discharge the functions of the Managing

Committee to be constituted under Section 25A, till it is constituted.  It was

also  clarified  that  in  respect  of  religious  functions,  status  quo  shall  be

maintained.   Against  the same very order  dated  15.9.2000 another  writ

petition  bearing  W.P.(C)No.6184  of  2000  was  preferred  by  Sri  Kamal

Chandra Sarma, a member of the Kamakhya Debutter Board and Sri Paran

Chandra Sarma, one of the then Dolois.  In this writ petition also similar

interim order was made.

22.  On 20.03.2002 the Deputy Commissioner passed an order whereby in

terms of the Court’s interim orders he appointed one S.K. Roy, Additional

Deputy Commissioner, Kamrup to discharge the functions of the Managing

Committee till a Committee under Section 25A could be constituted.  In that

order  also  it  was  made  clear  that  so  far  as  the  religious  functions  are

concerned, the status quo shall be maintained.  Through a notice dated

25.4.2002 Sri Roy communicated that he would take over the management

of the Temple as per order of the Deputy Commissioner and by another

notice dated 6.5.2002 he notified that he had taken over the responsibility

of the Managing Committee on 27.4.2002.  Against the order of the Deputy

Commissioner  as  well  as  the  orders  and notices  issued by Sri  Roy,  the

appellants filed another writ petition bearing W.P.(C)No.2955 of 2002.  In

this  third  writ  petition  also  an  interim order  was  passed  on  13.5.2002

restraining the respondents therein not to use the main Bharal,  existing

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office  of  the  Kamakhya  Debutter  Board  and  not  to  interfere  with  the

functioning of  “Peethas”  of  the  “Jal  Kuber”  and “Dhan Kuber”  and also

religious  functions  of  the  Kamakhya Temple.   By  another  interim order

passed in that case on 16.10.2003, the Kamakhya Debutter Board and its

office bearers were restrained from preparing draft voters list and also from

holding  or  conducting  any  general  election  of  the  Board  without  prior

permission of the Court.  The aforesaid three writ petitions, two of the year

2000 and third of the year 2002 were disposed of  by the learned Single

Judge, as noted at the outset, by a common judgment dated 6.8.2004.

23.   The judgment of the learned Single Judge is mainly founded upon

earlier Division Bench judgment upholding the constitutionality of Section

25A of the Act.  Learned Single Judge noted the arguments advanced on

behalf of the rival parties that Section 25A must be given a narrow meaning

so as to confine the Committee constituted under that provision only to

matters concerning the utilization of annuity.  But in paragraph 14 of the

judgment it fell back upon judgment of the Division Bench dated 2.5.2000

for holding that since Section 25A was held to  be constitutionally  valid,

“there  will  hardly  be  any  room to  consider  the  argument  advanced on

behalf of the petitioners and the supporting respondents to the effect that

having  regard  to  the  object  of  1959  Act,  the  Managing  Committee

constituted under Section 25A of the Act must be ascribed a limited role

restricted to the annuity paid”.

24.   While dealing with the objection that the writ petitioners were not

competent and had no right to maintain the writ petitions, in paragraph 12

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of the judgment the learned Single Judge actually decided not to go deeper

into that issue and preferred to dispose of the writ petitions on merits.  The

reasons indicated for adopting such a course are recorded thus :

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

25.  Out of the two main reasons given above by the learned Single Judge

for not pursuing the issue of locus seriously, the first cannot be questioned.

Once  the  petitioners  gave  up  their  claim  of  having  approached  in  the

capacity  of  administrators/members  of  the  Board  of  Trustees,  relief  of

action in terms of Section 25A of the Act could have been granted for the

benefit of the religious institution even on the asking of petitioners in their

capacity as Shebaits of the Temple.  The other reason however does not

merit  acceptance  and  must  be  treated  only  as  an  obiter  or  a  passing

reference.   At  no  point  of  time  the  State  or  Deputy  Commissioner  had

recognized the Debutter Board as Head of  the institution and in such a

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situation there was no need for even the private respondents to challenge

the authority of the Debutter Board.  The issue as to who could be voter for

electing the Dolois and who could stand for that post had not arisen at that

stage because election of the Dolois had not been ordered by any court till

then.

26.  It appears that at least for a brief period the District Judge, the District

Administration as well as the High Court had acted under misconception

and  confusion  to  equate  the  limited  supervisory  role  of  the  statutory

Committee under Section 25A of the Act with the rights of the Bordeoris

and  their  representative,  the  Dolois  to  manage  the  religious  as  well  as

secular activities of the Kamakhya Temple, a public religious institution.

27. The scope and amplitude of  Section 25A was wrongly  not  touched

upon by the learned Single Judge. The earlier Division Bench Judgment

had merely affirmed the constitutionality of this provision at the instance of

another religious institution but had no occasion to weigh the powers of the

statutory Committee vis-à-vis the customary rights of Bordeori Samaj and

its elected representatives, the Dolois. The Division Bench, therefore rightly

examined  the  width  and  scope  of  powers  of  customary  trustees  –  The

Bordeories and their elected agent, the Dolois considering all the relevant

materials and custom, it committed no error in upholding their right to take

care of management of secular as well as religious affairs of the Kamakhya

Temple.  

28.    The powers of the Bordeories and Dolois has not been taken away or

adversely affected by the Act as it stood earlier or even after Section 25A

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was  inserted.  The  reasons  and  objects  of  introducing  the  statutory

Committee under Section 25A as noted by the Division Bench in paragraph

111 of the judgment under appeal and extracted earlier in this judgment

categorically clarify that it was (i) “to have control over the annuity” and (ii)

“to  verify  and  audit  the  accounts  to  the  satisfaction  of  the  concerned

authority.”  The  statutory  Committee  under  Section  25A  is  therefore

concerned only with the annuity payable or paid under the Act to the Head

of the Institution and not with its ownership or management. The words –

“….. and verification of the proper maintenance of Institution.” in Section

25A have to be understood in the background of all other provisions of the

Act  including the  objects  and reasons for  the  Amending Act  No.  XIX of

1987. In that light, the power of the Committee is indeed quite limited to

verification  of  the  proper  maintenance  of  accounts  of  the  Institution

concerned and that too relating only to utilization of the annuity and other

government grants under the Act, if any. Favouring the statutory Committee

with  powers  to  manage  or  oversee  even  only  the  secular  aspect  of

management of the Institution will not only run counter to the objects and

reasons for the Amending Act of 1987, it shall create an undesirable diarchy

when the Act does not divest the Bordeories and Dolois of their customary

powers,  roles  and  rights.  Hence  we  have  no  difficulty  in  accepting  the

contention of most of the parties that Section 25A postulates a Committee

with limited role - only to exercise control over annuity  and other grants

under the Act and its proper accounting, if and when utilized, through the

power  of  verification  of  relevant  accounts  for  proper  maintenance  of

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Institutions.   

29.    We hasten to make it  clear that the above inference is  in view of

peculiar  features  of  the  Act  dealing  mainly  with  acquisition  of  lands  of

certain  types  of  Institutions.  There  can  be  no  doubt  that  within  the

constitutional scheme guaranteeing freedom of religion, the legislature has

to exercise restraints in matters essentially religious but still it has ample

powers  to  legislate  for  better  management  of  any religious  or  charitable

Institution of public nature.  However, in the present case, there is no such

legislation.

30. Submissions  have  been  advanced  on  behalf  of  the  appellants  that

Kamakhya Debutter Regulation is a perfect solution for all the ills allegedly

affecting proper management of the Kamakhya Temple; its provisions do not

interfere with the customary rights of the Dolois in the religious matters

and in secular matters its provisions promote democracy to the satisfaction

of large number of concerned persons including Deuris/priests looking after

the other temples known as Nanan Devalayas.   Hence, it is pleaded that no

interference is required with the Kamakhya Debutter Regulation.  From the

discussions made earlier, we find that there has been no interruption in the

essential  custom whereunder  the  Bordeori  Samaj  consisting  of  all  adult

males of Bordeori families enjoys exclusive monopoly over the power to elect

Dolois. We also find no merit in the plea of appellants that if there was a

custom in favour of Bordeori Samaj, it stood discontinued by agreement or

by framing of some sort of Constitution in 1970 and/or 1973 such plea is

vague  and  not  backed by any  acceptable  evidence.   So  far  Dolois  have

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always been elected as per the old custom, by the Bordeori Samaj.  The

custom of electing the Dolois was no doubt attempted to be changed by a

group  of  persons  who  claimed  to  have  formulated  and  adopted  the

Kamakhya  Debutter  Regulation  but  such  Regulation  does  not  have

acceptance  of  the  Bordeori  Samaj  and  the  dispute  on  account  of  the

Kamakhya  Debutter  Regulation  is  now  before  this  court  by  way  of  the

present proceedings.    

31. For the reasons assigned by the Division Bench of the High Court,

with which we are in agreement, it has to be held that Kamakhya Debutter

Regulation, 1998 is not a valid instrument and has no sanction of law for

depriving the customary rights of the Bordeori Samaj to elect the Dolois who

have been customarily exercising the right to manage the religious as well

as secular affairs of the Kamakhya Temple.  Admittedly, the appellants have

now  taken  recourse  to  provisions  of  Section  92  of  the  Code  of  Civil

Procedure for seeking whatever relief they want against the Bordeori Samaj

and the Dolois elected by the Bordeori Samaj.  In view of their categorical

submissions that this Court may not make any observation which might

affect  either  of  the  parties  in  Section  92  CPC proceeding,  we  leave  the

matter at rest without commenting on the provisions of Kamakhya Debutter

Regulations.  However, in the light of discussions and findings made earlier,

except to clarify, as pleaded on behalf of the appellants that Section 25A of

the Act provides for a Committee having only a narrow and limited role, we

find no merit in the Appeals and no scope to interfere with the impugned

judgment of the Division Bench.  The Appeals are therefore dismissed along

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with SLP… cc 8089-8091/2012.  This order, however, shall not prejudice

the case of the appellants and similarly placed persons in the proceeding

under Section 92 of the CPC pending before the District Judge, Kamrup,

Guwahati.

32.   Having taken note of the background facts and expressed our views on

merits of the Appeals, now we shall take note of some interim orders passed

by this Court after the Division Bench judgment dated 25.10.2011 came

under challenge through Special Leave Petitions filed in 2011 itself. This is

necessary to understand the real  controversy between the parties in the

three writ petitions which have been preferred directly before this Court.   In

the SLP preferred by the appellants, an order was passed on 11.11.2011 to

direct  that  the interim arrangement  made by the High Court  vide  order

dated  13.5.2002  shall  remain  operative.   As  a  consequence  the  official

respondents continued under an obligation not to use the main Bharal and

the existing office of Kamakhya Debutter Board and not to interfere with the

religious affairs of the temple.   In view of twin directions by the Division

Bench in the impugned order, to hold elections of Dolois as per custom and

to hold elections for constituting the Committee under Section 25A of the

Act, the State Authorities issued a notice for election of Doloies and that

election was held on 16.11.2011.  On 21.11.2011 further interim order was

passed  by  this  Court  for  framing  of  rules  for  election  of  members  of

Managing Committee as per Section 25A of the Act and also for holding of

such  elections.   It  was  clarified  that  till  the  Managing  Committee  is

constituted the administration of the temple will be as per order of the High

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Court dated 13.5.2002.   No interference was made with the elections of

Dolois held on 16.11.2011 and hence the elected Dolois were left with the

power  to  carry  out  all  religious  functions  of  the  temple.    It  was  also

observed that any challenge to the validity of the Rules for constitution of

the Managing Committee  under Section 25A could be raised before  this

Court.  On 3rd February, 2012 this Court by another interim order directed

Deputy Commissioner to take control of precious articles belonging to the

deity  and  prepare  an  inventory.   The  Dolois  were  permitted  to  perform

worship  but  the  office  complex  was  directed  to  be  handed  over  to  the

Kamakhya Debutter Board and such arrangement was to remain operative

until  the  constitution  of  Managing  Committee  under  Section  25A.

Admittedly, the said Committee has not been constituted as yet because the

rules  framed  for  the  purpose  and  notified  on  27.1.2012  have  been

challenged before this Court in Writ Petition No. 72 of 2012 as well as in

Writ Petition No.91 of 2012.  The other writ petition bearing No.140 of 2012

filed by Sailen Sharma, petitioner of Writ Petition No. 72 of 2012 seeks to

challenge the election of Dolois as well as the legality of the electoral college

prepared for that election, mainly on the ground that women Bordeories

and other Deuris, both male and female, were wrongly excluded from the

same.   We shall  first take up the challenge to the Rules framed under

Section 25A of the Act, i.e. Writ Petition Nos. 72 and 91 of 2012.

33.  The  rules  notified  on  27.1.2012  are  called  The  Assam  State

Acquisition  of  Lands  Belonging  to  Religious  or  Charitable  Institution  of

Public Nature (Election of managing committee of Sri Sri Maa Kamakhya

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Temple) Rules, 2012 (hereinafter referred to as ‘The Rules of 2012’).  The

notification clearly mentions that the Rules are pursuant to order of this

Court dated 21.11.2011 for carrying out the elections of ex-officio secretary

and  elected  members  of  the  managing  committee  as  contemplated  by

Section 25A of the Act in respect of Sri Sri Maa Kamakhya Temple. Rule 2

defines various definitions such as Devotee,  Temple and Bordeories.  The

term  ‘Devotee’  is  wide  enough  to  include  all  worshippers,  priests  and

shebaits or persons associated with the Maa Kamakhya Temple residing

permanently  in  Revenue  Village  Kamakhya  either  directly  or  through

ancestors since last 50 years or more. But Temple has been defined to mean

only the Temple of Sri Sri Maa Kamkhya situated on the Nilachal Hill near

the  city  of  Guwahati.  Bordeories  mean  the  devotees  constituting  the

traditional Bordeori Samaj of the temple. There are two electoral colleges

under  Rule  3,  one  for  the  election  to  the  post  of  ex-officio  secretary,

restricted to the  Bordeories of the temple and the other for the election of

five members of the managing committee, consisting of the ‘Devotees’.

34. Rule 6 requires the Deputy Commissioner to treat the list of electors

already prepared by the Bordeories and published in connection with the

election of Dolois as the electoral rolls for the election of ex-officio secretary.

Claims and objections on the basis of such tentative electoral rolls are to be

entertained from the Bordeories only. It is not in dispute that the traditional

list of electors for election of Dolois includes only adult male Bordeories and

hence women members of Bordeori families did not find place  in the draft

electoral rolls which were published under the Rules. It goes without saying

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that Deuries and priests of other Devalayas known as Nanan Devalayas are

also not included in this electoral roll because for election to the post of

ex-officio secretary only the Bordeories are qualified to be in the electoral

college and be a candidate also. Hence a strong grievance has been raised

by the Dolois of Nanan Devalayas, both male and female as well as female

members of  the Bordeori  families that their  exclusion by virtue of  Rules

notified  by  the  State  Government  is  unconstitutional  being  violative  of

Article 14 of the Constitution of India.  

35. On behalf of State of Assam a categorical stand has been taken that

the Rules do not debar the female members of the Bordeori families rather

the nomination form in Schedule II of the Rules requires the candidate to

declare that their names as well as that of their father/mother/husband

has been correctly spelt out. Hence the State has no objection in allowing

claims by female members of Bordeories family if they want their names to

be  included  in  the  electoral  rolls.  However,  on  behalf  of  the  State  Mr.

Jaideep Gupta learned senior counsel took a categorical stand that Deories

cannot  claim  equality  with  Bordeories  for  the  purpose  of  election  of

ex-officio secretary because, according to State, in the Temple of Sri Sri Maa

Kamakhya, which does not include the Nanan Devalayas, the four Bordeori

families occupy the status of trustees whose representatives are the Dolois

elected  for  the  purpose  of  looking after  the  secular  as  well  as  religious

affairs of the temple. He submitted that the Deories are priests only in the

Nanan Devalayas and for the main temple of Sri Sri Maa Kamakhya which

alone is covered by the Rules of 2012, they can only be included in the

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definition of ‘Devotees’ and in that capacity they are entitled to be in the

electoral college for the purpose of electing the other five members of the

Managing Committee. Hence, according to him the State has not committed

any  discrimination or  perpetrated  any illegality  in  creating  two  electoral

colleges,  one  for  the  single  post  of  ex-officio  secretary  confined  to  the

Bordeori families on account of their de jure as well as de facto status since

long  and  another  electoral  college  for  the  five  other  members  of  the

Managing Committee,  consisting  of  the  Devotees  which shall  include all

other  Dolois,  Shebaits/Worshippers  etc.  He  made  it  clear  that  for  the

purpose of statutory Managing Committee under Section 25A of the Act, the

State shall not discriminate between the male and female members of the

Bordeori families or the male and female Devotees, as the case may be.  

36. In  view of  discussions  made earlier  it  is  evident  that  the  Bordeori

families enjoy a distinct status and monopoly in matters connected with the

religious  as  well  as  secular  management  of  the  temple  of  Sri  Sri  Maa

Kamakhya and hence the claim of equality on behalf of Deoris associated

with the Nanan Devalayas or even with Maa Kamakhya Temple does not

have any merit. In view of such clear and categorical legal distinction, the

State cannot be blamed for creating two electoral  colleges and confining

election rolls for the post of ex-officio secretary only to the members of the

Bordeori  families  including  females.  The  alleged  discrimination  vis-à-vis

Deoris has no foundation.  Fair treatment to others interested in the temple

is assured by permitting the ‘Devotees’ to elect as many as five members of

the Managing Committee. Hence the challenge to the impugned provisions

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in the Rules on ground of Article 14 fails.  The plea that Rules must cover

not only the temple and endowment of Sri Sri Maa Kamakhya Devalaya but

the entire complex including Nanan Devalayas has no support or basis in

law.  The Act permits the State to constitute a Managing Committee for

each of the Institution covered by Section 25A of the Act.  It has not been

pleaded or proved that Sri Sri Maa Kamakhya temple and endowment is not

so covered.   In fact the lands acquired under the Act appear mainly of main

temple  of  Sri  Sri  Maa  Kamakhya.   Submissions  were  advanced  but  no

pleading  or  proof  was  placed  before  us  to  show  that  lands  of  Nanan

Devalayas  have  also been acquired.   Moreover,  it  is  discretionary  power

under  Section 25A under  which the  State  may  choose  not  to  have  any

Managing Committee separately for the Nanan Devalayas.

37. On behalf of writ petitioners the same very impugned provisions of the

Rules have been challenged also on the ground that they are contrary to the

mandate of Section 25A of the Act which under Clause (b) requires that an

ex-officio  secretary  be  elected  by  the  Deories/Bordeories.  According  to

petitioners, the Kamakhya Temple Complex enjoys the services of Dolois as

well as Bordeories hence the Act requires both the groups to be treated as

equal and the Rules must be declared to be against the Act inasmuch as

they run counter to the Act by giving recognition only to Bordeories at the

cost of Deories.

38.  To meet the aforesaid contention, Mr. Jaideep Gupta, ;earmed senior

counsel referred to the various provisions of the Act to highlight that the

scheme was to recognize the Head of the Institution in whom the control

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and management of the properties is vested under any enactment, grant or

usages relating to the Institution or any scheme of management framed by

a court under Section 92 of  the CPC. Such a Head, upon notice has to

deliver the possession of  the acquired property and is entitled to receive

compensation in the form of  annuity.  In this background he laid stress

upon  the  fact  that  Section  25A  was  inserted  not  for  constitution  of  a

common Managing Committee for all the religious or charitable institutions

in the State but for constitution of a Managing Committee for each of the

religious  or  charitable  institutions  of  public  nature.   In  this  context,

considering  that  some  of  the  religious  institutions  have  only  Deories

whereas some like the Kamakhya Temple have their control vested totally in

Bordeories, the legislature provided for election of ex-officio secretary either

by the Deories or by Bordeories as the case may be. According to him, the

use of ‘slash’ (/) between the word Deories and the word Bordeories, in the

background of scheme and provisions of the Act connotes the option to act

as per factual  situation obtaining in a particular  institution.  His further

submission was to the effect that factually the claim of the petitioners that

the temple of Shri Shri Maa Kamakhya requires daily worship/puja not only

by the Bordeories but also by atleast two families of Deories, the Chandi

Pathaks and the Supakars has been controverted  by explaining that the

daily worship/puja is under the management of Dolois who represent the

Bordeories and it is only on some special occasions, once or twice in a year

that the Chandi Pathaks and the Supakars participate as Shebaits. Thus,

on facts  it  has been seriously  contested that  the temple  of  Sri  Sri  Maa

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Kamakhya requires services of Deories for daily worship/puja.

39. After  considering  the  rival  submissions  and  on  going  through  the

pleadings as well as provisions in the Act, we are in agreement that the

submission advanced on behalf of the State of Assam that Clause (b) in

Section 25A gives  a  choice  or  option for  electing  the ex-officio  secretary

either by the Deories or Bordeories depending upon the facts of a particular

religious or charitable institution has merits and deserves to be accepted. It

is not the case of petitioners that all the institutions in the State have both

Deories and Bordeories. In that view of the matter it would be inevitable to

get the ex-officio secretary elected either by the Deories or the Bordeories,

whosoever may be managing the concerned institution.

40. It is important to notice that the terms ‘Deories’ and ‘Bordeories’ is not

defined under the Act. Under Section 30 of the Act, the State Government

has the power to make rules for carrying out the purposes of the Act. Such

rules are required to be laid before the Assam Legislative Assembly as soon

as possible after they are made, for not less than fourteen days and are

subject  to  such  modifications  as  the  Legislative  Assembly  may  make.

Clearly the task of defining or explaining the terms ‘Deories’ or ‘Bordeories’

in the context of a particular institution has been left to be done by making

of rules. The Rules of 2012 seek to provide for a Managing Committee in

terms of Section 25A only for the temple of Sri Sri Maa Kamakhya. Under

statutory powers,  the State Government in the context of  this particular

institution has recognized only Bordeories  by referring to  the traditional

Bordeori Samaj of the temple. The other Devotees, Shebaits and Deories, if

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any,  have  been  included  in  the  category  of  ‘Devotee’  with  a  right  to

participate  in   the  election  of  other  five  members  of  the  Managing

Committee. The Rules of 2012 thus supplement the provisions of the Act

and  do  not  run  counter  to  the  intention  of  the  legislature  which  has

accepted  the  Rules  of  2012  without  exercising  its  power  to  make

modifications. Such Rules must be treated as part of the Act and in absence

of any conflict it has to be held that the Rules of 2012 only explain the real

intention of the legislature in using the sign of slash (/) between the words

Deories and the Bordeories in Clause (b) of the Section 25A. The second

ground of  assailing the rules,  therefore,  must also fail.  Accordingly  Writ

Petition Nos. 72 and 91 of 2012 are dismissed for lack of any merits.

41. As already noticed earlier the third Writ Petition bearing No. 140 of

2012 has also been filed by the same person - Shailen Sharma who is the

petitioner in Writ Petition No. 72 of 2010 - to challenge the election of Dolois

held on 16.11.2011. The only ground urged on behalf of the petitioners is

denial of equality or in other words, violation of Article 14 of Constitution of

India. According to petitioners even if the electoral college was required to

be confined by tradition only to Bordeories Samaj, the custom of depriving

women  members  of  such  families  the  right  to  vote  and  to  stand  as

candidate for the post of Dolois is obnoxious, immoral, discriminatory and

against Public policy. It is also the case of petitioners that another class of

priests known as Dolois play equally important role as the Bordeories and

hence the male and female  members of  Deories  families have also been

subjected to  hostile  discrimination by the customs that  are archaic  and

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must be struck down as law contrary to the fundamental right of equality

guaranteed by the Article 14 of the Constitution of India.

42. It is not in dispute that the impugned custom is not in existence on

account of any State action. The temple in question is admittedly an ancient

religious institution of public nature. The temple of Sri Sri Maa Kamakhya

occupies  a  place  of  pride  among  Hindu temples,  especially  as  a  Shakti

Peeth. No doubt there are other smaller temples which have sprung up on

or around the same hill of Neelachal near the town of Guwahati in Assam

under the belief that there are secret Peethas which may be discovered/

found by the enlightened persons gradually in due course of time. From the

judgments referred in earlier litigations of old times it is evident that the

monopolistic control of Bordeories over the religious and secular spheres of

the temple has been resented and challenged by the other priests including

Deories  of  Nanan  Devalayas  but  without  success.  It  has  already  been

noticed that the appellants before this Court have now taken resort to a

proceeding under Section 92 of CPC which is pending before the District

Judge,  Kamrup,  Guwahati.  The  appellants  and  the  petitioners  have

evidently spared no efforts to break the power and control of the Bordeories

and the Dolois but so far without success. The aforesaid facts have been

noted  in  view  of  strong  objection  by  Mr.  Rajiv  Dhawan,  learned  senior

advocate for the respondents that the writ petitions including No. 140 of

2012  are  not  bonafide  petitions  because  they  have  been  filed  only  to

support the case of the appellants and the Debuttar Board of 1998.

43. On going through the pleadings in the said petition we find as a fact

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that writ petitioners have at places taken contradictory stand to challenge

the custom granting rights to the Bordeories and Dolois and at places they

have praised the Debuttar Board which recognizes the supremacy of  the

Dolois atleast in matters relating to the religious practices in the temple.

However, it would not be proper to decide the writ petition merely on such

technical pleas when it has been heard at quite some length.

44. The plea of the petitioners is that no doubt fundamental rights under

Articles  14  and  15  unlike  rights  such  as  against  untouchability  are

guaranteed only against State action and not against private customs or

practices but Judiciary is as much a part of State as the Executive and the

Legislature and hence it  cannot permit perpetuation of  discrimination in

violation of Article 14, particularly in view of Article 13(1) which mandates

that all pre Constitution Laws in the territory of India to the extent they are

inconsistent  with  the  provisions  of  part  III  of  Constitution  shall,  to  the

extent of such inconsistency, be void.

45. Part III  of the Constitution contains fundamental rights and begins

with Article 12 which defines ‘the State’  for the purposes of part III.  For

better appreciation of the issues involved, Articles 12 and 13 are extracted

here in below:

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

13.  Laws inconsistent with or in derogation of the fundamental

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rights

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

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

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

(a) “law” includes any Ordinance, order, bye law, rule, 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 of India before the commencement  of  this  Constitution  and  not  previously repealed,  notwithstanding  that  any  such  law  or  any  part thereof  may  not  be  then  in  operation  either  at  all  or  in particular areas.

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

46. Since the controversy  at  hand embraces Articles  25 and 26,  these  also,

must be noted in extenso:

“25.  Freedom  of  conscience  and  free  profession,  practice  and propagation of religion

(1) Subject  to  public  order,  morality  and  health  and  to  the  other provisions of this Part, all persons are equally entitled to freedom of conscience  and  the  right  freely  to  profess,  practise  and  propagate religion

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

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

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

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

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property  in  accordance  with  law.  Such  rights  being  in  part  III  of  the

Constitution itself, must be respected and read in harmony with each other

and  other  provisions  in  Part  III.  With  this  stand  the  respondents  have

supported their plea that Article 13 will have no application in respect of

personal laws based on Shastaras and Scriptures and also in respect of

essential religious practices which are matters of faith based upon religious

scriptures that are inviolable for the believers.

49. Before  referring  to  the  various  judgments  by  Mr.  Shanti  Bhushan,

learned senior counsel for the petitioners and the judgments relied upon by

Mr.  Rajiv  Dhawan  and  Mr.  Jaideep  Gupta,  senior  advocates  for  the

respondents, the basic facts pleaded by the parties may be noted with a

view to find out whether the factual foundation has been laid down and

established for claiming equality with Bordeories Samaj which elects the

Dolois as per customs. In the pleadings, petitioners have highlighted that in

the several kinds of pujas the women Bordeories take active part and hence

are equally aware of all the rituals and have the necessary qualification to

be treated as equal of men Bordeories for the purpose of electing the Dolois

and also for being a candidate. The reply of the respondents in essence is a

complete  denial  of  aforesaid  assertion  with  a  counter  plea  that  women

participate only as worshippers and not as priests and they have no say in

the matter of management of the temple so as to claim same knowledge and

consequent equality with the male Bordeories. Such dispute of facts may be

resolved  only  on  basis  of  a  detailed  proper  study  of  the  customs  and

practices  in  the  temple  of  Sri  Sri  Maa  Kamakhya  but  there  is  no

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authoritative textual commentary or report which may help this Court in

coming to a definite finding that women belonging to Bordeori families are

equally adapt in religious or secular matters relating to that temple. The

relevant scriptures have also not been disclosed to this Court which could

have helped in ascertaining whether the basic religious tenets governing the

Shakti  Peethas  in  the  Kamakhya  Temple  would  not  stand  violated  by

permitting female Bordeories to elect or to get elected as Dolois. Hence on

facts we are not in a position to come to a definite finding on the issue of

equality for the purpose at hand as claimed by the petitioners. The same

logic is equally, if not more forcefully, applicable in the case of claim of the

Deories that they are equally situated as the Bordeories Samaj in the matter

of election of Dolois. The petitioners have also not explained at all as to why

equality be extended only to female Bordeories and Deories and not to all

and sundry.

50. In the aforesaid situation it is always with a heavy heart that a Writ

Court has to deny relief. It may not always be safe for a Writ Court to decide

issues and facts having great impact on the general public or a large part of

it only on the basis of oath against oath. Where the right is admitted and

well established, the Writ Court will not hesitate in implementing such a

right especially a fundamental right. But enforcement of established rights

is a different matter than the establishment of the right itself. When there is

a serious dispute between two private parties as to the expertise, experience

and qualification for a particular job, the prime task before the Court is first

to analyse the facts for coming to a definite conclusion whether the right

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stands established and only when the answer is in affirmative, the Court

may  have  no  difficulty  in  enforcing  such  an  established  right,  whether

statutory, fundamental or constitutional. In the present case, as indicated

above, it is indeed difficult for this Court to come to a definite conclusion

that  the  petitioners  claim  to  equality  for  the  purpose  at  hand  is  well

established. Hence we have no option but to deny relief to the petitioners.

51. Coming to the issues of law, on behalf of the petitioners Mr. Shanti

Bhushan placed reliance upon judgment in case of Sant Ram versus Labh

Singh, 1964 (7) SCR 756 in support of his submission that any law which

includes customs, as per Article 13 must be declared void to the extent it is

inconsistent with fundamental rights in part III of the Constitution. For the

same purpose he also placed reliance upon the case of  Bhau Ram vs. B.

Baijnath Singh, 1962 (Suppl.) 3 SCR 724 and Atam Prakash vs. State of

Haryana & Ors., (1986) 2 SCC 249.

52. On the aforesaid issue Mr. Rajiv Dhavan has pointed out a categorical

distinction that in all those three cases the concerned right was a right of

pre-emption claimed by a land holder on account of vicinage and not any

personal or  religious right flowing out of religious scriptures and believes.

In Bhau Ram the pre-emption right arose out of a statute and it was found

to be against Article 19(1)(f).  Only a reference was also made to Article 15.

In  the  case  of  Atam  Prakash also  the  right  was  based  upon  Punjab

Pre-emption Act, 1913.  In the case of Sant Ram on which strong reliance

has been placed, the custom based right of pre-emption was found invalid

on the ground of infringing Article 19(1)(f).  

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53. Mr. Dhavan has referred to as many as 13 cases as per list  given

below:

1. Shirur  Math  (The  Commissioner,  Hindu  Religious 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 SCR 32

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

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

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

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

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

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

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

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

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

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

54. It is highlighted that in all these cases relating to religious endowment

and institution, under challenge were changes in customs that had been

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propositions, respondents have referred to and relied upon the judgment in

the  case  of  Shirur  Math  (The Commissioner  Hindu  Religious

Endowments,  Madras  vs.  Sri  Lakshmindra  Thirtha  Swamiar  of  Sri

Shirur Mutt, 1954 SCR 1005 and also upon Shri Venkataramana Devaru

and Ors. Vs. State of Mysore and Ors. 1958 (SCR) 895.

56. An interesting situation arose in the case of Bijoe Emmanuel & Ors.

v. State of Kerala & Ors., (1986) 3 SCC 615. School children having faith

in Jehovah’s Witnesses Sect refused to sing national anthem in their school

for  which  they  were  expelled  on  the  basis  of  executive  instructions

contained in circulars which obliged singing of national anthem in schools.

Such action against the children was challenged with the help of defence

based upon Articles  25(1)  and 19(1)(a).   In  the aforesaid judgment,  this

court upheld the defence of the children on both counts.  In Paragraphs 19

and 20, Article 25 was considered with a view to find out the duty and

function  of  the  Court  whenever  the  fundamental  right  to  freedom  of

conscience and to profess, practice and propagate religion is invoked.  The

answer  given  in  the  judgment  in  a  concise  and  succinct  manner  is  as

follows:

“….Therefore, whenever the Fundamental Right to freedom of conscience and to profess, practise and propagate religion is invoked, the act complained of as offending the Fundamental Right must be examined to discover whether such act is to protect public order, morality and health, whether it is to give effect to the other provisions of Part III of the Constitution or whether it is authorised by a law made to regulate or restrict any  economic,  financial,  political  or  secular  activity  which may be associated  with  religious practise  or  to  provide  for social welfare and reform. It is the duty and function of the court so to do. Here again as mentioned in connection with

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Article  19(2)  to  (6),  it  must be a law having the force of  a statute  and  not  a  mere  executive  or  a  departmental instruction.”

57. Respondents have also relied upon judgment of this Court in the case

of  Pannalal  Bansilal  Pitti  & Ors. v.  State of Andhra Pradesh & Anr.,

1996 (2) SCC 498. The challenge in this case was to the constitutionality of

certain provisions of  an Andhra Pradesh Act  bringing certain reforms in

respect of Hindu Religious Institutions.  At the behest of adversely affected

hereditary  trustees  of  Hindu  Religious  and  Charitable  Institutions,  this

Court  considered  the  argument  that  by  confining  the  reforms  only  to

Institutions maintained by Hindus, the provisions of the Act had violated

Article 14.  Paragraph 12, made it clear that though an uniform law may be

highly desirable, in a democracy the legislature should have the freedom to

bring about gradual progressive changes and the process may start where

the  need  is  most  acute.   This  Court  further  held  that  it  would  be

inexpedient and incorrect to think that all laws must be made uniformly

applicable to all people in one go.  In other words the legislature has to be

trusted for bringing about necessary changes by way of reforms in matters

relating  to  faith  and religion which at  times  may include  personal  laws

flowing from religious scriptures.  In the case of  Seshammal & Ors. etc.

etc. vs. State of Tamil Nadu,  1972 (2) SCC 11, paragraphs 11 and 12

exhibit a detailed discussion relating to the Agamas which contain elaborate

rules relating to construction of temple as well as  consecration  of the idol.

It is the religious belief of Hindu worshippers that once the image of the

deity  is  consecrated,  it  is  fit  to  be  worshipped  in  accordance  with  the

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detailed rituals only by a competent and trained priest.  The religious belief

extends to protecting any defilement of the idol and if the image of the deity

is defiled on account of violation of any of the rules relating to worship,

purificatory ceremonies must be performed for restoring the sanctity of the

shrine.  The worshipers value the rituals and ceremonies as a part of Hindu

religious faith.  In paragraph 12, the Court concluded that “any State action

which permits the defilement or pollution of the image by the touch of an

Archaka not authorised by the Agamas would violently interfere with the

religious faith and practices of the Hindu worshipper in a vital respect, and

would,  therefore,  be  prima  facie  invalid  under  Article  25(1)  of  the

Constitution”.

58. In  the  aforesaid  judgment  it  was  also  held  that  the  matter  of

appointment of a competent Archaka i.e. the priest is a secular matter and

therefore can be regulated by a State action.  However, the situation may be

different and more complicated if, like in the present case, the Bordouries

are the trustees as well as the priest and the management of religious and

secular activities have been entrusted by the Bordouries themselves to their

elected  representatives,  the  Dolois.   The  element  of  appointment  stands

substituted  by  the  action  of  the  trustees  themselves  performing  the

necessary rituals.  This aspect need not be pursued any further because

there is no statute framed by the State so far to regulate even the secular

affairs of the temple.  Only when such State action takes place, there may

arise an occasion to examine the related issues as to whether interference

with  the   custom  governing  appointment  of  Dolois  would  amount  to

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regulating only the secular affairs of the temple or it shall obliterate the

essential religious practices of the institution.

59. On considering the rival submissions and the relevant case laws, we

are inclined to agree with the submissions on behalf of the respondents that

Article 13(1) applies only to such pre-constitution laws including customs

which are inconsistent with the provisions of Part III of the Constitution and

not to such religious customs and personal laws which are protected by the

fundamental rights such as Articles 25 and 26.  In other words, religious

believes, customs and practices based upon religious faith and scriptures

cannot be treated to be void.  Religious freedoms protected by Articles 25

and 26 can be curtailed only by law, made by a competent legislature to the

permissible extent.   The Court can surely examine and strike down a State

action or law on the grounds of  Articles 14 and 15.   But in a pluralist

society  as  existing  in  India,  the  task  of  carrying  out  reforms  affecting

religious believes has to be left  in the hands of the State.    This line of

thinking is supported by Article 25(2) which is clearly reformist in nature.

It also provides scope for the State to study and understand all the relevant

issues  before  undertaking the  required  changes and reforms in an area

relating  to  religion  which  shall  always  be  sensitive.  While  performing

judicial  functions stricto-sensu,  the Judiciary cannot and should not  be

equated with other organs of state – the executive and the legislature. This

also fits in harmony with the concept of separation of powers and spares

the judiciary or the courts to dispassionately examine the constitutionality

of  State  action  allegedly  curbing  or  curtailing  the  fundamental  rights

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including those under Articles 25 and 26.

60. On the related issue of the scope of Article 12 and whether for the

purposes  of  issuance  of  writ,  judicial  decisions  by  the  judiciary  can  be

included  in  State  action,  we  are  in  agreement  with  the  submissions

advanced by Mr. Rajiv Dhavan that definition of ‘the State’ under Article 12

is  contextual  depending upon all  relevant  facts  including the  concerned

provisions in Part III of the Constitution. The definition is clearly inclusive

and not exhaustive.  Hence omission of judiciary when the government and

Parliament of India as well as government and legislature of each of the

State has been included is conspicuous but not conclusive that judiciary

must be excluded. Relevant case laws cited by Mr. Dhavan are:-

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

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

(iii) Triveniben vs. State of Gujarat, (1989) 1 SCC 678   

(iv)    Poonam vs. Sumit Tanwar, (2010) 4 SCC 460   

61. Hence, in accordance with such judgments holding that judgments of

High Court and Supreme Court cannot be subjected to writ jurisdiction and

for  want  of  requisite  governmental  control,  Judiciary  cannot  be  a  State

under Article 12, we also hold that while acting on the judicial  side the

courts are not included in the definition of the State. Only when they deal

with  their  employees  or  act  in  other  matters  purely  in  administrative

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capacity, the courts may fall within the definition of the State for attracting

writ jurisdiction against their administrative actions only. In our view, such

a  contextual  interpretation  must  be  preferred  because  it  shall  promote

justice, especially through impartial adjudication in matters of protection of

fundamental rights governed by Part III of the Constitution.

62. On the aforesaid issue Mr. Shanti Bhushan has placed reliance upon

the  judgment  of  this  Court  in  Harjinder  Singh  vs.  Punjab  State

Warehousing Corporation, 2010 (3) SCC 192 and  Indira Nehru Gandhi

vs.  Raj  Narain 1975  (Suppl.)  SCC 1,   The  aforesaid  judgments  do  not

require us to change our view because the issues in both the cases were

quite different.  In the case of Harjinder Singh this Court while considering

the proper parameters for the exercise of writ jurisdiction, held that there

was no justification in entertaining a new plea raised by the employer for

the first time before the High Court.  The context in which some minority

views that the judiciary is a State within the meaning of Article 12 of the

Constitution were noted in Paragraphs 40 and 41 of the judgment was quite

different and such exercise was undertaken only to highlight that judiciary

is essentially one of the three arms of the State and as such it must also be

aware of its responsibilities flowing from the Preamble and Article 38 of the

Constitution. At best, those observations are clearly an obiter.  

63.   In  order  to  fully  appreciate  the  implication  of  including  judiciary

within ‘the State’ as defined under Article 12 it may be recapitulated that in

catena  of  judgments  it  has  been  held  that  writ  petitions  will  not  be

entertained against purely private parties.   Further,  elaborate tests have

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been laid down for finding out when an authority can be treated to be the

State for the purposes of Part III of the Constitution.

64. If the submission of Mr. Shanti Bhushan is accepted that by simply

hearing a writ petition the Court becomes a party with same duties and

responsibilities  as  the State,  then the rights  which can be claimed only

against the State can also be claimed against all  private parties because

judiciary has to hear and decide almost all cases. Such plea is required to

be noticed only for rejection otherwise all disputes against private persons

will  have to be treated as a dispute against the State also, because it is

primary responsibility of the judiciary to hear and adjudicate all disputes.

The judicial forum will then loose its impartiality because petitioners, like in

the present case, will make a demand that court itself should act as the

State  and  deliver  all  reliefs  in  a  dispute  where  the  executive  or  the

legislature is not at all involved as a party. For the aforesaid reasons we find

no merit in the contention that while acting in judicial capacity the judiciary

acts as the State and hence it must, as a corollary, entertain a writ petition

against purely private parties only because the matter has been brought

before the court.   

65. The writ  petitions are,  therefore,  liable to be dismissed for want of

merits.  In some of the Writ Petitions, there is a prayer to accord a narrow

scope to Section 25A of  the Act and powers of  the Managing Committee

contemplated thereunder.   Since that relief has already been granted in the

Appeals,  the  same  does  not  require  fresh  consideration.  With  this

clarification the writ petitions are dismissed.

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66. Since the Debutter Board is occupying some part of the premises in

the temple of Sri Sri Maa Kamakhya temple on account of interim orders of

this  court,  all  those  interim  orders  are  now  vacated.   The  District

administration is directed to ensure that those premises are vacated by the

members or representatives of the Debutter Board at the earliest and in any

case within four weeks.  The premises and other properties of Sri Sri Maa

Kamakhya Temple shall, if required, be placed back within the same time in

possession of the Bordeories Samaj through the last elected Dolois against

receipts  which  shall  be  retained  in  the  office  of  Deputy  Commissioner,

Guwahati. The parties representing the Debutter board are also directed to

hand over the vacant and peaceful possession of the concerned premises

and other properties of the temple, if any, within four weeks.  There shall be

no order as to costs.            

67. Before parting with the order  we would like to  direct  in the larger

interest of Justice, that like in the past if there is any need of mediation or

intervention of an authority for election of Dolois at five years interval etc. or

for smooth functioning of affairs of the Sri Sri Maa Kamakhya Devalaya, the

concerned  affected  parties  can  approach  the  District  Judge,  Kamrup,

Guwahati  who  shall  try  and  settle  such  disputes  as  in  the  past,  till  a

specific law is enacted for this purpose. In such matters the decisions of the

District Judge shall be of course subject to supervisory writ jurisdiction of

the High Court.

               ..………………..

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

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

New Delhi. July 07, 2015.

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

     Civil Appeal  Nos. 3276-3278/2013 RIJU PRASAD SARMA ETC.ETC.                         Appellant(s)                                 VERSUS STATE OF ASSAM & ORS.                             Respondent(s) WITH W.P.(C) No. 72/2012 W.P.(C) No. 91/2012 W.P.(C) No. 140/201 S.L.P.(C)Nos.18070-18072 @ CC No. 8089-8091/2012   Date : 07/07/2015 These appeals/Petitions were called on for  

Judgment today. For the parties:  Mr. Arunabh Chowdhury, Adv.

Mr. Parthiv Goswami, Adv.  Mr. Vaibhav Tomar, Adv.  Mr. Karma Dorjee, Adv.

                    Mr. Anupam Lal Das,Adv.                                            Mr. Vikash Singh,Adv.                      Mr. Hrishikesh Baruah,Adv.                      Mr. Rameshwar Prasad Goyal,Adv.                      M/s Corporate Law Group,Adv.                      Mr. Ajay Bansal, Adv.

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

                    Mr. Puneet Taneja,Adv.                    Hon'ble Mr. Justice  Shiva Kirti Singh pronounced the

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

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

Petitions are dismissed.

  (USHA BHARDWAJ)         AR-cum-PS

         (SAROJ SAINI)            COURT MASTER  

(Signed Reportable Judgment is placed on the file)